On November 19, 1959, Caliph Washington appeared in a Bessemer courtroom for a pretrial hearing under the watchful eye of Goodwyn, a slow-talking, erudite, and personable jurist whose court decisions reflected his straight-laced moralism.
During the pretrial hearing, Goodwyn appeared confused about Washington’s legal representation. It was no wonder, as Orzell Billingsley and David Hood moved in and out of the courtroom like two busy travelers in a railway station. “Who is the counsel of record?” Goodwyn asked.
The courtroom remained silent. The judge scanned the faces, looking for someone to step forward to offer a defense for a young man fighting for his life.
“If the man’s got counsel,” prosecutor Howard Sullinger proclaimed, “then let it be known who’s going to represent the man.” No one said a word.
Goodwyn then asked Washington if he had hired a defense attorney. He answered no.
The judge turned to Caliph’s mother, Aslee Washington, and asked if she had retained a lawyer.
She said no. “I haven’t been able to get nothing,” she added. “I can’t hardly get me something to eat.”
Kermit Edwards stood and asked to withdraw as Caliph’s attorney because of the “great imposition” of having to defend the case again. “I would like to be relieved of it as of now,” he asked the judge.
Goodwyn asked Orzell Billingsley if he would accept the appointment as counsel for Caliph Washington. Billingsley declined. The judge inquired why David Hood had not appeared in court that morning. “I believe I will issue a warrant of arrest for him,” he told the deputy sheriff, “and let you find him and bring him in.”
Following a recess, Deputy Sheriff Clyde Morris brought David Hood into the courtroom, and Goodwyn scolded the lawyer: “Well, you have inconvenienced everyone . . . and you have delayed us unduly.” He asked Hood if he would accept a court appointment as counsel for the defendant.
The Washingtons had no money to hire counsel, Hood emphasized, and he needed cash to provide a quality defense.
Goodwyn overruled Edwards’s motion to withdraw from the case. The judge then asked Washington and his mother if it was agreeable for Edwards to remain as defense attorney. They approved.
Initial chaos resolved, the trial began at 9 a.m. on a cold, blustery Monday, December 7, 1959—the eighteenth anniversary of Japan’s bombing of Pearl Harbor.
For Howard Sullinger and K. C. Edwards, the first order of business was the striking of the jury. Of the forty-seven men in the jury pool, several admitted that they believed Washington was guilty of murdering Cowboy Clark. Edwards challenged these jurors for cause, and Goodwyn dismissed them. Others expressed opposition to capital punishment. On Sullinger’s challenges, the judge excused them. The final twelve selected for the jury were all white, blue-collar residents of the Bessemer Cutoff: Reuben Edward Aaron (section foreman), John C. Bousack (butcher), James Kenneth Davis (millwright), I. W. Elliott (tractor operator), Cleon S. Glover (well driller), William Frank Kelley (machinist), John Calvin Knowles (heavy equipment operator), Curtis Robert McGinis, Jr. (crane operator), James Thomas Rasco (weighman), William H. Russell (electrician), Jewell Stacey (blacksmith), and Melvin J. Vines (steelworker).
Once the clerk swore in the witnesses, his honor declared that all witnesses were to stay out of the courtroom and not discuss the case until called to testify. Most of the witnesses from the previous trial were subpoenaed to give testimony. All appeared at the courthouse except two. Birdie Robinson had a mental breakdown soon after the first trial and was confined to Searcy Hospital (formally known as Mount Vernon Asylum for the Colored Insane) near Mobile. Also missing was one of the state’s key witnesses, Furman Jones, whose whereabouts were unknown.
Following a lunch break, the trial resumed at 2 p.m., and Howard Sullinger offered a brief opening statement. “May it please the court and gentlemen of the jury,” he said in a loud voice, “this is a prosecution by the people of the state of Alabama against the defendant, Caliph Washington.” Sullinger then read the original indictment that charged Washington with the first-degree murder of James B. Clark. Edwards, in his opening statement, explained that Caliph Washington, in response to the indictment’s charge, contended that he was not guilty by reason of self-defense.
