The day before the trial began, the Assistant District Attorney slated to prosecute the case was standing in an elevator at the Hall of Justice. He heard a voice behind him speak his name.
"Tom Norman, you're a motherfucker for prosecuting Dan White."
He turned around and saw a half-dozen police inspectors. He flushed and faced the door again. These cops were his drinking buddies, but now they were all mad at him.
"I didn't know who said it," Norman confided to the courtroom artist for a local TV station, "and I didn't want to know."
One could only speculate about the chilling effect that incident had on him, conceivably engendering his sloppy presentation of the prosecution's case. For example, in his opening statement, Norman told the jury that White had reloaded his gun in the mayor's office, but not according to the transcript of White's tape-recorded confession.
Q. "And do you know how many shots you fired [at Moscone]?"
A. "Uh, no, I don't, I don't, I out of instinct when I—I reloaded the gun, ah—you know, it's just the training I had, you know."
Q. "Where did you reload?"
A. "I reloaded in my office when, when I was—I couldn't out in the hall."
Which made it slightly less instinctive. Norman sought to prove that the murders had been premeditated, yet ignored this evidence of premeditation in White's own confession. If White's reloading of his gun had been, as he said, "out of instinct," then he indeed would have reloaded in Moscone's office. And if it were truly an instinctive act, then he would have reloaded again after killing Milk.
One psychiatrist testified that White must have been mistaken in his recollection of where he reloaded. The evidence on this key question became so muddled that one juror would later recall, "It was a very important issue, but it was never determined where he reloaded — in Moscone's office or just prior to saying, 'Harvey, I want to talk with you.'"
In his confession, White had stated, "I don't know why I put [my gun] on." At the trial, psychiatrists offered reasons ranging from psychological (it was "a security blanket") to practical (for "self-defense" against a People's Temple hit squad) — this was one week after the Jonestown massacre. But, as a former police officer and member of the Police Commission told me, "An off-duty cop carrying his gun for protection isn't gonna take extra bullets. If he can't save his life with the bullets already in his gun, then he's done for."
Dan White's tearful confession was made to his old friend and former softball coach, Police Inspector Frank Falzon. When Falzon called White "Sir," it was a painful indication of his struggle to be a professional homicide inspector. Now, while Falzon was on the witness stand, one reporter passed a note to her colleague, suggesting that Falzon was wearing a "Free Dan White" T-shirt under his shirt.
At one point in his confession White claimed, "I was leaving the house to talk, to see the mayor, and I went downstairs to—to make a phone call, and I had my gun there." But there was a phone upstairs, and White was home alone. His wife had already gone to the Hot Potato.
But Falzon didn't question him about that. Moreover, he neglected to pose the simple question that any school-kid playing detective would ask: "Dan, who did you call?" – the answer to which could have been easily verified.
Prosecutor Norman simply bungled his case and allowed the defense to use White's confession to its own advantage. The mere transcript could never capture the sound of White's anguish. He was like a little boy sobbing uncontrollably because he wouldn't be allowed to play on the Little League team. When the tape was played in court, some reporters wept, including me, along with members of White's family, spectators, jurors, an assistant D.A. — who had a man-sized tissue box on his table—and Dan White himself, crying both live and on tape simultaneously.
If the prosecution hadn't entered this tape as evidence, the defense could have done so, saving it as the final piece of evidence for dramatic effect.
Yet the heart-wrenching confession was contradicted by White's former aide, Denise Apcar. In his confession, White said that after shooting Moscone, "I was going to go down the stairs, and then I saw Harvey Milk's aide across the hall . . . and then it struck me about what Harvey had tried to do [oppose White's reappointment], and I said, 'Well, I'll go talk to him.'" But Apcar testified that while she was driving White to City Hall, he said he wanted to talk to both Moscone and Milk.
On the morning of the murders, although Apcar had let him out of her car at the front entrance to City Hall, he went around the corner to the McAllister Street side and climbed through that basement window because he was carrying a concealed weapon. Now, in court, defense attorney Schmidt was cross-examining a witness as to how many other occasions he had observed such entries being made through this window.
