MOVE panel airs its findings | 1986

This story appeared in The Inquirer on March 7, 1986.

The most dramatic moment of the MOVE commission’s private deliberations came Feb. 22 and, typically, it came in a debate over a single word.

It was the sixth of the commission’s eight closed-door meetings, the last of four daylong Saturday sessions. The findings of fact were virtually complete. All that remained was for the commissioners to make one last stab at resolving a few differences that had proved irresolvable.

The argument was over the subject of excessive force, and the word in question was unconscionable. A draft in front of the commissioners that day used the word to describe the firing of 10,000 rounds of ammunition at the MOVE house during the morning assault.

As had often been the case in these meetings, the prime adversaries were two eloquent attorneys, Bruce W. Kauffman and Charles W. Bowser.

Kauffman, 51, a former state Supreme Court justice, wanted the word deleted. He argued that it was wrong for the commission to make a judgment on whether the force used by police was excessive. There was no doubt, he argued, that police had the right to use deadly force once MOVE fired at them. Besides, he said, there was no need to address the issue, since there was no compelling evidence that police gunfire killed anyone.

Anyway, who was to say how much force was “excessive,” let alone ’'unconscionable”? Kauffman said he would agree to a simple recitation of the force used without any judgmental adjectives. If the other commissioners wanted a unanimous report, they should go along with him.

But Bowser, 55, a former mayoral candidate, held his ground; this, he said, was important. The real subject at hand, other commissioners recall him saying, was racial prejudice.

He said, they recall, that everyone in Philadelphia knew the long history of incidents involving the police and minority groups. They recall him using much the same language he used at one point on television yesterday — that the language in question only said “what thousands of Philadelphians already feel and know about this tragedy.”

Bowser said there would be no compromise on unconscionable. And he had the votes.

This was not the first time the subject of racism had come up in the deliberations. It has been discussed explicitly on several occasions, several commissioners recalled later, and it had been implied on many more. But this time, the discussion took a different tack.

This time, the chairman, William H. Brown 3d, spoke up.

“I suggested we could not duck the issue of racial prejudice,” said Brown, 58, the former chairman of the federal Equal Employment Opportunity Commission. “I said we wouldn’t be doing our jobs if we did. I thought we had to address it head on. That was my position.”

Brown recommended that the commission draft and adopt a specific finding of fact — which eventually became a “comment” — on racism. Bowser quickly voiced his agreement, and so did several others.

Until that moment, with the report almost finished, there had never been any language on racism; the language was formally adopted two days later, on the evening of Feb. 24.

“It came late, because it was something we all saw lurking out there but we wanted to get other items out of the way,” M. Todd Cooke, 66, vice president of PSFS, recalled in an interview yesterday. “Bill Brown said this — he and other commissioners, and I include myself in that group. We felt as we worked through the report, as we put the conclusions to bed, we increasingly felt that there was something hanging out there we couldn’t ignore.”

By all accounts, this episode was the exception. There were few dramatic moments in the roughly 45 hours that the 11 members of the MOVE commission spent in the deliberations that culminated in the report released yesterday.

In interviews conducted over the last two days, commissioners said repeatedly that considerable consensus for strong criticism of city officials existed inside the “jury room” from the outset, that tempers flared less often behind closed doors than they had under the television lights, that debates were more often about wording than substance.

There was, they agree, no epiphany, no fundamental turning point, no threatened walkout, no ashtrays hurled across the conference, no single speech without which the commission might have headed in a different direction.

Nor, they say, was there ever any real possibility of a “whitewash,” of a report that would point blame at everyone but the mayor. Even so, several commissioners said the report apportioned blame among top city officials; they said they were surprised that many readers of the report have suggested it reads like an indictment of Goode himself.

“A great overwhelming consensus was always there for the eventual findings,” said one commissioner.

And, they say, there was no one commissioner who can claim to have rammed his vision of the truth down everyone else’s throat.

“Everyone participated,” said the Rev. Paul Washington. “It really was a committee of the whole.”

For the 11 members of the Philadelphia Special Investigation Commission, the 18 days of public hearings, seen virtually gavel-to-gave on live television, turned out to be one of the most intense experiences of a lifetime.

They were a most diverse group. They were eight men and three women; six blacks and five whites; five lawyers, three clergy, a bank executive, a former FBI agent and a community activist.

And they knew that what mattered most about them to thousands of Philadelphians was that they had been chosen for the task by one of the men they were to investigate — the mayor.

