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Free at Last?

Twenty-one members of the Black Panther Party were indicted here yesterday on charges of plotting to kill policemen and to dynamite city department stores, a police station and a commuter railroad’s right-of-way.”

The New York Times
April 3, 1969

Thirteen Black Panthers, including two who fled to Algeria during their trial, were acquitted yesterday on all twelve counts of [their] indictment…. The members of the jury—which included five blacks and three Puerto Ricans—reached a unanimous verdict so quickly that they surprised even themselves.”

The New York Times
May 14, 1971

For most of these defendants, the time spent in jail was more than two years, the time in court more than fifteen months, and the time the jury needed to acquit them all two and a half hours. The twenty minutes at the end belonged to the jurors; one of them, Frederick Hills, speaking over radio station WBAI, could still savor those moments a few days after the verdict:

I flashed a smile at the defense. I figured, look, it’s sixty feet from the jury room over to the jury box. Why make anybody suffer that long, when you have that kind of response? What a fine moment when this marvelous man, Mr. Fox, stands up and begins to read those “not guiltys” and it becomes like a litany, or waves breaking, and defendants start coming apart and weeping, and now they’re in each other’s arms and now some of the jurors are coming apart and this voice keeps booming out “not guilty” 156 times.

The Panthers who wept did so because they had survived; the jurors who wept did so because the Panthers had won. There is, by the way, if not an error, a curious conflict with my own recollection here. When I heard him, Foreman Ingram Fox’s tone seemed conspicuous for its restraint, for the quietness of its reiterated pronouncement of matters of fact. But to Juror Hills, his foreman’s voice seemed to book like the proclamation of an army with banners. They must have shared some inner reverberation.

They also shared, implausibly, an affection for these defendants. Yet, if one animus informed the prosecution of this case, and had seemed evident in the exemplary silence of the editors of The New York Times about every excess of that prosecution, it was the fixed conviction that, while there might somewhere exist an excuse for the Panthers, there could be no excuse for anyone who liked them. In all those two years, the only event that had stirred the editorial pages of The New York Times to really felt indignation had been the support Mr. and Mrs. Leonard Bernstein had given the efforts to raise funds for the trial expenses of the New York Panthers.*

In the same key, Assistant District Attorney Joseph Phillips plainly hated those who would defend such persons even more than he hated the persons themselves. There had been the moment in early April when Colin Connery, a Jesus freak, appeared for the defendant Robert Collier. Connery was an indubitably honest witness; and his story on one point of fact seemed indeed, however benign its intention, to support rather than to rebut the prosecution’s case, an advantage that even Mr. Phillips could clearly enough detect. He later made use of Connery’s testimony in his own final argument to the jury.

But, in their encounter, the affront of what Connery represented—an affection for Robert Collier in someone who otherwise looked like the rest of us—so much seemed to consume Mr. Phillips that, in the compulsion to destroy Connery, Phillips was led to ignore the use the witness might have been to the prosecution. Here was a young man, raised in Queens, educated at Swarthmore, subsidized by Presbyterians, who had turned from the path ascending before him to plunge downward into the East Village, into the company of Robert Collier, with no other vocation than to exist for two dollars an hour as a carpenter and plumber to certified freaks and putative conspirators. Mr. Phillips might have been warned by the modesty and earnestness of the quest for purpose in this witness, which was enough like the bearing of at least three of the jurors to suggest that, even if they might have thought Connery’s commitment a curious one, they were likely to think his motives no more malign than their own.

Even so, Mr. Phillips bludgeoned Connery back along the road that had brought him to the infamy he was now presumed to embody—the college physics courses he tried and abandoned, the turning to the church, the floundering for work at once dignified and useful in the East Village. Mr. Phillips made the witness’s journey—not always sensible but nearly always affecting—sound like some progress into criminal conduct. “Did you,” he asked, “come here with the intent to tell the truth or just to tell some lies?”

