He Calls Me by Lightning

by S Jonathan Bass

  The other question the judges considered was whether a proper predicate was laid before the state introduced the transcript of Furman Jones’s testimony, “which was admitted into evidence by the trial court upon the contention by the State that the witness was a nonresident of Alabama and not subject to compulsory process.” In other words, what proof did the prosecutors use to prove Jones’s whereabouts? The only proof, Gewin noted, was the testimony of Jack Brown, a deputy sheriff in Jefferson County, South Carolina, who admitted mailing a subpoena to Jones at his last known address. In the trial, Judge Gardner Goodwyn ruled that Brown’s testimony “constituted proper proof” that the witness resided outside the court’s jurisdiction and was unavailable to testify. Gewin called the evidence “insufficient” and “most inadequate.” The state fell short of exercising due diligence in its search for the witness, the judges believed, and simply indicated the remote possibility that Jones was somewhere “beyond the borders” of Alabama.

  The constitutional guarantees to confront and cross-examine a witness, Gewin emphasized, “cannot be side-stepped because it happens to be convenient for one of the parties.” The U.S. Constitution, the Alabama Constitution, and the case law all provided safeguards for the protection of this fundamental right. In Washington’s case, prior testimony can be admitted as evidence only when it complies with the safeguards and “does no violence” to protected constitutional rights. “The constitutional right of confrontation,” Gewin continued, “could never have any greater meaning than when a person is on trial for his life. . . . In this case the likelihood that such a penalty would be imposed was not remote or highly speculative in view of the fact that Washington had been given the death sentence on his first trial.”

  Judges Gewin, Jones, and Hunter affirmed Frank Johnson’s conclusion that prosecutors never laid a proper predicate before Furman Jones’s testimony from the previous trial was admitted as evidence. “Thus, petitioner [Caliph Washington] was convicted in violation of the Sixth and Fourteenth Amendments,” they concluded. The judges had both overturned and upheld parts of Johnson’s legal reasoning, but in the end, the writ of habeas corpus remained intact, and the verdict in Washington’s second trial was still overturned. The decision of the Fifth Circuit made little difference to Caliph Washington. He would not return to Kilby Prison, but he remained confined to the county jail in Bessemer, awaiting a third trial.

  The court’s “favorable decision” pleased Erskine Smith. He hoped, however, that the state might decide against an appeal to the U.S. Supreme Court so that he could provide Caliph Washington with legal assistance in Jefferson County courts. To that end, he asked Chuck Morgan to contact “our mutual friend,” Alabama attorney general Richmond Flowers. “I really do not see any reason for the attorney general to seek a further appeal in this case,” Smith wrote. “Perhaps you can convince him of this.” Flowers, a lame duck by the fall of 1966, finished a distant second to George Wallace’s wife, Lurleen, in the Democratic primary for governor. As a gubernatorial candidate, he actively courted the black vote and was labeled as “soft on the race question.” The New York Times reported that Flowers was the “first major white candidate in modern times to campaign directly among Negroes in the Deep South.” A frequent target of the most rabid segregationists, the tall, red-headed Flowers was spat upon while on the campaign trail and endured threats, a beating, and alienation from friends and family.

  Regardless of whether Morgan influenced Flowers, the attorney general chose not to file an appeal. With this round of legal fighting concluded, Erskine Smith told Orzell Billingsley that he planned to convince Bessemer district attorney James Hammonds to abandon the prosecution of Caliph Washington or, in legal terms, to have the case nolle prossed. “I understand . . . that all witnesses have disappeared or died,” Smith wrote, “including the other police officer, who I understand has now died. Apparently the only witness who could present damaging evidence against Caliph Washington is one Furman Jones whose whereabouts were unknown at the last trial and apparently remain unknown.”

  But for Caliph Washington, nothing came of Smith’s efforts. Bessemer neither abandoned nor tried the case. James Hammonds was so embroiled in scandal that most cases in the Bessemer district attorney’s office were delayed. On the other side, Washington’s lawyers were distracted. They remained much too busy fighting a highly publicized court battle with the state over integrating all prison cells in Alabama to worry about one man, in one cell, in one jail, in one town. So Caliph Washington waited and his anxious mother fretted. Soon, following the decision of the Fifth Circuit, Aslee Washington sent a letter to the U.S. Department of Justice and pleaded for help. She explained that after Judge Johnson ordered her son’s release from Kilby Prison, deputies from Bessemer “picked my son up” and placed him in the county jail. Now the Fifth Circuit upheld Johnson’s decision, yet Caliph Washington remained in jail. She failed to understand. “I am still unable to effect his release,” Eileen Walbert wrote on behalf of Mrs. Washington, “and am writing you for aid and advice in effecting his release for I feel that his civil rights are now and have been continually violated.”