Throughout the 1957 trial, Howard Sullinger suffered from a severe head and chest cold that left him plodding through the testimony and evidence. At the new trial, however, he moved swiftly. His first witness, James Thompson, deputy coroner for Jefferson County, answered Sullinger’s rapid questions eagerly, with full details. He described the condition of Cowboy Clark’s body. He provided photographs he snapped of the corpse. The prosecutor showed them to the jury. Edwards objected and accused Sullinger of horrifying the jury and inflaming their minds against the defendant. The judge overruled, and the question-and-answer session continued. Thompson discussed the path the deadly bullet traveled through the vital organs. While speaking, he drew a small white envelope from his pocket and handed it to Sullinger. The prosecutor pulled out the bullet and showed it to the jury, while Thompson explained how he and Dr. Kwong removed it from the officer’s spine.
Next, Thompson described the interrogation of Caliph Washington on Sunday night, July 14, 1957. He sat quietly in the room as Deputy Sheriff Walter Dean elicited Washington’s statement. Now almost two and a half years later, prosecutor Sullinger had him identify the written statement, and then offered the document as the key piece of evidence in the state’s case. Edwards objected to the statement and argued that the prosecutor had not shown the document to be voluntary or to contain the words of the defendant. Judge Goodwyn overruled him, and Sullinger read the statement to the jury. “My name is Caliph Washington,” he began, and some ten minutes later he concluded, “I believe that’s all.”
Edwards believed the statement provided detailed descriptions of all the events of July 12, 13, and 14, except for the Clark shooting. On cross-examination, he asked Thompson to explain why, after dwelling on so many close, precise details, all that was recorded about the actual shooting was “he was pretty close to me and I started to jerk the pistol out of his hand and we fumbled around and the pistol went off two or three times.” Thompson replied, “It’s how he told it.” No one in the room asked Washington to provide any more information. By the time Thompson left the witness stand some ninety minutes later, Sullinger introduced most of the state’s evidence against Washington: autopsy photographs, the bullet, the gun, and the statement.
Next, Carl Rehling returned to talk about the ballistics report and microscopic examination of Cowboy Clark’s bloody blue shirt. The shirt, however, was lost during the first verdict’s appeal to the Alabama Supreme Court, and Sullinger offered a certificate from the court as evidence in its place. “This is the first time this has happened in thirty years,” he told the judge. “I have no idea what happened and all I know is that we sent it to them and when they shipped the exhibits back, it wasn’t there.” Perhaps the supreme court did lose the shirt, but the circuit solicitor’s office in Bessemer had a poor record of maintaining and storing exhibits through the years, so county officials might have accidently misplaced or purposely discarded the evidence. Nonetheless, Edwards accepted the certificate, and with that the first day of the trial concluded at 4:30 p.m. Bailiff James Vines announced that the “court will be in recess until nine o’clock.”
The next morning Edwards cross-examined Rehling and theorized how the bullet might have gone astray as Clark and Washington struggled. Edwards took the pistol, raised it over his head, aimed the barrel to the floor, and asked: If one person was on one side of a car door and the other person on the other, and the gun fired, and the bullet struck the car, would it enter the victim’s body at a severe angle in a downward trajectory? Yes, Rehling answered.
Throughout the day, other witnesses from the 1957 trial took the stand for the state and offered no new revelations. M. H. Karr recalled selling the gun to Cowboy Clark. Officer A. J. Wood remembered the night
he found Clark dying in the dirt. John Adams and Mary Davidson told what they witnessed from their bedroom window after the car hit the chinaberry tree. Elijah Honeycutt thought back to the night he drove Caliph to Travellick.
Washington sat in the courtroom as if he were on a train taking a trip for the second time, making the same stops, but what destination awaited remained in question. His defense failed to slow the speeding train, and Edwards’s efforts to undermine the credibility of each witness during cross-examination seemed petty and even nitpicky.
