Jackhammered

by Ed Bethune

  As counsel appointed by the court, it was my duty to defend Billy to the best of my ability. In my early days, I worried about defending someone who might be guilty, but I came to understand that it was not my duty to get an accused off, free and clear. It was my duty to see that they got a fair trial and fair treatment. That included the obligation to challenge the testimony of all witnesses. The prosecuting attorney has a duty to present, as vigorously as he or she can, all legitimate evidence of guilt. If the testimony can stand the light of day, so be it. On the other hand, if the testimony is weak and questionable, then the jury ought to know that too. Our adversarial system for finding the truth is not perfect, but it is the best that man has ever devised.

  All’s well that ends well, Shakespeare says, and that was true in the case of Billy the Bank Robber. It was not long before the FBI had Billy again and soon thereafter, he helped them clear up a rash of bank robberies that had plagued state, local, and federal authorities for years.

  The second case in the spring of 1973 that attracted some attention involved Franklin Ray, a poor farmhand from Bald Knob. Franklin was locked up in the White County jail for fifty-eight days on a charge of burglary and grand larceny. The prosecuting attorney moved the court to deny bail and put Franklin’s case off for four more months alleging that other cases, civil and criminal, deserved priority. Franklin’s family came to me to see if I could do anything to help Franklin who was about to spend another one hundred and twenty days in jail.

  As it turned out, I had just finished my work on the Criminal Code Revision Commission, and I knew that the Arkansas Supreme Court had just adopted two new procedural rules regarding the right of an accused to a speedy trial. The rules said jail cases have precedence over bail cases, and criminal cases have precedence over civil cases. There was no excuse for holding Franklin without bail in the county jail. He was entitled, as a matter of law, to a speedy trial. When I filed a petition demanding the state to either try Franklin or let him out on bail, it upset the prosecutor and the judge. It was a new wrinkle for them. They did not like someone telling them how to run their criminal docket. Arkansas was leading the nation in the effort to implement new and better standards for criminal justice, but the reality of everyday practice in our rural state lagged far behind our national reform effort.

  I filed a petition for extraordinary relief in the Supreme Court of Arkansas on March 16, 1973 and a few days later the court granted my request and directed the trial court to try the defendant in thirty days or release him on his own recognizance. A few weeks later, April 4, Franklin got his trial. The jury found him guilty and the judge sentenced him to two years in the state penitentiary. As it turned out, Franklin got an early parole and release from prison before the date he would have gotten to trial if I had not filed the petition.

  The case was a garden-variety burglary and grand larceny case. The prosecutor had evidence that Franklin had stolen things that did not belong to him but this little case, otherwise unremarkable, became a benchmark in Arkansas legal history. It was the first case decided after the Arkansas Supreme Court began adopting the new rules of criminal procedure that I had worked on in 1970 and 1971. It also recognized that the court, having adopted the two rules on speedy trial, would henceforth use its new authority (Act 470 of 1971) to promulgate rules of procedure. Gone forever was the anachronistic and antiquated notion that the legislature would establish rules of procedure based more on political pressure than logic. I never made a dime for representing Franklin, but I remember the experience fondly because in my mind, it justified all the days and weekends I gave to the volunteer effort to upgrade the criminal procedure law of our state.

  My handling of the bank robbery case and the speedy trial case led to several other high profile cases.

  In August of 1973, twenty-three men charged with the crime of nightriding hired me to represent them. It turned out to be the most unusual case I would ever handle.

  The events giving rise to the nightriding charge began a few years earlier. In the midst of the rebellious wave that swept the nation in the late 1960s, a group of young people committed to a communal lifestyle moved into the very small community of Greer’s Ferry, Arkansas. Their leader was Dixon Bowles, an accomplished musician who got his start with the Dan Blocker singers in Hollywood. The newcomers bought a big commercial chicken-house, converted it into living quarters for members of the commune, and began to find odd jobs in and around beautiful Greer’s Ferry Lake, a Corps of Engineer’s project dedicated in 1963 by President John F. Kennedy.

  Their arrival created a stir among the local residents, most of whom were descendents of traditional, conservative Arkansans who settled the area in the early 1800s. They did not want a commune in their area, and their reaction to it was as hostile as the reaction they had when the federal government, by the power of eminent domain, took their lands and dammed up the Little Red River to create the lake. Most longtime residents did not like what was happening to their little community. Since there was very little they could do about it they consoled themselves with grousing about the federal government, and suffering the commune to exist.

  The new lake and the area surrounding it became a haven for weekenders from Little Rock, Memphis, and other nearby places. Soon thereafter tourism surpassed agriculture as the economic base for the county.

  Dixon Bowles wisely took advantage of the upsurge in tourism. The members of the commune organized themselves into a legal unit with a perfectly descriptive name, The Group, Inc., and opened a dinner theatre that became quite popular, particularly with the outsiders who flooded into Greer’s Ferry every weekend from late March to early November.

