The Courage to Defy Brutality

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AP Photo/Christina Myers

Unexampled Courage: The Blinding of Sgt. Isaac Woodard and the Awakening of President Harry S. Truman and Judge J. Waties Waring

Richard Gergel

Farrar, Straus, and Giroux

This article is a preview of the Spring 2019 issue of The American Prospect magazine. Subscribe here.

Racially motivated police brutality daily affronts us in two dimensions. First there are the episodes in which police deploy more force against racial minorities than they would have deployed against similarly situated whites. Second are the episodes in which the legal system wrongly absolves police of criminal culpability for racially discriminatory wrongdoing even in that small fraction of cases in which there is an investigation. Black Lives Matter and related protests have focused much-needed attention on this long-standing scandal. But progress is difficult to attain. Perhaps some forward motion can be generated by more fully educating the public about our history of racially motivated police violence.

Unexampled Courage: The Blinding of Sgt. Isaac Woodard and the Awakening of President Harry S. Truman and Judge J. Waties Waring contributes splendidly to that project. Its author, Richard Gergel, is the United States District Court judge who presided over the successful prosecution of the murderer of nine black parishioners at the Emanuel African Methodist Episcopal Church in Charleston, South Carolina, in 2015. In Unexampled Courage, he chronicles a criminal attack by a white police chief upon a black soldier and the miscarriage of justice that permitted the crime to go unpunished.

On February 12, 1946, at Camp Gordon, Georgia, Isaac Woodard was honorably discharged from the army. An impoverished, rural Southerner, he had served in World War II as a longshoreman, loading and unloading military ships sometimes under fire. He had been awarded three citations that he wore on his uniform as he boarded a Greyhound bus headed to Winnsboro, South Carolina, where he looked to be reunited with his wife. During the bus ride, Gergel observes, Woodard “displayed a degree of assertiveness and self-confidence that most southern whites were not accustomed to nor prepared to accept.”

When the bus driver cursed at Woodard after he requested a toilet break to relieve himself, the veteran cursed back, exclaiming, “I am a man just like you.” For that demand of reciprocity, he paid dearly. Upon exiting the bus after the driver had reported Woodard to local police, the veteran was hit over the head with a blackjack without provocation by Lynwood Shull, the Batesburg, South Carolina, chief of police. Shull then proceeded to whack Woodard with the blackjack several more times as he dragged him to jail. One of those assaults occurred after Shull asked Woodard whether he had been discharged from the army. When the veteran answered “yes,” Shull immediately struck him, adding the admonition that the correct response was “yes, sir.”

Subsequently, after Woodard was further beaten, Shull jabbed the baton into the veteran's eyes, one after the other, blinding him. After spending a night in jail, Woodard was taken before a local judge who fined him $50. The veteran was then transported to a hospital at which physicians determined the full, terrible extent of his injuries.

The assault on Woodard was part of a pattern of postwar, racially motivated atrocities. Two weeks after Woodard's blinding, a riot erupted in Columbia, Tennessee, after an altercation that featured a black veteran who had the temerity to defend himself when a white radio repairman slapped him. When blacks rallied to his aid to ward off a lynching, state police reacted wildly, ransacking black businesses, stealing jewelry and cash, committing vandalism (for instance, writing “KKK” on coffins in a black-owned mortuary), and beating, shooting, and arresting scores of blacks indiscriminately.

When a black veteran, Maceo Snipes, dared to vote in the Georgia Democratic primary—the only African American to do so in his rural county—white men shot him dead in retribution. In another rural area of Georgia, a black farmhand, Roger Malcolm, got into a dispute with his white employer who had reportedly made sexual advances on Malcolm's pregnant wife. Malcolm stabbed the man in a fight. A white mob that included police officers captured Malcolm and his wife and another black couple. Initially, it appeared as though the mob was intent upon “only” killing the two black men.

When one of the women, pleading for mercy, called the name of a white man she recognized, members of the mob decided to leave no black witnesses. The four were shot execution-style and Malcolm was castrated.

