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Xerox University Microfilms 300 North Zoab Road Ann Arbor, Michigan 48100 76-24, 587 DICKS, Vtvtan Irene, 1945- A RHETORICAL ANALYSIS OF THE FORENSIC AND DELIBERATIVE ISSUES AND STRATEGIES IN THE ANGELA DAVrS TRIAL. The Ohio State University, Ph.D., 1<}76 Speech

Xerox University Microfilmsi Ann Arbor, Michigan 40106

Copyright by © Vivian Irene Dicks 1976

11

1 A RHETORICAL ANALYSIS OF THE FORENSIC AND DELIBERATIVE

ISSUES AND STRATEGIES IN THE ANGELA DAVIS TRIAL

DISSERTATION

Presented in Partial Fulfillment of the Requirements for

the Degree Doctor of Philosophy in the Graduate

School of The Ohio State University

By

Vivian Irene Dicks, B.A., M.A.

The Ohio State University

1976

Reading Committee: Approved By

Dr. James L. Golden Dr. John Makay Dr. Keith Brooks 0 tj Adviser Department of Communication VITA

NAME: Vivian Irene Dicks

EDUCATION: The Ohio State University Ph.D. 1976 M.A. 1968

Wayne State University B.A. 1967 Teaching Certificate 1967

EMPLOYMENT: Wayne State University Instructor, Debate and Forensics Coach 1970-current National Analysts, Inc. Consultant (part-time) 1974, 1976 University of Detroit Instructor (part-time) 1973-1975 Detroit Board of Education Substitute Teacher 1969-1970 The Ohio State University Graduate Assistant 1967-1969

PROFESSIONAL ACTIVITIES: Journal of the American Forensic Association Editor— "In Print" current Regional Sub-Editor— "Forensic Calendar" 1974-current Michigan Speech Association Parliamentarian 1975-current Michigan Intercollegiate Speech League Director of Forensics 1974-current President 1974-1975 Director of Oratory 1971-1972

PROFESSIONAL MEMBERSHIPS: American Association of University Professors American Forensic Association American Institute of Parliamentarians Central States Speech Association Michigan Speech Association Speech Communication Association

ill TABLE OF CONTENTS

Chapter I. INTRODUCTION...... 1

Justification for the Study...... 1 Methodology ...... 6 Notes to Chapter...... 14

II. EVENTS AND PERSONNEL...... 16

Events...... 16 The Attempted Escape and Its Investigation...... 16 Arrest and Extradition...... 18 Pre-Trial Events...... 19 Judge Selection ...... 20 The Role of Ruchell Magee...... 24 Angela Davis as Co-Defense Counsel...... 36 Bail...... 40 Venue ...... 47 National and International Interest ...... 50 Jury Selection...... 57 Personnel ...... 63 The Prosecution...... 64 Albert W. Harris, Jr...... 64 Clifford K. Thompson, Jr...... 65 The Defense...... 66 Howard R. Moore, Jr...... 66 Leo Branton...... 67 Margaret Burnham...... 68 Doris Walker...... 69 Angela Y. D a v i s ...... 70 The Judge ...... 73 Richard E. Arnason...... 73 Notes to Chapter...... 75 • III. FORENSIC ISSUES...... 84

Stasis of Fact...... 89 Stasis of Definition...... 115 Stasis of Quality...... 124 Stasis of Objection...... 127 Summary...... 132 Notes to Chapter...... 136

IV. FORENSIC STRATEGIES...... 140

Prosecution...... 140 iv Focus...... 141 Itemization ...... 148 Refutation...... 155 Defense...... 166 Focus...... 166 Suppression...... 168 Refutation...... 163 Notes to Chapter...... 199

V. DELIBERATIVE ISSUES...... 203

Frame of 111...... 204 Frame of Reformability...... 216 Notes to Chapter...... 227

VI. DELIBERATIVE STRATEGIES...... 229

Defense...... 229 Description...... 229 Vilification...... 237 Prosecution...... 241 Focus...... 241 Refutation...... 243 Notes to Chapter...... 247

VII. SUMMARY AND CONCLUSIONS...... 249

Summary ...... 249 Issues...... 249 Strategies...... 251 Prosecution...... 252 Defense...... 253 Conclusions...... 255 Contributions to Modern Legal Rhetoric...... 255 Contributions to the Study of Political Trials. . . 261 Suggestions for Further St u d y ...... 268 Notes to Chapter...... 272

BIBLIOGRAPHY...... 273

v CHAPTER I

INTRODUCTION

In the back of a rented van lay the body of the Judge, his face half blown away by the impact from a shot-gun blast. A Deputy District

Attorney would never walk again. Two convicts were dead. Another con­ vict and a juror were wounded. The perpetrator of this August 7, 1970 break for freedom also lay dead. Angela Davis was not present. On the basis of some data and a California law, however, a warrant was issued for her arrest, and her name was placed on the FBI Ten Most Wanted list.

In spite of her attempted flight she was arrested and brought to trial.

It is that trial and the rhetorical issues and strategies selected by the prosecution and defense that are the focus of this study. In

Chapter II we will look more closely at the surrounding events, but first a discussion of the justification and methodology for studying the trial are necessary.

Justification for the Study

There are two justifications for examining the rhetorical Issues and strategies employed in the Davis trial.

First, such a study can contribute to our knowledge of modern legal rhetoric. A survey of the Table of Contents and Index of The

Quarterly Journal of Speech, 1915-1969; Speech Monographs. 1934-1969;

The Speech Teacher 1952-1969; Southern Speech Journal. 1935-1969; Western Speech Journal, 1937-1969; Central States Speech Journal, 1949-1969; and

Today's Speech, 1953-1969 uncovered assorted articles regarding courtroom speaking. These generally concerned a specific attorney, a single speech, one type of strategy or proof, or a general attempt to relate speech to

the courtroom. In 1971, when Rieke wrote "The Rhetoric of Law: A

Bibliographic Essay" for the Book Reviews section of Today's Speech, he relied primarily on texts more likely found in law libraries than in the

libraries of modern rhetoricians. Rieke concluded his Essay by claiming:

At least two broad generalizations seem warranted. . . . First, there seems to be a tremendous opportunity for cooperative research between law and rhetorical and communication theory both within the concept of law and in the various aspects of legal practice. . . . The second generalization is to observe that very little actual development of research either philosophical or scientific has taken place.*

While there continues to be an Interest in the rhetoric of 2 individual attorneys, other phases of legal rhetoric are starting to receive attention. The process of legal decision making by a jury was the subject of at least three recent studies, for example. In Speech

Monographs. August, 1974, JacobBon and Berger reported on "Communication and Justice: Defendant Attributes and Their Effects on the Severity of

t His Sentence." Shortly thereafter, at the 1974 Speech Communication

Association Convention, a progress report was made on a study of the

"Effects of Videotaped Testimony on Information Processing and Decision

Making in Jury Trials." In 1975 Fontes offered his doctoral dissertation on "The Behavioral Impact of Inadmissable Evidence on Jurors: A Prelim­ inary Study." From a broader perspective Reeves studied the Chicago-

Eight conspiracy trial as a microcosmic representation of the major

Issues and forces of the 1960s. With the goal of providing an apprecia­ tion of the extra-legal significance of the trial, she offered her 1975 3 doctoral dissertation on "The Chicago-Eight Conspiracy Trial: A Rhetorical

Analysis of the Societal Context and Interpersonal Dynamic." This same trial had been studied In 1973 by Ling, but from a somewhat narrower perspective. He viewed trial behavior as representative of the deliber­ ative beliefs of the two sides. His goal, therefore, was Identification 3 of the deliberative strategies employed in the forensic setting. Since

Ling's dissertation is applicable to some of the research reported here, more will be said of his findings later. In the meantime, we can conclude that all phases of legal rhetoric are receiving renewed attention.

Essentially, however, Rieke's generalization that there has been little development of philosophical or scientific research is still true. A study of rhetorical strategies in any legal setting, therefore, would be a welcome addition to the relatively slim but growing collection of material on modern legal rhetoric.

In some of the literature which does' exist there is implication, if not outright statement, that modern forensic speaking is not the heavily rational process we would like to believe it is. After investi­ gating rhetorical methods taught in law schools and used by practicing attorneys, Rieke questioned the very basis of our faith in law— the presumed rationality of legal decision making.

. . . the study of legal rhetoric raises serious question as to the validity of Aristotelian theories of proof as applied in situations demanding critical decisions. In no other rhetorical situation is there such regulation of proof in terms of the exclusion or control of non-ratlonal elements embodied in ethos and pathos. In no other rhetorical situation has as much atten­ tion been given to the focusing of the decision-making act on fact and reason as embodied in logos. So focused, in fact, that legal education has developed the widespread belief that it is the proper application of legal principle alone which is the necessary equipment of the advocate. And yet, the testimony of those few social scientists who have performed investigations that the presumed rationality of legal decision-making may be a fiction. If under such conditions, the legal process fails to bring forth, consistently and predictably, rational decisions, then does this not question the capacity for rational decision­ making in all rhetorical situations? As yet, the evidence does not warrant a conclusion to this problem, and the presumption rests with rationality. But further investigation is called for.^

Analysis of the Angela Davis trial can add important data to the dis­ cussion of the use and effect of extra-rational strategies. There is evidence that a conscious use of such methods was supported, in fact S encouraged, by the defense attorneys.

Ms. Burnham, commenting upon the need for Black lawyers to view their role as occurring both inside and outside the court, said of her work for the "Free Angela" committees: "The street-- perhaps more than the court— is the arena for the defense of Angela Davis. My job, of necessity, carries me deep into Black communities as often as it places me in the San Raphael court­ room."®

Clearly, examination of the Davis trial is of value for what it can add to our knowledge of extra-rational strategies and of modern legal rhetoric in general.

The second justification is that the Davis trial is an example of what is becoming a new interpretation of a genre in trials— the political trial. To the extent that an establishment uses trial pro­ ceedings to Identify and pass judgment on individuals who violate its rules, almost any trial can be said to have political overtones. But of late accused have been claiming as part of their defense that their actions are labeled criminal by an oppressive establishment, largely because they disagree with that establishment. It is their disagreement over politics which is the alleged motivator for arrest and trial. This controversy over whether a trial is criminal or political was much dis­ cussed in the context of the Davis trial. The prosecution states Angela's trial is criminal, not political. Mr. Branton believes a more accurate description is that the trial is criminal with political overtones. He contends that the prosecution has made it a political trial by emphasizing Ms. Davis' political activities.?

Furthermore, even if a specific act is defined as criminal,

the right of the establishment to judge the act is denied. Crimes of

an oppressed people are the result of establishment political oppression,

it is reasoned; therefore trial by that establishment is inherently

political. Robert Chrisman, editor and contributor to The Black Scholar,

wrote:

All black prisoners . . . are political prisoners, for their condition derives from the political inequity of black people in America. A black prisoner's crime may or may not have been a political action against the state, but the state's action against him is always political...... it must be understood that the majority of black offenses have their roots in the political and economic depri­ vation of black Americans by the Anglo-American state and that these are the primary causes and conditions of black crime.8

The believed prevalence of this type of political trial is clear in the

assertion that all black prisoners are inherently political prisoners.

Chrisman believes blacks in America, particularly black leaders, have

always been political prisoners. The specific cases he cited include

such modern defendants as Rap Brown, Bobby Seale, Ahmed Evans, Ericka 9 Huggins, the Soledad Brothers, Cleveland Sellers, and Angela Davis.

If this concept of political prisoners and the political trial is accepted by modern day attorneys we might expect to see the ramifications

in the way the case is tried. The rejection of the assumption that a

trial is criminal in nature might manifest itself in issues focused and

strategies employed. An investigation of the Angela Davis trial can provide some Insight into the modern interpretation of the genre of the political trial. 6

Whether we wish to expand our knowledge of legal rhetoric in

general, or obtain an understanding of the modern concept of the political

trial, the Angela Davis kidnap, murder, and conspiracy trial provides an

excellent vehicle.

Methodology

The methodology to be employed for the analysis will be historical-

critical. Auer provided a formal definition of this approach in his 1959

book, An Introduction to Research in Speech. He said that "historical

research is the study of a period, person, or phenomena in human develop­ ment. in order to record discovered facts in an accurate, coherent, and

critical narrative that posits causations and probabilities'.’^ This

research will study partially the person of Angela Davis, but more particularly the phenomena of her trial. An attempt will be made to discover the issues and strategies that were Important. On the basis of

that data we will posit what probabilities we can draw regarding current

legal rhetoric in general, and political trials in particular.

The primary material for research will be the trial transcript.

It will be supplemented, however, by texts written by or about Angela

Davis. These include: Angela Davis; An Autobiography; If They Come in

the Morning by Angela Davis "and other political prisoners"; Justice in

the Round by Reginald Major; The Morning Breaks by Bettina Aptheker; J. A.

Parker's Angela Davis: The Making of a Revolutionary; Regina Nadelson's

Who is Angela Davis?: Angela Davis: Traitor or Martyr to the Freedom of

Expression by Blythe Foote Flnke; The Fight to Free Angela Davis by

Charlene Mitchell;** and relevant newspaper and magazine articles and reports. 7

We will begin with a description of the events directly related to the charges brought against her and of the relevant events occurring before the trial. In addition, a description of the participants will be provided. Knowledge of the participants Is particularly Important

In dealing with an alleged political trial. Ling recognized this In his assessment of the Chicago Seven trial. From the defendants' point of view the prosecution and judge, as Individual men and as a unit, repre­ sented the social establishment against which they had protested. Ling, therefore, went so far as to employ the collective term "establishment" 12 Instead of prosecution and judge. Knowledge of the participants in the Angela Davis trial may help us understand the choices of issues and strategies.

Second, we will Identify the rhetorical issues and strategies of the prosecution and defense. Issues that are both forensic and/or deliberative will be considered. Ling chose not to consider forensic

Issues. Since the defense said its goal was deliberative and that the defendants viewed the trial as an "attack upon their political philos­ ophy and as an opportunity to advance their political views," Ling felt justified in dealing with the rhetorical situation of the trial as 13 "essentially deliberative." As a result, he omitted forensic issues.

To follow suit in this study would not be consistent with the goals suggested in the justifications for the analysis. A trial takes place on the assumption that it is forensic in nature. To ignore that is to bias the study severely, a weakness in Ling's work. Whatever other purposes a trial serves, forensic issues must be dealt with. Considera­ tion of both forensic and deliberative issues allows us to identify any overlap between them. One way we may contribute to knowledge of modern 8 legal rhetoric la to Identify If and vhen deliberative Issues are part of a forensic defense, and If and when they are Introduced apart from the essence of the trial.

It Is important to note, however, that the change from a forensic to a deliberative focus has an effect upon the questions of presumption and burden of proof. In a forensic situation the prosecution has the burden of proof. It must establish a case strong enough to convince the jury the defendant is guilty. The defendant, however, is presumed inno­ cent. All decisions are based on the presumption. In a deliberative framework, on the other hand, the defense takes on the burden of proof, and the existing social order, represented by the prosecution and perhaps the judge, have the presumption. This study reflects this change in roles by addressing itself to the two types of question, forensic and deliberative, and by considering the prosecution first in the forensic analysis, and the defense first in the deliberative analysis.

For identification of forensic issues we will use the four staseis outlined by Kennedy, the development of which is credited par­ ticularly to Hermagoras. These include staseis of fact, definition, 14 quality, and objection.

In the stasis of fact the matters of motive, ability, and desire are considered. Evidence regarding the probability of the defendant having engaged in the behavior alleged can be gotten from the defendant's character. Thus we will identify what the prosecution determined to be the motive for Angela Davis' conspiracy to kidnap and murder, how the defense responded, and to what extent, If any, Davis' character was used in her defense. 9

In Che stasis of definition the nature of the crime must be defined. In this case, the crimes with which Angela Davis was charged would need to be detailed and matched with her actual behavior.

The stasis of quality assumes the defense and prosecution agree on what was done and what to name it, but cannot agree on the quality of the action. This would seem to be a particularly important point in a political trial. A revolutionary may admit he burned down a building, and agree that this constitutes arson, but may claim his behavior is laudable and just in light of an existing social condition.

The fourth stasis is that of objection. In this case the defense may argue against the right of the opposition to prosecute him or of the court to hear the case. To the extent a modern defendant requests a change of venue, or challenges the objectivity of a judge or jury, he uses this stasis. In a political trial, we might expect a significant challenge of the right of the court to make judgment on the defendant.

These four staseis, fact, definition, quality, and objection, will be the focus of the identification of the forensic issues. With these as a basis we can then locate strategies by which the two sides advanced their positions.

To Identify any deliberative issues we will employ Hultze^i's system of status for deliberative questions. Hultzen identified the classical doctrine of stasis described above and discussed its use by

Cicero and Quintilian. He found the forensic staseis unsuitable for deliberative issues, however, and thus offered four other frames. 15 These were ill, reformability, remedy, and cost.

The frame "ill" is the identification of a social, political, or economic condition that the advocate wishes to eliminate. The black 10 revolutionary, for example, may Identify racism as a social ill to be remedied. In the case of Angela Davis we want to see if and how the trial is used to identify an ill.

The frame "reformability" is the Identification of the cauBe of the ill, and of its ability to be reformed. Certainly the determined cause will affect the solution offered. The leader who claims his people are oppressed by. .a specific economic system will offer a different solution than one who identifies majority group attitudes as the blame.

And the leader who Identifies a cause which cannot be reformed, may provide still another solution.

The frame of "remedy" is concerned primarily with future fact.

Can the remedy be put into operation? Is the proposal much different from the existing situation? In the Angela Davis trial we want to see if a solution is offered and how specific it is, or whether the deliberative efforts are confined more to exemplifying the ill or the cause to be reformed.

Finally the frame of "cost" may be considered. This issue arises only if the opposition questions the cost. Hultzen compares it to the forensic stasis of quality, which comes up only if the defense claims extenuating circumstances. In a strictly deliberative situation this might be an Important question. In a trial, however, assuming the defense

Is the one advocating change from the established order, the cost question would need to be raised by the prosecution. Whether this happened in the

Angela Davis trial remains to be seen.

Once these four deliberative frames are located, we can search for the strategies the two sides used to advance their positions. In his analysis of the Chicago Seven trial Ling Identified five rhetorical 11 strategies employed by the defense* and five used by the prosecution.

For the defense* these strategies Included universalization* vilification* satlrlzatlon, dramatization of the alternative* and legitimization. For the prosecution the rhetorical strategies Identified Included avoidance* suppression, refutation, co-optation, and vilification.^ The trial of the Chicago Seven was unique, so there is no assurance these same strategies will be found in the Angela Davis trial. Keeping them in mind, however* will help us locate any similarity between the two trials, both of which were political and both of which were relevant to a social movement. Knowing if such similarities exist can bring us closer to meeting the goals implied in the justifications for this study. There­ fore* let us briefly define each of these strategies.

Universalization, a defense strategy* occurs when "a rhetor 17 attempts to relate a specific problem to larger* more apparent problems."

A speaker may claim that the immediate event is merely an attempt to cover-up or avoid the larger issues of which it is a part.

Vilification was a strategy used by both defense and establishment.

Although the strategy differed in form, depending upon the side employing it, its nature was essentially the same. Each side attempted to dis­ credit its opponent by picturing his position as evil.

The defense used satlrlzatlon a& a third strategy. Ling identi­ fied this holding up of an Individual or institution to public ridicule as the dominant defense strategy. Whether it occurred to as great an extent in the Angela Davis trial remains to be seen.

The fourth defense strategy* dramatization of the alternative* van to show the life style advocated by the defendants. Not only was the style verbally explained, but non-verbally acted out as well.

« 12 » Finally* the defense used the strategy of legitimization. This was an attempt by the defendants to give credibility to their way of life by connecting it with credible sources and showing it to be a legitimate response to a hostile society.

Among the five establishment strategies identified by Ling* one* vilification* was like the defense strategy mentioned above. The remaining four strategies were avoidance* suppression* refutation* and co-optation.

Avoidance is the refusal by the established order to recognize the protest movement or its representatives. Refusal of recognition puts off confrontation and the need for counter-persuasion. This could be a particularly potent strategy in the trial of any movement leader. It could hamper consideration of extenuating circumstances in the forensic stasis of quality as discussed above.

Suppression is a strategy designed to maintain established rules and to stifle those who violate those rules.

The identification by Ling of the use of avoidance and suppression as strategies may be a function of his defining judge and prosecution into one unit* the establishment, and pitting it against the defense.

In defining refutation as a rhetorical strategy rather than a debate process* Ling explains it to be a "method of advancing a world­ view by casting doubt on the validity of the opposing perception of reality."18

Co-optation* the final establishment strategy* occurs when

"representatives of the established order attempt to undermine a protest

Movement by creating the impression that they are sympathetic to the 13 goals of the protest movement and are attempting to Implement change 19 within the system*"

We may find all, none, or some of these strategies employed in the Angela Davis kidnap, murder, and conspiracy trial. If they are present, they may be in different forms. Two methodological differences betwien Ling's study and this one could have an effect. First, the consideration of forensic issues will force us to look for constructive rhetorical strategies from the prosecution, and refutatlonal ones from the defense. By limiting himself to deliberative issues Ling located the presumption and burden of proof opposite to their traditional place in law. Thus the prosecution, with the traditional burden of proof, used only two constructive strategies, co-optation and vilification, and the defense, usually with the advantage of presumption, used five construc­ tive strategies.

Second, we will use the traditional view of the prosecution versus the defense, and will assume the judge to be an objective person to rule on points of law. It is possible, of course, that the assump­ tion is wrong. Ling had adequate reason for combining judge and prose­ cution into one. We will not follow suit, however.

With this framework in mind, we will identify the issues and strategies in the Angela Davis trial.

« NOTES TO CHAPTER

^Richard 0. Rieke, "The Rhetoric of Law: A Bibliographic Essay," Today's Speech 18 (Winter, 1971): 56. 2 Beatrice K. Reynolds, "An Interview with William M. Kunstler: Rebel Rhetor," Today's Speech 22 (Fall, 1974): 37-46; Thomas C. Droessler, "Invention and Style in Earl Warren's Legal Argumentation" (Ph.D. disser­ tation, Bowling Green University, 1974); James E. Sayer, "Clarence Darrow— Public Debater: A Rhetorical Analysis" (Ph.D. dissertation, Bowling Green University, 1974). 3 Steven K. Jacobson and Charles R. Berger, "Communication and Justice: Defendant Attributes and Their Effects on the Severity of His Sentence," Speech Monographs 41 (August, 1974): 282-86; Gerald R. Miller, "Effects of Videotaped Testimony on Information Processing and Decision- Making in Jury Trials," report presented at the Sixtieth Anniversary Meeting of the Speech Communication Association, Chicago, Illinois, December 28, 1974; Norman E. Fontes, "The Behavioral Impact of Inadmissible Evidence on Jurors: A Preliminary Study" (Ph.D. dissertation, Michigan State University, 1975); Mary M. Reeves, "The Chicago-Eight Conspiracy Trial: A Rhetorical Analysis of the Societal Context and Interpersonal Dynamic" (Ph.D. dissertation, University of Washington, 1975); David A. Ling, "A Rhetorical Analysis of the Conspiracy Trial of the Chicago Seven" (Ph.D. dissertation, Wayne State University, 1973).

^Richard D. Rieke, "Rhetorical Theory in American Legal Practice" (Ph.D. dissertation, The Ohio State University, 1964), p. 347. 5 The defense of Angela Davis was the work of a team of attorneys led by Howard Moore, Jr. The other members Included Leo Branton, Haywood Burns, Margaret Burnham, and Doris Walker. Angela Davis also was later allowed to act as co-counsel.

^Carole Alston, ed., "In Defense of Angela: Profile of the Davis Defense Team," The Black Law Journal 2 (Spring, 1972): 50.

7Ibid., p. 49. g Robert Chrisman, "Black Prisoners, White Law," in Contemporary Black Thought: The Best of The Black Scholar, eds. Robert Chrisman and Nathan Hare (New York: The Bobbs-Merrill Company, Inc., 1973), pp. 231-32.

9Ibid., p. 231.

^J. Jeffery Auer, An Introduction to Research in Speech (New York: Harper & Row, 1959), p. 28. 14 15

Hlelklejohn Civil Liberties Institute, The People of California v. Angela Y. Davis (Dobbs Ferry, New York: Trans-Media Publishing Co., NO 503, 1974), pp. 2141-7200A. Hereinafter this source will be referred to as The Trial Transcript. Angela Davis, Angela Davis: An Autobiography (New York: Random House, 1974); Angela Davis, and others, If They Come in the Morning: Voices of Resistance (New York: The New American Library, Inc., 1971); Reginald Major, Justice in the Round: The Trial of Angela Davis (New York: The Third Press, 1973); Bettina Aptheker, The Morning Breaks: The Trial of Angela Davis (New York: International Publishers, 1975); J. A. Parker, Angela Davis: The Making of a Revolutionary (New York: Arlington House, 1973); Regina Nadelson, Who is Angelo Davis?: The Biography of a Revolutionary (New York: Peter H. Wyden, Inc., 1972); Blythe Foote Finke, Angela Davis: Traitor or Martyr to the Freedom of Expression?. Outstanding Personalities Series, ed. D. Steve Rahmas, vol. 28 (New York: SamHar Press, 1972); Chariene Mitchell, The Fight to Free Angela Davis: Its Importance for the Working Class (New York: New Out­ look Publishers, 1972). 12 Ling., p. 7.

13Ibid., p. 43. 14 George Kennedy, The Art of Persuasion in Greece (Princeton, New Jersey: Princeton University Press, 1963), pp. 307-312.

^Lce S. Hultzdn, "Status in Deliberative Analysis," in The Rhetorical Idiom: Essays in Rhetoric, Oratory, Language, and Drama, ed. Donald C. Bryant (Ithaca, New York: Cornell University Press, 1958), pp. 97-123.

*8Ling, pp. 43-157.

17Ibid., p. 46.

18Ibid., pp. 123-24.

19Ibid., p. 134. CHAPTER II

EVENTS AND PERSONNEL

Events

The Attempted Escape and Its Investigation

The events which led to Davis' trial began on August 7, 1970. Judge

Harold J. Haley was in his courtroom in the Marin County Courthouse in

San Kafael, California. He was presiding over the trial of James David

McClain, a San Quentin convict accused of stabbing a prison guard in 1969.

McClain was acting as his own lawyer and was questioning another convict,

Ruchell Magee, at the time Jonathan Jackson entered the courtroom. Shortly

after seating himself in the spectator section Jackson stood, weapon in hand, and ordered the proceedings to stop. Writers differ on whether • « Jackson came into the court carrying four guns, sat for a few moments before he stood up and took a small automatic from his coat pocket, or

took four guns from beneath his coat. Whatever the order of behavior, the

trial was stopped, and weapons were Involved. Jackson held a carbine,

ordered McClain and Magee released from their bindings, and provided them with weapons. Magee then went to free another convict, William Christmas, who was waiting to be called to testify. A baliff managed to leave the

courtroom to alert San Quentin guards and sheriff's deputies about what was happening. Meanwhile, McClain called the sheriff's office to insist police not interfere or everyone in the courtroom would be killed.

McClain taped a shotgun to Judge Haley's neck, and other hostages were

16

« 17 selected. These Included the prosecutor, Gary Thomas, and three women jurors, Maria Graham, Doris Wittmer, and Joyce Ridoni.* As the four gunmen traversed the corridors to leave the building with their hostages they encountered Jim Kean, a cameraman for The San Rafael Independent

Journal. They told him to "take all the pictures you want. We are the revolutionaries." While police constructed a roadblock the gunmen took their hostages to a rented van. The hostages, Christmas, and Magee got into the back of the van, Jackson drove, and McClain was beside him.

When the van attempted to leave the area gunfire broke out. The result was the death of Judge Haley, two convicts, McClain and Christmas, and

Jackson. Seriously wounded were Thomas and Magee. Others were hurt, 3 but less seriously.

When the van was searched twelve guns were found. Three of them

Jackson had had in the courtroom, one had been left in the van, and two shotguns and six handguns had been taken from police.

Other evidence found at the scene Included a number of shell casings (12 were found in the van), an attache case full of ammunition, two colls of wire, a spool of adhesive tape, the van and the rental agreement showing it had been rented in San Fran­ cisco the day before, three flares taped together to resemble dynamite which had been brandished in the courtroom, a blue satchel, some revolutionary pamphlets . . . and six books. Three of the books were in French and three in English. . . . Two of them . . . had "Angela Y. Davis, 1969" inscribed in them. There was also a telephone number, 588-9073. which was found on a slip of paper in Jonathan Jackson's wallet.4

The weapons were traced through serial numbers, and were found to have been purchased originally by Angela Davis. The automatic carbine was bought by her on April 7, 1969, and the automatic pistol had been hers since January 12, 1968.^ Officers also said a third gun might have been purchased by her on July 25. 1 8 On the night of August 14, 1970 the request of Bruce Bales, Marin

County Attorney, was met by Municipal Judge Peter Allen Smith, when he

Issued warrants charging Davis with one count of murder in the Judge's

death, and five counts of kidnaping in the taking of hostages. The basis of the warrants was a California law holding that anyone who aids

or abets in a major crime is equally guilty with the direct participants.^

Within one week of the issuance of the warrants Davis was additionally charged with unlawful flight to avoid prosecution. On

August 15, 1970 a Federal warrant on Interstate flight was issued. The

FBI also placed the name of Angela Davis on their list of the ten most wanted fugitives.^

Arrest and Extradition

Angela Davis eluded the authorities for nearly two months. Then, on October 13, 1970 she was arrested by the FBI at a motor lodge in mid­

town Manhattan in New York. She was taken first to the FBI city head­

quarters, and then the Women's House of Detention. The arrest started g the process of her extradition to California.

On October 14 she was arraigned at Federal Court and bail was set at $250,000 by U.S. Commissioner Earle N. Bishopp. This was to hold her until the California warrants arrived. Within eight hours, with the arrival of those warrants, Bishopp quashed the bail he had set and released Davis on her own recognizance. New York detectives promptly arrested her.

Around midnight that night Davis was arraigned again, this time in Manhattan 9 Criminal Court before Judge Morton R. Tolleris, who refused to set ball.

Approximately one month later, on November 10, a Marin County

Grand Jury Indicted Angela Davis In her absence for murder, kidnaping, 19 and additionally, conspiracy. The State alleged the August 7 events were part of a plot between Davis and Jackson to force the release of the

Soledad Brothers, three men from Soledad Prison, one of whom was George

Jackson, Jonathan's older brother. On the basis of this indictment and resulting warrants, Angela Davis was arraigned in New York State Supreme

Court, and Justice Thomas Dickens set a December 3 date for the hearing on extradition.^"®

The final New York hearing took place on December 21 before

Supreme Court Justice John K. Harlan, who denied Davis' appeal to avoid extradition. New York Governor Rockefeller signed the extradition papers, and at 3:20 A.M. Angela Davis was moved from the Women's House of Deten­ tion to McGuire Air Force Base and flown to California, where at 3:00 P.M.

Pacific Coast Time, she was booked at the Marin County Jail, a short distance from the scene of the August 7 escape attempt.^

Pre-Trial Events

The trial began on February 28, 1972 with the start of the jury selection. Pre-trial maneuverlngs, delays, and assorted problems, however, filled the more than one year from the time of the arraignment in San Rafael to the time of the trial in San Jose. The major delays involved the selection of a judge, the reconciliation of the role to be played by Ruchell Magee, the attainment of permission for Angela Davis to participate actively as co-counsel in her own defense, the granting of ball, and argumentation over venue. In addition, national and inter­ national interest in the trial was spurred. We will examine each of these Important pre-trial events. Judge Selection

The judge who eventually oversaw the substantive pre-trial

Issues, and who presided over the trial Itself was Superior Court Judge

Richard E. Amason. Before his assignment to the case, however, Angela

Davis was directly affected by more than half a dozen judges, including,

in New York, Judge Morton R. Tolleris before whom she was arraigned In

Manhattan Criminal Court, and State Supreme Court Justice John M. Harlan,

who denied her extradition appeal. In California, Marin County Superior

Court Judge Joseph Wilson Issued an order that denied Davis and her attor­

neys a copy of the transcript of the proceedings of the Grand Jury that

had Indicted her. The order was in effect so long as Davis was out of

the state. When she was returned to California, Marin County Superior

Court Judge E. Warren McGuire gave her a copy of the transcript, but

sealed it so the defense could not issue details about the testimony.

McGuire also imposed a gag order restricting pre-trial publicity. He

forbade those connected with the case to give out information not already 12 released. Three judges, however, were more integral to the case since

they were actually assigned to preside over it. Those Judges were

McMurray, Lindsay, and Arnason.

The difficulty in finding a judge was the result of strong feelings the California judges had against a defendant alleged to have

•hot and killed another jurist. In fact, In Marin County, where Judge

Haley had presided and where he was killed, the judges disqualified 13 themselves. In an effort to overcome thlB problem sixty-two year old

California Superior Court Judge John P. McMurray of Inyo County reluctantly allowed himself to be called out of retirement to take the case. He 21 attempted to act on pre-trial motions, but was quickly challenged by

Ruchell Magee, Angela Davis' co-defendant, as being prejudiced. Shortly, without offering explanations, McMurray withdrew from the case, saying,

"I don't want to try it. Let one of those younger fellows do it."^

He had been presiding less than a week.

Within five days the California Judicial Council appointed

Judge Alan A. Lindsay of the Alameda County Superior Court. The appoint­ ment upset not only Magee, but Davis and her attorneys as well. Within minutes after Lindsay took the bench Howard R. Moore, Jr., Davis' chief defense counsel, charged the Judge with prejudice against her interest and asked that he disqualify himself. The crux of the problem was that

Lindsay had been an assistant district attorney, an assistant United

States attorney, an assistant counsel for the California Commission on

Organized Crime, and a lobbyist for the California Police Officers

Association and District Attorneys Association. The defense's charge against Lindsay called him "the very model of the white professional whose assumptions, philosophy and actions are racist at their very core."

The defense reasoned that Lindsay naturally would be more sympathetic to arguments from the deputy attorney general than from the defense.

Lindsay was not as accommodating as McMurray had been, however. Davis described him as "totally incapable" of making fair decisions about her and pointed to his former presidency of the Oakland School Board as evidence of a "built-in bias against integration and against those organizations which struggled to achieve integration." His reply was direct. Lindsay said, "1 am now and always have been lnalterably opposed to racial prejudice and segregation of any kind whatsoever. I unequivo­ cally deny and repudiate any implications to the contrary." He refused to disqualify himself. The week long delay between the charges and the

Judge's answer was stretched to another five days before a neutral judge 15 was appointed to rule on the charges against Lindsay. The appointment went to Judge Winslow Christian of the State Appeals Court, who disposed

of the matter in half a day. Christian upheld Lindsay saying the affi­

davits filed by defense attorneys afforded "no substantial basis for

believing the judge entertains prejudice or bias against either of the ,

parties and accordingly will be disallowed."^ The defense, unhappy with

Christian's decision, made a second attempt to disqualify Lindsay by filing

a petition in the California District Court of Appeal to halt proceedings

until a new hearing on Lindsay's qualifications could be held. A three- judge court refused the petition.^ A third attempt was made, this time with the California Supreme Court. But once more it was unsuccessful.

The Court upheld the Appeals Court ruling that Judge Alan Lindsay was not

prejudiced. Judge Lindsay had taken his seat on the bench on April 1,

1971, and had been immediately challenged. This last effort to dis- 18 qualify him for cause was rebuffed on May A. The repeatedly delayed case did not resume yet, however. Each defendant had one peremptory

challenge that could be used to disqualify a judge. On April 21, while

the first challenge of Lindsay was still pending, Earl Caldwell of

The New York Times had speculated that it was unlikely that either defendant would use his peremptory challenge against a judge who was not likely to preside over the trial itself and Lindsay had been appointed to the case

for ninety days, with only the possibility of an extension. But on

May 7, Magee did the unexpected and Issued his one peremptory challenge to disqualify Lindsay. At firBt Lindsay refused to accept the challenge. 23

There were questions concerning Magee's competence to represent himself, as he did when issuing this challenge, and about whether he may have used his one peremptory challenge already on Judge McGuire. Finally, however, on May 10, 1971, Judge Alan A. Lindsay stood aside. The proceedings, already delayed four months, were delayed again while another judge was found.19

The State Judicial Council, which selects judges when none can be found locally, located forty-nine year old Superior Court Judge

Richard E. Arnason of Contra Costa County and appointed him to the case.

The appointment was announced May 13, and challenged on May 24. Magee charged Arnason with prejudice and asked that he be removed from the case. While Arnason denied the charge of prejudice, he did accept

* Magee's challenge. A delay ensued while another judge, Justice Winslow

Christian, once more was appointed to hear evidence and decide the validity of the charge. He ruled that Arnason was not prejudiced and 20 could continue to preside over the case.

One of the motivations underlying Magee's challenge was his desire to move the case to Federal jurisdiction. Although allowed to continue presiding, Arnason took into consideration Magee's attempts to move the case. In so doing, the proceedings were delayed again when, on June 1, Arnason declared an indefinite recess until the jurisdiction issue could be settled. Arnason was aware of a narcotics conviction that had been thrown out because the state courts had proceeded after the defendant had filed a petition to move the case to the federal level.

This situation was sufficiently similar to the Magee request that Arnason wanted to take no chances until he received clarification of the District 24

Court's decision on the matter. In an effort to counteract the new delay, however, the Judge did agree to hear a plea from the defense that 21 Davis be freed.

The delay lasted until July 9, when Federal District Court Judge

Samuel Conti refused to take over the Davis-Magee case. He ruled that before a case could be placed in Federal Jurisdiction it had to be shown that the state law conflicted with Federal civil rights law. While Moore disagreed with the basis of the decision, the ruling remained--and so did

Judge Richard Arnason. In fact, Arnason continued to preside throughout the difficult pre-trial proceeding*, right through to the end of the trial.

In October, 1971, after Arnason had ruled on two difficult issues, the right of Angela Davis to take part in her own defense, and the provision for ball, the two sides were both able to express relative satisfaction with the Judge. Although the prosecutor disagreed with the decision to let Davis act in her own behalf, he still said, "All in all, I'd say that generally I'm pleased." And although the chief defense counsel had been denied on his plea for ball, Moore said of Arnason, "generally . . .he's 22 given us what the law required." Thus, when the delays finally were over, and the trial started, Superior Court Judge Richard E. Arnason was presiding.

The Role of Ruchell Magee

Ruchell Magee was on the witness stand being questioned by James

David McClain when Jonathan Jackson entered Judge Haley's Marin County courtroom on August 7, 1970. Under Jackson's orders Magee was released and provided with a gun. Magee then released William Christmas. Later, when the shooting in the parking lot ended, Ruchell Magee was the only 25 surviving convict. On September 4, 1970 a Marin County Grand Jury indicted

Magee for his role in the escape attempt and resulting deaths* and on

September 10 he was arraigned before Marin County Superior Court Judge

Joseph McGuire. In the meantime* the police were searching for Angela

Davis* whom they arrested on October 13* 1970. Less than one month later, on November 11* the Grand Jury indictments against Magee were dropped* and Davis and Magee were indicted as co-defendants on charges of murder* kidnapping* and conspiracy. This liaison was to be the source of many delays in the proceedings, and much conflict between the defendants* before its severance on July 19, 1971. The two were to find themselves caught irreconcilably in a disagreement over procedural strategy. The primary problem was Magee's Insistence the case be removed to Federal jurisdiction* and Davis' preference for the State jurisdiction of 23 California. Also involved were Magee's background* and his distrust of attorneys and judges* resulting in his insistence on representing himself* refusal to accept court appointed attorneys* and continual challenging of judges. Surrounding the conflicts was the political need for the two to project a united front.

Magee's first formal brush with the law came in Louisiana in

1956 when he was sixteen years old. He was convicted of attempted aggravated rape and sentenced to twelve years in prison. In 1962 he was granted parole on the condition that he leave the state. He moved to California where in 1963 he was arrested for new causes, convicted and Jailed for life. Over the years Magee's courtroom experiences led him to conclude that the legal system could not be trusted. Attorneys did not behave in a manner which convinced him that he was receiving a 26

quality defense! Judges seemed Intent on railroading him. The legal

process was perceived by Magee to be uninterested in what he, the

defendant, thought or had to say. As a result, Magee fought to be granted

his right to self defense. While jailed he continually read law books,

filed papers with various courts, and generally conducted himself as his 24 own attorney. This insistence on acting in his own behalf, even when

assigned an attorney by the court, contributed to his difficulties with

the Davis defense attorneys.

Acting in his own behalf Magee filed a removal petition in the

local federal court. Federal law allows a defendant who feels he cannot

get an unprejudiced trial from the state courts to file an application

for the federal courts to assume jurisdiction. As soon as such a petition

is filed the state courts are temporarily relieved of jurisdiction

in the case. If the federal courts deny the petition, they must remand

the case back to the state courts. Magee was of the opinion that since

the Marin County judges had been closely associated with Judge Haley, he should not be tried by them. Although Marin County judges had dis­ qualified themselves from hearing the case, they had claimed that they could handle procedural pre-trial matters. Magee disagreed, and filed 25 his petition for removal. This removal attempt was the crux of the disagreement between the defendants, and ultimately the basis of the severance. Angela Davis said, in her autobiography:

Though we were both solidly united on our political approach to the case, we did not entirely agree on the way it should be attacked from a legal standpoint. Ruchell wanted the trial transferred from the jurisdiction of the State of California to the federal courts, he was convinced that they wanted his life. He felt that the chances of minimizing the repressive and racist treatment both of us were receiving would be greater if we could agree upon this strategy of removal* I had studied 27

this strategy, I had reflected upon It, and had held long dis­ cussions with Margaret and Howard about the viability of Ruchell*s position. Finally, I had decided that it would be best for us to fight It out on the state court level.26

One reason Davis and her attorneys preferred to have the case

tried on the state level was their concern for getting the best possible jury. On the federal level the judge would handle the questioning of potential jurors, and would make the determination of whether individual jurors were biased or not. On the state level, however, the defense would handle the voir dire and could uncover racist or anti-communist biases.^

A second reason for preferring a trial by California court was that the state has a discovery practice which allows the defense, through 28 court order, to obtain items of evidence from the prosecution. From

the point of view of Angela Davis and her attorneys, these were important considerations.

Contributing to this significant disagreement were the delays caused continually by Magee demanding removal, refusing to cooperate with attorneys, and challenging judges.

Early in the case, before Angela Davis was arrested, Marin

County Superior Court Judge Joseph McGuire appointed Henry Ramsey to represent Magee. But Ruchell Magee would not cooperate, claiming his filing of the removal petition meant Marin County judges had no authority over him. Magee was not only adamant about his position, but his court­ room decorum throughout all the proceedings was less than retiring.

Reginald Major, who covered the trial for the San Francisco Sun-Reporter. and who later wrote the book Justice In The Round; The Trial of Angela

Davis, described part of the early courtroom appearances like this: 28

San Quentin guards . . . found It necessary to drag Magee Into the San Quentin courtroom for the September 10 hearing. "1 object to this whole KKK trial, I have no other statement," Magee yelled as he was brought Into the room. He did partici­ pate to some extent. He told Judge McGuire, "I was drugged into the courtroom. I was choked and thrown into the car like a dog. The prison guards killed the judge and I want to pre­ sent this to the people." The next appearance was just as stormy. "Mr. Magee is getting railroaded before he goes to trial," Magee insisted .... The court was immediately cleared and Magee was threatened with a gag.29

This was not unusual behavior for Magee, who often spoke his mind and demanded his rights with conduct and language which upset proceedings.

Magee did not want Ramsey, so on September 29 the court appointed

* * Clinton White, whom Magee referred to as "a Tom working for the power structure." White then asked Judge Joseph G. Wilson to name him legal advisor to a self-representing Magee, an Idea the court looked upon unfavorably. Magee filed charges against McGuire and Wilson, claiming they were prejudiced. This meant the case had to be delayed until the

California Judicial Council ruled on the charges. Justice Winslow

Christian was assigned to hear the complaint. In the meantime White, at his own request, was removed from the case and the court, over Magee*s objection, appointed Leonard Bjorklund as attorney. This was the third attorney appointed to Magee in little more than three months. He did not last either, however. In fact, by the time of the severance, only seven months in the future, four more attorneys would be involved.

Bjorklund asked to be removed from the case in January, 1971, and was replaced by a team of attorneys, Robert Bell and Robert Carrow. After a short period of time they, like White, asked to be relieved of the case so Magee could defend himself, or at least they wanted to be appointed only as legal advisors. By this time Angela Davis had become Magee's 29 co-defendant, and each delay affected her and the ability of her attorneys to try to have the indictment thrown out, to get bail set, or to discuss # • a change of venue. In March, 1971 Bell and Carrow's motion to become legal advisors was denied, and in an effort to facilitate the proceedings,

Judge John McMurray from Inyo County was appointed. He allowed Bell and

Carrow to withdraw, but then reappointed them to Magee. This way Magee was to be thwarted in his claim that Bell and Carrow were objectionable because they were assigned by Marin County judges, none of whom had authority because he had filed a removal petition. The plan did not t work; Magee would not cooperate, l'inally, Magee challenged McMurray for prejudice. The proceedings were confused and bogged down already, and this legal challenge had to be answered before any other motions could be heard. Then, only two days into the case, McMurray admitted 30 prejudice, and stepped down. This decision and additional delay surprised and disappointed Davis defense attorneys. Earl Caldwell of

The New York Times reported:

After he announced his decision, Judge McMurray immediately left the bench. His exit from the courtroom was so swift that he left attorneys for Miss Davis at the bench pleading with him to hear her request for bail. . . . Attorneys for Miss Davis were not only surprised at Judge McMurray's decision but appeared to be somewhat disappointed. "I wish he would have heard our arguments for bail," Howard Moore, Jr. . . . said. "In fact, I wish he would have heard all of our motions."31

Two weeks passed before Judge Alan A. Lindsay took over the case. Both Davis and Magee objected to Lindsay. Lindsay, however, denied any prejudice and Justice Winslow Christian had to hear the allegations and decide whether to disqualify Lindsay. Christian ruled in favor of Lindsay. This did not end the delays, however. Bell and 30

Carrow tried again to be released from the case. They moved to substitute

Magee as the defense representative to replace them. Lindsay refused to 32 allow that.

At the same time Magee was challenging judges and refusing attorneys, Federal Judge Samuel P. Conti had considered and denied the removal petition. Unfortunately, he did not do so in a manner that could end the controversy. Instead of denying the petition for substantive reasons, he denied it because it had not been accompanied by the appro­ priate filing fee. Furthermore, he failed officially to remand the case back to the state courts. Needless to say, this shrouded all the pro­ ceedings in a cloak of confusion. At the time that Bell and Carrow were attempting to be released as Magee's attorneys, Magee was continuing his removal fight. The most recent of Conti's responses had referred to Magee's petitions as "legally frivolous," and he had ordered that

Magee could not file any more documents without having them cleared by the trial court. Magee was angry, and said so. Delays and arguments continued between Lindsay, Bell and Carrow, Magee, and the Davis attorneys, who were angry about the Christian decision that Lindsay could not be disqualified. Finally, Lindsay ruled against the substitution of Magee for Bell and Carrow, and as part of the justification for doing so, referred to a ruling made previously by Judge McGuire that Magee was incompetent to represent himself. Magee's response was the submission of a written peremptory challenge to Lindsay. Although each defendant had the right to one peremptory challenge, LindBay refused to accept

Magee's. Two factors had to be considered. There was a record of a previous attempt to use the peremptory challenge against Judge McGuire. 31

McGuire had stepped down, , but It was unclear whether he had done so in response to the challenge. Furthermore, If Magee was incompetent to represent himself, as McGuire had ruled, the challenge might be invalid when decided upon and made by Magee. Again, Magee was angry and more delays ensued. Bell and Carrow at last convinced Lindsay to release them from the case, although the Judge still denied the substitution motion. At the same time Lindsay finally heard, but denied, the defense attorneys' request for bail for Angela Davis. Davis would remain in 33 jail through still more delays.

Meanwhile, the question of Magee's legal representation was still undecided. Judge Lindsay became aware of a case where a judge was found to haie erred in allowing a defendant, deemed incompetent, to defend himself. On this basis, with the additional information that Magee's

IQ score was 75, Lindsay ruled Magee Incompetent, blocking any further attempts by Magee to gain self-representation. Lindsay offered Magee the opportunity to select his legal representative from a list of attorneys 34 he haq prepared. The choice was Ernest Graves.

Lindsay had been active on the case since April 1, 1971. On

May 10, after more than a month of delays and confusion, Magee, with

Graves' help, successfully issued his peremptory challenge, and Lindsay stepped down.^

Davis and Magee had been co-defendants for five months, and except for a request for bail, which had been denied, Davis defense attorneys had been unable to move the case closer to a trial.

Judge Richard Arnason, the next judge assigned to the case, was responsible for more speedy movement toward trial. Assigned to the case 32 on Hay 13, he heard and denied a request for ball by June 16, heard and denied a motion to dismiss the Indictment June 28, and vas Instrumental

In severing the cases by July 19. Arnason did not go unchallenged by

Hagee, however. Magee challenged the Judge for prejudice. Arnason, in a written reply, denied prejudice, but accepted the challenge, and referred the matter to Judge Christian. Christian ruled that Arnason was not prejudiced. Magee was angry, especially since he had no peremptory challenge left to use, the Davis attorneys were less supportive of his removal petition, and he wanted to be rid of Graves so he could represent himself. Magee's frustration manifest Itself in harsh verbal expression and a physical attack on Graves, which in turn delayed proceedings while recesses were called. Furthermore, on June 2, Arnason additionally delayed pre-trial proceedings until the matter of the removal petition was settled. This did not have the crippling effect one might expect, however. At the same time Judge Arnason stopped the proceedings, he agreed to the separate habeas corpus hearing Davis attorneys requested.

This was a separate hearing that did not interfere with Magee's removal attempts, but did allow arguments for ball to be heard. While this pleased Magee and Davis defense attorneys, it angered the prosecutor, who did not think the removal petitions deserved more consideration, and who wanted no more pre-trial delays. It was at this point that the prosecutor 36 suggested severing the cases.

Angela Davis and her attorneys were caught in a difficult situa­ tion. Magee, through his inciting of continual delays, was undermining

Davis defense strategy. In the courtroom, attorneys were unable to present motions. On the street, the National United Committee to Free 33

Angela Davis (NUCFAD) was unable to gain support without courtroom Issues

to rally to. Major explained the situation that existed as early as

March, 1971, little more than three months after Magee and Davis became

co-defendants, and at the time McMurray disqualified himself.

Angela*8 attorneys were bothered. Thus far they had been unsuccessful in having any of their Important motions heard and ruled upon. They were anxious to get a ruling on bail, so that &igela would either be released, or they could be filing appeals on bail denial. There was more than legal timing involved. The political activity outside the courtroom was directly dependent on the decisions made, and activity engaged in inside the court. Since Angela's case was not progressing there was no court- related issues around which supporters and potential supporters of Angela could rally.$7

The potential for severance and the extent to which Davis attorneys were

"bothered" by the lack of progress was clear even to observers. Earl

Caldwell of The New York Times, reported:

A rift between Magee and Miss Davis' lawyers loomed large after the courtroom action [during which McMurray disqualified himself]. . . . Miss Davis' counsel admitted a preference for Judge McMurray. They particularly wanted him to hear their argu­ ments for ball. . . . Magee ruined that. But now, the defense lawyers are mostly worried about what he may do in the future. He has already gotten rid of a judge they wanted and brought delay to hearings they were anxious to have.

Clearly, their worries were not unfounded. Magee continued to incite

delays by challenging Lindsay and Arnason, refusing attorneys, and

demanding removal to a Federal court. And yet, when asked about separa­

tion, Howard Moore, Jr., the Davis chief defense counsel, said, "We have no problem. . . . People are trying to make a split but there 39 isn't any. Not now, anyhow."

