Photograph Source: CIR Online – CC BY 2.0
“We can’t go back to the old days of the all-white criminal justice system, though Trump did his best to do that. The battle isn’t over yet. Change doesn’t automatically happen.”
– Lise Pearlman
Lise Pearlman celebrated her 19th birthday in 1968 when she was an undergraduate at the University of Pennsylvania. The following year she transferred from Penn in Philadelphia to Yale in New Haven where two Black Panthers, Bobby Seale and Erica Huggins, would go on trial, and where she went door to door to elicit views about the presumption of the defendants’ innocence. Years later, Pearlman—whose ancestors fled from pogroms in Eastern Europe, not far from Ukraine— attended law school at Cal in Berkeley. She passed the bar exam, became a trial lawyer and then a judge. The author of five books about the law and justice: the first, The Sky’s the Limit: People v. Newton, the REAL Trial of the 20th Century; and the most recent about the kidnapping of the Lindbergh baby titled Suspect Number One: the Man who Got Away.
Now, with the release of American Justice on Trial—a riveting documentary that focuses on the courtroom drama that took place in the summer of 1968 in the Alameda County Courthouse—Pearlman can count herself an accomplished movie maker and film producer. Andrew Abrahams, of Open Eye Pictures, and Herb Ferrette directed. Abby Ginzberg, President of the Berkeley Film Foundation, and Bob Richter, now in his 90s, co-produced. Pearlman did the writing and much of the interviewing.
I did not know much about the Huey Newton trial until I read Pearlman’s book, though as a reporter I attended the trial in New York in 1969 of a group of Black Panthers charged with conspiracy to blow up landmark buildings and sites of historical and political significance like the Statue of Liberty. In 1970, I visited Eldridge Cleaver when he was in exile in Algeria, and in 1989 I attended Huey Newton’s funeral in Oakland, where I met Bobby Seale who introduced me to his mother and gave me an autographed copy of his book about barbecuing. Pearlman’s film took me behind the scenes of the Newton trial and showed me sides of the Panthers, their lawyers and supporters I was previously unaware of, though the Panthers always reached out to me and to other young white radicals, who like them wanted alliances and cooperation.
Nine years in the making, the doc was cut from 70 minutes to 40 minutes in the expectation and hope that it would be viewed in school classrooms and reach young students. In fact, American Justice on Trial is a near-perfect vehicle to educate and inform the young and the old alike about a pivotal chapter in the history of American jurisprudence that attracted international attention. For 40 minutes, there’s suspense and a large cast of very quotable characters, both white and Black, including many Panthers who are still alive: Kathleen Cleaver, David Hilliard and Janice Garrett-Forte who says that if Huey were to be found guilty there would be “warfare” on the streets of Oakland.
Pearlman told me, “I owe a debt of gratitude to the directors, especially Abrahams for his artistry and for turning the doc away from a series of talking heads lectures into a compelling drama.” She added, “During the making of the film, there were disagreements about accuracy vs. art. I don’t think we sacrificed one for the other.”
1968 has followed Lise Pearlman around for the past 54 years. It has also followed the women and men who appear in American Justice on Trial. 1968 changed their lives. The trial of Huey P. Newton, the co-founder with Seale of The Black Panther Party, changed the life of David Harper, who deftly navigated his way through the legal labyrinth, joined the jury and became its foreman. In many ways he’s the hero of the drama. In 2015, the city of Oakland created a “David Harper Day” to honor him. Like a detective on a murder case, Pearlman tracked Harper down to his home in St. Louis and interviewed him.
Harper had refused to talk to reporters at the end of the trial, though a year later he granted an exclusive interview to Gilbert Moore, one of Life magazine’s first Black reporters, who quit his job and wrote a classic about the Panthers titled A Special Rage.
In American Justice on Trial, David Harper says, “I felt like I was ordained to do a job.” Indeed, he was a man on a mission. His co-stars in the drama are Oakland’s Black community. 10,000 protesters gathered in Oakland on Newton’s birthday, February 17, 1968, and heard speeches from Bobby Seale, Eldridge Cleaver, Stokely Carmichael (Kwame Ture) and H. Rap Brown (Jamil Abdullah al-Amin). Agnes Varda filmed Cleaver, Seale, Carmichael and Brown in her 31-minute black-and-white documentary, Black Panthers, that captures the intensity of that moment.
Protesters chant slogans like “Free Huey,” “Off the Pig” and “The Sky’s the Limit,” all of which planted the notion that if Newton was found guilty, the streets of Oakland would be bloody.
