A Victory

Atlanta in April is as beautiful as any city in the world. The white dogwoods, the multicolored azaleas, the pink flowering quince all come to life everywhere, particularly in the Chastain Park area where my parents live. It was still chilly and gray in Chicago when Maggie and I came to my parents’ house for a visit in 1979 with one- and-a-half-year-old Roger and Maggie six months pregnant. My dad watched incredulously as Roger donned a hat and cane and did an amazingly graceful version of a tap shoe routine he’d learned to mimic before he learned to talk.

On the Monday afternoon of a particularly gorgeous day, Maggie and I were visiting friends of hers who lived outside Atlanta. We were in the kitchen of their home when the phone rang. “It’s for you,” Maggie’s friend said. I had left the number where we would be with my mom. I took the phone and walked out onto the steps outside.

“Jeff, we won,” I heard Flint say. “The decision came down today.”

“What, are you kidding?” I asked, knowing he wasn’t.

“No, it’s real and it’s amazing. We won on everything. A new trial against all the defendants, sanctions against the feds, Groth has to name his informant, and even our contempts were reversed.”

“And—,” I started to ask.

“Yes, they got rid of Perry and even awarded us interim fees. It’s incredible, from the little I’ve read so far. Swygert wrote the opinion and adopted our uncompromising view of the case and analysis of the evidence.”

I was elated.

Flint added that Pell had written a vicious dissenting opinion attacking us, and he expected that the defendants would seek a rehearing from the entire Seventh Circuit. A chilling thought, too demoralizing to contemplate at that moment.

“I only wish I was at PLO to celebrate,” I ended. “Congratulate Dennis, Chick, Jon, and Peter for me,” I said. “They made it possible. And of course you, Flint, you’ve been the best.” I was crying. “You weren’t bad yourself,” Flint said. We laughed. Maggie had heard my excitement and came outside. “We did it,” I said. “We won everything.”

She was so happy tears came, and we hugged. She’d been through a lot. I had hardly relaxed since the trial. “Call your parents,” Maggie said. “No, let’s surprise them when Dad gets home.”

That night I told them to sit down. When they did I said, “Guess what? Mom, that call you forwarded was from Flint. We won!”

I have never seen my dad happier. His smile and hug made me feel it was OK I didn’t get into Harvard. I’d still done well practicing law. Mom wanted to know the details, so I told her all I knew.

The next day the opinion arrived. Flint had included some press clippings. I took the whole packet into my dad’s study, sat down in his comfortable black reclining chair with the matching ottoman, and read. “New Panther Trial Granted, Survivors Get Another Chance at Hanrahan,” the Chicago Defender headlines declared over the photo of Fred’s bloodstained bed. The Tribune and Sun-Times had similar headlines.

I began reading Judge Swygert’s opinion. After a few pages of his opinion, it was clear he understood the implications of our evidence and grasped how the conspiracy worked. He understood the significance of Mitchell’s placing the floor plan in the one file where it could be destroyed; Jalovec’s acknowledging to Mitchell that his information was the source for the raid; and the manner in which the federal grand jury was used to cover up the FBI’s role.

Judge Swygert rejected the defendants’ arguments that the FBI defendants and the raiders couldn’t be in a conspiracy because they didn’t know each other. He wrote:

The participants in the conspiracy must share the general conspiratorial objective, but they need not know all the details of the plan designed to achieve the objective or possess the same motives for desiring the intended conspiratorial result…. Plaintiffs did offer sufficient evidence to warrant a jury determination of whether a conspiracy existed.

We had always alleged a single conspiracy including both the execution of the raid and the cover-up. Swygert said we could show two conspiracies—

the first conspiracy was designed to subvert and eliminate the Black Panther Party and its members … the second conspiracy harassed the survivors of the raid. Moreover, the postraid conspiracy was intended to frustrate any redress the plaintiffs might seek and more important to conceal the true character of the preraid and raid activities of the defendants involved in the first conspiracy.

Swygert directed, “the trial court upon remand should provide jury instructions that will insure the jury is aware of the alternatives of finding single or multiple conspiracies in the evidence presented by plaintiffs.” Swygert intended for a jury, not the next trial judge, to decide the case.

Judge Swygert rejected Hanrahan’s claims of absolute immunity, stating it did not apply when he was supervising police officers or holding press conferences prejudicing defendants’ rights to a fair trial. Neither did the FBI defendants have immunity from the Civil Rights Act when they acted in conspiracy with each other and with local officials to violate established constitutional rights.

