trial
The morning my trial began, on July 15, 1968, in the Alameda County Court House, 5,000 demonstrators and about 450 Black Panthers gathered outside to show their support. Busloads of demonstrators came from out of town and joined the throng that crowded the streets and sidewalks outside the courthouse. Across the street from the building a formation of Black Panthers stood, lined up two deep, and stretching for a solid block. At the entrance to the building a unit of sisters from the Party chanted “Free Huey” and “Set Our Warrior Free.” In front of them, on both sides of the courthouse door, two Party members held aloft the blue Black Panther banner with FREE HUEY emblazoned on it. Black Panther security patrols with walkie-talkie radio sets ringed the courthouse.
The building was under heavy guard. At every entrance and patrolling every floor, armed deputies from the sheriff’s office prowled up and down, and plainclothes men were assigned positions throughout the building. On that first day nearly fifty helmeted Oakland police stood inside the main entrance, and on the rooftop more cops with high-powered rifles stared down into the street. The trial was conducted in the seventh-floor courtroom, a small depressing room kept ice cold throughout the trial. Security was so tight that the courtroom was carefully inspected before every session; everyone, even my parents, was searched before entering. The spectators’ section had only about sixty seats: two rows were reserved for my family; the press had twenty-five or so seats; and the rest was for the general public. Every morning around dawn people began lining up outside for the few remaining places.
Presiding was Superior Court Judge Monroe Friedman, seventy-two years old, dour and humorless. Of course, no one admits prejudice, but Judge Friedman betrayed his in countless ways throughout the trial. Clearly, from the beginning he thought I was guilty, and his sympathies lay with the prosecution. For one thing, he condescended to Black witnesses, speaking to them as if they were not capable of understanding the issues. It was obvious that he was totally unaware of the development of Black consciousness in the past decade. Even his tone of voice was revealing. As the trial progressed, he constantly overruled my lawyer and sustained almost every objection of the prosecutor. Sometimes, when he did not like the way things were going, he looked over to the prosecutor’s table as if inviting an objection, which he would then sustain. On interpretation, he was extremely rigid. Whenever a legal point could not be solved by legal mechanics, he would pass it off as unimportant, thereby leaving it for some higher court to deal with or for some political statement to be made through the legislature. Nothing was considered that was not in the book. He acknowledged that some laws were good and reluctantly followed those he disliked. Never for one moment did I consider him a fair arbitrator.
The most crucial aspect of the trial was the jury selection, and on that first trial day several hundred prospective jurors came to the courthouse. Charles Garry wanted a certain kind of juror, and he faced terrific odds in finding him. For one thing, everyone in the Oakland area had read or seen prejudicial accounts of the shooting. It was difficult to find anyone without an opinion about the case. Then, too, we wanted some Black people. This was a vital issue and, as we learned through our investigations, a formidable hurdle to overcome. Our inquiries revealed that the assistant district attorney and prosecutor in my trial, Lowell Jensen, had developed a system whereby Blacks would ostensibly be on jury panels called for duty but would always be eliminated before they were seated in an actual trial. Under Jensen’s direction whenever a Black was removed from a prospective jury for cause, or through peremptory challenges, he was then returned to the jury panel and called in another trial. That way, it always appeared the Blacks were an active part of the system, even though it was unlikely a Black would ever serve on an actual jury. When my trial began, the routine changed; other district attorneys in the area did not remove Blacks from their jury panels. Therefore, while my trial was in session there were juries in other courts with as many as six Blacks on them.
The Party instructed Garry to use all his peremptory challenges on prospective jurors. In a capital case in the state of California each side is allowed twenty; that is, both defense and prosecution can reject twenty jurors without giving a reason. We gave Garry these instructions to demonstrate to the people that something is wrong with a trial system that defies the right of a defendant to be tried by a true cross-section of his community. We used all our peremptory challenges to emphasize this point. The prosecution did not exhaust all theirs, since it was not hard for them to find their kind of people. (Charles Garry found racism in almost every prospective juror he questioned.)
Selecting the jury took a long time—about two weeks. All in all, three panels of prospective jurors—about 180 people—were questioned before a jury and four alternates were chosen. Out of the nearly two hundred people available for my jury, there were sixteen Blacks, a few Orientals, and one or two Chicanos. The population of Oakland was then 38 per cent Black.
The final jury consisted of eleven whites and one Black. The Black man, David Harper, actually looked enough like me to pass as a relative, although we were strangers before the trial. At the time, he was an executive in a branch of the Bank of America, but he has since become president of a Black bank in Detroit. I wondered why the district attorney did not excuse him from serving. Perhaps he figured it would help his case in the appeals court to have at least one Black on the jury. Also, he had tried to get a safe one. I figured that the district attorney saw Harper as a “house nigger,” a Black bank official who “had it made,” so to speak. They probably thought Harper could be counted on because of his status and his ambition to go further in the white world.
Throughout the trial I studied Harper, trying to get the measure of the man. Would he go along with the madness of the system? With a jury it is always a guessing game. You know the judge and the prosecutor are your enemies and will do anything to keep you down. Every other paid employee in the courtroom, regardless of his color, is a slave to the system. But the jurors are something else. I watched every move Harper made, yet I could not detect where he was, or where he was going. I began to wonder if the fact that he had a good job in a bank gave him satisfaction. I asked myself whether he was so blinded by the crumbs the system offered him that he would go along with the racists on the jury and a corrupt state apparatus to secure his future—or what he hoped might be his future.
These questions went through my mind almost daily as the proceedings crept along. Sometimes, pondering Harper, I found myself paying no attention at all to the boring testimony of the prosecution witnesses, such as the ballistics experts. Not until I took the stand myself and began talking to the jury did I feel Harper knew his friends better than the district attorney had estimated. When I finally testified, I directed my words to Harper. He was my audience. An unspoken bond grew up between us that convinced me he not only understood but he also agreed with me. Only then did I see a glimmer of hope with the jury—he was it. However, I never placed much confidence in his ability to sway the others.
The prosecutor in my case was Lowell Jensen, who later became district attorney of Alameda County. Jensen is a witty and intelligent man and a worthy opponent as far as the law is concerned. He appears to have a photographic memory, and on the basis of legal knowledge alone he is a good lawyer. In my case, he meant to get a conviction of first-degree murder, no matter how far he had to stretch the law, and to that end, he ignored the possibility that there were a number of grounds for reversal and that in time a higher court would decide against the verdict of this trial. A conviction was all he cared about. He knew that if he won his case against me—a person hated by the Establishment—he would be rewarded with fame and rising fortune. What would a reversal matter? A ruling by a higher court would take from two to five years, and by that time he would have achieved what he wanted. My trial was nothing more than an ego trip for him.
Throughout the trial an unspoken “game” or challenge went on in the courtroom between Jensen, the judge, and myself, although a lot of people—especially the jury—knew nothing about it. The jury probably believed that the prosecutor and the judge were honorable men, with only their jobs and justice on their minds. But my lawyers and I understood the undercurrents and intangibles that were always present, difficult as they were to expose. And we knew that if the jury were aware of them also they would see the political nature of much that went on in the courtroom. For example, we surmised from the very start of the trial that Jensen had engineered the racist system by which Blacks would be on jury panels called for duty but eliminated before they could be seated for trial. And we knew that Jensen did not have justice on his mind but wanted victory at any cost to further his own personal ambitions. These were some of the things that made the whole trial scene like a game—a grim game with my life at stake—but a game nonetheless.
In his opening statement to the jury Jensen charged that I had murdered Officer John Frey with full intent, that I had shot Officer Herbert Heanes, and that I had kidnapped Dell Ross. He said that when the first policeman stopped me I had given him false identification, but when the second officer came up, I had correctly identified myself. Then the first officer, Frey, placed me under arrest. He claimed that when the police officer walked me back to his car, I produced a gun and began firing. According to Jensen, I shot Officer Frey with my own gun, which I pulled from inside my shirt, then took his gun and continued shooting. I was charged with shooting Officer Frey five times and Officer Heanes three times. Officer Heanes was supposed to have shot me once. After this, the prosecutor said, I escaped and forced Dell Ross to take me to another part of Oakland.
The most crucial challenge facing the prosecution was to establish motivation for my alleged actions. Jensen claimed that I had three motives for my alleged crimes. First, he said, I had had a prior conviction for a felony and was on probation. Because of this, I knew that having a concealed weapon on my person could lead to another felony conviction if the police officers found the gun on me. Second, they claimed that I had marijuana in the car and that bits of marijuana had been found in the pocket of my pants; this, too, could lead to another felony beef. And, third, they claimed that I had given false identification to the police officer, which was a violation of the law. For these reasons, the prosecutor claimed I was so desperate to escape another felony charge that I killed an officer, wounded another, and kidnapped a citizen. As I said before, the prosecutor was willing to go to any lengths to win his case.
The truth of the matter is that when Frey stopped me, he knew full well who I was, as did every other policeman on the Oakland force, and he tried to execute me in an urban variation of the old-style southern lynching. My attorneys had investigated Frey’s background, and they found a long history of harassing and mistreating Black people and making racist statements about Blacks and to Blacks. Unfortunately for Frey, his habits boomeranged that time. I do not know what happened because I was unconscious, but things did not work out as he wanted or expected them to. I guess he thought that if he could bring me in dead, he would be given a promotion.
The marijuana charge was sheer fabrication. First of all, no member of the Black Panther Party uses drugs. It is absolutely forbidden. Anyone discovered violating this rule is expelled from the Party. Narcotics prohibition is part of the Black Panther principle of obeying the law to the letter. Both Charles Garry and I believed that the marijuana found in the car and in my trousers was planted there by the police. Having been stopped by members of the Oakland police force more than fifty times in the past year, why would I take the risk? Knowing that at any moment of the day or night I was liable to be thoroughly searched and my car inspected, I would never have been reckless enough to carry marijuana, even if I had wanted to use it—which I didn’t. If the matchboxes really were in LaVerne’s car that night, there is no way of knowing how they got there. Dozens of people used her car, many of whom she knew only slightly, since they were friends of friends. But it is far more likely that the police were behaving as usual, leaving out no possibility in their determination to railroad me to jail.
As for being a felon with a gun, I, of course, was not carrying a weapon but had been out celebrating the end of my probation that night. There was no reason for me to have a gun and no reason to avoid arrest on this count. Nor did I consider myself a felon. The original conviction of felony was a complicated one, anyway, going back to the Odell Lee case in 1964. Under California law, the sentence a defendant receives determines whether he is a “felon” or a “misdemeanant.” If he is sentenced to a state prison, he is a felon; a misdemeanant usually goes to a county jail. When I was convicted of assaulting Odell Lee with a deadly weapon, I was sentenced to three years’ probation, a condition being that I serve six months in the county jail. This meant I was a misdemeanant. However, in my murder trial the judge testified that I had been sentenced to the state prison and that then the sentence had been suspended. As a condition of my probation I spent six months in the county jail. Technically the state considered me a felon. In the end, this proved to be reversible error. Although I could have changed my legal status in the courts, I never petitioned because I did not consider myself a felon.
