He Calls Me by Lightning

by S Jonathan Bass

  AS IN OTHER areas of the South, politics was a “major sport” in Bessemer, and local folks followed the crooked tomfoolery with fanatical interest. A local newspaper editorial writer believed corrupt government was the product of the “political thinking” of Bessemer’s citizens. “If we enjoy the sensation of wallowing mentally in the gutter, our candidates for office can be counted upon to furnish the thrill.” And they frequently did. Bribery, extortion, and payoffs were commonplace in Bessemer politics. “It’s a hell-of-a-place,” a citizen once noted, “whether you like it or hate it.”

  In Bessemer, “political shenanigans” were a constant, one writer believed, as was “the specter of corruption lurking in dark corners.” Government leaders tried to disavow such notions with their first-rate abilities as popular entertainers. For over forty years, Jasper “Jap” Bryant, dubbed “Mr. Bessemer,” was the city’s most colorful and powerful political leader. Bryant, with a wad of white hair that resembled the top of an unraveled cotton swab, humored locals with his corncob civic boosterism. The buttermilk-swigging Bryant served as a city alderman from 1913 until he became Bessemer’s mayor in 1934—a position the popular bicycle shop owner held until his defeat in 1946.

  Bryant’s loss came at the hands of reform-minded World War II veterans who returned to Bessemer in 1945 and 1946 to wage war on the city’s vice and corruption. In the war against Germany and Japan, American soldiers witnessed firsthand the devastating effects of a corrupt political order led by demagogues and filled with cronyism and extremism. Throughout the South, veterans came home to win, as historian Jennifer Brooks noted, “the homefront battle against . . . political incumbency, civic complacency, and electoral fraud.” In Bessemer, attorneys Edward Ball and Edward Saunders, and the Veterans Committee for Better Bessemer, fought to change the form of city government from mayor-alderman to a three-man city commission.

  In their quest for reform, the committee campaigned against the city’s political establishment, which they claimed misused federal funds, maintained excessive travel expenses, used prisoners as private laborers, and profited from various other underhanded deals. “These are but a few of the irregularities existing today in the management of your city,” the veterans proclaimed. “If you believe that these conditions should be stamped out, help your own veterans restore good government to Bessemer.” Over 90 percent of the city’s electorate went to the polls in November 1946 to give the ex-servicemen a 190-vote victory over Jap Bryant and the old order. “What we did,” Edward Ball said following the November 1946 election, “was in the interest of good government.”

  In that election, voters selected Ball as the new city attorney. When he took office in 1947, he began investigating political corruption and illegal activities in the Cutoff. One commissioner, Joe F. Lewis, demanded a grand jury investigate the widespread professional gambling in the area and corruption in the Bessemer Police Department. Judge Gardner Goodwyn, Sr., appointed the grand jury, but the eighteen men found no organized gambling in Bessemer and concluded that the whole investigation was nothing more than a political witch hunt. In contrast to Commissioner Lewis’s views of police corruption, the grand jurors described the city and county law enforcers in Bessemer as “vigilant, energetic, effective, and honest” in carrying out their duties. One citizen, however, proclaimed that the “public don’t give a damn. They got the kind of law enforcement they want.”

  In 1950, weary of the political upheaval, Bessemer voters swept out Ed Ball and the other reformers and returned the old guard to office, including Mayor Bryant. Following his reelection in 1954, a grand jury indicted the mayor for “misconduct of a public officer” by profiting from the sale of property by the city and earning twice the money allowed by the Alabama Code. In April 1956, while awaiting trial on these charges of political corruption, Bryant died of a heart attack. He was succeeded in the mayor’s office by Bessemer’s next political kingpin, Jess Lanier, who would dominate city politics for the next eighteen years.

  Following his failed reelection bid for city attorney in 1950, Ed Ball returned to private practice in Bessemer, and then assumed the circuit judgeship in 1958. A likable fellow who loved to tell stories and charm folks with his homespun humor, Ball was tall and bare-boned with dark wide-set eyes, a high forehead, and a receding hairline. From the bench, Ball exhibited a conscientious legal mind, and most of his decisions were careful, professional, and well grounded. “He was a good student of human nature,” recalled one lawyer who argued cases before Ball. “He managed to become part of the establishment, but not offensive.”

