by Gilbert King
In the hallway, before returning to the courtroom, Marshall was taking note of the numerous state troopers and deputies posted around the courthouse when the portly Jefferson J. Elliott came bounding toward him. Marshall had of course not forgotten Elliott’s role in the coroner’s inquest, and whitewash, following the shooting of the Groveland defendants, or Stetson Kennedy’s claim that the governor’s special investigator was a Klansman.
“I’m here at the wish of the governor,” Elliott told Marshall as the two shook hands. Then, leaning in conspiratorially toward the NAACP special counsel, Elliott warned, “First thing is, you look out.” He had gotten Marshall’s attention.
“You’ll see each guy that’s got this kind of a pin.” Elliott showed Marshall the pin in question, and explained, “They’re trying to get you.”
“Who?” Marshall asked. “Willis McCall?”
Elliott paused before he answered, his voice low. “No, the deputy is going to get you.”
Marshall allowed himself a moment to absorb Elliott’s words. Four murders linked to Lake County law enforcement had already been committed since the Groveland Boys case had begun, not to mention the occurrences of death threats, beatings, a bombing, posses, and a high-speed car chase. Marshall did not doubt that his life might be in danger, and he could see that the governor might find it politically inconvenient if “our greatest civil rights lawyer” were to be assassinated in Florida. He had no reason not to take the special investigator’s warning seriously.
“So go toward them, but not from them,” Elliott advised. Marshall expressed his appreciation for the words of caution.
“Second,” Elliott said, after he’d walked Marshall out of anyone’s earshot, “the judge and the governor have been on the telephone” and a deal, approved by Fuller Warren, was on the table: if Irvin were to plead guilty, the governor would ensure that the defendant would receive a life sentence.
“Well,” Marshall said, “I can’t decide that. Irvin will have to decide it.” Elliott agreed.
To Marshall and Greenberg—in light of their own dispiriting assessment of the defense’s chances given the venue, the judge, and the state attorney in the case—a deal that guaranteed to spare Irvin’s life sounded like a good one. It was also exactly the “cautious” kind of approach that disgusted Franklin Williams. “It shocked me,” Williams later commented, that Marshall had even considered such a deal. “I would never have discussed it with them. It struck me whether Thurgood himself was not sure whether they were innocent or guilty. I would never have told them that. I would have said, ‘No way you will plead guilty. We will fight this thing to the end.’ ”
Marshall, in fact, was beyond cautious. He was fearful. Just one year before, the Martinsville Seven had eaten their last meals at the Virginia State Penitentiary. The NAACP had won the battle against the Civil Rights Congress—and Marshall against his communist adversary, William Patterson—to appeal the case of the seven young black men who had been convicted of raping a white woman. The win left nothing to be savored; every appeal had failed. On February 2, 1951, the first four of the Martinsville Seven were executed at fifteen-minute intervals in Virginia state’s electric chair. The remaining three were electrocuted over the next forty-eight hours. Marshall had no doubt that as sure as the state of Virginia had killed seven men on a rape conviction, and as sure as Willis McCall had shot dead the alleged rapist Ernest Thomas and convicted rapist Samuel Shepherd before they’d had a chance to explore all the legal avenues open to them, the state of Florida would sentence Walter Irvin to death. Franklin Williams might indeed be shocked by Thurgood’s willingness to place the deal before Irvin and his family, but Marshall had lost too many clients to the electric chair to deny a defendant, even one who clearly was not guilty, the rare opportunity to spare his life with a guilty plea.
Marshall and Greenberg discussed Elliott’s proposition further with Akerman and Perkins, and the four lawyers decided to take up the matter with Jesse Hunter. The state attorney confirmed both that the deal was legitimate and that Truman Futch was prepared to honor it. Marshall sent for Irvin’s family.
Present at the courthouse were Irvin’s brother-in-law, James Shepherd (Samuel’s brother), and his mother, Dellia, “a heavy woman in a dark dress, green scarf and run-down brown shoes,” who had hitchhiked the sixty miles from Groveland to Ocala that morning. As much to them as to Walter, Marshall explained the governor’s offer, which, he noted, had been acknowledged and agreed to by the prosecutor and trial judge. The room fell silent.