But the prosecution did, and planned its whole case around the point. Not only did they want to show I would commit murder to avoid arrest, but they also wanted to take advantage of the fact that a felon’s testimony can be discredited and he can receive a severer sentence. Despite Charles Garry’s objections and arguments, Judge Friedman ruled that I had been convicted of a felony in 1964, and this charge against me was added to the other three. This question of the Odell Lee conviction came up repeatedly during the trial, since the prosecution needed to establish a motive. Eventually, when I testified, I told the jury again that I had not considered myself a felon. It was actually a ridiculous basis for motivation, since I had dozens of witnesses who saw me out celebrating on the night of October 27—a fact which proved beyond doubt that I had no reason to resist arrest as a felon.
When my trial was just beginning, Eldridge Cleaver put out a leaflet that was widely distributed in the Black community. In it he charged that the police, with murder on their minds, had violated the territorial integrity of the Black community and that I had dealt with their transgression in a necessary way. The leaflet went on to say that Black people are justified in killing all policemen who do this. Behind Eldridge’s message lay the inference that I had killed the police officer, even though I had not.
The leaflet could not have been used against me in the courts. Even so, my family was very upset over it, and they protested strongly to Eldridge. They felt he cared little about me and that he was, in effect, trying to gas me. I told them as gently as I could not to interfere with anything Eldridge or other Party members did during the trial because such actions could not be brought into the legal proceedings. As far as I was concerned, Eldridge was free to write and mobilize the community by any means necessary; I supported him in that. Issuing the leaflet was a political act using the trial to heighten the consciousness of the community. I was willing to go along with Party actions in the interest of educating the people, mobilizing the community, and taking the contradictions to a higher level. After that my family did not interfere with political activities.
The trial caused much grief and worry to my family. They wanted to save me, but I felt death was ahead, and my main concern was the community. Because my family continued to hope, I could not tell them this, however, and I was very moved by their faith and support. In fact, the only strain I felt during the trial was the pull between trying to comfort my family and carrying out the political activities I knew were necessary. It has all worked out for the best now, but at the time it was a tremendous weight on my family, and on me.
Another matter of concern was whether to reveal to my attorneys the name of Gene McKinney, my passenger on the night the incident went down. Gene had never been apprehended by the police, despite a diligent search. What is more, they did not even know his name. From the start, the police had cleared Gene, and Heanes had testified before the grand jury that my companion had not taken part in any violence. Right after I was captured, the police sent broadcasts all through California saying that they had apprehended the “guilty” party and they wanted the passenger to come in for questioning. They repeatedly said in these broadcasts that the passenger had nothing to do with the incident. I suspected that they wanted to use him against me, and at first I refused to give his name to my attorneys. I saw no point in involving Gene, even though I knew his testimony might help free me. Only when my lawyers had convinced me that legally the prosecution could not do anything to him did I agree to reveal Gene’s identity. From my own knowledge of the law, I became aware that the courts were powerless to hurt him. However, Gene was skeptical. When my lawyers finally met him, they explained very carefully that he could not be hurt by testifying for the defense, and he did eventually testify despite his doubts. This showed supreme courage on his part, because the prosecutors were not above pulling some trick to involve him.
The prosecution took about three weeks to present its case and called about twenty witnesses to the stand. They included people like the nurse who had admitted me at Kaiser Hospital, the doctor who did the autopsy on Officer Frey, ballistics experts from the police department, various policemen who arrived at the scene of the shooting, and so on. But their three most important witnesses were Patrolman Heanes, Henry Grier, the bus driver who allegedly witnessed the shooting, and Dell Ross, who claimed that McKinney and I had kidnapped him. The first of these to testify was Herbert Heanes.
When Officer Heanes took the witness stand, it soon became apparent that he was a very disturbed man. He told of recurring dreams in which the Black Panthers were attacking him. Heanes is not very bright, and as time and again he had trouble keeping his story straight, the impression grew that he was completely confused. The prosecutor had obviously rehearsed him, but Heanes was so tense that he made mistakes; with each mistake he dropped his head as if to say, I’ll try the script over again. He was no good at all at improvisation and reconciling contradictions in his testimony.
Heanes testified that after Frey ordered me out of my car, the two of us walked to Heanes’s patrol car (parked behind LaVerne’s Volkswagen) while he, Heanes, remained near the front door of Frey’s patrol car, about thirty-five feet away from us. As Frey and I reached the rear of Heanes’s car, Heanes testified that I “turned around and started shooting,” and that Frey and I then started to “tussle” on the trunk of his car. At this point, Heanes said, he was shot in the right arm, whereupon he switched his gun to his left hand. Immediately after this, he noticed out of the corner of his eye that the passenger in my car (McKinney) had gotten out of the Volkswagen and was standing on the curb with his arms up in the air. Heanes turned his gun on him, but after the passenger assured him he was not armed, Heanes turned back to Frey and me. By this time, Heanes said, Frey and I had separated, although Frey was still hanging on to me, and he, Heanes, shot at my stomach as I faced him. He did not say that he saw his bullet hit me, only that he fired at my “midsection.” After that, Heanes said he remembered only two things: first, sending out a 940B—the police emergency number—over the police radio; and second, seeing two men run into the darkness.
When Garry cross-examined Heanes after his testimony, many contradictions and unanswered questions emerged. Heanes repeatedly stated that he never saw a gun in my hand, yet he testified that I had turned around and started to shoot. He was never able to say who had shot him in the arm, although when he shot me in the stomach, he said I was facing him. He would not state that I had shot him, even though, as a police officer, he is supposedly trained to observe such facts as whether or not a suspect has a gun. He was confused in his descriptions of what McKinney was wearing; some of his testimony contradicted the description given later by Henry Grier, the bus driver.
Perhaps the greatest weakness of his testimony, which Garry skillfully brought to the jury’s attention, was that Heanes had turned his back on McKinney, having only McKinney’s word that he was unarmed. Since the Oakland police distrusted and hated all Black Panthers, and since McKinney, who was unknown to Heanes, and who was riding with the Black Panther Minister of Defense, could very well have been a Black Panther, why had he left himself so unprotected, particularly since he said he did not know where all the shots were coming from? As Garry suggested in his cross-examination of Heanes, it was probably because Heanes was more worried about what Frey would do. Among the police Frey was known to need watching in the Black community; he was even worse than the normal cop, which made him extremely dangerous.
It was clear from Heanes’s testimony and the way he had been coached by the prosecutor that great pains had been taken to avoid any implication that Frey and Heanes had shot each other. Charles Garry’s first question on cross-examination dealt with this: “Did you shoot and kill Officer Frey?” Heanes said no. Yet several facts pointed that way, and Heanes’s evasions were not helpful to the prosecution. For instance, Heanes made a point of saying that he fired at me only when Frey and I had broken apart after our struggle on the car. A more damaging piece of evidence came from the ballistics section of the police department itself. The expert who testified concluded that the bullets that had hit both Frey and Heanes came from police revolvers. They were lead bullets—not copper-jacketed, as were the two nine-millimeter casings found on the ground at the scene of the shooting. This damaged the prosecution’s case, because Jensen had maintained from the beginning that I had shot Heanes and Frey with my own .38 pistol, whose bullets would have matched the nine-millimeter casings found on the ground. Of course, this mythical gun was never found.
All in all, Heanes’s testimony did little for the prosecution. He became even more muddled during my second trial, and by the time he appeared at the third trial, he found it impossible to deal with his own inconsistencies. It was then that he broke down on the stand and admitted seeing a third party at the scene of the shooting. But even at my first trial his testimony was too vague and inconsistent to be taken seriously.
The testimony of Henry Grier, a Black man, and the next major witness for the prosecution, was therefore all-important. He was the only person besides Heanes who claimed I had had a gun at the scene of the shooting. Grier was a bus driver for the Alameda-Contra Costa Transit system in Oakland. According to his testimony, he had been driving his bus along Seventh Street shortly after 5:00 A.M. on the morning of October 28, 1967, when he stopped his vehicle and under its bright lights witnessed the shooting of Frey and Heanes from a distance of about ten feet or less. Asked by Jensen to identify the gunman, Grier left the stand, walked over to where I sat with my attorneys, and put his hand on my shoulder.
When he testified for the first time, on the afternoon of August 7, 1968, a feeling of disgust for him overwhelmed me; he was obviously a bought man who had sold out from terror of the white power structure and perhaps because the district attorney had promised him a few handouts. My attorneys also had reason to suspect, after investigation, that he was in some kind of trouble with his job or the law, and only by cooperating with the district attorney’s office could he get out of his predicament. Yet, as the first trial wore on, my feelings of disgust turned to pity. He was, after all, a brother. As a Black, I understood that he was coerced into selling his integrity for survival, and I knew he must have been disgusting to himself. After the first trial, I felt Grier would not be able to live with himself, but when he came back and did it twice again, in the second and third trials, I realized he had been totally destroyed as a person, too corrupt even to feel shame. He was a complete mystery to me.
It is an indication of Grier’s importance to the prosecution that Charles Garry learned of his existence only on August 1, six days before he appeared on the witness stand. On August 1, jury selection had been completed, and under the rules of the court, the prosecution was required to give the defense the names and addresses of all the witnesses it intended to call during the trial. It was on this day that Garry first saw Grier’s name and learned who he was. During the entire nine months of preparation for the trial, Jensen had seen to it that Grier was kept completely out of sight and never mentioned. He did not appear before the grand jury. In all the police reports, in all the official statements that were issued covering every detail of the incident, the name of the most important “witness” to the shooting was withheld. Jensen had carried out his Machiavellian tactics with supreme cunning. Only when it was no longer possible to hide Grier did Garry learn of his identity and that he claimed to have witnessed the incident.
At the time my lawyers received the prosecution list with Grier’s name on it, they were also given another staggering piece of evidence: a transcript of a recorded conversation between Grier and Police Inspector Frank McConnell, which took place at the Oakland police station only ninety minutes after the shooting on October 28. The police had brought Grier to the station house for a statement almost immediately after the incident, and in it he described everything he had allegedly seen. He also identified me as the gunman from a photograph in the police files that Inspector McConnell showed him.
