Furious Hours

by Casey Cep

  Tom’s opposing counsel in the murder trial of Robert Burns was not a first-year law student, to put it mildly. By the time the trial started, Thomas F. Young had already served sixteen years as district attorney and was just starting another six-year term. He, too, went by Tom, and he was said to have tried more criminal cases than any other DA in Alabama history. He also had something to prove when it came to the Maxwell case: he’d been the district attorney who failed to bring timely charges against the Reverend in the death of his first wife. He and Tom Radney had faced off in fifty or so other murder trials, and although both men had respected records, they had very different styles.

  “Radney is silk, and Young is sandpaper,” Alvin Benn wrote in The Alexander City Outlook. Benn was a man well acquainted with contrasts: a Jewish reporter raised in Pennsylvania Amish country who came south to cover the civil rights movement and stayed to raise a family, he’d listened nervously as KKK members denounced Zionist Jews at a rally but then took him out drinking, and he interviewed the Reverend Martin Luther King Jr. and the police commissioner Bull Connor for the same story. But even Benn had seldom seen two men diverge as dramatically as the two Toms. Young wasn’t about to lose a murder case when he had hundreds of witnesses, and Radney wasn’t about to lose a case with the whole state and half the nation watching. Despite what potboilers and Perry Mason would lead you to believe, Benn said, “most trials resemble warmed-over grits and it takes some doing to stay awake.” But the Burns case was different.

  From the beginning, Big Tom knew there were two things he needed the jury to know, and two things he needed them not to know. The two things he needed them not to know were that his client had a criminal record and that he had confessed to killing Maxwell. Tom Young claimed to be in possession of an FBI file indicating that Burns had been arrested for assault and second-degree murder in Ohio, shoplifting in Maryland, and aggravated assault in Illinois. But the file was murky—the murder case had been discharged, and next to the assault charge, which lacked a case number, someone had written “incorrect,” and no final disposition was indicated—so Radney filed a preemptive motion to have any mention of it excluded from the trial. The confessions were similarly complicated. Two police officers inside the chapel had heard Burns as he stood over the body of the Reverend Willie Maxwell and said, “You have mistreated my family long enough,” but to Radney’s mind that was closer to eavesdropping than to obtaining a confession. Burns had also confessed in the backseat of the police cruiser as he was being driven away from the funeral home—“I had to do it,” he said, “and if I had it to do over, I’d do it again”—but he hadn’t been read his rights until he arrived at the police station. Worse, the man to whom Burns confessed was his brother, who, although he had been a deputy sheriff in years past, had been deputized only for the purpose of driving suspects and prisoners in custody and wasn’t on duty the day of the funeral.

  Even if Big Tom could keep the confessions and the criminal record out of the courtroom, he would not exactly be sitting pretty—there was still the matter of those three hundred witnesses—but at least he’d be able to make his own case. That involved making sure the jurors entered deliberations with two things foremost in their minds: voodoo and Vietnam. To win, Tom had decided, he needed the Reverend Willie Maxwell to be the witchiest witch doctor and voodooiest voodoo priest the South had ever known—a man so mysteriously powerful that no force of law could touch him and so feared that no neighbor would look him in the eye. And just as Tom needed his former client to be exceptionally bad, he needed his current one to be exceptionally good: a war hero whose patriotic bravery halfway across the world had made his sensitive heart and susceptible mind vulnerable to trauma back home.

