He Calls Me by Lightning

by S Jonathan Bass

  To support his claims, Pickens relied on the testimony of the lone witness called before the court, Elmore McAdory, the circuit clerk in Bessemer. McAdory, who served as the clerk of Cutoff since 1952, told Judge Ball that no attorney representing Caliph Washington visited his office from the time Caliph was released from Kilby Prison in July 1965 until Orzell Billingsley filed the writ in October 1968. The defendant had no attorney of record, and no attorney, other than Harry Pickens, had requested a trial between 1965 and 1968. “Since I’ve been down here I have made an effort,” Pickens explained to Judge Ball, “and have had conversations with members of the family . . . attempting to find out who the attorney was in this case.” He could find none until Billingsley came with the October writ.

  Orzell Billingsley, however, argued that Washington was indigent and that the court failed in its efforts to guarantee his constitutional right to a speedy trial by not appointing an attorney to defend him. “We contend that the defendant has been confined in jail for over eleven years,” Billingsley said, “and even if he is convicted again, he will not get credit for the time he’s served. Eleven years without bond is cruel punishment, and we contend he should be released.” To support his argument, Billingsley cited the Needel decision furnished by Erskine Smith. Pickens, however, disagreed and argued that Needel presented nowhere “near the almost insurmountable problems” that Caliph Washington’s case presented. The Needel case covered a period of four years, while Washington’s wait covered about eighteen months (not eleven years) from the Fifth Circuit decision of August 8, 1966, to the scheduled trial of June 17, 1968. He asked Judge Ball to “compartmentalize the time” being discussed before the court because there was a distinct difference between someone in jail awaiting trial and someone under a death sentence. “The court will, I’m sure,” Pickens added, “take into consideration the appreciable distance of time from the event itself and of the court ramifications.” The district attorney said he was “ready, willing, and able” to take Caliph Washington to trial in December 1968 or January 1969. Therefore the writ was unnecessary and should be denied. Billingsley simply responded, “You can’t do that.”

  From the bench, Judge Ball appeared sympathetic to Washington’s plight and said he was interested only in the question of a fair and speedy trial. He told Pickens and Billingsley that they need not call any other witnesses because he wanted to make a quick decision. “Let’s not delay it,” he said as he closed the proceedings.

  Eight days later, Judge Ball handed down his ruling. When he examined the record, he saw that in 1965 Caliph Washington was represented by Robert Morel Montgomery and Fred Blanton. The judge looked further and saw Orzell Billingsley, Erskine Smith, and Charles Morgan representing Caliph in 1966 and 1967—although much of that legal work was on the Washington v. Lee case, which was never about getting Caliph out of jail. Ironically, Morgan’s and Billingsley’s scheme to use Washington’s name to integrate the prisons and jails did more to hurt his case than to help it. Nonetheless, Ball ruled:

  It is, therefore, the opinion of the court that the petitioner has not been indigent since the original proceedings in the United States District Court. . . . That even though the petitioner has had all of the aforementioned counsel available to him [since that time], it appears without dispute that the petitioner has made no effort and has made no formal request or motion for an earlier setting of his case. The case was set for trial . . . and the district attorney made several efforts to secure the identity of any attorney or attorneys who represented the defendant and was successful in getting that information from the family of the defendant. THEREFORE WRIT DENIED, November 18, 1968.

  Within weeks, Billingsley was preparing an appeal of Ball’s ruling to the Alabama Supreme Court—most likely because Washington believed a favorable ruling from the higher court would bring immediate freedom, whereas another trial in Bessemer could send him back to death row (even with the unstated moratorium on capital punishment in the state). Ralph Galt wrote Billingsley, “We certainly would like to have an encouraging word to give to our friend Caliph Washington if possible.” It was a risky strategy. If the appeal failed, the trial, which Harry Pickens promised would take place in December 1968 or January 1969, would be delayed months, if not years.

