AUSA Bob Norman had a robber once who used a carved tree limb painted black as a fake gun. Bob told the judge it was a “real stick-up.” Another of our robbers, when identified for the jury by a teller eyewitness, whispered too loudly to his attorney, “She can’t tell it was me. She couldn’t see anything but my eyes.” Another got bad news from a juror when he testified in a strong voice, “I did not rob that bank.” One juror in the box blurted out even louder, “Yes, you did too.” A group of robbers from the Gulf Coast came to our district to rob a bank far from their area so they wouldn’t be recognized. They did fine till one dawdled and got left behind. His only way home was by Greyhound bus. He used a pay phone across from the bank to call his family collect. A witness recalled seeing a robber using the pay phone. We subpoenaed the phone records for the day and the robbers were all eventually identified and convicted.
A bank at Verona was once robbed by two “gentlemen” who got scared and tossed the loot out the window of their car. Two old ladies picked up the money and flagged the men down and gave it back to them. As they sat in their car a police car came up with blue lights flashing. They raised their hands and prepared to surrender, but the police car drove on by, being on another call. The ladies, noticing the men’s demeanor, wrote down their tag number and, when they learned there’d been a bank robbery, called police and gave them the number. The police quickly found the robbers, who surrendered quietly. In 2000, a defendant left behind a bank robbery note on an envelope. In the envelope was a certificate—with his name on it—indicating he had successfully completed a Department of Corrections anger management course.
A robber in Kansas City, where my daughter was going to medical school, made a classic error. After robbing six banks, he finally left enough clues that police had enough evidence to search his house. They found a to-do list that had an entry “rob bank.” He got ten years in federal prison.
When a defendant wanted in one district is caught in another, the court holds a Rule 40 probable cause hearing before he is “removed,” or extradited, to the prosecuting district. One day I had such a hearing in Greenville on Michael George Malone, who was wanted for a bank robbery in Oklahoma. The Oklahoma FBI agent testified that this robber had used a truly unique way to keep tellers and customers from notifying police. Just before he went out the door, he made them gather in three groups and sing a round of “Row, Row, Row Your Boat . . . gently down the stream.” He forgot you could push alarms with your finger while singing. Last I saw of him, he was in custody and headed for Oklahoma.
Peacelover Shabazz: The Nation of Islam Comes to Greenville1
Peacelover Shabazz, known as Percy Walker before joining the Nation of Islam, was the first bank robber I ever tried, right after I joined the U.S. Attorney’s Office. Al Moreton handled the case but let me sit at counsel table to learn the ropes. The characters were something else. The defendant had a shaved head and sat up totally straight and immobile the whole time. He looked like the character from old Mr. Clean commercials. Like most converts, Shabazz was more fervent in his religion than someone raised in it. As my father used to say, “There’s no prude like a reformed whore.” Shabazz demanded a Muslim attorney.
Fortunately, a Muslim attorney had just graduated from Ole Miss, which was under pressure to admit minorities. Although his English was a little spotty, thanks to the state university diploma privilege, Iraqi immigrant Aqbar Deedeedar was admitted to the bar automatically without taking any bar exam. Aqbar was a gentleman with formal manners, calling everyone “Sir,” even those who treated him as an unwanted foreigner and called him by the “N” word behind his back. He hung out a shingle in Greenville. He did not type and wrote his legal pleadings in longhand. Being used to Arabic script, which is highly stylized, his handwriting was a work of art, more like calligraphy than handwriting.
Aqbar could not afford a vehicle, and since court hearings in criminal cases were held in Oxford, where the U.S. Marshal, Probation Officer, and U.S. Attorney all had their offices, Aqbar was obliged to ride to court on a Greyhound bus. To protect Mr. Shabazz’s right to counsel, the judge had to tailor his court schedule to fit Greyhound bus schedules between Greenville and Oxford. Thanks to the exquisite courtesy and seriousness of Mr. Deedeedar, however, things went smoothly in the case despite the bizarre behavior of defendant Shabazz. At the end everyone thought Mr. Shabazz received a fair trial, despite his unusual counsel and even more unusual examining psychiatrist, Dr. Harry Fain. Dr. Fain flip-flopped from first saying Shabazz was a psychotic paranoid schizophrenic to his final opinion that Shabazz was a sane “normal” bank robber who merely acted peculiar due to excessive religious zeal.
