Devil in the Grove

by Gilbert King

  A cigarette in his hand, Judge Futch addressed the spectators. “Now when the jury gives its verdict, I don’t want a man to move in this room until the sheriff takes the defendant out.”

  And what happens if he’s not guilty? Marshall thought. The conclusion appeared to be foregone.

  Just before 4 p.m., the twelve jurors filed into the courtroom, their eyes giving nothing away. The room settled into a hush. The verdict was read.

  “We the jury find the defendant guilty.” There was no recommendation of mercy.

  Irvin betrayed no emotion. He sat, unmoving, except for the twitch of muscle in the hollows of his cheeks. Walter’s mother swallowed her wail as she broke down in tears. Around her in the Jim Crow gallery sobs accompanied Dellia Irvin’s grief.

  Marion County sheriff Don McLeod patted Irvin on the shoulder. “Like a man stunned,” the defendant stepped before Judge Futch for sentencing. His senses numb, he barely heard the words that would echo inside his head for months: “ . . . electrocuted until you are dead and may God have mercy on your soul.”

  Immediately, Marshall made a motion for a mistrial on the basis of Hunter’s prosecutorial misfeasance in his summation before the jury. Futch denied the motion, and borrowing a pen, after fumbling in his pockets in an unsuccessful attempt to find one, he sealed Irvin’s doom with his signature. Reporters raced to telephones and their typewriters. The jury was dismissed, and Walter Irvin, again in handcuffs, was escorted by Sheriff McLeod, in a suit and fedora, from the courtroom to a waiting patrol car.

  Richard Carter, reporter for the Compass, lingered at the courthouse. He wanted to get some quotes from the prosecutor, but he settled for Sam Buie, whom he asked for a clarification of a remark made by the state attorney in his closing argument. Addressing a point raised by the defense as to why Walter Irvin, if he were guilty, had not simply fled after raping Norma Padgett, Hunter had scoffed at the logic and told the jurors what he knew they’d know, “Don’t you know that is the colored way of thinking?” Buie explained to the inquisitive reporter that Hunter had in fact meant to use the word criminal, not colored. Carter, who had that very day been named the 1951 recipient of the George Polk Award, given to “the reporter who was faithful to the best tenets of his profession even at the risk of life itself,” was not convinced. He would later write, “Could this be another of the ‘rape’ cases which Southern authorities have been known to whomp up as an afterthought in order to keep the Negro in his ‘place’?”

  Once Carter had walked out of earshot, Assistant State Attorney Sam Buie asked some other reporters who were standing close by, “Say, is that Carter a nigger? He’s got awful curly hair. You sure he’s no nigger?”

  Dellia Irvin caught up with Thurgood Marshall as he was leaving the courtroom. Tears formed ragged trails down her cheeks. “She had the most impressive face I’ve ever seen on a woman,” Marshall said later. “Real high cheekbones and a whole lot of red in that black. A whole lot of red, and a lot of Indian. And she just had these piercing eyes. . . .”

  “Lawyer, don’t you let my boy die, you understand that?” Dellia Irvin enjoined him. “She said it four times,” Marshall recalled. “Don’t you let my boy die. I could hardly go to sleep. I could see this face, and boy, it really . . .”

  Overcome himself, Marshall took the inconsolable woman into his arms; her body was trembling. “Don’t worry, honey.” Marshall tried to comfort her. “With the faith of our people and the grace of God, we’ll be back.” Tears welling in his eyes, too, Marshall assured her, “We’re going to stick by you. . . . We are going to keep on fighting.”

  On Monday he would be filing a motion for a new trial in Tavares, Marshall told the reporters outside the courthouse, before he climbed into the hearse. With Paul Perkins, Arnold DeMille of the Defender, Robert Ratcliffe of the Courier, and Milton “Buddy” Lonesome of the Baltimore Afro-American, he rode to the small hotel in Parramore, where some of the black news correspondents picked up their luggage, and then dashed on to the airport in Orlando.

  Mabel Norris Reese was waiting in the courthouse lobby. The sun was beginning to set, and she had a long drive back to Lake County, but something had to be said. What, she wasn’t sure, but something, even though she knew that he was ill. So she was waiting, and when she saw him ambling toward her, all the words she sought got lost in tears. Jesse Hunter gently clasped her arm; he tried to console her, suggested they might get something to eat.

