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Authors: Joseph Madison Beck

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After embarrassing her brother by telling about their daddy drinking whiskey in the woods beside the church with Brother Ed, Frances decided that Foster and Bertha should have some time to themselves. Taking Delmas by the hand, she walked over to the zinc tub for more sweet iced tea. That was when she noticed for the first time the tall, slender stranger from the court in Pike County, who asked if she was Miss Frances.

Impressed that he had driven on a Sunday to Confederate Grave Decoration Day just to see her brother, Frances proudly escorted the stranger to the place where Foster and—she hoped—her future sister-in-law were still sitting quietly on the flowered quilts under the magnolia. Although Frances wanted them to have some time alone, she now wished they were not sitting by themselves, as she wanted many others to hear of a visitor who came all the way from Troy to see her brother. For what, she had no idea, but surely it was something important.

The man from Troy tipped his hat to Miss Bertha before asking for just a brief word with Mr. Foster.

   Chapter 10

T
HE VISITOR FROM
T
ROY
apparently did not say much on Confederate Grave Decoration Day, just that Judge Parks wanted to see counsel in chambers—as best I can determine, on July 5, the day after the federal holiday. Trying to piece together what occurred before that day, I can only surmise that Charles White steadfastly refused to allow my father to negotiate a plea deal in exchange for a life sentence with the possibility of parole, disavowed his confession, insisted he was innocent, and demanded a trial. I surmise this because the confession was not used (or referred to other than that one time in the
Troy Messenger
article) and because of what later transpired in court.

What became of the confession? I have been unable to locate a motion to suppress, but such a motion almost surely was made. Suppression of the confession was apparently wanted by Charles White, and filing such a motion would not have foreclosed later negotiations for less than a life sentence—although my cautious father would have warned his client of the risk that the state might seek death if the motion were granted.

Assuming a motion to suppress was filed, it is possible that the state would not have opposed it, even assuming there were grounds to do so. A decision by the court to suppress—
not
to allow use of the confession, to try Charles White on guilt, on whether he'd raped the white girl or not—meant that the state could seek the death penalty, something it could not do if it used a confession that it procured with a promise of life imprisonment. Once Solicitor Ewell (“E. C.”) Orme knew he was up against a green young attorney who wasn't from Troy, perhaps he welcomed such a motion, figuring he could win a conviction without the confession, convince the jury to recommend death, and send Charles White to the electric chair.

Whatever the reason that the confession was not used, I think the revelation that the state would seek the death penalty came during that meeting in early July in the chambers of Judge Parks, located upstairs in the Pike County courthouse, in an office with four tall windows that looked out over the town. Here's how I believe it must have transpired.

J
UDGE
P
ARKS
assured Foster the confession was inadmissible and could not be referred to; the law was clear on that. Having disposed of the confession, Judge Parks proceeded to deny Foster's motion to quash the indictment because no Negroes had been on the grand jury. The Scottsboro case didn't require that, only that they be called for
possible
service. Was there anything else before setting the trial date?

“I want to discuss a reduced sentence, an opportunity for eventual parole, that I can take back to my client,” Foster said, turning as he spoke to Solicitor Orme.

Solicitor E. C. Orme was an older man who carried himself with authority, proud of his unusual height. Referring to Foster as “son,” Solicitor Orme winked at Judge Parks and said that no, son, there would be no plea deal. The state wanted the death penalty.

Foster needed air, but he couldn't just get up and walk outside. He had hoped and believed up until that moment that something short of life imprisonment could be worked out. Instead, a man's life was now in his hands. The confidence he had gained by winning civil cases for the poor against the rapacious banks, by winning the bastardy case against a powerful family, was draining away fast. This was a capital punishment case, and not some petty theft charge against a sharecropper back in Enterprise.

Solicitor Orme grinned at Judge Parks and said that defense counsel looked like he had just seen a ghost. Turning to Foster, he said, son, your client's going to Hell crispy, fresh out of the electric chair.

