My Father and Atticus Finch (15 page)

“That is all that happened down there. I never did lock the door. I did not put any salve on her private parts. I didn't even put my hands on the white lady. I didn't put her down on the bed. The lady treated me nice; she made me no advances at all. I treated her white. I wasn't ever scared while she was in there. The lady left at two o'clock. One officer came to the house and it was fifteen or twenty minutes to four. There was another officer came there and he asked me, ‘What is the matter, boy?' And I said ‘Officer, I don't know,' and then this officer said ‘Come on.' ”

E. C. O
RME
must have known he was not going to shake Charles White on the details. But Charles lost his gamble, because, as Foster had predicted, the State had obtained documents reporting the prior offenses.

“Yes, I was convicted in Michigan in 1917 for armed robbery. Yes, in January 1924, I was convicted at Springfield, Ohio, for the offense of burglary in an inhabited dwelling and got from twenty to thirty years. I [served] eight years and they turned me loose. I got to be a spiritual adviser and healer. It came to me when I was in prison.”

As for the allegedly locked door, Charles steadfastly swore he didn't have a key to the room and had never even seen a key to the house.

Painful as it was for Foster to watch the prior convictions come out, it was better than if he had asked and Charles White had lied to him on direct, and then been shown on cross-examination to have perjured himself. His property crimes were serious, but he had never been convicted of rape, so maybe the jury would focus on the lack of evidence of
this
alleged crime? And Foster thought Charles's explanation of how he came to be a spiritual advisor and healer, “It came on me when I was in prison,” might have gone over well with a jury that believed in forgiveness.

   Chapter 26

T
HOUGH
I
WISH
that before my father's death I'd been more curious about the Charles White case, I was at least interested enough to ask him about his closing argument to the jury. I was a young lawyer myself by then, and closing arguments are something young lawyers tend to focus on, if only because they have been repeatedly dramatized in books and movies—one of the most eloquent, of course, being the closing argument in which Atticus Finch urges the jury, “In the name of God, do your duty.”

My father's closing argument was not recorded in the transcript. As a result, I have nothing but my memory of what he said to me and my knowledge of my father's lifelong, passionate belief that the law was there for the poor as well as the rich, for blacks as well as whites.

His was a jury of the humble: from my comparison of the fifty-five names and occupations on the jury summons with the names of the twelve who served (as reported by the
Messenger)
, there were nine farmers, one dairyman, a store clerk, and a mechanic. My father knew, from asking them on voir dire, that these struggling working-class men, personally or through their kin, had suffered foreclosures,
evictions, arrests, and beatings—or worse—at the hands of mean sheriffs and bullying prosecutors; their white skin had not shielded them from abuse. Here, he would argue, those same authorities had charged forcible rape where, plainly, there had been no such thing, and they should not be allowed to get away with it. In a free society, the law was there to restrain the government, not just to punish the poor man. Before the authorities—beginning with the sheriff banging, uninvited, on the door of the home at midnight, followed by the rough and humiliating handcuffing in the presence of wife and children, the jailhouse threats and interrogation, the days and nights behind bars without bail—before the State of Alabama, with all of its heavy, creaking prosecutorial machinery, could do all that to a man and then deprive him of his actual life, it had to prove, beyond a reasonable doubt, guilt of the crime being charged: forcible rape. And that was as true for a poor man accused of a crime as for a rich one.

It is easy to see the parallels between the populist closing argument I believe my father made to his jury and the fictional one. Atticus Finch told his jury there was “one human institution that makes a pauper the equal of a Rockefeller.” On the other hand, no such comparison can be drawn between what the real and fictional judges said to their respective juries about the law that they should apply in a rape case. This is because Harper Lee did not write any instructions by her fictional Judge Taylor to his fictional jury. However, I have the transcript of exactly what Judge Parks told the real jury in
State of Alabama v. Charles White, Alias
, and it is worth quoting as it illuminates, if it does not justify, what was to come.