When my attorneys read Grier’s statement, given to the police while everything was still fresh in his mind, we learned why the police and prosecution had hidden him away. If Charles Garry had had a chance to talk to him earlier, he would have convinced Grier in a very short time that his eyewitness account of the shooting would never stand up in court. First of all, Grier did not make a “statement” to the police. His interview at the police station was a classic case of verbal entrapment. The inspector led Grier, who was not only weak but also in many instances unsure of everything he had seen, and fed him the questions that would produce answers the police wanted. Whenever Grier hesitated or stopped while trying to remember what he had seen, Inspector McConnell put words in his mouth or suggested the way things had happened; then Grier would agree. But, serious as this was, some of Grier’s most crucial statements were so damaging to the prosecution’s case it seems incredible that Jensen was willing to gamble everything on him as a principal witness. The fact that Grier swore I had a gun in my hand must have affected Jensen’s judgment concerning the rest of Grier’s testimony.
First, in describing the gunman whom he later identified as me, Grier said he was no taller than five feet; “sort of a pee-wee type you might call him” were his exact words to Inspector McConnell. Since I am five feet ten and a half inches, Grier’s impression of my height was wildly inaccurate. He also said I was wearing a black shirt, a light tan jacket, and that I was clean-shaven. The police had kept all the clothing I was wearing that night, and it was a matter of record that I wore a black jacket, a white shirt, and had two weeks’ growth of beard (this was confirmed by a close-up photograph taken by the police when I was lying on the gurney at Kaiser Hospital). Then, too, many of the things Grier said in the transcript were at variance with Officer Heanes’s depiction of what took place.
Grier told Inspector McConnell that he had first come upon the scene while driving his bus westbound on Seventh Street. As he approached Willow Avenue on Seventh, directly across from the construction site of a new post office, he said, he observed two parked police cars and near them two policemen and two civilians standing in the street. It was Grier’s impression that the police were probably giving the two civilians a ticket or making a routine check, and so he thought little of it as he continued west to the end of his run. (This contradicted the testimony of Heanes, who said that the second passenger [McKinney] had remained in the Volkswagen until after he, Heanes, was shot.) Grier related how he went to the end of his route, turned around, and began his eastbound run back along Seventh Street, picking up three passengers on his way. When he got back to where the police cars were, he said, he arrived at the moment Frey and I were walking toward one of the police cars, with Officer Heanes walking behind us. (Heanes had testified that he stayed beside Frey’s car as we walked toward the other police car and had not accompanied us.) At this point, Grier said, while Frey was walking beside me, I reached into my jacket, pulled out a gun, and fired at Heanes, who was walking behind me. Heanes fell to the ground. By this time, Grier told McConnell, he had stopped the bus about thirty or forty yards away from us. Then, he continued, Frey and I began wrestling, and he heard a second shot. He reached for the phone in his bus to call the central dispatcher of the transit system, and when he looked again, Frey had fallen on his back, and I was standing over him and firing three or four more shots at him while he lay on his back on the ground. The next thing he knew, said Grier, I had turned and fled west, and within minutes people and police were arriving at the scene from every direction. He told Inspector McConnell that he had not seen the second civilian after he first passed the four of us on his eastbound trip. During the shooting, the man was nowhere to be seen, according to Grier’s testimony (Heanes had testified that McKinney was standing near the curb with his hands in the air).
As soon as Garry and my other attorneys read this transcript and received Grier’s name and address on August 1, they tried to get in touch with him. He did not appear at work for the next six days. They called his home over and over again, but could never reach him; a recorded message said that the number was out of order. For six days a constant vigil was maintained outside his home. No one was there, and neither he nor any member of his family could be found. Grier had simply disappeared. None of my lawyers laid eyes on Henry Grier until he walked into the courtroom on August 7 to testify for the prosecution. On the afternoon his name had been given to the defense, Grier had been taken into protective custody by the district attorney’s office and secretly installed in the Lake Merritt Hotel in downtown Oakland, completely unavailable for questioning by the defense. When Grier finally appeared, Garry had only a matter of hours to prepare his cross-examination on the basis of prosecution testimony. However, he had had six days to go over Grier’s sworn statement to Inspector McConnell, enough time to discredit totally Grier’s statements on the witness stand, because—unbelievably—Grier changed a lot of his earlier testimony under questioning by Jensen.
At this point the jury had not read the transcript of Grier’s sworn statement to Inspector McConnell. And so, when Jensen put Grier on the stand on August 7, the jurors were hearing for the first time Grier’s account of the shooting. Jensen handled his testimony very slickly, emphasizing particularly that part in which Grier said I pulled a gun from inside my shirt, shot at Heanes, and then shot and killed Frey, standing over him and firing three or four more shots into his body. When Grier walked over and identified me, the jury must have been convinced of my guilt, for Grier was a calm, assured witness.
But Jensen made a crucial mistake. He thought he could get away with the inconsistencies between Grier’s statements made an hour and a half after the shooting and what Jensen coached him to say on the stand. He had Grier tell the jury that he was less than ten feet away from the participants in the shooting, whereas in his sworn statement to McConnell, Grier had said he was thirty or forty yards away. He told the jury in the courtroom that I had reached into my shirt for my gun, but in his original statement, he had said I reached into the pocket of my jacket or coat to get it. Grier testified during the trial that Frey fell forward, face down, while he had told McConnell that Frey fell on his back. On the stand Grier claimed that the bus lights were shining directly on the scene and he could see plainly, but he had told McConnell that he could not tell how old the gunman was because he had his head down and he “couldn’t get a good look.” He told Jensen on the stand that I had fled toward the post office construction site, but when McConnell had asked him if that was where I was headed when he had last seen me, Grier said no, that I was running northwest, toward a gas station.
It took only about three and a half hours of cross-examination for Charles Garry to demolish Grier’s credibility. In his examination of him and in his final summation, Garry showed that there were at least fifteen crucial statements in which Grier’s two sworn testimonies were in conflict. “For a while,” Garry said to the jury near the end of the trial, “I thought Mr. Grier was making an honest mistake. I really thought that for a long time. But I’ve now come to the conclusion that this man was either deliberately lying or that he is a psychopath and that he can’t be depended upon in relating any kind of facts. As far as Huey Newton is concerned, either choice is deadly.”
In his cross-examination of Grier, Garry first demonstrated that there had been absolutely no reason for his having been taken into protective custody. Over the strenuous objections of Jensen, who constantly leaped up and called Garry’s questions “incompetent, irrelevant, and immaterial,” Garry got Grier to admit that not only had the district attorney’s office never told him why he was being taken into custody, but also that Grier himself had always felt perfectly safe, had never been threatened, and had never felt a need for any protection. This was an effective beginning, because it showed the jury that the trial was being conducted by a ruthless prosecutor who had denied the defense lawyers their legal right to question a prospective witness.
Then Garry proceeded to develop his masterly strategy to expose Grier’s fraudulence. He had him describe all over again in the same words the story he had told the jury for the prosecution. Garry wanted the jury to understand very clearly what was happening (the jury was still unaware of Grier’s first statement to McConnell). When Grier had finished, Garry took off. He demonstrated in one instance after another all the discrepancies in Grier’s two stories. This is how his cross-examination went at one point:
GARRY: How was the civilian dressed?
GRIER: Well, sir, he had on a dark jacket and a light shirt.
GARRY: As a matter of fact, sir, didn’t he—didn’t that civilian have on a dark shirt and a light tan jacket?
GRIER: No, sir.
GARRY: I want you to think about this before you answer it. I am going to ask you again. Isn’t it a fact that the person you have described as the civilian was a person who had a dark shirt on, a black shirt on, and a light tan jacket?
(Silence) . . .
GARRY: A light tan jacket?
GRIER: No, sir. It was dark.
JUDGE FRIEDMAN: What was the answer?
GRIER: Dark.
JUDGE FRIEDMAN: Dark what?
GRIER: The outer garment was dark.
GARRY: How tall was that civilian?
GRIER: From up in the coach, sir, to look down at an angle like that,
I wouldn’t dare say, sir.
GARRY: Isn’t it a fact that that civilian was under five feet?
GRIER: I do not know, sir.
GARRY: Would you say that that civilian was heavy-set, thin, or otherwise?
GRIER: I didn’t pay that close attention, Counselor.
GARRY: Mr. Grier, you know that you are under oath, do you not?
GRIER: I do, sir. I do.
JENSEN: Object to that as being argumentative, Your Honor.
GARRY: Mr. Grier, you made a statement to Inspector McConnell on the twenty-eighth day of October, 1967, at the hour of 6:30 A.M.?
GRIER: That’s right, sir.
GARRY: And in that statement didn’t you tell Inspector McConnell that the person that was involved was under five feet?
GRIER: I could have, sir.
GARRY: Did you or did you not say so?
GRIER: I don’t recall making any specific statement, sir, as to that fact, sir.
At this point the court adjourned for the day. Next morning, Thursday, August 8, in the absence of the jury, Garry made two motions for a mistrial. The first was based on the evidence that the prosecution had hidden a witness from the defense. “We found out for the first time yesterday,” said Garry to Judge Friedman, “that immediately after these documents were given to us and the list of the witnesses, that the prosecution immediately took this man out of circulation to a point where we did not know where he was, under the guise of so-called protective custody. He was put into the Hotel Merritt, and we didn’t find this out until he was on the stand yesterday afternoon. Our motion is based upon the grounds that the prosecution has gone out of its way to circumvent the right and the obligation and the duty of the defense to prepare its case and to present it in a serious case as this one is. I feel hamstrung, I feel tied up. And I am asking the court for relief.”
Jensen immediately responded that if Garry had wanted to talk to any witness he should have come to the district attorney’s office the following day and talked to him there.
“I have a right to see the witnesses under my own circumstances and my own conditions…. I spent hours and hours of investigation time trying to locate this man, and all the time he had him under wraps,” Garry replied. Then he went on to present his second motion for a mistrial:
My second motion is based upon the atmosphere of the courthouse. I feel impelled to call to the court’s attention that the entire courthouse, as you walk in through the front door, is permeated and surrounded by deputies of the Alameda County Sheriff’s Department and other police agencies, making it embarrassing and insulting, and has, in my opinion, a direct bearing and effect on the jury itself.
In this particular case, under these circumstances, I feel impelled to call to the court’s attention that we don’t feel we can get a fair trial with a jury walking through these same doors with bailiffs finding out who they are and what they are doing in the building, and this kind of atmosphere; and for that same reason I am going to renew a motion for mistrial.
JUDGE FRIEDMAN: Motion is denied. Bring the jury down.
With that, the jury returned, and Garry resumed his cross-examination of Henry Grier.
GARRY: Mr. Grier, isn’t it a fact that you first saw this officer and this civilian walking alongside of each other, as you have described it, when your bus was at least thirty to thirty-five yards from the scene? GRIER: I did not, sir.