  A few weeks after Billingsley appealed Ball’s denial of the writ to the Alabama Supreme Court, Galt told him that the defense committee was happy with the filing but unhappy about the delays. The committee hoped to have a favorable ruling within two weeks, but they had now waited forty days in the wilderness with no news. “If the court has not yet acted,” Galt wrote, “can you in any way stimulate it to act soon? We certainly hope that the case can be brought to a speedy and happy conclusion as soon as possible.”

  Attorneys filed briefs to the Alabama Supreme Court in March 1969. Bessemer officials simply argued that the writ should be denied so that Caliph Washington could be “remanded to the lawful custody” of the district court to await a pending trial. On the other side, Billingsley argued that Caliph Washington was sitting in jail, indigent, denied due process, denied his right to speedy trial, denied assistance of counsel, and enduring cruel and unusual punishment. He was unaware of his right to a speedy trial, he wrote, “and the state offered no reason, explanation, or excuse for the protracted delay other than difficulty finding witnesses.” For years, the case was “languishing unnoticed” and neglected in the Bessemer district attorney’s office because of the upheaval there, which was “perhaps understandable, but not thereby constitutionally permissible.” Washington should not be blamed for the delay, Billingsley argued. It was the duty of the prosecutor to proceed promptly and not allow so much time to lapse that an incarcerated indigent must now face the impossible task of reconstructing a defense: “The fact cannot be overlooked that each passing day renders investigation of his case more difficult.” Billingsley pointed to the precedent established in the Hamilton decision (Charles Hamilton was another of Caliph’s death row cellmates) that when a criminal defendant was without counsel at any critical stage, a subsequent conviction could not stand.

  In addition, Billingsley argued that Washington spent years of cruel and unusual punishment on Alabama’s death row. “The time has come,” he continued, to set free a man who has endured such pain and suffering awaiting death in Alabama’s electric chair. No one, the attorney wrote, was in favor of this type of prolonged punishment. As one journalist noted, capital punishment was the “great unfinished piece of business in this country,” and no solution to it was “worse than the existing solution, which was to leave several hundred men imprisoned in the nation’s death houses in state of permanent insecurity on the question whether they will live or die violently.” Billingsley added that in Washington’s case, the solution was self-evident in light of the “unanimity of agreement” on the death penalty. “In this particular case,” he added, “where the sojourn in the shadow of death was so protracted and the state was in part chargeable with the delay . . . the writ should granted.”

  Despite Billingsley’s emotional appeal, the case languished for months in judicial limbo among the growing backlog of cases in the appellate courts. Ralph Galt kept up the pressure on Billingsley through constant phone calls and a barrage of letters—even though he rarely responded. He urged the attorney “as soon and fast as possible” to do any and everything in his power to convince the Alabama Supreme Court to speed up Washington’s release. Galt suggested that Billingsley go to Montgomery and speak to one of the justices to “get Caliph’s case moving” again. “Even if you can press the Alabama Supreme Court so hard that it reacts and makes a negative decision,” he wrote, “that might still speed up his ultimate release because the case could then be appealed to a higher court.” Galt sensed that Caliph Washington needed to be freed before he became “mentally institutionalized” and unable to ever deal with the problems in the outside world.

  While no word came from the high court in Montgomery, in late August, Billingsl
ey informed Galt that he was putting forth “every effort to get an immediate decision.” Galt told him that those were wonderful words of encouragement, but “now we wonder if you have had time or opportunity to do specific things about it yet. If so, what actions did you take?”

  By September 1969, Caliph’s appeal was removed from the Alabama Supreme Court docket, most likely due to the backlog of cases, and reassigned to the newly created Alabama Court of Criminal Appeals, where it would be considered, without oral arguments, by presiding Judge Anna Lola Price. For almost twenty years, Price was the only female judge in Alabama, serving first on the old state court of appeals and now on the new criminal court. She began her legal career as a stenographer at a small firm of Griffith & Brown in Cullman, where she studied law in order to better understand the clerical work she was being asked to do. On a whim, she decided to “come down to Montgomery to see what the [bar] exam was like,” passed, became a member of the bar, and was soon hired as an associate at her firm. In 1947, she moved to Montgomery to serve as a legal adviser to Alabama governor James “Big Jim” Folsom, who later appointed her to the court.

