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The trail to Francis Walter took me first to Father MacNeice of St. Edmunds Mission, and thence to Rev. Everett Wenrick, an Episcopal theological student who, with his wife, has taken up residence in Selma to continue the witness of the martyred Jonathan Daniels. Wenrick is working on the Poverty Program, and has so far succeeded in maintaining tenuous contacts with both the Negro community and local Episcopal churches. The poverty project is a particularly sore point with the Negro leadership. There has been no breakthrough in employment in Selma, and a resolute refusal by the city to seek any of the Poverty Program funds. SCLC and SNCC workers tried long and unsuccessfully to engage the Mayor and the white establishment in joint sponsorship. At length, fearing Federal support might go to Negro leadership alone, by default, the Mayor submitted a plan of his own, which, behind a facade of elaborate committees and subcommittees, left final control of funds and program in his hands. It was rejected both by Selma Negroes and in Washington. Meetings continue, seeking a workable compromise, but thus far unavailing. Wenrick was stopped by police from distributing leaflets calling attention to a meeting of the Poverty Program Council. He expected that an appeal to Police Chief Wilson Baker would remove the interference. The boycott of stores by Negroes at Christmas is aimed both at frustration over failure to obtain employment and to launch the Poverty Program. Speakers at the Brown Memorial Chapel recounted how merchants had asked for a reprieve from an earlier boycott, so that they could act "without being under pressure.” The boycott had been lifted-and nothing happened. So it is being revived.
Tuesday, I succeeded in reaching Francis Walter, who is also working in Tuscaloosa, Selma, Camden, and Wilcox County. Walter confirmed the impressions I had gained from Wenrick and West about the Selma situation. He added that SCLC and SNCC are involved in a deep re-appraisal of tactics, tending to deemphasize marches now, in favor of reorganization and cultivation of resources economic and educational—in the Negro community itself. This is partly in response to the more sophisticated (and frustrating) attitude of the white Establishment, since March. Acts of violence against demonstrators are rare. The new tack is to give them police escort, receive them with a show of cordiality, send them off again, and do nothing !
There is little sign of re-appraisal in the white community. Segregationist literature crowds the newsstands. Radio programs originating in Selma's local station, or linked with the hard right—like Carl MacIntyre's “20th Century Reformation Hour"-din the favorite fantasy into listeners' ears day and night. During the trial, the Selma Times Journal carried a page two photograph of the defendants jovially gathered with their attorney in the court library. But for the caption beneath, one would have taken it for a group of visiting delegates to a Junior Chamber of Commerce covnention, just a few fine up-and-coming American young businessmen. Drinking fountains in the Court House are of the cup-and-faucet variety, the fountains having been plugged. Sheriff Clark still proudly displays his gold NEVER button, even in court, as he stalks the corridors with that curi sly menacing smile which is the special accomplishment of policemen and Senate Investigators. Doctors' offices downtown still announce Colored Waiting Rooms in the rear. It is alleged that there are five or six chapters of the John Birch Society in Selma. There are no Negro police officers. The hospitals are segregated. During the trial the defense attorney asked Dr. W. B. Dinkins, a Negro physician who first attended James Reeb, whether Good Samaritan Hospital (a Catholic mission hospital) was not in fact the best equipped in Selma. He could not answer, said Dinkins, because he had never been permitted inside the others.
Selma is a small town, even though its internal subdivisions are sharp. Culturally ingrown, it lives in a world but little penetrated by the 20th century, and inclined to close ranks defensively against any incursion in depth. Efforts on the part of Negro and white civil rights leaders to build bridges with their Establishment counter parts have ben rebuffed, so far. With white Selma, it is still a family affair, with the tangible virtues and appalling hazards of parochialism.
THE TRIAL The trial began Tuesday morning (December 7) with Judge Moore's charge and questions to the 104 potential jurymen. News reports have it that 13 among these were Negro. Dan Bickford and I saw only four, and, in any case, none was selected. Several jurymen sought to disqualify themselves on ground of close relationship, fixed opinion, and opposition to capital punishment, and were excused. To the additional stipulation, suggested in absentia by Alabama Attorney-General Flowers, concerning bias against civil rights workers, two men rose and sought to be excused. It was an interesting look into the Southern conscience struggling with itself. I could not withhold respect from these men, wrestling with fairness, even though they were eventually not excused, having affirmed that if they were truly convinced by overwhelming evidence, they would have to find a verdict of "guilty" despite all. None of those who had sought disqualification were included in the final panel. But one juror proved to be, later, the brother of a key witness of the defense, whose testimony would have to be evaluated by the jury. Why either prosecutor or defense counsel allowed this, I find hard to understand.
