Clemon called to the stand and questioned several character witnesses on behalf of the defendant—something not done in the first two trials and reflective of another shift in the criminal justice system. Under the old Jim Crow system, most attorneys never called character witnesses on behalf of black defendants because whites considered it a foregone conclusion that most blacks possessed low morals. But in this trial, teachers, preachers, neighbors, and community leaders (Cornelia Addison, Reverend Lucius Calvin Walker, Lula Belle Johnson, Bernice Jackson, Margaret Pettaway, and Bessie Mae Johnson) all came forward to testify that the defendant was a good man of high character. Orzell Billingsley even called Asbury Howard, still Bessemer’s leading civil rights activist, to tell the court that Washington was a fine human being with a first-class temperament.
In contrast, witnesses also testified to the low moral character of Mary Davidson. “She is a public drunk,” Lula Belle Johnson said. The night of the Cowboy Clark incident, several witnesses claimed Davidson and her boyfriend were drinking, fussing, and cussing. “I knocked on the door and asked them to hush,” recalled Bessie Mae Johnson. She later saw Davidson playing with a big dog. “I knew when she played with this dog that she had been drinking. I said, ‘You had a little nip, didn’t you, Bum?’ I used to call her Bum.”
Next, Orzell Billingsley called Caliph’s court-appointed attorney, Kermit “K. C.” Edwards, to testify as an expert witness on the case. Edwards opined that he believed Clark died as a result of the accidental discharge of his weapon and that one of the bullets hit the car, ricocheted, and ripped through the officer’s body—a plausible explanation, but one that Edwards was never able to piece together for juries in 1957 and 1959. In this new trial, Edwards identified himself as an attorney by profession, but he was disbarred years earlier, along with two other lawyers, for their “conduct in domestic relations proceedings.” Nonetheless, Edwards continued to clandestinely practice law with his disbarred colleagues in a “quickie divorce mill,” where out-of-state clients paid for divorces, which were in fact invalid. The scandal became public in 1970, when investigators discovered thousands of unrecorded divorce decrees in the offices of two corrupt judges who were participating in the scheme. In 1972, Edwards and the others were convicted in federal court for using the U.S. mail in a scheme to defraud and were sentenced by Judge Clarence Allgood to three years in prison.
Following Edwards’s testimony, Clemon called witnesses to show alleged violence by white Bessemer police officers during the manhunt to find Caliph Washington. William “Burley” Merritt, Ernestine Merritt, and Hattie Cross testified that on Sunday morning, July 14, 1957, seven carloads of Bessemer police officers and sheriff’s deputies showed up at their home in Adamsville and began a house-to-house search. Burley Merritt said he would never forget the “pretty rough” beating he received all over his face with the butt of a Winchester rifle. Instead of receiving medical attention, he was taken to the Bessemer jail, where police later forced him to sign a statement—although he could not read. When the prosecution objected to this line of questioning, lawyer Clemon said, “I think this goes to show the type of police officers that were involved in trying to capture or find Mr. Washington. Their conduct out there goes to show what they might have done to Mr. Washington.”
When Jack Drake asked Hattie Cross if these police officers had beaten her and struck her mother in the head with the butt of a gun, the prosecutor objected. Judge Ed Ball sustained the request and asked Caliph’s lawyers not to pursue this line of questioning. “You know that what the officers did to her is not admissible,” he said.
Orzell Billingsley, however, explained to Ball that the defense wanted to “get these questions into the record” even if he ruled them inadmissible.
The judge sent the jury into the jury room, and he allowed Drake to state what he expected to prove by this line of questioning. Drake said:
I would like for the record to show that we had hoped to show by this witness that she was beaten and intimidated by the police from Lipscomb and Bessemer and others unknown to us; that her mother was beaten and otherwise intimidated, and that her mother later died from those injuries; that one Mr. Jessie Kyser was shot and killed in Adamsville on this date in question, and those actions and other actions to which this witness could testify to was . . . part of the general pattern and scheme and harassment engaged in by the police of the city of Bessemer, and by the city of Lipscomb . . . to locate a witness and in doing so, to intimidate every black person in Jefferson County who had ever known Caliph Washington.