  “Get away,” Reese said, pulling her arm away from him.

  The vehemence, restrained but unexpected, left Hunter aghast.

  “How could you do that?” she asked him, tears spilling from her eyes.

  Hunter swallowed. “I just had to,” he said.

  Reese shook her head, unable even to look at him.

  “It was my duty,” he said, his hoarse voice failing him. “As a prosecutor.”

  CHAPTER 22: A PLACE IN THE SUN

  LeRoy Collins is sworn in as Florida’s governor on January 4, 1955. (Courtesy of the State Archives of Florida)

  IDON’T SEE HOW in the name of God anybody could subject that boy to any more inhuman punishment. Florida is a bad place to live,” observed Baltimore Afro-American reporter Buddy Lonesome, dumbstruck by the cruelty he had witnessed both at Irvin’s trial and outside the courtroom. He was sitting next to Marshall, scribbling down notes for the next day’s paper, as their hired car sped toward the Orlando airport on Thursday night, February 14.

  The verdict made front-page news across the country on February 15. The reporters who’d covered the trial had hardly been surprised that Walter Irvin was found guilty; that Lake County justice had not been tempered by mercy, however, did confound many of them. Newspapers shouted outrage in boldface type, but even less inflammatory headlines noted the want of clemency, like that of Friday’s New York Times, which read: “All-White Jury in 3-Day Retrial of ’49 Groveland Rape Case Fails to Urge Mercy.” The national press expressed its expectation that in view of the beatings and shooting that Irvin had endured, Judge Truman Futch might exhibit some restraint, even in the absence of a recommendation from the jury, and sentence the retried and reconvicted Groveland boy to life imprisonment.

  Local newspapers praised the “tranquillity” of the trial atmosphere in Marion County, but editorials in the North’s leftist and black presses were unforgiving of white justice in central Florida. “Brutal and cynical white supremacy Florida has again announced its intentions of smearing the Constitution and the Bill of Rights with the blood of a Negro,” declared an editorial in the left-wing Daily Worker. “A lynch court presided over by a lynch judge has gone through a lynch trial of the 24-year-old Walter Lee Irvin before an all-white citizenry, 99 percent of which believed the defendant guilty. This court differed only in form from a white-supremacist mob. Instead of the savage whoops, there were the prejudiced appeals of Prosecutor Jesse Hunter.” The newspaper called on citizens to swamp Governor Fuller Warren’s office “with demands for a pardon to Irvin” and to protest the court’s action with work stoppages and demonstrations. The editorial noted, too, that “not one of the more than 14 bombings in Florida has produced a defendant.”

  After the “lynch trial” in Ocala, Walter Irvin had been returned by the Marion County sheriff to Raiford, and to death row. A New York Post reporter interviewed Irvin at the state prison, where he again wore the gray coveralls issued to condemned prisoners. Irvin admitted to no regrets for having refused the plea deal proposed by the governor. “I’m not sorry, not even now,” he said. “Naturally, I would rather have a life sentence than the electric chair, but I thought it wouldn’t be right for me to plead guilty when I’m not guilty.” The decision had been his alone, he told the reporter—“my attorneys didn’t tell me what to do. They left it up to me”—although he did ask them “why the state made that offer. They didn’t know. They knew the case had lots of publicity and maybe that was why.” Irvin himself “thought the state probably thought I was innocent. I was happy a
bout that, but I told my attorneys I didn’t think it would be fair to plead guilty. I would have been telling a lie on myself.” Even though, as Marshall had told him, he might be free in eight to ten years, barring bad behavior, if he accepted the deal, and despite the fact that, if he didn’t, his attorneys “couldn’t make me a definite promise about what would happen,” Irvin hadn’t needed time to think about it. “I knew I was taking a chance,” he told the Post reporter, “but if I had gotten justice like I should have . . .” Irvin’s voice faded. He did not complete the thought, but before he was led back to his cell, he added, “What can I say? I’m not guilty. And I still believe I have a chance.” That chance did not materialize for weeks, for months, as he waited for word from the NAACP.

