Devil in the Grove

by Gilbert King

  Akerman, apparently taking his cue from the loquacious Bennett, in long-winded fashion posed a question about semen stains, which prompted another of Bennett’s erudite elucidations, this one on “certain fluorescent quantities.” Again, Buie interrupted. “Name that fluorescent quality and tell what it is!” he demanded.

  And gladly Bennett obliged. “Well, it is a fluorescent substance, and when a garment is placed under an ultra-violet ray light, these little articles of fluorescent material will show up under that light; however, I will say this, that that is not a conclusive test, because of the fact that other foreign matter may have gotten into or on the material, or the cloth, and these other foreign materials might exude a fluorescent fire when exposed to the ultra-violet light, but would enable the investigator to localize that portion. . . .” And his disquisition on stains and cottons and textiles and the specifics of chemical analysis comprehensible to criminologists like himself continued on.

  Hunter and Buie had dispensed with the formality of objections; they simply interposed into Bennett’s testimony their questions and snide requests for reiteration or further explanation. Futch meanwhile whittled, like a substitute teacher tolerating an unruly class. At one point Hunter even meandered among the spectators, and while laughing and “cracking wise to his friends,” he heckled the defense from the floor. When Akerman finally realized the state attorney’s intent, he demanded that the judge “stop the prosecutor from heckling and laughing.” The judge told the witness to “get on with the testimony.”

  What nearly got lost in the courtroom circus was the criminologist’s testimony that the plaster casts made by Deputy James Yates had been faked. “After carefully studying these shoes and casts,” Bennett concluded that in his opinion “there was no foot in the shoe at the time the impression was made.” Whereas a normal footprint would leave a concave impression, Bennett explained, the impression made by an empty shoe or one with a shoe tree inside it would be convex. The impressions in Deputy Yates’s casts of Irvin’s shoes, Bennett declared, were patently convex.

  In cross-examination, for the benefit of the jury, Hunter feigned incredulity at the claim made by the defense’s expert witness—and skewed by the state attorney—that all people wear out their shoes the same way, for surely such a proposition must defy good old Florida common sense. To Bennett, he addressed the question: “Then it is your contention that all these twelve gentlemen on the jury wear out the soles of their shoes in exactly the same manner, each one of them?”

  “Well, a shoe is never completely [worn] out,” Bennett answered, as baffled by Hunter’s question as the jurors had been by the criminologist’s confoundingly technical answers.

  “Do you mean to say that they are worn exactly alike and that all these men walk exactly alike?”

  Bennett offered a detailed analysis of shoe construction and weight distribution, from which Hunter wrenched the false conclusion he had been using to sway the jury with his more plainspoken common sense. “Well,” he said, “I am going to let the jury be the judges of that fact themselves, as to whether or not they all wear their shoes at the same rate and in the same way.” As Hunter had done from the minute that Bennett had so solidly taken the stand, he had again, as Greenberg noted, “ridiculed the testimony.”

  The state attorney ended his cross-examination by obliging Bennett to reveal his $150-per-day fee. “Then, as a matter of fact,” reported Hunter, his voice booming, “you are getting from seven to eight hundred dollars to testify as an expert in this case about this stuff you have testified about?” Bennett answered yes, and with that, Hunter dismissed the witness. “That is all,” he said and, with some undisguised disgust, added, “That is enough.”

  With the day’s proceedings ended, Marshall, Perkins, and DeMille repaired to the home of a local family that had agreed to accomodate some of the black reporters and lawyers. Greenberg had moved to a hotel in downtown Ocala where most of the out-of-town whites with an interest in the trial were staying. That evening Greenberg was eating by himself in the hotel dining room when Jesse Hunter asked if he might join the opposing counsel. Unable to “chew anything substantial,” Hunter ordered cornbread and milk, which dribbled down his chin onto his shirt as he made desultory small talk—and Greenberg listened patiently to Hunter’s tale of a recent trip up north to his nephew’s graduation, after which the young people did not want to be seen eating with Uncle Jesse. Mostly, though, the two men ate in silence. Hunter had maybe a spoonful of soppy cornbread left when he looked up from the bowl and for a few seconds considered Greenberg’s patient mien before he spoke. “McCall’s a brute,” he said, then scooped up the last of the cornbread and bade Greenberg good night, leaving the dazed young lawyer with the check.

