From Midnight to Guntown

by Hailman, John

  The northeast Washington area was then a nice old neighborhood of neat middle-class homes, formerly all white, but by 1973 mostly black. A good friend of mine lived on the street. The FBI quickly joined D.C. police in canvassing the neighborhood, focusing on social gathering spots. There was considerable hostility toward the police there, but because the FBI were federal and enforced the civil rights laws, they were somewhat better received by local residents. At a local record shop called the Psychedelic Haven (it was the age of LSD), the officers hit pay dirt. Several young men told the FBI and police both on and off the record what had happened. The robbers had bragged a lot about the shooting. The young men knew considerable detail concerning the robbery, including the fact that the senator had no money on him, that he had given the robbers a gold pocket watch which the witnesses had also seen, even the number of times the Senator was shot, and where the robbers had obtained the gun.

  They all said the robbers were local residents John Marshall, known as “J. B.” and his brother, Tyrone. The getaway driver was their friend, Derrick Holloway, who also furnished the gun. While John Marshall held the senator down, Tyrone was the shooter. He was also the leader and did all the talking during the robbery. It was Tyrone’s orange-haired wife, Debra, who denounced him to witness John Thomas after Tyrone beat her on the head with a stick. The Stennis case was finally on its way.

  There was still a lot of work to be done, and the agents and officers went after it with a fury. They knew who did it, now they had to persuade the witnesses to testify. Because most had criminal records, their statements had to be corroborated. The officers also hoped to find the gun and the watch. An intensive neighborhood investigation began. The police obtained a search warrant for the Marshall house but found nothing, not even news articles about the shooting. With the gun they had better luck. Through an amazing series of handoffs, the rusty old revolver, its chamber held in place by an improvised bolt, was located and seized. Confronted, Derrick Holloway confessed, implicating the others in detail.

  Veteran assistant U.S. Attorney Roger Adelman, who later prosecuted John Hinckley Jr. for shooting President Ronald Reagan, was assigned to lead the prosecution team. His key assistant was Steve Grafman, a resourceful and vigorous young prosecutor. Adelman was tall, calm and imposing, and looked and sounded more like a senior judge than a prosecutor. Grafman brought a whiff of feisty southern enthusiasm to the team. U.S. Attorneys changed as the case went along, with Harold Titus being replaced by the famed Earl Silbert, long known as one of the nation’s preeminent trial lawyers with the nickname “Earl the Pearl.”

  On March 12, 1973, a criminal complaint against Holloway and the Marshall brothers was served on them, and their arrests were made public less than two months after the shooting, showing some really good police work. But from that point on I began to see a dark side of the U.S. criminal justice system I’d somehow missed, despite what seemed to be my substantial experience as law clerk and attorney. The first problem concerned bail for the defendants. Despite numerous threats to the witnesses, in the nation’s capital pretty much every defendant was released on bond and free to intimidate the witnesses against him. Prosecutors requested a $100,000 bond on Tyrone Marshall, but a federal magistrate quickly reduced it to $25,000. Another magistrate reduced it to just $10,000, with only a 10 percent or $1,000 security deposit required. It meant that if anyone would deposit $1,000 with the court clerk (which they would get back after the trial), the shooter would be a free man, despite the fact that he was already on probation from another case and faced indictment in two more street robberies. Washington began to look like a jungle and the legal system a joke. The $1,000 bond was appealed, but fortunately the judge who got the case was Chief Judge John Sirica, of Watergate fame, a former boxer and law and order Eisenhower appointee. He refused to reduce the already ridiculously low bond any further.

  Tyrone Marshall still could find no one to go his bond. His parents refused, as did his friends, who apparently felt safer with him locked up, because he didn’t know which ones had told on him and which ones hadn’t. The FBI and D.C. police did their part by letting it be known that numerous neighborhood witnesses had implicated the robbers, thus giving some anonymity to the handful of real witnesses. The Marshalls did not know who to intimidate.

  Then out of the blue came a weird phone call. A worker at the home office of the Church of Scientology near the Hilton Hotel called to say she believed that the three men arrested for the shooting of the senator, whose pictures she’d seen in the Washington Post, had been at services at the Scientology Church that same night. If so, they would have been required to show an ID and sign in, and the time they arrived would have been noted. These rules existed not just to discourage the frequent robberies in the area, but to help the Scientologists proselytize and make new converts. When we heard, we collectively groaned. We all knew the wacko reputation of the Scientologists and doubted that the conservative Christian black women who made up the majority of D.C. juries would be likely to take them seriously.

