Jackhammered

by Ed Bethune

  The governor’s lawyers nominated me to accompany the new sheriff.

  Mr. Childers and I boarded a small single engine Bonanza at Central Flying Service in Little Rock shortly after lunch. After a short flight, we landed on a grass airfield just west of Morrilton. There Gene Wirges met us and drove us to his newspaper office. He told us the streets around the courthouse were full of irate Hawkins supporters, but he said a few people who supported our cause were in the crowd. The director of the Arkansas State Police called me at the newspaper office and warned me that we were walking into a hornet’s nest. He urged us to use extreme caution. Mr. Childers, Gene Wirges, and I debated the situation, trying to decide whether we should go to the courthouse to finish what Governor Rockefeller had started. It would be risky, but it was the right thing to do. The governor was dedicated to clean government and Sheriff Hawkins was the poster-boy for county level corruption. We decided to go.

  By the time we got to the courthouse there were well over five hundred Hawkins supporters milling around. Most were on foot and quite a few were armed. They were carrying pistols, rifles, and shotguns and making no effort to conceal the weapons. Many others were sitting in their cars and trucks, armed and ready. Two state police troopers escorted us into the courthouse where a deputy sheriff told us that Sheriff Hawkins was out of town and he did not have a key to the office. He said, “If you want to get in you will just have to wait for the sheriff to return.” That was an obvious put-off so we said we would just take a seat on a bench in the hall and wait for Marlin Hawkins to return, or for someone to open the door and let us in.

  Meanwhile, the Hawkins supporters were circulating inflammatory stories to keep their people fired up. One of the stories was that Gene Wirges and the state police, operating under the authority of the governor, intended to go to Marlin’s home and take the keys to the office from his wife, by force if necessary. To make matters worse, Hawkins, who was in Little Rock, gave an interview to the press alleging that the governor was using gestapo tactics at the courthouse and at his residence.

  The mayor of Morrilton, Thomas Hickey, got so upset that he came to the courthouse with a shotgun and pistols holstered on his hip. He demanded that the state police allow his city police officers to enter the building so that they could stop any attempt we might make to take over the sheriff’s office. The state police relented because they had no legal right to keep the local authorities out of the courthouse. Once they were in the building the mayor stationed an inexperienced rookie, Gene Price, to stand in front of the door to the sheriff’s office and—unbeknownst to me—told Price to use his sawed-off shotgun to shoot anyone who tried to enter the sheriff’s office. By then some of the sheriff’s deputies were also in the building. The atmosphere had reached boiling point.

  Steve Barnes, who later became Arkansas’s most revered TV news reporter, was at the time a cub reporter for Channel 11, KTHV-TV, in Little Rock. He was in Morrilton to cover the story and somehow managed to get inside the courthouse. Mr. Childers and I had been sitting on the bench waiting for half an hour. It was nearing the end of the day and Barnes was running out of time to get a story on the evening news. He asked me if Mr. Childers and I would allow him to film a short video of us in front of the door leading into the sheriff’s office.

  I saw no harm in that so we agreed and Mr. Childers and I started down the hall toward the sheriff’s office. Steve followed with his camera up and ready to roll. As we got close to the office the rookie officer, Gene Price, jumped out of the shadows and stuck his shotgun in my stomach, saying, “Halt, I’m fixin’ to shoot you.” Thank God I had just finished a four-year tour as a special agent of the FBI, otherwise I might have fainted dead away.

  The rookie cop was shaking and his voice was squeaky and shrill. His jittery eyes, only a foot or so from mine, told the story. He was the one with the gun, but he was scared to death. As he pushed the gun harder into my belly, I realized that my life depended on the wiring between the rookie’s brain and his trigger finger and I did not like the odds.

  At that life-and-death moment, a state trooper stepped up beside me and told Price to calm down. The trooper took hold of the barrel of the shotgun and slowly lifted it straight up as he gently continued his effort to soothe Price. I held my breath as the muzzle started its life-long journey upward. It passed my chest, then my Adam’s apple, then my mouth, and finally it passed directly between my eyes. My mind was abuzz and I cannot remember what I was thinking—I only remember that it was a prayer.