Shabazz had been apprehended by police while dancing naked on top of his new Cadillac in the middle of Highway 61, the old Blues Highway just north of Delta State University. Shabazz had heard on his car radio that the leader of his faith, the Honorable Elijah Muhammad, had just died. Beside himself with grief, Shabazz was desperate to express his emotions. At the time the arresting officers had no idea that Shabazz had robbed a bank. It took a thorough and insightful FBI investigation by veteran agent John Neelley to put it all together.
Back on December 10, 1974, a teller at the Commercial National Bank in Greenville saw a lone black male approaching the bank: “He had a green ski mask on his head, but not pulled down. There was hair sticking way out where the eyes are supposed to be.” The teller told the others, “Hey y’all, here comes the Easter Bunny.” The man stopped at the door, drew the ski mask down over his face, pulled out a revolver, and shoved it in the manager’s face and told him to stand up. The manager heard the robber cock the pistol as he walked up to his desk. The robber pulled out a white cloth bag and told them to put the money in it. He kept telling them to hurry up or he would “blow their heads through the ceiling.” The tellers noted that the robber “was very calm and in complete control of the situation. Everything he said was clear and distinct and easily audible.” The robber got away clean with more than $47,000. No clues to his identity were found until two months later.
On February 14, 1975, Officer Nassar of the Shelby Police Department was on routine patrol. “Right in the middle of town, going south on Highway 61,” he met a dark blue Cadillac pulling a U-Haul trailer. “It was blowing its horn.” Nassar made a U-turn “to see if he was trying to flag him down or having trouble.” When Nassar caught up with the car, it was stopped “right in the middle of the road. The defendant was yelling, trying to get the other occupants out of the car.” The driver “got up on top of the car and started to jump up and down on the roof. He had stripped to the waist and had only his trousers on. When another motorist tried to pass, he swung his big belt buckle and shattered their windshield.”
Officer Nassar told the Sheriff’s Office he “had a man stopped that looked drunk or on drugs or something.” When Deputy Ello Wren arrived, the defendant had stripped completely naked and “was lying facedown on an oriental-type praying rug. He walked around naked for a while, then got on top of deputy Wren’s car in a squatting kind of mood, like he was fixing to stomp his car.” The deputy told Shabazz to get down off the car, but “he just grinned and kept on.”
Officer Nassar finally waved his shotgun at the man and told him, “You have showed out long enough, now get down from there. The man didn’t say a thing, just came right off the car, didn’t give a bit of trouble.” The defendant “opened the tailgate of his U-Haul-It trailer and started rummaging through it.” Nassar hollered at Wren, “You need to stop him. Maybe he has a gun. I don’t know what he is looking for.” Deputy Wren told the defendant “You’d better stop it, or the white man here is fixing to stop you.” The defendant kept referring to officer Nassar, a Lebanese-American, as “the white man” and Deputy Wren “Black Brother.”
Shabazz was charged with resisting arrest. In inventorying the contents of the handbag of his wife, a deputy found she had the sawed-off barrel of a shotgun in her purse. She also had a newspaper clipping of
the December 1974 bank robbery in Greenville and a drawing of the bank.
Following the indictment of Shabazz for the bank robbery, attorney Deedeedar filed a motion for a psychiatric examination. The psychiatrist’s report to the court said that the defendant was neither competent to stand trial nor responsible for his actions during the robbery “in the absence of overwhelming testimony of more proximal witnesses.” At the hearing on his sanity, Shabazz vigorously challenged the finding of incompetency and tried to demonstrate that he was competent to stand trial. The court eventually agreed, over the objection of attorney Deedeedar.
