My Father and Atticus Finch (13 page)

On cross-examination, Dr. Stewart said, “No, I would not say that a person, a young lady who desired her fortune told, that it would indicate an abnormal mind.” And he said, “I wouldn't say that a young lady who wanted to get married would necessarily indicate an abnormal mind either.”

Then he testified, “Yes, I made a thorough investigation of her private parts. I didn't detect any injury whatever. The orifice just outside of the hymen, that is to say the vagina, has certain inner lips to it. They overlap the hymen. You have a labium major and the labium minor. There are two sets of those lips. They were not injured at all. I didn't detect any blood or other evidence of injury to those parts. I didn't see any bruises or detect any indication of violence on any part of her body.”

It is likely that no one present in the courtroom that day ever forgot what they heard Dr. Stewart say, though some did not hear all of it. Wives were escorted out by their husbands with the words “hymen” and “vagina” ringing in their ears; and in truth, the testimony was almost too much for some of the men. Dr. Stewart had to step down from the witness stand to minister to an elderly gentleman who had closed his store after running out of white meat during the dinner break and had come to watch the trial, taking a seat vacated by a woman after an earlier recess. “He just needs air,” Dr. Stewart announced professionally, adding to his credibility and authority. And no wonder, for all the air seemed to have been sucked from the room.

“Let's take a recess,” Judge Parks said, rapping his gavel smartly.

“All rise,” the assistant clerk directed as the dazed audience shook their heads in disbelief over what they had just heard. Once in the lobby, some husbands patted their wives' hands reassuringly while others muttered, “That's the damnedest thing I've ever . . .”
And, “Shucks, I might want that Enterprise boy to represent
me
. . .” And there was, for the first time, some head-scratching and skepticism about what might really have happened, and about how it all might turn out.

G
IVEN
D
R
. S
TEWART'S
explosive testimony, Foster was hardly surprised when Judge Parks summoned counsel to chambers immediately after his cross-examination.

Judge Parks unbuttoned but did not remove his black robe, took a seat behind his glass-topped desk, clicked his manicured fingernails on the glass, and said it was high time to plead this thing out. He was looking at E. C. Orme, but it was Foster who answered.

“He says he's innocent, Judge. I'm not sure he'll let me enter a guilty plea, not even with a chance for parole—”

Solicitor Orme interrupted. It wouldn't do any good to seek Charles White's permission to enter a plea for a life sentence with a chance for parole. The State wanted the death penalty.

Judge Parks became impatient. He reminded Solicitor Orme of what the doctor had said. The men on the jury—at least one of them, and it would only take one—would conclude there was no way that a 250-pound black man got between the skinny legs of that girl without breaking her maidenhead. Judge Parks let the image hang in the air. He did not need to add what the jury of twelve white men would assume: that a black man that big would have a cock as thick as a corncob, as hard as a railroad stake. Did Solicitor Orme know Doc Stewart would say that when he sought the indictment?

Solicitor Orme said he knew, and that under the law any unconsented penetration was rape.

Judge Parks cut him off, said he knew the law, and again
drummed his nails on the glass desktop. He was worried about a hung jury. He did not want to try this case again.

Solicitor Orme argued that a life sentence was not good enough for the community. Judge Parks angrily said it was his job to decide whether a life sentence met the community's needs.

“If you'll let me see him,” Foster said to Judge Parks, “I'll ask again if he will let me enter a plea in exchange for life with a chance of parole.”

Judge Parks rose from his chair, fastened the buttons on his robe again, and summoned the authority of a trial judge. Then his tone softened. You talk to him, Foster, he said. Sheriff Reeves will find a place where you can counsel him to do this. Then, lowering his voice, he said that if Charles White would take a plea, the court would spare his life and leave him eligible for parole in ten years. He said there was no way all twelve of the jury would ever acquit, so there were only two things it could be. One, somebody was unsure about guilt and wouldn't budge. If so, the court would call it a hung jury and retry Charles White. And two, if they were not hung on guilt, then sooner or later, tonight or tomorrow morning, that jury would recommend the chair. Because once a jury made up its mind that a Negro the size of that one had raped a white girl, they would recommend the death penalty, and the court would have to go with that recommendation.

