by Gilbert King
In Williams’s absence from New York over the past two months, Marshall had, as usual, been overwhelmed with casework, on top of which had been added the responsibilities attendant to overseeing, along with Roy Wilkins, the day-to-day operations at the NAACP, as Walter White continued to be on leave. In August, Wilkins, as acting secretary, had authorized a three-hundred-dollar annual salary increase for Marshall, but in early September he wrote to Arthur Spingarn, “My feeling is that this is not a sufficient raise” and recommended that the board approve an additional five hundred dollars, which brought Marshall’s total annual salary to $8,500.
Of more immediate concern to Marshall, and Williams, was funding to sustain the Groveland Boys case, for, as Williams had told his people in Florida, “that Tavares business is only the first scuffle” and “the real wrestling match is just begun.” Yet, to date, the NAACP had pulled in only about fifteen hundred dollars, mostly in individual contributions from poor Florida blacks, whereas the case had already cost more than five thousand dollars, with “far more costly appeals ahead.” Roy Wilkins listened sympathetically to Williams’s pleas and Ted Poston’s stories, and he took the same position as Marshall, who had stated weeks before that the NAACP’s resources should be “thrown behind the defense of these boys.” Wilkins affirmed, “We’ll keep Frank’s promise, although it will cost at least twenty thousand dollars more to fight this case up to the Supreme Court. We’ll get the money somehow.”
“Somehow” was, at least in part, a speaking tour, and Marshall decided to put Franklin Williams back on the fund-raising road, much the way he had when Williams traveled the country with the blinded soldier, Isaac Woodard, a few years earlier.
Stories of prisoners’ beatings, abusive interrogations, and legal lynchings in Lake County had gained editorial attention in regional and national newspapers after the Groveland Boys trial, and by mid-September Ted Poston’s “Horror in the Sunny South” series had been running daily in the New York Post, his story of the ninety-mile-an-hour chase out of Lake County by a “bloodthirsty, motorized mob” having gotten particular, nationwide attention. The time was ripe with possibilities. As Williams noted, “We have provably innocent sons of fine, decent Negro-American families in the old tradition. We have burnings. Mob action . . . A whole community of peace-loving Negro workers scattered . . . lawyer intimidation, etc.” And Williams proved Marshall to be right. His tour of the Groveland Boys case—which in his retelling afforded him “all the characteristics of a dime-store novel . . . A perfect frameup”—raised more than $4,600 for the NAACP’s legal defense fund.
Franklin Williams, at thirty-one years old, appeared to have unlimited potential. “He may have been the most gifted speaker I’ve ever heard,” LDF associate Jack Greenberg said of him. “His admirers use the term ‘silver-tongued,’ but even that didn’t seem adequate to describe his oratorical skills.” To his detractors, Williams was “glib,” sometimes brash, and he could certainly raise Mabel Norris Reese’s hackles. She’d once suggested that the New York lawyer might benefit from living some while in the gentlemanly South; without courtesy Williams bellowed, “I would not live in the South!” Marshall placed his confidence in Williams’s silver tongue and sterling intellect, which the young attorney had evidenced abundantly in Florida; so, to Marshall, it only made sense to have Franklin Williams argue the Groveland case before the state appellate court: a necessary step in the appeals process, if a fruitless one, for the NAACP had no real hope of a reversal in the state of Florida.
First, though, the LDF had to decide upon the structure of the Groveland Boys’ appeal. With Shepherd and Irvin both facing the electric chair, they would surely join the appeal. Charles Greenlee, however, had been sentenced to life imprisonment on a jury recommendation of mercy. It was therefore entirely possible that he might win his appeal but in the retrial be sentenced to death. Not until 1981 (in an LDF-assisted case) did the Supreme Court rule that such a possibility discouraged appeal and “deterred the assertion of constitutional rights.” In essence, then, the Supreme Court interpreted a less-than-death sentence as an “acquittal” by the jury of “whatever was necessary to impose the death sentence” in the first trial, and thus ruled, under the double jeopardy clause of the Fifth Amendment, that an appellant could not subsequently be sentenced to death in a second trial. In 1949, though, a legal misstep in the appellate process could send Charles Greenlee from a work farm to death row.
