He Calls Me by Lightning

by S Jonathan Bass

  The Escobedo decision, the assistant attorney general argued, was so different from Washington’s situation that it had no real relevance. Police arrested Escobedo without a warrant, and he was interrogated but made no statement and was released the same day after his attorney received a writ of habeas corpus. Eleven days later, police arrested Escobedo again and took him to the police station, where he refused to make any statement without his attorney present. When his attorney arrived, police officers denied him access to his client. During Escobedo’s second interrogation, the suspect was made to stand handcuffed for a lengthy period of time. He repeatedly asked to speak to his lawyer but was told that his lawyer did not want to see him. One police officer told Escobedo if he made certain admissions, he would be released.

  “None of these facts are present,” Clark argued, in the current case. Furthermore, he added, the Supreme Court emphasized in its decision that its findings related only to the case before them. “The United States Supreme Court has not specifically held that [the] accused has a constitutional right to be informed that he has the right to counsel when he is interrogated and which interrogation culminates in a confession,” he added. Clark revealed the inherent weakness in the Escobedo decision and anticipated the Miranda decision the following year, which would provide law enforcement with clear guidelines on how to ensure due process. Clark added that Washington was advised of his rights and that his confession should not be ruled inadmissible solely by the fact that it was made in the custody of police officers.

  Next, Clark moved systematically through Blanton’s third point on the use of Furman Jones’s testimony from the first trial. Clark argued that the state had indeed laid the predicate, and he quoted at length from the second Washington trial—trying to emphasize the wisdom in the Alabama Supreme Court’s original ruling. He chose, however, to ignore Judge Coleman’s dissent.

  On Blanton’s fourth point, Clark offered a lengthy rebuttal to the notion that Caliph Washington’s confessions violated the due process clause of the Fourteenth Amendment. In supporting this argument, Blanton relied heavily on the Jackson decision, which Clark retorted “was of no help to him.” The Supreme Court intended for Jackson to apply only to the procedure in New York, the assistant attorney general argued, which differed greatly from procedure in Alabama. New York juries consider the voluntariness of a confession along with a defendant’s guilt or innocence. Alabama, he explained, followed the Wigmore or “Orthodox” rule where a judge listens to “all the evidence and then rules on voluntariness for the purpose of admissibility of the confession.” The jury then considers voluntariness as it affects the confession’s “weight or credibility.” Clark pointed to the Alabama Supreme Court decision in Phillips v. State, where the court outlined proper procedure for confessions.

  Before the trial court permitted the introduction of any confession as evidence, the state was “required to account for the treatment accorded” the defendant from the moment he was apprehended by law enforcement. Any confession made without threat, physical mistreatment, hope of reward, or an “inducement of any kind” was voluntary according to the Phillips definition. Clark argued that the state laid the proper predicate by presenting testimony to show that Caliph Washington’s confessions were made without threat, mistreatment, or inducement. “A predicate was properly laid to each admission of a statement of a witness about the petitioner [Washington] confessing about the killing of James Clark,” the assistant attorney general added. Washington’s lawyer made no request to question the admissibility of these confessions without the jury present. “He thereby,” Clark continued, “waived such right.”

  Attorney David Clark chose to deal with Blanton’s cruel and unusual argument last. The number of reprieves an Alabama governor grants had never been determined by the courts. Limiting the number would establish a “dangerous precedent” and diminish the power of the governor. “It must be assumed,” Clark continued, “that the governor used discretion in granting such a reprieve or reprieves.” An abuse of that power would merit strong consideration, but such abuse was not shown. In fact, the attorney argued, since death was the “maximum punishment” in Alabama, “something less than electrocution (a reprieve) could not be considered cruel and unusual punishment.” Blanton, however, argued that Caliph Washington’s punishment was less severe, but more cruel and unusual.