  For his part, though, Tom Young needed only one thing: he needed Robert Burns to seem sane. To that end, he filed a motion to require the production of any and all medical reports on the defendant, and he began casting aspersions on the insanity defense more generally, publicly deriding the “revolving door” at Bryce Hospital, the state psychiatric institution, through which, he claimed, those acquitted by reason of insanity rapidly reentered society. There was no reason to believe Bryce was any worse in this respect than any other state institution at the time, but it was true that there was nothing a clinician could do except release a patient-prisoner who was diagnosed sane, no matter how short his stay in the facility or how heinous the crime that had sent him there. Radney responded with a motion alleging that Young’s remarks had already poisoned the jury pool. All that summer and into early fall, the two lawyers sent competing motions volleying back and forth. Finally, on the last Monday of September, seven years after the brutal murder of the first Mrs. Willie Maxwell, Tom Young and Tom Radney walked through the doors of the courthouse in Alexander City to begin trying State of Alabama v. Robert Lewis Burns.

  | 12 |

  Tom v. Tom

  James Albert Avary was not the kind of judge who cared to stand on ceremony. He didn’t like to wear a robe in the courtroom, and he very much liked to smoke a cigar in his chambers, tapping the ashes into a designated drawer in his desk. Born just across the state line in La Grange, Georgia, Avary had attended prep school in New York City, studied religion at Princeton (he later wrote a “Guide to the Redneck Riviera” for a reunion of his classmates), then returned to the South to study law at Emory. After a few years with a firm in Atlanta, he’d opened his own practice in Lanett, Alabama, and ran it until he was elected judge of the Fifth Judicial Circuit. That election had taken place the year before the Burns trial; the man Avary beat for the position was Tom Young.

  Mindful of the widespread interest in the case now facing him, Avary had wanted to allow cameras in the courtroom during the Burns proceedings. According to Alabama law, though, all parties had to consent, and Tom Young didn’t want anyone taking photographs or filming while the trial was going on. The Alexander City Outlook was eager for visuals of some kind, so when Jim Earnhardt mentioned that his cousin Mary Lynn Baxter, who was already working for the Outlook, had a knack for drawing, she was promptly commissioned to make courtroom sketches. Judge Avary later relaxed the rules to allow photography during recesses, but Baxter’s pictures constitute some of the few images of the trial as it unfolded.

  Court was called to order at nine in the morning on September 26, 1977. It was a maddeningly hot day for so late in the month, made worse by the fact that the air-conditioning wasn’t working and by the size of the crowd in the courtroom. Five of the several dozen prospective jurors had to be dismissed right away, because, in addition to being summoned, they’d been subpoenaed: four were character witnesses for the defendant, and one was an eyewitness to the shooting. Those dismissals were telling. As with any small-town trial, the lawyers had to weigh not whether people knew one another but how well, in what way, and with what degree of sympathy or antipathy. But Tom Young and his assistant DA, E. Paul Jones, also hoped to start making their case right away by using the jury selection to undermine the insanity plea. They asked first if any of the potential jurors had heard talk that “this man should be turned loose,” and next if they would be able to judge the testimony of “so-called expert witnesses.” Big Tom, who made a habit of lighting his own fuse on his way into the courtroom, immediately exploded with objections: the state was making speeches; the state was slandering his witnesses before they’d even had a chance to testify. Judge Avary waved him off and let Young and Jones proceed.

  When his turn came, Big Tom set about trying to engineer the kind of jury that he thought he could win over. That meant people who believed in expert testimony and the insanity defense, but most of all it meant twelve white men: men, because Radney thought they wouldn’t be as squeamish at the idea of a righteous murder, and white, so they had no connection to Maxwell or his grieving family and could be made to see the situation as Burns had—namely, that shooting the Reverend had been a necessary and courageous act.

  In the
end, Big Tom got what he wanted: it was two rows of six white men each who arranged themselves in the jury box. Immediately afterward, Judge Avary looked at his watch, saw that it was half past eleven, and recessed the court. With the jury out getting lunch under the watchful eye of the bailiff, Big Tom and Tom Young approached the bench and promptly started bickering. Radney brought up two of his outstanding motions. The first was for specific relief: he didn’t want the state saying anything about “revolving doors” at Bryce Hospital, and he didn’t want Young undermining the insanity plea by calling it an illegitimate defense. The second had to do with Burns’s alleged criminal record. Quite aside from the issue of its questionable accuracy, Big Tom argued, such a record was inadmissible in a case where the defendant was pleading insanity. Judge Avary observed that keeping it out of the courtroom could be tricky if Radney planned to call any character witnesses, but when Avary tried asking Young about his plans for cross-examining those witnesses, Young lost his temper and exclaimed, “I don’t like being terrorized at this point, because I don’t know what’s going to come out!” Then Young harangued the judge about the abuses of the insanity defense until Radney lost his temper and snapped, “Your Honor and I don’t have time to listen to your speeches right now.”

