Did this mean the jury had to believe Elizabeth Liger understood the consequences of interracial intercourse in order to consent? If the jury believed Elizabeth Liger only had the intelligence of a twelve-year-old, then it would find she was incapable of consent and convict. But even if the jury saw Elizabeth Liger as my father saw her—as a naïve and dreamy twenty-year-old woman of average intelligence—the jury still might convict on the grounds that any Troy white woman who had intercourse with a Negro was lacking in enough walking-around sense to understand the consequences, and therefore to have given consent.
“GUILTY,” announced the foreman, three hours later. It was around eight o’clock that evening according to the Messenger. “Guilty,” they all said as Judge Parks polled them one by one. “Guilty.” “Guilty.” Every one of them said it. Then the foreman said, “We fix his punishment at death.”
The Montgomery Advertiser reported that “The crowd in the courtroom, which had been guarded by State Highway Patrol officers during the trial . . . received the announcement of the verdict quietly.”
Chapter 27
MY FATHER TOLD ME he never doubted that his client was innocent of the crime of rape. He may have suspected that something sexual went on, but I don’t recall him ever saying that. I do remember him saying something to the effect that there was no evidence of a rape, but he never to my memory used words like “intact hymen”; I only discovered those words years after his death when I procured the trial transcript.
I also remember him telling me—more than once—that the State’s claim that Elizabeth Liger had the mind of a twelve-year-old was a bogus defense that the prosecutor “came up with” to challenge consent. He said he thought Elizabeth Liger was immature and silly—what we today might call an airhead—but he did not believe she was mentally incapable of consent to whatever, if anything, occurred.
I also know that my father had come to respect Charles White, and that he wanted to find a way to spare him from electrocution. There is nothing in the transcript or the record that I have been able to discover about what lawyers call an ex parte conference—a meeting between Judge Parks and my father that was not attended by Solicitor Orme. But I recall hearing that something did occur. My surmise of what must have been said is supplemented by a curious document sent to me by a clerk of the Pike County Circuit Court in response to my request for any and all information about the case. A copy is included in the appendix.
JUDGE PARKS WAS FURIOUS with Charles White for not accepting the offer of life imprisonment with a chance for parole, and he initially did not respond when Foster asked for a few minutes to talk with his client in his cell. Judge Parks seemed to have something else on his mind, and Foster suspected he knew what it was: the judge was already beginning to feel the pressure, because some in the Troy community would not accept a judge overruling a unanimous jury’s recommendation of the electric chair in order to give mercy in a black-on-white rape case. A judge could not do that if he wanted to be reelected. And not just reelected—a judge who gave mercy to a Negro for raping a white girl might best hire someone to watch his house at night. Even among the better class in Troy, who would frown on trespass to the person or property of one of their own, there would be some social ostracism of Judge Parks, and for the remainder of his years; Foster knew that was how it would be. He knew Judge Parks knew it, too. A few of his braver friends might quietly tell him—someday, over a drink—that they understood, but they likely would not speak up publicly in his defense because they would be afraid.
Judge Parks removed his black robe, loosened his four-in-hand knot, unbuttoned his collar, and drummed his fingernails on his glass-topped desk. There was evidence, the judge reminded Foster, sufficient for a jury to believe that Elizabeth Liger was a girl of limited mental development, also evidence—her testimony—that Charles White did take some kind of sexual advantage. And the law was the law when it came to an unconsented penetration. Any penetration.
Foster said nothing.
Guilt or innocence, Judge Parks said, stating the obvious, was the province of a jury, not a judge.
Foster still said nothing; just stared out a window into the starless, black Alabama night. For a few moments, there was silence.
Foster had said, the judge recalled, that Charles White wouldn’t accept the plea offer because he didn’t want to spend his last days in Kilby prison, didn’t want to live that bad. Has he changed on that, Judge Parks wondered?
“Honestly, Judge, I don’t know if he has changed on that but—”
Then, it wouldn’t matter if he got the electric chair, Judge Parks mused. He’d sooner get the chair than a life sentence. The court would do him a favor by following the jury’s recommendation.