A. "Maybe twenty-five times."
Q. "Then this was not unusual?"
A. "It was usually the same person."
On redirect examination, prosecutor Norman elicited from this witness an admission that he didn't know the name of the individual who entered City Hall through that window, but "always assumed he was an employee, carrying small boxes."
Reporters wondered about the contents of those small boxes. Speculation ranged from cocaine to the parts of a nuclear bomb.
My daughter Holly and I had moved into a great apartment on States Street, halfway up a long, steep hill, and in the back was what she called "our magic garden."
Our block was just off the intersection of Castro and Market — the heart of the "gay ghetto" — and there was a Chinese laundry at the foot of the hill called the Gay Launderette, which, even though it had changed owners several times, always kept that name for good will.
There was a clothing store named "Does Your Mother Know?" and a bulletin board announcing an "Anal Awareness and Relaxation Workshop," and jokes that gays told about themselves, like, "Why do the Castro clones all have mustaches?" The answer was, "To hide the stretch marks."
I met Harvey Milk when he ran a neighborhood camera shop, and I watched him developing into the gay equivalent of Martin Luther King. Had he lived, he might have been elected the first gay mayor. But he already envisioned the possibility that he would become a martyr. After he was elected supervisor, he taped a message for his constituents, including this prophetic fear and hope: "If bullets should enter my brain, let those bullets blow open every closet door in this country."
The Los Angeles Times published a piece by freelancer Mike Weiss which suggested that Dan White's political constituency consisted largely of working-class folks "who are being slowly squeezed out by the advance of a movement whose vanguard is homosexual."
San Francisco Chronicle columnist Charles McCabe quoted from that article in a discussion of what he called "the homosexual invasion" of San Francisco. He went on to make derogatory remarks about White's supposed dealings with blacks on his high school baseball team. He later backed down from these remarks, telling his readers, "I have since concluded these statements cannot be confirmed and I retract them."
White's lawyer had told the Chronicle that McCabe's comments were "actionable." Even though White killed the mayor and a supervisor, the Chronicle was evidently worried that he might sue the paper for damaging his reputation.
In his election campaign, White had distributed leaflets referring to the problem of "social deviants." But his wife, Mary Ann, explained that "Dan is not against homosexuals — he is one of the most tolerant men. When he said 'social deviants' he didn't mean homosexuals, he meant people who deviate from the social norm, criminals, people who hit somebody over the head, people who jail won't help."
But in court, prosecutor Norman asked Supervisor Carol Ruth Silver if she had ever heard White make any anti-gay statements. She told of his "long diatribe" during a debate about the annual Halloween closing-off of Polk Street—a hostile speech about "how gays' lifestyle had to be contained."
Apparently, White's attorney Schmidt had never said "bullshit" in front of his mother before, but now she was sitting in the courtroom, and on cross-examination he had to use that word in asking Silver if that was how she had characterized the defense in this trial. She had, indeed. Thus was she able to provide the jury with presumably their only input from the outside world. But Schmidt also asked Silver if she herself was "part of the gay community."
She responded, "Are you asking if I'm gay?"
He said, "Yes."
She said, "No."
In the corridor, Schmidt admitted to me that it had been "a ridiculous question."
Each day of the trial, I would take an hour-long walk from my home to the Hall of Justice. One morning on the news, there was an obituary for the composer of "Happy Days Are Here Again." I found myself singing it ritualistically on my daily walk to court, even as I passed gas-line after gas-line, every filling station a potential locale for the violence that had already been taking place, every automobile festering with the kind of frustration that could possibly turn a mild-mannered driver into an instant Dan White. He had come to represent the vanguard of vigilante justice in Stress Wars.
A couple of blocks away from the courthouse there was a "Free Dan White" graffito, only it had been altered to read "Freeze Dan White." That may not have been such a bad idea, for he was a missing link in the evolution of our species. He was the personification of obsolescent machismo.
