Lise Pearlman appeared in Stanley Nelson’s acclaimed 2015 film “The Black Panthers: Vanguard of the Revolution” as the country’s leading expert on the 1968 Huey Newton death penalty trial. She then moved to the Bay Area where she attended Berkeley Law School and then clerked for California Chief Justice Donald White before practicing law in Oakland. From 1989-1995, she served as the first Presiding Judge of the California State Bar Court.
Cristina Deptula: People who remember, or have heard of, the Black Panthers can have various positive and negative conceptions of them. Could you explain who they were and what kind of social climate they were responding to, and what they did? Basically, give a more full and balanced idea of the group.
Lise Pearlman: In my book the answer to that question took several chapters. The Black Panther Party arose in 1966 after other black militants based in the South began rejecting the peaceful civil rights demonstrations led by Dr. Martin Luther King in favor of aggressive demands for black power to oppose Southern white racists who viciously attacked protest marchers.
Inner city blacks across the country were already impatient with the snail’s pace of racial progress, erupting first in the Watts District of Los Angeles in 1965 with days of riots that prompted President Johnson to get Congress to invest far more funding in ambitious anti-poverty programs. Bobby Seale and Huey Newton were hired for the Oakland federal jobs program, specifically aimed to prevent a new Watts-type riot in Oakland. They formed the Oakland Black Panther Party for Self-Defense in October of that year just after riots in San Francisco prompted by an officer killing a fleeing black teenager suspected of car theft.
The Panthers aggressively confronted Oakland’s mostly white police force, which blacks in the city’s ghettoized neighborhoods had long considered abusive and racist. Many local policemen beat up arrestees with regularity and knew they could kill unarmed black suspects with impunity.
The bitterly divisive Vietnam War brought the Panthers White Leftist support. The Panthers opposed the war as both racist in its objectives and in the way it was waged with disproportionately black draftees. They also established large-scale breakfast programs for poor black children, which drew support from churches and synagogues, and set up medical clinics and testing for sickle cell anemia – health issues the government had long left unaddressed. The Panthers began to gain far more support from the black middle class after the death of the teenager they called their first martyr.
In early April of 1968, just after King’s assassination, Lil Bobby Hutton (their first recruit) joined Eldridge Cleaver in a gun battle with Oakland police, but when Hutton tried to surrender unarmed, he died in the street in a hail of police bullets. The police faced no charges, but many in the black community remained convinced Hutton was murdered. (This past October as part of the official 50th anniversary celebration of the Panthers’ formation, the city dedicated Bobby Hutton Memorial Grove in his honor).
Through their underground newspaper, the Panthers addressed many issues that had been simmering for two decades. Each semi-monthly paper featured the Panthers’ 10-point Party platform including demands for jobs, housing, education, trials before juries of their peers and an end to police brutality. The Panthers distinguished themselves from other black militants by openly carrying loaded weapons and urging all black men to do the same in an era when that was legal in California. The law was changed in June of 1967 to ban “open carry” in response to armed Panthers led by Huey Newton following police around on their beats to make sure they read arrestees their rights.
Many of the Panthers’ recruits were violence-prone; some were ex-felons like Newton. Contrary to their published rules of behavior, some Panthers strong-armed black businessmen for contributions to their programs; some dealt drugs. By the fall of 1967 the Panthers were still only about a score in number – counting those both in and out of jail. Those on the streets were in open war with the local police and admired as heroes by young blacks in the Oakland flatlands.
The Panthers were also already unknowingly harboring the first of many informers reporting to COINTELPRO, a secret web of state and federal law enforcement agents first formed by FBI Director J. Edgar Hoover in the 1950s during the Cold War. Over time, some Panthers committed assaults, robberies, rape or murder—sometimes breaking the law at the instigation of FBI moles.
Cristina Deptula: Was the Black Panther Party like Black Lives Matter? Did the Panthers influence BLM?
Lise Pearlman: The Black Panthers consider themselves — and I believe are also acknowledged by Black Lives Matter spokespersons — as the grandfathers of Black Lives Matter. Beyoncé linked the Panthers and Black Lives Matter in her half-time tribute at the 2016 Super Bowl.
The Panthers were among the first to openly take to the streets to protest police brutality and shooting of unarmed suspects and to aggressively demand major societal change to combat systemic racism.