The unwillingness to support a severance action was based on

political considerations. Magee was the epitome of the political 34

prisoners Angela Davis had been fighting for. It would be strategically

unwise for Davis to appear to abandon Magee to a government and legal

system she had indicted. Therefore, while her attorneys denied consider- ation of severance, claiming Davis and Magee were in agreement, Caldwell was able to report on a different rationale favoring unity.

Others argue that it would be politically disastrous for Miss Davis to separate herself from Magee whose image among the young militants is that of a black man incarcerated and unable to secure his rights in court. They say that asking severance would give the appearance that Miss Davis was aban­ doning Magee.

Some credence was given to this theory by one of Davis' attorneys, whose statement implied an awareness of the connection between Magee and

Davis' political prisoner cause.

[Angela] could say the hell with Magee but she won't do it. . . . She understands that he has been so messed over that he doesn't trust any lawyers and that he is right in wanting to defend himself. She's just decided to sweat it out and not press for her freedom until this thing with Magee is settled.4*

The situation was difficult because while the prosecutor could suggest severance, defense attorneys could not publicly support the 42 suggestion, and the Judge was not inclined to sever if others resisted.

Finally, however, a decision had to be made. Magee wanted to fight for removal, and Davis wanted a speedy trial. In her autobiography, Angela

Davis explained it this way:

So long as the situation regarding removal was in abeyance, we had not been able to proceed with many of our pretrial motions. Proceedings at the state court level might possibly jeopardize Ruchell's fight for removal. It was a difficult predicament. When the time came to throw aside all indecisivness in order to begin serious litigation, Ruchell and I were still at odds on our respective legal positions. ^

The solution worked out was a combination of compromise and concession. Davis agreed to concede to Magee's strategy and file a motion 35 for removal, with the understanding that If the federal court denied the motion, Magee would agree to trial in state court. When the motion was denied, however, Magee decided instead to continue fighting for removal.

Davis explained:

Later, I could see that our agreement was defective from the outset, more a result of our desperation than a real attempt to solve our differences. For Ruchell was certain beyond a doubt that the judge would grant the removal motion, and didn't earnestly consider the possibility of a denial. I was equally certain— beyond a doubt— that the motion would in fact be denied, so I never earnestly considered the possvtbiUEy of fighting the case in federal court.44

Since the motion was denied, and since Davis wanted a state

« 4 level trial, while Magee was determined to obtain a federal hearing, severance was inevitable. Davis lamented:

. . . the impasse we had hoped we would elude subbornly [sic] imposed itself. If we wanted to get on with our respective defenses, there was only one way to confront the impasse— and both of us understood this. Severance now was the only way out. Severance was a word I hadn't wanted to hear, but since we were both wedded with equal conviction to our own particu­ lar strategies, we had to move for separation.45

It was from the defense attorneys for Angela Davis that the severance request came. Judge Arnason granted the request on July 19,

1971, and Magee waived his right to trial until the trial for Angela

Davis was over.

Angela Davis was acquitted in 1972, but Magee's trial was not completed until 1975. In April, 1973 his first trial ended with a dead­ locked jury. He continued his efforts toward removal. In May, 1974 he pleaded guilty to a charge of aggravated kidnaping. He tried to with­ draw the plea later, but failed. On January 13, 1975 the U.S. Supreme

Court refused to hear his case, and on January 23 he was sentenced to life imprisonment by Santa Clara County Superior Court Judge William A. 47 Ingram. 36

Angela Davis As Co-Defense Counsel

Of the three major requests the defense made of the court, to grant ball, to grant a change of venue, and to allow Davis to act as co­ counsel In her own defense, the latter was the earliest met, and the one granted with the least fanfare. At her arraignment in San Rafael on

January 5, 1971, she declared her Innocence and asked permission to act as co-counsel In her own defense. She believed that as the person charged, and the one with the most to lose, it was her right to defend herself.

At the arraignment she said that "a system of justice which virtually condemns to silence the one person who stands to lose most would seem to be self-defeating."

Part of her rationale for equating justice with her assignment as co-counsel was explained in an article she wrote for the book If

They Come In the Morning, an anthology she helped edit while In prison.

She said:

. . . Black people have consistently been the victims of what is supposed to be "justice." In a courtroom situation, the white prosecutor, white witnesses, especially white policemen are given more credence by the jury— -usually overwhelmingly white— than the Black defendant. . . . as a Black woman . . . I am at an enormous dis­ advantage. 49

Her concern vent beyond personal credibility, however. She was distressed at the financial, evidence gathering, and power resources available to a state prosecutor. What cost her large sums of money, and required donations from already hard-pressed friends, were easily purchased by the State.

Furthermore, she felt this Inherent prosecutorial advantage was enhanced by publicity congratulating law officers on the occasion of 37

her arreBt. She reasoned that these "overwhelming advantages enjoyed by

the prosecutor would call into question the basic presumption of the

Innocence of the defendant. . . . circumstances are A PRIORI balanced in

favor of the prosecutor." Her solution for establishing "a more equitable

balance of forces" was to name her co-counsel.^

Another focus of Davis' rationale was that the case against her

was a "political frame-up" and that only by participating actively in

her own defense could she make this clear and present a related defense.

At the arraignment she asserted:

I stand before the court as the target of a political framu-up which, far from pointing to my culpability, Implicates the State of California as an agent of political repression. . . . in order to Insure that these political questions are not obscured, I feel compelled to play an active role in my own defense. . . . as the defendant, and as a black woman and a Commu­ nist, it is my duty to assist all those directly involved in the proceedings as well as the people of this state and the American people In general to thoroughly comprehend the substantive issues at stake In my case. . . .these have to do with my political beliefs, affiliations and my day to day efforts to fight all the conditions which have economically and politically paralyzed black America. If the court denies our motion to include me as co-counsel in this case, it will be aligning itself with the forces of racism and reaction, which threaten to push this country into the throes of facism.51

In her writing she reasoned that a major part of the case against her, in particular the alleged motive, was tied to her political activ­

ities, and that she alone would be able to argue the politics that occupied her. She said:

The political character of this case gives my request to represent myself all the more validity and force. . . . It cannot be denied that I am a Black woman, member of the Commu­ nist Party, active in the Black Liberation struggle and in the larger revolutionary movement for socialism. This is directly relevant to the case against me, as indeed the prosecutor has affirmed...... My participation in the Black Liberation 38

Movement is in the eyes of the prosecutor, an element of the crime of vhich I am accused, namely the motive. . . . I can anticipate that the prosecutor in this case will present evidence and call upon witnesses to give testimony pertaining to my political activities. . . . No one is as intimately acquainted with my politics as I am. Therefore, I alone can completely challenge evidence with political Implications and cross examine those witnesses whose testimony concerns my politics.52

From the point of view of Angela Davis and her attorneys, the

attainment of justice theoretically in either the framework of the

criminal trial or the political trial required the appointment of Davis as co-counsel.

Reginald Major offered a third rationale for her request. He suggested the defendant, rather than the evidence alone, could have a significant persuasive effect.

Part of the defense of every person is the fact that he is that person, and makes an impression on those who judge, .... In theory, people are judged on the evidence and the evidence alone, but only when there is an overwhelming amount of evidence, or when there is none. Where evidence is contested, where versions of events are being contrasted, where an ordering of the evidence Involved an assessment of the witnesses, factors other than the evidence influence the decision. A good witness is a convincing witness, and quite often persuasiveness is more a matter of demeanor than information. The jury looks at the defendant throughout the trial, searching for a hint of who that person might be, a clue, rooted in judgments about the probable personality of the defendant, to guess whether that configuration of personal traits is capable of committing the crime charged. . . . It is not unreasonable to suggest that an accused should have the opportunity, if he should want it, to display more of what he stands for to a jury— not in special pleading, but by conducting himself as he must, as his nature directs him when defending him­ self against any serious threat.53

In Davis' case this could be a particularly relevant rationale. If a

Black Communist woman is tried before what is likely to be a white

American mixed jury, it is not unreasonable to expect the jury, who may know little about being Black, or a Communist, to make some evaluations on the basis of the behavior of that person on trial. 39

In addition to Davis' personal spoken and written pleas to be

..named co-counsel, Michael E. Tigar of Los Angeles, who was acting as her 54 attorney at the time, offered legal arguments to support the motion.

In January, 1971, when Angela Davis made her request, she and

Ruchell Magee were co-defendants, and Magee was fighting for self­

representation. The court had the problem of having to decide whether to

grant Davis' motion, but not Magee's, and whether, like Magee, Davis would

be likely to reject her attorneys or upset courtroom proceedings if she

was named co-counsel.In her writing about self-representation Davis

answered the question regarding attorneys by assuming the posture of one

who may be asked to give up her lawyers if she insisted on representing

herself. She explained that requesting and being granted the status of

co-counsel was no excuse for denying her legal representation.

One might argue that since I am determined to play an active role in the trial, I should fire my lawyers and assume the entire burden of the defense. This is to say, if I wish to exercise my constitutional right to defend myself, I must relinquish the right to counsel. This either/or situation in my opinion flies bla­ tantly in the face of justice. Rigorously speaking, neither is a RIGHT, if one must be renounced in order to exercise the other. Should I be penalized because I do not possess the legal knowledge, experience or expertise necessary to proceed entirely PRO SE? Alone I would not be capable of carrying the total burden of my defense.56

Not only did she address herself to the concern over whether she

would continue her attorneys as her legal representatives, but also

answered those who may have watched Magee and were worried about court­

room disruptions.

I realize that as co-counsel, I assume the selfsame responsi­ bilities and am subject to the same restraints as any attorney who practices law as a profession. I can guarantee the court that insofar as I exercise a degree of control over the events which unfold in this courtroom, there will be no disorder.57 40

It was not until July 27, 1971 that Angela Davis' request was granted by Judge Arnason. It is difficult to tell whether her published reassurances played a role in the decision, because by that time cir­ cumstances had changed significantly. Arnason, who was not assigned the case until more than four months after the initial plea, was the presiding

Judge, and the union between Davis and Magee had been severed. Under these circumstances, just prior to Davis' formal plea of not guilty, Arnason was able to say "the cause of justice will be served" by granting her the powers of a defense attorney in her own trial. The Judge explained, 5B however, that he might revoke the privilege if it was abused.

Those who expected Angela Davis, once granted co-counsel status, to become visibly active in her own defense were surprised. She did conduct part of the argument on a motion that the state should pay defense costs, presented arguments to a Federal judge to ask bail be granted, questioned some jurors, and at the trial she presented the opening statement. But for the most part "she contributed to the court­ room maneuverings sparingly, and to the extent that her co-counsel status 59 was meaningful in the courtroom Angela acted like a well-behaved client."

Bail

Angela Davis was arrested October 13, 1970, and arraigned in

Federal Court. The next day she was transferred to state authorities and arraigned before Manhattan Criminal Court. It was there that she first attempted to obtain her freedom on ball. As noted earlier, Judge Morton

Tolleris refused to set bail. He was the first of several judges to

Impede her release. In fact, Angela Davis did not gain her freedom until

February 23, 1972. The delays which resulted from Magee's conduct was 41

one block to the attainment of release on bail. Judge McMurray, for

example, after Magee's challenge of him as prejudiced, removed himself from

the case so quickly that the defense attorneys had not completed their

plea that he hear her request for bail. Lindsay, who was assigned the

case after McMurray left, was challenged for prejudice also. Although

he did not react like McMurray and step down, the challenge did deter him

from hearing Davis' bail plea. When Magee's peremptory challenge removed 60 Lindsay from the case the bail issue was still undecided. The focus of

the bail issue then fell upon Judge Arnason.

The issue of ball was a major one. It was the focal point of

much courtroom argumentation, and a central rallying point for the public

political campaign conducted to support Angela Davis.^ On June 15, 1971

Arnason finally ruled, denying bail. That ruling was not in accordance with the recommendation of the Probation Department, which had found no

reason to believe Davis would flee, and had recommended her release on

$100,000 bail. Arnason's denial decision, however, was reported to be

based on "solely and exclusively legal issues." A California law denied a defendant's eligibility for bail if there was "any substantial evidence"

that might sustain a guilty verdict In a case of a capital offense. At

that time in California the death penalty was still possible for capital

crimes. Two of the charges against Davis were for kidnaping and murder,

both capital crimes. Using the information from the Grand Jury that had

Indicted her, Arnason had concluded that either proof of guilt was evident, or the presumption of guilt was great enough to sustain a guilty verdict 62 in this capital case, and accordingly had denied bail.

When the decision was handed down Davis' chief defense attorney,

Howard R. Moore, Jr., said an appeal would be made in the United States 42

Court of Appeals for the Ninth District. That appeal for reversal was filed July 14, but on August 27, 1971 it was refused, and Angela Davis 63 remained in jail. It had then been ten months since her arrest and initial incarceration.

In October, 1971 another appeal was filed, this time by Dean

Paul E. Miller of Howard University, Professor Vern Countryman of Harvard

Law School, and Professor Thomas I. Emerson of Yale Law School. Their amicus curiae brief contended that "no statutory or constitutional authority" was cited when bail was denied, and that the decision undercut the presumption of innocence, and potentially biased a jury. Since it had been determined that Davis would be likely to appear for trial even if freed on bail, they reasoned that the refusal of the Judge to release her amounted to "prejudgment that not only results in punishment absent a determination of guilt, but . . . completely infects the guilt-determining process when it does take place due to the highly prejudicial impact such prior judgment is likely to have on any jury." Additionally, they complained of the "inhumane conditions" of the jail and pointed out that 64 Angela Davis had been severed from her family, job, and education.

Their efforts to help gain her release were unsuccessful, however.

Davis had been in jail for nearly thirteen months when reports that her health was failing were first issued. Her personal physician,

Dr. Tolbert J. Small, said that although her life was not in danger there was reason to be concerned about her eye-sight, and the recurring viral

Infections that had caused her to lose over twenty pounds. In the mean­ time, Angela Davis1 younger sister, Mrs. Fania Jordan, reported at a news conference that her sister had contracted glaucoma and was losing her eye­ sight. Small'said there was little danger of blindness, and Dr. Donovan Cooke, the Marin County Director of Medical Services, said there was no sign of glaucoma, and in fact her health was "good." Whatever her true state of health, the discussion of her condition had allegedly begun In

March, 1971, and was reported publically in November, after Arnason's denial of bail in June, the Appeal Courts denial in August, and while another appeal was being planned. On December 23, 1971 Davis defense attorneys asked a United States District Court to grant her release on ball. Then on January 8, 1972, while waiting for the District Court decision, Moore reported that Angela Davis had been hospitalized for tests, "because of her complaints that her health was deteriorating from 65 long confinement." It would not be unreasonable to conclude that Davis and her attorneys were hoping her questionable health would help them obtain a favorable decision on bail. However,- that was not the result.

On January 12, 1972, after fifteen months in jail, Angela Davis exercised her right as co-counsel and appealed personally to Judge

William T. Sweigert to free her on bail. She was assisted by Anthony

Amsterdam, a Stanford University law professor. The appeal was based on three arguments. Angela Davis asserted that California's refusal to grant 66 bail was "more a political gesture than a legal gesture." This posi­ tion was consistent with the one she had used to argue for co-counsel status. There she had equated justice with her attainment of that appointment, and had pointed to the historical victimization of Blacks. ^

Now again she was suggesting non-legal motivations for her having been denied what she asked.

Amsterdam supported her appeal with two additional arguments.

First, he attacked Arnason's decision justification that in this capital 44

case there was sufficient proof or presumption of guilt to sustain a

guilty verdict. He claimed, instead, that the prosecution had "the

flimsiest case— let alone capital case" he had ever seen. Additionally

he argued that by holding her in jail the state was hampering Davis in

the preparation of her own defense.

Judge Sweigert considered the matter for three days, but on 69 January IS turned down the bail plea. Angela Davis had spent fifteen

months in jail, and there appeared little hope she would ever be granted

bail. In little more than one month, however, she did gain release.

The Impediment to bail was the fact that hers was a capital case which, if it received a guilty verdict, could result in the death

penalty. Then, on February 18, 1972, the California Supreme Court

declared capital punishment unconstitutional. Doris Walker, one of the

defense attorneys, responded by announcing that the defense would ask 70 immediately for the release of Angela Davis. Davis attorneys reasoned

that the Supreme Court decision undermined completely the sole legal

basis for Arnason*s decision. Upon request Arnason agreed to hold an

Immediate bail hearing. Angela Davis described the argumentation pre­

sented by her chief defense attorney in this way:

Howard presented our extremely simple argument for bail: 1) The previous denial of bail was based entirely on the capital nature of the charges against me; 2) Only hours ago, the Supreme Court had abolished the death penalty— there was no slich thing as a capital crime; 3) Ergo, I should be granted ball immediately.7^

The prosecutor, Deputy State Attorney Albert Harris, Jr., opposed

Davis' release. He argued that if she was freed she would not return

for trial. Furthermore, since it would take thirty days for the Supreme

Court decision to become final Harris wanted the court to delay release 45 72 for that long at least. Arnason decided not to make an Immediate ruling, but to allow time for his own review of the Supreme Court decision and for the prosecutor to prepare an answer to the defense argumentation. A new hearing date was set for later that week.

On February 23, 1972, the second hearing took place in closed session in Arnason's chambers. He ruled that the state law that denied bail to defendants in capital cases had been invalidated by the Supreme

Court decision, and that Angela Davis could be released for $102,500 bail. Harris continued to oppose the release, arguing it would be best to postpone the ball decision until it was known whether the State

Supreme Court would rehear the case on capital punishment. Once the

Judge's ruling was made, however, Harris decided not to appeal, pre­ ferring instead to concentrate on preparation for the trial, due to start 73 four days hence with jury selection.

Although the Judge had made the decision to grant ball, the defense and prosecution had to agree on the conditions of that bail before the bond of $102,500 could be set. It was finally decided that Angela

Davis would be required to live in Santa Clara County, the scene of the trial, could not travel beyond the six counties of the San Francisco Bay

Area without court permission, had to check in weekly with a probation officer, could not possess firearms, and could not attend public rallies or meetings without court permission. She was allowed to grant inter­ views, but had to abide by a court ruling not to talk about the case itself.^

The National United Committee to Free Angela Davis (NUCFAD) raised $2,500 to be given to the court at once, and $10,000 to be used 4 6 for the ten percent bondsman's fee. The additional $100,000 came from

Rodger Lapsley McAfee, a Communist sympathizer and Party applicant, who offered the deed to his 405 acre San Joaquin Valley farmland as collateral for Davis' release.^

With the conditions agreed upon, and the bond posted, Angela

Davis was released on ball on the evening of February 23, 1972, more than sixteen months after her initial arrest in New York, and only five days before her trial was to start with the jury selection.

Angela Davis called her release a "victory for the people" and used the same label for the abolishment of capital punishment. She said, in reference to the removal of the death penalty:

. . . I feel that this was a people's victory. The people who struggled around conditions in prisons, who struggled around repression which prevails throughout the prisons in this country— it was because of the atmosphere that has been created by this struggle that the Supreme Court [of California] abolished capital punishment. This has been a victory in the sense that the abolition of capital punishment is very closely related to all the struggles conducted around the prisons in the last two years. . . .7®

Her ball release was credited to a country wide struggle as well.

Even when the California Supreme Court struck down capital punishment, it continued the law allowing judges to deny bail in those cases that once could have resulted in the death penalty. Essentially, therefore, the law

Judge Arnason had used as the basis for the denial of bail remained

Intact. He could have relied upon it to continue her incarceration. The official position of the NUCFAD was that the Judge yielded under the pressure of the mass movement built around the bail issue.^ In her autobiography Angela Davis explained:

. . . I wondered why he had finally decided to set me free. It was certainly not because he personally wanted to release me before trial. If that had been the case, he could have let me 47

out months ago. He would not have had to wait for the abolition of the death penalty. Neither was It only because of the new court decision that Arnason had granted our motion. He could have very easily accepted the prosecutor's proposition that the Supreme Court decision would not be final for ninety days yet; therefore, he should wait out those three months and release me then— assuming no revisions were made in the decision. (Later I discovered that every judge in the state of California who had heard a ball motion on the basis of the abolition of the death penalty had followed the prosecutor's suggestion and waited out the ninety days.) It was not the judge. It was not the law. Only one other explanation remained. That very morning, the judge himself had given me a glimpse into what had motivated him to grant bail. He spoke about "... the mail I've received In the last two days and the telephone calls, . . . from foreign countries. It is a case of amazing interest." The real reason he felt compelled to hand down a decision in our favor had to do with the mushrooming defense compaign. Arnason did not mean to imply that he was "yielding to public pressure." Yet it was clear that the tremendous agitation of millions of people had affected him.78

Whatever the motivating factor, the Judge's public position, as reported in The New York Times of February 24, 1972, was that the law prohibiting bail in capital cases was invalid under the Supreme Court decision eliminating the death penalty, and Angela, therefore, was 79 eligible for release.

Venue

It was in Marin County that the August 7 escape attempt had taken place, and it was to Marin County that Angela Davis was returned to stand trial. Predictably, the defense attorneys objected to this site. The memory and impact of the event would be most vivid in the minds of the people of that area, the same area from which the jury would have to be drawn. Furthermore, Marin County did not have a large enough black popu­ lation to satisfy the defense that Davis could get a jury of her peers.

In a June, 1971 article in The New York Times Magazine Howard Moore, Jr., 48 the chief defense attorney, stressed the need for having a large number of blacks on the jury*

We are going to raise the question of the national status of blacks in the courtroom. When we say that Angela should be judged by her peers, we mean by other blacks. What was significant and critical about the New Haven [Connecticut decision to drop charges against Bobby Seale and Ericka Huggins] and [the] New York [acquittal of the Panther 13] . . . was the number of blacks on the jury. It prevented the prosecutor from making openly racist appeals in court and it prevented white jurors from making racist arguments in the jury room.®®

Aside from the problems of getting an uncontaminated black jury, there were difficulties in obtaining a presiding judge. All Marin County judges had disqualified themselves, adding further evidence of the unsuitability of the County. Davis said:

We prepared to argue our motion for a change in the venue of the trial. For, a trial here [in Marin County] would be a ceremonial slaughter, a sure prelude to San Quentin's gas chamber. All the Superior Court judges in the county had confessed they could not fairly preside over my trial. That grand gesture disengaging them­ selves was to me another way of saying that they were hopelessly convinced of my guilt.

In September, 1971, new events added more incentive to the desire for a change of venue. At San Quentin Prison, only five miles from the courthouse, violence between guards and prisoners resulted in the death of three guards and three convicts. Among the convicts killed was George Jackson, one of the Soledad Brothers in whose behalf Angela

Davis had been working, and the older brother of Jonathan Jackson, who had

Initiated the August 7 escape attempt. After the Prison deaths Moore commented that "events at San Quentin make it impossible to get a fair 82 trial." Certainly, if the time of more than a year since the court­ room escape attempt had made the County residents any more objective, the new outbreak at San Quentin and the link between Angela Davis and George and Jonathan Jackson were likely to have the opposite effect. 49

As a result of a combination of factors, therefore, on September 20,

1971, defense attorneys requested that the trial be moved to San Francisco.

To support their motion they used an opinion survey taken by a University

of California professor that showed sentiment in Marin County to be

strongly against Davis.

The polls showed that only one half of 1 per cent of the registered voters in Marin County did not know Miss Davis. In the poll that was conducted 46 per cent of the persons responding expressed an opinion as to her guilt or Innocence. And of those expressing such an opinion, 72 per cent said that they believed she was guilty.®3

The motion used the survey to conclude Davis could not get a fair trial

because Marin citizens "'feel doubly abused— having witnessed the debacle

of August 7 in their own civic center and now being required to bear the

costs of the trial.

The defense wanted more than merely a change in counties, however.

They had a specific county in mind— San Francisco. Their survey showed

that to be the only Northern California location^where there was sufficient i racial and political tolerance to permit a fair trial. San Francisco

contained a significant non-white community and the possibility of getting

blacks on the jury was better. As Davis explained:

Any Black person knows that there are only a few places in the state of California where even the semblance of a fair trial could take place. If there was to be a trial, we wanted it to take place in San Francisco, where we could hope to pull some black people from the jury panel.®-*

The prosecution was not opposed to a venue change, but did object

to the defense selecting the site. It was the position of the prosecutor . 86 that the site should be selected by the court.

On November 2, 1971, Judge Arnason ruled in favor of a change of venue, but selected San Jose, in Santa Clara County, rather than the 50 requested San Francisco. Moore responded by claiming defense surveys showed "Intense racial prejudice" In Santa Clara County, and said they would appeal the choice. In spite of defense efforts to persuade Judge

Arnason to change the decision In favor of San Francisco, the site remained Santa Clara. On December 2, 1971, Angela Davis was moved from 87 the Marin County jail to a Jail In Santa Clara County.

As preparation for the trial proceeded, defense attorneys con­ tinued their efforts to change the site selection. Two months after Davis was moved to San Jose her attorneys continued arguing that there were too few blacks and too much anti-Communlst sentiment In Santa Clara. One attorney, Leo Branton, said, "We do not feel that there is a reasonable likelihood that Miss Davis can get a fair trial here. The feeling against her in Santa Clara County is stronger than It was in Marin

County." Alternative sites suggested by Branton included not only San 88 Francisco, but Los Angeles and Alameda Counties also.

The final decision was issued on February 17, 1972. Arnason granted that Santa Clara County was not fee of prejudice, but he believed Angela Davis could receive a fair trial there.

"It is always possible," Judge Arnason said, "that something Improper will happen. The perfect world has not yet been created and perhaps the perfect forum for the trial of this case has not been yet discovered." But quoting Alexander Pope's'Essay on Criticism," Judge Arnason said, "Whoever thinks a faultless piece to see, thinks what ne'er was, nor is, nor e'er shall be."89

The trial took place in San Jose, Santa Clara County.

National and International Interest

Angela Davis and her attorneys believed that the only way to acquire any semblance of a fair trial from the legal system they considered 51 racist was to put pressure on that system with constant vigilance. If police and court officials could be kept aware that every action they took, every legal decision they made, was known and judged by large numbers of citizens, perhaps those actions and decisions would be fairer to Angela Davis. In a June, 1971 article Howard Moore, Jr., the chief defense attorney, was quoted as saying:

Angela Is in the clutches of the law. A trial is Inevitable. She Is being tried for her life. Given the deep-seated hatred and the political nature of the trial, the only way she can be freed is to bring enough pressure to Insure that she has a fair trial. The outside pressure forces them to be more scrupulous. It is salutary.90

The necessary pressure came from national and international sources, which were led and co-ordinated mostly by the National United Committee to Free Angela Davis (NUCFAD). The leadership of NUCFAD consisted largely of members of the Communist Party of the United States (CPUSA).

Franklin Alexander, the chairman of the CPUSA's black Che-Lutnumba Club, helped establish NUCFAD and became one of its national co-ordinators, along with Fania Davis Jordan, Angela Davis' younger sister. Angela

Davis was a member of the CPUSA, in particular the Che-Lumumba Club, and her younger sister asserted "almost total agreement" with Angela Davis' politics* Regarding the involvement of the CPUSA In the political campaign, Stern concluded in his article in The New York Times Magazine that "Much of the strength of the campaign is due to the considerable resources which the Communist party, U.S.A. . . . is putting into the struggle."^3,

NUCFAD was formally established in November, 1970, to unify what its creators, Franklin and Kendra Alexander, and Fania Davis Jordan per­ ceived as a ground swell of support for Angela Davis. They said: 52

We knew that the people's struggle to free Angela and all political prisoners needed an organized leadership to co­ ordinate and direct its energies in order to raise that struggle to new levels of sustained and programmatic activity, to inten­ sify political consciousness in order to score the ultimate victories. So at a mass meeting in a church in South Central Los Angeles in early November 1970, attended by 300 to 400 people, the National Committee to Free Angela Davis (NUCFAD) was founded. Franklin Alexander, a member of the Che-Lumumba Club, an all- Black collective of the Communist Party of the United States, to which Angela Davis also belonged, and Fania Davis Jordan, Angela's sister, were elected to serve as the national co-ordinators of NUCFAD. "The Committee," as we call it, has been organized on the basis of a united movement and in a direct response to the national and international popular reaction to the arrest of Angela.92

NUCFAD was designed with two purposes: "to deepen people's understanding of the political implications of the case, and tu attain

the widest possible support." By the end of December, 1970, these purposes were at the core of over fifty committees in major cities.

NUCFAD then expanded its efforts to smaller towns and cities, until 150 93 additional committees had been formed by the end of February, 1971.

NUCFAD became a focal point in the strategy to gain acquittal for

Angela Davis. Stern reported that "The national committee staff coor­ dinates the work of the local committees, supplies them with literature, posters and speakers, and, in conjunction with the legal staff, sets the 94 over-all political strategy." A hint of the extent of the integration of the political activity and the legal defense was given by Major, in his discussion of Magee's creation of legal delays. These delays inter­ fered with the generation of issues around which supporters could rally.

In the context of Judge McMurray's disqualification, Major said:

Angela's attorneys were bothered. Thus far they had been unsuccessful in having any of their important motions heard and ruled upon. They were anxious to get a ruling on ball, so that Angela would either be released, or they could be filing appeals on ball denial. There was more than legal timing Involved. The political activity outside the courtroom was directly dependent 53

on the decisions made, and activity engaged in inside the court. Since Angela's case was not progressing there were no court- related Issues around which supporters and potential supporters could rally.

As issues did arise NUCFAD became active in publicizing and

politicizing them. The attainment of a non-prejudiced judge, for example,

was an important issue. When Judge Lindsay, to whom Davis as well as

Magee was opposed, was assigned the case, NUCFAD publicized the prejudice

with which defense attorneys had charged the Judge in court. An April 1,

1971 NUCFAD press release about Lindsay

. . . stressed that the appointment "illustrates the prejudice inherent in the judicial system." They pointed out that he had been in the Justice Department during the McCarthy era, and excoriated the judge on his record on the Oakland Board of Education. "[Lindsay's] judicial qualifications are equally bad. His bench experience has been mainly in Oakland traffic courts and juvenile halls, with a special 90-day stint trying adult felony cases . . . "Who can believe that a judge with the record of Judge Lind­ say, who has almost no experience in the handling of major felony cases, was designated to sit for any reason other than to impose his biased philosophy in the conduct of this case? Not the defendant. Not the people."®®

Another of the major issues for the defense was their motion for

change of venue. When they asked to be located in a county other than

Marin, they requested San Francisco specifically. In the event that the

court did not agree to their preferred site, NUCFAD compiled facts and

figures for press releases. Any site that the court chose, other than 97 San Francisco, NUCFAD was prepared to show as prejudicial.

The issue of ball was also one around which NUCFAD was highly

active. When Arnason finally freed Davis on bond, it was the organiza­

tion's official stand that this was the result of the mass movement built

around her. Davis, in her autobiography, recalled the Judge's statement 54 regarding his decision to release her. He had referred to the letters 98 and phone calls he received relative to the issue*

The public pressure NUCFAD generated on these issues and the trial was international as well as national. The Communist Party was particu­ larly active in this effort to expand awareness of the masses regarding the Davis trial. Stern reported:

The party's connections seem even more significant in the Free Angela demonstrations overseas. There isn't a day that goes by without the committee receiving word of some demonstration, protest or petition somewhere in the world. . . . Communist party-oriented mass organizations, such as the Women's International Democratic Federation, with headquarters in l&st Berlin, have set up Free Angela committees in scores of countries. In the committee files is a letter from the World Federation of Democratic Youth, based in Budapest, telling the committee that "hugh solidarity actions were and are undertaken by all our member organizations in support of Angela Davis.

S t e m interviewed Rob Baker, the publicity director for NUCFAD, on the amount of international support, and was Informed that the committee had received "100,000 pieces of mail from East Germany alone." Regarding the extent of Involvement credited to the Communist Party activity,

Baker said:

In some countries— in Italy, for instance— the party had taken a heavy responsibility. . . . They have printed up thousands of postcards for people to send to Angela, with copies to Reagan, or Hoover, or Nixon. On the other hand, we get things like a letter from a woman who runs a coffee shop in Utrecht and wants to print up thousands of copies of Angela's statement to the court. I would say it is a mixture of party support and nonparty support in every country.100

Given the extent of the Involvement of NUCFAD, and the Importance of the issues with which it dealt, it is not unreasonable to conclude that it played a major role in the generation of national and inter­ national mass support which led to the acquittal of Angela Davis. Evidence of support for this conclusion is found in the conscious cooperation 55 between the defense attorneys and NUCFAD. Moore claimed a need for out­ side pressure to secure a fair trial; S t e m commented on the cooperation between the legal staff and NUCFAD in setting what he called the "political- legal" strategy; and another of the defense attorneys, Margaret Burnham, said, regarding her work for the "Free Angela" committees, "The street— perhaps more than the court— is the arena for the defense of Angela Davis.

My job, of necessity, carries me deep into Black communities as often as it places me in the San Rafael courtroom.

Furthermore, not only did Davis credit mass support with some of her success, but a citizen writing to the editor of The Christian Century commented, "Miss Davis is one of a handful who are virtually guaranteed a fair trial because their cases are in the public eye. Every move made before, during and after her trial will be watched and analyzed by dozens of newsmen and some of the most seasoned trial lawyers in the country ,.102 ♦ • • •

The atmosphere of interest and watchfulness in which pre-trial and trial proceedings took place was created and encouraged largely by

NUCFAD. That organization was not the sole generator of attention, however.

Some organizations and persons became involved more independently.

The Presbyterian Church, using established intra-organization policy 103 and channels, contributed $10,000 to the defense of Angela Davis.

Russian scientists and intellectuals wrote President Nixon asking him to 104 Intercede to assure justice for Angela Davis. Whether or not these other sources of support were influenced by NUCFAD or the Communist

Party is difficult to evidence. Since they did not use the NUCFAD or 56

CPUSA channels to communicate their concern, however, they can be

considered signs of the vast extent of interest.

• National and international campaigns grew throughout 1971, and

the United States government was aware of the significance of the organi­

zation. In January, 1971, while NUCFAD was in its third month of organizing, the United States Information Agency (USIA) sent to its offices a policy guide containing an analysis of the Davis case and answers to questions usually asked about it. Representatives were informed also that they could obtain copies of the Grand Jury proceedings that led

to Davis' murder, kidnaping, and conspiracy indictment. Then, xn March,

1972, The New York Times reported:

The United States has quietly mounted a worldwide campaign to portray the murder-conspiracy trial of. Angela Davis as an example of democracy at work and to counter contentions that she is being persecuted because she is a black and a Communist. The United States Information Agency has sent to its 106 posts abroad packages of background information and detailed instructions as to how the story should be treated...... officials are told to "explain to all audiences, especially influential opinion molders, how the Anglo-American judicial pro­ cesses differ— sometimes sharply— from the judicial processes in other countries." Among other points officials are told to emphasize are that Miss Davis is innocent until proved guilty; the trial is open; "Free Angela Davis Committees1.' are operating freely across the country to raise defense funds; and "loose charges by Angela Davis Committees of genocide against black militants are not justified by the facts."^05

When the trial began in February, 1972, NUCFAD, the CPUSA, and the USIA had been actively disseminating information about the Angela

Davis case for over a year. Additionally, the proceedings had been reported in newspapers and magazines. The eyes of the world, literally, were on Angela Davis, the attorneys, the jury, and the verdict it would bring in. It was in this atmosphere and watchfulness that the trial took place. 57

Jury Selection

Among the last of the pre-trial motions was one which recognized the advantage of the prosecution's access to government sources to obtain information about prospective jurors. The defense asked to be allowed to share in that information. On February 17, 1972, the motion was granted, end all other pre-trial motions were disposed of by Judge Arnason. He

then ordered the trial to begin on February 28. On that date, at

10:20 A.M., the Judge called for case No. 52613, and the trial of Angela

Davis was underway.

The first task was the selection of a jury. The defence antici­ pated a particularly difficult time. They had not been pleased with the selection of Santa Clara County as the site for the trial since it was unlikely that they would be able to obtain other than a white jury.

Potential jurors were to be selected from voter registration records, and in Santa Clara County only two per cent of the population was "black, and they registered in smaller numbers than whites. Another possible non­ white source of jurors was the Mexican-American population which numbered eighteen per cent, but were only eight per cent of the registered voters.^

Given the population from which jurors would be drawn, the nature of the case, and the many potential issues, everyone expected a lengthy voir dire.

This expected lengthy voir dire, and especially the expected lengthy trial, were additional impediments to jury selection. This was true particularly of the young potential jurors. On March 3, Governor

Ronald Reagan signed a bill lowering the legal age in California from twenty-one to eighteen. In anticipation of this move Judge Arnason, at the urging of the defense, had ordered that young students should be among 58 those called to serve. Since Angela Davis was a popular cause on campuses it was expected that students would be anxious to be part of the trial.

Surprisingly, however, these students asked to be excused. They pointed out that the expected length of the trial would cost them both class time 108 and tuition money. As these students were excused, the defense found itself denied not only non-white jurors, but young jurors potentially sympathetic to their case.

While the combination of lack of time and money eliminated the youth the defense would have liked, money alone eliminated another potential pro-defense group, the poor. Working people employed any place where employers would not continue salaries, were excused. Howard

Moore, Jr., the chief defense attorney, was particularly concerned, and

Interestingly, the prosecutor, Albert Harris, Jr., supported a remedial suggestion of Moore's. The New York Times for March 3, less than a week after jury selection began, reported:

. . . the defense was so concerned that yesterday [March 1] one of Miss Davis's attorneys, Howard R. Moore, Jr., said he planned to offer a motion asking the court to supplement the income of poor persons so they might sit on the jury. "If something isn't done," Mr. Moore said, "we will have only wealthy and retired people serving as jurors." Albert Harris, Jr., the prosecutor, joined Mr. Moore in his suggestion that consideration be given to compensating working class persons serving as jurors. At present, jurors here in Santa Clara County are paid $5 a day and given travel expenses. 109 The request for additional compensation, however, was refused.

Time and money did not act alone in eliminating potential jurors. Attitudes played an equally important role. Examination of potential jurors took place in two stages. Each person was asked about his or her exposure to pretrial publicity, what opinions may have developed because of it, and whether or not the individual could make a fair judgment 59

based solely on courtroom proceedings and not on preconceived beliefs

based on publicity. Early In the proceedings prejudice by pretrial publi­

city emerged as a significant problem for attorneys. When twelve people

without serious bias were found and seated, the next step was taken.

Each was questioned about any personal prejudices that could interfere

with a fair trial. Inquiries were made regarding beliefs and attitudes

about blacks, women, revolutionaries, guns, and communists. One of the

major impediments for several potential jurors was Davis1 membership in

the Communist Party. In fact, defense attorneys were not able to obtain

a jury that was free of anti-communist feelings. Instead, they settled

for jurors whom they felt could make a decision based on the courtroom

evidence, rather than political bias.*^

One attitude with which the defense did not have to deal was the

favoring of capital punishment. Prior to February 18, 1972, the crimes

with which Angela Davis was charged were punishable by death. In that

situation jurors would have to be found who could convict, knowing the

penalty. Ten days before her trial, however, the California Supreme

Court ruled capital punishment unconstitutional. Not only did this allow

for Davis1 release on bail, but it removed the need to eliminate from

the jury those opposed to the death penalty. The more liberal juror,

therefore, was not automatically eliminated. The prosecutor tried to

convince the Judge that in spite of the recent State Supreme Court ruling

the Jury should still be made up of those who would convict under the

conditions of capital punishment. Judge Arnason, however, did not sup- 111 port the argument. Thus, a serious attitudinal bias problem was

removed from the defense.

i 60

During the voir dire a particularly heated controversy developed ! between the defense and prosecution over one potential juror, Mrs. Janie L.

Hemphill. She was initially accepted and seated on the jury. Ultimately, however, she was challenged by the prosecution, and removed. What made her particularly notable was that she would have been the only black on the jury. It was her opinion that she could be sufficiently unbiased

to render a fair verdict. The prosecution, however, developed a line of questioning around a liquor license that had been removed from the

Hemphills due to evidence of gambling found during a raid on their cock­ tail lounge. The essence of the rrosecution's argument was that since the situation with the liquor license was unsettled, the Hemphills were still in active conflict with the State, and thus Mrs. Hemphill would be biased against the prosecution, since it represented the State. Additional considerations, however, Included the fact that the lounge had not been profitable, so the Hemphills had closed it before the State notified them the license would not be renewed. Since they operated no lounge, the license was irrelevant, and the Hemphills perceived no serious conflict with the State. When the prosecution raised the entire issue in open court, and engaged in intense questioning, the defense accused Harris of trying to embarrass Mrs. Hemphill. When the prosecution challenged and removed Mrs. Hemphill from the jury, the spectators, who were largely pro- 112 defense, reacted angrily.

The selection of a jury was not done solely on the basis of court­ room questioning. The prosecutor had access to government files to help him investigate potential jurors before they came up for questioning. One of the last pre-trial motions granted gave the defense access to this 61 113 Information. Additionally, the defense employed investigators and psychologists to help them get the best possible jury.

[The defense] mounted an effort to find out as much as possible about the prospective jurors in advance of their being selected. A team of six investigators, headed by an attorney from Detroit who had been involved in a similar but less ambitious effort in Michigan, investigated the first two venire panels, or about 350 people. They checked the voter polls for party affiliation, searched to see if any of the potential jurors had signed petitions indi­ cating a liberal or conservative bias, and looked for evidence of anti or pro opinions on the war in Vietnam. Did the prospective juror live in an integrated neighborhood? Had the panel member signed to have the Peace and Freedom Party or the American Inde­ pendent Party on the ballot in 1968? Were they thought to be liberal or conservative in their political views? Were they active in struggles to introduce or eliminate bussing for integration? Was there anything about their movements in the community that would help the defense guess that they might be predisposed to be for or against Angela Davis? In addition, the defense utilized the services of five black psychologists who attended every jury selection session. "We could not have selected this jury without this help," Howard Moore, Jr. explained at an annual meeting of the National Associa­ tion of Black Psychologists, which met in San Francisco two months after the trial had ended. Thomas Hilliard, one of the psycholo­ gists involved read a paper describing the process they went through. . . . The psychologists watched all of the prospective jurors, the associations they made with other panel members, and the way ques­ tions were answered. In some instances the questions asked by defense attorneys had been provided by the psychologists. 'Our belief was that a juror's voting is Influenced not only by the court evidence and his own attitude," Hilliard explained, "but by the interaction of his personality and the group dynamics in the jury room." Defense attorneys made the final decision to accept or reject a juror, and some of those decisions were reached without any consul­ tation, but they made those decisions from a more Informed base than they normally would have had. The defense program contributed greatly to the speed with which the jury was chosen. The defense settled for a jury at the point they were convinced that the remainder of the panel contained so many poor risks that they would be well advised to go with what they had.

With the help of this prior information the selection of a jury took far less time than anticipated. The eight women and four men were 62 chosen and sworn in in fifteen days, after only forty-one prospective jurors had been examined.Angela Davis, acting in her role as co­ counsel, was the defense representative to announce on March 14, 1972 that they were ready to proceed with testimony. She said: "I do not.think that any further delay in the jury selection process will affect in any way the composition of the jury, and, because we have confidence in the women and men presently sitting in the box, I am happy to say that we presently accept this jury."*^ The prosecution accepted the jury, and the members were sworn in.

While the defense claimed confidence In the jurors, the more accurate assessment was that they did not have the jury they wanted, but felt that, given the situation, they could not improve the Jury, only make it worse. There are hints of this evaluation in Davis' suggestion that further delay would not affect jury composition, in her statement that the jury was representative of the county but not of her peers, and when Major reported that the defense "settled for a jury at the point they were convinced that the remainder of the panel contained so many poor risks that they would be well advised to go with what they had'.'^^ The assessment is confirmed in Angela Davis' autobiography.

. . . we accepted the jury as constituted. It was not because we were satisfied with the people who sat in the box. By no means— after all, the only Black person had been elimi­ nated by Harris. Yet from our cursory investigation of the remainder of the jury venire, we were convinced that the com­ bination of jurors we had on March 14 was probably better than anything else we could hope for. If we had continued to challenge those whom we felt were most prejudiced, then it was certain that Harris would challenge those whom we felt had the greatest inclinations toward fairness.118

Once the jury was established four alternates still had to be selected. Davis participated as co-counsel for this phase of the 63 119 process. On March 17 one of Che jury members unexpectedly vas excused 120 and a replacement vas seated, still leaving a jury of twelve, and four alternates. The entire selection of the jury had taken less than one month.

When the opening statements began on March 27, 1972 the jurors

Included:

. . . Ralph DeLange, 38, a maintenance electrician who had once been a school teacher; (2) Nicholas Gaetani, 45, an accountant; (3) Ruth Ann Charlton, 41, a sales supervisor for a department store; (4) Mary Borelli, a housewife, whose brother had been a San Quentin inmate; (5) James Messer, 33, an Annapolis graduate and Air Traffic Controller; (6) Louis Farako, 40, Mexican born and an IBM employee; (7) Michelle Savage, a student, who at 20 was the youngest juror to serve in California; (8) Rosalie Frederick, 44, an unemployed divorcee; (9) Mary M. Timothy, 51, a medical research assistant; (10) Winona W. Walker, 65, a retired librarian; (11) Ann B. Wade, 28, a housewife; (12) Stephanie L. Ryon, 22, a collection agent. Robert Seiden, who at 70 was the oldest of the jurors, replaced Mary Borelli during the third week of testimony. That left three alternates, Barbara Deutch, a divorcee, Samuel Conroy, a mechanical designer, and John Tittle, 19, a student.

Personnel

In a trial the rhetorical issues selected and the strategies used to advance them are affected by the prosecution, defense, and the judge.

In a criminal trial the prosecution defines the issues initially by presenting a priraa facie case. If the case had political and deliberative aspects we might expect the defense to promote Issues omitted by the prosecution. In either case, the prosecution and defense comment on each other's decisions, and the judge rules on admissibility of issues, evidence, and procedures. Because of the interrelationship of the choices made by the parties, a basic knowledge of the people filling each role nay be helpful in understanding the issues and strategies. In the Angela

Davis kidnap,' murder, and conspiracy trial, the participants were the 64 prosecutors, Albert W. Harris, Jr., Deputy State Prosecutor for California,

Clifford K. Thompson, Jr., Assistant Deputy State Prosecutor, and the defense team of four lawyers, including the chief defense attorney Howard R.

Moore, Jr., Leo Branton, Margaret Burnham, and Doris Walker. Angela Davis also was named co-counsel in her own defense. The judge was Richard E.

Arnason.

The Prosecution

Unlike the defense attorneys, little has been written by or about the prosecuting attorneys. To obtain information about them it was necessary to write to the Office of the Attorney General in the California*

Department of Justice. Most of the following information, therefore, is from personal letters in response to inquiries, and from a newspaper reference to which on the letters led.

Albert W. Harris, Jr.

The primary prosecution work was led and carried out by Albert W.

Harris, Jr., who was then the Deputy State Prosecutor for California.

Harris was a graduate of Boalt Hall Law School, University of California- 122 Berkeley. During his senior year he was assistant editor of the

California Law Review. He graduated second in his class in 1954, and joined the California Attorney General's office in 1956. In 1967 he was special prosecutor in the trial of Los Angeles County Deputy District Attorney

Jack Kirschke, who was convicted of the murders of his wife and her lover.

Prior to the Davis trial Harris argued the Anderson case before the Cali­ fornia State Supreme Court. The result was the abolishment of the death penalty, and incidentally the eventual release of Angela Davis on bail. 65

This vas only one of several cases Harris argued before the State Supreme

Court.

After the Davis trial Harris served as chief prosecutor In the

San Francisco trial of Ruchell Magee, Angela Davis' former co-defendant.

That trial ended in a hung jury. Another trial was pending when Harris became ill and died suddenly In December, 1974.

Following the Davis and Magee trials Harris had directed Attorney 123 General Evelle Younger's organized crime investigation unit.

The 1975 Martindale-Hubbell Law Directory lists Albert W. Harris, Jr., as r. member of the American Bar Association, and rates him "very high" in legal ability, and "very high" in their general recommendations rating, including "faithful adherence to ethical standards; professional relia­ bility and diligence; .-. .

Clifford K. Thompson, Jr.

Although Thompson participated in the trial, he received little mention in media coverage. The Martindale-Hubbell Law Directory for 1975 indicates he graduated from Princeton University with a B.A., and received his law degree from the University of California. It shows also that he is 125 not a member of the American Bar Association. Contact with Thompson via a personal letter brought corroboration of his educational background, and added the information that his legal study was done at the Berkeley campus. He further explained that since his graduation in 1966 he has worked for the Office of the California Attorney General specializing in criminal law. When asked about cases on which he worked that he considers particularly significant, he replied: "Commentators and textbook editors 66 have thought significant Younger v. Harris. 401 W.S. 37 (1971), People v. Ceballos, 12 Cal, 3d 470 (1974), and Hamilton v. Municipal Court, 270 126 Cal.App. 2d 797 (1969)." Thompson was Assistant Deputy State Prosecutor in 1972, and is currently the California Deputy Attorney General.

The Defense

Throughout the period of time from her arrest to the trial

Angela Davis was represented and aided by several attorneys. The final defense team, however, those attorneys who actually tried the case in court, was made up of Howard R. Moore, Jr., Leo Branton, Margaret Burnham, and Doris Walker.

Howard R. Moore, Jr.

In January, 1971, the arraignment of Angela Davis was postponed to allow her time to find legal representation. Her choise was Howard R.

Moore, Jr. After consultation with Davis, he agreed to become her attorney.

Initially, however, Moore's prior commitments made it look as if he would be prevented from working on pretrial motions, although he would represent 127 Davis at the trial. As the case developed, however, Moore became active In much of the pretrial maneuvering. At the trial itself he and

Branton shared most of the burden of cross-examination of prosecution witnesses, and presentation of the defense case.

Howard Moore, Jr. was thirty-nine at the time of the Angela Davis trial, and practicing in Atlanta, Georgia. As a college undergraduate he majored in political science and economics at Morehouse College, and then went to Boston University's law school. As an attorney he was admitted to the Bar of the United States Supreme Court. Prior to Angela Davis his 67 clients included Martin Luther King, Jr., Stokley Carmichael, James

Foreman, Cleveland Sellers, H, Rap Brown, Hosea Williams, Ralph David

Abernathy, and Julian Bond.

In an overview of the Angela Davis case Moore characterized the prosecution as political, and said the defense strategy revolved around the need to turn the political into the legal. It was his opinion that the political issues revolved around Davis being black, militant, and

Communist. The legal issues involved her knowledge that Jonathan Jackson had her guns, that she knew his intent, and whether otherwise legal behavior could be a basis for criminal prosecution.

As the chief defense counsel it was Moore's job to organize the efforts of the total defense team. He accomplished this by assigning particular problems, motions, or lines of attack to individual attorneys.

As chief attorney, furthermore, he was instrumental in the use of special investigators, psychologists, and even handwriting experts to help selecti a jury. , 128

Leo Branton

One year after Moore joined the defense, Leo Branton also became

Involved. He had retired from parctice in 1968, but returned to defend eighteen people arrested during an early morning raid on the Los Angeles

Black Panther headquarters. He vas forty-nine when he became one of

Angela Davis' attorneys in January, 1972, not two months before the 129 scheduled start of the trial. In spite of his relatively late arrival, however, he shared with Moore most of the burden of cross-examination of witnesses, and the presentation of the defense case. 68

Branton had previously been active in two significant cases. In

People v. Lawrence Bucky Walter, he challenged successfully the practice of excluding blacks from a jury. In the Davis trial the acquisition of blacks for the jury was an Important part of the motion for change of 130 venue, and in the voir dire.

The other significant case in which Branton was involved was one

in which he represented three California communists charged under the

Smith Act with conspiracy to overthrow the government. Previously, attorneys in New York who had defended admitted communists had been sentenced to jail for contempt of court. In the Davis trial one of the major impediments to acquiring a jury was Angela Davis' admitted member­ ship in the Communist Party. In fact, that membership had made her a notable person in 1969 when she lost a teaching position at UCLA because 131 of her politics. Aside from his background in these two cases,

Branton was a valuable addition to the defense because of his experience in California trial law.

