James Clements would swear that Buddy Quinn and his colored companion, Joe Tough came upon he and Jack Hornsby as they attempted to get their old truck started after it had overheated. He would swear that Joe Tough had taken a bat from Hornsby and beat him without mercy…and then attacked him as well before taking the truck and his money.
The testimony was nonsense…all lies, Tough did not know how to drive and the truck was recovered where it had been left by Delements himself…near the railroad crossing in the middle of the city. As for the theft, Tough was arrested at his apartment…there was little money except for loose change in a piggy-bank which played a nursery rhyme when a coin was deposited.
Joe Tough was bloodied and badly beaten with a gash over his right eye which required sixteen stitches to close.
Buddy Quinn testified that the two men in the old red pick-up had come along on that evening and offered a ride into the city of Nashville. Tough had gotten into the bed of the truck and Buddy into the middle of the two white men. Jack Hornsby had been the driver and Delements in the passenger seat was drinking heavily began to fondle Quinn’s privates. Quinn had asked him to stop without results…Delements kept to it, grabbing Buddy and laughing at his small penis and testicles.
Buddy pants were removed along with his underwear and Delements had tried to make Buddy get an erection without success…both men gloated over the condition…smoking, drinking and joking over the situation Buddy found himself…and then Delements took out his penis and tried to get Buddy to sit on his lap…Buddy screamed and resisted while Delements pushed his penis into Buddy’s annus…suddenly, Joe Tough slammed into the rear window, smashing it into hundreds of pieces while grabbing the neck of James Delements with both of his large hands and pulling the man through the window and out the back into the bed of the truck.
Jack Hornsby viciously swerved the truck to the left and right on the shoulder of the road trying to throw Tough off the truck…his actions finally resulting in the truck going into the ditch where Hornsby jumped out with a Louisville Slugger baseball bat and began to beat Tough about the face, hands and arms. Both men attacking the lone Tough who was unable to defend himself against the two men wielding a baseball bat and finally, a vicious blow knocked Tough to the ground where he lost consciousnence.
Though he was badly bleeding, when Tough came to he was most concerned of the cold and that Quinn had no clothes on beneath the waist… so he took Hornsby’s coat and wrapped it around Buddy’s waist. Buddy testifies that he had encouraged Joe Tough to run on ahead of him, as fast as he could back to the orphanage and the safety of his apartment in the back of the laundry.
Hornsby was down…on the ground, Buddy could see he was bleeding badly but Buddy was frightened that if Hornsby came too he would beat him as well…he began to run behind Tough toward the orphanage as Delements skidded away in the truck.
A clear case of self-defense on the part of Joe Tough and the charge of attempted rape and molestation of a minor for James Delements. But candidate Sherwin wasn’t hearing it…he maintained that his client, the good Samaritan had stopped to render aid to the runaways…whereupon the men were attacked by an insane black man trying to steal the truck and their money to facilitate their further escape plan.
The court was a patsy to the hand…they were in the pot…in no position but to call…
A slow, creaking noise broke the silence…the sound of chains being dragged…a door at the back of the courtroom swung open. With a muffled, rhythmic jangle, Joe Tough (aka Joseph Marshall) chained at the ankles and wrist, was led down the center aisle, through the middle of the colored section, through the swinging gate at the rail and up to the chair next to Frank Halliburton.
Halliburton got up from his chair as the deputies removed the shackles from Tough’s wrist and ankles. Halliburton placed his hand on Tough’s waist because he could not reach his shoulder…he motioned for Tough to sit down and when he had taken the chair Halliburton touched him on the shoulder and bent over to speak softly in his ear.
“It’s ok Joe…please trust me this will be over soon and you can go home to enjoy the Christmas holidays.”
“Where is Father Hermann?”
“He will be here soon Joe…you see that seat right behind you?” Halliburton motioned to the vacant seat next to an elderly black man.
“That where my father sittin?”