  All of this yielded only partial resolution. With a lot of carts getting before a lot of horses, Judge Avary decided that the accused had a right to argue any defense, including insanity, and that the criminal record was out for the time being but could be revisited when the character witnesses began testifying. And with that, Avary decreed the lunch break over.

  * * *

  —

  The jurors and spectators returned fatted and fed, a little sleepy in that postprandial way, sticky from the heat and sagging somewhat in the court’s hard-back benches and chairs. The defense took their seats on the left side of the courtroom. Tom Radney’s co-counsel, Lee Sims, a lawyer from Dadeville, had two stacks of law books on the table in front of him, seven volumes high. Tom sat beside him with a few pieces of paper and a smile. Robert Burns sat to the left of his lawyers, his posture relaxed, his expression serene. He was wearing light slacks and a hatch-mark-patterned shirt; the loudest thing about him was his lapels.

  On the other side of the courtroom, nearest the twelve jurors and next to the area reserved for the press, were Tom Young and E. Paul Jones, and they offered the first opening statement. Young began by reminding the gentlemen of the jury that earlier in the year “a cold-blooded murder was committed in the presence of several hundred people.” Now, Young said, the state would prove Robert Burns had committed that murder and that he was “nothing but a one-man lynch mob” who had no place in a law-abiding town like Alexander City.

  Young got out all of 143 words before Big Tom objected. The district attorney had started to say something about the defendant’s plea, and Radney jumped in to protest that it wasn’t the place of the prosecutor to comment on the defense. Judge Avary sustained the objection, and Young, already sweating through his pale blue suit, went back to his remarks. “You are here to judge guilt or innocence,” he would remind the jury, and asked them to deliver a verdict “you can sleep with, not for tonight or tomorrow night, but for the rest of your life.”

  “No, sir, we object to this,” Big Tom interrupted again, this time to quibble over the responsibility of the jury in the present case. His next objection was followed by one from his co-counsel, and then another from him. Tom Young could hardly get through a sentence without one member of the defense team or the other rising from behind their table to object. Young was only a few minutes into his opening statement when he turned to the jury to complain: “I expect a lot of muddy water to be poured into the stream of justice here today!”

  Big Tom was happy to have stalled the prosecution’s engine at the start, but it wouldn’t take long for Young to return the favor. Radney liked to deliver opening statements like a bard launching into an epic poem, narrating the life of his client all the way from birth to whatever troubles and injustices and turns of fate had resulted in everyone convening in the courtroom that day. In keeping with that strategy, Big Tom started by introducing Robert Burns as a local boy, born and raised in the northern end of Tallapoosa County. Then he walked the jury through Burns’s time driving buses and trucks in Cleveland and Chicago and serving his country in Vietnam—Big Tom paused there to dwell on his client’s bravery and the horrific violence he had seen overseas—and then returned the war hero to his home county, where, Big Tom mentioned, Burns had a lot of kin, including his former sister-in-law, Ophelia Maxwell.

  At the sound of that surname, Tom Young jumped out of his seat. “Mr. Radney,” he said sharply, “is obviously about to start out on the route that the court cautioned him about back here. He’s about to go into a matter that is not in any way related to the case.” Young knew that Big Tom was planning to try two cases simultaneously: defending his current client, and prosecuting his former one. Undeterred by the objection, Radney thanked Judge Avary for overruling it and then offered the jury a word to the wise. “I have to give you a little sideline,” he said: “When Mr. Young stands up like that, it means he is getting a little hot under the collar.”