  Once the muzzle of the shotgun was up and out of the way, the confrontation with Price was over, but it was immediately apparent that we should abandon the attempt to install a new sheriff, at least for the moment. I told the state police and Steve Barnes that Sheriff Childers and I were going to Little Rock where I would appeal to the attorney general to seek a writ of quo warranto, a legal proceeding that forces an ousted official—Marlin Hawkins in this case—to show by what warrant he continues to serve.

  Mr. Childers and I went outside and stood on the courthouse steps where I gave an impromptu interview to others in the media. As we were speaking, a fight broke out. A Hawkins supporter attacked a Rockefeller supporter and bloodied his nose as they rolled down the courthouse steps. I told the media that I would be at the attorney general’s office first thing the next day. Sheriff Childers and I got into a state police car and headed for Little Rock. The crisis was over, at least for the day, and I was lucky to be alive.

  The next day, I confronted Attorney General Joe Purcell, a Democrat, and urged him to seek a writ of quo warranto. He grinned, and said nothing. He knew, and I learned later, that Marlin Hawkins and several friends had paid the judgment that morning by tendering a certified check for $10,082 to the county treasurer.

  Thus ended the fiasco for which my friend, Cecil Tedder, awarded me the fictitious Order of the Purple Navel.

  It was about this time that Lana and I bought our second house. Jim Baugh Jones, a good friend, was moving to a new home, so we bought the small three-bedroom house at One Meadowlane Drive in Searcy, where he and his family had lived for several years.

  Shortly thereafter, I learned that the prosecuting attorney for the First Judicial District, Lloyd Henry, had died of a heart attack while exercising at home. The district included Searcy and White County, and it extended a hundred miles east to the Mississippi River, taking in the Delta counties of Phillips, Lee, St. Francis, and Woodruff. The governor’s people contacted Odell Pollard to see if I would be interested in taking an appointment to fill the unexpired term of one year. I immediately agreed and took to my new job like a duck to water. It was a natural for me since I had previous experience as a deputy prosecutor and four years experience as a FBI agent.

  During my year as prosecutor I traveled Eastern Arkansas with Elmo Taylor, the longtime circuit judge of the First Judicial District. Judge Taylor was an old time, conservative judge. He gave no slack to those charged with crime, and he had little use for the lawyers who regularly defended such people. He was especially hostile to a Jewish lawyer from Little Rock, Jack Levy, who often appeared on behalf of indigents facing punishment for serious crimes. Elmo loved to pick on the lawyers and he delighted in making them look incompetent. You never knew whom Elmo would use as a foil, but when Jack Levy showed up for docket call, the rest of us relaxed. Poor Jack, a good guy, was like a lightning rod for Elmo’s sarcasm. All the lawyers loved Jack Levy.

  The criminal justice process in Eastern Arkansas forty years ago was an embarrassment, and that is putting it mildly. When Judge Taylor came into a county seat for court, the sheriff of the county would bring all the prisoners from the jail to the court-room for docket call and arraignment. Judge Taylor would summarily appoint lawyers to counsel with the prisoners who had no representation. The lawyer would confer with the prisoner for a few minutes then go into a huddle with the sheriff who would offer a plea negotiation that he had worked out with the local deputy prosecuting attorney. If a plea wa
s agreed to, the prisoner would go before Judge Taylor who would take a plea of guilty from the prisoner and then commence a lecture about the evils of criminal life. When he wound down, Judge Taylor would ask me if I had a recommendation. I would recommend the punishment my deputy had agreed to in the plea negotiation and Judge Taylor would impose sentence. We repeated this scenario for all those who intended to plead guilty, which was usually the majority of the cases on the docket. For those who pleaded not guilty, a date was set for trial and bail was set. The entire process bore close resemblance to an assembly line. On one occasion during Judge Taylor’s favorite speech about how the moment was a red-letter day in the life of the defendant, he pointed at me and asked the defendant, “Do you know who that man is?” The defendant said, “Yes sir, he be’s The Recommender.”

  Everyone in the courtroom laughed, but the moment sadly demonstrated the need to reform the criminal justice system. I vowed to use my new position to encourage an upgrade of our antiquated laws of criminal procedure.

