by Gilbert King
TWELVE YEARS EARLIER, in the case of the black butler Joseph Spell, who stood accused of raping socialite Eleanor Strubing, Marshall had refused a plea offer from prosecutors and elected to go forward with a trial because he believed that in Connecticut a white woman’s claim of rape would not, by force of cultural necessity, be accepted as unassailable fact. Marshall correctly gauged the jury’s disinclination to convict on the basis of race and won an acquittal for Joseph Spell. No less correctly Marshall concluded it could never happen in central Florida.
In declining to cross-examine Curtis Howard, the defense was passing up the chance perhaps to lay bare the very heart of the Groveland Boys case. But because this was an interracial rape case in the South, the defense team had to tread lightly. As one reporter noted, “The absence of medical proof . . . could only be alluded to in passing.” That Norma and Willie, having shared a pint of whiskey, were no doubt drunk, that they had not been living together, or that Willie had passed a number of houses and even a police station after his wife’s alleged abduction “could only be hinted at in the most discreet and obscure terms.” Another reporter covering the trial had wondered if Norma might have concocted the rape story to “extricate herself from an embarrassing or compromising position” or if the story had been invented “to extricate husband, wife and third party from the trouble that might attend disclosure of a fight which involved the eternal triangle.” No matter how “demonstrably true” any such scenarios might prove to be, none of them, the reporter wrote, could “be entered as evidence in a Southern trial of this kind.” The defense dared not to question in any way either the purity of the Flower of Southern Womanhood, however indelicately she might be represented by Norma Lee Padgett, or her probity in the “contention that she [had] been ravished” by four savage blacks. Should the defense dare to tread upon a white Southern woman’s honor, not only would the jury fail to acquit a black man of a rape charge, but they would also most surely deliver him a death sentence. So the only practicable strategy for the defense in the Groveland Boys case was to raise reasonable doubt by showing that the state of Florida had arrested the wrong men.
Marshall had to scramble to bring Lawrence Burtoft to Ocala. He had minister S. Ralph Harlow, a member of the Committee of 100, write to Burtoft in Fort Jackson, South Carolina: “We need you very much if that trial is to be fair. . . . This boy’s life is at stake and the honor of Florida is at stake. Only a fair trial can free Florida from a blot that can never be cleaned. You can do much to make that trial fair. I pray that you may have the courage, the sense of justice, the spirit of Christ, to bear witness to the truth.”
The testimony of Lawrence Burtoft, which outright challenged the truth of Norma Padgett’s tale, was indeed “as far as the defense dared to go.” Burtoft had been flown to Ocala from Fort Jackson, South Carolina, on a plane chartered by the NAACP. Still in his uniform, he took the stand as the first witness for the defense. The Okahumpka native testified that on the morning of July 16, when Norma Padgett showed up at his father’s café (the local “dining hall or dancing place,” as Curtis Howard identified it), she told Burtoft that her husband had been “hit over the head and she thought maybe that he had been killed.” She also said that she had been kidnapped by four Negroes but made no mention of being raped.
“Did she make any statement to you as to her ability to identify those men?” Akerman asked for the defense.
“She told me that she could not identify them, that one was light, and one was extremely dark and that’s all she knew about them,” Burtoft replied.
Burtoft was the only defense witness who worried Hunter, because the state attorney knew that the testimony of the café owner’s son would not corroborate the story that the state’s witnesses were spinning. Hunter’s aim in cross-examination, then, was to destroy Burtoft’s credibility as a witness.
“Are you prejudiced against the state of Florida?” Hunter asked.
“No, sir, I am not prejudiced against anybody.”
Despite Akerman’s objections, which Futch overruled, Hunter implied that Burtoft was in “bad standing” with the sheriff’s department of Lake County: an implication that the soldier calmly denied. Hunter then insinuated that Burtoft had changed his story since his interview with the state attorney two and a half years back, shortly after the alleged rape: “Didn’t you tell me the first time when I talked to you about this case that you had heard a woman pass by your place in an automobile screaming for help that night?”
“No, I didn’t,” Burtoft said emphatically. “I don’t even know when they went by.”
“Didn’t you tell me you heard a woman screaming for help going by your place?”
“No, sir, I did, I did not hear anything of the kind, and I don’t know where you got any such information as that.”
Hunter pressed harder. He told Burtoft that he had decided not to call the Okahumpka boy as a witness for the state in the first trial because he knew the boy’s testimony was not true, and he repeated what he had said to Burtoft in their 1949 interview, that “we were not going to use any liars in that trial,” so as to ask, “You don’t remember me telling you that?”
“No, I don’t,” Burtoft answered, unwavering. “You did not say that. You cannot fool me. I know what you said.”