At trial, a bank customer identified the defendant as “fitting the image of his recollection.” The head teller, who had first called him the Easter Bunny, was also positive: “I know that man when I see him. I have nightmares about it. I can still see him now.” Another teller who saw the robber before he pulled his mask down, testified, “That is the nose I saw that day—the eyes, the ears, the face, the cheeks. He fits the description all the way along every part.” When pressed on cross-examination, she testified, “I feel sure if I could hear him talk I would know for sure.” After the defendant was directed to speak, she said, “I feel you are him.”
A justice of the peace testified that a writ for collection for unpaid rent had been served on the defendant in Greenville the day before the robbery and that the overdue rent plus costs were paid just two days after the robbery. Receipts in the wife’s purse showed expenditures for the month after the robbery of more than $28,000. None of the $47,000 taken in the robbery was recovered. Other evidence showed that in January 1975, in Detroit, Shabazz had paid cash for a TV set, had had substantial work done on his 1973 Cadillac, and had paid cash for the purchase of a house in Kansas City.
The defendant called his wife as a witness. She testified that he was at home with her on the day of the robbery and that their expenditures were all from funds provided by a temple of the Nation of Islam in Kansas City. She said the diagram in her purse was planted there by police, along with the newspaper clipping about the robbery. The defendant then called Dr. Harry Fain, who testified as to his initial evaluation of defendant, saying that he had given him only a “tentative” diagnosis of paranoid schizophrenia at the time of the robbery. His first report was qualified, however, by a lack of serious information from “proximal” witnesses and was based almost entirely on the fact that Shabazz appeared so disturbed when he came in and because of the grandiosity of his religious claims. “Crazy people often think they’re Jesus,” Dr. Fain testified. With the additional information available to him from the evidence at trial, Dr. Fain dramatically reversed his opinion and testified that the defendant was sane and that he could “find no reason to believe defendant lacked the capacity to appreciate the wrongfulness of his conduct, and that he could have conformed his conduct to the requirements of law.” Fain concluded that “most significant was his refusal to take the MMPI [Minnesota Multiphasic Personality Inventory] test which is specifically designed to detect malingering, or faking.”
Peacelover Shabazz had, in large part, convicted himself despite the best efforts of his able, bus-riding Muslim attorney. The judge sentenced Shabazz to fifteen years in federal prison, and we never heard from him again. Attorney Deedeedar moved off up north, and we never heard from him again either.
Sorry about That Bum Rap, Johnny Paul2
Another of my favorite cases was technically not a bank robbery at all but the burglary of the post office in Victoria, Mississippi, in June 1974. A veteran criminal named Johnny Paul Washam and two accomplices did the burglary, netting 679 readily negotiable blank postal money orders. To meet the legal definition of robbery, the defendant must steal directly from another person, normally by use of a weapon or by intimidation, which is called a “strong-arm” robbery. In legal terms, burglary is the taking of property by breaking and entering a residence or business with no one present. If someone is present, it becomes robbery, punishable more harshly because of the danger to the victim.
In the Victoria job, the proof was slim and the witnesses few. For me, it was a training exercise in which I mainly sat and watched veteran prosecutor Al Moreton try the case. The proof was simple. A postal expert from the crime lab testified that shoe prints on envelopes found on the floor of the post office the morning after the burglary bore the imprint of an unusual shoe sole identical to one seized from defendant Washam, who claimed never to have been in that post office in his life. A search of the defendants’ car yielded other evidence against Washam and the other two men, William Jan Hoover and Carrol Lee Wyatt. After their arrests, Washam jumped bond and was a fugitive for over a year, twice escaping from jails in Tennessee. In his absence, Judge Keady severed the trials of the defendants. Al Moreton first tried Wyatt in October 1974 and convicted him. Al then tried Hoover while Washam was still a fugitive. Wyatt had agreed to testify and gotten his sentence cut for agreeing to testify that Washam had planned the burglary and that all three burglars had broken in together and stolen the money orders.