  Any reform of the system would be complicated because the state of Arkansas had no central authority or repository for criminal procedure law. The pertinent laws were scattered through the constitution, the statute books, and the case reports. It was truly a hodgepodge and no one knew, with confidence, how to proceed when prosecuting or defending a criminal case. The leaders of the Arkansas Bar Association were looking for volunteers to head up a reform effort, and I jumped at the chance to take an important role. I wrote an article entitled “It’s Assizetime in Arkansas” that called for all judges and members of the bar to get behind our reform effort. I worked so hard coordinating our state effort with a national reform effort sponsored by the American Bar Association that I became the de facto leader of the reform movement in Arkansas. Chief Justice Carlton Harris asked me to chair the procedures committee of the newly organized Arkansas Criminal Code Revision Commission. Justice John Fogleman, Jack Lessenberry, and Bill Thompson were members of my committee. We planned to base our work on the American Bar Association Standards for Criminal Justice, a body of excellent work put together by some of the finest minds in the legal profession. We worked on our own time, mostly on weekends. It was a grand volunteer effort. We got a small, $25,000 stipend from the legislature to hire law students as reporters. That helped our committee finish our work in less than a year.

  The rules we wrote were good, but Arkansas, like many southern states, had always let the legislature control the laws of criminal procedure. That is the main reason we had a hodgepodge of rules that no one could understand. I learned in my work with reform leaders in other states that some states had transferred the power to write procedural rules to their state supreme court. Knowing that it would be difficult to get the Arkansas legislature to adopt our proposed rules, I drafted a bill similar to one in Kentucky. It provided for the Arkansas legislature to quitclaim authority for rules of criminal procedure to the Arkansas Supreme Court. I took the draft to Attorney General Ray Thornton who thought it was a good idea, and with the help of many people, the proposal passed and became Act 470 of 1971. Shortly thereafter, the Arkansas Supreme Court adopted the work of my committee as the official Arkansas Rules of Criminal Procedure for all courts in the state of Arkansas.

  Arkansas became the poster child for a major drive sponsored by the American Bar Association to change and improve the criminal justice system in all fifty states. The American Bar Association dispatched me to tell the Arkansas story to judges and lawyers all across the USA, from Alaska to Washington, DC. I went to more than a dozen states. My mission was to urge other jurisdictions to do what “little Arkansas” had done on a meager budget of $25,000. The unmistakable message: How could supposedly more enlightened states with greater wealth refuse to upgrade their laws?

  Governor Rockefeller lost his try for a third term in 1970. He had accomplished a lot, but the Democrats wanted desperately to win the office and return to power. They wisely rejected the Old Guard forces and nominated a clean, wholesome young lawyer, Dale Bumpers, to be their candidate. Bumpers won, but fair-minded political observers gave Governor Rockefeller credit for breaking up the Old Guard and opening up Arkansas politics to a new and better breed of Democrats.

  Toward the end of my tenure as prosecuting attorney, the sheriff of White County arrested a young man he caught smoking a marijuana cigarette. He brought him to see me because the young man was a student at Harding University, a conservative Christian school in Searcy. I told the young man that I would not prosecute if he would go back to the campus and tell the dean that he had made a mistake he would never again make. He seemed flustered by my offer, so I said, “Look, they will understand. They will give you a second chance.” He shook his head and said, “Hell, Mister, at Harding they kick you out for smoking a regular cigarette.” I told the sheriff to let him go and later told the story to a friend at Harding who laughed and said it was good that the students worried that Harding would react sternly to misbehavior, particularly drug use.

  In the final week of his governorship, Winthrop Rockefeller commuted the sentences of twenty-three men on death row. He said he did it because he did not believe in capital punishment. I had prosecuted five of the twenty-three and felt the governor had overstepped his constitutional authority to commute prison sentences. I wrote him a letter arguing that he had authority to issue commutations on a case-by-case basis, but the issuance of carte blanche commutations was essentially an attempt to change the settled law in Arkansas. My letter created a bit of a flap in the media so the governor’s chief of staff, Bob Faulkner, chided me for criticizing the man who had given me my appointment. Governor Rockefeller and I finished our terms of office a few days later and that was the end of the commutation issue.

  I rejoined the law firm. Jerry Cavaneau had finished his tour with the Navy, so he was back with us at the firm. I buried myself in the practice of law, working hard on a variety of civil matters and handling an occasional criminal defense, but I was restless. As prosecuting attorney and chair of the procedures committee of the Criminal Code Revision Commission, I had tasted the feeling of accomplishment one gets from public service, and I liked it.

