Alex Haley (24 page)

As the trial continued, Ward's hostility to Haley became more apparent. He heard expert testimony from two Columbia University English professors who thought they had found evidence of copyright infringement, but Ward made it clear that he would decide if there was substantial similarity in the books based on “my reading of them,” because he represented the “average reader” referred to in the laws governing cases of copyright infringement. “I know where I sit.”
38
He set a standard that Haley had to prove that he had gotten a passage from somewhere other than Courlander—in effect, that he was guilty of copyright infringement until he could demonstrate his innocence. Several times Ward insinuated that Haley had “cleaned up” his notes—i.e., rewritten them to take out copied passages. In private meetings with lawyers, Ward made clear that he thought “Haley could not have written this.” Lawyers hearing this understood it to mean that he did not think that a black man could have done something so powerful or so successful and that he must have stolen the book. A lawyer observing the trial said: “Judge Ward is the master and Alex is Toby.”
39

When the plaintiff's case was finished, Ward tried to force a settlement. He suggested two different dollar figures for a settlement, both of which Haley rejected. The trial recessed for the Thanksgiving holiday, but Ward ordered the parties to appear on Friday in his chambers for a settlement conference, which continued on Saturday and Sunday. At times Ward met with all parties, at other times alone with Haley and then with Courlander, and then with the two of them together, without counsel. He then told the lawyers that because he had had such extensive discussions beyond the evidence in the case, he would recuse himself and grant a mistrial if it was requested. On the Monday after Thanksgiving, Robert Callagy, the Doubleday lawyer, told Ward that because he had pressed so hard for a settlement, “and since you have been presented with documents by the other side, documents not in evidence”—this referred in all likelihood to the Bruchac affidavit—“defendants do not feel now that they can receive a fair trial from here on in.”
40
Not surprisingly, the plaintiff's lawyers did not want Ward to step aside; he clearly seemed headed toward a finding for them. Ward denied the motion for his recusal.
41

Then Ward turned more pressure on Haley. In a meeting outside the courtroom, he threatened Haley, although Haley was not present. “If Haley doesn't settle the case, I am going to ruin
Roots.
” He meant that his ruling would be so harsh that the book would lose all legitimacy in the public's eyes. He admitted that his decision might get overturned, but news of a reversal on appeal would merely appear on the back pages of the
New York Times,
and that only years later, after the damage to
Roots
would long since have been done. The message was relayed to Haley. Ward's tactic was similar to the one he used with persons charged with drug trafficking: make the compromise the judge demanded, or face a much more costly outcome.
42

The journalist Phillip Nobile later wrote that Ward threatened Haley with a charge of perjury, and that precipitated the settlement. Haley's lawyer never heard such a threat. Berger was sure later that such a threat, if in fact it was made, was not why Haley settled. On reflection, he did not think Ward would have pursued that course, because it would have brought unwanted scrutiny to his conduct in the case. But Ward probably knew of Bruchac's affidavit, even though it was not entered in the trial record, and he may have threatened Haley with it in their private meeting.
43

Haley was exhausted by the trial and fearful for his reputation.
Roots: The Next Generations
was set for broadcast the following February. A bad judgment would distract from its promotion. According to Nobile, Robert Callagy heard Haley say, “I can't take the press on this. . . . I can't have a case that I copied.” Haley reportedly was frequently on the telephone to “his advisers,” most likely Lou Blau in Hollywood, a man who knew that wealthy celebrities were subject to lawsuits and that money usually solved the problem.
44

A settlement was reached on December 14, six weeks into the trial. “The suit has been amicably settled out of court,” the sides announced. “Alex Haley acknowledges and regrets that various materials from
The African
by Harold Courlander found their way into his book
Roots.
” Haley said that “somewhere, somebody gave me something that came from ‘The African.' That's the best, honest explanation I can give.”