Unlike Black Lives Matter, the Panthers quickly grew to become a single, albeit loose, organization with many chapters, all of whom studied revolutionary works, trained to use guns and wore a distinctive, intimidating uniform. The Black Panthers were a political party and ran candidates for office in alliance with the Peace and Freedom Party, and later for the Panther Party. Black Lives Matter appears to serve as an umbrella for several different black activist groups who have developed long lists of societal objectives for redressing systemic racism.
Cristina Deptula: Could you explain why the jury on the Newton trial, and Huey’s defense team, was so unusual and revolutionary for the time? What sorts of precedents did they put in place to ensure there would be less racial bias in jury selection?
Lise Pearlman: Historically, the jury “of one’s peers” guaranteed by the Sixth Amendment consisted in practice almost exclusively of white men, especially in death penalty cases. Newton and his radical lawyers boldly put the American justice system itself on trial for racism.
Demonstrators drew an international spotlight to the trial, making it the first “Movement” trial –drawing wide support among college students and Leftists for the claim that no black man could get a fair trial anywhere in America, especially when charged with killing a white policeman.
Through ground-breaking techniques, including pioneering testimony of expert sociologists on race bias, the legal team managed to get most white men dismissed from the jury panel. The resulting jury consisted of seven women and five men — four of whom were minorities. Only two were white men. The diversity of the jury was extraordinary. Observers were even more astonished when the jurors chose the lone black man on the panel – banker David Harper – as the foreman, the first known black foreman of a major American murder trial. Observer Thelton Henderson (who was then a rare black civil rights lawyer and is now a federal judge) called Harper’s selection “completely revolutionary.”
Civil rights lawyer Ann Fagan Ginger, head of the Meikeljohn Civil Liberties Institute in Berkeley, recognized how ground-breaking the Newton jury selection techniques were and used them to create a new criminal defense practice guide. That handbook, Minimizing Racism in Jury Trials, quickly became the Bible for defense lawyers for minorities seeking juries “of one’s peers” nationwide.
Cristina Deptula: How did the Newton trial go beyond just influencing how we carry out jury trials to affecting our whole culture in a broader way? How/why did the trial affect race relations in our country? What about the trial influenced everyday life beyond the courtroom?
Lise Pearlman: The Newton trial was widely expected to end in a death sentence and instigate renewed riots across country like the devastating riots in Watts and elsewhere in 1965-66, in the summer of 1967 in cities like Newark, Baltimore and Detroit, and in 125 cities following Martin Luther King’s assassination in the spring of 1968.
Instead, the diverse jury came to an unexpected verdict on the conflicting evidence, concluding Newton had no gun of his own – none had been found. They also concluded that John Frey, the policeman who died, was abusive and that his back-up officer, Herbert Heanes, shot Newton first. Gravely wounded, Newton overreacted and killed Officer Frey with Frey’s own gun.
The verdict of voluntary manslaughter resulted in its peaceful acceptance by both white and black communities. It attributed fault for the shootings to both the policeman who died and to Newton. That outcome of a highly-politicized trial in such a tinderbox setting demonstrated American democracy at its best — a fair trial conducted under difficult circumstances with exemplary behavior by a judge, prosecutor, and courageous jury foreman determined to ensure justice was both done and perceived to be done. The diverse jury demonstrated that when decision-makers in the justice system reflect the communities they serve, they get far more buy-in for their actions.
Current Alameda County D. A. Nancy O’Malley, the first woman to hold that office, sums the benefits of a diversified justice system up with her motto: “If you’re not at the table, you’re on the menu.”
The Newton trial featured at the defense table a then rare woman lawyer, who became his principal lawyer on appeal. Fay Stender’s brilliant work led to unexpected reversal of his conviction, elevating Stender to international fame as one of the most sought-after Movement lawyers in the country.
The Newton trial also became the Panthers’ most effective recruitment tool both nationally and around the world — the centerpiece of their efforts to gain wide support for their 10-point platform. Huey’s older brother Melvin believes that the Panther Party would have disappeared quietly within a year of its creation but for that headline trial.
Cristina Deptula: Please explain more about the legacy of the Black Panthers and how they influenced African-American civil rights.
Lise Pearlman: The “Free Huey” Movement engendered branches of the Party in cities across the country and support from millions of college students on hundreds of campuses. One major outcome was the Panthers’ success in demanding that ethnic studies be taught in colleges and high schools, leading not only to creation of ethnic studies departments, but giving impetus to the establishment of women’s studies and LGBT studies in the ‘70s.
