by Gilbert King
Reese’s own attitudes had been shifting, too. Before the first trial, she later admitted, she had been “conned into believing that these boys were guilty. . . . In the beginning, I just felt the evidence was there, and I admit I tried them before they’d been given a chance to be tried.” After the trial, and the appeals, and the reversal of the verdict by the Supreme Court, which was in essence an indictment of the prejudicial system of justice in Lake County, Hunter had been “his usual blunt self and didn’t like it one bit,” Reese recalled, and Willis McCall had “raved and raved.” Reese also recognized, however, that as a reporter and columnist for the Mount Dora Topic, she had collaborated with Lake County’s officers of the law and the court. “I was probably prejudicing minds by my pipeline information [from Hunter] without thinking about it too much. I probably needed to be stepped on.” The reversal of verdict subjected Reese to criticism along with Hunter and McCall; it also chastened her. Certainly, by the time of the retrial, her hostility toward the NAACP and the LDF lawyers had abated. Early in the proceedings she had suggested to Marshall that he attend a “Lake County NAACP conference” where whites and blacks could air their opinions about the Groveland Boys case and its ramifications. Marshall’s answer had surprised her; he said that he would be very pleased to attend “because of its possible good effects upon race relations and the United States’ world-wide fight against communist propaganda which seeks to blacken us through our race difficulties.” His positive response even prompted Reese to praise Marshall in a letter to J. Edgar Hoover. (Reese’s letter requested that the results of the FBI’s investigation be released. Hoover replied that the investigations were confidential.)
After Reese’s lunch with Hunter, at the end of the recess, she accompanied the state attorney back to the courthouse, where he would be presenting his closing argument that afternoon. In the hallway, just outside the courtroom, they spotted Deputy James Yates. Reese felt Hunter’s hold on her elbow tighten; they broke their pace, and he leaned in toward her. “Stay away from that man as far as you can,” Hunter whispered. “He just like to hurt people.”
Court reconvened. Alex Akerman approached the jury. He argued the evidence, or lack of it, by which the state was attempting to reconvict Walter Irvin. Addressing first the alleged rape itself, he made clear that the defense was questioning not what Norma Padgett had said had happened to her on the night of July 15 but whom she had identified as her assaulters. “We don’t say that she was not raped or ravished in that place, but we do say that this defendant knows nothing about it.” While Akerman did point out the state’s failure to produce medical evidence in support of Norma’s ravishment—“I understand she was taken to a medical doctor by the deputy sheriffs, and I submit to you gentlemen that there should have been medical testimony in this case, and none was introduced to show whether or not this young lady was actually raped or ravished”—he kept the jury focused on the issue of identity. As had Marshall before the recess for lunch, Akerman argued after it in terms of the folksy Florida common sense that Jesse Hunter so valued. “Now I think most of you have had the experience of identifying Negroes. I know it is true with me, and I believe it is true with just about every one of you gentlemen, that the first time you see a Negro, you see nothing but a Negro, and if you see him again the next day, you probably would not recognize him as being anything but a Negro, and after he has worked for you say two or three or four or five or six days, then you finally begin to recognize him, and distinguish him as Jim or Joe or Jack or George. But as a matter of fact, if you have never seen a Negro but one time and it was in the dark, on a dark night, such as this alleged case was, then I submit to you gentlemen that you would not be able to recognize him again, so positively as Norma Padgett did.”
Akerman then proceeded to the failure on the part of the state to send physical evidence to the FBI for analysis and to its reliance instead on the forensic skills of the less qualified deputy James Yates. Furthermore, Akerman clarified, the defense had paid the expert witness Herman Bennett to analyze the deputy’s plaster casts; they had not paid him, as the state had implied, to falsely claim that the evidence had been compromised, or faked. If the defense had indeed been paying Bennett for false testimony, they would have had him testify simply that the plaster-cast footprints did not match the soles of Walter Irvin’s shoes. In fact, the prints did match, but the impression was not convex. “Now, we don’t want to say, and we do not know, and we do not contend that the Deputy Sheriff put a shoe tree in them, and made a false impression, we don’t contend that at all, and we don’t contend that Sheriff McCall did it,” Akerman maintained. “We are not casting any dispersions [sic] or misrepresentations against any persons whatsoever. But we do say this . . . we believe we have proved it. . . .”