From the first day, Oct. 8, to the last, Nov. 6, these 11 private citizens virtually had no private lives. Eight hours a day, four days a week, they shared a sort of public imprisonment.

They spent their time as captives of the bright lights on the stage at WHYY-TV — or crammed together during luncheon breaks and strategy sessions in the station’s “green room,” which was actually painted black.

After a month of hearings, the commissioners, who were not being paid for their time and effort, were exhausted, mentally and physically. In the final sessions, tempers flared on several occasions. They were eager to return to long-neglected careers and families.

So there was considerable relief all around when the commission decided to delay its deliberations until the middle of January.

“The time off was very important,” said Charisse R. Lillie, 34, a lawyer. ’'If we’d started right after the hearings, we’d have finished right then. We wouldn’t have accomplished anything.”

Time off, though, was time wasted. After Thanksgiving, the commission staff circulated a five-page questionnaire to each commissioner, asking their viewpoints on the major issues the report would have to confront.

Once the questionnaires were returned, the commission’s deputy staff director, H. Graham McDonald, then conducted lengthy face-to-face interviews with each commission member.

McDonald was also developing a format for the report. His wife, who works with a firm of consulting engineers, suggested he take a look at her firm’s reporting format. He did, and was sold. There would be a series of conclusions, supported by facts. Each finding would be separate and discrete.

“You look at the 11, very different people with very different viewpoints,” he said. “It is remarkable that they came up with 97 percent agreement on what are not, in my mind, wishy-washy conclusions. My hope is the format made that possible. By focusing on discrete items, there was not endless argument about the punctuation and language of a long narrative.”

By early January, with the interviews behind him, McDonald and the staff writer/public relations man, Emerson B. Moran, began to formulate the first draft findings of fact — the basic conclusions about what had happened on Osage Avenue. The hope was that the staff would be able to distill it all into a starting point that would not be too far off from an ending point.

At 9 a.m. on Saturday, Jan. 18, when the commissioners gathered in a 39th- floor conference room at 1600 Market St. for their first meeting in 10 weeks, no one knew exactly what to expect. But there was a hope that the process might take only three or four sessions.

As it turned out, it took eight.

Most of the time, they met at the commission’s headquarters, in the offices of Brown’s law firm, Schnader, Harrison, Lewis & Segal — in a conference room with a panoramic view looking east down Market Street and off toward the Art Museum and Fairmount Park beyond. Twice they gathered at Kauffman’s firm, Dilworth, Paxson, Kalish & Kauffman at Broad and Samson Streets, and once at the firm of commission member Henry W. Ruth Jr., Saul, Ewing, Remick & Saul at Center Square West.

In the process, they rewrote the report from top to bottom.

“McDonald and Moran were like the law clerks,” Lillie said. “They wrote the first draft, but when it was finished, it had our stamp on it.”

Several commissioners, including Cooke, said that the report, in its earliest incarnations, contained “a fair amount of pejorative words that we didn’t think were appropriate.”

Added Kauffman: “We literally considered the report not only paragraph by paragraph but line by line, word by word, comma by comma.”

The speed of the deliberative process — or the lack thereof — was the result of the care with which the commissioners chose their words. Said one commissioner, “On some findings, we spent two hours just on the heading; sometimes, we spent two hours on a word.”

They started at the beginning, with finding number one, and moved along point by point. Brown would begin the discussion of each finding by going around the room, calling each commissioner by name and asking for observations.

By all accounts, Bowser and Kauffman were the most outspoken; sometimes, it seemed as if they felt duty-bound to dispute one another. One commissioner called their rivalry “an interminable ego battle.” According to some, Bowser was the less assertive of the two.

“Charlie didn’t really push that hard because he had already written his opinion before we even started,” said Lillie, referring to Bowser’s 64-page concurring opinion. “Bruce seemed to be writing his dissent as he went along. . . . A lot of effort was given to trying to bring him in.”

To the non-lawyers among the group, the power of two men’s advocacy was overpowering, at least early on.

“At first, I felt a little intimidated,” said the Rev. Audrey F. Bronson, 56. But, in time, she and the other non-lawyers came to feel that they served as a “sounding board for the legal opinions. If we weren’t there, the report would have had so much legal jargon that the average person couldn’t understand. In the end, I think I held my own.”

Julia M. Chinn, 46, who had been the most quiet commissioner in the hearings, kept a similarly low-profile in the deliberations.

“And yet Mrs. Chinn was very effective,” said one comissioner. “The chairman (Brown) was very effective in making sure everyone made a contribution. He was very judicious, very proper in every way. You had a lot of strong people in there who didn’t always agree. He would stroke egos when egos needed to be stroked. And he would push forward those who needed to be shoved from time to time.”

