JUSTICE IN THE AMERICAN SOUTH
British lawyer Anthony Lester spent three months in the southern states of the United States of America researching persecution of civil rights activists and blacks. His findings were published as a report 'Justice in the American South', from which this is an extract.
Law has traditionally been used in the South to preserve white supremacy. The Civil Rights Movement now invokes the Federal law of the American Constitution for the right to challenge white supremacy and establish equal civil rights for every citizen. It seeks freedom of speech and assembly, universal suffrage, and equal protection of the law. In the Deep South, these demands are revolutionary, but, because of the ultimate threat of Federal intervention and a second Reconstruction, they cannot be met with overt violence by Southern State officials. The resistance is usually more subtle and depends on massive abuse of the machinery of the law.... Some samples of the use of these laws are illuminating. Over 300 Freedom Riders arrested in Jackson, Mississippi in May and June 1961 were sentenced to $200 and four months' imprisonment for breaches of the peace, apparently only on the basis of evidence that their presence at bus and railway terminals in Jackson in racially-mixed groups put other people in a 'foul mood'. The police captain in charge neither spoke to nor arrested any people who allegedly were threatening the Freedom Riders. When the Freedom Ride cases came before a Federal court, Judge Wisdom stated in his judgment that 'we again take judicial notice that the State of Mississippi has a steel hard, inflexible, undeviating official policy of segregation. The policy is stated in its laws. It is rooted in custom. The segregation signs at the terminals in Jackson carry out that policy. The Jackson police add muscle, bone and sinew to the signs.' (United States v. City of Jackson 318 F.2d. 1 at pp. 5-6)
In May 1963, about 1,080 Negro students were expelled or suspended from public schools in Birmingham, Alabama, by order of the Board of Education because, during the civil rights demonstrations, they had been arrested for parading without permit. No hearings were held to determine the propriety of the dismissals. The students were simply told that not enough time remained in the school term to hold any hearings.
On World-wide Communion Sunday, in October 1963, three young women, two of whom were Negroes, were arrested for attempting to attend religious services together at a Methodist Church in Jackson, Mississippi. They never entered the church. When they reached the steps they were told that they were not welcome. A policeman gave them two minutes to move on. As they started to walk away he told them that they had taken too long, and arrested them. They were indicted for trespass and disturbing divine worship. The Police Justices' Court of Jackson sentenced them to one year's imprisonment and fined each $1,000.
On December 15th, 1961, 1,500 Negroes demonstrated in front of East Baton Rouge Parish Courthouse, Louisiana, where 23 Negroes had been sentenced to imprisonment for picketing. On April 1st, 1962, Rev. B. Elton Cox a CORE [Congress of Racial Equality] field secretary was convicted of three misdemeanours arising out of the demonstrations. He was sentenced to one year's imprisonment and a $5,000 fine for impeding the administration of justice by holding a demonstration near the courthouse, and 5 months' imprisonment and a $500 fine for obstructing the pavement.
Clyde Kennard was a Negro from Mississippi, who had served in the United States Army in Korea, and graduated from Chicago University. He returned to Mississippi, and in 1959 in spite of several attempts to dissuade him, he applied to Mississippi Southern College (which was segregated) for admission as a graduate student. Kennard's application was rejected, but he intended to re-apply. Under Mississippi law, no one convicted of felony can be admitted to a State college or university. On September 25th, 1960, Kennard was arrested and prosecuted for being an accessory to the burglary of chicken feed worth $25 (in Mississippi any accessory to any felony is deemed to be a principal). Kennard was convicted largely on the evidence of an illiterate 19-year-old Negro who admitted having actually stolen the chicken feed, and was himself placed on probation. The trial had several unusual features (See generally, the Reporter, November 8th, 1962, pp. 30-34). The local white jury convicted Kennard, and the judge gave him the maximum sentence of 7 years' imprisonment. When I was in Mississippi, I examined the records of sentences imposed in one county for the past 4 years. The following are typical heavy sentences: forgery, 3 years; burglary and larceny, 4 years; manslaughter, 6 years; armed robbery, 12 years; kidnapping, 5 years; rape, 2 years plus 3 years probation. Assuming that Kennard was guilty, it is hard to avoid the conclusion that the sentence against him was deliberately vindictive. Kennard served a few years, then contracted cancer, was released and died shortly thereafter.