Hunter then addressed again Burtoft’s supposed prejudice by suggesting that he “was trying to get even” with the state of Florida for its occasioning of a rift within the Burtoft family. At this point, as at any number of others in the state attorney’s cross-examination, Marshall and Akerman could have objected, but they were thus far pleased, and surprised, by the equanimity Burtoft was displaying in response to Hunter’s questions. And Burtoft remained unrattled by Hunter’s suggestion, even though young Lawrence, according to one reporter, had struggled with the fact that there was “at least one Ku Klux Klan member in the Burtoft circle” and that “regional tradition” might dictate adverse actions against his father’s business if Lawrence were to testify for the defense of a black man charged with a white woman’s rape. Charlotte Burtoft, Lawrence’s mother, had a “genuine fear of reprisals from some of the extremists around Groveland” were her son to testify. Her other children did not want Lawrence to return. But Mrs. Burtoft also believed that Walter Irvin was innocent, and she supported her son’s desire to tell the truth under oath. Lawrence had discussed his concerns at length with his family, who had ultimately “wanted him to let his conscience be his guide”—whereupon he had applied to the Pentagon for a special pass so that he could travel to Ocala and testify.
Hunter proceeded to Burtoft’s testimony, which he strove to discredit. “Now, as a matter of fact, Mr. Burtoft, that girl was hurt when you saw her, was she not?”
“No, she was not hurt,” Burtoft answered.
“And you took your own time about getting a car, did you not?”
“Well, I was not going to carry her on my back,” Burtoft noted. “The car was up at the house.”
“Was there any reason why she would put any confidence in you?”
“I didn’t ask. It was not my place to ask her. I just asked her if she thought she would recognize them, and she told me she didn’t think she could,” Burtoft said. “She just told me the rest of her story voluntarily, and she just told me that she had been kidnapped by four Negroes, and I asked her if she thought she could identify them, and she said no.”
“You did not think that amounted to anything?” Hunter asked.
“Well, I helped her.”
“Don’t you think you would be helping her more if you told the truth for once in your life?” Hunter shouted with vehemence. To this, Akerman did object. And Judge Futch did not pause in his whittling to overrule; in sustaining the state’s objections and overruling those of the defense the judge could not be faulted for inconsistency.
Hunter continued to grill Burtoft, but after forty-five minutes the state attorney had proved to be unable to shake the young man in his testimony. One las
t time Hunter implied that Burtoft’s account of Norma Padgett’s presence at Burtoft’s Café early that Saturday morning in July was tantamount to a lie, but Burtoft stood firm. He recalled for the attorney a particular conversation the two of them had shared: “I have told you once before,” Burtoft said, “that she looked to be in pretty calm condition for her husband to be lying down dead beside the road, and you told me . . . that she was not the type of girl to be showing her emotions.” Hunter dismissed the witness.
For all his attempts to diminish Burtoft’s credibility, Hunter knew better than most that the defense’s surprise witness had not been fiddling with the truth. Under oath, Norma Padgett had denied telling Burtoft that she’d been taken away by four black men at gunpoint, and had denied telling him even that her husband had been in a fight with four Negroes. By her account, she had persuaded Lawrence Burtoft, with no explanation, to drive her to a random spot “down there” by the side of the road where her husband had been. It was preposterous. Furthermore, it was contrary to her own written statement to the FBI—a statement that Hunter himself had helped to prepare only days after the alleged rape—in which Norma avowed that she had shown up at the Burtofts’ place and “reported to a man who runs a store there what had happened to me.” Fortunately for the state’s case, the proof of Norma Padgett’s perjury lay buried in an FBI file, which was not in 1949 and would not in 1952 be introduced as evidence in the trial of the Groveland Boys, or boy. The U.S. attorney’s office had quashed subpoenas served by the defense to have FBI agents testify, citing the “confidential nature of the FBI’s investigation.”
The testimony of Lawrence Burtoft had, without qualification, been brave, given that his parents not only resided but also owned and operated a business in the county run by Sheriff Willis McCall. Before the retrial, McCall had made it clear to Burtoft that because of his military commitment he did not have to accept a subpoena. Yet Burtoft had returned to Florida, and done so for one reason alone: “To tell what I knew.” In Justice Robert Jackson’s opinion concurring with the Supreme Court decision to reverse the verdict in the Groveland Boys case he addressed the issue of justice beyond the “theoretical importance” of jury selection, for in light of the “prejudicial influence” in the court before and during the trial, he wrote, “The only chance these Negroes had of acquittal would have been in the courage and decency of some sturdy and forthright white person of sufficient standing to face and live down the odium among his white neighbors that such a vote, if required, would have brought.” Though not a juror, such a “white person” was Lawrence Burtoft, and in his testimony as a witness lay perhaps Walter Irvin’s “only chance.”
In the September 1949 trial, when Walter Irvin had last sat in the witness box, he had been able to share the experience silently, in a look or a glance across the courtroom at the defense table, with his best friend, Samuel Shepherd. They had grown up together in Groveland; as kids they’d played together; in their teens they’d picked citrus together. On the same day, at the same time, they had enlisted in the army, and they’d served together in the same outfit in the Philippines. The last moment that the two of them shared with each other they were, as they had long been, inseparable: joined in spirit, if also linked hand to hand by steel cuffs as they took bullets not from some enemy lurking in an Asian forest, but from two Lake County law enforcement officers. Since then and before, Irvin had presented his version of the events on the roadside outside Okahumpka countless times: to a grand jury, a trial jury, a coroner’s jury; to FBI agents, to newspaper reporters, to doctors—to white people. And none of them, it seemed to Irvin, had believed him, or if they had, they hadn’t cared, and their indifference was going to cost him his life. Walter Irvin glanced across the courtroom; he knew the look he saw in the eyes of the men in the jury box, the look that saw a guilty black man sitting on the witness stand. They’d wanted to lynch him at the jail or on the road, and they had settled for a conviction and the electric chair. They’d accept no less this time round. Those eyes meant business.
