We still represented Fannie Clark, as well as Doc Satchel, Harold Bell, Blair Anderson, and Louis Truelock. We didn’t have a lot of time to bemoan the division of plaintiffs. We had to file the notice of appeal and draft the motion to convince the Seventh Circuit to overturn Perry’s requirement of an appeal bond, and time was running out.
Dennis and Chick helped Flint and me research and draft the motion. We argued our clients’ indigence; the importance of being permitted an appeal; the political, legal, and public significance of the case; and the strength of the evidence—enough to cause the jury to be divided even after a one-sided trial. Perry’s appeal bond was a vengeful effort to prevent us from exposing and reversing his unjust rulings.
Although Montgomery’s time for challenging the appeal bond had expired, he filed nothing for the other plaintiffs. We had warned him of the deadline. I feared that his plaintiffs, including Iberia, would have to post the appeal bond or, more likely, forfeit their right of appeal when they could not raise the bond. Obtaining and even winning a new trial without Iberia, not to mention Deborah, Verlina, and Brenda, would be sad indeed.
A few days later, the appellate court struck down the appeal bond. Fortunately, they didn’t restrict their order to our plaintiffs. We were free to challenge on appeal all of Perry’s dismissal orders, his contempt citations, and his vindictive awarding of costs. We were back in business, or at least in court.
Writing an appeal from a thirty-five-thousand-page transcript, which we did not yet have, seemed an overwhelming task. The brief required a statement of facts with each factual assertion backed up by a citation to the trial transcript. This was followed by legal arguments, supported by facts and the law. Sorting and prioritizing the issues was a huge task. Most important was demonstrating that we had enough evidence to warrant at least a jury’s verdict on all our claims, including conspiracy.
Our first objective was getting a copy of the trial transcript that the other side had received every day during the trial. We filed a petition to proceed in forma pauperis (as poor persons) before Judge Perry. He quickly denied the motion, gratuitously stating that the appeal was “frivolous” and “without merit.” We then went to Claude Youker, Perry’s court reporter. He agreed to provide us copies of the trial transcript to be paid for when and if we got the money. Then Perry did us a favor, unwittingly of course. He wrote a twenty-five-page “Summary of the Facts,” which he sent the parties with an accompanying letter. “Because of the complexity of this case and the extensive documentation involved,” he wrote, “I am of the opinion that copies of the summary may help the attorneys for all parties in organizing the appeal.”
Perry’s summary was nothing more that the defendants version of the evidence. He wrote that the purpose of COINTELPRO was to prevent violence and accepted as fact that Groth obtained his information from his own reliable informant. Thank you, Judge Perry, I thought. His summary proved he had considered the evidence in the light most favorable to the defendants, the opposite of what the correct legal standard required.
As soon as the trial transcript arrived, Flint, Dennis, and I began working with Chick and other PLO members to write the brief. Flint spent whole days at Lake Michigan reading and outlining the transcript and writing up the facts, while I reviewed and corrected the emerging statements of fact. We received some legal and financial support from the NAACP and their counsel, Jim Myerson, in New York. The National Council of Churches raised money for transcript costs. Given the publicity of the trial, Flint and I had plenty of calls for representation, but we only had time to take a few cases. When I wasn’t writing the facts for our brief, I was defending paying clients in criminal court to support the office. Flint was becoming an expert on civil rights law, interpreting new decisions for civil rights’ attorneys.
In the fall of 1977, PLO moved. Our old building was torn down, and our new offices on the sixteenth floor of the Fisher Building were even closer to the federal courts, where we were beginning to take on more civil rights cases. Maggie and I still lived in her apartment on Roscoe Street, and our relationship coalesced around our new son, Roger, and the excitement of raising him.
That fall was a blur of reading transcripts, gleaning salient facts, writing them down coherently, and carefully citing each fact to the relevant page of the transcript. For three months I wrote in longhand, as did Flint. Linda Turner typed up our drafts. Her willingness to stay up all night as we made corrections and she retyped each draft made it possible to meet our deadlines. Dennis and Chick did much of the editing and rewriting, and others helped with the legal argument.
The brief ended up 274 pages long with 100 pages of appendices. Dennis supplied the adjectives, and Fred’s inspiration had a hand in writing it. We began the section entitled “The Massive Prejudice of the Court Below” with Perry’s declaration from page 33,365 of the transcript about a fair trial: “You bet your life you are not going to get it.”