Phillips was equipped to bully the witness with displays of those powers of information so uniquely the resource of prosecutors. But he could not sense that by calling attention to an advantage so immense, he might alarm the jury more about him and his office than about the witness. While Connery was being cross-examined, the court recessed for lunch. The assistant district attorney returned in the afternoon able to confront Connery with the record of his employment by the Department of Social Service (useless for damaging his character) and the fact of his single arrest at a civil rights demonstration in Chester, Pennsylvania. “Did you plead guilty of unlawful assembly, which is a misdemeanor? And were the charges conspiracy as well?”

For Mr. Phillips there could be no excuse for any life, however blameless otherwise, that contained a choice so inexcusable as a liking for Robert Collier. Yet, among the defendants, Collier seemed especially easy to like without one’s even making the effort to understand him; he had steadily enjoyed the good opinion of his federal parole officer and even the police detective who had arrested him two years before had a pleasant memory of him. Mr. Phillips himself thought Collier a tangential conspirator; he might not even have been among those arrested if the investigators of the Panthers had not been carried away when they came upon the name of someone who had been convicted of a design to bomb the Statue of Liberty.

Connery had said of his friendship with Collier that “Bob is very accessible,” an expression that might come to the tongue to describe amiable presences more august than a paroled convict turned to social work. Still it somehow fit Collier, who sat throughout the trial looking like a captive prince, only occasionally emitting a remark notable for its mixture of dignity and fine disgust with the proceedings.

After one such observation, Justice John Murtagh blamed Collier’s counsel for stirring him up, and Collier intervened: “Say it to me, Judge; I’m responsible for my actions, not my lawyer.” Toward the end of the trial, Justice Murtagh said again how deplorable he found the manners at the defense table; and Collier replied, “With what you’re doin’ to us, we’re supposed to have manners. You’re kidding me.”

Mr. Phillips’s failure then was the failure of an imagination that could embrace unreasonable feelings of fear but could not even conceive that there might exist reasonable feelings of sympathy. He had a case of enormous, if not always conclusive, detail, although he presented it with so little regard for his responsibility to separate the trivial from the consequential as to remind us again of how demoralizing the influence of lavish opportunity can be.

Even so, listening to him, one was drawn to the conclusion that some of these defendants had mounted an attentat against the police on January 17, 1969, an attentat, however, so botched that it almost suggested a want of serious intent in these persons who seemed otherwise plainly serious. What one could not believe was the imminence of the plot to bomb five department stores on the very day of their arrest. The district attorney’s confidence about this peril had driven a dozen judges to impose and sustain upon the defendants bails of $100,000 each and the Corrections Department to sequester them under conditions dreadful enough to render one of them, an epileptic, too sick to stand trial. Still, as the defendant Curtis Powell would later say, “That jury knew we did somethin‘.”

One could understand that this something was immeasurably smaller than what had been done to them and still be surprised that a jury would move with such speed to its insistent statement that all of its members thought so too. It might, of course, be argued that we have entered a time when the citizen dislikes and distrusts his government more than he does its enemies, and that the Panther jury is a symptom of this change. But to accept that would simply be to imagine one set of mechanical notions being dislodged by its opposite, and to think of juries as acquitting Panthers with no more inner doubt than that which used to afflict juries convicting wobblies. The reactions of this jury seem to have been anything but mechanical; indeed its members were able to disregard the testimony of the underground policemen, which was the foundation of the prosecution’s case, without having to think badly of the agents as people, as though informant and revolutionary alike could be thought of as brought to this place by the common awful circumstance of limited options.

No, it was the affection, the unthinkable affection, that made the difference. And how to explain the affection? Embarrassing as it is to be sentimental about people so free of sentimentality about themselves, one has to say that the feeling arises from the presence of that unquenchable life spirit which Richard Moore, their comrade lost by desertion, once described with the affirmation, “Ain’t nobody can break a hat like a Nigger.”

Once Judge Murtagh was moved to chastise the assistant district attorney, and Mr. Phillips arose, his face working apologies, his hands almost fluttering to appease. Lumumba Shakur laughed at him from the defense table: “You don’t need to do that, Joe. Don’t be a bootlicker. Sit down.”