GARRY (reading from transcript): “…And then I noticed as I approached—I saw the officer walking—one guy towards the second patrol car and this guy was short, sort of a small-built fellow. He—just as I approached within thirty, thirty or forty yards of it I noticed the man begins going into his jacket—” You gave that answer to Inspector McConnell on that hour of the morning, did you not, sir? GRIER: I did, sir.
GARRY: Mr. Grier, this man was under five feet, isn’t that right? Would you answer that question either yes or no….
GRIER: I don’t know, Counselor.
GARRY (reading from transcript):
“Q. And how tall would you say he was?
A. No more than five feet.
Q. Very short?
A. Very short.”
You gave that answer, did you not, at the time?
GRIER: I did.
GARRY: Mr. Grier, how much did this man weigh?
GRIER: I don’t know.
GARRY: In your estimation?
GRIER: I don’t know, Counselor.
GARRY (reading from transcript):
“Q. About how much would you say he weighed?
A. Oh, 125.”
Did you give that answer to that question?
GRIER: I could have, Counselor.
GARRY: Was this fellow, this man that you saw on that morning, was this fellow a husky fellow or a thin person, or a medium person, or what?
GRIER: Medium, I would say.
GARRY: As a matter of fact, the person you have described was a little pee-wee fellow, isn’t that right?
GRIER: He was not, sir.
GARRY (reading from transcript):
“Q. Was he heavy, husky?
A. No.
Q. Slender?
A. Sort of pee-wee type fellow, you might call him.”
Isn’t that right, that is what you said?
GRIER: I could have, Counselor.
GARRY: That is what you did say, isn’t it, sir?
GRIER: Possibly, yes. I could have said that, yes, sir.
GARRY: Not possibly; that is exactly what you did say, isn’t it, sir?
GRIER: As I said before, Counselor, without any mistake, I could have.
GARRY: It was the truth, wasn’t it, sir?
GRIER: It was, sir.
After this, and while Jensen registered his disapproval, Garry read to the jury the entire transcript of Grier’s statement to Inspector McConnell. There could be no question in the jurors’ minds then that something was suspicious, if not rotten, about the prosecution’s star witness.
Garry’s most dramatic refutation of Grier’s testimony—and the one that went to the heart of the matter—came during his final summary for the defense. He walked over to the table in the courtroom where all the evidence for the trial was on display and picked up the black leather jacket I had been wearing on October 28. Then he picked up Heanes’s .38 revolver and walked over to the jury box. Standing before the jurors, he quoted Grier’s original statement that I had gone into my jacket or coat pocket and pulled out a gun. The gun that the prosecution claimed I had hidden, a .38 pistol, could not have been much smaller than Heanes’s revolver, Garry said, as he put the gun into the jacket pocket. It immediately fell out. He put it into the other pocket, and it fell out again. He tried putting the gun in the pockets several times, and each time it fell out; the pocket was too small to hold it. He reminded the jury again of Grier’s statement. “And if this isn’t a diabolical lie,” he said, “then I don’t know what a lie is. That’s the reason that he changed it from his coat to his shirt. Could it be doctored in any more fashionable way? Try it. This is a shallow pocket. It’s about three and one half inches deep. That’s why his testimony was changed. And it was changed with the condonation and the knowledge of the prosecution in this case. To get a conviction.”
On Monday morning, August 12, Dell Ross, accompanied by his own lawyer, arrived at court to testify for the prosecution. At this point Jensen needed him desperately. The first two major witnesses—Heanes and Grier—had not been as strong as he had hoped. Ross was his last chance. Dell Ross had testified before the grand jury in November, 1967, that right after the shooting I had jumped into his car with another man and forced him at gunpoint to flee the scene. He was the second person to claim I had had a gun in my hand. The kidnapping charge was important, too, since it demonstrated that I knew I had committed a crime and was using desperado tactics to escape. Ross had told the grand jury that I had jumped into the back seat of his car, and my companion had gotten into the front. At first, he said, he had refused to drive us to the corner of Thirty-second and Chestnut as we requested, but when I pulled a gun on him, he complied. He testified that I had said to him, “I just shot two dudes,” and “I’d have kept shooting if my gun hadn’t jammed.” When a picture of me was shown to him, Ross identified me as the man with the gun.
When Jensen put him on the stand on August 12, he had no reason to suspect that Ross would not repeat all his grand jury testimony. Ross answered his first few questions about where he lived, whether he had owned a car in October, 1967, what make it was, et cetera, et cetera. But when Jensen asked him where he had been at five o’clock on the morning of October 28, Ross would not tell him. “I refuse to answer on the grounds it would tend to incriminate me,” he said. Jensen could not believe his ears. He asked the court reporter to read the answer back to him, as if to reassure himself of what he had just heard. Ross was a prosecution witness. Moreover, he was a victim, not a defendant, and victims do not take the Fifth Amendment. When Ross persisted in refusing to answer, Jensen became furious. From his point of view, Ross’s insistence on not answering could damage his case seriously and result in bad publicity. It would look as if something fishy was going on (which, of course, it was) and put the district attorney’s office in an unfavorable light. He appealed to Judge Friedman, asking that the witness be obligated to respond to his questions, pointing out that he had already testified fully on the case before the grand jury nine months before. At this point, the judge ordered the jury to retire from the courtroom. Ross’s lawyer argued that Ross was making a personal claim for his own protection under the Fifth Amendment. He pointed out that questions put to Ross during the trial might well go beyond the factual answers he had given to the grand jury and lead to further questions that could incriminate him. Ross’s lawyer suggested that Ross perhaps knew more about what had happened on the morning of October 28 than he had told the grand jury.
Here was a dilemma for both prosecutor and judge. Judge Friedman responded by cutting short the proceedings for that day. The next day he granted Ross immunity and told him he could not be prosecuted for anything that arose out of his testimony, except perjury or contempt for failing to answer questions directed at him. Now, Ross had to answer Jensen’s questions and could no longer invoke the Fifth Amendment. But when the prosecutor began all over again and asked the same question Ross had refused to answer the previous day—where he had been at 5:00 A.M. on October 28, 1967—Ross again refused to answer on the grounds that it would incriminate him. The judge became totally exasperated and told him that he must now answer the questions since he had immunity. Otherwise, he would go to jail for contempt. Ross just sat there stolidly, refusing to go on. Just as Judge Friedman was preparing to sentence him for contempt, Jensen suddenly realized what he could do with this intransigent witness in order to save the day for the prosecution.
“Mr. Ross,” he asked him, “do you remember what happened on the morning of October 28, 1967?” Ross stalled. Judge Friedman was quick to interject, “If you don’t remember what happened that morning,” he said, “why, you should say you don’t remember. The court does not desire to force you into anything. Is it perhaps that you don’t remember what happened that morning?” Ross agreed that he couldn’t remember.
It was incredible to see the way the judge aided Jensen. What they planned to do was clear. The judge chose to point out that a witness cannot be punished for having a faulty memory, and so the prosecution was going to help Ross remember by reading back to him all his grand jury testimony, which ordinarily is never allowed as evidence in a trial. Charles Garry protested strongly, but Judge Friedman was adamant. Jensen read all Ross’s testimony back to him in front of the jury, and it went into the official record of the trial.
Never was Judge Friedman’s bias in favor of Jensen more blatantly obvious than in his dealings with Dell Ross as a witness. It was typical of the arbitrary way the trial was conducted. When their man would not testify because of self-incrimination, they gave him immunity so that anything he said could not be used against him. Then the judge actually coaxed Ross into saying he could not remember what he had said before the grand jury so that the prosecution had an excuse to read his testimony into the transcript. On the other hand, when our man, Gene McKinney, refused to testify twelve days later, because of self-incrimination, they did not offer him immunity or coax him in any way; they just threw him into jail. The police had already exonerated McKinney of any involvement in the incident, but they still would not offer him immunity to protect himself. This was the only time that the contradiction between justice and what the judge and prosecution were doing came out in open court. Their people got immunity when they knew their testimony would incriminate them. Our people, who had been exonerated but who did not trust the system anyway, got tossed into jail. The whole trial was nothing but a big charade to get me railroaded into the gas chamber.
But all their chicanery to get Dell Ross’s testimony came to nothing in the end, because Charles Garry had called the last trump. Two weeks before the trial, he had interviewed Ross in his office and taped the conversation, during the course of which Ross admitted that he had lied to the grand jury. He had gone along with the authorities, he said, because they had warrants out on him for parking violations, and he was afraid of them. Ross told Garry in this interview that I did not have a gun that night, that I was barely conscious and had said nothing at all to him. Of course, when Garry got up to cross-examine him during the trial, Ross could not remember this interview, either, so Garry played the whole tape in court, over Jensen’s vehement objections.
As a result, the kidnapping charge against me was dropped for lack of evidence—and I was now being tried on three counts instead of four. Ross’s appearance as a witness for the prosecution had been a complete failure. Yet he was brought back for my second and third trials, and both times he repudiated his position during the first trial. Despite this, I felt no anger toward him. Like Grier, he was a crushed and broken man, pathetically terrified of the power of the state. I felt more angry at the prosecution for using him as a dupe of the state than against Ross, who could not defend himself.
Ross was the last important witness that Jensen produced, and after he appeared the prosecution rested its case. In any trial the burden of proof lies with the prosecution to establish beyond reasonable doubt the evidence of guilt. Jensen had not achieved this. Many of his accusations were made through implication and innuendo, not facts. Despite his single-minded determination to place me at the scene with a gun in my hand, a lot of his evidence had backfired in ways he had not anticipated. In addition to weaknesses in the testimony of both Grier and Heanes—and the fact that their two stories did not jibe at crucial points—there were a number of serious flaws and omissions in the prosecutor’s case.
Jensen never dealt satisfactorily with the shooting—for instance, the location of the two nine-millimeter casings that were found at the scene by police officers. Jensen had suggested throughout the trial that these casings, which did not match police guns, belonged to the .38 revolver I allegedly carried that night. The casings were found lying twenty to twenty-five feet apart, one between the two police vehicles and one near the rear left fender of Heanes’s car, right where Frey was shot. Since both Heanes’s and Grier’s testimony coincided in stating that Frey and I had walked to the back of Heanes’s car and that no shooting had occurred until we reached this point, how could the second casing have gotten twenty-five feet away? I could not have been in two places at once. This was an insurmountable puzzle in the prosecution argument. The only possible solution seems to be that a third person was firing at the scene, and the prosecution had totally excluded this possibility since it wanted only one assailant—me.