  WHEN TESTIMONY RESUMED on Thursday morning, February 14, the prosecution opened with an unusual maneuver. Sam Buie requested permission to return Walter Irvin to the stand for further cross-examination. To no one’s surprise, Akerman objected, reminding counsel that they were in the state’s rebuttal.

  “We do not insist on it,” Buie replied, “we just have one question to ask him, but it is within this court’s discretion.”

  The impropriety of the request did not warrant even the brief second of consideration Futch gave it before ruling, “The objection is good I think and is sustained.”

  “All right,” said Buie, smiling toward the jury as he withdrew, “we don’t insist on it. If they don’t want him back on the stand, it’s all right.”

  Fuming, Marshall and Akerman requested that Futch excuse the jurors so that they could make a motion. In the absence of the jury, the defense moved for a mistrial on the grounds that under the Constitution a defendant is not required to take the stand and “no comment can be made before the court or the jury as to the failure of the defendant to take the stand”: which, Akerman pointed out, the state had just done twice. Futch denied the motion nonetheless. The jury returned, the prosecution resumed.

  Bennett’s assertion that Deputy James Yates had faked the footprints on the plaster casts had gnawed at Hunter all night. To vouch for Yates’s forensic aptitude and thereby validate further the conclusions in his testimony, the state called Leroy Campbell, the former Lake County deputy who was now employed by the police department in the city of Leesburg. Campbell testified that he had been present with Yates the entire time the footprints were being cast in plaster. It was solid evidence, he assured the jury.

  Having buttressed Yates’s credibility, Hunter set out next to blemish Lawrence Burtoft’s character. For that, the state attorney knew whom he could trust. He called Willis V. McCall, sheriff of Lake County, who affirmed only that he was “pretty well acquainted with the people of Lake County,” because at that juncture Akerman objected. For reason of being a member of law enforcement, McCall was excused by Futch.

  The court proceeded to closing statements, with Sam Buie beginning the arguments for the state. The young attorney first took the jurors through the evening of July 15, 1949, as it had been experienced by seventeen-year-old Norma Padgett: how she had been ravished by four black men but had had the presence of mind to get good looks at all four of them as well as to take note of the car they were driving. “Gentlemen,” he told the jury, “in this case the only thing you have to consider is which testimony you are going to believe. Are you going to believe this girl, or are you going to believe that defendant? They are the only two persons living who were present at that thing to know anything about it. . . .”

  Buie next addressed, and deprecated, the testimony by “crazy” Herman Bennett in regard to the plaster-cast footprint evidence. “Now, gentlemen, if you believe the testimony from that man from Miami, then please God turn the boy loose,” Buie implored. “Turn him loose, that’s what you’ve got to do if you believe that man, turn that boy loose. And no matter what that poor country girl Norma Padgett said to you, if you believe what that man says for God’s sake, turn the boy loose. . . . I submit to you gentlemen that the statements th
at he made is the most asinine statement that I have ever heard before any competent court in the state of Florida, and yet he sits up here and expects you to believe any such junk as that, I tell you gentlemen, that is an insult to your intelligence.”

  In closing, Buie reminded the jurors that the officers and deputies of Lake County had solemnly sworn to uphold the law. “Now, are all these men liars? Have they any reason whatsoever, under God’s name, and has either Yates . . . or Campbell or any of the rest of them any reason to lie? No, gentlemen, I don’t believe they would, and I know that you do not believe it either.”

