by Gilbert King
On April 9, 1951, exactly one month after they had heard arguments in Shepherd v. Florida, the nine Supreme Court justices handed down a per curiam decision—that is, a decision authored by the Court as a whole rather than by a specific judge—and thus were the convictions of Samuel Shepherd and Walter Irvin overturned.
It had been Robert Carter’s argument in regard to Lake County’s grand jury selection process that had afforded the grounds for reversal. Justice Robert Jackson wrote a concurring opinion, in which he was joined by Felix Frankfurter, scorching the roles that Judge Truman Futch, State Attorney Jesse Hunter, Sheriff Willis McCall, and even Mabel Norris Reese of the Mount Dora Topic had played in convictions that “do not meet any civilized conception of due process of law.” Justice Jackson pointed to “prejudicial influences outside the courtroom . . . [that] were brought to bear on this jury with such force that the conclusion is inescapable that these defendants were prejudged as guilty, and the trial was but a legal gesture to register a verdict already dictated by the press and the public opinion which it generated.” So it was, Jackson opined, that “[t]he only chance these Negroes had of acquittal would have been in the courage and decency of some sturdy and forthright white person of sufficient standing to face and live down the odium among his white neighbors that such a vote, if required, would have brought.” In the end, the justice accounted the jury selection issue on which the two convictions were overturned to be of “only theoretical importance.” To characterize aptly Florida’s handling of the Groveland Boys case required, for Justice Jackson, stronger language than that offered by counsel or by the precedent cited in Cassell v. Texas; and in a stinging conclusion, he provided it: “The case presents one of the best examples of one of the worst menaces to American justice. It is on that ground that I would reverse.”
With those two sentences Justice Jackson had indicted the legal establishment and law enforcement offices of Lake County. Reporters scurried for comment from county officials. While Judge Truman Futch refused to issue any statement on the Supreme Court’s decision, a justice on the Florida Supreme Court allowed that he was “not surprised” by the ruling. Florida attorney general Richard W. Ervin stated that he was “very disappointed” by the decision, but “the thing to do now is to go ahead and re-try the case as quickly as possible and dispose of it.” Jesse Hunter was less restrained. For months he had been openly critical of the NAACP’s fund-raising efforts to “perfect this appeal,” efforts for which there was “no reason whatever . . . except to pay their lawyers.” Ironically, it had been Hunter’s disingenuous attempt to demonstrate lack of bias by handpicking and seating a black man on the Groveland grand jury that had provided the NAACP lawyers and the U.S. Supreme Court the constitutional grounds for reversal. Sidestepping questions about Jackson’s blistering concurring opinion, Hunter insisted to the Pittsburgh Courier that the case had been overturned on a “technicality.” He also noted that he was “very fond of Atty. Franklin H. Williams of the NAACP.”
As for the image-obsessed sheriff of Lake County, Willis McCall, he was infuriated by the Supreme Court’s decision and his bad press. In a public statement he ranted against the Court’s reversal and “subversive influences” like the NAACP and the CIO Newspaper Guild: “The fact that they did not appeal the case of Greenlee along with the other two is an admission of guilt. The fact is that our U.S. Supreme Court let a few minority groups such as the NAACP and their eloquent and sensational lies and the receiving of awards from the CIO Newspaper Guild, such as received by Ted Poston, Negro writer for the New York Post, influence them to such a prejudiced extent that they saw fit to reverse one of the fairest and most impartial trials I have ever witnessed. It is shocking to think that our Supreme Court would bow to such subversive influences.”
In twenty months McCall’s resentment that black reporters and the NAACP had descended on Lake County “to see that justice was done” at the trial of the Groveland Boys had hardly abated, and he sneered at the claims made by the black New York lawyer and the award-winning reporter about being chased out of Lake County after the trial: “They realized they were meddling where they had no business. . . . I informed them that no one had invited them to Florida. That they were not needed here and were only making things more complicated. . . . I suggested they return home or where they could feel safe, that we could handle things here in an orderly manner without the interference and confusion they were causing.”