Then, too, my lawyers found the police tapes from that morning very mystifying. They carefully went over the transcript of all the police conversations that were recorded between the police cars at the scene and Radio Dispatch in the police administration building. The tapes began with a request from Officer Frey just after he had stopped me shortly before 5:00 A.M. The request was for information about me and the car I was driving. They continued through all the communications that took place after other police cars arrived at the scene following the shooting. In analyzing the messages that passed between Radio Dispatch and the patrol car radios, my lawyers found indications that the police dispatcher in the administration building was sending out information to other police in the Oakland area that was not being radioed in by the police at the scene. This suggested that either the tapes were tampered with or that witnesses were phoning in accounts of the shooting and giving descriptions that the police at the scene did not have.
For instance, the dispatcher assumed that I was connected with the crime since Frey had asked information about me before he was shot, and so he sent out a bulletin about 5:15 A.M. describing me as the “suspect” and stating that I was wearing a tan jacket. Half an hour later, he inexplicably sent out another bulletin that said I was wearing “dark clothing.” There had been no incoming police radio message on the tape to tell him this, and no indication of how he got this information. How did he learn that I was wearing dark clothing? Henry Grier, too, had mentioned in his interview with Inspector McConnell a “peewee” type wearing a tan jacket. Was there a third person answering this description at the scene? Throughout the trial Jensen never allowed this possibility to be suggested to the jury, even though the police had interviewed witnesses who had heard the shots and arrived at the scene seconds after the shooting. My lawyers even suspect that a number of people in the area were close and had witnessed the incident. One woman, a Black prostitute, told the police that she had seen three men running away in the direction of the gas station at the corner of Seventh Street and Willow Avenue. Another witness, a young man, told the police that he had seen two cars speeding away north on Seventh Street. Jensen never called these people to testify because he wanted to create the impression that I was the only person who could possibly have killed Frey. Yet the accounts of others who were there (and later Heanes’s own admission at my third trial that there had been a third person present) contradicted his theory.
Another piece of evidence that Jensen found hard to dismiss was the lawbook I was carrying when Frey ordered me to the back of Heanes’s car. Charles Garry pointed out that I could not very well have carried a gun and a lawbook in my right hand at the same time. But even more crucial was my reason for carrying it. Reading to the police from lawbooks was the only defense I had in case of unlawful arrest. I had done it countless times in the past, and there are hundreds of people in the Black community who have seen me do it and can testify that it was my common practice. I carried it again on the morning of October 28 to read the law to Officer Frey. It was an action that Jensen could not distort for his own ends.
Perhaps Jensen’s most grievous and callous omission during the entire trial was his failure to point out that a vital word in the transcript of Grier’s conversation with Inspector McConnell had been changed. It was only by accident that Charles Garry discovered that this word had been incorrectly transcribed by a typist in the district attorney’s office from the tape that Inspector McConnell had made with Grier. And yet this one word was so important that it called into doubt Grier’s identification of me from the picture McConnell showed him at police headquarters. To make matters worse, Garry discovered this error only after the trial proper was over and the jury had been out deliberating the verdict for a day.
On September 5, the jury requested to see the transcript, and Judge Friedman called Garry and Jensen into his chambers to ask them for a copy. There was no court copy (the trial clerk had forgotten to acquire one as evidence), and Charles Garry had lent his only copy to someone else. So Jensen went to get his and came back with the original working copy of the transcription. As Garry quickly looked through it, he paused in disbelief over a section of Grier’s testimony. There, over the crucial word, was a handwritten correction, completely reversing the meaning of the sentence. This section read:
Q. About how old?
A. I couldn’t say because I had only my lights on. I couldn’t—I DID get a clear picture, clear view of his face, but—because he had his head kind of down facing the headlights of the coach and I couldn’t get a good look—.
Over the word “did” someone had written in the correct word: “didn’t.” But throughout the trial, Jensen, knowing that this issue was crucial, had neglected to inform Garry, the jury, and the court that there was a question in the transcript of how clearly Grier had been able to see. Indeed, Jensen’s contention was that Grier had gotten a good look and was therefore in a position to identify that person as me. As long as there was the slightest doubt in his mind about whether the word was “did” or “didn’t” he had a moral obligation to inform the court and the defense counsel, and it was an absolute matter of conscience that he listen again to the tape to see what the word actually was. He never bothered.
In this important matter and in all the other dubious issues—the position of the bullet casings, the police tapes, the hiding of Grier, the keeping of important witnesses off the stand, the changing of Grier’s original testimony—Lowell Jensen proved less than honorable. It is the prosecutor’s job to convict a guilty man—not an innocent one. And in my case Jensen had many reasons to believe I was innocent. He chose to ignore them all.
When the prosecution rested its case, Charles Garry, on the morning of August 19, moved for another mistrial. He based his motion on the fact that it was impossible for me to receive a fair trial in Oakland because of the atmosphere of hatred, violence, and controversy. As proof of this, he read to the court samples of hate mail that he and I had been receiving. One of the letters was from four retired marines who said they had known Frey. The letter stated that neither Garry nor I would be alive ten days after the trial was over, no matter what the verdict. Another letter was signed “KKK” and read:
Nigger Lover:
I guess you feel that the murdering coon’s gonna get off because the jury and witnesses have all been intimidated to the extent that no one dares convict. I hope he will be gunned down in the streets by some friends of the poor policeman he killed. The Black Panthers parade all over the place and I don’t see why the KKK and American Nazi Parties couldn’t do the same. It is supposed to be a free country for everybody. It is too bad we ever stopped lynching. At least the dam niggers knew their place in those days and didn’t cause any trouble. I remember reading about one time they strung up some coons and pulled out pieces of their flesh with corkscrews. That must have been a lot of fun. I wish I had been there to take part in the good work. I hope this race war that we are having starts right away. We outnumber the blacks ten to one, so we know who will win. And a lot of damn nigger lovers will be laying right there beside them. I wish Hitler had won and then we could have kicked off the shinnies and started in on the coons.
KKK
Garry’s request for a mistrial was denied by Judge Friedman, who refused to acknowledge that I was receiving anything but a fair trial. He felt the letters were negligible and unimportant.
After this, Garry opened the defense and began on the morning of August 19 to show the jury where the truth lay. He introduced a group of witnesses who were essential to those political aspects of the case that we had been so determined to explore from the beginning. These were people from the Black community—ordinary, honest working people—who could testify with sincerity and conviction about how their lives were frequently made difficult by the occupying army of racist police. These people described being stopped, questioned, bullied, pushed around, and insulted for no reason other than the sadistic whim of some southern cracker who hated Blacks. These were the people brutalized by intruders in their own community. All had one thing in common: encounters with Officer John Frey.
Daniel King, sixteen, related on the stand how he had met Frey around four o’clock one morning in West Oakland, where he was visiting his sister. They had gone out to get something to eat on Seventh Street, and there, incredibly enough, had encountered a white man with no pants on. He was with Frey. Frey told King he was violating curfew, and the white man accused him of knowing the girl who had taken his pants. When King denied this, both Frey and the white man called him “nigger,” “pimp,” and other “dirty words.” Frey had held King while the white man hit him. Then he put him in a paddy wagon and took him to Juvenile Hall where he spent the rest of the night. Frey did not even bother to call King’s parents.
Luther Smith, Sr., who worked with a youth organization in Oakland, told of a number of run-ins with Frey. He testified that Frey was “awful mean” and had used racial epithets when talking to him. Frey had called Smith’s brother a “little Black nigger” and his son’s wife a “Black bitch.”
Belford Dunning, an employee of the Prudential Life Insurance Company, described an encounter with Frey the day before he died. When Frey pushed Dunning around while he was being given a ticket by another policeman for a minor violation on his car, Dunning had said to him, “What’s the matter with you? You act like you’re the Gestapo or something.” Frey’s hand went to his revolver. “I am the Gestapo,” he said.
A young white schoolteacher, Bruce Byson, who had taught Frey in high school, invited him to come back and speak to the class about his work as a policeman. While he was talking to the high school students, Byson testified, Frey referred to people in the Black community as “niggers” and spoke disparagingly of them as criminals and lawbreakers.
Garry wanted the jury to understand what Black people are subjected to by cops like Frey, hung up on power. He also wanted them to realize that Frey’s bloodthirstiness was responsible for his own death. Belford Dunning, the insurance man, had said to him the day before he died, “Man, if you don’t lick this, you are not going to last very long around here.” As a matter of fact, Frey’s superiors had already decided to move him out of the Black community into another area, where he would be less of a lethal threat to innocent human beings. But they were too late, and Frey himself fulfilled Dunning’s prophecy. Garry stressed this aspect of Frey’s behavior (and by implication, most other policemen) over and over again during his defense. Frey was not only a bully to helpless people; he was also determined to exterminate anyone whom he considered a threat to his own dubious masculinity. “You know,” Garry said to the jury during his summation,
since the day I got into this case, one thing has bothered me. Why in tarnation was Officer Frey so headstrong in stopping Huey Newton’s automobile? I wake up at night trying to find an answer to that, and I can’t find an answer. This bothers me. It is just not part of legal due process. It is not part of any understanding of justice. It is not part of any understanding of the proper administration of the law. Frankly, it is not the type of police action that I have personally witnessed, but then again, I am not a Black man. I am not a Black Panther. I am part of accepted society. I don’t think any officer would stop me unless I was actually, openly, overtly violating the law.
What was Huey Newton doing when he was driving down Seventh Street, between 4:50 and five o’clock in the morning, that warranted this officer to call in and ask for PIN [Police Intelligence Network] information, saying, “I got a Black Panther car. See if there is something on it.”
In my opening statement I told you that there was a plan, a concerted plan by the Oakland Police Department, together with other police departments in Alameda County, to get Huey Newton, to get the Black Panther Party. Huey Newton above all…
Another thing that bothers me, and bothers me very, very much about the evidence, and it should bother you when you start analyzing it: If it is true that Officer Frey intended to arrest Huey Newton and, in fact, said, “I now place you under arrest,” which we contend is not so, but let’s assume for the sake of argument that he did, I don’t understand why he didn’t put handcuffs on him, since the Panthers are supposed to be such desperadoes.
I further don’t understand, if he was placing him under arrest, why he passed his own automobile. I don’t understand why Officer Frey took Mr. Newton to the third automobile, to the back end of it. Why? Was he going to beat him up? You know he could very well do it. He was a heavier man, weighing 200 pounds. He went to the gym regularly, according to Officer Heanes. Huey is a 165-pounder and Huey had a lawbook in his hand.
Perhaps the most significant comment that can be made about the testimony of these defense witnesses from the Black community is that Jensen offered no rebuttal. His silence was eloquent. I guess no one could be found to speak well of Frey. What can you say about a policeman who owned three guns, carried extra ammunition on his cartridge belt, and was the only member of the Oakland force who did not use the regular bullets issued by the department but spent his own money to buy a special high-velocity type?
