He Calls Me by Lightning

by S Jonathan Bass

  For years, participants in the monthly meetings of Birmingham Council on Human Relations listened to speakers encourage the group to do more than just write letters and make pious statements. During the civil rights era, as Walbert described it, several black leaders were urging them to become “active and overt” agents of change. In 1965, at the beginning of the Selma voting rights campaign, Hosea Williams of the SCLC spoke to the group and urged them to “take some warm bodies” down to Selma and “show that you care.” When he finished speaking, Walbert said, “How would it be if some white people went to Selma to let the world know that those people who are trying to prevent American citizens the right and privilege to register and vote did not speak for all the white people in Alabama?” The boldness of her pronouncement thrilled Williams, but not everyone in the group supported the idea, and the Birmingham Council formed the CWCA.

  From its beginnings, Walbert and the other members were deeply concerned with the struggles of Caliph Washington. Walbert, with her deep opposition to the death penalty, learned of his case months before and wrote Governor George Wallace pleading for the condemned man’s life. In 1965, she brought the case to the CWCA’s attention. At a meeting on July 10, 1965, members took note of Washington’s move from Kilby Prison to the Jefferson County Jail in Bessemer. “We will investigate,” one person said. By the fall, the group was circulating materials on behalf of Caliph Washington. “We need your help!” Eileen Walbert wrote. In the “interest of justice,” the group reviewed the case and raised a small amount of money, which they sent to Orzell Billingsley and David Hood as defense lawyers, “whom we consider interested, just, and trustworthy.” CWCA members believed that having a legal defense fund “at our disposal” was imperative in handling immediate and future legal expenses in the Washington case. For CWCA members, the most urgent goal was to see Caliph released on bond while awaiting the Fifth Circuit’s decision in the state’s appeal. Billingsley explained that it would cost at least $1,000 for the bail application, and defending Washington in a future criminal trial would cost over $5,000. Walbert and the others, however, remained undaunted. By November, the group raised $406 for Washington’s legal defense, which they sent to Billingsley and Hood with the mandate to “get Caliph out of jail” while he awaited a new trial in Bessemer.

  The lawyers, however, saw no hope in getting Washington released on bail pending a new trial, but they did believe the Fifth Circuit Court of Appeals might provide some relief while that court considered the state’s appeal. On December 3, 1965, exactly a year after Judge Johnson stayed Washington’s execution, Billingsley filed an application for bail pending review to the Fifth Circuit. He argued that Caliph’s imprisonment, without bond, was a violation of the Eighth Amendment, the equal protection and due process clauses of the Fourteenth Amendment, and the Federal Rules of Criminal Procedure. “Appellee [Washington] moves the court,” Billingsley wrote, “for an order admitting him to bail pending final determination” of the state’s appeal of Judge Johnson’s order.

  Court clerk Edward Wadsworth informed Billingsley and the other lawyers that judges Elbert P. Tuttle, Joseph C. Hutcheson, and Walter P. Gewin would review Washington’s bail application “without oral argument on or about” December 16, 1965. “This is only the date on which it is now expected that the matter will be forwarded for ruling,” Wadsworth explained, “and does not mean that this office will be able to advise counsel of the court’s action by then.” With the holidays fast approaching, it was doubtful the court ruling would come until early 1966—leaving Caliph to spend his ninth Christmas in jail.

  Nonetheless, Washington’s small band of supporters remained steadfast and continued to press forward. On December 13, 1965, the group held a benefit and fundraiser for him at the home of Dr. Abraham Siegel, a pathologist at the Medical College of Alabama (later the University of Alabama School of Medicine) in Birmingham and a civil rights advocate. Two years earlier, following the racially motivated bombing of the Sixteenth Street Baptist Church and the death of four little girls, Siegel ripped down a whites’ only sign near his office. “In view of recent events in our city which took the lives of innocent children,” he wrote at the time, “signs such as these constantly remind me of the effect of my failure as a citizen, and the failure of this institution of higher learning, to exert a constructive influence in our community.”

