In this case, the prosecutor was highly unusual. Her clipped Yankee accent turned out to be not from the Northeast, as I first thought, but from San Diego, where her father was dean of the medical school. She sounded pretty tough, having spent a couple of years in the DA’s office in Brooklyn prosecuting major, violent felons and sex crimes. She was no rookie. I called a couple of buddies at Civil Rights to check her out, then met her for lunch one day at Don and Wally Joe’s Chinese restaurant in Cleveland, home of Delta State University and the most comfortable place to stay near Parchman. Small and voluptuous, Cynthia Alksne was true to her Scandinavian surname. Her face would have looked good on the body of a member of the Swedish bikini team. She had a sly, joking air about her, slightly flirtatious in a liberated seventies sort of way. I was wary, having been warned by friends at DOJ that she had been through a bitter divorce. That sort of thing can make you mistrust men. Still, she was beautiful and enjoyed it and sort of toyed with me. I was careful to be a perfect gentleman (as always), maybe even a little more so than usual.
As we discussed the case, I was pleasantly surprised at her cooperative attitude. “We’re partners from here on out,” she said. No Washington air of “just do what I tell you to do” from her. And we were both true to our word, right to the end. If I did one little thing slightly unpartnerlike, it was to ask her to handle the mysterious prisoner CI. Having dealt with so many of them, I didn’t want this guy calling my house at all hours of the night with razzle dazzle cloak-and-dagger messages. My wife was thoroughly sick of all that. Cynthia, single and gung-ho for a Mississippi adventure, immediately agreed to handle “Bill.” After all, she also lived far away in D.C. Later, after she’d endured months of being jerked around by the inmate, I felt a little bad about sticking her with him, but I honestly hadn’t known at first just how much of a hassle he would be. Besides, Cynthia was way more than a match for him.
As the investigation progressed, with my being criminal chief who assigned and supervised all cases in the office while also handling my own full caseload, it became clear that I needed veteran help with the Floyd case. U.S. Attorney Al Moreton kindly gave me Tom Dawson as our third partner. A strong conservative who later worked gleefully for Ken Starr for nearly two years pursuing Bill and Hillary Clinton in the Lewinsky and other cases, Tom had never gotten near a civil rights case. Like me, he instinctively sided with officers. But when I briefed him on the Floyd case, he immediately liked the quirkiness of it. For several months, we worked with Cynthia and Mike Beaver, interviewing and squeezing officers who had seen the beatings but who had not participated. First one cracked, then another. Later several guards agreed to plead guilty to misdemeanors and testify. Civil rights crimes are not felonies unless physical injuries occur, and several of the guards had merely slapped Floyd and not injured him. I did manage to find and use one old civil case where a judge held that pain alone was a kind of injury, which we used to the hilt for the first time in a federal criminal civil rights case.
Easily the most interesting defendants were the wardens. Steve Puckett was a good man under immense pressure to back his officers. We suspected it was his voice that said, “That’s enough” during the beating, but no one ever confirmed it. He was not even present when the guards hit Floyd in the face with weapons or when Winters bashed Floyd on the head with his pistol. The only legal theory we had to nail the warden was the old one called “failure to protect from harm.” It sounded too much like something off the Law & Order show on TV, but it was all we had, and it was past time to send a message to stop the tradition of beating the hell out of everyone who tried to escape. The deputy warden, Chris Epps, was a young graduate of Mississippi Valley State and the only black officer on the scene as well as the only black administrator at Parchman. He had taken no part in the beating other than one alleged open-hand slap to Floyd’s face, which Floyd didn’t remember and probably never felt under the circumstances. One day, outside the grand jury, Epps called me aside to talk about Cynthia and her gung-ho ways: “Does she have any idea what it’s like to be a black supervisor at Parchman? I’m not saying I slapped him, but you can see my situation. You live here, and I’ve checked you out. You will understand. Why is she torturing me? Am I just another notch on her belt?” I didn’t tell Epps my real feeling, which was that Cynthia was gung-ho and over the top on all occasions, but tried to explain. “You know it’s not racial.” He agreed. “She’s just young and inexperienced in the ways of the world, especially Mississippi.” Epps nodded, seeming satisfied I was right.