  15

  SINNERS TO CONVERT

  This Birmingham News editorial cartoon depicts the state of Alabama making another stand against integration—this time in the prison system.

  OCCUPYING A CELL near Caliph Washington in the Jefferson County Jail in Bessemer was Gary Gurley, a hard-nosed white man with a fiery temper that belied his last name. Washington and Gurley shared much in common. They grew up near each other in Bessemer, but the laws and customs of segregation kept them worlds apart. In 1957 both were poorly educated seventeen-year-old males accused of violent crimes—Washington for the murder of Cowboy Clark, and Gurley for the robbery of $107.30 from Ralph Keef, the assistant manager at Track Side Service Station in Bessemer. Ironically, they both ended up on the circuit court docket the same day in October 1957—Gurley’s armed robbery case came first, and then Caliph Washington’s for murder. Local juries convicted both men, with Washington sentenced to death and Gurley to over ten years. Both rode the long train to Kilby Prison in Montgomery, where they were housed in segregated cellblocks. Now years later, on a humid summer night in the Jefferson County Jail, the men, who led parallel lives, would meet.

  It was nearing 10 p.m. Four other prisoners, part of a cleanup crew, were returning to their cells. Unbeknownst to guards and other prisoners, the four were planning to break out that night, having spent weeks secretly fashioning and sharpening cell-house knives. Their jailbreak plan was simple. As one journalist later reported, “They’d grab a guard and use him as a hostage in forcing their way to freedom.” The time came, and with lightning quickness one took hold of a guard and held a knife to his throat, as the other men relieved him of his ring of keys. They quickly unlocked all the cell doors. “Let’s go,” another one told the rest of the prisoners. “Everybody that wants to. . . . Let’s go.” Gary Gurley jumped from his bunk and hurried toward freedom.

  He had taken only a few steps, however, when someone with a viselike grip grabbed his arm and spun him around. Caliph Washington glared at Gurley and asked, “Where you going?”

  Gurley responded, “I’m going with them,” as he pointed to the men holding the guard with the knives.

  “You’re not going anywhere, man,” Washington said.

  “Who’s gonna stop me?” Gary asked.

  “Me,” Caliph said as he pushed Gurley back into the cell and slammed him against the metal bunk. At six-foot-one and a solid 190 pounds, Gurley was no featherweight, but Caliph had gained almost sixty pounds since his arrest in 1957, weighing in at over 230 pounds on his five-foot-eight frame. Despite Gurley’s desperate attempts to break free, Washington could not be moved. The others had no choice but to leave Gary Gurley behind.

  The escapees pushed forward with their hostage. When they reached the locked steel door of the cellblock, one of the prisoners yelled to the warden just outside, “Let
us out or we’ll kill this man,” as he pulled the knife tighter against the hostage’s throat.

  The warden, who was sitting at a desk, finishing paperwork, looked up and said, “Go ahead and kill him,” and continued his work.

  His bluff paid off. The prisoners were unwilling to add a murder charge to their rap sheet, especially the killing of a police officer, which could likely result in the death sentence. In the end, the would-be jailbreakers surrendered.

  Back in the cellblock, Caliph Washington looked at Gary Gurley and said, “I told you.” All Gary could do was nod his head in thanks.

  In the succeeding months, Washington and Gurley developed a deep cross-racial friendship, perhaps the first for both men, spending hours talking. Washington shared his faith in God, and Gurley had a jail cell conversion. When Gurley received probation, Caliph Washington stayed behind, but Gurley was a changed man. “He’s a neat dresser, handsome, and an accomplished speaker,” one observer later noted. He took a job as an upholsterer and spent his free time talking to young people about his experiences in the hope of keeping them from following his path. “He’ll do anything he can,” a journalist wrote, “to keep it from happening to other youngsters.” Whenever he shared his faith and experiences, he always told about Caliph Washington. “He’s the reason I’m on the outside now,” Gurley said a few years later, “and I want to help all the people I can. He saved my life.”

