by Randy Shilts
Like almost every aspect of the Dan White trial, the jury selection process defied predictions. Legal observers had expected the selection to draw on for a week, maybe longer, so the court impaneled 250 prospective jurors instead of the usual one hundred. Prosecutor Tom Norman, the fifty-seven-year-old warhorse of over one hundred homicide prosecutions, asked the usual questions about whether jurors could vote for the death penalty. Doug Schmidt, however, took a much more unusual tact, asking about church attendance habits and choosing San Franciscans from white working-class and, most significantly, Catholic backgrounds. Such jurors are usually the very people most prone to support a law-and-order prosecution, but Doug Schmidt clearly had a novel strategy.
Reporters began to suspect that prosecution of Dan White would be less than aggressive when potential juror Richard Aparicio took the stand. Aparicio said he had worked briefly as a San Francisco policeman years back and had spent much of his life since then as a private security guard. He shopped at the same meat market where Dan White’s uncle sold raffle tickets for his nephew’s defense fund. When Schmidt asked Aparicio why he thought White killed Milk and Moscone, Aparicio said, “I have certain opinions.… I’d say it was social and political pressures.” Minutes after Aparicio made the statement—nearly a blueprint of the precise arguments Schmidt was expected to use in White’s defense—Tom Norman told the judge he was happy with the jury and that he was ready to proceed with the trial.
The decision stunned both legal and journalistic observers, coming after only three days of jury selection and after Norman had used only six of his twenty-six preemptory challenges. The jury contained no blacks, no Asians, and no gays. Most of the jurors were white working-class ethnic Catholics, like Dan White. Four of the jury’s seven women were old enough to be Dan White’s mother. Half the jurors lived near Dan White’s old supervisorial district; none, of course, lived in or near Milk’s. Dan White would truly be judged by a jury of his peers.
As reporters rushed to file stories of the surprise denouement to what was expected to be a lengthy jury selection process, a woman in a brown leather jacket with a fur collar smiled from the back of the courtroom. On a chain around her neck dangled a swastika and a medallion with a Hebrew inscription which, she said, translated to “Hitler was right.” Sister Barbara explained that her friends in the local Nazi party had held a prayer meeting for Dan White right after a recent memorial service for “our beloved Führer.” Said Barbara, “I came to the trial because I care about Dan White. You see, we call him ‘Gentle Dan.’ All over the city you see signs that say ‘Free Dan White.’ He did what he had to do.”
* * *
“The city’s gays pose what is probably the most serious challenge she has faced since becoming mayor,” wrote the Examiner’s political columnist in a story released on the last weekend that the new Dan White jurors spent at home before being sequestered for the trial. Evidence of the growing gay discontent with Feinstein came from throughout the city. “Dump Dianne” buttons sold briskly at meetings of gay businessmen. The Harvey Milk Gay Democratic Club had unanimously voted to send a letter to Feinstein expressing the “club’s disappointment” over her first months in office. Harry Britt talked openly of how a gay candidate for mayor might surface if problems with police continued.
* * *
“White’s attorneys have said they will dig deeply into the political atmosphere at City Hall, hunting out the sources of pressures on the former supervisor, spotlighting the behind-the-scenes maneuvering for power in San Francisco,” reported a front-page Examiner story the day before the trial opened.