  By March 6, Florida law enforcement had made little progress in the investigation into the murders of Harry T. Moore and his wife, but in New York City the “NAACP’s Great Night” benefit to honor them was drawing fifteen thousand people into Madison Square Garden. Cohosted by Lena Horne and Oscar Hammerstein II, the gala featured some of the greatest names in the 1950s entertainment industry, among them Henry Fonda, Harry Belafonte, Tallulah Bankhead, Ed Sullivan, and Jimmy Durante as well as the NAACP’s own great Thurgood Marshall. Among the performances in the program were a dramatic sketch, “Toll the Liberty Bell,” which included a piece celebrating Moore’s life, and “The Ballad of Harry Moore,” a poem written by Langston Hughes and set to music by Sammy Heyward. During the intermission, with charisma and rhetoric, Franklin Williams, who had been flown in from the West Coast for the occasion, made a dramatic appeal for funds. The show raised more than fifty thousand dollars for the NAACP. Later in the year, Rosa Moore accepted the 1952 Spingarn Medal, which was being awarded posthumously to her son, Harry.

  March 1952 also took Thurgood Marshall back to the South, this time to Clarendon County in South Carolina, where he was continuing the battle against school segregation in Briggs v. Elliott. The case—built upon the fact that public spending on the education of white children totaled four times the amount allocated to blacks—had already been argued by Marshall in the U.S. Supreme Court, where it had been vacated and remanded to a three-judge panel in federal district court in South Carolina. It was progressing much the way Charlie Houston had said it would, and the possibility of public school integration in the South was moving closer to becoming a reality. Marshall, as Houston’s disciple and successor in the education cases that would ultimately constitute Brown v. Board, was feeling pressure from within his own ranks and, more negatively, from his opponents. For Clarendon County afforded Marshall no escape from the atmosphere of menace he had experienced the month before in the counties of central Florida. In the postwar forties in the Clarendon County courthouse, the NAACP had tried unsuccessfully to prevent the state of South Carolina from executing George Stinney Jr., a ninety-pound fourteen-year-old boy convicted of murder. Rushed to the electric chair within months of his conviction, Stinney became the youngest person ever to be executed in the United States in the twentieth century. Racist sentiment had scarcely abated by 1952; at the end of the Briggs proceedings in the same county courthouse Marshall was delivered a stern warning by one of the opposing white lawyers: “If you show your black ass in Clarendon County ever again, you’re a dead man.”

  In April, the executive board of the NAACP appointed Marshall head of the Legal Defense Fund, and the position of special counsel became director-counsel. With the change in Marshall’s title came a change in status for the LDF, which was established as a subsidiary corporation; so Walter White was no longer Thurgood Marshall’s boss. In the summer the LDF moved into its own offices three blocks away from NAACP headquarters in midtown Manhattan. The Times Square building offered the LDF lawyers more space, if also a seedy foyer and gated elevator that reeked of urine. The building apparently did not provide much security; on more than one occasion, the staff found themselves without typewriters, as with little difficulty burglars could scale the fire escapes and pry open the windows under the cover of night.

  Despite its tax-exempt status, the LDF was always short on funds. As Marshall said, “We could only move when we had the money,” and to raise money, the lawyers frequently went on the road on speaking tours. Jack Greenberg attributed the success of this funding program largely to Marshall’s “charisma,” which the director-counsel wedded to the charity of the audiences at the LDF speaking engagements. Greenberg himself delivered between ten and twenty fund-raising speeches every month in the two years leading up to Brown in 1954, and Marshall did more. Apparent to them, as they prepared the appeals on behalf of Walter Irvin, was the especial “fund-raising and organizing potential” of the Groveland case. The story of Walter Irvin and the Groveland Boys riveted audiences across the country. On one occasion, in Richmond, Virginia, Greenberg simply read the statement given by Irvin from his hospital bed after he’d been shot by Sheriff McCall and his deputy; it was punctuated by gasps and sobs among the fifteen hundred people in the audience. That Greenberg had to ad-lib when he realized a page was missing from the text hardly mattered. The audience was in every way generous. Ultimately, the Groveland Boys story accounted for the LDF’s recovery of a thirty-nine-thousand-dollar shortfall, but not from the usual wealthy donors like Marshall Field III or from the significant annual donations that Thurgood was able to garner from associations like the black Masonic order, the Prince Hall Masons. Rather, it was collected from “black people of no great means” moved by a tale of cumulative injustice and heroic perseverance.