State Attorney Jesse Hunter rose. He was not only closing the argument for the prosecution; he was also capping a career in law that had spanned four decades, in which time he had argued no case as controversial or as consequential as the Groveland Boys. He surveyed the packed courtroom; he eyed the press tables, the reporters, many of whom he had known for years. The case, the public, the court, his vanity—they demanded a virtuoso performance. He turned his attention to the gentlemen of the jury.
Hunter started on an accordant note. He agreed, he said, with Marshall’s assertion that every man, black or white, was entitled to a fair trial, and as state attorney he had built his career on that principle. “Gentlemen, although I am not trying to brag about it, I wish to tell you that in any case where I sincerely believed that the defendant charged with the crime was innocent . . . there was nothing in the world that I could do but tell the court to dismiss him. I have done that many times. . . . I have never prosecuted a man in my career who I believed to be innocent of the crime with which he was charged. I have never prosecuted a man that I did not think was guilty. Now, gentlemen, I tell you this, I don’t want on my soul or my conscience the prosecution of an innocent man, and I am always careful about that thing.”
It was Hunter’s reprise of the testimony of Lawrence Burtoft under his lengthy cross-examination by the state attorney that brought the proceedings to a momentary standstill. “My friend criticized me for some of the questions I asked Mr. Burtoft,” Hunter began, “because I asked him if he did not have it in for the law enforcement agencies of Florida and Lake County, and by a technicality he stopped me from proving it.” Hunter was convinced that Willis McCall would have been able to discredit Burtoft had Judge Futch allowed the sheriff to testify.
Akerman shot to his feet. “May it please the court!” he shouted. “We ask that the jury be withdrawn.”
“For what purpose?” Futch asked.
“For the purpose of making a motion to the court out of the presence of the jury.”
Futch had the jury withdraw. As Akerman and Marshall were approaching the bench, Marshall noticed that Hunter, standing off to the side, was sending hand signals to the jurors as they exited the courtroom. Marshall might have thought that Futch was ringmastering a circus rather than presiding over a trial, except that the judge’s attention seemed to be commanded solely by cedar sticks while his longtime friend, the state attorney, committed one improper offense after another. Futch did pause in his whittlin’ to deny Akerman’s motion for a mistrial on grounds of the state’s “technicality” remark. Then he denied the defense request that the remark be stricken from the record. Then he had the jury brought back.
Hunter resumed. He recalled for the jury the testimony of Herman Bennett, “who sat here and told you for over thirty minutes what a wonderful man he was. It was awfully funny to me. He struck me as being afraid that Hoover was going to call him up to take over Hoover’s job.” Having subjected the criminologist’s testimony again to ridicule, Hunter elevated the reputation of James Yates by personally vouching for the deputy sheriff’s honesty, so that he, the state attorney, could not “believe that you gentlemen for one instant believe that any man in a responsible position like that, o
f a deputy sheriff, would try in any way to fake tracks on anybody. I don’t believe that you gentlemen believe that any such foolishness took place.”
Hunter tightened his bond with the jurymen by offering them a joke, in dialect, about “two colored men walking down the street,” and after that bit of cracker humor he opened the cracker soul of the case. “Here is this young girl, Norma Padgett,” Hunter said. “You saw her here on the stand. She was an honest old cracker girl, born and raised up in Lake County, Florida. She was a poor honest girl and had never even probably been out of Lake County and had never been in any trouble in her life. . . . She was just an old common Florida country girl, and came from an old common Florida family, and I ask you which are you going to believe?”