The case was tried by Circuit Court Justice L. S. Moore, a paternal and seemingly conscientious figure. From what I saw, I was convinced he sought to conduct the trial with true impariality.
The prosecutor, Circuit Solicitor Blanchard McLeod, was a weak figure, perhaps attributable in part to his convalescence from a recent heart attack, but over and above that obviously reluctant in his role. Deputy Disrtict Attorney Virgis Ashworth carried the major burden of the prosecution. He was at his best in discrediting defense alibi witnesses, and in resisting Defense Attorney Pilcher's occasional efforts to make emotional hay with resentment gainst the civil rights movement as a whole. But he had little to work with. The prosecution's case was meagre. Only three out of six witnesses ever got to the stand at all. Strongest were Clark Olsen and Orloff Miller, whose positive identification of Elmer L. Cook as one of the assailants was never, to my mind, effectively refuted. The fourth witness was declared incompetent, after an inquiry that was itself fantastic, with the witness's medical history including very personal details being paraded before the court by a doctor presuming to offer a psychiatric analysis, although he was not a psychiatrist and had never examined the man in question. The fifth witness, R. B. Kelley, was dismissed since he intended to invoke the Fifth Amendment, being threatened with indictment in a Federal Court for a similar charge. The sixth was in Mississippi, and prudently elected not to come at all.
For a liberal, observing the Fifth Amendment episode was excruciating. There was no doubt of the witness's being in jeopardy, and thus entitled to its protection. At the same time it was the virtual death-blow to the prosecution's case to lose this witness, who may have testified earlier to a grand jury. Was such testimony available, if it occurred? Would it, too, be covered by the Fifth Amendment now? These are distressing, unanswered questions. The prosecution offered no visible objection to the judge's ruling, which was made with apparent reluctance.
As the state rested its case, two things only had been established : 1-Elmer C. Cook had been identified as one of the assailants, and 2-James Reeb had died as the result of the blow received, although his actual attacker was unknown. Judge Moore refused a defense motion, however, to dismiss charges against the Hoggle brothers, insisting that the jury should hear all the evidence.
If the prosecution's case was weak, the defense was ludicrous. It consisted of three points: 1-an alibi for the presence of O'Neal Hoggle at a nearby cafe at the time of the attack, 2-a string of witnesses to attest all three men were dressed in clothing different from that described by Olsen and Miller on that day, and 3-an effort to insinuate deliberate delay and perhaps additional injury to the wounded man, for the purpose of producing a martyr for the civil rights cause.
The first alibi seemed plausible enough, until it was disclosed that the witness 1-was a brother of one of the jurors, 2-was a business partner of Elmer Cook, and 3-that his testimony was being tied to the succession of witnesses on clothing. The longer this succession continued, the less convincing it became. I was more sure the Hoggle brothers were involved in the attack after the defense had concluded, than when it began. Of the third point, it need only be said that it was as cruel as it was fatuous. Only in Selma could it be taken seriously by a jury, if indeed it was.
I regret that I was unable to stay in Selma for the prosecution's and defense's summations and the judge's charge to the jury. Dan Bickford will fill in details on these. When I heard the radio account of the verdict, later on Friday, I was not surprised, although I had hoped for the possibility of a hung jury-at least that much of a glimmer of conscience in Selma. But there was none.
News reports told of applause and joyous greeting of the defendants. The family had come through; our boys were safe again.
Friday morning, before court opened, Solicitor McLeod saw some old friends sitting among the family of the Hoggle brothers. Wreathed in smiles he came over, and there was warm handshaking. Apparently no one doubted it would come out all right. They were not disappointed.
JUSTICE IN AN ALIENATED COMMUNITY
When a determined jury defied both magistrate and the law of the colonies to find John Peter Zenger not guilty of sedition, for his criticisms of the Gorernor of New York, a powerful blow was struck, not only for the freedom of the press, but the independence of juries. It was also a testament, handwriting on the wall, to the emergence of a new community, later to cut its ties with England altogether. We cite the incident with approval, for the new community is our own.
But Selma is also a severed community. Its cord, cut in the 1860's, has never wholly been repaired. This is ironic, for the same belligerent local pride that alienates it from the overall American community, is deemed to unite it in the more belicose aspects of super-patriotism. This affinity for the violent is mistaken for authentic unity and devotion to American ideals.