“Yes Joe.”
“Who all these nigers?”
“They are friends of ours Joe…they are friends of Father Hermann.”
Edwin Sherwin, the Commonwealth Attorney came in behind Tough and made his way down the aisle to the rail gate and came through to take a seat at the table next to Tough. He placed his file on the table took off his top-coat and placed it on the chair next to him. The warrior ready to do battle in his arena but he also knew that he did not have the sight of the hill…the enemy had arrived early and had set up artillery on the hill…It would not be an early day.
A bailiff entered the room…“All rise, Hear Ye! Hear Ye! The Honorable Thomas Merrill presiding…anyone having a cause in this the Western District Court draw near and let your petition be heard.”
Thomas Merrill believed that not even lawyers should be made to wait, At precisely nine-thirty he took his place at the bench and called the case.
Sherwin was already on his feet, “We are here, your honor, in the case of the State vs. Joseph Marshall (aka Joe Tough).” He paused for just a second and then added: “The state is ready your honor.”
Merrill was impassive, almost stoical. He turned his attention to Halliburton and asked: “Is the defense ready to proceed, Mr. Halliburton?”
Halliburton standing, “The defense is ready your honor. And if the court will permit, I do have one preliminary matter.” Halliburton waited, listening to the shuffling of papers by the Judge and the soft, methodic hum of a fan located at the front of the courtroom standing on a pedestal and rotating across the room.
The Judge nodded attentively.
“Your honor, I would ask the court, to exclude witnesses.”
The motion was commonplace, and the court had to grant it. No one who was going to testify would be allowed to hear what other witnesses, under oath, had to say. Halliburton knew the rules and he knew how to use them…score one for the defense.
“Any other motions?” Merrill inquired languidly, there were none and he directed that any witness currently in the court, remove themselves. James Clements got up and left the courtroom, making a derisive comment toward the colored section as he passed.
“If the clerk will, please bring in the jurors.”
Two dozen men and women, most of them elderly, shuffled awkwardly down the center aisle and filled the first three rows of benches at the front. Judge Merrill greeted them with a smile and why shouldn’t he, this trial could not proceed without them and they were not being paid.
“Ladies and gentlemen, he began, leaning forward, “I am Thomas Merrill, District Court Judge of the Western District court. You have been summoned to act as jurors in the case of the State vs. Joseph Marshall (aka Joe Tough). This is a criminal case, and I am now going to read the indictment which has been returned against the defendant.”
With meticulous care, Merrill read each word of the two-page indictment. When he finished, he looked up and stared intently at the three rows of upturned faces below him. “To these charges.” He announced emphatically, “The defendant has entered a plea of not guilty, that means the defendant denies these charges.” He paused to let the denial sink in, and added forcefully: “The defendant has plead not guilty, and the law, I now instruct you, presumes that he is innocent of these charges. That presumption is to follow him through this trial. He is presumed innocent,” and Merrill repeated, “until and unless the state proves his guilt to a moral certainty and beyond a reasonable doubt. Your duty as jurors is to listen to all the evidence and not make up your minds until you have gone back to the jury room and deliberated carefully among you
rselves.”
Merrill had impressed them with the gravity of their responsibility. Now he relaxed and became almost amiable. He introduced the Commonwealth Attorney, the defendant and Frank Halliburton. He asked if anyone knew the men. No one did. He explained that they were about to begin the process of selecting a jury. In a few minutes twelve names would be drawn by the clerk, and the two lawyers would then ask questions of each of them. These questions he hastened to point out, were not meant to embarrass them, but, rather to help determine who was qualified to sit as jurors in this case.
The three rows of prospective jurors had strained to concentrate on every word when Merrill, with all the force of an Old Testament prophet, read the indictment and insisted on the presumption of innocence. Now they were nodding and smiling as if they were having a conversation with a friend over the backyard fence. There was no question... Merrill was always in control.