Our brief was an indictment of government wrongdoing and cover-up. It is at least as applicable today as when it was written. We gathered the injustices we’d seen, the realizations that came from trying to expose them, and our eight years of frustrations into its final passages.
[Perry] conducted a trial, which was an agonizing reenactment of the raid, and cover-up—a counterintelligence action in which the Defendants again cooperated to neutralize and disrupt the Plaintiffs and their lawyers in the Courtroom by discrediting them to the jury, whom they constantly sought to misdirect. The Federal Defendants again stayed in the background, hiding their involvement while encouraging the State Defendants and their counsel to do the dirty work. In their corner was the trial Judge who unfailingly supported their cause because he was committed to its triumph.
This Court must see to it that the conspiracy proceeds no further, as well as holding those shown to be responsible accountable. Plaintiffs have sought to prosecute this case for eight years in the public interest as well as their own. FBI racial counterintelligence was a star-spangled blueprint for genocide, and still is if allowed to exist, and if those who operate it are still allowed to do so. They still have the mission of neutralization against their perceived political opponents, and they still demand immunity for their operations. They still purport to be protecting the country; and they still do not accept the Bill of Rights.
For all this, the undersigned demand detailed and determined redress, to be ordered and guaranteed by this Honorable Court through the full and timely exercise of its judicial responsibility, upon the authority of the truth and the People of the United States, until full justice is finally done.
All Power to the People.
Montgomery filed a short brief adopting some of our research and arguments. He focused on getting a new trial against the shooters. He didn’t join in our accusations of Perry’s prejudice.
In their answer filed sixty days later, The FBI defendants claimed that they were immune from liability because they were acting within the scope of their official duties as FBI employees carrying out the Counterintelligence Program. This was an ironic twist given their years of denial that COINTELPRO was relevant. Taken to its logical extension, this defense would allow FBI agents to destroy and neutralize the Panthers, or any other political organization, by violent means. They asked for carte blanche to commit murder and violate the Constitution with impunity. It is the “good German” defense of “just doing my duty” that was rejected at the Nuremberg trials. It is similar to the immunity being claimed today for those who ordered and implemented torture at Abu Ghraib and Guantánamo Bay detention centers based on their carrying out the government-mandated torture policy.
Our reply brief warned that the urge to grant immunity to all government wrongdoing was a fascist impulse: “The court must reject these ‘I was only following orders’ assertions out of hand. To do otherwise would sanction a program of official lawlessness of a magnitude never before contemplated and a viciousness never before seen.”
The state defendants’ answer contained an egregious attempt to protect Groth from having to name his purported informant. They argued that disclosure would be “a disastrous blow to law enforcement … and dry up police sources.” In our reply brief, we countered, “The defendants’ contention that the anonymity of the informant must be protected at all costs is really nothing more than an attempt to shield themselves from liability.”
Finally, all the defendants strongly objected to the sanctions we asked the court to impose and the interim fees we sought. Our reply brief answered their objections:
Unless this Court exercises its statutory and equitable powers and provides Plaintiffs with the resources with which to continue the battle, the Defendants’ economic war of attrition against the Plaintiffs will continue and the dollar bill will prove more powerful than the Bill of Rights.
Janis Joplin sang, “Freedom’s just another word for nothing left to lose.” When we wrote the reply brief, we had lost everything but the freedom to speak the truth. We argued that the defendants were broadly inviting the court to join in the conspiracy to cover up their crimes. And on our eighty-fourth page, we concluded:
This Court must fully accept the reality that a mere acknowledgment of the wrongdoing which has taken place is not enough; decisive, comprehensive action is required to prevent the ultimate success of the conspiracy. It cannot be left to these indigent Plaintiffs and exhausted lawyers to return to the beginning, and face the richly financed resistance of three governments, still bent on suppressing the truth.
The Plaintiffs must be armed on remand with all of the evidence, and with enough money to carry through; and it must be made clear to the District Court that the law, the rules, and the truth will be upheld.
