Attorney David Hood was often deemed a threat to the Bessemer white establishment, but he remained undeterred and determined to help Caliph Washington. He too would represent Caliph, some fifteen years after he first served as the lad’s attorney in the public exposure case in 1955. Also joining the defense team was another native of the Bessemer Cutoff, U. W. Clemon. This was Clemon’s first criminal law case since graduating from Columbia School of Law in 1968, where he studied under a scholarship provided by the NAACP Legal Defense and Educational Fund. Upon completion of his degree, Clemon received an Earl Warren Fellowship to concentrate on civil rights legal work under the tutelage of Constance Baker Motley and Jack Greenberg of the NAACP. By 1970, the twenty-six-year-old Clemon was working on civil rights cases in Alabama, and the Caliph Washington case was one he knew about since his teenage years in the Westfield community near Bessemer. “I thought that a gross miscarriage of justice had occurred,” Clemon later recalled. “I was very impressed with his sincerity.” The case also touched a personal chord with the attorney. In the late 1950s, about the same time as Caliph’s incident with Cowboy Clark, U. W. Clemon witnessed one of his friends being abused by two white police officers from nearby Fairfield. “I was indignant,” Clemon later recalled, “and at age thirteen, from that point on, I pretty much wanted to do civil rights law.”
The Washington case also helped solidify Clemon’s opposition to capital punishment. “The Caliph Washington experience, to me, was another exhibit to the insanity of that approach to justice,” Clemon once said. “The death penalty if carried out is unmerited. You don’t have a chance to correct mistakes, and sometimes mistakes can only be corrected after long periods of time. But in my judgment, the Lord intervenes in appropriate cases.” Caliph’s life had been spared, and now Clemon was optimistic that he could help the defendant clear his name and win his freedom.
To that end, Clemon and the other attorneys filed a motion to quash the indictment and refill the jury box—once again challenging the systemic exclusion of blacks from the original grand jury that returned Caliph Washington’s indictment in September 1957. Orzell Billingsley asked the court clerk to summon, as witnesses on behalf of the motion, a cross section of current and former Bessemer officials and black residents of the Cutoff, including James Hammonds, Elmore McAdory (the clerk), Judge Edward Ball, and Judge Gardner Goodwyn. The record is silent as to whether Goodwyn and Hammonds were sitting in Judge Ball’s court on March 27, 1970, when Ball convened a hearing to consider the motion to quash.
Before taking any testimony, District Attorney Harry Pickens moved to dismiss the motion because Billingsley filed practically the same document in 1957, which the court ruled on then. Clemon argued that Washington was entitled to a grand jury made up of a “representative cross section of the community” to listen to the evidence, “which was not the case in 1957.” Judge Ball, however, pointed out that this question was settled: the county court denied the motion years before; the majority of the judges on the Alabama Supreme Court affirmed the conviction (Judge James Coleman’s dissent focused on the use testimony from the previous trial and not on the racial makeup of the grand jury); and Judge Frank Johnson granted a writ of habeas corpus, but not on the grounds that blacks were excluded from the original grand jury. Judge Ball wished that Johnson had ruled on that question: “He either refused it or overlooked it, or it wasn’t raised.” He looked at Billingsley and said, “You know more about it than I do, because you were there.” In fact, Fred Blanton never raised the issue.
Nonetheless, Ball ruled that Washington’s attorneys had the right to raise issues related to the constitutionality of the petit jury but not the grand jury. Billingsley countered that it was “never too late to raise these issues” and pointed to the Johnnie Coleman case from 1968 as an example of revisiting the racial makeup of a grand jury. “He is the D.A.,” the attorney said, “but that doesn’t mean he shouldn’t join in to aid the defendant [and] protect his constitutional rights.” In response, Harry Pickens argued that his duty was to prosecute Caliph Washington. Billingsley, Drake, Clemon, and Hood had the responsibility to defend him. “My duty obligates me,” Pickens continued, “to see that that man [Washington] gets a fair and impartial trial, and I’m sure his lawyers will see that I perform my duty properly.”