  On October 6, 1969, the Committee for Caliph Washington, composed of members of the CWCA, the “defense committee,” and other interested people, asked Judge Price to take action. “For more than four years,” they wrote, “this man has been held in jail or prison without benefit of bond, and we would like to know if steps can be taken legally to obtain bond. We realize that your court has a heavy back-log of cases, but this one has been in the hands of various courts for so many years, we would like to appeal to you to move as quickly as possible on the habeas corpus hearing.”

  In the Jefferson County Jail in Bessemer, Washington continued to wait impatiently. For unclear reasons, the jail warden placed him in solitary confinement for what Ralph Galt described as another “long unjust stay.” Galt later said that Washington was being punished by Bessemer officials as retribution for “acting like Martin Luther King” and keeping things “stirred up” in the county jail. Once he was released from solitary, the warden refused to allow him to meet privately with that “radical social activist” white preacher Ralph Galt. Yet Galt still came every week to visit and pray with Washington as jail officials listened. Washington continued to complain to Galt about Billingsley. Washington criticized Billingsley for his lack of effort in his case and suggested that if he did not have enough time, he should hire another attorney to help or just turn the entire case over to someone else. Following the meeting, Galt wrote Billingsley: “Please try to get him out on bond. He believes that you promised to do this when you first took the case, but he has the impression that you did not definitely try.”

  On November 4, 1969, the ruling finally came from the Alabama Court of Criminal Appeals. Judge Price wrote the decision of the court and reviewed the history of the case and the decision of Judge Ball emphasizing that neither Washington nor his lawyers made a request for a trial. As a precedent, Price pointed to the opinion in the 1967 Hampton v. State of Oklahoma, which held that the failure of a defendant to demand an earlier trial was “fatal to his request for discharge under habeas corpus” because in the “absence of such effort,” he waived his right to a speedy trial under the Constitution. “Mere passage of time,” Price wrote, “does not establish an unconstitutional denial of a speedy trial or due process . . . nor can a defendant sit by without effort to obtain an earlier trial or himself contribute to the delay and thereafter be heard to complain.” The only question for Caliph Washington, she added, was whether the state denied him a speedy trial, but neither he nor anyone on his behalf made such a request, so Judge Ball was correct in ruling that the defendant was not entitled to discharge on habeas corpus.

  Two days later, Harry Pickens stopped Aslee Washington while she was on her way to visit her son and told her that he was “getting ready to try Caliph in a new trial very soon.” Washington still did not believe he could receive a fair trial in “racist Bessemer” and preferred to quickly appeal the habeas ruling in the Alabama Supreme Court and in federal district courts before Pickens scheduled a new trial. Ralph Galt told Orzell Billingsley that the situation was “extremely dangerous and urgent” and that he needed to move quickly. Billingsley was looking at broader constitutional issues beyond Washington’s lone case. “I am of the opinion that several actions can be taken on behalf of the defendant Mr. Caliph Washington,” he wrote Galt in a brief reply, “including further attacks on the jury system in the Bessemer Cutoff.”

  18

  “IN A WASTED LAND OF NO WANT”

  In April 1970, Caliph Washington leaves prison for the first time in thirteen years. He is greeted by Orzell Billingsley.

  CALIPH WASHINGTON LONGED for freedom as he entered his thirteenth year of imprisonment. Although he found encouragement through his faith, family, and friends, at times he grew discouraged through all the pain and suffering of waiting. He was tired and weary when he wrote a friend, “I shall soon be an old man in a wasted land of no want.” Ralph Galt, however, refused to allow him to sit and rot in jail. His relentless efforts to spread the news about Washington’s plight were finally creating more publicity in early 1970. At Miles College, where Galt taught, a writer for a student publication called on all students to show their concern by making the name Caliph Washington a “conversation piece” among friends, neighbors, and church members. For thirteen years, the writer argued, Washington never received the publicity needed to compel Americans to “look under its rug to see the dust of racism.” If they looked, they would see a man wrongly convicted, which was a “sin against God and an abomination of humanity.” The writer encouraged students to make certain that Washington was not “judged under the modern day Black Code laws, but rather under a fair, impartial law (if there is such a thing for a black man).”

