To our amazement, either through sheer adrenalin, or just the acting skills of a supreme trial lawyer, Cecil Burglass launched into the finest cross-examination of the trial. He used logic and creative common sense to undercut my witness. He triumphed. For once in my life I was glad to see one of my witnesses lose. The jurors looked ready to applaud. Without the podium to support him, Cecil needed a little help from co-counsel to regain his seat at counsel table. Judge Smith mercifully called a recess, and after the jury filed out, smiling, prosecutors and defense attorneys alike swarmed around Cecil to congratulate him. He promptly dozed off, awakening only when Judge Smith reopened court thirty minutes later.
The court records show that we subpoenaed seventy witnesses for the trial and put fifty of them on the stand. Houston Morris and Debbie were both devastating, especially her testimony about her daughter’s tricycle. Macon Campbell, one of the rare truly “Christianized” criminal witnesses I ever saw, tore them up, too. His lawyer, whom I had not previously met, was Bob Whitwell, later to become one of my favorite U.S. Attorneys. A couple of the honky-tonk owners were special favorites of the jury, too. Helton Saulsberry had a joint called Saulsberry Hill, named for Fats Domino’s song “Blueberry Hill.” He brought the jury to tears when he testified how he had first lied to the FBI about payoffs out of loyalty to the Sheriff, but when Hamilton sent Saulsberry’s own cousin, a deputy sheriff, to threaten him about telling the truth to the grand jury, “That was the last straw.” Saulsberry testified he paid Chaney for Hamilton every week “like clockwork.” When asked by Hamilton’s defense attorneys on cross-examination if Saulsberry actually saw the money go into Hamilton’s hand, he coolly replied, “Well, I certainly didn’t go with the money. I just gave it to Mr. Bill to give to him.”
A touching part of the trial came when one bar owner approached me in the hall just before I was to put him on the stand. “There’s something on my heart I should have told you long ago. I hear now they can ask you about being convicted before. Well, over twenty years ago I went to Parchman for statutory rape of a girl who was just fourteen but looked a lot older. I was just eighteen myself, but they sent me off anyway. Do I have to tell that? I thought you should know, because some of these defense lawyers might know it. They seem to know everything about everybody.” I immediately reported the facts to Judge Smith, who called the witness and the defense attorneys into his chambers. “What is your position, gentlemen?” Of course, they all wanted to use it to impeach the man. We wanted to keep it out, saying it happened twenty years ago. The evidence rules back then left it pretty much up to the judge whether to let it in or not.
Judge Smith asked the man a question I had not thought of upon such short notice. “Does your family know about this?” The man wept, then said: “My wife does and she understands, but I have two daughters in their early teens. It would kill them to think I was a rapist and a jailbird.” Judge Smith did not hesitate: “In my discretion, under Rule 403, I find that this old conviction would have insufficient probative value under these circumstances and could be severely prejudicial to this man’s important relationship with his daughters. No mention will be made of this matter whatsoever. Is that clear?” Maybe it’s just me, or maybe lawyers really were more honorable thirty years ago, but I swear it seemed to me the defense lawyers all looked pleased that the judge’s ruling relieved them of the duty of “zealously” representing their clients by destroying a man’s family. Not one of them objected further.
The funniest witness, in a case already rich in comic relief, was Jessie Massey, an elderly man who “did a little gambling” and “sold a little beer” at his country store. When Al Moreton asked him on direct if he’d ever paid off Bill Chaney for the sheriff, he said, “Yes sir, every week.” On cross, Bob Gilder challenged him: “Now Mr. Massey, you’re just saying what the FBI wants, aren’t you?” The answer: “Yes sir.” Gilder went on: “You never paid off anyone for anything, did you?” Answer: “No sir, never did.” Gilder sat down. Al Moreton got back up and showed Mr. Massey his grand jury testimony. “Did you or did you not tell the grand jury you had to make payoffs?” Massey replied firmly, “Oh, yes sir, sure did make payoffs, sure did.”
