by Gilbert King
With the intensification of FBI activity after the Moore bombing in Florida creating considerable anxiety in the Klaverns of Lake County, Sheriff Willis V. McCall, despite his denial of any affiliation with the KKK, showed up at a local Klan meeting near Groveland. There, according to Special Agent Meech, he lectured the nervous Klansmen on how to deal with FBI agents and their questions. “We had informants that were already in the Klan,” Meech said. “Our informants identified McCall as the man who told Klan members: ‘You don’t talk to the FBI. Don’t tell them anything. Don’t even tell them your name.’ ”
CHAPTER 19: PRIVATE PARTS
The NAACP raised tens of thousands of dollars in donations for the Groveland defense following the killings of Harry and Harriette Moore. (Library of Congress, Prints & Photographs Division, Visual Materials from the NAACP Records)
SPECIAL AGENT WAYNE Swinney of the FBI had been assigned the task of escorting Thurgood Marshall around central Florida. Tensions were still running high after the Moore bombing, and when Marshall had informed the young FBI agent that Eastern Air Lines was “booked solid” and therefore unable to provide a seat for him on a return flight, Swinney had exploded. “I don’t care how booked you are,” he told the Eastern reservation agent. “You better find a seat for this guy so he can get out of here.”
By no means was he underestimating the threat to Marshall in Florida. Swinney, along with nearly two dozen other agents committed to the Moore case “to ensure that the FBI was doing a thorough investigation,” had recently been looking into the shootings of Samuel Shepherd and Walter Irvin. In fact, he had just spent three days interviewing Willis McCall and local Klansmen in connection with Groveland and its aftermath, although he had not yet concluded, as he would eventually, that in regard to Harry Moore and his wife, “Klan members and some law enforcement officers were behind these murders.” They were also hell-bent on obstructing the FBI, no matter what the case, not to mention hobbling the NAACP. Orange County sheriff Dave Starr, McCall’s friend and a known member of the KKK, had, according to Swinney, “continually impeded the FBI’s investigation,” and the bureau was “worried that physical harm might come to Marshall” when he was in the area.
With Marshall standing beside him, Swinney picked up the phone on the reservation desk and made a couple of calls of his own. Visits to Florida by high-profile NAACP executives like Marshall created security concerns and logistic headaches for FBI agents, who were more familiar than most with the menace the KKK presented. The young agent finally breathed a sigh of relief as he watched Marshall climb the steps and board the plane headed back to New York.
IN EARLY FEBRUARY 1952, Jack Greenberg boarded a train for Orlando. He was traveling with a representative from the Elmo Roper research firm and Arnold DeMille, a columnist for the Chicago Defender. They were joined in Alexandria, Virginia, by Alex Akerman. While Greenberg was understandably preoccupied with the upcoming resumption of hearings in the retrial of Walter Irvin, Akerman’s thoughts kept drifting back to the first trial, when he and Franklin Williams were defending three Groveland boys as much against the white justice of Lake County as in a case of rape. He tried to prepare his traveling companions for the hazards that awaited them in Willis McCall country. Greenberg had of course heard Williams’s unsettling tales, and he’d had some firsthand experience of the law according to Hunter and Futch, so the discussions between the two defense attorneys tended frequently to favor gallows humor, as DeMille noted when, after one exchange about the county thugs on both sides of the law, Akerman turned to Greenberg and asked, “How you want your body shipped back?”
They arrived in Orlando on the afternoon of Saturday, February 9, which gave them more than a full day to prepare for the hearings that were scheduled to begin at the Marion County courthouse on Monday. Jack Greenberg checked into the downtown San Juan Hotel.
About the same time that Greenberg was settling in at his hotel room, Grand Dragon Bill Hendrix was riling up his troops at a rally in Orlando. Alarmed at the progress of the NAACP in general, and more particularly of Thurgood Marshall, in the fight against Jim Crow, Hendrix had formed, by his claim, an “American Confederate Army” of ninety-seven cohorts in thirty-one states, all of them prepared to bear arms in the event that the Supreme Court outlawed segregation. At the rally that evening, Hendrix’s “rebel army” voted in support of three measures in its avowed purpose to forestall justice for all:
1. denounce the NAACP and Anti-Defamation League as “hate groups”;
2. retain the hood, robe, and mask as official uniform; and
3. keep the fiery cross as a religious symbol.
