Thurgood Marshall
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Thurgood Marshall

His Speeches, Writings, Arguments, Opinions, and Reminiscences

Mark V. Tushnet

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eBook - ePub

Thurgood Marshall

His Speeches, Writings, Arguments, Opinions, and Reminiscences

Mark V. Tushnet

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About This Book

Much has been written about Thurgood Marshall, but this is the first book to collect his own words. Here are briefs he filed as a lawyer, oral arguments for the landmark school desegregation cases, investigative reports on race riots and racism in the Army, speeches and articles outlining the history of civil rights and criticizing the actions of more conservative jurists, Supreme Court opinions now widely cited in Constitutional law, a long and complete oral autobiography, and much more. Marshall's impact on American race relations was greater than that of anyone else this century, for it was he who ended legal segregation in the United States. His victories as a lawyer for the NAACP broke the color line in housing, transportation, voting, and schools by overturning the long-established "separate-but-equal" doctrine. But Marshall was attentive to all social inequalities: no Supreme Court justice has ever been more consistent in support of freedom of expression, affirmative action, women's rights, abortion rights, and the right to consensual sex among adults; no justice has ever fought so hard against economic inequality, police brutality, and capital punishment.

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Information

Publisher
Lawrence Hill Books
Year
2001
ISBN
9781613746400
Edition
1
Topic
Law
Subtopic
Law Biographies
Index
Law

PART I

LEGAL BRIEFS AND ORAL ARGUMENTS

Insisting that good lawyers had to master the facts of the cases they brought or defended, Charles Hamilton Houston trained Marshall as a trial lawyer. Marshall’s own abilities made him a great appellate lawyer. Both in trial courts and before appellate courts, Marshall had a sure instinct for the facts that mattered, and an ability to present his case in the way his audience—sometimes a jury, sometimes one or more judges, and sometimes the African American community—would understand best.
Marshall’s work as a trial lawyer is contained in the transcripts of the cases he handled. The most effective trial lawyers do not fit the television image of an attorney cross-examining a hostile witness who ultimately confesses after having been exposed. Rather, these trial lawyers patiently compile a factual record to support their motions asking a judge to find in favor of their clients. Marshall frequently told of learning how to be a trial lawyer by riding in the backseat of Houston’s car, balancing a typewriter on his knees while pounding out a motion to exclude evidence. Later, Marshall learned how to coordinate the presentation of facts from expert witnesses, an ability he used to great effect in the school desegregation lawsuits.
When Marshall headed the Legal Defense Fund, he was more a coordinator of other lawyers’ work than an initial drafter of legal documents like briefs. By the late 1940s, the Legal Defense Fund’s legal briefs were highly collaborative works, incorporating ideas from many members of the Fund staff and its outside advisers. Marshall’s oral advocacy, in contrast, was his alone. He was a master at striking the right tone: sometimes engaged in what seemed to be a simple conversation with the justices about how they all should handle a difficult legal problem, sometimes a sarcastic critic of his opponents’ position, and sometimes the eloquent orator whose words went to the heart of the moral case for his clients.
What follows are two of Marshall’s appellate briefs and transcripts of several of his oral arguments before the Supreme Court. The first brief is from Lyons v. Oklahoma, the second case Marshall argued before the Supreme Court.4 The brief shows Marshall’s instinct as a trial lawyer for presenting the facts of a case in a way that should incline the reader to agree with the conclusions Marshall wants the Court to draw. Although an appellate brief,5 it illustrates some of Marshall’s talents as a trial lawyer as well. The second is the initial brief in Brown v. Board of Education. This brief is notable for its brevity and for the straightforward manner in which it presents the argument that school segregation is unconstitutional. Marshall’s oral arguments in the school desegregation cases were the most important in his career. The cases were argued three times, and this collection includes transcripts of all three of Marshall’s arguments. Several years later, the Little Rock school crisis erupted. The Supreme Court scheduled two emergency arguments. The first dealt with some highly technical aspects of the case’s procedural posture and, although it shows Marshall’s facility in dealing with a complex legal problem on equal terms with the justices, it is omitted here in favor of the argument on the merits.6
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1. Lyons v. Oklahoma (1944)