  The question before Judge Ball’s court on June 4, 1958, was whether Florence Clark should collect $1,000 from her husband’s accidental death policy. The burden of proof in this civil case was much lower than in Caliph’s criminal case. The Alabama Code established that the facts in a civil case must be established by a preponderance of evidence, whereas in a criminal case the evidence must prove guilt beyond a reasonable doubt. The paradox of the case was striking. Caliph Washington was convicted, beyond a reasonable doubt, of first-degree murder. But Florence Clark and her attorneys now needed to prove, based on a preponderance of the evidence, that James Clark’s death was an accident.

  Florence Clark’s attorney Brobston played to the jury’s sympathy and portrayed his client as a young, grieving widow mistreated by a heartless insurance company. The previous year, when officials at United Security Life refused her request, she hadn’t known what to do. “I was in a state of shock at the time,” she sobbed to the jury. “They told me to leave the policy and instead of them paying me off, I should come back to Lipscomb and sue the City of Lipscomb.” She chose, instead, to sue the insurance company. She testified that company officials never explained why they refused to give her the $1,000. Regardless, she admitted in cross-examination that she knew all along that this was an accidental death policy.

  Florence Clark’s weepy testimony seemed to sway the all-male jury. Brobston anticipated that the insurance company’s lawyer, S. Palmer Keith, would focus his case exclusively on the guilty verdict in the Caliph Washington criminal trial. So Brobston called to the witness stand deputy coroner James W. Thompson, who admitted that none of the forensic evidence proved that Clark died as a result of homicide—neither the autopsy, nor the death certificate, nor the coroner’s report.

  Brobston pressed the issue further: “You couldn’t say that it was physically impossible for Mr. Clark to have been shot in a struggle over the gun, do you?”

  Thompson conceded that he could not, which was the defense’s contention in the criminal trial.

  Brobston rested his case. Attorney Keith offered, as evidence to support the murder claim, the death certificate, coroner’s report, criminal docket sheets, and a transcript of the Caliph Washington trial. Keith called no witnesses, and then rested his case.

  Judge Ball now gave his oral charge to the jurors. The outcome of the trial, he instructed them, depended on their definition of the word homicide. If the jury decided that Caliph Washington intentionally killed Cowboy Clark, then Florence Clark had no right to collect the insurance money, but if they decided that he died as the result of an accident, she could receive the $1,000. The burden of proof, Ball explained, was upon Florence Clark and her lawyers. They had to prove to the jury’s “reasonable satisfaction” that Cowboy Clark met his death through a violent accident in the natural course of human activities.

  Despite claims of impartiality, Judge Ball appeared to be stacking the case in favor of the widow Clark. The jurors read the transcript of Washington’s criminal trial, where a jury ruled that the homicide was first-degree murder; those twelve men were now being asked to decide that a homicide can be accidental. How could the insurance company win?

  After less than twenty minutes, Edward E. Capps, the jury foreman, announced to the court, “We the jury, find for the plaintiff and against the defendant, $1,000.” To help the young widow, they considered her husband’s death an accident. />
  THE VERDICT BROUGHT no relief for Caliph Washington as he waited in the Jefferson County Jail in Bessemer for the Alabama Supreme Court to rule on his appeal. In 1958, seven justices sat on the court’s bench: Thomas S. Lawson, Robert T. Simpson, Davis F. Stakely, John L. Goodwyn, Pelham J. Merrill, James S. Coleman, Jr., and Chief Justice James Edwin Livingston. All except Simpson were from counties in the Alabama Black Belt, that swath of rich soil ripe for growing cotton and uncompromising in tradition. Blacks constituted an overwhelming majority of the population in those counties, yet a handful of whites held the balance of power in politics there. As one keen Alabama observer noted, the black majority were seen as “good field hands and not much more.” These justices espoused the values of this rural white society.

