Hiding COINTELPRO

The purpose of discovery is to make trial less a game of blind man’s bluff and more a fair contest with the basic issues and facts disclosed to the fullest extent possible. —Supreme Court Justice William O. Douglas, 1958

In general, FBI agents do not voluntarily admit wrongdoing. They must be confronted with one or more documents they wrote or approved. We had the memos Agent Mitchell had authored, stating that he told State’s Attorney Hanrahan’s office about guns at Hampton’s apartment, and that he had shown Hanrahan’s assistants the floor plan designating the bed where Fred and Deborah slept. Mitchell sent these memos to his supervisor, Robert Piper, and to the head of the Chicago FBI office, Marlin Johnson. Flint and I intended to confront Piper and Johnson with these at their depositions to make them admit their knowledge and approval of Mitchell’s actions. That would be the easy part.

We also had COINTELPRO documents with orders from FBI director J. Edgar Hoover to the heads of all FBI field offices, including Marlin Johnson, to come up with “hard hitting programs” to “disrupt, expose, misdirect, discredit, or otherwise neutralize” the Panthers and “prevent the rise of a messiah who could unify and electrify the militant black nationalist movement.” We planned to cross-examine Piper and Johnson using these documents, which they had read and initialed, and force them to acknowledge their roles in executing the Counterintelligence Program. This would be harder.

Flint and I deposed Robert Piper in the unadorned but cramped conference room loaned to us by the Lawyers’ Committee for Civil Rights. From the windows of the room, you could see the midriff of several Chicago office buildings. We had arrived first and were sitting at the Formica conference table talking to Julian Carter, our court reporter. He had just set up his stenograph machine when Piper and Assistant U.S. Attorney Arnold Kanter entered. After perfunctory introductions, I asked if they were ready to start. Kanter nodded.

“Would you swear the witness?” I asked the court reporter.

“Do you swear to tell the whole truth, the honest truth, and nothing else but the truth?” Carter asked hurriedly, typing as he spoke.

“I do,” affirmed Piper. He was tall and gaunt with an aloof, erudite manner.

I opened with the preliminaries, questioning Piper about his training and background in the FBI. Before answering each question, he lifted his bony nose and looked at me as if I were an irksome child.

“Were you aware that your subordinate, Roy Mitchell, provided Hanrahan’s office with a floor plan, in fact this floor plan?” I asked, picking up the diagram of Hampton’s apartment. “Let the record indicate I am showing the witness Piper Deposition Exhibit Number 1.”

“Yes, I was,” he stated. He had initialed Mitchell’s memo.

“Did you approve Mitchell meeting with members of the State’s Attorney’s Office and giving them information about guns in Hampton’s apartment?”

Again, he replied, “Yes.” He had initialed that memo as well.

“And were you aware they intended to use this information to conduct a raid on Hampton’s apartment?”

He hesitated but admitted that the “information would be valuable in conducting a raid.”

Piper acknowledged speaking with Mitchell the morning following the raid. He testified that he had “no particular concern” when Mitchell told him about the Panther deaths and injuries. He recalled the Mitchell interview with satisfaction. His coldness was disturbing, even to me, who did not expect a show of compassion from FBI officials.

Piper testified that he was head of the Racial Matters Squad, charged with monitoring the Panthers and other black groups. Thus, he would have been the likely person to supervise the agents and their informants carrying out COINTELPRO. “Were you and Mitchell acting pursuant to the Counterintelligence Program when you provided Hanrahan with the floor plan?”

He sneered. I was about to comment sarcastically that the court reporter couldn’t take down his expression, he would have to answer orally, when Kanter intervened. He held up his open hand toward me from the other side of the table, like a crossing guard signaling a stop. In a well-rehearsed voice, Kanter stated: “I object to the question and instruct the witness not to answer any questions concerning COINTELPRO on the grounds that COINTELPRO is irrelevant.”

“Me thinks Kanter doth protest too much,” I said to Flint when Piper’s deposition was over. “He knows Piper’s Racial Matters Squad executed COINTELPRO directives against the Panthers in Chicago. Clearly, they were the ones dealing with black militant organizations.”

“Kanter knows it and we know it,” Flint agreed. “Now let’s figure out how to prove it.”

