Fannie Lou Hamer Day

Today's the birthday of Fannie Lou Hamer. She was one brave woman. And I hope we can continue to remember her and her contributions to struggle for equality and an end to racism in the United States.

On August 23, 1962, Rev. James Bevel, an organizer for the Student Nonviolent Coordinating Committee (SNCC) and an associate of Dr. Martin Luther King, Jr., gave a sermon in Ruleville, Mississippi and followed it with an appeal to those assembled to register to vote. Black people who registered to vote in the South faced serious hardships at that time due to institutionalized racism, including harassment, the loss of their jobs, physical beatings, and lynchings; nonetheless, Hamer was the first volunteer. She later said,

"I guess if I'd had any sense, I'd have been a little scared - but what was the point of being scared? The only thing they could do was kill me, and it kinda seemed like they'd been trying to do that a little bit at a time since I could remember."

Ruleville, MS, is east of Cleveland, Mississippi, in Sunflower County. It was a very scary, dangerous place in 1962. It was still scary when I visited there in the early '70's. It was scary enough that I haven't been back in decades.

And then there's this:

In the summer of 1964, the Mississippi Freedom Democratic Party, or "Freedom Democrats" for short, was organized with the purpose of challenging Mississippi's all-white and anti-civil rights delegation to the Democratic National Convention of that year as not representative of all Mississippians. Hamer was elected Vice-Chair.

The Freedom Democrats efforts drew national attention to the plight of African-Americans in Mississippi, and represented a challenge to President Lyndon B. Johnson, who was seeking the Democratic Party's nomination for reelection; their success would mean that other Southern delegations, who were already leaning toward Republican challenger Barry Goldwater, would publicly break from the convention's decision to nominate Johnson — meaning in turn that he would almost certainly lose those states' electoral votes in the election. Hamer, singing her signature hymns, drew a great deal of attention from the media, enraging Johnson, who referred to her in speaking to his advisors as "that illiterate woman".

Hamer was invited, along with the rest of the MFDP officers, to address the Convention's Credentials Committee. She recounted the problems she had encountered in registration, and the ordeal of the jail in Winona, and, near tears, concluded:

"All of this is on account we want to register [sic], to become first-class citizens, and if the Freedom Democratic Party is not seated now, I question America. Is this America, the land of the free and the home of the brave where we have to sleep with our telephones off the hooks because our lives be threatened daily because we want to live as decent human beings - in America?"

In Washington, D.C., President Johnson called an emergency press conference in an effort to divert press coverage away from Hamer's testimony; but many television networks ran the speech unedited on their late news programs. The Credentials Committee received thousands of calls and letters in support of the Freedom Democrats.

Johnson then dispatched several trusted Democratic Party operatives to attempt to negotiate with the Freedom Democrats, including Senator Hubert Humphrey (who was campaigning for the Vice-Presidential nomination), Walter Mondale, and Walter Reuther, as well as J. Edgar Hoover. They suggested a compromise which would give the MFDP two non-voting seats in exchange for other concessions, and secured the endorsement of Martin Luther King, Jr. and the Southern Christian Leadership Conference for the plan. But when Humphrey outlined the compromise, saying that his position on the ticket was at stake, Hamer, invoking her Christian beliefs, sharply rebuked him:

"Do you mean to tell me that your position is more important than four hundred thousand black people's lives? Senator Humphrey, I know lots of people in Mississippi who have lost their jobs trying to register to vote. I had to leave the plantation where I worked in Sunflower County, Mississippi. Now if you lose this job of Vice-President because you do what is right, because you help the MFDP, everything will be all right. God will take care of you. But if you take [the nomination] this way, why, you will never be able to do any good for civil rights, for poor people, for peace, or any of those things you talk about. Senator Humphrey, I'm going to pray to Jesus for you."

Future negotiations were conducted without Hamer, and the compromise was modified such that the Convention would select the two delegates to be seated, for fear the MFDP would appoint Hamer. In the end, the MFDP rejected the compromise, but had changed the debate to the point that the Democratic Party adopted a clause which demanded equality of representation from their states' delegations in 1968. [edit]

And then there's this video by 7th Grade Students:

Mississippi Supreme Court Dissenting Opinion Calls For Death Penalty Abolition

Mississippi has long supported the death penalty. So it is remarkable when a Mississippi Supreme Court Justice writes a dissenting opinion in a death penalty case that calls for the abolition of the death penalty. In Doss v. State (pdf), Justice Oliver Diaz, Jr., did just that, he called for the end of the death penalty.

The Sun Herald reports:

Outgoing Supreme Court Justice Oliver Diaz Jr.'s impassioned call for an end to the death penalty has drawn both criticism and praise.

In what was likely his departing dissent as his tenure on Mississippi's highest court ends, Diaz says society finally must recognize that "even as murderers commit the most cruel and unusual crime, so too do executioners render cruel and unusual punishment."

