“I Am No Solomon”

Jim Montgomery, in a dark tailored suit, squared his broad shoulders and rose to address the judge. His argument was our last chance to get Perry to release the FBI’s COINTELPRO documents before we called our first witness. Edward Christenbury from the Justice Department had just reiterated the FBI position; COINTELPRO was “immaterial and irrelevant.”

Montgomery enunciated slowly and emphatically, highlighting that our complaint charged that “the raid was accomplished as a result of COINTELPRO.” We should have the opportunity to prove our allegations. There was no doubt COINTELPRO targeted the Black Panther Party, and the issue was whether the FBI program lead to the raid. The FBI defendants claimed that they were “innocently in good faith furnishing intelligence to brother law enforcement agencies.” We claimed the purpose of supplying the information was to further the illegal goals of the COINTELPRO program including destroying the Black Panther Party and its leadership. Montgomery argued that COINTELPRO was critical to showing the FBI’s intent.

Montgomery then gave a succinct history of the Counterintelligence Program and explained that the clear purpose of the COINTELPRO hit letter to Jeff Fort was to get Fred Hampton killed. Montgomery pointed out that the motive and intent of the defendants was a critical part of our proof and COINTELPRO was committed to “preventing the rise of a black messiah.”

“We can’t rely on the defendants’ denial of relevancy, and if the court accepts their claims, you will have precluded us from putting on our case,” Montgomery ended, putting the weight squarely on the judge.

When he finished, Perry seemed to soften his position. “I am concerned that the plaintiffs have not seen it,” he responded, referring to the hit letter. Montgomery had pressed hard on our right to determine what evidence was relevant to our case, not the defendants.

Volini tried to save the day for the defendants, complaining that “no ruling is final,” referring to Perry’s numerous prior denials of our requests for COINTELPRO information.

Perry responded, “I think these counsel should have an opportunity to look at the material that I have received in camera. … I am no Solomon; I made a mistake. I have let the defendants determine what is relevant to the plaintiffs’ case.”

With that Perry pulled a document out from under his papers and read an order he had prepared requiring the federal lawyers to produce the entire Chicago COINTELPRO file as well as all the Chicago FBI files on O’Neal, Fred Hampton, and each of the plaintiffs.

I rolled my eyes in disbelief. Flint had a similar look. The same argument by Flint and me had been rejected so many times. I couldn’t believe Perry was actually ordering the FBI to turn over the COINTELPRO files: the ones we had been seeking for two years, through ten subpoenas, seven motions, and six arguments. Looking back, it’s clear that Montgomery’s argument provided Perry a convenient opportunity to come off his untenable position of denying the relevance of documents he knew would be made public by the Church Committee, if not through other litigation, and that, because of their obvious evidentiary value to us in proving the FBI’s motivation to neutralize the Panthers, and Hampton in particular, would only expose Perry’s collusion with the federal defendants. Now, he didn’t have to admit he was wrong directly to Flint and me, and he could send the message that our lawyering was the problem, not his rulings.

Flint immediately asked Perry to recess the trial until we had received and read the recently ordered documents and questioned the FBI defendants about them. He refused but said we could spend “half days” the next week questioning Johnson outside the presence of the jury.

After court Flint and I went out in the hallway. We congratulated Montgomery. He smiled, knowing he’d done a good job, but he also gave us credit. “You guys did the footwork,” he said. “I just finished it off.”

The press wanted to know why Perry finally reversed himself. Because we were likely to be quoted, we didn’t want to slam him too hard. “Well, let’s just say he was slow to understand how important COINTELPRO is to this case,” was my response to press inquiries.

Flint and I followed the reporters to the pressroom and briefed them further on why the FBI’s Counterintelligence Program was behind the raid and how the release of documents would be critical to proving this. “It started with Hoover,” Flint told them. “It ended at 2337, but it was part of a common conspiracy and COINTELPRO provided the directions.” We had some of the COINTELPRO documents released to the Watergate Committee, ready to give them. “Yes, I think ‘neutralize the BPP’ includes killing,” I said. “It sends the message while maintaining deniability.”

