John Murtagh
John Murtagh; drawing by David Levine

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.”

He progressed through a series of distinctions which never established any visible difference in their treatment as persons living under a presumption of innocence from that appointed for persons sentenced for guilt.

They were, he noted for example, “exponents of a political philosophy over which there is considerable controversy.” They must then be kept apart for their own safety. “The danger is greater if contact is permitted between plaintiffs housed in the same institution, for through such contact the likelihood of open discussion and attendant public reaction is greater.”

These were, Commissioner McGrath insisted in his oral testimony, dangerous, obdurate, and untrustworthy prisoners. His written affidavit cites the enormities of only one of these hard cases: “The plaintiff [Lumumba] Shakur was disciplined on July 8, 1969, for possession of a ball-point pen and a Black Panther newspaper.”

Beyond this and the adoption as his own of the District Attorney’s description of his wards, Commissioner McGrath defended himself by certifying the uniform degradation of all the prisons under his care. The defense complained that some of its clients had been denied mattresses: “In respect to the assertion that on occasion plaintiffs have been without a mattress, the department, during the last two years, has been purchasing specially covered mattresses for all its cells. Prior thereto, the incontinency of some of the inmates prevented the use of regular mattresses. However there has been no policy to deprive plaintiffs of a mattress. Almost all of the cells in the Manhattan House of Detention are equipped with mattresses.”

And, further, “In respect to the assertion that plaintiffs have been denied access to the institution’s library, the library has been closed for approximately seven months prior to the commencement of this action.”

While the defendants thus struggled to establish their rights as having some weight when balanced against the convenience of their jailers, District Attorney Hogan was selecting the judge who would try them. It is an assumption prevalent in the criminal courts that Mr. Hogan picks his judges in cases really consequential to him. In this case, rather by accident, the operations of this custom were made publicly more manifest than they normally are. The ideal trial judge aspired to in our criminal system is supposed to come to his case looking upon defendants as unfamiliar to him as they are to the jury.

In deference to this conception, the courts prefer to have the parties argue their pre-trial motions before a judge other than the one who will preside over the trial itself. That is the theory of Special Part 30, where judges hear and rule on motions in cases they will never try; pre-trial motions often require the ruling judge to read the grand jury minutes in the case, a possible taint of the mind from which the theory at least prefers to protect the trial judge.

Still, throughout last fall’s preliminaries, wherever they turned with their motions, the Panther lawyers never encountered a Criminal Judge except Justice Murtagh. At length Panther attorney Gerald Lefcourt wondered if he might somehow take his plea to Part 30. That recourse, Judge Murtagh replied, would not be possible, because the New York State Appellate Division had assigned him permanent custody of the case in all its aspects. Lefcourt inquired of the Appellate Division and received the reply that Judge Murtagh was incorrect. There followed a complaint and this explanation:

Justice Murtagh had been assigned full command of the case by Justice Mitchell Schweitzer as administrative judge of the criminal courts. Justice Schweitzer said that last summer he and the District Attorney had been struggling as always with the clutter of the calendar. Mr. Hogan had observed that the Panther trial would be immensely complicated: Couldn’t matters be eased if one judge were assigned to preside over the case all the way through? He suggested Justice Murtagh and Justice Schweitzer agreed. The explanation, then, was what it generally is when a question is raised about some incident in society’s treatment of the New York Panthers: the convenience of an institution transcends whatever shadow of the rights of the defendants might lie across its path.

The result, whatever the excuse, was for the judge who would try the Panthers to be selected by the District Attorney who would prosecute them. It was to this assemblage of so many familiars that these defendants were brought still strangers from their isolation to trial at the beginning of February.5

The dignity normal in the court they entered could not, for the next month, be remembered except on those Monday mornings when Judge Murtagh had them wait while he disposed of the morning calendar, a parade of criminal cases lending themselves to summary action, either for judgment or postponement. Judge Murtagh sits in a brown courtroom. All last fall and into the spring, there remained unrepaired on the wall a hole—the shape and size of a large map of Norway—left behind by falling plaster. If a defendant can hardly expect a jury of persons with a background like his own, we have assured him a trial in surroundings very like his home.

