The senator, however, was adamant about identifying Marshall in court: “I was nose-to-nose with that man for a considerable time. I looked into his eyes. I believe now that I’m well, I can identify him. How can a victim be prohibited from identifying his attacker? Where is the justice in that?” After considerable discussion, we arrived at a solution. If the senator honestly believed he could ID the man in court, he would signal us by putting both elbows on the ledge in front of the witness stand and locking his fingers together. We did not tell the judge or defense counsel this was our signal. It nearly blew the case.
The trial began with Senator Stennis as the first witness. He was led into the courtroom by a black Deputy Marshal past the fourteen black jurors, the black court reporter, court clerk, and probation officers. He and Judge Waddy nodded respectfully to each other. The courtroom was filled mainly with supporters of the defendant and his large family. I know there must have been reporters there, but media attention had decreased concerning the trial itself, no doubt due to the many delays. I honestly now don’t recall which reporters were there. For a man of the senator’s background and experience of white supremacy, the courtroom scene had to be surreal. The only white faces I recall were the prosecutors and Eph Cresswell and me behind them. At the first recess, I spoke with the senator knowing we could not talk about his testimony, but asked him how, as a former trial judge himself, he felt about the courtroom scene. “Well, I just thought for a moment there I’d died and woke up in hell.”
It is impossible to give a flavor of the trial and the senator’s old-style demeanor and diction without quoting directly from the transcript of his trial testimony. His voice, since his recovery, had returned to its former vibrant, ringing sonority. Of all 100 members of the Senate, he had perhaps the strongest voice. He had a seriousness and a dignity, without bombast or pomposity, which were reminiscent of the nineteenth century. If you’ve never heard it, it’s hard to re-create. Not one member of the current Senate, north or south, retains it.
Roger Adelman asked the senator, as is normally done, what he did for a living. When he said he was chairman of the Senate Armed Services Committee, the defense objected that was irrelevant. Remarkably, they were sustained. Turning to the night of January 23, the senator told of the National Guard reception and his ride home. He said he drove a brand-new white Buick, “they call them Electras now,” and how he parked his car in his usual space right in front of his house, which his neighbors never parked in “as a courtesy.” He said he left the Senate office building at around 7:30 P.M. and took his accustomed route home: down Constitution Avenue, up Virginia through Rock Creek Park, turning onto Massachusetts at the big Muslim mosque, across 34th Street to his own quiet street, Cumberland, which is only two blocks long in Chevy Chase, D.C. As he pulled in, “a car shot by me, gunning the motor.” As the senator reached back into his car to get his dry cleaning, he saw two men coming toward him “at a sort of lope. The one on the street bumped me and said, ‘This means money. We want money and we’re going to have it.’ By his expression I knew he meant business. I reached for my money, which I always keep in my pocket in a simple paperclip and realized I had trouble. I had given all my cash to Miss Coy that morning to buy groceries. The only money I had was three thin dimes and a nickel.”
The senator tried to make a run for his house, but the second man blocked him, pushing him up against his car. One of them struck him a hard blow to the head with something, bloodying him. The senator continued his account: “I knew what his demand meant, but I wasn’t in any way to cope with it, so I undertook to outtalk him. I tried to keep the matter subdued and quiet, to negotiate a settlement. I pulled out of my pocket an old-style gold pocket watch given to me several years before in Europe. It had a gold chain and my Phi Beta Kappa key. I told him it was appraised recently for $800. I always wear a wristwatch, but it was in the shop for repairs. All I had was this antique one.” The defense counsel objected that what an appraiser told the senator was hearsay. Judge Waddy overruled, saying simply, “The man can value his own watch.” The point was important because to be a felony under D.C. law, the property stolen in a robbery had to be valued at over $500.
The senator continued:
The men pushed me into the car, and the second man tried to crush me to the ground. I came out and broke his tackle, which surprised me. He was muscled up pretty good, but so was I from years of gymnasium work. I seemed stronger than him, which really surprised me. Things were moving mighty fast by then. The mean expression on his face became more pronounced. Then for the first time I saw the gun. I saw only the barrel. The second man was still blocking my flight, trying to push me down. I visualized if I went to the ground the first one would shoot me in the head. I began shouting to give the alarm. Talking was over. Then I saw smoke from the gun barrel. One bullet had hit me just below the heart area. I don’t recall the other.
