The sessions with James continued until Saturday, August 29, when we met with the judge, the prosecutor and representatives of Thames and HBO, to hammer out a set of policies and procedures covering all aspects of the trial and preparation.
One problem that confronted me resulted from my status as the attorney for the defendant, now representing him in a trial for television. This was probably an unprecedented position for a U.S. attorney.
My position that the defendant’s interests were primary required me frequently to be uncooperative with the production team. Requests that would in my view materially compromise the defense case or detract from the rights that the defendant would have in a real trial were unacceptable unless the benefit of the proceeding itself was commensurate with the concession. The greatest area of contention focused on the element of surprise, a primary asset of the defense in any criminal proceeding but anathema to a tightly timed film production schedule. The production team wanted us to disclose to the producer and the prosecution the names of every defense witness and a summary of their testimony so that the number of side bar disputes would be minimized. This would have unacceptably contravened the defendant’s interests, so a compromise schedule of disclosure was agreed upon and producer Saltman gave us a pledge of confidentiality with respect to all defense evidence and leads incurred in our investigation.
On the sensitive issue of remuneration for witnesses it was agreed that they would be paid a nominal amount, forty dollars, with compensation for expenses and any loss of earnings, which would necessarily vary from person to person.
Eventually a manual of procedures was developed for the trial. It was agreed that to the maximum extent possible the Tennessee Rules of Criminal Procedure (TRCP) would be followed. The most significant deviations from these rules were ultimately the following:
Since a number of witnesses had died or were otherwise unavailable, it was agreed that their prior statements could be put on the record if they were taken under oath, made to a law enforcement official, or otherwise deemed reliable and relevant by the judge. Any prior inconsistent statements could also be provided at the same time as a substitute for cross-examination.
The judge ruled that with the exception of our security witnesses we had to give the prosecution full disclosure of our case. The judge reasoned that although the defense had not formally requested discovery of the state’s case, it had been allowed access to the district attorney general’s 1968 file. This of course didn’t take into account the embargo of a wide range of other evidence and documentation, such as that produced by the HSCA, which is sealed until 2029.
A sine qua non condition of the trial was the understanding that the defendant would take the stand, testify, and submit to cross-examination. Since James had wanted this opportunity for twenty-four years, he readily agreed and in fact testified for thirteen hours.
We agreed that each side would give notice (according to an agreed-upon schedule) to the other side regarding the various categories of defense witnesses: regular, surprise and security. We were concerned primarily with security witnesses John McFerren, Tim Kirk, and Betty Spates, who feared for their personal safety. We were certain that they wouldn’t testify unless their identities were protected at least prior to their testimony.
The producers believed that James’s guilty plea had to be dealt with in some way. Eventually it was agreed that I would deliver a twenty-minute speech to the jury, explaining the reasons and conditions surrounding the plea, and Hickman would then be given five minutes to rebut.
We would insist that the defense investigation be entirely independent from the prosecution and the producers, and would share information with the production team (which was agreed to be in confidence) only to the extent that it was absolutely essential to do so. Thus we operated on a strictly need-to-know basis whenever possible.
James’s examination was scheduled to begin at 9:00 a.m. the following Tuesday, September 1. That morning we crowded into a relatively small prison conference room, made even smaller by the presence of the camera equipment. My direct examination lasted all of that day. When at one point during a break the judge made an adverse comment about prison food, suggesting going out to eat, James shyly said, “Take me with you,” and then, amid laughter, added, “I’ll even pay.”
Hickman cross-examined James for most of the following day, after which I conducted redirect, then Hickman began his recross-examination.
One morning while we were preparing for James’s testimony, I arranged to interview inmate Tim Kirk.
I asked Kirk if he would agree to testify or give a statement about the offer of a contract to kill James that was communicated to him by Arthur Baldwin back in 1978. Kirk wanted to help James but was very reluctant because of the high profile he would get and the impact such assertions might have on his potential parole and, indeed, his safety inside the prison. Finally, on a subsequent visit, he refused to testify publicly but agreed to provide a current statement or affidavit if I could arrange for his name to be withheld.
With the examination of James completed on September 2, I resumed my review of the attorney general’s file in Memphis. There were a number of photographs of the scene, most of which appeared to have been taken the day after the crime. The brush area was shown to be clear, and piles of cut twigs and branches were scattered around. Some photographs taken from the Lorraine balcony showed the rooming house and the open bathroom window. In most photographs a large tree branch prominently hung over the retaining wall at the edge of the brush area. (See photographs #12 and 13.)
Photographs of footprints near the top of the alleyway were of immediate interest. Also in the file was a statement listing three officers on the scene shortly after the shooting as patrolmen Torrence N. Landers, Carroll Dunn, and J. B. Hodges. They had apparently climbed up onto the wall from Mulberry Street, made their way through the bushes to the edge of the building, and near the top of the alleyway between the two wings of the rooming house stumbled on the large (13½"–14") footprints in the wet soil heading toward the door to the building. This door at the end of the alleyway opened on to a landing that led to the basement and off to the right into Jim’s Grill. Landers’s statement said that they proceeded down the alley but only perfunctorily checked the basement underneath the rooming house and the grill because they did not have a flashlight. I thought it was extraordinary that the basement wasn’t inspected.
