He Calls Me by Lightning

by S Jonathan Bass

  Judge Johnson, however, denied the petitions because Washington had not satisfied “all remedies” under Title 28 § 2254 of the U.S. Code. Judge Johnson issued his decision at 11:25 a.m., just over twelve hours prior to Washington’s 12:01 a.m. execution. The judge wrote that Caliph Washington’s petition failed to specify if he had exhausted all remedies at the state level. “The right of habeas corpus through the State courts is his proper remedy,” Johnson argued. In addition, the judge also added that the question of whether Caliph knowingly waived the assistance of counsel, when he was constitutionally guaranteed the right to such, could not be answered by the record and therefore should be presented through a petition for a writ of error coram nobis (writ of error, where a court reviews its own judgment where there are errors of fact). Such a petition, said Judge Johnson, must be filed with the Alabama Supreme Court in order to exhaust the remedies available to him. The state should be given the opportunity to inquire into such contentions if they had merit and to correct the problem prior to intervention of federal courts.

  Johnson noted, however, that Washington could file another writ of habeas corpus in forma pauperis if he could again show that all state remedies were exhausted. Giving Washington the right to file in forma pauperis—a Latin phrase meaning “in the manner of a pauper”—meant the court would waive all filing fees and court costs for the indigent appellee.

  Blanton hurriedly filed a petition for a writ of error coram nobis with the Alabama Supreme Court, and by midafternoon, the state’s high court rejected the petition. Within minutes, he was back in Frank Johnson’s court filing another petition for writ of habeas corpus and a stay of execution. In his hastily composed petition, he argued that the state of Alabama violated Caliph Washington’s constitutional rights because of (1) the cruel and unusual punishment of granting Washington so many unsolicited reprieves, (2) inappropriately allowing testimony from a previous trial to be read in a later trial, (3) the admissibility of Washington’s purported confession, and (4) how “certain confessions and admissions against his interest were admitted on the trial of this case [and] were obtained by police officers when he was not . . . represented by counsel and at a time when he did not knowingly waive the assistance of counsel.”

  At 4:57 p.m., Judge Johnson stayed Caliph Washington’s execution “pending a determination by this court of the issues presented.” The judge ordered Kilby Prison’s warden, William C. Holman, to appear in court and tell Johnson why he should not grant the defendant’s petition.

  In his order staying Washington’s execution, Judge Johnson ruled that the Alabama Supreme Court erred in denying Washington’s application to file a petition for a writ of error coram nobis, citing a Supreme Court decision in the case Chessman v. Teets. According to his interpretation, the decision required the courts to adjudicate “all contentions of a substantial nature that involved the constitutionality of a conviction no matter how guilty the accused may be found to be.” In this case, Washington’s right to appeal flowed from the right of due process, and Judge Johnson stated that Washington should and would receive every opportunity to show that the court erred in some way in ordering his death.

  AS SOON AS the warden received word of Judge Johnson’s decision, Kilby guards led Caliph Washington from the Bible Room and returned him to a cell with the other death row inmates. “If it is His [God’s] will for me to die,” Washington told a reporter, “I will; if it is not His will, I won’t. I just try to have faith in God.” Nearby, family and friends rejoiced. Aslee Washington had her miracle. For Caliph, the closeness of death transformed his life. “Facing death,” he later said, “and then being reprieved at the last minute . . . sure brought me a strong faith in God” and a calling to become a minister. “I look to him now,” he added, “because I know my help comes from Him . . . something I didn’t know a while ago.” It was as if God had called him by lightning.

  Even though Caliph Washington found spiritual freedom, physically he was still very much in Kilby Prison. On January 8, the Alabama Attorney General’s Office filed an answer to Blanton’s arguments and asked Johnson to dismiss the appeal. The state’s attorneys argued that the Alabama Supreme Court committed no reversible error in any of its previous rulings, and that Caliph Washington waived his right to claim the denial of due process by failing to object to the use of the confessions at earlier trials. In addition, Washington never requested a lawyer be present at his interrogation by police. “In the absence of request for counsel at interrogation,” the state argued, “there was no violation of [Washington’s] constitutional rights where resulting confession was obtained which was shown to be voluntarily given.” The state ignored the issue of cruel and unusual punishment that Blanton raised in his petition.