We called Marlin Johnson as our first witness. With COINTELPRO no longer out of bounds, he would have to acknowledge and explain its mandates. He admitted that he received the August 1967 directive to set up a COINTELPRO operation in Chicago whose purpose was to neutralize black leaders and to “prevent the rise of a messiah” who could unite the black movement. Johnson also admitted to receiving Hoover’s memo urging FBI offices to use local law enforcement to harass and disrupt black groups, and that he authored the memo to Hoover wholeheartedly approving the goals of COINTELPRO. Nevertheless, contradicting the explicit entreaties in the COINTELPRO memos, Johnson repeatedly asserted that “the purpose of COINTELPRO was to prevent violence.” Perry would not let Montgomery impeach Johnson by showing that Dr. King was one of the leaders targeted by COINTELPRO. Because many COINTELPRO memos were titled “COINTELPRO—Black Nationalist Hate Groups,” Montgomery asked Johnson for his definition of a black nationalist group. Johnson’s answer was “any black organization that had a national headquarters.”

Johnson testified that he received and read only the COINTELPRO documents on which his initials appeared, and only a “part” of those. He portrayed COINTELPRO as a minor program run by a small section of his office, barely making the radar screen of someone as busy as himself. Johnson claimed he had no recollection of any specific action he took to implement the program in Chicago. He “did not recall” receiving Hoover’s memo calling on all FBI offices to “submit imaginative, hard-hitting counterintelligence measures aimed at crippling the BPP,” even though it was addressed and routed to him. The growing chorus to Montgomery’s questions was “I don’t recall.” The COINTELPRO memos addressed to Johnson were admitted into evidence even if Johnson claimed no memory of them.

“How could this guy with such a pathetic memory serve as chair of Chicago’s police board?” I leaned over and asked Flint.

On the second day of cross-examination, Montgomery read Johnson the contents of the letter he authorized warning Fort about the supposed hit out on him by the Panthers. He also read Johnson’s memo to Hoover explaining that the purpose of his letter was to get Fort to take “retaliatory action” and carry out “retribution against Panther leaders.” Johnson insisted a hit was “nonviolent,” and no physical harm or violence was intended. “I would never approve any document in this program, Sir, where I felt the results of the program would lead to violence.” Johnson claimed the “retribution” he intended to follow from his letter meant “disorganization.”

“So your intent was not that Jeff Fort blow somebody’s head off as a result of this?” Montgomery asked the question on everyone’s mind.

“Yes sir, that is correct.” Johnson replied, because there was an “FBI understanding” that the program and letter were intended to be nonviolent. I heard muffled laughter from the back of the courtroom.

Montgomery followed up, asking Johnson if anyone explained the FBI understanding to Jeff Fort.

“No.”

“Are you aware Fort had only a sixth-grade education?”

“No.”

Montgomery asked Johnson what he’d meant by “I know what I’d do if I was you.”

“It meant nothing as far as I was concerned. It was just more street language put in there to make it sound more realistic.” Johnson crossed and recrossed his legs, directing an occasional inappropriate smile at the judge, trying to defuse the absurdity of his answers.

“What is it that you know about the Rangers that would indicate that no harm would come to the Panther leaders as a result of this letter?” Montgomery pressed on.

“I considered an anonymous letter to be practically nothing…. I doubted that it would even be read.”

I glanced at the jury. Florence Smith was shaking her head back and forth in disbelief. She knew more about the Rangers than Johnson wanted her to.

That evening Bob Greene, a columnist for the Chicago Sun-Times, wrote a satirical editorial entitled, “No Hits, No Guns, No Terror.” He interviewed several organized crime experts and asked them for their definition of a hit. Their answers were “a contract for murder” and “to kill, or eradicate.”