At that point, Judge Smith wheeled his chair along behind the bench so that he was eye to eye with the witness and said, “Now, Mr. Massey, you can’t tell two opposing stories like this. You’re under oath. Why are you doing this?” Massey, perturbed, said, “Well, Judge, to tell you the truth, I’m scared to death. Whatever I do, some of these men can come and hurt me, so my wife told me to just agree with everything anyone told me to say.” Judge Smith didn’t laugh or even smile: “Now, this is a court of law, and I’m the judge here. Now you tell me the whole truth right now, or I’ll have you locked up for contempt. And you can go home and tell your wife I’ll have her locked up for tampering with a federal witness. Now which story is the true one?” Massey seemed relieved. Someone was in charge. He said, “The truth is what I told the grand jury and that little fellow in the black suit there,” referring to Al Moreton. Judge Smith asked forcefully if any attorney on either side had any further questions. No one did. “Go on home to your wife. And if she gives you any trouble, you call me. My telephone number is there on your subpoena.”
When we rested our case late one morning, Al Moreton and I looked forward to another of those two-hour lunch breaks while the defense got ready to put on its case. Judge Smith asked defense counsel how many weeks it would take them to present their evidence. A spokesman for the group arose and said, “We plan to rest, Your Honor. We don’t believe they’ve proved their case.” It was apparent to Al and me that they had either given up or they had someone paid off on the jury who would hang it up. We leaned toward the latter theory because during jury selection certain jurors had reported in chambers that people acting for Hamilton had approached them and tried to influence them. We feared there had been other approaches which might have succeeded. Judge Smith said mildly, “Well, gentlemen, it seems to me an unusual tactic under the circumstances. In your opening statements, each one of you solemnly promised the jury that your man would take the stand in his own defense. Do you think the jurors can forget that?” The attorneys told the judge they felt sure if he would instruct them to do so that would do it.
Al and I were equally sure that someone had fixed the jury. Then Judge Smith gave us the scare of our lives. “All right Mr. Moreton, Mr. Hailman, I’ll receive your proposed jury instructions at 1:30 P.M. and closing arguments will begin at 2:00 P.M. Who will open the arguments for the government?” I stammered, “M-m-m-may it please the court, I will, Your Honor. But could we have until tomorrow? We had not expected defense counsel to break their word to the jury.” The judge was firm: “No, sir, I’ve had civil cases stacked up behind this case for six weeks, and they need a trial, too. I’ll see you at 1:30 P.M.” By some miracle, Al slung together a set of perfect jury instructions for some really tricky and novel legal points. I took the court’s official witness and exhibit lists from Margaret King, drank some coffee, and winged it. In reality, our case was so overwhelming that argument was not that difficult.
The defense arguments turned out to be surprisingly good. Since that was all they had, they had spent all their time on them. They had spent far less time reading the ethical rules, however. Most were state court lawyers used to the old Mississippi rule that in closing argument a lawyer can “sail the seven seas”—that is, argue just about anything. They began with personal attacks on the FBI, claiming that agents had “planted” the marked bills and “made up the tapes.” That was to be expected. But their praise of Sheriff Hamilton surprised the jurors so much that some laughed openly during argument. Hugh Cunningham, a tall, elderly attorney from Jackson, referred to Hamilton as a “one-man posse” and a “regular Marshal Dillon” who “clamped down on crime tight as a hat band.” Others called the FBI agents “loathsome, like vultures feeding on the high sheriff.” They accused Tichenor of having an affair with Fran Jenki
ns and Gail Denman of being Les Davis’s paramour. We prosecutors were called “cruel and faultless” and “part of a scheme to convict an innocent man” by “tricking and sandbagging” the poor, hardworking defense counsel.
One said we had hidden most of the real evidence, saying, “this case is like an iceberg, most of it is hidden under the sea.” The citizen witnesses who testified for us were called “stool pigeons,” contrasting them to Hamilton, whom they characterized as “the old, peg-legged sheriff, standing out in the cold rain, bare-headed at a funeral.” One said Hamilton had “had his hair combed by the winds of the ages, and his cheeks washed by the morning dew.”