  Johnson was not swayed by the state’s responses. On February 9, 1965, at a pretrial conference in his chambers, he denied the motion to dismiss and ruled that Washington was “entitled to a hearing in this Court on the merits of his case.” Attorneys for both sides agreed that the case required no oral testimony and that both parties would write and submit briefs to the court. Judge Johnson ordered both sides to address all four constitutional issues raised by Blanton in his December 3, 1964 petition: (1) cruel and unusual punishment in the granting of thirteen reprieves, (2) lack of counsel at Washington’s apparent confessions, (3) the right of submitting testimony from a previous trial without cross-examination, and (4) violation of due process by the use of involuntary confessions. With the procedural issues agreed upon by both parties, Washington’s lawyer, Fred Blanton, began researching and writing an extensive brief in accordance with Johnson’s pretrial order.

  Judge Johnson asked for Blanton to file the brief by April 5, 1965. For weeks, and with no hope of recompense, Blanton worked long hours reading legal texts, case law, scientific research, the Bible, and other sources to support his arguments. His first argument would be the most challenging. How could Caliph Washington’s thirteen reprieves from death be considered cruel and unusual punishment? Blanton discovered that his argument had “little consideration in either the fields of medicine or law” and that he made creative use of sources to support his proposition “in a general bibliographical sense rather than in a specific legal sense.”

  Blanton’s frustration over sources compelled the attorney to offer a “caveat” at the beginning of his brief and explain, in humble, apologetic tones, how he found no case law to support his argument. But following this meek start, Blanton cast his argument in clear moral tones:

  A human being who has been sentenced to death and who has been granted 13 reprieves by the governor, 11 not at his request, and of which 5 reprieves were granted approximately 24 to 36 hours prior to the time of execution, has been subjected to “cruel and unusual punishment” within the meaning of the 8th Amendment to the Constitution of the United States as the same is made applicable to the State of Alabama by the due process clause of the 14th Amendment to the Constitution of the United States.

  The thirteen reprieves granted by Governor George Wallace were not gifts of mercy, Blanton supposed, but instruments of torture—a mental torture just as cruel and unusual as any form of physical torture.

  Wallace’s reprieves, Blanton continued, placed Caliph Washington under “extreme acute emotional stress” because Washington was aware of his “impending death” at the hands of the state. This stress was not manifested as a “result of an accident, not as a result of his own conduct, but as a sole result of a power residing in, and exercised alone, by the Governor of the state of Alabama, acting for, and on behalf of, the state.” Blanton believed that the severe emotional stress and anguish of preparing for execution on the “brink of eternity” created a “traumatic neurosis” in Caliph Washington—similar to those seen in soldiers preparing for combat.

  Blanton’s evidence in support of this argument was thin, and most of the cases he cited had no substantial relevance to Caliph Washington’s dilemma. The one exception was the strong dissenting opinio
n in the U.S. Supreme Court’s Francis v. Resweber case. On May 3, 1946, Louisiana prison officials failed in their attempt to execute Willie Francis in the state’s electric chair, Gruesome Gertie. Francis claimed that when the executioner threw the switch, an electrical current reached his body but failed to kill him. Prison officials, however, believed that no amount of electricity reached Francis and ordered a second execution. Willie Francis appealed to the high court and argued that a second execution constituted cruel and unusual punishment. In a five-to-four decision, the Supreme Court sided with the state and allowed the execution to proceed. In dissent, four justices argued “death by installments” was indeed cruel and unusual punishment.

  Fred Blanton saw the parallels. The only major difference between the two cases was that for Willie Francis the mental torture of the near-execution was strictly accidental. In Washington’s case, Blanton believed, the thirteen reprieves granted by Wallace were intentionally cruel and provided the same level of mental anguish as one execution gone wrong.

