by Gilbert King
In the summer of 1949, Jack Greenberg, a twenty-four-year-old Jewish kid with a cherubic face and a buzz cut who had recently been hired by Marshall as a staff attorney for the LDF, sat at his desk listening to a black woman’s shocking tale: Her son had just been sentenced to ten years in a Richmond, Virginia, prison for stealing a bag of peanuts. The sentence seemed exceedingly harsh to Greenberg, who suspected that race had played a role. Though he had grown up in an area of the Bronx where “no blacks lived anywhere nearby” and his family was not involved in civil rights, his parents had instilled in him “an abiding concern for those who are disadvantaged.” Astounded by the woman’s story, Greenberg marched into Marshall’s office and urged his boss that they take the case. Marshall was nonplussed. He nodded at Greenberg, then telephoned an attorney he knew in Richmond and asked him to look into the situation. A little while later Marshall called Greenberg back into his office to tell him that, as it turned out, the bag of peanuts was “one of those enormous burlap bags, the size of a flatbed truck.” As Greenberg digested this new information, Marshall added one more detail. With “pursed lips and a raised eyebrow,” Marshall noted that the defendant had “hijacked the truck along with it.”
IN DECEMBER 1940, Eleanor Strubing, a thirty-two-year-old housewife, socialite, and former fashion model from Greenwich, Connecticut, claimed that her Negro butler and chauffeur, Joseph Spell, had kidnapped her, written a ransom note, tied her up, then raped her four times before dragging her to a car and driving to Kensico Reservoir in adjacent Westchester County, New York, where he’d thrown her off a bridge into the water and then pelted her with rocks. The newspaper coverage was predictably sensational. The front page of the New York Daily News featured a picture of Strubing in a bathing suit adjacent to a photo of Spell, arranged so that the brooding butler appeared to be staring straight at the vulnerable socialite. The provocative story led to rumors that “panic-stricken Westchester families were firing their black servants.”
The then thirty-two-year-old Marshall interviewed Spell in the Greenwich town jail. He left convinced that the butler was telling the truth when he claimed that Strubing had not only consented to but also initiated a sexual liaison one evening when her husband was out of town. The sexual encounter began in the living room, until Strubing became worried that someone might see them through the window, at which point they retreated to the garage. They proceeded to have sex in the car, but “the sex stopped” as Strubing’s fears of pregnancy loomed. The two then did go for a drive, only again Strubing panicked and ordered Spell to stop the car. She then walked home by herself. She did not report the alleged crime to police for hours.
“He was supposed to have raped this woman four times in one night,” Marshall recalled. He recalled, too, the incredulity at the LDF when the story hit the newspapers: “All the secretaries, all of ’em, came and said, ‘Hey, defend that man. We want to see it. Four times! Ha ha. Ha ha. Four times in one night. Yeah, bring him in here, let us see him.’ I told ’em, get out of my office.”
The case was important, Marshall said, because winning Spell’s freedom would strengthen the security of “thousands of Negro domestics, chauffeurs, maids and butlers throughout the country whose jobs are jeopardized by this case.” After presenting his findings to the NAACP, Marshall announced that the organization would defend Spell “to the limit of our resources.”
Once the trial began it was revealed that police had found neither the rope nor the ransom note; nor had a Greenwich doctor found any evidence of rape. Strubing herself seemed out of sorts when questioned on the stand, stating, “I’m sure he raped me three times. But I can’t remember now. On a stone floor—or something. It’s so confused.” The facts of the case were confused enough that the prosecution offered a plea bargain. Marshall, however, argued that Spell was “not only innocent, but [in] a position where everyone else knows he is innocent.” With a possible thirty-year sentence hanging in the balance, Spell put his faith in the advice of his lawyer.
In his closing argument, the state’s attorney asked that the “lust-mad Negro” be convicted lest “shame and disgrace” fall upon Mrs. Strubing. The all-white jury of six men and six women deliberated from noon until nearly midnight on February 1 and voted unanimously to acquit Joseph Spell of all charges. Very little uproar followed the verdict, aside from the reaction of some of Strubing’s society friends, who telegraphed the governor to state they “resent bitterly this acquittal which casts such an unfair slur on her character.” Spell could muster only “What a relief!”