  Marshall knew that he really had no choice; he would address the jury. “They’re probably wondering what that big Negro is sitting at the defense table for,” he’d told reporters outside the Ocala court. Inside the courtroom, when he rose, Marshall could sense, as he often did when trying cases in the South, that neither the spectators nor the jurors knew quite what to expect from him. He stood “in a difficult spot,” as one reporter observed, for, “if he didn’t speak, the jury might regard him as some sort of sinister puller of strings for Akerman,” but, “if he did speak, he had to avoid seeming ‘uppity’ to the white jury.” He was of course going to speak, because it wasn’t a matter of choice; it was an obligation, not only to his client but also to the community. Blacks had crowded into the balcony in large part to hear and see Mr. Civil Rights, and to witness possibility; and in “that big Negro” the whites on the main floor might see something of the future. He surveyed the jurors. The older men among them looked vaguely stunned, “as if they never knew a Negro could ‘stand right up there and talk.’ ” On the other hand, a young juryman with an “honest face” regarded the special counsel as attentively as he had followed the entire trial. He “seemed to listen with respect” as Marshall delivered his address to the jury.

  “Gentlemen of the jury,” Marshall began, “if you will bear with me for a moment, I will please explain to you who I am and where I am from. I am Thurgood Marshall, chief counsel for the National Association for the Advancement of Colored People, and I am from Baltimore, Maryland, and am associated in this case as defending counsel, and Mr. Paul Perkins is from Orlando, and he is also associated in this case and is a member of the bar of the state of Florida, and gentlemen, I want to tell you that I think we understand the problem we have here, and insofar as I do understand it, I would like to discuss it with you for a few moments.”

  Irvin sat erect in his chair, “drumming his fingers together, listening the way a man listens when his life depends on what he’s listening to,” one newspaper reported. Another noted that off to the side, Willis McCall “listened intently, gritting his teeth.”

  “Now, in cases of this type,” Marshall continued, “we are all of us up against a pretty tough proposition, but the guarantee of a fair and impartial trial to every man accused of crime stands just as securely in this case and cases of this type as it does in every other case. But there are times when violent crimes are committed, when all good Americans are shocked and revolted, and resent such crimes, and criminals of the type who commit such crimes. . . . And when the crime of rape involves a white lady and a colored man, then there is a great amount of ill feeling and ill will against the alleged defendant.”

  Marshall explained that the Constitution and further statutes appertaining to the rights of individuals as defendants “fill up pages and pages of law books, but they can easily be summed up to this one thing, that every defendant is assured and guaranteed a fair and impartial trial, and is assured and guaranteed equal justice under the law, equally . . . no matter whether or not he is white, black or yellow, and our government is the finest Government in the world . . . and our great United States government is built on that principle . . . and that is the reason that our government has survived through the ages. . . .”

  First glorifying the law as being derived from “basic precepts set down by God himself in heaven” and “written lovingly and painstakingly, through the hundreds of years,” Marshall then brought law as a divine abstraction into the concrete reality of the Marion County courtroom, where constitutional safeguards continued to protect the rule of courts and the power of juries, as in the matter of the defendant seated before them. “Walter Lee Irvin is charged with the crime of rape and he is now on trial before you gentlemen as his jurymen, and in cases of this kind, I have heard judges make the remark, that cases of this kind are the kind that will try the souls of men.” Yet by their tried souls would the soul of Walter Lee Irvin be tried, and by them would his life or death be determined, for, as Marshall reminded them, “when this government was founded, and the old Magna Carta says that the final say of whether a man is to live or die is left solely in the hands of twelve representative fellow men of the area where the case is being tried, and that is why you are here today.”

  Marshall’s objective, however, was less to inspire the jurors with awe at their mission than to appeal to their common sense in its execution. “Now I will tell you that I myself have never been on a jury, but to my mind there are certain things that strike me about the testimony in this case . . . and the thing that struck me the most, and still is in my mind, is this. When they carried Walter Irvin out there to the scene of where this thing is supposed to have happened, and when they were tracking his footsteps there in the ground, and they asked Irvin if those were the shoes he had on the night before, and he told them no. He told them that his shoes he had on the night before were at home. Now, gentlemen, if those were Irvin’s footprints out there on that ground, and Irvin knew what a serious charge was hanging over his head, and when Mr. Yates asked him if those shoes he had on the night before, now, remember gentlemen, Walter Irvin is an intelligent young boy. Now he understood what Mr. Yates was charging him with . . . and what did Irvin tell him? He told him, no, that they were at home. . . . Now, gentlemen, it seems to me that if Walter Irvin had been guilty of that crime, when he realized that the shoes that he had on were not fitting in those imprints there on that ground, that any guilty man would have instantly said to Mr. Yates, ‘Yes, these are the shoes I had on last night.’ He would not have told Mr. Yates that the shoes were at home.”