The settlement agreement contained a confidentiality provision, which Judge Ward ordered all to observe—before trying to get Berger to tell him the figure. Berger refused. A figure of $650,000 was widely reported and never denied, but also never confirmed. If that number was correct, it represented $2.34 million in 2015 dollars. Haley paid the settlement and his legal fees himself, with no help from the publisher. His legal fees were probably between $300,000 and $500,000 to defend both the Alexander and Courlander suits. Whatever the amount of the settlement and the legal fees, they surely consumed much of what he had earned from
Roots.
On the other hand, Haley was paying federal income tax at a rate of 70 percent on income over $182,200 in 1978. If the settlement and legal fees cost him $1 million, they were most likely deducted as business expenses. He may have received a tax benefit of $700,000. Thus the net loss from the suits may not have been as bad as it seemed. This is the kind of calculation that Lou Blau could certainly have made for Haley.

Neither Berger nor Robert Collagy, the Doubleday lawyer, thought that the settlement was the right decision. The six or seven nearly identical passages did not constitute “substantial similarities” for a book of 688 pages. Even if all eighty-one of Courlander's instances of copying were conceded—and they were not—it would have amounted to less than one percent of the
Roots
text. Almost forty years later, Berger wrote, “I greatly admired Alex Haley for what he had accomplished and then believed and still believe that he would have ultimately won the Courlander case.”
45
Unfortunately for Haley's reputation, most observers later interpreted the settlement as an admission that he had plagiarized part of
Roots.

Haley had already imagined such an outcome. He had told Murray Fisher in 1975 that black celebrities were under special scrutiny, and much of the public anticipated their fall. In the Courlander trial, he acted to forestall his demise by handing over a lot of money. He hoped it would end the scrutiny and preserve his success.
46

* * *

Most of the academic world refrained from comment on Haley's research until 1981, when two historians and a professional genealogist stepped forward. Donald R. Wright, a historian at the State University of New York at Cortland, had done research on the Niumi region in the Gambia, where Juffure is situated. He interviewed ninety-six griots, among them Kebba Fofana. Like Ottaway, Wright had found that Fofana was not a true griot, but a “local entertainer and teller of stories.” Wright quickly added that that did not mean that his information about Kunta Kinte was incorrect. Wright doubted Fofana's bona fides as a historian, because he recited no family histories and gave no answers like he reportedly had provided Haley. Moreover, none of the informants on the history of the lower Gambia River considered him a good source on the local history. “The oral traditions of the lower Gambia simply do not contain specific information about real people living before the nineteenth century—except now, of course, for the story of Kunta Kinte.” To Wright, it was “quite incredible that anyone would remember a story about sixteen-year-old boy . . . when no one remembers stories about anyone else, including older men and leaders of society, from that time on or much later.” The story Fofana told Wright about Kunta Kinte was more elaborate than what he offered Haley in 1967—and it was different. He said that Kunta was held on James Island for six years after his capture before he was taken to America. Asked how he knew the boy went to America, Fofana did not have a good answer.
47

Wright believed Haley's research was “a virtual scenario of how
not
to conduct fieldwork in oral societies,” because he had told his family story to all he met in the Gambia, and “in doing so he made it all too clear just what he hoped to hear in return.” Wright believed that Haley had misunderstood the real purpose of the griot, which was not to record in his memory an accounting of a family's history. Griots were “dependents of important families and their role in life was to entertain, to praise members of their patron families, and perhaps most importantly, to remember and recite the kinds of things their patrons wanted to hear, all for recompense.” Wright thought Haley's Gambian advisers could have found any number of storytellers with connections to the Kinte clan, some of them real griots. They found Fofana in Juffure because that was the first place they looked. Thus, Haley established Juffure as his ancestral home on the basis of his Gambian advisers' happenstance in locating Fofana. Wright faulted Haley for not recording his interview with Fofana, although it was recorded by Gambian national radio, and for basing his research on a single interview. He noted Haley's failure to include the information from the Gambian national archivist Bakary Sidibe, received in 1973, that cast doubt on Fofana's account. Wright thought that was an instance of Haley disregarding information that “did not serve the purposes he wanted it to.” Wright concluded that the defects in Haley's research were “sufficient to demolish” his account of Kunta's capture in Juffure in the 1760s. He thought Kunta was either “a wholly fictitious figure” or, more likely, someone who lived somewhere in the lower Gambia region in the 1800s. “For centuries oral historians everywhere have been manufacturing and manipulating genealogies and personal stories to meet the needs of their patrons,” Wright wrote, and “Fofana probably did for Haley just what any good griot might have done for an African ruler several centuries before his time.”
48