Perhaps aware that he was not making any headway with his appointed defense counsel, Judge Parks opened a desk drawer and removed a single piece of paper bearing the seal of the State of Alabama: a document that would not have been admitted into evidence and was not referred to in the transcript. He gave the writing a cursory look, then slid it across his desk to Foster and watched for a reaction as the young attorney saw for the first time a list of three additional arrests of Charles White, Alias, including one for rape in Springfield, Ohio.
“Doesn’t change anything for me, Judge.”
What about the rape charge in Ohio, Judge Parks wanted to know?
“But it was just a charge, not even an indictment.”
Judge Parks sighed and shook his head and said he didn’t think Foster was made for defending capital cases. Then he told his assistant clerk he was going to give Mr. Beck a few minutes more with Charles White. The explanation was addressed to the clerk, but Judge Parks was looking at Foster, and for a flickering moment, the look was imploring, as if asking for some kind of concurrence or understanding of what necessarily was to come. In the next moment, however, the judge regained his composure. To Foster, he finally seemed at peace with whatever sentence he would announce the next day—the electric chair or life imprisonment.
MY FATHER’S principal aim in his post-trial meeting with Charles White was to convince him to ask for the mercy of the court.
“Charles, I will appeal. I will pay for the transcript. I will fight on as hard as I can. But please, please, do just one thing for me.”
“What’s that?”
“When Judge Parks asks if you have anything to say, ask for mercy.”
“I don’t know ’bout that.”
“The Judge will surely go along with the jury recommendation of electrocution if you don’t ask for mercy. He may even if you do. But he’ll know it’ll be easier for Troy to accept a life sentence if you’ve begged for mercy. And it might help us on appeal.”
“Like I’ve been telling you all along, I don’t want to live that bad.”
“Charles! The judge will set your execution sometime next month.”
“I’m not gonna tell that judge I did what I never did.”
“I believe you.”
“They’ll stay my execution if you appeal,” Charles said, always the expert on criminal law procedure.
“I will appeal.”
“I might ask for mercy just to put that white judge to his conscience.” Charles White chuckled at the thought.
“Please do that! Put him to his conscience.”
IT WAS ALMOST ten thirty when Foster finally returned to his hotel, a second free night having been arranged by Judge Parks. He had to wake the unhappy little clerk, who seemed pleased to report that food was not available—not in the dining room, not through room service at such a late hour. But when Foster arrived upstairs, he found a fine supper of turnip greens, sweet potatoes, ham hock, hoecake, and blackberry cobbler in dishes laid out on his bed, courtesy, he knew, of the Negro kitchen workers and the maid. There was more than he could finish, and he wished he could have shared it with Charles White.
According to the Montgomery Advertiser, however, Charles White had already left Troy, taken later that same evening fro
m the colored cell in Troy back to Kilby prison—once again “for safekeeping”—to be returned the following day to face Judge Parks at the sentencing.
THE MID-JULY HEAT on the following afternoon squatted low over the town of Troy, sparing no one, black or white. The newly tarred portions of streets in the business district were scorching and sticky to the touch; the unpaved, dusty brown alleys in the colored section were as hot as the sand on the Gulf of Mexico. Those who could do so remained indoors or sat under a tree; those who had to move moved slowly. Speech, when necessary, was short and sluggish, sentences were begun but left unfinished. Words ending in consonants were shortened—to eatin’, fussin’, fightin’. Longer words were heaved out, the accent on the first syllable—in-surance, um-brella—the speaker seemingly exhausted by the end of the word.
A court clerk had posted a note in the courthouse lobby that the sentencing of Charles White, Alias, would be at 2:30 p.m., a setting that allowed town and rural residents alike to have their big noon dinners and still get to court on time. But most had already had enough of Charles White. The courtroom was less than a quarter full when Charles, seeming to Foster to have aged overnight, hobbled in, the heavy black chains he was forced to wear, now that the jury had rendered its verdict, clanking with each step.