After the first day’s arguments, which went on for more than four hours, the judge recessed to hear more of the same in the morning. When court reopened, Bob Gilder was wearing dark shades and asked if the judge would hear him briefly in chambers. When we got back there, Bob said, “Judge, I don’t want my client to be prejudiced by this Hollywood look I’ve got, but my eye is blood-red. Would you mind explaining to the jury for me that I’m wearing these dark shades only because of a medical condition that makes my eyes hypersensitive to light.” Judge Smith, with a twinkle in his eye and knowing Gilder’s reputation for late nights and occasional fights with people who made fun of his ruffled shirts, said, “Mr. Gilder, I will, but only on the condition that you tell the court and counsel, off the record of course, what really happened to your eye.” Turning to the court reporter he said, “Lee, don’t take this down.” Gilder stood. “Judge, it was just a little misunderstanding. Around 2:00 A.M. in the parking lot at the Ramada Inn, after conferring with counsel over a drink or two I was getting into my car. Some gentlemen nearby, seeing me removing my coat, thought the gesture was meant as an offer of fisticuffs.” Gilder then pulled off his shades, revealing a beautiful shiner and a blood-red eyeball. “I’ll explain to the jury you have an eye irritation and the dark glasses are worn for medical reasons with the court’s approval,” Judge Smith said.
Bob Gilder proceeded to make a very credible jury argument, downplaying a little friendly gambling, a few drinks, and stressing how poor working people needed to unwind sometimes without the FBI “morality police” interfering. He stressed how difficult it was for sheriffs and their deputies to break up fights at beer joints at closing time “when the women don’t come out even,” saying a “little tip” from the owner was no more than they deserved for doing their dangerous jobs. If our evidence hadn’t been so strong, he might even have swayed some of the jurors.
But the argument to end all arguments was by the oratorical Murray Williams, a former federal prosecutor who asked the jurors to “apply the acid test of reason” to the evidence, pronouncing our case “the weakest case, in my judgment, I’ve ever seen,” a personal opinion on the merits of the case expressed in blatant violation of all rules of ethics. But we didn’t object, figuring we’d either already won the case or they had a juror fixed anyway. The closing arguments were mostly for show at that point. In conclusion, Williams flashed his red and gold Masonic ring to the jurors and delivered a chilling metaphysical sort of threat:
If he who made the moon and the sun and hung the stars on high can be merciful and just, then so can you. If you convict Harvey Hamilton on the testimony of thieves, rogues, whores, and disgruntled politicians, then never again will the nightingale of a clear conscience perch upon your pillow to sing you to sleep at night, but the ghosts of the wicked and the perjured shall be your companions, until your dying eyes shall—at the last—turn to read the rapt and mystic meaning of the stars.
The jurors were not laughing. For a moment I thought a couple even looked fearful. But I figured it would pass, and it did. In a few hours, they came back with verdicts of guilty on all defendants on all counts. No one was ever charged in Fran Jenkins’s death.
Jury Tampering 101: A Sheriff Solicits Help from U.S. Senator James O. “Big Jim” Eastland13
The RICO trial of Sheriff Hamilton had achieved such wide publicity that Judge Smith decided to conduct all the juror questioning individually in chambers. With over 150 jurors summoned, if each juror had answered all the questions in front of the others, there was too much risk someone would blurt out something they’d heard that was so prejudicial it would have caused the judge to have to dismiss the entire panel, summon another one, and reset his schedule for another six weeks.
At first we were not particularly worried about jury tampering, thinking it would be too risky considering that the jurors were summoned from all of our thirty-seven counties. We figured we could just knock off all jurors from Hamilton’s home county, DeSoto, who probably had no desire to sit on a jury that might convict their own sheriff, a very powerful man to cross. Years later I read an article on jury tampering in the Wall Street Journal that changed my mind.14 I wish I’d read it before the Hamilton trial. It said, in summary, that jury tampering was a good idea for guilty defendants for several reasons: First, contacted jurors rarely reported it; second, even if a defendant was caught and convicted of jury tampering, sentences were incredibly light, with judges often considering punishment for the primary offense sufficient. The average sentence nationwide for jury tampering was usually one year or less, even in cases like ours where a twenty-year sentence for the main offense was not unusual.
