He Calls Me by Lightning

by S Jonathan Bass

  We think that this evidence failed to rebut the strong . . . case which the defendant had made. That showing as to the long-continued exclusion of Negroes from jury service, and as to the many Negroes qualified for that service, could not be met by mere generalities.

  In spite of Hughes’s strongly worded decision, Alabama officials, like those in other southern states, continued to find ways to exclude blacks from juries, including the all-white jury that convicted Clarence Norris a third time in 1937 and sentenced him to die in the electric chair at Kilby Prison. The next year Alabama governor Bibb Graves commuted the sentence to life. In 1946, Norris jumped parole, fled the state, and lived under his brother’s name until pardoned by Governor George Wallace in 1976. In response, Norris said, “The lesson to black people, to my children, to everybody, is that you should always fight for your rights, even if it cost you your life. Stand up for your rights, even if it kills you. That’s all that life consists of.”

  Not until the civil rights era in the South did the issue of race-based jury exclusion once again emerge as a key issue in the black quest for equality. It was a tactic of some southern lawyers defending black clients to raise the issue in hopes of gaining a reversal at some higher court—something Caliph Washington’s lawyers did in each of his first three trials. In 1959, the same year as Caliph’s second trial, the Court of Appeals for the Fifth Circuit weighed into the exclusion issue in Goldsby v. Harpole, an appeal by a black Mississippi death row inmate convicted of murdering a white woman. The lower court denied Robert Lee Goldsby’s writ of habeas corpus because the defendant failed to raise the issue in the jury trial and because claims of systematic jury exclusion went unproven by his lawyers. A three-judge panel reversed the ruling. Upon reviewing the statistical disparity between eligible black jurors and those actually on jury rolls, Judge Richard Rives believed that it was the duty of the judges of the Fifth Circuit, which comprised six states of the Deep South, to take “judicial notice” that most lawyers living in the South rarely (“almost to the point of never”) raised the issue of race-based jury exclusion. One writer argued that the Goldsby decision provided the foundation for subsequent Fifth Circuit decisions over race-based jury exclusion.

  In 1962, the Fifth reversed the capital rape conviction of Willie Seals, one of Caliph Washington’s death row prison mates, because of jury exclusion in Mobile County. The court pointed out that 31 percent of the blacks in the county were qualified for jury service, but less than 2 percent were on the jury rolls. “Not only does the respondent fail to come forward with an adequate justification to explain this long-continued, wide discrepancy between the number of qualified Negroes in the County and their representation on the jury rolls,” Judge Rives wrote, “but the evidence is practically conclusive that the method of selection at the time of Seals’ trial and during the preceding years inevitably resulted in systematic exclusion of all but a token number of Negroes from the jury rolls.” The presence of no blacks on the eighteen-man grand jury that indicted Seals, and of only two blacks on the venire of 110 persons from which the petit jury was selected that convicted and sentenced Seals to death, was not a “mere fortuitous accident.”

  Like Caliph Washington, Willie Seals faced challenges in fighting for justice under the Jim Crow legal system. On February 1, 1964, a Mobile jury convicted him again and sentenced him to life in prison, but that was overturned by the Alabama Supreme Court in 1968. On June 22, 1970, Seals’s third trial was scheduled to begin, but the circuit court dismissed the charges when the victim of the alleged attack failed to appear in court. While Caliph still awaited his chance at freedom, Willie Seals walked free.

  In 1965, Robert Swain, another death row inmate, saw his appeal based on jury exclusion receive an unsympathetic hearing before the U.S. Supreme Court. In writing for the majority in the six-to-three decision, Justice Byron White concluded that Swain failed to prove racial exclusion in the jury that tried him and argued that the defendant must provide more evidence to prove such discrimination. Moreover, White emphasized that the defendants in criminal cases were not entitled to demand that the trial jury or jury roles include a proportionate number of their particular race. It was “wholly obvious” to White and the other justices in the majority, including Hugo Black, that Alabama had not totally excluded blacks from either the grand or the petit jury panels in Swain v. Alabama, as was the case thirty years earlier in Norris v. Alabama. “An imperfect system of selection of jury panels,” White wrote, “is not equivalent to purposeful racial discrimination.”