The prosecutor objected to Drake’s statement as “irrelevant, incompetent, and immaterial.” Well aware of Stud Grimes’s reputation, however, Judge Ball agreed to allow the defense to put these points in the record. “Anything that Mr. Grimes did out there,” Ball said. “I will let in.” After all, the judge pointed out, Stud Grimes testified that nothing happened in Adamsville.
Clemon added that the defense also hoped to show through the testimony of these witnesses the “totality of the circumstances” in which every statement and confession was made by the black folks in this case. This would reveal to the court the atmosphere of fear, intimidation, and violence that gripped society at this time and compelled the defendant to seek refuge in another state. The prosecutor pointed out that if any harassment, beating, murders, or anything else had occurred in Adamsville, then the people had the right to report it, and the “people creating those offenses” would have been indicted in 1957. In response, Jack Drake said the defense would be happy to bring forward a great many witnesses from Jefferson County who would testify that black people would not have come forward with accusations in 1957. “They were afraid to have done that,” Drake said.
With all these points in the trial records, Judge Ball brought back the jury, and Orzell Billingsley called the next witness: “We call Caliph Washington to the stand.” For the first time in over a decade, he would recount his own version of the incident with Cowboy Clark.
Washington recalled how the chase began, when he thought night riders were after him, and he explained that as soon as he realized it was a police car, he stopped. In this retelling, Cowboy Clark was much meaner and rougher than how Washington described him in 1957 and 1959. “Get out of the car, nigger,” he remembered Clark yelling. The defendant testified that the officer was looking for whiskey, and when the suspect wouldn’t confess to having any in his car, Cowboy called him a “smart nigger” and a son of a bitch. “I denied knowing anything about any whiskey,” Washington said, but Clark “kept talking about it” to the point that he grew so angry that he pulled his weapon and started to strike the suspect in the head with the butt of the gun.
Attorney Hood picked up Clark’s gun and asked Washington to hold the weapon and demonstrate how it happened, but he refused. “I can’t touch those,” Washington said, but he went on to explain that he “threw his hands up” and grabbed Clark’s hands as he was about to strike. “I was afraid,” he said. “I was trying to keep from getting hit or shot.” But the gun fired off three rapid shots, and Clark’s grip grew weak. “It must have shot him,” Washington said. “I don’t know, because I was scared.”
Judge Ball interrupted and adjourned the court until, Thursday, April 9, at 9:15 a.m. That next morning, Washington continued to testify. He explained how he fled the scene, got a ride from his friend, and stayed hidden in the woods. Caliph Washington told how his friend’s stepfather, Tommy Lee Silmon, took him to Adamsville—absent from his testimony was the story about the mysterious stranger who drove Silmon’s car. Washington described how he escaped to Mississippi. He denied ever sitting with, or even talking to, Furman Jones while on the bus. He said he fell asleep on the bus and was awakened by a woman who said there was a police roadblock ahead. Washington testified that the Mississippi lawmen took him off the bus, shook him down, beat him a little, and drove him to a service station. There, he said in this new version of the incident, the lawman put a bright light in his
face, handcuffed his hands behind him, and threatened to kill him if he did not confess. When he refused to talk, they drove him to a secluded area in the woods. Caliph recounted the story from the 1959 trial:
They were still holding me in the woods and fixing to lynch me up; trying to get me to run and said they were going to give me a break, but I said I didn’t want to run, and this officer said, ‘you run,’ and he told me how he had hung a lot of black people up on a limb, and they were stringing me up on this car hood when another man came by—I don’t know his name, but he had a little boy with him and he told them to take me in.
At the Mississippi Highway Patrol station, Washington said that he refused to talk to Stud Grimes. “He slapped me because I wouldn’t talk to him,” he testified. According to Washington, Grimes then said: “We have all these niggers in jail, your mother and father, and we are going to burn all of you. I want you to tell me what happened.” Caliph refused.