The Panthers also played a key role in establishing one of the first Citizens’ Police Review Boards, which have since become increasingly common across the country. The Panthers’ demands for police recruits to be drawn from the black community helped spur diversification of the Oakland police force. Diversity is a key feature of guardianship of the community policing promoted in many cities today. This is promulgated to replace the historic warrior philosophy with a primary duty to protect property owners – a view still prevalent in many communities today.
The Panthers’ legacy cuts both ways. They sped up diversification of the local police, bench, prosecutor and public defender’s offices. They also succeeded in pushing for more police accountability to the black community through oversight by a citizens’ review board. But in the process, the Panthers also became a lasting symbol of black militancy to many in white communities, engendering strong backlashes.
In the late ‘60s and early ‘70s, the FBI decimated the Panthers’ ranks and trashed their offices after Hoover labeled them the biggest internal threat to national security. The FBI was responsible for at least four Panther murders and incited a violent split in 1971 between followers of Newton and Eldridge Cleaver, who had fled to Algeria to avoid prosecution in 1969 (joined by his wife Kathleen, the Panthers’ Communications Secretary). The Panthers themselves played a major role in imprinting in the public mind a frightening image that politicians have used for decades to justify harsh sentences for black convicts, to deprive ex-felons of the vote, to adopt Stand Your Ground Laws and vilify Black Lives Matter today as a dangerous group of black militants.
Cristina Deptula: Why would you say the Newton trial was ‘the trial of the century?’ Why more so than say, the OJ Simpson trial, or anything else?
Lise Pearlman: The best definition I have seen of “the trial of the century” was by historian Anthony Lukas: “A spectacular show trial, a great national drama in which the stakes [are] nothing less than the soul of the American people.”
The Newton trial occurred during an extremely violent year in American history when American were deeply divided politically and racially. Race war was predicted. Yet the trial ended peacefully—creating a model for prosecutors and judges handling potentially explosive political trials.
Newton’s was the first Movement trial, encouraging hordes of protesters to demand his freedom and use him as a symbol of all black men caught up in an unjust system. His innovative lawyers pioneered the use of expert jury consultants and included a woman in a key role on the defense team. They engineered — with the consent of prosecutor Lowell Jensen — a diverse jury with an unheard of female majority in a death penalty case. That jury then elected the first black foreman of a major murder trial, who used his talents at organizational management to guide the jury to consensus.
In my first book, The Sky’s the Limit: People v. Newton, The Real Trial of the 20th Century? I made the argument that the unexpected verdict averting national riots created an opportunity after King’s assassination for inter-racial collaboration that led to election of black mayors, Congress members, Senators and Governors that eventually laid the groundwork for the nation’s first black President.
The O.J. Simpson trial was viewed as remarkable for featuring a woman lead prosecutor assisted by a black prosecutor, almost thirty years after Fay Stender played her pivotal role in the Newton trial. It was also still unusual in the 1990s for a high-profile murder prosecution to seat a mostly black jury. That jury wound up electing a black forewoman (again three decades after David Harper’s pioneering role in the Newton murder trial).
The stakes were much lower in the mid-90s than in 1968. Simpson himself never testified at his trial. In contrast, Newton was a revolutionary with activist lawyers who put him on the stand with his life at stake so he could educate the judge and jury about hundreds of years of racism in America – a powerful historic moment that mesmerized the packed courthouse. Also, O. J. Simpson never faced the possibility of execution; if he was convicted, national riots were far less likely than in 1968.
Unlike the O. J. Simpson case which involved innocent victims of gruesome domestic violence, the Newton trial put a dead policeman on trial as a symbol of racist abuse – gaining the Panthers an international political following when the country was already divided over a war criticized as racist. O.J. Simpson drew worldwide attention to his televised trial primarily because he was a celebrity who could afford a Dream Team to defend him.
The riveting trial acquainted millions of viewers for the first time with the intricacies of criminal procedure explained nightly on the news along with DNA evidence. The Dream Team also focused viewers and the jury on accusations of racist evidence-tampering by the Los Angeles Police. When polled after the trial, whites were split over the propriety of the acquittal verdict (42% agreed with the acquittal and 49% favored his conviction). Black viewers mostly endorsed the acquittal — 78% in favor, 10% believing he should have been convicted. Not until 2015 did a poll of African-Americans reveal a majority who believed that Simpson got away with murder.
The differing reactions to the O. J. Simpson case was an eye-opening look at the different prism through which blacks and whites view the same experience. That illustrates why diverse juries comprised of people with very different life experiences help cancel out each other’s bias and reach more defensible verdicts.