In regard to the Angela Davis trial, it was Branton's opinion that though criminal in nature, it had significant political overtones.

He pointed out the prosecution's use of Angela Davis' writings and speeches

to strengthen the case against her, and thus blamed his opposition for making the trial political.

Margaret Burnham

Angela DaviB and Margaret Burnham were personal friends before either had completed her education or the formulation of her politics.

Burnham graduated from the University of Pennsylvania Law School in 1969 and worked as a staff attorney with the NAACP Legal Defense Fund. She 69 was one of the first attorneys to enter the Davis case when, In December

1970, at her friend's request, she worked In New York on the fight against

Davis' extradition to California. When that fight was lost, she followed

Davis to Marin County and continued as a member of the defense team.

Burnham shared Davis' interest in and concern for black political prisoners. It was her opinion that Angela Davis was a prominent example of the widespread problem of political prisoners. Her theory on the strategy that black lawyers need to use to defend political prisoners is that the attorney must be as attentive to activities outside as well as inside the courtroom. She said:

Since a successful courtroom defense literally depends on the perspective and commitment of out-of-court forces, the lawyer is obliged to construct his defense outside as well as inside the court. His arguments must be exposed widely to the people. He has an instrumental role to play in amassing the broad support movement necessary to give substance and integrity to the court­ room activity.*33

Interestingly, one of the major unique features of the Angela Davis trial was the significant organized support, both nationally and internationally, built around Davis, and the cooperation between the defense attorneys 134 and the organizing leadership.

Doris Walker

Doris Walker received her law degree from the University of

California, Boalt Hall. She then entered general law, but specialized in constitutional law. In the late 1940's she gave up her law practice and became involved in working for the CIO, organizing cannery workers. 135 Like Angela Davis she once lost her job due to her politics.

While working for Cutter Laboratories she was fired allegedly because she vas a communist. After taking her case through the courts, she then returned to practicing law. 70

One of her most significant cases was U.S. v. Powell and Shulman,

the only sedition case in recent history, and one in which the defendants

had published accusations that the United States government was guilty

of aggression in sending troops to Korea.

Walker joined the Davis defense team in October, 1971. She was

valuable not only because of involvement with her own activism, but due

to her experience with California trial and constitutional law. In the

Davis trial she viewed her role as that of an experienced lawyer with 136 special expertise in trial tactics.

Angela Y. Davis

As the defendant, Angela Yvonne Davis was the most important

person on the defense. As co-counsel, however, she was least active in

the legal and trial work.

Angela Davis was from Birmingham, Alabama, but attended Brandeis 137 University. She spent her junior year at the Sorbonne, and then in

1965 graduated magna cum laude with a B.A., a major in French literature,

and membership in Phi Beta Kappa. During 1965-67, she studied philosophy

at the University of Frankfurt, and then returned to the United States

to enroll at the University of California at San Diego. In 1968 she

received her M.A. and passed her qualifying tests for the Ph.D. Six 138 months later UCLA offered her a teaching position. That job and the

controversy surrounding it made Angela Davis a prominent national figure

a year before the San Rafael escape attempt.

Angela Davis was working on her dissertation in the spring of

1969 when the job offer was made. She accepted. In June a copy of the

UCLA student newspaper Included an article reporting that the Philosophy Department had hired an instructor who was a member of the Communist

Party. She had, in fact, joined the Che-Lumumba Club, a black organiza­

tion within the Communist Party of the United States, in July, 1968. The information in the campus article was reported and expanded upon by the

San Francisco Examiner. In July, 1969, the University Regents became aware of the newspaper articles and after investigation, informed the

Philosophy Department that they intended to enforce the 19AO, 1949, and

1950 resolutions barring members of the Communist Party from teaching.

At that time Angela Davis possessed a letter Indicating an intended two year teaching appointment, with t*>e possibility of a continuation. In

* September, however, the Regents adopted a resolution calling upon the

University President to end Davis' appointment. In October the UCLA

Academic Senate backed by the University Chancellor voted their disapproval of the Regents' decision. The Philosophy Department allowed Angela Davis to teach, and with the Law School also filed a taxpayer's suit against the Regents. The issue of whether she could teach then officially began its appearances in various courts. As the proceedings continued Angela

Davis became a celebrated cause for blacks, students, and educators.

Finally, in June, 1970, she was fired by the Regents. The fight for her right to teach continued, however. In January, 1972, the decision that 139 she should be reinstated was made. By that time, however, Angela Davis had been in jail over a year awaiting trial on charges growing out of the August 7, 1970 escape attempt in San Rafael.

Her role as defendant in a kidnap, murder, and conspiracy case came about not because of her actual presence at the site of the crime, but because the weapons used were registered in her name, she had 72 previously associated with Jonathan Jackson, and because of a California law which holds anyone who aids or abets in a major crime is equally guilty with the direct participants.*^®

Her role as co-counsel was granted at her own and her attorney's request. The request was made for several reasons. Davis believed it essential that the one person with the most to lose, the defendant, should have the right to speak in his/her own defense.*^* Furthermore, she believed blacks have been consistently victimized by the white legal system due to the usually white prosecutor, judge, and jury, the financial, evidence gathering, and power resources available to the state prosecutor, and due to the prosecutorial advantage gained by publicity. She pointed, for example, to the congratulating of law officers on the occasion of her arrest. Also, Davis believed that the unique political nature of her case, the importance of her being black, a revolutionary, a woman, and a communist, required her personal participation in order to account accurately for her own behaviors and beliefs. It was the defense's position, therefore, that to establish a better balance between prosecu­ tion and defense, and to come closer to obtaining a fairer trial, the naming of Angela Davis as co-counsel was important.

Once she was named co-counsel, however, Angela Davis, although active, was restrained in her courtroom activities. It had been her opinion In requesting the appointment that her attorneys were the legal experts and that she needed them, but she could be helpful with the 142 personal character of her case. During the trial her behavior was consistent with that opinion. Legalities and trial strategies were handled by her attorneys. She was active in the presentation of a part of the 73 argument that the state should pay part of the defense costs, presented arguments to a Federal judge requesting ball, questioned some jurors during voir dire, and in court she presented the opening statement for the defense. For the most part, however, "she contributed to the court­ room maneuverings sparingly, and to the extent that her co-counsel status was meaningful in the courtroom Angela acted like a well-behaved client."1*3

The Judge

Richard E. Arnason

Locating a judge to preside over the Angela Davis trial was no small task. The combination of the fact that the crime involved the killing of a judge in the county where Davis was initially to be tried* and the attitude and behavior of Ruchell Magee while he and Davis were co-defendants added to any usual difficulties in finding an objective' 144 Jurist.

In May, 1971, Judge Richard Earle Arnason was assigned to preside only over the pretrial proceedings in the case. He was from Contra Costa

County, which is in the San Francisco Bay area, and therefore, did not suffer the onus of Marin County judges who had been friends with Judge

Haley, one of the August 7 victims.

Arnason was fifty years old at the time of the trial. He had graduated from Boalt Hall School of Law at the University of Berkeley.

He practiced law in Antioch until 1963 when California Governor Edmund G.

Brown appointed him to the Superior Court. Prior to the Davis case he had not been politically active. He had been a member of the County school board for nine years and had served on the bar association's board of governors. He never sought elective office. 74

When first assigned to the pre-trial proceedings there were questions asked about whether an essentially "country" judge could cope with the case. His decisions, however, cleared up much of the legal entanglements that had bogged down progress. He forced the Federal courts to act on Ruchell Magee's motions to change the jurisdiction of the case from state to federal level. He was instrumental in severing the cases of Magee and Davis, granting a change of venue, and releasing Davis on 145 bail. Although neither the prosecution nor the defense gained all the 146 decisions it wanted, both expressed relative satisfaction with Arnason.

As a result, after pre-trial motions were concluded, Judge Arnason remained to preside over the trial. NOTES TO CHAPTER

"Judge and 3 Slain as Convicts Hold Up Court," New York Times. August 8, 1970, p. 1; "The Courthouse Shoot-out," Newsweek, August 17, 1960, p. 34; Reginald Major, Justice In the Round: The Trial of Angela Davis (New York: The Third Press, 1973), pp. 17-18; Angela Davis: An Autobiography (New York: Random House, 1974), p. 277; J. A. Parker, Angela Davis: The Making of a Revolutionary (New York: Arlington House, 1973), p. 169; Regina Nadelson, Who is Angela Davis?: The Biography of a Revolutionary (New York: Peter H. Wyden, Inc., 1972), p. 179. 2 "Gunman Allowed Coast Cameraman to Take Pictures," New York Times. August 8, 1970, p. 24. 3 Major, p. 20; New York Times. August 8, 1970, pp. 1, 24. L New York Times, August 8, 1970, p. 1.

■*"Paper Links Red Teacher to Gun In Coast Court Raid," New York Times, August 12, 1970, p. 38.

^"Angela Davis is Sought in Shooting That Killed Judge on Coast," New York Times, August 16, 1970, p. 66.

^"Most-Wanted List Adds Angela Davis," New York Times, August 19, 1970, p. 78. Q Linda Charlton, "F.B.I. Seizes Angela Davis in Motel Here: Suspect Sought for Two Months in Slaying of a California Judge," New York Times, October 14, 1970, pp. 1, 32. 9 Michael T. Kaufman, "Davis Case Goes to City's Courts: U.S. Sets Bail of $250,000, Then Cancels It in Move Toward Extradition," New York Times, October 15, 1970, pp. 1, 18.

^"Angela Davis is Indicted for Murder and Conspiracy on Coast," New York Times, November 12, 1970, p. 20; "Angela Davis is Arraigned Under New Warrant Here," New York Times. November 18, 1970, p. 51.

1XEarl Caldwell, "Angela Davis Is Moved Secretly; Flown to Coast in Military Plane," New York Times, December 23, 1970, pp. 1, 28; Linda Charlton, "Removed in Secret," New York Times. December 23, 1970, p. 28.

^Kaufman, New York Times. October 15, 1970, pp. 1, 18; Caldwell, New York Tiroes. December 23, 1970, p. 28; Major, pp. 51-53. 13 Earl Caldwell, "Davis Co-Defendant Takes Spotlight," New York Times, March 21, 1971, p. 58.

75 76

Earl Caldwell, "Judge Withdraws from Davis Trial: Steps Aside at Request of Activist's Co-Defendant In California Murder Case," New York Times, March 18, 1971, p. 33.

*^Earl Caldwell, "New Judge Named for Davis Hearing: Reagan Appointee Chosen in Swift Judicial Action," New York Times, March 24, 1971, p. 39; Caldwell, "Judge Is Accused by Angela Davis: Pretrial Hearing Recesses as Ouster is Sought," New York Times. April 2, 1971, p. 33; Caldwell, "Davis Case Judge Denies Bias, Refuses to Disqualify Himself," New York Times. April 9, 1971, p. 26. 16 Major, p. 102; Earl Caldwell, "Miss Davis Loses Bid to Bar Judge: Another Justice Rejects Her Charge of Prejudice," New York Times, April 22, 1971, p. 33.

^"Angela Davis Again Pails to Have Judge Disqualified," New York Times, April 27, 1971, p. 30. 18 "Angela Davis Loses Appeal to Have Judge Step Down," New York Times, May 5, 1971, p. 62; Major, p. 99.

^Caldwell, New York Times. April 22, 1971, p. 33; Major, pp. 100- 101, 106-107; Caldwell, "Magee Receives Acclaim in Court: San Quentin Inmate Hailed by Crowd at Coast Hearing," New York Times, May 9, 1971, p. 22; Caldwell, "Magee's Challenge Forces Another Judge Out of Davis Case," New York Times. May 11, 1971, p. 25. 20 "New Judge Named in Davis Case," New York Times, May 14, 1971, p. 17; Earl Caldwell, "Davis Case is Delayed Again as Co-Defendant Challenges Judge as Prejudiced," New York Times, May 25, 1971, p. 26; Major, p. 113.

^Caldwell, New York Times, May 25, 1971, p. 26; Caldwell, "Davis Hearing Halted Again Over Petition by Magee," New York Times, June 6, 1971, p. 27.

^"U.S. Judge Rejects Shift of Davis Case," New York TimeB, July 10, 1971, p. 49; Earl Caldwell, "Hearings Ended for Angela Davis: Neither Side iB Satisfied with Judge's Rulings," New York Times, October 24, 1971, p. 41.

^Davis, p. 277; Major, pp. 17, 77, 89, 312; New York Times. August 8, 1970, p. 1; Charlton, New York Times. October 14, 1970, p. 1; "Separate Trials Granted to Magee and Angela Davis," New York Times, July 20, 1971, p. 10.

^For information on the activities of Ruchell Magee before August 7, 1970 see Major, pp. 77-89, and Sol Stern, "The Campaign to Free Angela Davis . . . and Ruchell Magee," New York Times Magazine. June 27, 1971, p. 41.

^Hajor, pp. 89-90. 77

2^Davis, pp. 311-12.

27Ibid., p. 312. 28 Major, p» 118*

29Ibid., pp. 89-90.

30Ibld., pp. 90-98.

3^Caldwell, New York Times, March 18, 1971, pp. 1, 33.

32Major, pp. 101-4. 33 Major, pp. 91-111 passim.

34Ibid., pp. 107-8.

35Ibid., pp. 112, 313.

36Ibid., pp. 113-18, 313.

37Ibld., p. 98. OO Caldwell, New York Times, March 21, 1971, p. 58. 39 *Ibid. 40 Caldwell, New York Tiroes, May 9, 1971, p. 22.

41Ibid.

42Major, pp. 118-19.

43Davis, pp. 312-13. .

44Ibld., p. 313.

45Ibid., pp. 313-14.

4**Major, p. 121. 47 "Sentenced Convict Lashes Out: Angela Davis Assailed," Detroit News, January 24, 1975, p. 9A. 48 Earl Caldwell, "Miss Davis Calls Trial a Frame-Up," New York Times, January 6, 1971, p. 17. 49 Angela Y. Davis, "Notes for Arguments in Court on the Issue of Self-Representation," in If They Come In The Morning, eds. Angela Y. Davis, Bettina Apthekar and other members of the National United Committee to Free Angela Davis and All Political Prisoners (New York: The New American Library, Inc., 1971), p. 249. 78

50Ibid., p. 250.

^Caldwell, New York Times, January 6, 1971, p. 17. 52 Davis, If They Come In The Morning, pp. 250-52.

^Major, pp. 136-137. 54 Caldwell, New York Times, January 6, 1971, p. 17.

55Major, p. 136. 56 Davis, If They Come In The Morning, p. 253.

57Ibid., p. 254. 58 "Angela Davis Enters Plea; Trial Is To Begin Sept. 27," New York Times, July 28, 1971, p. 13.

^Hajor, 136.

^Kaufman, New York Times. October 15, 1970, pp. 1, 18; Caldwell, New York Times, March 18, 1971, p. 33; Caldwell, New York Times. April 2, 1971, p. 33; Caldwell, New York Times, May 11, 1971, p. 25.

6lMajor, 133. 62 Earl Caldwell, "Judge, After 'Soul-Searching,' Denies Bail Plea of Miss Davis," New York Tiroes, June 16, 1971, p. 29; Carole Alston, ed., "In Defense of Angela: Profile of the Davis Defense Team," The Black Law Journal 2 (Spring, 1972): 48. See also "Freed Angela," Time. March 6, 1972, p. 26.

^Caldwell, New York Times. June 16, 1971, p. 29; "Miss Davis's Bid for Bail Denied by Appellate Court," New York Times. August 8, 1971, p. 53. 64 Thomas A. Johnson, "Briefs Seek Bail for Angela Davis," New York Times, February 6, 1972, p. 61.

*^Earl Caldwell, "Miss Davis's Eyes Worry Her Physician," New York Times, November 8, 1971, p. 47; "Bail Plea for Miss Davis," New York Times, December 24, 1971, p. 43; "Notes on People," New York Times, January 8, 1972, p. 19; "Miss Davis Is Examined," New York Times. January 9, 1972, p. 54.

^"Bail Is Requested By Angela Davis," New York Times, January 13, 1972, p. 27.

**7Davis, If They Come In The Morning, pp. 249-250. 68 New York Tiroes. January 13, 1972, p. 27. 79

^Earl Caldwell, "New Delay Hinted for Angela Davis," New York Tiroes, January 16, 1972, p. AO.

^Earl Caldwell, "California Court, In 6-1 Vote, Bars Death Sentences," New York Times, February 19, 1972, p. 1; "Miss Davis Seeks Bail," New York Times, February 19, 1972, p. 28. 71 Davis, Autobiography, pp. 331-33.

^Major, pp. 1A3, 1A5.

^"Miss Davis Freed on $102,500 Bail," New York Times. February 2A, 1972, pp. 1, 79. *■ / Davis, Autobiography, p. 337; New York Times, February 2A, 1972, p. 79.

^Davis, Autobiography, p. 338; "Miss Davis's Benefactor," New York Times, February 25, 1972, p. 33; New York Times, February 24, 1972, p. 79.

^Thomas A. Johnson, "Miss Davis Halls Release as a Victory," New York Times, February 25, 1972, p. 33.

^Major, pp. 1AA-A5.

78Davis, Autobiography, p. 335.

^New York Times, February 24, 1972, p. 1. 80 Stern, New York Times Magazine, June 27, 1971, p. AS. 81 Caldwell, New York Times, March 21, 1971, p. 58; Davis, Auto­ biography, p. 321. 82 "New Site Sought for Davis Trial," New York Times, September 8, 1971, p. 22.

®^Caldwell, New York Times, October 24, 1971, p. 41. 84 "Angela Davis Seeks San Francisco Trial," New York Times. September 21, 1971, p. 33. 85 "Davis Case Moved to San Jose Court," New York Times. November 3, 1971, p. 17; Major, p. 129; Davis, Autobiography, p. 321.

®^Caldwell, New York Times, October 24, 1971, p. 41. 87 "Angela Davis Flans Appeal On Change in Site of Trial," New York Times, November 4, 1971, p. 29; New York Times, November 3, 1971, p. 17; "Miss Davis Is Transferred to Santa Clara County Jail," New York ' Times. December 3, 1971, p. 27. 80

OQ Earl Caldwell, "Shift of Miss Davis's Trial Asked; Protesters Held," New York Tiroes, February 1, 1972, p. 8.

DO Earl Caldwell, "Miss Davis Faces Trial on February 28," New York Times, February 18, 1972, p. 39. 90 Stern, p. A3. 91 Ibid., pp. 42-43; Parker, p. 104; Davis, Autobiography, p. 189. 92 Fania Davis Jordan, Kendra Alexander, Franklin Alexander, "The Political Campaign," in If They Come In The Morning, eds. Angela Y. Davis, Bettlna Apthekar and other members of the National United Committee to Free Angela Davis and All Political Prisoners (New York: The New American Library, Inc., 1971), p. 261. 93 Ibid. W e ­ stern, P« 42.

95„ , 00 Major, P* *

96Ibid., P* 100.

97Ibid., pp. 129

98Ibid., P* 145;

"stern, P. 43.

10°Ibid.

101Ibid. , pp. 42

102"Letters to t: August 18, 1971 103 This contribution led to controversy within the membership of the Presbyterian Church as to whether the money was used wisely, when given to a Communist defendant with substantial legal, popular, moral, and financial support from other sources. For an explanation and discussion of the issues see Christian Century. July 7, 1971, p. 823, and August 18, 1971, pp. 979-80. 104 Frank J. Prial, "More Russians Send Plea to Nixon on Angela Davis," New York Times. January 7, 1971, p. 3; "Angela Davis Trial: Soviets Invited," Senior Scholastic, February 1, 1971, p. 6.

^^"U.S.I.A. Drive Seeks to Counter Idea Miss Davis Is Persecuted," New York Times, March 15, 1972, p. 39.

*88Caldwell, New York Times, February 18, 1972, p. 39. 81

*^7Major, p. 147; Alston, p. 47 ^ 108 Earl Caldwell, "Davis Trial Opens in Isolated Room," New York Times, February 29, 1972, p. 9; Caldwell, "Students Decline Davis J^ry Duty," New York Times, March 5, 1972, p. 95; Alston, p. 48. 109 Earl Caldwell, "Davis Trial Seats a Preliminary Panel," New York Times, March 3, 1972, p. 14; Major, p. 59.

^^Caldwell, New York Times, March 3, 1972, p. 14; Major, pp. 148- 150; Davis, Autobiography, p. 352; Alston, p. 47.

^■^Caldwell, New York Times, February 19, 1972, p. 1; New York Times, February 24, 1972, pp. 1, 79; "Right Out," Newsweek, March 6, 1972, p. 40; Major, pp. 151-52. 112 Earl Caldwell, "Black Is Dropped from Davis Jury," New York Times, March 14, 1972, p. 9; Davis, Autobiography, p. 353; Major, pp. 156-57, 159-69. 113 Caldwell, New York Times, February 18, 1972, p. 39.

^Slajor, pp. 152-53. 115 Earl Caldwell, "All-White Jury, With 8 Women, Seated for Angela Davis Trial," New York Times, March 15, 1972, p. 39.

117Ibid.; Major, pp. 153, 169. X18 Davis, Autobiography, p. 354. 119 "Miss Davis Quizzes Venireman at Trial," New York Times, March 16, 1972, p. 22. 120 Earl Caldwell, "Woman, 20, Joins Miss Davis's Jury," New York Times, March 18, 1972, p. 21.

^Hlajor, pp. 169-70. 122 Letter from W. Eric Collins, Deputy Attorney General, San Francisco, California, June 11, 1975. 123 "A. Harris, Prosecutor of Angela Davis, Dies," Los Angeles Times, December 6, 1974, sec. 1, p. 28.

1^Martindale-Hubbell Law Directory, 6 vols. (New Jersey: Hartlndale-Hubbell, Inc., 1975), 1:590 125 Ibid., p. 625. 82 1 26 Letter from Clifford K. Thompson, Jr., Deputy Attorney General, San Francisco, California, July 28, 1975.

127 * Earl Caldwell, "Miss Davis Picks a Black Attorney," New York Times, January 5, 1971, p. 32. 128 John A. Floyd, "Howard Moore: People's Lawyer," Black Law Journal 2 (Spring, 1972): 54-66; Major, pp. 152-153; "Finding a Friendly Jury," Newsweek, August 26, 1974, p. 49.

^^Alston, p. 49. 130 Ibid.; Major, p. 129; Davis, Autobiography, p. 321; Also see this manuscript, pp. 47-50, 57-63. 131 Alston, p. 49; Davis, Autobiography, pp. 216-221; Nadelson, pp. 138-175; Parker, pp. 108-133; Major, pp. 148, 150; Also see this manuscript, pp. 70-71.

l32*iAlston, .. p. 49./o 133 Ibid., p. 50.

See this manuscript, pp. 50-6. 135 Davis, Autobiography. pp. 216-21; Nadelson, pp. 138-75; Parker, pp. 108-33. 136., _ „ Alston, p. 53. 137 For background about her earlier life, see Davis, Autobiography, pp. 77-113; Nadelson, pp. 17-72; Parker, pp. 78-83. 138 Alston, p. 52; Davis, Autobiography, pp. 117-90; Nadelson, pp. 73-138; Parker, pp. 83-104. 139 Davis, Autobiography, pp. 189-277; Nadelson, pp. 138-75; Parker, pp. 104-33. 140 New York Times, August 12, 1970, p. 38; New York Times. August 16, 1970, p. 66.

^ Hlew York Times. July 28, 1971, p. 13; Caldwell, New York Times, January 6, 1971, p. 17.

^^See this manuscript, pp. 36-40; Davis, If They Come In The Morning, pp. 246-255; Caldwell, New York Tiroes. January 6, 1971, p. 17.

W 3 Major, p. 136.

^^See this manuscript, pp. 20, 24-35. ^**MJudge in the Trial of Angela Davis," New York Times. March I, 1972, p. 36. 146 Caldwell, New York Times, October 24, 1971, p. 41. CHAPTER III

FORENSIC ISSUES

The following chapter will focus on the identification of the

forensic issues which were important in the trial of Angela Davis. Even

if a defendant claims his arrest, incarceration, and prosecution are

politically motivated, the existence of a criminal indictment will always

have to be dealt with. Angela Davis attested to this in an article

entitled "Political Prisoners, Prisons and Black Liberation."

The political prisoner’s words or deeds have in one form or another embodied political protests against the established order and have consequently brought him into acute conflict with the state. In light of the political content of his act, the "crime" (which may or may not have been committed) assumes a minor impor­ tance. In this country, however, where the special category of political prisoners is not officially acknowledged, the political prisoner inevitably stands trial for a specific criminal offense, not for a political act.*

If a defendant considers himself a political prisoner, therefore, he can make that point in court, but has to do so within the constraints of a

legal criminal trial. As a result, a forensic analysis is relevant even

to an alleged political trial.

Since the American legal system rests on the presumption that citizens are innocent until it is proven otherwise, the prosecution

is shouldered with the burden of establishing that proof of wrongdoing.

The prosecutor must initiate the case, and therefore is the one who determines what indictments to make and what Issues to advance. The defense affects those issues, however, by choosing to argue them, or by granting one or more of them and focusing on another issue'. 84 85

In the language of modern debate, the counts listed In an Indict­ ment become propositions of judgment and can be analyzed by application of

the system of forensic staBeis. This system consists of four staseis:

fact, definition, quality, objection. They help us uncover issues in the

proposition. An issue is an inherent question in the case that is vital to 2 the winning of the case. The prosecution must carry all the issues to win its case. The defense, however, may challenge successfully only one

issue, and It may win acquittal. The system of staseis does not tell us what the controversial issues will be, where the defense will clash with

the prosecution's case. It identifies only the necessary ones. There must be disagreement between the opponents before a necessary issue becomes

a controversial issue. In other words, the prosecution must prove certain

elements of its case, but the defense does not have to respond to each point. It can grant some and argue others. Those issues which the prosecution and defense argue are the real issues of the trial. The real

Issues cannot be argued, however, until they are found from among the necessary ones. A discussion of the four staseis of the forensic system can help clarify how to identify those real issues.

In the stasis of fact the prosecution and defense establish the probability of the alleged behaviors having occurred. They argue the motive and opportunity for commission of the crime, and they present 3 witnesses and evidence to support their respective cases.

The stasis of definition is where the crime is labeled and defined.

Classical rhetoric demanded not only a definition of the crime, but that

the definition be proved and compared with the acts of the accused.

Hultzdn, in his discussion of status in forensic analysis, also claimed 86 definition included the application of defendant behavior to the definition of the crime. Ziegelmueller and Dause, however, confine the stasis to providing the definition of the crime and the criteria which must be met to prove the defendant guilty. The matching of the defendant's behavior to those criteria is left to the stasis of fact. This distinction is further pointed up by the fact that when Kennedy and Hultzen discuss forensic staseis, the stasis of definition is second to that of fact.

Ziegelmueller and Dause, however, place it first.

The stasis of definition becomes important only if the defense chooses to argue it. If they accept the definition of kidnaping, for example, then the necessary issue does not become real. Since we operate currently under a substantial body of law and precedent we might be tempted to predict that the stasis of definition is unlikely to produce an issue. Considering that cases differ, however, that precedents vary and sometimes appear to contradict, and that both law and precedent are subject to interpretation, argument from definition is by no means cer­ tain to be excluded.

The third stasis is quality. If the prosecution and defense agree on the facts of the case, and the definition of the crime, they may still disagree on the Interpretation. The defense may suggest a different inter­ pretation by explaining the existence of extenuating circumstances. They may claim that the defendant's behavior was expedient, laudable, and just 5 when examined from their point of view. For example, a man may admit he burned down a building, and agree that that constitutes arson. However, he may explain that the building was abandoned and dangerous to neighbor­ hood children, the owner refused to do anything about it, and the city was 87 unresponsive to his appeals. The facts might then be viewed from a different perspective.

The fourth and final stasis is objection. It is here that the defendant argues against the right of the prosecutor to try the case, or

the court to hear it. If there is an objection to the legal process the argument falls in this stasis.** Ziegelmueller and Dause omit the stasis.

This is not unjustifiable since the American legal system offers a signifi­ cant pre-trial time for motions to dismiss, and for a change of venue, and since both prosecution and defense have significant input into the selection of judge and jury. Further, there is a post-trial ftamework for appealing decisions. However, since it is conceivable that a defendant could be denied motions arbitrarily and could exhaust the input channels, and still have to face an undesirable court, we might find the stasis of objection mentioned in part of the defense arguments. We will not omit it, therefore.

From this framework of forensic staseis we can examine the Angela

Davis trial to find the real issues. For purposes of the analysis I have used the 5000 pages of trial transcript which run from the time of the prosecution's opening statement through the Judge's instructions to the jury and the handing of the case to them for deliberation. Generally, several observations are worth noting. Most of the trial focused within the stasis of fact, The stasis of definition produced one issue. On only one question did the defense introduce the stasis of quality. The stasis of objection was raised, and produced one Issue. Let us look at these more specifically. As we do, the stasis will be presented first, followed by a statement of the issues, the prosecution's position, and the defense's arguments. 88

Angela Y. Davis was Indicted on three counts: (1) kidnaping;

(2) murder; (3) conspiracy. Theoretically, the prosecution could have developed three parallel cases, each analyzed according to the forensic system of staseis. Such a procedure, however, would have assumed Davis' presence on the scene on August 7, 1970, a fact all parties agreed was false. The first two counts were brought not because of her physical participation in kidnaping and murder, but because of a California law that makes anyone who participates in the planning of a crime equally responsible with those who carry it out.^ The important count, therefore, was the third one of conspiracy. As written, it embodied the first two counts* In his opening statement the prosecutor explained the four crimes contained in the third count.

. . . the defendant committed the crime of conspiracy in violation of Section 182 of the Penal Code. The defendant and Jonathan Jackson did conspire together to wilfully, knowingly, and feloniously commit certain crimes. And those crimes are four-fold: one, kidnaping; two, murder, . . .; escape by force and violence of certain state prisoners who were then and there in the Marin County Civic Center; and the criminal rescue of certain state prisoners, including George Jackson and two other prisoners who were awaiting trial for the alleged killing of a prison guard at Soledad Prison, these prisoners being known publically as the "Soledad Brothers."®

Harris made his Intention to focus his analysis on the conspiracy count obvious in the first few minutes of his opening statement.

. . . the People will prove that the defendant is guilty of crimes of kidnaping, as charged in Count 1, and murder as charged in Count 2 of the indictment. . . . We will not prove that the defendant directly participated in the movement of the hostages. . . . The evidence will show that the defendant knowingly and with criminal intent aided, promoted, encouraged, and instigated by act and advice the commission of this crime . . . kidnaping. . . . In connection with the charge of murder in Count 2, the People will not contend that the defendant personally killed Judge Harold Haley. The evidence will show that she is respon­ sible as a principal for the killing . . . because she aided and abetted Jonathan Jackson. . . .9 Clearly, the prosecutor recognized the Conspiracy count as the Important one. Beyond proving the fact of the existence of the kidnaping and murder, and Jonathan Jackson's role In it, Harris had little need to i develop a full analysis around the firs: two counts. Furthermore, the fact and definition of those counts weri contained in the third, making analysis and advocacy of the conspiracy count sufficient. I will follow I i Harris' lead, therefore, as did the defense, and limit the depth of the analysis to the charge of conspiracy.

Stasis of FaCt I The first stasis is fact. We must look for the fact or probability of the crime having occurred, a motive for it, opportunity for the

! defendant behaving as accused, and evidence in the defendant's behavior and character that leads one to believe!she did or did not behave as indicated.All of these are necessary issues. Only the transcript can I help us identify which ones became real< I The necessary issue of the probability of the fact required dis­ agreement of the existence of a kidnaping, a murder, a plan to kidnap and I murder, and knowledge of and participation in the plan by Angela Davis. i All of these were present in the trial, although to different degrees.

Additionally, there was argument over hqr behavior as a sign of conscious­ ness of guilt, and over her character.

The necessary issue of whether a kidnaping in fact occurred became a real issue. The prosecution presented evidence and testimony of the movement of unwilling persons from one folnt to another. Participants and witnesses testified to the events, and pictures taken by James Kean, a newspaper photographer, were offered ajs evidence. The defense did not 90

argue the fact question of kidnaping before the jury. Controversy was

Introduced before the Judge, however. During argument on a motion by

Branton for a directed verdict of acquittal the defense claimed there

technically had not been a kidnaping. Under recent legal decisions,

Branton argued,even though a person was moved from one spot to another,

if the purpose was a separate crime, the victim was not kidnapped. In

other words, where it had previously been kidnaping when a thief forced

his victim into an alley for purposes of robbery, it was no longer

considered so because the primary purpose was robbery. In order to

constitute kidnaping, extortion hud to be Intended. Branton claimed the

Intent of August 7 was escape, and, therefore, did not constitute kid­

naping.^ By taking this position Branton moved the argumentation to the

stasis of definition, in particular, that aspect in which behavior is

applied to the definition of the crime. He was not claiming Angela

Davis did not do it, but that it was not done.

The prosecutor responded, also from the definition stasis, by

advancing his theory that the intent of August 7 was in part to keep authorities from performing their duties and to rescue the Soledad

Brothers, and therefore included extortion, the necessary prerequisite 12 for kidnaping.

Since the prosecution's proof of the fact of kidnaping instigated defense argument from the stasis of definition, we m&y conclude the existence of kidnaping was a real issue in the trial.

The transcript shows the necessary issue of whether murder was committed also was questioned by the defense. The murder count in the

Indictment was for the death of Judge Haley only. The prosecution, which 91 had to prove the fact of murder, held that the Judge was murdered by the convicts when they saw the escape would fall and by using the shotgun previously taped to Haley's neck. The defense questioned the cause of the firing of that shotgun.

Gary Thomas was a hostage In the escape van. When It was stopped and gunfire exchanged, Thomas acquired a gun and shot at the convicts

In the van. He claimed to have shot Ruchell Magee, who was holding the gun on the Judge, AFTER the shotgun was fired by Magee, killing Haley.

The defense, on the other hand, suggested either that Thomas had fired at Magee first, resulting in the firing of the shotgun, or that Thomas had shot Haley. Branton used this line of questioning with Thomas.

Q [Branton] . . . Isn't it a fact, sir, that the first fusillade of shots that came into that van killed both Jonathan Jackson and McClain, and you thereupon grabbed the gun that McClain was hold­ ing, not that Jonathan was holding, and that you turned around and ‘ began to fire into the back of that van at Christmas and at Magee, and that you hit Christmas, and you hit Magee, and you possibly even hit Judge Haley? A [Thomas] No. Q Well, the only shot that went off inside of that van, Mr. Thomas, that you know about was the shot that blew off Judge Haley's head, isn't that correct? A I know about the shots that I shot. Q I mean other than the ones that you shot, the only one you know about was the shot you say was fired by Ruchell Magee. Isn't that right? A Yes. Q Now, isn't it accurate, sir, and isn't it more reasonable that, because Ruchell Magee had fired at Judge Haley, you turned around, and it was in Magee's direction only that you fired your shots? A No. Q And I ask you isn't it a fact, sir, that you hit Ruchell Magee, and it was only after you hit Ruchell Magee that that shotgun in his hand went off? A No. Q Did you even hear that shotgun go off? A No. Q You never heard it, did you? A No. Q And the reason you didn't hear it, sir, is because at the same time that that shotgun went off you yourself was [sic] hit in the spine by a shot coming from outside of that van? 92

A No. Q Didn't you grab Mr. McClain's gun instead of Jonathan Jack­ son's gun? A No. Q Because of the emotional involvement that you had in this case, Mr* Thomas, it is a fact that, from time to time you have been uncertain about the sequence of events and that you have given many different statements about the sequence of events. Isn't that a fact?*3

Later, Moore advanced the theory that Thomas shot Magee before Magee

killed Haley. Dr. John H. Manwaring, the pathologist responsible for the

autopsies on the victims, was examined by Moore regarding the number,

order, and damage done by the wounds to Judge Haley. He testified to

the presence of two wounds, one to the head and one to the chest. The

head wound definitely would have been lethal. The chest wound could have

been. Manwaring explained also that there was no way for him to be cer­

tain which wouitd came first, or whether the Judge was alive at the time 14 he received the head wound.

By arguing these factors, the defense made a real issue of the

degree of premeditation, if not of the murder itself.

As Identified earlier, the crux of the case was the conspiracy,

since it contained the link between Angela Davis and the crimes of kidnap

and murder. While the defense could chip away slightly at the premedita­

tion or source of Haley's death, the pictures, testimony, and evidence were hard to deny in the stasis of fact. The same was true of the kidnap

count. However, to convict Angela Davis of these crimes, it was necessary

to prove there was an INTENT to kidnap and murder, and a purpose for so

doing. In other words, there had to be a plan. Furthermore, Davis had

to know of and assist in the plan. Angela Davis herself identified these

potential issues in her opening statement. 93

We do not dispute these facts that lives were lost and people were wounded on that day, . , » But we remind you again of some­ thing that was said during the voir dire. There are two separate Issues involved here. There is the Issue of whether deaths occurred and how those deaths occurred. Then there is the issue of whether 1 had anything to do with the occurrence of those deaths...... there are basically three things which must be proved in order to establish my guilt. First of all, the Prosecution must prove beyond a reasonable doubt that there was a plan which predated the events of August 7. Secondly, he must prove beyond a reasonable doubt that I had foreknowledge of a plan which predated the events of August 7. Third, he must prove beyond a reasonable doubt that I took steps to deliberately promote the execution of that plan.^--’

These necessary issues from the stasis of fact in the analysis of the conspiracy count became major real Issues in the trial. For the most part, furthermore, argumentation stayed within the stasis of fact.

The question of the existence of a plan was the first issue.

Harris pointed to three on-the-scene signs of a plan. He said, first,

McClain had changed the order of the witnesses testifying at his trial so that Magee would be on the stand and Christmas would be waiting outside when Jackson entered. He established this fact in the examination of

John Mitchell, the San Quentin correctional officer who had accompanied

McClain's witnesses to court.

Q [Harris] . . . was Magee to have been the first witness on both times that McClain talked to you? A [Mitchell] Yes, sir. Q But the second time he changed the second witness? A He did. Q And who was originally the first one— who was originally the second witness in order? A It was either Clsnero or Reddicks. Q And then who was it after McClain talked to them the second time? A Christmas.

Prosecution theory was that this change was made because, knowing what was about to happen, McClain wanted to be sure that fellow prisoners who would help would be present. In his concluding argument Harris drew the 94

Inference of a plan. He explained that since the charges against McClain

were for something that happened at San Quentin, McClain had the right

to call witnesses from among his fellow prisoners. Harris then went on

to say;

So he called some witnesses who were prisoners at San Quentin. On that particular day, he had four of them brought In. Those four were Ruchell Magee, William Christmas, . . . Mark Cisnaros, and Willie Redlcks. You recall that he met with them, . . . and he talked to them. Then he came back a little later for a second conference before the trial started. When he came back, he had changed the sequence of the witnesses. You remember Sergeant Mitchell, who was in that holding cell. . . . when James McClain returned for the second time to talk to the witnesses, he changed the sequence. And, now, it was Magee and it was Christmas. This meant very simply that Ruchell Magee went to the witness stand and that William Christmas was outside in the corridor. From what happened afterward, from the steps that Magee took, the steps that Willie Christmas took . . . I think that you could reasonably conclude that James McClain was using the judgment that he had acquired in San Quentin in selecting his witnesses because he selected witnesses who, . . . joined in the taking of Judge Haley without reservation, without, as far as I can recall from the evidence, any question. We think we can suggest that James McClain knew what was going to happen on that morning. And he got~he put on the wit­ ness stand men who he know [sic] would join in this enterprise.17

The second on-the-scene sign Harris pointed to was the authority

assumed by McClain. Not only was McClain not surprised when Jackson

stopped the proceedings, but he made requests for wire and tape, and

took over the escape. Harris pulled together the testimony of several witnesses to draw the following inferences in his closing argument.

. . . after Jonathan Jackson entered and after he stood up and he pulled the gun. . . . He said, "freeze," . . . James McClain joined in immediately in the steps that were taken. I don't recall any testimony about any hesitancy by McClain, any discussion by McClain as to "what's going on? What are you trying to do?" He joined in. • * . what did James McClain say? He asked Jonathan Jackson for the tape, .... No mention of the subject, and James McClain asked for the tape. Now, of all the things in the world j

95

In the course of what happened that morning, for James McClain to ask for, he asked for tape. Mow, If you hadn't heard the evidence in this case and, if you hadn't seen what was done with this tape, would what was done with this tape and with this object ever have occurred to you? . . . Well, he knew what to do with the tape be­ cause that was the plan and, if there wasn't a plan, there is no way in the world James McClain would have decided what to do with that tape and with that shotgun, .... Now, wire, why do you bring wire into a courtroom? Well, you know what he brought it for. You know what it was used for, and that is what was planned to be used for, and James McClain knew about that...... He asked about the dynamite, and this was tossed on the table, and McClain said, "Be careful. Now, if we are to believe that James McClain as he stood in that courtroom asking questions of Ruchell Magee, was surprised by what happened, by a man walking in, suddenly standing up and drawing a gun, if you could believe that, ask yourselves what did he do after that man stood up? Did he do what I would do or what you would do, wonder first what is happening, wonder if he is a friend or a foe, what is he doing here? Well, that wasn't James McClain. He said, "Where is the tape," and then he said, "Where is the dynamite," .... Is there any question that he knew what was going to happen in that courtroom?*®

Regarding who was in charge of the escape, Harris said:

Who took over that operation in the courtroom of Judge Haley? . . . James McClain took it over. He took charge of it. He countermanded Jonathan Jackson's orders. He told the Judge . . . "Call the Sheriff," and you heard about that and apparently he lost his patience, and he picked up the phone and he talked to the Sheriff. "Get your pigs out of the way." He told Jonathan to calm down. He told the others not to take the baby. . . . He decided to take Gary Thomas on the way out...... James McClain was running things. . . . He knew what was going to happen. He knew what was available. He knew the means that were available. He knew how to use them. He wasn't a 17 year old from high school. . . . James McClain was from San Quentin, and James McClain was a mature man, and he took charge of that kid­ naping.

The third on-the-scene sign of a plan was alleged comments by the

escapees about a time schedule. Kenneth Irving, a witness and Inspector

with the Marin County Sheriff's office testified to such a comment.

A [Irving] Jonathan Jackson was back and forth several times. . . . Q [Harris] Did he say anything in connection with time? A Yes, he did, Q What did he say? A He said, "Hurry; we only have one hour." 96

Q Jackson said that? A Yes. Q And could you tell who he was speaking to? A He was speaking to McClain. ^

Gary Thomas also testified to the prevalence of a time concern. One of

the factors Thomas said was affected by time was whether the escapees

could go back to a holding cell for another of their fellow Inmates.

Q [Harris] . . . Was anything said in connection with Judge Haley and Mr. McClain leaving the rest of you? A [Thomas] Yes. They were going back to get another inmate. Q Now, what was actually said in connection with that? A My best recollection is that they were going back to get Willey. Q Do you recall who said that? A McClain. Q And did he say anything in connection with going back to get Willey? A Well, right at that time there was a little talk between McClain, Jackson, and they were looking at the others, about not having time to get the other inmate. Q Well, did McClain finally-- A He left, anyway.21

The defense disagreed as to the fact of a plan and pointed to the confusion that occurred among the escapees as they tried to leave the building. Moore cross-examined one of the hostages, Maria Graham, about the event.

Q [Moore] And there was considerable confusion and uncertainty among the men in the courtroom was there not? A [Graham] Yes, there was. Q And, when I say "the men," I am referring to Jonathan and McClain and Magee and perhaps Christmas, is that correct? A Yes, sir. Q All right, and they seemed confused and uncertain as to what they should do next. Isn't that right? A I don't know about what they should do next, but whatwho was going to do. Q All right. In other words, a clear line of responsibility and authority for carrying out that action wasn't established and there was confusion about it. Isn't that right? A Yes. Q As a matter of fact, Mr. Jackson, Jonathan would give a direc­ tion, or command, or an order, and McClain would countermand it, wouldn't he? « A That Is correct. 97

Branton questioned Gary Thomas, also a hostage on the extent of the

\ confusion.

Q [Brandon] Now, getting back to the courtroom scene, Mr. Thomas, there was an awful lot of confusion and argument between the parties whp were taking part In these events in that courtroom wasn't there? A [Thomas] Yes. Q There was discussion and argument about whether or not they would take hostages, wasn't there? A Yes. Q And there was discussion and argument about how many hostages they would take, wasn't there? A Yes. Q And there was discussion and argument about who the hostages would be, wasn't there? A Yes. Q And there was discussion and argument about whether certain people would be taken or whether certain people would be left behind, is that right? A Yes. Q And then, when this group got out in the hallway, there was con­ fusion about even which way they were going to leave the building, wasn't there? A Yes. Q They first started to the right and decided, no, we'd better not go this way, and then decided to turn around and go back the other way, and, in the final analysis, went the way they started to go the first time, wasn't there? A No. Q No? A No. Q Tell me about that confusion, sir, A They started out to what 1 would call the left looking at the diagram, then came back to the right. Q In other words, they started one way first and then the other way? A Yes. Q All right, but then after they, after the second start, headed towards the elevator, then everybody stopped and everybody waited while Judge Haley and Mr. McClain turned around and went back down the courtroom they had just come out of. Isn't that a fact? A That is true. Q And they disappeared, and a few minutes later they came back again, right? A Yes. Q And then, when they got out and got in the van, Mr. McClain got under the driver's— got in the driver's seat and found out he couldn't even drive the van, didn't he? A Yes. Q And he said, "I can't drive this van," didn't he? A Words to that effect. 98

Q And then he got out and Jonathan got under and started driving the van. A Yes. Q So, all In all, from the moment that this thing started in that courtroom until the time that the van pulled off, there really was an awful lot of confusion, wasn't there? A Yes.23

Since there had been so much uncertainty even on McClain's part the defense suggested lack of a plan.

As part of the fact of the plan was the question of its purpose.

In this case the prosecution alleged the purpose was to free the Soledad

Brothers, particularly George Jackson. The defense response was denial of

the fact. * The prosecution pointed to two factors which led them to infer

the purpose of August 7: Jonathan Jackson's affection for his brother

George; and statements made by the escapees. The totality of witnesses'

testimony resulted in Harris arguing, in his closing statement:

I don't think there is any question in your mind . . . based on what you've heard, that one of the most Important things in Jonathan Jackson's life was the state of his brother George. Think about this, that when he entered that Marin County courtroom and he stood up and he pulled that gun, with that movement, he gave up every opportunity that he would ever have to help his brother. Now, It's just that simple. Once he participated in this kid­ naping, once he started it that was . . . the end of any efforts he could make for his brother unless that very effort— unless what he did in that courtroom up in Marin County was for the purpose of helping his brother and seeing that his brother was released...... did he go in that courtroom, expose himself to the risk of death, which resulted, of course, but which was a good probabil­ ity? And even if it didn't result in his own death, it would certainly mean his flight and his disappearance from the community. Do you think for a moment that Jonathan Jackson did that so that a man named James McClain could get out of San Quentin State Prison, a man that he never visited? . . . to see that James McClain was released from custody or Ruchell Magee or Willie Christmas or any other prisoners? That is really, I think, the basic reason we submit to you that the purpose of this conspiracy was to free George Jackson because ve think it's incredible. It's beyond belief. It's beyond what you could Interpret from what happened to believe that Jonathan Jackson undertook this enterprise in order to see that a man named James McClain got out of prison. We think it beyond belief.2^ 99

To corroborate his theory, Harris pointed to statements heard at the time of the crime* George Jackson was one of the Soledad Brothers, and witnesses claimed that during the escape demands were made to free the

Soledad Brothers.

. * . we have evidence, very explicit evidence of what the purpose was. That evidence comes from a man who arrived on the scene. . . . Mr. James Kean, with his cameras . . . found himself suddenly in the middle of this situation. The elevator door opened. . . . And James McClain was standing by the elevator. Judge Haley was next to him. . . . I'm going to refer to the transcript...... This is James Kean, the photographer and newspaper man from the San Rafael paper at the elevator. He's asked: "Did Mr. McClain say anything . . . ?" . . . He said: "'Tell them we want the Soledad Brothers re­ leased by 12:00 o'clock."' Then, he was asked; "Did you say anything?" . . . "Answer. Yes. I asked Mr. McClain to repeat it, which he did. And I said: 'Just so there is no mistake, you mean 12:00 o'clock today or 12:00 o'clock midnight?' And he said, 'Twelve o'clock today.' . "Question. Did you do anything in connection with what he had just said to you?" And James Kean's answer: "Yes. I wrote down the name 'Soledad Brothers' in a notebook." ...... you recall there were quite a number of people who were in the corridor, law enforcement officers principally, and many of them were disarmed. They were asked . . . what they heard. . . . You recall Captain Teague, who came in here and his testimony in substance was that, at the elevator, someone said, "You have until 12:00 noon to free the Soledad Brothers and all political prisoners." Officer Niederer, who you remember was disarmed, and he was standing in the corridor. . . . He heard someone at the elevator say in a loud voice, "They wish the Soledad Three released by this afternoon." Chief Terzlch . . . testified . . . he heard "Free the Soledad Brothers by 12:30 or they all die."25

The defense did not take issue with Jonathan's affection for his brother, but they did challenge whether any overt demand was made for the freedom of the Soledad Brothers. On the one hand they questioned the consistency between what witnesses could and did hear. This casting of 100 doubt on witness credibility was a major strategy of the defense, and will

be discussed later..

The major part of the defense argumentation on this issue, how­

ever, was on the meaning of "Free the Soledad Brothers," The defense

claimed that even if the fact of the statement was true, the intent was misinterpreted. The statement was really a common slogan used at many

rallies, and was not a specific demand. Moore questioned Kenneth Irving,

a police Inspector experienced at observing demonstrations, and who

claimed to have heard the statement.

Q [Moore] It was yelled? A [Irving] Yes. Q Do you know to whom it was directed? A No, I don't. Q Did you consider it as being directed to you? A No, not— Q You didn't consider it as being directed to you? A No, I did not, Q All right. You didn't consider it, as a matter of fact, as being directed at anyone, did you? A I didn't know who it was directed to. Q All right. I am asking you did you consider it as being directed at anyone? A No, not at that time. Q So your state of mind at the time you heard that remark was, one, that this was an idle exclamation or shout or yell. Isn't that right? A That is correct. Q . . . Now, you took no action yourself with reference to the remark. Isn't that right? A That is correct. Q All right. In other words, you didn't take out your note pad, and you carry a note pad as an Inspector, do you? A Yes. Q — is that right, and write down "'till noon,' did you? A No, I didn't. Q And you didn't take out a note pad or anything and write down "Soledad Brothers," did you? A No I did not. Q You did absolutely nothing with respect to that remark, is that correct? A That is correct. Q Had you ever heard that statement before, free the Soledad Brothers? A Yes, I had. 101

Q All right, and where had you heard it? A At a demonstration In San Francisco. Q In San Francisco? A Yes. Q You had been attending demonstrations in San Francisco? A Yes, Q And was that In connection with your job out In Marin County? A Yes, It was.26

In taking this position the defense implicitly granted the fact of the statement, but explained it differently, adding additional facts and drawing a different conclusion.

The prosecution took cognizance of these additional facts. They responded by returning to their initial position and by reestablishing the statement as more likely to be a demand. Harris questioned Irving to prove that the phrasing of the statement and the circumstances of its presentation were different than what is typical of a demonstration.