  My own experiences with Scientologists were probably typical. They trolled the streets in front of the Wine & Cheese Shop where I worked part-time during law school and on weekends. Their beliefs were, to put it mildly, not mainstream. And if they were presented with a Bible to take an oath as a witness, we hated to think what their responses might be. My personal low moment with them had happened a few months earlier, after a trip to Montana with Senator Stennis when I’d caught a late night cab from Capitol Hill to Georgetown. As I got into the cab, I noticed on the seat a stack of books by L. Ron Hubbard, founder of the cult, whose name sounded more like a lawyer than a high priest of a new religion. The cabbie unfortunately saw me look at his books and launched into a spiel on the marvels of Scientology. It was surreal, farther out than most science fiction. To be polite I asked what he got from practicing Scientology. He’d only been practicing a couple of years but was totally committed. His ultimate goal was to get a “clear.” He explained in Zen-like terms that a “clear” was a state of the soul where your every feeling is at one with the rhythm of the universe, a sort of nirvana which he said he’d obtained briefly on a couple of occasions. His problem was he couldn’t remember what the conditions were that allowed him to reach that state, but said he would just keep hoping and studying L. Ron Hubbard. Maybe L. Ron’s people could give us some corroboration about Tyrone and his buddies, maybe give me a “clear.”

  A whole team of investigators spent days questioning the Scientologists who had been at their temple on the night of the shooting. They found all three defendants’ signatures on the sign-in sheet, showing the three young men were together not long after the shooting. Police figured defendants had foolishly thought they would show they were somewhere else that evening, but it in fact not only put them together but seemed suspiciously like an attempt to do just what they intended: establish an alibi. Investigators timed the potential routes from the senator’s home to the Scientology church and proved that the robbers could easily have done the crime and still have had plenty of time to check in at the time noted on the Scientologists’ records.

  Prosecutors Adelman and Grafman were busy. Realizing the testimony of the neighborhood street dudes might not stand up and facing a motion from Tyrone Marshall’s attorney to exclude his wife’s statement as out-of-court hearsay, they got a court order compelling Derrick Holloway to testify. The order was for what is called “use” immunity, meaning the witness must testify against his codefendants, but his testimony could not be used against him in his own trial. The court had already ordered a separate trial for Holloway from the Marshalls so his confession could not be used against him in his own trial but would have been introduced against the Marshall brothers only. This court-created rule is called the Bruton rule and is a reasonable safeguard for the accused.

  When ordered to testify under use immunity at a pretrial hearing, Holloway refused, and the trial judge ordered him jailed for civil contempt. Holloway
ignored the order. What was a little jail time to him when he faced possible life imprisonment as a principal in the notorious shooting of a U.S. Senator? The prosecutors had a weak case and the defendants knew it.

  Tyrone’s wife was so fearful she would be killed to prevent her testimony that the FBI hid her out with relatives until trial. Derrick Holloway, in return for his eyewitness testimony, demanded absolute immunity or “a walk” as detectives say, that is, that all charges against him be dismissed and that he be allowed to walk off scot-free. Even then we were not sure he would ever tell the truth. With the judicial system as weak as it was, what would keep him from lying? It was a quandary.

  The wheels of justice began to turn, however slowly. Co-defendant John Marshall, the older of the brothers at age twenty-one, decided to plead guilty. His motives were entirely manipulative. Under a federal law at the time (since mercifully repealed) defendants under age twenty-two on the date of sentencing were entitled to plead guilty conditionally, to serve a much shorter term, then have their record expunged or canceled if they behaved. John Marshall’s eligibility for such favorable treatment would expire on his twenty-second birthday. He therefore pled guilty, sort of. His lawyer helped him beat the system, however. Under Alford, which was then a recent decision of the U.S. Supreme Court,2 defendants were allowed to plead guilty and still claim they were innocent. The hare-brained basis for this decision was the anti-death penalty movement. Defendants, usually those facing the death penalty, could plead guilty and receive life imprisonment, often with the possibility of being paroled.

  In that context the Alford decision had at least some logic behind it, but courts immediately expanded the Alford precedent well beyond its original purpose, especially courts like the D.C. Circuit. In the case of John Marshall, he claimed he was innocent while technically pleading guilty. He also refused to testify against his brother Tyrone and codefendant Derrick Holloway. Over the strong objections of the prosecution, the trial judge permitted this maneuver.

  With John Marshall’s case disposed of and Derrick Holloway set for a separate trial, the prosecutors were able to focus on the shooter, Tyrone Marshall. Trial was set for June 1973, but Senator Stennis developed complications from the second bullet, the one that devastated his internal organs and settled near his spine. The bullet had begun to move and Dr. Muir decided it was finally safe, in fact necessary, to remove it. The operation was again long and recovery painful, but successful. The trial was reset for October 1973. Preparations for the trial were probably the most tense and interesting thing I’d experienced in my young life as a lawyer. Handling the witnesses was a nightmare. Holloway, the key witness, still refused to testify, as did John Marshall, who was not very believable anyway. The flaky crew at Scientology tried to help but could really prove nothing except that the three defendants were all together in one car around two hours after the Stennis shooting, possibly trying to establish an alibi. That left just two major sources of evidence: Tyrone’s wife and his friends, to whom he had confessed and who could trace custody of the gun. But the friends were naturally reluctant and possibly unreliable witnesses. And Tyrone’s wife Debra could testify only to Tyrone’s failure to deny her accusation to John Thomas that Tyrone had participated in the robbery and shooting. Any confessions made to her by her husband in private would usually have been barred by the time-honored marital privilege. Since medieval England, that rule of evidence has treated statements between spouses as confidential and never admissible in court, the theory being to encourage trust within the bonds of matrimony. There are, however, exceptions to the marital privilege. One exception is when a statement between spouses is made in the presence of a third party, in this case the garbage collector who courageously intervened when Tyrone was beating his wife and then called the police and reported her statements. A different legal problem arose from that statement. It was not a statement by Tyrone, but by his wife, and as such was normally inadmissible as hearsay, another curious technicality of Anglo-Saxon law, which courts have spent centuries dealing with. Never let a lawyer tell you hearsay is easy. It is not. In non-English-speaking countries, the concept does not even exist. In all other countries statements by one witness about what someone said to him out of court is simply treated as secondary evidence—that is, not as reliable as if you heard the witness say it himself, but admissible for what it’s worth.