Judge Ball granted Pickens’s request and denied the motion to quash the indictment. Billingsley, Clemon, and Drake then turned to the racial makeup of the petit jury for Washington’s trial, scheduled to begin on April 6. County officials compiled the jury rolls in August 1969, and Billingsley requested an opportunity to examine those rolls to determine how many blacks would be potential jurors in the case. Judge Ball quickly agreed and then asked, “Are there any other matters you wish to bring up?” Billingsley made a motion that the court grant Caliph Washington bond until the trial began. “He’s been in jail for thirteen years,” Billingsley said, “and is entitled to bond.” Harry Pickens responded, “I’m going to oppose that.” But without hesitation Judge Ball said, “I’ll set the bond at $10,000,” then immediately closed the proceedings. Afterward, Ball told a newspaper reporter covering the hearing that he had no special reason for granting the bond. “He had been tried twice, sentenced to the electric chair twice, and spent some time in jail,” Ball said. “His attorneys asked for a bond, and I gave it to him. That’s all.”
If Caliph Washington made bail, this would be his opportunity to take his first free steps in over twelve years. “Caliph’s health is good,” Orzell Billingsley said after the hearing. “He couldn’t be in good spirits being in jail [over] twelve years, but I imagine he has new hope after getting approved for bail.” Raising the money to make bail was another matter, but members of the defense committee began seeking funding. “We are pretty hopeful that he will be released,” Reverend Larry Morkert said, but Caliph remained in the Jefferson County Jail over the weekend as the group struggled to find the money. Late in the afternoon on Tuesday, April 1, 1970, committee members raised enough money and collateral to convince the O.K. Bond Company in Bessemer to put up the money.
With bond made, Caliph changed from his jail clothes into a rumpled pair of dress slacks, a white shirt, and a light-colored cardigan sweater. As he walked through the door from the jail, he carried a large paper sack filled with his meager belongings from thirteen years behind bars. The first person to greet him was Orzell Billingsley. Family members picked up a smiling Caliph Washington and drove him home. He had one week to enjoy freedom, surrounded by his family and friends, before the new trial started.
Washington’s release brought unprecedented publicity in the local and national media. Emory Jackson, editor of the Birmingham World, opined that his thirteen years in prison waiting was a “form of punishment within itself.” Alabama’s legal system was “working poorly” in the Washington case, he added, and “he was and is entitled to a speedy trial. Five years of waiting for trial is both a reflection on Alabama’s trial system and the rights of man in a democracy.”
Garnering most national attention was a public statement issued by four ministers, including Larry Morkert of St. Paul’s Lutheran, Ralph Galt of Miles College, Eugene Farrell of Our Lady of Fatima Catholic Church, and Jesse Douglas of Thurgood Memorial CME Church. The statement, entitled “Forgotten Man Imprisoned 13 Years for a Death Declared Accidental by the Alabama Supreme Court,” appealed to Christians throughout the country to “care a little more and work a lot harder for the cause of justice” by helping Caliph Washington. In the statement, they traced the history of Washington’s long “nightmare” from the death of James “Cowboy” Clark through his trials and mistrials, reprieves and stays, and the long wait in jail for justice. They told of how Caliph became a minister and wanted nothing more than to be free to serve others. “This man needs the concern and help of a great many people today,” they wrote. “Not tomorrow or next week; otherwise we risk letting time run out and condemning Caliph Washington to the ‘wasted land of no want.’”
The four ministers encouraged those interested in helping Washington to attend a public demonstration and prayer vigil on Saturday, April 4, 1970—the second anniversary of the assassination of Martin Luther King, Jr. The ministers pledged to take the “march of justice” begun by King in 1963 into the 1970s. “We will beg God to send his justice into this city of so many injustices of man to another,” they wrote. “His truth and his justice is marching on.”
The vigil would begin at noon on the courthouse steps in Bessemer—an appropriate spot, the ministers thought, because it was where Caliph Washington was denied justice. On the morning of Saturday, April 4, more than two hundred people gathered in Birmingham’s Kelly Ingram Park—the site of battles between civil rights demonstrators and city police in 1963—and began a fifty-two-car caravan to Bessemer.