The senator recalled the shooter saying, “I’m going to kill you anyway,” then watched as “they withdrew, making sounds of jubilation or triumph.” The senator said he walked up the steps and into his house and told his wife what happened and to “call Walter Reed Hospital. I feel faint and must be going into shock. I knew I was seriously wounded and in great pain.” He testified a man soon said, “We are the ambulance,” to which, amazingly, an objection was sustained to hearsay again. Another voice said, “Take him to the nearest hospital, George Washington.” The senator had just enough strength to order them, “No, no, take me to Walter Reed. They have the surgeons I will need.”
When asked to describe his main assailant, the senator said, “He was about my height, 5’, 11”, and weight, I weigh 171 pounds today. I weighed at the Senate. I could see him well, up real close. Now, I see a gentleman over there at the table—” The senator was clearly about to make a forbidden in-court eyewitness identification. Roger Adelman stopped him. Defense Counsel Ken Mundy moved for a mistrial because the prosecution had breached its promise to allow an out-of-court hearing before an in-court identification was attempted. I felt terrible. My only job was to watch for the senator’s signal, but I’d never seen it during the hour or so he testified. I had blown it. Judge Waddy excused the jury and had the senator continue his testimony: “I’ve been noticing this gentleman since I sat here. He’s in a green jacket, turtle top. I had a good chance to look at him while the Bible was being obtained for the oath. After that he’s kept his eyes mostly closed and averted. But I’d like to be closer to him. I believe that’s the man that had the pistol.”
After lengthy arguments, Judge Waddy ruled that the senator would be prohibited from making an in-court ID, but that his statement before the jury was ambiguous: “He could have been about to say Mr. Marshall was not the man.” The crucial motion for mistrial was denied. The judge personally addressed the senator on the stand, knowing he was used to having his own way and difficult to control. The senator was still reluctant: “I will gladly obey, Your Honor, but based on my observations, and the attorneys know nothing about this . . .” Judge Waddy then raised his hand, and the senator said, “Very well . . . all right . . . I will obey the court.” Defense Attorney Mundy perceptively said, “I’m afraid to cross-examine him now. Who knows how I might open the door for him to make an ID?” Judge Waddy told him to do the best he could.
After lunch, Mundy tried to cross-examine the senator, asking him details, suggesting that if his client had stolen the watch, it should have been found. The senator described it: “The watch was a work of art, trim and nice-looking, about the size of a silver dollar.” When asked whether the senator himself fought robbers, he replied firmly, “No, there was communication between us, but it was totally ineffective because of his demands.” When asked if he did not misidentify his attacker at the hospital the senator denied it, “It was against my judgment to talk at the hospital at all with all the drugs and pain. They wanted me to make a sketch, but I could not. I was not conscious but a moment.” He flatly denied any misidentification: “I w
as talking all out of my head. My first real conscious moment was several days later.” When Judge Waddy agreed the senator could stand down, their mutual courtesy was a tribute to the legal system given the intense racial animosity in the country, especially in Washington and in that case.
The prosecution next called Derrick Holloway, in chambers, after agents had searched for hours for his lawyer, who was habitually absent. The lawyer promptly moved to have Holloway dismissed as a witness, claiming the prosecutors had committed misconduct by leaning on him too hard to testify: “Their relations with my client have been so tainted they should have no right to harass him further.” At that point I thought to myself that my father had been right. Lawyers are lying parasites and our legal system is a joke. Judge Waddy restored my faith: “Motion denied. The witness will testify now or remain in jail.” Tyrone Marshall’s attorney then demanded a copy of the written confession Holloway had signed. Judge Waddy denied that too: “Since he refuses to testify, you don’t need it to cross-examine him.”
The prosecution then called John Thomas, the key to the case. Tall and calm with a firm voice, he readily identified Tyrone Marshall as the man who was beating his wife Debra’s head bloody with a stick when she blurted out that “he and some other guys did the Stennis shooting.” Thomas insisted she said it three or four times, even as other men walked by during the beating. These men were never located. Thomas told how Tyrone said, “You crazy girl, he might be the police.” To the passersby, he also said, “This girl told them I was involved in the Stennis shooting,” before hitting her again. On cross-examination, as good witnesses will often do, Thomas got even stronger. “The man was in a rage. He said what he did was none of my business. No way did he deny doing it.”
