He Calls Me by Lightning

by S Jonathan Bass

  I didn’t tell him then what I had done. . . . I paid Robert’s daddy 3 bucks for taking me over there. I got over there about 10:30 last night. Then I went to a guy’s house who had a Studebaker. I ask him if he would take me off apiece. He said it was too late but he was going on a fishing trip tomorrow down the highway and I could go along then.

  Washington told the interrogators that he went and slept in the woods until early Sunday morning. He went back to “this man’s house” at 7 o’clock and left with him and two other men in the Studebaker. In Amory, Mississippi, one of the men in the car, “a tall guy with a white t-shirt,” purchased a bus ticket for Memphis. “And they left me there,” Caliph recalled. He gave the man who had the Studebaker $5 or $6 for driving him to Amory.

  The suspect explained to the officers that on the Greyhound bus, he sat with a soldier. “He was not with me in Bessemer,” the statement read. “When I shot the officer, I was by myself. I still had the policeman’s gun with me when I was arrested.”

  After Washington signed the document, the sheriff’s deputies took him to a cell in the nearby Jefferson County Jail, and he fell asleep.

  The next afternoon, the Birmingham Post-Herald arrived on the local newsstands with a bold-faced headline: NEGRO IS ARRESTED IN POLICE SLAYING. Washington was carrying the “still-loaded service revolver of slain Lipscomb Police Sergeant James Clark,” the paper reported. Investigators told reporter Jerry Upton that Clark spotted a “speeding car, driving recklessly,” and chased the car into Bessemer. He pulled the driver over to the side of the road and arrested him. “The driver,” Upton wrote, “apparently grabbed the officer’s pistol and shot him.”

  5

  A “WELL BOUND BOOK”

  For years, David Hood served as Bessemer’s only black attorney, and he played a pivotal role in each of Caliph Washington’s trials.

  CALIPH WASHINGTON FEARED for his life. Within hours of his arrest, sheriff’s deputies pulled him from his cell, placed him in handcuffs, led him outside, and pushed him into the back of an awaiting patrol car. A tip, a threat, or Bessemer’s general climate of violence compelled county officials to quietly move Washington from the county jail in Bessemer to the one in Birmingham. Klansmen in the Marvel City, Washington recalled, “wanted to hang me,” so the deputies “slipped me out” of town.

  The deputies delivered the suspect to the basement of the county courthouse located on Twenty-First Street in downtown Birmingham, where the admitting warden recorded his name, color, sex, age, and the charges against him. Guards then led him into the secure compartment of a fortified elevator designed for safekeeping the “dangerous prisoner.” They handcuffed his arm to an iron bar in the cagelike structure, closed the door, and sent Washington up to the county jail on the seventh floor. When the elevator stopped, guards opened the cage, unchained his arm, and led him through a series of heavy iron doors to the office of the chief warden, where Caliph was again interviewed.

  Guards then escorted Washington to the receiving room, where he stripped from his freeman’s clothes and donned a prison-issue blue convict’s uniform—the color jail officials required all black inmates to wear. White prisoners wore white. Customs and laws of gender and race divided the jail’s sixteen cellblocks into four parts: black men, white men, black women, white women. On July 15, guards led Caliph to a cell in the black men’s section. Behind one of these cold, battleship-gray steel doors, Washington found scant furnishing: a double-decker bed, a toilet, and a drinking fountain that spouted chilled water. Outside his door, a long steel dining table and benches ran the length of a brightly lit, cream-colored tile corridor. At the far end of the cellblock was what the wardens called a “sun parlor” and what the prisoners termed “the pit”—a two-story, brick-walled enclosure, open to the sky (except for the overhead bars). Here Caliph Washington and the other inmates paced from “dead end to dead end,” as one visitor described the scene, and “worked up appetites and worked off pent-up steam.”

