◆ SpookStack

Nos. 77-1698, 77-1210 & 77-1370 35 pre-raid and raid activities of the defendants involved in the first conspiracy. Reference to the law of criminal conspiracy suggests that this distinction between the substantive criminal conspiracy and the subsequent concealment of the crime is important. The Supreme Court stated in Grunewald »v. United States, 353 U.S. 391 (1957): “Acts of covering up, even though done in the context of a mutually un- derstood need for secrecy, cannot themselves constitute proof that concealment of the crime after its commission was part of the initial agreement among the con- spirators.” Jd. at 401-02. Thus, in order to prove that acts of concealment constitute a part of the initial con- spiracy, the prosecution must present “direct evidence fof] an express original agreement among the con- Spirators to continue to act in concert in order to cover up, for their own self-protection, traces of the crime after its commission.” Jd. at 404. Absent such evidence, the concealment is independent of the original con- Spiracy; the original conspiracy is not considered ongo- ing simply because concealment of the conspiracy con- tinues. Thus, persons who participate in the concealment are not ipso facto participants in the original conspiracy. , These principles are instructive in analyzing the case presented by plaintiffs. Many of the state defendants are named in plaintiffs’ complaint only for their participa- tion in the post-raid coverup. Without direct proof that an agreement to conceal was part of the original con- spiracy, these defendants should be liable only for damages arising out of the post-raid conspiracy. Defen- dants who are proved to have participated in both the pre-raid and post-raid conspiracies are liable, of course, for damages arising out of both conspiracies. We do not decide now that plaintiffs’ case involves two conspiracies and that liability must be determined on the basis of that conclusion. Plaintiffs’ discovery was hampered unduly by the trial court, see infra, pp. 68- 73, and we cannot be certain that the plaintiffs, given full discovery, would be unable to prove that an agree- ment to conceal the facts concerning the preparation and execution of the raid existed as part of the original conspiracy. And, as we have noted before,