  On the Talladega County grand jury that indicted Swain, five blacks were called as part of the thirty-three-member panel, and two served on the eighteen-man grand jury. Eight blacks were summoned as part of the petit jury venire, but two were excused, and six were struck by the prosecutor. Swain’s attorneys argued that the prosecutor was racially motivated in striking the potential black jurors, and this action violated their client’s constitutional rights. Justice White disagreed. He argued that the fundamental right to challenge and strike jurors was centuries old and needed to be preserved. “To subject the prosecutor’s challenge in any particular case to the demands and traditional standards of the equal protection clause would entail a radical change in the nature and operation of the challenge,” he wrote. Under this revision, the prosecutor’s judgment would be under constant scrutiny and many challenges would be banned.

  The majority opinion brought a passionate dissent from Justice Arthur Goldberg. “I deplore the court’s departure from its holdings in Strauder and Norris,” he wrote. By affirming Swain’s conviction, the court condoned “highly discriminatory procedures” used to exclude blacks from serving on juries in Talladega County. In addition, the court added to the heavy burden of proof required to prove exclusion and created barriers against efforts to end such practices that serve to “nullify the command” of the equal protection clause. Once the justices released their opinions, one critic described the Swain decision as inconsistent with earlier Supreme Court pronouncements and called the Fifth Circuit the “wiser and bolder” court for its ruling in Goldsby.

  As the Swain case worked its way through the court system, Orzell Billingsley, Jr., and Chuck Morgan plotted their own challenge to the jury selection process through a case involving Orzell’s father. Born in 1899, Orzell Billingsley, Sr., was an iron ore miner who spent most of his career working in U.S. Steel Mines located in Wenonah, along Red Mountain, northeast of Bessemer. He was one of the first black men promoted to mine foreman by TCI (U.S. Steel), a position usually reserved for whites, but the pay, however, was still low, and he supplemented his income by selling bootleg whiskey to black folks in southwestern Birmingham. One evening in the early 1960s, as Chuck Morgan told the story, Billingsley was walking on a road near his home when he was hit, and seriously injured, by a car driven by a drunken black man. Orzell Sr. asked the man to pay for his medical expenses, but the driver refused, claiming that he purchased the moonshine from Billingsley and the “injured victim was the real culprit.”

  Lawyer Billingsley helped his father file suit in circuit court. The elder Orzell knew he would face an all-white jury, and the younger Orzell believed that these twelve men would most likely decide in favor of the driver. This pessimism, as Chuck Morgan later wrote, was because most whites believed most any amusing tale, ironic story, or moral lesson that one black man told about another. He added:

  Besides, whites would consider Mr. Billingsley’s injuries less serious than would blacks. That was one effect of white man’s justice. Another was different standards of punishment for crimes: crimes by blacks against whites called for the harshest penalties; whites against whites, lighter sentences; whites against blacks, lighter still; and since, to whites, black lives were worthless, for crimes by blacks against blacks the penalties were wrist slaps.

  A mixed-race jury, Morgan supposed, would see the case in a much different context than twelve white men. Morgan believed that the “rusty and unused” stat
utes that prohibited racial exclusion “slumbered in the law books while tens of thousands of white grand and trial jurors interpreted, judged, and often ended the lives of blacks.”

  Morgan and the younger Billingsley thought the circumstances provided a good opportunity to challenge race-based jury exclusion through a class action lawsuit filed in federal court with Orzell Sr. and local civil rights leaders Abraham Woods, J. S. Phifer, and C. Herbert Oliver serving as plaintiff representatives of the black community in Jefferson County. Their federal civil suit ended up in the courtroom of Judge Harlan Hobart Grooms, a fair-minded jurist who ruled frequently in favor of civil rights. They hoped Grooms would issue an injunction and force Jefferson County to select juries from a fair cross section of the population, which was 29 percent black in the county, and end the practice of exclusion. Although Grooms found a disparity between the percentage of blacks living in Jefferson County and those who actually served as jurors, he nonetheless ruled that the lawyers provided the court with “insufficient evidence to support a finding of improper conduct or constitutional wrongdoing.”

