“What about a civil rights suit?” Dennis threw out at our next office meeting. The dropping of criminal charges made it possible for our clients to testify without fear of prosecution. Suing the perpetrators of the raid would put us on the offensive, but we lacked the know-how, the resources, and the permission of our clients. These formidable obstacles were exacerbated by the ambivalence of many of us about using the courts at all. Still, as plaintiffs, we would be the moving party; we could make the claims and define the issues. On the other hand, we would have the burden of proof and the responsibility of carrying the case forward.
We had never done a complex civil case, much less a civil rights claim against powerful and well-funded government officials. We were just beginning to learn how to poke enough holes in a prosecutor’s case to raise reasonable doubt. We had never written a civil rights complaint. Moreover, civil rights cases were brought in federal court under the federal civil rights laws. To sue there, we’d have to learn an entirely new court system and set of procedures.
The prospects for winning a judgment at the end of years of legal wrangling seemed remote. We needed the unanimous verdict of a jury, and the December 4 raid remained as controversial and divisive as ever. Many, if not most, white people still supported Hanrahan. Jurors for federal trials were picked from the registered voters who lived not only in Chicago and Cook County, but the white suburbs in DuPage and Lake Counties as well as rural areas extending as far north as Wisconsin. We would be lucky to get one black juror. Filing a civil suit could be setting the survivors and the families of Mark and Fred up for another defeat.
Into this chasm between what was needed and what we knew how to do stepped Arthur Kinoy. With short legs and a slightly hunched upper torso, he was an elf of a man of some fifty years. He taught constitutional law at Rutgers Law School and came to Chicago as an emissary from the Center for Constitutional Rights in New York. The National Lawyers Guild spread the word that we were considering filing a civil rights suit.
Arthur had traveled to the South during the late 1950s and the 1960s. He and his cohort Bill Kunstler, had represented Dr. King, Fannie Lou Hamer, and the Mississippi Freedom Democratic Party. They also represented the families of James Chaney, Andrew Goodman, and Michael Schwerner, three civil right workers kidnapped and slain by Klan members after they went to Neshoba County, Mississippi to investigate the burning of a black church that was being used as a freedom school.
“You can do it,” Arthur kept repeating. He stood and leaned forward, waving his closed right hand for emphasis. The rest of us were sitting on the window ledges, countertops, and a few chairs at the front of our office. This was the biggest meeting space we had preserved in our converted sausage shop.
Arthur continued: “In the South, the civil rights activists we worked with were constantly being harassed and jailed. Some were beaten and even killed. We had to figure out ways to protect them.” He said they had found an old statute that allowed them to remove cases to federal court and get away from the more racist state judges. “We sued local police and officials for denying our clients the right to vote, or march, or even sit at a restaurant. We forced Southern courts to issue orders protecting the civil rights workers.” He was cooking—nodding his head and pounding his knee. I felt like I was right there with Arthur in a North Carolina jail, strategizing with the people arrested at a lunch counter, or in Mississippi advising people turned away from voting. He believed using the Constitution to help the movement was what radical lawyers should be doing.
There was no “I can’t” with this salesman for “taking ‘em to court.” His infectious excitement, as much as his arguments, made us believe we could win too. For the moment I put aside my skepticism about using the courts. A few days later we suggested filing a civil rights lawsuit to Iberia and Francis, and they wanted to know more. Dennis, Flint, and I then called Mark’s mother—Fannie Clark—Doc Satchel, and the other survivors to a meeting at the Hamptons’ home in Maywood. Iberia served lemonade as we sat on upholstered chairs and the living room sofa arranged in a rough circle.
Our clients were skeptical of obtaining any good outcome from the courts. They had seen Hanrahan manipulate the criminal process to indict them, while he and the raiders went uncharged. Dennis attempted to answer their misgivings: “A civil suit will allow us to be the prosecutors,” he argued. “We go first and put on the evidence. We will be able to define the issues and set the terms for the trial. Also, we get to question each of them in depth under oath about what happened. They’ve told so many lies there’s no way they can look believable.”
“Who do we sue?” Verlina asked.
“We want to sue everyone responsible; the planners, the raiders, and those who lied to cover up what occurred. This includes Hanrahan, his assistant Jalovec, and of course the police.” I added. “We would also try to include as defendants the people in the Chicago Police Crime Lab and the state’s attorneys who did the phony investigation.”
Flint, who was still a law student and didn’t often speak up, added, “Our legal research shows we can charge them all with conspiracy together in one suit.”
The argument that won the day was Fannie Clark’s: “We can’t just do nothing. Mark and Fred should still be alive. I want to bring their killers to trial.” Nobody countered what she said.