At about 3 am on May 8th, 1963 (according to the brief of the US Department of Justice in a case now pending), unidentified white men exploded 3 fire bombs in the home of Hartman Turnbow, in Holmes County, Mississippi. Turnbow was a Negro who had previously attempted to register to vote. His house was newly decorated but not insured, and he and his family were asleep inside. When Turnbow heard the noise of the explosions, he seized his rifle and ran out of the house. One of the men allegedly shot at him and his family, and Turnbow returned the fire before they escaped. The Turnbows succeeded in putting out the fire and told a local civil rights worker what had happened. They also indirectly informed the High Sheriff. Shortly thereafter, Robert Moses, Programme Director of COFO [Council of Federated Organisations], came to the house and began to take photographs. The Deputy Sheriff then arrived, and told Moses to stop taking pictures. However, when the Sheriff himself arrived, Moses tried to take another photograph and was promptly arrested on a charge (as he was later told) of refusing to obey an officer. During that afternoon, three Negro civil rights workers, who tried to visit Moses in gaol, were arrested on suspicion of arson, and Moses was also charged with arson and impeding an investigation. Later Turnbow too was arrested and charged with arson. In their brief, the Department of Justice described these charges as 'false and baseless' and allege that the prosecutions were brought 'for the purpose of intimidating, threatening and coercing Negro citizens of Holmes County from applying for registration and from registering to vote.' The charges of arson were subsequently dismissed against all but Turnbow himself, and he himself was not ultimately indicted by the Grand Jury. The transcripts do not indicate that there was any evidence whatever that Turnbow or the civil rights workers had committed arson.
Between June and September 1964 in Mississippi there were over a thousand arrests of civil rights workers. Many of these were for alleged traffic offences or breaches of the peace. There can be little doubt that by these tactics the local law enforcement officials hoped to weaken the spirit and financial resources of the Movement. As for the civil rights lawyers, their tactics were either to attempt to transfer the cases to a Federal court, on the ground that their clients could not expect a fair trial in a State court, or to appeal from the State court's verdict. But many such cases are transferred back to the State court, by which time the accused civil rights workers, out on bail, may be back in college in the North. The civil rights organisations cannot afford continual appeals to the State and Federal appellate courts, and, in spite of the large number of lawyers who volunteered to work for the Lawyers Constitutional Defence Committee during the Summer Project, there are not enough lawyers to deal with myriad minor cases throughout the Deep South ... Bail
Northern civil rights workers accused of crimes in the South must expect to have to raise larger sums for bail than local civil rights workers, since sterner sanctions may be necessary to secure their presence at their trials. One of the problems which the civil rights organisations have had to face is the cumulative effect of high bail. In December 1962, the cash requirements for bail bonds in the Freedom Ride cases in Jackson, Mississippi, amounted to $372,000. In June 1963, bonds for demonstrators in Danville, Virginia, exceeded $145,000. Another problem is that many civil rights workers return to Northern universities after their work in the South. If they fail to attend their trials in the South, not only will they forfeit their bail, but they will provide Southern officials with justification for increasing bail requirements in the future. On the other hand, the Northern student, after travelling several hundred miles to attend his trial, may find that it has been adjourned, that he must come again, at further expense and loss of time at university. These are problems of the legitimate use of bail, but there are still greater problems where the bail system has been deliberately used to intimidate the movement.
