by John Hersey
Before August and Paille had been arrested, Dismukes was arraigned before Judge Samuel H. Olsen of Recorder’s Court, charged with felonious assault. He pleaded not guilty. The very next day, on August 4, a pretrial examination was held. Sortor was the only witness. He testified that Dismukes had beaten him with “a stick, blackjack, you know, one of them long sticks like a club. . . . He just struck me with the stick and asked me where, where was the gun.” Sortor told of Dismukes’s having driven him to his knees and then having hit again “across my shoulder.” Michael Clark had also been brought to testify, but Judge Olsen decided he had heard enough to bind Dismukes over for trial.
Two of the families of the victims of the murders at the Algiers asked me the same question, in effect: Why was the first man to be picked out at a show-up, why was the first man to be arrested for all that happened at the Algiers, why was the only man involved in the case to be charged with felonious assault, why was the first man to be bound over for trial, why was the first man to be taken into court in a hearing—why was this man a black man? What was it about the system of justice that produced this singular alacrity?
32
LOGICAL TO BE NERVOUS
1. If We Can’t Get Justice
For Mrs. Pollard, who had herself been hospitalized for a month in 1963 with a nervous breakdown after a brother of hers was murdered, her son Chaney’s mental collapse after seeing Auburey’s body at Wilson’s Funeral Home was, both as an echo and in itself, deeply painful, and the pain was compounded when she took Chaney to the United States Public Health Service Hospital and was unable to get psychiatric care for him.
“Tell you how dirty Detroit is,” she said to me, “the Veterans, with knowing he’d been in Vietnam for twelve months over there, they wouldn’t even give him no psychiatric care or no nerve pills for his nerves after I told them that he was having a nervous breakdown on account of seeing his brother like he was, because they was so close together; see, Chaney was twenty-one and Auburey would have been twenty that Friday. Doctor said it was logical for him to be nervous; he said he’d be nervous, too, if his brother had got killed like his did, see. Only thing they told me to do was take him out of Detroit, to make him feel better. They just put that writing on a paper, but they didn’t give him nothing.
“So I took him to Cleveland, to my sister in Cleveland, Daisy Hamilton. We was there about a week.
“So I put my boy up in the plane; he was supposed to go back to Vietnam. When I put him in that plane in Cleveland I knew he’d never make it.
“The way I heard it, some newspapermen went up in the plane to interview him, he had some scratches that was from being over there, he thought that one of those men wanted to kill him like they killed his brother. What did he do? Thought he had to defend himself and got in a ruckus. They jumped him and put him off the plane and put him in the hospital. He wasn’t supposed to be up there, he was a sick man in the beginning, they shouldn’t even have let him get on that plane. They had to lower the plane in California.
“Since this happened I got one letter from him, wasn’t nothing on there, didn’t even tell me where he was. So I was suspicious then; it was from Oakland, California, then it had a Red Cross on it, but other than that, getting a letter from him, I didn’t hear nothing.
“You know how I found out? I kept worrying the Red Cross, and finally he begin to come to hisself and he called where I used to live at, and he talked to my mother-in-law, and my mother-in-law didn’t even get the hospital number, I had to get it through the Red Cross. That’s how I found out he was sick. And they been having him down there and treating him. United States Naval Hospital, 49B Ward, that’s in Oakland, California. I even wrote his commanding officer and didn’t get no letter, expecting that he had got back, because he was supposed to go right back to Vietnam. I don’t even want him back over there, I don’t know what he’s going to fight for. If we can’t get justice in the United States, that boy laying them land mines and booby traps over there, building roads, him thinking a lot of his commanding officer, I don’t want him back over there, them murdering my son like they did. I don’t know what kind of justice the United States got, but they sure ain’t got none. That’s the way I feel about it. So you can write that in writing. I want it out. I want to let them know how they killed Auburey. Just because two white girls sitting on the bed there with six or seven boys. How in the hell they know who they was with? Why’d they have to pick him and kill him? I asked the girls. They said, ‘Mrs. Pollard, we never went to bed with Auburey. He was a good boy.’ And they said to them white women, called them nigger lovers and like they was a dog. Tell you what: They wasn’t doing it for my son. It’s a hurting feeling. They couldn’t have did that if they’d gone into a white hotel and there’d been some of them colored women sitting down there with some white men; they’d have walked out the door. And ain’t no colored man going to go in no white hotel and go up like that and shoot and get set free. This is what hurts so bad.”
33
SENAK’S PENINSULA
1. Crime and Punishment
Although, because of insufficiency of evidence, David Senak was not arrested with the others, he had been suspended from the police force on July 31 on the basis of what Robert Paille and others had said about his role in the incident.
