“That’s what I want to know myself, Governor,” said Wheat. “I know now how wrong it all was but I didn’t think about it then.”
“You wanted an automobile to take your girl to ride in and money to buy things with, I believe you said,” the governor asked.
“Yes, like the other boys had,” said Wheat.22
Rivers commuted Wheat’s death sentence to life, with an agreement that he would not seek release from prison for twenty years.23 The governor cited Wheat’s “extreme youthfulness and his general good conduct prior to the commission of the crime.” He added that “pastors, school teachers and others in official capacities have requested clemency.”
But for Arthur Perry and Arthur Mack, the two young black men in Columbus, Rivers would not even attempt to locate a simple case file.
With one phone call to the prosecutor’s office in Columbus, Rivers could easily have obtained details of the Mack and Perry cases. As an attorney, Rivers would have been able to judge whether Mack and Perry did or did not receive a fair trial.
But Marshall replied to Rivers on August 31, effectively saying “never mind” to the Georgia governor. “We were referring to the cases of Arthur Mack and [Arthur] Perry convicted on August 5 at Columbus, Ga.,” Marshall wrote. “We have been informed that counsel has been retained in the case and that a formal motion will be made to stay execution in these two cases.”24
George P. Munroe, a white former superior court judge, agreed to represent Mack and Perry on appeal. He had represented Perry once before when he was charged with “shooting a person.” Munroe had managed to get Perry freed on that charge.25 “I would like for you to understand,” Munroe wrote the NACCP, “that the best friends that I ever had in my life were of the Negro race. When I was a judge of this circuit, every Negro always felt that I would give him a square deal.”26
In addition to the NAACP and a local white lawyer, Mack and Perry also had a strong advocate in Perry’s mother, Ruth. She was a widow, poor and illiterate, yet she convinced others to write letters in her name to the NAACP, whom she viewed as a savior for her son along with “God, the father of it all.”
Munroe was not shy about asking for money from the NAACP. He haggled over fees. He also harangued Ruth Perry for cash, and she in turn wrote to the NAACP, pleading for more assistance. But Munroe pointed out, correctly, that Mack and Perry had been represented at trial by court-appointed lawyers and the result was plain to see: They were quickly headed to the electric chair. Munroe quoted to the NAACP the words of a respected Georgia lawyer who once said, “A good fee quickened his apprehension.”27
All it took to delay the scheduled execution then was for a lawyer to file a simple motion for a new trial, Munroe quickly did for Perry and J. Robert Elliott filed for Mack. The trial judge would likely reject the motion, and the case would then go to the Georgia Supreme Court, but that one simple piece of paper, a motion for a new trial, could buy a defendant months of life almost automatically, if only a lawyer would file it. It need not be an extensive, well-researched motion, just a place holder that could easily be amended, expanded, and updated later.
Less than three weeks after white “thrill killer” George Harsh was convicted of murder on January 19, 1929, and sentenced to die in the electric chair on March 15, his attorneys filed a motion for a new trial. It said little other than that the verdict was “contrary to evidence and without evidence to support it.” But it stopped the clock. Harsh’s attorneys later filed a more detailed motion that cited specific alleged errors by the trial judge.28
With Munroe at the helm now, the clock was stopped for Mack and Perry. They were young, black, and poor. This was Georgia in 1937. They were convicted of killing a white law enforcement officer. Yet even under those circumstances, it was possible to win in the appellate courts of Georgia, if given the time and legal resources.
With time—more than a week or a month—cooler heads could prevail. And that is what happened here.
Munroe immediately spotted a huge legal error by the trial judge in the Mack and Perry cases. The judge had not given the jury the option of convicting the two men of a charge less severe than murder, such as manslaughter. And on this point, Munroe would be proved correct.
