Hung Jury for Huey

For once, Huey P. Newton, co-founder and stern ideologue of the Black Panther Party, was smiling. The ten women and two men of the jury were filing out of the Alameda County courtroom in Oakland, Calif. After six days of wrangling over the case, in which Newton was accused of killing a police officer, they were so firmly deadlocked that Judge Harold B. Hove declared a mistrial and dismissed them. "This shows that with at least one black person on the jury I can get a fair trial," Newton said. "A hung jury keeps me out of jail."

The jury's final straw vote had been 11 to 1 for conviction. But Newton's reasoning was wrong. It was not the lone black woman on the jury who had won him a respite until he is tried again. It was a 50-year-old white housewife, Juanita Henderson, who describes herself as aggressive and insists that she went into the jury room with an open mind.

Only a Law Book. As in his first trial in 1968, Newton's defense was that he had been unconscious when Rookie Patrolman John Frey was fatally shot in the early-morning dark of Oct. 28, 1967. Newton said that he had nothing more lethal than a law book in his car when Frey stopped him, and that when he tried to quote the law book, Frey became enraged and shot him in the belly. After that, said Newton, he remembered nothing except hearing a volley of shots. The defense suggested that Frey might have been accidentally shot by a fellow officer, while the prosecution insisted that Newton had killed him.

At the 1968 trial, the jury dismissed a murder charge but found Newton guilty of voluntary manslaughter. After he had served 22 months of a two-to 15-year sentence, he won a round: the California Court of Appeals reversed the conviction. It found that the trial judge had failed to instruct the jury that if it believed Newton had been unconscious, it could not find him guilty.

Repeat Defense. In the six-week retrial just ended, the gut issue was the claim of unconsciousness, despite new testimony for the prosecution that as Newton was being driven to the hospital for treatment, he waved a pistol and boasted of "shooting two dudes." Defense Attorney Charles R. Garry produced two doctors who testified that a man in a state of shock, as he could be from abdominal wounds, might not know what he was doing. Mrs. Henderson says she was swayed by this evidence.

While it fell short of acquittal, the Oakland mistrial added to the growing list of Panther cases in which the prosecution has so far failed to win a conviction. Most notable among those freed: seven Panthers tried in Chicago after a Shootout with police (the state dropped its case for lack of evidence); the "New York 13," who survived an eight-month trial that set records for riotous disturbances and duration; Bobby G. Seale and Ericka Huggins, charged with ordering the murder of a fellow Panther in Connecticut; and twelve New Orleans Panthers found innocent by an all-male jury (ten blacks, two whites) of attempting to kill a squad of police.

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