Root and Branch

Charles Hamilton Houston, Thurgood Marshall, and the Struggle to End Segregation
By Rawn James, Jr.

BLOOMSBURY PRESS

Copyright © 2010 Rawn James, Jr.
All right reserved.
ISBN: 978-1-59691-606-7

Contents

1 Southern Justice on Trial......................................12 Ambitious, Successful, Hopeful Dreams..........................163 No Tea for the Feeble..........................................304 The Social Engineers...........................................475 South Journey Children.........................................556 The Law Offices of Thurgood Marshall, Esq......................597 Murray v. Maryland.............................................658 Don't Shout Too Soon...........................................799 Special Counsel and Assistant Counsel..........................9210 On the Cusp in Missouri.......................................10311 An Outside Man................................................12312 Hope Looms....................................................13213 Marshall at the Helm..........................................14614 Greenwich Railroad Bones......................................16015 War at Home and Abroad........................................17816 Supreme Broken Covenant.......................................18817 Peace of Mind.................................................19918 Root and Branch...............................................217Notes............................................................237Index............................................................261

Chapter One

Southern Justice on Trial

The foxhunting set of Loudoun County, Virginia, had been on edge for weeks even before the two women were found murdered. With alarming ease, burglars had been stealing china, jewels and even furniture from the Georgian homes scattered atop the rolling hills that lay about forty miles northwest of Washington, D.C. No suspects had been taken into custody, and homeowners in towns like Leesburg were oiling their rifles for more than mere sport during the first weeks of 1932.

On one mild January night, furniture designer Paul Boeing retired to "the big house" of his family's estate, where he slept warily prepared to defend the property against any would-be intruders. Boeing awoke the next morning after an uneventful sleep, donned an overcoat atop his pajamas, slid on an old pair of shoes and welcomed the crisp morning with a stroll across the lawn to the cottage where his sister and her maid had spent the night.

His knocking went unanswered. Boeing opened the door, stepped into the cottage and jumped back outside as if thrown by a man twice his size. His sister, Agnes Boeing Ilsley, lay beaten to death on the cottage floor; Mina Buckner, Agnes's maid, lay dead in the next room with her skull crushed and one hand stiffly clutching her set of false teeth. Investigators later found the scratched bits of a black person's hair and skin caked in blood beneath Agnes's fingernails.

Before the sun struck noon that day, a band of white men had swarmed through several towns in Loudoun County searching for the man they were convinced had murdered the socially prominent Mrs. Ilsley and her maid. Despite the fact that several of the men were well-to-do members of the county's gentry, their group comprised a lynch mob. They planned to find the murderer, torture him, castrate him and kill him.

But by nightfall it had become clear to them that they were not going to find the killer. It would be more than a year before they learned that the man they sought, George Crawford, was arrested in Boston. It would be another year before the Loudoun County court house resonated for the first time with the voice of an African American lawyer rising in defense of Crawford, by then formally accused of murdering the two women. And it would be a few months after that when a writer for the Washington Post declared, "If there ever was a lucky Negro, he is George Crawford."

In 1932, the chief executive of the National Association for the Advancement of Colored People had straight blond hair and blue eyes, a thick mustache and a thin man's tendency to disappear inside double-breasted suits. By all accounts Walter White looked Caucasian. "My skin is white," he wrote on the first page of his autobiography, "my eyes are blue, my hair is blond. The traits of my race are nowhere visible upon me." The mailman's son could have passed out of the colored world and lived his life as a white man. If he and his father had not been attacked by a white mob during the Atlanta race riots of 1906, perhaps he would have "crossed over" like thousands of African Americans did each year. But Walter was thirteen years old on that searing September night when Atlanta burned anew, when he and his father defended their home against a mob of white men wielding fire and yelling, "That's where that nigger mail carrier lives! Let's burn it down!" Gunshots scattered the horde, and the shaken blond boy decided that he forever would be black.

Ten years later White joined the NAACP after graduating from the Atlanta University. Field Secretary James Weldon Johnson, impressed with White's volunteer efforts in the Atlanta branch, hired him as an assistant field secretary. The young staffer's transracial appearance quickly proved an invaluable asset: From 1918 to 1929, White repeatedly went undercover to mingle with Klansmen and murderers and bloodthirsty lots. Posing as a white man, he investigated forty-one lynchings and eight race riots. He publicized their stories and plans through the NAACP. For life White was haunted by what he saw and heard during those eleven years.

The fight against lynching became Walter White's crusade. He wrote several critically acclaimed books on the subject, and, after working his way up to become the NAACP's chief executive, he vowed to use every means at his disposal to stop the brutal killings. In his New York City office in January 1933, White read in the newspapers that a black man was arrested in Boston and had confessed to murdering two white women in rural Virginia the year before. Eight days after confessing, however, the suspect claimed that he had not killed the women and in fact had been in Boston when the crime occurred. Several witnesses substantiated his alibi. Nonetheless, authorities in Massachusetts began making arrangements to extradite the suspect, George Crawford, to Virginia.