In Minden, Louisiana, John C. Jones, a black veteran, and his 17-year-old cousin, Albert Harris, were subjected to the wrath of a mob because they had been seen in the backyard of a white woman and Jones had complained of unfairness in a land transaction, a complaint marking him as an “uppity nigger.” Upon being released from jail after no charges were filed against them, Harris was pistol-whipped but survived, while Jones was killed with a meat cleaver and blowtorch.

The National Association for the Advancement of Colored People (NAACP) made the attack on Woodard the centerpiece of a campaign to combat racially motivated violence. It organized a tour that put the veteran in pulpits and auditoriums nationwide to publicize the police brutality that permanently maimed him and to raise desperately needed funds, inasmuch as his veterans benefits were pitifully insufficient. (Because he had been discharged hours before he was injured, the government took the position that he was ineligible for full disability assistance).

The NAACP also affiliated itself with other groups to create the National Emergency Committee Against Mob Violence, which succeeded in conveying to President Truman personally the dire situation on the ground. An upshot of the committee's effective lobbying was intervention by the president that prompted a rare federal prosecution of a white police officer accused of violating the civil rights of an African American.

The prosecution failed miserably. The local agents of the Federal Bureau of Investigation (FBI) were hostile. Gergel notes that their “failure to obtain a copy of Woodard's VA Hospital records, an essential starting point to investigate the cause of his blindness, speaks volumes about the FBI's myopic and incomplete investigation.” The prosecutors were incompetent and indifferent. They paid no attention to jury selection. They failed to subpoena key witnesses. And the lead prosecutor, the United States Attorney for South Carolina, did not even ask the jury to convict. Instead, he ended his insipid closing argument by saying that “whatever verdict you gentlemen bring in, the government will be satisfied with.”

By contrast, the defense was aroused and vehement and prepared to use every possible available argumentative weapon, including open appeals to regional resentment and racial prejudice. “If a decision against the government means seceding, then let South Carolina secede again,” thundered Shull's defense counsel. Continuing, he maintained that Woodard belonged to “an inferior race that the South has always protected,” and that Woodard's back talk to the bus driver indicated that the veteran must have been intoxicated because “that's not the talk of a sober niggra in South Carolina.” The all-white jury acquitted Shull within less than half an hour.

The brutal farcicality of the trial prompted the presiding judge to reset the course of his life. United States District Court Judge J. Waties Waring was a South Carolina blue blood, an eighth-generation Charlestonian whose path to the bench, according to Gergel, “had been thoroughly conventional without the slightest suggestion that he questioned the racial status quo.” After stints as an assistant United States Attorney, a private attorney, the corporation counsel of Charleston, and a supporter of key state politicians, Waring was elevated to the bench in 1942 by President Franklin Delano Roosevelt.

Judge Waring presided over the case of Woodard's assailant four years into his judicial tenure. At that point, Gergel notes, “he still did not question either racial segregation or black disenfranchisement.” Yet Waring had displayed an unusual willingness to recognize inconvenient facts that other judges in the Deep South resolutely ignored. In 1944 (in Duvall v. Seignous), Waring ruled in favor of African American plaintiffs who charged that the Charleston, South Carolina, school board violated their rights under the federal constitution by paying white teachers more than similarly situated black teachers. Thurgood Marshall, then a lead attorney for the NAACP Legal Defense Fund, recalled that that was “the only case I ever tried with my mouth hanging open half the time.” Why? Because, Marshall said, “Judge Waring was so fair.”

Judge Waring still did not question the validity and wisdom of racial segregation. He did, however, insist that state authorities pay some heed to their legal obligation to offer blacks “equal” albeit separate services and facilities.

By the time of the Shull prosecution, Waring had undergone a dramatic experience in his personal life that profoundly affected his juridical trajectory. He had divorced his wife of 30 years, a fellow Charlestonian, with whom he had had a child. This in itself was a scandal. South Carolina did not permit divorce. Parties seeking one had to leave the state to do so. At Judge Waring's insistence, his first wife moved briefly to Florida, where she divorced him. Then Judge Waring married a twice-divorced, rich Northerner who proved herself quite willing to defy confining social expectations. She attended the trial of Police Chief Shull, was shocked by what she witnessed, and, along with the judge, undertook to educate herself more fully about the racial facts of life in the Jim Crow South, reading such books as W.J. Cash's The Mind of the South and Gunnar Myrdal’s An American Dilemma.