  In the Stennis case, however, there was a classic exception to the exception: admission by silence. This old rule says that when someone is accused, in the presence of a third party, of wrongdoing that an innocent person would normally deny, the accused will be assumed to have admitted the accusation unless he denies it. On that slender reed rested what was perhaps the most convincing part of the prosecution’s case.

  Ken Mundy, the able attorney appointed to represent Tyrone Marshall, made every argument he could to keep Debra’s statement out, citing every known case where respected judges had excluded such evidence. He even had some support for his argument that Tyrone had implicitly denied the accusation, stressing Tyrone’s statement his wife was “crazy” to say that. But that statement was ambiguous because it could be interpreted to mean that Tyrone just meant she was crazy to reveal his boast about shooting the senator to a man who might be with the police.

  In the end the decision came down to a purely discretionary judgment call by the trial judge, Joseph Waddy, a serious and dignified black man known as a solid judge even if he had something of a soft spot for young black defendants and had to answer to the then-radically liberal D.C. Circuit Court of Appeals, led by judicial activist judges J. Skelly Wright and David Bazelon. Judge Waddy carefully considered this difficult question and decided the statement was worthy of consideration by the jury. To those who heard the statements directly from the witnesses, in context, they were powerfully credible. As authority for his decision, Judge Waddy cited a persuasive source, Warren Burger, recently named chief justice of the U.S. Supreme Court by President Richard Nixon. While serving as a judge on the D.C. Circuit, then-Judge Burger had approved admission-by-silence evidence under circumstances similar to the Stennis case. With that ruling, the prosecution at least had a chance of winning the trial, even though they knew a black D.C. jury would not think highly of a prominent segregationist senator from Mississippi. They did have a theoretically winnable case, but more than once approached the senator about giving absolute immunity to Holloway who, after all, “only” drove the getaway car and never personally attacked the senator. But the senator was adamant. “That man gave them the gun that nearly killed me and changed my life forever. I will never consent to his getting off scot-free.”

  As jury selection began, things immediately began to go wrong. U.S. Marshals reported improper contacts with jurors in the courthouse cafeteria by a man “with a peculiar-shaped head.” Jurors said he told them his son was on trial and reminded the jurors of when they were all in junior high school together. A retired teacher said he reminded her of when he was a janitor at her school. The man was accompanied by an “orange-haired woman parading up and down” with a small child in tow, said to be the defendant’s child. The marshals said the jurors would identify the jury tamperer by name if asked.

  Judge Waddy cut right to the heart of the matter: “It’s clearly Joseph Marshall, the father of the defendant, who has just what the jurors recognized, an unusual contour of his head.” Out in the courtroom Joseph Marshall sat with a hat on, but the judge was not fooled. He asked the prosecutors and defense attorneys if they thought this would “poison the jury” either way. They conferred and decided the same thing might happen with any jury in that venue. Washington, D.C., has some surprising attributes of a small town where everyone from certain social circles knows everyone else.

  The jury selection did have its light moments. In D.C., as in many federal jurisdictions, the voir dire or questioning of potential jurors was conducted mainly by the judge, not the attorneys. When one elderly man said he didn’t know if he could be away fr
om his wife for two weeks because she had a serious heart condition, the following colloquy occurred:

  Judge Waddy: “Is she ambulatory?”

  Juror: “No, sir, she’s not.”

  Judge Waddy: “How does she get around?”

  Juror: “Well, walking seems to help her some.”

  Within several hours a jury was selected, all black citizens with two black alternates. The prosecutors had helped strike some of the tiny handful of whites on the panel based on their answers expressing hostility to law enforcement and reluctance to convict based on objections to what they considered overly harsh punishments of blacks. They were D.C. liberals and didn’t want to look prejudiced.

  One critical issue remained to be resolved. It had never been finally decided whether the senator would endeavor to identify in open court Tyrone Marshall as the man who shot him. While in the hospital, over his objections, he was repeatedly asked to describe the man who shot him. There were conflicts between interviewing officers, some saying the senator said the man was as short as 5’, 8” and as old as forty, while others said he said he was as young as sixteen and the same height and weight as the senator, which he was. Fearing the conflicts would give the jury an excuse to doubt the whole case, the prosecutors promised the judge and the defense attorney they would not attempt an in-court identification by the senator, and there was therefore no hearing on the reliability of any ID.