Though the footprints had been photographed and a plaster cast made of them, this evidence was ignored.
Before returning home to London, Jean and I went to see witness James McCraw, the former cab driver, only to be told that he had been rushed to the hospital. There McCraw expressed his concern that he might not make it to late January, when the trial was scheduled to be held, because of his failing health. His evidence was vitally important: the state of intoxication of the state’s chief witness, the fact that the bathroom was empty minutes before the shooting, and the existence of a second rifle which had never been disclosed before.
We decided to take a declaration under oath from him as soon as he was released from the hospital. Though by taking his statement we would have to provide it to the prosecution in advance of his testimony, at least then his information would be preserved.
HBO issued its final commitment to the project on September 17, and Thames confirmed that we could proceed. A filming date for the trial was fixed for January 25, 1993, with international airing scheduled for the twenty-fifth anniversary of Dr. King’s death, April 4, 1993. We had three-and-a-half months to investigate and prepare for trial. Considering the enormity of the task, it was no time at all.
19
Pretrial Investigations: September–October 1992
AT THE OUTSET we had no illusions about our task. It would not be enough to show reasonable doubt of James’s guilt because the media had already convicted him. We would have to prove his innocence beyond a reasonable doubt. The strategy would be twofold. We would seek to introd
uce evidence that directly contravened each significant aspect of the state’s case and then, to the extent possible, attempt to show how the killing actually occurred. We intended to go well beyond the actual murder to demonstrate the existence and extent of a cover-up. There was no shortage of material and leads, but how much could be turned into hard evidence to put before a jury?
Hickman and his prosecution team had an opportunity to conduct a fresh investigation of the case. It was thus conceivable that he could come up with a theory different from that advanced by the state in 1969. Eventually, we came to believe that he would prosecute the case along the lines set out in the MPD/FBI reports, relying largely on circumstantial evidence.
There were several outstanding leads from my previous investigatory work to follow up. Top of the list was Betty Spates. I had previously instructed Ken Herman to keep in touch with her from time to time, hoping that she would develop enough trust to reveal whatever it was that she knew. A number of other people had to be located, including: Randy Rosenson; Solomon Jones, who had been missing from Memphis for years; William Reed and Ray Hendrix (Jim’s Grill customers who left the grill shortly before 6:00 p.m.); and service station attendant Willie Green—all of whom were potential alibi witnesses as to James’s whereabouts at the time of the killing; and of course, rooming house manager Bessie Brewer.
I wanted to interview each person we could identify as being in Jim’s Grill that afternoon, as well as each person who was in the rooming house, each fireman on duty at fire station 2, each member of TACT 10 on rest break in the fire station at the time, and the employees of the Tayloe Paper and Seabrook Wallpaper companies across the street from the rooming house.
It was obviously important to interview any police officers who were at the scene or involved in the investigation in any way, as well as members of Dr. King’s entourage and the staff at the Lorraine, and a number of other persons who were in the area.
Then there were the individual members of the Invaders, the local black civil rights leadership, and ordinary community people who had never previously been properly interviewed. Further afield, the stories of people like Morris Davis and Jules “Ricco” Kimbel needed to be further checked out, and James’s movements in Montreal and Toronto would have to be looked at.
It was obviously essential to obtain information about the role of organized crime. The conversation John McFerren accidentally overheard in Frank C. Liberto’s office provided a rare insight into its potential involvement, but I knew it wasn’t going to be easy to break into that closed community.
Ultimately, of course, there was the question of where the conspiracy went and who provided the money. This would inevitably require that the investigation extend to organized crime’s structure beyond Memphis and in particular Carlos Marcello’s organization in New Orleans. I knew that we would have to “follow the money,” because mob involvement would have been for money.
SINCE JAMES HAD TRAVELED extensively in the year following his escape from Jefferson City, I had to organize an investigation that not only blanketed Memphis and rural Tennessee but extended to California in the west, Toronto and Montreal in the north, Texas in the southwest, and virtually every area of the South, though with a focus on New Orleans, Atlanta, Birmingham, and Miami. I would also need to obtain information from former prisoners and staff at Missouri State Penitentiary as well as selective others at Brushy Mountain.
I had to assemble a team of investigators. Assignments would be given to each of them on a need-to-know basis, with most of them not knowing one another and no one else privy to the overall scope of the work. Most of them would be licensed private investigators in their particular areas. My team rapidly grew to twenty-two.
Separating the relatively few valuable pieces of material in the attorney general’s files from the overwhelming amount of irrelevant and false information and accusations was time-consuming. We made notes of leads that appeared to have possible significance. Frequently, these seemed not to have been followed up.