  Throughout the summer and fall of 1952, legal setbacks would continue to impede LDF progress on Walter Irvin’s case; his situation would become more desperate. Marshall had counted more than twenty errors in the prosecution of the second Groveland trial, and he had retained Alex Akerman and Paul Perkins to handle the appeals. Marshall and his team of lawyers had decided first to ask an established, well-connected Jacksonville lawyer to file an amicus, or friend-of-the-court, petition to explore the legality of procedure when a law enforcement officer kills a witness for a defendant in a capital case. In November 1952, the Florida Supreme Court denied the petition. Greenberg continued preparing the appeals while at the same time writing the first draft of the Brown brief.

  After the Thanksgiving weekend, Marshall checked into Washington’s Statler Hotel; it was the first time that he had visited the nation’s capital and not been required by law to stay in Jim Crow accommodations. He turned his suite into a war room in advance of his sixteenth appearance before the Supreme Court. Over the next ten days the most prominent black lawyers in the nation would be marching in and out of Marshall’s suite as they helped him prepare for battle in Briggs v. Elliott. He was edgy, irritable; he had been for months. “He’s aged so in the past five years,” his wife, Buster, had noted around the time he was working on the retrial in the Groveland Boys case. “His disposition’s changed—he’s nervous now where he used to be calm. This work is taking its toll of him. You know, it’s a discouraging job he’s set himself.” William Hastie, who had hosted the Marshalls in the Virgin Islands when Thurgood was recovering from his mysterious “Virus X” in 1946, noticed that the lawyer, once again, appeared to be exhausted “beyond the limits of the human anatomy.”

  On December 9, Marshall argued Briggs v. Elliott before the U.S. Supreme Court. Near the end of his argument—to Greenberg’s surprise, for in Florida he had seen Jesse Hunter use the same ploy—Marshall flashed the secret Masonic distress signal to his fellow Mason, Justice Robert Jackson, who responded in kind. Marshall returned to his seat with a grin.

  That same December day, in South Florida, regarding the Carver Village bombings in Miami, a federal grand jury indicted three Ku Klux Klan members for lying under oath to both the FBI and the grand jury. Having previously also indicted seven Klansmen for perjury in the matter of the high-speed chase that ran two NAACP lawyers and two black reporters out of Lake County, the FBI claimed to be making progress against KKK violence in Florida.
The murders of Harry T. Moore and his wife, however, remained unsolved.

  The months had passed into another year for Walter Irvin on death row. Depressed as he was for a want of reading material and a radio in his cell, he still believed in the chance that lay with Thurgood Marshall working on his appeal. Fellow inmates on death row meanwhile continued to take their last walk down the corridor to the electric chair. In June 1953, as Marshall had expected, the Florida Supreme Court reaffirmed the Marion County verdict of February 14, 1952. While the justices cited several of Judge Futch’s lax rulings on prosecutor Jesse Hunter’s “irregular” and “improper” remarks, they deemed them to be essentially harmless errors; they thus did not find them significant enough to warrant reversal. One month later, Paul Perkins argued before the Florida Supreme Court for a stay of execution, and that, too, was denied, although the state court did grant the defense a ninety-day stay in which to appeal to the U.S. Supreme Court.

  The defense team in New York was otherwise swamped that summer. The justices of the U.S. Supreme Court were requiring more clarity in the five school segregation cases now included in Brown v. Board, and had ordered all five of them to be reargued in terms of the authors’ intent in drafting the equal protection clause in the Fourteenth Amendment, so as to determine whether the abolishment of segregation in public schools fell under the powers of Congress or indeed of any federal agency. To build the case, Marshall enlisted more than two hundred lawyers and historians nationwide. He traveled up, down, and across the country to consult with them in marathon conferences, and when he returned to New York, where he met in seminar-style discussions with his LDF team of lawyers, prominent associates, and scholarly experts, he strove to keep the out-of-town attorneys and historians abreast of developments by telephone and telegraph. No one on Marshall’s legal staff took a vacation day that summer, or fall; secretaries not only worked double shifts but worked them six and seven days a week—everyone in the LDF offices was busy making history. Marshall himself seemed never to leave his desk. Disheveled, his tie loosened and top shirt buttons undone, a cigarette dangling from his lips, he might suggest, come the middle of the night, “Why don’t we take a fifteen minute break.” So the scholar John Hope Franklin, then of Howard University, remembered on one occasion when they had worked into the hours of the early morning, except that Franklin had left Marshall to his fifteen minutes in the office while he stole back to his room at the Algonquin Hotel and slept through what was left of the night. He found Marshall still at his desk the next morning.