Judge Parks turned to face the closed door to his chambers and shouted to his assistant clerk, who had been stooping behind the door trying to eavesdrop through the keyhole. He wanted to know where Sheriff Reeves was holding Charles White.

The clerk said he believed he was in the colored cell, and went to check.

He's in the colored cell, Judge, the clerk confirmed a moment later, back with Sheriff B. R. Reeves in tow.

Sheriff Reeves said the only place he had to put Charles White was in the colored cell. He thought Mr. Enterprise wouldn't mind sitting with the other coloreds.

“I'll need privacy with Charles,” Foster said.

Sheriff Reeves sucked in his breath. He said he would not put those other colored boys in the white cell, not even for a few minutes, while Mr. Enterprise met with
his
boy in private. Sheriff Reeves reminded Judge Parks that it was against the law of Alabama to mix races in a jail cell.

Judge Parks said he knew the law. He told Sheriff Reeves to bring Charles White into his chambers while he met with his lawyer.

The sheriff was worried. Charles White could jump out that window and run off; he would need to stay in the judge's office to restrain him.

Judge Parks said he doubted Charles would jump out with the leg irons the sheriff had put back on him after he was transferred from the presence of the jury to the colored cell, and he said he wouldn't get far if he did. You bring him in now, he ordered Sheriff Reeves, and then you can wait outside the door. The judge would wait outside too.

Judge Parks stood up to signal that the problem had been resolved.

   Chapter 23

I
KNOWN MY FATHER
wanted to find a way to spare Charles White from a sentence of execution in the electric chair. As a smart trial lawyer, he surely would have worried over what was likely to be the verdict—sooner or later, in this trial or at the likely retrial—of an all-white Pike County jury in a “she said, he said” black-on-white rape case.

My research in the course of writing this confirms that he had reason to worry. According to a 2010 article in the
American Interest
, “The South put blacks to death far more often than whites—especially when the victim was a white woman. Of the 455 men executed for rape in the United States between 1930 and 1967, 90 percent were African Americans.” An amicus brief filed in the Supreme Court by the ACLU of Louisiana and the NAACP Legal Defense and Education Fund cited statistics showing that blacks convicted of rape were more than six times as likely as whites to be sentenced to death. A tabulation by Death Penalty USA of Alabama executions from 1926 to 1965 for rape (excluding a handful for “murder-rape”) reports that of the twenty-eight men either hanged or electrocuted, all but two were black (the two whites were described as “asylum escapees”).

“T
HE
C
OURT WILL GIVE YOU
a life sentence in exchange for a guilty plea,” Foster told Charles in Judge Parks's chambers. “And you'll be eligible for parole, maybe in just a few years. Charles, I strongly recommend you do this.”

Charles White, who had taken the judge's swivel chair unbidden, swung his legs up and propped his chained feet on the edge of the glass desktop. Foster thought this was ill-mannered, and worried the chains would scratch the glass.

“That doctor said she's a virgin,” Charles mused. “How come she can be a virgin and be raped?”

“The law doesn't require all that much penetration,” Foster explained. The subject was distasteful, but he owed his client the advice. “They can convict you for rape based on what she said happened and on the doctors' testimony that she was mentally a twelve-year-old—too young to consent. And keep in mind that Dr. Stewart did say there could have been some penetration—a half-inch or so—without breaking her maidenhead. And if the jury convicts, they will recommend the electric chair.”

“Sounds like the judge, though, might not be inclined that way?”

The question struck Foster as interesting. Would Judge Parks give Charles life if a unanimous Pike County jury came back for death? Not if he wanted to be reelected next term. Foster glanced at his notes. Judge Parks had told him a few minutes ago that if the jury found Charles guilty and recommended electrocution, he would “have to go with that.” Was Judge Parks serious, or just trying to bluff him into convincing Charles to plead guilty?