Twenty-two months before, in mid-July, when that angry mob was gathering outside the Tavares jail, Willis McCall had staved off a lynching of the Groveland Boys. Tacitly, he had also made a pact with the men from Bay Lake: that they would allow the rule of law to take its course, but if swift and electric justice did not come to Norma Padgett’s rapists as McCall had promised—if the law did not do right—they would restore their white man’s justice to Lake County. McCall was now going to have to answer to them, and he was going to have to contend with another black circus, bigger than the one before, making a mockery of lawanorder in his county and a grandstand of the court. He bristled at the thought of another trial. “I have it directly from Sheriff Dave Starr of Orange County that Sheriff McCall is ‘sweating blood’ over the Supreme Court decision,” reporter Ormond Powers told his former editor M. C. Thomas. McCall’s “mental attitude . . . is difficult to understand if his hands are clean—which I doubt—knowing something of Florida politics and gambling tieups.”
Alex Akerman had contacted McCall by phone after the Groveland Boys trial. Before the lawyer had been able even to state his business, McCall had exploded. In a tirade he had warned Akerman—a “God Damn Nigger Lover”—not to return to Lake County. Akerman was appalled, and frightened, by the sheriff’s vitriol, especially since Shepherd and Irvin were at that point headed to the electric chair and Greenlee to a chain gang. Yet McCall was not boasting or gloating; he was brooding. For months he brooded, collected his press clippings, and added new names to his enemies list. He followed the progress of the Groveland Boys case through the courts; he grimaced at the names: Williams, Akerman, Williams, Marshall, Carter, Jackson, Williams. They’d be back. They’d be back, he’d tell himself, and then he’d say to himself, as he often did, “I don’t push easy. Nope. I don’t push easy.”
TWO DAYS AFTER the Supreme Court decision in Shepherd v. Florida, Walter White sent a telegram to Franklin Williams in San Francisco: “Our warm appreciation for the notable part you played in speedy victory won in Supreme Court in Groveland case.” That same day in April, President Harry Truman fired General Douglas MacArthur on the grounds that he was “unable to give his whole support to the policies of the U.S. Government.” Although Marshall did not pretend that Truman’s decision had anything to do with MacArthur’s dilatory response to the segregation of black servicemen in the U.S. Army, he was pleased to note that MacArthur’s successor, General Matthew Ridgway, “desegregated in about three weeks. Desegregated the whole thing.”
Marshall was determined not to be in any way dilatory in the NAACP’s response to the Shepherd v. Florida decision; he would ensure that the defense in the second trial of the Groveland Boys in Tavares would have adequate time to prepare. With Shepherd and Irvin’s arraignment date set by State Attorney Jesse Hunter for August 15, Marshall immediately began putting a defense team in place, and Jack Greenberg immediately volunteered, not just because he felt it was an important case but also because he found it impossible to resist the prospect of a criminal trial in the highly charged racial atmosphere of the South. If “it wasn’t very smart,” as Greenberg said of his decision—for Franklin Williams’s Lake County stories could be worrying—the experience would prove to be as heart-stopping as it was eye-opening.
Alex Akerman had moved to Virginia, and while he would be available for the trial, Marshall still needed an attorney in Florida to work the case: to initiate investigations, to pursue fresh leads (many of them a result of Norman Bunin’s exposé in the St. Petersburg Times), to file briefs. Paul
Perkins proved to be the man. A thirty-two-year-old black lawyer from Orlando who had attended Howard University Law School after serving in the U.S. Army, Perkins seized on the opportunity to work with Thurgood Marshall, even at the meager $3.75 per hour the LDF could afford to pay; he’d grown accustomed to working long hours for small pay or, more commonly among his indigent clients, for “ham or oranges.” Deep-voiced, confident, Perkins carried himself taller and larger than his thin, five-foot-five frame, and he shared none of Franklin Williams’s compunctions about driving deep into Lake County and knocking on doors. On his trips into Groveland, however, he would take along with him a friend’s young son, because, supposedly, some “strange code of ethics” prevented the Ku Klux Klan from accosting a black man in the company of his children.