  During the 1950s and 1960s, many of their rulings, or their lack of action, on racial issues reflected these values. They engaged in a judicial and procedural “massive resistance” to civil rights legal issues, including supporting the ban on NAACP activities in Alabama. “The furor of the times,” authors Tony Freyer and Paul Pruitt wrote, “blinded many white lawyers and even more white office holders . . . to what they knew perfectly well, that too often Alabama courts were inadequate to conduct even routine business.”

  For years, critics blasted the provincial nature of Alabama’s judicial practices and its antiquated procedural system, which remained mostly unchanged since 1852. As Pruitt and Freyer discovered, the high court justices received so many appeals that they were unable to make “coherent use of their own procedures.” The court’s business was to interpret the law and offer rulings on lower court errors.

  But because of the heavy docket load, the justices considered cases in four-member divisions, as authorized by Alabama law: the court might “sit, hear, consider, and determine cases and exercise all its powers and jurisdiction, in sections of four judges.” The chief justice served as the fourth member in each of the two divisions. Four members of the court constituted a majority, and if all agreed on a case, their judgment would become the opinion of the court. If any member of the division deciding the case disagreed with the judgment, the case would go before the entire court for consideration. For that reason alone, judges rarely wrote dissenting opinions, to allow cases to move more quickly through the system.

  As Pruitt and Freyer showed, most cases heard before the Alabama Supreme Court were “one-man decisions” made by a justice who wrote the opinion before the court issued its final ruling. Cases submitted were assigned to a particular judge on a rotating basis, beginning with the court’s junior member and then moving “up the ladder” to the senior. Caliph Washington’s case went to senior associate justice Thomas Seay “Buster” Lawson, the head of the Lawson Division, which also included justices Davis Fonville Stakely and Pelham J. Merrill.

  Kind, benevolent, and paternalistic, Thomas Lawson was an old school Black Belt judge with conservative racial views in line with others of his generation. Born 1906 in the Hale County hamlet of Greensboro, he grew up in an elite Bourbon-class home. His father was president of the People’s Bank of Greensboro and served seven terms as the city’s mayor. His mother, Amy Seay, was the daughter of the two-term Alabama governor Thomas Seay. The younger Lawson graduated from the University of Alabama with a bachelor of laws in 1929 and practiced in Selma and Greensboro before becoming a state assistant attorney general in January 1931 under Greensboro native Thomas E. Knight, Jr., one of the key players during the Scottsboro Boys trials. Under Knight and his successor, Albert Carmichael, Lawson labored as one of the state’s prosecutors in the cases against the nine boys accused of raping two white women. In 1937, Lawson helped end the trial phase by abandoning the cases against the four remaining defendants.

  In November 1938, voters elected the thirty-two-year-old Lawson to be Alabama’s attorney general, a position he held almost four years. On October 1, 1942, Governor Frank Dixon appointed him to the Alabama Supreme Court to fill the seat vacated by the death of Thomas E. Knight, Sr., the father of his former mentor and the author of the majority opinion upholding the verdicts and death sentences in the initial Scottsboro Boys trials. In November 1942, voters elected Lawson to the Alabama Supreme Court.

  A pious Methodist, Lawson was the self-appointed guardian of the morals of the court, often scolding his fellow justices for their lapses with alcohol and women. When a rumor circulated that one of the justices was carrying on a torrid love affair with the sister of Alabama governor James “Big Jim” Folsom, the crusading Lawson decided to confront his colleague. Lawson arrived at the man’s home, as the story was told, and discovered every light in the house burning bright, but no one was willing to answer his repeated knocks on the front door. Walking around to the back of the house, he peered through a window to find his fellow judge sitting disrobed on a large Persian rug eating turnip greens and cornbread with five-foot-ten-and-a-half-inch naked Big Ruby Folsom.

  The puritanical Lawson looked and acted the part of the omniscient and distinguished jurist: he had a long, pleasant face, an uncomplicated smile, and deep-set probing eyes under close-cropped slate-colored hair. He was shrewd, listened carefully, and responded in judiciously chosen words. “He understood the power of words,” an acquaintance recalled, “and liked that power.”