“Charles, I honestly don't know what Judge Parks would do if we don't enter a plea and the jury found you guilty and recommended
death.” Foster was struggling with how to put what he needed to say. “I think there's maybe a small chance he would not follow the jury recommendation, give you a life sentence, but then it likely would be without parole.”

“Why don't I take my chances? When I testify, the jury just might believe me.”

For the first time, Foster saw weakness in his client's eyes. Charles White did not look like he really believed that the twelve white men on the jury would take his word over Elizabeth Liger's and the medical opinions and acquit him.

“I think the jury should believe you, Charles, but we both know they probably won't. Besides, I have said you could not testify.”

“What you gonna do? Tell me to sit down and shut up? You have to put a gag in my mouth, lawyer.” Charles White swung his shackled feet down from the glass desktop and struggled to stand up.

“Charles, sit back down.” The two men glared at each other, the black towering over the white. “Please,” Foster mustered.

Charles White sat back down. “I'm gon' say my piece on the stand.”

“Please consider taking a plea. You might get paroled soon. At least you'll be alive.”

“Not how I want to live,” Charles White said, almost in a whisper.

   Chapter 24

M
Y FATHER WAS NOTHING
if not thorough, so I am not surprised that he did not rely on Charles White having told him that he had no prior convictions. And he understood the likely effect on the jury if it heard about Charles White's prior convictions—crimes the jury would only know of if Charles testified.

“Have you been in trouble with the law before?” Foster asked. They were still in Judge Parks's chambers.

“I told you before, no.”

“And you didn't tell me the truth. I looked it up.”

For a change, Charles smiled at his lawyer without contempt. “You did that?” He seemed surprised, even pleased, that his lawyer had made that much effort on his behalf. He did not seem the least bit offended that his lawyer had not believed him.

“E. C. will know about your record too, and he'll use it if you testify. But he can't even mention it if you don't testify. That's another reason I don't want you taking the stand.”

“You sayin' the jury will only know about my record if I testify?”

“That's right. E. C. can't bring up your prior convictions as part of his rape case. If he did, it would prejudice your right to a fair trial on the rape charge because the jury would think, ‘He broke the law before, that means he probably broke it this time too.' To convict you for rape in a fair trial, the State has to prove this crime, not that you have a bad character. But once you testify, you're putting your credibility on the line, and then the State can use prior convictions—of what the law calls a ‘crime of moral turpitude'—to challenge your truthfulness. And your past crimes are crimes of moral turpitude, take my word for that.”

“Makes no sense.”

“I know.”

“Because there's that same—what you call ‘prejudice'—even if I don't testify,” Charles said, determined to puzzle it out on his own. “The jury, they think, ‘that nigger must be guilty, else he would stand up and say his piece under oath.' Either way, I testify, I don't testify, they gonna say I'm guilty.
Shee-uh
.” Charles rolled his eyes to the ceiling, exactly as he had done when Foster first met with him at Kilby prison, swiveled in Judge Parks's chair, and silently stared at the glass-framed portrait of a man in Confederate uniform. The only sound came from the open window, someone outside repeatedly turning the crank of a Model T automobile.

Finally, Foster said, “Charles, if you testify, I'll need to ask you myself on direct about your getting in trouble before. Otherwise, they'll bring the convictions up on cross-examination and it will look like we were trying to hide them.”

Charles swiveled back around and looked his lawyer in the eye. “You see, Mr. Beck, you have all this logic on your side, and I understand it might work in your world. But not in mine. Sometimes, I
have to gamble. Now, I figure I have three shots in ten that at least one of them twelve crackers will have what y'all call ‘reasonable doubt' after they hear me testify. But that won't happen if they see me scared to take the stand. There's no odds in that.”

“You have the right not to take the stand. That's in the Constitution. I'll get an instruction to the jury that you have that right.”