  At the Caliph Washington fundraiser, Reverend Joseph Ellwanger of the CWCA and Julian Hall of the NAACP made passionate appeals for monetary support from the small gathering. “I made it clear,” Hall wrote the next day, the “financial situation” and the “significance of this case” in the arena of civil rights law. “What is needed now is as much exposure in Birmingham before as many friends . . . of the NAACP as possible. There is no doubt that the Alabama State Conference of the NAACP is making itself heard” through the Washington case.

  With this fundraiser, Washington’s supporters raised $1,500 for his legal defense. For the first time, Caliph, the indigent defendant, had some money to gain better representation to the state and federal court systems. On December 27, Erskine Smith wrote Orzell Billingsley to make certain that the names of all the lawyers in the federal appeals case were entered in circuit court in Bessemer “for the possible trial of the case on reprosecution.” Smith, who recognized that Billingsley would “carry the bulk of the defense” of Washington, wanted to determine under what order and authority Caliph was being held: Was it under the original indictment, a new indictment, or a warrant? When would the tentative trial take place? Who would be the judge? Smith hoped to get a head start on the legal paperwork in order to make a quick application for bond or file another writ of habeas corpus in circuit court in Bessemer. Smith seemed to hold out little hope that Caliph would be granted bail from the federal appeals court.

  AS 1965 CLOSED, Caliph, his family, and his friends had mixed emotions. A federal judge spared his life and later ordered his release from Kilby Prison, but he was rearrested and returned to Bessemer—back to where it all began in 1957. The Civil Rights Act of 1964 put an end to racial segregation in public places, but not behind the jailhouse doors, where Washington remained in the Jefferson County Jail—still operating under the old racial order, just like all the other prisons and jails in the South. Outside his cell, poor but proud southern black folks, just like Caliph, moved at lightning speed toward achieving racial equality. These were the key players in the movement—taking strides toward freedom, marching in the streets for justice, and pressing on toward the prize of civil rights. “Those people keep a moving,” a prison song writer once wrote, “and that’s what tortures me.” It was the fierce, evangelistic “urgency of now” that motivated blacks to keep moving, Martin Luther King, Jr., explained in Why We Can’t Wait. Caliph Washington, however, had no choice but to sit, wait, pray, and hope.

  The new year brought disappointing news. Caliph Washington received notice that the Fifth Circuit judges had denied his application for bail, without any clear explanation. After reading the ruling, a frustrated Orzell Billingsley wrote, “We have not decided our next step at this time.” Washington’s lawyers seemed convinced that Bessemer was holding Caliph illegally. The three-judge panel, however, ordered that the appeal of Frank Johnson’s habeas corpus ruling be expedited and placed on the calendar for “hearing at the earliest practicable date.” Nonetheless, few things moved fast in the overworked Fifth Circuit, and Washington’s accelerated case would be heard on Monday, April 18, 1966, in New Orleans before judges Warren L. Jones (Florida), Walter P. Gewin (Alabama), and Edwin F. Hunter (Louisiana).

  Individually, these three, like other judges in the Fifth Circuit, were increasingly sympathetic to the rights of blacks. “These judges were a mixed bag,” one observer concluded, “No obvious common factor accounted for their support for equal rights.” Edwin Hunter saw himself as a “conscientious jurist with a sense of fair play” and respect for the Supreme Court’s decisions. In 1962 he was the first federal judge
to use the Civil Rights Act of 1960 to break through a “pattern of discrimination” by registering black voters himself. Court watchers considered Warren Jones an enigmatic figure who managed to bridge the liberal and conservative factions in the Fifth Circuit. “Neither an avowed segregationist nor a result-oriented activist,” one writer noted, he believed in the effectiveness of the judicial process and the importance of abiding by the doctrine of stare decisis (“to stand by things decided).” In 1963 he quipped that the Fifth Circuit was spending most of its time “putting Negroes in schools and governors in jail.”