Q [Harris] Now, Mr. Moore asked you about some rallies you have gone to, and did you say you have heard the expression, free the .Soledad Brothers? A [Irving] Yes, I did, Q Have you ever, at any one of those rallies heard what you heard in the courtroom that morning, that is, "you have until noon to release the Soledad Brothers.?" A No, I did not. . . . Q . . . Now, at the time that this statement "You have until noon to release the Soledad Brothers," was made in the corridor of the Hall of Justice on August 7th, 1970, was anyone pointing a weapon at you? A Yes, they were. Q Who was? A Jonathan Jackson.27

Thus Harris reestablished the fact, accounting for the defense's interpre­ tation. In his closing argument Harris added that another witness did not consider it a slogan either.

• « . But there is James Kean, and there is James McClain and Judge Haley, and James McClain tells him, as he said, "To get the word out to free the Soledad Brothers," and I have no doubt you will hear argument to the effect that this was simply a slogan shouted in the course of these events. It didn't describe the purpose. It was just something said under conditions of strain, and they might have ■aid free all political prisoners, free anybody. 102

Welly Mr. Kean who wrote down the words, "Soledad Brothers" In his notebook was asked a question along this line by Mr. Branton, . . , "If anything at all was said, Mr. Kean, about the Soledad Brothers In that corridor, If anything was said at all, wasn't It just as they were about to get on that elevator that somebody said 'free the Soledad Brothers.' Isn't that what happened?" That was the question. . . . and what was James Kean's answer to that question? "No, It Is not. I told you what happened. I told you exactly what Mr. McClain said." Now, James Kean was there, and he wrote these words down, and ■ James McClain was In charge of what was happening, and we think from that evidence that you can; In fact we don't really think you have any choice but to conclude that the purpose of Jonathan Jackson's entering Into this entire criminal enterprise was to see that his brother, George, was released.28

In conclusion, the first major issue the prosecution dealt with in proving the probability of Davis' participation in a conspiracy was to establish the likely existence of a purposeful plan. They did so by presenting facts from which to infer their desired conclusion. The defense argued the existence of a plan, making this a real issue. The argumenta­ tion stayed in the fact stasis.

In terms of trial particulars, Harris argued there was a plan, the defense said there was not— fact. Harris said the purpose was stated as a demand— fact. Moore said either it was not stated— fact, or it if was, it was a slogan, not a demand— fact. Harris' response was that it was a demand, not a slogan— fact.

If the prosecution could prove a plan with a purpose, their next problem would be showing foreknowledge of the plan by Angela Davis. They attempted to do this in two ways. First, they established a lengthy, stable association between Jonathan Jackson and Davis. Second, they placed

Angela Davis on the scene when Jackson was behaving in a guilty manner.

First, in his closing statement Harris drew together testimony of several witnesses to support the fact of association between the two. 103

. . . we have . * . presented evidence which . . . tended to show a pattern of association between Angela Davis and George 1801(800*8 younger brother, Jonathan. » . . . . . we started back In May of 1970, when Angela Davis became Involved in the cause to which Jonathan Jackson was so devoted, and that Is and that was his brother George. By June the 2nd of 1970, there's a letter. . . . In this letter from Angela Davis to George Jackson, you will find a postscript by Jonathan Jackson. Three days later In Los Angeles, Stephen Mitchell purchases a jet fire rifle. And you will recall the testimony from . . . Mrs. Lawson of the Western Surplus Store, that . . . Jonathan Jack­ son was present. Miss Davis had furnished money to Stephen Mitchell so that he could acquire this weapon. . . . Now, by the middle of July, Angela Davis, Jonathan Jackson, Jonathan's father register at the Bel Aire Motel in Berkeley. . . . on the following day, on July the 15th, Angela Davis and Jonathan Jackson were in the Superior Court in San Francisco in connection *.;ith a petition presented in George Jackson's criminal prosecution by Attorney John Thorne that would enable or would have permitted her to be appointed as an investigator. . . . July the 17th— Angela Davls moved to a new apartment at 164 1/2 East 35th Street, the place at which Jonathan Jackson is seen occasionally thereafter. July 25th— Angela Davis and Jonathan Jackson are at the Western Surplus, when she purchases the carbine . . . two rounds of ammuni­ tion and two banana clips. . . . July 29th, four days later, again in Los Angeles— Angela Davis cashes a check. . . . And the bank teller described the man who was with her. . . . July the 30th— returning from Mexico, Angela Davis' car— Angela Davis and Jonathan Jackson. . . . The night of July 31st— now, we're coming right to . . . a week before the events of August 7th, Angela Davis comes . . . to a police station in Los Angeles where Jonathan is held, having been found in her automobile, having hot-wired it. And she says that he had it with her permission...... on Monday, August the 3rd, Angela Davis comes to San Francisco. The evidence, even the defense evidence, indicates that she was in San Francisco and the Bay Area from Chen until August the 7th. . , . . . . on August the 4th, Tuesday— this is one of the critical days...... you will find two visitors who came in the East Gate and who signed in to visit at San Quentin, 2:15. . . . You will find two names showing an entry at 2:15, Jonathan Jack­ son, Pasadena, California, departed at 3:10, and again the name, Jonathan Jackson. Now, the next line down, same time, Diane Robinson, . . . out at 3:10. . . . . • » you will recall some testimony by a handwriting expert, • . . that both of these names were written by the same person, . , . Jonathan Jackson. . . . 104

. . . if you look at the August 5th gate record, this is Wednesday, you will see that where he wrote Diane Robinson in signing out, he wrote down 2:15, signed his name, 2:15. * . . Now, Diane Robinson was Angela Davis.29

This not only established the possibility of foreknowledge, but Indicated

that there was plenty of opportunity for Davis to conspire with Jackson.

The prosecution's major argument inferring foreknowledge was

related to the behavior of the two on August 4-6. Harris claimed that

Davis, under the alias of Diane Robinson, accompanied Jonathan when he visited George on the fourth, fifth, and sixth. On the sixth Jonathan rented the van used for the escape attempt. Davis was supposedly with him in that van for a visit to George, a repair stop at a gas station, and importantly, when Jonathan Jackson went to Haley's courtroom, dressed and allegedly prepared to stop the McClain trial as he would on August 7.

That trial had recessed for the day, however, and Jackson returned to the y van where Davis waited. Harris claimed that under those circumstances,

Angela Davis had to have had knowledge of the plan. He said:

On August the 6th . . . Angela Davis and Jonathan Jackson were in the van that was going to be used the next day for the kid­ naping...... before they ever went to the service station and. . . had the van pushed and started, Jonathan Jackson was in the courtroom. He was in Judge Haley's courtroom. . . . and how was Jonathan Jackson clothed on that day? . . . He had the coat on. He had the long coat, and we know what the purpose of that coat was, and he had the briefcase, and we know what the purpose of the briefcase was, and he came into that courtroom that morning, and then he came back to the van, and then he and Angela Davis went to the service station to get that van going again, and when he was at the service station, did he have a coat on on a day in San Rafael, 80° temperature, did he have that coat on? 1 think your recollection of the evidence Is that he did not have the coat on so, we would understand he put a coat on to go into the building, and he took it off when he came out, and he took a briefcase in there, and the woman that was with him had no idea what he was doing, what this was all about? ...... If you accept the fact that Angela Davis was with Jonathan Jackson, that she was Diane Robinson, on the 4th and the 5th, and, If you accept the fact that she was in the service station on the 105

6th which means at the Civic Center, then we don*t think it is a matter of choosing between reasonable inferences because what is the other reasonable inference other than she knew what was going to transpire the next day? The van, the coat, the briefcase, what conceivable explanation could there be?30

Prosecution argumentation on the basis of Davis' association with

Jonathan Jackson was anticipated in the defense's opening statement.

Angela Davis herself explained to the jury that there would be no denial of

the fact of her closeness to Jackson, since she was close to members of

all the families of the Soledad Brothers, but that this closeness was not sufficient to infer conspiracy. Additionally, she offered an explanation

for the two of them traveling together so often. The notoriety over her

UCLA position had brought threats on her life. Jonathan, therefore, often

traveled as her companion. Davis said:

I have told you that the Prosecutor contends that my associa­ tion and friendship with Jonathan Jackson is evidence that I par­ ticipated in the events of August 7th, but what may you expect to hear about my friendship with Jonathan Jackson and my association with him? As the trial progresses you will learn about the source and context of my friendship with Jonathan. You will learn that, as the Soledad Brothers Defense Committee was consolidated, the family of all the brothers participated in discussion and in our projects. The evidence will show that I became friends with mem­ bers of Fleets Drumgo's family, with members of John Clutchett's family, and with George Jackson's family...... Jonathan Jackson and I were friends, but my friendship with him is absolutely no basis for contenting that I played some role in the events of August 7, 1970...... Jonathan Jackson and I did travel together in various areas in Los Angeles. . . . the members of the Jackson family, sometimes the entire family together and I attended activities, activities organized on behalf of the Soledad Brothers and other political activities on behalf of other political prisoners or other pressing political issues. We traveled together in Southern California. We also traveled together to the Bay Area because we wanted to share the experiences that we had working on the Soledad Brothers Defense Committee in Los Angeles with the exper­ iences that other defense committees in the Bay Area had gathered. The evidence will show that, after the controversy at U.C.L.A. surrounding my teaching position emerged, that there were constant threats on my life which issued from extremist elements in the community. It w s b not safe at that time for me to travel any I

106

distance outside the company of others * It is for this reason . . . that I did not want to move from place to place alone, that I very often traveled together with Jonathan Jackson, as other individuals and I were often together at various points in Southern California.31

The defense response to the prosecution's theory about August 4-6

remained in the stasis of fact. They claimed, simply, that Angela Davis

was not Diane Robinson. She was not in the van with JackBon. In fact,

they established her presence elsewhere at the times the prosecution put

her on the scene. They did this by providing conflicting testimony and

by using her character in her own behalf. In his closing statement Branton

* t ridiculed the uncertainty of prosecution witness identifications, reminded

the jury of the certainty of defense witnesses who placed her elsewhere,

and pointed out the unlikeliness of Davis behaving as Harris suggested.

. . . if you are going to believe that . . . Diane Robinson was Angela Davis, you've got to believe that she is, indeed, a fool. This brilliant college professor, who had worked out a plan to free her lover, as the prosecution says, is so passion stricken, is so stupid, is so idiotic that she rides out to San Quentin in front of all of the prison guards. She sits around and allows herself to be seen and waits in the waiting room two hours while Jonathan visits his brother. And the only way that she attempts to disguise herself is by the name Diane Robinson. The prosecution has shown that when Angela Davis didn't want to be recognized, she knew what to do. . . . Now, let's talk about this van. To me, the most idiotic claim of the prosecution is the claim that Angela Davis was in that van. . . . We . . . have evidence that it couldn't have been Angela Davis because there's proof that she was somewhere else on the times that she was supposed to have been In that van and on the time that she was supposed to have been at San Quentin. . . . There's no question about where Angela Davis was, according to our witnesses. These are not people who said: "I think I had lunch with Angela Davis. I had lunch with a light-complected negro woman with an Afro, and I think it might have been Angela Davis. As a matter of fact, I'm positive it was Angela Davis." . . . The Important thing is: Can you believe that Angela Davis was in that van? Can you believe that? Well, for the life of me, I can't figure out why she was in there. But we do know from the prosecution's witnesses that whoever it was in that van went over to the service station with Jonathan, and they had a little prob­ lem. The battery failed on the van. 107

Now, here is this brilliant college professor, who has worked out this • ■ , plan. . » . Well, this plan that hers talking about called for— called for a situation where people were going to go into a courtroom with guns, take hostages, and after taking hostages, attempt to exchange those hostages for the defense of the Soledad Brothers* ...... And what does Diane Robinson, alias Angela Davis, accord­ ing to the prosecution do? Now, this is less than 24 hours before the big caper. And they have battery trouble. And they go to a service station, and they don't know what to do. They don*t know how to fix a battery and somebody suggests, well, maybe you ought to call Hertz and see how much they will authorize to fix the battery. Now, here is this gigantic plan . . . coming off the next day, and they are concerned about who is going to pay for charging the battery, and they find out that Hertz will authorize up to $6.00 for the battery, . . . but Jonathan does not know what to do, and he goes out and talks to this lady, and they have a hard time deciding, gee, shall we spend $6.00, does the budget allow to spending $6.00 more to free the Soledad Brothers? Finally, they decide, well, $6.00 is too much, that is above the budget, I think maybe we shouldn't go that far, so they don't get the battery charged, that is over the budget for this big caper the next day. That is what you have got to believe if you believe this idiotic plan that has been concocted by the Prosecution. . . .32

In other words, the second major issue the prosecution offered

was proof of Davis* foreknowledge of the plan. They did so by presenting

facts. The defense denied such prior knowledge, making this a real issue,

as it had done regarding the existence of a plan. Again, argumentation

stayed in the fact stasis. In terms of the trial particulars, Harris

argued Angela Davis must have known the plan due to her association with

Jackson and her presence on August 4-6— fact. Moore replied by granting

the association— fact, but denied that was sufficient to infer a conspiracy,

and offered additional facts to provide an explanation for the association—

' fact. He denied her presence on August 4-6, established her as being

elsewhere, and argued her character made it Improbable she would behave

as inferred— fact.

Following the arguments on the existence of a plan, and whether

Angela Davis knew about it, the remaining question was her role. The 108

prosecution had to provide a reason for her to want to aid and abet

Jonathan Jackson, a motive. They also had to show evidence of her having

an opportunity to advance the scheme, and signs of her having taken that

opportunity.

The prosecution's theory about the motive for Davis' participation

was a major issue in the trial. Harris claimed that it was her love for

George Jackson, one of the Soledad Brothers in whose cause she had been

working, and the brother of Jonathan, that resulted in her active role

in the conspiracy. It was her reason for wanting to promote the plan.

Her motive for aiding and abetting Jonathan Jackson and conspiring together with him . . . was passion, simple human passion, a passion for George Jackson, the Soledad Brother, a passion that knew no bounds, no limits, no respect for life, not even the life of George's younger brother.33

Davis explained that prior to August 7, 1970 her affection was for

all the Soledad Brothers, and not until meeting George Jackson after her

arrest did she develop a particular love for him. She said in her opening

statement:

As time progressed and as we worked together in the movement to free the Soledad Brothers, I became closer, I felt closer, not only to Jonathan, but to the entire Jackson family. My love and affec­ tion for George grew; however, it was not until I was arrested and became like George Jackson, also a political prisoner, that my relationship with him grew stronger and my affection deeper,34

In other words, while not denying the fact of her love, she denied the

fact of the time sequence and so tried to remove the likelihood of the

emotion acting as a motive.

The defense also claimed that the evidence used by the prosecution was distorted because it was taken out of context. The evidence consisted

of letters Angela Davis had written to George Jackson. Branton said: 109

To me, the sorriest thing about this case, about -this prosecution, is the lengths to which the prosecution has gone to take words in a letter or in letters, words of love and affection of one human being to another and transpose those into some criminal intent, words taken out of c o n t e x t . 35

In this way the defense was still arguing from the stasis of fact, but questioning possible inferences since not all the evidence had been presented. The point was not denial of love, but that in context the expressions of love did not infer a probabality of Davis conspiring to free Jackson by violence.

Whether or not Davis had the opportunity to conspire did not develop into a significant real issue on its own. It was merged with the question of foreknowledge and Davis' association with Jonathan Jackson.

The question of whether she actively helped advance the plan, however, was developed significantly by the two sides. As sign evidence of her role Harris offered the guns used for the crime, all registered in

Davis' name, one purchased only shortly before August 7. Additionally, he presented ammunition that was the same in caliber and amount as that which she had purchased, and books carried by Jackson with Davis' name in them. Harris said to the jury:

These were her guns. These were her books. It was her ammunition. Then, if Jonathan Jackson had those things and if she knew about the conspiracy that was going to occur, then we think you can reasonably infer that these were furnished by Angela Davis.3®

Defense attorneys did not deny the fact of Davis' ownership or

Jackson's possession. They offered contrary fact, however, as to how those guns were obtained by him. Defense witnesses explained the guns were needed for protection of the Soledad House, a central co-ordination place for the Committee working for the freedom of the Soledad Brothers. 110

Since Davis was the one worker with sufficient money to make the purchases of the weapons, they were registered in her name. The guns were kept, however, in the closet of an apartment of one of the members and were accessible to anyone coming to use the duplicating machine also kept at the apartment. Defense testimony placed Jonathan at that apartment, remaining after its owner had left. Defense also established the facts of Angela Davis' surprise at Jonathan's actions, her fear the guns reported used were hers, and her checking the location of the guns and 37 finding them gone.

In this instance the prosecution and defense were both within the stasis of fact, but the defense established fact where the prosecution had none. It was not a case of denying fact, but of providing it.

Regarding whether Angela Davis did participate in the furthering of the conspiracy the defense offered a motive and physical evidence from which to infer her role— fact. The defense granted the motive, but claimed it was incomplete— fact. They denied Davis' role in Jackson's acquisition of the physical evidence, and offered an alternative explana­ tion— fact. In terms of trial particulars, Harris claimed Davis' motive for aiding and abetting in the crime was her love for George Jackson, and that, therefore, she had supplied guns to Jonathan Jackson. Moore responded by saying Angela did love George but that the passion to which

Harris referred did not occur until after August 7, and that the prose­ cution's evidence was incomplete. Furthermore, an alternative explanation was given for how Jonathan got the weapons. Since both sides argued this

Issue It can be identified as one of the real Issues in the trial. The argumentation stayed within the stasis of fact. Ill

Another Issue, which developed into a major real issue, was

raised by the prosecution. It had a bearing on all the other issues, but was not directly related to any one in particular. In essence it was that

Angela Davis was conscious of her own guilt, and that this manifest itself

in her fleeing from authorities even before a warrant was issued. Harris

developed this idea as having as much importance as establishing the 38 motive, means, or opportunity for conspiracy. It was a sign of the

probability of her overall guilt. According to Harris, immediately after

the events of August 7 Angela Davis dropped out of sight.

The term "unavailable" has been used and other euphemlains. We think she fled. She fled California, and she fled because she was guilty. She left San Francisco at 2:00 o'clock on the day of the commission of the crimes, August the 7th of 1970.^9

He developed his argument to say she had driven to the airport in a borrowed

car, and waited near a public telephone, the number to which was found among Jonathan Jackson's belongings. It was part of the prosecution's theory that the escapees were going to the San Francisco Airport. When

Davis heard the escape had failed she rushed to catch the first possible plane.

The defense answered this argument from two bases. First, they denied the fact that she had behaved as if fleeing. They offered addi­ tional facts and testimony about plane departure times, luggage, how she got to the airport and where she had been prior to departure.

More important was the defense's second response to this charge that her behavior was manifestation of a consciousness of guilt. Davis and her attorneys moved firmly into the stasis of quality and admitted she had fled, but said that was natural behavior under the circumstances of a racist, anti-communist system. In his closing argument Branton 112 asked his all white jury to Imagine themselves black. Then he traced the history of blacks through current raids on Black Panther residences. He added to that the characteristics of being militant and communist. Finally, he said:

The prosecution would have you believe that when Angela Davis left the State of California, she did so out of a consciousness of guilt. Do you believe that? Do you believe that the Prosecution has proven to you beyond a reasonable doubt that the reason that Angela Davis left the State of California was because of a consciousness of guilt? I am now asking 12 black people. I haven't released you yet from my little game of making you black for a few minutes. * , . remember the whole history of your people and of the treatment that they have gotten in this country, even up until the enlightened years of - the 1970s, and I want you to remember how you know that many Americans, many Californians feel about you as a black woman and a black woman Communist, and then, on August the 7th or August the 8th. of 1970, you know that you have been very active in constitu­ tional measures to free the Soledad Brothers. You know that you have had a close association with Jonathan Jackson, the young brother of George Jackson, and you find out that, without your knowledge, that young Jonathan has taken three guns that you bought and which are registered in your name, and you discover that a shotgun which you had bought for the legitimate purpose of defending a place that was subject to attack may have also been used in the crime because you read about it in the newspaper, what do you do? Do you go for­ ward to the police, and you try to explain to them, oh, those were my guns, they were all registered to me, and I bought that shot­ gun, yes, I did, and, sure I was a close friend of Jonathan Jackson and, sure, I worked in the Soledad Defense Committee, and I did all these things, but I know you are going to be fair with me, you are going to treat me equal, you are going to let me go because you know 1 had nothing to do with it. Do you think you would have done that? Has the experience of this trial given us any reason to believe that that would have been the proper thing to do? Hasn't the exper­ ience of being held in jail 16 months without bail shown that that wouldn't have been a wise thing to do? Hasn't the experience of being in a trial for three months in which the Prosecution tries to take truth and twist it into lies in which the Prosecution has taken innocent acts and converted them into criminal acts, hasn't the experience of your seeing with your own eyes and hearing with your own ears a prosecution which would go to any lengths— any lengths to bring.about a conviction of a woman on the weakest kind of evi­ dence that has ever been presented in a court of law in a case which has commanded as much attention as this case. Hasn't that convinced you that Angela Davis wasn't wrong when she left the state of California?^® 113

The prosecution hardly addressed itself to this change in stasis, except to remind the jury of Davis having received a favorable decision regarding her UCLA position in spite of her politics, and to assert:

She expects, I guess, for you to be convinced by the evidence that she left California, and that she was in Chicago the day that Jonathan Jackson was buried, that she went to Detroit under a false name, that she bought glasses for a disguise, that she lived in Miami under a false name, that she was finally arrested in New York City in a disguise and under a false name, and all of this is supposed to prove her Innocence. We think it does nothing of the kind. We think it proves— supports the evidence that X have referred to already, and that is evidence of her guilt.

In this case the prosecution attempted to establish a probability of guilt by proving behavior from which the jury was to infer that Davis knew she was guilty— fact. The defense provided additional data and denied the behavior— fact, and then said even if she was guilty of this behavior, what else could she do under the circumstances— quality. In terms of the particular case, Harris argued Angela Davis fled from authorities because she knew she was guilty. Moore and Branton denied that she fled, and then said even if she did, what else could a militant black communist do in the circumstances of *> racist anti-communist society.

The fact that this was argued by both sides made it one of the real Issues in the trial.

Just as the issue of the meaning of her flight was relevant to all other Issues, so was the issue of character. Classical rhetoric

Included as part of the stasis of fact the defendant's person and character, and what they could tell about whether it was probable he had behaved as 42 alleged. Angela Davis was an educated, articulate, intelligent defendant, something both sides considered in their cases. The prosecution claimed that in spite of her background, she was a calculating, passion-driven 114 woman| knowledgeable In Che ways of violence. Harris said to the jury:

How you have seen and you have heard of the Defendant, and doubtless you will begin to form your own opinion of her. This morning you heard of evidence through her books that this teacher of philosophy is a student of violence. Other evidence that we will present will show the Defendant does not live only In the world of books and Ideas, but that she Is committed to action, that she Is committed to violence. Her own words contained In letters to George Jackson that we will produce in Court . . . will reveal that beneath the cool academic veneer Is a woman fully capable of being moved to violence by passion.43

The defense was equally adamant that if Davis was as clever as the prosecution claimed it was absurd to believe she would engage in the activities as sketched by Harris. She would not have purchased guns using her own name and signing an autograph, or hesitated to spend six dollars to fix the battery on the van to be used the next day for the 44 escape, or shown herself at San Quentin, undisguised.

This conflict between the two sides indicated that the question of whether Angela Davis had the character of a person who would do the things alleged was a real Issue In the trial.

In conclusion, from the perspective of the stasis of fact we have examined the trial of Angela Davis and have discovered the real

Issues within It. He found that the prosecution, having decided to focus on the conspiracy count, promoted the two potential issues of the existence of the crimes of kidnaping and murder. The defense offered little signifi­ cant argumentation on these. Regarding the conspiracy, the issues of the existence of a plan, Angela Davis' prior knowledge of the plan, her willing and active role in advancing it, her post-August 7 guilty behavior, and her character all were argued, making them identifiable as real issues in the trial. Most of defense argument was from the framework of the stasis of fact, with one use of the stasis of quality. 115

Stasis of Definition

The second stssls to be applied to the trial transcript is that of definition* This Is where the criteria for what constitutes a crime are given* George Kennedy summarized the classical requisites for the speaker arguing from the stasis of definition.

. * . the speaker must define the crime, prove the definition, compare it with the act of the person accused, Introduce common­ places on the enormity and wickedness of the crime or, in the case of the defendant, on the utility and honorable nature of the act performed, attack the definition of the opponent, compare similar cases with the one in hand, and finally attack the opponent himself.^5

This development by classicists of what is contained in this stasis is not directly applicable to the American courtroom. While definitions can be given, there is little to be argued or proven* As Ziegelmueller and

Dause have observed, "Legislative acts and previous court decisions generally provide a fairly precise body of standards to guide lawyers in the develop­ ment of legal definitions."^ The definition, of course, can be compared with the defendant's acts. This is very close to the stasis of fact, however, since once the crime and act are matched, the act must be proven by providing probability, motive, desire, and other factors which fall into the fact stasis. A speaker who attacks his opponent could be arguing from the defendant's character, a factor in the stasis of fact, as easily as he might be arguing from the definition stasis. The similarity between these two staseis, however, may mean merely that they overlap and complement each other, not that one is more useful than the other in identifying issues. Let us examine the Davis trial from the point of view of the stasis of definition*

There were three counts with which Angela Davis was charged.

Each constituted a separate crime* She could be found guilty or not guilty 116 on any one or all of theni. These crimes vere kidnaping, murder, and conspiracy. Within the context of the trial that was examined one fact stands out in regard to definition. No precise definition of the crimes was given until AFTER the facts had been presented. It was In the Judge's instructions, just before turning the case over to the jury, that precise definitions and explanations were given, along with the citation of the 47 relevant paragraphs and criteria from relevant laws. It was on the basis of those instructions and criteria that the jury had to decide. This does not mean, however, that the jury had no definition earlier in the trial.

On the contrary, the prosecution presented definitions in both the opening statement and closing argument. Furthermore, at the time each definition was presented, an application of the alleged particular criminal behavior was made.

In his opening statement Harris' definition of kidnaping was mixed with the charge of aiding and abetting, which was relevant to Angela Davis, but might be more properly placed within the conspiracy count.

The evidence will show beyond a reasonable doubt that the defendant is responsible as a principal for the forcible taking of Judge Haley, Gary Thomas, Maria Graham, Joyce Rodonl, and Doris Wittner and carrying them from one place in Marin County to another, with the intent to hold them for extortion. This is kidnaping under the l a w . ^8

In his closing argument, however, his definition was much purer and more detailed, and limited to kidnap per se.

The first charge is kidnaping. This is the movement by force or fear of persons against their will and holding of such persons— In this instance, for the purpose of extortion. Now, you can have kidnaping for other purposes. But the charge here . . . Is that the kidnaping in this case was for the purpose of extortion...... extortion . . . is the obtaining of an official act of a public officer Induced by wrongful use of force or fear. We think the evidence shows an extortion of two kinds in this particular case. 117

First, the immediate movement of the hostages from the court­ room by Jonathan Jackson, James McClain and the others, and the intimidation or the extortion of the Sheriff by the threatening to kill the hostages, obtaining the official act of the Sheriff in allowing them to leave the courtroom and to proceed over to the van without Interference by reason of the threats that were made by the kidnappers to kill the hostages. Now, another purpose and we think the primary purpose of the kidnapping that took place on August the 7th was, went far beyond the Marin County Civic Center, and that purpose was to obtain the official act of the responsible state officers in releasing from prison three men, George Jackson, John Clutchette, and Fleeta Drumgo, again, by threatening to kill the hostages. In the event that you find that there was a kidnaping for the purpose of extortion, . * . you will be asked to determine as a part of your verdict whether the persons kidnapped suffered bodily harm, and this has a significance which you must pass on. We think that the evidence of the killing of Judge Haley, without any further consideration of what happened in the course of the kidnapping, clearly constitutes such bodily harm.49

As pointed out in our discussion of the stasis of fact, there was

an argument on the issue of kidnaping which was based on the stasis of definition. Recall that classicists considered a part of this stasis to be the application of behavior to the definition of the crime.It was on the basis of this application that Branton claimed there was no kid­ naping. He agreed tacitly with the prosecution's definition of kidnaping, but said that since there was no extortion, a criterion necessary to prove kidnaping, that that crime had not been committed.

Harris argued that to the extent that the taking of the Judge and jury members was to keep the police and guards from performing their duties, and to gain eventually the release of the Soledad Brothers, 52 extortion was Intended and therefore kidnaping had occurred.

Although this issue was not directed to the jury, but to the Judge

In order to gain a directed verdict of acquittal, it was no less a real

Issue since its goal was the defendant's release. 118

In the defining of murder Harris again mixed the charge with that of aiding and abetting In his opening statement, but was more definitive in his closing argument. In the opening statement, furthermore, there was only a brief mention of criteria and comparison with behavior.

In connection with the charge of murder in Count 2, the People will not contend that the defendant personally killed Judge Harold Haley, The evidence will show that she is responsible as a prin­ cipal for the killing of Judge Haley because she aided and abetted Jonathan Jackson in bringing about the criminal enterprise that resulted in his death. The evidence will show that murder was the natural and probably Isic] consequence of the criminal enterprise set into motion by the defendant and carried out by Jonathan Jackson. As a result of these facts, the evidence will show that the defendant is responsible for the murder of Judge Haley and the murder is murder in the first degree.^3

After the jury had heard the case, however, and was more familiar with the persons, places, acts, and issues, the definition was more detailed and the application more specific.

We submit that this killing was murder in the First Degree for either of two reasons, so you not only have to pass on whether it was murder, but if you conclude that it was, then you have to fix a degree of the murder. We think it was murder in First Degree for two reasons. The law designates certain felonies as crimes of such magnitude that, if a killing occurs in the course of a commission of the felony, then that killing constitutes murder in the First Degree. One of these felonies that is designated in our law is burglary, and burglary is the entry of a structure with intent to commit a felony therein, and you will be instructed about what burglary is. I don’t want to go into it in any greater detail other than to say this, that we think the evidence shows clearly that Jonathan Jackson did commit a burglary in entering the Marin County Civic Center in the courtroom itself with the intent to commit the crime of kidnapping. We think the evidence shows that the Defendant Angela Davis aided and abetted Jonathan Jackson in the commission of that crime and, consequently, she is responsible for murder in the First Degree provided that the killing of Judge Haley was the result of the commission of the crime of burglary, whether the kill­ ing was intentional, unintentional or even accidental. . . . The other reason we think you should find the murder as charged In Count Two was murder in the First Degree turns on a part of the law of conspiracy related to the Third Count, the conspiracy count. If you find that there was a conspiracy, . . . then each member 119

of the conspiracy is responsible for the acts of the other members provided that the act Is within the probable and actual consequences of the object of the conspiracy. Thus, if the conspiracy here embraced the kidnapping of hostages and killing them, if the purpose of the kidnapping was frustrated, then the Defendant is responsible for any premeditated act of murder by Ruchell Magee or even by William Christmas because both were par­ ticipating in the conspiracy. ^

After presenting this definition and application Harris went on to discuss more specifically the concept of the murder as a "natural and probable consequence of the conspiracy.

As was pointed out in the stasis of fact, the definition of murder was not denied, nor essentially was its application to behavior. At most there was a question raised about Gary Thomas' role in precipitating or reacting to Haley's death. This could have had some bearing on whether the jury found the defendant guilty of first or second degree murder, or manslaughter. The issue was not developed, however, and the questions were more relevant to the stasis of fact than definition. For those reasons we conclude no real issue was raised on the murder from the per­ spective of the stasis of definition.

The defense did not argue either of the definitions of kidnap or murder. They did argue the application of the behavior alleged, but only to a limited degree. There could be three explanations for this.

First, the definitions, especially as explained in Harris' closing argu­ ment, were relative to on-the-scene participants, those persons directly doing the kidnaping and murdering. Both the prosecution and defense agreed, however, that Angela Davis had not been at the civic center.

Harris, said, in fact, "We will not prove the defendant directly partici­ pated in the movement of hostages. The evidence will show . . . she was a principal in the commission of this crime. ..." Later he said 120

similarly, "the People will not contend that the defendant personally

killed Judge Harold Haley* The evidence will show that she is responsible

as a principal for the killing, . , Even in his closing argument,

the prosecutor said,

. . . we have never contended that the Defendant, Angela Davis, was present at the Marin County Civic Center when these events took place. As I told you before, and it is still our position that she Is responsible as a principal for the kidnapping charges in Count One because she aided and abetted Jonathan Jackson in the commission of that crime, . . . .57

Since Davis had not been indicted as being on the scene, arguing these

definitions would be a waste of valuable effort.

Second, as we discussed relative to the stasis of fact, the first

two counts were actually contained in the third, conspiracy. Therefore,

it would be unnecessary to argue outside the third count, which was the

one in need of attention.

Finally, since the definitions were legal ones which the Judge would eventually give and develop, argument would be unnecessary.

Whatever the reasoning of the defense, it did not argue the

definitions of kidnap and murder, and only the definition of kidnap became

a real issue.

The third crime, conspiracy, was the focal point of the trial, and

Harris did not omit its definition. This crime, however, was more intri­

cate and difficult and in need of careful delineation. In his opening

statement Harris said:

. , . the defendant committed the crime of conspiracy in vio­ lation of Section 182 of the Penal Code. The defendant and Jonathan Jackson did conspire together to wilfully, knowingly, and feloniously commit certain crimes. And those crimes are four-fold; one, kid­ napping; two, murder, murder in the event that the purposes of the kidnapping were frustrated; escape by force and violence of certain state prisoners, including George Jackson and two other prisoners . 121

who were awaiting trial for the alleged killing of a prison guard at Soledad Prison, .... . , . he carried out objective number 1 of the conspiracy— kidnapping for the purpose of extortion. He forced the hostages from the courtroom for 2 purposes— first, inducing the local law enforcement people to refrain from preventing the escape from the courtroom itself and from the Civic Center area; secondly, to force the State government to release George Jackson and the other Soledad Brothers. Implicit in the scheme was objective number 2 of the conspiracy— namely, the killing of the hostages if the purpose of the kidnapping was frustrated. This made it premeditated and delib­ erate murder. And this purpose was made explicit before the con­ spiracy was over. The party of three inmates, Jonathan Jackson and 5 hostages moved from the courtroom to the corridor, down the elevator, and across the parking lot to a yellow Hertz rental van especially obtained for the kidnapping, objective number 3 of the conspiracy was accomplished. McClain, Christmas, and Magee all escaped from custody, albeit not for very long. . . . the plan was to proceed in the yellow van from Marin County to the San Francisco International Airport. With the threat of death hanging over the hostages, the final objective of the conspiracy, objective number A, would be accomplished. This is the release or the criminal rescue, as the Penal Code puts it, of George Jackson and the other Soledad Brothers from San Quentin by 12;30 on August 7th. The plan was to take an airplane.5°

In his closing argument Harris did not expand the definition as he had done with the others.

. . . I come around to the third count in this indictment, and that is the conspiracy count. . . . That's what the Penal Code calls it— conspiracy. What that is is an agreement to commit a crime, whatever the crime might be. Here the crimes and the purposes of the conspiracy, as they are charged in the indictment, are clearly set forth. . . . Kidnapping, murder, escape, and what the Penal Code calls rescue, which is the removing from custody of someone who is confined and committed to custody. The elements of a conspiracy— you will be Instructed about the law of conspiracy. Let me just say that you have to find an agree­ ment to commit a crime. You have to find in respect to the person charged a specific intent to commit the crime, and you have to find an overt act committed for the purpose of accomplishing the object of the agreement— that is, whatever the purpose of the agreement was. If It was to commit a kidnapping, some overt act directed to that end.59

From this basis, somewhat more limited than previous definitions, Harris expanded the application of the defendant's behavior to the definition. 122

In fact, it occupied the rest of his speech. Since the conspiracy count was the focal point of the trial it is understandable that Harris would not dismiss it with the same kind of treatment as he had the previous two counts.

The defense did not argue this third definition either. In fact, they agreed on the elements necessary to meet the criteria. Angela Davis, in her opening statement, delineated those criteria.^ Then Harris, in his closing argument, recalled:

. . . if you remember back quite a number of weeks ago when Miss Davis delivered an opening statement . . . she 'made . . . a statement in respect to what the evidence that the defense v.ould offer would show...... my recollection is that she defined the issues that you were going to be concerned with in terms of three different things. Was there a plan premeditating [sic] August 7th? And if there was a plan, did she have knowledge of the plan? And if she had know­ ledge of the plan, did she knowingly take steps to promote the plan? Now, I am prepared to accept that statement of what the issues are that the conspiracy count turns on.®*

Since there was no disagreement on the definition of conspiracy, this did not become a real issue.

Part of what is included in the classical explanation of the stasis of definition is the use of "commonplaces on the enormity and 62 wickedness of the crime." The Davis trial transcript includes this in only one small way. In the closing of his last rebuttal Harris Included the following among his last words:

Certainly, there is much that can be made in any case about— any murder case, any homicide case— about the death of the person, about who the person was and how he suffered or how his family feels. Grief can be displayed an emotion turned into the vehicle for, I would think, distorting the role of the jury. I don't think I've done that. I've certainly tried not to. I've tried to present the facts to you and point out to you what I think, at least, are reasonable inferences— in fact, the only reasonable inferences. 123

But I do recall the name of the judge vho was In the courtroom In Marin County, and his name was Harold Haley, and he is dead* X don't think there is any dispute about that. And Gary Thomas is in a wheelchair and always will be. But nothing that you do, no matter what verdict you bring In, will do anything to restore Judge Haley to life, to his bench, to his robes, nor will it bring Gary Thomas out of the wheelchair. But what you can do is see that justice is done in this case. . . .63

The prosecutor hinted at the enormity of the crime while, at the same

time, claiming he would not engage in such tactics. During the trial

itself he did attempt to Introduce pictures and repeat descriptions which

could be relevant to persuading the jury of the seriousness of the crimes.

Since these were either not permitted or not developed, however, it must

be concluded that Harris did not make much use of this part of the stasis

of definition. When efforts were made, the defense tended to suppress

them, a Btrategy we will discuss later. As a result, no real issues

developed here.

In conclusion, the stasis of definition produced one real issue,

that of the existence of a kidnaping. The prosecution provided criteria

for the crimes of kidnap, murder, and conspiracy, and then applied alleged behavior to the definitional criteria. The defense chose to argue only

the application of behavior to definitional criteria, and then not very

significantly. Their choice may have been based on considerations such

as Davis was never alleged to have been at the scene of the crime, that

the first two counts were contained in the third, that they agreed on the definitions, that the criteria were accurately stated, or that the

Judge would provide the jury with the accurate legal definitions anyway, and that both sides could request of the Judge that he read or omit any part of any law or decision they wished. In any case, the prosecution 124 met their burden of answering the Inherent definitional questions in the case, while the defense exercised its right to argue the application of behavior to some but not all the definitions*

'Stasis of Quality

The stasis of quality produces issues only if the opponents have agreed on the facts and definition of the crime. In that case the defense 64 might argue that mitigating circumstances must be considered. Unlike the first two stasels, which are initiated by the prosecution, this one is likely to be Introduced by the defense in response to the prosecution's allegations. In our analysis of the Angela Davis trial from the perspec­ tive of the stasis of fact we identified one issue based on the stasis of quality, that of whether her flight signified consciousness of guilt.

Let us look at that more closely.

The position taken by the prosecution was that by fleeing

California, Angela Davis was admitting her guilt. Implicitly Harris was suggesting that no Innocent person need fear the authorities. Since

Davis fled, she must be guilty. In his opening statement the prosecutor developed his point.

We will show that the defendant did flee shortly after the kidnapped van was stopped at the Marin County Civic Center in route to the San Francisco International Airport. . . . her flight began before any warrant was issued or indict­ ment returned and before she was suspected of Involvement in these crimes. You will be asked to conclude that her flight reflected her knowledge that the guns would be found and the other circumstances disclosed and her awareness of guilt. The defendant . . . fled from the very spot where Jonathan Jackson, his accomplices in the kidnapping . . . and their hostages were headed. At 2:00 p.m., shortly after the kidnap attempt aborted and the resulting tragedy was reported by the news media, she rushed aboard a flight to Los Angeles. According to the airline representative 125

at the boarding gate, who sold her the ticket, she was worried that she would not make the flight* In fact, she wanted the lady to fill out her check for her* On August 14th, 1970— that's a week later— a warrant was Issued for the defendant's arrest. She was not found for two months.

Part of the defense's response was a factual denial of the bases

of Harris' Inference. The emphasis of the argument, however, was the

claim of extenuating circumstances. As early as her opening statement

Davis showed the defense's intention to grant that she fled Intentionally, and to claim that justifiable fear of police violence was the more logical reason than consciousness of guilt.

. . , there was good reason for me to make myself unavailable at that time. . . . I had good reason to fear police violence, should I voluntarily submit to the authorities at that time. . . . on many occasions in the past, Black and Chlcano people and particularly political activists have been victims of police violence. . . . I had ample reason to fear unjust treatment by the courts of Cali­ fornia, . . . I had reason to fear the prospect of many, many months of incarceration without bail, . . . I had reason to fear an eventual trial before an all white jury; therefore, not a jury composed of my peers, and . . . I had reason to fear many other obstacles to my efforts to protect my Innocence. . . . many other people, when faced with similar situations, have also reacted in similar ways, . . . particularly in the Black and Chlcano communities, there are great fears that once one is accused of a crime, one may find it extremely difficult to overcome the many o^gtacles which stand in the way of protecting one's Innocence.

In his closing argument Harris returned to the question and developed It In the factual terms of how she got to the San Francisco

Airport, what she was doing there, and where she was and how she behaved 67 until she was arrested. In response to the defense's argument of extenuating circumstances Harris added an example of Davis having received a fair decision from the Courts.

I suppose the real question is whether.she left California because . . . she believed she was guilty or because she feared, as I think she put it in her opening statement, "police violence" or because she feared that she would not receive a fair trial if she were charged, . . . 1 26

I do call your attention to one fact, and that is that her experience with the California courts over the most important ques­ tion it seemed to me she had had so far in her life, and that was her position at UCLA as a professor, had been resolved, and we have the Summary Judgment here in evidence from the Superior Court in her favor and against the Regents of the University of California. There was an appeal pending, of course, from that decision, but she had been in the trial courts on that rather explosive subject, and she had prevailed. I will leave it to the defense to speak to her fear of police violence and the evidence that that is based on, and ■ the evidence, if any, of her fear of an unfair trial. ®

Even though this technically was not responsive to Davis' claim of fear,

it was the only adaptation to the defense's argument from the stasis of

quality that Harris made.'

In his closing argument Branton focused on the issue of extenuating

circumstances. Fourteen pages of his speech were devoted to this phase

of the issue alone, twice what Harris spent on the totality of the issue

In his closing argument. He asked the jury if, under current social

circumstances, they did not consider flight the most reasonable thing for her to do. First Branton developed the historical plight of blacks in

America. He traced their history from slave ships, through the Dred-

Scott Decision, Martin Luther King, and raids on Black Panthers. In

this way he established how blacks under criminal suspicion might expect

to be treated. Then he added to that the fact of her militancy, and the

treatment by the courts of militants like Huey Newton, Bobby Seale, and * Ericka Huggins. Finally, he added her Communist membership and briefly mentioned the treatment of Communists since World War I. Then he read a half dozen samples of the hate mail Davis received following the contro­ versy over her UCLA job. Having established the reasonableness of her fears of the legal system, he concluded by saying;

The point is; Do you believe that there is evidence before you from which you can determine that it was a reasonable thing for her to do, even though you might not have done the same thing? I

In other words, has the Prosecution proved to you beyond a reason­ able doubt that her reason for leaving this state was because she was guilty? I say to you, when you look at the situation through the eyes of a black person, you must realize that no black person in this world would have wondered why she fled. They would only wonder why she allowed herself to be caught. And that is the way you must look at this case, through the eyes of Angela Davis. What was her state of mind? What was facing her and, when you look at it through those eyes, I think that you must come to the conclusion that, what the Prosecution considers to be the strongest element of their case is no case at all.

Clearly, the defense moved into the stasis of quality when they selected

to emphasize this position oh the issue of flight.

In its final rebuttal the prosecution did not return to the issue.

They left their position resting on the fact stasis, with little more than

a passing comment on the approach from the stasis of quality.^

In conclusion, the stasis of quality helped us identify the issue

of whether flight was a reliable sign of guilt. It was the only real

issue based on this stasis.

Stasis of Objection

The fourth stasis, that of objection, is relevant when the defendant

objects to the legal process. The defense may claim the prosecutor has

no right to prosecute him or the court has no right to hear the case.^

In our legal system these matters tend to be solved before the trial. In

the case of Angela Davis, attorneys acquired both a change of venue and

a change in judges, thus affecting the right of the court to hear the case.

In terms of the prosecutorls right to prosecute or the legal

process generally, there was what could be Interpreted as some raising of

the issue%

Essentially Angela Davis considered her trial a political one.

She said the basis on which her indictment was gained amounted to 128

Interpreting legal behavior as criminal. She believed she should not have been brought to trial at all. Furthermore, there continued to be an objection to the lack of blacks on the jury, even after the defense had accepted the jury.

The objection to the trial being held at all was present In the trial Itself. Harris anticipated it in his opening statement.

I've told you that I'm convinced that the evidence will persuade you beyond a reasonable doubt of the guilt of the defendant. I'm equally convinced that you will be satisfied beyond any doubt what­ ever, beyond any shadow of a doubt or beyond any conceivable doubt that this case is not a political frameup and it is not an instance of political persecution nor of racist persecution. . . . The evidence will show that the claim of political persecution, the claim that the defendant is a political prisoner., the claim that the defendant is the subject of prosecution because of her political beliefs— all of these claims are false and without foundation.

He was correct in his expectation that Davis would raise the question.

It was her opinion she was on trial for political reasons.

The evidence will show that the first overt act of the con­ spiracy count consists of a description of a rally in which I participated, around the freedom of the Soledad Brothers. On . . . June 19th, 1970— I was exercising constitutionally guaranteed rights— rights guaranteed to me by the First Amendment when I participated in this rally, which dealt with the persecution of the Soledad Brothers, with other political prisoners and prison con­ ditions in general. Yet, this was supposed to be the first overt act of a conspiracy in. which I participated, a conspiracy to free the Soledad Brothers, through the events of August 7th. The evidence will show, members of the jury, that this indict­ ment provoked widespread concern, concern throughout the world that I was a victim of political oppression.

She referred to the prosecutor's case as a "political frameup" during which she was the victim of a "spy campaign." The result of that cam­ paign, according to Davisf was data which, if shown to the court, would

"show • . . the process whereby an innocent person can be set up and 74 accused of outrageous crimes." 129

If we follow, this potential issue to its logical conclusion it'

should result in a request from the defense to end the trial, just as

the logical conclusion for the real Issues in the fact stasis should be a request for acquittal* In fact, that is what occurred. When the prose­

cution completed its case, and before the defense presented its witnesses

and evidence, Leo Branton moved a directed verdict for acquittal. He asked the Judge to acquit Angela Davis without going further with the

trial. One of his arguments for the motion was that otherwise legal behavior was being used as a basis to infer guilt. Over more than

twenty pages of argument he said repeatedly:

* , * if the Prosecution is going to sustain the establishment of a conspiracy in this case, it must do so by having the jury to draw Inferences from otherwise legitimate legal acts. . . . , . . there is no doubt but that the Defendant in this case had been exercising First Amendment rights. The Prosecution has established that beyond a reasonable doubt, but, some of the people, to wit: Jonathan Jackson, who also was involved in First Amendment rights, prior to the time that he became involved in some criminal act, because he became Involved in some criminal acts, the Prosecu­ tion wants to have this jury to conclude and to infer that Angela Davis, who had the same aim as Jonathan Jackson, to wit: To free the Soledad Brothers, must of necessity also have participated. . . . There is not one word of indirect evidence to iconnect this Defendant with any crime charged unless that indirect evidence is to allow the jury to draw inferences from legal, lawful conduct and to draw those Inferences under circumstances where the same lawful, legal conduct more pointedly and more assuredly and more abundantly points to innocence rather than to guilt.

Unlike Davis, Branton did not refer to the case as political. The implication, however, is that there was no reason for Davis to have been brought to trial.

Harris argued in opposition to the motion. He claimed he had not based his case on Davis' political activities, as the defense Implied, but on behavior from which one could reasonably draw inferences. 130

The observations of Hr. Branton that we have relied upon the exercise by Miss Davis of her First Amendment rights somewhat startles me because we have offered no evidence of any rallies. We have offered no evidence of any speeches that Miss Davis made. We have offered no evidence of her participation in the campaign to free The Soledad Brothers by legal means except as that is incident to factual matters relating to the criminal charges herer and to say that the evidence doesn't warrant a conviction of the Defendant runs contrary to the suggestion made earlier this morning that Jonathan Jackson has been proven guilty of some crimes because we find in those events preceding August 7th that have been proven here in court, Jonathan Jackson present with Miss Davis.76

Judging from the controversy, we must conclude that the stasis of objection has helped identify one of the real issues in the trial, whether the trial was based on legally justifiable grounds, or implicitly on political motives*

The other question that could fall in the stasis of objection is the make-up of the jury. In his closing argument, Moore commented on the absence of blacks.

Before I go on, I would like to indicate one source of dis*' tress for me and other defense counsel and for Miss Davis. I shall relate this to remarks which I shall make later on. One of the sources of distress that we have is that there are no members of Miss Davis' race on this jury. I feel that we are obligated to point that out. I don't feel that that is a condemna­ tion or stigma of any person who is seated on the jury, but really the recognition of an obvious fact. The absence of members of Miss Davis' race on the jury could very well handicap and impede the search and the quest for justice in this c a s e . 77

Branton began his closing argument similarly.

. . . I know that you think that we of the defense have used this term "black" quite a bit. And perhaps you might even think that we have used it unnecessarily. But I assure you we haven't. My colleague has called attention to the fact that there is not one black face sitting in that jury box* You might not think it is important, but I tell you that it is, and I mention it first because I am going to mention something and talk, about something for a few minutes which, to you as white Americans, might be difficult for you to understand unless you can understand what it means to be black In this country. 131

You are a cross-section of Santa Clara County. You are the young and you are the old.. You are the Jew and you are the Gentile. You are the worker, you are the executive. And to that extent, you are a cross-section, but not only do I see no black face, but I don't think that I would be mistaken if I said that not many of you— not many of you in the totality of your lives have been close enough to black people to know what it meant, . ,

The question was not argued by the prosecution, however, nor did

it lead to a request for acquittal, or appear in Branton's arguments for

a directed verdict of acquittal. We must conclude, therefore, that it was

not an issue in the trial.

We have found that analysis of the Angela Davis trial from the

perspective of the stasis of objection helped us identify another real

issue; that of whether there was too much of a non-criminal base to justify

the trial.

This last identification is particularly important. It suggests

that an alleged political prisoner has a means within the context of the

trial itself for pleading his case using in part his own political posi­

tion. This factor, with the addition of the use of the stasis of quality, may mean that there are deliberative possibilities within the forensic

context. In the case of Angela Davis defense attorneys were able to raise both questions of the plight of blacks, and the system's criminal

Interpretation of legal acts by black militants. These are both concerns of those who, like Angela Davis, want to help blacks and alleged political prisoners. The recognition of this overlap has some implications for a prosecutor as well. In this case neither the objection nor quality argu­ ments by the defense were met with any significant argumentation from Harris.

He may have felt justified in sidestepping these Issues since they are more deliberative in nature, as shall be explained in Chapter V. However, to the extent that a defendant applies deliberative issues to the forensic framework, those issues are bound to affect the jury's weighing of the evidence. The prosecutor, therefore, must be prepared to distinguish between the two frameworks, and to identify when the deliberative begins to dominate. Allowing a self-claimed political prisoner to use his political position as his dominant defense may risk shifting the trial away from a proposition of judgment decided by logical proof, to one decided by ethical and pathetic proof which clouds the judgmental decision with the jury's feelings about the defendant's policy proposi­ tion. Furthermore, failure to respond to deliberative arguments may be comparable to failure to respond to forensic quality and objection

Issues. A prosecutor facing the trial of a social/political leader might be wise to review his forensic case from a deliberative perspective, and to pay special attention to the staseis of quality and objection.