Once he was back in Bessemer on July 15, 1957, he was taken to the courthouse and placed in a room, according to Washington, filled with angry cursing white lawmen with lots of guns and angry eyes. They never informed him, he recalled, that he had a right to remain silent and a right to an attorney. He could not call his family because they told him they were all in jail. Washington testified that the men forced him to answer the questions, while one of them wrote down his answers and then told him that they “would burn us all,” if he did not sign. Tired, scared, and hungry, the defendant said that he initialed each page, and then signed the confession, without ever being allowed to read the document. He was then taken to the county jail in Bessemer.
On cross-examination, Harry Pickens peppered Washington with questions. Although he talked fast (“like a machine gun”), Pickens’s tone was much more respectful and less authoritarian than that of his predecessor, Howard Sullinger. He skillfully revealed significant inconsistencies in Caliph’s testimony from the two previous trials. When Pickens pointed out these gaps, Caliph said he was too afraid to tell the whole truth in 1957 and 1959.
PICKENS: “You were in a courtroom, weren’t you?”
WASHINGTON: “But they threatened me all the time.”
PICKENS: “The judge was on the bench, wasn’t he?”
WASHINGTON: “I was afraid of all of them.”
PICKENS: “Are you under any threat right now?”
WASHINGTON: “Ever since I been locked up.”
PICKENS: “Right now?”
WASHINGTON: “Yes, sir.”
PICKENS: “By whom?”
WASHINGTON: “You and the state for fourteen years. . . . You’ve threatened my life all the time with this charge.”
PICKENS: “I have?”
WASHINGTON: “With this charge.”
PICKENS: “Are you saying I have talked with you and threatened your life?”
WASHINGTON: “Not with those words.”
PICKENS: “What do you mean? I don’t understand.”
WASHINGTON: “I mean, the law; with the law.”
“You’ve been threatened with the law?” Judge Ball interjected.
“I mean,” Washington replied, “you have had me here in confinement over and over, and you have violated my rights in this case and want to try me for my life again after holding me for four or five years without giving me a fair and impartial trial.”
PICKENS: “You are getting a fair and impartial trial, aren’t you?”
WASHINGTON: “I didn’t even have a hearing when you brought me back in 1965.”
PICKENS: “Have I threatened you?”
WASHINGTON: “You didn’t turn me loose.”
PICKENS: “I haven’t threatened you, have I?”
WASHINGTON: “I am telling the truth and the record will show it.”
Pickens moved on. He asked Caliph who he thought was chasing and shooting at him.
“Some of the white boys on the south side,” he said, “used to shoot at us sometimes and throw brick and bottles.”
Pickens pressed Caliph as to why he drove down to dark Exeter Alley instead of to the well-lit police station.
“They weren’t going to protect me,” he responded, “because they never do. Wasn’t no use to go near the police station.” After he pulled the car over down in that dark alley, Caliph said that he still had no idea he was being pursued by a police officer.
“He was in a police car with the blinker light going,” Pickens said, “and he had on a gun belt with a gun hanging out of it and he had on a police shirt and a badge and you didn’t know he was a policeman, is that right?”
Caliph said it was too dark to see.
Pickens questioned Washington about the arrest. He wanted to know what happened after Cowboy Clark led him to the patrol car and opened the door.
PICKENS: “You snatched his pistol at this time. Is that right?”
WASHINGTON: “No.”
PICKENS: “Do you remember telling Mr. Grimes that you snatched this officer’s pistol and shot him three times?”
WASHINGTON: “I didn’t tell Mr. Grimes anything.”
PICKENS: “Is Mr. Grimes lying about that?”
WASHINGTON: “What do you think?”
PICKENS: “I am asking you.”
WASHINGTON: “That’s what I want to know.”
Pickens decided that his questioning was going nowhere, and he abruptly said: “All right, no further questions.”