Unbeknownst to either of us, Cynthia had quietly walked up behind us and heard my final comment. Later she confronted me: “What the hell was that about?” I told her Epps thought she was being too hard on him. “The SOB should have thought of that before he hit a handcuffed inmate.” Their conflicts did not end there. Chris Epps would be back. He filed a motion to dismiss the indictment for “prosecutorial misconduct,” claiming Cynthia came on to him to get him to confess, straightening his tie in a suggestive way and putting her attractive knee seductively between his legs. The tie part I believed, but never the knee part. Cynthia’s enthusiastic ways had confused other people before. The judge agreed with me and rejected Epps’s motion.
Meanwhile, after the grand jury had heard our last witness, I invited Tom Dawson and Cynthia to our house after dinner for a drink to celebrate. Cynthia brought her law clerk, a summer student from Berkeley who had volunteered for the case to see Mississippi, the scary, racist place that was also home of the blues and Elvis and all those other things she’d always loved. By this time we were on those funny, almost goofy terms you get in high-pressure, high-media-interest cases. I broke out from my cellar some really good old red Rioja wines from the 1950s. On our third bottle, as we sat on our back porch, the nicknames started flying. Dawson, who is from Meridian and always liked the TV series M*A*S*H, nicknamed Cynthia “Hot Lips,” after the blond female character pursued by Hawkeye, whose character was based on a real-life army doctor originally from Meridian himself. Cynthia, never one to be outdone, coined a nickname for Dawson, whose hairline had receded a little since law school, calling him “Christophe” after Bill Clinton’s hairdresser, who once held up traffic at the L.A. airport while cutting Clinton’s hair. The nickname was triply appropriate because Dawson was also known to not much like the French, and he especially disliked Bill Clinton and his administration.
Those two nicknames were so good they forgot to give me one, which was good. Midway through our third bottle, Cynthia suddenly asked her law clerk, “So, what do you think of Mississippi now?” The young woman was unfazed. “It’s even crazier than in the movies,” she said. “And what about the U.S. Attorney’s Office?” Cynthia continued. Without a minute’s hesitation, the law clerk said with enthusiasm, “Those guys are the closest thing to a real MASH unit I ever want to see.” In our own twisted way, we of course took it as a compliment.
So we went to trial. Al Moreton called my indictment “more of a press release than a legal document.” It was colorful, detailing the most brutal elements of the beating, from the barbed wire to the blood-spurting head wound, and also included efforts by defendants to influence our witness, Bubba McKnight, to lie about what he saw. Still, we left out one of the most striking stories, of how one guard told Cynthia, with a smile, how he’d like to “grudge fuck” her. Somehow she did not feel threatened and laughed about it at the time, taking it as a bizarre compliment. And to have charged it would have disqualified her, as a witness, from trying the case. So we just let it go.
Our proof was going beautifully until one evening, just as we rested our case, I got a call at home from my friend Jim Silverwood, supervisor of the division of DOJ that oversees missions to train foreign prosecutors. Jim wanted me to go to Haiti, where dictator “Baby Doc” Duvalier had just been driven out and a new president, Bertrand Aristide, a former priest, had just been elected. It was a great opportunity and DOJ lacked French speakers to do it. I would be going as
the lone DOJ attorney, assisted by two USAID employees, who handled the financial end of our assistance programs.
I told Tom and Cynthia of my dilemma. Cynthia was irate: “How can you possibly desert us during the case of our lives? You cannot do this.” Dawson had the opposite reaction: “Hailman, if you’re crazy enough to go to Haiti, how can we complain? Go ahead. I’ll win this one for you.” I explained to them that the Haiti trip was two months off, but the training began in two days. Cynthia insisted I stick with the trial till the last possible minute. After all, I’d put on some of the key witnesses, including our most important witness, Dr. John Dial, Parchman’s on-site doctor.
