AMERICAN JUSTICE ON TRIAL. Lise Pearlman
of cohesion of all the things that the labor movement originally started out in the ’30s fighting for.”6
The timing of the breaking story was excellent for gaining leftist political support. The Bolivian army captured legendary guerrilla leader Che Guevara in early October 1967 and executed him just a few weeks before Newton’s arrest. Only a few months before, Berkeley’s community-supported station KPFA broadcasted a daring live interview with Che in South America. Radicals like KPFA station manager Elsa Knight Thompson rushed to champion the cause of Huey Newton as a revolutionary like their martyred hero Che.
Though Garry would immediately proclaim his client’s innocence to the press, the prospects of Newton’s acquittal at that point looked slim to non-existent. When Newton’s arrest for murder hit the front pages of local papers, two totally unrelated police shootout cases were set for trial the following week. Having three local cases involving police shootings in the news at one time was extraordinary. But Newton’s case drew by far the most coverage. The attorneys in both of the other cases told the judge that they needed a delay of their clients’ trials in light of the mounting hostility in the community over Officer Frey’s death. Otherwise, the lawyers expected the jury box would fill with folks ready to throw the book at anyone accused of killing a cop. Although judges generally frown on delaying trials already set, the delays were granted. This underscored what Charles Garry already knew — shooting a police officer is a crime that packs an oversized emotional impact on the entire community. Suddenly everyone feels less safe.
Garry needed to counteract the negative publicity as quickly as possible. He pounced on an opportunity that just got handed to him: a local physician contacted Garry after seeing the newspaper photo of Newton handcuffed to his gurney before surgery. She was flabbergasted that doctors at Kaiser Hospital would allow police to stretch out the arms of a man with a serious abdominal wound. Garry asked Stender to quickly draft a complaint charging Kaiser with medical malpractice. Meanwhile, they obtained the original uncropped photo of Newton on the gurney showing the startled police officer in the foreground. They used that photo on the cover of a new pamphlet their new white allies put together for wide distribution, accompanied by the caption, “Can a black man get a fair trial?”
The lawyers’ stated aim was to get Newton the impartial jury of his peers promised in the Bill of Rights, but never delivered to minorities in practice. The defense brochure also focused on a fair trial. Yet the “Free Huey” chant adopted as the Panthers’ mantra at pretrial hearings focused instead on rousing support for his release regardless of the evidence. Most of Newton’s militant associates assumed he did what he was accused of. The Panthers considered Newton amply justified in killing an oppressor and wanted their leader out of jail by any means available. Many radicals thought Newton had just started the revolution. As Cleaver later wrote: “We all knew that it was coming. When, where, how — all had now been answered. The Black Panther Party had at last drawn blood, spilled its own and shed that of the pigs! We counted history from Huey’s night of truth.”7
A front page editorial in The Black Panther newspaper appeared with a half-page headline “HUEY MUST BE SET FREE!” The article placed the shooting squarely in the context of historic race relations, emphasizing that it occurred in a black ghetto between a black resident and white cops who lived in the white suburbs:
On the night that the shooting occurred, there were 400 years of oppression of black people by white people focused and manifested in the incident. We are at the cross roads in history where black people are determined to bring down the final curtain on the drama of their struggle to free themselves from the boot of the white man that is on their collective neck. . . . Through murder, brutality, and the terror of their image, the police of America have kept black people intimidated, locked in a mortal fear, and paralyzed their bid for freedom. [Newton] knew that the power of the police over black people has to be broken if we are to be liberated from our bondage. These Gestapo dogs are not holy, they are not angels, and there is no more mystery surrounding them. They are brutal beasts who have been gunning down black people and getting away with it. . . . Black people all over America and around the world . . . are glad for once to have a dead cop and a live Huey . . . we want Huey to stay alive . . . we want Huey set free.8
Belva Davis was sure that someone with Huey Newton’s reputation could not shoot an Oakland police officer and expect to get off. “Everyone thought that surely he would be convicted of first-degree murder.” Just a little over six months earlier the media had covered the first execution on Governor Reagan’s watch after Reagan had handily won office as a strong believer in the death penalty. An African-American man named Aaron Mitchell was on death row when Reagan was sworn in, convicted of killing a white policeman in a shootout after Mitchell attempted to rob a Sacramento bar in January 1963. Interviewed the day of his execution on April 12, 1967, the condemned man told reporters: “Every Negro ever convicted of killing a police officer has died in that gas chamber. So what chance did I have?”9 Belva Davis thought Newton had no prayer of a different result.
Davis now faced her own dilemma. Here was “the mild-mannered, piano-playing, opera-loving Newton that I had met” likely headed to the gas chamber. The CBS affiliate where she worked in San Francisco had been the first station to bring on two African-American newscasters. She and Ben Williams talked about who would likely be assigned to cover this story. He was a much more seasoned reporter. She asked him to please volunteer: “This is not a good way to begin a career.” Ben got the assignment to cover the trial and Belva Davis became his relief person.
The defense had already made a formal motion to Municipal Court Judge Buckley to order that Newton stay at Highland Hospital under armed guard, which his family would foot the bill for. They argued it was the only way to keep Newton safe. Judge Buckley had not yet ruled on that motion when the county transferred Newton to a cell on death row at San Quentin Prison. Similar transfers had occurred with a half-dozen or more other prisoners charged with serious felonies earlier that year as a cost-saving way for the county to ensure greater security.
Melvin Newton and his father visited Huey at San Quentin, extremely distressed that he was already on death row. His mother was too upset to come. It surprised them to discover that Huey was actually relieved to be left in isolation to recover peacefully from his surgery. But he told them that, whenever he was taken from his cell, a guard would lead the way to announce “Dead man walking” and another guard would follow behind him. Huey had been taken aback, but soon learned this was the protocol for every prisoner on death row. His family found it shocking — months before any trial, the justice system was treating Huey as if he were simply awaiting execution. The defense team vigorously objected to him being left there until trial. A few weeks later, the sheriff transferred Newton to a jail cell in the courthouse on the shores of Lake Merritt.
To bring Newton to trial, the prosecutor had alternative paths he could pursue: convening a grand jury or conducting a preliminary hearing in municipal court. A preliminary hearing would entitle Newton’s counsel to cross-examine the prosecutor’s witnesses in open court. In contrast, appearances before the grand jury were confidential. The defendant could not have counsel present. Grand juries were (and are) notorious for doing the prosecutor’s bidding — they only hear one version of events. Not surprisingly, Lowell Jensen took the case to the grand jury. It had the added benefit of avoiding a media circus. Ten years later, the California Supreme Court ruled that choosing a grand jury provided the prosecutor with such a tactical advantage that defendants should have the right to ask for a preliminary hearing after an indictment is issued. In 1990, prosecutors went to the voters and won a change in the Constitution, taking that right away.
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