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PEOPLE v. NEWTON
THE REAL TRIAL OF
THE 20TH CENTURY?

=) 4bs)a
PEARLMAN
 Digitized by the Internet Archive
In 2022 with funding from
Kahle/Austin Foundation

https://archive.org/details/skyslimitpeoplevO000pear
Lise Pearlman's account of the tinderbox setting enveloping the trial of Huey Newton
perfectly captures how much can be at stake for an entire community—even a
nation—in a single trial and the exceptional role played by twelve everyday men
and women we trust to decide each case. For those, like myself, who recall this case
from our youth, Lise has done a wonderful job in both capturing a movement and
its historical context. But anyone interested in history, courtroom drama or criminal
justice should read this gripping account of an all too often forgotten chapter of the
20th Century. Barry Scheck, PROFEssOR OF Law, BENJAMIN N. CARDOZO
SCHOOL OF Law, Co-DIRECTOR, THE INNOCENCE PROJECT

I was born in Oakland a generation before the mass migration of African-American

families to the Bay Area from the South during World War II. I later experienced the
highly polanzing 1968 prosecution of Black Panther Huey Newton. Lise Pearlman
has written a powerful account of both that tral and its place in our country’s
political history. I truly believe that had Newton received a death sentence, we would
not have Obama in the White House today. Read this wonderful book.
Morrie Turner, AWARD-WINNING CREATOR OF
“WEE PALS,” THE FIRST INTEGRATED COMIC STRIP

Lise Pearlman’s book about the trial of Huey Newton captures the tumultuous times,
the personalities, the fighting defense lawyers, including Charles Garry, in a way that
makes it eminently worth reading. Garry’s jury selection dealing with race was one of
the best pieces of trial work done by anyone. Loved the book.
James Brosnahan, SENIOR PARTNER, MORRISON FOERSTER,
RATED AMONG THE TOP 30 TRIAL LAWYERS IN THE U.S.

I began my long career as a criminal defense lawyer in the mid-60s in Oakland,

California and witnessed many of the legal events Lise Pearlman describes. I find
her account of the 1968 Newton murder trial and its political context accurate
and fascinating. Fans offamous trials will thoroughly enjoy this fast-paced, well-
researched book. If “THE” trial of the 20th century can be measured, her argument
for People v. Newton heading the list ws a strong one.
Penny Cooper, MEMBER OF THE STATE BAR OF
CALIFORNIA TRIAL LAWYERS HALL OF FAME
Ti
THE SKY’S
THE LIMIT
PEOPLE v. NEWTON
THe REAL
TRIAL OF THE 207" CENTURY?

CTO)

LISE PEARLMAN

BERKELEY, CALIFORNIA
 Copyright © 2012 by Lise Pearlman

PAPERBACK:
ISBN 13: 978-1-58790-220-8
ISBN 10:1-58790-220-6
Library of Congress Control Number: 2011926517

E-BOOK
ISBN 13: 978-1-58790-185-0
ISBN 10: 1-58790-185-4

All rights reserved under International and Pan-American Copyright Conventions.

No part of this book may be used or reproduced in any manner whatsoever without the
written permission of the Publisher, except in the case of brief quotations embodied in
critical articles and reviews.

Cover photos of the Panthers © Ilka Hartmann 2012

Front: “All the leaders are in jail” Left: Posters of Huey Newton, Center
and right, Eldridge Cleaver;
Back: “Huey Newton at the press conference after his release”
with his lawyer, Fay Stender, behind him.

Author photo © 2012 Victoria Friend

Alameda Courthouse Photo © 2012 Lise Pearlman

Printed in the USA

REGENT PRESS
Berkeley, California
www.regentpress.net
[email protected]
 DEDICATION
This book is dedicated to the memory of
Ed Johnson, Leo Frank, Joe Kahahawai, Bruno Richard Hauptmann,
and all other defendants whom our system ofjustice has grievously failed.
Hopefully, the lessons from our past will make similar outcomes
increasingly less likely as we go forward in the 21" century.
 ELDRIDGE
CLEAVER
<— cna
10d
@ 06 ZI O1lRNUR uMOlg
 FOREWORD

Talking shit is the iron in a young nigger’s blood.