Cynthia had a point. Dr. Dial had been a tricky witness. In our interviews, he had forthrightly warned me of his considerable baggage. The reason he worked at Parchman was because it was the only place he could get work. His license to practice medicine had been revoked twice, once for excessive intimacy (consensual) with female patients, and once for illegally running a “pill factory” practice where about all he did was prescribe feel-good drugs. He also had other little problems. His University of Mississippi medical degree was the last one granted under the old three-year program where Ole Miss accepted two years of credit from foreign med schools. Dr. Dial’s was from Monterey, Mexico, and he didn’t speak Spanish. Nevertheless, everyone agreed he was an outstanding emergency room physician, even though he had never before testified in court as an expert witness.
During one of our interviews, I asked John if he was board certified in emergency medicine. He said no, he’d never needed to be, but could recite from memory (which he proceeded to do) dozens of challenging operations in which he’d saved the lives of inmates grievously wounded in attacks by other inmates with everything from homemade prison shanks (scary-looking knives) to clubs, razors, stolen nightsticks, even pistols. Dr. John Dial knew his stuff.
He reached in his pocket and pulled from his wallet a time-worn piece of yellowed paper. “I did take a one-day course once in pathology, by correspondence, and passed some mail-order exam. They gave me this certificate.” He unfolded it. It was all we had, so I got my secretary, the wonderful Joan Case, to make a clean, clear blown-up copy of it and then stuck a little gold official-looking sticker on it and put it in an expensive, official-looking black frame as if it had been there all along. No one ever questioned its origin. It seemed like a pretty mild, totally legal deception at the time.
Dr. Dial had also told me another critical fact: on Thursday nights he was part of a poker group with most of the defendants, and he didn’t think they’d be too hard on him on cross. I reminded him that it would be the attorneys, not his friends the defendants, who’d be cross-examining him. “You’ll see,” was all he said. Later it occurred to me that he probably knew too many other things about them and that maybe they would not want to make him mad by roughing him up. He might just tell the jury (and us) all he knew.
At trial, I took Dr. Dial very quickly through his vast practical experience, never asked him about med school other than the Ole Miss name on his degree, which I figured was enough for a Mississippi jury. We also skipped his disciplinary problems and did not mention his never having testified before in any court. I just offered in evidence his “certification” as an emergency room physician and tendered him to the defendants for cross-examination on his qualifications. To my amazement, the defense attorneys all rose and said, “No questions.” John Dial was suddenly not only our most critical witness as to Floyd’s wounds but an expert on wounding.
Dr. Dial first described Larry Floyd’s pitiable, near-death condition, and when I asked him if he had an opinion about what caused the artery on the back of Floyd’s head to burst, while showing him Winters’s .357 Magnum, Dr. Dial testified without hesitation that in his opinion the wound was entirely consistent with Floyd being hit with extreme force with the sight on the barrel of Winters’s gun. The defense got nowhere with him on cross, and to me they seemed afraid to cross him very hard, just as Dr. Dial had predicted. I told Cynthia and Tom, honestly and not because it was in my interest to leave but because I believed it, that even if I left, the defense would never lay a glove on Dr. John Dial.
I then had to tell them one other small detail about the Haiti mission. The reason I had to leave right away was that the training was not in Washington, as it would be normally, but in Paris. Dawson fell out laughing. “Hailman, you’ve done it again. Why didn’t you tell us that first—we’d have never had a problem.” Even Cynthia agreed: “Ok, ok, you can go.” The next morning, just before my flight, we announced to Judge Senter and opposing counsel that DOJ urgently asked that I be excused to prepare for a mission to Haiti. The judge was very gracious and I was flattered when the defense attorneys seemed glad to be rid of me. Tom and Cynthia waited till I was safely out of town to tell Judge Senter that the Haiti training was in Paris. They later reported he said, “That damn John Hailman. What an operator.”
As we’d hoped, the defense was not strong. Our officer eyewitnesses, who had themselves pled guilty, were strong, especially when supported by the courageous Dr. Dial. Larry Floyd made a bad witness as we expected, doing all sorts of shifty inmate stuff on the stand. Later, when his attorney, Ron Lewis, asked me about filing a civil suit on his behalf against the state, I advised him against it. Ron went ahead anyway and invested a ton of time and money in the case. The civil jury came back with a verdict of zero dollars. They wanted the law upheld but did not want to reward a convicted murderer or put a financial burden on the families of the officers. Rumor has it this year they are about to make a movie about the Larry Floyd case.