Then: “Well, you got the case reversed once,” Irvin said.
“Yeah, but eventually they can’t find that . . . ” Marshall let his voice trail off. “Odds are,” he resumed, “that they’ll convict you. And Futch the judge, he sure as hell will give you the death penalty, so it’s up to you.”
The decision was Irvin’s, but both Marshall and Greenberg “clearly implied that [they] hoped he’d accept the deal,” because “something might turn up someday to win his freedom.”
Irvin set his eyes on Marshall, then his mother. He considered the back of his hand. “Well,” he said, “I guess I’ve got to make up my mind.”
He drew his mother and James over to the side of the room. The three of them spoke in hushed tones. Greenberg and Marshall remained silent. It wasn’t much more than a minute before Irvin, then his mother and James, turned to face Marshall.
“I guess this is the only way out,” Irvin said.
Marshall shrugged. “Well, it’s up to you.”
“What do I have to do?”
“Nothing. Just stand up there and when they say, ‘Are you guilty or not guilty,’ you say, I’m guilty.” To clarify, to make certain that Irvin knew exactly what his guilty plea would mean, Marshall added, “That you raped that woman.”
“That I raped that whore?” Irvin was shaking his head. “I didn’t. And I’m not going to say so.” He had made his decision.
Dellia Irvin was holding her chin high. Marshall recalled how she, too, could have lied—in the first trial, on the witness stand—and tried to save her son’s life by testifying that Walter had come home that fateful July night at 2 a.m. Instead she’d stated that he’d come home but she didn’t know the time.
“Won’t say it on myself,” Irvin insisted. Marshall and Greenberg tried to impress upon their client and his family that they were not going to win this trial in Marion County; they also emphasized that there were no guarantees at the Supreme Court. But Walter Irvin was adamant. He would not admit to rape. They’d have to say that for him, he told his lawyers, who pointed out that the judge would accept a guilty plea only from the defendant’s own lips.
Greenberg was dumbfounded by the decision of the steadfast, young defendant “who wouldn’t confess after brutal beatings, and who wouldn’t die after having been shot three times.” Marshall, too, was at a loss for words, though in that moment he knew “damn well that man was innocent.”
Irvin reiterated, “I’ll take a life sentence right now because that’s better than the chair, but if I have to say I had anything to do with that lady I’m not going to do it. I’m not guilty.”
Clutching a well-worn Bible, Dellia Irvin gave her son a hug. “All right, now,” she comforted the boy in him, and told him he’d be back home with her soon.
After the recess the defense attorneys returned with Irvin to their table in the courtroom. To Marshall, menace seemed to hover in the atmosphere of the room, perhaps because his gaze had fallen on Willis McCall. A bear of a man, he stood tall in his cowboy boots; one hand was resting on the butt of his holstered gun, the gun he’d used to shoot down two of the Groveland boys—and maybe to fire a few of the slugs in Ernest Thomas, too. Marshall’s eyes had drifted to the sullen, dull-faced presence of Willie Padgett among some spectators when, with a loud crash, Jesse Hunter’s chair broke under him and landed the state attorney, sprawling, on the floor.
It was Hunter’s galluses that captured Marshall’s eye. Re
d galluses. Like the ones Herman Talmadge of Georgia wore to honor his father, the former governor Eugene Talmadge. Four years earlier, Herman had honored his father’s racial prejudices as well. In his own gubernatorial campaign Herman made fame out of hate with his signal, one-word stump speeches. He’d stand on a stage, tug on his red suspenders, and shout “Nigger!” over and over until he’d whipped the crowd into a frenzy. “You tell ’em, Hummon,” his redneck constituents would holler back, their tobacco juice spattering their “red Talmadge neckties.” An epithet and suspenders won young Herman Talmadge the 1948 special election decisively. If segregation and white supremacy wanted a symbol in the South, it was found in red galluses.
Hunter got resettled in another chair, and Judge Futch took his seat on the bench, where he had laid out sticks for his whittling. With the permission of Futch, if not of the court attendant, Arnold DeMille snapped a photo of the Whittlin’ Judge, who asked the Chicago Defender columnist if he might “see it when it was made up.”