Most interesting was the article’s insight into regional differences. In large cities, threats to jurors and their families were common. Money was usually offered, sometimes in large amounts. Convictions for jury tampering were rare in all regions but especially in the South, where a different culture appeared to prevail. In the South, the article said, money was rarely offered and threats almost unknown. The southern approach was to appeal for sympathy for the underdog. The juror contact was usually made at second-or even thirdhand by an intermediary for the accused. The intermediary would insist that the defendant was a good person and an old friend who would never have committed the crime. The intermediary would usually tell the jurors of false “evidence” the prosecution would use that was the product of some personal or political vendetta by some powerful person. Since no money or threat was involved, the contacted jurors did not feel too threatened and would simply deny the contact when asked by the judge, believing they were independent enough to make up their own minds and, like most of us, not wanting to end up in court and in the papers and on television as accusers. Most southern jurors apparently just took the path of least resistance and remained silent.
The article was remarkable in its accuracy as to our case. During voir dire questioning of jurors, three of the ladies were from Quitman County, adjacent to DeSoto County. Their county seat was Marks, known nationally as home of the famed Poor People’s March on Washington. In our case, all three ladies first denied any contact by anyone. All three invented various excuses why they could not serve. Had they had better excuses, Judge Smith would no doubt have let them off and we’d never have known about the jury-tampering. But their excuses were so weak that the judge declined to excuse them. Hearing that, the first one to break volunteered to Judge Smith that, while she had not talked about the case with anyone, someone had approached her about it. Early on the Sunday morning before Hamilton’s trial was to begin on Monday, a man had knocked on her door and said, “I am James Reed, your county supervisor for this beat, and this is my wife.” Reed asked to come in while his wife waited on the porch. Reed got right to the point: “Sheriff Harvey Hamilton is my good friend. He goes on trial tomorrow in Oxford on false charges trumped up by political enemies. I know you’ve been summoned for jury duty and if you’re selected, I just hope you’ll give him a fair trial.” It was blunt yet subtle. He didn’t ask her to acquit Hamilton no matter what, but his intentions were clear. The woman told Reed, “I don’t want to serve. It makes me nervous. I hope I don’t have to.” That drew Reed out a little more: “Oh, I hope you do serve, and remember, as your supervisor there’s a lot I can do for you.” That remark bore a not-so-subtle implication: “I’m powerful
. There’s a lot I can do for you and against you.”
The other two Quitman County jurors, both women, were then called back individually and, when confronted by Judge Smith, testified to an almost identical contact by Reed using almost identical language. The three ladies did not know each other. It sounded like a desperate, last-minute attempt by Hamilton to save himself from what he knew was our overwhelming evidence. The immediate response of defense counsel was interesting. They of course denied knowing anything about the contacts, and we believed them. Then they said there was no proof that Hamilton had any idea his friend was trying to help him out.
Judge Smith asked the key question: “Did any of you gentlemen give your clients a copy of the jury list furnished to you by the Court for you to use in checking jurors’ backgrounds for bias?” They all agreed they had. “Did you tell them this court requires that they must not contact, directly or indirectly, any juror?” The lawyers all nodded “Yes” vigorously. The judge then turned to us and asked another key question: “Gentlemen, do you think there is too much risk to this trial by these improper contacts?” Al Moreton and I looked each other in the eye and, without even asking to consult, shook our heads. “No sir. Let’s proceed. But we do ask that you re-question carefully each and every juror as to whether anyone has approached them.” The defense attorneys competed with each other in jumping up like porpoises to object: “That’s highly prejudicial, Your Honor, and will unduly suggest someone has been tampering.” John Farese led the charge. “Well, Mr. Farese, should I dismiss this jury and start all over?” Judge Smith asked. Farese and the other attorneys asked to consult out in the hall and quickly came back and said, “Judge, this case has cost these defendants a lot of money. We can’t afford to do it again. We’d rather go forward.”
From Midnight to Guntown Page 14