Orders to Kill Read online

  Hanes and his son Art, Jr., were contacted by author William Bradford Huie of Huntsville, Alabama, who wanted exclusive rights to write James’s story. Huie had told Hanes that he could present the accused in a favorable light and that the sale of his writing would be the means of raising money for the defense.

  In early July 1968, Hanes made a trip to London, taking with him documents furnished by Huie. One was a very broad power of attorney, bestowing on Hanes the authority to act for James. In another document, James transferred to Hanes any monies that he would receive as a result of a subsequent agreement with Huie. These two documents were signed July 5, 1968.

  On July 8, 1968, Hanes and Huie executed an agreement giving Huie exclusive rights to produce literary material dealing with the case.

  After several days James decided to sign the agreement because he thought there was no other chance to raise money for his defense. Huie agreed to pay Hanes and James each 30 percent of the gross receipts from the literary works. James’s money was to go directly to Hanes for his defense. In September 1968, at James’s request, the July 8 agreement was amended whereby Hanes would receive a flat fee of $20,000 plus expenses. James asked for the change because he came to understand that Hanes was employed to handle the case only at the trial level, and he wanted to have available financial reserves for an appeal if necessary.

  The English magistrate’s decision to grant extradition was based largely on the affidavit of the state’s “eyewitness” Charles Q. Stephens. Having finally decided against an appeal on Hanes’s advice, James was extradited and flown to the United States on July 19, arriving at the Shelby County Jail early that morning.

  The conditions of James’s eight-month (July 19, 1968–March 10, 1969) confinement in the specially prepared jail cell were extraordinary. Guards were present at all times. Closed-circuit television cameras monitored every move, including the exercise of his natural bodily functions. Since multiple microphones allowed for total audio surveillance, in order to communicate privately James and Hanes had to get down on their hands and knees and whisper in each other’s ears. The cell area was brightly lit twenty-four hours a day; to sleep, James had to cover his eyes with a cloth. There was no natural light, no fresh air. The guards kept a log that recorded all visitors. In addition to the constant surveillance, all of James’s mail was screened, including correspondence with his attorneys, with copies provided to the prosecutor’s office. Trash from the cell, including James’s notes prepared for discussions with his attorney, was also periodically screened and turned over to the prosecutor.

  The impact of these conditions eroded James’s physical and mental health to the point that by late February 1969 his capacity to resist pressure (from his second attorney, Percy Foreman) to enter a plea, had become greatly diminished.

  Art Hanes and his son told me that they were ready to go to trial by November 12, 1968. They felt that they had prepared their case well and believed that the state wouldn’t be able to prove James guilty beyond a reasonable doubt. The senior Hanes stressed that James never authorized him to plea bargain with the attorney general. He always insisted on a trial. Hanes recalled that at an early stage the state did offer a life sentence in exchange for a plea. James refused.

  During the pretrial period, Huie asked James questions through Arthur Hanes. Hanes would deliver Huie’s inquiries to his client. When James responded in writing, Hanes would take the answers back to Huie. After some time Huie invited Jerry Ray to visit him at his home in Huntsville, paying his way. At that meeting he asked Jerry to talk with his brother to convince him not to take the stand in his own defense. Jerry was convinced that Huie didn’t want James to testify because any testimony he gave would be in the public domain and therefore decrease the value of Huie’s book.

  Jerry, furious, told James that Hanes was in collusion with Huie and advised his brother to get another lawyer. He suggested Percy Foreman (the so-called Texas Tiger) because of his reputation as an aggressive criminal defense lawyer. James said he didn’t want Foreman, but the local Memphis lawyer they contacted, Richard J. Ryan, indicated that the case was too big for him. Jerry then contacted Percy Foreman on his own. Foreman agreed to take the case but wanted a letter from James requesting a visit before he would go down and see him. James refused, saying he would go to trial with Arthur Hanes.

  Jerry again called Foreman who asked him to bring copies of the contracts James had signed with Hanes and Huie and meet with him. On November 10, two days before the trial was to begin, Jerry and John Ray met Percy Foreman at the Memphis airport. Foreman read the contracts and said, “I can break these, let’s get a cab and go and see your brother.”

  James had always wondered how Foreman actually got in to see him that first time. Art Hanes answered the question for me. He said that Sheriff Bill Morris had told him that when Foreman appeared at the jail that first time, the jailer called him and then put the visit on hold while Morris consulted with Judge Battle. To Morris’s surprise, Battle was receptive to the visit and told Morris to let the Texas lawyer go in and talk to James. Thus it appears that for whatever reason, the trial judge actually facilitated the removal of the Haneses from the case on the eve of the trial.

  In the course of that meeting Foreman told James that if he continued with Hanes, he would probably be “barbecued.” Foreman promised not to get involved in any type of book contract until the trial was over. He quoted a fee of $150,000 including appeals.

  James had become convinced that Hanes was working for Huie and Huie was releasing information to the FBI because the bureau was somehow able to follow leads he provided to Huie, turning up promptly after he had provided him with the confidential information. Foreman capitalized on this, putting enormous pressure on James to retain him, passionately criticising the relationship between Hanes and Huie as a conflict of interest that was probably going to cost James his life.