  Billingsley and Morgan appealed Grooms’s decision to the Fifth Circuit in New Orleans, and the case was considered en banc, or before all the judges of the court, which included Elbert Tuttle (chief), John Robert Brown, John Minor Wisdom, Walter P. Gewin, Griffin Bell, William Homer Thornberry, and James Plemon Coleman. Alabamian Walter Gewin would compose the court’s decision released on April 5, 1966. The judge described Billingsley v. Clayton as a jury exclusion case but “not one of the usual type.” Most of these cases brought before the court arose from conviction in a criminal case in which black defendants claimed that the systematic exclusion of blacks from the juries violated their constitutional rights. Nonetheless, the judges would consider many of the same issues, and the lawyers would have upon them the burden of proving that the jury commissioners in Jefferson County intentionally excluded blacks from jury service. If Billingsley and Morgan could do this, Gewin concluded, their client “would be entitled to relief on that ground.”

  The attorneys, however, failed to prove their argument to the court, and in turn, the judges of the Fifth affirmed the lower court decision. Even a sympathetic U.S. Justice Department’s “friend of the court” brief emphasized that the “difficult problem” in the case was that the racial composition of the jury boxes, the “critical link” in the evidence, was missing. “As the record stands,” justice officials concluded, “this Court could conclude that the plaintiff had failed in his proof, since the racial composition of the jury boxes was not proved.”

  And that was what Judge Gewin concluded: “Rather than systematic exclusion (which also embraces token systematic inclusion) of Negroes from the jury rolls of Jefferson County, we are convinced that the record fails to show a lack of good faith on the part of jury officials to obtain qualified negroes for jury service,” he wrote. Echoing the Swain decision, the judge believed that the system had not “worked perfectly in every instance,” but the poison of racism had not entered into the selection process according to the evidence given to the court. “The record reflects a good faith, bona fide effort on the part of the Board to give the Negro citizens of Jefferson County at least an equal, if not a privileged opportunity, to be called for jury service.”

  The judges believed that evidence suggested that a larger percentage of the black community was either uninterested or never seized the opportunity for jury service. “The techniques used by the Jury Board have made the opportunity available,” Gewin wrote. Nonetheless, most of the evidence the judges used in rendering this decision was from the Birmingham Division of the Jefferson County Court. The Bessemer Division was another matter.

  After highlighting the efforts of inclusion by the jury board in Birmingham, Gewin was critical of the process of exclusion by Bessemer officials. He pointed to testimony by Judge Ed Ball, who admitted in open court that racial segregation was common practice in the Bessemer court. Although Bessemer used the same system as Birmingham, few blacks were ever called for service in the Cutoff. When blacks were summoned, Ball seemed to suggest, they were placed on a petit jury that was never called to court. “The record is silent,” Gewin wrote, “as to exactly how such a racial determination is made.” The judge, however, would have found no paper trail of the unwritten rule of jury exclusion in the Cutoff. The record did show that blacks seldom, if ever, sat on juries, petit or grand, in the Bessemer Division. Gewin pointed out that the last black man to serve on a grand jury in Bessemer was almost a decade before, in 1957—ironically, on the panel that indicted Caliph Washington. “We do not approve the situation which the record shows to exist in the Bessemer Division,” he concluded. And although the judges had affirmed the lower court ruling, this did not “preclude the granting of relief” in future court cases in which plaintiffs provided “adequate proof” of race-based jury exclusion.

  Although technically another setback in the legal quest to end exclusion, the Billingsley decision encouraged several offspring cases directed at the Bessemer Cutoff. In 1969, another three-judge panel considered yet another appeal regarding jury exclusion in Bessemer. The judges considering Salary v. Wilson included Emett Choate of Florida and Walter P. Gewin and John Cooper Godbold, both of Alabama. Godbold, who was appointed by President Lyndon Johnson to replace retiring judge Richard Rives on the Fifth, would write the opinion. In it, the judge concluded that the Salary case was the opposite of the Billingsley case. In Billingsley, the lawyers failed to prove charges of racial discrimination in the jury selection process, but in Salary, the attorneys achieved, in the minds of these three judges, the necessary burden of proof.