“Rape,” Judge Parks explained, means the defendant “forcibly had sexual intercourse with Elizabeth Liger.” Before discussing the
meaning of the word “forcibly” and the concept of consent, the Judge said, “First, I will say the sexual intercourse is complete under the law if there was any penetration of the vagina. [A]n emission on the part of the male . . . is not, under our present law, necessary.”

Thinking, I suspect, of the extraordinary testimony by Dr. Stewart that Elizabeth Liger was intact following the alleged rape, and not wanting to retry the case, Judge Parks again told the jury, “It need not be a full penetration, nothing more than . . . that the private parts of the man entered to some extent into the female. . . . It does not have to be full penetration of the male organ into the vagina of the female, because, as I said there, if it is only partial, if it only penetrates to the hymen and no further, it would be sufficient under the law.”

Judge Parks next addressed the legal requirement of force. The jury had been told that Dr. Stewart saw no bruises or sign of blood on Ms. Liger when he examined her immediately after the alleged incident; however, Judge Parks instructed, “It is not necessary that the force should be actual; it may be constructive force used upon the female to make her yield her consent to the intercourse.”

Turning to the issue of consent, and referring to what he called a leading case, Judge Parks told the jury, “Carnal intercourse with a woman incapable from mental disease (where that disease be idiocy or mania) of giving consent is rape.”

“Here,” Judge Parks reminded the jury, “it is insisted by the State that . . . she did have a mania upon the subject of fortune-telling.”

After summarizing once more the minimal requirement of penetration, Judge Parks returned to the issue of consent: “Now on that subject [of whether she was mentally incapacitated] I think it is entirely proper that you consider the social relation of the races,
not on the question of his color, but on the question of her knowledge of the consequences of this act. If she knew that she was having intercourse with a colored man and what the possibilities or consequences that followed such intercourse might be, he didn't know, but whatever they were she was hereafter facing in her own society. Did she have the capacity to know and think upon those things? If she did not, then she would be incapacitated in giving her consent.”

Did this mean the jury had to believe Elizabeth Liger understood the consequences of interracial intercourse in order to consent? If the jury believed Elizabeth Liger only had the intelligence of a twelve-year-old, then it would find she was incapable of consent and convict. But even if the jury saw Elizabeth Liger as my father saw her—as a naïve and dreamy twenty-year-old woman of average intelligence—the jury still might convict on the grounds that any Troy white woman who had intercourse with a Negro was lacking in enough walking-around sense to understand the consequences, and therefore to have given consent.

“G
UILTY
,” announced the foreman, three hours later. It was around eight o'clock that evening according to the
Messenger
. “Guilty,” they all said as Judge Parks polled them one by one. “Guilty.” “Guilty.” Every one of them said it. Then the foreman said, “We fix his punishment at death.”

The
Montgomery Advertiser
reported that “The crowd in the courtroom, which had been guarded by State Highway Patrol officers during the trial . . . received the announcement of the verdict quietly.”

   Chapter 27

M
Y FATHER TOLD ME
he never doubted that his client was innocent of the crime of rape. He may have suspected that something sexual went on, but I don't recall him ever saying that. I do remember him saying something to the effect that there was no evidence of a rape, but he never to my memory used words like “intact hymen”; I only discovered those words years after his death when I procured the trial transcript.

I also remember him telling me—more than once—that the State's claim that Elizabeth Liger had the mind of a twelve-year-old was a bogus defense that the prosecutor “came up with” to challenge consent. He said he thought Elizabeth Liger was immature and silly—what we today might call an airhead—but he did not believe she was mentally incapable of consent to whatever, if anything, occurred.

I also know that my father had come to respect Charles White, and that he wanted to find a way to spare him from electrocution. There is nothing in the transcript or the record that I have been able to discover about what lawyers call an ex parte conference—a meeting between Judge Parks and my father that was not attended by
Solicitor Orme. But I recall hearing that something did occur. My surmise of what must have been said is supplemented by a curious document sent to me by a clerk of the Pike County Circuit Court in response to my request for any and all information about the case. A copy is included in the appendix.