“There is just one more thing,” he remarked almost casually. They had all heard the charge. The defendant was charged with the willful murder of Jack Hornsby. Was there anything about the nature of this charge, he asked quietly but firmly, that would make it impossible for any of them “to be fair and impartial?”
The question, the first reminder of the brutality that lay just beneath the surface of this civilized proceeding, hung in the air. The, slowly, tentatively, like white flags on a battlefield, three hands went up. One of them belonged to a mother of a child who had been sexually molested; the other belonged to a woman who had been molested herself, and one of them belonged to a man who had a retarded child at home. After a brief exchange in which each one made it clear they would rather not serve, the judge excused all of them.
The clerk drew the names of seven men and five women. “Mr. Halliburton,” Merrill announced quietly, “you may begin.”
Joe Tough saw that I had made it to the trial and had taken the seat behind him. I smiled at Joe and he seemed to relax as others around him smiled as well.
“Mrs. Cummings,” Halliburton asked politely, “Do you believe that everyone should obey the law?”
The question surprised and annoyed her. “Why, yes, of course.”
Halliburton looked at her for a moment, and then raised his eyebrows and began to smile. “Even you?”
Surprise gave way to astonishment, “Yes,” she answered quickly, almost as if she were afraid that someone might suspect her of something.
“Then let me ask you this, a few minutes ago, Judge Merrill explained to you that the law requires a verdict of not guilty unless the state proves guilt beyond a reasonable doubt. The question is this: After you have heard all the evidence, and then gone back and deliberated with the other jurors, if you then believe that the defendant is probably guilty, but the state has not proven it beyond a reasonable doubt, will you then follow the law and return a verdict of not guilty?”
“Yes,” she answered without a moment’s hesitation.
“Several hundred years ago, William Blackstone in his famous Commentaries of the Laws of England wrote that, “Under our system of justice it is better if ten guilty men go free than that one innocent man be convicted, would you agree with that?”
Halliburton stole a glance at Judge Merrill. There was no reaction from the judge.
Voir Dire went on for hours, all that day and into the next. Sherwin asked few questions, and with some jurors asked none at all. Halliburton was barely finished with one juror when he had to begin with the next, each time struggling to invent a new way to describe reasonable doubt. Finally, after seven of twelve jurors first put into the jury box had been removed through the exercise of preemptory challenges, and each of their replacements had in turn been examined, it was over. Halliburton checked the blank on the challenge slip that indicated that the defendant was satisfied and handed it to the clerk.
The trial began.
Speaking from notes and using a blackboard to illustrate his points, Sherwin began his opening statement. He stood there, pointer in hand, speaking softly and without indignation…he was not an anomaly in 1950, a white man prosecuting a negro for murder, while addressing an all-white jury. And no one seemed to notice. In his presence, race had become an irrelevancy, as little noticed as the color of someone’s hair or the shade of their lipstick…he sought to defy American prejudice and grabbed at least a part of the American dream, and without ever thinking about it…ever member of the jury knew different.
This was the south in 1950 or at least south of the border state. There had been no sit-ins or set-outs…back of the bus still remained for the colored. For the most part Nashville was thirty-five years away from its destiny with the racial card, or the busing card. The chances were not good for Joe Tough but one thing was for certain…they were first going to have to run over the body of a small Lebanonize lawyer to get to him.
The state, Sherwin told them, would prove beyond a reasonable doubt, each of the elements of the case. Halliburton knew that soon the talking points would be over and they would have to come with facts not fiction. There was no way they could prove the case once he had the opportunity to put Buddy Quinn on the stand, and putting James Delements on the stand would seriously jeopardize the case.
It was Halliburton's turn now. The open, friendly faces that had previously greeted him during Voir dire had disappeared. The presumption of innocence, which they had all agreed would follow the defendant throughout the trial, had already vanished. The jurors looked at Halliburton with skepticism and even hostility…he had not said a word and they were ready to hang a Niger.