At a PLO meeting in the summer of 1975, we decided that the office could finance only two lawyers in court, Flint and me. Holly and Peter would have to work on other cases when the trial started.

Civil litigation is expensive. Even then, deposition transcripts could run five hundred dollars per day. The December 4th Committee, which included the survivors and supporters, was holding monthly fundraisers to help defray expenses with performers like Chaka Khan, Oscar Brown Jr., and Dick Gregory. Even with that and contributions from the NAACP and the Lawyers’ Committee for Civil Rights, plus frequent benefits, we were always short of funds. Our black court reporter, Julian Carter, allowed us to postpone part of the payment for deposition transcripts until after the trial. Only his generosity allowed us to continue discovery.

I called my parents to ask for financial help. They agreed to send me three hundred dollars per month during the trial. My parents, and my dad especially, were proud I was using my law degree for something other than to make money. He had derived much of his satisfaction from the legal work he had done pro bono, like working for the Voter Education Project. He was somewhat, though not entirely, put off by the violent Panther rhetoric, but he supported me in my efforts to prove Fred Hampton was murdered. Years later, I discovered Dad kept a file of Hampton newspaper accounts.

Jim Montgomery, the prominent trial attorney who had represented Deborah Johnson after the raid, agreed to represent her at the upcoming trial. He had a deep baritone voice and was a convincing figure in the courtroom. I thought the combination of his trial savvy and our knowledge of the evidence would be a good fit.

We familiarized Montgomery with the federal case we hoped to present, and he agreed to do part of the deposition of Piper’s boss, Marlin Johnson.

On September 24, Montgomery began. Johnson had left the FBI and become the CEO of Canteen Corporation, a vending machine company. Mayor Richard J. Daley had subsequently appointed him chairman of the Chicago Police Board, which decided civilian complaints of police brutality. Johnson’s deposition took place in the posh conference room of the law firm Sidley and Austin, where he had retained his own counsel in addition to Kanter. Johnson shook our hands as though we were old friends and then sat down with a pleasant smile. He was particularly cordial to Montgomery. Johnson, a little past middle-aged, with a round face and a receding hairline, appeared relaxed, clearly experienced in public relations. He began answering our questions earnestly, as if he wanted to be helpful.

Like Piper, he acknowledged receiving the memo, which bore his initials, stating Mitchell had met with Hanrahan’s men and supplied them with weapons information. But Johnson claimed no knowledge of Mitchell obtaining the floor plan of Hampton’s apartment and passing it on to the eventual raiders, despite the fact that Mitchell’s memo stating this was directed specifically to him.

“I have no recollection of that,” was his repeated response to Montgomery’s questions about the floor plan. Marlin Johnson had been specifically ordered by FBI Director Hoover to implement the Counterintelligence Program, as had all the FBI office heads (SACs) throughout the country. Montgomery asked Johnson what he did to implement COINTELPRO in Chicago. Johnson looked to his attorney. Kanter didn’t miss his cue.

“I object to the question and instruct the witness not to answer any questions concerning COINTELPRO on the grounds that COINTELPRO is irrelevant,” Kanter said, repeating his mantra. Montgomery continued patiently but was blocked by Kanter’s objections to every question concerning COINTELPRO. Kanter knew Perry would uphold his objections, no matter how specious, if it blocked us from getting evidence of the FBI’s involvement in the raid.

By the end of Johnson’s deposition I was grinding my teeth and swearing under my breath. Unlike his predecessor, Sheldon Waxman, who had demonstrated some integrity, Kanter unhesitatingly carried out the FBI policy of concealment. By the deposition’s end Flint and I ranted at Kanter that we knew he was covering up, and that one day he would be exposed.

We filed another motion asking Judge Perry to order Piper and Johnson to answer questions about COINTELPRO. Again he denied it. He also denied us access to the thirty-four COINTELPRO documents the FBI had given him in camera (without our viewing them) months earlier. In July 1975 we appealed. Again, the appellate court refused to overrule Perry.

I felt we had hit a stone wall. But not my partner: “There’s more than one way to skin a cat,” Flint said a few days later, walking into my office. “Perry can’t very well deny us access to files specifically about Fred Hampton. Let’s ask for every FBI document naming Hampton, and I bet we’ll get some COINTELPRO memos.”