Pearlman, now retired from the law and the bench, remembers the protests in New Haven in those heady days. She also places them in a social and political context that resonates today. “The trial was pivotal not only for Huey and the Panthers—who used it to promote their ten point program— but also for justice in the U.S,” Pearlman told me just days after her film premiered before a partisan crowd at the Roxie Theater in San Francisco that included Newton’s widow, Fredrika and Elaine Brown, who chaired the Black Panther Party from 1974 to 1977, the only woman to serve in that position. Pearlman sat in the audience, along with her husband.
During a phone interview with me, she added that “The Newton trial demonstrated the importance of ethnic and gender diversity on juries.” Charles Garry and Fay Stender, Newton’s white lawyers, understood the power of voir dire and used it as a powerful tool to select a jury that wasn’t white and male. Stender, who conducted much of the research and wrote the briefs, has long been one of the unsung heroes of the Newton trial. Anne Fagan Ginger, a lawyer, activist and founder of Meiklejohn Civil Liberties Institute, wrote and published in 1969, Minimizing Racism in Jury Trials, with introductions by Garry and Stender. Throughout the 1970s, it served as a Bible for criminal defense lawyers representing members of minority groups.
American Justice on Trial tracks the drama in the courtroom, in the streets of Oakland, and across the United States in the spring and summer of 1968, when all hell broke loose at the Democratic National Convention in Chicago. Newton’s trial, which was originally scheduled to begin in the month of May—when French workers and students took to the streets—was postponed twice. First, after King was shot and killed by James Earl Ray in Memphis, then again in June after Sirhan Sirhan gunned down Senator Robert Kennedy, who was running for president. The times couldn’t have been more volatile.
The Newton jury, which was made up of seven women, four people from minority groups and two white men, deliberated for four days, finally returning with a unamious verdict of guilty on voluntary manslaughter, not first degree murder, as charged by the “the people” aka the State. “A traditional white male jury would likely have returned a verdict of murder in the first degree,” Pearlman told me.
She credits Judge Monroe Friedman for keeping a level head during the trial and giving Newton the opportunity to testify under oath about the history of slavery and racism. It was Friedman’s last case.
American Justice on Trial offers a convincing dramatic recreation of what the jury concluded happened on the night of October 28, 1967, when a white police officer named John Frey, 23, and his back-up officer Harold Heanes stopped Newton, 25, who was driving a “known Panther vehicle” with outstanding traffic violations. Newton emerged from the vehicle carrying a law book and no gun and did exactly what the officers told him to do: face downward and spread eagle.
In the courtroom, Heanes testified that he was hit by a bullet from a gun that was fired in the darkness 30 feet away, where Newton and Frey grappled with one another. Heanes fired his service revolver and wounded Newton in his abdomen. During the trial, the jury found that Newton had wrested a gun from Frey and pulled the trigger more than once.
In fact, Frey was shot five times and from two different directions. He died in the streets of Oakland. Newton was arrested, taken to Kaiser Hospital and charged with murder. No guns were admitted in evidence at the trial, though a ballistics expert testified that Frey died from bullets fired at close range and from his own gun.
Charles Garry argued that Newton acted in self-defense. The jury didn’t accept that account, though on appeal, Newton’s conviction was reversed and a new trial ordered. Following two mistrials, the Oakland District Attorney declined to prosecute a fourth time and the charges against Newton were dismissed.
Pearlman told me that the Newton trial and its aftermath shaped the course of American history. FBI Director, J. Edgar Hoover, declared the Panthers Public Enemy # 1. In December 1969, two members of the Black Panther Party, Fred Hampton and Mark Clark, were killed by law enforcement officers in Chicago.
In the wake of those murders and others, the Panthers turned increasingly to electoral politics. Bobby Seale ran for mayor of Oakland and Elaine Brown ran for a seat on the city council, and though they lost those races they raised awareness of racism and injustice.
“We can’t go back to the days of the all-white criminal justice system, though Trump did his best to do that,” Pearlman reminds me. ”The battle isn’t over yet. Change doesn’t automatically happen. Right wing politicians don’t want any criticism of American history taught in school classrooms, but I think kids are too savvy these days to allow that to happen. After all, they’re exposed to popular culture and popular music.”
The Panther legend has lived on in rap, hip-hop and in movies by young Black directors like Spike Lee and Melvin van Peebles whose 1971 movie Sweet Sweetback’s Baadassss Song depicts a Black man framed for the murder of white cops, and who goes underground and becomes a fugitive who does kill cops. The Panther Ten Point Program—which called for the termination of police brutality, the end of the murder of Black people by the police and the right of Black people to be tried in courts by juries of their peers—is as new and as fresh today as it was in 1966 when Newton and Seale first wrote it. American Justice On Trial accords the Panthers, their friends and allies, including Garry, Stender, and jury foreman David Harper, the respect they deserve and that has too often been denied them. The documentary is also a reminder that revolutions take place in courtrooms as well as in the streets and on the barricades, and that unlikely heroes emerge in the heat of battle.