  This new “escape-proof” Jefferson County Jail opened in 1931 and replaced the aged, crowded, and unsanitary “Big Rock”—a fifty-year-old facility constructed of stone that housed the area’s oft-used gallows and was the site of frequent jailbreak attempts. High above the courthouse, the new jail was safe, secure, and sanitary. As Washington arrived in the summer of 1957, only one prisoner had escaped from the facility. “And all that,” author James Saxon Childers told the county sheriff, “is why I don’t like your jail. There’s no glamour about this place. There’s no chance for excitement. And, frankly, I consider it extremely unsporting. The prisoner simply has no chance [to escape] at all.” So Caliph Washington, like many other prisoners housed in this penthouse penitentiary, waited for a formal indictment and subsequent trial by an “impartial jury” of his “peers.”

  His formal indictment would come when the next grand jury convened in Bessemer. Alabama law required county jury commissions to meet annually between the first day of August and the twentieth day of December and to compile the names of every male citizen and record the list in a “well bound book.” Those male citizens qualified to serve (the names that would fill the jury box) were “generally reputed to be honest and intelligent men . . . esteemed in the community for their integrity, good character and sound judgment.” At the time, Alabama law excluded a large segment of the population: women (regardless of race), anyone under twenty-one, anyone over sixty-one, habitual drunkards, those disease afflicted, those physically weakened, illiterates, and anyone convicted of offenses “involving moral turpitude,” which included adultery, fornication, bigamy, and miscegenation—the latter a set public policy to “prevent race amalgamation and to safeguard the racial integrity of white and negro peoples.”

  The Birmingham-based, three-member, countywide jury commission met the last Tuesday in August on every odd-numbered year (including 1957) to fill the jury box for both the Bessemer Cutoff and the rest of Jefferson County. Clerks for the commission used city directories, telephone listings, tax rolls, voting lists, and interviews to select the names for the list. Workers for the commission collected names and investigated possible jurors for possible criminal records. George W. Clayton, a Jefferson County jury commissioner, claimed that the three-member group wouldn’t know which of the potential jurors were of the “colored race, Jew race, the Italian, the Greek or anybody.” In other words, the commissioner claimed no discrimination based on race or color.

  The names of potential jurors from the Cutoff were written on small cards and placed in a wooden box by the jury commissioners in Birmingham. County officials transported the filled box to the county clerk’s office in the Bessemer Cutoff and locked it in a safe. In 1957, the two circuit judges in the Bessemer courthouse, Freelin R. Mathews and Gardner F. Goodwyn, Jr., had the only keys to the safe. At least two weeks prior to convening a trial jury, one of the two judges would open the safe and take the box into the courtroom. Someone on the clerk’s staff would shake the box to mix up the cards and then the judge would open the wooden lid and grab a fistful of cards and count out however many he felt was necessary for a jury pool. In other words, if the judge decided it would take eighty jurors, he would deal out the cards until he reached eighty. If he had too few, he picked up more; if he had too many, he dropped the rest back into the box for the next jury selection. They drew names out of the same box for two years, and then the jury commissioners retrieved the box and filled it again with new names.

  Following the Clark shooting in July, the next Bessemer grand jury was set to convene on September 9. A couple of weeks prior to that date, Judge Freelin Mathews retrieved the box and drew out the names of fifty-two men—four blacks and forty-eight whites—from the seven thousand names stuffed inside. He handed the cards to Elmore McAdory, the clerk for the Cutoff. McAdory arranged the cards in alphabetical order by last name, and included the juror’s addresses and occupations. The clerk then took the list downstairs to Chief Deputy Clyde Morris’s office, who issued the summons a
nd, in the fall of 1957, assigned two deputies—Joe Moore and David Orange—to serve the papers.

  Moore and Orange spent days driving their unmarked black sheriff’s car all over the Cutoff serving the summonses. If they found a potential juror at home, they would report back to the court that the summons had been served; if no one was at home, they wrote “not found” or “nf” on their list. Orange, having served on the force for only nine months, quickly learned the rules of the jury venire game in the county. “To my great surprise,” he later recalled, “when we went to an address that was on the envelope and it was evident that black folks lived at the address, the summons was marked, ‘not found,’ and returned without exception.” Only whites were served jury summonses, and it had always been that way and would continue that way for years to come. “This was an unspoken rule,” Orange added, “that was known by judges, lawyers, and prosecutors alike.”