The next day Johnson continued his vocabulary jumble. One of the COINTELPRO documents he authored praised O’Neal’s actions as “an indication of the use of this source (O’Neal) in harassing and impelling the criminal activities of the Panthers locally.” Johnson testified that he understood impelling to mean restraining. There were more snickers in the courtroom. The primary definitions of impelling, according to the Webster’s Unabridged Dictionary, 2nd Edition that was retrieved from the judge’s chambers, were “to drive or urge forward to incite to action, to give an impulse to.” Johnson claimed he knew nothing of O’Neal’s provocative acts.

Johnson denied any knowledge of the floor plan before or after the raid. He also claimed he was never told there were illegal weapons at 2337 and if he had this information, he was required to pass it on to the ATF. Instead, he simply denied receiving it.

Even though it came from SAC Chicago, the acronym for his official title, Johnson claimed no recollection of the contents of the December 3 COINTELPRO memo from himself to Hoover describing the passing of information about 2337 (and the weapons stored there) to the state’s attorney. Similarly he didn’t know what was meant by the “positive course of action” he expected to be taken in response.

Constant objections by the defense and Johnson’s consistent loss of recollection made his cross-examination long and tedious. When Montgomery probed Johnson about the usefulness of a floor plan in a raid, the judge called his questions “speculative.” When Montgomery asked Johnson why the ATF was not given the information about a sawed-off shotgun, Perry intervened and said the question was “far afield.” Perry told the jury that O’Neal’s receiving increased payments because the FBI reported his effectiveness at carrying out the FBI’s COINTELPRO objectives was “not an issue.”

Toward the end of his questioning, Montgomery came down with the flu. He asked me to finish the cross-examination. February 26 was my first day questioning a witness before this jury. I was nervous approaching the podium in the intimidating atmosphere of the grand federal courtroom. By this time we had moved to a regular courtroom, but the atmosphere was the same.

I asked Johnson what he understood to be the purpose of the federal grand jury, the words coming out hesitatingly at first.

“Leonard told me he was primarily interested in the June 4 raid,” he responded. (A blatant lie.) My nervousness and dry mouth vanished as I listened to his absurd answer. Johnson was trying to justify his failure to tell the grand jury about the FBI role in obtaining the floor plan and initiating the raid. He knew the grand jury was about December 4 and he had already admitted meeting with Assistant Attorney General Leonard, who was in charge of the grand jury, several times. Later, I got him to acknowledge that Leonard wanted to know what the FBI told Hanrahan’s raiders before the raid. Johnson claimed he never told the grand jury prosecutors about either the floor plan or illegal guns, because he was never told those things before the raid or by the unknown “staff person” who briefed him before his grand jury testimony.

I challenged Johnson’s claim of ignorance. “Wasn’t it your responsibility to investigate Leonard’s request?” I asked. The defense lawyers stood up and objected to give him more time to answer. Johnson asked for the question to be read back three times.

All he could come up with after the delay was “I would have felt they [whoever briefed him] knew, but I do not recall whom I asked.” He admitted he never asked Mitchell, the person he knew was involved, or Piper, his supervisor, for information about the raid. Johnson denied knowing about the deal between Hanrahan and Leonard to assure there would be no disclosure of the FBI role, even though the April 8 FBI memo specifically states he was told of the agreement by FBI agent Leonard Treviranus. Perry refused to permit me to confront Johnson either with the document or Treviranus’s testimony.

That night a local newspaper described Johnson as someone “whose memory seems to be deteriorating during questioning.” His lawyers seemed at a loss on how to rehabilitate him, but Perry did the rehabilitation himself. The next day he told the jury that Johnson “was not evasive at all.” This comment was a gross violation of the Judge’s supposed impartiality and an invasion of the jury’s duty to assess the credibility of the witnesses, but for Judge Perry it was business as usual.