Dan White walked stiffly into the courtroom on Tuesday, May 1, the first day of his trial for the shootings of George Moscone and Harvey Milk. White, his lawyers, the prosecution team, the judge, and jury sat in front of a bullet-proof plastic wall that separated the court proceedings from the packed gallery. As she would every day of the trial, Mary Anne White sat anxiously in the front row. Her husband never gave any sign of recognition to his pretty young wife as he walked to the defense table. He stared blankly at the floor, and as the days of the trial wore on, reporters would strain to find new words to describe White, since the early descriptions—that he acted like a robot, a zombie, or an automaton—became redundant. Doug Schmidt used his opening argument to present a paean to the man he said Dan White had once been:
He was a native of San Francisco. He went to school here, went through high school here. He was a noted athlete in high school. He was an army veteran who served in Vietnam and was honorably discharged from the army. He became a policeman thereafter and after a brief hiatus developed, again returned to the police force in San Francisco and later transfered to the fire department. He was married in December of 1976, fathered a child in July 1978. Dan White was a good policeman and Dan White was a good fireman. In fact, he was decorated for having saved a woman and her child in a very dangerous fire, but the complete picture of Dan White perhaps was not known until some time after those tragedies on November 27 occurred.
The next sentence became the key to Dan White’s defense:
Good people, fine people, with fine backgrounds, simply don’t kill people in cold blood. It just doesn’t happen and obviously some part of him has not been presented thus far.
That previously unknown part, Schmidt said, was a history of manic-depression, a “vile biochemical change” in the body that made a decent man like Dan White fly off the handle.
Dan White was an idealistic young man, a working-class young man. He was deeply endowed with and believed strongly in the traditional American values, family and home. I think that he could be classified as almost rigidly moral, but above all that, he was an honest man, and he was fair, perhaps too fair for politics in San Francisco.… Dan White came from a vastly different life-style than Harvey Milk. Harvey Milk was a homosexual leader and politician, and Dan White, though they were from vastly different life-styles, sought to befriend Harvey Milk after being a member of the board of supervisors and tried to be tolerant and protective of the issues that his constituency felt were important, and those issues were the traditional values of family and home.… Dan White was supremely frustrated with crime and the politics of the city and saw the city deteriorating as a place for the average and decent people to live.…
The pressures built on Dan White, Schmidt said; White was “the voice for the family” on the board.
Tom Norman’s task was to prove the three elements that mark the legal definition of first-degree murder—premeditation, deliberation, and malice. In a dull monotone, Norman recounted the events leading up to the assassination: How Dan White had brought his gun and extra ammunition to City Hall, crawled through a window, snuck in a side door of Moscone’s office, killed him, reloaded, summoned Milk and then killed Harvey, coolly aiming his revolver at the stem of Milk’s brain. This, Norman said, was cut-and-dried first-degree murder. The litany of facts implied the elements of premeditation and deliberation, but one key element was absent—malice. Norman gave the jury no motive for why White had killed the two politicians. Schmidt clearly was making White’s background the centerpiece of his case; Norman, meanwhile, said nothing of the background rancor between Milk and White.
Norman presented his first witness that afternoon, Coroner Boyd Stephens. Stephens talked of the technicalities of the deaths and made repeated references to the “high-velocity blood splatters” on the wall where Harvey was shot. Stephens felt that the splatters showed White had fired his first shot at the back of Milk’s head while Harvey was still falling. Such precise aim certainly indicated that White was not deranged, so Stephens kept trying to pull his testimony back to the splatters; Tom Norman, however, did not seem interested. The next witnesses reviewed the familiar ten minutes it took White to kill Milk and Moscone. Carl Carlson was one of the last witnesses for Norman’s side. When Carl looked across the dozen faces of the jury, he thought, It’s all over. We’ve been screwed. He had no doubt what verdict the twelve co
nservative-looking faces would return. After his testimony, Carl ran into Dan White in a hallway behind the courtroom. He stared into the eyes that had been so zombielike during the session; now they were cold, steely, and calculating, Carlson thought.
The prosecution took only three days to present its case. The last witness called for the people was Frank Falzon, who played the tape-recorded confession White had made an hour after the shootings. The first halting question Falzon put to White became one of the many controversial aspects of the tape. “Would you, normally in a situation like this, ah … we ask questions,” said Falzon. “I’m aware of your history as a police officer and also as a San Francisco fireman. I would prefer, I’ll let you do it in a narrative form as to what happened this morning if you can lead up to the events of the shooting and then backtrack as to why these events took place.”