“it would be impossible to imagine anything worse,” Halliburton began agreeing with their instinct, “Than what the Commonwealth Attorney has told us was done to Jack Hornsby, nothing, nothing at all, except to be falsely accused of having murdered someone.”
Two short sentences and suddenly things began to come back into balance. A juror in the back nodded almost imperceptibly. They had been reminded of the danger of leaping to judgment.
Halliburton moved closer to the jury box, so close that he could have laid his hand on the shoulder of the juror directly in front of him. Halliburton leaned forward, lowered his voice, and confessed: “Well, you might as well known right at the beginning, the Commonwealth is correct, Jack Hornsby was killed.”
Halliburton paused for just a second, “But he was not murdered by the defendant. We are only here today because the Commonwealth is seeking a glamorous verdict, and easy outcome on the eve of Christmas…time and the testimony of James Delements will prove my client is innocent.
Schorering led with what he felt was his strength, he called James Delements as the state’s first witness. Delements took his time coming to the witness box and then with a disrespect for the court that might be expected from a trailer-court red neck he threw a racial slur at Joe Tough giving him the middle finger!
Fortunately, Tough didn’t understand the gravity of the remark because Joe Tough lived in a virtual world free of race. He had never even known that there was this kind of evil in the world or that there were people in this world who so hated another because of their race…it was simply beyond Joe Tough’s imagination that there could be someone out there who hated him because he was black…it was a shade that he had never seen.
Delements wore a badly pressed outfit and a smile that only Dental Depot could embrace. His teeth and his fingers were stained to a high yellow and his breath was pure Oretel’s 92 mixed with nicoitin.
“Now Mr. Delements, you have previously sworn to tell the truth and you are not on trial here today…so I want you to take your time and take us through the night when you and Jack Hornsby encountered the defendant.”
“You mean that Niger over yonder?”
Judge Merrill slammed his gavel on the desk…“Mr. Delements, one more comment from you of a racial nature and I am going to hold you in contempt of court…do you understand me, sir?”
“Yes, your honor…but I don’t know what this man’s name is, Tough or Marshall.”
“Sir, he was referred to as the defendant, and not called by name…now counselor, do you need time with your client to explain the gravity of his continued disrespect for the defendant and this court?”
“No your honor, I can promise there will be no further comments of a racial nature from Mr. Delements…and I personally ask for your forgiveness for this indiscretion.”
“There is no room in this community for this behavior counselor…I am personally appalled…I am embarrassed for the defendant and for all the other black visitors to this courtroom.”
“OK, Mr. Delements, do I need to repeat my question?”
“No, sir…Jack Hornsby and I were on our way to Nashville when our truck overheated. Smoke was pouring out the hood when Jack tried to open it, there was a broken radiator hose spewing hot water everywhere. The ni…I mean that yonder, got the jump on Jack and began to beat him with a bat we had in the truck bed.
He beat poor Jack pretty bad. I tried to stop him but then he began to beat me as well. I decided to try to get away but he took the truck and that was when I first saw this kid hanging on him.
I had to walk into St. Mark to find the cops, and then I found that Jack’s truck had broken down near the railroad and I expected that those two had gotten on the train and headed out to St. Louis.”
“Your witness.”
Halliburton approached Delements with great disdain.
“Mr. Delements, were you drinking that night.”
“Well…just a tad.”
“Fact was, you and Jack Hornsby had stopped in Middletown and picked up a case of Oretel’s 92…isn’t that true?”
“I don’t recall that we done that.”
“Sir, how do you explain the empty case in the bed of the truck?”
“Heck…anybody can drink a case of Oretel’s 92 over a spell…don’t know fool have to tell you that much.”
“Yes, well Mr. Delements, we have the sworn testimony of two fools that fingered you and Jack Hornsby at the Middletown Beer Depot that will testify that you and Hornsby were drunk and unruly and were escorted out of the beer depot after they sold you the case of beer.”
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