  “I was telling you, before I was so rudely interrupted,” Big Tom continued, returning to his rehearsed remarks, and then went on to start enumerating all of the relatives the Reverend Willie Maxwell had allegedly killed, whereupon the district attorney interrupted him again. “Alright, if the court please,” Young snapped, “the state asks for a mistrial.”

  It was the first of many times that the state would plead with Judge Avary to end the trial, claiming it was already too compromised to continue. After that initial request, Young asked for a mistrial four more times during Big Tom’s opening statement alone. When four of those requests were denied, Young asked for a recess, which was also denied, and then he objected and was overruled.

  While Tom Young was getting nowhere, Big Tom was just getting started. He had no intention of trying to deny the undeniable, he said. He was not going to claim that Robert Burns hadn’t killed Willie Maxwell—only that Robert Burns had not been Robert Burns when he’d done so. Bent on establishing his ability to look the facts of a case squarely in the eye, Big Tom ended his opening statement with a grandiose admission: “We admit he killed him, and we admit he shot him three times, and we admit he shot him wherever Mr. Young says he shot him, in the head, the stomach, or wherever he says he shot him, and we admit he died as a result of the gunshot wounds that Robert Lewis Burns put in him.” The defense admitted all of that but then reminded the jury that none of those facts meant the defendant belonged in prison.

  With that much established, the state called its first witness, Dr. Carlos Rabren, the toxicologist who had autopsied the Reverend Maxwell. Dr. Rabren outlined his background and training and then testified about the three bullets he had removed from the Reverend’s body. Everything was going well for Tom Young until the cross-examination began, at which point it came out that Rabren had worked for the Department of Toxicology for fifteen years, during which time he had handled not only the autopsy of Willie Maxwell but also those of several of his relatives. Sims, who was handling the cross for the defense team, began asking Rabren about one mysteriously dead body after another. Had the doctor investigated the death of Mary Lou Maxwell? Tom Young objected. Had the doctor investigated the death of John Columbus Maxwell? Tom Young objected again. “They are throwing mud and everything else,” Young complained, not so much to convince the judge as the jury, “trying to cover up the real issues of this trial.”

  Judge Avary overruled the objections, and Sims went back to his inventory, using the prosecution’s own witness to impugn the character of the murder victim. “Isn’t it true,” he asked, “that the second Mrs. Maxwell was found, along with the first Mrs. Maxwell, behind the wheel of an automobile, dead?” Well, not exactly, Dr. Rabren explained; the second Mrs. Maxwell
had been found on the floorboards. Sims asked next about the death of James Hicks. Dr. Rabren said that he hadn’t worked that case but that he knew something about the state’s findings, or lack of findings. “Sir,” he started to explain, “the department did not issue a cause of death in this case. I don’t know if it’s a homicide or not—”

  “Voodoo, it was voodoo,” Sims shouted, throwing one fist theatrically into the air. Tom Young objected again, but the black cat was out of the bag. People all around Lake Martin had been spreading rumors about the Reverend for seven years, salacious headlines had flown out over the wires the day that Maxwell had been shot, and any chance the state had of shooing all that gossip out of the courtroom had now vanished. Of Big Tom’s two strategies for the trial—turning it into a referendum on the victim instead of the accused and turning the accused into a hero—he’d accomplished the first one within an hour, and not a single one of Tom Young’s thirty objections during the testimony of his own witness could stop it.

  * * *

  —

  The same thing happened when the state put its second witness on the stand. Tellis Hudson, another member of the Auburn crime crew, explained his ballistic analysis, which showed that the shooter had been only three feet away from the Reverend when he fired. But during cross-examination, Big Tom asked Hudson how long he’d been with the lab and then asked about the death of James Hicks. Unlike Rabren, Hudson had been involved in that case, and he confirmed that Hicks’s cause of death had never been determined. “Your investigation revealed that he was a strong, healthy, twenty-two-year-old that worked in the cotton mill all night, and was on his way home and was found in his car dead, and you don’t know what caused it,” Radney said. “Is that correct?”