The issue in Lyons was whether a defendant’s constitutional rights were violated when his confession to murder was admitted in his trial. Lyons first confessed after being beaten; he then repeated his confession. The first confession was not admitted against him, but the second one was. Long-standing state rules of criminal procedure barred the admission of coerced confessions. It was not until 1936, however, that the Supreme Court held that admitting a coerced confession into evidence at a criminal trial violated a defendant’s right to due process of law. (Today we would say that admitting such a confession violated the defendant’s rights under the Fifth Amendment not to be compelled to testify against himself, but the Supreme Court did not hold that the self-incrimination clause limited state governments until 1964.) The issue of police brutality and so-called “third degree” tactics attracted a great deal of attention from the public and legal academics in the 1930s,7 Which amplified a more focused concern by some that police officers were particularly harsh in dealing with African Americans suspected of crimes against whites. Marshall’s brief in Lyons was written to evoke these concerns without specifically mentioning them.
W. D. LYONS V. STATE OF OKLAHOMA

Brief on Behalf of Petitioner.

Statement of Facts.

Late on the night of December 31, 1939, Elmer Rogers, his wife and one son were brutally murdered in their home near Fort Towson, Oklahoma. Another son, James Glenn Rogers, escaped with his smaller brother, Billie Don. Both Mr. and Mrs. Rogers were shot with a shotgun and the house set afire, burning both of them and one of the young boys.
The crime aroused the entire community and there was much newspaper publicity. Shortly thereafter several white prisoners from a nearby prison camp were arrested for the crime. This brought about additional publicity condemning the Oklahoma State Prison System. Warden Jesse Dunn of the State Prison System was sent to Fort Towson and began a personal investigation of the situation, and shortly thereafter made a change in officials in charge of the prison camp.
Vernon Cheatwood, special investigator for the Governor of Oklahoma, was sent to Fort Towson after the convicts from the nearby prison camp had been arrested for the crime. Vernon Cheatwood had been a special investigator for six or seven years and had much experience in obtaining confessions. During his investigation the prisoners arrested for the crime were released and W. D. Lyons, a young Negro, was arrested in Hugo, Oklahoma.

The “Arrest”.

On the night of January 11, 1940, W. D. Lyons left his mother-in-law’s home to get a drink of illegal whiskey hidden in the woods and on his way back met Ennis Aikens. Aikens, a witness for the State of Oklahoma, testified that he and Lyons saw several cars of police officers drive up to the home of Lyons’ mother-in-law and that Lyons requested him to go down to the house and ask his wife “what the trouble was down there.” Shortly thereafter Lyons returned to the house and was met by two men with drawn revolvers. Reasor Cain and Oscar Bearden made the “arrest.” Reasor Cain at that time was a special officer for the Frisco Railroad but is no longer employed by the Frisco. The employment of Oscar Bearden does not appear in the record. These two men promptly seized Lyons and since they did not have handcuffs they bound his arms behind his back with his belt. The men then started toward the jail with Lyons.
About three blocks from the court house and jail Reasor Cain broke off a piece of one-inch board lying on the street and Oscar Bearden struck Lyons on the head with this board. He then kicked Lyons and threatened his life by telling him they were going to burn him and kill him by degrees unless he “confessed.” About a block from the jail they bumped Lyons’ head against a tree. When they reached the jail the jailor, Leonard Holmes, greeted Lyons by striking him in the mouth with the jail keys which weighed about five pounds.

Events Leading Up To The Confessions.