Part two of the Groveland Boys case began officially on July 6, when Jesse Hunter reindicted Samuel Shepherd and Walter Irvin, who had been transported from Raiford to Tavares by Sheriff Willis McCall and his deputy James Yates. (At the state prison, McCall had observed to the guard, for the benefit of Shepherd and Irvin, “You all haven’t electrocuted those niggers yet? When you do, I want to watch them flinch.” And Yates had added, “Wish you all would run so that I could shoot the damn hell out of you.”) After the reindictment, Hunter assured reporters that the state’s case against the defendants was airtight and that the NAACP was just “causing trouble” by employing a legal technicality in an attempt to keep two black men out of the electric chair. Nonetheless, he was going to make certain that this time round “plenty of Negroes” were available for jury service, he said, then added that he’d not mind trying the defendants “before an all-Negro jury.”
The Lake County retrial of the Groveland Boys case promised the NAACP a national stage as large as that of the Scottsboro Boys twenty years before, and Thurgood Marshall was determined to take every advantage of it both for the political stature of the NAACP and for the cause of blacks in America. Whereas a “defense by committee” between the NAACP and communist organizations had complicated the Scottsboro Boys case, in the matter of Groveland, the NAACP, convinced of the defendants’ innocence from the outset, had not hesitated to take the case, thus preventing the Civil Rights Congress or any other defense groups from encroaching on its juridical territory. With the new trial likely to command the attention of a national event, Marshall recognized that the defense required not only an attorney with estimable credentials and a record of success but also one with extensive public relations experience, a nationwide reputation, and the fortitude to perform unflinchingly on the unfriendly turf of Sheriff Willis McCall. Marshall liked to say that he had “a big yellow streak running down my back” when traveling in the South. But not inside courtrooms and on courthouse steps: there he’d neither shirk his commitment to protecting the constitutional rights of powerless blacks like Irvin and Shepherd nor shrink from a fight with the Southern white establishment in the shape of a sheriff or a state attorney. By the summer of 1951 Thurgood Marshall had decided that he himself would represent the Groveland defendants, and with him to Lake County he would bring the swagger and confidence of the man who, just after Brown, would tell one newspaper publisher, “You can say all you want, but those white crackers are going to get tired of having Negro lawyers beating them every day in court.”
In advance of their first trip to Florida, Jack Greenberg asked Marshall if he should reserve separate rooms or a double for the overnight train ride south. “I don’t sleep with nobody who don’t wear lacy drawers,” Marshall informed the eager young lawyer, who later recorded his impressions of their travel aboard a Seaboard Air Line train out of Pennsylvania Station. Although Greenberg had heard Marshall’s stories about his own days as a waiter in the dining car on the B&O, he had not expected that the porters would accord Marshall such reverence, and privilege. No matter that “white travelers were not yet accustomed to seeing blacks in dining cars,” Marshall received celebrity treatment as well as “treats like the outside cut of the roast beef” from the chef. Waiters kept the bourbon flowing “even in dry states,” while Marshall and Greenberg worked on briefs or read trial testimony to each other and took copious notes. They spent the daylight hours in Marshall’s room, and at night they’d ride in the front cars for blacks as the train lumbered through the South, past the ramshackle houses huddled in the darkness.
Before he had left for the West Coast, Franklin Williams had briefed both Marshall and Greenberg on the Groveland case. Williams was convinced that no rape had occurred in the early morning hours of July 16, 1949. “Norma Padgett and her husband are very low class people,” Williams said, “who live down in this isolated little swamp area not too far from Groveland,” an area where Williams had conducted interviews with people who knew the young couple. From them he had gathered that the Padgetts had separated prior to the alleged rape; that because of possible spousal abuse, Norma had gone home to live with her parents. Willie had been trying to mend things between them, so he’d asked Norma out to a square dance. They’d picked up some whiskey at Frisz’s Bar and Grill, then headed over to Clermont, where they were drinking and dancing until the hall closed at 1 a.m.
What happened thereafter, in Williams’s estimation, was that a very drunk Willie Padgett had tried to have sex with Norma in the car, had maybe even gotten rough with her, and “she gets hysterical and she jumps out of the car and runs away,” leaving behind Willie, who’s scared that she’s going home to “tell the Cracker parents and brothers of hers that he had attempted to rape her.” And that, said Williams, would be “the end of him.” For it was not uncommon in central Florida for the KKK to act as an enforcer of community morality, with night riders arriving unannounced and ready to mete out punishment at the home of a white man reported to be beating his wife or at the house of a woman who’d been cheating on her husband or drinking and neglecting her children. Klan informants had described to FBI agents a “regulation strap four inches wide and three feet long nailed to a round wooden handle” that had been used on more than a few occasions to correct moral lapses in Lake County. Coy Tyson could easily “put the finger on” Willie Padgett if he were to learn that his daughter Norma was having problems again.