  Washington’s impact on Gurley almost did not happen; it was just providence that allowed their close proximity. Even as late as 1966 and 1967, state laws mandated racial separation of prisoners in Alabama and most other southern states. It was Jim Crow’s last legally enforced stronghold. The ACLU’s Chuck Morgan wanted to change that with the unwitting help of Caliph Washington. The state of Alabama, as it had throughout the civil rights era, would fight the change and make one last stand to preserve the final place where it remained legal to segregate by race and the last place almost no one cared about integrating.

  For decades, Morgan spoke of his hatred for all prisons and jails, but in the Deep South, he believed, they were worse. Morgan loathed the “clanging of metal doors, the jangle of five-inch-long door keys, the grating sound of scraping metal chairs and cups and trays, the filtered voices over speaker systems through slits in metal doors, and the clanging of the bells.” So Morgan and Orzell Billingsley began drinking whiskey and plotting a legal assault on racial segregation in jails and prisons. Billingsley knew the perfect client to lead a class action suit: Caliph Washington.

  Billingsley also suggested another black client for the lawsuit, Johnnie (“Big Time”) Coleman, who was also awaiting a new trial after an all-white jury sentenced him to death for the murder of a white mechanic, John D. “Screwdriver” Johnson. On appeal, Billingsley argued before the Alabama Supreme Court that Coleman’s conviction should be overturned and the defendant granted a new trial because of the systematic exclusion of blacks on the grand and petit juries in Greene County. The judges, however, disagreed. “No sufficient proof having been produced at the hearing on the motion for a new trial,” wrote Judge Robert Simpson, “or at any other state of the proceedings, it is clear appellant may not now complain. Therefore, we are left under no doubt that appellant’s point on systematic exclusion of Negroes from the jury rolls in Greene County is not well taken.” Nonetheless, Billingsley appealed the case to the Supreme Court, and the justices ruled unanimously that Coleman was “entitled to have his day in court on his allegations of systematic exclusion of Negroes from the grand and petit juries sitting in his case.”

  While “Big Time” Coleman and Caliph Washington awaited new trials, they joined the prison-integration lawsuit, along with two staffers from the SCLC, Hosea Williams and Thomas Houck, Jr. In January 1966, Birmingham police arrested Williams (black) and Houck (white) for leading voting rights demonstrations in the city streets. At the time, Orzell Billingsley was skeptical of an attempt to replicate the highly successful 1963 marches and pronounced that a “campaign to get blacks to apply to register would be far more likely to produce the desired results than marches in the streets.” But now the duo served a useful purpose, allowing Billingsley and Morgan to add two plaintiffs who were confined in segregated cells in arguably the country’s most famous lockup, the Birmingham Jail—where Jimmie Tarlton wrote his famous folk ballad and Martin Luther King began composing the most important written document of the era, the “Letter from Birmingham Jail.” To round out the suit, Morgan also included two minors as plaintiffs, Cecil McCargo, Jr., and Willie Allen.

  Crafting a class action lawsuit that made clever use of the arrangement of the plaintiffs’ and defendants’ names thrilled Chuck Morgan and ensured that the case would be long remembered. The lead plaintiff would be Caliph Washington, and the first defendant listed would be A. Frank Lee, commissioner of corrections for Alabama. The prison integration suit, much to Morgan’s delight, would be styled Washington v. Lee.

  The other defendants in the suit would include all members of Alabama’s board of corrections: John F. Britton, Charlie Cashion, Herschell Luttrell, Max McLaughlin, and William Mitch; Mel Bailey, sheriff of Jefferson County; Robert Austin, warden of the Birmingham Jail; and “all other wardens and jailers of city and town jails of Alabama, jointly and severally, who are similarly situated.”