J
UDGE
P
ARKS WAS FURIOUS
with Charles White for not accepting the offer of life imprisonment with a chance for parole, and he initially did not respond when Foster asked for a few minutes to talk with his client in his cell. Judge Parks seemed to have something else on his mind, and Foster suspected he knew what it was: the judge was already beginning to feel the pressure, because some in the Troy community would not accept a judge overruling a unanimous jury's recommendation of the electric chair in order to give mercy in a black-on-white rape case. A judge could not do that if he wanted to be reelected. And not just reelected—a judge who gave mercy to a Negro for raping a white girl might best hire someone to watch his house at night. Even among the better class in Troy, who would frown on trespass to the person or property of one of their own, there would be some social ostracism of Judge Parks, and for the remainder of his years; Foster knew that was how it would be. He knew Judge Parks knew it, too. A few of his braver friends might quietly tell him—someday, over a drink—that they understood, but they likely would not speak up publicly in his defense because they would be afraid.

Judge Parks removed his black robe, loosened his four-in-hand knot, unbuttoned his collar, and drummed his fingernails on his glass-topped desk. There was evidence, the judge reminded Foster, sufficient for a jury to believe that Elizabeth Liger was a girl of
limited mental development, also evidence—her testimony—that Charles White did take some kind of sexual advantage. And the law was the law when it came to an unconsented penetration. Any penetration.

Foster said nothing.

Guilt or innocence, Judge Parks said, stating the obvious, was the province of a jury, not a judge.

Foster still said nothing; just stared out a window into the starless, black Alabama night. For a few moments, there was silence.

Foster had said, the judge recalled, that Charles White wouldn't accept the plea offer because he didn't want to spend his last days in Kilby prison, didn't want to live that bad. Has he changed on that, Judge Parks wondered?

“Honestly, Judge, I don't know if he has changed on that but—”

Then, it wouldn't matter if he got the electric chair, Judge Parks mused. He'd sooner get the chair than a life sentence. The court would do him a favor by following the jury's recommendation.

Perhaps aware that he was not making any headway with his appointed defense counsel, Judge Parks opened a desk drawer and removed a single piece of paper bearing the seal of the State of Alabama: a document that would not have been admitted into evidence and was not referred to in the transcript. He gave the writing a cursory look, then slid it across his desk to Foster and watched for a reaction as the young attorney saw for the first time a list of three additional arrests of Charles White, Alias, including one for rape in Springfield, Ohio.

“Doesn't change anything for me, Judge.”

What about the rape charge in Ohio, Judge Parks wanted to know?

“But it was just a charge, not even an indictment.”

Judge Parks sighed and shook his head and said he didn't think Foster was made for defending capital cases. Then he told his assistant clerk he was going to give Mr. Beck a few minutes more with Charles White. The explanation was addressed to the clerk, but Judge Parks was looking at Foster, and for a flickering moment, the look was imploring, as if asking for some kind of concurrence or understanding of what necessarily was to come. In the next moment, however, the judge regained his composure. To Foster, he finally seemed at peace with whatever sentence he would announce the next day—the electric chair or life imprisonment.

M
Y FATHER'S
principal aim in his post-trial meeting with Charles White was to convince him to ask for the mercy of the court.

“Charles, I will appeal. I will pay for the transcript. I will fight on as hard as I can. But please
,
please, do just one thing for me.”

“What's that?”

“When Judge Parks asks if you have anything to say, ask for mercy.”

“I don't know 'bout that.”

“The Judge will surely go along with the jury recommendation of electrocution if you
don't
ask for mercy. He may even if you do. But he'll know it'll be easier for Troy to accept a life sentence if you've begged for mercy. And it might help us on appeal.”