• Email
  • Single Page
  • Print

The Panthers on Trial

Twenty-one members of the Black Panther Party were indicted a year ago last April for having conspired to blow up five New York department stores, a police station, the New Haven Railroad’s right of way, and the Bronx Botanical Gardens. One of them was Lee Berry, who is twenty-four and was under treatment for epilepsy at the Manhattan Veterans’ Hospital on the day of his indictment. He telephoned the police department to say where he was and report himself available for inquiry. There followed a descent in force and Berry’s summary removal to the Manhattan House of Detention, where he was held under $100,000 bail.

He endured the next seven months in surroundings whose amenities have been certified by the New York City Department of Correction: “Over-crowding has resulted in two or three men being assigned to a cell intended to accommodate a single man.” His attorneys very early began to complain that he was an invalid in a condition of casual neglect.

After three months, Assistant District Attorney Joseph Phillips responded with an affidavit from the Deputy Commissioner of Corrections, which, he said, “effectively refutes these complaints.” Even so, State Supreme Court Justice John M. Murtagh ordered Berry’s case “marked for medical attention,” not, he explained, because he gave credence to the contentions of defense counsel but simply “as a precautionary measure.”

In July, Berry’s counsel returned with a claim that Berry had been beaten by a guard. Commissioner of Corrections George F. McGrath has since, effectively so far as any action is concerned, refuted this complaint by swearing that,

The report of the institutional physician on duty at the time, Dr. Collins, indicates that Berry had a small laceration on his left eye which was treated by applying a band-aid…. [Dr. Collins] suspected epileptic seizure because of the findings of post epileptic shock at the time of the examination…. It is submitted that if plaintiff Berry was assaulted as he asserts with a blackjack there would be more substantial evidence of injury than found by Dr. Collins.

Epileptic seizure could serve the Corrections Department to explain Lee Berry’s abrasions; it was, of course, of no use to him in avoiding five days in solitary confinement for insulting the guard he had accused of beating him. His diet throughout that period of treatment was bread and tea. Somewhere, in the confusion of these disputes, his regular medication was withdrawn. His counsel consumed the summer and most of the fall urging writs to have him removed to a hospital. The hearings were put off again and again because Assistant District Attorney Phillips did not have time to attend them.

It was November before Judge Murtagh ordered Berry to Bellevue Hospital for observation. There he seems to have collapsed. He was operated on for appendicitis; the pathologist found that the hospital had removed a normal appendix. He developed pneumonia; the doctors operated again for a clotting of the blood vessels in the groin. In January, the hospital discovered a hole or an abscess in his lung. In February, when the Panther indictments finally came to trial, Lee Berry was too sick to come to court; and Judge Murtagh, with the consent of Assistant District Attorney Phillips, severed his case from that of his thirteen codefendants. There was no show of embarrassment for all the months when complaints of his treatment had been dismissed as vaporings in the cause of a malingerer.

There was, indeed, no thought of reparation or even of indulgence. Judge Murtagh, not needing the degree of reflection which would have gone into composing an opinion, refused a request that Berry’s bail be reduced to make possible his hospitalization somewhere except in a prison ward. He was then forgotten. The thirteen Panthers went to trial; and thereafter every noticed affront to the public conscience came from the manners of the defendants rather than the methods of their prosecutors.

The contumely of the defendants in the first weeks of the proceedings drove Judge Murtagh to suspend their trial and order them from the court until they would swear themselves as “prepared to participate in a trial according to the American system of justice.” Judge Murtagh became then the first generally recognized victim of unfair treatment by any party associated with the New York Panther case, a curious eminence indeed since the only proven, let alone suggested, crime which might justifiably be described as mayhem was visited by the city upon Lee Berry rather than by Lee Berry or any of his codefendants upon anyone else. But that has been described in detail in no respectable precinct except the women’s page of The New York Times, whose city desk has persistently regarded it as unworthy of attention, except in one case where Berry’s complaint was given summary notice followed by an extensive rebuttal from the Commissioner of Corrections.