The last pretrial motion to be heard concerned the admission of Walter Irvin’s pants as evidence, which the defense was challenging on the grounds that Deputy James Yates had entered the Irvins’ house on the morning following the alleged rape and had collected the evidence—the pants Walter had been wearing the night before—without a search warrant.
Attorney Paul Perkins asked the defense witness Dellia Irvin who arrived at her house on the morning of July 16, 1949, and she replied, “Well, this Deputy Sheriff, he came up to the house and said that he ‘came for that little black nigger boy’s clothes.’ ”
Perkins established that the “boy” was her son, Walter, and then asked, “What did you give him?”
“Well, I gave him a pair of brown trousers and a pair of brown shoes, and a white colored shirt.”
“Now, Dellia, were you afraid?”
“Yes, sir, I was because he was the law.”
Dellia had asked Yates the likely date of the trial, and, as she told Perkins, the deputy had barked at her that “there might not be any damned trial.”
The defense argued that because Walter Irvin paid rent to his parents for a bedroom with a lock on its door, Dellia Irvin was not obliged by law to enter her son’s private room to gather evidence for a deputy without a search warrant. Further, they argued, Dellia Irvin had not voluntarily surrendered her son’s pants to the deputy but rather had been intimidated into doing so by Yates when he stepped into her house. Not until 1961 would the Supreme Court rule, in Mapp v. Ohio, that evidence obtained in an illegal search was inadmissible in state courts.
Judge Futch closed the day’s proceedings with Dellia Irvin’s testimony, but it was no surprise to Marshall the next morning, when court resumed on Tuesday, February 12, at 9:30 a.m., that Futch, in his first order of business, allowed Walter Irvin’s pants into evidence. That was not the worst of it for the defense. Marshall had also learned that Irvin’s alibi witness—Carol Alexander, the waitress who remembered seeing Irvin and Shepherd at Club Eaton until two or three o’clock in the morning—had not returned to Florida for the trial, despite the fact that she was willing to testify and had already accepted travel expense money. Instead, she remained at Clark University in Atlanta. Her family was unconvinced that the NAACP could guarantee her safety. Of even more concern to Marshall was the possibility that his surprise witness, Lawrence Burtoft, might not get back to Florida in time to testify. He was in the army, at Fort Jackson in South Carolina. The defense’s witness list was in worse shape now than it had been two and a half years earlier, in September 1949, when Irvin was convicted in the Lake County trial.
Jury selection was no better, either. Of the seven blacks on the panel, four were disqualified because they did not believe in capital punishment. (One of them, Hunter confided to Marshall, was the “best colored man on the panel. Sorry he was excused”—and to his defense team, Marshall confided, “If he says the boy is good then we don’t want him.”) With the state’s peremptory challenges Hunter disposed of the remaining three blacks. Walter Irvin’s fate would be decided by twelve white Marion County men, and again Marshall was hardly surprised. He might have been flattered by a comment made by Jesse Hunter after the jury had been sworn in; pointing at Thurgood Marshall, the state attorney said to a guest of the court, “An ingenious man. Knows more law than any man in the United States.” Hunter liked to take down a proper adversary.
With trial testimony about to begin, spectators packed the courtroom, blacks upstairs in the balcony, whites downstairs on the main floor. Reporters crowded the press area: Jay Nelson Tuck from the New York Post, Richard H. Parke of the New York Times, Richard Carter with the New York Compass. Carter, who had recently won the prestigious Polk Award for outstanding metropolitan reporting, had been researching a feature story on Groveland in 1949 when he discovered Ernest Thomas’s attempt to tap into the Lake County bolita rackets, which raised the possibility that Thomas’s death had nothing to do with Norma Padgett. Also covering the trial were the Associated Press and the Saturday Evening Post as well as, of course, reporters from the Florida papers, including Ormond Powers of the Orlando Sentinel and Mabel Norris Reese of the Mount Dora Topic. A separate press table accommodated black journalists covering the trial, such as Robert M. Ratcliffe from the Pittsburgh Courier and Arnold DeMille of the Chicago Defender.