ELDRIDGE CLEAVER

he FBI could not help but take notice when militant

black leaders converged on Oakland, California, from
all across the nation in mid-February 1968 to meet with
10,000 local activists. It was a fund-raising birthday party for Huey P.
Newton, the Black Panther Party’s Minister of Defense. For almost a year,
the Panther Party’s popular biweekly newspaper featured Newton seated
on a wicker throne with a rifle in one hand and a spear in the other. Now
the empty throne stood in for Newton. The honoree paced back and
forth in an isolation cell in the Alameda County
jail just a few miles to the
north. Newton was charged with murdering a police officer, wounding
another and kidnapping a bystander at gunpoint—all while on parole
that prohibited him from even carrying a firearm.
Most people gathered in the Oakland Arena on February 17, 1968,
expected the twenty-six-year-old, self-proclaimed revolutionary to be con-
victed and sentenced to death for shooting the officer. Militant Malcolm X
disciples joined white radicals and nervous local black community mem-
bers on common ground—a rally to raise some of the anticipated $100,000
defense costs for the Newton murder trial. His lawyers cultivated grassroots
support to prevent the outspoken critic of police brutality from going
to the gas chamber. Comrades like Panther spokesman Eldridge Cleaver
did not believe the pretrial publicity portraying Newton as a victim, but
thought it useful propaganda; while conservative and mainstream newspa-
pers denounced Newton as a cop killer, his militant followers celebrated
Vill THE SKY’S THE LIMIT

the shooting death of a racist “pig.” For many of them, his guilt was never
in question, but it didn’t matter; in fact, some considered the shooting a
long-awaited signal from the revolutionary leader.
The air crackled with anticipation as a capacity crowd poured in for
an experience of a lifetime. The featured speakers headed the Student
Nonviolent Coordinating Committee (“SNCC”). Despite keeping the
name, SNCC had turned its back on peaceful protest in 1966. The rally
speakers included the incendiary H. Rap Brown, “black power” champion
Stokely Carmichael, and SNCC organizer James Forman. By February of
1968 the chant “black power” had taken hold as “both a rallying cry and a
declaration of war.”' The theme of this kick-off rally for Huey Newton was
unity, which was why the black separatists suppressed their mistrust and
tolerated the inclusion of leaders of the white radical Peace and Freedom
Party, who had forged an alliance with the Black Panthers. In exchange,
Forman insisted that Panther co-founder Bobby Seale invite Maulana
Ron Karenga, the head of the Organization US (“US”) from Los Angeles,
where the Panthers had just opened a second branch. At the gathering,
the Panthers and US held their bitter rivalry in check.
The Panthers owed some of their countercultural clout to the
fame of ex-felon Eldridge Cleaver, basking in the success of his recently
published, best-selling prison essays—Soul on Ice—and his new platform
as a journalist for the Leftist political magazine Ramparts. A self-educated
Marxist, Cleaver had won parole from prison in December of 1966. By
the time Cleaver walked out of Folsom Prison he had committed him-
self to becoming a professional revolutionary, as he envisioned his idol
Che Guevara: “a cold, calculating killing machine, able to slit a throat at
the drop of a hat and walk away without looking back.”? Huey Newton
impressed Cleaver at first sight in February of 1967. By daring a San
Francisco cop to draw a gun on him in a street confrontation, Newton
proved he was no paper Panther.
Cleaver dubbed the birthday rally “the biggest line-up of revolution-
ary leaders that had ever come together under one roof in the history
of America.”* As Air Force veteran James Forman took his turn at the
podium near Newton’s empty throne, he was similarly inspired. Though
Forman had the least militant track record of the SNCC representatives
Foreword ix

who spoke, he electrified the gathering with his call for retaliation if
Newton were executed: “The sky is the limit.” This did not sound like
empty boasting coming off a year marked by race riots. After two politi-
cal assassinations that spring and growing unrest over the Vietnam War,
the Newton trial became a cause célébre for radical groups and anti-war
activists. In mid-July, when the proceedings began, one underground
newspaper ran a blaring headline proclaiming “Nation’s Life at Stake.”
The article explained:

History has its pivotal points. This trial is one of them. America on
Monday placed itself on trial [by prosecuting Huey Newton]... The
Black Panthers are the most militant black organization in this
nation. They are growing rapidly. They are not playing games. And
they are but the visible part of a vast, black iceberg. The issue is not
the alleged killing of an Oakland cop. The issue is racism. Racism can
destroy America in swift flames. Oppression. Revolt. Suppression.
Revolution. Determined black and brown and white men are
watching what happens to Huey Newton. What they do depends on
what the white man’s courts do to Huey. Most who watch with the
keenest interest are already convinced that he cannot get a fair trial.”

