by Alex Heard
What happened? Poole found his judge. London said Poole learned that Roberds was out playing golf. He tracked him down on the course, hobbling over grass fairways, and got him to sign the papers on the spot. According to London—there’s no other source for this—Roberds not only scribbled in his name but opined that he thought there was something fishy about the case.
“This was about six or seven o’clock in the evening,” London said, “and the Judge said, ‘Well, thank goodness you got here’ or words to that effect and said, ‘I never did believe this fellow was guilty anyhow.’…”
Reportedly, Brogan declined to accept the stay order by telephone, so Poole had to race toward Laurel by car. The CRC quickly issued a dramatic press release (“EXECUTION OF FRAMED NEGRO VET HALTED BY LAST MINUTE ACTION”) that said that Poole and an armed acquaintance had met Brogan on the highway, where he scanned the documents by headlight, releasing his prisoner once he’d read the order. McGee was back in the Hinds County jail by 10:30, visibly shaken and trembling. He told a reporter that “faith in God was the only thing that saved me.”
McGee’s U.S. Supreme Court appeal, filed on August 8, 1949, was submitted by two left-wing lawyers from New York, Samuel Rosenwein and Arthur G. Silverman. Rosenwein had been involved in the Hollywood Ten hearings in 1947, in which HUAC probed alleged Communist infiltration of the film industry. Silverman was a member of the National Lawyers Guild.
Their appeal opened with twelve pages of case recap, followed by five specific claims: that McGee’s confession was coerced, violating the Fourteenth Amendment’s guarantee of due process; that there was “not a scintilla of competent evidence” other than the controversial confession; that there had been systematic jury exclusion in the selection of the grand and trial juries; that local “prejudice, hostility, and hysteria” warranted a change of venue; and that McGee was denied effective assistance of counsel because the trial was rushed and his lawyers felt threatened. The appeal relied nearly as much on sociology and history as on case law, citing such works as Gunnar Myrdal’s An American Dilemma (the Swedish economist’s seminal 1944 study of the effects of racial prejudice and discrimination) and the Truman administration document To Secure These Rights.
Every one of the appeal’s legal issues had come up in cases heard previously by the Court, including Brown v. Mississippi—a 1936 decision that reversed three Mississippi murder-case convictions that had relied on violently coerced confessions—Powell v. Alabama, Patton v. Mississippi, and Norris v. Alabama. Each of those cases was cited, with the exception of Norris, the Scottsboro case that involved jury exclusion. It’s unclear why Norris was left out, but it may be because Poole had neglected a step that Leibowitz had seen to: introducing physical evidence to prove that tampering had occurred with the Jones County jury lists. In any event, Rosenwein and Silverman only put forward the general idea that it was impossible to believe Mississippi officials had suddenly decided to allow black grand jurors without some kind of trickery in play.
The consent argument wasn’t discussed—that was a state issue—but the justices were made aware of it by their clerks, who dismissed it. Rosenwein and Silverman instead emphasized McGee’s ordeal after his arrest, appealing to common-sense skepticism about the state’s claim that he’d confessed freely. He hadn’t been advised of his right to an attorney, they pointed out. He was packed away for thirty days in the Hinds County jail, lacking any contact with a friend or lawyer, while getting repeated visits from “at least a dozen state officials, prosecutors, sheriffs, jailers, police officers,” as well as from McGee’s former boss, Horace McRae, and Troy Hawkins, the husband of his accuser.
“The only possible purpose for bringing the husband of the alleged victim to the petitioner was to frighten and intimidate him,” the appeal said. Nonetheless, “the State’s position appears to be that the period of detention merely afforded the petitioner a quiet period wherein he could freely meditate upon his past and confess his ‘sins’ calmly and with good cheer.”
To see the lie in that, they argued, all you had to do was look at McGee before and after his incarceration. Before, he was “employed as the driver of a motor vehicle, apparently physically able to carry on strenuous work.” After, he was “incapacitated, in a state of nervous collapse and fright bordering on dementia.” Citing language from the Court’s 1945 opinion in a case called Screws v. United States, which concerned a Georgia prisoner who had been beaten to death by a local sheriff, Rosenwein and Silverman tried to position McGee as a man who was being murdered by the system—slowly but surely.