On August 24, Charles Garry called Gene McKinney to the witness stand. When McKinney entered the courtroom that afternoon with his lawyer, Harold Perry, a feeling of excitement and expectation could be felt among the spectators. Here was one of the most important witnesses to the shooting of Heanes and Frey. Up until then, there had been considerable speculation about whether even the defense lawyers knew the name of my companion that morning. Throughout the trial reporters and newsmen had been asking Charles Garry whether the mysterious witness would testify.
When McKinney took the stand, Garry rose and asked him first his name and then whether he had been a passenger in the Volkswagen with me at the corner of Seventh and Willow on the morning of October 28, 1967. “Yes, I was,” McKinney answered. His response electrified the courtroom. But those two questions were the only ones he ever answered. When Garry asked, “Now, Mr. McKinney, at the time and place on that morning, at approximately five o’clock in the morning, did you by chance or otherwise shoot at Officer John Frey?” McKinney said, “I refuse to answer on the grounds it may tend to incriminate me.” Jensen was outraged. He jumped to his feet and demanded that Judge Friedman direct the witness to answer. “Inasmuch as he has already started to testify,” said Jensen, “saying he was there at the scene, he has obviously waived [his right to silence]. Let’s hear him tell what he knows. He said he was there, and I ask that that question now be read to him and the court direct him to answer.”
Then followed a discussion between the prosecutor, Perry, and the judge about McKinney’s constitutional rights, with Perry claiming McKinney need only be cross-examined on the two questions he had chosen to respond to—his name and where he was on October 28. Beyond that, Perry claimed, he was entirely within his rights to claim the Fifth Amendment. When Jensen insisted on cross-examining him, McKinney refused to answer. Here Garry was trying to raise the question of “reasonable doubt”—doubt about whether there could have been only one possible person who did the shooting—me, as the prosecution claimed.
But Garry and Harold Perry were also using another brilliant strategy, and Jensen understood immediately what was involved. The prosecution believed that McKinney was inviting Judge Friedman to grant him immunity in his testimony—the same immunity he had given to Dell Ross—whereby nothing he said could be used against him. Then, with this protection, he could say that he had killed Frey and shot at Heanes, and that he had escaped with me. Because no evidence had been submitted during the trial to prove otherwise, he could not have been convicted of perjury. Thus, having absolved me of the crime and having freed himself of any danger of prosecution, since his testimony could not be used against him, both of us could have walked out of the courtroom—at liberty.
But Jensen and Friedman, believing this to be the strategy, were having none of it. After questioning McKinney carefully to make sure he realized he was liable for contempt, Judge Friedman ordered him immediately sent to jail for refusing to testify. He later sentenced him to six months, but the California Superior Court reversed the decision, stating that McKinney had acted within his constitutional rights. After spending a few weeks in the county jail, McKinney was released on bail. As I said, he is a courageous man.
Finally, on the morning of August 22, I took the witness stand. A number of people had doubted I would testify because they thought I would not be able to handle a merciless cross-examination by Jensen. But actually I looked forward to it. For six weeks I had sat beside Charles Garry in the courtroom and listened to Jensen claim that I had murdered Frey in cold blood. I had watched him try to sell the jury on the fact that I loved violence, that I had a history of provoking policemen, and that there was reason to believe I did not tell the truth. I wanted to set the record straight and prove to the jury that I was innocent. I also was determined to let him know what it meant to be a Black man in America and why it had been necessary to form an organization like the Black Panther Party. After that, I hoped they would understand why Frey had illegally stopped my car on the morning of October 28.
Garry opened up by asking me the two all-important questions: whether I had killed Officer John Frey and whether I had shot and wounded Officer Herbert Heanes. I gave the only possible answers—the truth. No, I had not. After that, we went through the necessary background leading up to the incident, which in this case began the day I was born. I told the court about my family, about growing up in Oakland, where there was no place to play except in the rubble and garbage-strewn streets and vacant lots, because Black kids have no swimming pools, no parks, no playgrounds. I told them about degrading experiences in the public school system, experiences that countless thousands of other Black children have endured and continued to endure in an oppressive and indifferent world. I told them how the Black community is occupied by police who need no excuse to harass and bully its inhabitants. I told them that when I graduated from Oakland Technical High School I was unable to read or write and that most of my classmates were in the same boat, because no one in the school system cared whether we learned to read or write. Then I told how, under the influence of my brother Melvin, I had taught myself to read by going again and again through Plato’s Republic. I tried to explain what a deep impression Plato’s allegory of the cave had made on me and how the prisoners in that cave were a symbol of the Black man’s predicament in this country. It was a seminal experience in my life, I explained, for it had started me thinking and reading and trying to find a way to liberate Black people. Then I told of meeting Bobby Seale at Oakland City College and how the Black Panther Party grew out of our talks.
Garry led me through an exposition of what the Black Panther Party stood for and an explication of its ten-point program. I recited the ten points in the courtroom and explained them. Blacks, I said, are a colonized people used only for the benefit and profit of the power structure whenever it suits their purposes. After the Civil War, Blacks were kicked off plantations and had nowhere to go. For nearly one hundred years they were either unemployed or used for the most menial tasks, because industry preferred to use the labor of more acceptable immigrants—the Irish, the Italians, and the Jews. However, when World War II started, Blacks were again employed—in factories and by industry—because, with the white male population off fighting, there was a labor shortage. But when that war ended, Blacks were once again kicked off “the plantation” and left stranded with no place to go in an industrial society. Growing up in the late forties, I was aware of it in Oakland, because major defense plants had been built there during the war, and a large Black population was condemned to unemployment after the war. I quoted the second point in our program as a way of changing all this: “We want full employment for our people. We believe that the Federal Government is responsible and obligated to give every man employment or a guaranteed income. We believe that if the white American businessman will not give full employment, then the means of production should be taken from the businessmen and placed in the community so that the people of the community can organize and employ all of its people and give a high standard of living.”
Sometimes, while I was explaining Black history and the aims of the Black Panther Party to the court, I forgot that I was on trial for my life. The subjects were so real and important to me that I would get lost in what I was saying. There were moments when I even enjoyed myself, especially when I had a chance to score points against Judge Friedman and Jensen.
On one occasion I saw an opportunity to show my contempt for the judge, and I took it. I was describing how some immigrant groups had been subjected to oppression and discrimination when they first arrived in this country, but that after they began to make economic gains some of them had joined their oppressors, even when the oppressors continued to discriminate against the immigrants’ own people. I used as an example Jews who join the Elks Club, even though they know that this organization is racist and anti-Semitic. Judge Friedman had been the first Jew admitted to the Elks Club in Oakland, a fact that had been given a great deal of publicity. The Elks wanted it believed that they were no longer anti-Semitic, but everybody knew better.
Another time, talking about contemporary racism in American society, I deliberately used the Mormon church as one of the most blatant proponents of ethnic discrimination. Knowing that Jensen was a Mormon, I looked at him when I said this, instead of at the jury. He gave me a smirk, and I kept right on looking at him. He could say nothing in front of the jury lest they learn the truth about him.
Jensen often became impatient with the way Garry was conducting his examination of me and frequently interrupted, but even he sometimes seemed interested in what I was saying. Throughout, however, those meaningful glances passed between Jensen and Judge Friedman, the judge asking for an objection and Jensen giving it to him. Friedman could hardly hide his disapproval of everything I was saying and kept telling me to stick to the present and the incident itself. Then Garry would remind him that everything I said was relevant to the defense. Somehow, we managed to get in all the most important political aspects of the case, and that was what mattered most. Only when that was accomplished did I turn to my version of what had happened that morning. I described it exactly as it took place up until Frey shot me. After that, of course, I had passed out, so I could describe only those things I remembered and my hazy impressions of them.
I had spent nearly the entire day on the stand when Garry turned me over to the enemy. For the first time in eight weeks Jensen and I were face to face.
My sister Leola had told me of an incident that occurred at the beginning of the trial when she was standing on the courthouse steps watching one of the many demonstrations. Jensen, not knowing who she was, was standing near her, watching with an associate. She heard Jensen tell his friend that he meant to make me lose my temper before the jury. Then, he said, all the demonstrations on my behalf would be meaningless. So, when he approached me that afternoon, I knew what to expect: he wanted me to explode rather than engage in a good debating session. I felt that the whole exchange would be nothing more than another debate, only this time the stakes were high. I had spent too much time on corners, in bars, and in the classroom debating very complex subjects to get upset with Jensen’s probing. He was a worthy opponent, but I knew that once he began to push me, he was going to be surprised at my responses. He had a false impression of me and expected me to respond in a way I was incapable of doing. Throughout almost two days of cross-examination, we struggled to see whose approach would prevail, mine or his, and I felt that during almost all of this time I controlled the situation. In responding to Jensen, just as I had responded to Garry, I did not pull any punches about criticizing the system or its agents. Though my life was at stake, I wanted to show my contempt. I sought to use their own apparatus to defy them, which was consistent with the revolutionary practices I have attempted to live by.
Jensen’s entire cross-examination, nearly every incident he brought up, was intended to demonstrate that I loved violence and guns and that I was a personal threat and a menace to police officers merely trying to do their duty. He began by asking about our early patrols in the Oakland community, emphasizing for the benefit of the jury, in insidious ways, the fact that we had carried shotguns. He tried to imply that I would have preferred to carry a concealed pistol on these patrols but that the terms of my probation did not allow this. He reinforced this suggestion by having me read a poem, “Guns, Baby, Guns,” I had once written for The Black Panther newspaper, which was filled with symbols and metaphors that have a particular meaning for Black people but are utterly lost on most whites. In the poem I had mentioned a P-38 revolver, and Jensen tried to suggest that this was the type of gun I had shot Frey with and that my poem suggested I liked this gun and would use it if the occasion demanded.
“What is a P-38?” he asked.
“It’s an automatic pistol,” I answered.
“Does it fire nine-millimeter Luger cartridges?” was his next question.
I explained to Jensen that I don’t know much about hand guns. I always preferred a shotgun and would never touch hand guns while I was on probation. I explained to him that in this matter, as in all others, Black Panthers obey the law.
At that, he asked me if I remembered an incident in Richmond in 1967 when I had not obeyed the law, when, as he put it, I “got into a combat with Richmond police”? He was referring to the time the police had lain in wait for us until 5:00 A.M. outside a house where we were partying. I had taken an arrest that time in order to avoid combat after one young police officer had stepped on all the brothers’ feet and another got me in a choke hold against a police car. I carefully explained the details to Jensen and the jury and told how an all-white conservative jury at my trial in Richmond had believed the police version of what had taken place, as they always do, and sentenced me to sixty days on the county farm. I made sure the jury learned about the policeman’s remark after viciously beating the brother: “I have to go now because I promised to take my wife and kids to church at nine.”
