Despite the obstacles in his path, Marshall kept pushing and working and winning support from the local NAACP. The case got to federal district court in Houston in April 1941. Marshall and Durham argued that the white primary violated the fifteenth Amendment, which gave all eligible Americans, without regard to race, the right to vote. Lawyers for the Democrats responded that the primary was held by a private club, the Democratic Party, and they were free to select the club’s membership.
Unfortunately for Marshall, it turned out that his client had not tried to vote in a primary but only in a runoff election. Marshall had not realized that Hasgett had failed to even try to vote in the primary. The judge swiftly ruled that since Hasgett had not tried to vote in a primary, the suit had no standing and the NAACP had no case.
Maceo Smith and the black civil rights leaders in Texas were devastated. Marshall wanted to appeal immediately, but he was stuck. Even if he won on appeal, the case would have only limited impact because Hasgett had not been denied the right to vote in a normal primary race. However, starting all over again, with a new plaintiff and a new case, would require more money and more political support.
That support was not forthcoming. There was sharp criticism of his handling of the Hasgett case in the black press in Texas. Marshall wrote a funny note to NAACP officials in New York about the rising frustration among black Texans: “All agreed that if we did not get another case started all of us would have to leave the U.S. and go live with Hitler or some other peace loving individual who would be less difficult than the Negroes in Texas who had put up the money for the case.”12
Despite the added pressure, Marshall, with help from Durham and Smith, was finally able to get the NAACP in Texas to put up the money for one more try. Marshall was sure he could win, he told everyone, because of a recent Supreme Court decision, U.S. v. Classic. In that case the high court had ruled that fraud in a Louisiana primary election was not a private matter among members of the Democratic Party but a federal offense. Marshall argued that he could use Classic to contend that racial discrimination, like fraud, corrupted the entire election system.
With lukewarm support from Texas NAACP leaders, Marshall began traveling to let other people know about his fight against the all-white primary. In speeches in both the North and the South, he wrapped his cause in the American flag. He said the country was preparing to go to war against Hitler and the idea of white racial superiority. Marshall made Hitler the target of his speeches and a friend to racists in Texas as well as Germany. The NAACP lawyer appealed for an America that was fully democratic at home.
In late 1941 Marshall returned to Texas to continue trying to overturn the white primary. He became a whirlwind fund-raiser, giving pep rally speeches before fraternal groups and civil rights organizations, and even from the pulpits of black churches. At a Houston church they passed around a plate until one woman joked that she needed to borrow a quarter if she was going to contribute her last dollar. Those trips into churches introduced Marshall to some memorable characters. One local minister, for example, was not about to turn the other cheek to white lynch mobs. “In the glove compartment of his car, he had two items—a Bible and a .45, and his answer was very simple: ‘I’ll try the Bible first,’ ” Marshall gleefully told friends.13
When he had raised enough money for his case, Marshall found a plaintiff in Lonnie Smith, a doctor from Houston who had been denied the chance to vote in a straight primary contest. A year after losing the Hasgett case, Marshall and Durham started Smith v. Allwright. S. E. Allwright was the Houston election judge who had denied Smith the right to vote in the primary.
Marshall’s case attracted quite a bit of attention throughout Texas. Even the debonair Duke Ellington, world renowned for his jazz and swing orchestra, got pulled into the drama. “Duke Ellington happened to be in town, and about half a dozen of us played poker and he wanted to know what I was doing down there,” Marshall reminisced later. “And I explained the case to him, and he said, ‘Man, that’s interesting. When is it coming up?’ I said tomorrow. He said, ‘Well, that’ll be no trouble. I’m free until tomorrow night.’ So he arranged to go to court the next day, and it was postponed. And it was postponed at least two times, and he kept the whole band waiting, at his expense. You can’t imagine what it cost him. But he finally heard that case.”