This trial was White's first encounter group, but he never testified in his own defense. Rather, he told his story to several psychiatrists hired by the defense, and they repeated those details in court. At a press conference, though, Berkeley psychiatrist Lee Coleman denounced the practice of psychiatric testimony, labeling it as "a disguised form of hearsay."
Mary Ann White sat behind her husband in the front row of spectators, her Madonna-like image in direct view of the jury. Since she was scheduled to testify, prosecutor Norman could have had her excluded from the courtroom. In fact, he could have excluded from the jury George Mintzer, an executive at the Bechtel Company, which had contributed to White's campaign for supervisor. Mintzer became foreman of the jury.
For Mary Ann, this trial was like a Quaker funeral where mourners share anecdotes about the deceased and you find out things you never knew about someone you'd been living with for years. The day after her own tearful testimony, she was back in the front row, taking notes on the testimony of a psychiatrist who had previously interviewed her and taken notes. So now she was writing down poignant squibs of her own recycled observations, such as "Lack of sex drive" and "Danny didn't intend to shoot anyone."
I had wanted to record testimony, but tape equipment wasn't allowed in the courtroom, although the judge did give permission to vice squad officers to place a recording device on two young boys attending the trial. In court that morning, a sixty-three-year-old man had tried to pick them up.
According to the police report, he had in his possession two vials with "peach colored pills" plus eight white pills. "The juveniles gave details of how the suspect had began [sic] a conversation and by passing notes in the courtroom, offered them drugs." Now, three narcotics officers monitored their conversations and later arrested the dirty old man in the Hall of Justice cafeteria.
There was a moment in the trial when it suddenly seemed to be the courtroom incarnation of a TV program called Make Me Laugh. Dan White was the contestant, and all the witnesses were attempting to make him laugh. Laurie Parker, a supervisor's aide, almost succeeded. White's demeanor changed perceptibly when she testified that he used to hold the door open for her. Later, she confirmed that "He was smirking at me."
Why was Dan White smirking? Could it have been his awareness of the absurdity that he had slain Moscone and Milk, yet here was a witness testifying as to his chivalry? "Smirking"—the exact same verb that White had used to describe his perception of what Milk did to trigger his own death—just as Jack Ruby had referred to Lee Harvey Oswald's "smirky Communist expression" immediately before he shot Oswald.
J.I. Rodale, health-food advocate and publishing magnate, once claimed in an editorial in his magazine, Prevention, that Lee Harvey Oswald had been seen holding a Coca-Cola bottle only minutes after the assassination of President Kennedy. Rodale concluded that Oswald was not responsible for the killing because his brain was confused. He was a "sugar drunkard." Rodale, who died of a heart attack during a taping of The Dick Cavett Show — in the midst of explaining how good nutrition guarantees a long life—called for a full-scale investigation of crimes caused by sugar consumption.
In a surprise move, Dan White's defense team presented just such a bio-chemical explanation of his behavior, blaming it on compulsive gobbling down of sugar-filled junk-food snacks. This was a purely accidental tactic. Dale Metcalf, an attorney, told me how he happened to be playing chess with Steven Scherr, an associate of Dan White's attorney.
Metcalf had just read Orthomolecular Nutrition by Abram Hoffer. He questioned Scherr about White's diet and learned that, while under stress, White would consume candy bars and soft drinks. Metcalf recommended the book to Scherr, suggesting the author as an expert witness. In his book, Hoffer revealed a personal vendetta against doughnuts, and White had once eaten five doughnuts in a row.
During the trial, psychiatrist Martin Blinder stated that, on the night before the murders, while White was "getting depressed about the fact he would not be reappointed, he just sat there in front of the TV set, bingeing on Twinkies." In my notebook, I scribbled "Twinkie defense," and wrote about it in my next report.
In court, White just sat there in a state of complete control bordering on catatonia, as he listened to an assembly line of psychiatrists tell the jury how out of control he had been. One even testified that, "If not for the aggravating fact of junk food, the homicides might not have taken place." And so it came to pass that a pair of political assassinations was transmuted into voluntary manslaughter.