I agreed, ready to try Flint’s new tactic. We demanded that our subpoena for all the FBI files naming Hampton be enforced. Even Kanter had difficulty objecting.

Perry reluctantly ordered the FBI to produce documents specifically naming Fred Hampton and any of the plaintiffs. A few days later, 193 highly excised internal memos arrived by messenger. Flint and I divided up the new batch of materials in my office. He sat on the other side of my desk while I cleared off some papers. We put our feet up and started reading.

The documents showed the FBI had monitored Fred Hampton on a daily basis and recorded nearly everything he did, from speaking at colleges to serving breakfast to kids.

“The FBI was on Fred like white on rice,” Flint commented, partway through his stack. “Their antennae definitely went up when Fred and Deborah rented the apartment on Monroe.”

My stack of reports showed the same close FBI scrutiny of Fred’s actions. Halfway through my pile I saw a one-page memo from Marlin Johnson to Hoover dated April 8, 1970. It was captioned “Fred A. Hampton (Deceased) et al.—Victims Summary Punishment.” Summary punishment was a way of describing the police meting out their form of street justice on the spot without a trial or due process.

“Check this out,” I said, handing the paper to Flint. “This is another piece in the conspiracy.”

He read it carefully, his eyes focusing intently as they went down the page. When he finished, he looked up excitedly. “I can’t believe they wrote this down.” Marlin Johnson’s memo to Hoover stated:

AAG JERRIS LEONARD, Civil Rights Division, Department of Justice, at Chicago, advised SAC Marlin Johnson in strictest confidence that no indictments of police officers are planned in captioned matter. [emphasis added] The above is based upon an agreement whereby Hanrahan will dismiss the local indictment against Black Panther Party (BPP) members. Hanrahan is to be given 30 days to dismiss this local indictment, which will be based upon the change in testimony of John Sadunas of the Chicago Police Department Crime Lab. Subsequent to this dismissal, BPP victims will then be subpoenaed before the FGJ for their testimony in this case.

“It was fixed!” I exclaimed. “Leonard never intended to indict anyone.” As angry as I was, I was also amazed at how smoothly the feds and Hanrahan had closed ranks to protect each other. The Justice Department had impaneled the 1970 federal grand jury in response to the black community’s outcry to investigate Hanrahan’s raiders for civil rights violations. Attorney General John Mitchell, who we later learned was the White House contact for the Watergate burglars, appointed Jerris Leonard, the head of the Civil Rights Division, to lead the grand jury investigation. At the time, Leonard was reputed to be the liberal in Nixon’s Justice Department. In his press statements he assured everyone that he intended to carry out a thorough and impartial investigation.

The document we were reading was dated a month before the Grand Jury concluded and well before the Panther victims were subpoenaed to testify.

“We always wondered why Hanrahan dropped the charges on the survivors so abruptly,” Flint said. “Now we know. It wasn’t just because they were innocent. It was also part of the deal to prevent his men and him from being indicted.”

The concealment of the FBI role in Fred’s murder was particularly important in 1970. Disclosure of the FBI involvement would have also led to exposing the Counterintelligence Program.

“I don’t think Hoover’s orders for every FBI office to develop plans to ‘neutralize and destroy’ the black movement or his sanctioning of violent means to accomplish this would have washed with the public if they’d known about it back in 1970,” I said.

In fact within a year after the Counterintelligence Program was exposed in 1971, it was terminated, at least in name.

The “deal document,” as we quickly labeled the April 8 memo, exposed the cozy arrangement between Hanrahan and the FBI. The feds wouldn’t indict him or his raiders for civil rights violations, and he would maintain his secrecy concerning the FBI’s role in the raid. Their agreement was made before the survivors were asked to testify; their testimony would have made no difference.

Few pieces of evidence are more damning or harder to come by, when trying to prove a conspiracy, than an explicit agreement by the coconspirators—in this case Hanrahan and the FBI —to conceal their actions. The FBI produced the deal document under a strict protective order, which prevented us from releasing it or even mentioning it in open court.

“Remember what Leonard wrote in the grand jury report,” I reminded Flint. “The Panthers were more interested in police persecution than in obtaining justice. What a fraud. Leonard did a masterful job blaming the victims.”