For a full year before the trial began, the FBI’s twenty-year-old Counter
Intelligence Program (“COINTELPRO”) had been focusing on broadly
defined black radicals and various ways to eliminate them. By the summer
of 1968, COINTELPRO was bent on destroying the Black Panther Party,
but the threat of government persecution could not stop the Panthers
from ramping up their rhetoric. Taking his cue from the inflammatory
language of both Newton and SNCC leaders, “El Rage” Cleaver challenged
the government to instigate a second American revolution. In early July of
1968, the Panther spokesman held a press conference in New York City
predicting open warfare in the streets of California if Huey Newton were
sentenced to death. Cleaver expected the carnage to spread across coun-
try. The day Newton testified on his own behalf, crowds started lining
up before dawn and broke the courthouse doors as they pushed against
each other, vying for access. Gov. Reagan took keen interest in the pro-
ceedings from Sacramento, whileJ.Edgar Hoover elevated the Panthers
to the number one internal threat to the country’s security.
Xx THE SKY’S THE LIMIT

Following Newton’s trial, Panther Party co-founder Bobby Seale faced

conspiracy charges accusing him ofa leadership role in the battle between
Chicago police and demonstrators that had exploded onto the floor of
the 1968 Democratic Convention. Soon far more serious allegations
confronted Seale. He was extradited to New Haven, Connecticut, for
allegedly ordering the torture and murder of Alex Rackley, a suspected
government plantin the local Panther office. By 1969, the FBI was targeting
members of the Panther Party in nearly eighty percent of 295 authorized
“Black Nationalist” COINTELPRO missions nationwide. Among these
raids was a widely condemned, predawn invasion in December of 1969 by
plainclothes policemen who stormed the apartment of charismatic young
Panther leader Fred Hampton. The police riddled Hampton’s front door
with bullets and killed the twenty-one-year-old community organizer as he
lay in bed. The largely white anarchist Weathermen retaliated by bomb-
ing police cars. To far greater political effect, 5,000 people gathered in
Chicago from across the nation to attend Hampton’s funeral. Reverends
Ralph Abernathy and Jesse Jackson led the eulogies. Jackson proclaimed,
“When Fred was shot in Chicago, black people in particular, and decent
people in general, bled everywhere.”° Just six months before his death,
Hampton had negotiated a truce among the city’s rival gangs, the first
“rainbow coalition” that Jackson would later popularize in his own 1984
historic campaign for the presidency. As reporters revealed cover-ups and
discrepancies in the police account of the Hampton apartment raid, the
Panthers and their outraged supporters launched a public relations cam-
paign decrying governmental persecution and demanded a probe into
COINTELPRO.
In April of 1970, tens of thousands of demonstrators descended
on New Haven, Connecticut, from across the country to protest Seale’s
upcoming trial. The instigators were Youth International Party (“Yippie”)
leaders Abbie Hoffman and Jerry Rubin, joined by other “Chicago
Seven” defendants. They wanted to show solidarity with Seale, who was
the eighth co-defendant in their highly publicized Chicago conspiracy
trial until Judge Julius Hoffman ordered Seale bound and gagged for
backtalk and severed his prosecution from the others. In response to the
Yippie-led pilgrimage to New Haven, President Nixon mobilized armed
Foreword xi

National Guardsmen from as far away as Virginia, who came prepared

to spray tear gas on demonstrators and students alike. Yale’s President
Kingman Brewster sized up the impending confrontation and decided
to shut down the Ivy League University for a week to let students and
professors who were so inclined to take part in voluntary teach-ins. In
comments to the faculty that were quickly leaked to the press, Brewster
created a storm of controversy that instantly put the Mayflower Pilgrim
descendant on President Nixon’s growing “Enemies List.” Angry edito-
rials throughout the nation reinforced Vice President Agnew’s demand
that Brewster resign for daring to say that “I am appalled and ashamed
that things should have come to such a pass in this country that I am skep-
tical of the ability of black revolutionaries to achieve a fair trial anywhere
in the United States.”’
Articulating the opposite concern, Los Angeles Police Chief Ed Davis
viewed the national situation in the same dire light as didJ.Edgar Hoover.
Testifying before a Senate committee, Davis asserted, “we have revolu-
tion on the installment plan . . . going on every day now.”® But that was
Brewster’s point: something far greater is lost when we rationalize the aban-
donment of our core values as a society. Brewster, and those who rallied
to his defense, echoed what Yale Law School’s dean had noted eight years
earlier: “The quality of a civilization is largely determined by the fairness of
its criminal trials... .”” So was Brewster’s skepticism justified?
Under intense pressure, an effort by a trial judge, prosecutor, and
jury to provide a fair trial to a black revolutionary had in fact been under-
taken in the summer of 1968. As Newton’s lead lawyer Charles Garry
questioned his final witnesses, the feisty Leftist knew that most of the
packed courtroom had just seen shocking video footage of Mayor Daley’s
police force in Chicago cracking heads of both demonstrators and main-
stream reporters during the Democratic Convention. Garry referred to
the Chicago debacle in his highly emotional closing argument as another
example of entrenched racism that infected Oakland’s police force as
well. In contrast, prosecutor D. Lowell Jensen tried to sell the jury on
a matter-of-fact account of a dedicated local peace officer murdered in
the line of duty. The city of Oakland seemed to hold its breath during
the four days the Newton jury stayed out over Labor Day weekend. After
Xil THE SKY’S THE LIMIT