On one of those Mondays Justice Murtagh had before him a building inspector believed to have taken bribes for passing defective fill and convicted of contempt for failure to cooperate with the Grand Jury. Assistant District Attorney Jeffrey Weinfield, curiously slack to those who knew him otherwise only as a sword unsheathed and ready at the Panther hearings, desultorily urged some vague term in prison. “I am loath,” Justice Murtagh replied, “to impose sentence in this case.” A watcher reflected, without vengeful animus, that on some summer’s day the whole East Bronx will sink from sight upon fill of the sort approved by the man before him. No matter; Justice Murtagh understood that a building inspector who takes a bribe could no more understand the social consequences of the act than a young man who signs on as an assistant district attorney. Go, he said, cooperate with the Grand Jury, avoid evil companions.

There stood up a Negro, his defeats much easier than his age to count on his face; a woman from Legal Aid stood by his side. They were plainly strangers to each other. He had been convicted. It was Justice Murtagh’s duty to pronounce sentence. The proceedings were inaudible: the Assistant District Attorney said something, the defendant said nothing, and the Legal Aid lawyer barely anything, and the judge gave him a year. He did not seem sure that he had heard what had happened: a year seemed longer than he had expected. The Legal Aid lawyer explained, not coolly annoyed but plainly under pressure for time, that this was as good as they could have gotten.

Legal Aid functions by accommodation of this sort; it is not frequently enough able to offer the defendant services assuring him anything but the sentence the District Attorney appoints for him. It is another assumption of the criminal bar that no attorney in charge of Legal Aid’s criminal division is ever appointed without prior solicitation of the District Attorney’s opinion of his capacities.

Then Justice Murtagh abandoned the comfort of having defendants who are accustomed to be humble and turned to their disconcerting opposites in front of him. Their difference from the usual defendants was most noticeable during the month of their outcries; but those, while seldom irrelevant, were not always apposite, not invariably reflecting the dignity of revolutionaries. They produced more laughter than they ought to have. One felt that, if these fluid improvisations continued too long, we would arrive at a certain failure of seriousness from men and women in a tragic circumstance.

The lines, even for persons implacably defense-minded, were not clearly enough drawn; some part of almost everyone has to go out to a judge who is being called a pig. There was too much of the coarseness, not enough of the kindness, too much of the impudence, and not enough of the simple bravery some of us have come to admire in the Panthers. One could not say that it did not work but, inescapably, it would not work for long; the defendants had chosen the resource of the night-club insult, and that is a well where the bucket hits the bottom very soon.

But that something more which might reward a patient wait upon them was suggested just once that month when the defendant Michael Tabor gave his witness. The defense had been contesting the scope of the police search on the arrest night; and Michael Tabor had been called to describe the morning hours when they came for him. His opening reminiscence was of coming home after midnight and of talking to his wife before they went to sleep:

“We discussed our coming child,” he said, “and the ways and means the party can serve the needs of the people, specifically the free breakfast program.”

The elevation of this tone ought to have been ridiculous; but it was everything except that. The voice enforced a majesty to which Michael Tabor’s past troubles of drug addiction and present circumstance of imprisonment could assert no formal claim. It was the voice of the organ in the cathedral. The same god that had granted him this instrument had added the most perfect instinct for its employment. No sentence departed from the cadence of the litany; the chosen word was always the stately as against the common one. (Wouldn’t we say “help the people” where Michael Tabor says “serve”?) And as he had found the precise tone, archaic without ever being primitive, for this old-fashioned instrument, he had found its most proper theme: for the next two days we would listen to a nineteenth-century man explaining his salvation by Grace.

He was yielded up to Assistant District Attorney Phillips who approached him with the assurance, the coldness, the contempt of that rectitude which is armed with the criminal record of the witness.

Michael Tabor conceded the record. He is twenty-three now and had been a narcotics addict from the time he was thirteen until he was nineteen; and he had stolen to “secure funds for my habit.”

