Two Bad Decisions

By the fall of 1971, our civil suit against Hanrahan was over a year old but still barely moving along. Hanrahan’s lawyers, Coghlan and Volini, had now moved to stay discovery until the completion of Hanrahan’s criminal case. Judge Perry’s resulting order barred us from both written discovery and taking the oral depositions of the defendants. Judge Perry was angered by our straightforward accusations against Hanrahan and the raiders, labeling our claims that they conspired to murder Fred Hampton “outrageous.” He seemed more intent on denouncing our allegations of murder than in determining their truthfulness.

When we filed the civil suit, I didn’t understand how important the politics and demeanor of a federal judge could be in determining the outcome. Had we known how much of an adversary Perry would become, we may not have continued in federal court at all. The federal suit could have been voluntarily dismissed and filed in state court but without the constitutional claims. In later years we would sometimes take this route when assigned a judge as hostile to civil rights cases as Perry.

Perry focused on the defendants’ lengthy motions to dismiss as well as their accompanying briefs. Fortunately, Bill Bender and Jon Hyman, the head of Northwestern’s legal clinic in Chicago, helped us research and draft opposing memos and briefs. PLO had limited time and resources to counter the myriad pretrial motions filed by the well-paid defendants’ lawyers, all designed to defeat or slow down the litigation. At that time we also had little knowledge of federal civil rights laws. Coghlan and Volini challenged and moved to strike each paragraph of our complaint, even though civil rights pleadings are supposed to be construed broadly, which means you don’t have to describe every factual allegation in detail. Judge Perry took all their motions seriously, no matter how baseless.

The defendants’ lawyers also pushed the very substantial legal issue that, as the state’s attorney, Hanrahan was immune from prosecution and thus could not be sued. The law was clear that prosecutors had total immunity from civil liability for decisions they made prosecuting criminal cases, even including situations in which they intentionally directed their witnesses to commit perjury. Our response was that Hanrahan was acting not as a prosecutor but as a law enforcement official supervising the state’s attorney’s police. It was his function, not his title, that should determine whether he had immunity. There was no clear legal precedent on the issue.

Coghlan and Volini made huge sums of money billing for hundreds, and ultimately thousands, of hours defending Hanrahan and company. Coghlan took perverse pleasure in filling out his time sheets while sitting in court at the counsel table next to Flint and me. If the judge hadn’t arrived in the courtroom, Coghlan would whistle as he completed each form. He knew Flint and I were being paid little. He and Volini made in an hour what we earned in a week.

On February 3, 1972, Judge Perry ruled. He dismissed Hanrahan and Jalovec and the other assistant state’s attorneys, saying they were entitled to full immunity. “Obviously he cared more about their title than what they did,” Flint said to me at PLO.

I was even more cynical: “I think if Hanrahan ordered Groth to kill Fred and gave him the gun, Perry would find him immune.”

Perry also dismissed the defendants from the crime lab and Internal Investigations Division and threw out our entire complaint, saying our allegations were scandalous and our language was improper. “What they did was abhorrent, not our naming it,” I continued.

“He did say he might allow a new complaint, if we used the proper wording. How do you say murder in a nice way?” Flint asked.

“We’ll appeal his ass,” Dennis said.

I was outraged by the rulings of this capricious, conniving judge. Our only option was to appeal Judge Perry’s dismissals to the Seventh Circuit. This would take six to eighteen months. Bill Bender and Tom Geraghty, head of the Northwestern Legal Clinic, agreed to take the major role in writing the appellate brief. Meanwhile, Hanrahan and the other defendants in our civil suit were set for trial on their criminal charges of obstructing justice.

On July 10, 1972, the long-awaited criminal trial of Hanrahan and company for conspiracy to obstruct justice began before Judge Romiti. Hanrahan’s lawyers could have delayed the trial past July, but Hanrahan was running for reelection as Cook County state’s attorney in November. He wanted to be acquitted before the election. I was still skeptical that Sears and Cedarquist were a match for Hanrahan’s lawyers, nevertheless we supported them and continued to allow them access to our Panther raid files. These were being kept in Tom Geraghty’s office in the legal clinic at Northwestern Law School, because Geraghty and his students were working on the civil appeal.

On a warm Saturday afternoon, two weeks after Hanrahan’s trial started, Flint called me in Wisconsin, where I had gone for the weekend. “Jeff, listen,” he said frantically. “Cedarquist found a signed statement from Louis Truelock in our files. Truelock claimed to have fired two shots at the police from a pump rifle as he ran down the hall to wake up Fred. Cedarquist wants permission to copy it. He’s threatening to get an order requiring us to produce it. What do we do?”