  In a short while, The Group, Inc. was succeeding financially. They expanded their influence by starting a popular ambulance service, and as the population of Greer’s Ferry grew, a number of new and longtime Greer’s Ferry residents began to side with The Group, Inc. on local political issues. That development, coupled with festering hate or fear of the commune—it is hard to tell the difference sometimes—triggered the events of August 25, 1973. Twenty-three men, longtime local residents, gathered near the commune after dark.

  They had had a bellyful of the commune and the members of The Group, Inc.

  At 9:00 p.m. a large number of pickup trucks rolled onto the property next to the chicken-house. The men and women inside the commune were just finishing dinner and putting their children to bed. They knew the old-timers of Greer’s Ferry were restless and that there was growing discontent with the commune, particularly their recent political activities, but they assumed the animosity would eventually subside. They were mistaken.

  The first thing they heard inside the commune was the sound of rocks bouncing off the metal roof of the chicken-house. Next, they heard a string of obscenities, followed by several gunshots. A few personal confrontations took place when the men of the commune dared to go outside to see what was going on. Shouting matches ensued and word spread throughout the commune that they were under attack. The women and children were scared to the point of crying and they were huddled in a corner.

  Someone called the Arkansas State Police, but it took an hour for the troopers to get to the scene. By the time they arrived, the assault was over but there was damage to vehicles and other commune property. The troopers checked on the people in the commune, and then persuaded the men gathered outside to get in their trucks and leave.

  The prosecuting attorney, Kenneth Smith, a law school classmate and good friend of mine told the media that night: “The local boys were in the wrong.” The next morning he announced that he was planning to charge the men with nightriding, a law passed in 1909 to deal with vigilantes who unite at night to terrorize and commit unlawful acts against select groups, most frequently African Americans. The last prosecution for nightriding—a serious felony—had taken place decades before, but the law was still on the books and it provided a hefty prison sentence for violators.

  A few of the local boys contacte
d me a few days later to see if I would represent them. They said they were going to reassemble that night on the property adjoining the commune. I urged them to stay away from the commune, but they said they were determined to go back to the commune and I could meet them there, that night.

  By the time I got to the meeting place at Greer’s Ferry, it was dark. I parked my car about fifty yards away and walked into the center of a bunch of trucks and a cluster of men wearing an assortment of ball caps. I shook hands all around and even though the light was poor, it was easy to see the look of frustration on their faces.

  There were several police cars and state troopers on hand, ready to take action if it became necessary.

  As the men took turns telling me what they had done, and what they had not done, I heard every conceivable justification, every possible excuse. Their arguments lacked reason and were understandable only if one accepted their one-sided perception of things. It did not take long for me to see that their conduct was legally inexcusable, but I also saw their frustration with the twenty-year chain of events that had changed their community and their way of life. They needed my help. The prosecutor, the larger community, and the media needed to calm down so that they could view the case with perspective.

  I told the men that I would represent them, but only if they would agree to cool off, disband, and stay away from the commune. Most importantly, I conditioned my agreement to represent them upon their staying out of trouble, any kind of trouble, and following my advice without question. They agreed.

  The prosecuting attorney formally charged all twenty-three men with the felony of nightriding. They made bond, and we entered a cooling off period, waiting for Circuit Judge Joe Villines to set a trial date.

  The statewide media had a field day comparing The Group, Inc. with the “nightriders.” Their coverage included the events of the night I met my clients near the chicken house and carried through the trial, which started on November 10, 1974.

  Two distinctly different cultures were clashing. What can man do to protect his way of doing things, his way of thinking? At what point should we, and to what extent can we, redress damage resulting from such clashes by resort to the criminal process? To what extent, if there is no personal injury, should we excuse conduct driven by hatred or fear of change? These questions I raised for the jury, a little more than a year after the date of the wrongdoing. The prosecutor objected to every attempt I made to get the jury to think in the larger sense, and I objected to every attempt he made to show what good citizens the victims were. We both knew such references were inappropriate. At one point, when the prosecutor started asking about the ambulance service that The Group, Inc. had started, I just leaned back in my chair, threw up my hands and said, “Oh, Boy!” Judge Villines, one of the best trial judges I ever knew quickly said, “Sustained.”

  The trial lasted four days. Of the twenty-three defendants, the jury found three men guilty of the misdemeanor of disturbing the peace. One received a directed verdict of acquittal, and the prosecuting attorney dismissed charges against the other nineteen. Judge Villines sentenced the convicted defendants to fifteen days in the county jail and each of them had to pay a $200 fine. A corresponding civil suit against the twenty-three defendants settled out of court for $900.

  The clash of The Group, Inc., and the Greer’s Ferry defendants ended that day. Most people, even the alleged nightriders, agreed that the process was fair and that the trial was a good thing for the community. Everyone had a chance to vent and heal the unfounded fears that each faction had for the other. By and by, The Group, Inc. moved away from Greer’s Ferry, but most people in Cleburne County remember this little case for the good lesson it taught.

  Shortly after the nightriding trial, I got into an odd case that also involved hate speech and terroristic conduct against innocent victims.