  16

  DEFEAT, DOUBT, AND SUCCESS

  Failure is not falling down but refusing to get up.

  Chinese Proverb

  The effort to build a viable two-party system in Arkansas suffered a setback in 1970. Orval Faubus and the Old Guard Democrats tried to retake the governor’s office, but Dale Bumpers won the Democrat primary. He then turned back Governor Rockefeller’s try for a third two-year term. The Democrats, new and rejuvenated, were back in power. The Old Guard was dead, thanks to the mortal blows delivered by Governor Rockefeller and the Republicans in 1966 and 1968. Unfortunately, the urgency to create a competitive two-party system died with it.

  As the 1972 presidential election year began, President Richard Nixon was reasonably popular and the national Democrats were imploding. Their nominee-to-be, George McGovern, was running on a platform of ending the Vietnam War and openly advocating a guaranteed minimum income for the nation’s poor. His opponents in the Democrat party portrayed him as a radical. They labeled him as the candidate of “amnesty (for draft dodgers), abortion, and acid.” Arkansas’s own Congressman Wilbur Mills was one of the Democratic candidates who tried, unsuccessfully, to wrest the nomination from McGovern.

  It was going to be a good year for Republicans nationally but we needed something to jumpstart our local effort to elect Republicans. The leaders of the Arkansas Republican party came up with the idea to field candidates for the top five constitutional offices, all of whom would run as a team known as Five for the Future. It was a grand concept, but it was destined to fail. It was too much to ask of the Arkansan electorate. It was one thing to get rid of the Old Guard by electing Winthrop Rockefeller, but once Faubus was gone, there was no compelling need to vote for Republican candidates. If a living, breathing Democrat was on the ballot for state or local office in Arkan
sas in 1972, a Republican candidate for that office had no chance to win. Arkansas, a reliably Democrat state since Reconstruction, was not about to open the door for Republicans. Nevertheless, we needed candidates to fight the good fight.

  I, having achieved a modest level of public notoriety, was a natural to run for attorney general. Lana and I knew it would be hard, if not impossible, to win but we took the leap. After all, we reasoned, how can you build a two-party system if people are not willing to run as Republicans?

  Jim Guy Tucker, prosecuting attorney for Pulaski County, and Bill Thompson, who later became the prosecuting attorney for Sebastian County, entered the race for attorney general as Democrats. They had a spirited primary contest and Jim Guy emerged as the Democratic nominee. I would face him on Election Day.

  We worked as hard as we could, but campaigning is all about getting your name out, and that takes money, lots of it. We naively assumed when we entered the race that people would contribute because they wanted to have good government and competition in politics, and many contributed for those reasons, but not enough. We managed to raise around $65,000, far short of the amount needed for a statewide campaign. We had a measure of identity in Little Rock where Lana and I grew up and went to school, and in White County where I had just finished my term as prosecuting attorney, but elsewhere we were virtual unknowns.

  The race brought out the worst in some people. In August, we went to the Watermelon Festival in Hope, Arkansas and worked the crowd until dark. When we got back to our car there were several pieces of profane and obscene hate mail under the windshield wipers, all making the same point: Republicans are not welcome in Hempstead County! That, unfortunately, was typical of the reception we received in many counties in 1972.

  We did get a few good breaks, one in particular. My opponent, Jim Guy Tucker, had incurred the wrath of the Little Rock Police Department for a number of reasons related to the way he handled criminal cases. Since I was a former FBI agent and had been a tough prosecuting attorney, the police naturally gravitated to my candidacy and that, along with ties from our schooldays, helped us immensely in Pulaski County. A defining encounter occurred when the Little Rock Junior Chamber of Commerce held a minidebate and I challenged Jim Guy to reconcile his newfound advocacy for the death penalty with the fact that he was a charter member of the Arkansas chapter of the American Civil Liberties Union. Tucker, caught off guard, gave an indecipherable response that firmly cast him as a liberal who was trying to sound conservative. Jim Guy carried that burden for the rest of his political career. George Fisher, the noted cartoonist for the Arkansas Gazette captured it best, later on, when he depicted Tucker as a liberal, in camouflage hunting gear with a pack of Red Man chewing tobacco in his back pocket.