He Calls Me by Lightning

by S Jonathan Bass

  The judge finally relented, and Edwards read the statement carefully. As he finished, he looked up and again objected to the use of this evidence. The judge overruled.

  FOLLOWING AN EIGHTY-MINUTE lunch recess, Judge Mathews resumed the trial and asked the attorneys to proceed with closing arguments. Although defense attorney K. C. Edwards meandered through the trial with no clear focus or direction, his closing attempted to connect the evidence to a cohesive argument in favor of acquittal. Caliph Washington sat behind a long oak table as Edwards walked over to the twelve white men who would determine his future. The bullet that killed Cowboy Clark, Edwards argued, was “the silent witness” in this trial. The silent witness could be heard if the jury would just look and listen. This was not a bullet fired with malice by Caliph Washington. This was a bullet fired accidentally by James Clark. The bullet spoke not in support of conviction but of acquittal. Washington and Clark struggled over the gun, and it fired; the bullet grazed the car door and ricocheted into the policeman’s body. Edwards reminded the jury that the bullet was flat on one side, and there was also a new dent in the side of Clark’s patrol car. For ninety minutes, Edwards did his best to convince the jury that this was a case not of murder committed in the heat of passion but of accident and self-defense.

  At 3 p.m., it was Howard Sullinger’s turn to present the state’s closing arguments. He directed his impassioned appeal straight at the jury’s sympathy, emotion, and prejudice. Caliph Washington had taken the life of a fine Christian man over nothing, he argued. “Jim Clark will never see the sun rise again,” he pointed out. “He will never hear the birds sing again. He will never go back to his family again.” Edwards objected to Sullinger’s angry aspersions, but the prosecutor shot back, “Defendant doesn’t like to be reminded that James Clark is dead.”

  Once again, Edwards objected, and Sullinger shouted, “James B. Clark is dead.”

  Mathews sustained the objection, but the prosecutor continued to stir drama: “I heard the pathologist say that he was dead!”

  The judge instructed the jury to disregard the statements, and Sullinger continued the summation. Washington, he continued, was a “cold-blooded, ruthless killer” who had left an innocent man dying in the dirt. He had offered no assistance, just fled the scene, worried only about his own safety. “I don’t believe a . . . killer like that boy would help anybody up out of the street. He shot him down in cold blood right there in the street.”

  In conclusion, Sullinger made a direct suggestion to the jury: “Get rid of this boy. I don’t think he’s needed in this community or any other community.” James Clark was dead, and Washington lived, and “It ain’t right.”

  WHEN HOWARD SULLINGER finished, Judge Mathews gave the jury his often-used, well-rehearsed oral charge in a capital murder trial. He reminded the twelve men of their solemn and grave responsibility in passing judgment on the life and liberty of a fellow citizen of Alabama. As jurors, they must use wisdom, patience, and courage to render a cold, dispassionate, and impartial decision. They must let neither prejudice nor sympathy influence the verdict. Every defendant, whether rich or poor, black or white, deserved a fair and impartial trial by a jury of his peers. “Our law knows neither creed nor color, condition nor nationality,” Mathews explained.

  This jury’s sole objective, he said, was to ascertain the truth and render an honest, fair, and just verdict as a demonstration of complete justice between the state of Alabama and the defendant. Only the jurors could determine the facts in the trial, he noted, and “no mortal man can touch your judgment.” The defendant entered the trial with the presumption of innocence, he reminded them, and it remained with him throughout the trial until “overthrown by evidence” that convinced the jury of his guilt beyond reasonable doubt. Reasonable doubt, the judge explained, was substantial doubt arising from the evidence and that remained after considering the testimony. In other words, the state was required to convince the jury of the defendant’s guilt not beyond all doubt but beyond all reasonable doubt.

  Judge Mathews finished reading the written charge. He looked up and said, “All right, gentlemen, you may retire.” It was 4 p.m. The twelve white men stood and followed the bailiff from the jury box, as Caliph Washington feared for his life.