There was a visit to Afeni Shakur at the Women’s House of Detention. Afeni Shakur is pregnant; she had been out on bail, and Judge Murtagh had remanded her after two of her fellow defendants had forfeited their bail by flight. The circumstances of her motherhood are unconventional, and so, too, in these easy times, is her determination that the child be born. Remanding her, Judge Murtagh had indicated some concern for her health; and Afeni Shakur arose, beside her husband, who is not the child’s father and whose appreciation of her circumstance cannot have been unalloyed, and answered, “It is not my health I worry about, Mr. Murtagh; it is the life of my child.” And every shadow lifted with this self-absorbed cry of the insistence of life on living.

I waited for her a few weeks later at the glass window of the House of Detention visitors’ room, and noticed her looking wearily about for some face she recognized because it is not the custom of the house to tell the prisoner who her visitor is. When she found me, she had to stand and talk over a telephone through the glass. The inanities at my command could hardly justify the process she had to endure to hear them. I felt myself a conspirator along with all the others who torment this child and then apologize and set her free. Going away, I remembered Mr. Phillips saying once that, when these people get out of jail, they will have learned their lesson and some trade, and be the better for it.

Yet what is to become of them now? At the end of their trial, they were very like what they had been at its beginning; its last moment, like its first, was an act of defiance of their judges. Justice Murtagh, being more a man of the world than Mr. Phillips is, is more sensitive to the emanations around him; and it seems possible that he had commenced at some undetectable point before then to understand that the prosecution’s case was not quite so strong as his respect for District Attorney Hogan had led him to assume.

In any case, whatever bias the defendants might impute to him, he has been rendered the fairest of judges, because somewhere along the way he lost the power to influence the jury against them. Had his charge been redolent with prejudice for the prosecution, it is unlikely that it would have altered the outcome. Still, such a charge would have been one of those inconveniences at which the jurors might have had to stop, if only to kick it aside; and he had relieved them even of that.

Listening to his charge as a juror might have heard it, one was surprised to find that Justice Murtagh had left not just crevices to creep through, but quite comfortable exits to escape through without a trace of the sense that one might be avoiding the command of one’s social order.

So Justice Murtagh finished his charge, seeming assured that, after all his tribulations, he had been most kind to the defense. When its lawyers filed their demurrers, Justice Murtagh wondered how they could be so unaware of how fair he had been. “Because you are a pig,” said the defendant Curtis Powell. “I want that man out,” Judge Murtagh pronounced and out the defendant Powell went, to be returned almost at once at the beseeching of Mr. Phillips, upon whom there had suddenly fallen an alarm that would have served him better earlier. He was too late in recognizing that whatever surmises the unexplained absence of a defendant might raise in the jury would more likely be turned against the court and prosecutor than against the prisoner.

These persons went free with a bearing strikingly like the one they carried into prison. Jail could not break them, but they would pass now to the terrible pressure of the Street. Of all parties to their case, they alone had been in harm’s way and they alone remained there. It was the Street that had driven Richard Moore and Michael Tabor to the flight they explained as a political decision, but which seemed more plausibly the product of the exhaustion and the hysteria of life Outside.

Mr. Phillips had helped to construct what may have been the only tight and intimate Panther chapter on the East Coast when he threw them into jail together; and their supporters had gone far toward breaking it up when they bailed out two of its members. Huey Newton had expelled them all from his Panther Party; they were, willy-nilly, Cleaverites, conscript partisans in a quarrel not of their making and not even of their experience. A Cleaverite had been murdered in Harlem and a Newtonite in Queens; still the danger one imagined was not to their bodies but to their affections.

The jury could not free us; we must still look at the wasting of lives. Afeni Shakur, restored to bail, was having lunch the day before her acquittal. Someone at the table said: “What do you think of a brother who is a pig? To take a brother into a station house in handcuffs and beat him. What do you think of that?”

