He Calls Me by Lightning

by S Jonathan Bass

  This was the dogged persistence of what journalist W. J. Cash called the “savage ideal” in the South—defined as a widespread orthodox conformity on issues that appeared to challenge the status quo (especially those related to race) and a uniform hostility to criticism, dissent, change, or even compromise. Although Cash wrote The Mind of the South in the 1930s and published it in 1941, the “savage ideal,” as journalist Edwin M. Yoder argued in 1965, remained unchanged. “The race picture,” he wrote, “though increasingly subject to federal legal pressure, is mostly as Cash saw it—status politics still intact. The South is still given, more than any single identifiable region, to unholy repression of wrong thinking.” And as Jess Lanier once said, “That’s the way it is in politics. There ain’t no damn time for fence-straddling.”

  19

  “HE STILL AIN’T DEAD”

  Attorneys David Hood (left) and Orzell Billingsley (center) consult with Caliph Washington at the beginning of the 1970 trial.

  IN BESSEMER, FEW people were fence-sitters when it came to Caliph Washington’s guilt or innocence, and Washington’s lawyers hoped that the racial and gender makeup of the jury would bring a “not guilty” verdict. The trial began with high expectations. Following opening remarks by Harry Pickens and Orzell Billingsley, Judge Ed Ball asked the district attorney to call his first witness. It was Furman Jones. For the first time since the 1957 trial, Jones, the prosecution’s star witness, stood and walked to the front of the courtroom. With Jones having missed the 1959 trial, Bessemer officials made certain that he would testify this time. Two days before, Police Chief George Barron flew to South Carolina and brought him back.

  Once Jones was sworn in, Pickens asked him to recount the first time he saw Caliph Washington and his conversations with the defendant on the Greyhound bus bound for Memphis over a dozen years earlier. “He [Caliph] said he had killed a policeman in Alabama,” Jones recalled, “and he was trying to get away.”

  On cross-examination, U. W. Clemon asked Jones to be clear about what Washington told him that day on the bus: “Now, did he tell you that he had killed a policeman, or that he had murdered a policeman?” Jones said, “Killed.” At the time, Washington offered Jones no specifics as to whether the killing was an accident or intentional. “So all you know about this case is that Caliph Washington told you that he killed a policeman and you did not ask where or how and he didn’t tell you why or how?” That was all he knew, Jones testified.

  The defense hoped to keep Jones around for further questioning, but Judge Ball argued that the witness had a civilian job, twelve children, and a sick wife in South Carolina. David Hood pleaded with the judge to keep the witness overnight while the defense presented evidence to contradict his testimony. Standing in front of the judge’s bench, Hood gestured to the motionless Caliph Washington and said, “After all, we have a man here being tried for his life. The life or death of this defendant is at stake.” Ball, however, excused the witness.

  The next witness, former Mississippi highway patrolman J. W. Warren, recounted how he and his partner removed Caliph Washington from the bus and discovered Cowboy Clark’s .38-caliber Smith and Wesson pistol in a brown paper sack near where the defendant was sitting. Pickens introduced into evidence the paper bag and the gun.

  Pickens called Jones and Warren, as out-of-town witnesses, to testify first, which made for a confusing, disjointed beginning to the trial. Orzell Billingsley objected. “We don’t know where Mr. Pickens is going,” he said. The district attorney had not established that a killing or a homicide had occurred. “This could go on and on,” Billingsley added, “and probably never prove a killing.” Judge Ball overruled but said he would reverse himself if Pickens never connected the testimony of Warren and Jones to the killing.

  U. W. Clemon’s cross-examination of Warren revealed a striking generational difference between Clemon and David Hood and Orzell Billingsley. Although courageous in their own ways, the two older black attorneys were accustomed to working within the confines of the old Jim Crow legal system that led to a more genteel and deferential courtroom demeanor when questioning white witnesses. In contrast, Clemon was fearless, aggressive, and confrontational. “He spoke clearly and forcefully,” Jack Drake recalled, “and took no shit” from opposing counsel or witnesses.

  Clemon tried to get Warren to admit to abusing and threatening Caliph Washington. He pressed the lawman to concede that he hit Caliph across the head with the butt of a rifle. Warren said he did not.