“Florida must have a few lynchings if its law enforcement officers don’t enforce 100 percent segregation in the state,” Hendrix reportedly proclaimed, after marching his army through the downtown streets of Orlando.
Greenberg heard it before he saw it. A terrific roar arose at nightfall: engines revving, horns honking, the din of male voices. In the streets beneath his window Greenberg counted “at least 25 cars” circling the San Juan Hotel as he witnessed the procession of Klansmen in full regalia, “with confederate flags flying, some carrying blazing torches,” and for months Greenberg’s sleep would be haunted by the “white-hooded, sheeted figure [who] sat on the outsized hood of a Nash Ambassador, waving as it drove by.” Only seven years before, Greenberg had been among the first landing of U.S. forces that stormed Iwo Jima in 1945, and aboard ship he had battled Japanese kamikaze attack planes in Okinawa Harbor: “It was frightening, it was exciting. . . . There wasn’t any point in being afraid,” had said the twenty-year-old Greenberg, who then had an “unthinking belief in his own immortality.” At twenty-seven, the survivor of one of the deadliest battles America fought in the Pacific campaign of World War II had less faith in his immortality. With the Klan parading outside his hotel, Greenberg “took the vain precaution of putting a night table against the door” before he tried to sleep.
The site of Hendrix’s KKK rally on February 9 had supposedly been “patrolled” by Sheriff Dave Starr and his deputies. Newspapers reported that neither Starr nor his officers had observed any illegal hoods or masks because they were “too busy with traffic accidents.” Hendrix, who had recently declared his candidacy for Florida governor, told reporters that he had been “misquoted” with regard to his “few hangings” speech. He was indicted on February 11 for violating postal laws by mailing “libelous and defamatory” postcards to journalists and politicians.
The Klan had dispersed less than an hour before the Florida attorney Paul Perkins and journalist Arnold DeMille met Thurgood Marshall at Orlando’s airport. The rally site was quiet when they drove by. “Your boys, the KKKs were here to greet you,” DeMille told Thurgood. “But they couldn’t wait any longer and left. They’ll see you at the trial in Ocala.”
On the morning of February 11, Marshall and his team of lawyers were chauffeured the eighty miles to Ocala, and to their jaw-dropping surprise, the car was a “beautiful shiny Cadillac.” They’d arranged for a car, but Marshall would have preferred not to alight at Marion County’s Court House in a late-model hearse.
Built in 1907, the Marion County Court House, a stately building with a facade of Indiana limestone, commanded Ocala’s Public Square. Reporters were waiting outside when Marshall arrived. They wondered what Marshall had thought of the Klan’s “rip-roaring welcome parade” for him, but he dismissively replied, “We’re going to trial.” More pertinently they wondered how Marshall planned to deal with Judge Truman Futch, who had barred the NAACP lawyers from representing the defendant, on the grounds that they “stirred up trouble in the community.” Marshall’s response was terse. “The charge is without foundation in facts,” he said, and stated that he’d be filing a motion in court: “If the motion is denied, I will appeal and keep appealing until I reach the Supreme Court, if necessary.” Marshall hinted, too, that a “sensational new trial element” would be introduced, but when he was pressed by reporters for
more details, as he knew he would be, he gave them only one word, and a wry smile. “Witness,” he said. And walked on.
As the retrial had been moved to Marion County, Walter Irvin had at least escaped the custody of Sheriff Willis McCall. He had not escaped the painful reminders of their November encounter, however. “My shoulder worries me frequently,” he told reporters at the courthouse in Ocala, “and my hand is numb and I get a buzz through my body when I move. For two weeks I begged them to let me see a doctor and when I did I got two pills supposed to be for my nerves. Once they took me to the hospital at Eustis and the doc there says I have a bullet in me near my kidney.”
