Thurgood Marshall (27 page)

Justice Felix Frankfurter, one of Houston’s old Harvard professors, expressed doubts about the relevance of the NAACP’s sociological evidence to an argument over the constitutionality of the law. Marshall responded that the sociological material was presented only to display the damage a bad law can have on the nation’s crime rate, health care, and schools.
¹⁵

The justices peppered Marshall with questions about the right of individuals to sell to whomever they pleased. The questions came with particular force because the lawyer who had preceded him had made a bad, even comic, presentation that did not address the obvious question of the sellers’ right to do business with whomever they chose.

“I mean he was a blunderbuss,” Marshall said, describing George Vaughn, the NAACP lawyer who handled the St. Louis restrictive covenant case. “And we’d all worried about this guy. So we tried to tell him what to argue and he would not listen. He wanted to argue the Thirteenth Amendment [which freed the slaves].”

“Vaughn didn’t get a question from any of the justices,” Marshall said. “And at the end of his argument he stood up in that damned courtroom, filled to the gills with people, and he said in a loud booming voice that you could hear out in the streets: ‘And Moses looked across the River Jordan and looked across the Mississippi River and said, let my people
G-o-o-o-o-o-o.’ And we were all sitting like this,” Marshall said, his eyes wide and mouth hanging open.

“Then he got through and sat down, right in the front row, and promptly went to sleep. The guard got up and walked over toward him. I got up and said to him, ‘Are you goddamned dead?’ ”

When Marshall was sure that Vaughn was still breathing, he began his argument. But the justices interrupted him almost immediately. They were loaded with questions that they had been unable to ask Vaughn. “I got a thousand questions all the justices were scared to ask him.”

Marshall’s approach—to say the covenants violated the right to equal protection under the law—found surprising support from Attorney General Tom Clark and Solicitor General Philip Perlman. Perlman, a Jewish lawyer from Baltimore, gave a powerful hour-long presentation. He told the justices that white Americans were “under a heavy debt to colored Americans. We brought them here as slaves,” Perlman said. “Yet after three-quarters of a century, attempts are made by such devices as restrictive covenants to hold them in bondage, to segregate them, to hem them in so that they cannot escape from the evil conditions under which so many of them are compelled to live.”
¹⁶

Philip Elman, an assistant solicitor general who was working behind the scenes on Perlman’s brief, later said Perlman’s “Fourth of July speech” to the Supreme Court was a politically calculated presentation, aimed at helping President Truman’s sagging popularity with white liberals.
¹⁷

On Monday May 3, 1948, the Supreme Court announced a 6-0 vote to end the use of restrictive covenants. Marshall was elated.
¹⁸
This victory got the nation’s attention because it reached into every city and every neighborhood. Marshall’s name appeared in the headlines of white as well as black newspapers. Black America, which sat by radios to hear every move of Joe Louis’s championship fights, now began hailing Marshall as the Joe Louis of the courtroom. And when he gave speeches around the country, NAACP leaflets heralded him as the “Jim Crow Buster.” Marshall was making his distinctive mark on American law, literally changing where and how the races interacted. But his success was also stirring segregationist passions. Old Jim Crow was not ready to throw in the towel.
¹⁹

Groveland

T
HE FOUR BLACK MEN
could not run faster. They kept their legs churning through the cypress, moss, and mud of the steamy groves and swamps as the sounds of the lynch mob and their hunting dogs grew closer. The black men used the velvety dark of night in rural central Florida to hide where possible. But the angry flares of the mob’s torches cast long shadows. And when they ran from their hiding places, the tree roots tripped them up. In the distance they could hear the cries from Groveland, where four hundred black people’s homes were set afire and white-hooded night riders terrorized their neighborhoods. It would be many hours before the state militia moved in to protect the blacks in what remained of Groveland.
¹

Hyperventilating with fear and fatigue and imagining their own deaths by lynching, the men began to fall behind. The frenzied mob grabbed and beat each one, sending sickening shrieks into the air. They killed the first one they caught and beat the three others long after they had lost consciousness.

The three men were dragged into jail, strung up from iron pipes in the boiler room, and given more bloody beatings. As they faded in and out of consciousness, the men could hear their jailers demanding that they confess to raping a lovely, wild-eyed seventeen-year-old white housewife. They wanted them to admit they had been on the highway where the blonde said her clothes were ripped by black men who had kidnapped and violated her.

The men didn’t know enough to answer. One of them was so severely beaten that his testicles remained swollen for days. Another was injured so badly that his pants were still caked with dry blood days later when NAACP lawyers came to question him.
²

In his New York offices Thurgood Marshall got barely coherent phone calls from NAACP officials in Florida. They told about the black neighborhood being burned and about the men being beaten. Marshall heard that the mob violence had spilled over from that ghastly night. The next day the families of the young men had been threatened, then forced to go into hiding for fear that they would be lynched.

Although police claimed the three survivors had confessed, NAACP officials told Marshall none had signed any written confession. Marshall decided to send Franklin Williams, one of his deputies, to Groveland to figure out what was going on and mount a legal defense. Williams called back within hours of arriving to tell Marshall that what had happened made no sense and that the black community was so dazed with fright they had barely managed to hold a public funeral for the suspect who had been killed by the mob.

On Marshall’s orders Williams stayed and defended the three men. The trial began with temperatures reaching 105 degrees. And Williams faced a hostile white jury. But he thought he had a strong case. Despite the beatings, there were no confessions from these men. He also argued that the state had not even presented evidence that the woman had been raped. But the jury still convicted the three. Samuel Shepherd and Walter Lee Irvin were sentenced to death in the electric chair; Charles Greenlee, sixteen, was given life because of his age. The NAACP lawyer was chased by a jeering group of white toughs as he left town. He had to speed down the highway to get away, all the time recalling what had happened to Marshall in Columbia, Tennessee.