Summary

In summary, we have examined the trial of Angela Davis using the forensic system of staseis to identify the issues. We discovered that the trial focused on the third count of conspiracy.

Using the stasis of fact, we found the first real issue was the existence of a kidnaping. The prosecution argued its existence, and the defense, from the framework of the stasis of definition, denied it.

While the existence of a murder was a minor issue, the existence of a conspiracy was a major real one. The prosecution argued the fact of three on-the-scene signs of a plan, McClain's change in the order of his witnesses, McClain's lack of surprise and his requests for supplies when Jonathan Jackson stopped the trial, and comments from the alleged 133 conspirators about a tine schedule. They argued also that the purpose of the plan was the rescue of the Soledad Brothers, particularly George

Jackson. This was supported with facts about Jonathan's affection for his brother George, and on-the-scene statements demanding freedom for the Soledad Brothers. The defense denied the existence of a conspiracy, pointing to the on-the-scene confusion, granting Jonathan's affection for his brother, but denying the on-the-scene statements or claiming they were slogans rather than extortion demands.

The existence of prior knowledge of the plan by Angela Davis was a real issue. The prosecution pointed to the sign evidence of a long, stable relationship between Davis and Jonathan Jackson, and particularly their association and behavior on August 4-6. The defense granted the association but denied it was a sign of conspiracy and denied Davis was with Jackson on August 4-6.

The question of whether Angela Davis took an active role in promoting the conspiracy was a real issue. The prosecution pointed to

Davis' love for George Jackson as her motive, her association with

Jonathan as providing her opportunity, and her ownership of the guns as her means of aiding and abetting the conspiracy. The defense denied sufficient love at the time of the events to justify the alleged behavior, denied the association was a sign of conspiracy, and denied she gave the guns to Jonathan.

The question of whether Davis' flight from authorities was a sign of guilt was a real Issue. The prosecution claimed she was at the

San Francisco Airport to wait for the escapees, and left California when she heard the plan failed. The defense argued she was at the airport 134 for legitimate reasons, and denied her Initial Intent was flight * They argued further from the stasis of quality that when Davis did flee it was the expedient and reasonable thing to do.

The nature of Angela Davis' character was a real Issue. The prosecution claimed she was a passion-driven person knowledgeable and capable of violence. The defense said if she was as capable as the prosecution claimed, she would have been smart enough not to do the things the prosecution alleged proved her guilt.

Using the stasis of definition, we found one real issue, that of whether a kidnaping had occurred. The prosecution said all criteria in the definition had been met. The defense claimed the criterion of extortion had not been met.

The stasis of quality helped us identify the issue of whether flight was a sign of guilt. The prosecution claimed it was* The defense claimed it was not since flight was a reasonable reaction for a militant black communist in our society.

In the stasis of objection we found one real issue, that of whether there were legally justifiable grounds for the trial, or whether there were implicit political motives. The prosecution claimed the indictment was based on criminal behavior. The defense claimed it was legal behavior given criminal Interpretation.

■ These, then, were the real issues in the Angela Davis trial.

While the stasis of fact was the seat of most of the argumentation, controversy was identified in each of the other three staseis as well.

Furthermore, examination of the issues in the staseis of quality and objection led to the important conclusion that they were likely to be the 135 seats of any overlap between forensic and deliberative issues, and had the greatest potential for extra-rational argumentation.

4 NOTES TO CHAPTER

Angela Y. Davis, "Political Prisoners, Prisons and Black Liber­ ation," in If They Come In The Morning, eds. Angela Y. Davis, Bettina Apthekar and other members of the National United Committee to Free Angela Davis and All Political Prisoners (New York: The New American Library, Inc,, 1971), p. 30. 2 George Kennedy, The Art of Persuasion In Greece (Princeton, New Jersey: Princeton University Press, 1963), pp. 306-14; Lee S. Hultzen, "Status in Deliberative Analysis," in The Rhetorical Idiom: Essays in Rhetoric. Oratory, Language, and Drama, ed. Donald C. Bryant (Ithaca, New York: Cornell University Press, 1958), pp. 98-104; George W. Ziegel- mueller and Charles A. Dause, Argumentation: Inquiry and Advocacy (Englewood Cliffs, New Jersey: Prentice-Hall, Inc., 1975), pp. 21, 42-5. 3 Kennedy, p. 309; Hultzen, p. 103.

^Kennedy, pp. 306-9; Hultzen, pp. 98-103; Ziegelmueller and Dause, pp. 43-4.

'’Kennedy, p. 310; Ziegelmueller and Dause, pp. 44-5.

^Kennedy, pp. 312-13.

^"Angela Davis is Sought in Shooting That Killed Judge on Coast," New York Times, August 16, 1970, p. 66. g Meiklejohn Civil Liberties Institute, The People of California v. Angela Y. Davis (Dobbs Ferry, New York: Trans-Media Publishing Co., NO. 503,1974), p. 2145. Hereinafter referred to as The Trial Transcript.

^Ibid., pp. 2143-44.

^Kennedy, p. 309; Hultzdn, p. 103.

11The Trial Transcript, pp. 6262-68.

12Ibid., pp. 6274-76.

13Ibid.» pp. 2938-39.

U Ibid., pp. 3784-85, 3789, 3793

15Ibid., pp. 2322-24.

16Ibid., p. 3132.

136 17Ibid. pp. 6857-59.

18Ibid* pp. 6859—63*

19Ibid. pp. 6863-64.

20Ibid. p. 2796.

21Ibid. p. 2881. 22 Ibid. p. 2455*

23Ibid. pp. 2919-21.

24Ibid* pp. 6872—74*

25Ibld. pp. 6875-78.

26Ibld. pp. 2823-24. 27 Ibid. pp. 2838-40. 28 Ibid. pp. 6879-80.

29Ibid. pp. 6886-93.

3°Ibld. pp. 6937-39.

31Ibld. pp. 2341, 2343, 2345. 32 Ibid. pp. 7034, 7036-37, 7039-41.

33Ibid. p. 2151.

3AIbld. pp. 2345-45-A.

35Ibid. p. 7074.

36Ibid. p. 6942.

37Ibid. pp. 6301-57, 6453-94, 6514-50.

38Ibld. p. 315.

39Ibld. p. 6950.

40ibid, pp. 7023-25*

41lbid* pp. 6957-58*

^Kennedy, p. 309. 138

43 The Trial Transcript, p. 2189* 44 Ibid*, pp. 7028—29, 7033-34, 7040-41; Above, pp. 106-7. 45 'Kennedy, p. 309. 46 'ziegelmueller and Dause, p. 43* 47i The Trial Transcript, pp, 7143-7200-A. 48 Ibid., p* 2143.

49Ibld., pp. 6832-34*

38Hultzdn, p* 103. 51 The Trial Transcript, pp. 6262-68.

52Ibid* pp. 6274-76*

53Ibid. pp. 2144-45.

54Ibid. pp. 6835-37.

55Ibid * p. 6837.

56Ibid. pp. 2143-44.

57Ibid. p. 6834,

58Ibld. pp. 2145, 2149-50,

59lbld. pp. 6852-53.

6°Ibld. p. 2324; Above, pp.

61Ibld. pp. 6855-56.

82Kennedy, p. 309. 63 The Trial Transcript, pp. 7138-39. 64 Kennedy, pp. 310-312. 65 The Trial Transcript, pp* 2215-16, 66 Ibid*, pp* 2353-54* 67 Ibid*, pp. 6950-57* 68 Ibid., p. 6957. 139

69Ibid., p. 7026*

70Ibid., p. 6957*

73Kennedy, p. 312.

77The Trial Transcript, pp. 2146-47,

73Ibld,, p. 2330.

7*Ibid., pp. 2339-40.

75Ibld., pp. 6251, 6260-61, 6269.

76Ibid.f p. 6274.

77Ibid., p. 6276.

78Ibld., pp. 7011-12, CHAPTER IV

FORENSIC STRATEGIES

Once the issues in a controversy are identified an advocate must make choices on how best to present his positions on those Issues to gain the decision he desires. These choices become his strategies. They are the "broad plans which determine how an advocate will adapt the presentation of his analysis . . . to heighten the persuasive impact."*

As we saw in the delineation of the forensic issues in the Davis trial there were many areas of disagreement. In order to convince the jury each side had to present its case in the most compelling way possible.

By examining the trial transcript we can identify the basic strategies used. The following chapter explains the results of such an examina­ tion. It was found that the prosecution employed focus, itemization, and refutation. The defense used focus, suppression, and refutation.

Let us examine each of these more specifically.

Prosecution

The prosecution wanted to establish that-Angela Davis was the owner of several guns. It also wanted to prove that over a period of time her stable association with Jonathan Jackson and her love for

George Jackson resulted in her conspiring with Jonathan to use her guns to take hostages and trade them for the freedom of the Soledad Brothers, one of whom was George Jackson. The prosecutor had to prove the exis­ tence of that plan, Angela Davis' knowledge of it, and her willing 140 M l

help to carry it out. Harris attempted this by using three strategies:

focus. Itemization, and refutation.

Focus

Focus Is the emphasis of selected elements of the case for

purposes of convincing the audience that they are the most Important

elements and should be the basis for decision. The selected elements

are the major points In the advocate's organization.

Harris used focus on two parts of the case. First, he focused

his argumentation on the conspiracy count. This was his most successful

focus. Second, he focused the four elements of a circumstantial case.

These elements merged somewhat with defense focus and were less effective.

The first noticeable focus was on the conspiracy count. Recall

that Davis was indicted on three counts: kidnap, murder, and conspiracy.

The conspiracy count was further broken down into intent to kidnap, murder, escape by force, and criminal rescue. A case could be built

around each count. The prosecution would need to establish the fact of

a kidnap, intent to kidnap, intent to extort, and knowledge and parti­

cipation by Davis. The same would need to be done for murder, and

finally conspiracy. The result would be numerous issues, some over­

lapping and some in apparent conflict. Harris did not choose to do this, however. One count, that of conspiracy, contained all the elements.

Among the requirements for establishing conspiracy is proof that "one of the conspirators . . . knowingly committed at least one of the overt acts charged in the indictment" and that "such overt act was knowingly 2 done in the furtherance of some . . . purpose of the conspiracy." 142

Thus the third count required proof that the first two had occurred.

Harris, therefore, was able to clarify the Issues by focusing on the

conspiracy count. Evidence of his having done so is in his opening

statement. He told the jury he would not attempt to prove that Angela

Davis had been on the scene August 7, but would prove that she was

responsible as a principal. In other words, since she had been party to

the planning, she was equally if not physically responsible for the

overt criminal acts. For example, Harris said:

We will not prove that the defendant directly participated in the movement of the hostages. The evidence will show . . . she was a principal in the commission of this crime, that she aided and abetted a young man named Jonathan Jackson in carrying out this criminal enterprise. . . . In connection with the charge of murder in Count 2, the People will not contend that the defendant personally killed Judge Harold Haley. The evidence will show that she is responsible as a prin­ cipal for the killing of Judge Haley because she aided and abetted Jonathan Jackson in bringing about the criminal enterprise that resulted in his death.3

After these statements he explained the conspiracy count, Including

the four intended crimes. As he began to relate the events of August 7 he spoke of them as part of the conspiracy, saying, "On August 7th of

A 1970, conspiracy was set into motion. ..." By using this phrasing, he was couching the first two counts in the third.

The structure and content of Harris' closing argument show he maintained this focus. Out of 140 transcribed pages of argument, the prosecutor discussed the first two counts exclusively on less than 5 five of them. Even then he mentioned them in terms of the conspiracy, or In terms of Angela Davis, which, since she was not on the scene,

Implied the conspiracy. At the conclusion of this brief discussion he said in transition, "Now, we come to the question, which 1 think you have to really give your primary attention to, and that is the question of the responsibility for what happened in Marin County." Shortly thereafter he added, "Everything I tell you from now on— and it's going to be for a while— is going to relate to that question of the conspiracy.

Over one hundred pages of argument followed that statement, plus the rebuttal of forty pages which was devoted also to the conspiracy count.

Clearly, the content and structure of the prosecutor's opening statement, and closing argument and rebuttal are evidence of a focus on the third count of the conspiracy It was apparently Harris' opinion that this was the most important count, and he wanted it to be the basis for the jury's decision.

The second attempt at focus Harris made involved the elements of a circumstantial case. The problem with a conspiracy case is that it cannot be established by facts alone. It requires the establishment of facts, and then the establishment of logical inferences which preclude reasonable doubt. It relies primarily on sign evidence. Since Davis was not at the crime scene, and there were no living co-conspirators,

Harris had to rely particularly heavily on circumstantial evidence to persuade the jury. He expalined what this consisted of in his opening statement. He said, "The case against the Defendant rests in large part on circumstantial evidence. That evidence includes each of the four classic circumstantial evidence elements: 1, motive; 2, means;

3, opportunity; and 4, consciousness of guilt." This brief delineation was followed by an application of the four elements to the case. 144

Her motive for aiding and abetting Jonathan Jackson and con­ spiring together with him— the reason that she did this was passion, simple human passion, a passion for George Jackson, the Soledad Brother, a passion that knew no bounds, no limits, no respect for life, not even the life of George's younger brother. The evidence will show that she had the means for aiding and abetting and conspiring together with Jonathan. In fact, she furnished or assisted in furnishing practically all the means, the instrumentalities, the things that make the tragic events of August 7th possible. The evidence will show that she had the opportunity to aid and abet and to conspire together with Jonathan Jackson. That oppor­ tunity will be recounted for you In detail for the weeks preceding August 7, 1970. In fact, in the days immediately before August 7th, she scarcely had the opportunity to do anything else. By then, her life, her fortune were firmly committed to George Jackson. Finally, the evidence will show that she offered convincing evidence of her guilt, her belief in her own guilt, her consciousness of guilt by fleeing California, starting on August 7th at 2:00 p.m. at the San Francisco International Airport and continuing until she was arrested in New York City nearly 2 months later. In fact, on the day of the funeral for Jonathan Jackson, the Defendant was in Chicago having disguised her appearance and prepared to assume a false identity.?

The rest of Harris* opening statement was organized around these four

elements. Each element was developed for Beveral pages of argument, and

then the next was taken up, until the end of Vis statement coincided

approximately with his discussion of the fourth element. It was apparently his intent to organize his case on this basis, to focus on

these elements.

By the time he presented his final argument, however, these elements were no longer dominant. Harris retained them, but they were no longer the focus, the main points of his organization. Instead,

they tended to merge with the focus selected by the defense. Briefly,

Davis* opening statement focused three questions with which the prosecu­

tion had to deal: Was there a plan? Did Angela Davis have fore­ knowledge of that plan? Did she assist In the promotion of the plan?

As was evident by our identification of the forensic Issues, these questions became the focus of the trial. The dominance of the defense

focus was granted by Harris in his closing argument. He reminded the jury

of the issues focused by Davis in her opening statement and added,

". . . I am prepared to accept that statement of what the issues are g that the conspiracy count turns on." The result of this acceptance was the loss of his Initial four element focus. The element of motive

and proof of providing the means became part of the question of whether

she assisted in promoting the plan. The issue of Davis' foreknowledge

absorbed the element of opportunity. The element of consciousness of guii*; was the only one to stand alone. Harris' emphasis of it was retained .. by both sides. It was the only addition the defense made to its major focus. It was developed on its own, apart from the way the prosecutor initially introduced it.

In his closing argument Harris did attempt to refocus the motive element. When he had finished the three issues and the element of consciousness of guilt he said, "the final point goes to a common subject In criminal trials. It is not unusual, but we think it is 9 Important in this case, and that goes to motive." The last dozen pages of his argument are then devoted to this element. Thus, from the position of first among four elements around which he intented to develop his case, it became the last of five.

Harris tried to support his focus by organizing the presentation of his witnesses to correspond to his four elements of circumstantial evidence. His first group of more than twenty witnesses testified to the events of August 7, 1970. This was necessary partially to establish kidnap and murder. These were not Harris' selected focus, but needed to 146 be proven to meet the requirements of the law. These same witnesses, however, also were able to give testimony pertinent to on-the-scene

statements which suggested existence of a plan, and to ownership of the weapons used. This latter was relevant to establishing the defendant as having the means to assist, and to having assisted in promoting the plan. Thus, while the first group of witnesses may have been selected

to establish the means element, they easily allowed absorption of that element into the questions of whether there was a plan, and if Davis assisted.

The second group of about nine witnesses was selected to advance the element of motive. Part of this was absorbed by the issue of whether there was a plan, and part was retained by Harris as an item in the refocus on five elements.

The third group of approximately thirty witnesses was to estab­ lish Davis* opportunity to conspire. Their testimony, however, was absorbed by the issue of whether Davis had knowledge of the plan prior to August 7.

The last group of about half a dozen witnesses was relevant to the element of consciousness of guilt. This was the one element which both sides treated independently.

Thus, Harris began with a four part focus for his case presen­ tation, which he supported with the organization of his witnesses.

After considering the defense's focus, however, Harris reorganized his case around five elements, three of which had been suggested by the defense. The impact of the reorganization was that the prosecution, with the burden of proof and its accompanying advantage of being 147

able to select the contentions to be argued, essentially gave up Its

advantage, and argued from the contentions of the defense. Harris was

drawn off his case onto the opponent's ground. Assuming the defense would chose an organization which focused its strengths, the prosecution

put ltBelf at a disadvantage by accepting the opponent's organization.

Furthermore, the one element that was retained, consciousness of guilt,

also was helpful to the defense since it opened the door for deliberative

discussion. Even the discussion of motive, which the defense reorganized, but which Harris was able to retain as a separate element, lent itself

to defense deliberative discussion. Chapter V will provide an analysis of the development of these issues. What is important to remember, however, is that the refocus of the prosecution's organization by the defense, shifted the advantage to the defense.

In conclusion, one of the prosecution's strategies was focus, the emphasis of selected elements of the case for purposes of convincing the audience that they are the most important elements and should be the basis for decision. The prosecutor, Albert Harris, focused on the third count of conspiracy, and attempted to focus on the four elements of circumstantial evidence, means, motive, opportunity, and consciousness of guilt. This latter focus, however, was changed during the trial.

Some of the elements were retained, and some absorbed by the defense focus. Allowing the Davis attorneys to refocus prosecution elements may have shifted the advantage to the defense. In any case, the final prosecution focus had five parts: Was there a plan? Did Angela Davis know of the plan before August 7, 1970? Did she assist in promoting the plan? Did she manifest consciousness of guilt? Did she have a motive? Itemization

Itemization is the listing of individual elements in a collection without emphasis of any single element. The purposes are thoroughness

and accuracy in the presentation, and to give the impression that an

abundance of evidence supports your conclusion. As one reads the trial

transcript, especially that part covering the first twenty or so prosecu­

tion witnesses, the question keeps arising: Hasn't he already established

that? This is partucularly true regarding witnesses, but is present also

in the offering of evidence, and the drawing of inferences from facts.

Careful itemization is present throughout the entire trial, and can be

identified, therefore, as one of the prosecution strategies. We will examine it in terms of witnesses, physical evidence, and Inferences.

Witnesses are relevant to Harris' strategy in two ways. In one

Instance they provide the itemized facts. In another instance they are the items he lists to give impact to his point.

The early part of the trial was spent reconstructing the events of August 7. Each of the approximately twenty witnesses called was asked where he was standing during the escape, at what point he became aware of the events, who he was with, what he heard, who said it, to whom it was directed, what he saw, where he moved to, and again what he saw and heard from there. Harris produced blank diagrams of the scenes relevant to the events. Each witness was instructed to place his initials at locations on the charts where he had been, or wherever he identified someone or something as having been. Carefully, place by place, person by person, Item by item, Harris reconstructed several witnesses' recall of the presence or absence of persons in Haley's courtroom, what they carried, said, or how they behaved. In the hall from the courtroom to

the holding cells, back to the courtroom and in the other direction

to the elevators each convict, hostage, and police official was placed

on the charts according to his own recollection and that of others who were present. As the escape group came out of the elevators and moved

across the parking lot to the van additional police, sheriff's men, and

San Quentin officers converged on the scene, hiding behind cars and

cement planters. Each official was placed, and his weapons identified.

Initials were put on charts for each one by every witness who had seen

him as well as by the person himself. When he arrived, from whom he

got his weapon, whether he fired, what he hit, and what was done with the weapon, were questions asked of each person. When the shooting ended

some persons went to the van. In addition to all prior questions those witnesses were asked what they saw inside. Victims were identified and located in the van in terms of each other victim. Also itemized was who was closest to which weapon, who removed that weapon, how it was marked and by whom, where it was placed, and where it was taken.

While the transcript reader is particularly aware of this itemi­ zation in the early days of the trial because of the number of witnesses and the fact that they testify to the same thing, the strategy is no less present later in the proceedings. Over thirty witnesses testified regarding the whereabouts of Jackson and Davis on August 4-6. Whether the witness claimed to have seen them in a store, at the gas station, or in the San Quentin visiting room, he was asked where he stood, when he recognized Davis and on what basis, how long he saw her, what direction she faced, what she wore, and how she behaved* ISO

The movements of people were carefully traced and compared with

others to provide clear, thorough data for later Inferences. Physical

evidence, from the particulars about the guns and ammunition to the

victims' clothing were subject to the same thorough itemization, also

to provide the basis for Inferences.

Not only did the witnesses provide itemized facts with their

testimony, but they in turn became items in Harris' argumentation. In

his closing argument he often listed each individual witness who may have

testified to a fact that would help corroborate his theory. For example,

as part of the evidence that a plan existed to free the Soledad Brothers

the prosecutor used testimony of what witnesses heard at the time of

the escape. Several people testified to hearing different forms of the

freedom demand, and Harris itemized some of them and their testimony.

You recall Captain Teague, who came in here and his testimony in substance was that, at the elevator, someone said, "You have until 12:00 noon to free the Soledad Brothers and all political prisoners." Officer Niederer, who you remember was disarmed, and he was standing in the corridor. I think you see him from the back in one of the pictures. He heard someone at the elevator say in a loud voice, "They wish the Soledad Three released by this after­ noon." Chief Terzlch, I think from the Mill Valley Police Department, testified he was in the area. He had been disarmed, and he heard, I think he attributed this to James McClain, "Free the Soledad Brothers by 12:30 or they all die." Inspector Ken Irving was in the area, and he heard someone in the elevator say, "You have until 12:00 noon to free the Soledad Brothers." Lieutenant Retana heard the word "Soledad." He couldn't recall the context.

’ Not all of Harris' itemized references were as compact as this one.

As he mentioned each Important point of his theory, however, he pulled

together the witnesses whose testimony was relevant, stated their name 151 and the needed part of their testimony. This type of organized itemiza­ tion added impact to the prosecution case, giving the impression that if so many persons testified to the point it must be more certain than

It may have appeared originally. The strategy of itemization was par­ ticularly important when Harris would list five prosecution witnesses who claimed to have seen Davis at some point during August 4-6, and would name the one person the defense offered as her alibi for that time period. His Itemization would then give the impression that the preponderance of witnesses supported the prosecution.

In addition to Itemization relevant to witnesses, Harris was equally scrupulous about physical evidence. In his opening statement he warned, "I am going to cover something in excess of a hundred witnesses.

And I don't know how many exhibits we'll have. But there will be an awful lot of physical exhibits in this courtroom.While he produced slightly less than one hundred witnesses, due in part to defense stipu­ lations, he did produce in excess of 200 items of physical evidence, some of which were collective entries. A briefcase, for example, would be given one number, and the items in it would be given that number and a letter. Thus, a single number might cover a half dozen or more items.

Even using that method, the prosecution managed over 200 items.

As each item was entered, it had to be described for the transcript and its relevance had to be established. In some cases argument ensued from the defense as to the relevance of an item. When that occurred, the Judge was often required to decide on admissibility. The following is a typical example of prosecution itemization of physical evidence: 152

THE COURT: 184 and 185 are all In evidence. 186 Is likewise in evidence. (The exhibits heretofore marked People's Exhibits 184, 195 and 186 were received in evidence,.) MR, HARRIS: 186— the pictures X believe are already in, aren't they? THE COURT: The pictures were previously received in evidence. The receipt from the motor lodge— > MR, HARRIS: Well, then, I would like to offer 196-A through N, 197 and 198. MR. BRANTON: The Defendant will object to 196-A through N, your Honor, as being totally irrelevant to any of the issues in this case and will also object to 197 which is a document that was purportedly removed from Mr. David Poindexter at the time of his arrest, on the grounds it has no relevance to any of the issues in this case. Mr. David Poindexter is not a Defendant in this case. MR. HARRIS: Your Honor— THE COURT: 198, if there is no objection, may go into evidence at this time, Mr. Clerk. THE CLERK. Yes, your Honor. (A wig heretofore marked People's Exhibit 198 was received in evi­ dence.) THE COURT: Mr. Harris. MR. HARRIS: Your Honor, we think, in the first place, 197 is admissible because it confirms the use by Mr. Poindexter of the name George Gilbert which was the name used for registering at Room 702 at the Howard John­ son Motor Lodge and this Florida temporary driver's permit was found on his person at the time of his arrest. We feel that 196-A through N, consisting of the numerous credit cards and other means of identification that were found in the purse of Miss Davis, show that she was using the identification of another person, that is to say, that she was attempting to. MR. BRANTON: Just a minute. I am going to object to any argument in front of the jury, your Honor. I think he can make his response but not argue the matter before the jury. THE COURT: I will hear counsel in chambers. MR. HARRIS: Well, I made my point. I will submit the matter. MR. BRANTON: We will submit the matter. THE COURT: I will take a look at the exhibits and rule later. 12

This type of itemization and entry into evidence was used on everything from pictures of the victims and ammunition and shell casings, to the beads Jonathan Jackson wore around his neck and the checks Davis wrote.

.At several points in the trial a special period of time would be set for the admitting of items of evidence.

In this way, by itemizing physical evidence as he had done with witness testimony, Harris established thorough factual data on which to 153

base Inferences, and created an Impression of a preponderance of evidence

In support of the prosecution.

The third category of Itemization Is directly relevant to infer­

ences the prosecution wanted drawn by the jury. This is a particularly

Important category because of the nature of the case. Conspiracy is

difficult to prove directly in any situation. In Davis’ case, however, with all but one alleged co-conspirator dead, inference was the only way

to convict her. In order to reach the conclusion desired it was often

necessary to establish a line of evidence based on the data Harris had

uncovered. Hopefully the jury weald follow the thorough accurate itemized

data to what Harris perceived as the inevitable conclusion. To this end

he drew the inferences for the jury, itemizing each step along the way.

For example, it was necessary to establish that Jonathan Jackson and

Angela Davis spent so much time together, and at places so relevant to

the August 7 escape, that the jury had to conclude they were conspiring

together to commit the crimes of kidnap, murder, escape, and rescue. In

order to do that Harris gathered the itemized data of Davis' whereabouts

and organized it into chronological order, reitemizing important points.

He traced her association with Jonathan Jackson from May, 1970, through

two letters written June 2 and 22, and on into July 14, 15, 17, 25, 29,

30 and 31. As he progressed witnesses were named and physical evidence mentioned. Finally, details of August 3-6 were recalled. In this way a

lengthy thorough line of association was established leading to the

inference that Davis certainly had the opportunity to conspire with

Jackson.^ 154

Establishing an association between Davis and Jackson was

Insufficient, however, even If Harris could prove the two conspired. His

theory said the plan Included the aid of McClain. Jackson never visited

McClain, however, and neither had Davis. The only Inmate Jackson spoke

to was his brother, George. Harris had to establish a line of associa­

tion, therefore, somehow linking Davis with McClain. He did this by

Itemizing contacts between alleged co-consplrators. Davis associated

with Jonathan Jackson. Jonathan visited George Jackson, who occupied

a San Quentin cell near McClain. The Prosecutor explained:

If you are convinced that James McClain knew what was going to happen, how did he know what was going to happen in that courtroom? Hell, where did he live? He lived In the Adjustment Center at San Quentin. As I recall, it was 1AC8, and who was in 1AC4, and we went over that pretty fast because we had a lady here from San Quentin with a group of records, but it is in the transcript. George Jackson. . . . George Jackson was In that Adjustment Center. James McClain everyday, during that week that started on Monday when the trial started in San Rafael, went from the Adjustment Center to the court­ house In the morning, and we had the officers here who were involved In that. In the afternoon he came back. Jonathan Jackson every, at least he tried on the 4th, I think he visited on the 3rd as well. We have the gate records. They show whether Jonathan visited. I think It will show he visited on the Monday when that trial started. He tried to visit Tuesday. He visited Wednesday, and he visited Thursday, and the next morning he stood up in the Marin County court­ room. There is no evidence that Jonathan Jackson ever visited James McClain. In fact, I think the evidence is that he did not, but he did visit George Jackson just about every day that week, and James McClain came back to that Adjustment Center every night, and after that shotgun was purchased on Wednesday, James McClain came back to the Adjustment Center and, in fact, the day before the kidnaping, he came back to the Adjustment Center, and who had been there that day? Jonathan Jackson, and who had Jonathan Jackson talked to in that prison? We.know who he talked to; only one person he talked to. It was a prison. That was George Jackson. Now, if James McClain knew what was going to happen that Friday morning, then he knew it from George Jackson.^

Again, step by step, Harris itemized the links in his chain of evidence

leading to the desired inference. Given the circumstantial nature of the 155

case this Itemization of data to a hopefully compelling conclusion was

important to the prosecution.

In conclusion, we have examined the second prosecution strategy,

Itemization. This is the listing of individual elements in a collection without emphasis of any single element. The purposes are thoroughness

and accuracy in the presentation, and to give the impression that an

abundance of evidence supports your conclusion. Harris used itemization

in examination of witnesses, extracting specific details from them.

Later, the witnesses were used as items in his Inferences to add impact

to his point.

Additionally, Harris itemized physical evidence, making it

available for later reference. Finally, regarding the drawing of

inferences, the prosecutor itemized the data, both witnesses and physical

evidence, necessary to reach his desired conclusions.

Refutation

Refutation is "the process of attacking the arguments of an

opponent in order to weaken or destroy those arguments."^ An argument

can be attacked directly, or by way of attacking the witnesses or physical

evidence which support it. Albert Harris used refutation in three ways.

He attacked directly the defense's competing theory. He refuted the

defense's attack on prosecution witnesses. Finally, he attacked the

credibility of defense witnesses. Let us examine each of these

individually.

The prosecutor's first refutations were directed at the alter­ native theories offered by the defense to account for the behavior the prosecution said was incriminating. Recall from the delineation of 156 forensic issues Chat most of the argument was In the stasis of fact. In other words, the defense either denied prosecution data or accounted for it in another way. This meant there was much the prosecution had to refute in order to reestablish its case.

One example involves the prosecution theory that there was a plan for August 7, and that its purpose was freedom for the Soledad

Brothers. Harris obtained testimony that during the escape the convicts demanded "Free the Soledad Brothers." The defense offered the alter­ native theory .that that was not a demand, but a slogan. Kenneth Irving, an Inspector with the Marin County Sheriff's Department who had testified to hearing the demand, later admitted to Howard Moore, Jr. that when he heard it it seemed to him "an idle exclamation or shout or yell" that wasn't directed at anyone and that was not unlike what he had heard at a

San Francisco demonstration.^ Thus the defense established the possi­ bility that this had been nothing more than a rallying slogan.

In response to the defense theory Harris again questioned Irving, this time establishing that the rest of the alleged statement, "You have until noon to release the Soledad Brothers," was not part of what he had heard at demonstrations, and that he had never heard it while a gun 17 was pointed at him. In this way the prosecutor refuted the defense's slogan theory directly.

The same attempt was made by the defense to discredit the testi­ mony of James Kean, the photographer who took pictures of the escape.

Brantoh's efforts to have Kean admit the facts suggested a slogan more than a demand were unsuccessful, and Kean remained adamant in hiB 18 testimony. This certainty of the witness was part of Harris' 157

refutation. In his closing argument he reminded the jury of Kean's

testimony, Branton's efforts, and Kean's stability. Again, he added to

refutation of defense theory.

Direct denial was only one form refutation took. In many cases

Harris had to refute the defense's attack on prosecution witnesses in

order to reestablish his own theory. In fact, since attacking the

credibility of Harris' witnesses was one of the major components of

defense strategy, the prosecutor was forced to do a great deal of refu­

tation of those attacks. Alden Fleming, for example, was an Important witness because he identified Angela Davis as the woman with Jonathan

Jackson in Fleming's gas station on August 6, 1970. This was a crucial

link in proving Davis knew of the plan, and that she was using the alias

of Diane Robinson. One of the defense attacks on the witness claimed

that a series of Identification photographs shown Fleming were highly

biased so he could not help but select the Davis picture.

Q [Branton] In the spread of photographs that were demonstrated to you, would you say that, if you were given 9 photographs and 4 of them are of Angela Davis, and under the circumstances of how you throw the other people out, that the method of giving that to you suggested to you who Angela Davis was in the photograph A [Fleming] I can’t see how any other way it would be.l®

Harris refuted the attack on his theory by reestablishing his witness. Under the prosecutor's questioning Fleming explained he had

identified Davis on his own from a newspaper picture and had reported it before any group of photographs had been shown to him.

Q [Harris] Now, Mr. Fleming, when were you shown those photo­ graphs, the last group that Mr. Branton has been referring to? A [Fleming] I think he said on the 17th. Q On the 17th. Is that before or after you had seen a photo­ graph In the newspapers which we have mentioned over and over here this morning? A After I had seen the photograph in the newspapers. 158

Q And after you had called the Sheriff's Office? A Yes. Q And after you had in fact Identified the woman you had seen as Angela Davis. Isn't that right? A Yes. Q And then, on the 17th you were shown the pictures that Mr. Branton has asked you about which bear the Defendant's number is that correct? A Yes. Q And you had, by the time you saw those pictures, already communi­ cated in effect your identification of the woman at the service station. Isn't that right? A Yes. Q You had communicated that to the Sheriff's Office? A Yes. Q So, did seeing the pictures that Mr. Foster presented to you and that have been described in such detail, this morning, have anything to do with your identification made in the Sheriff's Office prior to that time? A N o . 20

With this line of questioning Harris was able to reestablish some of the witness' credibility and remove a part of the onus from the prosecutor's office for using allegedly biased picture spreads.

Gary Thomas, an Important witness to the events of August 7, came under considerable attack from the defense. One problem was that

In an earlier written statement he had said the escapees had stopped their walk to the elevators while McClain and Haley went to the holding cell to try to release Willie Christmas. Thomas had initially claimed, however, that Christmas was already present in Haley's courtroom for a time prior to heading to the elevators. This inconsistency Harris resolved:

Q [Harris] You were asked, Mr. Thomas, about a statement that you made in the presence of Mr. Bales and some other local officials the day after the events you've described here? A [Thomas] Yes. Q Do you recall that? And then you testified before the Grand Jury on two occasions? A That's correct. 159

Q And Mr. Branton read to you, I think, some extracts from all three of those items relating to a conversation with these persons in connection with going back to getting Willie Christmas? A Yes. . Q Do you recall that Mr. Branton read some things to you? A Yes, I do. Q And then I think you had testified earlier that Mr. Christmas was in the courtroom before your party left the courtroom; is that right? A Yes. Q . . . Can you explain this discrepancy? A I've read those statements, thought about what happened that day as best I can. The more I thought about that day, the more I knew that the person who was later— that I knew to be Christmas was in the courtroom, that they said that they were going to go back to get Willie. And why I added the name "Christmas," I can't say. Q Now, what is your best recollection right now of what was said before leaving the corridor area about going to get someone? A Going back to get Willie. Q Did you know Christmas before— *based upon all of your exper­ ience— before he appeared in the courtroom that day? A He had been tried by another member of our office— prosecuted at least a year before. I had heard the name before, before that day and before that trial. But I had not ever seen him. Q Well, you hadn't seen the man before that day; is that right? A No. Q Do you know of your own knowledge whether there was another person named Willie awaiting to be called as a witness? A There was a Willie Reddicks. Q Do you know where he was at the time that— oh, during the time that you were in the courtroom and then in the corridor and then going out to the van? A I knew he was in the Hall of Justice area. He was scheduled to be called. He was scheduled for that day to testify and had been scheduled from the day before.^

By obtaining testimony of the existence and close proximity of a second man named Willie, and of Thomas' familiarity with the name Christmas,

Harris was able to reduce the impact of the apparent inconsistency, and was able also to reestablish his witness, and that part of this theory to which the witness' testimony was Important.

The third and final form prosecution refutation took was to attack defense witnesses. Harris suggested defense bias outright and by implication. One of the most important witnesses was Robert H. 160

Buckhout, an Associate Professor of Psychology, who testified at some length about the factors that interfere with accuracy of eyewitness testimony. He called into serious question almost all of Harris' important witnesses. During questioning Harris pointed out that when

Buckhout testified as an expert on eyewitness identification at an earlier trial he had emphasized different factors than he had selected for the Davis defense.

Q [Harris] . . . Doctor, . . . isn't it a fact that the reason you emphasized stress, up in Alameda County, was because it was helpful in the defense in that case? A [Buckhout] It was pertinent to the case and I was being asked those factors. Q And of course that factor is not helpful in this case? A I think that is a conclusion perhaps you might draw about this, but there is a limitation to some extent on time and a number of these factors can affect it. There are other factors besides those categories that I could have listed as well, but I tried to narrow it down somewhat. I don't think I really succeeded in narrowing it by any stretch of the imagination. Q Well you know, Doctor, because you have read the testimony of many of the witnesses in this case— A Yes. Q — that the eyewitnesses by in large were not in a situation involving stress. Isn't that true? A Yes. Q Some of them worked at San Quentin in their normal jobs? A Yes. Q Some of them worked at a service station. Isn't that right? A Yes. Q This is the normal place they work. They were subject to no stress? . . . Q Well, I suppose the thing that bothers me, Doctor, is that I get the impression you have listed and shown pictures of things that show unreliability, but you haven't brought out anything that shows reliability, and there are such factors present in this case. Isn't that true? A I— there are some factors that could be construed, I am sure, as indicating that the person might be or might not be reliable. All I was trying to do, in listing those things, are the possibili­ ties, the sources of unreliability. Q Were you trying to raise a reasonable doubt? A Was I trying to raise a reasonable doubt? No, sir. I was simply asked to present what research has to offer in the way of these factors.22 160

Buckhout, an Associate Professor of Psychology, who testified at some length about the factors that Interfere with accuracy of eyewitness testimony. He called Into serious question almost all of Harris' important witnesses. During questioning Harris pointed out that when

Buckhout testified as an expert on eyewitness identification at an earlier trial he had emphasized different factors than he had selected for the Davis defense.

Q [Harris] . . . Doctor, . . . isn't it a fact that the reason you emphasized stress, up in Alameda County, was because it was helpful in the defense in that case? A [Buckhout] It was pertinent to the case and I was being asked those factors. Q And of course that factor is not helpful in this case? A I think that is a conclusion perhaps you might draw about this, but there is a limitation to some extent on time and a number of these factors can affect it. There are other factors besides those categories that I could have listed as well, but I tried to narrow it down somewhat. 1 don't think I really succeeded in narrowing it by any stretch of the imagination. Q Well you know, Doctor, because you have read the testimony of many of the witnesses in this case— A Yes. Q — that the eyewitnesses by in large were not in a situation involving stress. Isn't that true? A Yes. Q Some of them worked at San Quentin in their normal jobs? A Yes. Q Some of them worked at a service station. Isn't that right? A Yes. Q This is the normal place they work. They were subject to no stress? . . . Q Well, I suppose the thing that bothers me, Doctor, is that I get the impression you have listed and shown pictures of things that show unreliability, but you haven't brought out anything that shows reliability, and there are such factors present in this case. Isn't that true? A I— there are some factors that could be construed, I am sure, as Indicating that the person might be or might not be reliable. All I was trying to do, in listing those things, are the possibili­ ties, the sources of unreliability. Q Were you trying to raise a reasonable doubt? A Was I trying to raise a reasonable doubt? No, sir. I was simply asked to present what research has to offer in the way of these factors.^2 161

In this case the prosecutor vas suggesting outright deliberate witness

bias.

The bias and untrustworthiness of other witnesses was suggested

implicitly by Harris by uncovering their communist affiliation. Juanita

Wheeler, who worked for People’s World, and the newspaper's editor,

Carl Bloice, both testified for the defense as to the whereabouts of

Angela Davis during the week of August 3. Harris implied Wheeler's bias with this line of questioning:

Q [Harris] And is the People's World a— have any connection with the Communist Party of the United States? A [Wheeler] It's supported by the Communist Party. Q. It's supported by the Communist Party? A Yes. Q Is it supported financially by the Communist Party? A They help to support it, yes. Q And you have been employed by that group for 21 years? A I have. Q All right. Now, you followed this case rather closely; haven't you? A Yes. Q And you have been active in the defense of Angela Davis? A As much as my health would allow me, y e s . 23

Bloice's association later came under similar questioning:

Q [Harris] Do you work for someone? Is there a publisher at the People's World Corporation or something like that? A [Bloice] The paper is published by the Pacific Publishing Foundation. Q Is that a corporation? A Yes. Q Are you an officer in that corporation? A Yes. I am the secretary-treasurer. Q And is the People's World supported by the Communist Party of the United States? A Generally. Q Receives financial support from that party, does it? A No. Our funds are all raised directly from supporters and readers. Q Well, how is it supported by the Communist Party of the United States? A They helped to build it and helped to raise the money. Q And you are a member of the Communist Party, Mr. Bloice? 162

A Yes, I am. Q You know that Miss Davis Is a member of the Communist Party, didn't you? A Yes, I do. Q And you have known that for some time, haven't you? A Yes. . . . Q Now, you visited Miss Davis at the Marin County Jail when she was in custody. . . . Isn't that correct? . . . A I believe so.24

Having established the close interrelationships between personnel, the

Communist Party, the Committee to Free Angela Davis, and defense witnesses,

Harris later was able, by innuendo, to suggest a deliberate failure by witnesses to tell the truth. Buckhout, in discussing perception and how it is affected by group pressure, had recounted the experiments where subjects were asked to identify which of several lines was longer.

With the exception of one subject, all were instructed to identify the lines incorrectly. When the innocent subject heard all the other people give the wrong answer, he conformed to what he knew to be inaccurate, and gave the same wrong answer* Harris engaged Buckhout in the follow­ ing exchange to establish that defense witnesses may have been influenced by similar group pressure.

Q [Harris] And wouldn't you say, Doctor, that the people who said that shorter line was the longer line were not making a mis­ take. They were just plain not telling the truth. Isn't that right? A [Buckhout] If they were in court, that is what they would be so judged, if we knew the truth, that is, if there was an independent judgment of what the actual facts were. In a research experiment we do this by a control group. The people were free of conformity pressure and, under the circumstances, the individuals had no trouble making the discrimination and no trouble telling us about it and almost no errors whatsoever. This is the only basis we can make a comparison. Q You mean you couldn't look— excuse me. You couldn't look at that chart and say one line was longer than the other without running any tests or doing anything else? A If we are to establish the conformity pressure produces the . tendency for people to lie, if you will, to tell some other fact than what is on their senses, then we have to establish that the normal person without conformity pressure would report reliably. 163

Q Wouldn't an honest person, looking at that diagram with one line longer than the other one, tell you which was the longest line? A If he were tested independently, yes. Q Well, couldn't the pressure to conform with a small group of people who are committed to a cause bring about a decision to testify and.perhaps to testify untruthfully?^

While this last question brought an objection from Moore which was sus­ tained by Arnason, Harris' point had been made, and a large group of defense witnesses had been collectively attacked regarding their credi­ bility.

Defense witnesses were subject to attack on three additional bases. First, some were questioned on their failure to initiate contact with authorities even after they knew the information they had was wanted. Second, they were asked about their failure to make earlier written reports which could have served to verify their two year old testimony. This was a practice followed by all police and on-the-scene witnesses and later government witnesses. Finally, they were challenged for their failure to be able to name witnesses other than themselves to corroborate their testimony. An important defense witness was Susan

Castro who claimed to have had lunch with Angela Davis on August 5, thus undermining the prosecution theory that Davis, as Diane Robinson, was at San Quentin with Jonathan Jackson. Harris Indicated Castro was biased and uncooperative, and had no corroborating testimony to support her.

But I am struck by a few things, that there was no corroboration that I could detect. Apart from three witnesses who identified Angela Davis at San Quentin and one who give [sic] a description that is quite close, there is no corroboration of Susan Castro. I tried to find out who else was present when Miss Davis was there. I couldn't get an identification of anybody— the regular group around Soledad House. 164

Miss Castro had been active in the Angela Davis Defense Fund. And I think she indicated that she had been a friend, or at least, an acquaintance of Angela Davis. She was interviewed by the FBI. She refused to open the door, and she said she may have told the agents that she didn't know where Angela Davis was, and this was after the warrant was out. But if she knew, she wouldn't tell them. You are going to have to resolve, I think the question of Susan Castro's testimony and the testimony of the four witnesses, as I see it, at San Quentin. . . . Now, there is the evidence of the lunch on the 5th. So I think you have to take into account in determining whether Mrs. Lucas, Officer Ayers, Lieutenant West, and Officer Twells are mistaken or are perjuring themselves or whatever— that testimony of Susan Castro. I think you ought to take some things into account in connection with Miss Castro. She worked on the Soledad Brothers' Defense Committee after she was contacted by Fay Stender, and that's the wife of Marvin Stender, a witness I will get to in a moment. She was, at one time, the Bay Afea coordinator. She had known Franklin Alexander for many years. She had met Miss Davis in Los Angeles. She gave a speech at a Free Angela Rally in Oakland on October the 24th, 1971. Now that is some time after this case commenced. She had written articles for The People's World. She had known Juanita Wheeler for 10 years, Carl Bloise for 12 years. She had been active in the Angela Davis Defense. She had never made any prior written or recorded statement of her testimony and, when she was interviewed by the F.B.I. agent she may have told them, if she did know where Angela Davis was, she wouldn't tell them. It is her testimony standing alone on August the 5th. That is it. No corroboration, no record, no nothing.*®

By undermining the defense's witness in this fashion, Harris refuted the

defense's alternative theory.

In examining the strategy of refutation, we have seen how the prosecution attacked opposing arguments directly and Indirectly. Direct refutation was factual denial of the defense theory. Indirect refutation

involved reestablishing prosecution witnesses after defense attacks on

their credibility, and attacking defense witnesses based on their biases, uncooperativeness, and lack of corroboration.

In summary, we have identified three strategies employed by the prosecution to persuade the jury to find Angela Davis guilty. They are focus, itemization, and refutation. 165

Focus Is the emphasis of selected elements of the case for purposes of convincing the audience that they are the most important elements and should be the basis for decision. We found Albert Harris successfully focused on the third count of conspiracy. His attempt to focus the development of his case on the four elements of circumstantial evidence was changed in language and number by the end of the trial, however. The final five part focus on plan, foreknowledge, assistance, consciousness of guilt, and motive contained his initial four elements, but was altered by the defense focus. This reorganization by the defense may have placed the prosecution at a disadvantage.

Itemization is the listing of individual elements in a collection without emphasis on any single element. Its purposes are thoroughness and accuracy, and to give the Impression that an abundance of evidence supports your conclusion. The prosecutor used itemization in question­ ing of witnesses, and later itemized witnesses in drawing his Inferences.

Physical evidence was listed for later reference. In drawing his inferences, Harris itemized both witnesses and physical evidence to add impact to his conclusions.

Refutation, as we have seen, is the attacking of opponents argu­ ments for purposes of weakening them. The prosecutor attacked the defense theory directly and indirectly. Direct refutation was factual denial of the defense's theory. Indirect attack Involved reestablishing the credibility of prosecution witnesses, and undermining the credibility of defense witnesses.

Using primarily these three strategies, the prosecutor, Albert W.

Harris, Jr., tried to persuade the jury of the guilt of Angela Y. Davis. Defense

The defense wanted to establish that although Angela Davis owned the guns used In the escape attempt, Jonathan Jackson had taken them without her knowledge. She did not know of any escape plan, if one indeed existed. She did not help promote any alleged plan. In their efforts to prove Angela Davis not guilty of kidnap, murder, or conspiracy the defense team used three strategies: focus, suppression, and refu­ tation.

Focu^

Focus, as we defined it earlier, is the emphasis of selected elements of the case for purposes of convincing the audience that they are the most important elements and should be the basis for decision.

The selected elements are the major points In the advocate's organization

The prosecution chose to focus on the conspiracy count, and the defense accepted that choice. The prosecution also set out a four point organization built upon the four elements of a circumstantial case.

This time, however, the defense did not agree. While Harris talked about motive, means, opportunity, and consciousness of guilt, Davis herself set up an alternative organization which included these elements, but in the context of three simple questions whose relevance to the conspiracy count was clear. The defense charged the prosecution with the burden of proving their answers to the questions of: Was there a plan? Did

Angela Davis have foreknowledge of the plan? Did she deliberately pro­ mote the plan? Early in her opening statement Davis said: 167

. . . there are basically three things which must be proved in order to establish my guilt. First of all, the Prosecution must prove beyond a reasonable doubt that there was a plan which pre­ dated the events of August 7. Secondly, he must prove beyond a reasonable doubt that I had foreknowledge of a plan which predated the events of August 7. Third, he must prove beyond a reasonable doubt that I took steps to deliberately promote the execution of that plan.28

Furthermore, the defense believed that however the first question was answered, the crucial questions were the second two. That was where the connection had to be made between the events of August 7, 1970 and

Angela Davis. In fact, Davis went so far as to say she and her attorneys may refrain even from arguing any issues not relevant to foreknowledge and Intent.

We dispute the accuracy of the prosecution's version of what happened on August 7th. But in the case at hand, many of these differences are of no real moment. They are not so important in this case because, as I said before, if the prosecutor is to prove anything at all, he must prove that I had kriowledge of the events and that I had the intent to promote them. Because of the fact that those are the two critical issues in the case, we may often refrain from engaging the prosecutor in controversy where our differences do not relate to those two ques­ tions, to the only real questions in this case: The knowledge and intent.29

The defense did argue the existence of a plan, as we saw in our identification of forensic issues. In fact, one of their own witnesses,

Fleeta Drumgo, a Soledad Brother, testified on the question, saying he 30 knew of no plan* For the most part, however, they directed themselves to the questions of knowledge and intent, as Davis said they would. Of the twelve witnesses put on the stand by the defense, one-third addressed themselves specifically to Davis' whereabouts immediately prior to and on

August 7. Since it was this time period on which Harris was relying heavily to establish the defendant's knowledge of the plan, it was con­ sistent with defense focus to devote so many witnesses to the issue. 168

This persistence In sticking to their focus resulted in the prosecutor ultimately accepting, the three questions. Recalling Davis' opening statement, Harris said: "I am prepared to accept that statement of what 31 the issues are that the conspiracy count turns on.11 While he did not abandon all of his four elements, he did reorganize on the basis of the defense. As we observed in our discussion of the prosecution's use of focus, this reorganization may have given the defense the advantage.

They used fewer major points and stated them more directly, thus enhancing clarity and making it possible to relate all evidence to their three questions.

In conclusion, the focus initiated by the defense was on the elxstence of a plan, Davis' foreknowledge of it, and her conscious willingness to advance it. Their organization of the issues in the conspiracy count dominated the trial and ultimately was adopted by the prosecution.

Suppression

Suppression is the prevention or limitation of the disclosure of evidence. It is designed to limit unfavorable or prejudicial evidence which might be illegal or might bias the jury out of proportion to the probative worth of that evidence. The defense engaged in two types of suppression, direct, and indirect by use of stipulations.