  The morning of September 9 thirty-two of the fifty-two possible jurors arrived at the courthouse. Of the missing twenty, twelve were not found, seven were excused, and one failed to appear. Of the thirty-two in court that morning, Judge Freelin Mathews excused a few and rejected others; then the juror cards were shuffled, and the judge drew the names of seventeen white men: Edwin Walker Berry, Jr. (a bank manager), Howard Flournoy Bryan (a structural engineer), Oscar Emmett Chastain (a draftsman), Charles A. Allen (an electrician), Porter Cowan (a timekeeper), Samuel Lee Hallman (a clerk), Charles C. Heinton (a fabricator), Clarence Joseph Hitchfield (a millwright), Garland Lee Hood (a pumpman), Elmer Leonard Ingram (a metallurgical observer), T. J. Ingram (a loader operator comptometer), William Ivy Ingram (an operator and timekeeper), Obie Bruce Johnson (a crane man), John W. McBeath (a stock clerk), James Hoyt Wine (a truck driver), William Edwin Whiten (a dry cleaner), and Frank C. Waldrop (a machinist).

  The eighteenth man selected was black: Willis Nesbit (a laborer). Nesbit’s selection for this particular case, David Orange believed, was an error at some level of the venire game. “If a black happened to get a jury subpoena,” he recalled, “it was just a total mistake. In those days, no one would have ever deliberately delivered one to a black person—no way.” Notwithstanding, it was perhaps an attempt by unscrupulous county officials to thwart any attempts by the defense attorneys to claim race-based jury exclusion in an appeal. This strategy rested on the presumption of Caliph Washington’s guilt in the case.

  For whatever reason, Willis Nesbit examined the evidence along with the seventeen other men in the grand jury room on the third floor of the courthouse annex in Bessemer. Nesbit and his fellow jurors returned a bill of indictment or a “true bill” in open court on September 12. They concluded that the strong evidence against Caliph Washington mandated a trial by a petit or petty jury (also referred to as a trial jury or common jury) made up of twelve persons summoned and empaneled for the trial of a specific case. “The Grand Jury of the said County,” the indictment read, “charges that before finding of this indictment Caliph Washington, whose name to the Grand Jury is otherwise unknown, unlawfully and with malice aforethought, killed James B. Clark, by shooting him with a pistol, against the peace and dignity of the State of Alabama.” In other words, Washington’s indictment carried the charge of murder in the first degree. To convict him of that crime, the state had to prove that he had murdered James Clark with willful (without yielding to reason), malicious (without just cause or legal excuse), premeditated and deliberate (with intent and knowledge) aforethought.

  The “true bill” was signed by Howard H. Sullinger, the deputy circuit solicitor (the term for a district attorney in Alabama)—the person responsible for prosecuting the state’s case against Caliph Washington. Born June 29, 1901, in the eastern Tennessee hamlet of Maryville, Sullinger graduated from Maryville College in 1923 and, after spending a few years as an educator, earned a law degree from the University of Michigan in 1930. He moved to Bessemer that same year and began the practice of law with Freelin Mathews—the men developed a deep, close father-son relationship that lasted for over thirty years. In 1937, Sullinger was named city attorney in Bessemer and held the position for ten years until Alabama governor Chauncey Sparks appointed him circuit solicitor following the death of Arthur Green in 1947. “I shall at all times,” he said soon afterward, “strive with the aid of the law enforcement agencies to give our people the fullest possible protection in their lives and in their homes and properties, from the criminal element in our society.”

  A JEFFERSON COUNTY sheriff’s deputy served the indictment to Caliph Washington in the county lock-up in Birmingham and informed him that no bond would be granted in this capital crime. The case would be State of Alabama v. Caliph Washington, and the trial was scheduled for the week of October 7 in Judge Mathews’s Bessemer courtroom of the Circuit Court of the Tenth Judicial Circuit of Alabama.