Judge Parks ignored the bullying of Foster. He said that Foster had entered an appearance for the accused and could not withdraw, but he would grant him time to prepare.

Foster noted the use of “the accused” instead of “the Nigra.” Was the judge trying to signal that he would try the case fairly? Foster knew he could find an excuse or some kind of legal grounds to withdraw, despite Judge Parks's warning. But now his blood was up. “I've got no intention of withdrawing, Judge,” he answered reflexively. The fact was, he didn't need to think much: he could not see a way to hold his head up if he abandoned Charles White now, especially after all his big talk to Bertha about the law and the Constitution. “But I want time to see my client about this new development
.
And I want to see Mary Etta Bray.”

Judge Parks said that Etta was being held until her trial in the women's prison near Montgomery, in Tutwiler. He didn't want her lynched either.

There would be no call for lynching a rapist who was on his way to the chair, Solicitor Orme assured Judge Parks. As for Etta, she would go up for life as an accomplice to rape, the least she deserved for luring Miss Elizabeth to her house. Turning to Foster, the solicitor winked and asked, are you thinking about defending Etta too, son?

“Name's Foster Campbell Beck, not son. Maybe I will. Or maybe under the ethical rules, she'll need separate counsel.”

Solicitor Orme was on his feet, his tone angry, threatening. He didn't need to be told about any ethics by Mr. Foster Campbell Beck.

Judge Parks chuckled, then calmly admonished both counsel from his swivel chair. He was not wearing his black robe, but in his perfectly starched white shirt and blue silk tie snugged up under his collar, he was, as Foster appraised him, in perfect command of his chambers. He would postpone the trial till the fourteenth; they would strike a jury on the thirteenth. That would give Foster time to see his client again, and Etta to boot.

Before dismissing the lawyers, Judge Parks reminded Solicitor Orme about the second Scottsboro case, two years earlier.

Solicitor Orme said of course, he knew about that second Scottsboro case. There would have to be a couple of colored summoned for the panel. But he still had the right to strike peremptorily as well as for cause.

Foster was not really counting on the Supreme Court's ruling that Negroes had to be called for possible jury selection. It had not made any difference in south Alabama. No sooner was voir dire
commenced than the prosecutor would exercise his challenges and get rid of the Negroes. Women didn't serve on Alabama juries either, although maybe it was just as well, Foster thought, recalling the coal-black skin and threatening demeanor of his client. He would have to see the warden at Kilby about getting Charles White washed up and shaved and given a haircut before he was sent to Troy to stand trial.

T
HE ABILITY
of a prosecutor in 1938 Alabama to eliminate African Americans from juries by using peremptory strikes—strikes of a prospective juror without stating a reason—probably comes as no surprise to most people. What may shock, however, is the fact that the practice continued for decades after the Charles White case.

The 1875 Civil Rights Act prohibited states from discriminating in selection of jurors, and in
Strauder v. West Virginia
, 100 U.S. 303 (1879), the United States Supreme Court ruled that a state statute limiting jury service to whites violated the equal protection of the laws guaranteed by the Fourteenth Amendment. Despite that promising beginning, however, and notwithstanding the second Scottsboro case (requiring that blacks be called for possible service on grand juries), many district attorneys continued to use peremptory strikes to eliminate any black person from appearing on a petite—a trial jury—especially for a trial of an African American defendant.

In 1965, almost one hundred years after the
Strauder
decision and more than a quarter century after the Charles White trial, the Supreme Court addressed the precise issue, but not in a satisfactory manner. Despite the fact that all six African Americans on the prospective juror panel had been struck by the prosecutor, the court said that, absent proof of intentional discrimination, there was no
constitutional violation (
Swain v. Alabama
, 380 U.S. 202,
re-hearing denied
, 381 U.S. 921 [1965]).