The next three witnesses, all teenage neighbors of the defendant, turned out to be surprisingly strong. The first, eighteen, had known Tyrone Marshall since junior high. He testified he saw Marshall the day after the shooting at the Psychedelic Haven record shop and Tyrone bragged, “I shot the dude twice. He wouldn’t quit hollering. All we got was a quarter or so and an old watch. Derrick was driving. We robbed another old dude later on our way home. I didn’t know he was a senator till we heard it on the radio.” Defense counsel got nowhere on cross and quickly quit.
The next witness, age nineteen, said he didn’t see Tyrone Marshall till the following weekend, walking home from the record shop. Marshall told him he shot the senator while robbing him. When asked why he did it, Marshall “just laughed. He tried to sell me the man’s watch, but I didn’t want it.” On cross he also got stronger. When asked if he hadn’t first told the police Marshall only said he was “involved,” the witness looked defense counsel in the eye and calmly said, “When I had more time to think, more of it came back to me.” He was totally believable.
The next witness, also nineteen, knew all three defendants well. One day in early February he was riding around with Holloway, who showed him the gun used in the shooting. Holloway drove him to the Marshall house and called out Tyrone, who said, “Yeah, that’s the gun. I shot the dude twice with it and gave it to P. W.” According to the witness, P. W. had used the same gun to shoot someone else in another robbery. When confronted, apparently in the witness’s presence, P. W. gave the gun to the FBI. On cross the witness was asked if he knew there was a reward and how much it was. “Yeah. $60,000.” Asked if that was his motive for testifying, he admitted he wanted the reward but said he had told the truth to the FBI before he read about any reward.
At this point Juror #3 asked aloud if he could question the witness. As is customary, the judge refused. We never found out what the questions were but wished the judge had let him submit the questions in writing for the judge to ask if they were proper. But that sort of thing can of course quickly get out of hand. Everyone might have wanted to play Perry Mason so the judge was probably right.
The next witness was Dr. Muir. He testified as an expert in gunshot wounds, noting that he had performed over ten thousand surgeries on such wounds during Vietnam from 1967 to 1970, mostly at hospitals in Japan. He had been a career surgeon with the U.S. Army for thirteen years. Dr. Muir testified he first saw Senator Stennis at 8:05 P.M. at Walter Reed Hospital. The Senator was cold and clammy and in extreme pain. The jurors looked surprisingly indifferent, several even looking away, which was unusual and an extremely bad sign for us. Muir told how he had retrieved the main portion of the bullet from the Senator’s leg and had initialed it with an “M.” He confirmed saying following the first surgery that the senator “would not survive.” The jury looked as indifferent as ever. Muir said the senator was on heavy narcotics through April. In all, the senator spent six months in Walter Reed Hospital. On cross, the defense attorney, probably sensing the jurors’ apparent lack of sympathy, belittled the injuries, asking if the senator wasn’t allowed to go home on weekends and even fly to Mississippi in April for two days.
Tracing the would-be murder weapon was challenging. T. B. Hester, a federally licensed firearm dealer from Georgia, testified he sold the pistol, a classic Saturday night special, to a Tommy Thornton. Thornton then testified that he, a resident of Georgia, bought the gun illegally for his cousin, who lived on 13th Street in NE Washington near the Marshalls. The cousin wanted the gun but could not buy it legally because of Washington, D.C., gun-control laws. He testified he sold the gun in January 1973, just before Senator Stennis was shot, along with a half-box of hollow-point “copperhead” bullets for $40. Several other witnesses testified how, after the shooting, the gun had passed from hand to hand and was finally pawned for $15. One testified when he got the gun he dropped it and the pin that held the chamber in place fell out and he wired the gun together with a piece of coat hanger. By such threads hang human life.