On August 18, 1978, Flint, Dennis, and I rode the elevator to the top floor of the Dirksen Federal Building to argue the appeal. We had been practicing our argument for days in front of Chick and Jon Moore, who had recently joined the office and had worked on the reply brief. We signed in as three of the appellants’ attorneys. Montgomery’s signature was already there as the fourth. Thomas Fairchild, Luther Swygert, and Wilbur Pell were the names of the judges listed to hear each of the three cases.
“We’re two out of three,” Flint said excitedly when we found a small briefing room and sat down at the table. We had researched the judges. We had a good draw.
We couldn’t have done better than Judge Swygert. He was regarded as the most liberal judge on the circuit. Thomas Fairchild, the chief judge, was more in the center but was solid on the Civil Rights Act and the Constitution. He was part of the panel that reversed Perry in 1973 after Perry had dismissed our case the first time. The third judge, Wilbur Pell, was an archconservative who belittled civil rights claims. We had little chance with him, but we hoped he would not have much influence on the other two.
“We have a shot with this bunch,” Dennis said. I was relieved. I couldn’t imagine arguing before a panel of three judges like Perry, if indeed three of his kind even existed. It was my first appellate argument and I was nervous as hell.
At 9:00 A.M. we entered the large, heavily carpeted courtroom. There was a table for counsel on each side, and in front was the podium with a microphone, well below the bench where the three judges sat. We put our papers on the appellant’s table on the right, next to Jim Montgomery. The rows of benches for the spectators behind us were full, with the front rows reserved for the plaintiffs, defendants, and the press. My mother had again come up from Atlanta, and she was sitting behind Iberia.
Some of the familiar tension returned as we faced Coghlan and Volini for the first time in more than a year. Next to them were Touhy, Witkowski, and Harland Leathers, a Justice Department attorney who argued for the FBI. Jon Moore and Chick Hoffman had brought Zimmers’s scale model into the courtroom at 8:45 A.M. and placed it below the bench.
We all stood as the three judges walked in from the left and assumed their places in their high-backed leather chairs. Chief Judge Fairchild was in the middle and stated the rules: Ninety minutes for each side; the clerk would turn on the white light on the podium when there was a minute left, and the red light would come on when time was up. Time would be strictly enforced. The lawyers did not have to repeat the evidence because the judges had read our briefs, but both sides were free to emphasize specific facts they felt were important.
Montgomery spoke slowly and dramatically, with pauses after each salient fact. He walked over and pointed to the rooms in the scale model to show the judges where each event had occurred. He described Fred “being shot in his bed as he lay drugged and asleep,” and the two fatal shots “coming from the doorway of his bedroom,” while pointing to these locations. The large appellate courtroom reverberated with his deep, rich voice as he highlighted Brenda’s testimony. She had seen “Mark Clark fall toward the floor after a shot from Davis, and she saw the flash of Mark’s gun as he was falling.” Montgomery emphasized that after the police had shot Brenda and Mark and secured the living room, they had total control of the apartment and should have stopped firing.
I spoke next, afraid that I’d be asked about a case whose facts I couldn’t remember. I always had a tough time connecting the facts of a case with its title. I described the specific actions of each FBI defendant and explained how they fit together to set up the deadly raid. The acts themselves were sufficient for a jury to find them part of the conspiracy. When we added that they were operating pursuant to COINTELPRO mandates to destroy, disrupt, and cripple the Panthers and neutralize their leadership, the evidence was overwhelming.
As Flint walked up to face the judges, he picked up the silver pitcher resting on the podium and poured water into a glass. He looked up but kept pouring as the glass overflowed, spilling water on Flint and the carpet. Recalling the earlier contempt order surrounding the water pitcher in the trial court, Judge Fairchild interjected, “I knew we shouldn’t have an open pitcher here.” Everyone laughed, including Flint. For a brief moment the charged atmosphere was broken.
Flint continued and focused on the cover-up as evidence of the defendants’ guilt. He emphasized the contrast between the federal grand jury, where Johnson, Piper, and Mitchell never mentioned the FBI role, and the bonus documents where they claimed credit for the raid and its “success.” When we finished our arguments, the judges had asked us very few questions.
John Touhy had a much harder time. After a long, boring recitation having to do with the peripheral defendants, the judges became impatient and questioned him about the discrepancies between the physical evidence and the raiders’ testimony. He wasted a lot of time explaining that Volini would answer their questions. His cocounsel finally passed him a note telling him to sit down.