The Twinkie was invented in 1930 by James Dewar, who described it as "the best darn-tootin' idea I ever had." He got the idea of injecting little cakes with sugary cream-like filling and came up with the name while on a business trip, where he saw a billboard for Twinkle Toe Shoes.
"I shortened it to make it a little zippier for the kids," he said.
In the wake of the Twinkie defense, a representative of the ITT-owned Continental Baking Company asserted that the notion that overdosing on the cream-filled goodies could lead to murderous behavior was "poppycock" and "crap"—apparently two of the artificial ingredients in Twinkies, along with sodium pyrophosphate and yellow dye—while another spokesperson for ITT couldn't believe "that a rational jury paid serious attention to that issue."
Nevertheless, some jurors did. One remarked after the trial that "It sounded like Dan White had hypoglycemia." Doug Schmidt's closing argument became almost an apologetic parody of his own defense. He told the jury that White did not have to be "slobbering at the mouth" to be subject to diminished capacity. Nor, he said, was this simply a case of "eat a Twinkie and go crazy."
Prosecutor Tom Norman's closing argument mixed purple prose—"The defendant had that quality of thought which would embrace the weighing of considerations"— with supercilious sarcasm—"If your friends won't testify for you, who will?"
During the trial, reporter Francis Moriarty had suggested to District Attorney Joe Freitas that prosecutor Norman was blowing the case—echoing similar sentiments by several journalists and attorneys who were monitoring the trial. Freitas passed along the critique to Norman and homicide inspector Frank Falzon.
Falzon challenged Moriarty: "Are you referring to investigative or prosecutorial?"
But the dividing line had become blurred. Falzon sat silently next to Norman at the prosecution table when an ex-cop was allowed on the jury. And neither Falzon nor Norman thought it advisable to subpoena as witnesses those cops with whom Dan White had discussed football shortly after the murders took place and he turned himself in.
When Superior Court Judge Walter Calcagno presented the jury with his instructions, he assured them access to the evidence, except that they would not be allowed to have possession of White's gun and his ammunition at the same time. After all, these deliberations can get pretty heated. The judge was acting like a concerned schoolteacher offering Twinkies to students but withholding the cream filling to avoid any possible mess.
On the fiftieth anniversary of the Twinkie, inventor Dewar said, "Some people say Twinkies are the quintessential junk food, but I believe in the things. I fed them to my four kids, and they feed them to my fifteen grandchildren. Twinkies never hurt them."
Nonetheless, spray-painted on the walls of San Francisco, graffiti cautioned, "Eat a Twinkie—Kill a Cop!"
After the jury filed out to decide Dan White's fate, spectators and reporters alike tried to determine for themselves what could possibly be a fair punishment. The prosecutor kept emphasizing that George Moscone and Harvey Milk were "duly elected"—the wording in Proposition 7 which would enable him to push for the death penalty. Ironically, this case indicated that the death penalty did not serve as a deterrent, even for Dan White, who as a supervisor had fought for the death penalty because it would serve as a deterrent.
Originally, each juror had to swear eternal devotion to the American criminal justice system. It was that very system which had allowed for a flimsy, bungled prosecution coupled with a shrewd defense attorney's transmutation of a twin political assassination into the mere White Sugar Murders.
While the jury was out deliberating, reporters passed the time by playing poker or chess, reading books, checking out the porn files in the press room, embroidering sentimental samplers and, mainly, trying to second-guess the jury.
On May 21, 1979, Francis Moriarty brought in a used Ouija board he had purchased at a flea market. The question we reporters asked it was: "When will the verdict come in?" The answer was between 5 and 6.
At 5:25, the jurors walked into court to deliver the verdict. They appeared somber, except for the former cop, who smiled and triumphantly tapped the defense table twice with two fingers as he passed by, telegraphing the decision of voluntary manslaughter. White would be sentenced to only seven years in prison.
"No more Nazi dyke look," the victorious defense attorney announced in the hallway, looking forward to a haircut.
"It was a good fight," the embittered prosecutor pretended, "but we lost."
He should've been grateful the jury had not declared that George Moscone and Harvey Milk were killed in selfdefense, or that they had actually committed suicide.