Williams’s own experience in Lake County had convinced him, as he would convince Marshall, that Greenlee’s life sentence constituted as much mercy as the callow, sixteen-year-old defendant or his defense could expect. Further, any chance of a second recommendation of mercy would in all likelihood be forfeit, Williams reasoned, when, after two or even three years in prison, before a retrial, an older, perhaps hardened, less ingenuous, eighteen- or nineteen-year-old Charles Greenlee would appear in court. On the basis of this reasoning, Marshall and Williams devised their strategy: They would not include Greenlee’s name in the appeal; thus, if they should fail, Greenlee would still escape the electric chair. If, on the other hand, they should succeed in winning acquittals for Shepherd and Irvin, the consummately persuasive Marshall would strive to get the governor to commute Greenlee’s sentence. The two attorneys explained to the boy his alternatives, and a week after he’d received his life sentence in Tavares, Charles Greenlee in his own hand wrote a letter in which he stated that he understood fully the choice he was making and that, while he had consulted with lawyers and his family, the decision not to join the appeal was ultimately his. “So if God be with me,” he wrote, “I’ll pray that he do I will get a pardon if the other boys go free.” Shortly thereafter he was shipped off to Florida State Road Department Camp No. 16 in Lake City to begin his sentence of hard labor on a road gang.
Guilty verdicts and death sentences did not, as Mabel Norris Reese had assured her readers, return Lake County to its Edenic bliss. Instead, wave after wave of undesirable publicity had been inundating the county ever since the close of the trial, much to the chagrin of Judge Futch, State Attorney Hunter, and Sheriff McCall. The publication nationally of Ted Poston’s New York Post story of the dramatic posttrial chase in the Nation especially pained Hunter, who preferred to believe that the people of Lake County had allowed the law to take its course. So, in an attempt to discredit Poston, Hunter held a hearing in Tavares, at which he invited highway patrolmen, police, and deputies from across Lake County to testify that they had not seen any cars speeding at ninety miles an hour toward Orlando on the night of the trial; and that they had not seen anyone step on Ted Poston’s glasses, either; and that Poston had not complained to any officers about anyone doing so.
McCall remained mostly silent about the chase, but when Poston’s series on the Groveland trial earned the reporter a five-hundred-dollar award from the CIO American Newspaper Guild, the press-clipping, image-conscious sheriff was apoplectic. That guild, he railed, was a “damn bunch of Communists,” and Poston was but another “part of the Communistic element trying to tear down racial relations; trying to separate the races instead of bringing them together.” When Poston won a second prestigious prize for his series, Mabel Norris Reese took up her pen; in a letter to the chairman of the Heywood Broun Award committee she disputed the accuracy of Poston’s reporting. The committee was unmoved.
Satisfied though Hunter, Futch, and McCall were that the hearing had sufficiently debunked Poston’s story as pure fiction—after all, why would the residents of central Florida choose to believe a communist reporter and lawyer from the North over the police and patrolmen of Lake County?—the FBI was not. The FBI chose to believe Bill Bogar, Exalted Cyclops of the Apopka Klavern of the Ku Klux Klan and key informant for the bureau. Bogar fingered Willis McCall as the party who’d initiated the storied but factual chase, and the FBI report indicated that the Klan had “intended to stop car and severely flog occupants, with instructions to leave state.” It also later led to the indictment o
f four Klansmen by a federal grand jury on perjury charges.
The FBI’s investigations into the Groveland Boys case as well as Poston’s articles and Williams’s detailed reports to the NAACP in New York prompted Marshall again to contact the attorney general’s office. In a letter informing the attorney general that a “federal grand jury investigation is warranted” not just into the beatings of the Groveland Boys but also into the actions of deputies James Yates and Leroy Campbell, Captain Herlong of the Florida National Guard, and Flowers Cockcroft, the “leader of an armed band of civilian men” who had terrorized Negro residents and burned their homes, Marshall urgently requested that the attorney general prosecute these individuals. He also offered the NAACP’s complete cooperation.