Although a fiasco, the failed prosecution did generate beneficial consequences that showed up in the jurisprudence of Judge Waring, particularly in two cases that constituted the signature judgments of his career. In Elmore v. Rice (1947), he invalidated the state Democratic Party’s white primary. Since at that time all state and federal elected officials in South Carolina were Democrats, exclusion from the Democratic Party primary greatly diminished a voter’s effective political influence. By excluding all blacks from its primary, the state Democratic Party condemned them to virtual disfranchisement.

Responding to a 1944 Supreme Court decision (Smith v. Allwright) that invalidated the white primary in Texas, Governor Olin Johnston persuaded the South Carolina legislature to erase from its statute books all laws regulating primaries in order to buttress the claim that the Democratic Party was a private organization and thus beyond the reach of the federal constitution. Governor Johnston did not bother to hide his purpose. “White supremacy will be maintained in our primaries,” he declared. “Let the chips fall where they may!”

Judge Waring blocked the state's attempted evasion of Smith, noting that, regardless of form, the primary of a major party performs an essential governmental function that should be subject to constitutional standards. “It is time,” Judge Waring wrote, “for South Carolina to rejoin the Union. It is time to fall in step with the other states and to adopt the American way of conducting elections.”

Influential white supremacists denounced Waring's ruling even though it was upheld by a conservative court of appeals. The Charleston Evening Post, which was edited by Judge Waring’s nephew, denounced the decision, maintaining that it “arbitrarily” encroached upon “the rights of private citizens” and arrogated to the courts “the power to amend the Constitution by judicial fiat.” That was gentle, however, in comparison with the reaction against Judge Waring’s most daring opinion: his dissent in Briggs v. Elliott, a case in which plaintiffs in a poor, rural area of the state charged that their federal constitutional rights were being violated by officials who, for racial reasons, relegated black children to facilities that were unequal to and separated from facilities afforded to white children.

Clarendon County served some 6,531 black students and 2,375 white ones. Yet, exclusive of salaries, the county spent $395,000 on the white schools but only $282,000 on the black schools. Officials offered bus transportation to white children while abandoning the black children. White schools enjoyed running water and indoor toilets. Black schools did without. The number of students in classes in the black schools was often twice the number of students in the white ones.

Thurgood Marshall's initial complaint focused mainly on the contrast between the educational facilities; only obliquely did he challenge the constitutionality of segregation per se. Judge Waring suggested privately and rather aggressively that Marshall rescind the initial pleading and file a new complaint, this time expressly challenging the constitutionality of segregation. Judge Waring's prompting stemmed partly from his recent conversion to anti-segregationist abolitionism; he had come to believe that Jim Crow arrangements represented a dire social evil that should be eradicated immediately. His suggestion also stemmed from a strategic calculation. Attacking the constitutionality of the state laws requiring segregation would trigger the convening of a three-judge federal district court whose ruling would proceed directly to the Supreme Court for review.

Marshall followed the judge's advice. When he did so, the defendants surprised everyone by confessing that they had (inadvertently, of course!) failed to provide equal resources to black and white students. The defendants sought to preclude proceedings that would have shown in stark detail the extent to which local and state officials had shortchanged African American children. The lower court accommodated that strategy. That should not have been surprising.

One member of the panel was Chief Judge John J. Parker, whose nomination to the Supreme Court by President Herbert Hoover had been scuttled by opposition from organized labor and the NAACP. Another member, George Bell Timmerman, was a vocal and fervent segregationist. That twosome, outvoting Waring, found in favor of the plaintiffs but without questioning segregation. Taking refuge in a mountain of judicial precedent, the Parker-Timmerman majority ordered the local authorities to provide equality within the confines of separate but equal.

