Sudden Impact

In the 1969 Days of Rage, antiwar radical Brian Flanagan and city lawyer Richard Elrod, collided, changing their lives and creating an indelible image.

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Elrod hoped the event would be peaceful, though nothing in the preceding days had suggested that would be the case. Meanwhile, as if the pall of tension already hanging over the city weren't enough, a police official, the head of the Chicago Police Sergeants' Association, sounded an ominous warning: "SDS has declared war on the Chicago Police," he said, according to Weatherman's New Left Notes. "From here on it's kill or be killed."

That Saturday morning, as a hard-core group of about 30 of the Weatherman swelled to a 300-strong collection of students, hippies, and anarchists, John Jacobs, a Weatherman leader, leaped onto the pedestal of the destroyed Haymarket statue and tried to rally his troops. Wearing a red football helmet and black leather jacket, "JJ" didn't mince words. "‘We'll probably lose people today,'" Flanagan recalls him saying. "When I heard that, I thought, Oh, my God." Jacobs continued by saying, "We don't really have to win here . . . just the fact that we are willing to fight the police is a political victory."

Having again donned their riot gear-football helmets and athletic cups-and chanting antiwar slogans and glaring at passersby, the protesters set out. They proceeded in a seemingly orderly fashion at first. Then, shouting out war whoops and pulling pipes and sticks from under their coats, they scattered and ran into the throng of downtown shoppers, bystanders, and police, both uniformed and undercover. At one corner, a rock shattered a window at an abandoned railroad office to the cheers of the demonstrators. At another, Flanagan says, "someone threw a cop through a plate glass window." When that occurred, he says, "it was on. The shit was on."

At Madison and State, Elrod watched the mayhem unfold. Protesters charged wildly through the streets, attacking the police and then being repulsed by them. Officers beat on protesters and bystanders alike. Standing next to a reporter from WBBM radio, Elrod relayed intelligence to city officials over a walkie-talkie.

Suddenly, a flash drew Elrod's attention. From down the street, he saw Flanagan running from an undercover officer. "What's going on?" Elrod recalls the reporter asking. "And then I just remember seeing this person and the police behind him saying, ‘Stop! Stop!' So I said, ‘Excuse me,' and put down my walkie-talkie and I took off toward him." Elrod, once a linebacker for the Northwestern Wildcats, streaked through the crowd, headed toward Flanagan.

Flanagan, meanwhile, barreled toward Madison and State. "I was trying to get away from the cops," he recalls. "They were shouting, ‘Stop him!'" He threw a glance over his shoulder at his pursuers. Then, "I see a suit come running across the street."

I have to get on the sidewalk, he recalls thinking as Elrod ran to cut him off. "But suddenly, he takes a flying tackle at me. He hits me right here," Flanagan says, pointing to his hip. The next moments, he says, elapsed as in a projector reel slowed to flashing frames. "With some part of his body, he knocked me sideways," Flanagan recalls. "He didn't knock me down, but into that doorway in the photo.

The doorway, as Flanagan recalls, led to a stairway down. He fell sideways and tumbled into the entrance of the R and R Western Lounge. "It had these swinging doors like a Western saloon," Flanagan says. "I got to my feet, but as I turned around to come back up, in comes a posse of police. They pushed me back down the stairs and started beating me. They were whacking me pretty good, when one guy comes around with the billy club. And either I duck or he misses me, but he hits his friend [another police officer] full in the face. This guy goes down in a heap.

"Now they're not interested in beating the shit out of me anymore, but helping out the guy they hit. The blood's pouring out of him. When I get back upstairs, they throw me down on the ground. That's how I end up laid out in the picture you have."

Elrod's version differs surprisingly little from Flanagan's-except in one crucial regard: Elrod insists that after he grabbed Flanagan around the waist, Flanagan threw him to the ground and began kicking him in the head and neck. "He had these big construction boots on," Elrod recalls, "and he kicked me a few times to extricate himself. I imagine that's what caused the injury I had."

Both men agree on what happened next: Elrod cried out, "I can't feel my legs! I can't feel my hands!" For a few moments, the two men lay there, each immobilized in his own way. For Flanagan, the prospect of getting up and trying to flee seemed futile. "I said to myself, This is a lost cause. This is it. I'll go to jail like everybody else. I'm done. I'm all in." Flanagan was among more than 100 people arrested during the Days of Rage.

Meanwhile, with no precautions taken to make sure Elrod's neck had not been broken, the lawyer was loaded into a police van and rushed to the hospital, an action Elrod believes may have aggravated his injuries. "They had picked me up with my neck bobbling," he says. "Probably the pieces of the fractured vertebrae pierced the dura [the fibrous membrane that covers the brain and spinal cord] and caused near severance of the spinal cord."