Bearden then told Cain and Holmes to “get some more officers, and we will drag him through ‘colored town’ and let the rest of the Negroes learn a lesson.” Harvey Hawkins returned and reported there were no more officers around at that time. The jailor and Deputy Sheriff Floyd Brown then carried Lyons to the top floor of the women’s side of the jail where Floyd Brown kicked him and knocked him down with his fist. While on the floor Lyons was kicked in the stomach and ribs by Brown. Lyons was then placed in a cell.
After about five minutes Lyons was carried downstairs to a small room adjoining the sheriff’s office. In this room at the time were the sheriff, two deputy sheriffs, the state ballistic expert, two highway patrolmen, and the state investigator. Roy Harmon, sheriff and state’s witness, admitted there were at least three or four men in the room besides Lyons.
These officers beat Lyons again and bumped his head against the wall. One of the officers made Lyons stand against a wall with his hands stretched above his head while the officer, with cowboy boots on, kicked the skin off the shins of Lyons’ legs. An investigator kicked him in the stomach and blacked Lyons’ eye. The local constable also beat him and threatened him in an effort to make him confess. The sheriff questioned Lyons for about thirty minutes and then the beatings were resumed until the sheriff stopped them again and had Lyons carried upstairs to a cell.
Although the officers denied beating or threatening Lyons, one witness subpoenaed by the State, corroborates Lyons’ testimony. She testified that she saw him in the jail at Hugo and noticed that his eye was blackened, his arms were bruised. She testified further that he could hardly walk.

First Confession.