Thurgood Marshall appreciated that the rape accusations against the butler might afford the LDF secretaries some amusement, but the vast majority of cases that crossed Marshall’s desk were painful, often horrible tragedies that he would never even consider showing to the women in the office. The most unsettling involved teenage and preteen girls from black communities who were raped and often beaten or killed by advantaged, even prominent white citizens and law enforcement personnel in the South. Frequently the accused men would not be indicted, or else they’d stand trial (on reduced charges of unlawful carnal knowledge) before a jury of their peers, who were not about to take the word of poor blacks over that of white policemen, doctors, insurance collectors, or plumbing contractors. Most frustrating to Marshall was the fact that the NAACP did not have sufficient funds to provide legal assistance; also, many of the rape cases simply did not fit the criteria that Marshall himself had defined for the LDF. Outraged by the inhumanity of whites who abused their power or authority, and moved deeply by the suffering of their poor black victims, Marshall could only apologize that he and the organization could not do more, in the affectively written letters he sent to regional NAACP personnel, as well as to the families of raped, beaten, and sometimes murdered adolescent girls.
Limited though the NAACP was in its ability to force prosecution on those who perpetrated crimes against defenseless blacks, the legal arm of the organization had more options available when it came to defending black men charged with rape upon white women. W. J. Cash, in his seminal exploration of Southern culture, The Mind of the South, wrote that while “the actual danger of the Southern white woman’s being violated by the Negro has always been comparatively small . . . much less, for instance, than the chance that she would be struck by lightning,” it was “the most natural thing in the world for the South to see it as very great, to believe in it, fully and in all honesty, as a menace requiring the most desperate measures if it was to be held off.” In Cash’s estimation, the Southern rape complex “had nothing immediately to do with sex,” but rather with the feeling among Southerners that if blacks were to advance beyond their severely circumscribed social station, they might “one day advance the whole way and lay claim to complete equality, including, specifically, the ever crucial right of marriage.” Thurgood Marshall understood perfectly the mind of the South, and he knew he had to act fast when it came to rape cases in the South, because a lynching could quickly turn the defense of the accused into a plea for the prosecution of his murder.
AT THE CONCLUSION of Joseph Spell’s rape trial in Connecticut, Marshall returned home to Harlem barely long enough for a meal with Buster before he was back at Pennsylvania Station, his bags packed for a three-day train ride to Oklahoma. Buster could do little more than shrug when Marshall had told her he’d be going back on the road, and in the coming decade his absences would become only more frequent. Buster, for her part, would come to rely on the constant assurances from fellow NAACP wives and 409 Edgecombe neighbors like Gladys White and Minnie Wilkins that Thurgood was safe, in good spirits, and heading homeward soon.
The long train trip to Oklahoma gave Marshall the opportunity to bone up on briefs from his next criminal case—a gruesome one, in which he’d be defending a sharecropper who had confessed to a savage mass murder that had shocked all of Oklahoma. A year earlier, a young white couple, Mr. and Mrs. Elmer Rogers, and their four-year-old son, Elvie Dean, were butchered to death on New Year
’s Eve in their home in Choctaw County, Oklahoma, before their farmhouse was burned to the ground. Almost immediately after the crime a white convict who had been out on furlough confessed to the murders. Newspapers reported that the prisoner had also visited bars and brothels in the area, and both the prison warden and Governor Leon Chase Phillips were severely criticized. To stem the controversy, the governor had the warden fired, then sent a special investigator to Hugo, the Choctaw County seat, to defuse the increasing political fallout. Despite the prisoner’s confession, the investigator arranged for him to leave the state for Texas. Two weeks later the investigator announced that he had found the “real” killer: a Negro sharecropper named W. D. Lyons.
Under the supervision of the governor’s aide, Special Investigator Vernon Cheatwood, Lyons was beaten over his head and body with a blackjack while Cheatwood and other police officers interrogated the prisoner for several days. Despite the beatings, Lyons refused to admit his involvement in the murders—until Cheatwood produced a pan of bones. He placed the pan in Lyons’s lap and growled, “There’s the bones of the baby you burned up.”