  The principal defendant was commissioner Abiel Frank Lee, a fifty-eight-year-old, blunt-talking former lawman from Alabama’s Black Belt. The lightning-charged demands of his job kept Lee busy seven days a week—relaxation, vacation, and sleep were rare, but his addiction to sturdy black coffee kept him working, moving, and talking. “He likes conversation,” an acquaintance explained, “and seldom runs out of suggestions and questions on any subject.” Born in Eutaw on February 21, 1909, Lee served twenty years as sheriff of 81 percent black Greene County, a position he inherited from his father, James Frank Lee. “The Lees prided themselves on not needing guns,” one tongue-in-cheek observer wrote. “When they sent word to the wanted, the guilty parties stumbled over each other in the race to run themselves in.” When the younger Lee went to work as a deputy commissioner for the Alabama Department of Corrections in 1954, his brother “Big Bill,” took over the family law enforcement business. “There were lots of grown men with families,” Frank later recalled, “who never knew anybody but a Lee as sheriff.” In Montgomery, Frank Lee and his wife Rosalind lived at 1810 Federal Drive, directly across the street from Kilby Prison—the facility he called unfit for “human habitation.” When he became prison commissioner in 1960, he fought to replace the ancient facility and to modernize the Alabama prison system. “I’ve spent all the time and effort at my command,” he said, “to revamp and renovate the Alabama prison system and abolish the antiquity.” The system was now “on the move,” Lee believed, and this unnecessary lawsuit would hinder that progress.

  On February 18, 1966, Chuck Morgan and Orzell Billingsley filed the official civil action complaint in the U.S. District Court in Montgomery. In legal terms, the complaint was concise and straightforward. They based their argument on “common questions of law and fact” that affected the civil rights of blacks “to be not segregated, classified, designated or otherwise subjected to racial distinctions in confinement” in prisons and jails in Alabama. “Utilizing, enforcing, and maintaining” the “policy, custom, practice, scheme or usage” of racially segregating prisoners violated the due process and equal protection clauses of the Eighth and Fourteenth Amendments. Caliph Washington, Willie Allen, Cecil McCargo, Jr., Thomas E. Houck, Jr., Hosea Williams, and Johnnie Coleman would represent the interests of all of Alabama’s black population, white civil rights workers, and prison inmates, who were “so numerous as to make it impracticable” to bring them before the court. Morgan and Billingsley asked the court to provide “common relief” and issue an order that declared unconstitutional the practice of segregating blacks “or otherwise treating them on a basis different from whites.”

  Specifically, Morgan and B
illingsley were attacking fourteen sections of Title 45 of the Alabama Code of 1940 as recompiled in 1958. The three most relevant sections of the code (121, 122, and 123) mandated that before conviction, male and female, white and black prisoners must be kept “separate and apart.” The state considered the mixing of races and sexes (except married couples) to be unlawful; jailers or other law officers who violated these prohibitions would be fined $50 to $100. The only exception to the law was if the jail facility had an insufficient “number of apartments” to house prisoners separately. The complaint also highlighted other sections of the code that made racial distinctions: the commissioner’s annual report contained the racial designation of convicts (Section 19); the board of commissioners recorded the “complexion” of each convict (Section 30); sheriffs, chiefs of police, and town marshals made monthly reports highlighting each prisoners’ race (Section 177); each county jail or town prison provided “separate compartments” and bath facilities for whites and blacks (Section 183); and white and black prisoners on work crews were never “to be chained together” or allowed to sleep together (Section 52). Whenever practical, in the judgment of the governor and the director, the code specified, “arrangements shall be made for keeping white and colored convicts at separate prisons and they shall not be allowed to be kept at the same place,” a provision that Caliph Washington knew all too well when the state transported black death row inmates back and forth between Kilby and Atmore.

  In the end, the plaintiffs “respectfully prayed” that the court would take the case, appoint a special three-judge court, and issue a temporary restraining order or a preliminary injunction (to be made permanent later) to stop state, county, and local officials from segregating black prisoners and excluding blacks from employment in law enforcement. Morgan and Billingsley asked the court to put the case on the docket quickly and order speedy proceedings. In the complaint, they justified their request in the legalese of personal injury attorneys: “The plaintiffs and others similarly situated and affected on whose behalf this suit is brought are suffering irreparable injury and are threatened with irreparable injury in the future by reason of the acts herein complained of.” After reading the complaint, Judge Frank Johnson notified Elbert P. Tuttle, chief judge of the Fifth Circuit, that the civil action was one required by a congressional act to be “heard and determined by a district court of three judges. On March 21, 1966, Judge Tuttle designated three Alabamians, Richard T. Rives, Seybourn H. Lynne, and Frank Johnson, as the three judges who would “constitute the said court to hear and determine the action.”