  The plaintiff’s lawyers (Billingsley and Morgan were not involved) introduced clear statistical information that compared the number of blacks (20,238) and whites (16,158) eligible for jury service in 1967. In contrast, the jury roll that year contained 10,501 whites (87.1 percent) and 1,549 blacks (12.9 percent). The year before, 1966, less than 7 percent of blacks were called. The judges concluded that this made a clear case of racial discrimination and placed the burden on the jury board of “coming forward with a constitutionally acceptable explanation for the racial disparities.” They failed to do so. In Billingsley, the Fifth believed that in Jefferson County overall, the jury board acted in good faith in compiling the jury roll, but that case considered Birmingham and Bessemer together. In examining Bessemer alone, the three judges came to a different conclusion: “Good faith, or lack of an improper motive,” Godbold wrote, “is not a defense to the failure of jury board members to discharge the affirmative constitutional duties cast upon them.” This compelled the judges to remand the case back to Alabama, for the northern district court to issue orders that required Bessemer officials to gather jury rolls that would not exclude blacks. The court would carefully monitor compliance.

  In response, the jury board in Bessemer hired four black canvassers to work the predominantly black neighborhoods to add names to the jury lists. Their door-to-door efforts won the confidence of the community and greatly increased the number of blacks as potential jurors. “I noticed a lot better cooperation by the negro community than we had in the past,” said John C. Wilson, president of the jury board. “Therefore we were able to secure more names.” On August 26, 1969, the jury board refilled the jury box, and the number of blacks jumped from 12.9 percent to an average of 25 percent to 35 percent. In an affidavit filed to the court, Ronnie Barron, an investigator for the district attorney, reported that on April 6, 1970, eighty jurors were present in court (fifty-five white and twenty-five black) and seven whites and five blacks were selected to sit on the case of State of Alabama v. Caliph Washington.

  IN MANY WAYS, during the thirteen years since Washington’s first trial, Bessemer became a different town. Under the leadership of Mayor Jess Lanier, the city participated in major urban renewal projects that saw over 70 percent of the city’s slums, including Caliph’s old home in Thompson Town, torn down and replaced with publ
ic housing. In place of the outdated Bessemer General, a new hospital opened, as did five new schools, three new fire stations, and a new police headquarters. The city’s population grew only slightly (1.1 percent) from to 33,054 to 33,671 between 1960 and 1970, but the percentage of black residents fell from almost 60 percent at the time of Cowboy Clark’s death in 1957 to 52.3 percent in 1970. The decline was due to blacks leaving the city and Mayor Lanier’s annexation of white areas—by the time he left office in 1974, Bessemer’s land mass had tripled in size.

  The city’s white power structure remained unchanged. The colorful mayor Jesse Eugene Lanier continued to dominate local government as the leader of the old-school political machine that ruled Bessemer. While one friend described him as the “Moby Dick of Alabama politics,” other admirers called him “Big Daddy” for the benevolent paternalism he exhibited to his white constituents. Lanier’s detractors, however, labeled him a “small town Huey P. Long,” a crook, and a dictator. “I’m not a crook,” he once said. “When you get into politics you are going to make enemies who want to cut on you.” Lanier had little use for courting the emerging black vote and remained a steadfast segregationist and a George Wallace–supporting states’ rights politician, insulated from the outside realities of a changing South. Journalist John I. Jones from the Birmingham News believed Lanier and the other Bessemer city commissioners (Tom Ashley and Ed Porter) saw the town as a “self-contained entity” that was “geographically sealed off” from the rest of the country. “One senses,” Jones added, “that they feel some sort of monster forever haunts its borders, posing a threat to their pocketbooks, security, and peace of mind.”