It was the last of Lee Berry’s misfortunes that the Corrections Department should suddenly have remembered him at a juncture when the general sympathy with the suffering of Judge Murtagh had established the Panthers as “the vicious criminals and hooligans” Assistant District Attorney Phillips describes when his solicitude for the proprieties of language expected in an American courtroom has been especially wounded. On March 11, Commissioner McGrath removed Berry from the inadequate attention of Bellevue to the thorough inattention of the Rikers Island infirmary. His lawyers were not told of the transfer; his medical records were not sent along with him. Four days afterward a private physician retained by his wife obtained a court order to visit him and found that all “medical management had been discontinued” and that his condition had already begun further to deteriorate. After a week, the Corrections Department consented to his return to the hospital.1

As there is then no enormity which our institutions cannot imagine from a Panther, there is no malignity which a Panther cannot expect from our institutions.

The month of alarm that the conduct of the defendants might deny the state an orderly trial followed almost a year of indifference by the state over whether the defendants would have a fair one. That imbalance would be curious if it were not our habit to mark what a man says and assume that we have thereby described what he does. The Times, to take a case, adorns its index every morning with an italic box labeled “Quotation of the Day,” and the day’s happenings are listed less conspicuously below.2

So then, when the Black Panthers profess to live by the gun, we assume that they are murderers; and, when the Assistant District Attorney cries out that “justice has been trammeled by these defendants,” we assume that we are listening to the outrage of a man concerned with justice.

When the defendants were indicted on April 1, 1969, District Attorney Frank Hogan announced the charges at one of those televised press conferences of his whose rarity makes certain the pervasiveness of their notice. He made only a single addition to the allegations of the indictment, but that was more striking and more immediate than anything else in the text before him. The defendants, he said, had planned to bomb Macy’s, Korvette’s, Bloomingdale’s, Abercrombie and Fitch, and Alexander’s that very day.

It would be a while before the police department’s list of deadly weapons seized in the arrests became available as basis for quiet judgment of the imminence of the peril averted. The only potential explosives which seemed practical for carrying into the stores in a woman’s handbag—the alleged technique of the attentat—turned out to be three pieces of pipe, suitable for arming as bombs but not so armed. Assistant District Attorney Phillips occasionally displayed one of these samples in court as dramatic evidence of the heinous intent of the defendants. But he does not appear to have come up with anything more impressive, and little else is suggested in the counts of the indictment. No one can in fairness assert that these defendants had not intended violence at some future time; but we have to say, on the weight of the District Attorney’s own evidence, that we know now and he ought to have known then that they had not equipped themselves for the huge coordinated assault imputed to them in the clangor of his proclamation of their crimes.3

For the next ten months there would exist for the public no image of these otherwise invisible persons except the description provided by the District Attorney who indicted them. It was the description accepted by every agency that dealt with them thereafter; Supreme Court Justice Marks set their bail at $100,000 before their indictment was available for inspection by their counsel. The arraignment of Lee Berry was processed with such desperation that there was no time to inform his lawyer, a condition descriptive of an atmosphere rather than any substantial defect of appointed justice, since he could have appeared surrounded by a cloud of counsel and the finding would have been no different.

At one point in the proceeding, William Kunstler protested for the defense that District Attorney Hogan’s public outcry had already made a fair trial impossible. Justice Marks replied severely, “I don’t think Mr. Hogan’s office needs anyone to defend him.”

The defendants passed then to the supervision of the Department of Corrections. They entered, of course, as detainees awaiting trial, a category rather different from that of persons already judged guilty; they were received as convicts. “There is reason to believe that they are extremely dangerous,” the Deputy Commissioner directed his staff, “…and they shall be kept separate and apart from each other at all times.” In accordance with this procedure of treating the Correction Department’s wards under no definition of their characters except the District Attorney’s, they were scattered over seven different institutions. There were complaints that these conditions of isolation placed too heavy a burden on lawyers struggling to prepare a case for clients with whom they were barely acquainted. Assistant District Attorney Phillips dismissed them with this reply:

I have…assisted the defense on two occasions in holding joint conferences with all their clients at a centrally located place. Those meetings for the convenience of defense counsel are expensive for the Corrections Department. [my italics]

It would take five months of argument before Justice Murtagh agreed to order weekly meetings of one and one-half hours’ duration of the defendants together with their lawyers. By then, to be sure, the defense was pressing in Federal Court for some improvement in the conditions of detention. Mayor Lindsay’s Corporation Counsel offered a strenuous resistance founded almost entirely on testimony by Commissioner McGrath, which the innocent might be surprised to find put forward as its philosophy of law by a city government often noticed for its enlightenment.4

His treatment of the Panthers, Commissioner McGrath attested, was “not based on the premise that [they] are guilty as charged…but rather it is intended to ensure the greatest likelihood of success in maintaining the order and discipline of the given institution.”

  1. 1

    Since these words were written Berry’s bail has been reduced to $15,000.

  2. 2

    The day’s quotation for April 11 came from an architect for the Metropolitan and began, “A museum’s an evolving institution.” Elsewhere Henry Kamm describes his attempt to interview certain Vietnamese farmers interned in Cambodia, another evolving institution. “A conversation with a visitor was broken up by an officer who drew his pistol…. The cowering people were forced back into their classrooms and told not to speak to anyone.” Reading such stuff arouses the thought that the Times might better try to single out for us some deed of the day, but then the word is immeasurably more significant than the act.

  3. 3

    The dangerous contraband seized in the arrest raids on twelve dwelling places was: the components and explosive power for one time bomb; thirty feet of detonating fuse and explosive powder; pipes and powder for three bombs; six pistols, four rifles, and a shotgun. The Panthers, to be sure, are charged with the possession of other explosives at other times; among the acts imputed are the possession of dynamite in November and its use in unsuccessful attacks on two police stationhouses in January (the dynamite did not explode). But, as of April, 1969, the list covers all that could be found. In the atmosphere of intimacy with the affairs of the defendants suggested throughout the indictment, it is hard to believe that if any other explosive devices had been hidden elsewhere, the police would not have been led to them by now. If the police framed the Panthers, we could assume that they would have fortified themselves by contriving an arsenal larger and deadlier than this one; if, however, they simply gave way to their fantasies, we can understand that this meager collection seemed impressive enough to them to encompass the most prodigious conspiracy.

  4. 4

    Still there could be very few of the innocent left by now; it has been a while since many persons bothered to include the treatment of his prisoners in the scale for judging a Mayor’s enlightenment. To visit a Commissioner of Corrections is to come upon a toad in his lair. Mayor Wagner was certainly a kind man, if not always one fervent in moral outrage; his Commissioner of Corrections was a woman widely known for being sentimental in public speech and brutal in the management of her office. Since she left grand-children living, she will pass unnamed. There are occasional scandals about New York City prisons; generally they are produced by the shock of hearing that a member of the better class has been treated for a day or so in the fashion members of the worse are treated the year round. The loudest recent such case involved a college student who claimed that she had been insulted and injured by a House of Detention physician at the time of her reception there. The response of the Commissioner of Corrections was normal for the Department when it is under attack: that is, she treated every assertion of a prisoner’s right as an intrusion on her comfort. “All that doctor did was to give her the examination we normally give, which is to see whether she’s a virgin. She was not by the way.” In the face of such malice, you could only be grateful that the woman was a Commissioner and not one of her own matrons.

    George F. McGrath, her successor, has improved the immediate atmosphere around him by having his office redecorated by his inmates; it must now be this city’s only permanent repository of Afro-American art. His character is otherwise described in his own explanations of his treatment of the Panthers. Like so many other public officials who excuse their oppressions by defaming those they oppress, he has an abnormal quotient of self-pity. In December the Panther complaint prevailed to the extent that, pursuant to court order, he transferred all the defendants to common quarters in the Queens House of Detention and granted their lawyers unlimited access for defense preparation. What would happen, he wrote the Mayor, if all our inmates should demand the same privileges? What indeed.

  • Email
  • Single Page
  • Print