  “Before you left Byhalia, Mississippi,” Clemon asked, “isn’t it a fact that you turned on a side street and took Caliph out of the car and started to punch him until a white man came by?”

  Warren said he did not.

  “Did your partner hit him?” the attorney asked.

  “Not to my knowledge,” Warren answered.

  Clemon peppered the witness with questions about his background: Are you a member of the Ku Klux Klan? Are you a member of the White Citizens’ Council? Have you ever killed a black person in the line of duty?

  Warren responded no to each question.

  On into the afternoon, the prosecution called two more witnesses: former Bank Pawn Shop employee M. F. Karr, who explained how he sold the .38 to Cowboy Clark, and retired Lipscomb police chief Thurman Avery, who recalled the bootlegger stakeout the night Clark died. After Judge Ball adjourned for the evening, the twelve-member jury was “locked up” at the Holiday Inn on the Bessemer Super Highway. That first day brought no real drama. The trial seemed scripted and artificial. “That’s what happens when you retry a case,” Jack Drake recalled. The witnesses seemed to have memorized word for word the transcript from the earlier trials. “Everyone did what the prosecutor wanted them to do,” Drake added.

  WHEN THE TRIAL resumed, another packed courtroom of spectators listened to witnesses describe the death of Cowboy Clark in graphic detail. On this second day of testimony, the first witness was James “Jimmy” Thompson, the former deputy coroner, who explained to the court the autopsy procedure and the type of wound Clark received. The prosecutor showed Thompson a series of photographs of Clark’s dead body and asked him if they “reasonably and adequately” portrayed the wound—once the witness identified the photos, they were submitted as evidence and shown to the jury. This brought a strenuous objection from Clemon. The prosecution was using the graphic pictures, the attorney emphasized, to shock and “arouse the prejudice of the jury.” Judge Ball allowed one of the pictures to show proof of Clark’s death and the location of the bullet wound. “I don’t think there is any need to put four or five pictures in evidence,” Ball said. “The fact that one shows the wound is sufficient.”

  On cross-examination, David Hood carefully attacked Thompson’s credibility as an expert in forensic sciences. Thompson, who was, at the time of the 1970 trial, an employee at the Continental Can Company in Fairfield, admitted that he had no college degree or any special training in forensic sciences to determine the cause of death of Cowboy Clark or any other human being. Thompson apparently received the job of deputy coroner for the Cutoff because his father was the politically powerful Bessemer commissioner of public safety, Herman Thompson.

  During the autopsy, Thompson assisted pathologist Dr. L. H. Kwong, who once again testified that the sole cause of Clark’s death was from a bullet wound, which caused uncontrollable bleeding inside the abdominal cavity. “Nobody can live with a massive hemorrhage like that plus the shock he sustained,” Kwong added. He explained that the bullet entered Clark’s body at a strange angle and that he removed it from the deceased’s spine.

  The state toxicologist Carl Rehling discussed the ballistics tests he made on the gun and the bullet almost thirteen years before. While questioning the toxicologist on cross-examination, David Hood was holding the gun in the direction of the judge’s bench. Ball interrupted and said, “Would you please open that gun. I don’t like it pointed at me like that.” Hood apologized and complied. The attorney tried to determine if th
e ballistics tests would reveal whether the pistol was fired accidentally or intentionally. “I have no idea,” Rehling answered. Nonetheless, he later emphasized that the gun was not fired while in a “personal contact struggle” between the two individuals, because of the lack of powder residue on Clark’s shirt.

  But the defense lawyers, as in the previous two trials, tried to show that the lack of powder burns on the shirt did not prove that the defendant grabbed the gun, backed away, and fired at Cowboy Clark—a key argument in the prosecutor’s case. Hood contended that powder deposits could be easily dislodged by bleeding, rough handling, or improper shipping. Rehling agreed that this might have happened to Clark’s shirt. However, Clark’s shirt was lost during the appeals process and never found.

  Following Rehling’s testimony, the prosecution called to the stand several sheriff’s deputies from the Cutoff and police officers from the city of Bessemer to recall the night Clark died, the capture of Caliph Washington, and the suspect’s alleged confessions. Deputy Sheriff Walter Dean explained how he wrote down Caliph Washington’s confession—a key piece of evidence in the state’s prosecution. Vast changes had occurred in American law since 1957, and U. W. Clemon wanted to discuss those in front of the court. In response, Judge Ball sent the jury out of the courtroom, while the lawyers debated the points of law.

