Seize the Time

Flint and Dennis, now returned from Attica, began our offensive by writing and filing a fifteen-page motion for sanctions against the FBI. Flint had chronicled each deceptive statement the defendants and their attorneys had made, providing dates on which the documents were produced that proved their withholding of evidence. He also listed every hour we had wasted in depositions and at trial questioning FBI witnesses while the documents we needed were deliberately concealed. Flint calculated these at 2,861 hours pretrial and 1,871 hours at trial. Only Flint had the patience and persistence to prepare such a detailed compilation. It was necessary because Judge Fairchild had amended Swygert’s order to say sanctions might be issued rather than must be, and we had to convince Grady to punish the FBI for its obstruction in the first trial.

Flint’s motion asked for production of all FBI documents still withheld, default judgment against the FBI defendants, and an attorneys fee award to compensate for the unnecessary time it took to obtain materials that should have been produced early in discovery. We hoped to prevail on this motion and put the FBI in such a bad trial posture that they would have to settle.

The next Sunday, I took the afternoon off from working on the Pontiac trial, now in its third month of jury selection, to meet with Flint and Dennis. We sat in the conference room, flipping the Bears game on and off at breaks. The city wasn’t offering more than fifty thousand dollars, and the FBI was saying it had no authority to indemnify the FBI defendants, who could pay only small amounts out of their pockets.

“Sounds like settlement isn’t going anywhere,” I said.

“It won’t until we hold their feet to the fire,” Dennis responded. “They think they can stall and play us off forever and still hang another jury. They haven’t been taught their lesson yet. I think they should pay big time for their arrogance. Three million sounds about right.”

That seemed like a lot. Not too long ago we were tossed out of court.

“Let’s go for it,” Flint said. “If Grady gives us half a chance, we can really tighten the screws.” His determined expression reinforced his words. “Let’s see what they say after Groth has to give up a name for his supposed informant and after Grady rules on sanctions.”

I marveled at Flint’s will. We all knew there was no easy way home. He was fully aware of the continued imbalance of resources and our empty bank account. But the lure of winning, of proving the conspiracy, trumped everything else.

“Let’s tell Montgomery to tell the defendants we’re not interested in chump change,” Dennis said. “Scheme on.”

On the next court date, Flint reported to Grady in chambers that the defendants had offered nothing and were not serious about settlement. The plaintiffs wanted answers to the three motions we filed. Grady, who was used to having his suggestions followed, wasn’t happy but he couldn’t force the defendants to settle; not yet anyway. He set schedules for their responses.

The defendants’ attorneys answered our motion to add the FBI and John Mitchell, the estates of Hoover and Clyde Tolson (an associate director of the FBI who was also Hoover’s lover and heir), and the heads of COINTELPRO by arguing that the statute of limitations had run out and also that they were immune from prosecution. After lengthy briefs by both sides, Grady ruled in our favor. On August 4, 1981, he allowed us to join and charge as defendants in the conspiracy John Mitchell, Hoover’s estate, Jerris Leonard, and the D.C. heads of COINTELPRO—everyone we wanted with the exception of the FBI itself, which he ruled had sovereign immunity as a federal agency. Adding the new defendants opened the door to more discovery about COINTELPRO in D.C., at FBI headquarters. Strike one against the defendants, I thought.

After lengthy briefing, and reading Flint’s detailed compendium, Grady determined that sanctions against the FBI defendants were warranted. These included allowing us to put on evidence at the second trial that they had intentionally concealed evidence at the first trial, which the jury could construe to be evidence of their guilt. This ruling was devastating to the defendants on two fronts. It acknowledged a pattern of concealment by the defendants and their attorneys, which was greatly embarrassing to the FBI and U.S. Attorneys’ Office, and it undermined their credibility in their denial of responsibility for the raid. The FBI’s mantle, its arrogant assumption of propriety and good faith, would not be available at a second trial. Strike two.

