Huey P. Newton
Alameda
County, California
Date of Alleged Crime: October 28, 1967
Before any evidence was heard, many Americans believed that
Huey P. Newton, co-founder and “minister of defense” of the Black Panther
Party, had murdered a police officer in cold blood. Others were equally
certain that the charge was a trumped-up attempt to crush the militant Black
Panther Party.
No group brought the racial tensions of the late 1960s into sharper focus
than the Black Panther Party For Self Defense. The Panthers' political
rhetoric and advocacy of armed self-defense against police brutality alarmed
many citizens and brought down the aggressive wrath of police departments
across the nation.
Just before dawn on October 28, 1967, Oakland police Officer John Frey
radioed that he was about to stop a “known Black Panther vehicle,” a van
occupied by two men. A second officer, Herbert Heanes arrived on the scene.
Minutes later, officers responding to a distress call found Frey bleeding to
death and Heanes slumped in his car, seriously wounded. Police found Huey
Newton at a nearby hospital with a bullet wound in his abdomen.
Newton was charged with murdering Frey, assaulting Heanes, and kidnapping a
man whose car was commandeered for the dash to the hospital. While Newton
recovered from his wound, his attorney, Charles Garry, began his defense
with a systematic assault on the grand jury system.
Garry's pretrial motions argued that the Alameda County grand jury system
was unconstitutional, secretive, and prejudiced against minorities and the
poor. He pointed out that black citizens were seldom chosen to serve. Garry
argued that trial juries also were unfair. Since blacks were
disproportionately under-represented on the county voter registration lists
from which jury rolls were compiled, he proposed that providing Newton's
constitutional right to a trial by his peers was impossible. Garry's
pretrial strategy was unsuccessful but thorough, consuming nine months.
Newton's trial began in July 1968 under massive security. During the voir
dire questioning of prospective jurors, Garry rigorously probed attitudes
about race, the Black Panther Party, the Vietnam War, and the police.
Prosecutor D. Lowell Jensen frequently objected that such issues were
irrelevant to the case. Garry stubbornly held to the strategy, trying to
imply that Newton could not get a fair trial or, at least, to sensitize
acceptable jurors to racial problems. Both sides fought hard to determine
the final composition of the jury, which ultimately was composed of 11
whites and 1 black.
Prosecutor Jensen claimed that Newton was a convicted felon on probation for
a 1964 assault conviction. Newton would claim that he was sentenced for
committing a misdemeanor, not a felony, and that he was actually coming home
from celebrating the end of his probation when Frey stopped him.
Jensen held that Newton's probation was still in effect when officer Frey
decided to arrest him for falsely identifying himself as the owner of the
van. Two matchboxes of marijuana were allegedly found later in the vehicle.
Although he was not charged with drug possession, nor was any concealable
weapon produced, Newton was portrayed as a felon with both a motive and the
nerve to kill a police officer rather than face additional felony charges
and a guaranteed return to prison. The prosecution's motive theory thus
hinged on Newton's disputed probation status.
Officer Herbert Heanes testified that he had been guarding Newton's still
unnamed passenger by the van when Newton and Frey began to ‘tussle.’ As they struggled on the hood of Frey's car, Heanes was struck in the arm by
a bullet. Heanes fired at Newton before blacking out. Yet Heanes did not
recall seeing any weapon in Newton's hands. Garry raised the possibility
that Heanes had shot fellow officer Frey. A ballistics expert testified that
both officers had been struck by bullets from police revolvers.
The prosecution summoned a black bus driver named Henry Grier, who testified
that his headlights allowed him to clearly see Newton pull a gun from his
jacket and shoot Frey repeatedly. Yet the defense exposed more than a dozen
points where Grier's testimony contradicted his initial statement to police.
Newton's clothing and physique did not match the description Grier had
initially given. When Garry tried to fit a pistol into the pocket of the
jacket Newton wore on October 28, the gun kept falling out, weakening the
claim that Newton had a concealed weapon.
The prosecution called Dell Ross, who had told a grand jury that Newton and
another man had forced him to drive them to a hospital at gunpoint. At the
Newton trial, however, Ross refused to answer any questions, citing the
Fifth Amendment protection against self-incrimination. Despite a grant of
immunity and Judge Monroe Friedman's explanation that Ross was a witness,
not a defendant, Ross would not talk.
As the judge prepared to jail Ross for contempt, the prosecutor suggested
that if Ross did not remember what had happened on October 28, he should say
so. Ross replied that he remembered nothing. Jensen nevertheless had Ross'
grand jury testimony about his alleged abduction read before the jury. Garry
destroyed the effect of this maneuver by playing a taped conversation in
which Ross admitted lying to the grand jury because he was afraid of being
arrested for outstanding parking tickets. Judge Friedman dismissed the
kidnapping charge.