  The Caliph Washington Defense Committee recruited new supporters through an emotional appeal to help free the unjustly imprisoned and forgotten man. “Is it possible for people in our city to secure justice for a man in prison?” they asked. “Justice starts with us!” The committee organized a Caliph Washington Benefit Buffet Supper, where supporters brought covered dishes and discussed the case. “Mr. Washington is a black man,” read the invitation to the event, “strong, sensitive, and still young! The deals of his case are known and need to be heard.” Attendees at the Thurgood Memorial CME Church in Birmingham on Friday, March 6, 1970, ate homemade dishes prepared by blacks and whites from throughout the area and listened to pleas for help from Aslee Washington, Ralph Galt, Larry Morkert, and others. In the end, the benefit raised several hundred dollars for Caliph Washington’s defense.

  The following Monday, March 9, while Caliph’s lawyers were still preparing a habeas writ for filing in federal court, Harry Pickens informed Orzell Billingsley that the date was set for a new trial to begin on Monday, April 6, 1970. Within days, Erskine Smith withdrew from the case because of his heavy workload and other commitments in capital cases. “I will be in no position to prepare or try the captioned case on April 6, 1970, nor anytime in the foreseeable future,” he wrote Billingsley. He expressed deep concern about Washington’s plight but could offer no more help. The acerbic Chuck Morgan also wrote Billingsley and pulled out of the case, even though he had never been a part of it. “Since I don’t believe that an appearance was ever entered in the above case in my name,” he wrote, “and I don’t have time to handle the case, I just want to let you know that I won’t. Now that I’ve gone through all this and volunteered not to volunteer I’m sure you’re appreciative of the wonderful assistance we’ve rendered to you in this matter.”

  At the arraignment on Friday, March 13, with Orzell Billingsley at his side, Caliph Washington pleaded not guilty in the 1957 murder of James “Cowboy” Clark. Billingsley remained the attorney of record, but his heavy drinking was taking a devastating toll on his personal and professional life. Fortunately, he received much-needed support from Russell Jackson “Jack” Drake, a twenty-
four-year-old wild-eyed white graduate of the University of Alabama Law School, who led antiwar protests on campus, advocated civil rights, and frequently clashed with university administrators over free speech issues. After receiving his law degree in 1969, Drake went to work as the staff attorney with the Selma Inter-Religious Project, an ecumenical social and religious ministry that supported civil rights causes in Alabama’s Black Belt. Through his legal work, Drake became friends with Billingsley, who in turn invited the young lawyer to help with the Caliph Washington case.

  Drake found Billingsley a brilliant attorney with tremendous courtroom skills. An approachable and generous man, Orzell could never say no to anyone in the black community who needed his help—most of whom, like Caliph Washington, had no money. This left him flittering from client to client and gave Billingsley the reputation of an overworked, disorganized, unfocused, and undependable lawyer. “This was not necessarily a shortcoming on his part,” Drake later recalled, “but a reflection of the demands of the time.” Orzell’s passion for justice and compassion for individuals kept him overextended. He increasingly turned to alcohol for comfort. “People just used him up,” Drake added, “and in a sense, he got destroyed by the people he wanted to help.” In 1970, he had Drake to help carry the load in the burdensome and time-consuming Caliph Washington case.

  Drake drafted documents and made frequent trips to the Jefferson County Jail to meet with Washington. He described Washington as a “very gentle person,” who was “genuine, likeable, bright, and well-read” and was always willing to share his faith. He enjoyed the visits, but he feared each trip to Bessemer because of the hostile atmosphere in what he described as a “mean, rough-ass” city; he found the attitudes of many of the older police officers especially disturbing, and he later described them as “some of the worst you could find in Jefferson County.” But they ignored the baby-faced, thin-as-a-broom-straw Jack Drake. “They never saw me as a threat to the status quo,” he later recalled. “They were unconcerned about my activities.”