  IN THE CALIPH Washington case, Lawson followed the usual procedure for a criminal appeal. He studied the briefs filed by the two sides and composed a memorandum for the other members of the division who would hear the oral argument. “In this way,” as one justice described the process, “each member of the panel is fairly well informed of what the case is all about prior to the argument, thus saving considerable time.”

  For oral arguments, the state was divided into eight geographic divisions, also referred to as the “call of the divisions” procedure—each division having one week set aside to hear oral arguments. Beginning on the fourth Monday of November, the court heard oral arguments from the nine counties of the sixth division: Blount, Walker, Winston, Cullman, Fayette, Lamar, Marion, Tuscaloosa, and Jefferson (including the Cutoff). By the mid-twentieth century, most of the justices found the system an “anachronistic and defective” leftover from the nineteenth century, when communication was slow and getting to Montgomery from some parts of the state took days.

  During the 1950s, the Alabama Supreme Court rarely heard oral arguments. Most appellate lawyers submitted their appeals on briefs to speed up the slow process. Some justices on the court, like Pelham Merrill, found oral arguments a waste of time. “Generally to argue,” he once said, “means delay.” One court observer agreed that a request for an oral argument reflected a “conscious delaying tactic to give time.” Other justices considered oral arguments a welcome relief from the cold and cloistered task of reviewing trial transcripts and briefs. “Were it not for cases argued orally,” Justice John Goodwyn once said, “our work would be wholly confined to the written word.”

  Caliph Washington’s attorneys hoped delay would keep their client out of the electric chair for the unforeseeable future. Justices Livingston, Lawson, Merrill, and Stakely heard the oral arguments in Washington’s case on Friday morning, November 28, 1958, in the colorless courtroom in the old Judicial Department Building on Dexter Avenue in Montgomery. The four black-robed justices entered the courtroom from the two dark, six-paneled doors behind the long wooden bench, and everyone in the room rose to their feet. The marshal of the court announced, “The Alabama Supreme Court is now in session.” The appellant and the appellee had thirty minutes each to argue their cases.

  During the weeks after the oral arguments, Justice Lawson prepared an opinion to take into conference with Livingston, Stakely, and Merrill. The four justices gathered around the long, narrow table in the Supreme Court conference room—a spacious, high-ceilinged room, with comfortable leather chairs and plenty of bound law books—to discuss several cases, including Caliph Washington’s appeal. In order of seniority, Livingston sat at the head of the table, with Lawson to his righ
t, Stakely to his left, and Merrill to the right of Lawson. No one was allowed in as the justices discussed the cases. “It is a sacred rule,” one justice said at the time, “that anything taking place there, anything said or done concerning a case, remains there.”

  They discussed cases according to seniority, so Chief Justice Livingston’s cases were first. “Often there are heated words of disagreement as to the law,” a justice recalled, “but it goes no further than that. Each justice respects the right of the others to disagree.” When Livingston finished, Lawson led the discussion on the Caliph Washington case. After the justices’ thorough give-and-take, Lawson read the opinion he authored.

  His colleagues interrupted him frequently to ask questions and discuss further. After he concluded, the group voted in reverse order of seniority: Merrill, Stakely, Lawson, and Livingston. This way, in theory, junior members would not be “unduly influenced by the vote of the seniors.” All four justices voted in favor of Lawson’s opinion on the Washington case.

  On Thursday, February 12, 1959, Justice Lawson handed down the supreme court’s decision in Caliph Washington v. State of Alabama. In point after point, he refused to find fault with the lower court’s actions. The bloody shirt, the pearl-handled pistol, and the brown paper sack were all correctly admitted as evidence. The bullet taken from James Clark’s body “was properly identified and accounted for” and admitted without error.

  On the other hand, Lawson noted that the flattened surface of the bullet, along with the testimony of the state toxicologist, was “advantageous to the defendant” and supported Washington’s testimony that he did not grab the gun, step back, and shoot Clark. “In other words,” Lawson added, “this evidence was in some way supportive of the theory that the pistol was accidentally discharged during the tussle which ensued after the deceased raised his arm to strike the defendant.”