I vaguely remembered there were survivors’ statements taken, but I never saw them or knew their contents and had forgotten they existed until Flint’s call. Truelock’s statement was totally different from what he’d told me four hours after the raid. If Truelock had fired a rifle anywhere on his path from the living room to the back bedroom, there would have been shell casings, bullet fragments, and resulting bullet holes at the rear of the apartment or in the hallway. None of these were ever found, nor was a pump rifle found.

“Truelock must have lied in the statement because he wanted to take suspicion off himself. Everyone was calling him an informant then,” I said to Flint. Regardless of discrediting the accuracy of the statement, I knew its discovery was huge. Cedarquist was acting as the prosecutor, and the criminal rules required it be turned over to Hanrahan.

“We don’t want to be the ones hiding evidence,” I finally responded. “But I think Skip took the statement and knows more about it. You should call him.”

“Will do,” he said. Flint hung up.

Skip had been gone from PLO for over a year. He didn’t want to be accused of withholding evidence. Without consulting Truelock or the other survivors, he agreed to allow Cedarquist to copy the survivors’ statements in our files and turn them over to the defense.

We should have asked Truelock, not Skip. We lost sight of the simple legal principle that the attorney-client privilege belongs to the client, not the lawyer. Even if we had inadvertently disclosed the statement to Cedarquist, it was for Truelock to decide whether the statement should be released beyond that. Instead of upholding our client’s privilege and refusing Cedarquist’s request, Flint and I hesitated and let Skip decide. It was a big mistake. When Jim Montgomery, who had been representing Deborah Johnson, refused to turn over her statement, Judge Romiti upheld his position.

Hanrahan’s lawyers were given Truelock’s statement and it was big news. The criminal trial was suspended; suddenly we were the ones who had to answer questions. Skip and Donald Stang, who had witnessed Truelock’s statement, and Flint were subpoenaed to a hearing on how, why, and where the statement was taken and whether Truelock had, in fact, said what was contained in it. Skip could only say he presumed Truelock did make the statement because it was written down and signed on every page by Truelock. He couldn’t remember Truelock’s words and of course he couldn’t say whether Truelock was telling the truth. Flint testified that he did not know the contents of the statement, which was true, and that he was as surprised as I was about Truelock’s claims. Don Stang refused to testify.

The defense knew that Truelock could explain away the statement’s contents as boasting to make himself look less culpable for Fred’s death and to take suspicion off himself as a possible informant. So they focused on the “hiding” of the statement by Skip and Sears, rather than relying on its contents, which were in conflict with the physical evidence.

When the trial resumed, Hanrahan’s lawyers had everyone’s statement except Deborah Johnson’s. Sullivan and Coghlan accused Sears of the “deliberate and dishonest cover-up” of the statements, although only Truelock’s asserted that its author ever fired.

The overall defense strategy was to downplay evidence of what actually happened. Instead, they contrasted the Panthers, whom they portrayed as dangerous, malevolent black revolutionaries, with their clients, whom they characterized as the zealous, brave, unheralded protectors of our safety. It was a strategy likely to succeed because Sears, their opponent, never challenged and probably believed it.

I was excluded from the trial because, like other PLO lawyers, I was a potential witness. Unfortunately, the accounts we read in the newspapers and from those who attended the trial made it painfully clear that Sears was losing.

Michael Arlen, a well-known essayist and journalist, came to Chicago to observe and record Hanrahan’s trial. The next year he published An American Verdict, an impressionist view of what he saw in court, a montage set against Chicago’s political landscape.

Arlen wrote about how Harahan’s attorneys portrayed the two sides: “One [myth] was the racist objectification of the Panthers as threats to everything civil, and the other was the bravery of the police when forced to carry out their ultra-dangerous duties.”

In contrast, Arlen wrote: “The prosecutors only had the physical evidence drily presented and no sustaining myth.” Sears had the facts but no clear theory of why it happened, and Arlen points out that the white, aged, formal Chief Special Prosecutor Sears was not about to embrace the Panthers.

Every trial lawyer learns that a case is a combination of the evidence and the theory that ties it together. Without a myth or theory, Sears’s presentation carried no punch.

During the last week of October 1972, the prosecution rested its case. There would be no time for a defense if the trial were to end before the elections. The defendants filed motions for acquittal, arguing the state had failed to prove them guilty. Judge Romiti scheduled the oral arguments on the motions to begin on October 26.

Arlen gave detailed accounts of the lawyers’ closing arguments:

The defense argument begins with Thomas Sullivan, dressed in a serious suit, who … proceeds to bring up once more the Panthers’ predilection for violence, their antisocial habits, and their dishonesty as indicated by the changed testimony—a revelation, as he now construes it, that had been extracted from an unwilling and probably dishonest prosecution by the aggressive, truth-seeking tactics of the defense.