“Is it fair,” the Assistant District Attorney pursued, “to say that you would lie, cheat, steal, or kill to get narcotics?”

“I have lied, stolen, cheated to get narcotics,” Tabor amended, “I would not kill.”

“When did you become truthful, Mr. Tabor?” Phillips asked.

“When I liberated my soul and body from the plague of hair-o-wine,” Tabor answered.

It went on that way, the District Attorney leaping, the witness pulling him gravely, even sardonically, to earth, until a moment when there came a defense suggestion of a recess. “A recess,” Phillips protested, “gives the defendant an opportunity to be coached.” He remained possessed of the caricature he had brought with him; he could still imagine no source except coaching for a performance of this quality from a person so contemptible. How little of life the criminal prosecutor knows. Joseph Phillips must have processed a thousand felons, most of them black and all of them too full of common sense to risk talking back to him; he had never had a chance to know that the Street, for a thoughtful pupil, is our one best school for counterpunchers.

Yielded at last back to Crain, one of his defense lawyers, Michael Tabor explained his struggle with heroin:

“I began with hair-o-wine at the age of thirteen. I thought it something slick, something sly. Then, after a while I did not feel my nauseous and disgusting reality. I did not smell the rancid stench of the urine-soaked tenement dungeons. I did not hear the wailing sirens of the police cars. I did not feel the uncollected garbage underneath my feet. I sank deeper and deeper into the pit of degradation.”

And then, just when he had begun to recover, he had met “a piece of literature, The Autobiography of Malcolm X. It gave me a new purpose in life.” There had come over the courtroom a silence rather like awe; the organ had struck the key in its audience. We were listening, with no visible intrusion of irony noticeable on the faces even of his prosecutors, to a man on trial for arson and attempted murder telling us how his soul had been saved. He had arrived, he carried us, to an understanding through an investigation of himself and of the system and he had learned:

“Heroin addicts and alcoholics are all woven from the same fabric. It’s just that their disease manifests itself in different forms. The only way the various psychological diseases can be overcome is by effecting a radical over-all change in the social system.”

And at that, the spell over Judge Murtagh seemed to break. The cure of alcoholism is one of his several good works; and there intruded upon him Michael Tabor’s equation of the Irish curse with the black one—of the drunk with the addict. The identification could not be made. He roused himself, the gap between them opened again, and he said, “Counsel, don’t you think we had better get back to the issues before the court.”

So then, the once-born are trying the twice-born. Phillips recognizes that. Whenever he rises before some judge to whom the defense lawyers have hopelessly repaired, he justifies his treatment of these prisoners by imagining the infamy of their characters, and reaches for the worst thing he can say about them. It always is,

“They are terrorists rather than ordinary criminals-for-profit.”

They are then, for their prosecutor, simply the kind of ruffians society cannot employ or forgive—the over-principled kind. The defendants understand that special mark upon them; even Richard Moore, the Panther who was the lord of their misrule in Justice Murtagh’s courtroom, does not mock when he comes to contemplate what for him is plainly his redemption. He, more than all the others, is of the Street. He went to prison after a gang fight when he was seventeen and stayed there to the end of his five-year term, adamant against the acquisition of one day’s good time.

“I didn’t do time like everyone else,” he says. “The average blood upstate does it nice. The guards used to say to me, ‘Why do you do your time so hard? Every other dude up here tries to smile.’ But, when I came out, I asked myself why should I ever go back for nothing, like stealing a pocketbook. Why shouldn’t I go for trying to change things, for trying to deal everybody a brand new deck?”

Most of the hearings have been given over to the testimony of policemen on the conduct of the arrest and search of various defendants. It is Justice Murtagh’s task to assay their probity; his bearing at this assignment was a reminder of how early he found his church and how secure he is in its assumptions. In the Forties, when he was Mayor O’Dwyer’s Commissioner of Investigations, he was indicted for a failure of zeal in pursuing his inquiries into a police department which had sold itself intact to a bookie.