The state, however, called several new witnesses to strengthen its case against Washington. Robert Shields described in a low trembling voice the double date with the Robinson sisters on July 11. “You don’t have to be afraid to speak out,” Judge Goodwyn told Shields in a soothing tone, “because you won’t offend anyone.” The witness nodded and explained how that night he and Caliph drank two beers each and sipped on a half-pint of gin with their dates at the Blue Gardenia nightclub—this in contrast to teetotaling claims by Washington and the Robinson sisters at the 1957 trial. Shields recalled how Washington dropped him off at his home on Park Avenue around midnight, and then returned early the next morning and pleaded for help. “I asked him what the trouble was,” Shields explained, and Caliph said, “I killed a polices [sic].”
When the judge asked Edwards if he had any questions, he simply said, “I have nothing,” and the witness stepped down. Why Edwards refused to cross-examine the witness is a mystery. Perhaps Shields’s testimony revealed a side to Washington’s character that he could not defend.
Nevertheless, the state next called Tommy Lee Silmon, Shields’s stepfather. Silmon walked down the aisle toward the witness chair, dragging his lame left leg behind him like a heavy cotton sack. He suffered permanent damage from the shotgun wound inflicted by the Bessemer officer during the Washington manhunt. Silmon testified that the first time he saw Caliph Washington at his house, he spoke of being in trouble with the law. “He told me he had outrun the police. [They] had got in behind him up there in a car and he had to out run them.” When he saw Caliph sometime later, the story had changed—he told Silmon he had killed a police officer. “You what?” he recalled shouting at the young man. Silmon then recounted the story of riding with Caliph and the unknown driver to Earnest Cross’s house in Adamsville.
On cross-examination, Edwards asked Silmon if he could identify the driver. “No, sir,” he responded. “I couldn’t testify on who it was or nothing. I didn’t even know.” The defense attorney asked if Silmon had been drinking that day. “That’s right,” Silmon replied, “sure were.” Edwards then lowered his voice and accused the witness of being drunk. “It wouldn’t taken much more to make me drunk,” Silmon said comically, and several of the spectators in the small courtroom laughed. “Let’s have quiet,” a stone-faced Goodwyn warned the audience. Edwards then asked if Silmon drove to Earnest Cross’s house and forgot in his drunken stupor. Silmon shook his head and said no.
Earnest Cross, however, testified that he only saw one man in the car. “I don’t know the fellow’s name,” he said. “I know him if I sees him.” Sullinger asked if it was the “little, short, scrawny-looking fellow” with the bad leg who just testified. Cross answered yes. Then Cross explained that Caliph told him about tussling with the police officer before the gun fired.
This revelation surprised and angered prosecutor Sullinger. Cross had never revealed the story until that moment. “You never told me that, have you?” Sullinger sneered. “Didn’t nobody ask me,” Cross replied. The witness went on to explain how he, Zack Graham, and Grover Pearson drove Caliph to Amory to catch the Greyhound bus.
The next witness, State Trooper J. W. Warren, told of taking Washington off the Memphis-bound bus in Byhalia, arresting the suspect, and driving him to trooper headquarters in New Albany. Warren, who testified in the previous trial, also offered a new revelation: during their hour-long drive on U.S. 78, Caliph made a voluntary statement about the Cowboy Clark shooting. Sullinger asked Warren if he or his partner, Pete Connell, threatened or abused the suspect or offered him any inducements to make the statement. No sir, the witness answered, the statement was voluntary.
According to Warren, Washington said that he and “another negro named Johnny Walker, whom he later changed to Johnny Taylor,” were riding around in Washington’s father’s car when a policeman “got after them.” When the officer pulled them over to the side of the road, Caliph got out of the car and stood with his hands over his head, while the “other negro run around the car and shot the policeman with a pistol that shot small bullets.” Warren then recollected asking the suspect how he ended up with the officer’s gun. He claimed Washington answered: “Johnny called me back and gave me the gun and some ammunition, and I took it and run.”
During a brief cross-examination, Edwards did not ask why Trooper Warren failed to recount this statement in the first trial. Caliph’s attorney was apparently either incompetent, uninterested in the case, or convinced of a guilty verdict.
