AMERICAN JUSTICE ON TRIAL. Lise Pearlman

More protests followed in Washington, D.C. and cities in the North. Ultimately none of the defendants was executed, and appeals of the Scottsboro Boys trials led to two hugely important Supreme Court decisions — the right of poor defendants to have competent counsel appointed in death penalty cases and the right of African-Americans to be included in the jury pool. Meanwhile, all of the defendants spent at least six years in traumatizing prison conditions with devastating effects on their lives.¹⁰

      Three decades later, in the late 1960s, the right of black people to be in the jury pool in America still did not mean blacks got selected for criminal juries “of one’s peers.” Black defendants across the country still routinely faced conviction and execution at the hands of overwhelmingly white-male juries. The reason was that each side in a criminal case had — and still has — a certain number of discretionary “peremptory” challenges to eliminate qualified jurors. Historically, the vast majority of prosecutors used these peremptory challenges to systematically dismiss any blacks from their juries. With politically-motivated counsel to defend Huey Newton, Patterson sensed enormous potential for the charismatic black militant to draw attention to how the criminal justice system stacked the deck against black men accused of crime. Of course, unlike the Scottsboro Boys, the circumstances of this case made Newton’s innocence questionable. But that had been true of Sacco and Vanzetti as well. Their martyrdom worked better, from the Communists’ perspective, than if the pair had been spared execution. So had the infamous execution of Mississippian Willie McGee, charged with the unpardonable sin of raping a white woman.

      Patterson had worked with Robert Treuhaft in the late 1940s on McGee’s highly politicized death-penalty appeal. Other leftist lawyers in the Civil Rights Congress participated, too, including future Congresswoman Bella Abzug in her first civil rights case. What they zeroed in on was Mississippi’s blatant double standard on rape prosecutions. The state had a history of executing black men for rape of white females, but not for white rapists convicted of ravaging white women. While white men got shorter sentences for raping white women, white men raped black women and young girls with little or no fear of any consequences. Other states in the Deep South had similar abysmal records.¹¹

      The charge that a black man had raped a white woman was guaranteed to make Southern white men’s blood boil. McGee barely escaped lynching as he awaited prosecution. In another egregious example of how black lives didn’t matter to the Southern justice system, his rape trial lasted only half a day. The alleged victim, 32-year-old housewife Willette Hawkins, claimed that the handsome, married truck driver crossed the tracks dividing blacks in Laurel from whites, broke into her home and raped her while threatening her baby at knife point. McGee did not testify in his own defense. The jury was all white men—blacks were theoretically permitted by law, but excluded in practice, and women were categorically banned from jury service by statute until 1968. (Mississippi was the last state to drop that prohibition.) The all-white-male jury deliberated less than five minutes before agreeing on McGee’s death sentence. On appeal, Civil Rights Congress lawyers won him a new trial in which the jury again voted for the death penalty. Due to more errors, McGee faced yet a third trial, which resulted in another all-white-male jury imposing the death penalty. Meanwhile, rumors around the black section of town were that McGee and Hawkins had been having an affair for a couple of years and got caught.

      In that Cold War era, mainstream media considered Communist support for McGee’s appeal to the United States Supreme Court “the kiss of death.”¹² The Supreme Court refused to touch the death penalty sentence. By then, famed Mississippi author William Faulkner and internationally renowned scientist Albert Einstein were among many prominent people who petitioned President Truman to pardon McGee or commute his sentence; Truman declined to act. Crowds gathered in New York City chanting “Jim Crow must go.” The day before his scheduled electrocution, McGee wrote to his wife: “Tell the people the real reason they are going to take my life is to keep the Negro down in the South. They can’t do this if you and the children keep on fighting.”¹³

      The State of Mississippi played into the Communists’ agenda with its callous handling of the execution. State employees set up the traveling electric chair at the local courthouse; a thousand people came to celebrate Willie McGee’s execution. Two local Mississippi radio stations broadcasted it live so everyone outside could hear when 2,000 volts of electricity surged through McGee’s body.¹⁴ Black parents got the message loud and clear. They warned their sons: “Don’t mess with white girls. You see what happened to Willie McGee.”¹⁵

      Bob Treuhaft’s work on McGee’s appeals helped earn him, in 1951, a place on Senator Joseph McCarthy’s short list of the most subversive lawyers in America. Treuhaft and his British wife, famed author Jessica Mitford, considered the distinction a badge of honor. The two joined Patterson and singer Paul Robeson in formally protesting America’s sorry record of racial injustice before the new United Nations in a lengthy petition they gave the incendiary title: “We Charge Genocide.” It included the fate of Willie McGee among its examples. The United States made sure the petition gained no traction, treating it as a gross exaggeration and effort to distract attention from the devastating atrocities committed by the Soviet Union. American mainstream media gave it little coverage. Patterson and Robeson soon had their passports revoked so they could not repeat their accusations in speeches overseas. Yet the charges reached a wide, receptive European audience and had broad dissemination in other parts of the world.

      Patterson sensed that Newton’s trial presented a similar rare political opportunity to deeply embarrass the United States again in the eyes of a mostly nonwhite world for America’s continued mistreatment of racial minorities. Indeed, in the summer of 1968 the Panthers would present a new grievance petition to the United Nations, listing the denial in the Newton case of trial by a jury of true peers among its current examples of racism in the American criminal justice system.

      Patterson knew just the lawyer he would like to see steer Newton’s case. First, Patterson had to convince Newton’s family. Wearing his customary suit and tie, the balding, bespectacled Communist was old enough to be Melvin Newton’s grandfather. Patterson talked Melvin and his sister Leola into meeting Charles Garry. Garry practiced in San Francisco with three partners and a couple of associates. Huey Newton’s two siblings came away quite impressed. Garry always dressed for success in the most fashionable suits. He greeted them warmly and assured them he had tried more than a score of capital cases and never lost one client to execution. But Garry expected the cost of the trial to reach $100,000, a staggering amount at the time. Melvin and Leola told Garry they did not have anything close to that kind of money, but they planned to establish a Huey Newton defense fund and Patterson had agreed to help obtain contributions. To the pair’s delight, Garry said he could wait. He also told them it would probably take three years to get Huey freed, assuming their best bet was only after an appeal. Melvin shared what he learned with David Hilliard, who liked what he heard: “We decided that Garry would be the lawyer because we wanted the very best. Huey’s life was at stake. . . . Left to the devices of the state he would have ended up dead in the gas chamber in San Quentin, because that’s where he was headed.”

      Melvin took the responsibility of informing his parents and other siblings that he and his sister had found Huey a veteran death-penalty lawyer willing to start without them paying him a dime. Despite Beverly Axelrod’s strong endorsement of Charlie Garry, the Cleavers’ and Hilliard’s blessing and that of the Newton family, other Panthers were outraged. They lobbied for Huey to retain a black attorney. Meanwhile, Garry and Axelrod rushed to Newton’s bedside at Oakland’s Highland Hospital, where he had been transferred following surgery. On their first visit, on November 1, 1967, the two lawyers knew they would have to talk their way past the police to get access to their new client. They came dressed formally, as Garry always did, but Beverly Axelrod only did when in her work guise. When representing clients, she would put on a skirt suit and heels and push back her bangs in a hair band, her long hair folded into a loose bun overhanging the nape of her neck. But at home, the way Huey would have seen her with Eldridge Cleaver, she often wore a loose hippie dress and sandals with her long, brown hair dangling free. It left her unimpeded as she danced to rock music blaring on the record player.

      Garry and Axelrod encountered a platoon of heavily armed police in the hospital corridors. They had to convince