The indictment had no basis except political spite. In February the Times had the bad grace to mention it and occasionally thereafter some defendant or other would shout at Justice Murtagh, “You’re a bandit judge; you been indicted.” But that was unfair. Justice Murtagh was then, as now, incapable of corruption; he was also unfortunately then, as now, incapable of imagining that policemen could lie. That incapacity may explain his rise in the courts. There are very few people who do not know that policemen lie by now; and district attorneys are dependent enough on those lies to cherish any judge innocent enough to believe them.

Policemen have to lie, if only because they are incurable slovens at record-keeping and must invent explanations to take care of the pedantries of constitutional prejudice. These hearings, for example, have been a series of revelations of warrants missing, official reports unfiled, memo books lost. Beyond those minor lapses in procedure, there were no search warrants in this case, a lack which cast a shadow over the rights of the arresting officers to seize any objects not in plain sight. As a result they were forced to conjure up for Judge Murtagh vistas of rifle stocks protruding from beneath mattresses and gun butts falling out of closets and other prodigies, making it necessary for them to soil the constitution while protecting the public by rummaging through anyone’s bureau drawers. No one except Justice Murtagh could have believed any of it.

The defense had no recourse except to probe for evidence of some special zeal which these policemen may have brought to this assignment from their hatred of the Panthers. Success, for what it might be worth, was available to them only on the first day: Detective Joseph Coffey reported that he had found Tabor “most docile” when he was finally brought to earth. There was enough malice in his satisfaction to encourage Lefcourt to press on in the afternoon:

Defense Counsel: Have you said that the Black Panthers should be eliminated?

Coffey: Yes, sir.

Nightfall seems to have been a time for Mr. Phillips to make sure that no future witness allow himself a show of emotion even this inconsequential; everyone who followed Coffey had that suavity and disinterest in matters of public controversy we generally see in policemen on the witness stand, if not nearly so often on the street.

The defendants appeared incensed when Coffey described Tabor as docile under custody. They seem in general rather embarrassed at having been taken without firing back, as though anyone who had observed their exuberance after ten months in prison could question their courage or doubt the dignity of Michael Tabor’s containment under any circumstances.

Yet they have been brought here at least as much for what they said as for anything they may have planned to do; and it would seem very much to their best interest not to fortify the District Attorney in his assurance that what they say is what they do. A man as obviously spirited and unafraid as Tabor, who has three guns at hand and enough time to ready them after the police knock on his door and who takes that time to decide to give himself over, peaceably and proudly, is someone rather different from Phillips’s crude drawing of a thug living by the gun. But these defendants are different from ordinary defendants peculiarly in their scorn for their own best interest; they are incapable of pretense.

Except perhaps pretense to themselves. The Black Panther Party grew, after all, out of an environment where, to be recognized as gallant, it is too often necessary to present oneself as suicidal. Their enemy, more intimate than the policeman, is the Street hustler, for it is the style of the hustler—slickness, evasiveness, absolute self-interest—against whose temptations to the young the Panthers place their own model.

The element of violence in the Panther model is an extraordinarily subtle thing to assay. The most conspicuous creation of what the Panthers think of as the genius of Huey P. Newton was his discovery and elevation of the gun to religious symbol. Now to accept Tabor’s description of the chasteness of his domestic life and his apparent freedom from any temptation to pick up his weapon and turn his home into a charnel house is to conceive of how many Panthers there must be to whom the gun is less an implement than a metaphor, to be hung on the wall as the devout of another religion might hang a cross. Confined to those terms, essentially abstract, the gun, one supposes, can be thought of as a symbol of all those qualities—courage, resistance to oppression, manhood (also womanhood and childhood, the Panthers having a deep respect for the dignity of every identity)—which the creed aims to inspire.

But a gun is an instrument; it has a function which no conversion into metaphor can ever remove from the mind of its beholder; and, every step it is brought from the abstract toward the concrete, carries us toward uses which, in all prior experience, have been overwhelmingly more for the bad than the good.