Jimmy Robertson, a Jackson attorney who served on the state Supreme Court from 1983 to 1992, said Diaz laid out a number of points, including that the death penalty is not a deterrent to murder, that were "pretty close to being irrefutable to anybody that's objective on the question."

The criticism in the Sun Herald article was provided not by Mississippians but instead solely by Kent Scheidegger, legal director for the pro-death penalty Criminal Justice Legal Foundation of Sacramento, a right wing, pro death penalty organization, who provided the usual shop worn generalities.

Justice Diaz's dissent came in the case of Anthony Doss who sought a new trial because the trial court never explored his claims of mental retardation or the adequacy of the representation he received at trial from a court-appointed attorney with no death penalty experience. Doss was sentenced to death fifteen year ago, in 1993, for his role in the armed robbery and killing of a convenience store clerk, Robert C. Bell.

Diaz wrote:

"Just as a cockroach scurrying across a kitchen floor at night invariably proves the presence of thousands unseen, these cases leave little room for doubt that innocent men, at unknown and terrible moments in our history, have gone unexonerated and been sent baselessly to their deaths."

"All that remains to justify our system of capital punishment is the quest for revenge, and I cannot find, as a matter of law, that the thirst for vengeance is a legitimate state interest. Even if it is, capital punishment's benefit over life imprisonment in society's quest for revenge is so minimal that it cannot possibly justify the burden that it imposes in outright heinousness."

The entire dissent is here (pdf) beginning at page 25.

This dissent is incredibly important to me. In 1984 I represented on appeal to the Mississippi Supreme Court a man who had been convicted of murder and sentenced to death in Gulfport, Mississippi. I handled this appeal without charge. I volunteered to do it (the story of how that happened is a separate essay for another day). Fortunately, I was successful and the conviction itself in State v. James Moffett, 456 So.2d 714 (1984), was reversed.

Back then, 24 years ago, if I had been appointed by the Mississippi Supreme Court to handle the appeal, I could have received the magnificent sum of $900 for my work. I didn't even get the $900 because the Court denied my motion to be appointed. I spare you the arithmetic of dividing this theoretical, gigantic sum by the number of hours I spent on the case. You don't need to figure out how much I would have made per hour. I wasn't doing the case for money. I did it because of an intense passion against the death penalty. But anybody who does criminal defense work knows that unless people are volunteering to provide free representation, which is an incredible gift and makes me extremely proud of those who do so, the accused gets a defense that's probably worth about what the state pays for it. Pleases note: this is not a slap at my extremely persistent and dedicated brothers and sisters in the defense bar who are the exception that prove the rule. They do incredible work because of their passion, not because of what they're paid. But they aren't the only ones handling these cases. On another day, as an illustration of this point, we can review all of the decisions courts have written about sleeping lawyers in death penalty trials.

Significantly, the topic of compensation and its relationship to the quality of defense arises in footnote 1 in Justice Diaz's dissent:

It must be noted that the unworkability of our capital punishment
system is due in no small part to the State’s utter inattention to publicly funded defense. The Mississippi indigent defense system is wholly inadequate to provide meaningful representation to the poorest criminal defendants. As Justice Graves has stated, “the State of Mississippi has failed to establish or fund a system of indigent defense that is equipped to provide all defendants with the tools of an adequate defense, and has therefore fallen short of its constitutional obligation.” Quitman County v. State, 910 So. 2d 1032, 1052 (Miss. 2005) (Graves, J., dissenting). Amazingly, in all criminal cases, court-appointed attorneys are entitled to no more than $1,000 compensation. Miss. Code Ann. § 99-15-17 (Rev. 2007). This problem is hardly a new one; in 1994, Justice Blackmun noted that Mississippi’s capital defense attorneys were compensated at an average rate of $11.75 per hour. McFarland v. Scott, 512 U.S. 1256, 1258, 114 S. Ct. 2785, 129 L. Ed. 2d 896 (1994) (Blackmun, J., dissenting from denial of certiorari).

Put another way, a death penalty trial isn't really a fair fight. It's not meant to be. The defense is almost always over matched by the state's endless resources. And that, I am sorry to report, is exactly the state's intention. The result is a flawed system that for this reason alone should be ended.

For Dr. King

I'm thinking about times almost forty years ago when I sang, "We Shall Overcome." I'm remembering how I felt when I sang it, holding hands, swaying, anticipation in the air. I loved the idea of walking hand in hand, black and white together, and at the same time there was always a tension, a tightness in my jaw and in the pit of my stomach, the presence of fear. The song's purpose was to get ready to do what had to be done. I'm committed to nonviolence, I recall thinking, but there are those who are not. They shot James Meredith, and lynched Emmitt Till, and burned Greyhound buses, and unlike me, they don't want me to be safe. Uncertainty about what will happen tightens my jaw, while my heart commits me to the cause.