“He has had the forms of a trial; in reality, he had had no trial at all. As the late Justice Murphy stated: ‘He has been deprived of the right to life itself. That right belonged to him not because he was a Negro or a member of any particular race or creed. That right was his because he was an American citizen, because he was a human being.’”
“The late Justice Murphy” was Associate Justice Frank Murphy, a liberal jurist from Michigan. Citing his dissent in Screws was something of an emotional plea, because Murphy had died just three weeks before McGee’s appeal was filed. But there was a logical point to it. In Screws, Murphy was the most passionate advocate for a position that, at the time, was out in front of where many federal judges were willing to go. Namely, that if a state failed to prosecute the kind of crime at the heart of Screws—a race-based murder committed by local officials acting under the authority of state government—the federal government had the right, and the obligation, to pursue justice using federal statutes.
The Screws case originated in southwest Georgia’s Baker County. In January 1943, Sheriff M. Claude Screws arrested a young African-American man named Robert Hall on a trumped-up charge of stealing a car tire. Screws and two other lawmen, Frank Jones and Jim Bob Kelly, then beat him to death outside the county courthouse, with fists and an iron bar. The real motive for all this was a pistol belonging to Hall: Screws had confiscated it, and Hall had started legal proceedings to get it back.
A local grand jury failed to indict the men, so the U.S. Attorney General’s office stepped in. The government charged Screws and his accomplices with violating Hall’s civil rights, basing this on language from a Reconstruction-era statute that prohibited officials from impeding constitutionally protected rights “under color of any law,” be it federal, state, or local. A jury found them guilty and they were sentenced to three years in prison. After a federal appeals court upheld, the state of Georgia filed an appeal with the U.S. Supreme Court, which agreed to hear the case.
The decision was complicated and it centered, in part, on the question of whether the Justice Department had overreached by bringing its indictment, in effect using an archaic federal law to bypass Congress and give the government the anti-lynching power over states that legislators had always refused to pass. Three justices, including Felix Frankfurter, said that it had. “The only issue is whether Georgia alone has the power and duty to punish,” they wrote, “or whether this patently local crime can be made the basis of a federal prosecution.” Murphy disagreed, writing that Screws had unquestionably “deprived Robert Hall of his life without due process.”
Four judges, including Hugo Black and William O. Douglas, recognized the right of the federal government to intervene in such a case, but they voted to reverse this one on a technicality involving jury instructions. Today, Screws is cited as a precedent that helped open the way to a broader application of Fourteenth Amendment protections in civil rights cases. But the more immediate result was an injustice: Screws, Kelley, and Jones were tried again and acquitted.
In its response to McGee’s appeal, the state of Mississippi took aim at the defense’s two most promising arguments: jury exclusion and coercion. In a short brief, Attorney General Greek L. Rice argued that Patton’s requirement had been fulfilled by the presence of blacks on McGee’s third-trial grand jury. On the coercion charge, the state’s argument was simple: The Supreme Court had upheld the idea that state offic
ials had a right to extract confessions as long as this was done without “methods of cruelty.” Rice didn’t address Rosenwein and Silverman’s detailed account of what McGee said had been done to him—instead, he passed over it completely, merely implying that the confession was obtained legally. Given that, he argued, there was no Fourteenth Amendment issue. The Bill of Rights was enacted to protect individuals against the federal government, not against the states. It didn’t apply to state prosecutions unless the state used illegal methods, as had happened in Brown v. Mississippi.
But suppose Mississippi officials were lying and McGee had been tortured? Or that Poole was right when he said the black grand jurors were planted? The justices must have considered these possibilities, because they were discussed in a circulating memo written by Murray L. Schwartz, a law clerk for Chief Justice Fred Vinson during the 1949 term.