The sleep-deprived Lyons was forced to scrutinize the teeth, bones, and charred remains of the young child and his mother. It proved to be too much for the superstitious sharecropper to bear. Lyons confessed, in his words, because “they beat me and beat me until I couldn’t stand no more, until I gave in to them. . . . ”
A confession in hand, Cheatwood and the police then chauffeured Lyons back to the farmhouse, where one of the murder weapons—an ax that had somehow escaped notice in prior investigations—was found in the ashes. Threats of being burned and beaten with a pick hammer prompted a second confession from Lyons at the crime scene.
Marshall’s appetite for a coerced confession case was buoyed by his recent victory at the U.S. Supreme Court the year before. In Chambers v. Florida, Marshall argued that the confessions used to convict four transient blacks in the murder of a Florida man should have been ruled inadmissible because they had been “extorted by violence and torture,” in violation of the Fourteenth Amendment. In a unanimous decision, the nine justices overturned the Florida court’s convictions, thus handing Marshall his first win before the Supreme Court. In delivering the opinion of the Court, Justice Hugo Black wrote an eloquent passage that, his widow later recalled, he “could never read aloud without tears streaming down his face.”
Today, as in ages past, we are not without tragic proof that the exalted power of some governments to punish manufactured crime dictatorially is the handmaid of tyranny. Under our constitutional system, courts stand against any winds that blow as havens of refuge for those who might otherwise suffer because they are helpless, weak, outnumbered, or because they are nonconforming victims of prejudice and public excitement. Due process of law, preserved for all by our Constitution, commands that no such practice as that disclosed by this record shall send any accused to his death. No higher duty, no more solemn responsibility, rests upon this Court than that of translating into living law and maintaining this constitutional shield deliberately planned and inscribed for the benefit of every human being subject to our Constitution—of whatever race, creed or persuasion.
Marshall was cautiously optimistic that he could at least establish on record that Lyons’s confessions were coerced and, if nothing else, take the case (now with precedent) before a sympathetic Supreme Court on appeal. First, however, he had to navigate the dangerous and highly charged atmosphere in Oklahoma. On this trip—unlike his trips to the South with Houston, which were essentially fact-finding missions involving little conflict or even contact with whites—Marshall was coming to Choctaw County to fight. Word of his imminent arrival had already spread through town; the situation grew only more volatile, and for Marshall, perceived by whites as the enemy, more dangerous. As a deputy sheriff said in the court hallways at one of Marshall’s Tennessee trials, “We are going to teach these Northern Negroes not to come down here raising fancy court questions.” The law may have been on Marshall’s side, but law enforcement wasn’t.
Upon his arrival in Choctaw County after a six-hour bus ride, Marshall was whisked away by blacks who felt it necessary to hide him under armed guard and to move him from place to place during his stay. For word had gotten out that “a Nigger lawyer from New York” was trying the case, and the small black community feared for Marshall’s life. An aged, obstinate widow fearlessly took him in. Marshall noted that she serenely proclaimed, “I ain’t scared,” and snored all night while he lay awake, sweating, afraid. “I think I remembered every lynching story that I had read about after World War One,” he recalled. He was unable to sleep; the ghastly photographs appeared, and Marshall pictured himself in each one—his crumpled body dumped in a ditch at the center of town, or hanging from a tree—the white children in their Sunday clothes, pointing, grinning, and rejoicing.
Marshall became convinced that Lyons had been made a political scapegoat in the governor’s attempt to avoid the fallout he’d face if it was shown that furloughed prisoners had been responsible for three murders in his state. The yearlong delay before trial only confirmed Marshall’s suspicions that prosecutors were “scared to try the case,” because usually, when blacks confessed to murdering whites, justice was swift and unmerciful.