Remembering these fears rekindles my old thoughts. I remember the policemen in the church parking lot writing down the license plate numbers as if it were the Apalachin Crime Convention. My mind flashes from people sitting in a restaurant who stop eating to stare and sneer, to the incomprehensible Mississippi Sovereignty Commission, to the repeated, threatening phone calls, to kids on a school bus yelling hate names through the windows, to the Klan and the police, and wondering how they were different. I think about the person who ran over my dog.

I'm remembering singing "our song" in Port Gibson during the boycott trial and fearfully contemplating the long, dark ride home to Jackson on the Natchez Trace, an unlit, two-lane road that avoids all towns.

I'm remembering the Woolworth's lunch counter and the bus station in Jackson, notorious before my arrival, at which friends were seriously injured. I'm remembering the two unequal, racially labeled water fountains at the Courthouse in Laurel, and the three bathroom doors upstairs at the Mayflower Restaurant. I'm remembering a black man pumping the gasoline, that his boss won't let him touch the $5 I try to hand him.

I'm remembering a Mississippi judge hissing that he doesn't have to put up with Communists-- he's talking about me-- in his Court. I'm remembering the Neshoba County Fair and what it must have been like on the night Goodman, Chaney and Schwerner were all killed, how everyone there must have known about it.

Awash in this flood of distant memories, my remembrance of my own feelings is more opaque. I was learning to be a good lawyer, and I was an optimist, believing that eventually, we would confront and overcome racism and poverty and oppression and violence. But I was also numb while my unworkable marriage was sliding slowly, unconsciously and miserably to ultimate dissolution by another southern Court.

Then, in 1973, I started to represent inmates of the sprawling Mississippi State Hospital because Barry Powell, an excellent lawyer and mentor, "discovered" it and convinced himself and me that the issues should be litigated. Most of the people warehoused there, it turned out, were safe to release, but the staff was too small to have any idea who was safe and who might be risky. For obvious cases, like the four older women who played remarkably skilled bridge using sign language to bid and hadn't seen a doctor in 7 years, release was accomplished simply, by my inquiry if they could go home and my veiled threat of a judicial proceeding if they couldn't.

The harder cases were like Mr. O'Reilly (not his real name), who also wanted to be released. Doctors thought Mr. O'Reilly might be mentally ill because he still believed that ten years before somebody, a relative most likely, stole a million dollars worth of gold coins from his trailer in rural Oktibehha County and he was mad about it. According to the doctor, Mr. O'Reilly didn't have any insight into his delusional system and his obvious anger made him dangerous.

Mr. O'Reilly was tall and sunburnt from years of taking major tranquilizers and being outside, and he walked with his back arched, elbows back, hands on the small of his back, another side effect of the drugs. I explained the situation to Mr. O'Reilly. I told him that the doctor didn't believe the million dollar story, and that frankly, I didn't either. In fact, I doubted there were ever $50 worth of gold coins in his entire county, and that when he acted angry about the situation, he was scaring the doctor. He laughed, "So is that what all the fuss's about? How come nobody told me this before?" I shrugged. He said, "Well, I guess I'll be going home then," and he shambled off, doing the phenothiazine walk.

At the time the Hospital Staff decided who would be released by individually interviewing all the inmates who requested release. When asked, Mr. O'Reilly said he came in complaining about the theft of a million dollars worth of gold coins, that he didn't blame anybody for not believing him, and that he doubted the story made sense. Was he mad about it? No, he said, just sad that he didn't understand the problem earlier. Could he go home?

After Mr. O'Reilly was released, the Mississippi Mental Health Commissioner, Reginald White, told me that he thought I was doing "litigation therapy" and that he was surprised that people who were so obviously disoriented when they arrived were now going home. Did I think it was because of the intensive attention I was giving them? Or was it just time, the drugs, spontaneous change, and "millieu therapy"? At the time I didn't have any idea. I just wanted inmates who wanted to go home to be released.

And this past January, almost forty years later, with my wife of almost 30 years and two of my three children, I attended an Interfaith Service commemorating Dr. King's Holiday in Hudson, New York. After wonderful gospel music by the Shiloh Baptist Church choir, a sermon, singing the Battle Hymn of the Republic, prayer and scripture, the time came at last to sing "our song." It had been a long time. My eyes grew wet. I could feel an aching in my throat and in my heart my continuous, decades long love of justice, fairness, and equality. And there was no fear. Instead, there was only my unbounded joy that now, at last, my kids would learn and experience the magic of "our song." It was their turn to inherit the possibility of accomplishing the unthinkable, and it was their opportunity to forge a deep, personal heart connection with the community and movement for human dignity and justice.

"We Shall Overcome" has never been sweeter to me. I can feel how very far I have traveled. Although there remains an enormous journey to complete, the holiday celebration brought me the gift of seeing for the first time that my kids will soon be able, by themselves, to carry the movement on. Forty years ago I never could have guessed how special, how complete and wonderful that would feel.