In August 1975 we added as defendants the FBI informant William O’Neal, his FBI control Roy Mitchell, Mitchell’s boss Robert Piper, and Special Agent in Charge Marlin Johnson. We hoped to add their superiors in D.C., the FBI heads of COINTELPRO, Attorney General Mitchell, Jerris Leonard, and the estate of J. Edgar Hoover, who died in 1971, after we took more depositions pinpointing their roles.

In the late summer I drove out to Maywood to tell Fred’s parents about the new developments. The Hamptons lived in the same two-story brick house where Fred grew up. Every year on December 4, Flint and I, along with Dennis, when he was in town, attended the memorial service for Fred at Reverend McNelty’s church, followed by a big spread at the Hampton home. Almost every black political figure in Chicago had participated in the memorials at one time or another. Fred’s brother Bill had set up the Hampton Scholarship Fund to select and provide support for one black law student every year. Attendees at the memorial service were encouraged to contribute.

When I arrived at the Hampton home, Iberia, wearing an apron over a flowered dress, greeted me at the door with a big hug. She led me straight to the kitchen, saying, “There’s food on the stove.” She knew I had grown up in the South and loved her cooking.

At her kitchen table, I devoured fried chicken, a piece of fried catfish, a large helping of macaroni and cheese, and two helpings of collard greens, my favorite, along with a tall glass of sweetened iced tea. She sat and watched, smiling, commenting that she and Francis had eaten before I got there. I begged to hold off on the peach cobbler, and we adjourned to the living room.

The Hampton living room was packed with several large stuffed chairs and two sofas. I could be comfortable in any of them as long as I didn’t have to get up soon. Iberia and I sat down on her couch and soon were joined by Francis, who came from the back of the house. He gave me a warm smile when he shook my hand, and said he was glad to see me. He looked a bit wearied by the six years since Fred’s death. Still, he had taken good care of himself. He farmed a plot of land in a neighboring suburb a few miles from their home, and went fishing regularly. He and Iberia still drove down to Louisiana at least twice a year. They had not given up their connection to the South and their attraction to its slow, rural lifestyle.

“We’ve added some new people, new defendants to the lawsuit,” I began. “They worked for the FBI and we think they were responsible for setting up the raid.”

Iberia’s expression always changed when we began talking about Fred or his death. She’d look down at the floor and then raise her eyes up sadly, fearful but wanting to hear more. Her hair was grayer than when I had met her, and many more lines were traced in her forehead. A permanent weariness seemed to have set in.

“Fred was more than a target of the Chicago police and Hanrahan,” I told them. “We think his death was instigated by FBI agents carrying out a national program targeting black leaders. FBI Director Hoover ordered those agents to stop—’neutralize’ was the word they used—up and coming leaders like your son.”

Iberia’s expression hardened as I spoke. “I believe it!” she blurted out. “Fred was always out front, always on TV. Sometimes I wished he’d let someone else do the talking.” I had heard her say this before. She resented that her son had paid the ultimate price for saying what he believed while others stood behind him and remained unharmed.

“He spoke too much truth for them to let him live,” Francis added. “He didn’t know how to keep quiet about injustice.” His voice trailed off.

“We think the FBI used Hanrahan’s ambition to get him to carry out its plan,” I said. “He was more than willing.” I paused a moment then continued: “Have you read about what they did to Dr. King?”

“Yeah, I read it. Blackmailed him and then suggested he kill his self,” Iberia answered.

“The FBI targeted the Panthers even more than Dr. King,” I replied. “And Fred was a leader they saw as a particular threat. They watched his every move.”

“How was O’Neal connected to this?” Francis asked. O’Neal’s role as an informant had received wide publicity.

I explained that O’Neal had been instructed by his FBI handler to go to Fred’s apartment and get a floor plan. He did this, marking the location where Fred and Deborah slept, and gave it to the FBI, which passed it on to Hanrahan and the raiders.

“I brought a copy of it if you want to see it.” I had hesitated bringing the floor plan with me but felt Fred’s parents had a right to know. I pointed out the rectangle on which “bed” was written inside the room O’Neal had designated the “room of Hampton and Johnson when they stay here.”

“Lord have mercy!” Iberia declared shaking her head. “They didn’t leave nuthin to chance,” she said. Tears came to her eyes.