Because of the large volume of appeals to the Court, clerks like Schwartz were—and still are—assigned to read the case record, look at the briefs filed by both sides, and write a memo that summarizes the facts and possible grounds for review. The justices considered petitions in regular meetings that were held in secret, and they didn’t release details about their conversations. For the McGee appeal, the only evidence about what went through their minds is a look at what went into them: Schwartz’s ten-page memo, along with a shorter memo by Warren Christopher, a clerk for William O. Douglas who later became secretary of state under President Bill Clinton.
Schwartz reviewed McGee’s five claims in order, starting with jury exclusion. He explained that, after Patton, Mississippi officials said they would obey the law regarding jury selection. He reminded them that voter-registration patterns hadn’t changed, so it was reasonable to ask if states like Mississippi were “making a good faith effort to conform to Patton, or whether they are ignoring that holding or devising means to evade it.” This was hard to answer, because the trial judge had stopped Poole’s attempt to explore this question in court. “It is difficult to evaluate…without a close reading of the record,” he said, “and even then the answer does not come readily.”
That statement was echoed throughout Schwartz’s memo: To settle the questions raised by McGee, the Court would have to conduct its own investigation of disputed facts, in effect retrying the case. Did McGee deserve a change of venue? The state said no, that passions had cooled and, as the Mississippi Supreme Court put it, there was no “latent terrorism in the atmosphere of this trial.”
McGee’s lawyers said they were physically threatened and fled. Had it happened? “[I]t is difficult to imagine what kind of strategy other than a threat of violence would have influenced a defense attorney in a criminal case to fail to make a closing argument,” Schwartz wrote, adding, “Again this would seem to be a factual question which would be extremely difficult for this Court to resolve.”
With McGee’s alleged confessions, the disagreement was sharp: McGee said he was beaten up; the police said he wasn’t. “Assuming the veracity of the police,” Schwartz wrote, “…the determination of the issue depends upon facts which are perhaps available only after a long and close study of the record, plus additional testimony.”
Wrapping up, he reviewed the case in a big-picture way. An African-American man was on trial for rape in Mississippi. The first trial was reversed because of a mob atmosphere. The second because of jury issues. All-white juries had sentenced McGee to death three times, and the defense alleged misconduct.
“On the other side appears the testimony of all the good citizens of Miss…to the effect that after deliberate consideration of all his contentions, petitioner had a fair trial,” he wrote. “And there is much to sustain this argument, if only it can believed that a fair trial under these circumstances can be had in Mississippi.”
The Smith Act trial started in January 1949, minus one defendant—William Z. Foster, whose case was separated because he was ill. In his opening statement, U.S. attorney John F. X. McGohey said he would demonstrate that the goal of any Communist group in a democratic nation was, by definition, overthrow, whatever its leaders said in public. Opposition to capitalist democracies was fundamental to the teachings of Marx and Lenin, and in the United States, change could only come through conspiracy, because voters would never choose Communism at the ballot box. “Remember [the] phrase, Marxism-Leninism,” he said dramatically. “You will hear it frequently throughout the trial.”
The trial lasted seven months from jury selection to verdict, ending on October 14, 1949. The defendants, fully aware that the deck was stacked against them, used the courtroom as a protest forum, often answering questions with rambling rants against U.S. policies, “FBI stoolpigeons,” and the presiding judge, Harold Medina. Early on, Medina warned the defendants and their lawyers that he wouldn’t stand for courtroom “rumpuses” aimed at undermining his authority, but his threat never really stopped the flow of abuse.
Medina was also impatient with more reasonable arguments. In June, he ruled out a stack of anecdotal and journalistic evidence that the defense hoped to introduce, designed to demonstrate that American Communists often worked for social justice in the same way that any progressive political group would, as embodied by groups like the CRC. “Judge Medina said the trial would continue for ‘years and years’ if he admitted in evidence all the speeches, articles, statements and other documents offered to show the defendants had engaged in nonrevolutionary activities to help veterans, youth, workers, Negroes, Jews and other groups with grievances,” the Times reported.