The third avenue opened by the Seventh Circuit was Groth being forced to disclose a name for his supposed informant. Coghlan sought a sweeping protective order preventing us from following up with discovery after Groth disclosed the name of his informant. Coghlan asserted that further investigation would present great danger to the informant and his or her family. Grady entered the protective order temporarily.

Meanwhile, our Pontiac jury, nine out of twelve of whom were black, returned their verdict. I sat with nine other lawyers and ten men facing the death penalty as the clerk read the verdicts. “Not guilty for Albert Jackson on murder count one…. Not guilty for Lawrence Talbert on murder count one…. And finally, forty “not guilty” verdicts later, “Not guilty for Joseph Smith on murder count one.” The jury found all the defendants “not guilty” on every count.

I looked at the relieved faces of the men on trial. Then there was jubilation—crying and hugs and thanks to the jury. The Pontiac Brothers’ families were ecstatic as well. From possible death to freedom, many of them were released that afternoon. We had a dinner celebration with most of the jurors present. I was still high from the Pontiac verdicts when Flint came to tell me Groth’s answer to our simple interrogatory, “What is the name of your informant?”

“They named Babatunde, just like we figured,” Flint said.

“Big surprise,” I said, “naming the dead man we thought they would. He can’t deny it.”

“But I think we can,” Flint said. “They’re gonna have to come up with some corroboration. Grady is going to be suspicious that after all these years of claiming how dangerous it would be to disclose the informant, they’re now claiming a dead person.”

Several days later we were in Judge Grady’s plush, carpeted chambers. Flint and I had expected Groth to name Babatunde, but Grady was visibly shaken when Flint announced in the judge’s chambers that the person Groth named had been dead for ten years. Grady shook his head, and his big hands opened palms up in a gesture of, what is this?

He was sitting at the end of his conference table with Flint and me on one side and Coghlan and Volini on the other.

“The impression I have had all along is that we have some live person there whose physical safety was allegedly in danger. Now, we have somebody who’s been dead for ten years, a very different picture than I have been given up until now,” Grady said, shaking his head in disbelief. Coghlan was fidgeting in his chair, trying his best to look earnest. He begged the judge to extend the protective order until Babatunde’s mother decided if she needed protection. Grady reluctantly agreed. It gave Coghlan time for one last effort.

While the protective order remained in effect, Coghlan, together with uniformed Chicago police officer Michael Conneely, paid two visits to the home of Babatunde’s mother, Theresa Morgan. From statements we obtained later from her, this is what happened: Coghlan told Mrs. Morgan that they were looking into the death of her son, which they claimed was part of a recently reopened investigation. He told her that Babatunde had given information to the police that provided the basis for the raid on Hampton’s apartment in 1969 and this was about to be publicly announced. Mrs. Morgan later told us she was very upset and very suspicious.

On his next visit, Coghlan told her that he had information that Panther Milton Boyd murdered her son because he was the informant who caused Fred Hampton’s death. Coghlan concocted the story that Boyd had struck her son in the head, detonated explosives near him, and drove his car away. To convince her, Coghlan drove her past the spot where he said Babatunde had been murdered.

Coghlan persuaded Mrs. Morgan to come to his office, where he introduced her to Sergeant Groth, whom he identified as “the one who knows [your son] was an informer.” After Groth left, Coghlan dictated a statement he showed to Babatunde’s mother. In Coghlan’s typed statement, Mrs. Morgan stated that her son was a police informant and that the Morgans felt their lives would be in danger if this was disclosed—and they wanted police protection. Coghlan tried to persuade Mrs. Morgan and her remaining son to sign it by telling them that their lives were in danger from Hampton’s friends.

Theresa Morgan refused to sign Coghlan’s document despite his threats and entreaties. “Coghlan became angry and gave us cab fare to return home,” she said. On his next appearance before Grady, again in chambers, Coghlan sought an extension of the protective order, claiming there had been an unexplained fire at Ms. Morgan’s home sometime in the past. He sought to imply that the Morgans had already been victims of retaliation and thus needed protection.