When Volini started, little time was left. He repeated the raiders’ version of the opening event; Brenda fired her shotgun at the incoming police. Judge Fairchild confronted him with Brenda Harris’s testimony denying this. Volini tried to discredit her, but Fairchild kept asking, “Isn’t the credibility of the witnesses for the jury to decide?” Every time Volini repeated the raiders’ testimony, Fairchild and Swygert confronted him with the conflicting accounts and physical evidence.
Volini became more and more frustrated and finally blurted out, “Who are we fooling here?” We’re “nitpicking,” he said, referring to the judges’ questions. He regressed to his trial litany of how dangerous the Panthers were and how many unregistered guns they possessed.
Judge Swygert stopped him. “Are you saying the Panthers have no constitutional rights?”
Volini paused and tried to backtrack. “No, Your Honor, I wouldn’t suggest that.”
Swygert confronted Volini with Hanrahan’s statement that Hampton had fired at the police from the back bedroom. Volini was forced to admit that no one had told Hanrahan this.
After Volini, Witkowski defended Groth’s refusal to name his informant. He argued that we had failed to provide enough evidence showing his nonexistence to make Groth release the name. This seemed absurd; everyone knew proving a negative is almost impossible, particularly when the person with knowledge is shielded from questioning. Fairchild forced Witkowski to agree that if the informant did not exist, this would undermine the entire basis for the raid. Fairchild asked him, what was the reason Groth had withheld the name? Witkowski hesitated then replied, “Danger to the informant.” He didn’t dare argue the nonexistent “danger to other persons” privilege that Coghlan had concocted for Perry.
Justice Department attorney Harland Leathers started by saying the FBI defendants were immune because they were carrying out national policy and acting pursuant to their duties. The “acting under orders” defense. Swygert asked, “Are you saying that they could act illegally and still be immune? Would they have immunity if they gave Hanrahan a gun and told him to shoot Fred Hampton?”
Leathers tried a new strategy, arguing that the FBI defendants did not participate in the raid and were only passing along information. Fairchild responded, “If the FBI gave a floor plan to someone planning a bank robbery, wouldn’t they be accountable?”
Leathers answered that the FBI had no knowledge of any illegal activity and no intent to cause any. Fairchild asked, couldn’t the FBI assume after November 13 that the police might want revenge? Didn’t COINTELPRO indicate an intent to destroy the Panthers and their leadership? Weren’t these questions for the jury to decide? Leathers responded by repeating that the FBI defendants had acted lawfully.
As he finished, Leathers said he was appalled that in our reply brief, we accused him of a “fascist” mentality when he’s claiming that the FBI was immune from liability for its actions pursuant to COINTELPRO because they were doing their duty and carrying out national policy.
When Dennis rose for rebuttal, Pell asked him if the court would also be part of the fascist conspiracy if it upheld Perry’s rulings. This question looked like trouble.
We could not ignore the fascist aspect of COINTELPRO, Dennis replied, with its claim of absolute immunity for government misconduct. COINTELPRO was “so outrageous” that it “can’t be properly characterized” any other way.
Pell again challenged Dennis on his terminology, but Dennis continued. He shared our dilemma with the judges. “We were constantly forced to choose between exaggeration and restraint in describing the most notorious event of our lives and the most incredible train of events following it.”
I feared Swygert and Fairchild would feel the need to protect Pell against Dennis’s characterizations of the FBI.
After a few more back- and-forths, Fairchild intervened and told Dennis to focus on the facts of our case, not the abstract labels. Dennis balked at first, saying we could not ignore the threat that COINTELPRO imposed nationally. He then described specifically how COINTELPRO had led to the December 4 raid. He ended with a plea to the court not merely to reverse Perry but to arm us with the necessary tools—interim attorney’s fees and sanctions—to have a fair chance at the next trial.
“This case will be taken under advisement,” Fairchild announced. The judges stood and walked out. Flint, Dennis, and I gave each other positive nods. We shook hands with Montgomery; he had been at his best. As we exited, I saw my mother talking to Iberia.
“I hope you get some justice,” my mother said. “Jeff’s told me how much you’ve had to take.”
“Well, he and Flint have had to take it also,” Iberia responded. “They deserve to win.”