--

If the person paralyzed that day had not been a city lawyer, had Weatherman's leadership not seen an opportunity to cash in on a publicity jackpot, the moment captured in that photograph might have faded like a dying cloud of tear gas. As it was, the trial of Brian Flanagan on charges of attempted murder, aggravated battery, felonious mob action, and resisting arrest became the latest cause célèbre in a growing list of high-profile cases against antiwar demonstrators. Just months before, Abbie Hoffman, Jerry Rubin, and six other activists who became known as the Chicago Eight stood trial in a federal courtroom in Chicago on charges of conspiring to incite a riot at the 1968 Democratic Convention. (Their convictions were eventually overturned.) That trial turned into a circus as the defendants battled with the obdurate judge, Julius Hoffman. Had Flanagan kept his original attorney, a Weatherman lawyer from out of state, similar shenanigans might have erupted. Instead, the group retained a brilliant young Chicago attorney named Warren Wolfson, who was after an acquittal, not publicity.

Born in Chicago and having earned both his bachelor's and law degrees from the University of Illinois at Urbana-Champaign, Wolfson grew up in a law-and-order household as the son of a deputy with the Cook County Sheriff's Department. By 1969, when he took on Flanagan's case, he had already made a name for himself in private practice, having defended members of the Black Panthers, as well as several protesters at the 1968 Democratic Convention.

Along the way he had become known both for a tenacious courtroom manner and for a thorough knowledge of how to get things done in a Cook County courtroom during the 1960s. Flanagan marveled at how smoothly Wolfson operated. "I went with him a couple of times to get records," Flanagan recalls. "He knew everybody and knew the ins and outs of how to deal with them."

Wolfson knew that representing Flanagan posed risks to his career. "I made a lot of enemies by taking that case," he recalls. "People thought I was anti-police. But I was just representing a guy charged with a crime, who needed representation."

Getting Flanagan off seemed a long shot given the lack of public sympathy for the defendant and his colleagues. "These kids were disruptive; they had very little couth; they had ripped up the city," recalls the lead prosecutor, Robert Beranek. "They were the antagonists of this thing. So in that sense, we started out ahead of them."

"The mainstream public opinion at the time . . . was decidedly pro-prosecution," lawyer Terrence K. Hegarty wrote in the Illinois Trial Lawyers Association Journal. "There appeared to be overwhelming public anger directed at Brian Flanagan and at what he represented. . . . No observers gave the defense any realistic chance for acquittal."

Where observers saw an uphill climb for Flanagan, however, the city's Democratic Party saw opportunity. The position of Cook County sheriff constituted one of the most powerful jobs in the state, a patronage plum coveted by both parties. Republican Joseph Woods had held the position since 1966, and before him another Republican, Richard Ogilvie, later governor, had occupied the job. As the November 1970 election approached, Democrats saw in Elrod a chance to wrest the office away. Not only did he have solid credentials, but his injuries during the Days of Rage had garnered him enormous public sympathy.

Elrod's neck had been broken during the incident, and he had sustained damage to the C4, C5, and C6 vertebrae in his cervical cord. Pieces of the vertebrae pierced the dura, the fibrous membrane forming the outermost of the three coverings of the brain and spinal cord. Initially, doctors feared Elrod might be completely paralyzed. But after several surgeries and physical therapy, he regained some movement in his limbs. He continued his recovery at the Rehabilitation Institute of Chicago, but he would forever remain quadriparetic-a condition marked by weakness in all four extremities.

Despite the physical challenges, Elrod proved an energetic campaigner. Trading his wheelchair for crutches during public appearances, he took to the stump with a tenacity that surprised even the most optimistic doctors. The upcoming trial, it was expected, would only add to his image as a crippled hero by contrasting him with the ne'er-do-well hooligan-Flanagan. The outcome, it seemed, was a slam dunk.

--

In August 1970, in a cramped courtroom with no air conditioner, the trial commenced. Jury selection took two weeks. The prosecution's case relied heavily on a group of police officers who said that Flanagan had attacked and beaten Elrod. The star witness was Ronald Smith, an off-duty Maywood cop who had attended the march as a moonlighting courier for CBS television. Smith testified that he was trying to subdue a protester when Flanagan leaped from a curb and kicked him. Smith took off after Flanagan.

When they reached Elrod, Smith testified, the lawyer was standing still in front of 56 West Madison Street. Smith said Flanagan ran at Elrod, lifted a two-foot club, and struck Elrod in the head. Both Elrod and Flanagan fell to the ground, he said.

Next up was the most controversial person to take the stand, an eleventh-hour witness named Leason Linzy. A Chicago police sergeant, Linzy was the only person to testify that he had seen Flanagan kick Elrod. He even stood up and demonstrated, performing what Wolfson would later call "a backward kind of toe dance." Wolfson and Flanagan watched, half-amused and half-incredulous. None of the other officers had seen Linzy anywhere near the scene of the collision between Elrod and Flanagan. No photographs or footage showed the sergeant at the march. Yet Linzy testified that he was near enough to see Flanagan kick Elrod.

When it came time to cross-examine Linzy, Wolfson led the sergeant through his story. Then the attorney delivered the coup de grâce. Asking Linzy to look around the courtroom and identify the man he saw kick Elrod that day, Linzy hesitated, looking over at the three men seated at the defendant's table. Two of the men were neatly dressed, with short hair. The third man, sitting in the middle, had longer hair and looked somewhat disheveled. Him, Linzy said. Wolfson, barely able to restrain a chuckle, informed the court that Linzy had just picked out Wolfson's associate counsel, Jeffrey Haas.