  The lone Alabamian and the only Democrat on the panel, fifty-eight-year-old Walter Pettus Gewin, was appointed to the Fifth Circuit by President John Kennedy in 1961. At the beginning of his judicial career, he was often described as one of “Kennedy’s segregationist appointees,” but by 1966, his views were changing. “Gewin was no racist,” a keen observer of the Fifth Circuit wrote, “but it took time for him to develop a sensitivity to the injustice of racial discrimination.” Chuck Morgan, Erskine Smith, and the other attorneys seemed pleased with the makeup of the three-judge panel.

  Erskine Smith agreed to argue on behalf of Caliph Washington and in support of Frank Johnson’s ruling, while assistant attorney general David Clark would represent Holman and the state of Alabama in opposing his decision. In a broad constitutional sense, the appeals court would consider only two issues from Frank Johnson’s habeas corpus ruling: the prosecution’s use of Washington’s apparent “confessions” obtained without the presence of an attorney, and the use of Furman Jones’s testimony from a previous trial without laying the proper predicate.

  David Clark argued that Johnson erred in finding the conviction unconstitutional because the use of Washington’s confessions made without counsel did not violate his right to obtain the assistance of an attorney. The assistant attorney general added that Johnson was wrong in his retroactive application of the Escobedo decision to a case tried five years before. In addition, Clark contended that prosecutors laid the proper predicate for the admission into evidence of Furman Jones’s testimony from the previous trial. “Therefore,” he added, “petitioner’s constitutional right to confrontation and cross-examination of the witness against him was not violated.”

  In response, Smith criticized Clark for providing an incomplete record to the court in the state’s brief, which should disqualify the appellant from “arguing his first speculation of error.” Clark was intentional in his effort to omit any reference to the facts from the original trial transcript that proved that police violated Washington’s constitutional rights. The record showed that the arrest warrant for Caliph Washington was issued on July 15, 1957; the defendant was arrested on July 14, and counsel was appointed on September 23. “Therefore, the defendant was without counsel of any sort,” Smith continued, “for a period exceeding two months during which time the alleged confession was made.”

  As Fred Blanton contended months before, Smith argued that the Escobedo case was “remarkably similar to the facts” in the Caliph Washington case except that the uneducated defendant was just seventeen years old and “sufficiently uninformed of his rights” to request counsel. Danny Escobedo was twenty-two and retained counsel prior to questioning and asked for his attorney during interrogation. The entire process violated Washington’s rights as outlined in the Fifth and Sixth Amendments, Smith added; his client was an “ignorant and poor” individual who was forced to give an involuntary confession. The attorney also argued that even the law enforcement officers in Bessemer, who arrested and questioned Washington, received “formal and practical training in the methods and techniques of interrogation” and should have known to have a lawyer present. In private, Smith speculated that the only reason the state appealed Johnson’s decision to the Fifth Circuit was to “clarify the Escobedo doctrine,” which the U.S. Supreme Court was expected to do soon.

  Next, Smith turned his attention to the testimony of Furman Jones. The basic constitutional right of a defendant to confront and cross-examine an accuser in criminal cases was guaranteed to all citizens of the United States. Caliph Washington’s prosecutors, Smith argued, made no real effort to locate Jones and had no justification for his absence from the second trial. If the state was allowed to introduce testimony from a previous trial, he added, then “prosecution becomes a lazy occupation” that deprives cross-examination and the opportunity to observe the witness’s demeanor and attitude. Depriving a defendant of this basic right could cost him his freedom and life. “Therefore,” Smith continued, “the prosecution should be held to the highest degree of compliance with laying a proper predicate of an adequate reason for the absence of the witness that would permit the introduction of testimony on the previous trial.”

  In his summary conclusion, Erskine Smith emphasized that Judge Johnson’s granting of the writ of habeas corpus was proper because Caliph Washington was being “unlawfully held” based on a flawed conviction in which the Bessemer prosecutor used an involuntary confession (obtained while the defendant was without counsel) and the testimony of a witness from the previous trial (without first laying the proper predicate). Now it was up to the judges to agree with Johnson’s ruling or overturn his decision and send Caliph Washington back to death row.