  If Judge Johnson ruled on this contentious point, he needed justification under the law, not through Blanton’s moral musings and Clark’s political fears. “I approach . . . [a case] strictly from a legal standpoint,” Johnson once said. “My interests are restricted to the law suit that’s presented.” His main concern was whether a case was presented with legal issues and how he would decide those legal issues. “There is no way to construe the Constitution of United States literally at this time,” Johnson explained, “and make it a document that has any viability. And if that’s called judicial activism, then I submit that it’s something necessary in our form of government.”

  On July 6, 1965, Judge Johnson issued his “opinion and order” in Washington v. Holman. Following a review of the history of the case, Johnson listed the four points of consideration before his court. He concluded, however, that the only issues “necessary and appropriate” to discuss in disposing of the case were points two and three—which dealt with the admissibility of the confessions obtained when Caliph Washington had no counsel and whether the use of testimony from the first trial was a “denial of Washington’s right to be confronted by the witness against him and his right of cross-examination.” He never mentioned the other two points anywhere else in the document.

  Courts had long been interested, Johnson continued, in how law enforcement officials obtain confessions that serve the basis of convictions. A basic tenet in American law was that all courts and law enforcement agencies must comply with the due process clause of the Fourteenth Amendment. The U.S. Supreme Court recently expanded this concept in the Gideon v. Wainwright decision, which concluded that the due process clause required states to “make counsel available” to indigents accused in state criminal prosecutions. “The philosophy of Gideon,” Johnson continued, “has raised other serious constitutional questions” in the Caliph Washington case, “namely, at what stage of the proceedings is a defendant entitled to the assistance of counsel.”

  Johnson emphasized the unique and “crude historical facts” and context surrounding Washington’s confession and argued that case law verified that the admission into evidence of a confession depends upon the “totality of the circumstances.” The judge believed that the Escobedo case was “very close in point” to Caliph Washington’s case and “this court feels it is controlling.” Caliph was interrogated in Bessemer without a lawyer present, and their method of questioning elicited an “incriminating statement.” In addition, police never warned him of his right to remain silent.

  Johnson then drew the parallels between Escobedo and Washington. Escobedo was twenty-two and Mexican; Washington was seventeen and black. No one advised Escobedo of his constitutional rights; the only advice given Washington was contained in the statement written by the officers that he signed: “I have not been mistreated in any way since I was arrested, nor promised any help or reward to make this statement, and I know it may be used in court at my trial for killing a policeman.” There was no question, Johnson concluded, that Washington had no legal representation. He was never offered counsel. He was never informed that he could have counsel, and he never “knowingly waived” his right to counsel. In the Escobedo case, Escobedo “had become the accused,” and the police were interrogating him to build a case against him.

  In Washington’s case, there was no “unsolved crime,” because from the beginning, the investigation focused solely on him. Although he never requested counsel before making a confession, Washington still maintained his “constitutional right” to have one. “The constitutional right to counsel does not arise from the request for counsel,” Johnson wrote, �
�but comes into being by reasons of the circumstances of the particular case.” The judge was not suggesting that all incriminating statements and confessions made by an “uncounseled accused” were inadmissible, but each circumstance had to be considered, and in Washington’s case, Johnson concluded that the admission of the written confession, made without the right of legal counsel, was a denial of Caliph Washington’s Sixth and Fourteenth Amendment rights.

  Judge Johnson then turned his attention to the question of Furman Jones’s testimony. Johnson reviewed Alabama’s rules of “admissibility of prior testimony” and concluded that they were “well settled” by the Alabama Supreme Court. When a witness was a nonresident or had moved to another state, testimony taken from any previous trial for the same offense might be “offered and admitted in a subsequent trial provided a proper predicate is laid.” The rule, however, was “equally clear” that without a proper predicate, prior testimony was inadmissible. “State Supreme Court Justice Coleman in his dissent was correct,” Johnson affirmed, “in concluding that no proper predicate was laid for the admission of the former testimony of Furman Jones.” The right of confrontation and cross-examination was a fundamental constitutional right, the judge continued, guaranteed under the U.S. and Alabama Constitutions. The exception, as in the Washington case, “must be used only in such a manner as to guarantee due process by the laying of a proper predicate to show that the witness was, in fact, unavailable.” In Caliph Washington’s trial, the predicate was “insufficient,” and the use of Jones’s testimony from the previous trial was a denial of the defendant’s constitutional rights guaranteed by the Sixth and Fourteenth Amendments.