One of the objects of Moore's efforts at direct suppression was witness testimony. On one occasion Moore successfully kept one witness from taking the stand. In other cases the defense suppressed parts of testimonies already made. 169

The major effort at witness suppression was aimed toward Lieu­ tenant Sellmer. He was the San Quentin guard on duty at the time the

Judge ordered Angela Davis and George Jackson and their respective attorneys be allowed to meet. This meeting took place at San Quentin and was observed though not listened to by Sellmer, despite the attorneys' claim that he should not be present at all. Sellmer allegedly witnessed significant physical demonstrations of affection between Davis and

Jackson. Since Harris' theory was that Davis' motive was passion for

George Jackson, he wanted Sellmer's testimony. Branton spoke to the question, asking that Sellmer's testimony be deemed inadmlssable on three bases. First, he claimed Sellmer's presence was a violation of the right of privacy connected with the attorney-client privilege.

Second, he said the testimony would be irrelevant since the meeting took place in July, 1971, nearly a year after the August 7 events, and, therefore could not be related to her pre-August 7 motives. Finally,

Branton objected to Sellmer's testimony as prejudicial. He explained that Harris had not yet proven the existence of a conspiracy. Since no crime was proven, admission of motive was not allowable. Such a pre­ sentation would prejudice the jury in favor of drawing the inference that a crime had been committed. Judge Arnason accepted the rationale 32 of the first argument and Sellmer's appearance was suppressed.

Other testimony that was subjected to defense efforts at suppression included that of Robert West, also a Correctional Lieutenant at San Quentin. He identified Angela Davis as having been with Jonathan

Jackson. Moore claimed the photographic identification procedures used were prejudicial, however, and moved the testimony be struck and the 33 jury ordered to disregard it. 170

Duane Lawson testified she sold .38 caliber ammunition to Angela

Davis. She recalled the sale after reviewing her records. A courtroom perusal of those records, however, showed no such information, and 3 i Branton moved Lawson's testimony be struck.

A major effort was made by Harris to obtain testimony from

John Thome, the former attorney of George Jackson. Harris claimed

Thorne received a phone call from Angela Davis the evening of August 5, and that Thorne had been supocnaed into the Attorney General's office

September 29, 1970, where, In the presence of his two attorneys and a friend, he had talked about that phone call. Thorne, however, later changed his recollection of the date of that call, and refused to testify for the prosecution, citing the attorney-client privilege between

George Jackson and himself, and Angela Davis and himself. After three days and nearly 200 pages of verbal exchange between Thorne and his attorney, the prosecutor, and Davis and her attorneys about the phone call, the earlier statement, and the state of particular attorney-client relationships and privileges, the result was virtually a suppression 35 of Thorne's testimony.

Physical evidence as well as witness testimony was subjected to suppression efforts. In particular, three letters and an eighteen page letter-diary were hotly argued. Harris' primary intent was to use these written documents to substantiate his motive theory. Their existence and content showed a strong attachment of Angela Davis to George Jackson and lent credence to the prosecution claim that Davis was motivated by passion. 171

Two of the letters, dated June 2, 1970 (People's Exhibit ft 120) and June 10, 1970 (People's Exhibit #121) were found In Davis' apartment when It was searched by the FBI. The third letter, dated June 22, 1970

(People's Exhibit #125) was removed from a letter from John Throne to his client George Jackson. All three letters were from Davis to Jackson.

Exhibits #120 and #121 were photocopies of letters for which the originals were never produced. Exhibit #125 was the original and had been removed by authorities at San Quentin because Angela Davis was not on Jackson's authorized mall list. In all three cases the prosecutor wanted to use the letter to help prove the motive. * The defense wanted the letters suppressed. Their initial effort was made at the time the first two letters were discussed in testimony by James McCord, the FBI agent who searched the Davis apartment and found #120 and #121. Doris Walker argued for suppression. She said not only were these letters photocopies, but they were found during an unlaw­ ful entry and search. McCord had no warrant with him, and even if he had a warrant it would have been relevant to arresting Davis for crossing state lines to avoid prosecution. Since the apartment search was in

Los Angeles, California, it was ridiculous to look for Davis there, to charge her for leaving the state. Finally, Walker claimed the letters were not related to the basis for the warrant, unlawful flight. She asked, additionally, that the letters be returned. Branton later argued that #120 and #121 violated the best evidence rule since they were photocopies. He then claimed #120, #121, and #125 violated the rule against hearsay evidence, and that they were irrelevant "Insofar as they go to any state of mind or intent or motivation which has any bearing

% 172

upon the crime." Finally, he said the letters would have a more pre­

judicial than probative value, especially since they contained discussion

on several matters with no bearing on the case. Rebuttal and heated

discussion ensued from both sides. The Judge's final decision, however, 36 was to allow Exhibits #120, #121, and #125 to be introduced. Defense

suppression efforts had failed regarding the letters.

The eighteen page letter-diary was more successfully challenged,

however. The document consisted of eighteen typed yellow sheets of <

paper. Some of the sections were preceded by dates. Numerous topics were discussed. Although written by Angela Davis, it was found among

the possessions of George Jackson after his death in 1971. The prose­

cution persisted in referring to it as a letter. The defense called it

a diary. Harris initially introduced it with the Sellmer testimony

and the three June letters. The entire collection was to be used to establish motive. This single eighteen page document was subjected to more heated argumentation than any other single piece of evidence.

Branton's first and primary objection was that the document had not been authenticated.

In the first place, it is addressed to no one. It is not a letter. It starts off with a date. And it starts off with the writer of the document writing down their feelings as of that day. Then it goes to another date and another and another. I haven't counted the number of dates. But there are several days, perhaps as many as eight, nine, or ten, which comprise the 18-page document, one date right after another. This document covers a wide range of subjects from expressions of warmth and expression to recitations about childhood, to polit­ ical discussions concerning various matters ranging in subjects probably as broad as any philosophical discussion probably could. And it is signed by no one. So one must, before they can introduce this document in evi­ dence against Miss Davis, prove that Miss Davis was the author of the document. There is no evidence in this record which can prove that Miss Davis was the author of that document.3? 173

Efforts had been made to authenticate the document. The prose­ cution obtained Davis' typewriter and took a sample of Its print. That sample was compared Co the letter-diary. It was sufficiently similar to prove Davis' typewriter was used to produce the document. The Court suppressed that exemplar and related testimony, however.

A fingerprint from Angela Davis was found on the second page, but the defense pointed out there was no way to determine if It was put there before or after the document was typed.

These and other arguments against self-authentication were 38 raised by the defense in an effort, to suppress the letter-diary.

Branton's second argument involved the establishment of Davis' property rights. The defense had been calling the document a diary, and developed their argument around its being a "literary effort" of

Davis', and therefore subject to property rights. Even if it was a letter, they said, it would still belong to Davis as the copyright owner.

If the Court reaches the point that the document has been properly authenticated, then in reaching the point that it has already properly been authenticated, that authentication carries with it the inference that it is the literary effort of Miss Davis. If, in fact, it is the literary effort of Miss Davis, then, indeed, she did have a property right to be protected from unreasonable search and seizure because this is not a literary piece. It is a diary. And, even if it were a letter, it is Horn Book Law which I feel is unnecessary of any citation, that the general rule is that the writer of a diary or the writer of a letter is the copy­ right owner of that document. . . .

If Branton could convince Amason of Davis' property rights then the document could be claimed to have been obtained in an illegal search and 39 seizure. This would be a basis for suppression.

Third, Branton argued the document was irrelevant since it had been written after the conspiracy and could not signify Davis' motivation 40 or Intent before August 7. 174

Finally, it was argued the document was more prejudicial than probative, especially since it contained comments on subjects other than

Davis' feelings for Jackson. Branton accused the prosecution, saying:

I suggest to your Honor that the purpose of Introducing this letter or this diary, this chronicling of the most intimate thoughts of my client, is not that it has any probative value in connection with the motivation or the Intent of Angela Davis, but because of the very reason why it should be kept out, and that is so that it can prejudice this jury by a lot of irrelevant and immaterial things that have nothing to do with this case which might cause them to be able to conclude that, well, anyone who writes like that, who writes revolutionary thoughts like that, must be the kind of person that would do the kind of thing the Prosecution says she is guilty of doing. 1

He then developed an explanation of how the same words are subject to different interpretation, some possibly prejudicial.

On these bases the prosecution moved for suppression of the eighteen page document.

In this case the prosecution fought more strongly than it had in the case of the Sellmer testimony. Harris answered the question of authen­ tication by relying on the content of the document, and claiming it authenticated itself. He argued briefly the question of property rights, claiming Davis gave them up when she sent the eighteen pages to San Quentin.

Further, he established the legality and reasonableness of the search of

Jackson's cell. Finally, he argued at length the issue of relevancy, 42 claiming the jury should be allowed to make the determination.

At the time Judge Arnason suppressed the Sellmer testimony and allowed Exhibits #120, #121, and #125, he made a compromise decision on

Exhibit #126, the letter-diary. He explained he was satisfied regarding authenticity, but agreed the pages contained much that was not relevant to the trial. He sustained the defense's objection, therefore, but without prejudice to the prosecution. In other words, Harris could introduce it again if he edited it first. Aranson explained: 175

. , . full reading of Che document abundantly establishes that It contains much that Is totally Irrelevant to the Issues before this Court and jury. It would appear to be a Hercules task to excise the Inadmissible and irrelevant material so as to leave only legally relevant and admissible evidence, a task which the Court notes has not as yet been undertaken by either the People or the Defendant. Additionally, if that task were in fact accomplished, the Court would reserve to itself the further task of determining whether the excised material would leave the remaining material in such a condition that it would be of benefit to the jury. The Court is equally satisfied that, if the entire document were allowed to be received in evidence, it would entail undue consumption of time and create substantial danger of undue prejudice and tend to confuse the issues and possibly mis­ lead the jury. The objection to People's 126 in its present form is sustained without prejudice to the People again proffering the document properly edited so as to exclude all legally Inadmissible material. ^

In a later meeting at which Exhibit #126 was the only topic, Harris

said the editing required help from the defense in determining that which

they considered prejudicial. The defense was adamant in their demand for

suppression and in the unacceptability of even an edited document, however.

In a portion of the transcript the Judge originally had ordered sealed,

Branton said, "Based upon the record, as it now stands, we will take no part in attempting to aid Mr. Harris in excising or editing any part of that

letter so that it can get in evidence because we believe that the entire

letter is inadmissible, as has been ruled by the Court at this time."^

Furthermore, the defense was unreceptive to any suggestion for a contin­ uance or even a brief delay to allow Harris time to edit.

Harris was willing to do the editing himself, claiming the document was extremely Important. He explained, "We consider this an extremely

Important part of our case. So very frankly, I think our case is somewhat

in jeopardy right at the moment in light of the failure of the proof to conform to what I said the proof would be."^

Harris' claim of importance was based on three reasons. First, alnce it was a private document, it was sincere and therefore particularly 176 revealing of Davis' true feelings. Second, Exhibit 47126 had been the primary reason the prosecution had changed their view of the case from a motivation to free the Soledad Brothers to a motivation to free George

Jackson particularly. Finally, since the document covered so many topics and was so sincere, Harris found it revealing that at no point did Davis claim innocence.

There is not one word in here. I don't think— the defense might dispute it— but there is not one word in here in which she even . suggests that she is innocent, that there is a frame-up, that she's being railroaded. There is not one suggestion of what the corner­ stone is of the defense in this case. . . . He feel that this is of such critical importance in the trial of this case because the defense has been claiming for a year and a half that this is a railroad, it's a frameup and so forth. Hell, if there was one sentence in this document, because it is a personal and private and sincere document, if there were any place in here where there was a statement that, you know, "I didn't want Jon to do what he did" or, you know, that "I had nothing to do with that" or "This is a terrible frameup"— I think this case would never have gone this far.^6

Branton took note of the prosecutor's evaluation of the importance of the letter-diary, and attacked Harris' personal decision making.

. . . Mr. Harris' remarks are very revealing. For a prosecutor to admit that he kept a defendant in jail on a serious charge such as murder for a period of almost a year and had no case against her and did not discover the evidence which was going to make his case against her until August of 1971 after she— more than one year after the crime was committed and more than ten months after she was in custody, to me, is a callous and shocking display of unconcern for the rights of human beings. And for him to say here that he can't proceed with this case and his whole case is in jeopardy because he cannot get into evidence a letter such as Exhibit 126 is a shocking kind of condemnation of misconduct on the part of the Attorney General's Office. ^

After considerable argument the defense was still fighting for suppression of the entire document. Meanwhile, the prosecution agreed to edit the Exhibit on their own. 177

Days later Harris reappeared with the edited document. Branton,

however, refused to discuss the Issue. Before leaving the Chambers

conference he said:

I have had occasion to read through People's 126-A for Identi­ fication, and X have had occasion to hear Mr. Harris, In his Informal discussion, explaining why he felt that this edited version of 126 which has already previously been denied admission before the jury, should now be admitted, and I realize that, as lawyers, all lawyers are supposed to cooperate with the court and other counsel In deter­ mining whether or not evidence Is properly admissible. But, speaking for myself, X must say that X cannot participate In this session. I consider this entire session an obscenity. I feel almost like a man who has been forced, at gun point, to watch the rape of his Mother. That is how sickening X think this whole procedure is here in which we are attempting to pry Into the most Intimate, the most personal expressions of another human being because the Prosecution In this case feels that, without doing that, he cannot get a conviction. Xt is obvious that the parts which Mr. Harris wants to keep In this document are totally unrelated in entirety to anything that had to do with Miss Davis' state of mind or her intent, or her motivation prior to August 7th, 1970. Xt Is obvious, for example, that the first three pages that he wants to keep in are written in relation­ ship to a specific event. They are descriptions of how the writer felt about a certain event which had taken place that day or a day earlier and couldn't possibly have any bearing upon what had happened or how she felt a year before. Mr. Harris has talked about all of the things that he has elimi­ nated from 126, and X say that he has also eliminated all honor, all sense of consciousness, and all integrity. There will be other lawyers, your Honor, who may very well argue from a legal standpoint, the inadmissibility of certain parts of this letter, all of it, but X feel myself incapable of doing so because I now know, for the first time, what Martin Luther King meant when he said, "You can't cooperate with evil," and this is evil, and I can't do it.*8

Moore and Walker stayed to continue the argumentation for suppression.

Moore, however, began by saying:

Judge Amason, I would like for the record to indicate that I share Mr. Branton's feelings about what this particular session is about, and I just want to add just one comment. This particular session, it is in a sense the functional equivalent of what is going on in the prison system today, the introduction of psycho-surgery, that is what we are doing or what Mr. Harris would have this Court do is participate in what turns out to be a literary lobotomy. You take out the part of the brain you think that is not helpful to your 178

point of view. In the prison system you take out the part of the brain you feel is detrimental to totalitarianism in the prison system, and you leave in that part of the brain which you feel is compliant or helpful to your cause, and it is precisely the same thing. As Mr. Branton said, it is the rape of a person's thought, and this is the stream of consciousness, and it is apparent, from the face of this letter, that the stream of consciousness stemming from a specific event that is remote in time, far remote in time from anything that he has to prove in this case, and I wanted to add those few words myself, and Mr. Branton has said other lawyers will make legal arguments, but that is all I wanted to say in connection with this particular argument. ^

Walker began her legal argumentation, but the Judge, concerned over

Branton*s absence, called a recess.

When the session reconvened Walker argued that the document "either 50 must be taken as a whole or not at all. ..." Over fifty pages of

transcribed argumentation ensued.

Ultimately Judge Amason took the eighteen page letter-diary himself and did some editing. Harris was finally permitted to Introduce approximately four pages of the document, over the continued objections of the defense.

Direct suppression, which was aimed at both witnesses and physical evidence, was employed strenuously by the defense, with different degrees of success.

Indirect suppression was employed also, using the technique of stipulation. If the prosecutor offered testimony or physical evidence to which the defense felt it could agree without harming its case, it would do so by stipulating that it accepted the truth of the matter. This effectively denied the prosecutor the opportunity to dwell on items possibly harmful to the defense but with which the defense could not or would not argue. Bettlna Aptheker, a member of the National United Committee to

Free Angela Davis and All Political Prisoners, explained the defense purpose 179

As a general defense we resolved to stipulate to that evidence Harris was to present . . . which was true. That Is, rather than have a prosecution witness go on for hours detailing each and every piece of evidence, a defense lawyer would get up and offer to stipu­ late to the truthfulness of the witness' testimony, Harris was then forced to accept the stipulation and excuse his witness; or prolong the agony with no apparent purpose. He lost with the jury either way. Harris' case was entirely circumstantial. Thus, his main strategy was to try to establish a preponderance of evidence against Angela, whether or not the cashing of a check or the purchase of two army cots were particularly significant actions in themselves. Through stipulation we hoped to minimize the effectiveness of this prosecu­ tion strategy. Finally, in stipulating to the truth and objecting only to that which was false, we hoped to establish a credibility with the jury.

Some of the defense's efforts at stipulation were rebuffed. During their efforts to suppress the eighteen page letter-diary Branton said,

". . . the Defense has always been willing and will stipulate now that

Angela Davis had a deep warmth and affection for George Jackson prior to 52 August 7; after August 7; and even today." Had he been successful in getting Harris to accept the stipulation he would have affected the impact of the prosecutor's theorized motive. Harris refused the offer, however.

On other occasions, the defense was more successful. Their offer to stipulate to the qualifications of Sherwood Morrill as a handwriting

' • • ' * 4 I expert, and his testimony that the signature on a check belonged to Davis, were accepted by Harris. Harris also accepted the stipulation to

Mercedes Hornsby's testimony about Angela Davis renting a Los Angeles 53 apartment in July, 1970.

The prosecution intended to put two doctors on the stand to testify to the bodily harm done to Gary Thomas and Ruchell Magee. This clearly had potential for making an impact on the jury that would not favor the defense. Rather than permit a lengthy description of pain and suffering, the defense offered to stipulate. The result was the following announce­ ment from Harris. 180

It*s stipulated between the prosecution and the defense that Bradford Simmons, M.D., If called would testify as follows: That he is a qualified surgeon and practices in Marin County, that Gary Thomas was examined by him at Marin General Hospital at 12:10 p.m. on Friday, August 7, 1970, that he found two entrance wounds in the back of Mr. Thomas on the right side above the scapula or the shoulder blade in area of the fifth and sixth ribs. The lower wound was approximately 1 inch below the upper wound. A bullet had fragmented. A copper jacket was removed from the upper entrance wound and has been marked in this Court as PeopleTs Exhibit 98-A for identification. The slug associated with the copper jacket severed the spinal cord and has never been removed from Mr. Thomas, There were no exit wounds or other slugs or bullets. I think that is the— MR. BRANTON: So stipulated. THE COURT; Mr. Branton, for the record, in addition to stipulating that that would be the testimony of Dr. Simmons if he were so called and sworn and testified, does the Defendant waive her right to be confronted by Dr. Simmons? MR, BRANTON; She does, your Honor. MR. HARRIS; I have to add one item to that stipulation, your Honor. It is stipulated that Dr. Simmons, if he were called, sworn, and testified, would testify that he removed tissue surrounding the upper wound and forwarded that tissue to the California Department of Justice, C.I. and I. laboratory in Sacramento. MR, BRANTON; Yes. That’s part of the stipulation, and the Defendant again waives her right to be confronted by the witness. 54 A similar stipulation was read by Thompson regarding Magee.

In each of these cases the defense successfully suppressed the prosecution's ability to establish a lengthy itemized testimony that might influence the jury.

Stipulations were used to control physical evidence as well as testimony. Early in the trial, for example, Harris wanted to introduce three photographs of the back of the van as it appeared shortly after opening the doors on the escapees and their hostages. Thompson explained the pictures were to be used with the next witness, who would testify:

. . . as to what he encountered when he opened the van to the effect that there were people in the van, he heard voices, he say people moving, weapons and things like that, and then the position of cer­ tain persons within the van. 181

THE COURT; What about the photograph? MR. THOMPSON; . . . the photograph is used to Illustrate that. . . . MR. THOMPSON: The photograph serves, I suppose, two discreet purposes. One, to corroborate Mr. Pennington's testimony as to what he did and, second, to corroborate his testimony as to the position that he found a body in that van which body is evident in the photograph. . .

Branton objected on several bases, and then offered a stipulation that was

directed at the prosecution's stated purpose of corroboration.

. , . since this photograph is of the nature, of the kind of photo­ graphs that the courts have spoken out on concerning the prejudicial effect outweighing any probative value that it might have, I think that this photograph should be excluded from the eyes of the jury and that it shows Judge Haley with a part of his face shot away and for the jury to see that scene, in my opinion, would have the highly preju­ dicial effect on them, and there being no corresponding probative value in putting the photograph in evidence...... And I might say if the reason for the introducing the photograph has to do with the position of the Judge In the van, the Defense is willing to stipulate on the record in the presence of the jury any way the Prosecution would like to describe the position the Judge was in the van when the witness found him, and, with that stipulation in mind, I, therefore, see no need at all to introduce the photograph into evidence and the only purpose that could be served could be its prejudicial effect upon the jury.^6

■Thompson recognized that such a stipulation would affect his presentation. He responded to Branton by saying:

. . . we feel it is probative in many respects, and it is a clear photograph, it is not a, certainly not a pleasant, it is not a pleasant sight. I would have to agree to that, but then, that is what this case is all about and I don’t think we can, by way of stipula­ tions be prevented from showing in some kind of a reasonable manner, what happened to Judge Haley. It bears on the testimony of any number of witnesses, and it bears on Count 1 of the Indictment in terms of bodily harm, and it bears on Count 2 of the Indictment in terms of the murder, and the manner of the killing. We think it is probative of any number of issues, . . .57

Ultimately the Judge permitted only one black and white picture to be presented, explaining, . . 1 don’t think that it could be characterized as being shocking or, if shocking, it’s not so shocking as 58 to unduly subject the jury to needless trauma." 182

In this example, even though the stipulation was not accepted it functioned to help suppress two-thirds of the evidence initially offered, and thus decreased the impact the prosecution hoped to gain.

Successful suppression of physical evidence occurred also in regard to the clothing worn by the victims. Harris produced several plas­ tic bags, each containing clothing removed from the deceased. Without stipulation the contents of each plastic bag could have remained in front of the jury for a longer period of time while its condition, and its owner were described. Defense stipulation allowed more rapid handling of the exhibits, and suppressed the potential impact. Harris' questioning of

Keith Craig, a Marin County Coroner's investigator, was thus limited to the following type of exchange:

MR. HARRIS: Your Honor, for the record. People's Exhibit No. 87 is a plastic bag containing a coat. Q (By Mr. Harris) Mr. Craig, is this the coat you removed from Jonathan Jackson? A [Craig] I would like it removed from the bag so I can see it. Q Well, you looked at it yesterday, didn't you? A Yes. It appears to be the same coat. MR. BRANTON: I will stipulate that the coat that is in the bag you are holding, Mr. Harris, is the coat worn by Jonathan Jackson. THE COURT: All right. Thank you. MR. HARRIS: That is People's Exhibit No. 87, your Honor. MR. BRANTON: 87. Q (By Mr. Harris) Now, in connection with the person designated as No. 2, Judge Haley, did you have removed from him a judicial robe? A Yes, I did. Q All right, and— MR. BRANTON: What is that number, Mr. Harris? MR. HARRIS: On the robe? MR. BRANTON: Yes. MR. HARRIS: People's Exhibit No. 88. MR. BRANTON: Defense will stipulate to People's Exhibit No. 88 is the robe which this witness removed from Judge Haley. MR. HARRIS: Thank you. THE COURT: Thank you kindly. Q (By Mr. Harris) Now, let's turn to the person designated No. 3, Mr. Christmas. Did you remove a blue wlndbreaker type jacket? A I did. 183

Q — from him? A Yes. Q Okay. MR. HARRIS: And* for the record, your Honor, that Is People's Exhibit No. 89* a plastic bag containing a blue windbreaker type jacket. MR. BRANTON: Defense will stipulate that People's Exhibit No. 89 is the windbreaker type jacket that was removed from Mr. Christmas.^9

Stipulations of this nature helped the defense exercise some control over even the prosecution's evidence.

In summary* one of the strategies employed by the defense to per­ suade the jury was suppression. It is the prevention or limitation of the disclosure of evidence, and is designed to limit unfavorable or prejudicial evidence which might be illegal or might bias the jury out of proportion to the probative worth of that evidence. The defense used direct suppres­ sion in an effort to keep all or part of some testimony and physical evidence from being available to the jury. Indirect suppression* in the form of stipulations, was used also. The impact of prosecution evidence was limited by stipulations which granted certain truths, but denied the prosecutor the time to expand upon the testimony and evidence before the jury. Overall* the defense used suppression to control what and how much testimony and physical evidence the jury received.

Refutation

Refutation is "the process of attacking the arguments of an opponent in order to weaken or destroy these arguments.An argument can be attacked directly* or by way of attacking the witnesses or physical evidence which supports It. The Davis defense team used refutation in two ways. They attacked the prosecution's theory* and attacked the reliability of the witnesses. 184

As we saw In the identification of forensic issues, the defense disagreed with almost all of the prosecution's theory. They refuted it directly, therefore, offering facts to establish alternative explanations or to prove the prosecution wrong.

For example, the prosecution claimed that statements made at the time of the escape were sighs of a plan. The defense responded by refuting

Harris' interpretation. They said those statements were only slogans and that the confusion during the escape was a sign of being without a plan.

The prosecution contended that Angela Davis spent much of the week of August 3, 1970 with Jonathan Jackson. The defense refuted that by producing witnesses who testified to her being with them.

When Harris suggested Davis' flight showed a consciousness of guilt, the defense showed that she had not fled on August 7. She had intended to catch a later plane, but airline personnel told her an earlier flight which had been delayed was available immediately if she hurried. It was for that reason, and not consciousness of guilt, that she rushed.

Furthermore, the defense proved she did not know about the escape attempt until late that evening. Finally, they refuted Harris' claim by develop­ ing an explanation for why she remained unavailable even after a warrant was issued.

All of these and many others are examples of how the defense directly refuted prosecution theory.

Their major refutatlonal technique, however, was to convince the jury of the incredibility of the prosecution's witnesses. They did this four ways: (1) by showing testimony was internally inconsistent; 185

(2) by Identifying external Inconsistencies; (3) by suggesting the testimony had been influenced by the media or the prosecutor; (4) by showing conditions that would make eyewitnesses unreliable.

The first technique was to show the witness' testimony was inter­ nally inconsistent. Most prosecution witnesses had written reports shortly after the August 7 events. Others had been located by the prosecu­ tion and had made statements that were recorded and later signed by the witness. These written documents were compared with the witness' on-the- stand testimony. When the earlier and later remarks were incompatible', the defense suggested the witness' testimony was incredible. This technique of pointing out differences between earlier and current testimony was strongly tied to defense suggestion that the witness had been influenced by the prosecution. For example, Joseph Murphy, a San Quentin correctional officer helped remove weapons from the van on August 7. He said he

"definitely" recalled removing a specific weapon Branton asked about, and that he had remembered the weapon the first time on that very afternoon of August 7. He wrote his report of the events shortly thereafter. In it he did not mention the weapon. A later supplemental report did include the weapon, however. In fact, it was the primary topic of the supplement.

It was to this later report that his testimony corresponded. Branton questioned Murphy as follows:

Q (By Mr. Branton) And you do definitely recall picking that People's Exhibit 48 or a weapon that looked at least similar to that and taking it out and passing it to someone behind you, is that right? A [Murphy] That is right, sir. Q Sergeant Murphy, when did you remember for the first time that you had removed that weapon from the van? A That afternoon, sir. . . . Q . • . after the morning of August the 7th, 1970, youwrote out your own handwritten version of what you had seen that day, did you not, sir? 186

A That Is correct, sir. Q All right, and then, sometime after August the 7th, some one of your superiors at San Quentin, perhaps Captain Weber, asked you if you had anything to do with the removal of a weapon from the van and asked you to search your memory and to give a report concerning any possible removal of a weapon from the van, did he not? A Yes, sir. Q Now, I want to show you a document, if I might, dated September the 11th, 1970, and it is to Captain D. R. Weber, incident of 8/7/70, Marin County Courthouse, and it appears to have your signa­ ture at the bottom. I want to give it to you and ask you to just read that to yourself, sir, and then tell us whether or not that is the supplemental report that you gave concerning the weapon when you were specifically requested to do so by Captain Weber? A I wrote— that is my signature on there, sir, yes, sir. . . . Q . . . Would you read the supplemental statement, sir, to the jury that you gave to Captain Weber? A "At the request of Inspector Bridges , . . this supplemental report . . , is submitted. To the best of my recollection, during removal of Assistant District Attorney Gary Thomas from the van, the writer assisted in the following manner: I approached the passenger's side of the van at the single door. I assisted a Highway Patrolman in removing Mr. Thomas from the van. During the removal . . . it is quite possible that if anything such as weapons were obstructing the removal . . . I would have removed them and handed them to whoever was assisting me.". . . Q (By Mr. Branton) Isn't it a fact, sir, that as of September the 11th, 1970, you did not remember anything about a carbine, .30 caliber or otherwise, brown colored stock or otherwise, but the total extent of your recollection was that: "It is quite possible that if anything such as weapons were obstructing the removal of Mr. Thomas, I would have removed them and handed them to whoever was assisting me." That was the extent of your recollection on September 11th of 1970; wasn't it, Sergeant Murphy? A No, sir. . . . Q Well, tell me how you came to remember that weapon when you didn't remember it on September the 11th, 1970.? A I really can't, sir.

At the conclusion of such questioning by Branton, not only did the witness appear internally inconsistent, but his whole testimony, on any subject, might be questioned by the jury now that he seemed so clearly in error on this one point about which he had been so definite.

The defense's second refutatlonal technique for undermining witnesses was to show external inconsistency. The witness' testimony 187 was compared to established facts. When the witness and the facts did not correspond, the defense emphasized the Inconsistency. Louis May, for example, had been an Inmate at San Quentin In August of 1970. He testi­ fied he had seen Jonathan Jackson come to San Quentin In a black Jaguar.

No one else mentioned such a car. Facts indicated Jackson borrowed a

Volkswagon, and then rented the van. May said he saw a van on August 5 and 6. Facts showed the van was not rented until August 6. May also

Identified Angela Davis as the person with Jackson on August 3. Facts showed she had not arrived until late the night of August 3. Some of

Moore's questioning of May went like this:

Q [Moore] I am going to show you what has been admitted into evidence as Rental Agreement, . . . for a Hertz Rental Van by Jonathan Jackson on August 6th, 1970. A [May] um-hum. Q And you are positive, now, that you saw a . . . yellow van on both the 5th and 6th of August, 1970? A I am quite sure, yes. Q You have no doubt in your mind whatsoever? A I don't believe so, no. Q If the facts show the van was rented on August 6th, 1970, could you have any explanation? A Yes, I didn't say that I seen a rental van on the 5th. Q All right. You saw a yellow van? A I said a yellow van. That does not necessarily mean that it was rented, does it? Q All right, but you did see a yellow van? A Yes, I saw a yellow van. Q That was similar in character and color to the van that you saw on August 6th? A That's correct. Q So, your explanation then would be that you did not say that it was a rental van. Is that correct? A That's correct. Q Is there anything you want to add to your explanation? A I don't believe so. Q Now, you have indicated in prior statements that you seen [sic] Jonathan Jackson at San Questin on the 3rd, Ath, 5th and 6th of August, 1970. Is that right? A I believe those are the dates, yes. Q Now, on August 3rd, 1970, who was with Jonathan Jackson? . . . A I believe Angela Davis was. . . . 188

Q Now, Is that your best recollection that Miss Davis was with him on August 3rd? A To my best recollection, yes. , . . Q . . . Mr. May, If the evidence should show in this case that Miss Davis did not come to the Bay Area until 8:31 p.m. on August 3rd of 1970, would your testimony be that you saw her at San Quentin on the 3rd of August?®2

At this point Harris objected to the form of the question as being argu­ mentative, and was sustained. Moore, however, had made his point. By showing such external inconsistencies, the defense undermined the credibility of some prosecution witnesses.

The third refutational technique was to show the witness had been influenced by the media or the prosecution. The witness' testimony might be compared to what the media presented and to what the witness likely knew first hand. Even establishing the possibility of influence was sufficient to cast some doubt on the truth of the testimony. Maria

Graham, one of the jury members taken as hostage, was questioned by Moore.

Q [Moore] Now, I believe you mentioned something about a sawed- off shotgun. Do you remember that? A [Graham] Yes. . . . Q Now, you didn't know the first time that this was displayed or exhibited . , . whether this was a pistol or some other kind of firearm; did you? A No. It couldn't have been a pistol. It was too big. Q It was too big to be a pistol. But the thing . . . that you didn't know that it was a sawed-off shotgun; isn't that right? A Think so. Q You thought it was a sawed-off shotgun? A Yes. Q Had you ever seen one before? A No, sir. Q Isn't it a fact that to your knowledge that it was a sawed-off shotgun obtained from reading newspaper accounts of this incident? A 1 really haven't read any of the newspaper accounts of the inci­ dents when it happened. I haven't looked at any of those papers at all. Q All right. But there has been extensive news coverage about this case since then? A Yes. , . . Q And you— you say it is a sawed-off shotgun because of what you have read about it. Is that correct? A That is quite possible. 189

Q All right. As a matter of fact, your statement about the Soledad Brothers is a statement which you have seen on many occasions in the newspaper, is it not? A I guess. Q You have seen newspaper reports which have said that Jonathan Jackson or McClain said, "Free the Soledad Brothers by 12:00 ." Isn't that correct? A 1 don't remember specifically. It is quite possible that I have. Q And those newspaper accounts have aided you to refresh your memory here in Court, have they not? A I don't think I have read them that thoroughly. Q But you have read them, have you not? A I have glanced through them. Q And you have paid attention, particular attention to those things which relate to August 7th, have you not? A I think it would be a natural thing to do.

Since Graham was testifying to things the prosecution needed to prove

the existence of a plan, the credibility of her testimony was important.

Moore not only established media influence, therefore, but also the

possibility that Harris had significantly affected her testimony. Moore

drew from her the admission that she and Harris had met recently so that

she could review her written statement and he could orient her to where

and when to report and what would happen in court. Then, in a lengthy

cross-examination of sufficient intensity that Moore once had to ask

Graham if she wanted to take a break, he said:

Q [Moore] . . . I want you to tell us as best as you can remember, what Mr. Harris said in regard to Free the Soledad Brothers. A [Graham] He asked me if I had heard anyone say this. Q And when he said, "say this," what words did Mr. Harris use? A He said, "Did you hear anybody— ask"— geez, I can't even give you the exact words. He asked me if anybody had mentioned freeing the Soledad Brothers. He also asked me if anybody, if I had— if I had ever said "Free our brothers at Soledad," and I said no. Q And then what other discussions did you have in that regard? A This is all. He just briefed me on what we went through yester­ day...... he asked me if I remembered what McClain had said on the telephone. Q All right. He asked you, "Do you remember what McClain said on the telephone," but that is not all he asked you in regard to that. He asked you, "What did McClain say in the telephone about the Soledad Brothers." Didn't he? 190

A He may have. Q As a matter of fact, it la more likely that he asked you that then It was that he did not. Isn't that right? A Probably. . . . Q . . . what I am getting at Is that Mr. Harris used a question, answer, or discussion session to plant the suggestion in your mind that Mr. McClain said on the telephone, "Free the Soledad Brothers or we will kill the Judge." Isn't that right? A We did go through an answer-question period, yes, we discussed the questions. A And he asked you that kind of question so as to suggest to you what your answer would be, is that correct? A I don't know that this was his object. . . . Q . . . I am asking you whether . . . your mind has been influenced by the comments of Mr. Harris. . . . A I hate to admit that I could be influenced so easily by anyone.

a • % Q Very well. That's true of all of us. But the fact of the matter is until you had had this discussion with Mr. Harris, you had never been able to recall Mr, McClain ever having said into the telephone: "Free the Soledad Brothers or we'll kill the judge"; isn't that right? A This may very well be true. ^ « This unwilling admission helped the defense undermine the credibility of

an Important on-the-scene witness.

Graham was not the only, one Moore alleged was influenced by the

prosecution. Louis May, whose testimony was already established as

externally inconsistent, was subjected additionally to the charge that his

parole was connected to an agreement to testify for the prosecution.**^

John H. Manwaring, M.D., the pathologist who performed the autop­

sies on Haley, Jackson, Christman, and McClain, was charged with having been influenced. He had filed an autopsy report in 1970. Approximately one year later, after a four hour discussion with members of the Attorney

General's Office, he had filed a second report, claiming those wounds on the bodies that he had marked as entrace wounds, were really exit wounds, and those marked as exit were entrance wounds. His testimony was consistent with the second report. This was another instance of 191

Internally Inconsistent testimony as an alleged result of prosecutorial influence. Moore’s questioning of Manwarlng went. In part* like this:

Q [Moore] Now, you have testified here that you had occasion in August of 1971 to review your autopsy examinations of Mr. Christmas and of Jonathan Jackson; is that not correct? A [Manwarlng] That's correct. Q Were you requested by anyone to review your autopsy? A Well, it was not, Mr. Moore, a matter of reveiwing the autopsy. I was called by Mr. Eric Coliins of the Attorney General's Office, I believe, . . . to come to the Civic Center for a Conference. And at that conference, Mr. Fred Wynbrandt was there with the clothing, which had been removed. And we discussed the injuries and my initial opinion. Then, Mr. Wynbrandt showed me the clothing for the first time. And that was where it was obvious that the pathway on some of the injuries was Incorrect. And I subsequently issued an ammended report to my original autopsy report. . . . Q You understood that Mr. Eric Collins was an associate of Mr. Harris? A Yes, sir. Q Representing the prosecution; is that correct? A Yes, sir, 1 did. Q And you understood that Mr. Collins came directly from the Attorney General to discuss this matter with you; is that correct? A Well, 1 don't know that he did that. I just received a call for a conference and went. . . . Q And how long were you in this discussion with Mr. Collins? A Oh, goodness, most of those discussions take about four hours. X can't answer. It was about that order of magnitude. I would guess. Q And was this on August 2ndof 1971? A I can't recall the date. I don't recall. Q You know at that time that a motion had been filed by someone else charged in this matter attacking your opinions? A X knew that. . . . Q Now, if Mr. Jonathan Jackson had been nude at the time that he was shot, would you have been able to differentiate the exit and entrance wound? A Ordinarily, I can. These were very unusual entrance and exit wounds. They are still puzzling to me and to others with whom X have discussed it. Ordinarily, the exit wound is a very different wound from an entrance wound. • . .66

Whether or not the jury believed Manwarlng that these wounds were so differ­ ent as to make entrance and exit marks hard to differentiate, or even that the Doctor's changes were reasonable, Moore was able to call to question the efforts of the prosecution to Influence witnesses. ' The fourth refutational technique was to establish the unrelia­

bility of prosecution eyewitnesses. This was one of the most Important

techniques the defense used. In that portion of the trial during which the

defense presented Its case, only twelve witnesses were called, and their

testimony filled less than five hundred transcribed pages. Among those

witnesses was one whose sole function was to help undermine prosecution

witnesses. Over one hundred pages are devoted to his time on the stand. ^

That time devoted to him alone signifies the Importance of this technique

to the defense.

The witness was Robert H. Buckhout, Associate Professor of

Psychology at the California State Universlty-Hayward. He was an expert on

perception and eyewitness Identification. He explained a variety of factors,

such as filling in, conditioning, conformity, visual defects, and desiring

to be a part of history, that can influence perception. In all, he listed

apprlxlmately fourteen factors. The defense had provided Buckhout with

copies of the testimony of several important witnesses. Harris had

relied exclusively on eyewitness testimony to establish that Davis had

been with Jackson the week of August 3, and he relied heavily on that week-

long association to establish Davis had to have known the plan. Buckhout

examined the testimony of Robert West and Robert Ayers, two of the San

Quentin correctional officers who allegedly saw Davis with Jackson, and of Madeline Lucas, who claimed to have seen Davis and Jackson entering

San Quentin as she was leaving. He looked, also, at what was said by

Alden Fleming, who claimed Davis was at the service station with Jackson on August 6. On the basis of Buckhout1a analysis Moore drew some con­ clusions In his closing argument. 193

The Judge Is going to instruct you that, where there is a discrepancy relative to a fact of importance, that that reflects or Impeaches the credibility of a witness. Now, what was that fact? If you recall . . . Mr. West testified that, on August the 14th, which was a Friday, at noon, he saw on Channel 5 a picture of Angela Davis in a semi-profile. . . . And as soon as he heard the name, he then called . . . Captain Wagner, at San Quentin and reported what he had seen. Now, that is the classic example of filling in. You just fit what you have seen, regardless of who it was, at San Quentin on the 4th and 5th. You just fit that face, that figure or rather that fair skinned, black lady, natural hairdo, tweed like dress, to the name Angela Davis. That is filling in. That is what he did. Now, on the 17th, he made his report in which he indicated that he had seen an unknown female with Jonathan Jackson on the 4th and 5th, .... In the last paragraph of the report he indicates that he had watched the noon news on the 14th and he had seen a picture, and he knows that to be Angela Davis. Now, is there any doubt that he testified in that fashion? I think there is not. Now, Mr. Ayers testified in this case too. He was a people watcher. Mr. Ayers testified that he was at Fort Ord doing some kind of reserve duty, and that a reporter was there for the San Francisco Chronicle, and the date was the 11th or 12th, and he then testified that, upon seeing that picture in the paper on the 11th' or 12th, he called Lieutenant West. This is 2 or 3 days before the 14th. Now, if he called Lieutenant West on the 11th or 12th, why is it that Lieutenant West waited until the 14th to make his phone call? Since he had already been alerted, if you believe the witness Ayers, that Miss Davis had been at San Quentin. I submit that Mr. Ayers was filling in also. . . . Now, that is an Important circumstance, an Important discrepancy that Lieutenant West would have that information, but yet tell you that he filled in or he recognized Miss Davis on the 14th when he had already received information from Mr. Ayers. Wouldn't the information'from Mr. Ayers stimulate this recollection as to what he had seen much more so than waiting for a television program? Can you believe either one of those witnesses? Whether you do is left entirely up to you, but the Defense would submit that both of those witnesses are unbelievable and that their testimony can be denied or Ignored.

Lucas was charged with filling in also, as well as relying on racial stereo­ types. Moore said, in part:

Now, let's go to the witness that the Prosecution considers to be the dynamite witness with respect to placing Miss Davis at San Quen­ tin on August 4th, 1970, . . . Mrs. Lucas. Mrs. Lucas is in reality a fanthorn witness. She . . . almost comes out of the blue and, when you listen to her, on first blush, if you don't pay much attention, you would think that she was a strong witness, but, when you reconsider the transcript or you recollect on the testimony, you see that she was a 19A

weak witness. This Is Mr. Harris on direct at page 5458. "Question. All right. Would you describe the person you saw at San Quentin parking lot to us that you have testified that you recognized as Angela Davis?" . . . Now, listen carefully at the description. "Answer. Well, she was a Negro. She was, I think you would say, tall, slender, tall, slender." Now, there is some uncertainty about the tall, slender because, if she were positive she probably would have said tall and slender because there would have been nothing for her to add, but this witness is filling in. She is trying to get approval, and then Mr. Harris goes on. . . . "And what about her hair, was that worn in any dash dash" and she interrupted then because she knew what she was to fill in. "She had an Afro hairdo. She had an Afro hairdo." Does that sound like a witness who is making a strong and positive identification?

Almost all the identifications were charged with being based on racial prejudice, one of Buckhout's fourteen factors. Moore explained to the jury the role of stereotypes in eyewitness identification.

If I may, now, I would like to turn to the question of mistaken identity. We don't claim that the witnesses who testified on behalf of the Prosecution perjured themselves. What we do claim, however, is that they are mistaken in their testimony where they seek to identify Miss Davis. There is a matter which concerns me very greatly and makes me very frightened in a way, and that is that all of the identifications of Miss Davis have been racial stereotypes, and you must understand that. You must understand that each witness who testified in this case either said a fair skinned black lady; light complected, plain Negro; plain Negro. Others, fair complected; light complected. Others, tall, black; young, black woman. What Is a light complected Negro? Who is a fair complected colored woman? Who is a young, black woman that is fair complected? Is Willie Mays fair complected as compared with Vida Blue? How much difference in color does there have to be between two blackpeople for one to be fair complected? ...... How do you understand the gradations of color among black people so that the description of light complected or fair complected has any meaning, meaning on which you can base a decision in this case?70

Alden Fleming was challenged as a witness for engaging in that kind of stereotype.

We know that Mr. Fleming . . . could give this description of Angela Davis: Fair complected, Afro hairstyle. Then he added after that: "That's about it, I guess." "That's about it, I guess." Why did he say that? "That's about it, I guess." If he knew, would he have to guess? Would he have to speculate or surmise or engage in conjecture to give a description of a person? 195

Then he went into the whole racial bit about most black people have flat faces, and I think they are heavier faces than others* And thatts not true. That's just a racial stereotype. There Is no truth In that at all. He said that he tried to put himself In the position of having familiarity with black people by saying 15 to 20 percent of his trade was black customers. If that's true, why did his son say that he rarely saw black people at the service station and had no contact with black people??-*-

In addition to this charge, Fleming had become a questionable witness when

It was discovered he was color-blind.

One of the techniques the prosecution used with its witnesses was to have them select Angela Davis' picture' from among several pictures.

The defense charged that these pre-trial photographic identification tech­ niques were biased. They were so designed that the witness could easily tell which one he should pick. Furthermore, their use functioned to condition the witness to make the correct identification at the time of the trial. Showing a series of these photographs to the jury, Moore explained:

. . . witnesses testified that they have no trouble excluding these two photographs, 9F and 9G cause there is the name of a person on there . . . and the person has on a wig or some kind of different kind of hair. They have no trouble with 9G because the name of the person is on there. . . . They have no trouble with 9D, that is Mrs. Georgia Jackson, because it is an older woman. . . . So, four photographs are excluded. Mr. Alden Fleming had no trouble with 9H because it is blurred and he couldn't describe it, so that is excluded. . . . Then, he picked four photographs, 91, 9A, 9B and 9C. 91, we stipulated was a photograph of Fania Jordan, the sister of Angela Davis, but the effect of the testimony is that the way the photographic spread was laid out which was shown to these witnesses, to all of the witnesses except Vonada was so suggestive that it would lead almost invariably to picking Miss Davis, that the chances were 3 out of 5 that the photograph of Miss Davis would be picked, . . . The witness Vonada was shown Prosecution photographs 174A and 174E. No. 174E is a photograph of Miss Davis. These photographs were shown to him in December of 1970, after there had been a great deal of 196

publicity about Miss Davis. The chances of picking MIsb Davis In these photographs, according to Dr. Buckhout . . . were exceptionally great. I think It was about, there was almost no chance of missing because the only other photograph that might confuse . . . a person . . . was a photograph of Miss Davis' sister. . . . the photograph of Miss Davis obviously stands out, and, as Dr, Buckhout testified, It Is the same photograph as the photograph shown In Defendant's Exhibit 127, the only difference being it Is smaller and the man'B head had been cropped out In these photographs here, so these photographs were undeniably suggestive and, once he was shown these photographs, he knew then who to pick out. There would be no doubt about it, and the showing of these photographs to Mr. Vonada and to other trial witnesses was a form of conditioning. It wasn't a test. It merely conditioned them to select Miss Davis at the time of trial, which they did.?2

Over-all, most of the Important witnesses were charged with some

Inability to be reliable, based on Buckhout*s fourteen factors. Reginald

Major, in his book Justice In the Round, reported Moore's evaluation of

Buckhout*s testimony.

• * . Howard Moore, Jr. said, "I felt that Buckhout's testimony would be very helpful in attacking the eyewitness Identification by showing it as unreliable. It gave the jury a way of deciding with us, without saying that Harris' witnesses were lying. When Buckhout testified I saw something come over that jury. I told everybody, 'We've got It all, we've just won this case, this jury is completely turned around.*"73

The whole refutational approach of undermining witnesses was a very Important one. Not only does the amount of time spent with Buckhout, or the amount of references to witness credibility during the trial and in the closing arguments signify that Importance, but the arrangement of the closing arguments does also. Moore and Branton both gave closing argu­ ments. Moore began. For nearly forty pages he talked about witness credibility only. He did not discuss the Issues. He did not discuss defense witnesses. He dealt only with undermining prosecution witnesses, until twenty pages into his speech he was able to say, "I submit that there 74 is not a credible witness identification in this entire case." With

4 this as his base, Branton then discussed selected issues, with continued 19-7

references to witness credibility. The defense forced Harris to spend

his closing rebuttal reestablishing his witnesses*

In conclusion, we have seen that the third defense strategy was

refutation, which we defined as weakening or defeating opposing arguments

by attacking them. The defense sometimes attacked prosecution arguments

directly, and sometimes attacked the reliability of their witnesses. When

prosecution witnesses were challenged it was on the basis of internal and

external consistency, the influence exerted on them by the media and the prosecution, and the establishment of conditions that would make eye­ witness accounts unreliable. This was one of the most Important defense

strategies.

The total defense approach to the trial was to use three strategies

to persuade the jury Angela Davis was not guilty. They were focus, suppression, and refutation.

Focus is the emphasis of selected elements of the case for purposes of convincing the audience that they are the most Important elements and should be the basis for decision. The selected parts are the major points in the advocate's organization. We found the defense Initiated the focus of the questions of existence of a plan, Davis' foreknowledge of it, and her conscious willingness to advance it. This organization of the issues dominated the trial, ultimately was adopted by the prosecution, and may have given an advantage to the defense.

Suppression is the prevention or limitation of the disclosure of evidence, and is designed to limit unfavorable or prejudicial evidence which might be illegal or might bias the jury out of proportion to the probative worth of that evidence. The defense used direct suppression 198

In an effort to keep all or part of some testimony and physical evidence from being available to the jury. Indirect suppression in the form of stipulations was used also. The Impact of prosecution evidence was limited by stipulations which granted certain truths, but denied the prosecutor the time to expand upon the testimony and evidence in front of the jury.

Generally, suppression was used to control what and how much testimony and physical evidence the jury received.

Refutation, which is the attacking of opposing arguments in an effort to weaken or destroy them, was used against prosecution arguments directly, and indirectly by undermining witnesses. When witnesses were the target for attack the bases were Internal and external consistency, influence exerted on them by the media and the prosecution, and establish­ ment of conditions that would make eyewitness acounts unreliable.

A review of Chapter IV shows we have identified the forensic strategies employed by the prosecution and defense. We found the prosecu­ tion and defense both used the strategies of focus and refutation. The prosecution also used itemization, while the defense employed suppression.

In Chapters V and VI we will examine the deliberative issues and strategies in an effort to see if and how forensic and deliberative matters are related in a political trial. NOTES TO CHAPTER

^George W. Ziegeltnueller and Charles A. Dause, Argumentation; Inquiry and Advocacy (Englewood Cliffs, New Jersey: Prentice-Hall, Inc., 1975), p. 184.

^Meikiejohn Civil Liberties Institute, The People of California y. Angela Y. Davis (Dobbs Ferry, New York: Trans Media Publishing Co., NO. 503, 1974), pp. 7159-60. Hereinafter referred to aB The Trial Tran­ script.

3Ibid., pp. 2143-44.

*Ibid., p. 2145.

5Ibid., pp. 6832-36.

8Ibid., pp. 6851, 6854,

7Ibid., pp. 2151-51A.

8Ibid., pp. 2324, 6856.

9Ibid,, p. 6958.

10Ibid., p. 6878.

11Ibid., p. 2143.

12Ibid,, pp. 6180-81.

13Ibid., pp. 6886-6941.

^Ibid., pp. 6866-67.

^3Zlegelmueller and Dause, p. 196.

*8The Trial Transcript, pp. 2823-24.

17Ibid., pp. 2838-40.

18Ibid., p. 2651.

19Ibid., pp. 5593-94. 20 21Ibld. pp. 2941-43.

22Ibid. pp. 6677-87, 6680.

23Ibid. P* 6373.

24Ibid. pp. 6439-40,

25Ibid. pp. 6682-83.

26Ibid. pp. 6907-8, 7107-7A.

27Ibid, P* 2151.

28Ibid. P- 2324.

29Ibid. P* 2327.