In January 1938, the Georgia Supreme Court reversed the Mack and Perry convictions, holding that jurors should have been given the option of ruling the killing justifiable homicide or voluntary manslaughter. Even a dissenting judge conceded that if the outcome of the killing had been reversed, if Helton, the security guard, had lived and Mack and Perry had died, Helton might have been charged with two killings.29
The Georgia court ordered new trials for Mack and Perry. The NAACP urged Munroe to file a legal challenge to the indictments based on the fact that blacks were excluded from serving on grand juries in Columbus.
The U.S. Supreme Court ruled in 1900 that the systematic exclusion of blacks from grand juries was unconstitutional. It reiterated that position in 1932, in the Scottsboro case, stating, “It appeared that no Negro had served on any grand or petit jury in that county within the memory of witnesses who had lived there all their lives. Testimony to that effect was given by men whose ages ran from 50 to 76.”30
If Munroe could successfully challenge Mack’s and Perry’s indictments on those same grounds, the precedent might not only save the lives of the two young defendants, but also help other black Georgia defendants, the NAACP told Munroe. “I am afraid that many persons think that this Association has unlimited funds with which to come to the aid of every Negro who finds himself in trouble,” NAACP special counsel Charles H. Houston wrote Munroe. “However, our budget is so small that we have to limit ourselves to test cases and it frequently happens that we cannot conduct more than one test case per state over a period of years.”31
Munroe did not take the NAACP’s advice. He believed challenging the grand jury’s composition would so inflame the white community that it would result in instant death sentences for Mack and Perry.
The trial judge would simply delay the case and instruct the jury commission to name a few blacks to the large pool from which grand jurors were chosen, Munroe wrote. That would bring about technical compliance with the U.S. Supreme Court mandate. But it would have no practical effect, because those blacks would not actually be chosen to serve on the grand jury, Munroe said. He cited the federal courts in Columbus as an example. Blacks had been included in the federal jury pool for more than thirty years, but “in all of that time, I have never known but one colored man who served on the jury in the federal court,” Munroe wrote Houston. Even many whites were never chosen for juries, even though their names were in the larger pool.
“I am as just as much interested in saving those boys from the electric chair as you are,” Munroe added. “If I had followed the plan that you suggested, it would have created prejudice against them that nothing could have overcome.”32
That was one of the many dilemmas lawyers in the South faced when trying to save the lives of black defendants. There was a need for sweeping attacks on the all-white jury system, yet at the same time, there was fear that those same attacks on southern customs could destroy any chance of ultimately saving a client from death in the electric chair.
The Scottsboro defendants, backed by a well-funded defense team, ultimately escaped the death penalty. But they were charged with rape, not the murder of a white police officer, as Mack and Perry were.
Another looming question was whether the NAACP or another organization would fund a potentially expensive round of appeals to take Mack’s and Perry’s cases to the U.S. Supreme Court, where they would very likely prevail. Houston of the NAACP had clearly stated in his letter to Munroe, “our budget is so small.” Munroe, therefore, banked on the short-term strategy: Try to save the lives of Mack and Perry by challenging the convictions on their merits, not by challenging the jury system, not enraging the white community.
On retrial in February 1938, Perry took the witness stand and admit
ted that he had lied in the first trial when he denied stabbing Helton.
“I didn’t tell about the cutting the first time,” he said. “I was afraid. That is the reason why I didn’t tell it. I didn’t even tell it but I am now telling you the reason I didn’t make it in my first statement. I was afraid to tell it.”33
Mack and Perry were convicted of murder again and again sentenced to death in the chair. Again Munroe filed a motion for a new trial, and losing that, he appealed to the Georgia Supreme Court, claiming that there was insufficient evidence to convict the two young men of murder. This time they lost, the trial judge having given the proper jury instructions as previously dictated by the high court.
Even so, the Georgia Supreme Court ruling struck a sympathetic tone, stating that the defense arguments on appeal were “earnest and ably presented.”34 The supreme court summarized the case for what it clearly was: a jumbled, chaotic killing in the dark. There was no direct evidence to show “whether the deceased or the accused was the aggressor, none as to whether the assault upon him was in self defense or otherwise,” the justices wrote.35
Still, under the law it was jurors, not the Georgia Supreme Court, who had to decide guilt or innocence. It was the jurors who “had the right to draw their own deductions as to which was the aggressor.” And the jurors had chosen Mack and Perry.