The state’s key witness from the first trial, Furman Jones, Washington’s seatmate on the Memphis-bound bus, failed to answer his subpoena for the 1959 trial. To offset this loss, prosecutor Sullinger asked Judge Goodwyn if he could introduce Jones’s testimony from 1957 as state’s evidence. Edwards, however, objected. Jones’s testimony was the “most damaging that appears anywhere in this record,” he argued, and the case was too important to deprive a defendant with court-appointed counsel the right to cross-examine (even though Edwards neglected to cross-examine earlier witnesses). Edwards said Judge Mathews appointed him Washington’s defender only two weeks before the trial began, and he was ill prepared to question Jones. “I did not know of the existence of Furman Jones or know anything about him,” he explained, and the use of his previous testimony in the current trial was a hardship. “Since that time, certain information which I am not at liberty to disclose has come to my attention which might conceivably enable me to take an entirely different tack in my cross-examination if I had that opportunity again of this particular witness.”
Judge Goodwyn offered Edwards a hollow victory: he would allow into the court record the prosecutor’s direct and redirect examinations, but not the defense’s cross- and recross-examinations.
At the beginning of the trial’s third day, prosecutor Sullinger instructed court reporter Sydney Eckstone to read aloud the transcript of Furman Jones’s 1957 testimony. The jury heard Jones recall the defendant saying that “he had done killed a police over in Alabama” and was “trying to get away.” When Eckstone finished reading, Sullinger announced that the state rested its case.
K. C. Edwards chose to call Caliph Washington as the only witness for the defense. Much as he had in 1957, Washington recounted the date with the Robinson sisters (“I do not drink”), the incident with the officer (“Me and this police officer got to tussling over a gun and the gun went off and shot him”), and his capture in Mississippi (“They came on the bus. They told me and the soldier to stand up. We did.”). He denied making a statement to State Trooper Warren about riding around Bessemer with Johnny Thomas or Johnny Walker.
Then Washington made a new revelation about the Mississippi trooper. On the trip from Byhalia to New Albany, he claimed, Warren threatened him. “He tried to shoot me,” Caliph said, “[and] hang me.” He recalled that at some point during the drive back to trooper headquarters, Pete Connell pulled the patrol car over into the woods. Warren took the handcuffs off Washington’s wrists, opened the car door, and told the suspect to run. Presumably, if the suspect ran, the officers could shoot him and then claim they shot him while he tried to escape. But before this could happen, Caliph claimed, a white man walked by and told the officers to leave him alone and take him to jail. They complied and took the suspect to New Albany.
A few minutes later, Howard Sullinger asked why Caliph had not testified in the first trial that Warren had threatened to shoot, hang, and kill him. “You didn’t ask me,” he r
esponded.
Attorney Edwards led Caliph through the questioning he received from Bessemer officers following his return from Mississippi on Sunday evening, July 14. Caliph claimed the officers questioned him extensively before Deputy Sheriff Walter Dean began writing anything down on paper. The statement, Edwards pointed out, omitted the key point about how Caliph and Clark tussled over the gun—details that the defendant claimed he provided to the law enforcement officials that evening.
On cross-examination, Sullinger asked Caliph if he read the paper after it was completed.
He had looked the document over but couldn’t understand it. “I can only read and write a little,” he added.
Sullinger spent most of his cross-examination bombarding Washington with questions about the Clark incident. “Isn’t it a fact that you snatched this officer’s gun,” he shouted, “and backed toward the rear of that patrol car, and as the officer came at you started firing that gun?” Before Caliph could answer, Sullinger walked in front of the jury box, raised his arms in the air, and claimed that Clark had his arms up (“just like this”) and you shot at him three times and hit him once. “Isn’t that correct?” Sullinger barked.
“No, sir,” Caliph answered.
When Caliph finished his testimony, he walked back to the defense table. Edwards stood and rested his case.
In his closing argument, Edwards told the jury that Caliph acted in self-defense when Cowboy Clark struck him with the pistol. While Clark and Washington struggled, the pistol fired accidentally, and the bullet ricocheted off the side of the car and killed Clark. These were key points that Edwards struggled to connect clearly during the 1957 trial.
He Calls Me by Lightning Page 16