  Throughout the early 1970s, Joe Weston, an infamous figure in Arkansas, published a scandal sheet known as the Sharp Citizen. The state tried him twice for criminal libel because he constantly wrote articles trying to connect local people with organized crime, the Communist party, and various other unsavory entities. In 1974, he announced his intention to run for governor as a Republican. Those of us in party leadership were aghast at the prospect of having Weston as a candidate on our ticket. I filed a suit to bar him from filing as a candidate in our primary. We did not have a good legal case and I knew it, but the party needed to show that we did not want the likes of Joe Weston carrying our banner. The trial court ruled against us on April 10, 1974 and I immediately announced that I would appeal to the Arkansas Supreme Court. The case was the lead story in newspapers all across the state, which is what we wanted. We got wide coverage when we argued against Weston’s candidacy and when the court ruled against us as we expected. It was the one time I tried a lawsuit knowing that the facts and law were against me and that I was going to lose the case no matter what I said or did. We were willing to lose, and I was eager to get coverage of losing the case, just so we could show the people of Arkansas that we did not want Joe Weston in our party. Fortunately, Ken Coon, a fine man and good Republican, clobbered Joe Weston in the Republican primary. Ken got eighty-two percent of the vote. The whipping Weston took underscored the point we were making in the lawsuit: There is no room in the Republican Party of Arkansas for bigots and demagogues.

  All criminal cases are sad, but some are sadder than others are. I had two such cases. The first involved an intelligent young lawyer who lost his bearings, and then his life. The second was the sad case of an old doctor who worked hard all his life and did much good, but lost his way and died in prison.

  Troy Wiley was a lawyer in Searcy who fell on hard times. He was deeply in debt and began drinking too much. Soon he quit taking care of his legal business, and then he quit filing his income tax returns. The United States attorney charged Troy with two counts of failing to file his federal income tax returns, serious felonies. Troy asked me to defend him and I told him it was hard to defend a failing-to-file case when the accused had actually failed to file. Even so, Troy was a friend who needed a glimmer of hope and there was always the chance that a jury might refuse to convict him. When it came time to discuss the instructions that would be given to the jury, I urged Federal District Judge Tom Eisele to give a jury nullification instruction, telling the jury that they could disregard the proof and the law and acquit if they so desired. Judge Eisele said it was the first time anyone had requested such an instruction in Arkansas. I could find no current authority on the subject so I cited the 1735 case of Peter Zenger, a journalist charged with seditious libel. The case is famous for several reasons, but in the course of defending Zenger, Alexander Hamilton argued that the jurors enjoyed the prerogative to ignore the judge’s instruction and render a verdict according to their collective conscience and the interests of justice. Judge Eisele was amused with my ingenuity, but the best I could get him to do was to begin his instruction to the jury with the phrase, “Although you may decide to the contrary ….” The jury found Troy guilty on one count, but they acquitted him on the other. It was a small victory, but Troy appreciated it immensely, and the judge considered the jury’s reluctance when he sentenced Troy. I think the jury was trying to give Troy hope and a chance to get his life together. I know that is what I was trying to do by defending him. Alas, it did not work. Two years later Troy committed suicide. His widow asked me to lead a secular memorial service for Troy in the courtroom of the White County Courthouse. She said that was what Troy wanted, so I did it. Troy’s friends, former clients, fellow attorneys, and court officials filled the room. It was an emotional farewell for a bright, lovable young man.

  In 1974, the State of Arkansas accused Dr. Porter Rodgers, Sr., a seventy-one-year-old prominent physician, of conspiring with his twenty-year-old secretary-girlfriend to hire a co-conspirator to murder the doctor’s wife. Dr. Rodgers had a significant degree of organic brain syndrome so I defended him on the grounds of insanity and diminished responsibil
ity, contending he was not responsible for the plot because of his mental condition. The proof against him consisted of a questioned confession and the testimony of the secretary-girlfriend who fully implicated him in the plot. The trial, which started February 13, 1975, lasted six weeks. The jury found him guilty of first-degree murder, but not capital murder. In a later proceeding in Federal District Court, Judge Tom Eisele took judicial notice that the doctor’s capital felony murder trial was “the most notorious and lengthy criminal case in modern Arkansas judicial history.” Indeed, it was and when it was over, I was exhausted. I appealed the decision to the Arkansas Supreme Court, but the court affirmed the conviction, and Dr. Rodgers died November 4, 1980, a prisoner of the state. It was a sad ending for a man who had done a lot for his community. He had delivered thousands of babies, built the first real hospital in White County, and saved many lives. Everyone in the county knew Dr. Rodgers. His fall from grace, and the tragic death of Mrs. Rodgers, was a bitter pill for their daughter, and for their son who has been my good friend for almost fifty years. The old doctor’s death came on Election Day in 1980. I had just won re-election to my second term in Congress with seventy-nine percent of the vote. A television reporter stuck a camera in my face, told me of his passing, and asked for my comment. I said, “It was the longest, hardest, and saddest case I ever handled,” and it was.