Judge Parks was probably not surprised that so few had come to watch. He must have known the community was confident of what he would do. With Charles White and his lawyer still standing, Judge Parks asked the defendant if he had “anything to say why the sentence of the law should not now be pronounced upon you?” The transcript recorded that Charles White “says nothing,” but the Messenger reported—accurately, from what I remember being told—that he spoke up as follows.
“I wish to thank the court for its protection during the trial. I am a stranger here but believe I had a fair trial. I deny any guilt in connection with the crime, and ask for the mercy of the court.”
Judge Parks glared at Foster. If Charles White wanted mercy, he should have admitted the crime and begged for forgiveness. That was how a plea for mercy was done. And what was meant by this denying any guilt “in connection with” the crime? Was he not only denying he had committed any crime, but also insinuating that the crime was Elizabeth Liger’s testimony under oath? Judge Parks looked at his previously prepared notes for a moment before quickly saying, according to both the transcript and the Messenger, “It is the sentence of this court, founded on the jury verdict fixing your punishment at death, that you shall be put to death by electricity by causing to pass through your body a current of electricity of sufficient intensity to cause death and the application and continuance of said current through your body until you are dead. It is further ordered that the date of your execution be, and is hereby set, for Monday, the fifteenth day of August, 1938, one month from today.”
Judge Parks appeared to ignore the announcement that there would be an appeal, but he must have heard what was said because, as he stood up to leave, he ruled, “Questions of law having arisen in this case for the decision of the Supreme Court of Alabama, and on motion of the defendant, it is considered, ordered, and adjudged by the court that the sentence in this case be, and hereby is, suspended, pending the defendant’s appeal to the said Supreme Court of Alabama.”
“All rise,” called out the assistant clerk, but Judge Parks had already left his courtroom.
Chapter 28
LOSS, the passed-down memory of the Lost Cause, shaped the spirit of the white South far into the twentieth century. As the years went by, the principal reason for the Civil War—to preserve slavery—gradually became an unacceptable reason for the War, and the loss of such a war all the more unacceptable. An acceptable reason for the War and the loss had to be found. Rebellion against an economic tyranny, ruthlessly imposed through punitive tariffs, became that reason. Loss of such a War by men who were gallant but vastly outnumbered—the loss by an agrarian culture to a predatory industrial juggernaut—became an acceptable kind of loss. Among the better class, the idealized model for acceptance of loss was Robert E. Lee’s dignified surrender at Appomattox. As for the rough element, most of them born losers and destined to remain losers throughout their comparatively short and violent lives, loss in this life was natural, and because it was unavoidable, it had to be accepted.
Foster Beck had lost. White men who would have taken the law into their own hands on the night of the crime (had not Charles White been rushed to Kilby), who would have imposed their own false justice on the morning of the trial (but for the presence of the Highway Patrol), were now prepared to let Foster Beck be, provided he was not stiff-necked and accepted his loss. After the Scottsboro decision, someone had to represent Charles White; otherwise, the authorities would have had to turn him loose. If Foster Beck would not be admired for taking on the case when he could have gotten out of it, both the better class and the rough element would tolerate him now because he had lost. Charles White, Alias, would soon be electrocuted, and that would be the end of the matter.
Besides, there were diversions as the summer of 1938 turned to fall, beginning with football. All of white Enterprise—save only the seriously bedridden—would be at the high school’s home games. Pike County Solicitor E. C. Orme, so I recall hearing, drove over from Troy to attend one of those games and came over to the Enterprise side at the half to shake hands with Foster, “to meet Miss Bertha,” and to say, loudly, what a good fight Foster had put up, how he was going to make a good lawyer someday. Bertha beamed with pleasure and pride at the compliments, even though Foster said, as soon as E. C. left to shake other hands, that E. C. probably only said all that because he was thinking of running for lieutenant governor and had come to Enterprise to campaign.