An FBI firearms expert with twenty years’ experience testified he examined and test-fired the gun. He testified he had not only a Ph.D. but was the one who examined for the Warren Commission the rifle Lee Harvey Oswald used to assassinate President John F. Kennedy. He said the RG22 had eight grooves with a right-hand twist and, as the friends of Marshall had said, was wired together with a coat hanger because the cylinder pin was missing. He said it still fired with deadly effect. He said in conclusion only that the gun could have fired the bullet extracted from the senator.
On cross the defense attorney made full use of this weakness. He showed the FBI expert eleven other RG22s with eight grooves and two right-hand twists. The expert said the bullets could not be matched because the gun was so old the grooves in the barrel were full of lead from the hundreds of slugs fired through it and there were not enough “micromarks” to ID the bullet. Defense attorney Mundy asked if it were not a fact that at least a thousand other RG22s could have fired that bullet. The expert, surprisingly, volunteered it could be a hundred thousand. Later, in argument, the prosecutor tried to explain to the jury that they put the expert on to show they had left no stone unturned in investigating the case. They claimed they wanted to show nothing was hidden. The jury did not look convinced.
At this low moment, with Holloway still refusing to testify without complete immunity, the prosecutors had no one else to call but the Scientologists. The first, ironically named Duke Snyder like the famed Dodger centerfielder, identified church records showing Tyrone Marshall signed in to receive instruction on Scientology on the night Senator Stennis was shot. Other church staff indicated Marshall came in around 9:15, their records being “loosely done,” but they all clearly remembered the Marshalls and Holloway because Scientologist recruits were almost invariably white and those three were “strange” in their attitudes and dress, with bright-colored clothes and cornrowed hair, a fashion then fairly new. Our informal conclusion on the prosecution side was that if you looked strange to a Scientologist, you must be pretty strange.
Irby Todd, a questioned document examiner or handwriting expert with a Ph.D. and twenty-three years’ experience with U.S. Treasury, who had testified in over 15,000 cases and taught for seventeen y
ears at the Secret Service School, testified that he interviewed Tyrone Marshall and took handwriting samples from him. Todd said Marshall had a unique handwriting style easily distinguishable from all others, and it was easy to conclude defendant wrote the signature “Tyrone Marshall” on the Scientology sign-in sheet. Interestingly, Todd said it was equally easy to see that Marshall had attempted to disguise his writing on the samples he gave, but that he didn’t know what to change and that his attempts to deceive just made it clearer that he was the writer of his signature.
Defense Attorney Mundy announced “I don’t plan to cross.” Judge Waddy said he didn’t see “how this is relevant” to the shooting, but let the testimony stand just to show the three defendants were together that same night.
Finally, on Thursday, October 4, prosecutor Adelman announced to Judge Waddy that Holloway had at last given them a full and believable account of the robbery and shooting the night before, but still refused to testify. They had decided to give Holloway full and absolute immunity and dismiss all charges against him. Defense attorney Ken Mundy asked for access to Holloway to interview him more fully to reevaluate his position on whether to go forward with the trial or enter a plea.
The Wednesday night before that announcement was one of the most difficult of my personal and professional life. The whole prosecution team had worked for months to persuade Senator Stennis to agree to immunity for Holloway. He had always adamantly refused, and they had honored his wishes. Now we were down to the ultimate decision. None of us liked the look or feel of the jury. The senator had not been in the courtroom for two weeks like we had. Finally Roger Adelman approached me. “John, the senator trusts you like a son. He trusts your judgment. You’ve got to convince him. Otherwise we’ve lost the case. The jury is against us.”
With that flattering statement in my ears, I called the senator and asked to meet with him at the office that evening. I was sure he knew what it was about. Because of the rule on witnesses that says no one can tell a witness what other witnesses have said until the trial is over, I could not tell him what had happened. We sat at the long mahogany table in his senate office. He asked me how the trial was going. I apologized for the mix-up on the eyewitness ID, and he brushed it off. I told him the jury did not look good. Any fair jury would convict. The FBI and police and prosecutors had done a magnificent job, but with this jury we were simply going to lose the case. “What do you propose, then?” He knew full well what I would say, but we had to play it out. “Holloway has finally given us everything. He is smart and articulate. Ken Mundy is hinting he’ll plead Tyrone guilty if Holloway testifies.”
From Midnight to Guntown Page 34