The court ruled that we had made a case under Section 1985 of the Civil Rights Act, “Conspiracies involving racial or discriminatory intent.” Swygert commented, “The statute was intended, perhaps more than anything else, to provide redress for victims of conspiracies impelled by a commingling of racial and political motives. And this is precisely the sort of conspiracy alleged by plaintiffs in this case.”

Judge Swygert’s pronouncements on the nature and scope of conspiracies to violate civil rights remain a primer of civil rights and conspiracy law today. So do his findings that state actors who fail to intervene to protect the civil rights of citizens are also liable. Thus, the nonshooters who witnessed the Panther beatings after the raid but did nothing to intervene could be held liable.

In addition to reinstating our case and ordering a new trial, Swygert made three other rulings that greatly improved our posture in the lawsuit.

First, he rejected Groth’s claim of an absolute informant privilege. “A considerable amount of evidence was introduced leading to the conclusion that either Groth did not have an informant and merely repeated the information he had received from Jalovec in the affidavit for the warrant, or that O’Neal was Groth’s informant.” Swygert acknowledged that if Groth’s informant did not exist, the warrant would be invalid, supported only by “misrepresented triple hearsay, and this would further bolster plaintiffs’ conspiracy claims” and “highlight the importance of the federal defendants in the alleged conspiracy.”

Amen, he’s got it right there.

Next Swygert took on the issue of the FBI defendants’ violations of pretrial discovery: “Moreover, sanctions should be imposed against the federal defendants and counsel representing them at the first trial for repeatedly disobeying court orders to produce documentary material.”

This was too good to be true. I’d love to see Kanter’s and Christenbury’s faces when they read this. I had to call Flint.

“I just read the part about sanctions. What do you think this means?” I asked.

“Dennis and I have been talking about that,” he said. “It’s interesting that Swygert cared more about enforcing Perry’s discovery orders than Perry ever did. We think we should get the next trial judge to consider entering judgment against the FBI defendants and fining their lawyers. If not, the next jury should be told the FBI hid evidence, and they may consider that as evidence of guilt.”

“They all sound good to me,” I replied. “And well deserved.”

“Have you gotten to our contempts yet?” Flint asked.

“Coming up,” I replied. “I can’t wait.” I hung up and kept reading.

Swygert described the circumstances that led to Flint’s contempt, including Perry’s erroneous accusation that I had “deliberately and willfully misread the stipulation,” his refusal to provide us with a transcript, and his refusal “to correct the record immediately.” He continued with, “These combined circumstances apparently caused Taylor to reach the breaking point of his patience and forbearance.” Swygert noted that the incident occurred while the jury was in recess. “While we do not intend to condone Taylor’s gesture of anger, we are convinced … there was no interference with the conduct of the trial. There was no obstruction in the administration of justice.”

One down. Let’s see what he says about me.

Haas was held in contempt for saying “we can’t cover up the cover-up.” After saying this, he tried to explain: “that is part of our complaint that they covered up, Judge.” The judge, however, took the remark as personally directed at him. In the context of what happened before, the judge, in our opinion, had no reason to interpret the remark in that manner; and should have given Haas the benefit of every doubt.

Thank you, Judge Swygert.

He went on to cite with approval the principle stated in the Seventh Circuit’s reversal of Kunstler and Weinglass’s contempts in the Conspiracy Seven trial:

Attorneys have a right to be persistent, vociferous, contentious, and imposing, even to the point of appearing obnoxious, when acting on their client’s behalf. An attorney may, with impunity, take full advantage of the range of conduct that our adversary system allows. Accordingly, we find the contempt citations are unwarranted when considered in their factual setting.

Vindicated again. A long time comin’, but it sure felt good.

Swygert also awarded us interim attorneys’ fees for winning the appeal and declared that the case should be reassigned to a new trial judge, who should give the “retrial high priority.” “Perry’s history!” I exclaimed.

“It won’t be nearly as good theater next time,” Maggie said, with a whimsical smile, “but your chances of surviving are much better.”

Swygert’s opinion in Hampton v. Hanrahan (cited at 600 F. 2d 600) remains among the most famous civil rights decisions ever rendered. Pell’s vituperative dissent conceding he had not read the entire record was a sharp criticism on Swygert and an outright attack on PLO and the Panthers. It reminded me of how easily the opinion could have gone the other way. Nevertheless, it was time to celebrate, and the day I got back to Chicago we partied well into the night wearing freshly lettered T-shirts proclaiming, RIGHT ON, LUTHER! compliments of Chick Hoffman.