Judge Waring took a dramatically different tack. First, he deplored the “judicial evasion” that allowed the Briggs court to avoid grappling with the constitutionality of racial segregation in public schooling. Second, he did something that was perhaps unprecedented for any federal judge, not to mention one in the Deep South. He lauded the bravery and public-spiritedness of black plaintiffs suing state officials in a suit seeking racial justice.

He wrote that the plaintiffs had “shown unexampled courage in bringing … this cause at their own expense in the face of the long established and age-old pattern of the way of life which the State of South Carolina has adopted and practiced and lived in since and as a result of the institution of human slavery.” The plaintiffs and their supporters had been fired from jobs, threatened with violence, deprived of essential emergency assistance, and subjected to trumped-up criminal charges. Judge Waring, to his everlasting credit, bestowed upon these admirable dissidents the recognition that has all too often been denied to them.

Third, Judge Waring let loose with a full-throated denunciation of racism embodied in law. “The whole discussion of race,” he asserted, “has been intermingled with sophistry and prejudice. … What possible definition can be found for the so-called white race, Negro race or other races?” He excoriated “the sadistic insistence of the ‘white supremacists' in declaring that their will must be imposed irrespective of rights of other citizens.” He denounced “the false doctrine and patter called ‘separate but equal,'” declaring that racial segregation in education “can never produce equality.” Insisting that Jim Crow education “is an evil that must be eradicated,” and that “[s]egregation is per se inequality,” Judge Waring maintained that segregation in public schooling in South Carolina “must go and must go now.”

There were a few other judges around this time who were outspokenly exposing and condemning racism in American law—for instance, Justice Frank Murphy at the federal Supreme Court (see his indictment of state harassment of Japanese Americans in Oyama v. California (1948)), Justice Roger J. Traynor at the Supreme Court of California (see his castigation of state law prohibiting interracial marriage in Perez v. Sharp (1948)), and Judge Henry W. Edgerton at the United States Court of Appeals (see his censure of racially restrictive housing covenants in Hurd v. Hodge (1948)). None, however, outdid Waring in polemical ferocity, and he was alone in residing in the Deep South. His pronouncement in Briggs, Gergel observes, is a major landmark in American jurisprudence in that it constituted “the first instance where the per se analysis [rejecting segregation in public schooling] was fully developed in a decision issued by a federal judge.”

Waring was already persona non grata among the ruling figures of the state. Not only had his previous rulings displayed an absence of commitment to white supremacism, but he had also begun to do other things that markedly challenged Jim Crow orthodoxy. He desegregated his courtroom. He placed prospective black jurors on the same benches as prospective white jurors. He hired a black bailiff. He entertained blacks at his home and permitted them entrance through his front door. He declined to prevent his new wife from publicly castigating segregation. For these infractions, he suffered ostracism, attracted threats, had a cross burned on his lawn, had a brick thrown through a window at his home, and became the target of a campaign seeking his impeachment.

After his dissent in Briggs, however, the intensity of the enmity Judge Waring generated rose dramatically. He went from being viewed as an obnoxious oddball crank to a dangerous enemy—indeed, that worst of all enemies: a traitor. The Charleston News and Courier maintained, for example, that the ascendency of Waring’s views would lead to “mixed race schools” which would in turn lead to “the extermination of the white race.”

Many politically engaged blacks, of course, viewed matters differently. The president of the Charleston branch of the NAACP told Waring: “The people of my group have thanked God for you in the past. America will thank God for you in the future and at some later date the South will raise a monument to you.”

Soon after handing down his dissent in Briggs, Waring retired and moved to New York City, where he spent the remainder of his life. President Truman lauded him as “a very great judge.” The New York Times observed that he had served with “courage, integrity and intelligence.” Even his hometown adversary, the News and Courier, complimented him, albeit equivocally, writing that but for his “crusading on the Negro question,” Waring had made “an excellent record on the bench.”

Judge Waring lived to see the Supreme Court follow him in finding racial segregation in public schooling to be unconstitutional. It did that, of course, in a bundle of cases known as Brown v. Board of Education. Although one of those cases was Briggs, Chief Justice Earl Warren’s famous opinion in Brown made no mention of Waring’s prescient dissent.