To a degree this is the plight of the total Deep South, for whom Americanism is a mixture of hard-core political conservatism, economie atomism, anti-Communism, fundamentalist religion, sex puritanism, and segregation. This is the official Dixie package; and deviation from any particular is viewed as an attack on the whole. In this complex the Negro is welcome only if he accepts “his place.” But from Reconstruction days onward, his political ambitions have always been viewed as a menace, the rise of a rival and therefore hostile power center. It is one of the ironies of history that the Southern poor white, whose plight both politically and economically most closely parallels that of the Negro, has been effectively neutered as a force for change by exploitation of race tensions. One of these days he will wake up and discover he has been "had,” victimized by his own propensities for hating the colored counterpart. But for the moment he still dwells in the reverie of identity with the white establishment, whose ladder of opportunity he may hope to climb, and to which he does indeed have a marginally better access than the Negro.
Withal its inner contradictions, however, the Southern community is a community, and tensely self-conscious. It has been long under attack by the culture of the 20th century, with its anti-parochialism in politics and world affairs, its religious pluralism, and the drives towards racial equality. The stance of the South is therefore defensive. It has admitted at a superficial and technological level the world of today; but it steadfastly resists the implications of that world for religion, mortals, and society.
Our American system of law, more particularly our tradition of court action, cuts across such local differences: that is both its majesty and its peril. For the finely-made instrument, with its built-in protections for accused, is only partly responsive to its own precedents. It may function perfectly as an instrument; it cannot escape the influence of the community, working through the persons who set out the drama.
The trial in Selma may have had some defects, but by and large the effect of these defects on the outcome was miniscule compared to the forces with which the court could not possibly cope; which indeed it had to do its best to ignore, by the legal pretense of banishing them, through oaths, and proper instructions to the jury.
The jurors swore to come to an impartial judgment. But could they keep their oath? They could swear not to be swayed by the fact that James Reeb was in Selma as part of a civil rights protest; and the defense attorney could be prevented from ringing the changes of this theme. But could it be eliminated from their thinking? They could try not to recognize the three defendants as neighbors and friends, as members of “our side” in the siege, while the victim was the outsider and thus the enemy. But could this possibly be forgotten? The law prescribed the ultimate penalty for first degree murder. Most people consciously or unconsciously recognize capital punishment for what it is: not justice but retaliation. Could Selma's jurors by any stretch of imagination be seen calling for the act of vengeance against their compatriots, however dismayed they might be at the consequences of a rash act?
Given the proper requirements that a verdict of guilty must be rendered only if there be not the slightest shadow of doubt, did anyone expect that doubt would be expellable? The climate also affected the prosecution, however valiantly it may have tried to be objective. To proceed with vigor would be to court the enmity of the entire community. It presented the evidence it could not help presenting; there is no sign of any effort “above and beyond the call of duty" to get more.
To say this is not to discredit the courts, but only to recognize the limits of judicial effectiveness. Murder is not murder except in the community that regards it so. And beyond that, murder is not a self-defining act. That would be true only in a universal community, which exists in principle, perhaps, and in legal theory, but not in social fact. Murder is defined by the margins of community consciousness: it depends less upon a man being killed than who he is. Our frustration with the recent civil rights cases comes out of our assumption that there is a single, organic American community, in which American citizens have been killed for working towards legitimate American aims. From this perspective, the slayings are murders. But that is not the perspective of Haynesville and Selma. From their view, conspiratorial and un-American outsiders have been killed by overzealous and perhaps unwise, but basically decent and patriotic defenders of the true way. The circle of community never included these who died. It is manslaughter-perhaps a sop to larger citizenship-but not murder, not in the sense that calls for outrage and revenge, for the "full measure of the law.” In this the South is not structurally different from other self-conscious communities. We have no ground for self-righteousness; we are under the same judgment. It is only that for a moment we can see what is operating in our legal system, because in this instance the alienation and contradiction of community-consciousness is so obvious.
The answer to the dilemma is self-evident. Both the death of James Reeb and all his companions in the civil rights struggle, and the infuriating inability of the Southern courts to grapple with the issue, point to the same problem and the same solution. The insularity of the embattled community must be broken. The resources for a larger community must be uncovered and drawn out. It may be possible to accomplish some of this by further exercise of federal authority, extending protection to civil rights workers, for example, beyond the authority of state governments. But this is not the best answer, a measure to be taken in desperation only. Nor will it directly meet the underlying problem, which is the alienated community.
The only answer is to bring the Selmas and Haynesvilles into the American community at a far deeper level than they have yet been willing to come. And this will be accomplished, it seems to me, less by new legislation, than by the quiet but determined work of individuals and groups, to take advantage of the ground already gained, to undercut devisive anxieties, and prepare the way for the voluntary relinquishing of attitudes that are no longer useful nor attractive.