The indictment in the matter of Walter Irvin was read in court, and Jesse Hunter called his first witness. The slight but muscular figure of Willie Padgett trudged to the stand, his face “remarkable,” according to one reporter, with teeth “so large that they stretch the mouth into an expression of perpetual agony. His mouth seems most comfortable when he allows it to hang open, and he seems to do most of his breathing through it.” Padgett related essentially the same story he’d presented in the first trial. His car was stuck; four blacks happened along and offered to help him but then began roughing him up. He picked up a stick, “hit quite a few licks” on them, until they overpowered him and threw him down on the roadside, near a fence, where he lost consciousness. He came to in time to see their car drive away, apparently with Norma inside. He waited approximately thirty minutes till another car finally appeared; it gave him a push, but he couldn’t remember the car’s make or model or, for that matter, the driver who’d come to his aid. He then drove close to ten miles, past quiet homes and several storefront businesses that were still open, and even past the police station, to Dean’s filling station on the east side of Leesburg.
In cross-examination by Akerman, Padgett acknowledged that he and Norma were not living together in July 1949 and that they had been drinking whiskey the evening of July 15. Akerman noted, too, that Padgett had previously testified that the car driven by Samuel Shepherd and Walter Irvin was a ’46 or ’48 black Mercury. Later, Padgett claimed the car was “light green.” Akerman, however, failed to address some questionable, key details in Padgett’s story: After an assault and suspected abduction, why had Padgett passed by a police station and stopped instead at Dean’s filling station? How was it that he could identify with such certainty the black men in the Mercury and recall, in detail, their conversations, but could not remember a single detail about the car or the driver and anyone with him who actually got Willie back on the road?
A baby was crying. Jesse Hunter had called his next witness, and Thurgood Marshall turned his head to find the source of the noise. Norma Padgett was passing a three-week-old infant, her second son, to the outstretched hands of her sister or a cousin.
“Dressed for a party,” Jack Greenberg thought as Norma smoothed the front of her cotton dress, white with a floral print, and tugged at her “coral-colored cardigan sweater.” The two and a half years since Norma had testified in Lake County—when one reporter had wondered, “Why would a ‘rape victim’ strut and prance and pose like another Victoria Price of Scottsboro notoriety?”—had not been kind to her. Now nineteen, “bone-poor” and living rent-free on her uncle’s farm, she was, relatives said, trapped in a ma
rriage to a man who “neglects” her and “spends his wages recklessly.” She walked up to the witness stand; she was not strutting or prancing: She “has the bent carriage and the shuffling walk of a woman three times her age,” one newspaper reported. Her blond hair, bobbed and curled at the first trial, was hanging lank and lifeless. Her eyes were puffy. Her arms “ricket-thin” and her shoulder blades poking at her tight dress, she raised her right hand and swore to tell the whole truth.
Jesse Hunter treated Norma gently, his voice nearly as soft and low as hers, “which often could not be heard above the sounds of the traffic outside the open windows of the court.” So solicitously—so strategically solicitously, the defense lawyers opined—did the state attorney lead his witness through her testimony that any antagonism in cross-examination was bound to seem harsh, even barbaric, by comparison.
Norma’s rendering of the roadside encounter did not diverge from Willie’s. After the fight, which left Willie unconscious, the story became Norma’s own. One of the black men, she said, told the others, “Grab the lady,” and the five of them—Ernest Thomas at the wheel, Charles Greenlee in the passenger seat, and Norma sandwiched between Samuel Shepherd and Walter Irvin in the back—drove to “a little ole side road” near the Sumter County line. The car stopped, “and then this nigger by the name of Thomas got in the back seat.”
Asked if Thomas did anything to her, Norma replied, “Yes, sir, Thomas he jerked up my dress, and I jerked it back down, and he told me to leave it alone, and pulled it back up, and he made me take off my pants . . . and Thomas raped me first, Thomas did.”
“All right,” Hunter said, “which one raped you next?”
“Then Irvin raped me next, he was the second one, and I don’t know which one was next after that.”
“And all four of them raped you out there on that side road?”
“Yes, sir, they did.”
Hunter paused, to allow Norma time to elaborate. Yet the fire she had brought to her testimony in the first trial was gone; she neither craved nor basked in the court’s attention, as she had in Lake County. She exhibited no anger or shame, but not out of apparent indifference; she seemed simply to be tired and worn down. She hardly called the Groveland Boys niggers anymore.