But it was likely Coghlan who stole the show in that courtroom packed with prosecutors, police, and Democratic Party loyalists. From court transcripts, Coghlan’s closing words:

You know, we all understand—as men and policemen—that it’s open season these days on policemen, and they know it from the day they put on the star…. There’s only one way that I know of for a copper to prove that he’s on the square and that is to die….
    There’s a funny thing about being a policeman. A policeman has the same fears for his life that any of the rest of us have. But he has one more thing that only a policeman understands, and that is: if he goes yellow on his partners, he is through on the job. He never gets another partner…. I’ll tell you right now we wouldn’t be here today if Officer Davis had taken a shotgun deer slug through the belly as he went through that door…. When Joe Gorman followed him with his machine gun, he didn’t know what he was going to find in there. There was action, there was shooting, there was darkness. But Joe Gorman knows that if he doesn’t go through that door, he is through as a policeman. He’ll never be able to hold up his head again. And he’d sooner die. If Duke Davis hadn’t been bent over with that alley-wise cunning that comes from twenty years on the force, part of him would have been up there on the stairway. He’d have proved then he was an honorable man. In this town, about the only way a copper can prove he’s an honorable man is by dying.

A masterful argument from the cop’s perspective. Of course it had nothing to do with the facts.

Hanrahan spoke for himself, something not normally allowed a defendant with three attorneys. Hanrahan spoke, not only to the judge but to the electorate:

We have listened to the philosophy of the Black Panther Party describing the mandate that every member of the organization have a gun, be able to use it, and know how to defend his pad. We listened this morning to Mr. Sullivan recall the testimony of Deborah Johnson when she related the poem by Fred Hampton—that revolting poem—expressing satisfaction from killing a police officer. And when I listened to that evidence, and I think about Duke Davis and these other officers—well, I believe that the people of Cook County owe a medal to every one of these officers who had the integrity to go into that apartment under fire to seize those weapons, which, if the Black Panther philosophy had been allowed to continue in force, would have undoubtedly been used to kill other people.
    In fact this is an outlandish case—and how easy it is to make these false allegations, and how difficult to disprove the falsity—that is so easily leveled at men who have no defense except that they come here to trial, or else die.
    Thank God Duke Davis did use his twenty-four years of police know-how to come in low. Thank God Joe Gorman did have the guts to follow him. And thank God for men like Ed Carmody.

Hanrahan went on to equate criticisms of the raiders’ actions with a criticism of law enforcement in general, referring to the accusations of misconduct in the press as, “These irresponsible statements that undermined public confidence in law enforcement.”

Unrepentant to the end, in fact congratulatory of the raiders’ actions, Hanrahan remained indignant that anyone had the temerity to accuse him of wrongdoing. Arlen writes:

Sears rose to answer. “Your Honor, I suppose the next thing I will hear from the defense is that I have some communion with the Panthers.” This communion or connection was the last thing Sears wanted to be tainted with, so he went on to establish his credentials: born and bred in North Dakota. Sears was anxious to show he was from the same white, male, professional, law-abiding world as were the defendants and their lawyers and the Judge.

On the morning of Wednesday, November 1, as Romiti was scheduled to announce his verdict, Donald Stang and I were about to start a murder trial one floor below Romiti’s courtroom. I had seen the camera crew poised in the lobby when I arrived. By eleven o’clock, reporters, cops, and state’s attorneys were heading for Romiti’s courtroom to hear the ruling.

I was still sitting on the wooden bench in the front row waiting for my trial to begin when I heard a commotion in the hallway outside. I walked to the rear of the courtroom, opened one of the large paneled doors, and looked out. The stairways in the middle of the floor were filled with people heading down toward the lobby.

“What happened?” I asked.

“Not guilty! Everybody!” someone descending the stairs yelled. I ducked back into my courtroom. I didn’t want to see the smiling faces of Hanrahan, the raiders, or their supporters.

Was this it? I wondered. Three years after the raid, no federal prosecution, not guilty on the state prosecution, and our civil case dismissed. Would Hanrahan ever have to pay?

I walked over and told Don what I just learned.

“They got away with it,” he said.

The newspapers later reported that Romiti said he had to vote his conscience and not respond to pressure, comments that must have momentarily given Sears and his team some hope. But Romiti had quickly followed with, “This court can only conclude and does conclude that evidence is not sufficient to establish or prove any conspiracy against any defendant. A judgment of acquittal is entered as to each defendant and each defendant is discharged.”

Six days later blacks in Chicago delivered their verdict. They voted for Democrat George McGovern for president, Democrat Daniel Walker for governor, and regular machine candidates for judge and lower county offices. But they didn’t vote for Hanrahan: Bernard Carey became the first Republican state’s attorney in Cook County in recent history.