  Erskine Smith returned to Birmingham to await the judge’s decision. Upon reflection, the attorney believed that the three judges were sympathetic to the argument that no proper predicate was laid for introducing Furman Jones’s testimony. In addition, Smith thought the judges were of the opinion that Caliph Washington, because of his age and race, “fit neatly” into the Escobedo decision. “I certainly have been encouraged that we will receive a favorable result in this case,” Smith wrote Chuck Morgan on April 20, 1966.

  But nothing ever seemed to come swiftly, clearly, or favorably in Caliph Washington’s legal trials. The three judges released their decision on August 8, 1966—over three months after the oral arguments. Judge Walter Gewin wrote the opinion of the court. Following a brief review of the facts of the case, Gewin turned his attention to the confession in the context of the Escobedo decision. Since Frank Johnson’s ruling and Erskine Smith’s oral arguments, the U.S. Supreme Court clarified and reaffirmed Escobedo (and what Gewin called the “problem of self-incrimination”) in the Miranda v. Arizona decision of June 13, 1966. Writing the majority opinion, Chief Justice Earl Warren outlined principles for police to follow during a “custodial interrogation” of a person. The decision required that prior to any questioning, the suspect must be advised by law enforcement officials that he or she had the right to remain silent and that anything the person said might be used against him or her; the suspect had a right to an attorney, either hired or appointed. The individual could also waive these rights “voluntarily, knowingly, and intelligently.” At any point during the questioning, however, the suspect could halt the process and ask for an attorney. Answering some questions or volunteering a few statements never deprived the suspect the right to “refrain from answering any further inquiries” until he or she consulted with an attorney. In addition, if he or she was alone and expressed an unwillingness to answer questions, the police had no right to question the individual.

  As applied to Caliph Washington’s case, Judge Gewin concluded that Miranda and Escobedo supported Johnson’s conclusion that the confession was inadmissible, but the principles in those cases were “limited in their application.” Gewin pointed to the Supreme Court’s Johnson v. New Jersey decision of June 20, 1966, which prohibited “us from applying the principles of Escobedo and Miranda in judging” whether Washington’s confession was admissible. The high court held that the two cases were applicable, particularly on this issue, only to subsequent court decisions and could not be retroactively applied to earlier cases. “We must reverse the finding of the District Court that the confession was inadmissible under the standards of Escobedo,” Gewin concluded.

  Nonetheless, in a curious turn, Gewin touched upon the “voluntar
y nature” of Caliph Washington’s confession. Eighteen months before, at the February 8, 1965, pretrial hearing for Washington v. Holman, both sides agreed to allow Judge Johnson to “inquire into petitioner’s allegedly unconstitutional detention” by examining four points: (1) cruel and unusual punishment in the granting of thirteen reprieves, (2) lack of counsel at Washington’s apparent confessions, (3) the right of submitting testimony from a previous trial without cross-examination, and (4) violation of due process by the use of involuntary confessions. Johnson ruled on the constitutional issues in points two and three but ignored points one and four. Now, on appeal, Judge Gewin opined that Johnson’s decision did not prevent Washington from “invoking the safeguards” in Escobedo as part of an “involuntariness claim” as a violation of due process.

  The argument was even stronger now that the Supreme Court provided guidance on “what due process required.” But that was as far as Gewin dared to go on this issue. “We make no decision regarding issue number four,” he added. “That question has not been presented to us for determination.” Yet Gewin emphasized that the record showed that the jury was present during the trial judge’s evidence hearing on the admissibility of the confession. “In light of Jackson v. Demo,” the judge added, “in which the Court held that voluntariness must be determined in a proceeding separate and apart from the jury, the petitioner’s claim may have merit.” Fred Blanton emphasized this point in his brief submitted to Judge Johnson on April 1, 1965, but it was too late to help Caliph Washington before the Fifth Circuit Court of Appeals.