On September 13, Alexander Campbell of the U.S. attorney general’s office informed Herbert S. Phillips, the U.S. attorney in Tampa, that “there is substantial evidence . . . that the victims were beaten and tortured as charged and that Yates, [Wesley] Evans, and [Leroy] Campbell played active parts in submitting the victims to the described indignities.” Then the strength of Alexander Campbell’s convictions wavered. The attorney general’s office, he said, would “greatly appreciate” if Phillips would consider whether action against Yates, Evans, and Campbell “would be warranted and desirable,” given the “temper of the people in the area” as well as their “fears and apprehensions.” In closing, he issued the weakest of directives: “[W]e must consider the need for enforcing the paramount law,” Campbell wrote, “so long as such action does not unduly interfere with local processes.” Campbell had provided Phillips with the opening he needed.
In his response to the attorney general’s office, Phillips stated that, in his opinion, the defendants had “as fair a trial as any persons could have,” and that although Yates, Campbell, and Evans “may be guilty of committing a serious and despicable crime,” there were “certain matters connected with this case that should be carefully considered before prosecuting the parties for beating the alleged victims.” Reluctant to move forward with the case despite the overwhelming evidence proffered by the Justice Department, Phillips stated he “had serious doubt” that a grand jury would indict, but if one did, “it might result in another effort to commit serious violence on the defendants or victims.” In other words, any attempt to prosecute Yates, Campbell, and Evans might only incite violent parties to further harm the Groveland Boys, who were in fact rather fortunate, Phillips reasoned without irony, to have been beaten when they might have been lynched, the physical torture being “a small matter as compared to what would have happened if the sheriff had not handled the matter as he did.” A final point to consider, Phillips wrote, was that although “a strict interpretation of the law” protects prisoners from being coerced into confessing, it was important to remember that “the confessions were not used in evidence.”
AS THE 1940S came to a close, Thurgood Marshall and his LDF attorneys were about to enter the most productive and important months of their careers. Cases were mounting. Aside from his work on the Groveland appeal, Marshall was preparing briefs for two cases that for twelve years the LDF had been waiting to bring before the Supreme Court. In addition, Marshall’s mentor Charles Hamilton Houston, who’d recently suffered a relapse after a heart attack, asked his former pupil to take over a case involving a black woman who had been denied admission to the University of Maryland’s School of Nursing.
Fifteen years before, in 1935, Marshall and Houston together had successfully sued the University of Maryland to open the doors of its law school to black applicant Donald Gaines Murray, and Marshall now set out to convince the judge that the striking similarity between the two cases supported Esther McCready’s admission. The defendants, on the other hand, argued dissimilarity, since the Murray case had involved the law school whereas Esther McCready was suing a school of nursing.
“Judge, I agree with that,” Marshall apparently conceded. “The law school and the nursing school are different, and I can prove it.” The judge leaned forward, attentive, curious as to the direction of Marshall’s argument. “I can prove it,” Marshall continued, “because I went to law school—and I didn’t come out a nurse.”
It was the kind of line that Marshall’s mentor, “Old Iron Shoes,” as he was known, would never have uttered in court, but certainly the stroke of wit did not diminish the strength of Marshall’s argument. He did his ailing friend and mentor proud. He won the case for the plaintiff, and he didn’t even have to file an appeal with the U.S. Supreme Court. The Maryland Court of Appeals ruled in McCready’s favor.
The New York office was meanwhile buzzing with activity. Busy “all day and virtually every night at the office,” the LDF lawyers—Franklin Williams, Jack Greenberg, and Constance Baker Motley—were getting the education of a lifetime as they worked on briefs not just with Marshall but with academic consultants and top-flight lawyers who were, in Greenberg’s words, willing to use their “considerable talents at something other than getting rich”: men like Louis H. Pollak, the former law clerk to Supreme Court justice Wiley Rutledge. (His father, Walter Pollak, had worked on the Scottsboro Boys defense.) Space at the NAACP offices in the Willkie Building being limited, Marshall’s lawyers were able, by his arrangement with the Association of the Bar of the City of New York, to work at its library in a landmark building not far from the Willkie in midtown Manhattan. After work, Marshall and his LDF team would often gather at the Blue Ribbon, a German restaurant just down the street, to drink “great dark Munich beer on tap” and, in Marshall’s case, to eat pigs’ knuckles. After the knuckles and beer and conviviality, however, Marshall more often than not would lead them back to the office for another all-nighter.