two dramatic returns to the courtroom for rereading of testimony and

further instruction, the sequestered Newton jury—led by a black middle-
class foreman—did their best to reach a just result. The outcome greatly
surprised both sides, as well as the myriad outside observers who had
followed every development in the case.
The highly anticipated first-degree murder conviction and ensuing
national conflagration never happened. Why not? What did that diverse
Oakland jury of five men and seven women do with the prosecution claim
of a police officer martyred by an itchy-fingered black revolutionary?
How did they respond to the defense argument that the early morning
shootout was just one more example in a long history of racist police bru-
tality? And why, with the extraordinarily high tension surrounding the
trial, did no urban violence erupt in its wake, as had occurred so often
in the prior year? Even more puzzling, in light of the enormous stakes—
why in the years to come did this particular “trial of the century” slip
from general public consciousness? Why did it wind up all but forgotten
by most experts who make a practice of analyzing such trials? How could
they ignore The People v. Huey P. Newton while writing about trials whose
only claim to fame is that they involved celebrity defendants? Isn’t it time
People v. Newton made everyone's list of pivotal trials of the 20th century?
 CONTENTS

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PART ONE
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1. THE PLAYING FIELD:

SOMETTIMESHENEL EX [Ssh tence ewe ctce ae Cnet de Le eRe orem nE oak Alas 9

2. DEMENTIA AMERICANA:
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3. UNDESIRABLE CITIZENS:
Phe: Murder Trial of Big Bull. Haywood 1i.s5.0. yes cscevs cesveat teens oeriack 8,

4. SHOWDOWN WITH THE SUPREME COURT:

The Contempt Trial of Sheriff Joseph Shipp «.0::::s0s.0060s0000c00000. 76

5. LABOR V. CAPITAL REDUX:

DNeLGS ANQECS: 1 eS TMU DINE CASE! ck ooies snognetessarazavarsinsseknvatveusent 99

6. MURDER BEGETS MURDER:

The Tragic Deaths of Mary Phagan and Leo Frank ................... 107

7. ANARCHIST SCARE:
hes raAlOnSACCOLaAnGEVATI ZEh ee sete ee tre ree eee ee eee 130

8. LEOPOLD AND LOEB:

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9. THE SCOPES MONKEY TRIAL:

The Staged Battle of Evolution v. Creationism ............:::eeee 163
XiV THE SKY’S THE LIMIT

10. EVEN A BLACK MAN’S HOME IS HIS CASTLE:

Pyrrhic Victory in the Sweet Murder Trials ............::::::::1eeeee 180

11. SOUTHERN JUSTICE REVISITED:

The Railroading of the Scottsboro BOYS -ccissesigedventagetentiasoceoe
teens 203

12. THE EXPLOSIVE MASSIE AFFAIR:

Truth: Battles: Raw POWER Se ee eee 214

13. NATIONAL FRENZY:

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14. SHAMELESS HASTE:

The, Rosenberg Espionage: Tita acces cscs secsogengs stapes scones 267

15. DEATH OF INNOCENCE:

Hate Crimes and the Civil Rights Movement ..................::::0000 281

16. BEYOND CIVIL RIGHTS:

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Other Movem eee CE 290

PART Two

LeCEREE THUEY NOW bo ee ee 305

2) THE PANTHERSP ROG Lone ae eae ee ee 313
3° TAKIN CARE OR BUSINESS =) ee eee 323
4° THE DEFENSE TEAM 2.0400 eee 33]
5s WHO DOVOULT RUS het a eee anes 345
Ge FIONKIES RGRSET yee ae 351
72 THE SMELIFOR REVOLUTION 2 ee ee 356
S:. CLIENT OR COMRADEee... see ae re ee oe ee 360
9.“ POWER TO THE PEOPLE «0 ee ee ee 366
10. THE QUEST FOR A JURY OF HIS PEERS .......ccccsssssesessseecesssees 385
I]. -A-MINORITY OF ONES ce ee 41]
Contents KV

12. ON TRIAL — NEWTON OR AMERICAN SOCIETY? .............. 425

13. THE DAY OF RECKONING ARRIVES .000-ccccccccccccssssossscsscceseecsee. 446
ULRAPA
9089 | (mM SONoll Ome ac ee eee 475

PART THREE
l. THE “FREE HUEY CAMPAIGN EXPANDS TO BURSTING .... 487

em SER ra ear Tis ie Sint i ek 539

3. VISIONS OF APOCALYPTIC RACE WAR o0...0.0::ccccccsscsccseseseeee 549
4. TRIPLE JEOPARDY— BLACK, FEMALE, AND COMMUNIST .... 560
5. WATERGATE OVERSHADOWS THE COBRA oo0u---ccccccsccseeeeoees 605
6. DOWNWARD SPIRAL 00occccccccccccecececeseccceccceccecscoessecsesseeesesesesesees 616
7. ACLOSER LOOK AT THE COMPETITION ..00..-.:::cccccccceceeeeee- 646
8. THE PRECARIOUS PATH TO A BLRACIAL PRESIDENT ...... 676