Grady was growing impatient. He told Coghlan, “Given the plaintiffs were proceeding on the theory that there was not an informant for Groth, [Grady] could not imagine how his family could be in danger.” Grady continued addressing Coghlan: “If there was any real danger to the relatives of a person who had been dead for several years, they would have felt the effects of it before now, and in a more palpable sense than an unexplained fire.” He dissolved the previous protective order.

But Grady was not done. He wanted to know how long Coghlan had known Groth would name a dead person, since Coghlan had represented to Judge Perry, to the Seventh Circuit, and to Judge Grady that disclosure would endanger the life of the informant as well as other persons. If Coghlan knew the informant was dead, his representations would have been false and made in bad faith. The noose around Coghlan’s neck was tightening. He turned redder than usual.

He cleared his throat before looking at the judge and answered, “I had not been told by Groth who the informant was. I had been doing my own figuring it out.” Coghlan should have stopped, but now he was nervous and talked too much. “The reason I suspected him came from a statement Groth made on a deposition question that one of the meeting places, as I recollect, was a West Side elevated train.” Coghlan claimed he connected Groth’s “meeting” with his informant when he found out Morgan had worked as a conductor on the West Side El.

As we left Grady’s chambers, Flint said to me, “I don’t think Groth ever said anything about meeting his informant on a West Side El.”

“I think Coghlan made that up,” I answered. We went back to the office, where Flint and I reviewed the transcripts from Groth’s deposition. After an hour we finished scanning them. There was nothing there about meeting his informant at or near a West Side El.

Two weeks later, at his deposition, Groth claimed an implausible lack of memory about anything that could be verified with respect to Babatunde being his informant. The worse his memory got, the clearer it became that not only was Babatunde not his informant but that he never had one. Groth testified—“testilied” would be more accurate—that he uncovered key information that the Panthers murdered Babatunde, but he could not substantiate or recall any of it. Significantly, he never reported his supposed information to the police or state’s attorney.

The final piece in the puzzle came to us a week after Groth’s deposition. On August 20, 1982, Flint and Sherman Randall, an investigator who worked on the Pontiac case, went to visit Theresa Morgan. When Flint introduced himself as a lawyer for the survivors in the Hampton raid, she looked relieved. “You know my son had nothing to do with that, don’t you?” she said. “Those men tried to get me to say he was an informant and the Panthers killed him. There was no reason he would have been helping the police kill those boys.”

“Do you mind if we tape what you say?” Flint asked.

“Not a bit,” she said, and continued talking about Coghlan’s visit.

“He never identified himself as a lawyer for Groth and Hanrahan. He acted like he was doing an investigation with the police. He took me to his office to sign a statement he wrote up. I refused to sign because it wasn’t true and because my son wasn’t here to talk for himself. That lawyer was trying to fool us.”

Throughout her taped statement, Theresa Morgan made it clear she did not believe her son had ever been an informant and resented Coghlan’s assertion that he was.

When Flint returned to PLO, he came into my office and played the tape of Theresa Morgan’s interview. “That’s a new low, even for Coghlan,” I said, “telling Mrs. Morgan that her son was an informant and had been murdered. He has no shame.”

“Well, we got him this time,” a smiling Flint said, holding up the tape.

Flint amended our complaint to include the facts of Groth and Coghlan’s ten-year deception of the courts with a false claim of privilege and how, when that was about to be exposed, Coghlan had attempted to mislead and frighten a witness into signing an untrue statement to cover their fraud and perjury. A few days after we filed the amended complaint with these allegations, Coghlan resigned. The newspapers reported that the county fired him. Strike three.

We were on a winning streak, having greatly bettered our position for the next trial. On the other hand, we still had no money and a case that would likely polarize a jury, making it difficult for a unanimous verdict.