The work, though, was exciting for both Marshall and his young staff, who could see in the briefs they were filing for the Supreme Court real possibilities of changing the racial face of America. One such case was that of Heman Marion Sweatt, a black mail carrier in Houston, who had been denied admission to the University of Texas Law School in 1946 solely on the basis of his race. Under representation by the NAACP, Sweatt sued the University of Texas on the grounds that in the state of Texas there existed no law school for blacks. Marshall was clear in his intentions: “If we can force the University of Texas to admit Heman Sweatt,” he told one reporter, “we can knock down this whole theory of separate but equal accommodations, not only in schools, but in other public endeavors as well.” In response to the lawsuit, the University of Texas president, Theophilus Painter, had leased the basement of a petroleum building near the state capitol, dumped a few boxes of textbooks inside, and notified the NAACP that there was now a separate law school for blacks that was “equal to the University of Texas Law School.”
When Thurgood Marshall arrived in Austin in May 1947, he was confident that he had found the perfect case to strike a critical blow to legalized segregation. Eager to hear how Marshall would argue his case that a pile of textbooks in a basement did not a law school make, dozens of white University of Texas law school students as well as local NAACP members crowded into the Travis County courtroom. The bailiffs’ commands that the white students not sit in the black section were met by recalcitrance, the students refusing to budge unless a black person requested them to move. After the first recess, with blacks and whites sitting shoulder to shoulder in the packed courtroom, the bailiffs gave up trying to enforce segregated seating.
The University of Texas students booed when the dean of their own law school stated under oath that the two law schools were equal, and they booed when he defended segregation as a necessity in order to ensure quality education for whites. Marshall, though, won their applause when his witness, the dean at the University of Pennsylvania Law School, testified that it was absurd to call an institution with one student a law school. Half the show in Marshall’s courtroom performance was played to those white students outraged by their university’s institutionalized segregation and administrative hypocrisy. It was those same students w
ho founded in Austin the nation’s first all-white chapter of the NAACP.
To no one’s surprise, Judge Roy Archer—who had laughed out loud in court when he was shown photographs of the new Texas law school for blacks—ruled against Sweatt. So did the Texas Supreme Court on appeal. Marshall, however, had had the foresight to focus the legal debate not on the obvious physical differences between the two facilities, or on the paucity of books or absence of a law library, but rather on the intangible advantages that a “traditional” law school would offer as well as the social and psychological disadvantages of learning in a segregated environment: points that he would argue before the U.S. Supreme Court in 1950.
From the outset of Sweatt v. Painter, Marshall’s vision had extended beyond the case in the Travis County courtroom, by which he was essentially setting the juristic stage for the U.S. Supreme Court to overrule Plessy v. Ferguson, the landmark 1896 decision upholding racial segregation. One reporter observing Marshall in Texas wrote “everyone knows what the score is . . . and those of us who sit in the crowded courtroom day after day realize that we are watching history being made.”
At the same time that Marshall and his attorneys were preparing for Sweatt v. Painter, they were also filing briefs for another segregation case, McLaurin v. Oklahoma State Regents, wherein George McLaurin, who’d already earned his master’s degree, had applied to the University of Oklahoma to pursue a doctor of education degree. The state of Oklahoma had never been friendly territory for Marshall and his staff; he’d lost the Lyons murder case there years before, and more recently, in 1946, he’d returned to argue a case on behalf of Ada Sipuel, who had been denied entry into the all-white University of Oklahoma Law School. The Sipuel trial had been nearing its end when the judge had summoned Marshall to his chambers; there the judge had acknowledged the clarity and intelligence both of Marshall’s arguments and of his black expert witnesses, all of which had “ ‘opened [the judge’s] eyes,’ to the wrong of school segregation.” Marshall could only briefly savor the moment, for the judge had then returned to the courtroom and ruled against Sipuel and the NAACP attorney.
