Roy Mitchell, the point man in the FBI conspiracy and O’Neal’s handler, walked to the witness box a few feet in front of us on March 11 to begin his testimony. His crew cut was even shorter than at his deposition. His stiff posture and military bearing gave him a straight appearance that contradicted what we knew from his deposition.
In our most recent discovery, we received a COINTELPRO memo that indicated Mitchell instructed O’Neal to create a rift between the Panthers and SDS by circulating racist cartoons and attributing them to SDS. Another showed O’Neal proudly reporting to Mitchell that as chief of security he had devised a “security plan” for Panther headquarters that included nerve gas and an electric chair. Mitchell still denied that he or O’Neal was following COINTELPRO directives. Other Mitchell memos showed O’Neal reporting to him on Fred’s daily activities in late 1969, as well as the content and attendance at his speeches. O’Neal told Mitchell about Fred and Deborah renting the apartment in October and that Fred met with national Panther leaders and “would take Hilliard’s position on the central staff if he [Hilliard] went to jail.”
As Montgomery’s inquiries moved forward chronologically to the period before the raid, Mitchell testified about a speech Fred gave in Chicago in November 1969. The cross-examination was going smoothly enough, if not dramatically.
Montgomery: “What information did [O’Neal] give you other than that he was making a speech?”
Mitchell: “Well, he’s given me information about Mr. Hampton and a few other Panthers traveling to Rockford, Illinois.”
Montgomery: “At some time he told you about his speech—“
Coghlan [interjecting]: “I don’t believe the witness completed his answer, Your Honor.”
Perry: “Well, I thought he had, but if he hadn’t, he may do so. Is there something further?”
Mitchell had gotten a cue from Coghlan. He hesitated, but for only a moment. “Yes, Your Honor, when they were contemplating killing a state police officer.”
Perry: “I stand corrected, Mr. Coghlan.”
Montgomery came over to the table where Flint and I were seated. He leaned over and whispered, “The motherfucker just sandbagged me. Do we have any document reflecting what he’s saying?”
“No,” Flint and I responded in unison shaking our heads.
Montgomery returned to the lectern. I saw a sinister smile on Coghlan’s face.
Montgomery: “Did you make a written memo of that? What you just said?”
Mitchell: “I don’t know if it’s recorded.”
Montgomery: “Have you read anything with that in it?”
Mitchell: “I believe so, yes.”
Montgomery: “Where is it?”
Mitchell: “I assume it’s in the FBI files.”
Montgomery [curtly]: “Would you produce it, please? Thank you.”
Mitchell was trapped. He had made a striking accusation against Fred Hampton. If there were no report memorializing this, then he would look like a liar. If there was one, we should have received it in discovery. Every day for the next two weeks after cross-examination, we asked Mitchell if he had found the missing Rockford document. At one point he claimed he had “gone through thirty volumes of files trying to locate it,” but had not found it.
Flint’s ears perked up. “How could he be looking through thirty volumes of files when we supposedly have the complete files, which are less than one volume?”
Kanter jumped in stating emphatically we had received all the files with information from or about O’Neal.
“The entire informant file?” Flint asked.
Kanter: “That’s correct.”
Taylor: “Could we have an affidavit on that?”
Perry: “That’s not necessary.”
After two weeks of questioning Mitchell, Perry told Montgomery, “I expect you to conclude with this witness this afternoon.” Montgomery focused on the key points in the conspiracy. Roy Mitchell again admitted he had “five to seven” meetings with Jalovec, including a face-to-face meeting at the State’s Attorney’s Office on the morning of December 1 or 2 with Jalovec and Groth, and there he had told them about illegal weapons at 2337.
Montgomery: “Did you draw them a floor plan?”
Mitchell: “I had notes with me, yes, I do not recall them taking notes, whatsoever.”
Montgomery: “Did you show this outline to Groth and Jones?”
Mitchell: “They could have seen it, yes. I took it over there with the purpose of disseminating it to them. They didn’t appear that interested in it.”
Montgomery: “Did you show it to them?”
Mitchell: “I believe so.”
Montgomery: “Did you discuss the possibility of conducting a raid?”
Mitchell: “We never discussed a raid in the five to seven meetings…. I did tell Jalovec that Fred Hampton, Deborah Johnson, Louis Truelock, and Doc Satchel frequented the apartment.”
By agreement, I interrupted Montgomery’s cross-examination and asked Mitchell if he had found the missing memo.
Mitchell: “That document was found last night. It’s being prepared. It will be ready sometime this afternoon.”
How convenient. Just after he expects to leave the witness stand.
As Mitchell was stepping down, I asked him to tell us where he’d found the document.
Perry: “Now just a minute. Let’s put him on the witness stand and get it all.”