As promised, the government presented an extended lecture about the perils of American Communism, and the sheer volume of testimony was incredible. Toward the end, the Times ran the numbers and estimated that the jury of four men and eight women sat through 158 trial days and 5 million words. The transcript, not counting pretrial challenges and motions, came to 15,000 pages.
McGohey delivered anecdotal evidence heavy on perceived perils and light on tangible proof of a conspiracy. Waving basic texts like Joseph Stalin’s The Fundamentals of Leninism, he and other prosecutors argued that American Communism had made a radical turn in April 1945, when French Marxist Jacques Duclos attacked the leadership of Earl Browder, the general secretary of the American Party at the time. During the war, Browder had tried to rebrand Communism, dissolving the Communist Party and replacing it with the Communist Political Association, a more mainstream political movement that, under the slogan “Communism is 20th Century Americanism,” recommended such heresies as labor-management cooperation. Browder was ousted in 1945 in favor of harder-line types like Foster and Dennis.
That was the dreary gist of the case, though from day to day the trial featured dramatic moments that brought it to life. Benjamin Davis, called in July, gave a good accounting of why a black American might be drawn to the Communist Party in the first place. Davis was from Georgia, where his father was a newspaper publisher, prosperous enough to send Davis to Harvard Law School, from which he graduated in 1928. During the 1930s, he represented Angelo Herndon, a black Georgia Communist who was given a long prison sentence for violating a Reconstruction-era law with a Smith Act–like provision against advocating forceful resistance to state authority. The case went to the U.S. Supreme Court, which overturned Herndon’s conviction in 1937.
“This case was the turning point of my whole life,” Davis said.
“The judge referred to me and my client as niggers and darkies, and threatened many times to jail me along with my client.
“I was treated in such a way that I could see before me the whole treatment of the Negro people in the South. The fact that I had been luckier than most people in education and income did not shield me from what all Negroes suffered. So I felt if there was anything I could do to fight against this and identify myself fully with my own people and strike a blow against the lynch system, I was determined to do it.”
As it turned out, the fall of 1949 was a period of turbulence and defeats for the Communist Party and the CRC. I
n late August and early September, riots broke out at two public concerts featuring Paul Robeson, held on the outskirts of Peekskill, New York, in Westchester County. The concerts were fund-raising benefits for the CRC, and during the second of them, anti-Communist protesters smashed car windows and beat up concertgoers, injuring nearly 150 people. Bella Abzug was there, and she took a rock to the chin that left her with a permanent scar.
On October 10, the Supreme Court, without comment, declined to accept the case of Willie McGee. On the 14th, all eleven Smith Act defendants were found guilty. They were sentenced to prison terms, as were some of their lawyers—including Abraham Isserman—after Judge Medina found them guilty of contempt. McGee, of course, faced death, and by the summer of 1950, the Mississippi Supreme Court had set yet another date for his execution: July 27, 1950.
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COUNTRY GIRL
Alvin London dropped out of the McGee case after the Mississippi Supreme Court granted its stay of execution on June 3, 1949. But in 1952, when he talked to Spivak, he still had unfinished business on his mind: The CRC hadn’t paid him for the hurry-up work he and Poole did after the U.S. Supreme Court turned them down.
“[T]hey called up and said, ‘Just do anything. Just do whatever you can,’” he said. “And we worked around here right up until ten or eleven o’clock that night, and finally got a stay. We did just about everything and almost the impossible…and they refused to pay.” London said that, without them, the story would have ended that night. The investigator shrugged. He sympathized, but he had nothing to do with the CRC.
Poole stayed involved, and though it was a while before he did any more McGee work, he had McGee-related business to attend to that year. The libel suit he’d started against the Jackson Daily News was still a going concern, though London dropped out of it. Poole had filed it in April 1948, at first trying to have it heard in Delaware, where the Jackson Daily News was incorporated. Frederick Sullens, owner and chief firebrand of the Jackson Daily News, successfully countersued to have that attempt blocked, so the case wound up at the federal court in Jackson. Things got under way in the spring of 1949, when the opposing sides started taking depositions and filing briefs.