  Next, lawyer Blanton argued that the taking and using of a confession when Caliph was without counsel, was offered no counsel, was not informed he could have counsel, and never waived the assistance of counsel, was a violation of the Sixth Amendment and the due process clause of the Fourteenth Amendment. From his arrest in Mississippi to his interrogation in Alabama, Washington provided several “voluntary confessions” that formed the heart of the defense’s prosecution of the case. “Once the individual is seized,” Blanton proclaimed, “he feels the pincers of the state and his ordeal has begun.”

  Blanton was pointing to the standard practice of the time: to obtain a confession from a suspect at all costs and then build a case around it—which the prosecution in Caliph Washington’s case did. Even a lawyer of such limited abilities as Kermit Edwards, the defendant’s court-appointed attorney in 1957 and 1959, objected to the use of the confession:

  We object to it as not being shown to be voluntary, not shown to be in the words of the defendant, not shown that he was advised he could have had or should have had a counsel present at the time that the statement was made; he was not given the benefit of counsel and advice of counsel before requiring him to answer the questions and to make the statement made on that occasion.

  To support his argument, Blanton relied heavily on the 1964 U.S. Supreme Court decision in Escobedo v. Illinois. Escobedo was a Mexican worker arrested in Illinois as a murder suspect. While under interrogation, police denied his request to speak with his attorney and refused to allow his attorney the right to see his client. Following several hours of intense questioning, and with no counsel present, the suspect provided enough of a confession for the state to build a solid case against him. The state convicted Escobedo, and following a serious of appeals, his case ended up at the U.S. Supreme Court.

  In a narrow five-to-four decision, the justices on the high court ruled in favor of Escobedo and concluded: “No system worth preserving should have to fear that if an accused is permitted to consult with a lawyer, he will become aware of, and exercise, [his] rights.” The justices ruled that a confession given by a suspect during law enforcement questioning was invalid unless the suspect had the opportunity to speak to, or refuse, counsel. The opinion increased the burden on police to demonstrate that a confession met these requirements, where previously the burden rested on the accused to show that the confession was involuntary.

  Caliph Washington’s situation differed from Escobedo. Escobedo retained an attorney prior to giving his confession, while Washington had no attorney (although David Hood represented him in 1955), nor had he requested to speak with one. To bolster his argument, Blanton pointed to a California Supreme Court application of Escobedo in People v. Dorado. Judges on the California high court argued that a suspect had a constitutional right to counsel that “cannot be lost because he did not request or retain counsel” and that the use of an “involuntary confession” led to the “denial of due process and requires reversal regardless of other evidence of guilt.” The facts in Caliph Washington’s case, Blanton added, led to the obvious conclusion that the “defendant’s confession could not be properly introduced into evidence, because the police investigation was no “general inquiry into an unsolved crime” but a focused search for one key suspect (Washington).

  Caliph was also in the custody of Bessemer police officers and Jefferson County sheriff’s deputies, who “carried out a process of interrogation that lent itself to incriminating statements.” Pointing directly to the rules of confession in Escobedo, Blanton emphasized that Alabama officials never informed the defendant of his right to counsel, or of his absolute right to remain silent, and that “no evidence established that he had waived these rights.” Finally, the attorney anticipated that the state would object to the application of Escobedo since Washington was convicted five years before the decision. “If right to counsel be one of the fundamental rights essential to a fair trial,” Blanton emphasized, “then that trial denying right to counsel is not fair whether it occurred before or after Escobedo.”

  In the third point, Blanton argued that Furman Jones’s testimony from the first trial (in 1957) should not have been admitted into evidence in the second trial (in 1959) because no proper predicate was laid for Jones’s absence. This, the attorney added, denied Washington the right to confront and cross-examine the witness against him. Quoting from Acts 25:16, Blanton emphasized that it was the Roman custom to allow any man about to die the opportunity to face his accusers and have the right to “answer for himself concerning the crime laid against him.” The Apostle Paul was “confronted by his accusers in Rome as related in Acts,” he continued, just as Caliph Washington “should be confronted by his accusers in Bessemer as related in the Constitution.” This was a precious and absolute right, Blanton emphasized, guaranteed by the citizens of the United States in the Sixth Amendment of the U.S. Constitution and by residents of Alabama in Article I, Section 6 of the Alabama Constitution.