Our posttrial interviews showed that only one juror besides Florence Smith wanted to assess damages against the police. There was the additional reality of our clients, who had been waiting thirteen years and had received no compensation for their injuries and losses. Many of them would not turn down real money if it were offered.

Montgomery had noted our success and had become quite solicitous of our work, complimenting Flint regularly with “nice job” each time Judge Grady ruled in our favor. But Montgomery also said that despite the improved position we were in legally, his clients wanted to settle, and he was duty bound to try to get the defendants to offer money.

Flint, Dennis, and I, together with the rest of PLO, called a meeting to weigh our position, much improved due to the recent successes. There is a point in civil litigation, after you have obtained an advantage strategically, when you must decide whether to cash in or roll the dice and try for the most at trial.

“I’m more than willing to keep going,” Flint said as we sat around our conference table. “I really want to take John Mitchell’s deposition and find out what he and the White House knew about COINTELPRO.”

“I want to take it all the way to the top, too,” I responded. “But when John Mitchell and the other defendants get new lawyers, they could delay the case for months, probably years. They’ll claim the right to read the trial transcript and the thousands of pages of deposition testimony to get up to speed.”

“Montgomery has been talking to the other side,” Dennis said. “He says we’ll be lucky to get two million. He’s gonna make a deal no matter what we say. I think they should pay us three million dollars if they don’t want to go to trial.”

“If we do settle, a third should come from the FBI no matter what claim about agents not being indemnified,” I said. “They can find a way, even if they have to pass legislation.”

“Dan Webb, the U.S. attorney, would also like to settle this case and remove the taint of cover-up from his office,” Flint added.

For so long it seemed our clients would never collect anything. But when I thought about the depth of the FBI conspiracy, Fred and Mark’s deaths, the bullet wounds, and the thousands of hours we had put in, Dennis’s number was no longer unrealistic. And of course it didn’t really pay for the killing of Fred and Mark. Nothing would.

I had been running the prospect of settlement by our clients. “Doc is as loyal as ever and Fannie Clark is also,” I reported. “They will go with whatever we propose.” I thought Harold and Blair would also, and Truelock was always broke, so he’d probably support a settlement.

“I think our clients would be pleased with a substantial settlement,” I continued. “We can’t begrudge them that. And it wouldn’t hurt for us to get paid for the last thirteen years, either. We can’t finance the case forever. Can you live with a settlement, Flint?”

There was silence in the room. Flint didn’t want to stop fighting, maybe didn’t know how. He could go on forever. He shrugged, “If that’s what people want, but I’m gonna keep pushing until a deal is signed.”

Before our next court date in chambers, we went into a small conference room and discussed with Montgomery what we wanted. He said the defendants were now thinking in terms of “serious money.”

“We want to get three million for all of us,” I said.

“I would like to get that too, but my clients want to settle,” he told us emphatically. “Coghlan and I have already discussed two million, and it’s likely to work. I’m going to tell Grady we’re in serious negotiations.”

I had a mixed reaction. He wasn’t demanding the three million we wanted, but two million still seemed like a hefty settlement. It was three times what the plaintiffs in the Kent Sate shootings settled for and would be one of the highest settlements in civil rights history. There was a difference between what we wanted and seeing real money on the table. The two million looked better than anything we had imagined months before. It would be enough to make people understand we’d won, but we agreed that it wasn’t what the plaintiffs deserved or what we wanted. We would have to run it by our clients. We had always told them it would be their decision.

In chambers, Montgomery indicated that the two sides were making progress toward a settlement. We didn’t contradict him. Robert Gruenberg was representing the FBI defendants, and with the certainty of sanctions being leveled against his clients at the next trial, he no longer dismissed our demand that the FBI put up one-third of the settlement. Grady hinted again that the sanctions he would invoke for their malfeasance at the first trial would be severe. Volini and Witkowski said the city and county would only pay if the feds paid their one-third.