The entire affair looked to Walter White like a legally sanctioned lynching. While it could not patrol the swamps and thickets where white mobs slaughtered black men, the NAACP could stand guard against America's courtrooms' becoming the sites of slaughter. George Crawford's life could be saved if the association could keep him from being extradited to Virginia.

Loudoun County prosecutor John Galleher had rushed to Massachusetts upon word of Crawford's arrest, pausing only for his own wedding in Washington. The morning after the wedding night, Galleher left for Boston with his bride in tow, on what the Associated Press called "an extradition honeymoon."

After his arrest, Crawford's NAACP lawyers, led by Bostonian Butler Wilson, fought extradition on the grounds that black citizens were excluded from Virginia's juries in violation of the Fourteenth Amendment's guarantee of equal protection of the laws. The lawyers persuaded federal judge James A. Lowell and he ordered Crawford released. "Why send this man back to Virginia when I know and everyone knows the Supreme Court will say his trial is illegal?" the judge demanded. "The lawyers are the only ones who will get anything out of it. The whole thing is absolutely wrong."

Virginia appealed, with its attorney general exclaiming, "Why, under [Lowell's] ruling, it would be illegal to try any colored person before a Virginia jury for any offense!" Likewise infuriated by his professed reliance on "Yankee common sense," Congress impeached Judge Lowell, who suddenly fell sick. Ten days later the sixty-four-year-old judge died in Newton, Massachusetts.

The circuit court of appeals overturned Lowell's ruling. It held that because Virginia did not by statute exclude African Americans from jury ser vice, its juries were constitutionally sound; whether or not black people ever actually served on Virginia's juries was irrelevant. Crawford's attorneys appealed to the Supreme Court, but the justices declined to hear the case. The thirty-two-year-old black man was returned to Loudoun County to stand trial for capital murder.

Before returning to Virginia with his bride, Galleher spoke of the defendant to the press. "We want to give him plenty of time to get counsel and otherwise prepare his defense. But court is in session now and I see no reason for delay." Galleher pointedly added, "I will recommend that Crawford be placed in the Alexandria jail in lieu of being brought to Leesburg in advance of trial." Alexandria was two counties east of Leesburg; Loudoun County's prosecutor was afraid that Crawford, like so many black defendants held in southern jails, would be kidnapped and lynched if he spent a night in the Leesburg jail.

With George Crawford destined for trial and the nation now interested in his fate, Walter White was more determined than ever to save Crawford's life. As perhaps the most well-connected black man in the nation, White had his pick of America's most accomplished progressive attorneys to represent the suddenly famous defendant. The man at the top of his list was the dean of the Howard University School of Law and a graduate of Amherst College and Harvard Law School. His tireless work and controversial decisions had elevated the school from one that accepted high school graduates to one fully accredited by the American Bar Association. But Charles Hamilton Houston promptly replied with his regrets. "This case is far too big to be sloppily prepared. I would not be equal to the task," Houston explained, "because it would mean that I would have to give up all work here at the University. It would be impossible to do both jobs at the same time." The school year had already begun by October 1933 and it was too late for the dean to apply for a leave of absence. Before signing off, however, Houston conceded that "if Crawford could be tried by all Negro counsel, it would be a turning point in the legal history of the Negro in this country."

Walter White was nothing if not perceptive. He knew that Charlie Houston did not write incidentally; if White could guarantee him an all-black legal team, Houston might reconsider. As a law student ten years earlier, Houston had become the first African American to serve on the Harvard Law Review. A tall, sandy-toned man, Houston wore meticulously tailored suits that betrayed his unwavering attention to detail. His gray-eyed gaze smoldered. He was brilliant and disciplined perhaps to a fault.

For his part, Houston believed Crawford's case could mature to legal significance: The road to saving the innocent man's life almost certainly led to the Supreme Court of the United States, where Crawford's lawyers would argue that a state's excluding black citizens from juries as a matter of practice was as unconstitutional as excluding them as a matter of law. Success would be monumental, but if they lost, Walter White feared, "all the gains in jury ser vice may be wiped out and Negroes be set back thirty years."

White assured Houston command of an all-black legal team. Less than one week later, the dean agreed to serve as lead counsel on his first murder case. Fellow Washingtonians Edward P. Lovett, James G. Tyson and Leon A. Ransom would assist him, and all would work for free. Except for Ransom, who was a professor at Howard, Crawford's lawyers were Houston's former students. They would be assisted by one of Houston's favorite students in the third-year class at Howard Law, a lanky Baltimore native named Thurgood Marshall.

They immediately filed a motion to quash Crawford's indictment on the grounds that African Americans were, as a matter of long-standing practice, excluded from Loudoun County's grand juries. Although this argument had failed in Massachusetts, if Houston lost the motion during this, the trial stage, and his client was convicted, then he could base an appeal on the issue. A hearing was scheduled for November 6, 1933.

