On as an officer, and ten extra rounds of

On November 27, 1978, San Francisco Mayor George Moscone and
San Francisco Supervisor Harvey Milk were shot and killed in San Francisco’s
City Hall by the former San Francisco Supervisor Dan White. The play “Execution
of Justice” by Emily Mann chronicles the controversial case following the
murders, in which White is tried for first degree murder, but gets off with the
much less serious charge of voluntary manslaughter, and given a sentence of
less than eight years with the possibility of parole. Mann presents the case
through the curation of text from the trial transcripts and other records,
supplementing these with interviews. In doing so, Mann allows the audience to
reach their own conclusions based on the real actions and words of those
represented in the play. One conclusion that seems to be apparent from the play
is that the legal case, particularly on the side of the prosecution, was not
well argued. Looking strictly at the facts of the case, it seems impossible
that White would be convicted of anything less than the first-degree murder he
was originally tried for. He had come to the city hall with his service
revolver, something which he had not carried since his time as an officer, and
ten extra rounds of ammunition. He came in through the first-floor window so as
to avoid the recently installed metal detectors in the entrance. He went
directly to Moscone’s office, and waited until they were in a private setting
before shooting him four times, twice in the head at point blank range. He then
emptied the spent cartridges that were left in the revolver, reloaded the gun
with the extra ammunition that he had brought with him, and went to the office
of Harvey Milk, who he believed had influenced Moscone not to reinstate him.

White then closed the door, put himself between Milk and the only exit, and
opened fire. He hit Milk four times, and then fired one more into the head at
point blank range. It is frankly plain to any reasonable person that there was
at least some degree of premeditation to this crime. The very fact that White
carried with him a gun, and extra ammunition and crawled through a window to
avoid metal detectors points to this being the case. However, the jury still
convicts White only of a much lesser charge.

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The question that this raises is whether or not the
prosecution was in some way incompetent, i.e. did their oversights and mistakes
lead to the outcome of the case, or were their decisions the most logical to
make given the information that they had at the time?

The lead prosecutor for the case was Thomas Norman, who was
confident that White would be convicted of first degree murder. In Norman’s
mind, he had the murder weapon, a full taped confession and witnesses who were
present at the scene. There was clear and undeniable evidence of premeditation.

He seems to think the argument for first-degree murder is so obvious that it is
unnecessary for him to make a strong case against the accused. He also fails to
anticipate the support for White from those who share his anti-gay views. The
defense attorney, Doug Schmidt, knew that there was no chance that White would
not be convicted of a crime and that there was no way that he would be able to
use the insanity defense, as no psychiatrist would testify before a court that
White was legally insane. He decided instead to argue for manslaughter, using
the diminished capacity argument to achieve a lesser sentence. 

Schmidt decides to play upon the jury’s sympathies,
portraying White as a devoted family man, someone who could easily have been
their son or neighbor. He also played up the fact that he had saved at least
one life during his time serving the community as a police officer, a fireman,
and as a city supervisor.

Schmidt described all of the financial, family and political
pressures that White had suffered leading up to the tragedy to the jury,
arguing that these pressures had plunged him into a severe depression and were
the ultimate cause of his “diminished capacity”. He then used expert testimony
from psychiatrists in order to fit the pieces together into a cohesive
narrative. Instead of arguing that he did not commit a crime, Schmidt concedes
that White did the shooting, but attempts to create a narrative to answer the
question, “Why?”.

This strategy was successful in part because of
miscalculations in the jury selection process by prosecutor Norman. He used a
standard prosecutorial method for jury selection, seeking older conservative
members of the community. They were more likely to believe in law and order,
and therefore would be more likely to give the death penalty. Not one person
who was homosexual, a minority, or even liberal leaning serves on the jury.

While this strategy was very successful for the typical murder suspect, White
was not the usual murder defendant. He wasn’t a loner, didn’t have a history
criminal activity, and wasn’t on the outskirts of society. Instead he was
incredibly similar to those who would make up the jury, a white, conservative
former police officer and fireman with a loving wife and children, a
contributing member of the community. The jury that Norman had very
specifically helped select was exactly the kind of jury that would be able to
relate well to White.

Exacerbating the problem, Norman simply showed what
happened, how exactly White had killed Milk and Moscone and what exactly he had
done before, during, and after, never once making clear to the jury his
explanation for why. In stark contrast to Schmidt, he never emphasized White’s
motive for the killings. He did not provide a coherent and compelling narrative
that would stand in contrast to the narrative that Schmidt provided. Norman
made no attempt to humanize Moscone or Milk, or to present a narrative of their
productive lives, and the families, loved ones, and children that they were
stolen from. In essence, the two lawyers were arguing two completely different
cases. What Norman failed to recognize was that what he should have been
arguing was not the what but the why. That Dan White had killed two people was
never in question. What was in
question was exactly what sort of punishment he should be given for this act. Failing
to recognize this fact was Norman’s biggest mistake and was likely the largest
contributing factor to the lenient sentence that was passed down by the jury. On
top of this, Schmidt repeatedly leads the defense witnesses to say exactly what
he wants them to say and undermines the prosecution witnesses by asking if they
are gay and belittling their professional expertise, drawing on the homophobia
of the judge and jury in order to decrease the prosecution’s witnesses in their
eyes. The judge overrules most of Thomas Norman’s early objections, and Norman
essentially gives up in his role as prosecutor. White gets less than eight years.

This is not to say that the trial’s outcome was completely
the fault of Norman, as there were other factors in play that were outside of
his control. However, it seems clear that his oversights were a large
contributing factor to the success of the defense, and allowed them to successfully
argue their points and convince the jury to give White a lesser sentence.