From Midnight to Guntown

by Hailman, John

  As I expected, the senator bristled. “You propose to let that man off entirely? The other one already got a light sentence, might even get it expunged. What’s the use?” The senator was pale and drawn, many pounds lighter than when we had dove-hunted together in Virginia that fall and fly-fished together in Montana. I could not hurt the man but absolutely had to get him over this hump. I remained silent because I didn’t know what to say, something my father always advised me to do. “Are you all unanimous?” His resistance was breaking. “Yes sir, all of us.” He shook his head sadly. “I never thought I would see the day.” He looked me deep in the eyes and said something that chilled me: “I trust your motives, and I have to trust your judgment. I don’t know enough myself. I will never approve it, but I will not object to whatever you do. Make the best decision you can.” When I told the others later that evening, we all had the same reaction: What a responsibility we had to that man. We had to make the right decision. We hoped we had.

  When court opened the next morning, Roger Adelman stood up in the presence of the jury and stated: “We call as our next witness the codefendant, Derrick Holloway.” The jurors finally looked interested. Ken Mundy asked to approach the bench. “We are ready to plead, Your Honor.” The jury was dismissed, Tyrone Marshall pled guilty, speaking disrespectfully to Judge Waddy, saying “Yeah” to most of his questions and often ignoring the judge altogether. Once again over government objection, Marshall asked to plead under Alford, insisting he was not guilty but claiming through his lawyer that as a tactical matter they could not overcome the government’s evidence.

  Judge Waddy accepted the Alford plea and called the fourteen jurors back into the courtroom and told them only this: “Ladies and gentlemen, this case has been disposed of. Your services will no longer be necessary. With the thanks of the court, you are finally discharged.” I stood there wanting to jump and shout but held myself in check. As Roger and Steve and I quietly shook hands with Eph Cresswell and the FBI agents, the second alternate juror came out of the jury box right up to me. We had made quite a bit of eye contact during the trial. He had a fully shaved head, not yet then a fashion, and had rings on all eight of his fingers. He asked, fairly enough I thought, “Say, man, what happened?” I told him Tyrone Marshall had pled guilty, and the judge would sentence him later. He said, “No way, man. We already talked. That dude didn’t do nothing. It was all made up. We were going to cut him aloose.” I looked at the rings on the alternate’s fingers and wondered if our jury system could survive.

  On March 22, 1974, just days before sentencing, defense attorney Ken Mundy moved the court to allow Tyrone Marshall to withdraw his guilty plea entered in October 1973. He claimed prosecutors had tricked him and committed misconduct by first saying they would never give any defendant immunity, then doing so. He also said that since the plea was entered, Holloway had been convicted of a separate street robbery and sent to prison. If a new trial was ordered, that conviction could be used to damage his credibility and the government’s case would be weakened. And, after all, Tyrone Marshall still insisted he was innocent.

  The prosecutor’s reply was succinct. Tyrone Marshall did not deserve to get away with such a game. Since his plea, he had been convicted of two other robberies in D.C. Superior Court. His real motive for wanting to withdraw his plea was Judge Waddy’s recent ruling that he would not be allowed to benefit from being sentenced as a youthful offender. He was too hard-core. He would be sentenced as an adult. Again the prosecutors relied on Justice Burger as their support, citing another recent U.S. Supreme Court case, ironically named Brady v. U.S.,3 which held that a defendant was not entitled to withdraw his plea merely because he discovered after the plea was accepted that “his calculus misapprehended the quality of the state’s case or the penalties attached to alternative courses of action.” Judge Waddy agreed. Tyrone Marshall had finally lost.

  Months later, after many hearings and much analysis of Tyrone Marshall’s possibilities of rehabilitation, Judge Waddy finally ruled he was not worthy of treatment as a youthful offender and sentenced him as an adult to not less than ten nor more than thirty years in federal prison on all counts. A few months later, he was also convicted in D.C. Superior Court of yet another armed street robbery, and given more years consecutive. Derrick Holloway was also convicted of a separate robbery and sent to federal prison as an adult as well. It took a herculean and, to my mind, an unnecessary effort, but Senator Stennis’s assailants finally got at least part of what they deserved. To me personally, the case had a powerful and lasting influence: It made me think for the first time that I might want to be a prosecutor one day. It was prosecutors, not defense attorneys as I’d previously thought, who were most needed to see justice was done.