At the same time in 1981, the American portion of Haley's research came under close scrutiny by Gary B. Mills, a history professor at the University of Alabama, and his wife, Elizabeth Shown Mills, a professional genealogist. Gary Mills was an active neo-Confederate at the same time that he was a respected scholar of the free black experience in the antebellum South. The Millses were skilled researchers in family history with a strong commitment to following established procedures. They believed all serious genealogists needed to be skeptical about using oral history for genealogy. “Family traditions are surrealistic images of the past, blurred by time, colored by emotion and imagination. They are valuable as cryptic maps that can lead to rewarding personal revelations; but the careful researcher must decode them through dogged exploration of the actual documents our ancestors left us.” They cited Haley's statement that “in plantation records, wills, census records, I documented a bit here, shreds there,” and that by 1967, he believed he had “seven generations of the U.S. side documented.” The Millses said that, in fact, the documents Haley referred to “not only
fail to document
his story, but they
contradict
each and every pre–Civil War statement of Afro-American lineage in
Roots!
”
49

Haley had first discovered the slave called Toby (Kunta Kinte in
Roots
) in a 1768 deed conveying him from John Waller of Spotsylvania County, Virginia, to his brother William Waller. This was the document on which Haley based Kunta's departure date from Africa as 1767. The Millses discovered documents that placed Toby in Virginia as early as 1762, and, noting his absence from William Waller's 1782 tax declaration, they presumed that Toby died at some point before 1782. Thus, according to the Millses, this Toby could not have been Kunta, because he was in Virginia five years before Kunta allegedly arrived and died eight years before his daughter Kizzy was born. They found no conclusive evidence of the existence of Toby's wife, Bell, but clear evidence that “Missy Anne” Waller was far too old to have been Kizzy's white playmate, a relationship central to the
Roots
narrative. Indeed, they could find no evidence of a Waller slave named Kizzy. They found no evidence of William Waller's marriage to Priscilla or his alleged 1789 will, but they did discover his 1763 relinquishment of all his property to his brother John, an action commonly taken, the Millses explained, when an incapacitated person was in need of someone to care for him.

The Millses conjectured about various scenarios other than Haley's explanation that could have accounted for the events in
Roots
, but, they said, “Speculations aside, there remains the inarguable conclusion that the 182 pages and thirty-nine chapters in which the Virginia lives of Haley's ‘ancestors' are chronicled have no basis in fact.” Neither the marriage of
Toby to Bell nor the identity of Kizzy—“the two relationships that are crucial to [Haley's] pedigree”—could be established by genealogical research. With regard to the subsequent generations of the family, the Millses provided evidence that Haley had misrepresented the makeup of the white Lea family of North Carolina, whence came Chicken George. Either Haley had gotten the names wrong or his ancestors did not belong to Tom Lea, who, as Chicken George's biological father, was Haley's great-great-great grandfather. Chicken George's biography was problematic, they pointed out, because during his sojourn in England in the 1850s slavery was illegal, and he would have been free on arrival there. Yet he came home a slave and stayed one for many years, according to
Roots.
The Millses questioned whether Haley had “misadvised the thousands of trusting black Americans who have turned to him for guidance and for standards of their own work.”