There was no offer from the NAACP or any other group to pay for federal appeals.
The two young men were headed to the electric chair at Tattnall Prison on December 9, 1938.
8
A Strange and Violent Fall
Arthur Mack and Arthur Perry were, in a strange sense, two of the lucky black defendants. They had been spared a quick execution and, thanks to the NAACP, had appealed their convictions to the Georgia Supreme Court. They won their appeals and received second trials. Losing those, they appealed their convictions for a second time to the Georgia Supreme Court, but lost.
They were now headed to the electric chair on December 9, 1938, but their lawyer and the NAACP had managed to keep them alive for more than a year. As grim as that sounds today, a year of extra life was an accomplishment in 1938 for a black defendant in a capital case, particularly a case where the murder victim was white.
In the fall of 1938, there were four more black defendants charged with killing white people. They too would find themselves navigating the rapid, deadly Georgia judicial system.
Willie Russell appeared at a three-room farmhouse shortly after midnight on October 16, 1938, drunk, asking for money.1 Russell, a thirty-one-year-old black man, had for years performed manual labor for a white Cobb County farmer, George Washington Camp. Camp was sixty-six. One of his legs was partially paralyzed. He walked with a cane.2 Camp was described as an ordinary farmer with a limited income. Russell lived in a shack near Camp’s farmhouse.
When Russell pounded on the door of the lonely house that early Sunday morning, Camp answered. Not wanting to disturb his grown daughter and his nine-year-old grandson inside, Camp stepped outside to talk with Russell.
The argument between the two men escalated. In the darkness, Russell beat the farmer to death with an ax handle.
The old farmer’s body lay in a patch of woods about five hundred feet from the house, but Russell was not finished. His rage not spent, he went back to the house and began beating Camp’s twenty-six-year-old daughter, Christine Pauls. She was married but separated from her husband. Her nine-year-old son, Cecil, came to his mother’s aid. Russell knocked the boy senseless with the ax handle. Then he continued beating Christine until she was dead, her body barely recognizable.3
On his way out the next morning, Russell left the bloody ax handle in the yard. Cecil finally managed to crawl to a neighbor’s house for help. He identified Russell, who was well known to the family, as the killer.
Russell was arrested on the following Monday morning at a construction job south of Atlanta. He quickly confessed to the killings, police said, but he said Camp prompted the violence by first hitting him with a walking stick.
Russell’s arrest may have temporarily saved his life. In the small town of Smyrna, connected by streetcar to the larger city of Atlanta, the murders sparked white rage. As Russell was being arrested in Atlanta that Monday morning, a mob of five hundred people, some of them armed, were searching for him in the woods near the Camp farmhouse. The mob stopped passing automobiles and streetcars, looking for Russell.4
Russell’s arrest did not placate the mob. For the next two nights, whites were on the rampage. They burned the Bethel Elementary School to the ground. Some seventy-five black students attended the county-operated school, which had two teachers. The mob attacked black passengers on the streetcars, flailing them with sticks. For his own safety, Russell was housed in the Fulton County Jail and not immediately transported back to Cobb County. But some rioters vowed to march the twelve miles to Atlanta and seize Russell.
A few years earlier, the mob might well have succeeded. It was near the Cobb County city of Marietta, where Leo Frank was lynched in 1915. But times were changing. State and local authorities would not allow a lynching this time, and even the family of the victims called for an end to the violence and for Russell to be “tried according to law.” The administration of Georgia governor Ed Rivers authorized state troopers to quell the crowd. Using tear gas, troopers and Cobb County policemen arrested dozens of white rioters, most of them in their early twenties.