  The Ku Klux Klan Tries to Murder Charles Evers, Brother of Medgar4

  One morning during my first month in the office, U.S. Attorney H. M. Ray laid a thick file on my desk: “Here’s one you may want to decline prosecution on. This guy has been in Whitfield for years.” Intrigued and not burdened by other cases, I began carefully reading the file. The contents startled me. Dale Walton had for many years operated a convenience store in Tupelo. It was the heyday of civil rights and racial confrontation, and Walton had been at the center of several controversies, including his arrest in Fayette for possessing an arsenal of guns, including a machine gun, and conspiring to assassinate Mayor Charles Evers, brother of slain civil rights leader Medgar Evers. On another recent occasion Walton had gotten into a dispute with a black customer over two cents in sales tax on a pair of dice and had pulled out a shotgun and killed the customer on the spot. His lawyer had him declared mentally unbalanced and committed to the State Mental Hospital at Whitfield, where he had remained for nearly three years.

  Another controversial incident soon occurred involving Walton. After being released from Whitfield heavily medicated, he painted a broad yellow stripe on the sidewalk in front of his store which said, “No Niggers beyond This Point.” A citizen called FBI agent Don Greene, who called ATF agent Billy Pace in Aberdeen and told him that in addition to the painted sign, Walton had hung on the front door of his store a loaded 45-caliber machine gun of the World War II variety known as a “grease gun.” Pace, who knew Walton well from previous encounters, drove straight to the store. When he saw the weapon, which was cocked and loaded, Pace approached it to seize it. Walton came running from inside the store and offered to “make it safe.” Pace declined, uncocking and unloading the weapon himself.

  Pace was a most unusual agent. Calm and politely southern on the outside, he was cool and steely on the inside, as I witnessed in several cases. On this occasion, as usual, Billy did not follow the standard ATF procedure requiring agents to go armed at all times. The unarmed Pace invited Walton back into his store where they stood at the counter by the cash register. The two had the sort of cordial relationship that sometimes develops between an officer and a frequent suspect, a sort of respect between professionals. “Dale, I’m sorry, but this time I’m going to have to arrest you,” Pace said. Walton quickly reached under his belt and pulled out a 45-caliber pistol and raised it high in the air. Billy told me later his knees had buckled slightly at that moment, but he could not afford to show fear. Walton calmly laid the pistol on the counter, saying, “I guess you’ll want this one, too.” Before Pace could say anything, Walton produced a .38 from his jacket pocket and another pistol from an ankle holster, both of which he placed peacefully on the counter. At this point, Pace told me later, his head was starting to swim.

  Gathering up the guns, Pace told Walton, “Dale, it’s time to go.” Walton reached behind him and opened the door of a cooler and said, “Billy, I will only go with you if I can take a cold six-pack with me.” Pace replied, “Dale, I can’t let you do that.” Walton had a wild look of rage on his face until Billy calmly raised three fingers and said, “You can only bring three.” The remainder of the arrest and incarceration went peacefully.

  After reading the file, incl
uding the psychiatric reports, I doubted whether Walton met the legal test for insanity. It seemed authorities might have just gone along with committing him to a mental hospital rather than taking the risk that a racially inflamed state jury might let him go. The federal charge also seemed to have good jury appeal since Walton clearly knew he was possessing a machine gun and that it was illegal, regardless of some obvious mental instability. The worst fact from our standpoint was that earlier in the case Walton had been examined by a federal prison psychiatrist, who declared him incompetent to stand trial. Nevertheless, it just appeared to me that Walton was too dangerous to be let loose on the community without a serious effort to convict him.