  On the evening of November 10, Hanes was handed a letter summarily dismissing him. He offered Foreman his time and the benefit of his experience in preparing the case but Foreman didn’t seem interested. Because Judge Battle perceived Foreman to be unwell and was concerned about his frequent absences from the court, he appointed public defender Hugh Stanton Sr. as associate defense counsel on December 18, 1968. Eventually Stanton’s status was elevated to that of co-counsel. Foreman obtained an extension of the trial date and then moved to establish his own contractual relationship with Huie, which was concluded on January 5, 1969. He also suggested that Jerry meet with writer George MacMillan, who, along with his wife, has long been associated with U.S. intelligence.

  To this day, James regrets having retained Foreman. If nothing else, Foreman’s poor health was an obvious impediment to competent representation. During this time Foreman was on three types of medication daily as a result of a car accident. He had fairly recently testified under oath that it was impossible for him to sleep properly or to sit and concentrate for any period of time. Consequently, he stated, he was not able to take any major cases by himself. He was also in trouble with the federal government on tax and other charges.

  After a couple of weeks Foreman contacted Hanes in Birmingham, asking for a meeting. Hanes, Sr., told me that they spent two or three hours with him, then took him to dinner, surprised by his nonchalance and lack of specific thoughts in preparing for the trial.

  In a drastic change of position, on February 13, 1969, Foreman brought a letter summarizing his advice to his client to plead guilty, with a list of reasons. A surprised James signed the letter, not in agreement but only in acknowledgment of having received the advice, making it clear to his agitated lawyer that he had no intention of entering a plea. From then on Foreman began pressing James to enter a plea of guilty.

  James was completely opposed to the idea. In fact on February 17, in a letter to his brother Jerry, James wrote:

  Dear Jerry:

  I thought I would answer your letter. I guess you read that they postponed the trial until April 7
. I look forward to going to trial sometime in April, probably the last part.

  Undeterred by James’s recalcitrance, Foreman brought him fifty-six stipulations of fact prepared by the prosecutor and aggressively pressed him to agree to all of them and plead guilty. He hammered away at James relentlessly, telling him, “They’re gonna fry your ass if you don’t” (despite the fact that no one had been executed in Tennessee in many years, that the overriding political sentiment in the state was against the death penalty, and that the King family had expressed their opposition to using it in the case). Foreman also assured him that his aging father would be sent back to Idaho, where he had been a minor parole violator, forty-odd years earlier, if James did not plead guilty. He stated that the press had convicted him anyway and that no Memphis jury would acquit him. Finally, and according to James most importantly, he told him that if he went to trial he couldn’t guarantee to put forward his best effort as defense counsel.

  James ultimately came to believe that Foreman would throw the case if he didn’t agree. He was certain that the judge wouldn’t let him substitute another attorney so late in the proceedings, but he reasoned that if he made a deal he could get rid of Foreman, get another lawyer, and open up the case all over again. He finally agreed to enter the plea in exchange for Foreman paying a sum of money to his brother Jerry so that they could hire a new attorney and open up the case. This they indeed did, hiring local attorney Richard Ryan shortly after the hearing.

  On Friday, March 7, Foreman arrived at the jail at 7:45 a.m. to make sure that James was in the proper frame of mind and that everything was ready for a smooth entry of the plea. Foreman agreed in writing to provide Jerry with a loan of $500 “contingent upon the plea of guilty and sentence going through on March 10, 1969, without any unseemly conduct on your [James’s] part in court.”

  The transcript of the March 10, 1969, court hearing supports James’s assertion that all he meant to do was plea bargain on the charge without admitting guilt. He admits that there was overwhelming evidence that he was in the area and somehow involved, however unknowingly. Thus being tied to the events and having bought a gun found at the scene, he believed that he might indeed be “legally” guilty. At one point, in response to a question of guilt, he explicitly said, “Yes, legally, yes.” He made a point of interrupting the proceedings at one stage to refute the popular notion that there was no conspiracy.

  James was sentenced on March 10, 1969, to ninety-nine years, the most severe sentence aside from death that he could receive. Three days later he began a struggle for a trial, shortly thereafter hiring attorney Ryan.

  On March 31, 1969, Judge Battle was considering James’s motion to vacate his plea and obtain a trial, when he died of a heart attack at his desk. In fact, he was found with his head on James’s motion papers. The law at the time in Tennessee stated that if a judge died while considering such a motion, the motion was automatically granted. In the only other case where a judge died while considering such a motion, the petitioner was given a new trial. Technically speaking James’s motion for a trial also encompassed setting aside his guilty plea, but the principal aim of the statute—to grant the relief sought when the judge most familiar with the issues is removed from the scene—surely applies in such a case. However, James’s motion was denied in 1969, as was each and every subsequent petition for relief. By 1988 James had accumulated a history of refusals by the courts to hear new evidence.