Cristina Deptula: For the younger generation, or just for everyone really, why is it important to know the history of the Black Panthers and the Huey Newton trial? How does that knowledge of history help us as we seek a more just world today?
Lise Pearlman: The Black Panthers were mostly in their teens and early to mid-twenties. They took to the streets for a cause of social justice they believed in and brought international attention to the history of racism in America. They also worked hard to start major community programs and lobby for ethnic studies programs. They trained for a revolution they could never have carried off, but were willing to lay down their lives if need be. Some did. Others went to prison.
They made mistakes to learn from, but they also achieved amazing results. Most of them never realized how much they accomplished in helping move the long arc of the moral universe toward justice, as Dr. King sought to do with his life’s work. Most Panthers considered banker David Harper an Uncle Tom. Few had any idea that the jury foreman knowingly risked his career and his life to make sure justice was done. Nor did most of the Panthers who picketed that 1968 trial learn about Ann Ginger’s resulting 1969 handbook that led to far more diverse juries “of one’s peers” for minority defendants nationwide.
Most Americans today do not know that including women and minorities among the cross-section of citizens routinely serving in jury pools got jump-started by the defense team’s aggressive efforts to seat women and minorities in the 1968 Newton death penalty trial.
Today’s issues of inequality and injustice can be addressed with similar zeal by young people focused on social justice, but it is important for them to learn from the history of this pivotal trial what worked then and what did not.
Cristina Deptula: How can we continue to further transform our legal system to treat all fairly regardless of race, class, gender etc? What reforms still need to be made?
Lise Pearlman: Oakland’s diverse police force, bench and prosecutor’s office are at the cutting edge of modern law enforcement, partly because of court-ordered reforms to the police department. Similar reforms have recently been ordered in Ferguson and Baltimore following widely publicized shooting incidents. Two black Attorneys General in a row under the nation’s first black President favored federal intervention.
This requires leadership committed to evenhanded justice regardless of race or ethnicity, class, gender, sexual identity or religion. Key reforms that should be replicated more widely are body cams for police, more cities creating police review boards with meaningful authority, and diverse police forces that mirror the populations they serve.
Oakland is also among the cities that have adopted restorative justice programs to redirect high school offenders away from the drop-out to prison pipeline, and Operation Cease Fire, an innovative program in which police, prosecutors, social workers and other government personnel sit down with gang members to intervene and give them the chance to lay down their weapons in exchange for help obtaining education, jobs, health care, and counseling to turn their lives around. This program acknowledges the handicaps that many minority youths grow up with in a society of haves and have nots and has made inroads in reducing gang membership and murders.
Legislatures committed to reform are also key. In the past few years there have been bipartisan proposals to reduce prison populations for nonviolent crimes, a population that is disproportionately minority. There have also been efforts to address racial profiling in arrests. Since Trayvon Martin’s death Black Lives Matter protesters have dramatically increased media attention to police and vigilantes killing unarmed black suspects. But sniper attacks on police are also disturbingly on the rise, exacerbating a racial divide and a split among those employed in law enforcement on how to proceed to best ensure the safety of our citizens.
To become more representative of our citizenry, the justice system needs more women and minority judges and prosecutors. Some states still seat almost all white male judges; nationwide, about 80% of elected prosecutors remain white male. We need to choose more prosecutors who emulate Newton prosecutor Lowell Jensen’s commitment to jury diversity and to doing justice rather than winning at all costs.
We need to change the macho culture of too many criminal justice personnel, including the continued hiring of predominantly white prison guards who often maintain a dehumanizing “us” versus “them” attitude toward incarcerated minorities.
The transformation of warrior-policing to guardianship of the community policing occurred in Watts in Los Angeles and is currently under way in Baltimore. After the death of Freddie Gray, the Baltimore police hired a female trainer and more recruits with a background in sociology. Prosecution of police for misconduct remains rare and convictions are often elusive.
But the public demands more accountability; police departments are increasingly using body cams and implementing other reforms under the leadership of progressive police chiefs and/or federal oversight in civil rights cases brought by legal specialists. Implementation of such reforms requires judges who care about achieving those goals. Many states have been moving in that direction; the federal courts now may be headed in the opposite direction.
Cristina Deptula: Well, we certainly hope that the moral arc of the United States judicial system will continue bending towards justice for all, regardless of race. And we thank you for your time and encourage people to order and read American Justice on Trial.
As It Ought To Be 