As he described the rape, one reporter observed, he “whooped and hollered, waved his arms and then crooned as to a babe in arms.” That his voice was strained by a cold and he was battling laryngitis seemed only to heighten the alarm he infused into his depiction. “Now, gentlemen, she sat there in that car being held prisoner, and she told you that she was afraid. She was afraid for her life, and oh, my God, why should she not be? . . . A woman’s chastity is the greatest thing on earth to her, and nothing in the world compares to it.” So it was that the crime committed in the car that night was a violation not just of Norma Lee Padgett but also of Southern womanhood, and so, too, the jurors’ verdict would be punishing the accused for a crime against not one woman but all women, against their own wives and daughters. “You have a right to sit on this jury for the protection of your women-folk, and I would like to tell you this example, on one historical occasion, there was a good woman, from a good family, on the eve of her wedding, and she was caught in the back yard and savagely raped, and she walked over to the edge of the cliff and hurled herself into eternity, rather than sacrifice that which to her was dearer than life itself. That, gentlemen, was her chastity. Now, gentlemen, Norma Padgett, this simple country girl, chose to live, and she has suffered the greatest tragedy that can befall any woman, and she will suffer for it for the rest of her life. She has lived to tell the story, and don’t you gentlemen forget that that thing, that horrible thing, will never be erased from her mind.”
Hunter paused to catch his breath. His rhetoric hung in the air: “savagely,” “greatest tragedy,” “protection of your women-folk”—he was sparing the jury no drama, or fear. After a moment, Hunter drew himself up and moved in closer to the jury. A downcast look crossed his face. He was solemn. His voice sank lower. “Now, gentlemen, I am about to conclude my argument to you in this case. I have tried to do a good job. That is my sacred duty. Gentlemen, I have been seriously ill, and this is probably the last capital case I will try in this county. . . . I have been stricken with what may be a fatal disease.”
His words were lost on no one in the courtroom. Mabel Norris Reese, Thurgood Marshall, the defense team, Sam Buie, everyone’s ears pricked up. For a second Judge Futch even forsook his cedar sticks.
“Gentlemen, I don’t want to do any man, whether he be black, white, or colored, an injustice, and I have come to the realization that I may soon have to meet the Almighty, and I don’t want to meet the Almighty with any innocent blood on my soul. Gentlemen, I don’t believe that I will ever do so, but I do want to leave this county in such condition, that you and your wives and your daughters and your sisters and your sweethearts can walk and ride the streets of this county and this state in perfect safety, as you should do. I want to leave this county and this state in such a condition that no bunch of men can come in and snatch up your wife or your daughter and carry her out in the woods and rape her.”
Marshall had lost count (though Greenberg had not) of Hunter’s instances of prosecutorial misconduct in his closing argument, but his revelation of a “fatal disease” was clearly a ploy to gain jurors’ sympathies and, again, grounds for a mistrial (another for Greenberg to record in the event of an appeal). Still, the defense did not object, as Hunter was wrapping up his summation, and the judge would surely have overruled in any case.
Testimony and arguments had been completed. Walter Irvin did not meet his gaze as the special counsel reminded him, as Marshall had been reminded by the state attorney, that the governor’s plea offer was “open up until the case went to the jury.” Once the jury withdrew for its deliberation, though, the defendant’s last chance to ensure himself a life sentence rather than the death penalty, in the event of his conviction, would be forfeit. And again, Marshall reminded Irvin that he would in all likelihood be facing the electric chair.
Stoic, staring into the distance beyond the defense table, Irvin had listened to his counsel. His silence was heavy. Then his eyes met Marshall’s. “I didn’t do it,” Irvin said, and said he would not plead guilty to what he didn’t do. Marshall nodded, and clasped the resolute Irvin’s shoulder.