“Let’s go ahead. We’re in,” Iberia Hampton said. I saw the determination on her face and knew, despite the difficulties, we had to go after everyone responsible for Fred’s murder and the cover-up afterward.
Iberia had another reason for wanting to file a civil suit: “The way he was described in the papers, people didn’t really know who my son was.” She didn’t like the way he was constantly portrayed with his fist in the air and talking about “pigs.” She wanted the lawsuit to show her son as the young organizer, the gifted speaker, the would-be lawyer, the young man on whom she and Francis had placed so much hope. Fred was a combination of her own ability to bring people together and Francis’s quiet but resolute militancy.
Doc was also anxious to begin a lawsuit. The pain and medical complications from his gunshot wounds were still with him. “Let’s go all the way. Whatever it takes,” he urged. After only partial recuperation from his injuries, Doc had resumed responsibility for running the Panther medical clinics and was back on a fourteen-hour-a-day work schedule. “I’m going to have these scars and the pain for the rest of my life,” he said. “Why shouldn’t the people who shot me and their bosses pay?” After he spoke, all the survivors agreed to sign up for the lawsuit.
Deborah had been quiet, but she was moved by the resolution of the others. “I want Little Fred to be proud of his father,” she said. “I hope the suit will show how great he was and make the pigs answer for what they did.”
As we lawyers overcame our fears, we began to focus on the positive. In civil cases, extensive discovery is allowed. We would get to cross-examine all the defendants under oath at depositions, with court reporters recording what they said. The contradictions between Hanrahan’s and the raiders’ accounts and the physical evidence made the prospect of confronting the defendants a trial lawyer’s dream.
Arthur Kinoy’s experience in finding solutions that protected civil rights workers in the South, even in the most racist courts, gave me hope. Wasn’t this our job? I would learn that civil cases, where we were on the offensive, actually gave lawyers the best opportunities to expose government wrongdoing. There were also provisions in the Civil Rights Act that required the defendants to pay our attorneys fees if we won. This allowed us to support ourselves without burdening our clients. But then we only got paid if we won.
Having decided to proceed with civil litigation, we needed to write the complaint to combine the claims of the survivors and the deceased into one lawsuit against all the perpetrators. We didn’t have the resources or the desire to bring nine separate suits, nor did we want to sue each set of prospective defendants separately. The legal construct we had found was to charge all the actors in a conspiracy to act together. That way we combined Hanrahan, Jalovec, the fourteen raiders, the crime lab people, and those who falsified the investigation into one lawsuit.
Skip, who had carried the burden of the criminal defense and who knew the evidence best, did not assist in the filing of the civil case. As I mentioned earlier, he was moving in the direction of becoming a top criminal defense lawyer—not only one who would win but one who could charge big bucks. Years later he told me with some regret that he had always feared being as poor as his family had been when he grew up, and that money and reputation were important to him. He left PLO because we refused to open a second office on prestigious LaSalle Street.
Flint and Dennis drafted a complaint using our facts and language and Arthur’s prior pleadings. Ray McClain, a bright University of Chicago Law School student, assisted them. Finally, the Center for Constitutional Rights sent Bill Bender, an experienced civil rights lawyer, to Chicago regularly to help draft pleadings and oversee the legal work.
After a week of drafting, we all pitched in and reviewed the complaint for its factual accuracy, tweaking it where necessary. Dennis added some purple prose to spice up the allegations. Essentially, we were charging the defendants with conspiring to deprive our clients of their constitutional rights to life, liberty, due process, and equal protection, and the right to be free from illegal searches. In May of 1970 we filed our complaint. We had no idea we were embarking on a thirteen-year battle.
On June 27, 1970, Chief Criminal Court Judge Joseph Power bowed to the pressure from the coalition of forces dissatisfied with the federal grand jury and appointed a special prosecutor. This was only the second time this had ever occurred in Cook County. It is nearly impossible to get the chief judge, selected for that position by the local Democratic Party, to rule that the local prosecutor, elected by the same party, is not fit or has a conflict of interest in a criminal prosecution. Judge Power appointed Barnabas Sears, an elderly, white-haired lawyer with a patrician manner who was well respected by the legal establishment and who had gained fame prosecuting the Summerdale police scandal, to investigate Hanrahan. While not known for representing blacks, Sears was viewed as independent of Daley. Sears hired two assistants—Weyland Cedarquist, an experienced trial lawyer, and Ellis Reid, a young, progressive black lawyer, to help him.
In spite of what I believed were his good intentions, I didn’t think Sears had enough energy or trial savvy, not to mention killer instinct, to prevail. He was too much of a gentleman to win against the down- and-dirty tactics he would face. But the Panthers had been among the groups calling for the special prosecutor and wanted us to assist Sears in any way possible.