“After that,” Senak told me, “I spent a lot of time on Belle Isle”—the city-owned island park in the Detroit River. “Just reading. I had a special peninsula over there. There was a tree on the end of it. I’d just go over there almost every day, and take a couple of books along and read. I was reading a series of books, The Art of Clear Thinking and The Art of Clear Writing, Clear Reading; I like law materials; I read some books on cross-examination. I got involved with novels. Crime and Punishment. I started An American Tragedy again, second time I started it and didn’t finish it. That went on till it got cold. Till one day I came over to the island, and they chopped my peninsula down. This girl used to come out there with me, every once in a while when she had a day off, and we were going out there one day, and we came along and I was looking for my landmark, the tree, and the thing wasn’t there. Couple of hundred feet down there was this big DPW truck, and they had this big tree in the back. It was because of erosion, it was undermining the roots of the tree, and it was going to fall into the water eventually, so they figured they’d just cut it down. I don’t know what kind of tree it was, it was just a shade tree; but it was a nice spot. I was really upset at the time. I wasn’t upset because of the circumstances of my suspension, because every time I saw August I tried to comfort him, in the fact that we were innocent—that’s beside the point—I was despondent because of the fact that I wasn’t on the job. I was no longer in a scout car. And to this day when I see the scout cars, you know, I get upset.”
34
THESE ARE NOT LITTLE BOYS
1. People vs. Policemen
On August 14, in Recorder’s Court, the city bench that handles, in the first instance, criminal trials in Detroit, and which is all too symbolically situated next door to Police Headquarters, Judge Robert E. DeMascio began the pretrial examination in The People of the State of Michigan vs. Ronald August and Robert Paille.
That morning fifty-five policemen crowded into the heavy oak benches at the rear of Judge DeMascio’s courtroom in a demonstration of support for the two accused men. Also present were members of the families of the murdered men and a number of other black spectators.
The hearing began with a little fuss over furniture.
THE COURT: I don’t know whose idea it was to switch these tables around, but I like this court room looking the same way every time. Was there some reason for switching them around? No one asked the Court to do it.
MR. LIPPITT: I made no such request, Your Honor.
THE COURT: Well, switch them back. I think if we settle things at the beginning, we’ll be all right at the end.
2. Whispers
Judge DeMascio, who wanted things just so,
was a forty-five-year-old married man with three children. Born in Coraopolis, Pennsylvania, he moved to Detroit with his family as a child; graduated from Eastern High School and majored in government at the College of Applied Sciences, Wayne State University, from which he graduated in 1943; then earned a bachelor-of-laws degree at Wayne Law School. He served briefly in the Navy. From 1954 to 1962 he was on the staff of the U.S. Attorney’s office, and for the last two of those years was an Assistant Attorney in charge of the criminal division; he cracked down on pornography and successfully prosecuted a case involving obscene literature in the mails. Running as a Republican, he was defeated in campaigns for a judgeship in Common Pleas in 1961 and for Wayne County Prosecutor in 1962; in the latter election he accused two opponents of carrying on a campaign of rumor and gossip on the issue of race relations, saying that the two men “hope to win support on their whispered views and images in relation to Negro citizens.” One of the candidates, he said, was “spending all his energies to wooing and winning the Negro vote”; DeMascio called on Democrats to cross over to him in protest against this tactic.
3. Witnesses
After the tables were rearranged, and after an agreement had been made that all witnesses who had been called would be sequestered from the courtroom before testifying and from other witnesses afterward, the hearing proper got under way.
Auburey Pollard’s father and Fred Temple’s brother Eddie were called first and second, to testify on identification of the bodies, and Clara Raven, the Medical Examiner from the morgue, described the wounds.
Then Michael Clark came on. Prosecutor Weiswasser elicited from him an account of what he had seen in the annex, parts of which we have already come across; Michael was rather subdued and had to be told to speak up. He put it on the record under oath that Ronald August and Robert Paille had taken him into room A-4 when the death game began, whereas, as we have seen, David Senak and Theodore Thomas actually presided over that phase of the proceedings. With his obvious contempt for the judicial system, Michael Clark in all hearings simply named whoever was in sight as his tormentors. Occasionally he became peppery, particularly while being cross-examined by Attorney Lippitt.
Q. Who was in Room A-4 with you at the time you heard Pollard being taken to A-3?
A. There was another fellow in there, but I couldn’t see his face because he was laying down.
Q. Were there any soldiers or policemen in room A-4 with you at that time?
A. If I’m looking at the floor I cannot see who’s in there.
Q. Did you hear any soldiers or policemen standing over you or near you when you were lying on the floor in room A-4?
A. That soldier was still there because he hadn’t moved.
Q. Could you see him?
A. I could see his shoes, yeah.
Roderick Davis followed. He testified to having heard shooting “upstairs,” which reinforced the idea that there might actually have been snipers in the annex; then Larry Reed testified briefly. Both Davis and Reed said that they had seen Fred Temple in the line at the very end, as they were leaving. But Trooper John Fonger, who came next, testified to having seen a body, which must have been Temple’s, in A-3, during the supposedly short stay of the state police in the annex, earlier.
Detective Lyle Thayer testified that Homicide’s first word of the incident had come from the morgue, not from the public.