A survey of 'Bail and Civil Rights' was recently carried out by Louis F. Claiborne, a staff member of the US Department of Justice, for the 1964 National Conference on Bail and Criminal Justice. It found that in some rare cases, a civil rights worker had been accused of a felony in order to justify prohibitive bail, or a denial of bail. For example, in Americus, Georgia, four demonstrators were held without bail on the capital charge of 'insurrection' until ordered release on bail by a Federal court. Sometimes, bail problems are aggravated by the 'unnecessary multiplicity of charges instituted for a single course of conduct.' For example, in March 1964, demonstrators at a theatre in New Orleans were required to post $4,500 on 8 charges: 'trespass,' 'resisting arrest,' 'disturbing the peace,' 'refusing to move on,' 'criminal mischief,' 'blocking an entrance,' and two counts of 'contributing to the delinquency of a minor'. Passengers watch their smoking Greyhound bus -- among them members of the 'Freedom Riders,' a group sponsored by the Congress of Racial Equality -- after an attack by a white mob who stoned the bus, slashed the tyres and set it alight. The attack happened in Anniston, Alabama, USA in May 1961.
Another abuse, apparently confined to Louisiana, consists of 'pyramiding'. The case of the Rev. B. Elton Cox has already been referred to. When he was arrested in December 1961, after the demonstrations in front of the East Baton Rouge Parish Courthouse, bail was originally set at $2,000. When this sum was paid, bail was increased to $4,000, then on each successive payment, to $6,000 and $8,000. Eventually, after protests by attorneys, it was settled at $6,000.
Exorbitant bail is not usually set before trial though there have been exceptional cases in the South and orth. However after conviction the position is different. In Atlanta, Georgia, in one case involving a 77-year-old Californian minister, convicted of disturbing public worship, bail on appeal was set at $20,000. The Georgia Supreme Court reduced it to $5,000, but the minister spent 7 months in gaol because his tender of $5,000 in cash was refused, and he was unable to post that amount in unencumbered property, as required by the Court.
The Justice Department Survey finds that in Jackson, Mississippi, 'the bond required on appeal to the circuit court has almost invariably been set at the legal maximum: $1,500 ($500 'cost bond' plus $1,000 'appeal bond'). Bonds of $1 ,000 or more pending appeal are apparently common in civil rights cases in many Southern jurisdictions. Since the sentence is often a much smaller fine, there is a great temptation to abandon the appeal ... nor is the distinction between local residents and others observed. In Itta Bena, Mississippi, last June, some forty local Negroes were held on $500 or $750 bond pending trial de novo in the county court, on a charge of disturbing the peace, the only distinction drawn being between men and women.' There is difficulty in obtaining local property bonds, and local bonding companies are often unwilling to do business with civil rights organisations, while out-of-State companies are not accepted as qualifying locally. During the Mississippi Summer Project, it was impossible to obtain help from any of the local bonding companies.
The Survey concludes that 'in many Southern communities (and perhaps elsewhere) bail requirements in civil rights cases did much more than merely assure the defendant's appearance in court. In many instances, the net effect of bail demands was to arrest the demonstrations, by exhausting the organisation's treasury or temporarily removing the participants, or their leaders. Doubtless, that consequence was sometimes unintentional. But, in other cases, bail was obviously used, even manipulated, to achieve that end. The nature and number of the charges, the amount of the bonds, and the form of security required, in some instances were plainly intended to delay or prevent release.' ... Southern juries
In many parts of the Deep South, Negroes have traditionally been and remain systematically excluded from juries. In recent years, the US Supreme Court has reversed a number of convictions of Negroes on the ground that such racial exclusion violated their constitutional rights to equal protection of the law. It is encouraging to note that the Georgia State courts have followed this example. However, most Southern juries are still predominantly or entirely white. The role of the Southern jury in the trial of civil rights workers has already been discussed. Its effect is equally important in the trial of white persons accused of crimes against Negroes and civil rights workers.
