AMERICAN JUSTICE ON TRIAL. Lise Pearlman
in the country . . . You cannot understand the Huey Newton [trial] or the campaign against the Black Panther Party without really getting the feeling that the whole country was coming apart; that there really could be a revolution . . . certainly could be an insurrection of black militants . . . with weapons . . . in the streets of America. And so, many people took a look at the Black Panther Party and were terrified of it; others were inspired by it. . . . Who knew? If he was somehow acquitted of these charges [maybe] he would emerge from jail like some kind of militant Nelson Mandela.
Indeed, as demonstrators called the world’s attention to Newton’s prosecution, observers of the trial got far more drama than they expected. The two sides painted starkly different scenarios of what transpired — murder or self-defense? What seemed an open and shut case to mainstream reporters quickly proved otherwise. The jury sat spellbound when Newton turned the packed courtroom into a lecture hall on racism in America. They paid close attention when the defense produced several African-American men from West Oakland who attacked Officer Frey’s character by describing how abusive and racist he had been when arresting them for minor offenses. The jury had a choice: to accept prosecutor Lowell Jensen’s methodical case against a cop-hating revolutionary who gunned down a police officer making a routine traffic arrest, or Garry’s passionate closing argument comparing Frey’s behavior to the Gestapo tactics of the Chicago police, just seen on television bashing heads at the 1968 Democratic Presidential Convention.
The political defense that Newton and his leftist lawyers mounted became the cornerstone of the Panther Party’s recruiting efforts. Newton’s older brother Melvin Newton, now the retired Chair of Ethnic Studies at Merritt College, witnessed that trial. He marveled as his brother turned the tables and put America itself on trial for its history of racism. At the time of Huey’s arrest, the Panthers were few in number and most of them were in jail as a result of their bold Sacramento escapade. The Party even lacked an office. Melvin Newton believes to this day that, had it not been for Huey’s widely-covered murder trial, the Black Panther Party would likely have disappeared within a year of its formation. Instead, it expanded rapidly, with branches popping up across country, prompting J. Edgar Hoover in September 1968 to declare the Panther Party the number one internal threat to national security — replacing the late Dr. King.
Since the escalation of the Vietnam War in 1965, the New Left Students for a Democratic Society (SDS) had played a central role in galvanizing national student revolt. SDS grew to over 100,000 members as it led successful efforts to greatly expand the “Stop the Draft” Movement. Sitting in his prison cell since the late fall of 1967, Newton became a heroic symbol of oppression not only to young blacks across country, but to white student activists in SDS and other anti-war organizations. Both the New Left and liberal college students alike admired the Panther Party’s vehement opposition to the war and racist policies at home. “Free Huey” buttons and posters quickly spread from Bay Area protesters to hundreds of thousands of others across country then railing against the establishment. By the spring of 1969, student anti-war demonstrations had erupted at 300 college campuses amid thousands of protests nationwide.
In the summer of 1969, the most militant members of SDS split off, calling themselves the Weathermen. They incited unprecedented attempts to interfere with national commerce by acts of arson, explosions and violence reported almost daily in the media. J. Edgar Hoover focused COINTELPRO on dismantling the Weathermen and the increasingly fractious remaining SDS members. By the year’s end, the Weathermen went into hiding to continue acts of guerilla warfare as the Weather Underground while SDS officially disbanded. In the meantime, with greater ferocity, the FBI was targeting the Panther Party for extinction. By 1969, COINTELPRO agents had infiltrated the Party across country; they ratcheted up acts of sabotage against branch offices of the Party. At the FBI leader’s direction, agents made sweeping arrests, and, in December of 1969, orchestrated an armed invasion of both the Party’s Chicago and Los Angeles offices. Ostensibly, it was just Chicago police who killed Chicago Panther Party leader Fred Hampton in the predawn raid, but the highly suspicious circumstances raised alarms among both the conspiracy-minded Left and a growing number of mainstream Americans who considered respect for constitutional rights the hallmark of our democracy.
Then, in April 1970, national focus turned to the tens of thousands of demonstrators descending on New Haven, Connecticut, from across the country to protest Panther Party Chairman Bobby Seale’s upcoming murder trial on charges his supporters believed to be politically motivated — just as his recent prosecution in Chicago for inciting riots at the 1968 Democratic Convention had been. Seale was the eighth co-defendant in the internationally-followed Chicago conspiracy trial prosecuted by the federal government to jail leaders of the growing anti-war effort. History buffs know it as the Chicago Seven trial because Judge Julius Hoffman had Seale bound and gagged for backtalk and ordered that Seale be tried separately from the seven other defendants. But first, Seale would be tried for allegedly ordering a murder while passing through New Haven on a speaking tour.
Yale had never seen such activism on campus as that in opposition to the upcoming Seale trial. The instigators were anti-war Youth International Party (“Yippie”) leaders Abbie Hoffman and Jerry Rubin, joined by SDS leader Tom Hayden and other “Chicago Seven” defendants, whose own circus of a trial had just ended. In response to the Yippie-led pilgrimage to New Haven to protest the prosecution of Bobby Seale and New Haven Panther leader Ericka Huggins, President Nixon mobilized armed National Guardsmen from as far away as Virginia. J. Edgar Hoover sent agents provocateurs.
On April 15, 1970, police had confronted protesters and vandals at Harvard Square in Cambridge, resulting in extensive damage and hundreds of people injured. In an effort to defuse the situation in New Haven to prevent a repeat of what happened at Harvard, Yale’s President Kingman Brewster decided to shut down the Ivy League university for a week of voluntary teach-ins. Brewster then told the faculty, “I am appalled and ashamed that things should have come to such a pass in this country that I am skeptical of the ability of black revolutionaries to achieve a fair trial anywhere in the United States.”27 His remarks created a storm of controversy that instantly put the Mayflower Pilgrim descendant on President Nixon’s growing “enemies list.”
Although the approach at Yale won praise in some quarters as a model for incorporating the Panthers into peaceful college protests,28 angry editorials from conservative papers throughout the nation called for Brewster’s resignation for daring to voice skepticism of the American justice system. Articulating the opposite concern, Los Angeles Police Chief Ed Davis viewed the national situation in the same dire light as did J. Edgar Hoover. Testifying before a Senate committee, Davis asserted, “we have revolution on the installment plan . . . going on every day now.”29 But Brewster considered something far greater to be lost when Americans rationalized the abandonment of their core values as a society. He echoed Yale Law School Dean Eugene Rostow’s reflections eight years earlier: “The quality of a civilization is largely determined by the fairness of its criminal trials. . . .”30
So, was Brewster’s skepticism justified?
While under intense pressure from the media and polarized political factions, a trial judge, prosecutor and jury did their best to provide a fair trial to a black revolutionary in the summer of 1968. People v. Newton involved one of the most scorned revolutionaries of his day in an extremely volatile and bloody era. Was he guilty of murder as charged, or set up for a failed police ambush? By the late sixties, juries in mixed-race communities were ready to consider either possibility.
The objective of Newton’s innovative defense team was to seat as many women and minorities on the jury as possible, recognizing they would likely be most open to his side of the story. The defense lawyers broke new ground in eliminating potential jurors for bias and wound up seating — with the prosecutor’s agreement — seven women and five men, including four minorities. The defense tactics were captured in a handbook that soon became criminal defense lawyers’ “Bible” for jury selection for minority defendants nationwide.31
What did that diverse Oakland jury do with the prosecution claim of a police officer martyred by an itchy-fingered black revolutionary? How did they