Eleven days later, about six-thirty in the evening, one of the highway patrolmen and Floyd Brown took Lyons from his cell to the office of the county prosecutor. On the way the highway patrolman struck Lyons on the head with a blackjack. Cheatwood met them in the hall and told the officer not to hit Lyons on the head because “I know how to get it out of him when we get him up here.” He was then carried to the county prosecutor’s office in the court house.
Sheriff Roy Harmon testified the room was about 14 or 16 feet square. According to the testimony of witnesses for the State of Oklahoma, from time to time during the night there were at least twelve men in that room. They were the following:
  1. Floyd Brown.
  2. Roy Harmon.
  3. Van Raulston.
  4. Vernon Cheatwood.
  5. Harvey Hawkins.
  6. Other highway patrolman.
  7. County Prosecutor Norman Horton.
  8. Assistant Prosecutor.
  9. Reasor Cain.
  10. Howard Rorie.
  11. “Mr. Holmes.”
  12. Jess Faulkner.
Lyons was handcuffed and put in a chair while Vernon Cheatwood with a blackjack in his hands sat in a chair directly in from of Lyons and about eight or ten inches from him. One of the highway patrolmen was sitting on one side of Lyons with Reasor Cain standing behind him. The County Prosecutor was asking the questions.
During the questioning Vernon Cheatwood was beating Lyons on the knees, hands, arms and legs with a blackjack. This weapon was described by Lyons as “about two inches wide and about three-fourths of an inch thick on the end, and about a foot and a half long, and every time he hit me with it something in it would rattle like buck shot or steel balls.” Every now and then Reasor Cain would strike Lyons with his fist. Lyons also testified that “when Mr. Reasor Cain got tired the highway patrolmen would take it awhile, about an hour and a half to two hours each, and they beat me that way all night and yelling questions . . . they would say, ‘You killed those people, didn’t you? You goddamned black son-of-a-bitch, you are going to tell me before we turn you loose’. . . . He said I was going to sing a different song before forty-eight hours from now.”
Cheatwood, Cain and now and then the highway patrolmen, would take Lyons out of the chair and bend him across a table while Cheatwood beat him on the back of the head with the blackjack. Then they would put Lyons back in the chair and start beating him on the legs and arms again. Cheatwood also threatened “to stick red-hot irons” to Lyons to make him confess.
About two-thirty in the morning the officers brought in a pan of bones and placed them in Lyons’ lap. The use of the bones from the bodies of dead people was freely admitted by officers of the State of Oklahoma. The effect of this on Lyons was explained by him in the following testimony: “They said they was the bones of Mrs. Rogers, Mr. Rogers and the baby, and I had never seen any bones of a dead person before, had I ever seen dead people before, and was I afraid of those bones on my lap in the pan. Mr. Cheatwood would lay the bones on my hands, such as teeth and body bones, and make me hold it and look at it, wouldn’t let me turn my head away, and beat me on the hands and knees.” These officers continued to question and beat Lyons until about four-thirty the next morning. At about this time Lyons made a “confession” because they “beat me and beat me until I couldn’t stand no more, until I gave in to them and answered the questions that they demanded.” Even then he denied killing Elmer Rogers but later answered the question “yes” because “I was forced to . . . I was beat with a blackjack, tortured all night long—because I feared I would get some more torture.”
Then Lyons was lifted from the chair and led downstairs and over to the jail where he remained about five minutes after which time three of the officers brought him back to the sheriff’s office. He was held there while the officers ate their breakfast and was then carried to the scene of the crime in Fort Towson.
In the car with Lyons were one of the highway patrolmen, Floyd Brown, the assistant prosecuting attorney and Vernon Cheatwood. During the trip to Fort Towson the highway patrolman and Cheatwood threatened Lyons. Cheatwood told Lyons they were taking him to Fort Towson to kill him and he should say his prayers.
At the scene of the crime Floyd Brown and Harvey Hawkins threatened to burn him and beat him with a pick hammer if he did not do as they told him. Lyons was standing facing a fire that had been built and with his back to the officers Brown and Hawkins. When he turned around Hawkins had an axe in his hand saying that Lyons knew something about it. They threatened to torture him again if he did not say he had had the axe.
In the meantime Cheatwood and the assistant prosecutor went to the home of the family of Mrs. Rogers. E. O. Colclasure, father of Mrs. Rogers, testified that Cheatwood showed him a blackjack and told him “I beat that boy last night for, I think, six—either six or seven hours . . . I haven’t even got to go to bed last night.” Mrs. Vernon Colclasure, sister-in-law of Mrs. Rogers testified that Cheatwood showed her the blackjack also and stated he beat Lyons “from his knees on down.”
Cheatwood and the assistant prosecutor returned to the scene of the crime with Vernon Colclasure. In the presence of these people Harvey Hawkins asked Lyons if he had not hidden the axe where it was found. Lyons denied that he knew about the axe.
Cheatwood asked Lyons to show him where he had been hunting on the day prior to the murder. Lyons took them about a half a mile southeast from the scene of the murder and showed them where he had been shooting while hunting and also showed them where he had discarded some empty shells from his shotgun.
Lyons was returned to the jail around 8:30 in the morning and he was again placed in the women’s side of the jail. At this time his eye was still closed, his lip broken and his nose was bleeding. At about 2 o’clock in the same afternoon the assistant county attorney, a Mr. Haskell, with two highway patrolmen and Vernon Cheatwood brought Lyons a paper to be signed. Lyons asked what the paper was and Cheatwood said, “never mind”, whereupon Lyons signed the paper. During this entire period Lyons did not have a lawyer to consult nor had any lawyer been appointed to defend him or to protect his rights.

Second Confession.

About fifteen minutes later Cheatwood and the Sheriff carried Lyons to the front of the jail where pictures were taken. Immediately thereafter, on the same day, Reasor Cain and Floyd Brown placed Lyons in an automobile and carried him to the Antlers, Oklahoma, jail where they arrived at about 4 o’clock in the afternoon.
Cheatwood, the Governor’s special investigator, returned to the Webb Hotel in Hugo and in the presence of people sitting in the lobby told the porter to “go up to my room and get me my nigger beater.” The porter went to the room and brought back a blackjack. Whereupon Cheatwood stated: “This is what I beat the nigger boy’s head with.” Cheatwood also described the blackjack to the clerk of the Webb Hotel. On the night prior to the trial in this case Chea...

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