Fall in south Alabama was also the time for syrup-making, a joyous annual ritual as much about socializing as about turning out buckets of fresh ribbon cane syrup. The only uncertainty was exactly when it would occur: not too early, so as to allow the cane pulp time to sweeten, but not too late: it had to be before the first killing frost. Farmers were put on the watch for a sign from the weather, town elders were consulted, and as expectations and excitement built, a weekend, usually in October, was selected. As a boy, I attended a syrup making with my father at a farm somewhere near Glenwood, and I am sure my parents went to them when they lived in Enterprise. My father insisted on going to one in the fall of 1938; it was supposed to have been a step toward normalcy in the community after the Charles White trial.
“WE HAD SYRUP MAKINGS in Weogufka, just like this one in Enterprise,” Bertha said to Foster. “Sometimes, our Weogufka syrup would go to sugar and we would have rock candy at Christmas time.”
They were standing together at the mill, beneath the changing fall leaves of oak and hickory trees, in the swept dirt yard of a farmhouse a mile outside of Enterprise. Six-foot-long sugar cane stalks, stripped of their leaves with machete-like knives while standing in the field, had been stacked on a mule-drawn wagon and hauled to the mill site, where local men fed them into a big stone grinder. A patient mule walked round and round while hitched to a pole connected to heavy stone rollers. The slowly revolving stones, powered by the mule, crushed and squeezed out the cane juice that was then filtered through a burlap cloth and collected in a big cooking pan that rested on a frame made from railroad irons. Beneath the iron frame was a watched hickory fire that kept the juice just short of a low boil. An apprentice helper—from time immemorial, one of the mill owner’s grandsons—stood at the ready beside the cooking pan, dipping a boat paddle into the swirl, slowly moving the thickening cane juice around a series of left–right “dividers” that channeled it on its serpentine path back and forth across the pan, until it was cooked down into a crimson-black syrup and declared by the syrup master to be ready to be poured off into shiny silver-colored buckets and offered for sale.
“Bertha,” Foster teased, examining a maroon-striped ribbon cane stalk, “what you were cooking in north Alabama was not ribbon cane but sorghum, s
omething we feed to hogs in south Alabama.”
The two of them were standing off by themselves, breathing in the rich, almost too sweet aroma of the boiling cane juice—Bertha smiling, nodding, waving to friends and neighbors, sometimes being ignored in return, yet, ever the optimist, interpreting any return courtesies as a sign of forgiveness, encouraging Foster to believe that maybe he would not be resented much longer over the Charles White case; Foster, not particularly sociable by nature, judgmental of hypocrisy, frowning at the slights to Bertha, yet feigning optimism, if only not to disappoint her, whenever a man tipped his hat to her or a wife returned her smile. If Bertha would again be treated as a respected and beloved member of the community, the teacher everyone wanted for their children, then for him, the worst would have come to an end.
It was not to be. Word got around that fall that, far from accepting his loss, Foster Beck was serious about appealing, that the announcement in open court was not just for show. The thaw that Bertha imagined and that Foster hoped for became a chill. It was one thing for Foster Beck to defend a black man convicted for raping a white girl, even if he did sort of volunteer; but then to refuse to accept his loss and appeal on a lot of lawyer technicalities, that was pushing the limits of what some could tolerate.
NOTHING WAS WRITTEN DOWN and not much even had to be said out loud, but there was an “understanding” about race among whites in south Alabama, not only in 1938 but well into the 1950s and early 1960s when I was growing up in Montgomery. The understanding had come about gradually in the years following Reconstruction, the product of a compromise put into place by the better class of whites. They knew there had to be some law and order and a new image of the South if the region was to ever recover and begin to achieve prosperity, but they also recognized that the rough white element needed to let off some of the steam from time to time, else there was no telling what could happen; they might even turn on the better class. For its part, the rough element believed that periodic bull whippings, castrations, and lynchings were good ways to keep blacks in their place; but the rough element also had to make a living, and for that they had to depend on the better class. The understanding, then, came down to this: the better class would look the other way during an occasional beating or castration, even a lynching. For its part, the rough element would not go on a violent tear every damn time it felt provoked by some black person.
My Father and Atticus Finch Page 12