Even with Ellington’s magnetic and dapper presence, Marshall and the NAACP lost again. This time, however, Marshall was ready to appeal until the Smith case and the issue of the white primary was in front of the Supreme Court. He got the ACLU and the National Lawyers Guild to file amicus briefs with the Supreme Court supporting the NAACP’s position. Marshall also asked the Justice Department, which had brought the Classic case, to support the NAACP’s claim that fraud in the Louisiana primaries amounted to the same result as racial discrimination in the Texas primary.
However, Justice Department officials turned Marshall down, explaining that southerners in the Senate would be angry if Justice entered the fight on the NAACP’s side. “When I told Thurgood the answer would be no,” said Herbert Wechsler, assistant to the solicitor general, “he said, ‘I’m sorry, we’d like to have you with us but we’ll just have to go it alone. I see your position.’ That was one of his great virtues, seeing things from the other guy’s side. He was a good tough advocate who functioned without having to feel that his opponents were either knaves or fools.” 14
In October of 1943 the Supreme Court heard arguments in the white primary case. “OFAY PRIMARY CASE BEFORE SUPREME COURT,” read the Baltimore Afro-American’s banner front-page headline on October 16. Marshall and Bill Hastie, his former law school professor who was now dean of Howard Law, made the NAACP’s case before the high court. Hastie was a crack lawyer, and he was famous for his unflappable manner, even under intense fire.
In April 1944 the Court ruled that white primaries were unconstitutional. If Texas allowed the political parties to limit their nominees and voters to whites, the Court said, “it endorses, adopts and enforces the discrimination against Negroes.”15
The decision made national headlines. Both the black and the white press put the high court’s ruling—and young Mr. Marshall—on their front pages. The Norfolk Journal and Guide wrote that with its victory in the white primary case the NAACP had to be given new respect. The association, it wrote, “has often had to bear the wrongfully imposed stigma of ‘agitator,’ but it has done more to translate the U.S. Constitution and laws of this country in their proper perspective for minorities than any other organization in the field.”16
Walter White, Charles Houston, and the national membership of the NAACP were thrilled with the Supreme Court ruling. Even at the end of his life, Marshall still bubbled that the victory in the white primary case stood as “the greatest one” of his career.17
When news of the high court’s ruling on the case reached Marshall in New York, a grand party swept through the NAACP’s offices. As the phones rang with calls from lawyers, reporters, and NAACP supporters, Marshall began playing a game in which he had callers passed from one secretary to another while he sat back laughing and drinking. The next day Marshall, still woozy from his partying, got a call from Supreme Court Justice Frank Murphy. The justice said he had called the day before but could not “pierce the wall of secretaries.”
“I apologized profusely,” Marshall said later, “and Murphy agreed that a guy had the right to get drunk at a time like that. Then he invited me to lunch.”18
Justice Murphy was not the only one who suddenly wanted to get to know the NAACP lawyer who had made magic and history in Texas. Among black Americans Marshall’s name suddenly was celebrated. Everyone wanted him to come to town to speak. Everyone wanted him to handle a case. And Marshall was expected to confront the most racist southern politicians, lawyers, and judges. To prove he was really a legal wizard, Marshall would have to make magic again. This time a dark, politically driven murder case awaited him.
CHAPTER 11
&nb
sp; Pan of Bones
THE NAACP WAS GETTING DOZENS OF CALLS and letters from around the country in which black defendants complained that they were being railroaded from jail cell to the electric chair with barely a stop for a trial. In his office in New York, Marshall kept files of letters from local NAACP leaders, news stories, and occasionally long, sad letters in barely legible writing from the jailed men themselves.
Working by himself and with a limited budget, there was no way Marshall could agree to represent suspects in every case. Sometimes he would call the local branch’s attorney and discuss the case, offering ideas for building a defense. Just as often he would have to find an attorney in the area who was willing to get involved for a minimal fee from the NAACP. But in some cases Marshall would feel compelled, by an insistent branch leader or by the horror of a case, to get on a train and handle the matter himself.
In the spring of 1940, Marshall began getting alarming letters from one of the most powerful NAACP leaders in the South, Roscoe Dunjee. The fiery Dunjee was the editor of the largest southern black newspaper, Oklahoma City’s Black Dispatch. Dunjee pleaded with Marshall to help a simpleminded black farmhand who was accused of killing three members of a white family.