  Bespectacled, flabby-jowled, seam-faced, and broad-bellied, the seventy-eight-year-old Mathews was nearing the end of his long and powerful legal career in Bessemer. One author described him as “pre-eminent among the older generation” in Bessemer and an honored, able, and faithful public servant, who was “held in high regard throughout that section of Alabama by his colleagues in the legal profession.” Born in Hanceville on May 14, 1879, Mathews was the son and grandson of well-to-do planters in Cullman County, located in the north-central part of the state. After receiving a bachelor of laws from Southwestern Baptist University in Jackson, Tennessee, Mathews opened a law practice with his brother in Bessemer in 1907. He served as an assistant circuit solicitor and a city judge before Bessemer Cutoff voters sent him to the bench in 1950 as one of the two county circuit judges. In the courtroom, Mathews was sedate, humorless, efficient, and conservative. Off the bench, he spent most of his day pondering the law, receiving visitors, and catnapping in his chambers located on the cramped second floor of the courthouse annex.

  While the slumbering Mathews awaited Caliph Washington’s day in court, David Hood, Jr., still Bessemer’s only black lawyer, prepared the defense’s case for trial. Hood solicited the help of another civil rights attorney, and a fellow Howard Law School graduate, Orzell Billingsley, Jr., of Birmingham. As lawyers, both men fought for equal rights for blacks. Stylistically, however, they were an odd duo: Hood was staid, bookish, and aristocratic; Billingsley was brash, tornadic, and fearless. One colleague described him as a “consummate actor” who moved “his face from rage to a broad smile with a looseness which belies his intelligence.” At every opportunity, Billingsley fought the Jim Crow establishment. In a case in rural Sumter County, Alabama, the lawyer’s client dropped dead soon after the judge in the case pronounced a harsh sentence. Much to the chagrin of local whites, Billingsley filed a wrongful death lawsuit against the judge.

  Hood and Billingsley worked steadily in preparation for Washington’s trial, but even with all this labor, they avoided service as the lead attorneys because they had no hope of receiving compensation for their efforts. Many blacks expected that a lawyer of their own race would offer unlimited pro bono legal representation, but an attorney needed a source of income to earn a meager living. For Washington’s case, Hood and Billingsley recommended that the poverty-stricken defendant petition for a court-appointed attorney—who would be white, since white judges rarely appointed black lawyers to indigent cases.

  Jim Crow customs affected the attitudes of both races toward black attorneys in the South. In southern society of 1957, black lawyers defending a black client who was accused of committing a crime against a white man, in a courtroom with a white prosecutor, a white judge, and an all-white jury, would be seen as an affront to southern traditions. As one writer observed, a black man or woman practicing law in the South needed extraordinary tact and fearless courage to stand up for his or her dignity “as a member of the legal profession in a court where opposing attorneys often refer to members of your race as ‘darkies’ or ‘niggers’ or . . . other epithets.” In the minds of many blacks, as scholar Gunnar Myrdal wrote in the 1940s, �
�a Negro lawyer is not much use in a southern courtroom.” Many members of the black community believed that Jim Crow laws prohibited a black attorney from even entering a courtroom, much less defending someone of the same skin color.

  Birmingham attorney, and David Hood mentor, Arthur Shores believed that black lawyers needed to gain notoriety for success “in order to live down the deep set conviction of many Negroes, that the Negro lawyer hasn’t a chance against whites in the courts.” Shores gained his own reputation as a defender of civil rights in the late 1930s, when he represented Will Hall, who filed charges against a white Birmingham police officer for a brutal beating with a ten-inch piece of rubber hose. Klan members threatened Shores with violence if he refused to drop the case, but he “chose to suffer the consequence” and won a striking victory. The local personnel board found the officer guilty of using excessive force, gave him a public reprimand, suspended him from the force, and placed him on probation. Following the verdict, as the diminutive Shores was leaving the hearing, a black man assaulted him, but several friends knocked the assailant to the floor. His attacker later confessed that whites paid him to start the ruckus as a reminder to the attorney to avoid civil rights cases. But Shores’s boldness endeared him to the black community, and from that moment forward, his legal practice boomed. “The adversities that have confronted the Negro lawyer of the South,” he wrote a few years later, “have only served to make him stronger, more skillful and more serviceable.”