Judge Truman Futch charged the jury. As the twelve white men exited the courtroom, the NAACP attorney approached the bench, where the judge, his everyday brown tropical business suit dappled with cedar shavings, remained slumped in his swivel chair. He wore a Masonic signet ring; so did Marshall, and earlier in the trial the judge and the lawyer had compared their rings and amicably shared some of their experiences in Freemasonry. At the moment, however, Marshall was feeling neither cordial nor fraternal. He was livid with Jesse Hunter.
“Judge Futch, I’m quite serious about this,” Marshall said. “I’m going to make him lose. Every one of those jurors has got a Shriner’s pin, did you notice that?”
“Sure, I noticed it,” Futch replied.
“Did you also notice that the state’s attorney, three different times gave the Masonic distress signal to that jury?”
“Yeah,” Futch said, “as a matter of fact, it was four.”
“Well, I’m going to make an objection,” Marshall told him.
“I wouldn’t do it,” Futch answered.
“Why not?”
“There’s nothing racial about that,” Futch said. “He does it all the time whether you’re white, black, or green. He gives the distress signal all the time.”
Greenberg, Akerman, and Perkins felt no better about the prospects for the defendant than did Marshall. The whole trial, it seemed, had proceeded by the ordainment of the state, which apparently enjoyed the grace of Judge Futch. Predetermined though the verdict appeared to be, Marshall had Akerman request that the court submit additional instructions to the jury, urging that deliberations not be influenced by public sentiment and that the testimony of Norma Padgett be “rigidly scrutinized,” since there were no other witnesses to the alleged act. Futch refused.
Marshall retreated to the hallway for a cigarette. He kept a wary eye out for Deputy Yates; he had no inclination to be chased out of Marion County by a band of Klan riders after the verdict—not in a hearse, anyway. The Marion County Sheriff’s Department was well represented at the courthouse, but even in their Stetsons, with their guns holstered on their hips, they projected none of the menace of their Lake County counterparts.
A white man sidled over to Marshall. “How long’s the jury going to be out?” he asked.
“Damned if I know,” Marshall said. “I can’t tell.”
Both men puffed on their cigarettes in silence, the white man staring down the corridor. “I can tell,” he said.
Marshall waited for an explanation. The man was pleased to offer one. “You see that man over there just lit up a cigar?”
Marshall spotted him, said yeah, and the man remarked, it seemed to Marshall, with undue confidence, “When he’s finished that cigar, the jury will come back.”
Marshall furrowed his brow. “What the hell you talking about?” the lawyer asked.
When the man pointed out that the cigar smoker was a juror, Marshall recognized him, as well as a second juryman who appeared and also lit up a cigar.
“They’re not gonna waste that cigar,” the man told Marshall. “They’re going to finish the cigar before they come in.”
&n
bsp; Marshall observed the two jurors. He detected no nervousness in their gestures, no tension in their body language, as they casually smoked their cigars. It was not a good sign. Marshall would have preferred to be seeing them uneasy, on edge, ready to skip the courthouse as soon as they had, contrary to popular demand, acquitted Walter Irvin. Instead, the two jurymen looked as if they might have been passing time outside a barbershop on a lazy Saturday afternoon. Not a good sign at all. Marshall lit another cigarette.
The cigar smoke billowed around the heads of the two jurors. A few more minutes ticked slowly by. Then, one juror stamped out his cigar; he lingered for a moment, and with a nod to his companion, he disappeared from the hallway. With no apparent urgency, the second juror followed. Marshall butted his cigarette.
He was just stepping toward the courtroom when word came out that the jury had reached a verdict, after one hour and twenty-three minutes of deliberation. Marshall’s team gathered at the defense table. Walter Irvin was brought back from his cell. His family along with the black spectators, curious and hopeful, packed themselves into the balcony. The main floor buzzed. The press corps waited, alert. Jesse Hunter took a seat next to Sam Buie at the prosecutor’s table. Judge Futch returned to the bench.