And what,” Afeni Shakur answered, “do you think of a brother who will go to another brother and tie his hands, and put plaster over his mouth and blindfold him and put three bullets in the back of his head? What do you think of that brother?”

She was talking about the Newtonite dead in Queens. For some, when the Panthers went free that was complete and comforting, with no complications ahead; but for those who went free, survival and a sense of community are the continual hazards of a lifetime.

The sentimental response to the trial could make its claim on us for just a little while; the grace of the jury had been only a transient relief in the history, otherwise so bitter, of the conflict between the suicidal and the life-affirming which the Panther style expresses. One had come indeed to think of these few lives and of their pain as an effort to achieve the human and the communal in an environment inhuman and fragmented. At one and the same time we could hear Huey Newton talk about our common need to save ourselves by understanding one another and see cartoons in The Black Panther that show men with guns shooting from cover at persons invisible but implicitly policemen. The jurors had contemplated that contradiction and resolved it by choosing to regard what was human in the defendants’ characters as more important than what sounded inhuman in their language and might, for a while, have been criminal in their intent.

Then a week later, two young men on the Harlem River Drive each took his gun, chose his policeman, and shot him through the back of the head. By all the evidence, both victims were strangers to their murderers; they had apparently been killed, as the Panther defendants had been jailed and prosecuted, not as themselves but as their caricatures.

There was no thought that Panthers had any connection with this deed. Still it had the style of those imaginary political executions so often suggested in Panther literature; and, along with the license plate of an automobile sought by police after the earlier shooting of two other patrolmen, there was delivered to The New York Times a manifesto declaring that these acts were the vengeance of the revolution.

One could believe that the jury was right when it decided that the Panthers on trial do not mean what they say and still recognize that this decision must to some degree be a leap in the dark. And there are many different ways to leap in the dark. The jury’s leap was one; the leap of those young men on the Harlem River Drive could have been another. The jury had managed to find and remind us of the distinction between the Word and the Act. Could these strangers from the Street be now reminding us that the Word has a reverberation and a force independent of any act or even intention of the man who speaks it? The Panthers had preached the gun and the breakfast program; and the killings and manifesto that followed them suggested that there were people who had taken note only of the gun.

One remembered what Afeni Shakur had said about such malign acts and one reflected that she had endured all this and might have come through only to be misunderstood, on some corner of the Street, as nothing better than an example to someone who would shoot someone else in the back.

  1. *

    If literature is represented by Tom Wolfe and the truth of life by The New York Times, then so swift an acquittal ought to have disrupted literature and the truth of life for at least a little while. Yet The New York Times met the verdict with its smugness intact except for the intrusion of peevishness:

    The acquittal…should put to rest the unfounded but frequently heard comment that it is impossible for a black militant to get a fair trial in the United States…exposes as a fraud the Panthers’ noisy and noisome oratory. Nothing that was heard during the long trial made the Panthers’ paramilitary posturings, their confused totalitarianism, and their morbid internal squabbles any the less offensive. But the jurors recognized that these were not the issues before them…. In doing so, they protected the defendants’ rights and punctured the propaganda balloon of the Panthers’ radical supporters.

    Yet these were jurors who later embraced the freed defendants in the lobby of the Criminal Courts building—rather as Leonard Bernstein had embraced a Panther field marshal in that display so offensive to the Times—and went off to celebrate with them thereafter. Was this nostalgie de la boue in a post office clerk, the maintenance man in a public housing development, a retired longshoreman, a supervisor of caseworkers for the Welfare Department?

    But such scenes cannot exist for the editors of the Times, being too awkward to fit into their neat image of jurors who had heroically separated their distaste for the noisy, noisome, and offensive posturings of these defendants from the duty to render them justice. For the Times, the jurors acted in such haste from no other impulse than to give the lie to the critics of the American system of justice; they had encountered no propaganda balloon needing puncture except that put aloft by the radical supporters of the Panthers. The feeling suggested by the moments after the verdict was unthinkable and had to be denied; to the Times‘s editorial writer, Mr. John Oakes, affection is impossible without agreement.

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