There is the same troubling ambiguity in the Panther rhetoric, so familiar for its emphasis on calling policemen “pigs.” We may very well assume that Huey Newton thought of this epithet—like the gun—as a symbol and sign to his community and the indifferent America outside that there are young black people who refuse any longer to be afraid. And yet the epithet like the gun can be a very dangerous way to cast out fear; you wonder, indeed, after meeting so many Panthers, how they can say such things and retain spirits so tangibly undisabled by that process. To call a man a “pig” is to say that he is less than human and its main fuction is as preparation to treating him that way. Joseph Phillips would hardly have been so cruel to Lee Berry if he had not first told himself that he was dealing with a vicious animal undeserving of considerations of humanity. Phillips had to take the first step in order to take the second; but, in general certainly, Panthers do not take the second step. Why then do all of them insist on taking the first?

A wise man greatly sympathetic to the Panthers has said of them, “Panthers are mirror images of cops. Panthers are hung up on masculinity, guns, and cops. Cops are hung up on masculinity, guns, and Panthers.” But the matter does not reduce itself this simply; if it did we should not have the memory of those moments when Panthers have the ability to evoke the sympathy of almost everyone who watches them. Are those not the moments when the Panther shows himself not the mirror but the better of the enemy who holds him, as Bobby Seale was better than Judge Hoffman and Michael Tabor, on that scene at least, was better than Joseph Phillips? An adept, such occasions suggest, can maintain that balance of harshness of rhetoric with humanity of nature which the Panthers inflict on themselves; one can say of the Black Panther Party that, as religion, it deserves the highest compliment to a religion from any outside observer: it does have the power to make worthy people better and unworthy ones no worse.

But no religion begins with converts who entirely understand the metaphor which draws them to it. That is the peril of the symbols of the gun and the epithet. The Panthers were young; they are in all matters candid. We can appreciate how open they were, and how trusting of strangers, from the vulnerability to police informants which has been an element in almost every case brought against them. They could hardly have been more vulnerable to the driftings in and out of irresponsibles. And then there were their conversations—the style of talk they brought with them from the Street, what one Panther called “Afro-American kidding,” talk whose main purpose is relief of the self from the reality around.

Once Joseph Phillips asked Michael Tabor if he had ever thought of killing a policeman.

“I could not suppose that there is any Black person who has not at one time or another thought about killing a policeman,” Michael Tabor gravely answered.

There is an allegation that these defendants planned to blow up the Bronx Botanical Gardens which sits in the indictment unsupported by any charges of acts suggestive of real intention. Yet it is difficult to believe that a police officer could have the imagination to invent the idea of the Botanical Gardens as a target. It is one of those fantasies of apocalypse—the image of all that glass splintering in the air above the surrounding tenements—that demand an imagination of the sort which comes from the Street and not the station house. Someone somewhere in the Panther ambience must idly have talked about it some afternoon.

These defendants, then, have armed their enemies with excuses even to the point where every casual word of theirs may now be judged as though it were an act of fixed criminal intent. But to suspect that such trivial things contributed to their present troubles is not to suggest that they are trivial persons. They are, to the contrary, entirely worthy to be recognized as enemies of the American system as it is.

What is most impressive is their resource; the dreadful experiences of the past year which ought to have dulled and made them, if not visibly beaten, certainly no better than sullen, seem instead to have made them more open to fraternity, more curious about the promise of the future than their party’s rhetoric ever seemed to suggest in the days when they were safer.

One grew to notice, for example, how seldom their interruptions of Judge Murtagh’s proceedings were beside the point. They were almost always reactions to something that had just been said in the courtroom. The style of these interventions was less important than their desperation to be heard; you recognized not just the rage at what America is but the surviving respect for what it might be. They are, then, young persons of complexity which can be described and not explained in one of Richard Moore’s outcries:

“You are denying me my rights under the Fourth Amendment of your racist constitution.”

The painful, in this case almost heroic, interior quarrel about America these words convey is, in heightened intensity, very like the quarrel in so many of the rest of us these days. Finding it, one feels the company not of the alien but of the native, not of the stranger but of one’s old and admired acquaintance, the soldier in the war of this country with itself. He is being tried and in danger of being judged only as his caricature.

This Issue

May 7, 1970