The right to be tried by one's peers is deeply embedded in Anglo-American law. Allegations of serious Federal or State crimes are usually investigated by a grand jury drawn from the appropriate locality to determine whether there is a prima facie case to be tried. The trial itself is by jury. Federal juries are usually drawn from a wider area than local State juries and are better educated, but they are still selected from the State in which the offence has allegedly been committed. Naturally, the Southern jury reflects white Southern opinion and, in effect, the prosecutor is faced with the task of persuading a representative group of white Southerners to punish the accused for defending their way of life. Not surprisingly, the accused is acquitted, or, more often, never prosecuted at all. The virtual impossibility of convicting the murderer of a civil rights worker is one of the most potent sources of injustice in the Deep South. Some recent examples will illustrate the problem. Black women arrested after a protest demonstration in Orangeburg, South Carolina, USA, being marched from the county jail to the city jail -- May 1963. Two black girls try to escape the police after attempting to board a bus taking white students to an all-white school. They were part of a picket line in Crawford, Georgia, USA; November 1965.
On the night of June 10th, 1963, Medgar Evers, Negro NAACP [National Association for the Advancement of Colored People) Field Secretary in Mississippi, was killed by a sniper's bullet outside his home. A few days before his death he said, in a press interview, 'If I die it will be in a good cause. I have been fighting for America just as much as the soldiers in Viet Nam.' Byron De La Beckwith, a fertiliser salesman from Greenwood, Mississippi, was arrested by FBI [Federal Bureau of Investigation) agents on June 22nd 1963, and indicted for the murder of Evers by a Grand Jury of 17 white persons and one Negro. Beckwith was well known for his racial views and had once written that a 'lot of shooting' would be required of Mississippians in the future to protect their families from bad Negroes. While Beckwith was in prison awaiting trial, he was treated as a hero and given every possible comfort. A White Citizens' Legal Defence Fund collected $15,000 on his behalf. At his first trial, in early 1964, 2 taxi-cab drivers gave evidence that Beckwith had asked 4 times for Evers' address, a few days before Evers was shot. Beckwith's car was identified by a number of witnesses as having been in the area twice before the murder and, on the night of the killing, 300 feet from Evers' house. Beckwith gave evidence that the rifle found near the scene of the crime 'could be' his, but that it was lost or stolen shortly before the murder. Beckwith had incidentally been traced by a fingerprint on the telescopic sight of the rifle found near the scene of the crime. He claimed that at the time of the murder he was 90 miles away. During the 24 hour wait for the jury's verdict, former Governor Ross Barnett and former Major-General Edwin A. Walker were at Beckwith's side. Barnett had entered the courtroom during the trial and shaken hands with Beckwith. The all-white jury was unable to agree on its verdict, so there was a mistrial. Several police officials called the decision 'a moral victory for the state'. Beckwith was tried again in April 1964 before a second all-white jury. On April 12th, 1964, the New York Times reported that 'The Ku-Klux-Klan is putting on a show of force on behalf of ... Beckwith ... Ten crosses were burned in the Jackson area last night. Today, about 75 tough-looking men, some linked with Klan activity, showed up as spectators in court.' At the second trial, one of the taxi-cab drivers testified that Beckwith 'resembled' (rather than was) the man who had asked where Evers lived. The prosecuting District Attorney later told the press that the taxi-cab driver had been beaten since the first trial. Incidentally, during the trial, the local press in Jackson gave extensive coverage to the evidence on Beckwith's behalf, but little to that of the prosecution. For a second time the jury failed to agree, and Beckwith returned home as a hero. To many people whom I met in Mississippi, the Beckwith case was shocking because a white Mississippi jury had actually disagreed, instead of unanimously acquitting Beckwith, while Federal officials regarded this disagreement as a sign of substantial progress towards justice in the State. In theory, since the case is still pending, Beckwith could be tried for a third time, but in practice it is unlikely that this will happen.