The group was met at the city limits by a large contingent of Bessemer police officers, who escorted them to a staging area near Third Avenue North and Sixteenth Street in downtown Bessemer. There they joined five hundred or so other people and marched just over two blocks up Third Avenue to the courthouse steps. Police reported that the group sang hymns and songs of peace in an orderly fashion. Among the many speakers were the organizers, Ralph Galt, Larry Morkert, Eugene Farrell, Jesse Douglas, and Bessemer civil rights leader Asbury Howard. Each gave a short talk on the work of Martin Luther King and the injustice of holding Caliph Washington in jail for over a dozen years. “Prayers were offered up by some of the ministers,” a police report noted, “all for the release of Washington from the Bessemer county jail.” Police chief George Barron noted, “There was no disturbance or trouble of any kind,” and following the ninety-minute vigil, police escorted the caravan back to Birmingham without difficulty.
Two days later, on Monday April 6, 1970, the third trial of Caliph Washington began: nearly thirteen years after the incident with Cowboy Clark, over a decade since his last trial, and almost five years since he left death row. In the intervening years, memories faded, witnesses died, lawyers resigned, judges retired, and politicians and policemen came and went. Wrecking crews razed the crime scene to make room for government-subsidized housing. “This brings paradox and irony,” one newspaperman noted, “into a case already full of weird incidents and baffling circumstances.” Yet Caliph would once again sit in the same courtroom, one that changed little in the intervening years, before a jury with his fate in their hands.
Judge Edward L. Ball would preside, just as he had over the jury that awarded Cowboy Clark’s widow the insurance settlement on a policy that stipulated that it would not be payable in the event of a homicide. Much of the widespread pretrial publicity focused on this apparent inconsistency in justice by two courts in the same district: one court ruled the death a homicide and sentenced the convicted “killer” to the electric chair, while the other ruled the death an accident and granted the grieving widow an insurance payout. Ball explained to reporters that his judgment in that case had nothing to do with whether Clark’s death was accidental. “It is a longtime common law that one jury can find one way, another jury another way, on the same set of facts,” he said the day Caliph’s third trial began. Nonetheless, Ball maintained the strong belief that not paying the widow in the case was “repugnant to the insuring clause.”
Judge Ball gaveled the court into session at 9 a.m. on April 6 for the third round of State of Alabama v. Caliph Washington. The courtroom was packed with spectators—mostly Caliph’s family and friends. In the long hallway just outside, two hundred more people lined the walls of the corridor. Sitting quiet and alone in the courtroom was Florence Talley Clark Rutledge Long, Cowboy Clark’s widow, who was recently divorced from her fourth husband, Lannie Long. (Later she changed her mind and remarried him in August 1970.) Several Jefferson County sheriff’s deputies stood near the doors to prevent any disorder. Caliph Washington, relaxed and sporting a new dark preacher’s suit, sat at the defense table with his Bible open in front of him; sitting with him were Orzell Billingsley, David Hood, U. W. Clemon, and Jack Drake. “I was scared to death when we walked into that courtroom,” Drake later recalled. “The tensions were so high.” Across the aisle from Drake and the other defense lawyers was the workman-like prosecutor, Harry Pickens, and his assistant Dawson Britton.
The attorneys from both sides spent most of the morning striking the jury from a venire of sixty-six mostly working-class folks living in the Cutoff. They included welders, electricians, boilermakers, mechanics, truck drivers, crane operators, maids, housewives, and beauticians. Unlike thirteen years earlier, when the entire jury pool was all white men, thirty of those summoned for jury duty on April 6, 1970, were women and nineteen were black—a change brought about in no small part by a 1965 federal lawsuit filed by Orzell Billingsley and Charles Morgan. On February 7, 1966, a three-judge panel composed of Frank Johnson, Richard Rives, and Clarence Allgood handed down the White v. Crook decision, which ordered the inclusion of blacks on jury rolls and also struck down Alabama’s law excluding women from jury service. When women first began appearing on jury rolls, Jefferson County district attorney Earl Morgan announced that he “deplored the fact that our southern women will be exposed to some of the sordid details of . . . the cases.”