After considerable criticism—e.g., “
Swain v. Alabama
: The Use of Peremptory Challenges to Strike Blacks from Juries,” 27
How. L. J.
1571 (1984)—the Supreme Court revisited the issue in
Batson v. Kentucky
, 476 U.S. 79 (1986), and overruled
Swain
to the extent that it required proof of intentional discrimination. Where prosecutors methodically eliminated all black jurors through the use of peremptory strikes, the court held that an inference of discrimination would arise, requiring prosecutors to give a non-race-based reason for each strike. Otherwise, the struck potential juror would be placed back on the panel.

Despite this reform, the Equal Justice Initiative, a nonprofit organization headquartered in Montgomery, Alabama, found, in a paper entitled “Illegal Racial Discrimination in Jury Selection: A Continuing Legacy,” that twenty years after
Batson
, appellate courts in eight Southern states were still being “forced to recognize continuing problems with racially based jury selection.” Indeed, as recently as November 2015 the Supreme Court heard oral argument on a challenge to alleged racially motivated uses of peremptory challenges.

And so, of course, no African Americans survived peremptory challenges for the 1938 trial in
State of Alabama v. Charles White, Alias
.

   Chapter 11

L
AWYERS
, whether they handle litigation or transactions, sometimes receive unpleasant news that must be disclosed to the client. For their part, clients sometimes blame the bringer of the bad news. From what my father told me, his next meeting with Charles White in the colored ward at Kilby was initially pretty tense.


Shee-uh,
” Charles White said when his lawyer told him the State would seek the death penalty. “You told me they might if I don't leave that confession alone. Now you seem surprised, lawyer Beck.” He gave Foster a contemptuous look through the heavy steel mesh screen that separated them, then rolled his eyes to stare at the discolored ceiling.

“Without your confession,” Foster said, “they'll have to prove rape beyond a reasonable doubt.”

Charles stopped staring at the ceiling and looked at his lawyer. “I told you it didn't happen like she's sayin'. I told you the only reason I signed that piece of paper was they promised me I wouldn't get the rope that night.”

“So, you don't want to die?”

As at their first meeting when Foster asked, “What really happened?” the contempt drained from Charles's face. “What you sayin'?”

“I'm saying, if you want to live, you've got to help me help you.”

“You believe me?”

Foster had suspected that question was coming and had resolved to answer right back without a pause, but still he hesitated at the weight of the moment. “It doesn't matter what I believe. All that matters is whether they can prove to all twelve of the jury beyond a reasonable doubt that you raped her.”

“Twelve white men.”

“Well, yes.”


Shee-uh
,” Charles said, this time more in despair than contempt.

“Troy's not as bad as some places. This is Alabama, not Mississippi. I can imagine what you've heard it's like down here, coming from Detroit.”

“Twelve white men from
Dee-
troit wouldn't believe a nigger in a case like this,” Charles said. “If you'd
been
anywhere you'd know that much.” Charles spat in disgust on the filthy floor, and the white prison guard fingered the trigger of his shotgun. “Anyways, now they want to kill me, I'm gonna say my piece, lawyer Beck. I'm tellin' that jury what really happened.”

Foster pursed his lips. “I'm not sure I want you taking the stand.”

“Why's that?”

Foster closed his eyes and frowned. “The State can find out if you've been in trouble before. They'll use it on cross-examination if you take the stand.”

“No trouble before this.”

Foster was not convinced. “If they get papers saying you've been
convicted somewhere, served time, they'll put that in your face on the stand, and the jury will believe you're a repeat criminal. That will make them more likely to convict you. But the jury won't know about any prior trouble if you don't testify. And you have a constitutional right not to take the stand.”

Charles White did not do him the courtesy of a nod, much less another word. He just glared. Foster imagined with a shudder how this kind of defiance would play to the jury. Even what Charles did for a living was suspicious: reading cards and telling fortunes for money.

After another moment, Foster said, “Besides, it won't be necessary for you to take the stand. I've been doing a little asking around. I talked to someone who talked to Dr. Stewart, the examining physician.”

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