Be MReRRRO Clr see re ee 717

MRRP rt See We et a rer en Oe eed 762

POT ae AIL AEE Re Spe 2S RR CT oe. Sere Ae Te 779

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 INTRODUCTION

You can jail a Revolutionary,

but you can’t jail the Revolution.
e

— Hury NEwTon

n the last decade of the 20" century, Pulitzer Prize-winning jour-

nalistJ.Anthony Lukas captured the essence of what to look for
in evaluating a candidate for “THE” trial of the century: “a spec-
tacular show trial, a great national drama in which the stakes [are] noth-
ing less than the soul of the American people.”' One would expect such
a trial to involve top-notch lawyers wrangling over highly charged issues
that polarize observers. One would also anticipate a packed courtroom,
many hundreds of demonstrators, media from across the continent and
beyond clamoring for press passes, riveting arguments, skewering cross-
examination, some elements of mystery, and dramatic touches includ-
ing, hopefully, a charismatic defendant taking the stand and putting the
victim on trial, leaving serious doubt about the outcome.
A deeply politicized death penalty case that involves countercharges
of racism against the police and prosecution witnesses promises great divi-
sion among spectators. Throw in both counsel receiving death threats
and extraordinary precautions taken to safeguard the courtroom and the
deliberating jury. Assume that hordes of police and National Guardsmen
must be put on alert to quell anticipated riots. Assume that the defendant
heads a militant group viewed by the FBI as the most dangerous threat
to American security, in a year already characterized by political assassi-
nations and widespread urban unrest; that he is media savvy, well-read,
highly articulate and persuasive; and that leaders of other radical groups
2 THE SKY’S THE LIMIT

have already declared that a revolution would begin if he were convicted.

Assume the defendant is already a folk hero capturing the imagination not
only of downtrodden members of his own race but athletes, singers and
songwriters, Liberal professionals, college students and anti-war activists
who have adopted him as a Leftist icon. The 1968 trial of twenty-six-year-
old Huey Newton was just such a case. It well deserves recognition among
the top handful of contenders for American trials of the 20"" century—
perhaps even at the top of the list. Even skeptics should question why the
Newton case has fallen off most conventional radar screens in the past
forty years. Indeed, the absence of People v. Newton from so many recently
circulated lists of the most famous and controversial trials of the 20" cen-
tury speaks volumes, given the media frenzy it created at the time.
Named for assassinated Southern demagogue Huey Pierce Long,
Huey P. Newton was born in Louisiana and raised in Oakland, California.
By the fall of 1967, he and co-founder Bobby Seale and a few hand-picked,
armed associates had been following local Oakland police around
on their beats for many months. Newton and Seale had agreed that
Seale, more than five years older than Newton, should be named Party
Chairman and Newton would take the title of Minister of Defense. They
called themselves the Black Panther Party for Self-Defense because the
panther fiercely defends itself, but only when provoked. After decades of
suffering police abuse, many poor black residents of Oakland’s flatlands
welcomed the political “Ten Point Program” of the Black Panthers. The
Panthers began to hound and shadow the nearly all-white police force,
with Newton pulling out his criminal law book and reading arrestees
their rights. Newton got a kick out of confronting those he considered
racist “pigs,” a term the Panthers popularized.
Students of Leftist philosophy, Newton and Seale modeled their
Ten Point Program on the Nation of Islam’s “What We Believe.” Both
had been inspired by the recent Cuban revolution and the overthrow of
colonial governments in Africa. Newton particularly admired intellec-
tual revolutionaries Frantz Fanon and Che Guevara. At the same time,
unlike traditional Marxists, Newton welcomed other street toughs who,
like him, had a criminal record and a reckless streak—what Communists
called the lumpenproletanat.
Introduction 3