Except for the time he had been hospitalized in Eustis and at the prison, Irvin had spent the last thirty-one months in the death house at Raiford. He complained to reporters that the guards wouldn’t give him anything to read, and they “blew up when they heard I was getting a new trial. . . . Sammy was getting Life and Time and used to let me read them, but they gave out and lately there’s been nothing. I get nothing unless somebody arranged to send the magazine to me, and nobody has.”
Reporters commented on the thin mustache that Irvin had apparently been permitted to grow since his last appearance before the press. “The captain of the prison say he going to make me shave it off after this trial,” said Irvin, “like he must be expecting me back.” Irvin’s irony prompted a reporter to ask if, then, he was innocent. Irvin seemed to be momentarily stunned by the question, perhaps because to him that had never been a question. Still, he answered it. “Am I innocent? . . . Sure I’m innocent.”
COURT WILL COME to order. No smoking!”
From the balcony down, the courtroom went quiet. Like the balcony in the Lake County Court House, this one seated blacks, and it was “packed to the ceiling.” Blacks had “come from all directions with their paper bags.” At the midday break they’d gather outside the courthouse and talk together over their bag lunches, for the segregated eateries of downtown Ocala allowed them “no other place to go.”
The first order of business for the defense was to petition Judge Futch to rule, contrary to his prior decision, that the NAACP attorneys Marshall and Greenberg be permitted to represent Walter Irvin. Marshall approached the bench with confidence; he doubted that Judge Futch would risk the possibility of another reversal at the Supreme Court were the defendant denied the legal representation of his choice in a capital case. Marshall was also secretly hoping that the feature story in the current issue of Collier’s magazine, which named him “our greatest civil liberties lawyer,” might win him some measure of respect, even in a Southern court. Earlier in his career, when Marshall had been arguing a motion before a Louisiana judge who was “no friend,” the opposing counsel had asked the court for more time in order to check the accuracy of Marshall’s citations. In open court, the judge had declared, “You don’t have to worry about that. If Mr. Marshall puts his signature on it, you don’t have to check it.” Marshall owed that to Charlie Houston’s influence.
Evidently State Attorney Jesse Hunter did not subscribe to Collier’s. He rose from his chair and was prepared to fight the defense motion. Futch, however, had reconsidered; he allowed the motion, and the two NAACP attorneys resumed as counsel for the defendant. Not unexpectedly, Futch denied the defense motion to disqualify Hunter.
The defense next, and again, raised the change of venue issue. Marshall argued that the results from the Elmo Roper poll, which the NAACP had commissioned, showed clearly that the majority of Marion County residents believed that Walter Irvin could not receive a fair trial in Ocala. Marshall had confidence in the value of qualified, credentialed witnesses whose academic research and statistical analysis could be employed to illustrate systematic discrimination against blacks. Thus, in the school segregation case Briggs v. Elliott, he had used the testimony of Dr. Kenneth Clark, who had studied children’s reactions to the “good” and “bad” qualities of black and white dolls, to bolster his argument that black children were stigmatized by being educated in segregated schools. In the hearings preceding Irvin’s retrial, Marshall called to the stand the Roper poll research executive, formerly a professor of sociology at Cornell University, and led him through a detailed explanation of the survey he had conducted. The survey showed that “not one of 518 whites questioned here in Marion County thinks Irvin is innocent. One percent were found to believe he may not be guilty,” testified the Roper executive. Moreover, his research indicated that the farther away Florida’s trial venues were from Lake and Marion counties, the more likely they were to “place the trial in a more neutral atmosphere.”
Throughout the testimony Hunter mostly lounged in the empty jury box, “chewed occasionally on his teeth and gums,” and affected disinterest. In his cross-examination he disparaged the research and ridiculed the witness. “How much did they pay you?” Hunter asked the executive, who quoted seven thousand dollars as the cost of the survey.