30Ibld. pp. 6686-96.

31Ibid. pp. 6855-56. 32 J Ibid. pp. 4521-34, 4588.

33Ibid. P- 5156.

34Ibid. pp. 4741-42,

35Ibid. pp. 4790-4872, 5176-5200, 5239-5310, 6069-89.

36Ibid. pp. 4197-4200, 4546-50, 4552-61, 4579-83, 4588.

37Ibid. pp. 4535-36.

38Ibid. pp. 4534-40.

39Ibid. pp. 4540-42.

4°Ibid. pp. 4542-43. * . * 4lIbid. pp. 4544-45.

42Ibid. pp. 4563-73.

43Ibid. pp. 4588-89.

44Ibid. P* 4629.

45Ibid. pp. 4615-16.

46Ibid, pp. 4617-19. 201

47Ibid,, p. 4624. 48 Ibid., pp. 4920-21. 49 Ibid., pp. 4921-22. 50 Ibid., p. 4928. 51. Bettlna Aptheker, The Morning Breaks; The Trial of Angela Davis (New York; International Publishers, 1975), pp. 216-17. 52, The Trial Transcript, p. 4545.

53Ibid. pp. 4471, 4652,

5*Ibid. pp. 3744-46.

55Ibld, pp. 3240-41.

56Ibid, pp. 3242-43.

57Ibid. pp. 3244-45.

58Ibld. p. 3249.

59Ibid. pp. 3695-96.

88Zlegeloueller and Dause,

83The Trial Transcript, pp

62Ibid. pp. 5869-71.

63Ibid. pp. 2460-63.

64Ibid. pp. 2466-69.

65Ibid. pp. 5885-87.

66Ibid. pp. 3795-98.

67Ibld. pp. 6550-68, 6586-

68Ibid. pp. 6987-88, 6990

69Ibid. pp. 6991-92.

7°Ibid. pp. 6981-83.

71Ibid. p. 7002. 202

72Ibld., pp. 7007-9. 73 Reginald Major, Justice In the Round: The Trial of Angela Pavla (Nev. York, New York: The Third Press, 1973), p. 249. 74 The Trial Transcript, p. 7007. CHAPTER V

DELIBERATIVE ISSUES

While trials are always conducted for a criminal offense, the defendant may feel that the real reason he or she has been Incarcerated

Is more political in nature. Such was the case with Angela Davis. She 1 and her supporters considered her a political prisoner, on trial because of her active challenging of the legal and prison systems. Her support of the Soledad Brothers and her membership in the Communist Party were attacks on the total American justice and economic system. This, she felt, was the real motivation for her prosecution.

Since her belief was that she was a political prisoner, since it was in behalf of political prisoners that she had been active, and since by virtue of her political membership she overtly indicted the democratic capitalistic system, we should find elements of her beliefs appearing in the trial. In other words, analysis from a deliberative framework may uncover additional issues. While the prosecution advanced its proposition of judgment, the defense may have been developing aspects of a proposition of policy. In order to understand better the concept of the political trial, an analysis of these Issues and the strategies by which they were advanced would be helpful.

We wil^l use Hult2dn's system of deliberative status to uncover the deliberative issues.^ His system contains the four frames of ill, reformabillty, remedy, and cost. Each of these is further broken down

203 204

into fact, definition, and quality. Thus, there are potentially twelve

points at which issues may be raised, as opposed to the four in the

classical forensic system.

The frame of ill identifies the state of affairs, applies that to

the criteria for an ill, and determines whether the condition is bad enough that something should be done. The opponent can deny the existence

of the alleged state of affairs, that it meets the criteria, or is serious

enough to merit a policy change.

The frame of reformability identifies the cause of the ill and whether it can be corrected. An opponent could deny the advocate had correctly placed the blame for the problem and/or that the source of the

ill could be corrected.

The frames of cure and cost involve the offering of the solution for the ill and measure its desirability in terms of financial expendi­ ture and/or other values.

In the Davis trial only two of the frames and three of the poten­ tial twelve points were presented by the defense. The points at issue were ill-fact, ill-definition, and reformabillty-fact.

Frame of 111

This first frame is the one in which the problem the advocate wants solved is Identified. At the time of the trial the paramount problem of concern to Angela Davis was political prisoners. At the point of ill-fact there were two levels of the problem for her, general and specific. An 111-fact statement that expresses her general concern is:

Blacks are being persecuted. The 111-fact statement that expresses the 205 specific concern is; Angela Davis is being persecuted. These are descriptions of the state of affairs perceived by Davis and her supporters.

In a Book she helped edit while in prison, and which appeared publically two months before the start of the trial, she included an article which discussed her perception of the political prisoner. The general ill—fact was expressed this way;

. . . for all nationally oppressed people, the problem of opposing unjust laws and the social conditions which nourish their growth, has always had immediate practical implications. Our very survival has frequently been a direct function of our skill in forging effective channels of resistance. In resisting, we have sometimes been com­ pelled to openly violate those laws which directly or indirectly buttress our oppression. But even when containing our resistance within the orbit of legality, we have been labeled criminals and have been methodically persecuted by a racist legal apparatus.2

That methodical persecution was expressed in the trial, but by using example rather than by this type of direct statement. In her opening statement she explained the relationship of the Soledad Brothers to the general problem.

. . . we on the defense committee felt that these three black men charged with killing a prison guard were being persecuted not because they had committed any crime but because of their militant political stance and because of their efforts to improve the character of prison life from within.3

Davis also provided background on the organizations and projects in which she had been active. Not only did this serve to infer she was traditionally interested in helping all her people rather than just one,

George Jackson, but it also established the problem as one involving many victims. Thus, while undermining the alleged motive, she established the general 111-fact. She told the jury:

The evidence will show that when I first became Involved in the Soledad Brothers* Defense Committee, this was by no means my first experience in the struggle for black and brown liberation and the struggle of oppressed people everywhere. . . . 206

. . . I had been associated in San Diego with the Black Student Council at the University of California located there. I had been associated with the Southern California Black Student Alliance, the Black Congress in Los Angeles,the Student Nonviolent Coordinating Committee, the California Federation of Teachers, the Black Panther Party and, of course, the Che-Lumumba Club of the Communist Party, of which I am presently a member. I have been associated with various movements, not'only organizations. I have been associated with the struggle to protect and extend the rights of working people, whether they be black or Chlcano or Asian or native American or white. And I have done much work in the movement to end the war in Indochina. I have been Involved in the fight for the equality of women, and women indeed are oppressed in the society. I have also fought to preserve the principles of academic freedom from unconstitutional political assault. In all of my activities, including my activities to free the Soledad Brothers, my goal has been to aid in the creation of a move­ ment, a movement encompassing millions of people, indeed, the majority pf people in the United States, a movement which might ultimately result in a more humane socialist society. When I became involved in this struggle around the Soledad Brothers, this was not the first time I have been Involved in a defense move­ ment over a period of a few years...... , you will hear much evidence about my participation in other defense movements, and the evidence will show that my political experiences included many, many illustrations of my concern, compassion and solidarity with the plight of men and women in prison. The nature of my efforts to free George Jackson and the Soledad Brothers Is bound up with and is an extension of all my other polit­ ical experiences, . . .4

This general persecution was further emphasized by Branton in his closing argument. The prosecution claimed that Davis' flight from author­ ities was a sign of her consciousness of guilt. The defense, however, argued at length that under the circumstances of the crime and of the historical treatment of blacks, militants, and Communists, her flight was reasonable for a consciously innocent person. Branton's argument, aimed at this forensic issue, was a strong statement of the deliberative general

111-fact description.

. . . If you grow up in the South like Angela Davis did, you become familiar with the Scottsboro . . . case, a case where many black young men were charged with rape of two white women and who spent their lives fighting the monstrous frameup nature of those charges. Some of them died in prison before they were finally vindicated. . . . 207

. . . If you are an Angela Davis who grew up in the South, you know also' about the struggle that went on In the South where any man who dared speak out for liberation of black people was assassinated in cold blood. You recall Medgar Evers who was assassinated. You recall the Martin Luther King. You recall a Malcolm X. You remember three little girls in Birmingham, Alabama, Angela Davis* home town who were at church, and the church was dynamited by people who didn't like what the preacher was preaching in that church, the equality of man, and three little girls lost their lives* . . . if you are black, you also know that, in Los Angeles, in December of 1969, three hundred and fifty Los Angeles policemen^., armed with bulletproof vests and automatic rifles, synchronized their watches at 5:00 a.m. and made simultaneous raids on Black Panther headquarters in Los Angeles and Black Panther residences. You know that two days before, the police in the City of Chicago moved into a Black Panther residence and murdered two people in bed. There is no question about that. The State's Attorney is now under indictment in Illinois because of covering up police activity in those murders. You are aware of the Los Angeles incident that happened when, had J,t not been for the fact that those people held off the police in a 5 hour gun battle until the press and the media and the public got there so that, when they came out and they surrendered they wouldn't be shot down like dogs, or they would all have been dead, and you know that all of those people were put on trial for conspiracy to commit murder against the police officers for defending their homes, and you know that many of those people spent many, many months in jail fight­ ing those charges until they were finally acquitted of the charges of conspiracy to commit murder against a police officer...... on August 7th, an Angela Davis also remembered what happened to other black militants; That a Huey Newton had to go through three trials before he was finally let free; that a Bobby Seale was kept in jail for months and months in Connecticut on a phony charge before he was let free; that an Ericka Huggins spent many months in jail before she was let free; that 21 people in New York stayed in jail for over two years before they were let free. And, there is something else. Angela Davis, not only is black and a militant, but she is a Communist. She had publlcally ack­ nowledged to the world the fact that she's a Communist. . . . I don't have to remind you what this country has gone through since World War I. I don't have to remind you of the anti-Communist which is rampant in this country. I don't have to remind you of the fact that many Communists have been put on trial for advocating their First Amendment rights. It took the Supreme Court of the United States to declare that they had these rights.5

Angela's specific persecution was considered typical of that experienced by others. The Preface to If They Come In The Morning by

Angela Davis and Bettlna Aptheker explained the relationship of Davis' specific case to the general problem. 208

We believe . . . that Angela's arrest is directly attributable to her tireless commitment to the defense of the Soledad Brothers and other political prisoners, and her efforts to expose the prison system. She Incurs the special wrath of the ruling circles as a Black woman, a radical intellectual and a Communist.

Later they explained the importance of this specific to the general.

Today . . . It Is clear that the political dynamics of the move­ ment to free political prisoners can far exceed Its previous Impact. It Is In this light especially, that we may view Angela's defense as a pivotal case with political implications which transcend the liber­ ation of a single individual.

The ill-fact claim of her persecution was made in Davis' opening statement. She told the jury that she believed the charges against her were largely an extension of the attacks made by another governing body, the Regents at UCLA, who had removed her from her job upon discovering her Communist Party membership. Her chief attorney, Howard Moore, in a heated verbal exchange with the prosecution, stated more directly that he believed Davis to be "completely innocent," and that the situation was a

O "frameup . . . politically motivated and conspiratorial."

As evidence of the political nature of the case Davis pointed to the surveillance of her by authorities.

The Prosecutor has said that this trial has nothing to do with a political frameup, but, members of the jury, during the entire time I was involved in the movement to free the Soledad Brothers, I was the object of an extensive spy campaign. The Prosecutor himself is in possession of numerous reports made to various police agencies throughout the State of California about my activities on behalf of the Soledad Brothers. He has police reports on rallies where I spoke. He has films of demonstrations where I and others proclaimed our support for the Soledad Brothers.9

Further suggestion of specific persecution was implicit in some of the argument over an eighteen page letter-diary the prosecution wanted to use to evidence motive. Harris, in arguing for its admission, said his case had promised the jury he would offer such proof.^ Branton was 209 unsympathetic to Harris1 plea and implied persecution was evident since

Davis had been held a year prior to the finding of this alleged vital evidence.

. *. .Mr. Harris1 remarks are very revealing. For a prosecutor to admit that he kept a defendant in jail on a serious charge such as murder for a period of almost a year and had no case against her and did not discover the evidence which was going to make his case against her until August of 1971 after . . . more than one year after the crime was committed and more than ten months after she was in custody, to me, is a callous and shocking display of unconcern for the rights of human beings. And for him to. say here that he can't proceed with this case and his whole case is in jeopardy because he cannot get into evidence a letter such as Exhibit 126 is a shocking kind of condemnation of misconduct on the part of the Attorney General's Office. He should have dismissed this case months ago if he had to rely upon something which he had not yet found and was desperately searching for and didn't find it until he happened to run across that document.^

Harris disagreed with the defense's claims of persecution, except that of surveillance. He offered no explanation, justification, or counter fact or argument regarding it.

To Davis' claim that she was Interested in all levels of oppressed people Harris also made no reply. However, to her statement of interest in all political prisoners, and not just George Jackson, Harris replied with denial. He took the position that it was personal passion and not humanitarian concern which motivated her. His opening statement Included the following claim:

The evidence will show that her basic motive was not to free politi­ cal prisoners, but to free the one prisoner that she loved. The basic motive for the crime was the same motive underlying hundreds of criminal cases across the United States everyday. That motive was not abstract. It was not founded basically on any need, real or imagined, for prison reform. It was not founded on a desire for social Justice. It was founded simply on the passion that she felt for George Jackson, and the evidence of that motive will not be circum­ stantial. It will rest on the Defendant's own words.12 210

In his closing argument Harris reminded the jury that Davis was interested in only one political prisoner, one Soledad Brother, and that her commit­ ment stopped with him. In this way he placed a general ill-fact statement into the context of the specific, and into the forensic framework. He said, "the motive separates George Jackson from the other Soledad Brothers—

Fleeta Drumgo and John Clutchette— because in connection with George

Jackson, we have evidence of the deep commitment of Angela Davis prior to 13 August the 7th."

Since this response by the prosecution was limited to Davis' relationship to the Soledad Brothers, and was not directed to her total humanitarian concerns, we might conclude that Harris was limiting himself to those defense claims directly relevant to forensic issues. However, to the extent the defense developed Davis' previous efforts at social reform as a sign of the unreasonableness of claiming she now had a personal self­ ish motive, the prosecution may have been remiss in not dealing with the total argument.

Branton's closing argument and the historical sketch of the oppres­ sion of blacks in particular, and militants and Communists as well, did not go unnoticed by Harris. He did not reply to it from the general ill-fact position, however. He made it relevant to the specific case by granting

Branton's remarks, but claiming that emotionalism was not a justifiable 14 basis for deciding this criminal case. While this was not directly responsive to Branton's claim that historical context could explain why an

Innocent Angela Davis had not turned herself in when a warrant had been issued, it did place defense argument in a less potent framework. Harris essentially turned historical proof into emotional appeal, and then denied that as an appropriate basis for decision. 211

To the defense'8 specific ill-fact claim of political persecution

Harris responded with denial. Anticipating Davis * claim Harris said in

his opening statement:

. . . I'm convinced that the evidence will persuade you beyond a reasonable doubt of the guilt of the defendant. I'm equally convinced that you will be satisfied beyond any doubt what ever, beyond any shadow of a doubt or beyond any conceivable doubt that this case is not a political frameup and it is not an instance of political perse­ cution nor of racist persecution. There will be no evidence offered by the prosecution over the next few weeks of the exercise by the defendant of her right of free speech and assembly under the First Amendment, except for cer­ tain letters that she wrote. There will be no evidence of speeches that she has given nor will there be any evidence offered by the prosecution of any rallies that she has attended. You will be satis­ fied that the case of the prosecution does not rest in any degree whatever upon the nature of the political views of the defendant, whatever they may be. The evidence will show that the claim of political persecution, • the claim that the defendant is a political prisoner, the claim that the defendant is the subject of prosecution because of her political beliefs— all of these claims are false and without foundation.

When Davis' attorneys, in their attempt to suppress the eighteen

page letter-diary, said that the prosecution's high evaluation of the

Importance of the document, written after Davis had been in jail several

months, was an implicit sign of persecution, Harris quickly replied. He

made it clear he had a case against Davis before finding the document, and,

in fact, had wanted to go to trial in early 1971. Since new evidence had

been found, however, he felt it should not be ignored. Regarding the

document's effect on the prosecution, he explained it did not alter his

belief In Davis' guilt, but merely suggested he may have misinterpreted

her motive.*** Thompson added an explanation that Harris' claim of the

Importance of the letter-diary had merely meant that since the proof had

been promised to the jury, it would look bad if the prosecution was not 17 allowed to present that proof. 212

The deliberative point of Ill-fact was an Issue In the Angela Davis trial. While the defense raised the Issue on both general and specific levels, the prosecution responded only on the specific basis. It is worth noting at this point that the raising of the 111-fact issue was in part responsive to the motive and consciousness of guilt elements of the prose­ cution organization. In Chapter IV we discussed the strategy of focus as used by the two sides. The defense focus dominated, and only these two elements, reorganized, were retained. The defense not only had the advantage of the trial being focused on its strongest arguments, but even that which

It allowed the prosecution to keep was turned into advantage by using It as a deliberative basis. When Harris failed to respond to the general 111- fact, he may have undermined his own forensic case. This is an important observation for understanding the relationship between forensic and deliber­ ative issues in an alleged political trial.

The point of 111-deflnltion is where the criteria for identifying political prisoners is applied to the described behavior. In her article on the subject Davis partially defined political prisoners in this way:

There is a distinct and qualitative difference between one breaking a law for one's own individual self-interest and violating it in the interests of a class or a people whose oppression is expressed either directly or indirectly through that particular law. The former might be called a criminal (though in many instances he is a victim), but the latter, as a reformist or revolutionary, is interested in uni­ versal social change. Captured, he or she is a political prisoner. . . . In all instances, however, the political prisoner had violated the unwritten law which prohibits disturbances and upheavals in the status quo of exploitation and racism. This unwritten law has been contested by actually and explicitly breaking a law or by utilizing constitutionally protected channels to educate, agitate and organize the masses to resist.

Later, she explained:

The offense of the political prisoner is his political boldness, his persistent challenging— legally or extra-legally— of fundamental social wrongs fostered and reinforced by the state. He has opposed 213

unjust: laws and exploitative, racist social conditions In general, with the ultimate aim of transforming these laws and this society into an order harmonious with the material and spiritual needs and interests of the vast majority of Its members.

Davis1 efforts to challenge "fundamental social wrongs" had been made clear In the general Ill-fact statement of her efforts to help the

Soledad Brothers and her work with many other social groups.

While her definition Included the fact that some political prisoners had used extra-legal means to challenge the social structure, her claim was that she had used only legal means. Her own use of "constitutionally protected channels" for educational purposes was explained In the opening statement.

It will be confirmed on the witness stand that all the activities of the Soledad Brothers' Defense Committee, of which I was the Los Angeles Co-Chairwoman, were open and were legal. The evidence will show that our meetings were open to anyone who wanted to participate in them. The evidence will show that we organized demonstrations, rallies, leaflettlng campaigns and various other Informational and educational activities. You will learn that before any of us had any personal contact with any of the Soledad Brothers, we on the defense committee felt that these three black men charged with killing a prison guard were being persecuted not because they had committed any crime but because of their militant political stance and because of their efforts to improve the character of prison*life from within. Because this is the way we view the Soledad Brothers' case, we knew that our most effective approach had to be that of informing and educating the public about their case, about other cases, and about the oppressive conditions which prevailed in prison. We attempted to show people everywhere that the Soledad Brothers were victims of political oppression. We attempted to show why they had been singled out as defendants in a very serious criminal case. Members of the jury, you will see when testimony is adduced to this effect, that we sought out those kinds of activities which per­ mitted us to involve ever greater numbers of people in the public defense of the Soledad Brothers. Testimony will make it clear that we felt that the influence of large numbers of people would help win them an acquittal and that they would be freed in that way from an unjust prosecution. 0

In his argument for the defense motion for a directed verdict of acquittal Branton explained how much of the prosecution's evidence was merely proof of Davis' exercise of her First Amendment rights. 214

In this case, If the evidence proves one thing, even the prosecution's evidence shows without question and it shows beyond a reasonable doubt that Angela Davis was involved in the pursuit of First Amendment rights. There is an abundance of evidence in this case to show that she was involved in a political campaign to free the Soledad Brothers by legal means, by making speeches, by attending rallies, by attending an art auction, by having a house In the Bay Area for the use of those people who might come up here In connection with the relatives who might have some of their relatives in Soledad Prison. The very letters that he introduces from which he would like to have this jury to draw a conclusion of criminality are letters which establish beyond a reasonable doubt all the myriad of things which she was doing in pursuit of her First Amendment rights.21

While he argued other reasons for favoring the motion, his conclusion

emphasized her legal behavior.

There is not one word of indirect evidence to connect this Defendant with any crime charged unless that indirect evidence is to allow the jury to draw inferences from legal, lawful conduct and to draw those inferences under circumstances where the same lawful, legal conduct more pointedly and more assuredly and more abundantly points to innocence rather than to guilt.22

It was the defense's position that Davis was being persecuted because she associated with Jonathan Jackson, who had been exercising his First

Amendment rights toward the same goal she had, freedom for the Soledad

Brothers. Branton charged Harris with concluding falsely that because Davis and Jackson had the same goals, and Jackson later committed a crime, Davis 23 must have helped.

Harris responded by denying he was using Davis' exercise of her rights to prosecute her.

The observations of Mr. Branton that we have relied upon the exercise by Miss Davis of her First Amendment rights somewhat startles me because we have offered no evidence of any rallies. We have offered no evidence of any speeches that Miss Davis made. We have offered no evidence of her participation in the campaign to free the Soledad Brothers by legal means except as that is incident to factual matters relating to the criminal charges here.2*1

At no time did Harris deny the definition of a political prisoner.

That definition, however, was never explicitly presented in the trial 215

context. It was left Implied, while the defense concentrated on presenting

prosecution behavior toward Davis which characterized her as a political

prisoner. Thus it was to charged chat she was guilty of nothing more than

openly and legally opposing the justice system that Harris had to answer.

As in the case of the ill-fact point, Harris approached ill-

deflnition from the forensic framework. In essence, therefore, the develop­

ment of his entire criminal case was denial of Davis' deliberative position

that she was arrested for exercising her rights and was being persecuted

as a political prisoner.

In conclusion, we examined the trial transcript from the ill frame

of the deliberative perspective. We found two issues, one in ill-fact,

and one in 111-definition.

In ill-fact the defense established the problem of persecution

generally by referring to the numerous current causes in which Davis

worked and by describing the historical treatment of blacks, militants,

and communists. They established the problem of persecution specifically

by relating Davis' criminal indictment to her treatment by UCLA, describing

the surveillance of her activities, and implying she had been kept jailed

unjustifiably. The ability of the defense to raise this issue may partly

have been the function of its refocus of prosecution forensic issues.

The prosecution responded from the forensic framework, claiming

Davis was more interested in George Jackson than other political prisoners,

that the jury should not decide guilt on an emotional basis, and there

always had been sufficient cause to keep Davis in jail.

In 111-definition the defense claimed Davis' arrest and trial was based on her exercise of her First Amendment rights. The prosecution, 216

again from the forensic framevork, denied that they employed use of her

rights against her.

The raising of the issue of an ill is most notable because it

is as close to the use of extra-rational proof as the defense gets. It

is a point where ethos and pathos seem to dominate logos. The characteri­

zation of Davis as a championer of the causes of all oppressed groups

serves as an ethos based argument to deny the physical evidence presented by the prosecution to establish motive and consciousness of guilt.

Branton's sketch of the oppression of blacks has moments of strong emotional appeal. Certainly the ill-fact Issue relates to forensic fact, quality, and objection issues, and can be characterized as lending to the weighing of logical proofs. However, what stands out to the transcript reader

(and perhaps to the hearer, in the case of the jury) when first encountering

.the elements of the ill-fact arguments, is not their relationship to the

forensic case. The Impact of the proofs is the creation of the impression

that there exists a pitiable racist state where Davis fights seemingly

Insurmountable odds to help untold numbers of oppressed persons. The

Impact is heightened by the contrast to the otherwise forensic-dominated trial in which the stasis of fact contains most of the argument.

Frame of Reformability

Within this frame the cause of the problem is identified, as well as the extent to which it can be corrected. The third and only other deliberative issue in the Davis trial was reformability-fact. A general statement for this point would be: The cause of the persecution of blacks, resulting in political prisoners, Is the racist legal system. More specifically it would be stated: The cause of Angela Davis* persecution 217 as a political prisoner Is the California racist legal system. Recall that In Davis1 written discussion of the problem of political prisoners she explained that "even when containing our resistance within the orbit of legality, we have been labeled criminals and have been methodically 25 persecuted by a racist legal apparatus." That apparatus was what she identified as the cause in need of reform.

The defense did not develop a general analysis of the cause, but concentrated on the functioning of the California legal system against

Davis. Her attorneys charged officials with legal transgressions In almost, every step of the investigation.

In June of 1970 Angela Davis had tried to send a letter to George

Jackson by including it in a letter from John Thorne. Davis was not on

Jackson's authorized mall list, but Jackson's attorney, Thorne, was authorized. Davis' letter contained a postscript from Jonathan. The total letter had been confiscated in San Quentin's mall room, and was entered as evidence by Harris. Branton took issue with the confiscation, implying officials had run roughshod over Jackson's right to receive a letter from his brother. Branton questioned Raymond Kelsey, who had worked in the mail room.

Q (Branton] Mr. Kelsey, as a part of your duties in the mail room, you had a list of all of those people who were authorized corres­ pondents with each of the Inmates who received mall, did you not? A [Kelsey] Yes, yes. Q And isn't it a fact that Jonathan Jackson, the brother of George Jackson, was an authorized correspondent with his brother George? A I don't remember, he possibly was at that time. Q Well, when you saw the name Jon at the bottom of that, did you associate that as being Jon, short for Jonathan, the brother of George? A Yes. Q Well, then, if that letter was from Jonathan to his brother and it was, he was an authorized correspondent, it wouldn't have been con­ traband, would it?26 218

Harris objected, claiming the letter was primarily from Davis. Branton established, however, that the signature of Jon was at the bottom of the letter. Granting two signatures, one from Jonathan and one from Angela

Davis, Branton asked:

Q [Branton] Is there any reason, Mr. Kelsey, you didn't let that part go through which was signed Jon? A [Kelsey]' Well, I couldn't cut the letter in two. Q You couldn't? A No. Q Well, could you send it back to the sender? A If necessary, we could have, yes. Q But you didn't send it back, did you? It was kept? A Right,27

In this manner the defense established Implicitly the relatively arbitrary control of officials over prisoners.

On-the-scene investigation came under Indictment from the defense also. Harold Pennington of the San Rafael Police Department had helped clear the van after the shooting. Branton characterized him as Interested more in guns than people, and careless in preserving evidence.

Q [Branton] . . . I notice that after the van stopped you went to the back, you seem to have been preoccupied with taking the weapons out of the van rather than getting the people out of the van; would that be a correct statement? A [Pennington] No, sir. Q Well, when you first went to the van and those doors were opened, isn't it a fact that you first removed the shotgun from the van before you did anything to help get any of the people out of the van? A Yes, sir, Q Now, did you do that on your own initiative or did Inspector Sousa tell you to pick up that shotgun? A On my own, sir. Q And when you picked up that shotgun, did you pick that shotgun up in any particular way— by that, I mean: By using a handkerchief to pick it up to keep from obscuring any fingerprints on it or handling it at some part where you figured that there might not be any finger­ prints or did you just pick it up in an ordinary fashion? A I don't recall exactly how I picked it up. Q Well, the truth of the matter is that all of the time that you were handling that shotgun there that day, you handled that shotgun in such a way that you weren't concerned about any fingerprint images being on that gun; isn't that a fact? 219

A Perhaps at the beginning, yes, sir. Q Well, you say at the beginnings Did you ever at any time handle that gun in such a way that you wanted to preserve the fingerprints? A Yes, sir. Q At what point did you do that? A After I removed the gun from the van and placed it over against the back of the van. . . , Q , . , I noticed that when counsel showed you People's Exhibit 697 for identification, it had two shells in it, one expended and one unexpended, does it not? A Yes, sir. Q Didn't you say that you removed three from that shotgun? A Yes, sir. Q What happened to the third one? A I don't know. Q What do you mean you don't know? A I don't know. Q What did you do with it? A I didn't do anything with it. Q You took it out of the gun, didn't you? A That is correct. Q What did you do with it after you took it out of the gun? A Placed it on the ground next to the shotgun. Q In close proximity to the van? A Yes, sir. Q And, when you went back there to— you did say you tagged those, didn't you? A Later, yes, sir. Q And you did place your Initials on them? A Yes, sir. Q And those initials still appear on them? A Yes. Q Well, when you went back to place your initials on them, was the third one there? A No, sir. Q Do you know who took it? A No, sir. Q Did you look for it? A At the time I noticed it was missing, yes, sir. Q Where did you look? A By the van. Q You mean on the ground? A Yes, sir. Q Did you spend very long looking for it. A No, sir. Q How long did you spend? A I don't recall.

Thus the representatives of the legal apparatus were pictured as arbitrary, inhumane, and careless. 220

Post-arrest Investigating authorities also were challenged by the defense. Walker questioned James McCord, the FBI agent who searched

Davis' apartment and found the photocopies of two June 1970 letters from

Davis to Ceorge Jackson. Walker Implied that the search had gone beyond that authorized by an arrest warrant. Furthermore, she suggested that since the letters were photocopies and not originals, and since McCord’s 29 log did not identify them as such, the FBI may have planted the evidence.

While McCord resented Walker’s innuendos, and said so, the defense had succeeded in further suggesting the cause of Davis' persecution.

As the prosecutor, Harris did not escape his share of attacks for his role in the legal apparatus. In speaking for his motion for a directed verdict of acquittal Branton indicted Harris for prosecuting

Davis on the basis of such a weak case.

. . . yesterday afternoon at approximately 3:15 or 3:20 when the Prosecution ended its phase of the case by saying, "The Prosecution rests," it was my Immediate reaction to say, "You what; you mean that you have kept this Defendant in jail for over 16 months, and you have subjected her to the agony and the terror of having to go through a criminal trial with charges of such magnitude, and that's the only kind of evidence that you have?" And I felt like turning to the Prosecutor and saying, "Are you ready, sir, to make your motion for dismissal?". . . But the Prosecutor didn’t do that. If he had, I do believe that he would have restored some of the respect, some of the dignity to the Prosecutor's office that I feel has been so severely tarnished by reason of subjecting the People of the State of California to such millions of dollars in costs and this Defendant and everybody else to all of the worry and aggravation of a useless prosecution.30

Other indictments of Harris included his alleged attempts to

Influence witnesses. Recall from our discussion of forensic strategies that Maria Graham agreed her pre-trial orientation meeting with Harris may have influenced her testimony. The defense Implied Louis May may have received favorable action on his parole for agreeing to testify. 221

Dr* Manwarlng, after a four hour meeting with members of the Attorney

GeneralLs office, had filed a second autopsy report reversing his identi­

fication of entrance and exit wounds* A defense witness, attorney Marvin

Stender, summed up the defense's Indictment of the .prosecution. When

cross-examined by Harris about why he had not brought the information he

had to the attention of the Attorney General's office, Stender asserted,

"On the basis of my work with the case, I didn't really believe that your 31 office was particularly Interested In finding out the truth about that."

Legal procedures were not the only cause identified. The role

of racial attitudes was described also. Eyewitnesses played a major part

in the prosecution's case. Concerning the week of August 4, 1970, three of the five people who identified Davis aB being with Jonathan Jackson were San Quentin guards. They were considered part of the legal apparatus,

therefore. Two of the witnesses at the service station who identified

Davis as the woman in the van with Jackson, Alden Fleming and Michael Vonada, were characterized as part of that system. Moore said:

[Alden Fleming] wants to be helpful* He is a part of the Marin County operators* As a matter of fact, he was even Involved in apprehending the escapees. Remember that he testified that he got a call Co be on the watchout for the escapees on August 7th. He was a part of the law enforcement apparatus of that county. So he is not a disinterested witness. Neither is Michael Vonada. He too was a fireman. He and Mr. Fleming worked together. They know each other. He drops in the station on occasion.32

All of these witnesses were charged with racism in their identifications.

Moore lamented:

There is a matter which concerns me very greatly and makes me very frightened in a way, and that ls that all of the identifications of Miss Davis have been racial stereotypes, and you must understand that. You must understand that each witness who testified in this 222

case either said a fair skinned black lady; light complected Negro woman; colored girl; colored woman; light complected, plain Negro; plain Negro. Others, fair complected; light complected. Others, tall, black; young, black woman. ihiat ls a* light complected Negro? Who is a fair complected colored woman? Who is a young, black woman that ls fair complected? Is Willie Hays fair complected as compared with Vida Blue? How much difference in color does there have to be between two black people for one to be fair complected?33

In regard particularly to Alden Fleming it was said:

Then he went into the whole racial bit about most black people have flat faces, and I think they are heavier faces than others. And that's not true. That's just a racial stereotype. There is no truth in that at all. He said that he tried to put himself in the position of having familiarity with black people by saying 15 to 20 percent of his trade was black customers. If that's true, why did his son say that he rarely saw black people at the service station and had no contact with black people.34

By placing together the descriptions of Davis given by members of the legal system, the defense was able to suggest a racial bias.

All of the testimony of incarceration, investigation, and identifi­ cation characteristics lent credence to the defense's deliberative claim that the cause of Angela Davis' persecution as a political prisoner was the racist legal apparatus.

The prosecution did not permit its legal apparatus to go undefended, however. Harris regularly denied the fact of the alleged cause. When

Kelsey was charged with arbitrarily removing Davis' letter from Thome's, and thereby denying the authorized message from Jonathan to get through,

Harris established it as a reasonable action since no more than eight lines were written by Jonathan, while the rest was an unauthorized message from Angela Davis. When McCord was alleged to have ransacked the Davis apartment, Harris established that he had not gone beyond the authorization 35 of his warrant. 223

Harris did not limit himself to denying the defense charges of biased legal apparatus. He gave an example of how that apparatus pre­ viously had produced a favorable decision for Davis, and he developed a posture of fairness in this trial. On several occasions he made state­ ments to the jury reminding them of the prosecution's burden of proof, the presumption of Innocence of the defendant, and what constituted usable evidence.

As a sign of a non-racist legal system Harris pointed to the

Court's favorable decision about Davis' UCLA position.

I do call your attention to one fact, and that is that her experience with the California courts over the most important question It seemed to me she had had so far in her life, and that was her position at UCLA as a professor, had been resolved, and we have the Summary Judgment here in evidence from the Superior Court In her favor and against the Regents of the University of California. There was an appeal pending, of course, from that decision, but she had been in the trial courts on that rather explosive subject, and she had prevailed. I will leave it to the defense to speak to her fear of police violence and the evidence that that is based on, and the evidence, if any, of her fear of an unfair trial.36

Harris demonstrated his Intent to make this trial fair to Angela

Davis also. He started the trial by explaining the function of an opening statement and how authoritative his statement should be considered in terms of upcoming evidence and testimony.

. . . what I am going to tell you this morning and probably will go into this afternoon is what I think in my best judgment the evidence will show. What I am saying is not evidence. If there is some variation or even— I hope there won't be— but if there ls some conflict, then you have to be guided in your decision in the case by what you hear from the witness stand and not by what 1 tell you.37

In his closing argument he took time to remind the jurors of the prosecution's burden of proof and of their promise to decide the case on the basis of evidence. 224

. . . the prosecution closes the case— opens and closes. So I will be speaking to you twice. The reason for that is that the pro­ secution carries the burden of proof. I am sure you all recall the questions that you were asked during the voir dire examination in connection with that burden of proof and with the doctrine of reasonable doubt and the other matters that are related to that. Well, the prosecution has that burden. It accepts that burden...... I want to get right down to the charges here and the evidence in support of them. I'm not going to attempt to make this a speech In the sense of any kind of oratorical flourishes. I asked you, and I think the other attorneys asked you when you were questioned before serving on this jury, if you would decide this case on the evidence. And you indicated you would. So I am going to talk to you about the evidence.

He later alerted the jury to be on the look out for errors he might make in characterizing the case.

This trial has lasted some time, and we have transcripts. They stack up quite a ways. You heard the evidence. If you think that I'm wrong, please, you— you make your mental note. And I am sure I will be corrected by counsel for the defense on anything that is significant. I wouldn't be surprised if I make a factual error. So you heard the evidence, and you decide when I refer to something being done, whether or not that's true.39

He encouraged the members of the jury to listen to the defense explain their own case and not to rely on what the prosecution said the defense'8 case was.

I've characterized the defense sometimes that they seriously dispute this or seriously don't do that or something. I don't mean to give you any more than my opinion of what their feelings and their atti­ tudes are,they will make that very clear to you either later this afternoon or tomorrow morning. Let them speak for themselves.

These types of statements scattered throughout the trial helped the prosecution establish an image of fairness toward the defendant, and undermined the defense's claim that the trial was a frameup by a racist system. 225

In conclusion, the point of reformability-fact was an issue in the Angela Davis trial. The defense charged the prosecution's case was based on arbitrary, Inhumane, careless, illegal racist treatment of people and evidence, which amounted to persecution of the defendant as a political prisoner by a racist legal apparatus.

The prosecution denied the cause by defending its witnesses and procedures, and by making objective statements to the jury to demonstrate fairness. As in the case of the ill-fact and 111-definition points, the first part of the prosecution's response to the reformabillty-fact point was from within the forensic framework. Only the second response, the creation of a posture of fairness,could be considered deliberative in nature.

Our examination of the Angela Davis trial from Hultzdn's frame­ work of deliberative status uncovered three issues. The first, ill-fact, was the claim that blacks in general and Angela Davis in specific are persecuted. The defense pointed to Davis' work with the Soledad Brothers defense and other social action groups, the historical oppression of blacks, militants, and communists, the relationship between her indictment and the problem at UCLA, the surveillance of her activities, and her confinement in jail for months before the prosecution found evidence to prove its motive. We noted that the ability of the defense to raise this

Issue may have been a function of its refocus of prosecution forensic issues.

The prosecution replied from the forensic framework that Davis was more interested in George Jackson than political prisoners or prison reform. They said her guilt should not be decided on an emotional basis, that they were not offering evidence of a political nature, and they had a provable motive when she was arrested and had merely changed it later. The second issue was based on the point of ill-deflnltlon. The defense claimed Davis was a political prisoner because her arrest origi­ nated from exercise of her rights.

The prosecution, from the forensic framework, denied it used evidence of the exercise of those rights against her, and claimed her case was criminal in nature.

Importantly, the unique aspect of the status of ill was the defense's introduction of extra-rational proofs.

The third issue Involved reformability-fact. The defense identi­ fied the racist legal apparatus as the cause of the political prisoner problem. In specific, the California personnel were named the cause of

Angela Davis being persecuted as a political prisoner. Jail and investi­ gation procedures, and personnel and witness bias were developed as contributing to Davis' persecution.

The prosecution defended its procedures and witnesses, and made overt efforts to be fair to Davis in what they told the jury.

Nov that the deliberative issues have been identified, we can examine the strategies the two sides employed to advance their positions on those Issues. NOTES TO CHAPTER

Lee S. Hultzdn, "Status in Deliberative Analysis," in The Rhetorical Idiom? Essays in Rhetoric. Oratory. Language, and Drama, ed. Donald C. Bryant (Ithaca, New York: Cornell University Press, 1958), pp. 108-23. 2 Angela Y. Davis, "Political Prisoners, Prisons and Black Libera­ tion," If They Come In the Morning, eds. Angela Y. Davis, Bettina Aptheker and other members of the National United Committee to Free Angela Davis and All Political Prisoners (New York: The New American Library, Inc., 1971), pp. 27-43. 3 Meiklejohn Civil Liberties Institute, The People of California v. Angela Y. Davis (Dobbs Ferry, New York: Trans-Media Publishing Co., NO. 503, 1974), p. 2334, Hereinafter referred to as The Trial Transcript.

4Ibid., pp. 2337-39. i 5Ibid., pp. 7016-19.

^Angela Y. Davis and Bettina Aptheker, "Prefare," If They Come In the Morning, eds. Angela Y. Davis, Bettina Aptheker, et. al. (New York: The New American Library, Inc., 1971), p. xlv.

7Ibid., pp. xvii-xviii Q The Trial Transcript. 9 Ibid., pp. 2339-40.

10Ibid., p. 4616.

Ibid., pp. 4624-25.

12_. j . Ibid., p. 2189.

Ibid., p. 6959.

Ibid., pp . 7137-38. 15 Ibid., p. 2146. 16.. .. Ibid., p. 4636.

17Ibid., p. 4641.

227 228

*®Davls, pp. 29-30.

19Ihid., p. 31.

28The Trial Transcript, pp. 2333-2334.

21Ibld., pp. 6257-58.

22Ibid., p. 6269.

2W , p. 6261.

24Ibid., p. 6274.

25Davis, 28. 26 The Trial Transcript, p. 4397.

27Ibid., p. 4399.

28lbld., pp. 3273-74, 3276-77.

29lbid., pp. 4189-90, 4363-64.

30Ibid., pp. 6246-47. ■

31Ibid., pp. 2466-70, 3795-98, 5885-87, 6396 32 Ibid,, pp. 7002-3.

33Ibid., pp. 6981-82.

34Ibid., p. 7002.

35Ibid., pp. 4193, 4399.

36Ibid., p. 6957. .

37Ibid., p. 2142.

38Ibid,, pp. 6831-32.

39Ibid., pp. 6868-69.

A0Ibid., p. 6950. CHAPTER VI

DELIBERATIVE STRATEGIES

As In the case of forensic Issues, once the deliberative issues

are selected the advocate must plan his strategy for the most effective

presentation of his position on those issues. He defined strategies as

"broad plans which determine how an advocate will adapt the presentation

of his analysis . . . to heighten the persuasive impact. . . The deliberative issues in the Angela Davis trial already have been described in Chapter V. Based on further examination of the trial transcript we can now identify the strategies. Four strategies were employed, two each by the defense and prosecution. The defense used description and vilification. The prosecution chose focus and refutation. Let us examine each of these more closely.

Defense

The defense wanted to persuade its audience that blacks in general and Angela Davis in particular were persecuted by the racist legal system. Further, they wanted to convince them that the particular cause of Davis' persecution was nothing more than the exercise of her rights.

They selected the strategies of description and vilification to accomplish these goals.

Description

Since the Davis jury was white, chances were good that they had little or no exposure to the issue of political prisoners. In that case 229 230

the problem was not convincing them that the problem was serious, or perhaps

even that there was a problem. Initially, the audience had to be famil­

iarized with the people and conditions. The defense accomplished this

by using description. Description is the verbal, written, or graphic

representation of essential characteristics of a concept, person, object,

or situation for purposes of clarity and understanding. The defense's

analysis of the need for such description was made clear in Branton's

closing argument.

. . . I am going to mention something and talk about something for a few minutes which, to you as white Americans, might be diffi­ cult for you to understand unless you can understand what it means to be black in this country. You're a cross-section of Santa Clara County. You are the young and you are the old. You are the Jew and you are the Gentile. You are the worker, you are the executive. And to that extent, you are a cross-section, but not only do I see no black face, but I don't think that I would be mistaken if I said that not many of you— not many of you in the totality of your lives have been close enough to black people to know what it means. . . .2

A collection of descriptions was useful in orienting the jury to the

deliberative issues and their relationship to the case. If the jurors could understand the deliberative analysis, it might cause them to view Davis'

forensic analysis differently. For this reason the defense concentrated much of its description on three areas important to the question of political prisoners and particularly Angela Davis. These areas included

the treatment of prisoners, the practices of prison officials, and the life style of Angela Davis.

The plight of blacks in general was effectively described by

Branton in his closing efforts to put the forensic issue of flight into perspective. 231

. . . I think you have to understand what It is about the history of this country which has made an Angela Davis. I am going to ask you, if you will, for the next few minutes to think black with me, to be blacks . . . If you are black, you know that 300 years ago your forebearers were brought to this country in chains on slave ships, and you know that only the strongest of them survived. You know that the weak died in the holds of those ships because of the fact that they died of their own vomit and their own stink and their own stench. Everytlme you look at the color of the skin, you realize that it's the result of some white man having raped your grandparents. You come to this country, and they pass a law. They call it the Fugitive Slave Law. It means that they can chase a slave across every border, bring him back, bring him back in chains, no trial, no JurY* just sign an affidavit that this slave is mine. Then, when this country declares its Independence, it speaks in a document, which has gone down in history as one of the greatest documents of our time. It's a document which was drafted and written by men who owned hundreds of sJ rives. It says: "We declare that all men are created equal"— all white men are created equal, not black because black men are counted as three-fifths of a man. Did you know that? In the beginning, we weren't even a whole man— three-fifths of a man. Then, there was a man by the name of Frederick DouglasB who was a great abolitionist, one of the greatest people that this world has ever seen. When John Brown had his raid at Harper's Ferry, the gover­ nor of the State of Virginia started looking for Frederick Douglass to charge him with a conspiracy to free the slaves. Frederick Doug­ lass fled this country and went to Canada. He fled it because of the fact that he feared what might happen to him if he were charged with a conspiracy to free the slaves, having spoken out bo eloquently on the right of all men to be free. Then, the Supreme Court of this country passed a decision which became known as the Dred-Scott Decision, and that decision said that the black man has no rights which a man ls bound to respect. That law became the law of this land for a long time. Here we are in the 20th Century. As a black person, you realize that the chains of slavery, visible or invisible, are still there In your everyday life. You realize that you can't buy a home where you want to because somebody is going to complain about it. Do you ever think that the slaves who were brought over on ships three hundred years ago would realize and believe that in the year 1972, a great part of the energy of this nation and of the courts ls taken up in finding out where a black person can go to school.3

During the trial itself the defense used description both to convince the audience of the problem and to help the jury understand the conditions that could cause Davis to support prisoners. One of the most 232

effective images raised was that of human beings chained together to prevent escape. Fleets Druogo, one of the Soledad Brothers, was brought

in by the defense to testify that he knew of no escape or rescue plan.

Branton, however, developed another line of questioning on an unrelated subject, but one which could enhance jury understanding.

Q [Branton] . . . did you get this name of the Soledad Brothers aB a result of the fact that all three of you were inmates at Soledad State Prison and all three had been indicted in a murder charge? A [Drumgo] Yes. Q In connection with those proceedings, when you were in the courtroom in Salinas and you were transported to the court in con­ nection with various hearings, would you tell us, please, how you were transported to the courtroom— you and your other two Soledad Brothers. A We had chains— chains around our side, Q Around your waist? A And chains on our feet. We had a chain going through our crotch to go around the side. And we was handcuffed together like this (indicating). And we had a lead chain, you know, around the neck to carry— you know, more or less it's supposed to be called a lead chain. Q And was one of you chained to the other so all three of you were chained together, as they transported you into the'cqurtroom? A They started doing that later on. They started putting us together. At first, we were just separate. Then they started putting us together.4

Susan Castro, a defense witness who provided an alibi for Davis for a time during the week preceding August 7, also was active in helping the

Soledad Brothers. Branton encouraged her to describe what motivated her to become active in the cause.

Q [Branton] . . . when you made your first trip to Salinas to a court hearing Involving the Soledad Brothers, was there some particu­ lar event that occurred there which motivated you to become active in their campaign? . . . A [Castro] Well, I saw these three men brought into the courtroom. They were chained. Their legs were chained, and they had chains around their waists, and their arms were chained to their waists. They had difficulty walking, and some papers were given to them, and they could not reach for them very far because of the restrictions of the chains. I was very moved by it. I w s b very concerned that it should take place. Q All right. Thank you. Did that sight involve you in working in their defense committee? 233

A Yes, it did. Q Did you then make efforts to involve other people throughout the state in the Soledad Brothers Defense Committee work? A Yes, I did.5

Defense witnesses were not the only ones who provided helpful descriptions. Prosecution witness Norene Morris was a juror for the

McClain trial and witnessed the courtroom events. Her description, encouraged by Branton, contrasted the cruelty of the chains with the unexpected kindness of the convict,

Q [Branton] . . . a little later on somebody was again putting wire around the juror's neck, juror number 5, I believe you indicated, and McClain yelled out, "I think you would have had enough of that. We are not animals. We are not going to act like them." A [Morris] That ls right. Q You remember that? A Yes, I do. Q Now when he said, "We are not animals, we are not going to act like them," you interpreted that to mean, "We are not going to act like our keepers," did you not? A I presume 1 did, yes. Q As a matter of fact, when Mr. Ruchell Magee was on the witness stand testifying before the entire jury, he not only had handcuffs on but he had shackles and chains on, did he not? A Yes, he did. . . . Q And, apparently Mr. McClain walked over to another juror who was shaking terribly with her hand to her mouth? A Yes. q And he asked if she was sick, and she couldn't answer, and he Saids'* something about he didn't want to scare them, his own mother had been so scared by the officers the first day that she couldn't come back into the courtroom, and then he told the juror to go back and sit down. Is that right? A That is right, yes. q And when someone wanted to take the baby he said, "No, we won't take the baby and we won't take this old lady." Is that correct? A That ls right. q And Joyce Rodonl, incidentally, was one of the jurors who was taken out of the courtroom? A Yes.... q ... he took hold of Joyce's arm, and he asked her if she was scared, did he? A Correct. q And that ls the point where you put in your opinion, "He seemed almost gentile"? A That is correct. 234

Q And he told her to come on and he asked her If she wanted her purse, and then he leaned down himself and picked up her purse and handed It to her and said, "Here, take your purse"? A That ls right.6

These descriptions were helpful in getting the jurors to under­ stand the treatment of prisoners and some of what motivated Davis.

Further understanding of the plight of the prisoner was gained with descriptions of prison practices and policy.

Testimony from officials such as Robert West, Robert Ayers, and

William Twells Included descriptions of the waiting and visiting rooms at San Quentin, as well as visiting hours, procedures, and surveillance.

Raymond Kelsey's testimony provided information regarding restrictions on Inmates' mail. All of this helped the jury understand the extent of 7 control correctional officers hold over prisoners.

One of the San Quentin policies that came under particular attack by Branton was the one of allowing no Inmate to escape. Question by question he drew from Joseph Murphy, a San Quentin officer, a description of the policy and its implications.

Q [Branton] . . . as I understood you on direct examination you stated that it is the policy of San Quentin officers not to allow the fact that escaping inmates have hostages to affect your action in any way, is that right? A [Murphy] That is correct, sir. . . . Q And, to be certain I understand the significance of that policy, sir, does that policy mean that, if people are attempting to escape and that they have hostages and that the guards are able at all to prevent that escape, that they are to prevent that escape even if it means that every hostage ls killed? That is what it means, doesn't it? A That ls correct. Q And that means, whether they are holding one judge or five judges, or one woman or twenty women, or one child or twenty childs— twenty children, that the policy of the San Quentin guards and correctional officers is that, at all costs, they must prevent the escape. Is that right? A That also includes the officers that work in the institution, sir. Q All right. Even if they are holding other officers who work at the institution, that should not deter the San Quentin correctional 235 i officers from preventing an escape at all costs. Is that right? A That is correct. Q In other words, it ls more Important to prevent the escape than to save human life. Is that correct? A Yes, sir.®

Questioning witnesses in this fashion drew out descriptions of the life of prisoners and the practices and policies of prisons. The jury, largely unfamiliar with this phase of society, began to understand and possibly believe the deliberative problem. Prisons, officials, and prison life became more real, and so did the problem.

In order to place Davis in the context as a political prisoner • her life also had to be described. A description of her activities had to be provided to prove she had behaved legally and normally. In her opening statement she listed several organizations and social causes with which she had been active. She explained further that her activities with the Soledad Brothers' Defense Committee had been legal, involving

"demonstrations, rallies, leafletting campaigns and various other infor­ mational and educational activities." Susan Castro testified that at lunch with Angela Davis during the week before August 7 Davis had been 9 concerned with getting more blacks involved in the Defense Committee.

These descriptions characterized Davis as engaging in typical, legal, organizational efforts for a cause she favored.