White started talking of the financial and political pressures of the past weeks and the sense of betrayal he felt at losing the appointment. The second question similarly struck an odd chord to some observers, as the police prodded White to tell more of his problems: “Can you relate these pressures you’ve been under, Dan, at this time?” White said he had no plan when he went to City Hall and faltered when he tried to explain why he had worn his Smith & Wesson. “This is the gun I had when I was a policeman. It’s in my room and ah … I don’t know, I just put it on. I, I don’t know why I put it on, it’s just…” The police officer interrupted White just as the former supervisor was struggling with the sticky issue of whether he premeditated the killings to interject a question some felt was irrelevant. “Where is the gun now, Dan?” he asked.
The subject shifted to how White had gone to Moscone’s office, pleading that he had overwhelming support in the district. Moscone conceded he knew this, White said, but added he would not reappoint White because “it’s a political decision and that’s it.” Moscone took him into the back den and poured him a drink, White said, and he started hearing strange noises: “It was like a roaring in my ears and, and then, em … it just came to me, you know, he.…” Once again, the interrogator interrupted White, just as he was about to describe the shooting.
Within a few minutes, White’s voice was rising to a whine as he talked of shooting George and running over to see Milk. “I wanted to talk to him, and, and, and just try to explain to him, you know, I, I didn’t agree with him on a lot of things, but I was always honest, you know, and here they were devious and then he started kind of smirking cause he knew, he knew that I wasn’t going to be reappointed. And ah … it just didn’t make any impression on him. I started to say you know how hard I worked for it and what it meant to me and my family and then my reputation as a hard worker, a good honest person and he just kind of smirked at me as if to say, too bad and then and then I just got all flushed and, and hot and I shot him.”
Four jurors cried as they heard the tortured confession. Even some reporters shed tears, while Mary Ann White broke out into sobs. The tape turned into the most sympathetic device for White in the trial so far—challenged only by the testimony Falzon next gave under cross-examination. Falzon talked of how he had met White years ago in Catholic grammar school and the years he had coached White on the police softball league back when Dan was named most valuable player for the California all-star team in the state’s law enforcement league. Just a year before, Frank had given Dan a list of his own friends from whom White could gain support for his supervisorial bid. During all the years he had known White, Falzon said, he had only seen the man lose his temper once. Was the Dan White Falzon saw on November 27 the same man he had known for years? “Destroyed,” said Falzon. “This was not the Dan White I had known at all.” Dan White, he said, used to be “a man among men.”
After his testimony Falzon returned to the chair in which the investigating police officer sits for every murder case—the seat at the side of the prosecuting attorney. Falzon had become the most convincing character witness for Dan White; for the rest of the trial, he sat at the hand of the man who was supposed to convince the jury that Dan White was a cold-blooded murderer. Reporters later scolded Norman for not trying to impeach Falzon’s glowing testimony about White, for not ripping him with questions about whether their long friendship had compromised his objectivity. He would not consider doing such a thing, Norman reportedly told one reporter. Falzon’s family was sitting in the audience that day. How could he be expected to tear apart a police officer right in front of his family? After Falzon’s testimony, Norman rested his case. The political feuding between White and Milk was never brought up. Politics never entered Norman’s case. Norman had so far managed to present his entire side without even using the word “assassination.”
* * *
“This is a bunch of shit.”