The rape story, Williams firmly believed, was Willie Padgett’s idea. His reunion with his wife in the early light of that Saturday morning, when Willie and Curtis Howard, on their drive back to Okahumpka, encountered Norma in Lawrence Burtoft’s car, was as unremarkable as Burtoft recounted it because the couple had yet to fix their story. Willie had spoken of kidnapping, rape, and black men to Howard, but Norma had said nothing to young Burtoft that even hinted at violence of any kind. In Williams’s surmise, Willie Padgett had run up to his wife and, “out of hearing distance” of Howard and Burtoft, had said to her, “You know, Baby, you just been raped by four niggers. Don’t say anything else. This is what I have told him.”
Marshall and Greenberg started a list of people to track down and investigate, so as to be able to counter more effectively the prosecution’s evidence in the retrial. Locating Lawrence Burtoft was going to be critical to the defense; State Attorney Jesse Hunter had essentially obliterated the young man’s bearing on the case, and for an obvious reason—he contradicted Norma Padgett’s testimony. Paul Perkins had tracked down some alibi witnesses, including a waitress at Club Eaton, a college girl, who recalled that Shepherd and Irvin had tarried there until at least 2 a.m. A private detective in Miami had recommended to Marshall an expert to evaluate the plaster casts and tire tracks that had roused Franklin Williams’s suspicions. The list would grow.
So would the legwork. Once they had gotten settled in Orlando—Marshall among some willing black families and Greenberg at the San Juan Hotel, because “feelings generated by the Groveland case still ran so high” there was no family willing to risk a Jewish lawyer being spotted at its address—Greenberg and Perkins conducted investigations around Groveland during the day, and at night Marshall and Perkins would join Greenberg at the hotel, which
was owned by a friend of Alex Akerman, for strategy meetings. On one of their daytime excursions, Greenberg and Perkins paid a visit to the Irvins, who still lived in Groveland, for unlike the “uppity” Henry Shepherd, who’d deserted the citrus groves for a farm of his own (and been ruined for it), Cleve Irvin knew his black man’s place. Their visit revealed that Walter had rented his room in his parents’ “unpainted, weather-beaten” home; moreover, the door to the room had a lock on it. Therefore, Greenberg reasoned, the deputies’ confiscation of Walter’s pants and boots as evidence constituted “an illegal search and seizure,” since Dellia Irvin would have had no legal authority to hand over her son’s belongings.
As Greenberg traveled around Lake County under “battlefield tension” it struck the young lawyer that residents who were unwilling or afraid to voice their opinions about the Groveland Boys case might respond more readily to the impersonality of a public opinion poll as to whether the defendants could get a fair trial in Lake County. Marshall agreed, and the NAACP was able to hire, at cost, an up-and-coming pollster by the name of Louis Harris, on behalf of the Roper Center for Public Opinion Research at Williams College, to conduct a survey of the Lake County population. Harris soon discovered he had a shadow, and he claimed that ultimately Willis McCall chased him out of town.
Through the summer and into the fall, Greenberg and Marshall traveled by train back and forth between New York and Florida. Steadily they were building a defense for the Groveland Boys, while Perkins continued tirelessly to comb Lake County for potential witnesses. The strategy, put in place by Marshall and Williams in the first Groveland trial, had been to “create an error in the case, so that we could get it reversed on appeal.” Once they’d won the appeal, it was the lawyers’ hope that with the passage of time, “feelings would have leveled off and you would have a chance”: a chance perhaps to prove reasonable doubt in the second trial; or maybe Norma Padgett would have “a change of heart.” The lawyers’ legwork was beginning to make of chance the possibility of an acquittal. Time at least appeared now to be on their side. As Williams had reminded Greenberg and Marshall months before, “Anything can happen in the interim.”