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.” –
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