I say this, not to discourage work towards legislation that may yet be needed, nor demonstrations that may yet bear justified witness to wrongs suffered, but to encourage the constructive work at deeper levels without which further progress seems a vain hope. I look for a shift of emphasis, as a sign of American maturing, with the outcome of creating a genuine community in which the James Reebs will not be slain, and the courts will not have to try the slayers. This, I think, is what he would have worked for, too.
II. THE REEB MURDER TRIAL
(By Daniel B. Bickford, special counsel, Unitarian Universalist Association;
partner, Ely, Bartlett, Brown & Proctor, Boston)
THE FIRST DAY
The courtroom was packed with witnesses, jurors, and spectators. There was po trouble gaining admittance to the Court. There were no police or deputies or court officers checking. I had to stand in the rear of the court, along with 50 to 75 others. The seating capacity of the room was in the neighborhood of 350, exclusive of the seating inside the bar enclosure. Inside the latter, there was ample seating capacity for all counsel, defendants, prosecutors, and others. (The Court is well laid out. The Judge sits where he can be seen and can command ; the witnesses are close to the jury; the prosecutor sits directly in front of the witness, and the defendants in front of the Judge.)
The proceedings began with the Judge climbing the few steps to his seat and calling for order. (It took me some time to figure out who the Judge was, as he wore no robe and entered the room without introduction. He carried what appeared to be the docket books. No one stood when he entered the courtroom. There was no indication that he was other than a clerk.) The proceedings began about 9:15 a.m. on Tuesday, December 7, 1965.
The first order was the calling of the State's witnesses, followed by the calling of the defendants' witnesses. The Judge apparently was calling their names from a docket entry which he had in front of him. As the witnesses' names were called, they would step forward to the bar. The State had about 12 witnesses sworn, and the defense must have had about 75. The defense attorney indicated that most of the witnesses he had were character witnesses. The witnesses, with the exception of the character witnesses, were sequestered, that is, they were not allowed to attend the trial.
Next came the qualification of the jurors. This was a process whereby all the jurors stood, were sworn, and then were allowed to sit down while the Judge asked a number of statutory questions. These included : “If anyone was under 21, he was to “inform the Court;" if anyone was not a resident of Dallas County for the last year, "he was to inform the Court;" if anyone had been indicted for a felony in the last year, "he was to inform the Court;" in anyone was convicted of a felony in the last six years, "he was to inform the Court;" if anyone was related to the defendants, "he was to inform the Court;" and if anyone knew he was mentally incompetent, "he was to inform the Court." (The Judge assumed by the silence of all jurors that the answers were negative.)
Questions as to capital punishment were asked ; that is, whether or not there were any jurors who did not believe in capital punishment. There were four such jurors. Questions were asked with respect to belief in the use of circumstantial evidence, and one juror spoke up. On “voir dire" by defense counsel, the answer finally was that he could convict on circumstantial evidence.
Lastly, the solicitor was allowed to ask a question which he read after saying that the Alabama Attorney General, Mr. Flower, had asked that the question be asked. He read the question in a slow, almost inaudible tone. The question was lengthy and was, in substance, as follows:
"In the evidence was to show that the victim had dined with niggras' and had otherwise socialized with them, and if the evidence were to show that the victim felt that 'niggras' were equal to white, and if the evidence were to show that the victim had come to Selma, Alabama, to assist the niggras' in establishing their equality, would that make the victim such a low person as to effect the juror in his consideration of the guilt of the defendants?"
Apparently because the question was read with such lack of enthusiasm and so inaudibly, the Judge asked if the question was in writing. On learning that the answer was in the affirmative, he asked for the question and read it painstakingly to the prospective jurors. (In my opinion, the question was made clear by the Judge, who read it slowly and paused after words to define them where necessary.)
Three furors jumped to their feet and indicated that it would prejudice their deliberations. Roy D. Maples said, "I am leaning against a man who came down here from Boston when he should have been preaching up there.” W. E. Dozier admitted his bias when he said, “I feel Reeb didn't belong down there." L. H. Smitherman said, “I am sick of civil rights. I have a fixed opinion.” Again, the defense took the prospective jurors on “voir dire," and two of the three agreed that it would not affect their decision if the evidence was such that the three defendants in fact committed the crime. The third prospective juror indicated that it would, and he was excused. (The other two were eventually excluded by a State's challenge.)
In my opinion it would have been far better to question each juror individually as to his beliefs on this subject. I am sure that experience must show that it is difficult for an individual to volunteer to give a "yes" answer in front of 350 other persons. However, the question was asked to the group, and each juror, by not volunteering, might feel obligated to the Court to exclude, consciously, any consideration connected with the identity of the victim. Would it have not been better to propound the question individually so that a prospective juror would not have to become a volunteer in exposing his prejudice? I would guess