  OUTSIDE THE COURTROOM where Washington was staring down his fate, a heightened fear of death and destruction worried many Americans that day. The Asian flu, a new strain, was spreading across the country, with a widespread outbreak in Alabama. The U.S. Public Health Service described it as the second biggest influenza epidemic of the century, behind the devastating flu crisis of 1918–19. Overhead, 560 miles out in space, the first artificial satellite, the Soviet Union–made Sputnik, was circling the globe every ninety-five minutes at speeds of more than eighteen thousand miles per hour. “This is a new day,” an editorialist for the Birmingham News wrote of the beeping Communist satellite that was fired like a celestial bullet at the heart of American pride and democracy. The Associated Press reported that Sputnik was a “stunning blow” to the United States and a “smashing propaganda and psychological victory” for Russia. Communists now controlled the “high ground of space,” and for many Americans this meant, as the New York Times reported, a “race for survival” and control of the world. Politicians branded the Soviet achievement the “technological Pearl Harbor” and a “great national emergency” that was an existential threat to the United States. The combined apocalyptic fear of foreign disease and foreign technology created a public frenzy and a sense of inevitable doom for many Americans.

  That same day, the Birmingham News continued a four-part series on how Communists were directing racial events in the South. “We have moved unerringly along the path long ago planned for the South by Lenin, Stalin, and other Reds,” journalist Edwin Strickland wrote. A few years later, the red-baiting Strickland would lead the Alabama Legislative Commission to Preserve the Peace—a state-appointed commission tasked with monitoring, investigating, and questioning “persons, groups and organizations who may be engaged in activities of an unlawful nature against the sovereignty of the state and against the peace and dignity of the state.” Strickland reflected the views of many Americans that any organization or individuals expressing the same goals as the Communists must also be Communists. The platform of the Communist Party in America called for an end to racial discrimination, segregation, disenfranchisement, and lynching; guarantees for full political, social, and economic equality; and the “abolition of discriminatory practices” in jury selection and southern legal procedure. Since most civil rights organizations shared similar objectives, according to Strickland’s logic, they must be Communist and their activities influenced by Marxist ideology. It seemed, in the minds of many Americans, that the foundations of freedom and democracy were crumbling. A writer from the Birmingham News summed up the intensity of the fear that day by declaring that the paper’s contents would give readers “mental hiccups.” The banner front-page headline read: CRISIS, CRISIS, CRISIS, FLU, FLU, FLU, BEEP, BEEP, BEEP.

  This culture of fear, tension, and paranoia served as the backdrop to the trial of Caliph Washington, which itself, ironically, revealed the unkept promises of American democracy. A little after 4:30 p.m. on Thursday, October 10, the jury announced it had reached a verdict. At 4:40 the jury reentered the courtroom. Washington watched as the men responsible for his life sat down in the hard oak chairs. “Will the defendant rise,” Mathews said as he gestured to Washington. As the young man slowly stood, the judge looked over and asked the jury, “Gentlemen of the jury, have you reached a verdict?”

  Jury foreman L. D. Watts answered, “We have, your honor.”

  Mathews instructed Watts to read the verdict.

  “We, the jury, find the defendant guilty of murder in the first degree as charged in the indictment, and we fix his punishment at death.”

  Edwards asked Judge Mathews to poll the jury. Each of the twelve jurors was asked, “Is that your verdict?” Each answered in the
affirmative. “All right, gentlemen, you may be excused,” Mathews said.

  As the jury left, Mathews called Washington to stand in front of the bench. “Caliph Washington,” he said, “the jury fixes your punishment at death. Have you anything to say why you should not be sentenced, why sentence should not be pronounced upon you at this time?”

  Washington trembled as he looked up and answered Mathews, “Yes, sir.”

  “All right, proceed,” Mathews demanded.

  “Because it was self-defense,” Caliph pleaded.