Waring died on January 11, 1968. For years his legacy sank into obscurity. Then, in 1987, Professor Tinsley E. Yarbrough wrote a thorough biography, A Passion for Justice: J. Waties Waring and Civil Rights. In 2011, the South Carolina Supreme Court Historical Society sponsored a two-day conference on Waring. In 2015, a statue outside the federal courthouse in Charleston was erected to memorialize him. The next year, the federal courthouse itself was named in his honor due to a remarkable turnabout. The courthouse had already been named in honor of former United States Senator Ernest “Fritz” Hollings, a segregationist in the 1950s. Hollings asked that his name be removed from the building in favor of Waring. As Hollings explained it, displaying rare humility in a politician, he had simply raised the money for the courthouse, while Waring had “made history in it.”

Judge Gergel crafts incisive profiles of the people that animate Unexampled Courage—Isaac Woodard, who lived a difficult, scuffling life at the end of which he died apparently unaware of his own historical significance; President Truman, who surprised many with the strength and sincerity of his contributions to the black freedom struggle; George Elmore, the hero of black enfranchisement in South Carolina who died penniless because of his lawsuit; Walter White, the multitalented, effervescent executive secretary of the NAACP who looked white but identified as a black man; and Lynwood Shull, Woodard’s assailant, who died at age 92 and was remembered in his community “as a kindly and faithful elderly usher at the local Methodist church.” Judge Waring, though, is the figure upon whom Gergel lavishes the most empathy.

Although Gergel's depiction of Waring is persuasive, there is one issue regarding which his admiration appears to have prompted him to back off from a more probing examination of his hero. Gergel notes that Judge Waring's conduct in Briggs was highly irregular. Recall that Judge Waring had “advised” Thurgood Marshall to attack segregation more frontally than he had initially intended to do. “A natural question,” Gergel writes, “is whether Waring should have been disqualified to sit on the [Briggs panel].” Gergel contends that what might now seem to have been an infraction of judicial ethics was not really a violation because, back then, “judicial standards of conduct were far different in practice from what they are today.” That defense is untenable.

Judge Waring crossed the line of judicial impropriety when he offered advice to Thurgood Marshall and then adjudicated the legal status of that advice. Furthermore, he crossed the line again when he offered suggestions to NAACP lawyers on how best to present their case in their appeal to the Supreme Court. Admirers of Judge Waring can take the position that, despite his breach, he is entitled to praise because of the good that he attempted to accomplish. Or they can take the position that in certain circumstances judicial propriety should be subordinated to other priorities and that this was one of those circumstances.

Clearly, though, Judge Waring transgressed conventional judicial ethics.

Judges were and are expected to forgo playing a role as an advocate in cases they adjudicate. But by the time of Briggs, Professor Yarbrough writes, “Judge Waring was no longer concerned with proper judicial behavior. … [H]e was like a disciple with a mission, and one essentially religious in its intensity. … He had drafted the first modern judicial ‘sermon’ repudiating [segregationist] doctrine. And he now could not bring himself simply to sit idly by while hiscause moved through the appellate process.”

In Unexampled Courage, Judge Gergel continues a mission on which he and his wife Belinda Gergel (to whom the book is dedicated) have long been embarked: bringing to the fore a full, nuanced, forthright, unblinking history of the South. Gergel has been in the forefront of efforts to honor figures who have wrongly been ignored or vilified. He contributed significantly to the campaign that led to rehabilitating the reputation of Jonathan Jasper Wright, who sat in South Carolina in the 1870s as the country’s first black state Supreme Court justice. He also contributed to the campaign that led to the long overdue public valorization of Matthew Perry, the Palmetto State’s leading civil rights advocate in the 1950s and 1960s and its first black federal judge (the federal courthouse in Columbia is named in his honor).

Gergel's hallmark is an emphasis on how people at every level contribute to the making of history. He insists, for example, that judges never make rulings alone. Without parties willing to make complaints, without communities willing to offer support, without lawyers willing to present cases, judges would be unable to do their part to advance the law. He makes that point memorably in Unexampled Courage. Hopefully it will nurture the ground from which will arise more effective efforts in our own time to confront the ongoing menace of racially motivated police violence.