  As Judge Johnson began offering his opinion earlier in the brief, he promised to explain his “reasons hereinafter appearing” as to why he chose not to address the other two points. Perhaps he deemed them unnecessary and inappropriate to the disposing of the case.

  Nonetheless, Johnson left no ambiguity in his final disposition of the Caliph Washington case. The judge declared “void and invalid” the guilty verdict of the November 9, 1959, trial and ordered that the conviction and sentence be “hereby set aside.”

  Johnson also ordered Caliph Washington discharged from the custody of the state and of William Holman of Kilby Prison “to the extent that such custody is or may be pursuant to the conviction and judgment” of the circuit court in Bessemer. “It is ORDERED that Caliph Washington’s discharge from said custody be no later than 10 a.m., July 9, 1965.”

  13

  A THUNDEROUS ARRIVAL

  May all the world forget you ever stood.

  And may all the world regret you did no good.

  While charming and charismatic, district attorney James D. Hammonds had a dark side that included quid pro quo schemes and violence against political and personal opponents.

  —JOHNNY CASH

  ON JULY 8, 1965, Caliph Washington was returning to Bessemer, nevermore to be confined in the decaying Kilby Prison. In less than five years, the state would close the facility. Inmates, prison officials, and politicians complained about the nearly fifty-year-old, outdated, run-down penitentiary. “It’s a waste of money to operate it,” prison commissioner Frank Lee said at the time. “It’s not the kind of situation you would want any of your relatives or next door neighbors confined in.”

  In 1967, the Alabama legislature authorized the construction of a new maximum-security prison at Atmore on the 8,700-acre prison farm. When the new facility, Holman Prison, was opened, the state closed Kilby and looked to sell the 2,000 acres of prime Montgomery real estate for redevelopment. On January 21, 1970, the last prisoners left the crumbling facility, and the state contracted with a Hollywood film company to blow apart Kilby’s massive stone walls as part of the finale of Metro-Goldwyn-Mayer’s film The Traveling Executioner, a black comedy about a man (played by Stacy Keach) who traveled around the South, charging $100 to execute criminals in the electric chair that he kept in the back of his truck. But the filming of the scene did not go as planned. After the dust and smoke cleared from the powerful explosions, the walls stood undisturbed as the last remnants of Alabama’s most brutal prison and as a monument to the 153 men and women who died at the hands of an Alabama executioner.

  When Caliph Washington exited Kilby in 1965, he left behind sixteen men awaiting death at the hands of the state of Alabama. These included five white men: convicted murderers Harold Leon Edwards, John Lokos, Gerald Eaton, Clarence Cecil, and child molester and killer James Milford Duncan. Of the eleven black men who remained on death row, three were convicted of raping white women in separate incidents: Drewey Aaron, Frank Lee Rudolph, and Robert Swain—a death penalty crime that fell disproportionally on black men. Between 1927 and 1965, twenty-six of the twenty-eight men (93 percent) who died in the Alabama electric chair for the crime of rape were black. Nonetheless, the remaining seven on death row in 1965 were convicted murderers: Roosevelt Howard, Leroy Taylor, Billy Boulden, Johnnie Coleman, Riley Sanders, Ben Mathis, James E. Hinton, and Johnnie Daniel Beecher.

  None of Caliph Washington’s death mates would depart this life in Alabama’s electric chair, and Big Yellow Mama went unused for eighteen more years. William Bowen’s death in January 15, 1965, was the last execution in the South until John Spenkelink died in Florida’s chair on May 25, 1979, and the last in Alabama until John Lewis Evans’s death in 1983. In 1962, forty-six individuals were put to death in the United States. By 1965, that number dropped to six, including the hanging of Perry Smith and Dick Hickock, famous for the Clutter family killings described in Truman Capote’s In Cold Blood. In 1966, only one prisoner was executed in the United States, and in 1967 the number was two.