  I was amazed at the predicament James had found himself in. Foreman had backed him into a corner, where he felt the only way out was to enter a plea to get rid of him and be paid for doing so to have funds to hire another lawyer, who would then have to undo the plea. Despite the conflict of interest, Hanes had conducted a serious investigation and was confident that he would obtain an acquittal, whereas it appeared that Foreman had never intended to go to trial. As to the sufficiency of the defense investigation of the case, Foreman would later contend under oath that he had some six or eight student investigators working on the case, but he was unable to remember their names and he admitted that he didn’t keep any written notes or pay records. He said he paid them in cash.5 He maintained that he himself continued interviewing witnesses “just up until the day Ray told me he thought it was best to enter a plea of guilty in consideration of a waiver of the death penalty and that was in the first few days of February….”6 This contention must be viewed in the light of the letter which James wrote to his brother much later —February 17, 1969—in which he said he was looking forward to going to trial in April.

  Foreman also maintained that James told him he had intentionally placed fingerprints all over the gun. “He told me he didn’t wipe them off, that he wrapped the gun up to keep the fingerprints from being wiped off.7 He told me why. He wanted the boys back at Jefferson City to know that he had done it.”

  These statements were unlike any other version of the events and issues. In all the sessions I spent with James Earl Ray, he never agreed with the position put forth by Percy Foreman, and it is inconceivable to anyone else I know who has been close to the case, including the Haneses, that he could have made these remarks.

  Foreman maintained that at their first meeting James told him that Arthur Hanes wanted him to plead guilty but that he did not want to. This is the only time I ever heard it alleged that James thought Hanes wanted him to plead guilty. This unsubstantiated allegation is vehemently denied by the Haneses and calls forth the greatest anger from James, who has consistently maintained that the man he came to call Percy “Four-flusher” harassed and tormented him until he agreed to enter the plea.

  Twelve years after the guilty plea, James discovered further behind-the-scenes maneuverings. He learned of the existence of certain handwritten notes made during the course of the guilty plea negotiations by the district attorney general, Phil Canale, who finally provided them to the HSCA in 1978. James was not able to obtain a copy of the notes until around 1981. They revealed that Judge Battle had appointed public defender Hugh Stanton, Sr., as associate counsel with Foreman on December 18, 1968, and within hours of being appointed Stanton was in Canale’s office offering to plead his new client, whom he had never seen. The negotiations continued for more than two months without James’s knowledge. Prosecutor Canale’s notes also made it clear that Judge Battle himself played an active role in these discussions; Foreman subsequently confirmed that he had regular direct ex parte discussions with the judge. At one point, the notes indicate that Judge Battle actually passed messages from Foreman to Canale. For a trial judge, this activity was clearly improper and demonstrates the lengths to which all sides—with the exception of the actual defendant—were willing to go to avoid a trial.

  The Canale notes also revealed that Stanton had a conflict of interest stemming from his previous representation of the state’s primary witness against James—Charles Q. Stephens—and that the district attorney general raised this issue in passing with Stanton, who dismissed it out of hand.

  James’s latest petition for relief and his eventual appeal were founded largely on the revelations contained in the notes and on the fact that the notes were withheld from him. There were material constitutional arguments in support of James’s appeal.

  Hugh Stanton’s conflict of interest was a classic. He had been appointed to represent James (and in light of the concern about Foreman’s health had been raised to the status of co-counsel) by Judge Battle, the same judge who at an earlier hearing in July 1968, when the state sought a protective custody order against Stephens, had appointed him to represent Stephens.

  Thus we had a defense co-counsel who had, in the same case, within the previous six months represented the primary prosecution witness against the defendant. In addition, Charlie Stephens had applied for the publicly offered reward for providing identification of James and thus also had a financial interest in the conviction of the person he identified. Obviously, vigorous cross-examination of Stephens would be required at trial for an effective defense. Th
is meant the case couldn’t go to trial because if it did Stanton would be precluded from examining Stephens because he had no waiver from him. Thus James would have been unable to confront the main witness against him.

  This scenario appeared to be a blatant violation of James’s Sixth Amendment rights to independent counsel and the right to confront an accuser. The Supreme Court has thrown out and condemned convictions where lesser conflicts of counsel have existed.

  Thus, I felt I had good cause to hope the appeal I filed on James’s behalf would succeed, yet the attorney general’s answer brief ignored the major issues of law that were raised. My first reaction was that the state’s brief was neither carefully nor thoughtfully prepared, and I was therefore inclined to believe that the state knew something I didn’t.

  I prepared and filed a brief and then a reply brief with the Sixth Circuit Court of Appeals and waited for oral argument to be scheduled. I was looking forward to the opportunity of advancing the principal issues to the three-judge appellate panel in Cincinnati. It seemed that the state had no effective rebuttal, and it was my intention to drive this point home to the court.

  There was no chance. The court ruled that the appeal be denied and that oral argument was unnecessary. I applied for a hearing and reconsideration en banc—before the full court. This was denied.

  Subsequently, on June 19, 1989, I filed a petition for a review by the U.S. Supreme Court (certiorari). This was a last resort. If the Supreme Court denied James’s appeal, it would be fundamentally changing the law by denying the timeless right of the accused to confront his accuser. This would make a mockery of the U.S. justice system and give prosecutors and trial judges everywhere unprecedented power to deprive a person of his liberty. In any other case this would be unthinkable.