4. Rights
The crux of the hearing came on the second day, when Prosecutor Weiswasser put Detective James Cowie, who had taken Ronald August’s first written statement on July 31, on the stand.
The issue was drawn by Attorney Lippitt as he objected to the admission of that statement as evidence: “A police officer is in a very peculiar position when there are criminal implications involved in a report that he may have to make to superior officers or to any other commanding officer in the Police Department.”
Put another way, the question was whether August and Paille should have been informed of their constitutional rights before being asked to make out a report of their activities at a scene where murders had apparently been committed.
Put yet a third way, the question might have been: How could the Detroit Homicide Bureau, which was in the business of investigating murders, have made such a blunder as to fail to inform a man, even a man on the force, of his constitutional rights before asking him to make a statement that might incriminate him?
“If Your Honor please,” Weiswasser tried to argue, “these were police officers sophisticated in the knowledge of their constitutional rights, having been trained in this and in what they should tell people.”
But Judge DeMascio wanted to defer his ruling until he had heard testimony from Detective Cowie’s superiors.
5. Confused
While the higher-ups were being assembled, Weiswasser put on Warrant Officer Thomas, who was confused, as we have seen, as to whether he was on the side of the People or on the side of the police; at times he was confused period—especially when the defense lawyer made him squirm with discomfort at ratting on a uniformed colleague.
Q. You saw the flash before you heard the gunshot, I think I heard you say?
A. I can’t say for sure.
Q. You don’t know which came first?
A. It is pretty confusing.
And again:
Q. You said before, when I cross-examined you, that you were confused and didn’t know what point of time these things happened. Are you confused?
A. Yes, sir.
Q. Thank you.
A. I can’t—
Q. Thank you.
Despite his muddle, Thomas told of having seen August shoot Auburey Pollard; at least, when all that he said was stitched together, it amounted to that.
After Thomas, Weiswasser introduced Detectives Schwaller, Schlachter, and Cowie again, in an effort to get the officers’ various statements, and especially the confessions, on the record.
6. All They Had to Do
MR. LIPPITT: I think what is crystal clear here, Your Honor, is that these men were under an intolerable situation. They were under this duress, which we say is inherent, and for that reason they wanted to change their statement. They had no other choice; they had no other choice.
MR. WEISWASSER: All right. All they had to do was keep quiet. If they kept quiet, they wouldn’t be here today.
7. No Less
After lunch that day, Judge DeMascio delivered himself of the key ruling, under which, in the end, Robert Paille was set free:
“There is not only the crime of homicide that could have come out of this investigation, but other crimes. And this complaint and warrant maybe could have resulted in naming one, two, or maybe more. So I think at the time he owed an obligation to these two citizens in advising them in giving any kind of statement that they had a right to remain silent; that they had a right to consult counsel; and anything that they said could be used against them in a court of law.
“That would be so if there was any other person. If it was a regular, ordinary citizen, this Court would feel compelled to make the same ruling, to rule that the police would have to advise an ordinary citizen that in this discussion or interview, ‘Whatever you say might be used against you.’
“I don’t think these two defendants, because they are police officers, have any right to expect anything more; but they have a right under the Constitution not to settle for anything less.
“I therefore rule that the statement is inadmissible.”
8. Parable
COURT: I know a little boy who lied to his mother, and he went to tell his father, and his father clobbered him one, and he thought he was going to his father to soothe his conscience, and maybe his mother should have told him, ‘Son, don’t say anything if you have to lie.’ I don’t know, Mr. Weiswasser, but I know this: That these men were not advised of the Constitutional rights in the first instance.
MR. WEISWASSER: There is only one thing—one thing wrong with Your Honor’s example. These are
not little boys.
9. Foregone Conclusion
After the setback on the constitutional issue, there was not much Prosecutor Weiswasser could do. He put Lieutenant Hallmark, the man to whom August and Paille confessed, on the stand on the second and third days, in a prolonged struggle to introduce the confessions, but it was clear from the start that the same issue would thwart him; and it did.
Only when he came to August’s final statement, taken after August had at last been informed of his rights by the Homicide Bureau, was he allowed to introduce a document. And this was the statement in which August had wrapped a claim of self-defense around himself.
10. What’s Funny?
David Senak appeared briefly as a witness on the third day. He declared under oath that he had not seen August or Paille fire a weapon inside the annex, and:
Q. Did you at any time fire a weapon inside the Manor House?
A. Inside?
Q. Inside. At any person?
A. No.
“When we were in court,” Mrs. Gill told me, speaking of Senak, “he was sitting there bantering, you know, and when we went down to have coffee he was down there laughing, you know, just standing there grinning, and I said, ‘Now, what’s funny?’ And then Mrs. Pollard went up and got a newspaper reporter, just to show him how he was acting down there, and he just stood there and laughed at them, as if to say that you can’t win, or something, and then during court, that’s what he was doing, sitting up there grinning, you know, like a person that don’t have ’em all. And he’s only twenty-five years old.”