On New Year’s Eve 1939, Mr. and Mrs. Elmer Rogers and one of their children were shot and their throats were slit in the rural town of Hugo. To destroy evidence of the crime, their house was set on fire. During the barbaric attack, the couple’s son, nine-year-old Glen, hid in a closet holding back his screams. Once the murderer left, Glen miraculously escaped the burning house.
Initially two white men were arrested and confessed to the murders. But when it was learned that both men were inmates who had been allowed to leave the nearby state prison for unsupervised visits to bars and whorehouses, newspapers began to criticize the governor and prison warden.
To quiet the public outcry, Governor Leon Chase Phillips sent an aide, Vernon Cheatwood, to Hugo with orders to clean up the mess. Cheatwood was a big, threatening man with stubby fingers and a vicious, sneering smile that showed bad teeth. He carried a gun and brass knuckles under his coat. When he got to town he ordered the release of the two white prisoners even though they had confessed. Cheatwood let them go on the promise they would leave the state and he even arranged to get them into Texas. The governor’s office then announced that a search would begin for the real culprit.
A few days later Cheatwood and local police arrested W. D. Lyons. The black sharecropper admitted he had been hunting rabbits near the slain couple’s farmhouse but denied that he had anything to do with the murders. The police and the governor’s aide called Lyons a liar. Over two days the governor’s man beat him repeatedly with a small hardwood nightstick. The handle was wrapped with leather for a tight-fisted grip. Cheatwood told the locals he had made it himself and called it his “niggerbeater.”
When they were not beating Lyons, they denied him sleep and food. All the while they demanded that he confess to the crime. Lyons still maintained that he did not do it. Cheatwood and Hugo police then devised a new plan. Well after midnight, with Lyons babbling and disoriented, Cheatwood walked into the cell. A cringing Lyons expected to be beaten again, but Cheatwood had other plans. He pulled out a large, stinking black pan filled with the charred bones of the murder victims and threw them in Lyons’s lap. “There’s the bones of the baby you burned up,” he barked.1
Still suffering from his beating, frightened of another attack, and superstitious about human bones, Lyons cracked. He tried to crawl away, but Cheatwood held him, pushing his face toward the pan of bones. Lyons desperately begged Cheatwood to stop. Only a confession would end his misery. A few minutes later Lyons gave police the confession they wanted.
But the police were not satisfied and took Lyons to the nearby state penitentiary, where they showed him the electric chair and got him to sign a second confession, in which he swore he had not been beaten and admitted to killing the Rogers family.
The Black Dispatch editor, Dunjee, son of a slave, was incensed by the crooked politics and the governor’s calculated appeal to racism. His little paper, some weeks only six or eight pages, played the story in big, angry headlines. And out of his own pocket Dunjee immediately hired a white lawyer from the Oklahoma ACLU, Stanley Beldon, to represent Lyons.
When Beldon reached Hugo a few days later, several of the town’s leading white residents pulled him aside in a restaurant to say they did not believe Lyons had committed the crime. The biggest surprise came when another group of whites told him that the murdered woman’s father was sure Lyons was innocent and was willing to testify. But the white community’s attitude did not make much difference.
After the police announced that Lyons had confessed to the crime, they kept him in jail as the county attorney and the sheriff stalled the trial until after local elections to prevent the scandal from hurting their chances for reelection. Beldon could not break through the stalling tactic, and Lyons was left in jail as outrage over the case grew cold.
Fed up with Beldon’s inability to force a trial, Dunjee, also a member of the NAACP’s national board, wrote to Walter White. He wanted Marshall to come to Oklahoma and wave the NAACP’s name around to make the Lyons case a national issue. White and Marshall agreed the case was good material, both to create a cause for the NAACP and to take a stand against forced confession, a tactic often used against black suspects.