  In Washington’s first trial in 1957, Furman Jones testified that Washington admitted to killing a police officer. In 1959, Bessemer authorities mailed a subpoena to Jones’s last-known address in South Carolina. Jones failed to answer the summons, and in lieu of his absence, the prosecution moved to read the transcript of his testimony from the first trial. Attorney Kermit Edwards objected. He was anxious to question the witness again because in 1957, he only had a few days to prepare for Washington’s trial. In 1959, he had new evidence he wanted to use to confront Jones. But Howard Sullinger, the circuit solicitor at the time, argued that they could not force Furman Jones to appear at trial, but that they had reasonably tried to locate him. Judge Gardner Goodwyn overruled Edwards’s objection and allowed the reading of the transcript before the jury. Edwards’s exception to Goodwyn’s ruling was part of the court’s transcript.

  The standard for admitting witnesses’ testimony from prior trials appears in the ruling from Caliph Washington’s second appeal before the Alabama Supreme Court. The Alabama Supreme Court provided the standard for admitting testimony from a previous trial in its ruling on Caliph Washington’s second appeal. The court ruled that a “sworn testimony taken on any previous trial for the same offense may be offered in a subsequent trial if a proper predicate is laid.” The court agreed that the trial court established the predicate for reading Jones’s testimony. Blanton disagreed and blasted the Supreme Court’s circular reasoning, quoting Justice Coleman’s short dissenting opinion in the second Washington v. State: “As I understand the opinion of the majority, they hold that Jones’s former testimony laid its own proper predicate. I, therefore, respectfully dissent.”

  In Blanton’s final point, he argued that the introduction into evidence of Washington’s involuntary confessions violated the due process clause of the Fourteenth Amendment. The attorney pointed out that the prosecution used nine supposed confessions made by Caliph Washington to J. W. Thompson, Elijah Honeycutt, Robert Shields, Tommy Silmon, Earnest Cross, J. W. W
arren, Lawton Grimes, Furman Jones, and Walter C. Dean (who wrote down the written statement). In only two of these nine confessions did the defendant’s attorney raise any objections, which served as the basis for Blanton’s contention that Judge Gardner Goodwyn violated the established rules for determining whether a confession was voluntary. The attorney pointed to the U.S. Supreme Court decision in Jackson v. Denno, which established the rule that a judge must hold a hearing outside the presence of a jury in order to determine if a confession is involuntary. The trial court in the Jackson case instructed the jury to determine both whether a confession was voluntary and the weight that that confession should receive as evidence. The Supreme Court decision changed the rule so that a judge could no longer submit confessions to the jury if an objection was raised to its possible involuntariness. Blanton pointed to a subsequent high court decision in Boles v. Stevenson, where the justices ruled that, even if the defense attorney raised no objection to a confession at trial, the judge still had to determine whether the defendant gave that confession voluntarily. If the judge failed to do so, the defendant could request a new trial on appeal. Blanton argued that Washington was entitled to protection under Jackson and Boles, even though both decisions were handed down in 1964—five years after Caliph’s last trial.

  Fred Blanton submitted the forty-seven-page brief to Judge Johnson on April 1, 1965—arguing that Caliph Washington’s constitutional rights, as guaranteed in the Sixth, Eighth, and Fourteenth Amendments, were violated and his petition for writ of habeas corpus must be granted. Blanton’s brief was compelling, well reasoned, and persuasive.

  Alabama’s assistant attorney general David Clark prepared the fact-based, dispassionate response to Blanton’s brief. For Clark, the case was clear. The petition for a writ of habeas corpus should be dismissed because, as the attorney wrote, Caliph Washington was given all of the constitutional rights granted in both the U.S. and Alabama Constitutions. To support this central argument, Clark chose to begin his brief by refuting Blanton’s assertions on the right to counsel and his interpretations of Escobedo.