The Panthers had a distinctive black leather uniform, logo, and

clenched-fist salute that inspired a wide array of followers. Who among
those watching the 1968 Mexican Olympics could forget Tommie Smith
and John Carlos, the two African-American track medalists who raised
their fists in a classic “Power to the People” salute and were promptly
banned from the Olympics for life?? The new militant group first grabbed
the international spotlight in the spring of 1967 when an entourage led
by Party Chairman Bobby Seale marched into the California State Capitol
bearing rifles. Following Newton’s directive, they never aimed their guns
at anyone, but their appearance made a bold public statement, challeng-
ing a proposed new law against carrying weapons in public places. Seale
read a proclamation Newton had written, condemning racist colonial-
ism in America’s domestic and foreign policies. That summer of 1967,
the New York Times magazine profiled Newton. The article characterized
him as an alarming new radical leader who promoted anti-establishment
violence. “Every time you execute a white racist Gestapo cop, you are
defending yourselves,” he told the reporter. Anticipating that a time for
revolution would soon come, Newton expressed his willingness to kill
and to die as part of a national revolt.* The Oakland police were already
on high alert. They kept a list of known Panther vehicles and stopped
them frequently. Both sides fully expected a bloody standoff to take
place; it was just a question of when.
Even so, FBI headJ.Edgar Hoover did not yet consider the Panthers
a threat. In the 1950s, the FBI had created COINTELPRO, a secretive
squad of counter intelligence personnel dedicated to destroying radical
organizations. In August of 1967, Hoover instructed COINTELPRO to
focus on Black Nationalist “hate groups.” The Panthers did not surface
on that list at the time. Among other targets, the FBI had been focused
for several years on SNCC and tracing its Communist ties. By the early fall
of 1967, SNCC leader H. Rap Brown faced criminal charges for making
a fiery speech in Maryland in July following urban riots across the coun-
try. In Detroit alone, over forty people had been killed and hundreds
wounded when, a short time later, Brown incited a rowdy audience in
Baltimore: “If America don’t come around, we’re gonna burn it down.”
Rioters set fire to local stores and began a looting rampage. Unrepentant,
4 THE SKY’S THE LIMIT

Brown electrified the press by announcing that America was “on the eve
of a black revolution.”> President Lyndon Johnson grew so concerned
about the escalating urban violence since 1964 that he appointed a blue
ribbon National Advisory Commission on Civil Disorders. In the fall
of 1967, the group began a comprehensive analysis of the bitter racial
divide in America’s cities that resulted in the “Kerner Report,” which
ascribed urban blight directly to white racism.
America was on edge long before the early morning of October 28,
1967, when Newton barely survived a shootout with two policemen in
West Oakland’s red light district, leaving him hospitalized with a bul-
let wound in his abdomen, one policeman wounded and another dead.
Soon afterward, in spite of bitter criticism from local African-American
lawyers, Newton accepted a high-powered team led by two white law-
yers to defend him—radical San Francisco lawyer Charles Garry and his
female associate Fay Stender. The soft-spoken former California Supreme
Court clerk had no prior felony trial experience, but turned herself into
a monomaniacal force of nature on Newton’s behalf. The odd team
worked wonders: Stender’s thorough research and brief-writing skills
honed as an appellate lawyer complemented her Armenian mentor’s
street-fighter-in-the-courtroom theatrics. Garry was famous among mem-
bers of the criminal defense bar for his role in developing California’s
diminished capacity defense to murder charges. He and his gentlemanly
partner Barney Dreyfus were also well known for their longstanding
Communist ties; American Communist Party President William Patterson
offered to raise money to help pay the Garry firm’s legal bills when the
Panthers agreed to accept the white radical as Newton’s counsel.
By the spring of 1968, just before Newton’s trial was first scheduled
to take place, racial tensions had grown to explosive levels. It started on
the afternoon of April 4 when Rev. Martin Luther King, Jr. was assassi-
nated in Memphis, Tennessee. Riots again broke out in cities across the
country. Bobby Seale took a leadership role in keeping the peace in the
East Bay. He brought two vans of Panthers to patrol North Richmond
and to chase looters and vandals off the streets. But Eldridge Cleaver
had other ideas. In Oakland, two days after King’s assassination, Cleaver
led three vans filled with armed Black Panthers on a cruise through the
Introduction 5