Now the pressure was on Marshall. Not only did he have to pay attention to the case but he had to stir up publicity, raise money, and, far from home, maneuver through state politics with the governor wishing him the worst.
Marshall spent three days riding a train to Oklahoma City, then got on a bus for the six-hour trip to Hugo, arriving Sunday, January 26, 1941. As soon as he arrived, a group of black men pushed him into the backseat of a car and quickly hid him away in the small black community. They feared that someone might kill him, so they moved him from place to place every few hours and always had armed guards watching outside. Although white people in Hugo were supportive, the black community did not know what the governor might do to keep his cover-up in place, including having an accident take Marshall out of the picture.
Marshall did not have much time to investigate the case or to worry about threats to his life. Just before his arrival it was announced that the trial was set to start in a few days. The morning after he arrived, the trial began. The courthouse, with its segregated seating, was “jammed,” with “at least a thousand white and Negro people.” Marshall wrote to Walter White: “Jury is lousy. State investigator and county prosecutor busy around town stirring up prejudice, etc. No chance of winning here. Will keep record straight for appeal.”2 He was convinced the governor had the judge in his pocket and had fixed the trial.
By the second day in court the judge, J. R. Childers, who smoked a large cigar while sitting on the bench, announced to the crowd in his courtroom that it was “a gala day” for the town of Hugo. He was more interested in the large crowd and newspaper reporters than in the case. Marshall felt lost in a political show trial, where his powers of argument and knowledge of the law counted for nothing. The judge’s behavior struck him as bizarre, and Marshall wrote him off as a small-time clown in the governor’s parade. “Can you imagine a Negro on trial for his life being considered a gala day?” Marshall wrote to White.
But the judge was right to say that people in Hugo were entertained by the trial. The crowd around the courthouse grew as the trial continued. Marshall later explained in letters back home that he became the star attraction as “word went around that a nigger lawyer from New York was on the case—first time they have seen such an animal.” Students from local white schools were even allowed to miss class to watch the trial.3
Marshall and Beldon sat with Lyons, who stuttered with nervousness the few times they got him to say anything. Marshall’s first move in court was to let the judge know that the NAACP had recently won a ruling from the Supreme Court (Canty v. Alabama in March 194
0) that outlawed forced confessions. In that case, which had been tried by Charles Houston with Marshall’s help, the conviction of a black man accused of murder in Alabama had been overturned when the high court ruled that he was beaten and forced to confess.
Norman Horton, the county prosecutor, then called Lyons to take the stand. The trembling defendant testified that Horton had witnessed the police beating him. Horton, however, denied seeing the brutal whipping. But the usually silent Lyons stiffened. Looking Horton in the eye, he said: “Oh, yes, you were there.” Horton’s face went white, and pointing a finger he said to Lyons, “Why, I stopped them from whipping you.” The courtroom audience, completely caught up in the drama, erupted in loud shouting as the judge banged his gavel, trying to restore order.4
Once the roar subsided, Marshall had the court take note that Horton had conceded Lyons was beaten by the police. Next Marshall questioned Vernon Cheatwood and got him to admit that he threw the murder victims’ bones on Lyons. “Did you put a pan of bones in his lap?” Marshall asked. “Yes,” said Cheatwood coolly. “I thought it would refresh his mind.”5
Marshall began to pepper the governor’s man with questions about a wooden and leather weapon, dubbed his “niggerbeater,” to get a confession. Cheatwood, becoming flustered, denied he had such a weapon, but Marshall called a white hotel clerk to the stand who testified that Cheatwood had bragged about how he had used it to beat Lyons for six or seven hours. As the trial unfolded the sympathy for Lyons among local whites grew stronger. White residents secretly helped Marshall find a picture, taken by the police, of Cheatwood and a Hugo policeman standing next to a bloody and beaten Lyons. “Many white people stopped us in the halls and on the streets to tell us they enjoyed the way the case was going and they didn’t believe Lyons was guilty,” Marshall later wrote to White. “Ninety percent of the white people by this time were with Lyons.”6
Thurgood Marshall Page 15