In addition to the civil case, the Floyd case had one final chapter. The sentencing guidelines for civil rights violence cases were extremely tough, requiring Winters to serve a five-year mandatory minimum for using a firearm in a violent felony, plus not less than nine additional years for the beating itself. Defendant David Johns was to serve not less than three or more than four years under the guidelines. Johns was, after all, convicted not only of conspiracy in the beatings but of perjury before the grand jury and witness tampering. Judge Senter felt compassion for the isolation and violence the veteran officers would suffer as federal prisoners and departed drastically downward from the guidelines. Citing a “culture of violence” at Parchman, he gave Winters just one year and Johns only six months of home confinement, that is, no real time in jail at all.
The Civil Rights Division, which handles its own appeals without our participation, was outraged (we were not too happy either) and immediately appealed. The Fifth Circuit rejected Judge Senter’s reasons and summarily reversed his judgment and sent the case back for resentencing. The judge then simply gave newer, more elaborate reasons and reimposed the same light sentences. The Court of Appeals reversed him a second time. At that time, the judge, suffering pain and disability from the effects of polio when he was a teenager, received a transfer to Gulfport in the Southern District of Mississippi where there were no more cold north Mississippi winters. He had a long and distinguished career there, although not doing exactly what he’d planned. After enjoying the warm, healthful Gulf Coast sun for a couple of years, he suffered serious personal losses in the infamous 2005 Hurricane Katrina and later became nationally famous for his landmark rulings in the lengthy and exhausting insurance litigation that followed in the wake of Hurricane Katrina.
A new judge, Allen Pepper of Greenville, was assigned to sentence Winters. He immediately took our original recommendation as to Winters, which Cynthia and Tom and I had struck with the defense attorneys. He gave Winters half the guideline sentence of nine and a half years, minus time already served. The Winters case was finally over. One night a year or so later, I was surfing TV channels when whose smiling face did I see but the still-beautiful but newly-blonde Cynthia Alksne. She had left DOJ and gone on to become one of Geraldo Rivera’s expert legal commentators on criminal trials. Fiery and opinionated as ever, Cynthia was a great commentator. Tom and I calle
d her and asked her what it was like. “Kind of like rasslin’ on TV. They assign you a good guy or bad guy role and you play it to the hilt.” She had not changed. After a few years, she had two daughters in quick succession and retired as TV gladiator but kept in touch with “Christophe” and me for several years. One night, on a training mission in Moscow, a group of us were at the Bolshoi Ballet. Walking out in a crush of mink-coated “new Russian” women and their machine-gun toting boyfriends, we walked past a high-end souvenir stand. Sitting there were two beautiful little pairs of ballet slippers. Catching up with my friends, I asked them to wait while I bought them for Cynthia’s little girls. By the time I got back to the stand, however, someone else had already bought them. It was my only bad moment in the case, which for us had never ended, and in my memory, probably never will.
Most surprising was the fate of Chris Epps. At trial the jury was approximately half black and half white. Courthouse rumor later had it that the black jurors had refused to convict Epps, not wanting to make him a convict just because he might have lightly slapped an inmate who was already beaten up and didn’t even remember the slap. Under the circumstances I understood Epps’s situation. The white jurors were said by rumor to be ready to convict both Epps and white warden Steve Puckett, but were not willing to convict one without the other. After all, the warden had never touched Floyd. In the end the jurors allegedly compromised and found both men not guilty.
Republican Governor Kirk Fordice promoted warden Steve Puckett to Commissioner of Corrections. Epps continued to rise through the ranks and in 2002 was named Commissioner of Corrections by Democratic Governor Ronnie Musgrove. Impressed by the job he did, Republican Governor Haley Barbour kept him on, reappointing Epps to the job in 2004. I have followed his career closely ever since and feel he has made perhaps both the toughest and the most professional Corrections Commissioner in Mississippi history. Once again jurors apparently had a better feel for real justice than we did as attorneys, which is why I continue, after forty years, to be such a strong believer in our American jury system.
From Midnight to Guntown Page 29