  What Clemon hoped to show was that the atmosphere and environment in which Caliph made his statement was, as Justice Earl Warren wrote in the Miranda decision, “inherently intimidating” and worked to undermine the Fifth Amendment’s prohibition on self-incrimination. In the presence of the jury, Dean claimed to have told Caliph he didn’t have to make a statement if he didn’t want to and that if he did talk, his words could be used against him in a criminal proceeding. Regardless, Dean admitted that he never told Caliph he had the right to consult a lawyer, or that he could stop talking during the interrogation, or that he could call his family. Clemon showed how intimidating it was for a young black suspect to be surrounded by five white lawmen. “Isn’t it a fact, Mr. Dean,” the attorney asked, “that you told Reverend Washington on that occasion, that you would kill him and that his head would look like a tomato if he didn’t give you a statement?” Dean strongly denied the accusation.

  Clemon also asked if the witness was familiar with the general atmosphere prevailing in the county at the time Caliph Washington was interrogated. Pickens, however, objected on the grounds that the question was “irrelevant, incompetent, and immaterial.” Clemon argued that the basis for asking the question was to determine the “voluntariness” of the confession. “The Supreme Court and all the other courts say that where there is a general atmosphere conducive to . . . coercion, to have a confession made under those conditions does have a bearing as to whether or not the confession was voluntary.” Ball overruled Pickens’s objection and compelled the witness to answer. “At the time I took this confession,” Dean answered, “and during that day prior to the taking of the confession, there was not to my knowledge any bad atmosphere concerning this case.”

  A few hours before Dean wrote down Washington’s statement in Alabama, the suspect allegedly made an oral confession after his arrest in Mississippi to Bessemer police detective Lawton “Stud” Grimes. According to Grimes, Caliph said that while Clark was leading him to the patrol car after the arrest in that dark Bessemer alley, he grabbed the officer’s gun, stepped back, and fired two or three times.

  On cross-examination, Orzell Billingsley asked Grimes if he warned Caliph Washington about his right to remain silent or his right to an attorney. “I didn’t tell him nothing,” Grimes responded. “I told him he didn’t have to answer my questions if he didn’t want to.” Billingsley then asked Grimes why he pressured Washington into making a statement.

  GRIMES: “I wanted to know.”

  BILLINGSLEY: “Why?”

  GRIMES: “I wanted to know why he killed that officer.”

  BILLINGSLEY: “That is what you wanted to know?”

  GRIMES: “Yes.”

  BILLINGSLEY: “You couldn’t wait until you got back to Bessemer to find out?”

  GRIMES: “I didn’t intend to.”

  BILLINGSLEY: “You didn’t intend to wait? Why didn’t you have this statement put in writing?”

  GRIMES: “I didn’t have time.”

  BILLINGSLEY: “What was your rush?”

  GRIMES: “Wasn’t no rush. I wasn’t going to write it down.”

  BILLINGSLEY: “Well, how then do you remember it?”

  GRIMES: “I just remember. I got a mind like anybody else.”

  When Grimes admitted that he did not remember testifying in the second Washington trial in 1959, Billingsley wanted to know why the witness could recollect vividly what Caliph said back in the summer of 1957 on a roadside in Mississippi, but he unable to recall his more recent testimony. What else had Grimes forgotten? The lawyer inquired.

  BILLINGLSEY: “Didn’t you beat Reverend Washington on the way from Mississippi to Bessemer?”

  GRIMES: “I never laid a hand on him.”

  BILLINGSLEY: “Didn’t you kill somebody you thought was Caliph Washington?”

  GRIMES: “No.”

  BILLINGSLEY: “Didn’t you tell Reverend Washington on his way back from Mississippi that you had his mother and father in jail and that he needed to talk before they could get out?”

  GRIMES: “No.”

  BILLINGSLEY: “Is it not true that in Adamsville there were some hogs and chickens killed while you were out there?”