Mary and I separated in 1970. As I was being pulled more and more into the most radical sectors of the movement, she was looking for other friends and stepping back from what seemed to her like the rapids before the falls. We had started our marriage believing we could live a middle-class life but still support radical groups. Looking back, I think this might have been possible. But in 1970 I didn’t want a separation between my personal and political lives. It was hard to tell my dad about the breakup. I knew he really loved Mary and was sad about the breakup, but I think he hid his feelings out of loyalty to me. As for me, I’m ashamed to say I was too caught up in events to feel the pain of separation and the loss of what we had both hoped would be our partnership for life.
When Mary moved out of the Bissell Street house in 1970, other people moved in, and we operated more as a collective. Flint came to live at Bissell Street after his girlfriend, Seva, left the office and Chicago. Liza Lawrence, a close friend of Courtney Esposito’s who, like me, sported a large Afro, occupied one of the bedrooms in our house. Susan Waysdorf, another temporary dropout from the University of Chicago, occupied another. All the bedrooms were on the second floor, but movement people coming into town for court dates or just needing a place to crash frequently occupied the couches in the living room or the spare bedroom at the back of the house, four feet from the El tracks.
Courtney Esposito had been part of a Weatherman collective in Chicago, but after the townhouse explosion, she left SDS and started working at PLO in 1970. She and I began a relationship after Mary and I split up. Courtney soon moved into Bissell Street. Olive-skinned with green eyes and light brown hair, she had a tough outwardly manner reinforced by a sarcastic tongue. We shared a bedroom most of the time. I say “most” because we, the men, were constantly being lectured to (justifiably) about our failure to do our share of the housework, particularly the cleaning. The withholding of sex was a frequent punishment.
We had weekly meetings, and chores were parceled out, from shopping and cooking to cleaning. Everybody pitched in for food, and I paid the utilities and mortgage. As a movement person with access to money and in this case the ownership of the house, I felt hypocritical. I got some consolation from a saying attributed to Ho Chi Minh: “You can’t control what life you were born into, you can only control what you do with it.”
PLO’s first woman lawyer, Susan Jordan, came to live in our house shortly after she joined the office. She was my age, in her late twenties, and had just graduated from Northwestern Law School. With a sharp tongue and a very self-assured manner, Susan could more than hold her own with the men. She quickly established herself as a very competent criminal lawyer. There were few women criminal lawyers at that time, and shortly after she joined the office, she teamed with Jo-Anne Wolfson to defend a prisoner at Stateville Correctional Center, in Joliet, Illinois, who was accused of assaulting a guard. It was our introduction to prison work.
Susan also began a relationship with PLO partner Don Stang. Don’s wife Laura Whitehorn had left Chicago to join a women’s collective in Pittsburgh. Don remained with PLO until 1973. Don and Laura had started with many of the middle-class assumptions that Mary and I had, but their comfortable Hyde Park apartment, filled with the books of their Harvard-Radcliffe educations, was a shell that no longer fit.
Don rented an apartment directly across Bissell Street. We learned later when we got our FBI files that FBI agents occupied an apartment directly above his. They monitored and recorded our comings and goings with great interest and took photos of everyone who visited.
The Hampton civil suit was assigned to Joseph Sam Perry, an old, feisty judge, much like his cohort Julius Hoffman, who had presided over the Conspiracy Seven trial. Perry grew up in Alabama, was diminutive in stature and imperial in style. Both Hoffman and Perry were bad draws for civil rights plaintiffs.
Hanrahan, and indeed all the defendants, moved for more time to obtain lawyers and answer our complaint. Subsequently, they persuaded the county to appoint John Coghlan and the city to appoint Camillo Volini, two private attorneys, to represent them. There was no limit on their expenses or on the hours they could bill. It was a payoff for two Democratic Party loyalists.
John Coghlan was a rough- and-tumble, red-faced Irish lawyer. He wore glasses, and could be tough, dramatic, or sarcastic, as the occasion required. He had been a cop, and was at his best portraying police as the unsung heroes of our society. He would represent Hanrahan, his assistant Jalovec, and the seven raiders who were permanently assigned to the State’s Attorney’s Office.
Camillo Volini, an overweight Italian lawyer with a round face and flabby jowls, was appointed for the other cops and the crime lab personnel. He was less intense and confrontational than Coghlan, and even had a jocular side. Both Coghlan and Volini were seasoned in the politics of Chicago’s white ethnic communities and knew well how to appeal to their fear of blacks. Although Coghlan and Volini were appointed solely so they could receive public monies, they used their titles as “special state’s attorney” and “special corporation counsel” to claim governmental status, seek privileges from the court, and intimidate witnesses.
Perry allowed Coghlan and Volini substantial time to respond to our complaint. We were still awaiting their answers that fall.