flatlands looking for action. The Panther convoy wound up in a bloody

confrontation with local police, which ended with Cleaver limping naked
from a house where he had holed up. Cleaver knew that otherwise the
police might claim he was still armed. His self-conscious companion,
seventeen-year-old Bobby Hutton, emerged clothed behind Cleaver. The
police shot him dead on the street. When they frisked the body, they dis-
covered no weapon. The police arrested Cleaver for parole violation and
accused the Panthers of attempting to ambush the cops; the Panthers
accused the police of Hutton’s cold-blooded murder. The publicity had
the community taking sides and forced a postponement of Newton’s
impending trial. The trial had to be postponed yet again in early June,
days after Senator Bobby Kennedy’s assassination shocked the already
reeling nation.
By the second week of June, Eldridge Cleaver was free again on
bail. The Peace and Freedom Party named him their 1968 candidate for
President, endorsed as well by the American Communist Party—its first
such endorsement in many years. Cleaver and his young wife Kathleen
helped Seale and Hilliard rally thousands of Panther supporters and
anti-war activists to protest the upcoming Newton trial as an attack on a
Movement hero, whom many now viewed as America’s Che Guevara. For
months, long-haired white “honkies for Huey” had joined forces with the
Panthers. As the trial started, far larger multi-racial crowds of Movement
supporters surrounded the courthouse, chanting “Free Huey” and raising
signs that repeated Forman’s angry rallying cry: “The Sky’s the Limit.” The
Newton defense team thrived on all the Movement support. Garry had
embraced from day one the Panther leader’s desire to put four hundred
years of racism in America on trial. That included the Vietnam War, in
which young black men were disproportionally drafted, only to have many
of them return permanently injured, emotionally scarred or in body bags.
By the spring of 1967, SNCC’s bellicose new chairman Stokely Carmichael
— the Black Panthers’ honorary field marshal — had derisively boiled the
war down to: “white people sending black people to make war on yellow
people in order to defend the land they stole from red people.”*
Garry put on quite a show. Like Clarence Darrow, the Armenian
streetfighter had a reputation for never having lost a client to the death
6 THE SKY’S THE LIMIT

penalty. A former tailor, Garry dressed with flair. He had a dazzling court-
room style and an instinct for ferreting out bias—his examination of
potential jurors in the Newton case would later make its way into law
school textbooks. Opposing him was the county’s top prosecutor, future
federal judge Delwen Lowell Jensen, well-known for his thorough prep-
aration and success rate in the county’s most intensely followed and
controversial cases. The Newton trial would be the highest profile case
of Jensen’s career. The case also capped the judicial career of Presiding
Judge Monroe Friedman, one of the county’s most seasoned judges.
Media coverage was intense, with the local daily papers covering every
development. Bay Area television and radio stations broadcasted the
highlights along with national magazines and international papers. Yet
in the extraordinarily volatile year of 1968 the message of black militant
leaders—decrying police brutality and linking it to racism in general and
the quagmire of the Vietnam War—resonated the most with those out-
side the establishment who got their news from the underground press.
The hordes of counterculture reporters who flocked to Oakland to cover
the trial served an audience of impoverished urban blacks, the Old and
New Left, college students, and a growing coalition of war opponents.
These were “the people” Newton was talking about when he proclaimed,
“I have the people behind me, and the people are my strength.”
Of course, the Panthers alienated and threatened far more Ameri-
cans than they attracted to their cause. They castigated Supreme Court
Justice Thurgood Marshall as an “Uncle Tom” and included Rey. Martin
Luther King, Jr. in that same derisive category while he was still alive.
They strong-armed local middle class blacks for contributions, all the
while ridiculing them as part of the hated capitalist structure. But
Newton’s message also inspired a surprising number of black profession-
als. Gilbert Moore, a Harlem-born investigative reporter, covered the
murder trial daily for Life magazine. Moore, the first black reporter ever
hired by Life, experienced an epiphany watching Newton on the stand:
“conditioned by history, both sides blinded by myth and images, moved
by rage and fear . . . each in their own blind way incapable of seeing each
other as human beings . . . was a tragedy in the making.”
Moore soon quit his prestigious job to write a book about the newly
Introduction il

discovered rage inside him that Newton and the Panthers had tapped into. The
Los Angeles Times hailed Moore’s insightful chronicle as “a classic document in
the literature of the black-white experience in the 20" century.”” Twenty-five
years later, Moore’s observations were still deemed equally relevant:

The Panthers represented something new on the American political

landscape. Lionized by the liberal cultural élite, spied on, shot at,
and jailed by the police, they brought hope to some Americans and
frightened many others. Revolutionaries, outlaws, pawns, they were
a cultural bridge between urban street gangs and organized civil
rights groups. They filled a dangerous void. They were the militant,
articulate expression of the anger and aspirations of poor young
black men. That critical void exists as much today as it did in the
late 1960s.'°

When armed Panthers first surfaced in California’s Capitol in early

May of 1967, they caught Gov. Ronald Reagan by surprise. That daring
Sacramento debut increased pressure on the Oakland police to stop
this gang at all costs. By the summer’s end, the local African-American
community had elevated the militant Panthers to heroic defenders, infu-
riating the city’s official guardians of the peace even more. The Panthers
were itching for action. They dogged patrol cars on their rounds. Some
Oakland police were looking to provoke a confrontation, too. Among
them was Officer John Frey, who told the radio dispatcher he was stop-
ping “a known Panther vehicle” one early morning in late October 1967.