  Before Grimes answered, Pickens objected and Ball sustained. When Billingsley asked who authorized Grimes to follow him and David Hood during the first trial, Pickens again objected and the judge sustained. “I want to say to this court,” Billingsley continued, “that they say this confession was voluntary, but this officer [Grimes] followed the black lawyers in the trial all during the week to their homes and offices and wherever they went, and if he intimidated these lawyers in this matter, what do you think he did to this defendant?”

  Judge Ball reiterated his sustain of the objection and added, “Mr. Billingsley, I don’t want to argue with you.” He then turned to the jury and told them not to consider the lawyer’s statement.

  With the jury out of the room, lawyer Clemon asked the judge to strike the statement made by Grimes on the grounds that it violated the defendant’s rights, was taken without regard to the Fifth and Sixth Amendments to the Constitution, and went against the Supreme Court’s Miranda and Escobedo decisions. Judge Ball, however, argued that the Miranda decision was applicable only for trials starting after June 13, 1966. The Caliph Washington trial, Ball countered, began on October 8, 1957, “many years before these cases were decided.” Clemon, however, insisted that the trial began on April 6, 1970: “This is a new trial.” His honor disagreed. “These proceedings began in October 1957, and this is not a new trial. This is a retrial of the same case.”

  On day three of the trial, prosecutor Harry Pickens called several witnesses who once lived in the old Thompson Town neighborhood near the crime scene. Each testified as to what they saw the evening of the shooting of Cowboy Clark. Mary Howard said she had trouble sleeping that evening. “I couldn’t rest,” she recalled, so she sat on the edge of her bed and was looking out the window when she saw cars approaching. At first, she didn’t think much of it, because cars routinely sped down the narrow dirt road several times during the night, but when she saw the red light on top of the cars, she said, “That’s the police and they got somebody.” She woke her daughter, Ada Mae Howard, to come look, and that’s when they realized that the car being chased belonged to Doug Washington. “Yes, look,” Ada Mae said, “that’s Caliph in that car.” A few moments later, they heard a shot fired.

  John Adams died since the last trial, but his onetime live-in girlfriend, sixty-eight-year-old Mary Davidson, returned to give her account of what happened that night in front of her house. When district attorney Pickens called her Mary, Orzell Billingsl
ey objected to the prosecutor referring to her by her first name. The state should address black witnesses with appropriate courtesy titles, he argued. “I am a black person,” he added, “and I really resent it, and I don’t think it would put a member of the white race on the spot if they would call her by her proper name.” Pickens agreed and referred to her as Mrs. Davidson (although she was unmarried). She testified that she saw Caliph with the gun and that he was about twelve feet away when he fired the fatal bullet. In the previous trial, she claimed she never saw the actual shooting but just heard the gunfire. “That was all I knowed,” she said in 1957. But now she claimed that “Caliph stood there and the policeman come over and then he turned around and was going back toward his car, and the next thing I know Caliph walked out with the gun and I heard it fire. . . . I know he fired it. I didn’t see no scuffling or nothing.” She said Washington then fled into the night.

  The suspect ended up at Elijah Honeycutt’s house. Honeycutt returned to testify that Caliph Washington knocked on his door and asked for a ride. “He said he wanted to see a girlfriend,” Honeycutt said. “You know how soldiers do when they come home.” He drove Washington into western Birmingham and let him out of the car. Honeycutt recalled that Caliph turned to him and said that he just killed a police officer. “I didn’t believe him, because he didn’t act like he had done such a thing, because he was smiling,” he testified. Honeycutt said to Caliph, “Oh, get off man, you didn’t do anything like that,” and he turned around and drove back to Bessemer. “I didn’t pay any attention to him.” He found out the next day at work that Washington was the suspect in the death of a Lipscomb police officer.

  Following Honeycutt’s testimony and cross-examination, the state rested its case. Tensions were high as Billingsley, Clemon, Hood, and Drake prepared to make a defense of Caliph Washington. Before they could call their first witness, one of the white female jurors, Agalean Kirkland, had an “attack of nerves,” Judge Ball announced, and was replaced with an alternate, Charlie Robinson, a black male. Sitting in the jury box now were seven white women, four black men, and one black woman. They watched and listened as Clemon called the first witness in defense of Caliph Washington.