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Trials of the century and juror bias

Trials of the century and juror bias

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The 1968 capital murder trial of Black Panther Huey Newton.

The Charles Lindbergh kidnapping case.

Both are cases that stick out in public memory and both offer lessons to be learned about trial work.

In a recent book — Lise Pearlman, a former managing partner at Stark, Stewart, Wells & Robinson in Oakland, Calif., and retired presiding judge of the State Bar Court — looks at these and other candidates for “Trial of the Century,” including the Charles Lindbergh kidnapping case, the Sacco and Vanzetti trial, the Scopes trial and other iconic trials that have shaped American law.

Pearlman, author of “The Sky’s the Limit: People v. Newton, The REAL Trial of the 20th Century?” spoke with Dolan Media Newswires reporter Sylvia Hsieh about what lawyers today can learn from these trials:

Q: Your book looks at different high profile trials through the ages. What are the characteristics of a “trial of the century?”
A: According to a poll taken by NBC at the end of the 20th century, three criteria were: publicity, gravity of the crime and the trial’s impact on society. But I prefer the definition of J. Anthony Lukas, a Pulitzer Prize winning journalist: “A spectacular show trial, a great national drama, and one in which the stakes are nothing less than the soul of the American people.”

Q: What can trial lawyers today learn about some of these cases?
A: There are some insights that many of these cases provide into why having a cross section of people on a jury can work … to the advantage of the lawyers in that they counterbalance each others’ biases. They can open each other up to different points of view.

In the Huey Newton trial, the foreman was an African American and there were seven women on the jury. That’s not unusual today, but juries were almost exclusively white males for more than half a century.

In a broader sense, lawyers in general are intrigued by the most talented trial lawyers, like Clarence Darrow. For lawyers who do public interest work, reading about these trials gives a sense of how you can accomplish change. Sometimes it takes a long time, but you can see over the course of a century how the role of the law has developed.

Q: You are using your book at CLE events to discuss jury bias. Can you talk about specific cases that illustrated bias in the jury system or that helped lead to a change in the law?
A: One case I mentioned only briefly in the book was a California case called People v. Hall in 1853. In that case there were three Chinese witnesses to the murder of a Chinese miner by a white defendant. There was a state statute that said an Indian or a black could not testify against or for a white person. The California Supreme Court, which was all white males, said that “black” meant anybody not white and “Indian” included “Mongoloid” or Asians, so the Chinese witnesses could not testify and the conviction was overturned.

A case that showed the power of persuasion was the Sweet trial in 1925 and 1926. Ossian Sweet was an African American doctor who moved to Detroit and the KKK tried to stone him out of town [by attacking his home]. The Sweet family fired shots and a bystander was killed. At trial, there was an all-white jury, but Clarence Darrow made a long pitch to the jury asking them to put themselves in the shoes of a Negro in America and [understand] what Dr. Sweet had gone through. That made a deep impression on the trial judge, Frank Murphy, who was fairly young at the time. He was later appointed to the U.S. Supreme Court, and he dissented in Korematsu v. U.S. in which the Court upheld the constitutionality of the internment of Japanese-Americans during World War II.

The Sweet trials became the basis for the NAACP Legal Defense Fund. In 1913, the case of Leo Frank, a pencil factory manager on trial for the murder of a girl and the only Jew to be lynched [by a mob], polarized people across America. After that case, the Anti-Defamation League was created.

So the impact a lawyer can have can carry on, not just in one case, but it can change the law or spawn major policy changes.

Q: Why does the Huey Newton trial get your vote as Trial of the Century?
A: For several reasons. I consider 1968 to be an extraordinarily pivotal year. … In 1968, there was a lot of racial strife; there were two assassinations [Martin Luther King Jr. and Robert F. Kennedy] and the clashes between the Chicago police and protestors at the Democratic National Convention. You have J. Edgar Hoover calling the Black Panthers the ‘biggest danger to America.’

In most trials, the people of the whole state are represented by the prosecutor, as in ‘People v. Newton.’ But in this case, Newton would come in and say, ‘Power to the people!’

[Newton was on trial for murder after an early-morning confrontation with a white police officer. Newton claimed he was unarmed and wrestled with the officer’s gun. Both men were shot during the incident. The officer died; Newton was arrested at the hospital.]

He had the support of the black community and the anti-war movement and other groups. Then he gets this very atypical jury. It’s a turning point.

The O.J. Simpson case has come up [as a trial-of-the-century candidate], but O.J. never took the stand. When Newton took the stand, he said the police were out to get [African Americans] and he considered America to be on trial. Newton was taking on that society, and because there were more women and minorities on the jury they agreed with him to some extent.

Because 1968 was so volatile, there was more at stake. With O.J. Simpson, the prosecutors took the death penalty off the table. Newton was on trial for his life. There had been serious riots the summer before. After Martin Luther King Jr.’s assassination there had been spontaneous riots, and the National Guard was called out in 125 cities. Crowds outside the courtroom shouted, ‘Free Huey!’ and repeated the rallying cry, ‘The sky’s the limit!’ to explain what would happen if he was sentenced to death.

That tension you could see in last few days of the trial. There were police on the rooftops with rifles, police in the streets. It was a very tense situation. After Newton was convicted of voluntary manslaughter, he told everybody to ‘keep it cool.’ [An appeals court later reversed the conviction, and after two more hung jury trials, prosecutors called it quits and declined to go to trial a fourth time.]

Q: Were there ways that the case impacted the law?
A: A month before the trial, the California Supreme Court decided that you can’t strike a juror because he or she opposes the death penalty because it leads to jurors being left on a jury who are more likely to convict as well.

In 1968, a court in Alameda County where the trial took place, ruled against peremptory strikes on the basis of race. It took until 1986 before the U.S. Supreme Court said you can’t use peremptory strikes to knock out jurors based on race.

One of the lawyers on Newton’s team, Ann Ginger, who is still in Berkeley, Calif., put together a book on minimizing race bias in jury trials that was published by the National Lawyers Guild and had a major impact on every criminal defense lawyer in the country.

Q: What do did you learn about the jury system in writing this book?
A: When I put these cases in chronological order, it’s a window into each era as the law evolves. The beginning of the century was a celebration of white supremacy when people had picnics at lynchings. By the end of the century, lynching is a hate crime. There’s also a lesson for lawyers that all these rights were hard-fought. It’s wasn’t always easy and the fight often took place in the courts by lawyers being really good at representing their clients.


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