  “Well,” the judge responded, “that is foreclosed by the verdict of the jury.” He continued: “It is the judgment and sentence of the court that you be put to death by having a current of electricity caused to be coursed through your body, of sufficient intensity to produce death and that that course be continued until death is produced. May God have mercy on your soul.” Mathews set the date of execution: December 13, 1957. At 12:01 a.m., Caliph Washington would die in the Alabama electric chair.

  Washington hung his head and was escorted from the court by a uniformed sheriff’s deputy and returned to the county jail, where he remained throughout the appeals process.

  AFTER WASHINGTON RECEIVED the death penalty, state law required Judge Mathews to enter in the trial record, with or without the convicted man’s consent, that the “defendant appeals from said judgment of conviction.” With this automatic appeal came a suspension of the sentence until the Alabama Supreme Court heard the case, which could take months if not years.

  Washington, however, was too poor to pay for the court costs and lawyer fees required for an appeal to the Alabama high court. By Thanksgiving 1957, he filed a statement of indigence. “My name is Caliph Washington,” he wrote. “I am the indigent appellant entitled to an automatic appeal as provided by law, and I am without sufficient funds and have no reasonable way of securing the same to pay.” By December, Judge Mathews appointed Kermit Edwards to prosecute the appeal for a fee not greater than $250.

  In March 1958, Edwards, David Hood, and Orzell Billingsley filed a twenty-three-page brief with the Alabama Supreme Court arguing that the lower court’s judgment should be reversed and a new trial granted before a fair and impartial jury. Most of the brief focused on Hood’s initial concerns that the exclusion of blacks from the grand jury and the petit jury violated Caliph Washington’s constitutional right to due process and equal protection under the Fourteenth Amendment. The attorneys summoned to court more than one hundred “bona fide Negro male citizens” of the Bessemer Cutoff to show that they had all the qualifications and none of the disqualifications to serve on a jury. The evidence showed beyond a doubt, the attorneys argued, that “there was an arbitrary, systematic, and intentional exclusion of Negroes from jury services solely because of their race, creed, or color, and in violation of the constitutional rights of this appellant.”

  The jury commissioners, the attorneys supposed, were skilled experts in excluding the majority of the population in the Cutoff from jury rolls and boxes. In the Supreme Court’s Cassell v. Texas decision a few years back, they pointed out, Justice Felix Frankfurter affirmed nondiscrimination in jury selection: “If one factor is uniform in a continuing series of events that are brought to pass through human intervention, the law would have to have the blindness of indifference rather than the blindness of impartiality not to attribute the uniform factor to man’s purpose.” Blacks summoned for jury duty, or serving on juries, were a rarity in the Bessemer Cutoff, the brief continued, “and if they were summoned and later served it was likely to be known all over the community immediately.” The exclusion of blacks from jury duty was racial discrimination of the worst kind and prevented Washington from receiving a fair trial.

  The most serious error committed by the Bessemer court, the attorneys argued, was the use of the written statement to challenge Washington’s credibility. During his cross-examination, the prosecutor used the statement as a basis for questioning. Edwards asked Sullinger if he was attempting to lay the foundation to impeach the defendant. If so, Caliph and his counsel had the right to examine the statement before testimony. At the time, Sullinger denied that he was laying a predicate. Only after the defense rested its case did the prosecutor introduce the statement as evidence. “It appeared to counsel,” the attorneys argued, “that there has never been, and could never be, a clearer violation, and, in fact ignoring, of the rule which required that a proper predicate be laid before an alleged prior contradictory statement of a witness may be introduced.” During the trial, the prosecutor never asked Washington whether he made such a statement, nor was he ever allowed to read the statement before answering questions. “The witness is entitled,” the brief continued, “where the statement is in writing, to read the same or have it read to him before he can be required to answer whether or not he made such statement.”

  The Alabama Supreme Court’s 1928 ruling in Manning v. State, the attorneys pointed out, held that a witness should be permitted to read an entire written statement or deposition to “verify its authenticity and contents.” In addition, a statement of this kind was not admissible as evidence in fact but could be used for the purpose of “testing recollection” of a witness or “for impeachment, which purpose or competency should be made plain to jury.”