Then Jensen brought up the time the Black Panthers had responded to the little boy who ran into headquarters asking for help. The police had burst into his house when his father was away and were tearing up the place on some phony pretext of looking for a shotgun. We asked the police to leave because they had no search warrant, and in their rage they had arrested me for wearing a dagger in a holster, accusing me of “displaying a weapon in a rude and threatening fashion.”
While describing this incident, I really got the best of Jensen. He had been on my right when he first asked the question, and the jury on my left. He wanted me to speak toward him, but I turned my back and began giving details of the incident to the jury, which took a while. Since he had asked the question about the incident, he could not interrupt my answer without looking stupid, so I seized the time and took the play away from him.
The jury seemed fascinated with my description of the affair and was with me all the way. Jensen obviously got so disgusted with what was happening that he left his position near the clerk’s desk and sat down looking very dejected—as I was later told. At any rate, I described the incident fully, leaned back, and turned to my right for Jensen’s next question; he was no longer there. I was surprised at not seeing him where he had last been standing, so I said, “Where is he?” Then I saw him seated at the table, and I smiled at him and said, “Oh, there you are. I thought you had gone home.” The courtroom broke up at this, and the judge admonished me.
Much of Jensen’s cross-examination had continual reference to official reports and documents, which he kept consulting while I was on the stand. Reading a report that is filed in some record system and stamped with an official seal of approval can be very impressive: the printed page somehow suggests that whatever is described represents the truth, that it faithfully describes what took place. And so, when Jensen brought up official police testimony of what had happened to me in the past—in arrests, in courts, in various trials—he thought he was offering the jury proof of my violent and crime-filled past. But, far from distressing or embarrassing me, every one of his challenges presented a chance to tell the jury what had really taken place and to describe them in the larger context of what life is like for Black people in this country. In this way, I was able to demonstrate how the police had harassed the Black Panthers and looked for every opportunity they could to arrest us and destroy our organization.
To give Jensen credit, he did not miss very much. But I countered every piece of “official” evidence with an explanation that went beyond words on a page. And I think the jury came to understand that no official document ever contains the whole truth. Events are dictated by a number of mitigating circumstances and a whole system of values and customs that can never be conveyed in print.
Jensen made another mistake by examining some of my speeches and writings and reading into them exhortations to violence. On this tack he quickly got out of his depth; he did not understand the way language is used among Blacks and often took literally what was meant symbolically. Every time he brought up something I had written or said that he thought sounded dangerous, I patiently explained what it meant in terms of organizing the Black community. In this way, I was able to describe to the jury the goals the Party had for Black people. I had hoped to do this—to take the initiative from Jensen and develop certain political points in the courtroom. It was surprising how often I succeeded.
Finally, Jensen got around to the morning of October 28. He came meticulously prepared, armed with photographs and maps, to present his version of what had happened. Leading me carefully through the whole incident, he had me describe my every move and gesture. At one point I was even asked to demonstrate with him how Frey had “smeared” me. He also chose to bring up an encounter that Bobby Seale and I had had with two policemen in 1966, because he believed the event related to the shooting of Officer Frey. As Jensen described this incident, I had gotten into a fight with a policeman and had tried to take his gun away from him. If Jensen had been able to prove this, he could have used it as a foreshadowing of what had happened in 1967 and as evidence that I had done the same thing with Frey. I do not know where he got his information, but I pointed out to the court that it was on record that one of the policemen who was hassling us in 1966 had admitted in court that he was drunk when he met Bobby and me. Jensen said, “Mr. Newton, isn’t it a fact that you entered a plea of guilty to battery upon that police officer, the man in uniform?” I answered, “I accepted the deal that the district attorney’s department offered.”
“I see. And you pled guilty to a battery on a policeman?”
“I think it was simple assault.”
(Sarcastically) “Is that right? Mr. Newton, did you see anyone shoot John Frey?”
“No.”
“Did you see anyone shoot Officer Heanes?”
“No. I did not.”
“You have no explanation at all of how John Frey was killed?”
“None whatsoever.”
“I have no further questions.”
With that, Jensen’s cross-examination was completed. It had not gone according to his plan. I had never lost my cool. It was Jensen, in fact, who lost his.
Garry was masterful in his closing arguments. A defense lawyer has to be good at that point, because the prosecution gives the closing argument first, and then has the last word after the defense has spoken. Garry reviewed the evidence, showing the holes and the discrepancies in the prosecution testimony. He had brought a number of large posters into court with Grier’s conflicting testimony lined up side by side, and with a pointer he painstakingly indicated all the contradictions in Grier’s two sworn statements. The whole thrust of Garry’s summing up was to illustrate how much of a “reasonable doubt” there was in the evidence presented by the prosecution.
But Garry did more than this. In a moving and heartfelt closing speech he addressed himself to the conscience of the jury and to their understanding of social conditions that had led to the death of Officer Frey:
The Black community today, the Black ghetto, is fighting for the right of survival. The white community is sitting smug and saying, Let’s have more police! Let’s have more guns! Let’s arm ourselves against the Blacks!
That is not the answer. If you think that is the answer, we are all destroyed. If you think that Mayor Daley has the answer, we are all destroyed. If you think that this nation with all of its power and all of its strength can eliminate violence on the street with more violence, they have another thought coming.
My client and his party are not for destruction; they want to build. They want a better America for Black people. They want the police out of their neighborhoods. They want them off their streets. Every one of you here possibly knows a policeman in your neighborhood. I know several men in police departments. I think they are wonderful people. I live in Daly City; I have a beautiful relationship with them. Those police live in my neighborhood, within three or four blocks. I know where one of them lives. I can call on him if I need him. But no police officer lives in the ghetto. Why don’t they live in the ghetto? Because a man that is making eight or nine or ten thousand dollars isn’t going to live in the kind of hovel that the ghetto is.
Has anybody thought of uplifting the ghetto? So that it doesn’t exist in the manner that it has? These are the things that Huey Newton and the Black Panthers and other people are trying to do….
White America, listen! White America, listen! The answer is not to put Huey Newton in the gas chamber. It is not the answer to put Huey Newton and his organization into jail. The answer is to wipe out the ghetto, the conditions of the ghetto, so that Black brothers and sisters can live with dignity, so that they can walk down the street with dignity.
The fire and eloquence of Charles Garry’s final argument are difficult to describe; he was pleading for the principles and beliefs he feels most deeply about and to which he has dedicated his entire life. When he stood and spoke out for justice and truth and tolerance, he was not simply defending a man whose life was in jeopardy; he was speaking for all the downtrodden and oppressed in the world, and he was asking the jury to think about them also. Few people in the courtroom that day were unaffected by what he said.
In contrast, Jensen devoted most of his closing arguments to the particulars of the trial. He asked the jury to find me guilty of murdering John Frey and defended in detail the testimony of Grier and Heanes. Yet at a point in Jensen’s summation in which he discussed the meaning of law and the process of justice the words could very well have been spoken by Garry. It was what my lawyers and I had been fighting for. But I feel sure Jensen had no idea of the irony in his remarks:
We put together in the courtroom the notion that every right that goes to every citizen is implemented in our courts. I think that is so. And I think you should reflect on this: the notion that society accords a right to an individual has something that goes along with it, and that is that there is no such thing as a right without a duty that goes along with it. That is, if the law says a man has a right, the law also says that every other person must honor that right. He has a duty to honor that right.
What is more fundamental, ladies and gentlemen, than the right to life? What is more fundamental than the right to a peaceful occupation and life?
What we do in a courtroom is to seek out and declare a truth. We must, as I say, declare those truths in a courtroom. If we cannot declare those truths in a courtroom we are lost.
And in a courtroom, just as there must be a duty to implement a right, a courtroom must exist on the basis of the declaration of truth.
With Jensen’s final declaration that I was a murderer, the arguments were finished. The struggle between defense and prosecution was over, and the judge began to instruct the jury about what they must do to reach a verdict. “The function of the jury,” said Judge Friedman, “is to determine the issues of fact that are presented by the allegations of the indictment filed in this court and the defendant’s plea of not guilty. This duty you should perform uninfluenced by pity for a defendant or by passion or prejudice against him. You must not suffer yourselves to be biased against a defendant because of the fact that he had been arrested for these offenses, or because an indictment has been filed against him, or because he has been brought before this court to stand trial. None of these facts is evidence of his guilt, and you are not permitted to infer or speculate from any or all of them that he is more likely to be guilty than innocent.”
As the jury filed out, led by David Harper, I felt everything was over for me. Some jurors had been impressed with my testimony and believed in me. I had watched them throughout the trial and felt they were sympathetic to the defense, but I had no hope of their steadfastness under the pressure of jury deliberations. Often, in such circumstances, people will appear to lean one way but change their minds when conflicting opinions bear down on them. So I went back to my cell prepared for a decision that would send me to the gas chamber. My work had prepared me well; organizing defense groups in the community had continually made me aware that I could be killed at any time, and I knew that when serious actions begin to go down against you, you must be ready. If you wait to prepare for death when the gas chamber is facing you, it is too late. It is the difference between having your raft ready when high tide comes or trying to make it after the waves are there. When death is staring you in the face, the heavy things take over.
The jury deliberated for four days—from September 5 until September 8—and despite the fact that my lawyers were with me constantly, the time passed very slowly. Nonetheless, I was in good spirits. My thoughts kept me occupied. I re-examined everything that I had done before and during the trial and found nothing to regret, nothing I had to square myself with. Our activities as Black Panthers had been worth all the trouble and pain we had seen, and there was no reason to feel we were losing everything. If I had had a chance to start again, nothing would have been any different.
I contemplated the gas chamber. Only two thoughts concerned me: how the last minute would be and how it would affect my family. First of all, I resolved to face it with dignity right to the end. Second, I worried about my family having to live through yet another ordeal. The whole experience had been terrible for them. Yet I knew that if necessary I would do it again, even though it meant more suffering for them. I felt great love for them and valued their support. If I had caused them anguish, I was sustained by the knowledge that one day the people would have the victory, and that this would bring some measure of satisfaction to those I loved.
Many people wondered what the Black Panthers would do when the verdict came down. The brothers had repeatedly said that the sky was the limit if the oppressor did not free me. At the time that was said, we meant that an unfavorable decision would be taken to the highest judicial level. But the statement was intentionally ambiguous and open to interpretation in order to put the whole Oakland power structure up tight. That plan certainly worked. An open interpretation not only attracted considerable publicity but also left us free to make specific decisions about action after the verdict was in, rather than before.