On July 11th, 1964, Lemuel Penn, a Negro schoolteacher and Army Reserve Colonel, was killed while driving through rural North Georgia by a shotgun blast from a passing car. On August 6th, 1964, 4 Ku-Klux- Klansmen were arrested, and 2 were indicted for Penn's murder. The FBI had obtained a confession from an accomplice incriminating the 2 men. They were tried before an all-white jury in September 1964. Two witnesses gave evidence that they saw the men walk into a garage 24 miles from the scene of the crime at about 5.0 am on the morning of the murder, carrying a sawed-off shotgun. The defence attorneys urged the 'Anglo-Saxon Madison County Jury' not to 'send these here boys into those cold grey stone walls' to be electrocuted, and said that FBI agents were 'carpet-baggers ... who are infiltrating our justice'. The jury acquitted the men. Federal charges of depriving Penn of his civil rights are still pending against them. If they are indicted by the Federal Grand Jury, they will be tried by a Federal jury, drawn from the State of Georgia.
On June 21st, 1964, the day the Mississippi Summer Project began, three civil rights workers, James E. Chaney, a Mississippi Negro, Michael Schwerner, and Andrew Goodman, went to Neshoba County, Mississippi, to investigate the burning of a church. That afternoon, Deputy Sheriff Cecil Price arrested the three men in Philadelphia, Mississippi, and held them in gaol for several hours on a speeding charge. Price said he released them at about 10.30pm after Chaney had paid a $20 fine. Two days later, their car was found burned in a swamp a few miles from Philadelphia. After a massive search, on August 4th, the FBI found the bodies of the men under an earthen dam 5 miles from the town. In the course of the search, they also discovered 2 half-bodies of Negro men in the Pearl River, about whom there had previously been no concern or interest. The State authorities refused to release the official autopsy report on the three civil rights workers even to the coroner's jury, and, on August 25th, the coroner's jury reported that the available information was insufficient to enable it to determine the cause of death. On September 30th, the local grand jury failed to return any indictment in the case. It publicly exonerated local law enforcement authorities, stating that they had done well to maintain law and order 'in the face of drastic provocations by outside agitators.' After their report was read, Circuit Judge O.H. Barnett told the jurors that they had 'exhibited the courage of men of the Revolutionary days of this country.'
On October 2nd, a Federal grand jury indicted Sheriff Rainey, Deputy Price, two policemen, and a former sheriff, all from Philadelphia, Mississippi, on charges of violating the rights of local Negroes by unlawfully detaining and beating them. These indictments grew out of the FBI investigation into the murders of the three civil rights workers but related to crimes allegedly committed long before the murders. On December 4th, the FBI arrested Sheriff Rainey, Deputy Price, and 19 other white men in connection with the murders. The FBI alleged that Sheriff Rainey had been involved in a conspiracy, but had not been involved in the actual killings, while Deputy Price had unlawfully arrested and detained the 3 men before giving them to a lynch mob of which he was part. Nineteen of the defendants, most of them members of the Ku-Klux-Klan, were charged under Federal law with conspiring to violate the constitutional rights of the 3 dead men. Two others were charged with failing to disclose information about the crime. It was not possible to prosecute any of the accused for murder, since murder is only a State crime, and the Mississippi State authorities apparently refused to prosecute. On December 10th, the FBI disclosed in a preliminary hearing before the US Commissioner in Meridian, Mississippi, that they had obtained a signed confession from one of the defendants. The Commissioner proceeded to rule that the FBI agent's evidence about the confession was hearsay and inadmissible, and to dismiss the charges against 19 of the defendants. A spokesman for the US Justice Department later stated that 'In the experience of the Department, the refusal by a US Commissioner to accept a law enforcement officer's report of a signed confession in a preliminary hearing is totally without precedent.' The Department decided to withdraw the charges against the remaining 2 defendants, and to refer the case to the Federal grand jury. At the time of writing, 16 of the men have been re-arrested and indicted by the Federal grand jury. They are now awaiting trial before a Federal jury in Mississippi.
Published February 1965