The closure of Newton's probation remained in dispute. His parole officer
could not remember what date he gave Newton as the end of his probation
period, leaving the motive for shooting Frey unresolved. The matchboxes of
marijuana, which Newton claimed were planted by police, had no fingerprints
on them.
After moving unsuccessfully for a mistrial because of death threats mailed
to the defense, Garry explored officer Frey's reputation. Several
black witnesses recalled Frey's physically abusive and verbally insulting
behavior. A white high-school teacher who had taught Frey and later
invited him back to speak to students recalled the officer's classroom
lecture about “niggers” in the district he was responsible for patrolling.
Garry's next witness stunned the courtroom. Gene McKinney was the man
riding with Newton on October 28, but police had never learned his identity. After establishing that McKinney was Newton's passenger, Garry asked,
“Did
you by chance or otherwise shoot officer John Frey?”
McKinney refused to answer, citing the Fifth Amendment. Prosecutor
Jensen furiously demanded that McKinney be forced to reply. Garry had
skillfully managed to offer the jury a “reasonable doubt” that Newton had
killed Frey. As Newton noted later, if Judge Friedman had then granted
McKinney immunity, McKinney could have accepted the blame for Frey's death,
freeing both himself and Newton without punishment. Instead, Judge Friedman
cited McKinney for contempt and sent him immediately to jail.
When Newton took the stand, he calmly denied shooting Frey or Heanes. For
nearly a full day, Garry's questions drew full descriptions of the aims of
the Black Panther Party, the historical oppression of black Americans, and
police brutality in the Oakland ghetto. The prosecution repeatedly objected
that the lengthy answers were irrelevant.
Newton admitted using his own trial as a political forum, but the defense
was also trying to establish a context in which to view Frey's harassment of
Newton as typical police practice in the Oakland ghetto, particularly
employed against members of the Black Panther Party.
Newton testified that he had correctly identified himself to officer Frey,
who abusively ordered him out of the van. After searching Newton, Frey
pushed him down the street to the parked police cars. When they stopped,
Newton protested that the officer had no reasonable cause to arrest him,
opening a lawbook he habitually carried. Newton claimed that Frey replied
with a racial insult and a punch in the face. Newton fell. As he started to
rise, Frey shot him in the stomach. Newton remembered little else after
that.
Prosecutor Jensen read Newton's arrest records and political declarations,
trying to portray the Black Panther minister of defense as a man fond of
violence and guns. Newton responded by contending that police harassment had
precipitated each arrest and expounded on the political theories in his
writings.
In his summation, Jensen soberly concluded that the evidence showed Newton
to be a violent man and, in this case, a murderer. Garry's summation was a
broad, impassioned indictment of white racism, characterizing the trial as
part of an attempt by the Oakland police to destroy Newton and the Black
Panthers.
One day after the jurors began their deliberations, they asked to see the
transcript of Henry Grier's initial statement to police. Garry noticed
that someone had incorrectly transcribed that Grier “did” see Newton at the
shooting, when Grier's voice on the police tape said that he “didn't.” After a lengthy confrontation between the attorneys, Judge Friedman ordered
the transcript corrected and sent into the jury room without any attached
comment on the mistake.
The jury's verdict was a disappointment to both sides. Newton was acquitted
of assaulting officer Heanes. Instead of convicting Newton on the more
serious charge of murder, the jury found him guilty of voluntary
manslaughter. Because the jury also decided that Newton was still on felony
probation at the time of the shooting, the manslaughter conviction carried
an automatic sentence of 2-15 years.
The defense appealed with a new concerted attack on the jury systems and an
assortment of misrulings by the judge. On May 29, 1970, the California Court
of Appeals reversed Newton's conviction because of Judge Friedman's
incomplete instructions to the jury. The judge erred by not giving jurors
the option of convicting Newton of involuntary manslaughter, a charge
consistent with his claim that he was disoriented and unconscious after Frey
shot him.
Newton was tried again in August 1971. The charge was changed to
manslaughter, but the prosecution presented an identical case. A deadlocked
jury produced a mistrial.
When Newton was tried a third time in November 1971, the judge ruled that
the disputed 1964 conviction should not be included in the indictment. The
prosecution's court case was also weaker, despite reappearances by all of
the principal witnesses. Officer Heanes, who had maintained that only Newton
and McKinney were present during the 1968 incident, now remembered an
unknown third man.
Garry also discredited the testimony of Henry Grier, who claimed to have
seen the shooting in his bus headlights. Grier's supervisor explained
that the bus schedule placed Grier's vehicle well over a mile from the
incident. A hung jury delivered a second mistrial. District Attorney Jensen
reluctantly dropped the charges against Newton in December 1970. – Quoted
from article by
Thomas C. Smith
________________________________
Reference: California
Court of Appeals
Posted in:
Victims of the State,
San Francisco Bay Area Cases,
Police Officer Murder Cases,
Radical Defendants
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