  We obtained an indictment from the grand jury, whose enthusiasm for the case was encouraging. I subpoenaed the witnesses, including the psychiatrist, Dr. Harry Fain. Shortly thereafter, I received a confidential phone call from the director of the psychiatric unit at the Springfield prison hospital, who told me, in only slightly veiled terms, that Dr. Fain was a cantankerous and difficult witness and that I would want to spend some quality time with him to get control of him before I put him in front of a jury. Dr. Fain’s trial schedule was so packed, however, that I only had the Sunday before the Monday trial to spend with him.

  I met Dr. Fain at around 9:00 A.M. at the door of his room at the Holiday Inn in Oxford. He was a sight. Approximately seventy years old, he had an interesting mixture of red and gray hair. Bald on top, he had plaited his long hair around the fringes and then circled the plaits into a sort of knot on top of his head and fastened the ends together with rubber bands of various colors. I seem to recall that he had a trimmed white beard like so many psychiatrists, and he definitely looked the part.

  As we began to discuss the case, I noticed that Dr. Fain spoke almost entirely in abstruse psychiatric jargon, rarely using ordinary language. When I tried to persuade him to speak plain English, he would repeatedly say, “Who is the shrink here? I know how to communicate. Stop trying to control me. I may have to psychoanalyze you if you continue to be so anal.” After a couple of hours, Dr. Fain asked if it was possible to “get anything to drink in this town.” Oxford at that time had some strange laws. Liquor was illegal on all occasions. Beer could be sold, but only warm and never on Sundays. Therefore, most of us kept coolers in our trunks for such occasions. We got some ice from the hotel and iced down several of my beers. After drinking them, we began to communicate better—so much better that I decided it was advisable for me to walk home rather than drive. As I left Dr. Fain’s motel, he grabbed me by the shoulder, shook my hand vigorously, and declared in true psychiatric fashion, “I really have enjoyed interacting with you.”

  Convinced I had him under control, we were ready for trial. The next morning, I saw Dale Walton for the first time. He really did appear seriously mentally impaired. Heavily sedated, the pupils of his eyes were huge. His court-appointed attorney, Tommy Gardner, later a respected state circuit judge, asked me if I wasn’t ashamed to be prosecuting anyone this obviously crazy. I brushed it off but later noticed that if I stared hard at Walton at counsel table, his feet would both rise up off the floor and visibly tremble. I had never seen that before.

  The trial lasted several days, longer than I had expected. One evening, I invited Billy Pace and Dr. Fain over to my house for a bottle of wine. My wife was out of town. Late in the evening, after several glasses of wine, the three of us were sitting in the den. My wife came home unexpectedly and heard us carrying on. She peeked in the door without our knowing it and somehow jumped to the conclusion from his strange appearance that Dr. Harry Fain was the defendant Walton. She started to call the police but decided not to and we all had a good laugh, especially Harry.

  The next morning I put Harry on the stand. At first, things seemed to go well. He was explaining everything in nice plain language, making it sound perfectly reasonable that he could say Walton was crazy one day and then, years later, decide upon reflection that the same Walton was sane enough to stand trial. I do not recall all of the details of his various psychiatric opinions, but one is hard to forget. After administering the MMPI, or Minnesota Multi-Phasic Personality Inventory, a test to determine whether a subject is faking or “malingering,” Dr. Fain described Walton’s interpretations of some Rorschach inkblot tests, which he said were “unusual and somewhat troubling.” To get a better grasp of Walton’s view of reality, Harry asked him to give a self-assessment in the form of a freehand pencil drawing. Although I would not have wanted the jury to see it, under the Court’s rules of discovery, the defense already had all of our materials and if I hadn’t shown it to the jury, the defense would have anyway, so I went ahead.