Perhaps this was what Morgan had in mind when attorneys finished striking the jury in the Caliph Washington case and were left with eight white women, three black men, and one black woman to listen to the graphic testimony of Cowboy Clark’s death. The jury makeup in the Washington case reflected the revolutionary changes in Alabama’s criminal justice system that occurred since the late 1950s, when only white males served on Washington’s juries in the 1957 and 1959 trials. Now, in 1970, no white males were selected.
The right to a trial by a jury was a time-honored cornerstone of Anglo-American law, stretching back to the Magna Carta of 1215 and guaranteed centuries later by the Sixth Amendment of the Constitution: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.” Following the Civil War, the U.S. Congress passed legislation that made it a crime to “exclude or fail to summon any citizen” who possessed all legal qualifications to serve on a grand or petit jury in any court regardless of race. During the debate over what would become Section 4 of the Civil Rights Act of 1875, James Rapier, a black congressman from Alabama, declared that “after all, this question resolves itself into this: either I am a man or I am not a man.” Within the decade, however, the U.S. Supreme Court declared other provisions of the act unconstitutional but preserved this section. “In salvaging the jury section,” one historian later wrote, “the Court conferred upon that remnant the honor of being only one of the criminal statutes on civil rights to survive hostile decisions and congressional repeal” until the Civil Rights Act of 1957.
In 1880, the Supreme Court in Strauder v. West Virginia declared unconstitutional a West Virginia statute that excluded blacks from jury service. The law was nothing more than a “brand upon them and a discrimination against them” that denied equal protection. In a forceful opinion, Justice William Strong asked how the state could compel a black person to stand for trial by a jury from which every member of his race was excluded based on skin color. How was this “not a denial . . . of equal legal protection?” Nonetheless, states still had the right, the justices believed, to enact laws that set qualifications for potential jurors as long as they did not exclude based on race. One observer believed that these juror qualification laws included both objective and subjective standards. Objective standards required citizenship and a minimum age; disqualified convicted felons or the infirmed; and exempted doctors, ministers, lawyers, and other critical professionals. Subjective standards in Alabama required jurors who were “generally reputed to be honest and intelligent men . . . esteemed in the community for their integrity, good character and sound judgment.” States throughout the South had these types of vaguely worded juror
requirements that allowed white registrars and jury commissioners to exercise wide discretion in the selection process and thereby exclude blacks. They simply ignored the Supreme Court’s ruling in Carter v. Texas in 1900, which held that any action by court officials to exclude blacks from grand juries in the criminal prosecution of black defendants violated the equal protection clause of the Fourteenth Amendment. The proper avenue to challenge racial exclusion was a motion to quash the indictment—a procedural move that Caliph Washington’s lawyers submitted to the court but Judge Ed Ball denied.
In the decades following the Carter decision, the practice of racial exclusion remained mostly unchallenged until the case of one of the Scottsboro Boys reached the U.S. Supreme Court in 1935. Clarence Norris, one of the nine black boys accused of raping two white women near Scottsboro, Alabama, was tried and convicted by an all-white jury and sentenced to die in the state’s electric chair. Lawyers appealed the guilty verdict on the grounds that Norris was denied equal protection because blacks were systematically excluded from jury service. In spite of overwhelming evidence to the contrary, the Alabama Supreme Court disagreed and reasoned that the listing of no names of eligible black jurors on the jury rolls did not mean they were excluded because of their race.
The U.S. Supreme Court reversed that decision. The evidence revealed that, for a generation or longer, Jackson County officials never called blacks for jury duty, even though many were qualified. This, the court ruled, “established the discrimination which the Constitution forbids.” At the circuit court trial, Norris’s lawyers filed a motion to quash the indictment based on this exclusion, and the judge denied it. The U.S. Supreme Court, however, believed it should have been granted. In writing the opinion, Chief Justice Charles Evans Hughes noted:
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