hanging was delayed after William Seward obtained a stay of execution in order to appeal. During that time Frances Seward went to visit Bill. She described her visit in a letter to her sister: “I was affected to tears by his helpless condition—I pray God that he may be insensible to the inhumanity of his relentless keepers—He stood upon the cold stone floor with bare feet, a cot bedstead with nothing but the sacking underneath, and a small filthy blanket to cover him.”6
Four months after the trial, oral argument on the appeal was heard by the three judges constituting the New York Supreme Court. In the Bill of Exceptions filed by the defense attorneys, twenty-seven errors of law were alleged. The court, well aware that this case was being watched by the public and the country’s entire legal community, wrote a thoughtful and well-reasoned opinion.7 The decision, written by Judge Beardsley, found four errors of law, reversed the conviction, and ordered a new trial.
The first error the court found was made at the preliminary hearing. The judge incorrectly instructed the jury that if the prisoner knew the difference between right and wrong he was sane. The correct rule of law was that the defendant had to know the difference between right and wrong at the time he committed the crime. The difference is important, as a person can generally know what is right and wrong but can act under an insane delusion, as Bill did.
The second error also took place at the preliminary hearing. The jury found that Bill was “sufficiently sane, in mind and memory, to distinguish between right and wrong.” The court considered this verdict to be argumentative and evasive, like saying someone is a little bit pregnant.
The third error of law was at the trial. One of the jurors, a man named Taylor, had a general and fairly strong opinion that Bill was guilty. Today, if lawyers object to a juror, the trial judge rules on the objection. In Bill’s trial the procedure was to have two neutral lawyers called “triors” rule on objections to jurors. The judge, however, was to give the triors the law that controlled their decision. In Bill’s case, the judge incorrectly told the triors that a juror could not be found prejudiced on the grounds that he had already formed a hypothetical opinion of guilt. The appeal court stated that the judge should have allowed the triors to weigh the strength of the juror’s opinion of guilt and then determine whether he could be impartial.
The final legal mistake the trial judge made in his haste to ensure Bill’s conviction was to restrict the testimony of the defense doctors. The judge had ruled that they could not testify to the results of the examinations they performed after the preliminary hearing. The judge reasoned that the verdict at the preliminary hearing had already found Bill sane. But that was not correct. The preliminary verdict was only to determine if Bill was competent to stand trial; it did not determine the issue at trial, which was whether or not he was sane when he committed the murders. Therefore, if the doctors felt their examinations after the preliminary hearing were relevant to their expert opinions as to Bill’s sanity at the time of the crime, their testimony should have been allowed. Based on all of the above errors, the conviction was reversed.
Meanwhile, Bill lay in manacles on the stone floor of his cell, his mind shattered, his spirit listless. The circuit judge visited the cell and verbally examined Bill, concluding that the prisoner was mentally unfit to be tried again. Approximately eighteen months after he was arrested, still chained in that same stone-walled cell, twenty-three-year-old William Freeman died of complications from a cold, his lungs failing him.
William Henry Seward went on to a distinguished career as secretary of state for Abraham Lincoln, becoming known as the man who persuaded the government to purchase Alaska. William Freeman’s case was considered so important that the U.S. Congress passed an Act in 1848 entering the report of the proceedings into the Clerk’s Office of the District Court of the United States for the Northern District of New York.
Seward had brought the reality of racism into the courtroom. For the next 110 years African Americans struggled to win their constitutional right to equal protection of the law. But during those years Seward’s theme that white supremacy causes black violence was rarely debated in criminal courtrooms. The anger of African Americans was as yet too threatening to acknowledge. Society had to be shaken by the civil rights sit-ins and black power movement of the sixties before white Americans would open their eyes to the rage of black America.
By the end of the sixties the country had been forced to confront its racist institutions. The stage was set for black rage to enter the courtroom without the burden of nineteenth-century paternalism and without the fear of a jury’s blind rejection. In the midst of these changes two cases evolved that would lay the groundwork for what is now know as the black rage defense.
Chapter 2 The Black Rage Defense, 1971
My skin is like my shadow,
I can’t seem to shake it.
—M. C. Identity, San Francisco
Street Music
In the years since William Freeman died in a jail cell, many lawyers have argued that there is a causal relationship between suffering from racism and engaging in a criminal act. Some of those attempts, such as Clarence Darrow’s defense of Henry Sweet for shooting into a white mob and Charles Garry’s defense of Black Panther leader Huey Newton for shooting a policeman, have been preserved in our legal literature. But most of those attempts have been lost to history. Lawyers less famous than Darrow or Garry have stood next to their clients and urged judges or juries to recognize racial oppression as an accomplice in crime. But before 1970, in these unsung trials, it is doubtful that the lawyers used the words “black rage.” Lawyers and the language they use are bound by their historical circumstances; the time was not yet right for the acceptance of a concept as threatening as black rage. But times change.
In the early 1960s the civil rights movement was struggling for the right of blacks to sit in the front of a bus, to go to the school of their choice, to eat at a lunch counter, to gain employment according to their skills, and to vote in elections. People such as Ella Baker, Bob Moses, and Fannie Lou Hamer organized in the South against America’s version of apartheid.
In 1962, the National Lawyers Guild opened a law office in Jackson, Mississippi, specifically to provide legal support for the hundreds of black people who were trying to register to vote and to destroy segregation. In June 1963 Medgar Evers, president of the Mississippi chapter of the National Association for the Advancement of Colored People (NAACP), was assassinated. Three months later in Birmingham, Alabama, four girls, ages eleven to fourteen, were killed when their church was bombed. Still, people refused to give up and organizing intensified. Martin Luther King, Jr., viewed as the national spokesman for the civil rights movement, called for integration, equality, and nonviolence. These were the dominant words in the public dialogue.
The courage and contributions of the civil rights workers would leave a lasting mark on the country. But in some ways the movement was failing. The right to sit in the front of the bus did not change the fact that the transportation system in Watts was hopelessly inadequate. The right to go to school with whites did not change the fact that in the North the proportion of black children going to segregated schools had increased since 1954. The right to eat anywhere one chose did not change the fact that food costs money and that, between 1949 and 1959, the income of black men relative to white men had declined in every section of the county. The right to vote did not change the fact that Californians voted nearly two to one to repeal fair housing laws. The right to be employed according to one’s abilities did not change the reality that in the major ghettos one out of three black men was either jobless or earning too little to live on.
Having black skin not only meant suffering economic and social discrimination, it meant a lack