The NAACP appealed the case to the U.S. Supreme Court, which overturned the Shepherd and Irvin convictions. Greenlee, fearing he might get a death sentence if there was a new trial, chose not to appeal. Justice Robert Jackson said the convictions did not “meet any civilized conception of due process of law.” The high court ordered a new trial. But just when the case seemed back on track, it took another bizarre turn.

While Shepherd and Irvin were being transferred to another jail, Sheriff Willis B. McCall shot both men. The two were handcuffed together, but McCall claimed they were trying to escape. Shepherd was
killed, but Irvin, who was shot three times—in the shoulder, chest, and neck—survived by lying facedown in the mud and playing dead.
³

Sheriff McCall’s brutal actions caused an uproar. Newspapers from around the world sent reporters to cover the incident and the upcoming new trial. The expanded attention to the case caused trouble among Marshall’s legal team in New York. Franklin Williams wanted to continue as lead counsel. But with the Supreme Court having ordered a new trial and press all over the story, Marshall decided to take charge. “He thought he was great, and I did too, [but] I didn’t think he was as great as he thought he was,” Marshall later said about Williams.

The angry Williams told Marshall it was unfair for him to take over the now prominent case. Williams went to Walter White to complain, and finally White promised him that he “didn’t have to worry about Thurgood Marshall.” White told Williams that he would have a job “as long as he was secretary.” When Marshall heard about White’s promised protection for Williams, he fired him.
⁴

“[Franklin Williams] had a big fight with Thurgood, around the time I was [first] there [at the NAACP],” Jack Greenberg, a young staff lawyer, later said. “There was a lot of yelling and screaming and carrying on, that sort of thing.… He and Thurgood clashed constantly.”
⁵
In the battle of egos Marshall had defeated Williams. No doubt he was a more experienced lawyer, but Marshall was also drawn to the spotlight now focused on Groveland, and he was not going to play second fiddle to his junior. Marshall’s actions damaged his relationship with White, who was forced to send Williams to California as the staff director for the NAACP’s West Coast office.

With Williams gone, Marshall personally led the NAACP legal team to defend the accused Irvin at the second trial, which was moved to nearby Marion County. And right from the start, they faced troubles. In the December 1951 proceedings, Judge Truman Futch ruled that Marshall and Jack Greenberg were not allowed to represent their clients because the NAACP, according to the judge, was a group of agitators who had “stirred up trouble in the community.”
⁶

But Marshall would not back down. A few days later, speaking before an electrified Mount Zion Baptist Church in Miami, he stood to full height and defied the white powers of Florida to stop him from defending his client: “They can keep me from the courts of Florida but there is no man alive or to be born who can prevent me from arguing the Groveland Case before the U.S. Supreme Court.”
⁷
Armed men were positioned
around the building where he spoke as bomb threats were promised against Marshall’s life. Guards were even posted around the pulpit as Marshall addressed the biracial crowd. A few days later, on Christmas night, the home of the NAACP’s state coordinator, Harry T. Moore, was bombed, killing Moore. It was the first murder of an NAACP official.
⁸

Under threat of further appeals, Marshall finally forced Judge Futch to allow him back into the case. When he walked into the small southern courtroom with its whirring overhead fans and segregated seating, Marshall became the first black lawyer to argue a case in Marion County, Florida. During the trial Judge Futch showed his disdain for Marshall and the defense by taking out a knife and whittling whenever they stood to speak.

“When I went down for the Irvin trial,” Marshall recalled in a quiet, conspiratorial voice, “a white man met me in the hallway, and it was real tense. And he showed me his credentials from the governor’s staff. He said, ‘They’re trying to get you.’ And I said, ‘Who, Sheriff Willis McCall?’ And he said, ‘No, the deputy is going to get you.’ I said, ‘Well, thank you, I appreciate that.’ ” The threats caused Marshall to walk everywhere, even to the toilet, with two bodyguards. He began shifting houses from night to night and even eating at different homes so no one could predict his movements.

In addition to physical threats Marshall had to cope with a good-old-boy justice system. The governor had phoned the judge, who agreed to give Irvin a life sentence if Irvin pleaded guilty. The judge sent word to Marshall to have his client accept the deal immediately or go to trial and take his chances with the death penalty.

In his client’s jail cell Marshall described the judge’s offer. Irvin asked what he would have to do to accept the plea bargain. “Just stand up there and when they say are you guilty or not guilty, you say: I’m guilty,” Marshall explained. Irvin, a dark-skinned man with a long face and sad eyes, looked dead into Marshall’s eyes. He asked if admitting guilt meant he had raped the woman. Yes, replied Marshall. Irvin spat on the floor in disgust. “That I raped that whore? I didn’t and I’m not going to say so.” Marshall said in that moment he became convinced that while Irvin may have had sex with the woman, he had not raped her. “I knew damn well that man was innocent.”

But persuading an all-white, male jury that Irvin was innocent of raping a young white woman was a mountain of a challenge. Marshall began
by eliciting testimony from a white soldier who found the girl wandering on a highway the morning after the crime. The soldier testified that the woman never told him she had been raped, only that she had been kidnapped. He added that she said she could not identify the men who grabbed her because it was too dark. Marshall also got sheriff’s deputies to concede that they had no medical evidence the woman had been raped.

He next tried to undermine the sheriff’s effort to put Irvin at the scene. The sheriff claimed prints in the mud matched Irvin’s shoes. However, under questioning from Marshall, a criminologist testified that while the shoe prints matched Irvin’s, the prints had been made when the shoes were empty.