The assistant state's attorney, Beranek, felt the trial slipping away. "We knew we had problems," he says now. "But what can you do? If somebody says to me, ‘As I came upon the scene I saw Elrod laying on the ground, and I saw the back of Flan­­agan's shoe crushing Elrod's vertebrae,' what am I going to say? ‘No, you didn't
see that'?"

To minimize prejudice on the part of the jury toward Elrod's condition, members were led from the courtroom when the injured lawyer hobbled on crutches to the witness stand. From there, Elrod testified that the only thing he could remember from the incident was Flanagan's face, then something hitting his head. The next thing he knew, he was on the sidewalk, paralyzed.

Wrapping up its case, the prosecution called Dr. Eric Oldberg. A renowned neurologist who had studied at Oxford University in England before returning to become head of neurological surgery at the University of Illinois School of Medicine, Oldberg provided prosecutors with the kind of gravitas they needed to recover from the inconsistent testimony of the police officers.

Oldberg suggested that Elrod's injuries were the result of a compression fracture caused by a blow-or blows-to the neck. But on cross-examination, Wolfson pointed out a paper written by a neurologist in 1936 stating that there was almost no way a compression fracture could be sustained by a blow.

When Oldberg balked, Wolfson asked if Oldberg knew who had authored the paper. No, the doctor answered. Wolfson, in the kind of gotcha moment usually reserved for bad television courtroom dramas, informed the doctor that the author had been none other than Oldberg himself. To this day, Beranek remembers the air leaving the room. "Oldberg was just destroyed by Wolfson," he says.

Up to that point, the prosecution's case had gone so badly that the defense probably could have won an acquittal without calling a witness. As it was, Wolfson drove more nails into the coffin. He began by calling two people who had happened on the incident, neither of whom had any stake in the outcome. Kirby Smith, a photographer, said he saw Elrodlaunch a flying tackle at Flanagan. He saw no hitting or kicking of any kind afterwards, he said.

Richard Hinchion, an Indiana businessman, had been in Chicago on a shopping trip. He testified that he had a direct view of the incident, from the corner of Dearborn and Madison. He saw the contact, he said. He thought Elrod may have hit his head on the building. No kicking. No hitting.

Then came Flanagan-but not the Flanagan of news pictures, the shaggy-haired militant in construction boots and fatigues. "When Wolfson brought Flanagan into court he looked like an altar boy," Beranek recalls.

"I was dressed to a T," Flanagan says, chuckling. "I had a nice suit. My hair was cut. I was nice to everyone. But my blood was boiling inside." Indeed, Flanagan recalls, "in the pretrial I went off a little. Beranek was ragging on me for something and I snapped back at him, and Wolfson said to me, ‘All right, Brian, here's the thing. You do that during the trial, you just throw everything out. You lose.'"

To keep his own temper in check, Flanagan recalls, he took a tranquilizer. "When I was on the stand I was halfway to cloud nine," he says now, laughing so hard it sends him into a coughing fit. "I had a drink, too. I had a Scotch. It was like getting morphine in the hospital. Nothing was going to get to me. I loved the police. I loved the prosecutor."

--

In his closing argument, quoted in the next day's Chicago Tribune, Beranek warned the jury that an acquittal would signal "an invitation to the SDS and other subversive elements to come here and adjudicate their differences in the street."

Wolfson countered in what many would call a masterpiece of courtroom oration. "Much bitter feeling came out of that day," he told the jury. The "feeling that young people somehow were our enemies, somebody to fear, even hate. I think we have had enough of that. It's time now to heal the wounds, to close that gap, because this is one country and one nation; and a nation that hates its young people has no future."

--

The jury of eight men and four women chose as its foreman Charles Schoenberg, a 63-year-old Republican banker. They deliberated a mere five hours before returning their verdict at 9 p.m. on August 20th: not guilty on all counts. Beranek snapped his pencil. Flanagan, who had handled himself with aplomb throughout the trial, punched the air with his fist. Mortified, Wolfson grabbed his client's arm and yanked it down. Flanagan's girlfriend at the time, Sylvia Warren, let out a whoop. Judge Saul A. Epton, whose brother would later lose a bid for mayor to Harold Washington, tried to restore order. The judge admonished Flanagan and others to restrain themselves until they left the courtroom.

Once outside, Flanagan tore off his brown double-breasted sports coat and raised his fist again in a "power" salute. Then he gave his opinion of Chicago. "I sat in that courtroom for a month," he said. "Law and order in Chicago is a farce. I want to get back in the streets where I can fight. I want to live the way I did. . . . I plan to return to New York. I plan to make love and war."

When reporters asked his reaction to Flanagan's outburst, the crippled Elrod said it showed what type of person Flanagan truly was. "Mr. Flanagan was presented as a clean-cut kid throughout the trial," he said. "But these statements were horrible ones to make. I understand that he espouses violence. I abhor violence. I am a victim of violence."

Elrod added that the verdict "should have no bearing on my qualifications for the office which I seek. . . . I hope it won't make a hero of Flanagan."

This article appears in the December 2006 issue of Chicago Magazine.

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