Certain documents in the attorney general’s files related to what Betty Spates might know about the murder. One was a report of a claim by Memphis bailbondsman Alexander Wright, who had come to know Betty Spates in 1969 when he was arranging bail for her brother, Eddie Lee Eldridge. The report was dated February 3, 1969, and issued by Detective J. C. Davis of the MPD intelligence division. Davis wrote that:
Information from a reliable source has been received by the above and this information is that Mr. WRIGHT at State Surety Bonding Company was quoted as saying, “I know two women who were working in the building where the shot came from that killed King. They told me that RAY was across Main Street and not in the building when the shot was fired. The man who killed King is the owner of the flop house, and not RAY.” Mr. Wright also stated that policemen were in the building when the shot was fired that killed King and that they had been coming there prior to the day that King was killed.
After these two women were questioned by the police and FBI they were fired by their boss, the man who killed Dr. King. They are willing to take the witness stand in court.
A handwritten note under the typed report initialed by the attorney general’s chief investigator John Carlisle stated:
We have a tape in our offices that was taken from a tape that O’Neil [Wright’s boss, who recorded Betty’s comments] brought to this office on January 30.
The second document relating to Betty Spates was Mr. Carlisle’s report of an interview he conducted with James Alexander Wright on February 10, 1969. Mr. Wright confirmed that Betty told him Ray was not guilty because she knew about his movements that afternoon and that her “boss man” [Loyd Jowers] was out in the back and was the only one who could have killed Dr. King.
The third document purports to be an interview with Betty Spates on February 12, 1969, in which she appears to deny ever making the statement alleged by Wright. It is curious that this statement is unsigned, although a space was left for the signature of “Mrs. Betty Spates.”
Wright’s description of Spates’s account of James’s movements on the afternoon of April 4 didn’t agree with what I knew about the case, but I remembered that when I spoke with her some four years earlier she was adamant about James’s innocence, though she refused to provide details. It appeared to me that, however clumsy her effort, she had tried back in 1969 to provide James with an alibi because she knew he was innocent. As I suspected, she had indeed seen the gun and now I better understood her fear. I wondered what else she knew.
Wright confirmed his story to me, adding that Betty had told him that a number of MPD plainclothes and uniformed policemen came to the grill, apparently to inspect the place, during the week leading up to the killing. After the killing she spoke to him again and said that she knew Ray couldn’t have done it because he was upstairs drunk and that they had found the gun within fifteen feet of the killing out in the back by the corner of the building. (It occurred to me that this was the area where the footprints leading into the alley were found.)
CHARLES CABBAGE, one of the founding leaders of the Invaders and the BOP back in the 1960s, agreed to contact each available former member of the Invaders and try to arrange a session with me.
Former firemen Floyd Newsom and Norvell Wallace agreed to testify about their unexpected transfer from fire station 2 on April 4. Though it was likely that the prosecution would attempt to dismiss it as a coincidence, I believed it was one of a number of inexplicable official actions indicative of a conspiracy.
Olivia Hayes, who worked at the Lorraine as a receptionist during 1968, reluctantly told me that Dr. King was supposed to be in room 202 on the ground level but somehow was switched to the balcony room, 306. She didn’t admit to knowing why. Here was further confirmation of the room change. When I pressed her, perhaps too insistently, she clammed up.
THE TAYLOE PAPER COMPANY was located across the street from Jim’s Grill in 1968. A number of its employees used to stop in the grill after work for
a beer and a game of shuffleboard or pinball. Two of those persons, Kenneth Foster and David Wood, gave statements at the time confirming that they observed a white Mustang parked in front of Jim’s Grill, but they were not available in 1992.
Steve Cupples, who had worked at Tayloe Paper back in 1968 and had been in Jim’s Grill on the evening of April 4, agreed to be interviewed. He remembered leaving work on April 4 sometime between 5:00 and 5:20, parking his car across the street from Jim’s Grill.
“Sure, I remember a Mustang in front of the bar,” he said. “I got dust on my new blue suit squeezing between its rear and the front bumper of the car parked tightly behind it.” He said he was certain that the Mustang was there at 5:15 or 5:20 and that its back bumper was “virtually even” with the north entrance door of the rooming house. (See chart 4 for the lineup of cars in the rooming house area on South Main at 5:30 on April 4.)
Cupples recalled that the FBI visited him on four occasions, twice at home and twice at work. They asked him the same questions every time, showed him photographs of the same person, whom he didn’t recognize, and he believes they asked him not to speak with anyone about what he saw. When asked about other persons who “hung out” in the area, he commented that there was a black street artist who used to “hang out” in the grill. This artist was almost a “fixture” but Cupples didn’t remember the familiar figure being there that day. He agreed to help us in any way he could.
Jimmy Walker, deputy coroner for the city of Atlanta in 1992, had also worked at Tayloe. He vaguely recalled that on the afternoon of April 4 he had to park just behind the fire hydrant, in front of Canipe’s, and he periodically opened the door of the grill to check his car. He noticed the white Mustang in front of the grill because it was in the area where he usually tried to park. He agreed to come to Memphis and undergo hypnosis in an effort to sharpen his memory. When he did so in early 1993, he confirmed his story.
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