It was in the early evening of September 5, the first day of the jury’s deliberations, that we were notified that the jury was returning to the courtroom. At first we thought they had reached a verdict, but no, they wanted to have Grier’s statement to McConnell read to them again, and they also asked if they could see my bullet wound. When everyone was assembled, I went over to the jury box, lifted up my sweater to show the scar in my abdomen, and then turned around to show the exit wound. (Later, we found out that a disagreement had arisen among the jury members over the location of the wound. If Heanes’s testimony were true [he testified that he was in a kneeling position and I was in a standing position], the wound near my navel would be lower than the exit wound in my back. But if Frey had stood and shot me while I was in a kneeling position, the navel wound would be higher than the rear exit wound. I had testified that Frey had shot me as I fell to my knees. My demonstration supported my testimony.)
It was also during the jury’s first day of deliberations that Garry found the mistake in Grier’s testimony left uncorrected by Jensen. The jury had asked to see the transcript again, but when Garry discovered the error, he refused to allow the uncorrected copy to be sent in. Judge Friedman commented that he did not think the error made much difference. But Garry knew better. It was a vital correction as far as the defense was concerned, a mistake so serious that it could mean a new trial. Garry insisted that he and Jensen listen to the original tape, find out whether the word really was “didn’t”—and send the correction in to the jury. Jensen at first claimed that his office did not have the proper machine to play the original tape. That evening one of my lawyers listened to a dub of the original on his own machine and swore the word was “didn’t.” Jensen did not listen to the tape until the next morning. It was a tense period for all of us, since the jury could have come in with a verdict at any moment. On Friday, September 5, my attorneys played the original tape in the press room for reporters and representatives of the media. Most of them thought the word was “didn’t,” and the news on television, radio, and in the press that day carried stories about this new discovery. Meanwhile, my attorneys went to an audio engineer who worked for a radio station in Oakland. He agreed to transfer the crucial part of Grier’s testimony to another tape and then blow it up on his own hi-fi equipment so that they could hear the correct word distinctly, and once and for all. When this was done, the word Grier actually had said—“didn’t”—came through loud and clear. Meanwhile, the defense was working frantically against time, preparing a motion to reopen the case and trying to get the proper equipment into court to play the blown-up tape for Judge Friedman and Jensen. It was a real hassle, but in the end, over the vigorous objections of Jensen, who claimed it was too late and that Garry should have done this during the trial, the judge did listen to the blown-up tape and had to recognize that the word was “didn’t.” A corrected statement was sent in to the jury late Saturday afternoon, but Friedman would not allow any mention of the original error to accompany the transcript. We never learned whether the jury even noticed it, let alone understood how important and significant a correction it was.
Finally, on the fourth day of deliberations, September 8, around ten o’clock in the evening, the jury reached a verdict. I came back into the courtroom with my lawyers to hear it read by the clerk:
Verdict of the jury. We, the jury in the above entitled cause, find the above named defendant Huey P. Newton guilty of a felony, to wit, voluntary manslaughter, a violation of Section 192, Subdivision 1 of the Penal Code of the State of California, a lesser and included offense within the offense charged in the first count of the Indictment. David B. Harper, Foreman.
The next verdict, with the title of the Court and cause the same: We, the jury in the above entitled cause, find the above named defendant Huey P. Newton not guilty of a felony, to wit, assault with a deadly weapon upon a police officer, a violation of Section 245B of the Penal Code of the State of California as charged in the second count of the Indictment. David B. Harper, Foreman.
The following verdict, with the title of the Court and cause the same: We, the jury in the above entitled cause, find that the charge of previous conviction as set forth in the Indictment is true. David B. Harper, Foreman.
Manslaughter, not murder. That was a surprise. But Garry and I were unhappy with such an equivocal decision. It meant the jury believed I had killed Officer Frey, but only after severe provocation, and in a state of passion. It was absurd, however, that they did not think I had also shot Officer Heanes. Did the jury think someone else had shot him, and if so, who, and how did the two shootings connect? The verdict was a compromise that showed no justice at all, for there was clearly a reasonable doubt about my guilt in the minds of some jurors, although they failed to bring about my exoneration. All these questions began to surface when I realized that although I would have to go to jail, I had escaped the gas chamber. Some people thought the verdict was better than a hung jury and a mistrial; the state could not try me again for first-degree murder. But I disagreed with them.
The verdict caused a lot of dissatisfaction in the Black community. Some people were particularly angry at David Harper, the jury foreman, who, to them, had sold out in typical Uncle Tom fashion. I did not think so. To counteract this opinion, I sent out a message to the community shortly after I had a chance to analyze the verdict. This, in part, was my statement:
The question has been asked: What do I think of the verdict of the jury? I think the verdict reflected the racism that exists here in America, and that all Black people are subjected to. Some specific things I would like to say about certain people on the jury: first, Brother Harper and other members of the jury who believed in my innocence owed an obligation to me and the Black community to adhere to their convictions that I was not guilty. I am sure that they, the people on the jury who agreed with Brother Harper (a strong man and also jury foreman), were in the minority. I believe that Brother Harper was interested in doing the best thing for my welfare. I think that the verdict was a compromise verdict; a compromise between a first-degree murder and an acquittal or not guilty. Why did Brother Harper compromise? He compromised because he truly believed that it was in my best interest. Mr. Harper made his decision based on the assumption that if a hung jury resulted, I would be tried in the next trial by an all-white jury and possibly convicted of first-degree murder. I believe that he based his action or his decision upon the fact that he saw how racist the majority of the jury was acting, and their whole attitude toward the case. I believe that there were few people joining Brother Harper and his just conclusion that I was innocent, and that I am innocent, but he did compromise. Because Harper failed to persuade the jury, or he felt that he could not persuade them or show them the truth or the fact that I was innocent, he thought that he would then give the lowest possible sentence. He might have considered that I had been in jail for the last ten months and that I might be in jail for another ten months awaiting a new trial and then stand the possibility of having the first-degree murder conviction stand, simply because of the racism that exists here in America. These are all my speculations, and I will tell you why I speculate on these things later on while I have this conversation with you.
Brother Harper, like many people, believes that on a manslaughter charge, you would spend maybe two years or three years at the most in the state penitentiary, and further, that due to the fact that I have already been in jail for one year, that while waiting trial another year as a result of a hung jury, I would already serve that time and even more. So, therefore, because he couldn’t get an acquittal, he then chose to compromise and get the lowest sentence. The only problem with that, though, is that in a political case, the defendant is subject to do the maximum length of time. The sentence on a manslaughter charge with a prior felony conviction is from two to fifteen years. But I don’t believe that Brother Harper had any idea of what he was doing, so, therefore, I want to ask the Black community sincerely and Brother Harper’s son to forgive not only him, but also the other people who believed in my innocence, and who were compromising because they did not know what they were doing. I believe that they thought they were doing the best thing in my interest, and the best thing in the interest of the Black community, under the racist circumstances wherein which they had to operate ….
Even though he was unknowingly operating against it, he felt that he was acting in the capacity of one who loves the community. Therefore, I am asking the community that in the event that he teaches at Oakland City College next semester, that he be given all respect due to a Black man because he did not know what he was compromising to.
I am very sure…that we will get a new trial not because of the kindness that the appellate courts will show us, but because of the political pressure that we have applied to the establishment, and we will do this by organizing the community so that they can display their will. The will of the Black people must be done, and I would like to compliment the people on the revolutionary fervor that they have shown thus far. They have been very beautiful, and they have exceeded my expectations. Let us go on outdoing ourselves; a revolutionary man always transcends himself or otherwise he is not a revolutionary man, so we always do what we ask of ourselves or more than what we know we can do…. At this time I would like to admonish my revolutionary brothers and sisters to use restraint and that we would not show violent eruption at this time for the reason that the establishment would like to see violence occur in the community in order to have an excuse to send in 2,000 or 8,000 troops. The mayor has already stated that he would be very happy if something were to happen in the community while the establishment is in a favorable situation. They would like to wipe the community out …. It is up to the VANGUARD PARTY to protect the community and teach the community to protect itself, and therefore at this time we should admonish the community to use restraint and not to open ourselves for destruction.
I cautioned restraint to the people because I knew the police were eager for a chance to kill Black people indiscriminately. They had been waiting a long time for this day, and an angry eruption by the community would have given them the excuse they needed. The community responded to my request and stayed cool. Any spontaneous and unorganized outburst would have caused great suffering. With everything quiet the night after the decision came down, the police felt cheated; they wanted some action, and that meant killing Blacks.
Unable to find any provocation, two drunken colleagues of Frey created one. They drove in their police cars to our office on Grove Street and fired a shattering volley of bullets into the front window. Then they went to the corner, turned around, and came back, shooting into the office again. By this time, some citizens had called police headquarters, and the two policemen were apprehended.
Fortunately for us, the office was purposely empty, and no one in the streets or the buildings nearby was hit by the bullets. But if Black Panthers had been in the office, the police probably would have claimed that we had fired on them first, and then tried to wipe us out. This time, however, they could not hide their treachery behind their usual lie—“justifiable homicide.” The true nature of their crime—an unprovoked and unjustified attack on our office—had been exposed before the community. The two policemen were eventually dismissed from the force, but they were never brought to trial for breaking the law.
But the incident should also help make it clear to doubters that I was in fact innocent. Just as Frey’s two colleagues felt free to go in search of Black people to kill, so, too, did Frey in the early morning hours of October 28, 1967. There are many who do not believe that a police officer, without provocation or danger, would draw his service revolver and fire upon a citizen. But that morning Frey had murder on his mind.
Charles Garry summed it all up when he told the jury that the Black community is in constant danger from the violence of the police:
I wonder how many people are going to die before we recognize the brotherhood of man. I wonder how many more people are going to die before the police departments of our nation, the mayors of our nation, the leaders of our nation recognize that you can’t have a society that is 66 per cent white racists ignoring the role of the Black man, the brown man, the red man, and the yellow man….
Officer Frey bothers me. His death bothers me, and the things that caused his death bother me. I can see this young man going through high school, varsity football, basketball, and all the other things that young men do, in good physical condition. Joining the police department and without proper orientation, without proper attitudes and without proper psychological training and all the other training which is necessary to being a policeman. Being thrown into the ghetto. In a year’s time he becomes a rank and outright racist to such a point that when he comes to class to talk about his success as a police officer, the schoolteacher has to cringe and grimace to let him know that the use of the word “nigger” was not appropriate. I just wonder how many more Officer Freys there are. His death bothers me, but Huey Newton is not responsible for his death.”