“Now, as a matter of fact, your firm predicted the elections of 1948, is that not correct?” Hunter inquired, referring to the famously inaccurate front-page headline “Dewey Defeats Truman” that the Chicago Daily Tribune, in its eagerness to go to press early, had run on the basis of polls.
“Yes it did,” the researcher admitted, but any amusement elicited in the court was unintentional, because he added, “We predicted it wrong, but we did predict it.” Once the laughter in the courtroom had died down, no one doubted that Hunter’s objection to use of the survey would be supported by the bench.
Hunter proceeded to counter the defense claim that Marion County’s prejudice disallowed the possibility of a fair trial for Walter Irvin, by calling his own witnesses, among them L. R. Hampton, a sixty-three-year-old black dentist. He was stirring. He extolled the love and respect that blacks and whites alike accorded each other in Marion County; he declared Judge Futch to be “one of the best friends of me and my race I have ever known.” He praised a county that historically had produced a Negro city councilman and a Negro county treasurer, and he expressed concern that the retrial of the Groveland Boys case in Ocala might harm the “good feeling that has existed all of these years” between the races.
“Now, Dr. Hampton,” Marshall asked, as he began his cross-examination, “when were these Negroes Mayors and City Commissioners, like you have testified about?”
“Well,” Dr. Hampton replied, “it’s so far back that I can hardly remember.”
“About how far back was it?”
“Well, it was something like sixty years ago.”
“Then what you mean to say,” Marshall said, “is that there were Negroes who held those kind of offices back immediately after the Civil War, don’t you?”
“Well, it was a long time ago.”
Marshall’s final question for Dr. Hampton addressed the more immediate issue of jury selection and composition. “Would you have considered it proper to have Negroes on the jury?”
“Well,” the dentist answered, “I don’t know whether they were intellectually equipped enough to be on the juries.”
Another of Hunter’s black witnesses stated, “I would put this county up against Jerusalem itself, and this is where I am going to stay until I die.” His sentiments were echoed by a sixty-four-year-old retired black man who had likewise spent his entire life in the county. Still, in his entire lifetime, as he admitted to Marshall under cross-examination, he had never before been inside a courtroom because he had never been called for jury duty.
Marshall then asked, “You are head of the American Legion here, aren’t you?”
“Yes, I am.”
“Are there any white members of your American Legion post?”
“No, sir, there aren’t, we have our own post,” the man answered. “We are all colored people, we have our own post to ourselves, because that is the way we want it.” Marshall’s lips were pursed, but he allowed Hunter’s witness to keep talking.
“It could be the other way if we wanted to, I think,” the man stam
mered. “The only reason is we have one to ourselves like we have always wanted to have, and I am head of our post, and . . . what else do you want to know about it?”
“That is all,” Marshall said, and turned his back to the witness.
A “gentleman of the frock,” who, in the balcony, had attended to the testimonies of the elderly black men on Hunter’s witness list, remarked to a reporter, “Such folks I’d take great pleasure and dignity in sprinkling the dust over their remains.”
Judge Truman Futch needed maybe five seconds to rule on Hunter’s objection to the admissibility of the Elmo Roper survey. “The objection is sustained,” Futch said. “The affidavit and the report is rejected.”
Marshall was crushed, not only by the expenditure of seven thousand dollars for naught but also by the man-hours his team had spent in processing the research into evidence. Sheriff Willis McCall had run Roper researcher Louis Harris out of Lake County, and now Judge Futch had disposed of the research itself.
During the lunch recess Marshall and the defense team assessed the damage. To their disadvantage, the trial was going forward in Marion County. It was a loss, for sure, but, as Akerman reminded Marshall, they could not reasonably expect very many wins, either with objections or in evidentiary rulings, with Judge Futch presiding. He and Hunter performed effectively as a team, and once the court had seated a jury mostly of the state’s choosing, a verdict against Irvin was almost assured. So, the best strategy for the defense was, as in the first trial, to establish on the record every possible grounds for reversal and wait for the court to err.