Perry was hoping to help Mitchell but had inadvertently volunteered him to answer questions on the missing document under oath.
Mitchell [back on the witness stand]: “I have found the document, yes.”
Haas: “In what file did you locate it?”
Mitchell: “In the file captioned ‘Powell.’”
Haas: “Was a copy of that document in the Black Panther file?”
Mitchell knew the FBI had been ordered to produce that file for us in discovery.
Mitchell: “I did not find it there.”
A clever nonanswer.
I asked Mitchell why it took him so long to find the Rockford document. He testified that he’d looked for days in the Panther file but admitted his search did not include the time period of the Rockford incident. Mitchell said he then switched to the much smaller Lincoln Powell file and found it in half an hour. We had never asked for the Lincoln Powell file; in fact we had never heard the name, so finding it there would not expose that the FBI had withheld files Perry ordered.
In the afternoon, Kanter sheepishly admitted that copies of the document were also in the files titled “Hampton,” “O’Neal,” and “Black Panther.” “Well, why were they not produced?” Judge Perry asked.
Kanter: “I must apologize, because it has been my understanding…. We will take a recess and bring up the whole file.”
Christenbury: “I would now, for what it’s worth, apologize to the court and to counsel. We did misunderstand the court’s order…. I apologize for the inconvenience it has caused the court and other counsel.”
Court recessed until 9:30 A.M. the next day.
“Sorry we concealed all those documents for so long and told everyone they didn’t exist,” I mimicked the straight-laced Christenbury in the hallway when Flint and I left court.
“That’s OK,” Flint replied in the same sarcastic tone. “Just because we are in the third month of the trial and may have to start all over, it’s just a slight inconvenience.”
“Seriously, what are we going to do if they produce a lot more material?” I asked.
“I don’t know,” he replied. “We’ve been fighting so long to get the documents. Now I can’t see how we can use them effectively without a long delay.”
The next morning, Flint, Montgomery, Dennis (just back from Attica), and I waited in court. Maybe, just maybe, the FBI was going to come clean. I had alerted the media and they were present with sketchpads in hand.
Twenty minutes later both doors at the rear of the court swung open. I heard the rattle of wheels rolling down the corridor outside. A gray cart emerged through the doorway, pushed by Assistant U.S. Attorney Kwoka. Its two shelves were packed with black bound notebooks. There was more rattling from the hallway, and Christenbury entered pushing an identical cart, followed by Kanter wheeling a third one. The procession continued down the aisle of the courtroom past the spectator benches, past the attorneys’ tables, and came to rest at the podium before the judge.
Kanter stood next to the carts, looking up at Perry like a disobedient puppy. A quick count showed fifty 500-page volumes from the Hampton and O’Neal files, which should have been produced long ago and certainly in January. The remainder, another 150 volumes, held Black Panther Party files. The parts of those relating to our clients were supposed to have been produced. FBI Agent Deaton testified that Piper and Kanter told him what to turn over. Let the jury hear that, I thought. Concealing evidence is evidence of guilt.
How could we possibly read, catalog, and use this material effectively two months into the trial? It’s impossible. It can’t be done. It’s outrageous. We need to start all over and they need to pay for their concealment.
With the press staring at him and the withheld evidence before him, Perry repeated that these were documents he had previously ordered produced. Flint said it would take us six months to read and catalogue the material after the FBI copied and excised it, not to mention another several weeks asking the FBI defendants in depositions if they had read or authored the reports. In a quick huddle at a court break, Flint suggested that we ask for sanctions and a mistrial. Montgomery was hesitant to start all over, so we agreed to pursue sanctions only.
Flint walked to the podium. “Your Honor, we want to file a motion for sanctions and contempt against the federal defendants and their lawyers for deliberately concealing this evidence and for violations of the discovery rules. We also want to question Kanter on his role in keeping the documents secret.”
Perry looked befuddled for a moment, shifting through the papers on his desk as if the answer were there. Then suddenly he regained his composure and declared, “It was a mistake, negligence on the part of the FBI.
“Call the jury in,” he told the clerk, before we could respond.
“Hard to overlook one hundred and fifty volumes,” Flint replied.
After the FBI lawyers had removed the carts, the jury was brought in. “There’s been a misunderstanding of my rulings,” Perry told them. “We are going to recess this case for another week. You should blame me, not any of the parties or their lawyers.”
The jurors shook their heads, annoyed and puzzled at another delay. They would have found out the reason that afternoon, but Judge Perry had ordered them not to read the papers. “Government Caught Hiding Thousands of Files,” one of the headlines ran. Our jurors were among the few adults in Chicago who were never informed that the FBI had been caught hiding evidence.