Irvin was fighting for his life, but he had no ammunition beyond the truth that he had recited all those times before. Akerman guided him through his testimony, and again he denied that he had kidnapped and raped Norma Padgett. He denied, too, that the stains on the legs of the pants in evidence had been present when he had taken them off on the morning of July 16. Akerman then turned the witness over to the state attorney. Hunter’s cross-examination focused largely upon where Irvin was on that Friday night in July, so as to place him at the scene of the crime squarely in the time frame of the state’s narrative. The fact that the defense had been unable to produce any alibi witnesses allowed Hunter the opportunity to plot Irvin’s movements in the state’s story more freely. Irvin’s denials in regard to the kidnapping and raping of Norma Padgett concerned Hunter little. Even without the state’s evidence to put Irvin at the scene—the tire tracks, the footprints, the stained pants—the decision for the jury would still come down to Norma’s word against the Negro’s. He had no doubt which way the scales of justice would tilt on that.
The last witness for the defense landed the bombshell that Marshall felt their case needed. Between two criminal trials, the appeals, and a Supreme Court case in the matter of Groveland Boys, the NAACP had spent nearly fifty thousand dollars on lawyer fees, travel expenses, research polls, and chartered flights. In that, the eight hundred dollars paid to the Miami-based criminologist Herman Bennett was a serious bargain. The defense established his impeccable credentials: thirty years of experience in the field of criminology; stints with the FBI, the Secret Service Division, the Internal Revenue Service, the Federal Bureau of Narcotics, and the U.S. Navy; consultation on high-profile criminal cases, including the kidnapping of the Lindbergh baby. As an expert witness, Herman Bennett more than adequately fulfilled Thurgood Marshall’s expectations. He was no disappointment to Jesse Hunter, either.
The state attorney sized up Bennett quickly. If the defense saw in him an impressively credentialed criminologist whose testimony would call into question the integrity of the state’s physical evidence, Jesse Hunter saw an elitist big-city windbag, who might not play too well before a “farmer jury.”
So, just after Bennett had begun recounting his visit to the Lake County Court House in Tavares in the company of defense attorney Paul Perkins, where, by virtue of a court order, he was examining the state’s plaster casts, Hunter interrupted. “Just a minute, please, are you referring to any casts that are in evidence in this case?” Hunter asked.
Bennett replied, “I am not in a position to answer that question.” But Hunter was; he knew that the only casts that had been entered into evidence had been accidentally broken after Deputy Yates’s examination of them.
“May it please the court,” Hunter objected. “These casts are not in evidence in this case, we have not introduced them in evidence, and even though I would like to hear this tremendously important man—we seem to have a genius here before us, I would like to hear it—I wish to point out that these casts are not in evidence.”
Futch of course found the objection good, and it was sustained, to Akerman’s disbelief. Futch had earlier disallowed use of the Roper poll research as evidence, and now he was limiting the defense to an examination only of broken plaster casts on the basis of which Deputy Yates had already presented his findings to the jury.
Akerman was livid. “If the court please! The defendant at this time—”
Hunter cut him off. “Just a moment, I am going to withdraw my objection. I want to hear all of this learned testimony from this expert.”
It was a calculated risk, but Hunter was odds-on certain that “all of this learned testimony” was going to work in the state’s favor. For Akerman, it was a strange turn in the proceedings, and he hadn’t seen it coming—nor did he see where it was going. Not without self-importance, and slightly arrogant in his courtroom manner, Akerman resumed his conversation with Bennett, both of them discussing with intell
igence scientific protocols in the witness’s work worldwide. They might as well have been speaking Polish as far as the farmers and citrus workers on the jury were concerned, and as Hunter and his assistant, Sam Buie, recognized. The state would thus allow the witness for the defense to talk his way expertly into ineffectuality.
Bennett had begun to elaborate on his findings in regard to the stains on Irvin’s clothing when Buie broke in. “Will you please let him indicate how long he has been doing that particular phase of this work?” Buie asked. “He is setting himself up to be an expert, and he has only given us a general background.”
Akerman relaxed: at last, a civil exchange instead of an objection. “All right, Mr. Bennett,” Akerman said. “Will you please explain what you know and what your experience has been in regard to stains on clothing and so forth?”
“Well, the subject of stains on clothing is a scientific question, and is something that can be microscopically and scientifically determined, that is to distinguish between stains, and of course in the field of scientific criminology you have to have a broad general knowledge of every department. There are several different methods in which stains are examined, and the principal and proper manner to examine them in the field of criminology is to examine them by microscope. . . .”