  Outmatching the masterly Jesse Hunter in the arena of common sense, Marshall asked the jurors to consider, too, if Irvin’s actions the morning after the alleged rape suggested those of a guilty man. “I don’t believe that anybody who has just committed such a crime as that would be willing and able to go to work the next morning and to lead a perfectly normal life.” Indeed, even in the face of his arrest, he demonstrated no hint of guilt; he was “not even nervous or excited” and “when his mother told him the police were there looking for him, he told her to tell them to come right on in, that he had not done anything.”

  Marshall reasoned with the jurors in conversational tones; he spoke “patiently, politely, softly, but fluently and with dignity,” as one reporter noted. For years Marshall had been honing his approach to all-white juries in courtrooms across the South, and his reasonableness was difficult to resist. “With Marshall, you really got the impression that what he was saying had to be right,” a fellow lawyer observed. “That no honest person could really avoid the thrust of what he was arguing. That he really, really believed in this cause. And that made him very effective.”

  Marshall touched briefly on the matter of Deputy James Yates’s plaster casts, or rather on the question that the state had raised as to the bias in Howard Bennett’s testimony, for which the reputedly expert witness had been handsomely paid by the defense. Alex Akerman would argue the evidence itself in his closing statement, but what Marshall wished to make clear, he explained to the jurors, was that it was the defense’s duty to offer the court the “best evidence we could find” just as it was the state’s obligation to present their best evidence. “It is awfully hard to get the best evidence in the world without paying for it,” Marshall told them.

  To a significant degree, the money expended on expert testimony indicated t
he importance that the NAACP attached to the Groveland Boys case and to the life of the defendant. Marshall emphasized to the jury “that this is an extremely important case, and it is an extremely important case to Walter Lee Irvin. There is a man’s life involved here, his life is at stake, and gentlemen, I urge you, when you are considering this case, and making up your verdict in this case, to keep in the foremost part of your mind this fact. That every man, no matter what his color or race or creed might be, and no matter what the crime that he is charged with, each man in those circumstances is entitled to the fairest treatment that anybody can possibly give him. . . . You are the sole judges of the evidence and the testimony in the case, and it is your responsibility to reach this verdict. . . .” Marshall finished with a nod and “thank you for your patience and attention.”

  Futch called a recess for lunch. As the jurors were filing out, Jack Greenberg, at the end of the defense table, heard one of them say to another, “Damn, that nigger was good. Sure looks like it’ll be close.”

  CHAPTER 21: THE COLORED WAY

  State Attorney Jesse Hunter questions Lawrence Burtoft in July 1949, while Sheriff Willis McCall and Deputy James Yates glare. (Photo by Wallace Kirkland/Time & Life Pictures/Getty Images)

  BOY, THAT’S A great man,” Hunter said, speaking of Marshall.

  Mabel Norris Reese had had ample opportunity to observe the two opposing counsel in court, and in the course of the trial they had seemed to grow quite “buddy-buddy.” During breaks in the proceedings, Hunter had on occasion sat down with his coffee at the defense table to engage Marshall in conversation, to make the NAACP lawyer from New York feel more at ease in Marion County. Willis McCall might not have been impressed by Thurgood Marshall’s closing argument on behalf of Walter Irvin, but the state attorney from Lake County—“a terrible racist,” though he was known to be, according to Reese—unquestionably was. Reese had detected a change in Hunter’s attitudes toward race as well as toward the sheriff ever since the shooting of the two Groveland boys that November night on a dark road near Umatilla: a change that was reflected when Marshall’s name came up at a lunch with Hunter during the court recess on the Thursday of the trial, and Reese noted, “You could just see the respect all over [Hunter’s] face for that man. It was such a shame they could never have lunch together, but at the time no restaurant in Florida would have permitted it.”