In his usual calm, cerebral way Al Moreton first called his shoe-print expert, who was impressive and unshaken on cross-examination. Then he called the accomplice Wyatt, who described in great and convincing detail how the burglars planned the job and committed it. As he always did, Al questioned the witness slowly, holding back the most vivid facts till the end of his examination to heighten the jurors’ interest. In this case, Al held back the names of the perpetrators, planning to close with a dramatic in-court identification of Hoover by Wyatt. When he reached that critical point, Al asked Wyatt whether he saw in the courtroom one of his partners in the burglary. Wyatt made a big point of looking all around the courtroom. “No sir, I don’t.” I looked up at Al, whose grip on the podium had tightened, but who looked calm as ever. “Look again,” he said. The witness did. “Now do you recognize him?” Hoover replied, “No sir, sure don’t.”
Al tried a different tactic. “Alright then, do you recall the names of the men who were with you?” Wyatt replied firmly, “Yes, sir.” Encouraged, Al proceeded: “Alright then. Would you please look at the jurors and tell them the names of the two men who broke into the post office with you?” Wyatt looked straight at the jury and said, “Yes, sir. Their names are Ray Blackwell and Harvey Crowell.” This time I thought I saw Al’s knees buckle, but he never showed any surprise to the jury. In excruciating detail, he took Wyatt right back through the case: the planning, discussions, execution, getaway, and apprehension of the burglars. Somehow, largely by his demeanor and grasp of details, Al seemed supremely confident of his case. Never did he raise his voice or accuse the witness of lying, but by his subtle sequence of questions he made it clear what had to have happened: With his sentence already cut in advance, Wyatt was lying to save his partner. The result: a hung jury. A month later, Al tried Hoover again. This time, Wyatt testified for the defense, and Hoover was acquitted.
In August 1975, Johnny Paul Washam was finally caught. Al immediately put him on trial, with Wyatt again testifying for the defense. This time I participated as Al’s partner in examining witnesses and arguing to the jury. For the jurors, it had to be a tough case. They stayed out deliberating for two full days. When they returned, it was with a well-reasoned verdict that gave me an early lesson in juror wisdom. They found Washam guilty on the same evidence on which they’d found Hoover not guilty. One critical fact had apparently persuaded them: Washam’s jumping bail. The judge had instructed the jury in the standard way that “flight of a person, when accused, may constitute proof of consciousness of guilt.” That instruction, from a federal judge, who is often regarded by jurors as speaking with God’s own voice, turned the tide.
At his sentencing, Washam recited a poem about freedom he had written in his cell. The poem centered on the beauty of spring, the budding trees, the blossoming flowers and fresh air that he, Johnny Paul Washam, as a habitual offender in his forties, would never breathe again if the judge gave him the expected sentence. Ju
dge Keady, a kind and philosophical man with a soft spot for a good con man, whether defendant or lawyer, surprised me. “Johnny Paul Washam,” he said. “You have a heart full of poetry and a lot of talent for persuading people of just about anything. But instead of using that talent for good, you have squandered it. You have become a menace to society.” He then proceeded to give Washam twenty years plus four years plus four more years, all to run consecutive to each other and to two other state sentences Washam still had to serve. The sentences virtually guaranteed that Washam would die in prison. I always thought that Judge Keady was influenced partly by the calm determination of Al Moreton in overcoming insurmountable odds to convict the recidivist Washam. It was as if the old judge could not let the old prosecutor down, and together they would protect society.
On appeal, Washam’s main issue was the way I “vilified” him in closing argument. Years later, while writing the first draft of this book, relying on my memory alone, Al had to remind me of this fact. At first I didn’t even remember making the argument. When Al showed me the transcript, however, it was clear that the wording could only have been mine, not Al’s. Despite my inflammatory insults to the defendant, the Fifth Circuit affirmed both convictions.
But that was not the end of the story. Years later, I was teaching a training course for new prosecutors in Washington, D.C. During a riotous time one late night, after lots of wine and trial stories, one of my instructors said, “You should play a little trick on Washam. Get an AUSA from Hawaii to send a postcard from Honolulu to Washam in the federal pen.” I asked one of my Hawaiian friends to do it, and he did. At that time, I knew next to nothing about how much trouble inmates can cause prosecutors by claiming that their rights have been violated, but it seemed like a good idea at the time.
From Midnight to Guntown Page 5