No identifiable factions developed, the commissioners said. There was Bowser, and there was Kauffman, and there was everyone else.

“It was a little bit like the deliberations of a jury,” said one commissioner. “You had 11 people there from all different walks of life, taking on a task that none of us ever thought we would have to take on. There was no animosity.”

Whenever it became apparent that a finding was generating a debate over more than mere language, it was held over for discussion at a subsequent meeting. And although the commissioners did find consensus on “97 percent” of the report, there were areas of real disagreement.

Although some commissioners’ memories are hazy on this point — and some simply refuse to discuss the subject in such detail — the first major disagreement came on the events in the alley.

The question before the group had several elements: What did the commissioners think happened behind the burning MOVE house about 7:30 p.m. on May 13, and did they believe it strongly enough to put it in writing?

Did police shoot at a group of MOVE members as they tried to escape, thereby causing them to turn back into the inferno? That was the testimony of Michael Moses Ward, the boy known as Birdie Africa. Or did police never fire their weapons? That was the testimony of the police who had staked out the alley.

From the outset, it became apparent that the majority believed Birdie. The gut reaction was that a child simply does not lie about such things.

Bowser pointed to what he considered corroborative evidence — the testimony of two firefighters, Vietnam veterans both, that they heard automatic weapons fire from the alley that evening. And a police detective, William R. Stephenson, had testified that he had overheard Sgt. Donald R. Griffiths say two days after the confrontation that he had shot a MOVE member. (Griffiths denied that and said his words had been misunderstood.)

Kauffman, knowing he was in the minority, argued that Birdie’s testimony, as haunting as it was, was hearsay. The terrified boy, according to his own testimony, had been crouched down inside the basement when one of the adults had ventured out, then come back in and told him of the gunfire. It was hearsay, Kauffman said, pure and simple.

“There was no direct testimony from anyone who saw gunfire fired by any policeman in that alley,” Kauffman recalled arguing, saying that he would have agreed with a finding that no conclusive statement could be made on the events in the alley.

“The response from the others was, ‘I believe the police fired,’ " Kauffman said. “They didn’t give me the time of day. People were not interested in what I was saying.”

At least a few were interested. By several accounts, Msgr. Edward P. Cullen, 53, seemed sympathetic to Kauffman’s view; some expected he would join the former justice in dissent. And Cooke had doubts as well.

“I might have preferred to see that finding read, ‘There is conflicting testimony that police gunfire prevented . . . ,’ " he said yesterday. “I think that would be a slightly more accurate statement. But a number of commissioners felt very strongly on this point. . . . I was willing to accept phrasing which would not be my first choice.”

Some did feel very strongly. Father Washington, 63, had been on the scene on May 13, and he was convinced he had heard gunfire from the alley. On the day of the commission’s most thorough discussion of the alley, however, he was out of town. Upon his return, he said, he immediately called Bowser to determine the outcome of the debate. He was pleased.

“If the question of gunfire had not been raised, there would have been a dissenting report (from me),” he said.

In addition to the debate over the alley, there was considerable debate on the question of excessive force, a debate that produced the comment on racism. And, in turn, there was considerable debate on that. In Kauffman’s view, those three issues — on which he dissented — are virtually one and the same.

“They’re all part of a mind-set, the feeling that racial prejudice was somehow responsible for what happened,” he said. “They (the commission majority) believe the police have a racial prejudice against black people. They’re saying that’s why they know that police shot at Conrad Africa and why police used ‘excessive’ force. My position is that it was unfair to criticize the rank-and-file police who didn’t ask to be there.”

Another subject that arose in the commission’s final hours of deliberations was what came to be the last two paragraphs of the report. Like the subject of racism, the question of what to say about the top decision-makers from May 13 who are still in office, namely Goode and Richmond, was out there lurking all the time; eventually, it had to be addressed.

“It was never a question of whether the mayor should resign,” Father Washington said. “It was, instead, should we go beyond the report, and why. We ultimately could not find a good enough reason to do it.”

Some commissioners found that the report’s premature disclosure — a virtually complete final draft was obtained by The Inquirer and published Sunday and Monday — soured them a little on the experience. But most considered it time well spent.

“We spent an awful lot of time together,” said Lillie. “I feel like I’ve made some friends for life.”

Contributing to this article were staff writers Craig Stock, Christopher Hepp, Marc Kaufman and Frederic N. Tulsky.