  A number of factors played into this sudden and dramatic decline in capital punishment in Alabama and beyond. Various individual legal appeals by prisoners, especially the challenging of race-based jury exclusion, helped keep the electric chair quiet in Alabama. The state placed a “sort of moratorium” on the death penalty, as did other states, while the U.S. Supreme Court wrestled with the constitutionality of capital punishment. Nonetheless, these legal activities failed to dissuade Alabama juries from handing out more death verdicts. By 1971, with the chair at its new home at Holman Prison in Atmore, twenty-eight men occupied death row. The lawyers for one of those inmates convinced Judge Aubrey M. Cates, Jr., of the state court of criminal appeals to rule that the death sentence could not be carried out in Holman because state law mandated executions take place “inside the walls of Kilby Prison”—even though it was torn down. “To change the Alabama law,” one authority contended, “would mean that any executions carried out involving those already under sentence would be inflicting the death penalty under a law passed after the culprit was convicted.”

  While Alabama’s courts were arguing semantics, the U.S. Supreme Court began considering whether capital punishment violated the Eighth Amendment ban on cruel and unusual punishment. In the 1972 Furman v. Georgia decision, the court struck down state laws that gave juries “broad discretion” in imposing the death penalty. “These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual,” Justice Potter Stewart wrote. “I simply conclude that the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed.” But none of these glacial changes meant that Caliph Washington was a free man.

  ON JULY 8, 1965, Caliph Washington must have felt like he had once again been struck by lightning. For the last time, he exited the death row cellblock at Kilby and walked to the prison’s gatehouse. Waiting at the gate were not the familiar faces of his mama and his papa, but the blank expressions of two Jefferson County sheriff’s deputies, Charlie Stamps and J. C. Williams. Washington was getting a free ride back to Bessemer—handcuffed in the back of the sheriff’s automobile. His “home” would be in a cell in the Jefferson County Jail in Bessemer, where he started hi
s jail time almost exactly eight years before. This bewildering twist to his ordeal came from the pen of Judge Frank Johnson, who overturned his conviction and ordered his release. At the end of “Opinion and Order,” Johnson wrote: “This court does not enjoin the State of Alabama authorities, if they see fit to do so, from reprosecuting and, if appropriate, punishing Washington in such a manner that complies with the constitutional requirements.” In response, the district attorney in Bessemer vowed to see justice done in the Cowboy Clark case.

  As Caliph Washington returned to Bessemer that July, the skies were angry. A violent storm hit Bessemer and pounded the city with forty-five-mile-per-hour winds, large hailstones, torrential rain, and violent lightning and thunder. Caliph Washington’s thunderous arrival coincided with front-page headlines announcing that a federal judge enjoined the Bessemer Board of Education from “requiring segregation of the races in any school under its supervision.” Bessemer officials were now required to submit a plan for integrating all of the city’s schools. Once again, the white community was on edge. A few months later, one Bessemer leader would proclaim that “the white race is supreme in this world by the mandate of God Almighty.” Integrating a white-controlled school system with a predominantly black student population would be challenging, both socially and politically, in the corrupt and hostile Bessemer environment.

  Bessemer changed little in the intervening eight years. The county made some improvements in the Jefferson County Courthouse, including air conditioning and automatic cell doors, but the atmosphere was still hostile for Caliph Washington, the “police killer.” Circuit solicitor Howard Sullinger, who was so dogged in his prosecution of Caliph in 1957 and 1959, died suddenly in December 1962, just weeks following his election to a fifth term. “His love for Bessemer and for western sections of Jefferson County was pronounced,” a newspaper writer proclaimed. “He was a quiet man but with great reserves of energy . . . well liked, studious, and a true servant of the law.”