  At trial, Sullinger complained that Edwards was attempting to read his mind to “determine and anticipate” if he intended to introduce the statement as evidence in fact. “It would appear that counsel did correctly read the solicitor’s mind,” the attorneys now argued, “because that is exactly what the solicitor did do.” The introduction of the “prejudicial evidence” caused the jury to discount Washington’s testimony and the physical facts that corroborated it “almost to a mathematical certainty”: that during a struggle between Clark and Washington, the fatal shot was fired accidentally, struck the car, and deflected into the body of the deceased.

  In conclusion, the appellant “earnestly insisted” that this verdict should be reversed and a new trial granted before a jury “properly and legally selected.” K. C. Edwards, as the attorney of record for Washington, asked to “argue this cause orally before the court at some appropriate time.”

  In response, Attorney General John Patterson and Assistant Attorney General Edmon L. Rinehart filed the state’s brief and argument on April 22, 1958. They contended there was “no error apparent” in the Bessemer court’s conviction of Caliph Washington and asked the state’s high court to affirm “in all respects” the verdict and judgment. The lack of blacks on the jury—or, as they emphasized, the “lack of proportional representation”—did not constitute discrimination, Patterson and Rinehart argued. “We contend,” the brief continued, “that the evidence shows that the trial court properly ruled on the motion to quash the indictment and to quash the venire.”

  The attorneys also argued that admitting into trial evidence Washington’s written statement was not a reversible error. Notwithstanding, they conceded that as a general rule and “proper practice,” the witness should have been allowed to review the statement and either affirm or deny it. Regardless, they believed that since prosecutor Sullinger had referred to the statement during Washington’s cross-examination, it was difficult to see how the defendant was misled or how the statement, “in any way, prejudiced the case.” His testimony was consistent with the written statement, and the prosecution had already introduced self-incriminatory statements for which a predicate was laid, including “one in which the defendant admitted taking Clark’s gun and shooting him.” This “relatively trivial matter” did not influence the jury’s verdict.

  7

  A VIOLENT AND ACCIDENTAL DEATH

  A Birmingham News photographer captures a heart-tugging image of Florence Clark the day following her husband’s death.

  WHILE THE SIDES argued over Washington’s appeal, Cowboy Clark’s widow sought money from her husband’s insurance policy. On June 24, 1957, less than three weeks prior to his death, Cowboy Clark had purchased
a $1,000 accidental death policy from the United Security Life Insurance Company. If he died from drowning or bodily injury through “violent, external, and accidental means,” it stated, then the company would pay the full amount to his wife and sole beneficiary, Florence Clark. The policy did not cover death caused by homicide, suicide, riot, insurrection, war, or airplane.

  The week following Clark’s death, Florence drove to the western Birmingham office of United Security Life to collect on the policy. Life’s toll made the attractive dark-haired woman look older than her twenty-eight years: she now had an ex-husband, a dead husband, two small children, and no means of support. An employee of the insurance company explained to her that the company could not honor the claim, due to Washington’s conviction. It would not pay her $1,000 but would give her a $2.40 refund on the premium. She accepted the check and drove back to her home in Lipscomb.

  Within a few weeks, the widow Clark hired an attorney, W. E. Brobston of Bessemer, and in an effort to collect the $1,000, he filed a civil complaint against the insurance company and demanded a jury trial. In response, S. Palmer Keith, Jr., an attorney for United Security Life, filed a demurrer—accepting that although the facts in the case were true, they were still insufficient for the plaintiff to collect the money from the policy.

  The suit came to a jury trial on June 4, 1958, in Judge Edward Lee Ball’s municipal court in Bessemer. Just weeks before, the forty-six-year-old Ball was appointed to fill in for an ailing Freelin Mathews. A graduate of the University of Alabama, Edward Ball completed his legal studies at George Washington University in 1939. He practiced law in Bessemer until he joined the Army Air Corps during World War II, and as an officer in the 101st Airborne, he participated in the Normandy invasion. Following the war, he led the fight to end political corruption in Bessemer.