KOK KKK

In One Man’s Freedom, Washington super lawyer Edward Bennett

Williams describes how the individual civil liberties we so cherish in the
United States evolved in our criminal courtrooms, where the government
often prosecutes “the weak and friendless, the scorned and degraded, or
the nonconformist and the unorthodox.”'' These guarantees emerged
because so many innocents were wrongly convicted without such pro-
tections and too often paid with their lives. Investigative journalist Mark
Curriden restates Williams’ observation more graphically: “the liberties and
8 THE SKY’S THE LIMIT

prerogatives we so frequently take for granted were written in blood.”!”

People v. Newton involved one of the most scorned revolutionaries of
his day in an extremely volatile and bloody era. Was he guilty of mur-
der as charged, or set up for a failed police ambush? By the late sixties,
juries in mixed-race communities were ready to consider either possibil-
ity. At trial, Newton also benefited from key Supreme Court rulings that
could have changed the outcomes of other high profile trials in earlier
decades.
A member of O. J. Simpson’s Dream Team noted that “The most
remarkable aspect of every ‘trial of the century’ .. . has been the insight
it provides into the tenor of the times in which it occurred. It is as though
each of these trials was responding to some public appetite or civic need
of the era in which it took place.”'* Looking back at pivotal cases from
1901 to 1999, the question remains: which one provides the most insight
into the American 20" century as a whole—which is the real “trial of the
century?”
 iz THE PLAYING
FIELD: Sometimes The
Fix Is In

Every time I turn around,

there’s a new trial of the century.

F. LEE BAILEY

ust as the World Series has always referred to an American

baseball championship (Canadian teams now permitted), when
American journalists promote “the trial of the century” they
generally refer to a trial held in the United States. For this reason, most
lists leave out famous and influential foreign proceedings, such as the
marathon Philippine corruption trials of “the Steel Butterfly” Imelda
Marcos, wealthy widow of dictator Ferdinand Marcos (1991-2011). List-
makers often omit trials for crimes against humanity: the historic Nazi
War Crimes Trials in Nuremberg (1945-46); the 1961 trial of Adolf
Eichmann in Israel; the 1987 filmed French jury trial of Klaus Barbie
(“the butcher of Lyon”); and the televised Romanian court martial of
Nicolae Ceausescu in 1989. Like the 21st century war crimes trials of
Slobodan Milosevic and Saddam Hussein, all of these international trials
drew global interest. The Nuremberg trials trump all the others because
they established the Nuremberg Principles, which separate the customary
horrors of war from inhumane outrages—evils so extreme that the “just
following orders” defense makes civilized people cringe.
But limiting the playing field to America still leaves a formidable
number of choices. Perhaps because of our short public memory,
national reporters never tire of promoting a new “trial of the century”
every few years. The Washington Post once described this exercise as “a
10 THE SKY’S THE LIMIT

traditional bit of American hyperbole, like calling a circus “The Greatest

Show on Earth.’”! Some consider the category a childish game of super-
latives, then favor contests they participated in or covered. Trials, like
professional sports, have spectators—and many trial watchers and avid
sports fans aren’t afraid to reveal their prejudices. Americans are much
more likely to hail a trial as a “trial of the century” if they lived through
the era when the event took place.
Only talented trivia players recall that the 1921-22 San Francisco
rape and manslaughter trials of silent movie megastar Roscoe “Fatty”
Arbuckle ruined his acting career just after the obese comedian had
signed an unprecedented million-dollar contract. Over Labor Day week-
end in 1920—the first year of Prohibition—Arbuckle seldom changed out
of his pajamas as he hosted a three-day drinking binge at San Francisco's
St. Francis Hotel. The revelers included Virginia Rappe, an unemployed
actress in her mid-twenties, who fell violently ill and died a few days later
of a ruptured bladder and peritonitis. When the hotel physician arrived,
another guest, Maude Delmont, told him Arbuckle had attacked Rappe,
which Delmont later repeated to the police.
It looked like an open and shut case against the pie-throwing Keystone
Kop. Hollywood already faced threats of federal censorship for its new
focus on sex as a movie draw. For more than a year, tabloids had been
scandalizing the public with revelations that performers with staid screen
images had private lives rife with drug abuse and adultery. Outraged soci-
ety women demanded that the San Francisco District Attorney’s office
take action to avenge the tragic death of the raven-haired beauty. Newly
elected prosecutor Matthew Brady envisioned a murder conviction
against Arbuckle as his ticket to the governor’s office.
The only problem with targeting Arbuckle was that the allegations
were patently false. The complaining witness, known also as Madame
Black, was a blackmailer and bigamist, incapable of telling the same story
twice. Rappe herself had told the hotel doctor that the shy comedian
had made no advances whatsoever. Rappe did not arrive at the party in
good health as Delmont claimed, but was feeling poorly, with symptoms
similar to prior illnesses. Down and out, she came to borrow money from
her old friend Arbuckle for an abortion—her sixth. Two doctors who
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