When Judge Ball asked Caliph’s lawyers if they had any other questions, a confident David Hood proclaimed that the defense rested.
Ball seemed surprised. “You want to rest?”
The defense lawyers all agreed.
Following closing arguments by both sides, the judge gave the jury several oral charges. The jury could find Washington guilty of first- or second-degree murder, or first- or second-degree manslaughter. They could also find him not guilty. He told the jury that a lot of “extraneous matters” were injected into this trial and that as citizens they should return a verdict based upon the facts, not prejudice or bias. “This is not a race issue in this case,” Ball said, and the jury should act as if they were blind to the race of the defendant, whether he was black or white. “Do not let your judgment be swayed by any preconceived ideas of the conflict in our modern society,” he added, “or do not inject these matters into it when you are deliberating.” The jury should decide based on what they heard from witnesses and other evidence. If they found that any witness was “knowingly and corruptly” giving false statements, then they had the right to use discretion and disregard that testimony.
In addition, based on evidence and testimony in this case, Caliph Washington fled the scene of the crime, which might suggest guilt. “The law takes up the proposition that the wicked flee, while the innocent is as brave as the lion,” he said. In this case, the jury needed to ask what motivated his flight. Was it guilt? If the flight was caused by “fear for the defendant’s own life,” then a sense of guilt was not present, and it should not be considered as automatic evidence of guilt.
Judge Ball also instructed the jury not to consider the defendant’s previous trials, verdicts, and reversals or how long the defendant was imprisoned. “These are all matters of law,” he added, “and are not your concern.”
When the judge finished his oral charges, and outside the hearing of the jury, U. W. Clemon objected to Ball’s charging the jury not to consider the time Washington had been incarcerated and the number of reversals. “We think that those matters should be considered by the jury,” Clemon said, “if the jury having determined that the defendant is guilty and is choosing between the death penalty or a sentence of life imprisonment.” Ball noted the objection.
The jury retired to the jury room at 3:55 p.m. to consider Caliph Washington’s guilt or innocence in the death of Cowboy Clark. They deliberated for ninety minutes before retiring for the evening. They resumed the next morning, Friday, April 10, at 9 a.m., for more deliberation. With the jury still out, the courtroom took on a fest
ive atmosphere as Washington’s friends and family sensed freedom coming. Speaking with a reporter, Caliph predicted that he would be found “not guilty or something like that” because he had such a strong belief in God. U. W. Clemon said that anything less than freedom for Caliph would bring an appeal.
After over two hours and thirty minutes of deliberating, word came that the jury had reached a verdict. A hush fell over the courtroom. Judge Ball warned the crowd about any emotional outbursts. The jury returned to the jury box. It was 11:30 a.m. The judge then asked Caliph Washington to rise and listen to the verdict.
The foreman of the jury, Peggy Haynes, a white office worker from Hueytown, said, “We the jury, find the defendant guilty of murder in the second degree as charged in the indictment, and we fix his punishment at forty years imprisonment in the penitentiary.”
Caliph showed little emotion.
The spectators sat stunned. A low murmuring of voices echoed through the courtroom. Sheriff’s deputies stepped forward and handcuffed Washington’s wrists behind his back and whisked him from the courtroom.
“Then suddenly,” a newspaper reporter observed, “a cry rocked the small courtroom and a bedlam of emotion broke out.” At least a dozen deputies, some with helmets and night sticks, prevented Washington’s family and friends from following him into the hallways. In a few seconds, with Caliph out of sight, the deputies allowed everyone else to leave. Most of the spectators moved into the corridor just beyond the courtroom doors and stood holding each other and weeping and shouting their opposition to the verdict. “They don’t have any heart,” cried one woman as tears coursed down her face. Another woman fainted on the marble floor and had to be carried away. Caliph’s mother collapsed and was taken to the hospital in an ambulance. Someone yelled, “Reverend Caliph; my God; he still ain’t dead!”
He Calls Me by Lightning Page 35