It appears that it was not Rivers who authorized the use of state troopers in Smyrna, but one of his assistants, Downing Musgrove. Cobb County Superior Court judge J. H. Hawkins wrote Musgrove a letter, dated October 21, thanking him for the troopers. “You acted promptly,” Hawkins wrote. “And that was what was needed to quell the trouble, for our local law enforcement officers would have been unable to handle the situation without the aid furnished us by the state. The situation is now under control.”5
Musgrove, who traveled to Smyrna to meet with Hawkins during the riots, replied that he was glad to help and would send troopers for Russell’s trial if needed.
The Atlanta Daily World, a black newspaper, saw promising signs in how state authorities helped quell the rioting. “This is a new kind of action for Georgia officials in affairs of this kind,” read the newspaper’s editorial, “A Ray of Hope in Smyrna,” published a few days after the rioting subsided. “It displays a stern determination to show proponents of federal antilynching legislation that it is possible to blot out the evil of mob law and its companion, lynching, through purely local action.”
The newspaper did not go so far as saying that no federal antilynching legislation was needed. Still, the Daily World “does not hesitate to commend the state and local officials for this new approach to mob violence,” the editorial read. The message was clear from the African American newspaper: Stay on this track and avoid federal intervention.6
Yet, another article directly beneath “A Ray of Hope in Smyrna” asked a series of larger, more frustrating questions: Why does this mob violence keep happening? Why must the black community at large always suffer punishment when a black person is arrested for random violence against a white person? And why was this still considered normal? Furthermore, why was it not roundly condemned by both blacks and whites? “We have been taught to expect innocent Negroes to be brutalized and terrorized by mobs whenever a crime of this nature is committed and white persons are victims thereof,” stated Daily World writer Jesse O. Thomas. “White supremacy demands that this course be followed.”
If the Japanese or Mussolini’s Blackshirts had committed actions similar to these of the Smyrna mob, if they had burned a two-room schoolhouse and attacked innocent bystanders, preachers throughout the United States would have denounced the action from their pulpits, the Daily World writer said. But when the victims were American blacks, there was silence in the churches. “We have been taught not to expect a whisper from our pulpits,” Thomas said.7
With the mob violence subsiding, prosecutors proce
eded rapidly to ensure that Russell died in the electric chair. On October 18 the Cobb County coroner held an inquest on the killings. Cecil Pauls, the nine-year-old boy who escaped the killings but lost his mother and grandfather, testified from his hospital bed. Russell, whom the boy called Will, had appeared at the house shortly after midnight, knocking on the door, the boy testified. His grandfather had answered and allowed Russell inside the house. Russell told the farmer that he had killed a black man “down at the river” and wanted Camp to come with him to the woods. Camp returned a few minutes later and asked his daughter, Christine Pauls, for a quarter, saying it was for Russell. Camp left the house with the money and never returned. Russell returned to the farmhouse alone.
“We asked him where grandfather was and he said he had sent him over to Mr. Head’s house after some money,” the boy testified. “Mother was sitting by the bed and Will hit her with an axe handle. I don’t know how many times he hit her.”
Russell then struck the boy with the ax handle and stayed at the home until daybreak, rambling about the black man he had killed by the river. After Russell left, Cecil Pauls went to a neighbor’s home for help.8
Russell was clearly delusional. There were never reports of a dead black man by the river.
The coroner’s jury ruled that the deaths of Camp and his daughter were the result of an ax handle in the hands of Willie Russell.
A grand jury indicted Russell on November 8, charging that he committed murder with “a certain hickory stick, 36½ inches long and being an ax handle for a double-bladed ax.”9
The trial was held on Monday, November 14, less than a month after the crime. Russell was represented by two court-appointed attorneys, J. Guy Roberts and Gordon Combs. Security was tight, with twenty state and local law enforcement officers on hand. Russell was silent during the trial, his wife sitting next to him. He made a brief statement to the jury, saying he was too drunk at the time of the killings to remember what happened. He also could not understand why he would have gone to work that Monday morning on a construction job if he had just killed two people a few hours earlier.10
Without Mercy: The Stunning True Story of Race, Crime, and Corruption in the Deep South Page 10