One of the impediments to the jury believing all of Davis' behavior was legal was her ownership of all the guns Jonathan Jackson had carried

In Haley's courtroom. By using description, however, the defense was able to establish that a history of persecution was reason for her to own the means of protection. Davis herself provided some background to account for the ownership of the weapons. 236

The evidence will show that there were very good reasons why I saw fit to purchase guns, reasons which were wholly unrelated to any criminal activities. In fact, you will become aware, as the trial progresses, that my experience with guns dates far back into my child- hood. You will learn about the neighborhood in which we lived, where my- parents still live today, and that it ls called Dynamite Hill,. - our house being situated on the very top of the hill. Because of constant threats and actual incidents of violence which took place in our neighborhood, my father had to keep guns In the house. We will tell you in testimony about our fears and apprehensions that we might be the next victims ourselves of a racist assault. We will tell you about our close friends, Including the four young girls in the church bombing in Birmingham who were struck down at the hands of racist bombers. You will understand that a black person who grew up in the South— for a black person who grew up in the South, particularly at the time when I was a child, guns were a normal fact of life. You will also see that when I left Birmingham, I could not leave behind all of these fears and apprehensions which had accumulated over all the early years of my life. When I came to California, I saw some of my apprehensions confirmed. Because I was Involved at that time in radical movements demanding urgent social change— and I have described to you some of these organizations and movements that I was involved in at that time— I often found myself the target of individuals in the community, extre­ mist individuals in the community who disagreed and who might express their disagreement with the goals we were seeking to accomplish in violent ways.I®

She explained further that recent persecution from persons opposing a

Communist teaching at UCLA was reason for continued need for protection.

Part of Branton's closing argument included the reading of hate mail

Davis had received regarding UCLA, her race, and her politics. During the trial Charlottee Gluck, the office manager for the UCLA Department of

Philosophy, was a defense witness who described the amount and nature of the mall received for Davis, and the necessity for changing the phone system because of the numerous calls. All of these descriptions helped establish that Angela Davis' life had often been in danger, not because of illegal behavior, but for championing unpopular causes.**

In conclusion, we have Identified description as one of the strategies employed by the defense to convince the jury and other audience 237 members of the persecution of blacks by the prison system, and of Angela

Davis by society» By enhancing jury understanding not only was the deliber­ ative cause advanced, but the forensic cause was aided by being placed in a perspective not otherwise available to an all white jury. This inter­ relationship is Important because it implies that leaders of social movements may be able to use their cause to advance their criminal defense, while gaining a wider audience for their deliberative persuasion.

Vilification

While description was useful in persuading the audience that a problem condition existed, it was not used as much to persuade the jury of the cause of the problem. Vilification, which ls the characterization of the opposition as deliberately evil, was used Instead. As in the case of description, this strategy also was closely related to the forensic strategies. Recall that one of the defense's forensic strategies was refutation by undermining the credibility of prosecution witnesses.

Vilification is similar, except that it suggests deliberate intent to bias testimony. It implies a plan against the defendant. Davis hinted at this plan when she promised to show the jury "the process whereby an innocent 12 person can be set up. . . ." Branton, in the argument over the eighteen page letter-dlary, Implied that the prosecutor was trying to get a con­ viction Irrespective of the defendant's rights. Replying to Harris' claim that he needed the document partly because he had promised it to the jury, Branton said: If he hasn't got any more evidence that he can proceed with in this case, in the absence of Exhibit 126, I suggest that the only honorable thing for him to do is move for a dismissal in this case. I want to remind Mr. Harris that it Is not the responsibility or the duty of a prosecutor to get a conviction at all costs.13 238

In his portion of the closing argument Moore also implied a plot.

He noted that prosecution witnesses seemed to come in groups. A couple

of witnesses would provide testimony, and then another would follow with

less definite identification, but whose information was corroborative.

In discussing the relationship of the testimonies of Robert West, Robert

Ayers, and William Twells, he noted:

. . . Mr. Twells has not identified Miss Davis at all. He speaks of a colored girl in one Instance and a colored woman light complected, about 5,8" in the 20s in another. His testimony apparently, on,that particular aspect of the case, was only offered to be corroborative, to corroborate testimony apparently from West, Lieutenant West and Ayers, and another witness I will speak about in a moment. But it ij very interesting the pattern of proof. The very same thing occurs with respect to the service station people. You have roughly about 3 witnesses who come out and make some statement of a racial stereo­ type Identifying someone, and one witness who just trots in and gives corroborating detail. There must be a reason for that pattern. I don't know what the reason is. I didn't set it up in that fashion. I suppose that the Prosecution, in its response, will simply say, well, they take witnesses as they come. I suppose they do, but that ls a curious circumstance and, as a juror, you can take it under consideration. ^

Throughout the questioning of witnesses the defense consistently

implied that the prosecution would stop at nothing to get a conviction.

Moore drew an admission from Maria Graham that an important part of her

testimony had been influenced by Harris during a pre-trial orientation

session. Moore's questioning of Louis May implied an odd coincidence

between his agreement to testify for the prosecution and his parole. The

defense implied Interference with the pathologist's autopsy report when,

after a four hour meeting with personnel from the Attorney General's

office, Dr, Manwaring had filed a second report reversing the entrance

and exit wounds on the bodies and adjusting the path of the projectiles to

correspond. It was further suggested that the sets of photographs used by the prosecution were so highly biased that a witness could hardly avoid selecting the ones of Angela Davis, and that this in turn conditioned "15 witnesses to identify Davis in court*

On two occasions in a Chambers conference over the admission of the letter-diary, Moore directly attacked Harris. Regarding the docu­ ment, Harris began:

It is a criminal trial, and I want to see justice brought about. This is an admission. It is relevant, Ue think it should go in evidence. MR. MOORE; It is disgusting. MR. HARRIS: Thank you, Mr. Moore. I appreciate that. MR, MOORE: Your point of view is disgusting. THE COURT: Talk one at a time. MR, MOORE: You are a distorted blgotist. It is disgusting absolutely THE COURT: Now, one at a time. I will hear each of you. I will be patient with you. MR. HARRIS; I appreciate those remarks. I am glad the record shows them.

Having, on the record, labeled Harris a blgotist, Moore then attacked his behavior. Moments after the first exchange Harris was trying to explain his editing criteria when this exchange took place:

We have tried to eliminate all references except to those matters that involve the author of the letter and the recipient of the letter and to matters involving the state of mind of the Defendant which we think are relevant to the case. I am sorry if these things are found obscene. MR. MOORE: It is not the things in the letter that ls obscene. It is your pawing over it that is obscene. That is what I mean. MR. HARRIS; I don't care what you mean. MR, MOORE: I don't care what you care. THE COURT: Mr. Moore— MR. MOORE: I wanted the record to be clear as to what I think ls obscene.17

Even the concluding remarks from Branton's closing argument suggested an Intent to deceive.

You have heard people talking about, in this case, the desire to be a part of history. Whether you want to or not, you are going to be a part of history. We have labored hard and long to try to get over to you the gigantic hoax that had been committed, not only against this defendant but against the name of American justice in the country 240

The perpetration of that hoax was credited primarily to the prosecutor,

with aid, willing or unwilling, from other participants in the legal

apparatus.

In conclusion, we found the deliberative issue of the cause of

the ill was presented through the strategy of vilification. Questions to

witnesses and statements to the Judge and jury characterized the legal

apparatus, especially in the person of the prosecutor, as deliberately

evil In their efforts to affect the evidence against Davis.

By examining the deliberative issues of the Angela Davis trial

as presented by the defense, we discovered two strategies. On the

assumption that the jury had little personal knowledge of blacks and

their related problems the defense employed description, the verbal, written, or graphic representation of essential characteristics of a

person, object or situation for purposes of clarity and understanding,

to persuade the audience of the persecution of blacks. In order further 4 to persuade the jury of the cause of the problem, vilification was used.

This strategy, which is the characterization of the opposition as deliberately evil, suggested to the jury the existence of a racist legal apparatus, in this case personified by the prosecutor. *» i Host Important is the manner in which the deliberative strategies meshed with the goals of the defense's forensic analysis. The strategy of description, aimed at persuading the jury of the ill, was equally useful for undermining the alleged motive, accounting for Davis' flight, and providing a new perspective from which the jury could evaluate the evidence. Vilification, directed at persuading the audience of the cause of the deliberative problem, was equally useful in partially undermining prosecution witnesses, and thus refuting Harris' case. 'Prosecution

Theoretically, the prosecution did not have to involve itself in responding to deliberative arguments. Their success or failure was entirely dependent on their handling of the forensic strategies. Since the defense entwined their deliberative issues and strategies with their forensic positions, however, the prosecution was forced to recognize them, and make choices on how to handle those deliberative Issues. Their choice of position on the issues might be that blacks in general and

Angela Davis specifically were not persecuted. We could predict Harris would deny Davis was arrested for political reasons or that he was trying to convict her at all costs, A direct response to the substantive defense claims would include also a denial that the legal apparatus was racist.

For dealing with the deliberative issues the prosecution used two strategies, focus and refutation.

Focus

Focus, as we defined it in the discussion of forensic strategies, is the emphasis of selected elements of the case for purposes of con- vincing the audience that they are the most important elements and should be the basis for decision.

The prosecution did not want the case decided on the basis of deliberative issues. After all, they were conducting a criminal trial, and the forensic issues, where they could offer analysis and evidence, were the bases upon which they wanted the decision, made.. As a result, they tended to refocus the defense's deliberative material to fit the prosecution's forensic framework. 242

The general ill-fact claim of black persecution, for example, was not relevant to the criminal trial of Davis* Harris, therefore, did not respond to Branton*s historical sketch except to suggest it was inappro­ priate to base forensic decisions on emotional appeals. To Davis* recital of her membership in many social action organizations, and its implication of many political victims, Harris responded by making the issue specific and placing the discussion back into the forensic framework with the reasser- tlon that Davis' motive was love for George Jackson, and not interest In 19 all political prisoners.

The same pattern was employed with the specific ill-fact of Davis' persecution. The claim that she. was a political prisoner and that her arrest was "the logical extension of the unlawful attacks" against her by California and the Regents at UCLA was denied by Harris from a forensic stance. He assured the jury that the prosecution's case did not rest

"in any degree whatever upon the nature of the political views of the defendant." Thus Harris again removed the prosecution's case away from the political and back to the criminal area. Even the defense's claim of persecution because the letter-diary which evidenced motive was not written until after Davis was in jail was met with refocus when Harris replied he had always had enough criminal evidence against Davis, and had, 20 in fact, wanted to go to trial earlier.

The 111-deflnition assertion that Davis had been arrested merely for exercising her First Amendment rights was denied by Harris' assertion 21 that no political evidence had been used. Again, the prosecution refused to discuss the deliberative Issues. It insisted it had a criminal case and continually returned to it, forcing the defense to do the same. 243

In the reformability-fact category the posture of fairness assumed by the prosecution was expressed always In terms of forensic demands.

Harris did not adopt the deliberative language of extent of responsibility, or Inherency of the cause. He spoke In terms of the burden of proof and 22 the difference between factual evidence, personal opinion, and Inferences.

In conclusion, one of the deliberative strategies employed by the prosecution was focus. That ls the emphasis of selected elements of the case for purposes of convincing the audience that they are the most

Important elements and should be the basis for decision. In the Angela

Davis case the prosecution selected the forensic Issues as the bases on which they wanted the audience to decide the case. As a result they refocused defense deliberative'arguments In terms of the prosecution forensic Issues, and responded to them from that framework.

Refutation

The difficulty with deliberative Issues which are enmeshed with forensic issues Is that those deliberative Issues must be answered, at least In part, or the forensic issues are left undefended. Since this was the situation in the Angela Davis trial, the prosecution was forced to use the strategy of refutation. We have previously defined this as

"the process of attacking the arguments of an opponent in order to weaken 23 or destroy those arguments." In the deliberative phase of this case the prosecution's primary problem was refuting defense attacks on the legal apparatus. If the defense succeeded In persuading the Judge and jury the system was raclBt, then the evidence found by the personnel as veil as the testimony would have to be thrown out. That would have serious Implications for the prosecution's forensic case. In order to 244

prevent collapse of Its forensic case, therefore, the prosecution refuted

defense attacks against its methods and personnel»

When the defense attacked prison procedures by suggesting the

removal of Davis' letter from Thorne's was arbitrary, Harris refuted the

charge by establishing the bulk of the letter was from Davis, who was 24 not authorized to communicate with Jackson. While the defense suggested 25 careless on-the-scene investigation, Harris questioned a seemingly un-

endless stream of police witnesses on the evidence they found, where they

found it, where it was placed, to whom it was given, and myriad other

details.^®

The defense had spent time obtaining from one witness a description

of the no-escape policy at San Quentin, implying an inhumane approach.

Harris obtained further explanation to the effect that the intent was to 27 discourage the taking of hostages even from among the guards.

When the defense questioned Dr. Manwaring, and obtained the admission of a second autopsy report filed after a meeting with persons

from the Attorney General's office, and which had reversed the entrance and exit wounds in the victims bodies, it cast serious doubt on the character of the prosecution. Harris refuted the implication of prosecu­

tion Interference by establishing that without seeing the victims' clothing a definite determination could not be made, and Manwaring had not 28 seen the clothing until the conference, held nearly a year later.

These are a few of several instances of refutation by the prosecu­ tion. Since we earlier identified the undermining of prosecution witnesses as a major defense method in its forensic strategy of refutation, and vilification as one of its deliberative strategies, the prosecution spent 245

time with nearly every witness attempting to reestablish his/her credi­

bility and refuting defense attacks.

In conclusion, the second of the deliberative strategies employed

by the prosecution was refutation, or attacking opposing arguments to

weaken or destroy them. In the Angela Davis trial the prosecution refuted

the defense's claim of the legal apparatus causing Davis' persecution by

arguing the attacks against the legal personnel and procedures raised by

the defense.

The totality of the prosecution's approach to the deliberative

Issues involved two strategies, focus and refutation.

Focus is the emphasis of selected elements of the case for purposes

of convincing the audience that they are the most important elements and

should be the basis for decision. The prosecution used this strategy to

avoid having to argue the deliberative issues and to force the jury to view the case in the forensic framework.

Refutation, or the attack on opposing arguments to weaken or

destroy them was used by the prosecution to retain its own credibility

and that of its witnesses.

A review of Chapter VI shows we have identified four deliberative

strategies by which the defense and prosecution advanced their analysis.

The defense advanced its positions on the deliberative issues by using the strategies of description and vilification. Description, which

assumes an uninformed audience, is the verbal, written, or graphic

representation of essential characteristics of a person, object, or situa­

tion for purposes of clarity and understanding. The defense employed

this strategy primarily on the frame of ill. Vilification, which is the 246 characterization of the opposition as deliberately evil, was used to persuade the jury that the cause of the ill is a racist legal apparatus.

The prosecution argued its deliberative positions using the strategies of focus and refutation. Focus is the emphasis of selected elements of the case for purposes of convincing the audience they are the most important elements and should be the basis for decision. The prosecution used this strategy in an effort to concentrate the trial on forensic rather than deliberative issues. Refutation, or the attack on opposing arguments to weaken or destroy them, was used by the prosecutor to retain his own credibility and that of his witnesses, and in curn the bellevabllity of his entire criminal case. NOTES TO CHAPTER

George W. Ziegelmueller and Charles A. Dause, Argumentation: Inquiry and Advocacy (Englewood Cliffs, New Jersey: Prentice-Hall, Inc., 1975), p. 184. 2 Meiklejohn Civil Liberties Institute, The People of California v. Angela Y. Davis (Dobbs Ferry, New York: Trans-Media Publishing Co., NO. 503, 1974), p. 7012. Hereinafter referred to as The Trial Transcript.

3Ibid., pp. 7012-15.

*Ibid., p. 6688.

5Ibid., pp. 6304-5.

6Ibid., pp. 2547, 2549-50.

7Ibid., pp. 4205-42, 4383-99, 4995-5153, 5218-34, 5376-5413. 8 Ibid., pp. 3389-90.

9Ibid., pp. 2333-34, 2337-39, 6312 10 Ibid. pp. 2347-48. 11 Ibid. pp. 2349, 6710-15, 7020-23. 12 Ibid. p. 2340. 13 Ibid. p. 4625. 14 Ibid. pp. 6990-91, 15 Ibid. pp. 2446-70, 3795-98, 5885-87*, 7007-9. 16 Ibid. pp. 4949-50, 17 Ibid. p. 4955. 18 Ibid. p. 7088. 19 Ibid. pp. 2339, 6959, 7012-23, 7137-38, 20 Ibid. pp. 2146, 2359, 4624-25, 4636.

247

I 248

21Ibid., p. 6274,

22Ibid., pp. 6831-32, 23 Ziegelmueller and Dause, p. 196.

2^The Trial Transcript, pp. 4205-42, 4383-97, 4399. 25 For example, see the questioning of Harold Pennington, pp. 3273-77. 26 See above, pages 148-155, for the discussion of the prosecution's use of itemization as a forensic strategy.

22The Trial Transcript, pp. 3389-91.

28Ibid., pp. 3812-13. CHAPTER VII

SUMMARY AND CONCLUSIONS

Now that the analysis of the Angela Davis trial has been completed and the forensic and deliberative issues and strategies have been iden­

tified, we can draw some conclusions relative to modern legal rhetoric.

This Chapter provides a summary of the findings, and then draws conclusions as they relate to general legal rhetoric and to the specific genre of the political trial. Finally, some suggestions are made for further research.

Summary

Issues

Issues relative to both the forensic and the deliberative frame­ work have been Identified. Forensic issues were located by applying the classical system of stasis as described by George Kennedy.^ Most of the argumentation was within the stasis of fact, but there was controversy regarding definition and objection. The stasis of quality helped uncover a particularly important issue.

From the perspective of the stasis of fact we found that the prosecution, having decided to focus on the conspiracy count, promoted the two potential issues of the existence of the crimes of kidnaping and murder. The defense offered little significant argumentation on these.

Regarding the conspiracy, the issues of the existence of a plan, Angela

249 250

Davis' prior knowledge of the plan, her willing and active role in advancing

it, her post—August 7 guilty behavior, and her character all were argued,

making them Identifiable as real issues in the trial. Most of the defense

argument was from the framework of the stasis of fact. The stasis of

quality was employed in addition to fact in arguing the interpretation

of her post-August 7 behavior.

The stasis of definition uncovered one issue, that of the existence

of a kidnaping. The prosecution provided criteria for the crimes of

kidnap, murder, and conspiracy, and then applied alleged behavior to the

definitional criteria. The defense chose to argue only the application

of behavior to definitional criteria, and then not very significantly.

The stasis of quality helped us identify the issue of whether

flight to avoid arrest was a reliable sign of guilt. While this was the

only issue in the stasis of quality it is an Important identification

because it marked a significant departure from the defense's otherwise

dominant reliance on the stasis of fact, and because it was an important

link between forensic and deliberative issues. This will be discussed further when we draw conclusions.

Using the stasis of objection the issue of whether there was too much of a non-criminal base to justify the trial was located. This, too, was an important Identification because of the link it provided between forensic and deliberative issues. The staseis of objection and quality were also found to offer the greatest potential for extra-rational argumentation.

Deliberative issues were found by applying Hultzen's system of 2 status, Including frames of 111, reformability, cure, and cost. Issues were found In only the first two frames. 251

In the frame of ill two points of contention were located. In ill-fact the defense established the problems of the persecution of blacks, militants, and communists in general, and of Angela Davis in particular.

We noted also that the ability of the defense to raise this issue may have been a function of its strategic refocus of prosecution forensic issues.

In ill-definition the defense Identified Davis as a political prisoner by showing her arrest and trial were based on her legal exercise of her

First Amendment rights. The prosecution responded to this deliberative frame from the forensic basis. Importantly, the unique aspect of the status of ill was the defense's introduction of extra-rational proofs.

In the frame of reformability, only the point of reformability- fact became an issue. The defense charged the prosecution's case was based on inhumane, illegal, racist treatment of people and evidence, which amounted to persecution of the defendant as a political prisoner by a racist legal apparatus. The prosecution denied the cause by defend­ ing its witnesses and procedures, and by making objective statements to the jury to demonstrate fairness. As in the case of the ill frame, the first part of the prosecution's response was from a forensic posture.

Only the second response, the creation of an image of fairness, could be considered deliberative in nature.

Strategies

Once the issues in the trial were located it was possible to

Identify the strategies by which the two sides advanced their positions on those issues. In the previous chapters the strategies peculiar to forensic issues were discussed separately from deliberative strategies. 252

Since there was some overlap in the strategies, we will combine them in

this Chapter and summarize in terms of whether they were used by the

prosecution or the defense rather than whether they were used to advance

forensic or deliberative issues.

Prosecution

The prosecution employed three strategies: focus, itemization,

and refutation. Focus, a constructive strategy, was used for both forensic

and deliberative Issues. The prosecution focused on the third count of

conspiracy, and attempted to build the forensic case around the four

elements of circumstantial evidence: means, motive, opportunity, and

consciousness of guilt. The latter element changed during the trial.

Some of the others were retained, and some were absorbed by the defense

.focus. The defense gained an advantage from this since they were able to

oragnlze around their strongest points, and to raise deliberative issues

in response to the prosecution's forensic elements of motive and con­

sciousness of guilt. The final prosecution forensic focus was altered

to have five parts: Was there a plan? Did Davis know of the plan before

August 7, 1970? Did she assist in promoting the plan? Did she manifest

consciousness of guilt? Did she have a motive? Defense efforts to raise

deliberative issues were refocused by the prosecution to relate to the

five forensic issues, and were responded to from that framework.

Itemization, a constructive strategy, was used only for forensic

issues. It provided the impression of a thorough, accurate prosecutorial

case in which there was an abundance of evidence against the defendant.

The prosecutor used the strategy in the examination of witnesses, extract­

ing specific details from them. The witnesses themselves, as well as 253

the details they provided, were used as Items In prosecution inferential

steps to add impact to the final point being made. Similar use was made

of Itemized physical evidence.

The defensive strategy of refutation was employed for both forensic and deliberative Issues, Direct refutation involved the factual denial of the defense theory. Indirect refutation took the form of attacking defense witnesses on their biases, uncooperativeness, and lack of corroboration. For deliberative as well as forensic issues indirect refutation also involved reestablishing prosecution witnesses after defense attacks on their credibility, and defending the procedures employed by the legal apparatus.

Defense

The defense used five strategies: focus, description, vilification, suppression, and refutation. Unlike the prosecution, the defense did not use overlapping strategies, even where issues overlapped.

In opposition to the forensic issues focused by the prosecution, the defense submitted an alternative organization. They isolated the questions of the existence of a plan, Davis' foreknowledge of it, and her conscious willingness to advance it. This focus of the issues in the conspiracy count dominated the trial and ultimately was adopted by the prosecution. The domination of their organization gave them the advantage of focusing the trial on their strongest points, and gave them an opening to raise deliberative issues.

The constructive strategy of description was used to advance deliberative issues. Davis' attorneys provided an image for the jury of the persecution of blacks by the prison system, and of Angela Davis by 254

society. By increasing jury understanding of these issues the forensic

cause also was advanced, A perspective was created that otherwise may

not have been available to an all white jury. This interrelationship

between forensic and deliberative issues is important because it implied

that leaders of social movements may be able to use their cause to advance

their criminal defense, while gaining a wider audience for their deliber­

ative persuasion.

Vilification was a constructive strategy also used only to advance

the deliberative issues. Examination of witnesses and statements to the

•* * 4 Judge and jury were used to characterize the legal apparatus, especially

in the person of the prosecutor, as deliberately evil in their efforts to

affect the evidence against Davis,

A defensive strategy employed in forensic argumentation was

suppression. Direct suppression was used to try to keep all or some

testimony and physical evidence from being available to the jury. Indirect suppression, in the form of stipulations, was used also. The impact of

prosecution evidence was limited by stipulations which granted certain

truths, but denied the prosecutor the time to dwell upon the testimony

and evidence before the jury. Overall, the defense used suppression to

control what and how much testimony and physical evidence the jury received.

Finally, the defensive strategy of refutation was used, but only

In regard to forensic issues. The defense sometimes attacked prosecution arguments directly, and sometimes by attacking the reliability of the witnesses. When prosecution witnesses were challenged it was on the bases of internal and external consistency, the influence exerted on them by the media and the prosecution, and establishment of conditions that would 255

make eyewitness accounts unreliable. This was one of the most dominant

defense strategies.

Based on this summary, and on the preceding chapters of analysis

which led to the Identification of these issues and strategies, we are

prepared to draw conclusions relevant to rhetorical theory.

Conclusions

In Chapter I two goals, in the form of justifications for this research, were set forth. First, it was Intended that a contribution be made to our knowledge of modern legal rhetoric in general. Second, more

information about the genre of the political trial was sought.

Contributions to Modern Legal Rhetoric

To the area of modern legal rhetoric in general two contributions can be made. First, the data from the Angela Davis trial suggest legal decision making is predominantly a rational process. Rieke was quoted in

Chapter I as claiming "the study of legal rhetoric raises serious question as to the validity of Aristotelian theories of proof as applied in situa­ tions demanding critical decisions." He went on to admit that "the pre- 3 sumption rests with rationality," and to call for more research. The research contributed here is limited to the issues and persuasive efforts aimed at those who would make the critical decision regarding Davis' guilt, and does not extend to interaction outside the formal proceedings.

Conclusions, therefore, are limited to that forum. If extra-rational proofs were employed between attorney and client, attorney and witness, defendant and the public, or the public and the Judge, that is not con­ sidered in this study. However, since the decisions of the Judge and jury at the trial determined whether Davis went to jail for kidnap, murder, 256

and conspiracy, It Is justifiable to claim that the rationality of the

trial Is an important sign of the rationality of the whole legal process.

The conclusion that modern legal rhetoric Is rational Is based on

the fact that all the issues at the trial fit into the rational classical

system of forensic stasis. The application of that system to the trial

transcript was no guarantee that all the issues would correspond to the

categories. The location of issues that failed to conform to the system would have been a sign of the lack of rationality. Such a discovery was not made, however. The staseis of fact, definition, quality, and objection accounted for all the issues. Furthermore, emphasis was placed on the stasis of fact. That means the trial was based mostly on potentially externally verifiable data* Davis' whereabouts in the week prior to

August 7, for example, could be determined and verified by witnesses and records. The sources of verification additionally could be, and were, subjected to tests of consistency and reliability. Even when issues rested on definition, quality, or objection, there was a strong reliance on a factual basis. For example, the argumentation in definition was not on a theoretical basis of how to characterize a particular crime, but on whether the verifiable behavior fit the established criteria. Much of the quality based argumentation rested on historical fact. Even the stasis of objection, which addressed the question of whether Davis' trial was really criminal, or more political, was based on indictments of inter­ pretation of verifiable behavior.

The deliberative issues, furthermore, were closely related to the forensic ones* The data which supported the establishment of an ill were the same as that which provided a basis for the quality and objection 257

arguments. In turn, proof of the ill lent further credence to the quality

and objection issues. The reformability-fact issue also was an integral part of the quality and objection argumentation, but contributed to the verification of fact, too, by challenging witness credibility. This discovery of the interrelationship between forensic and deliberative

issues is the single most important contribution of the study, and will be discussed further in the conclusions about political trials. Meanwhile,

it serves as additional evidence of the rationality of modern legal rhetoric.

A second fact on which the conclusion is based is the close rela­ tionship between the strategies employed and the Aristotelian proofs discussed by Rieke. He said:

In no other rhetorical situation Is there such regulation of proof In terms of the exclusion or control of non-rational elements embodied in ethos and pathos. In no other rhetorical situation has as much attention been given to the focusing of the decision-making act on fact and reason as embodied in logos. . . . And yet, the testimony of those engaged in legal advocacy as well as those few social scien­ tists who have performed investigations that the presumed rationality of legal decision making may be a fiction,4

The strategies identified in the Davis trial all contain some element of logos, "persuasion that is effected by the arguments."^ Various strategies, however, do have elements of ethos to the extent that they deal with the speaker's worthiness of belief, and of pathos to the extent that the quality and ill arguments rely on sympathy or shame. In fact, it would probably be most accurate to say that the three forms of proof are so closely related that in few cases are arguments based exclusively on any one form. The Impression that Angela Davis created on the jury probably

Influenced their evaluation of data about her. In that case, ethos and logos may both be present as proofs* In one case in particular, the 258

defense's establishment of the deliberative issue of an ill, ethos and

pathos not only were present, but seemed to subjugate logos, Throughout most of the trial, however, logos dominated, and ethos and pathos have

some clear relationship to the evaluation of the arguments. For example,

both the prosecution and defense employ focus and refutation as strategies.

The first was relevant solely to argument and its effective organization.

The second related to attacking and defending argument either directly,

or indirectly by challenging and reestablishing witnesses or data important

to proving the arguments.

The constructive prosecution strategy of itemization could be

defined as use of non-artistic proof since its elements existed beforehand g and merely had to be used. However, this technique included careful

listing of steps in the inferences that functioned as arguments. Further­ more, the pre-existing items such as witnesses and physical evidence were

Integral to establishing the truth of arguments.

Suppression is a method for influencing decisions about which

arguments can justifiably be considered, and what evidence is legally

usable as proof of arguments. When used to exclude testimony that is more

prejudicial than probative, for example, it functions to maintain the empha­

sis on logos, and diminish pathos in particular.

Description and vilification, especially as they functioned in

the Davis trial to advance deliberative issues, may be more related to

pathos and ethos respectively. However, they are not without redeeming

logical qualities, given the interrelationship between forensic and

deliberative issues. While description may be viewed as a way of affecting

the jury's emotional perception, it is equally related to providing 259

historical proof for the argument from the stasis of quality.. Likewise while vilification may be an effort to undermine the ethos of the prosecu­

tion and its witnesses, it is equally relevant to measuring the truth

of an argument by evaluating its source. Thus, while the strategies are

not related exclusively to logos, the association is sufficiently close

to justify concluding they are rational rather than extra-rational

strategies.

The findings that the trial issues all fit into the rational

classical system of forensic stasis and that the strategies have a posi­

tive relationship to Aristotle's logos, lead to the conclusion that modem

legal rhetoric is rationally based.

The second contribution this study makes to modern legal rhetoric

is the identification of legal strategies. In the profession of communi­

cation and rhetoric one would expect to find information on persuasive

strategies in texts on argumentation and debate, or on persuasion. Such

information is generally lacking, however. Debate texts tend to deal pri­ marily with deliberative rather than forensic rhetorical situations.

They are patterned after the kind of policy questions used in modem

college academic debate. Aside from identifying judicial debate as one form of argumentation, and referring the reader back to the analytical procedures common to forensic and deliberative research, there is little for the student whose primary interest is effective forensic argumenta­ tion. Even chapters on cross-examination are written primarily to describe methods, and not to provide ways to use the methods strategically.

Furthermore, although texts deal in greater depth with deliberative questions-, they still lack identification of strategies. While authors 260

identify ways to evaluate evidence and argument, they do not help the

student weave the results of the evaluation into useful persuasive

strategies.

Textbooks on persuasion are too general to help the forensic

student* They tend to be organized around a general communication model

and/or psychological studies. This results In piecemeal suggestions and

disclaimers about the predictability of positive results.

In short, the profession of communication and rhetoric does not provide the pre-law or law student with any significant amount of infor­ mation tailored to his unique needs, nor does it address uht student of

deliberative questions who needs to know how to proceed once he has mastered research, analysis, and the testing of data and argument.

The profession of law does little better for its students. Rieke observed in 1964 that "legal education had developed the widespread belief that it is the proper application of legal principle alone which

is the necessary equipment of the advocate."^ This belief apparently did not change, because as recently as 1971 Rieke was still calling for cooperative scientific and philosophical research between law and communication.^

Books by prominent attorneys, such as Louis Nizer and F. Lee 9 Bailey, provide interesting reading about sensational trials. But the student of rhetoric is still left without an objective cohesive identifi­ cation of what strategies are actually used.

The preceding analysis of the Angela Davis trial permits a con­ tribution of that information which is lacking in both communication and law* The identification of the strategies of focus, refutation, itemization, 261

suppression, description, end vilification permits the student to see how

tests of witness credibility, for example, can be woven into both refuta­

tion and vilification to maximize their impact. Itemization and descrip­

tion demonstrate two ways in which physical evidence and witness testimony

can be used. The prominence of focus as a strategy is evidence of the

Importance of organization of legal principles. The realization of

suppression as a major strategy is particularly important. It is a method

of selection of supporting material unique to law. In deliberative

situations one speaker may decide to suppress certain data, but there is

always the likelihood that another speaker will place the information in

front of the decision makers,. In law, however, direct suppression espec­

ially guarantees the decision makers, in the form of the jury, do not

receive that data. Furthermore, deliberative debate assumes that all

relevant Information should be available from which to select and make decisions. Forensic debate, on the other hand, takes some of the deter­ mination of relevancy out of decision-making hands. The adversaries, under the guidance of the judge, decide what the jury should use to make

its decision.

The identification of the persuasive strategies used in an actual trial, and the discovery of the largely rational base of legal argumen­ tation are the two major contributions this research makes to modem legal rhetoric.

Contributions to the Study of Political Trials

To the study of the particular genre of political trials two additional contributions are made. First, more data are available about 262 strategies employed in such situations. The identification of forensic strategies is a unique contribution. No previous study has attempted to make such an identification. Deliberative strategies were discussed in

Ling's study of the trial of the Chicago Seven.A comparison between the strategies described in this research and those found by Ling is a first step in establishing a basic knowledge of the law's approach to political-deliberative trials. From the nine strategies Ling identified, elements of four appear again in the Davis trial. These include vilifi­ cation, avoidance, suppression, and refutation. In three of the four cases, however, the strategies differ between the two trials.

Vilification is the one strategy that remains relatively consistent in nature, and to some extent in application. Ling and his source define vilification as the "use of language to degrade" an opponent, and as

"always concerned with using caustic and bitter language against one person.In the Chicago Seven trial this strategy was used by both the defense and the establishment. In this study vilification was defined as the characterization of the opponent as deliberately evil, and was

Identified as a dominant strategy of only the defense. In both studies the discrediting efforts were aimed not only at persons, but at the political and/or legal system as well. There is an important implicit distinction in both studies between vilification and the challenging of witness credibility. In vilification the opponent is characterized as knowing what he is doing, but still entering into It willingly. The evil is of a deliberate nature. Challenging a witness' testimony, for example, may uncover the likelihood that he had been influenced by the prosecutor.

This discovery undermines the witness and his statement, but does not 263 vilify him. The prosecutor, however, may become the recipient of the

tt » charge. If the witness is a policeman, however, his credibility may be undermined, and the defense may charge him additionally with deliberately cooperating In a conspiracy against the defendant. In that case the wit­ ness, the prosecutor, and perhaps the legal process are vilified.

Ling's strategy of avoidance was not a dominant strategy in the

Davis trial. This technique was characterized as when "those who hold power refuse to recognize the protesting movement and its representa- 12 tlves." The fact that this was found to be a major prosecution strategy

In tbu trial of the Chicago Seven but not in the trial of Angela Davis may be a function of the scope and methodological differences between the two research efforts. Elements of avoidance are characterized under focus in this research. Each time the prosecution responded to a deliber­ ative issue by returning to its forensic position it was essentially practicing avoidance. However, since the broader scope of the research on Davis provided the forensic issues and strategies it was possible to see that what may have appeared to be avoidance was more accurately described as refocusing the issues. The prosecution did not refuse to recognize the cause Davis represented, but did refuse to discuss them from other than a forensic perspective.

The strategy of suppression is common to both studies. Inter­ estingly, however, it was used by the establishment in the Chicago Seven trial, and the defense in the Angela Davis trial. Ling defined it as

"any attempt by those in power to subdue individuals or groups that vio- 13 late the rules of the society." The definition used in the Davis research did not assign the strategy to a side, either in power or out. 264

The recipient of suppression, furthermore, was extended to include all

evidence, and not just persons or groups. The purpose, however, was essentially the same.. The side doing the suppressing wanted to avoid

having the jury become biased against it. In the Davis trial the defense was as anxious to follow the law as was the establishment in the

Chicago Seven trial. Both sides were attempting to have the law inter­ preted in their favor. Each wanted to stifle that which it considered a violation of a law it supported. The trials differed in the application of this strategy, however, to the extent that the nature of the defendants differed. Unlike the Chicago Seven and their attorney, Davis and her attorneys retained courtroom decorum. Since there were no disruptions, it was unnecessary to suppress defense behavior. The emphasis of the

Davis trial was on forensic issues and evidence. As a result, that was the focal point of all the strategies. While the suppression strategy remained the same in both trials, the difference in the perspective of the persons in each trial had a significant impact on how it was applied.

The final strategy common to both studies is refutation. In the

Davis trial, however, this strategy played a much greater role. It was used against both forensic and deliberative issues, and by both the defense and prosecution. In the Chicago Seven trial it was used only by the establishment. In that case, however, the Judge and prosecution were under a greater deliberative attack by the defense than was true at the

Davis trial. A deliberative framework reverses the placement of presump­ tion and burden of proof from that used in a forensic framework.

Therefore, since the establishment in the Chicago Seven trial allowed

Itself to be pushed into arguing deliberative issues, it was forced to 265 defend the status quo by refuting aggressive attacks from a defense that had net an assumed burden of proof and thus shifted the focus of the trial.

In the Davis trial, however, with its forensic emphasis, both sides dealt with evidence and witnesses in their respective attacks on the opponent.

Thus, both sides used refutation. Furthermore, refutation reappears as a prosecution strategy against deliberative issues because the prosecutor refocused those issues in forensic terms.

In conclusion, this research contributes to our knowledge about political trials first by providing new data on persuasive strategies.

A comparison with research on the Chicago Seven political trial -unearthed four strategies which appear to some extent in both. These are vilifi­ cation, avoidance, suppression, and refutation. The difference in the way these strategies were applied is accounted for by scope and method­ ology of the research, the nature of the defendants, and whether the perspective was forensic or deliberative.

The second and perhaps the single most important contribution this research makes to our knowledge of political trials 1b to establish the relationship between deliberative and forensic issues. In the

Angela Davis trial the two were significantly interrelated. The defense, surprisingly, was as scrupulous about keeping its deliberative positions intertwined with its forensic ones as was the prosecution about not being drawn off its case onto tangential deliberative issues. In spite of

Davis' history of struggle for the cause of political prisoners and her

Communist Party membership, the defense did not choose to relingulsh Its forensic presumption to assume a burden of proof on a deliberative ill or blame issue. 266

The overlap of Che Issues occurred with the quality and objection

stasels, and the 111 and reformablllty frames. In establishing the

quality position that flight from authorities was a reasonable thing for

an Innocent person to do In light of the history of persecution of blacks,

militants, and communists, the defense established the ill. In arguing

the objection position that there were no legally justifiable grounds, only

Implicit political motives for the trial, the reformablllty was identified.

The reverse perspective Is equally true. To the extent the defense assumed

the burden of proving an ill and a blame, it complemented its forensic

positions. This interrelationship suggests it is possible for a social

reformer to use his policy positions in his defense. In fact, such a

practice is encouraged by the system of classical forensic stasels. It

also suggests that the prosecutor of a social/political reformer would be

well advised to evaluate his forensic case from a deliberative perspective.

This takes the onus from the label "political trial." Instead, it recog­

nizes that a political trial might be defined as one in which significant

argumentation occurs in the stasels of quality and objection. From this

perspective we could predict that since Ling found significant delibera­

tive material in the trial of the Chicago Seven, a reevaluation of that

trial from a forensic framework should find significant quality and

objection based arguments. The Davis trial would be predicted to be less

political, since while the nature of the quality and objection based

argument were significant, they were overshadowed by the fact based argument.

In the first instance only reevaluatlon would verify or modify the con­

clusion. In the Davis case, however, the conclusion is borne out by the

statement of Leo Branton, one of the two major Davis attorneys, that he . 14 would describe the trial as primarily criminal, with political overtones. 267

The overlap of the strategies occurred in focus and refutation.

Each of these strategies was used by both sides, and on both forensic and deliberative Issues. Focus is a constructive strategy used to build

006*8 case. Refutation, on the other hand, is a defensive strategy used to reestablish one's own case by undermining the opposition. In the forensic framework most of the constructive strategies should be used by the prosecution because it has the burden of proof. The defense, however, only has to answer the prosecutionrs prlma facie case and does not need to advance a constructive case since it has the presumption of innocence.

This forensic perspective was maintained in the Davis trial. The third forensic strategy of the prosecution was the constructive one of itemiza­ tion. Davis' attorneys, in response, used the defensive strategy of suppression. Thus of the six different strategies used in the trial, two, focus and refutation, demonstrate overlap corresponding to that found in the Issues. Two others, itemization and suppression, are consistent with the forensic framework, and bear out its dominance in the trial. The remaining two strategies are description and vilification. These are constructive, limited to the defense, and occur in the deliberative frame­ work. This is consistent with the fact that the defense would assume the burden in a deliberative situation, and would have to advance con­ structive strategies. Examination of the nature of these last two techniques revealed their relevance to the defense's other strategy of refutation.

Again, this suggests the political reformer can use deliberative construc­ tive strategies to strengthen a forensic defense.

The recognition of this intertwining of forensic and deliberative

Is s u e sand strategies could encourage defense attorneys to broaden their 268

perspective of approaches available to them when representing a client

who may be on trial for his views and reputation as well as his behavior.

Prosecutors, on the other hand, might broaden their perspective on what

Issues could be argued effectively by the defendant. This conclusion of

the interrelationship also suggests to all students of legal rhetoric,

particularly of the genre of political trials, that isolation and study

of deliberative apart from forensic Issues should be done only with aware­

ness that the presence of the other could affect conclusions significantly.

Overall, this study makes four contributions to our knowledge of

modern legal rhetoric. In the area of general legal rhetoric: (1) evidence

that legal decision making is predominately rational was found, and

(2) Identification of legal strategies was made. To the information about

political trials can be added: (1) the identification of forensic and

deliberative strategies as distinct from one another, and (2) the recogni­

tion of the interrelationship between forensic and deliberative Issues

in a political trial.

Suggestions for Further Study

While it has been possible to answer some questions and draw some

conclusions regarding legal rhetoric, it remains true that more questions

exist, and conclusions are limited and tentative. Further research should

be encouraged. There are four areas that I think it would be particularly

worth investigating.

First, while the conclusions drawn here are useful, they are

limited to one trial, with a unique defendant, and which incited inter­

national recognition. A useful teat of these conclusions could be made by applying the same methodology to other trials. Examination of trials !

269

of other prominent social reformers certainly would help. However, less

well-known defendants should be Investigated also. While a leader may

be arrested first, any sustained movement will eventually result In the

arrest of grass-roots followers* Such persons may receive less money,

less notoriety, and less sophisticated attorneys. Knowledge of the issues

and strategies employed in their trials, and comparison of that information

with that gained from better known trials, could provide data useful to

both communication and legal students. It is likely that few attorneys

will ever be Involved in a trial of the magnitude of Davis'. However,

many will be called to defend or prosecute local followers. It is to them

that such a contribution to our knowledge of legal rhetoric would be

most useful.

Second, other phases of the legal process need to be investigated.

For example, pre-trial proceedings may occupy more time than the trial.

The acquisition of a judge, the determination of trial location, and the

choice of indictments are all relevant to the objection stasis. Identi­

fication of the Issues the two sides consider most important during the

pre-trial stage, what happens to those issues by the time of the trial,

and location of pre-trial strategies would be useful to attorneys and

students of persuasion. Also, the voir dire process needs close evaluation.

The start of jury selection marks a clear step in the legal process.

Scattered throughout the Davis trial were references to what the jury had

been told in voir dire, and what they had promised to do. Hajor devoted

an entire chapter in his book on the trial to a discussion of the planning

and maneuvering of the attorneys prior to and during jury selection.

The nature of the people available for the jury was an important 270 consideration in site selection* Potential jurors were Investigated prior to examination, and psychologists were hired to help the defense select its decision makers. All of this suggests the sides have in mind what issues they wish to focus, or what they think will become important. Thus there must be persuasive strategies employed during voir dire for the pur­ pose of getting the opposition to agree to your choice of jurors, and to prepare those jurors to be receptive to your trial arguments. Information about any of these elements of the legal persuasion process would be useful to students of legal rhetoric.

Third, research on the relationship between the trial and the movement from which the leader comes is necessary. In the Davis case it was suggested that Amason's decision to release Davis on bail may have been influenced by the movement built to free her. On the other hand,

Major claimed that the trial generated Issues which were needed to boost the activity of the movement.*® Knowledge of the prevalence and nature of this Interrelationship could be a valuable contribution to legal rhetoric.

Additionally, it could be useful in the study of social movements. While students of rhetoric are still in the early stages of studying the rhetoric of social movements, we have not tended to include trials in any depth as a significant part of a movement. Yet any group that attempts to change the status quo significantly runs an excellent chance of having its leaders arrested and tried. The way in which the trial proceeds may * affect the movement. Ling, in his analysis of the trial of the Chicago

Seven, suggested that the trial was used by the defendants and their attorney, William Kunstler, to advance their philosophy of the New Left, 1 7 thus emphasizing deliberative Issues, This was apparently a case where 271

Influential members of a collective were arrested and subjected to an

establishment controlled confrontation In the form of a trial. The

situation was then used to try to advance the philosophy which had per­

petrated the behavior for which they were arrested. The trial thus became

a strategy for the movement, knowledge of If and how such an Interaction

occurred with trials of other reform leaders could be a useful contribution

to the study of the rhetoric of social movements.

Finally) It Is Important to remember that Davis was acquitted.

The prosecution was not successful in its persuasive efforts. The same

is true of the trial of the Chicago Seven, Knowledge of legal rhetoric

can never be complete without Including the issues and strategies selected

by a successful prosecutor. Comparison of a range of successful and unsuccessful efforts is needed to help distinguish between results which

come from the nature of the events and those which come from the rhe­

torical efforts of the participants.

The legal field is a very fertile one for research. Little

attention has been paid to it by rhetoricians especially, although it is a major seat of modern oral persuasion. Since the legal profession itself emphasizes knowledge of law, the communication profession can offer much

in knowledge of effective analysis and presentation of the law. Legal research Is a place where the theorist and practitioner can meet and share information of benefit to both. It is also a place where students of ancient rhetoric might contribute to modern rhetoric. While the research presented here makes a contribution to our knowledge of legal rhetoric.

It needs to be followed by many more related studies. NOTES TO CHAPTER

^George Kennedy, The Art of Persuasion In Greece (Princeton, New Jersey: Princeton University Press, 1963), pp. 307-312, 2 Lee S. Hultzdh, "Status in Deliberative Analysis," In The Rhe­ torical Idiom; Essays in Rhetoric, Oratory. Language, and Drama, ed. Donald C. Bryant! (Ithaca, New York: Cornell University Press, 1958), pp. 97-123. 3 Richard D, Rieke, "Rhetorical Theory in American Legal Practice" (Rh.D. dissertation, The Ohio State University, 1964), p. 347.

*Ibid.

■*Aristotle, The Rhetoric of Aristotle, trans. by Lane Cooper (New York: Appleton-Century-Crofts, Inc., 1932), p. 9.

6Ibid., p. 8 .

7Rieke, p. 347.

O ■ Richard D. Rieke, "The Rhetoric of Law: A Bibliographic Essay," Today*s Speech 18 (Winter, 1971): 56. 9 F. Lee Bailey and Harvey Aronson, The Defense Never Rests (New York: The New American Library, Inc., 1971); Louis Nizer, My Life in Court (New York: Pyramid Communications, Inc., 1961).

^David A. Ling, "A Rhetorical Analysis of the Conspiracy Trial of the Chicago Seven" (Ph.D. dissertation, Wayne State University, 1973).

11 Ibid., p. 62.

12 Ibid., p. 109.

13Ibid,, p. 119. 14 Carole Alston, ed., "In Defense of Angela: Profile of the Davis Defense Team." The Black Law Journal 2 (Spring, 1972): 49. 15 Reginald Major, Justice in the Round: The Trial of Angela Davis (New York: The Third Press, 1973), pp. 147-170.

^Angela PaviB. Angela Davis: An Autobiography (New York: Random House, 1974), p. 335; Major, p. 98.

17Ling, pp. 2, 65. 272 SELECTED BIBLIOGRAPHY

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Freed, Donald. Agony In New Haven: The Trial of Bobby Seale. Ericka Huggins and the Black Panther Party. New York: Simon and Schuster, 1973.

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Jackson, George. Soledad Brother: The Prison Letters of George Jackson. New York: Covard-McCann, Inc., 1970.

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Martlndale-Hubbell Law Directory. 6 vols. New Jersey: Martlndale- Hubbell, Inc., 1975.

Mitchell, Charlene. The Fight to Free Angela Davis: Its Importance for the Working Class. New York: New Outlook Publishers, 1972.

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Parker, J. A. Angela Davis: The Making of a Revolutionary. New York: Arlington House, 1973.

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Microfilm

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Floyd, John A. "Black Law Journal Interviews: Howard Moore: People's Lawyer," The Black Law Journal. Vol. 2, Number 1 (Spring 1972): 55-66.

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Jacobson, Steven K,, and Berger, Charles R. "Communication and Justice: Defendant Attributes and Their Effects on the Severity of His Sentence," Speech Monographs. Vol. 41 (August 1974): 282-86.

Reynolds, Beatrice K. "An Interview with William M. Kunstler: Rebel Rhetor," Today's Speech. Vol. 22, Number 4 (Fall 1974): 37-46.

Rieke, Richard D. "The Rhetoric of Law: A Bibliographic Essay," Today's Speech. Vol. 18, Number 4 (Winter 1971): 48-57.

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Droessler, Thomas C. "Invention and Style in Earl Warren's Legal Argu­ mentation." Ph.D. dissertation, Bowling Green University, 1974.

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O'Barr, William M.; Walker, Laurens; and Conley, John. "Language Variables In Trial Communication." Paper presented at the Speech Communica­ tion Association Convention, Chicago, Illinois, December 28, 1974. (Mimeographed.) 276

Reeves, Mary M. "The Chicago-Eight Conspiracy Trial: A Rhetorical Analysis of the Societal Context and Interpersonal Dynamic." Ph.D. dissertation, University of Washington, 1975.

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Sayer, James E. "Clarence Darrow-Publlc Debater: A Rhetorical Analysis." Ph.D. dissertation, Bowling Green University, 1974.

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"The Alibi." Newsweek, June 5, 1972, p. 40.

"Angela and the Presbyterians." Editorial. Christian Century. July 7, 1971, p. 823.

"Angela Davis Trial: Soviets Invited." Senior Scholastic, February 1, 1971, p. 6 .

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_• "Angela Davis Is Moved Secretly; Flown to Coast in Military Plane." New York Times. 23. December 1970, p. 1.

. "Black is Dropped from Davis Jury." New York Times. 14 March "1972, p. 9.

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______. "Miss Davis Loses Bid to Bar Judge: Another Justice Rejects Her Charge of Prejudice." New York Times, 22 April 1971, p. 33.

■_____ . "Miss Davis Picks a Black Attorney." New York Times, 5 January 1971, p. 32.

______. "Miss Davis's Eyes Worry Her Physician." New York Times. 8 November 1971, p. 47.

______. "New Delay Hinted for Angela Davis." New York Times. 16 January 1972, p. 40.

______. "New Judge Named for Davis Hearing: Reagan Appointee Chosen in Swift Judicial Action." New York Times. 24 March 1971, p. 39.

______. "Shift of Miss Davis's Trial Asked; Protesters Held." New York Times. 1 February 1972, p. 8 .

______. "Students Decline Davis Jury Duty." New York Times. 5 March 1972, p. 95.

. : ■ * • • , ______. "Woman, 20, Joins Miss Davis's Jury." New York Tidies. 18 March 1972, p. 21.

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______. "Notes on People," 8 January 1972, p. 19.

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______. "U.S.I.A. Drive Seeks to Counter Idea Miss Davis is Persecuted," 15 March 1972, p. 39.

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