Francis remained only slightly more composed. He was studying the details on O’Neal’s sketch. “And that’s where all the policemen’s shots came together, right at the head of Fred’s bed on the diagram,” he said, pointing to the same rectangle in the back bedroom.

“Most of the bullets went in that direction,” I answered. “But we think Fred was actually killed after Deborah was pulled out of the room. He was shot at close range. The direction of the bullets and the location of the bullet wounds in his head prove this.”

Was I being too clinical? This was their son, and I was describing his murder. But they had never shied away from knowing the truth.

“We’ve added O’Neal and the FBI people in Chicago supervising him to our lawsuit,” I continued. “We’d like to include the higher-ups running the Counterintelligence Program in D.C., but so far Perry has blocked us from getting the evidence against them.”

“I don’t like that judge,” Iberia said. “He treats me and Fannie Clark like we’re the criminals. He’s always calling us the defendants as though we’re on trial. He really doesn’t like black people.”

I told her I wished I could disagree, but the situation was even worse than what she knew. As much as Perry defended Hanrahan and the police, he was even more protective of the FBI. “He goes into a rage whenever we suggest that the raid was part of a federal conspiracy. The very idea is an insult to him. He acts as if his duty is to shield the FBI,” I said.

“Are you ever gonna get him to do right?” Iberia asked.

“I doubt it,” I responded. “I wish I could be more optimistic.”

In spite of our difficulties with Judge Perry, Iberia and Francis were pleased when I described our efforts to sue everyone responsible for Fred’s death.

“That’s what we want you to do,” she urged. “Go after them all.” Francis nodded his approval.

I left the Hampton home by way of the kitchen, with a large portion of cobbler in my belly and another on a paper plate to deliver to Flint. When I hugged Iberia good-bye she said, “I love you.” Then she added, “Go after everyone who killed my son.”

“We will,” I answered. “I love you too.”

The lawsuit became more real, more human, each time I saw Iberia and Francis. The visits reminded me that the case wasn’t about documents or legal motions or conflicts with Perry. It was about killing a young man in his bed, about a family who had lost their son and the movement that lost a leader.

In August, as soon as we added the federal defendants to our lawsuit, Judge Perry confirmed the trial date for January 1976. With only four months lead time and a bar on questioning anyone about COINTELPRO, it would be almost impossible to get the evidence we needed to prove that the policy makers in D.C. were responsible for the raid.

That fall Flint and Holly went to Washington to depose Jerris Leonard and the heads of the Counterintelligence Program. By the first week of September, with time for adding new defendants running out, we filed a motion to compel answers to deposition questions, again asking Judge Perry to order the deponents to answer our questions about COINTELPRO.

“He’s gonna hold out forever,” I told Flint, frustrated by how many times we had to argue the obvious.

“He’ll have to,” Flint responded, “because so will we.”

On September 11, Flint and I went to court to argue our motion before Perry. As soon as we arrived, the shriveled old man with his double hearing aids bounded out from chambers, took the bench, and peered down at us. Our presence pumped life into his shrunken frame.

“Hampton v. Hanrahan, et al., 70 C 1384,” Perry’s clerk called out. Flint and I walked to the rostrum six feet below the bench. Kanter stood to our left.

For an hour Flint and I argued the obvious relevance of COINTELPRO to the federal conspiracy. Perry sat above us, unfazed. We pointed out that the Counterintelligence Program itself outlined an FBI conspiracy to destroy the Panthers and neutralize charismatic black leaders, and we should be allowed to discover if its mandates led to the raid.

Kanter answered that nothing in the thirty-four documents turned over to the judge or from COINTELPRO itself “even tangentially dealt with what occurred on December 4 or the question of the raid.” Judge Perry nodded approvingly.

“Let us see the documents and we’ll show you how they are relevant,” Flint and I responded.

Judge Perry said he’d heard enough. “I’ll rule next week,” he announced. Flint and I grabbed our papers and hurried out of the courtroom, shaking our heads in disgust.

A week later, Judge Perry issued his written order: “I have still found that none of these documents that have been submitted to me show any testimony relevant to this case … no questions [about COINTELPRO] to the deponents shall be asked.”

We were out of patience and just about out of time.