Warren Hinckle reread the line from the Examiner story that opened the trial: “White had led an exemplary life and no one seems inclined to challenge that statement.” Hinckle slammed the newspaper on the counter of his favorite Irish bar and ordered another screwdriver. The forty-year-old reporter had followed the daily press reports of the trial and got more nauseated with each newspaper edition. As a fourth generation Irish San Franciscan, the scion of families of Irish cops and dance hall girls, Hinckle felt he too knew Dan White’s background and his frame of mind on the day of the assassinations. He had grown up among the Irish working class who bred White and still spent no small portion of his days in the city’s Irish watering holes, even after he had forged his career as San Francisco’s foremost sob sister muckraking journalist. Hinckle had served variously as editor of Ramparts, Scanlan’s Monthly, and City magazine. They all eventually went broke, but not before he had liberally peppered their pages with political exposes and his own genre of sentimental and often heavy-handed prose. Now a Chronicle columnist, Hinckle focused his attentions on the San Francisco scene and had spent much of the last year intrigued by growing working-class complaints about the gay invasion. From the start, he had considered Dan White to be little more than a contemporary model of Dennis Kearney, the nineteenth-century San Francisco mayor who built his political fortunes on the promise to drive the Chinese from the city. Everybody else may have thought White was the cat’s ass, Hinckle thought, but he knew all along that White was a fascist lunatic. He hadn’t been able to avoid dropping a few “I-told-you-so’s” after the shootings, but any smugness turned to rage when he saw the trial unfolding. As far as Hinckle was concerned, the assassinations were little more than Dan White’s Final Solution for the Homosexual Problem in San Francisco. Kill the queer and the queer-lover and turn the city to the right—perhaps permanently. He kept waiting for Norman to introduce this obvious angle to the case—and kept waiting. He was appalled when the prosecution closed its case after Falzon’s testimony.
Norman had never given the jury any evidence pertaining to the key element of any first-degree murder charge, malice. Where was the motive? The key to the trial was homophobia, Hinckle decided, and as he ruminated about the case over successive screwdrivers, he decided that in order to really try this case, San Francisco needed to be put on trial. Every little bit of bias against gays would need to be aired, since anti-gay prejudice, he had no doubt, is what drove White to kill George and Harvey. He was certain that it was precisely men from fine Irish Catholic backgrounds who would relish murdering a gay leader and a gay ally. After ranting and raving through Irish bars all over the city, Hinckle decided to do his own research on Dan White’s much vaunted background.
The trail led quickly to former Undersheriff Jim Denman. The soft-spoken Denman had always liked Hinckle, but he was well aware of Warren’s notorious reputation for sousing interviewees and then extracting just about any quote he wanted. Denman wasn’t reassured when Warren told him they should meet at the Dovre Club, a den of IRA supporters where Hinckle frequently passed his afternoons. Denman decided he wouldn’t have a drink. Hinckle, of course, immediately offered Denman a drink on the house; Denman decided he would have just one. “A
rum and coke, with lots of coke,” he said. Hinckle brought a drink with lots of rum and hardly any coke. A half-dozen rum and cokes later, Denman unfolded the story about Dan White’s first night in jail, the friendly pats on the ass from the other cops, the reports of policemen joking and smiling about the killings, and, most significantly, White’s apparent lack of any shame or remorse over the killings. After six months, Denman added, he had never heard a single report of White showing any regret or any emotion over the killings, beyond his daily transformation into an automaton for his court appearances.
Hinckle pressed further. Denman thought he was trying to get him to say that there had been a police conspiracy in the killings. Jim had worked with police for years and certainly didn’t rule out that possibility, but he had seen no evidence of such a conspiracy and decided it was unlikely. Instead, Denman tried to explain that it could have been a covert, even unconscious conspiracy, revolving around subtle nuances of the police subculture. Nobody ever had to sit down and order White to kill Milk and Moscone, but White knew that he would be a hero to some if he killed the pair. As a former policeman, he would know exactly what to say—and not say—in his confession. One point still troubled Denman, however. He again told Warren about White’s first night in jail and the lack of any characteristics that indicated any lapse of sanity. Schmidt was now basing his case on a “diminished capacity” argument, so Jim figured that he would be called as a prime witness for the prosecution. He had already told D.A. Freitas that White sure didn’t act insane just an hour after the killing; he didn’t even seem sorry. But Freitas had never called Denman; it didn’t make any sense.