Virginia governor John Garland Pollard personally appointed Judge James L. McLemore to try the case. With his full head of silver hair parted sharply down the middle, McLemore was a judge partial to brass collar-clips and a courtroom of the utmost order. He understood the case's national import, however, and granted the lawyers latitude at the hearing. Crawford's defense team called no fewer than forty-six witnesses, including forty-one African American residents of Loudoun County, the county's clerk of court and the sheriff. Five of the prosecution's twelve witnesses were members of the county's board of supervisors.

Houston asked the court if he could call to the stand Judge J. R. Alexander, who had drawn the jury list. When Judge McLemore balked at the idea of a fellow jurist facing cross-examination, Houston replied that Judge Alexander could face criminal prosecution under an 1875 federal statute that made it illegal to exclude anyone from a jury based on a "previous condition of servitude"-that is, former slaves. Houston argued that although he had no intention of seeking Judge Alexander's prosecution, he deserved the chance to question the judge under oath, particularly in light of the federal statute expressly addressing the issue at hand.

Judge McLemore relented and ordered his fellow Virginia judge to take the stand. Silence froze the courtroom as the clerk swore a judge onto the witness stand.

Judge Alexander was, as Houston later described, "a slow and reluctant witness." After establishing that Alexander had been a judge since May 1929 and that he did in fact draft the list from which the Crawford jury was drawn, Houston asked, "Did you or did you not consider the Negro population?"

"I considered the population as a whole. I didn't know whether they were white or colored."

Were any Negroes on the list of prospective jurors?

No, but the men on the list were well qualified, with individual reputations for honesty, intelligence and reliability. The men on the list were a little above the average.

Wasn't it the custom in Loudoun County to choose only white citizens for jury duty?

Well, yes, but there were only two Negroes in the county qualified to serve on a jury and they were not selected for the Crawford case.

Because they were Negroes?

No. The entire population was considered. Most people were not selected.

Houston did not expect Judge Alexander to admit to deliberately excluding African Americans from the jury. By questioning him, the jury commissioners and several black residents of Loudoun County, he was constructing a record of operative facts: There were black people in Loudoun County qualified to serve on juries, but no black person had ever been selected to serve on a jury, and this was because black people were, as a matter of long-standing practice, excluded from jury ser vice.

After all the witnesses had been heard, Judge McLemore announced that he was ready to hear closing arguments on the defendant's motion to disband the jury.

"All the testimony here today," Houston commenced in his clipped diction, "shows there have been no Negroes on grand juries or trial juries in Virginia, so their deliberate exclusion must be admitted by the Commonwealth. Public policy in Virginia is that Negroes are not to serve on juries." He motioned to Judge Alexander, who had returned to his seat in the gallery. "Judge Alexander has been revolving around a closed circle-a wheel excluding all Negroes. In other words, a caste system is prevalent in Virginia and the South." The caste system resulted in the systematic exclusion of black Virginians from juries. Even if they were "considered," they were never chosen for grand jury duty because of their race, and that violated the federal Constitution.

Loudoun County prosecutor John Galleher, in his rebuttal, denied that black people were excluded from the grand jury that indicted George Crawford. "The sole issue," he said, "is whether Judge Alexander excluded Negroes solely on account of their race. The Commonwealth denies Negroes were excluded, denies there are Negroes in Loudoun County qualified for grand jury ser vice and denies that the constitutional rights of Negroes were invaded. Judge Alexander selected an intelligent class of people he thought would mea sure up to the requirements of law."

As the lawyers finished making their arguments at the long day's end, perhaps no one was more relieved than the defendant, who wore a gray suit and whose forehead, according to the Washington Post, was "wrinkled by frowns." Crawford had appeared bored throughout the day, as if the high-stakes legal wrangling holding hundreds spellbound was but a distant annoyance.

After hearing all the witnesses testify, Judge McLemore ruled for the commonwealth. Because Virginia law did not preclude African Americans from serving on grand juries, the fact that no black person had ever done so was irrelevant. The judge removed his gold-rimmed glasses before explaining his decision from the bench in a dripping gentleman's drawl: "The judge is charged with a serious responsibility in selecting grand juries. He must choose intelligent men. Intelligence usually means a high order of reasoning power, a higher thinking power as distinguished from the senses of memory. An intellectual person is one who is elevated a little above what we would term a plain citizen. A good citizen, just as good a citizen as exists anywhere, might prove not to have the intellectual qualities which would make him the best material for grand jury ser vice. The judge has to decide that question when he selects the grand jury list, and if he decides it honestly and conscientiously and includes no colored people among the 48 men selected, the list is still a perfectly good list." Judge McLemore concluded that the judge who selected the grand jury "did not exclude anyone because of race or color."

Charles Houston rose and, with his fingertips glanced atop counsel's table, said to the judge, "I respectfully request a ruling on testimony that Judge Alexander picked the grand jury from his personal acquaintances. Your honor should say something about the caste system existing in Virginia. Inside the circle are white people. Outside are black people. Black people cannot get inside." Spectators in the crowded courtroom whispered at the lawyer's measured audacity.

(Continues...)


Excerpted from Root and Branchby Rawn James, Jr. Copyright © 2010 by Rawn James, Jr.. Excerpted by permission.
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