  At the top of the sheet of paper Walton had spelled out his name, printing D-a-l-e vertically and W-a-l-t-o-n horizontally, with the two words meeting and sharing the letter a, which gave a definitely less than adult picture of the person doing the writing. Worse, but according to Dr. Fain fairly typical, was Walton’s drawing of himself. His head was just a circle, his arms two sticks with smaller sticks for fingers. His legs were two straight sticks protruding down from a circle which was his torso. Dominating the entire picture, however, and about twice the size of his entire body, was an enormous oblong penis, which was longer than his legs. According to the rules, all exhibits are handed to jurors for them to examine. I had no idea what the jurors would think. I hoped they would see Walton for the joker and faker I thought he was, but I was concerned. Harry, of course, was totally unfazed.

  At this point I asked Harry to explain away his former diagnosis of Walton as a paranoid schizophrenic. Following our usual pattern, I had him use the term, then explain it in everyday English. Harry started off just fine. A very professional witness despite his bizarre hair style, which one juror later told me he thought was perfectly normal for a psychiatrist, he would turn and look directly at the jurors as he spoke, like a kindly doctor. “Schizophrenia is a kind of break with reality where a person sees one thing but thinks it is another. People often misperceive not only other people but especially themselves as something other than what they really are. They also totally misinterpret events in the same way.”

  He continued, “Paranoia, on the other hand, is somewhat different, although many people are both schizophrenic and paranoid at the same time. Let me explain paranoia to you further with an example.” Something about the way Harry said that gave me a little thrill of anxiety. He looked directly over at me and gave me a menacing smile. “Paranoia is an irrational anxiety. It often exists at the same time with schizophrenia, and each one can trigger the other.” He then smiled maliciously at me and looked directly at an elderly white-haired lady sitting closest to him in the jury box and said, “Now, take this sweet little lady here. Suppose she thought that the Russians were dangerous to our country and might drop nuclear bombs on us. That would be a normal, reasonable fear.” He continued, “But suppose she thought that the Russians. . . . . (he started lengthy, repeated pauses) had secretly planted . . . . . a listening device . . . . . in her rectum? Now that would be paranoia.”

  At that point, unable to crawl totally under the table as I felt like doing, I covered my face with my hands. When I finally glanced up, to my utter surprise Harry and the old lady were staring at each other, and she was smiling from ear to ear. When Tommy Gardner finished trying to cross examine Harry, the court took a break. I confronted Harry in the hall. “What do you mean saying something like that to that old lady?” Harry replied calmly, “Did you see the look on her face? She loved the attention, especially that kind of attention. Like I keep telling you, I am the shrink here. Just follow my lead.”

  Then we caught a break. Hubert Jones, the big old gap-toothed deputy marshal guarding the courtroom door, stepped up to me in the hall. “John boy, I didn’t want to get up in this, but there is something you need to know. When I picked up Walton the other day from his cell, he asked me for a favor. He wanted me to let him show out in front of the other inmates and the sheriff. H
e threw himself on the floor and flopped around all crazy-like. When I told him it was time to go, he hopped right up and did what I told him. As soon as we were down the hall out of sight, he winked at me and thanked me.”

  As soon as the recess was over, I called Hubert straight to the stand. When he told the jurors about Walton playing crazy, several nodded and smiled. I felt we were home free. They wanted to convict, and now they had a good reason. Walton may have been crazy in a sense, but he also knew what he was doing. Sure enough, the jury convicted, and like nearly all juries that convict, they came in looking very grave and staring at the floor. Experienced trial lawyers know that when a criminal jury comes in smiling or looks at the defendant that they have probably acquitted. This jury had definitely convicted. The old lady repeatedly smiled in our direction, no doubt looking for Harry.

  Judge Orma “Hack” Smith startled us totally by sentencing Walton to probation on supervised medication. While preparing this book I found one of the jurors from the case and asked him what he thought about that. “Outrageous. We wanted him locked up forever. That was never reported in the paper. That man was really dangerous, and we needed some racial peace.” Of course we should have known better than to doubt the judgment of Judge Smith. Walton stayed on his meds and out of trouble for several years, with no further Klan or racial incidents. He died violently in a suspicious farm equipment accident, but apparently no one ever seriously followed up on it.