As the trial was getting under way, Marshall wrote to Walter White in New York, telling him that the courthouse was jammed with more than a thousand people, many of whom had come in trucks and wagons, to see “a certain Negro lawyer—first time in this court—so sayeth the bailiff.” Marshall added that white schoolteachers had even brought their classes to court, the judge remarking that it was good for children to be able to witness such “a gala day.” “Imagine it,” Marshall wrote, “a Negro on trial for his life being called a ‘gala day.’ ” He noted that the “jury is lousy. . . . No chance of winning here. Will keep record straight for appeal.”
Before the first day of testimony, Marshall appeared before an “informal” county judge who smoked a big cigar as he announced that there were “two nationalities” involved in this case and that he did not want any disorder. He did not alleviate Marshall’s unease about the reception a black New York lawyer might expect in Oklahoma. The Lyons case was called, and Marshall was introduced; he took a seat at the counsel table and, as he told Walter White, “the building did not fall and the world did not come to an end.”
After the noon recess, however, the crowd “about doubled” and “the fireworks started,” as Marshall moved to have the first confession excluded from evidence because police officers had beaten the defendant. All morning the officers had maintained, under oath, that Lyons “was not struck, or injured in any manner.” But when the county prosecutor called Lyons to the stand, the defendant shocked everyone in the courtroom by testifying that the prosecutor himself had witnessed the torture—a charge the prosecutor denied before the judge. The court went silent as the normally reticent sharecropper met the prosecutor’s eyes. “Oh, yes, you were there,” Lyons said. The prosecutor’s face reddened. “Why,” he stammered, pushing a finger in Lyons’s face, “I stopped them from whipping you.”
The response in the courtroom was tremendous. The spectators erupted in a noisy buzz; the county judge rapped his gavel on the bench in an effort to bring order to his court. Marshall moved quickly, making certain that the court record showed the prosecutor had conceded that Lyons was beaten while in custody. No one in the courtroom had ever seen anything like it before: a black man in a Jim Crow state standing up in court and talking to powerful white people without the slightest form of deference—all the while looking them straight in the eyes. And he wasn’t done.
With Special Investigator Vernon Cheatwood on the stand, Marshall asked him about his interrogation of W. D. Lyons, to which Cheatwood replied that he had questioned Lyons for “six or seven hours but never raised his voice, never cursed him, and positively never struck him with anything.” The special investigator admitted to putting the pan of
bones in Lyons’s lap, but went on to deny owning a blackjack or any kind of club.
After a hotel clerk testified that Cheatwood had instructed him to “go up to my room and get me my nigger beater,” Marshall saved his best for last. He called two white relatives of the slain woman, including Mrs. Rogers’s father, who testified that Cheatwood had shown him his blackjack and admitted that he’d beaten Lyons for “six—either six or seven hours . . . [saying] I haven’t even got to go to bed.”
One Oklahoma newspaper reported that after Marshall’s grilling, the special prosecutor stepped down from the witness stand “shaking as though suffering from palsy.” Marshall himself noted, “Boy, did I like that. And did the Negroes in the Court-room like it. You can’t imagine what it means to those people down there who have been pushed around for years to know that there is an organization that will help them. They are ready to do their part now. They are ready for anything.”
Marshall was exhilarated by the theatrics that criminal cases before a packed courtroom could summon. He’d committed himself and the NAACP to chiseling away at the apartheid systems of the South, but the work was painstakingly slow, and victories in voting rights and interstate transportation cases generated little cause for attention outside the East Coast conference rooms of lawyers and editorial writers. Cases in criminal courtrooms, though, generated immediate excitement, and so did the Negro lawyer from the North who could bring spectators to their feet with his words. Not just black spectators, either; for whites, too, “stopped us in the halls and on the streets to tell us they enjoyed the way the case was going and that they didn’t believe Lyons was guilty.” Marshall reported to Walter White that “90% of the white people by this time were with Lyons. One thing this trial accomplished—the good citizens of that area have been given a lesson in Constitutional Law and the rights of Negroes which they won’t forget for some time. Law enforcement officers now know that when they beat a Negro up they might have to answer for it on the witness stand. All of the white people in the Court room passed some mighty nasty comments after the officers lied on the stand. Several told the officers what they thought of them out on the halls.”
