Huey P. Newton Trial: 1968

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Huey P. Newton Trial: 1968

Defendant: Huey P. Newton
Crimes Charged: First-degree murder, felonious assault, and kidnapping
Chief Defense Lawyer: Charles R. Garry
Chief Prosecutor: Lowell Jensen
Judge: Monroe Friedman
Place: Oakland, California
Dates of Trial: July 15-September 8, 1968
Verdict: Guilty of voluntary manslaughter; not guilty of felonious assault; kidnapping charge dismissed
Sentences: 2-15 years

SIGNIFICANCE: While Huey P. Newton's 1968 case was technically a murder trial, it was also one of the most politically charged trials of its era. Defense attorney Charles Garry's use of the voir dire provided a model for choosing juries for racially and politically sensitive trials.

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.

Grand Jury Becomes Issue

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 patroling.

Surprise Witness Surfaces

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.

Jury Disappoints All

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.

Two More Trials, then a Dismissal

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.

Newton was freed, but neither he nor the Black Panther Party fared well in the ensuing years. Decimated by police shootings and internal strife, the Panthers membership swiftly declined. In 1978, Newton was convicted of possessing an illegal weapon but acquitted of assault after allegedly pistol-whipping his tailor. Charges that he murdered a prostitute were dismissed in 1979 after two mistrials. His studies in social philosophy earned him a doctorate in 1980, but his problems with alcohol and drugs persisted. In 1989, he pleaded no contest to misappropriating $15,000 from a public grant to a Black Panther Party-operated school.

Huey Newton was shot to death by an Oakland drug dealer on August 22, 1989.

—Thomas C. Smith