“Any settlement will have to include money from the FBI,” Flint said.

Gruenberg said he would do his best to get authorization for the FBI to pay its share.

“How much are we talking about?” Grady asked.

“Two million for all the plaintiffs is what we have been discussing,” Montgomery said. Grady nodded as if he thought that might be an appropriate figure. Flint and I didn’t object.

“I don’t know what Montgomery’s been told, but my clients haven’t agreed to pay a third of that figure,” Volini said, playing hardball to the end. But now he was bluffing. There was political pressure on the city from the black community to settle.

“Our clients haven’t approved any settlement either,” I pitched in. “We need time to discuss it.”

“Well, I’m going to have all of you consult with your clients and then come back to see where we are. My position is clear,” Grady said, looking at the defense lawyers. “This case should be settled. If I have to bring your superiors, the decision makers, in here to do it, I will.”

“It sounds pretty good to me,” Doc said when I called and told him we were negotiating in the range of two million dollars. “How much will each one of us get?”

“We haven’t done all the numbers yet, but you will get more because of your injuries, around $150,000 after our fees and costs. And we’re trying to get Fannie Clark at least $200,000.”

“Whose gonna pay?” he asked.

“All of them,” I said, “the city, county, and feds.”

“Is some of it coming out of Hanrahan’s pocket?”

“Unfortunately, no. The county will pay his bill. None of the defendants have to pay themselves. It’s a drag, but at least we’ll get paid.”

“It don’t seem right that the people who shot us pay nothing.”

It always pisses off victims of the police to learn that taxpayers foot the bill. “It isn’t right,” I said. “But the police contract requires they be indemnified. I wish we were getting money from them too. It might deter them next time.”

“Sound’s OK, I guess.” Not a totally enthusiastic endorsement of our twelve years of work. Then Doc added, “I know you guys did your best, and what you did was incredible. If the others say OK, it’s OK with me.”

As I hung up, I realized it might actually be over soon. I felt strangely ambivalent. We were about to win, or at least settle. We had presented enough proof of the conspiracy and the murders to force them to pay damages. But none of the perpetrators had to pay themselves. None of them had been convicted. Not even Carmody, who we believed shot Fred and who admitted dragging his body out for all to see. Not Hanrahan for endorsing Fred’s murder, not the FBI for plotting the whole thing.

The negotiations went on for several weeks. On July 25, 1982, the Sun-Times headlined a story, “After 12 years, Panther Suit Nearing Settlement.” Inside, the story stated unidentified sources claimed the negotiations were “positive” and that all lawyers were to submit their claims for fees at the next August court date.

Both sides had in fact been weighing the same number, $1.85 million. But when we submitted our claims for fees, we hit a snag. Montgomery wanted 45 percent of his clients’ one-half of the settlement. We would presumably get the one-third share of our clients’ settlement money, based on the agreement we had signed with all the plaintiffs at the beginning of the case. Flint calculated that we had done more than 90 percent of the work, and put in over 90 percent of the time. We didn’t think Montgomery should get two-thirds of the legal fees.

Grady brought all of us together in chambers on October 6.

“I understand the plaintiffs and defendants have agreed to settle for $1.85 million with one-third coming from the city, one-third from the county, and one-third from the federal government,” Grady announced. It seemed simple, anticlimactic. The money would mean a lot to our clients, but did it make up for what had been done and the decade spent uncovering it? However, once settlement negotiations begin, they have their own momentum. We weren’t going to stop now.

“We have a fee dispute with Mr. Montgomery, but we don’t believe that should hold up the settlement,” I told Judge Grady.

“Have you prepared a document reflecting the settlement?” Grady asked.

Montgomery had brought three copies of the settlement agreement setting forth the terms. “I have it here,” he said.

Grady looked at it hurriedly and then passed it around the table for each of the lawyers to sign. Flint, Dennis, and I looked at each other. Last chance to bail out, I thought. But we signed the paper as it passed our side of the table, and Montgomery signed it as well.

“We’ll need your clients’ signatures on releases,” Grady said, standing up. “As soon as you get them, bring them to my clerk. I’ll enter an order dismissing the case.”

News of our impending settlement, and the amount, reached the press a few weeks later from an undisclosed Justice Department source. “$1.85 Million Accord Reached in 1969 Black Panther Case,” the Los Angeles Times reported on October 24, 1982. At the same time, the county board was about to vote to approve the settlement. “Pay and move on,” was the official position.

On Sunday, November 14, the New York Times did a follow-up article on the settlement. Bill, Fred’s brother, was quoted: “At times when we had to go to court almost daily it seemed that we should just give up. But we in the family knew we were right, that the police were wrong, so we kept praying and kept fighting.”

Flint commented in the article, “The case may be almost over in the legal sense but it will live on as a reminder to people of how far the government can and will go to suppress those whose philosophies it does not like.”

Assistant U.S. Attorney Gruenberg denied that the settlement was an admission of responsibility and said it “was intended to avoid another costly trial.” This is what the government says when it settles, regardless of the size of the payout. Hanrahan refused to comment.

Still it was not over. Nothing came easy. Montgomery’s clients refused to sign the releases. He claimed they objected to us getting paid for the time we put in for them, but we couldn’t check this out because his new retainer gave him the exclusive power to negotiate with us. On November 24 we appeared in Grady’s chambers. Bob Gruenberg, who had worked to get the FBI to come up with its part of the settlement, warned Grady that he was “worried” the federal government might renege and withdraw its offer.

Grady was riled. He did not want the deal to collapse. He looked at Montgomery, and in the sternest tone he could muster said, “There is no one who can predict what might happen here, and it seems very plain to me that these plaintiffs [Montgomery’s clients] are making a mistake by not signing these releases.”

On December 2, Dennis, Flint, and I sent a memo to Montgomery’s clients, the Hamptons, Deborah Johnson, Verlina Brewer, and Brenda Harris: “We firmly believe that PLO is legally, morally, and in every other way entitled to be fairly paid for the work we did for our former clients both before and after we represented you directly; and that it would be morally and legally wrong for Jim Montgomery to receive 45 percent of half of this settlement fund while we are left with one-third of the other half.”

We attached a breakdown of the hours of pretrial, trial, and appeal. PLO attorneys expended thirty-seven thousand hours and Montgomery slightly fewer than four thousand. The breakdown stated: “The record shows that we did at least nine-tenths of the work on the case as a whole…. We feel that we should receive at least three-fourths of the combined lawyers share.” Our memo also said the settlement should include reimbursement to the organizations that had paid expenses—the Center for Constitutional Rights, the Lawyers’ Committee for Civil Rights, the National Jury Project, and the NAACP—as well as James Carter, whose firm of black court reporters we owed nine thousand dollars, and, finally, Robert Zimmers, for the remainder of his expert fee.

“December 4 is almost here again, and we shouldn’t let it pass with the entire settlement, and everything it means to all of us for the past and future, still hanging fire,” our memo concluded. Two months later, on February 28, Grady called. He had the signed releases. We could pick up the settlement order.

Later that day, almost thirteen years after we filed our suit, Dennis, Flint, and I stood in front of the news cameras at our office and read our press release. We gave credit for the settlement to the court of appeals, the work done before Judge Grady, and “the continuing community concern particularly among black people.” We ended:

It is entirely appropriate that the legal portion of this case has been concluded during Black History month, for the murders of Hampton and Clark by the agents of three governments is a most significant event not only in black history but also in the history of this city and in history as recorded by all people of conscience. We intend to continue to keep the memory and meaning of December 4 alive, so that it will be more difficult for government officials to conspire to murder two black leaders and to destroy the movement, which they led.

FLINT TAYLOR
JEFFREY HAAS
DENNIS CUNNINGHAM