Orders to Kill Read online

  In addition to the petition filed, the producers of the BBC television documentary Inside Story: Who Killed Martin Luther King? which was aired in September 1989 and which raised many of the unanswered questions about the case, sent a video copy of the program to each member of the Supreme Court. All fell on deaf ears. Certiorari was denied on October 30, 1989. The trial that James Earl Ray had so long been denied seemed to be as far away as ever.

  PART IV

  The Television Trial of James Earl Ray

  18

  Preparations for the Television Trial of James Earl Ray: November 1989–September 17, 1992

  I WAS DISAPPOINTED, saddened and angry. The court’s refusal to consider the serious issue of defense counsel’s conflict of interest was demoralizing, not only in respect of James’s case but also in its denial of what I had always regarded as a fundamental right of a criminal defendant. More than ever I became convinced that inevitably such politically sensitive cases were subject to different standards of law and procedure and that James would not be set free unless his actual innocence was proven.

  If the Supreme Court would not grant James a trial, I would find another way to get his case heard. During 1989 I began to flesh out the bones of the idea of a television trial. It would have to be unscripted, featuring real evidence, witnesses, judge, and counsel before an independent jury. It would also have to be conducted strictly according to Tennessee law and criminal procedure. James liked the proposal from the outset. He knew that the revelations of one or another documentary had never generated enough public support from which he could benefit. He believed that if he could tell his story to an independent jury he had a good chance of winning, even though material evidence contained in federal government files pertaining to the case continued to be sealed and unavailable to the defense.

  I spent two years getting nowhere. Finally, Thames Television in London expressed interest in producing the program. However, since Thames was to lose its franchise the following year and thus not be able to broadcast the program, it would have to arrange a sale to another broadcaster. In addition, a U.S. joint venture partner was needed to share the costs.

  In early 1992 I signed a contract with Thames. It was agreed that both counsel and the judge would be paid reasonable professional fees. I insisted that the Ray family also be paid a fee. Thames promised that the investigation on both sides would be amply and equally funded. This commitment included funds not only for the extensive field investigation required but also the costs connected with the travel and accommodation of the defense team and witnesses. Eventually, however, the defense expense allocation was substantially less than what was required, so I had to personally subsidize the defense costs.

  In Memphis I introduced Thames producer Jack Saltman to my local investigator, Ken Herman, who would provide him and his team with a wide range of introductions and assistance during this period of the project.

  Saltman finally settled on former U.S. attorney Hickman Ewing, Jr., as the prosecutor. Hickman had been the U.S. attorney for the Western District of Tennessee for about ten years. Before that he had been the assistant U.S. Attorney with primary trial responsibility and was an experienced prosecutor. To maximise credibility I had hoped that Hickman might involve, as second chair or in some other capacity, Robert “Buzzy” Dwyer or Jim Beasley, who had been the front-line prosecutors in 1968. However, Hickman selected as second chair Glenn Wright, a black former Shelby County assistant attorney general who was then in private practice. My second chair was April Ferguson, a U.S. federal public defender at the time.

  For the judge, Hickman accepted my proposal of Marvin E. Frankel, a federal district court judge now practicing law in New York City. Judge Frankel had also previously taught evidence at Columbia Law School and was well regarded in New York legal circles. I understand that from the outset he was excited about the idea.

  The jury was selected from a pool of citizens initially secured by a consultant search group. They came from Illinois, Nebraska, Iowa, and Texas and completed questionnaires and submitted to videotaped interviews. Hickman and I eventually agreed on twelve jurors and two alternates.

  In Memphis, we found support and encouragement for the project. By now the city had a black administration. In addition to a black mayor and a black director of police and fire, the criminal court clerk’s office, where all of the physical evidence in the King case was held, was administered by a black, elected clerk—Minerva Johnican—who offered to do everything she could to assist.

  However, John Pierotti, the Shelby County district attorney general, was white. Though he had ultimately succeeded his mentor Phil Canale, who was the attorney general in 1968, Pierotti told us early on that he had no interest in covering up any aspect of the King case and offered whatever support he could give. Saltman was ecstatic. I was much more guarded, expecting doors to close at any moment.

  We gained access to the attorney general’s investigatory file because James had previously obtained a court order to that effect. I hoped to undertake extensive ballistics and neutron activation tests on the rifle, the evidence bullets, and the death slug and to arrange for DNA testing on certain other items.

  The American cable producers Home Box Office (HBO) and Thames requested access to and the right to use, if not conduct tests upon, the physical evidence in the clerk’s office. The application to the criminal court went before Judge John P. Colton, Jr., who at the outset was enormously positive and receptive. He had a reputation for fairness and openness. Local counsel told us we were fortunate to be in his particular court.

  The motion was delayed to give the state attorney general an opportunity to reply. The office responded by stating that it had no objection to the production having access to the evidence inside the clerk’s office but that it was opposed to any removal of evidence from that office and also to any testing of the rifle, the evidence bullets, or any other items. It became clear that this was the best agreement we were going to get from the attorney general’s office; practically speaking, every indication was that the attorney general’s opposition would be upheld by the Tennessee courts. A consent order was drawn up and agreed to by the attorney general and ourselves, allowing limited access to the evidence within the clerk’s office.

  With agreement by all parties, and no opposition in sight, I traveled from England to Memphis, arriving around 4:00 p.m. on Friday, June 5, 1992. I was met by Ken Herman, whose first words, “Maybe they’ll listen to you now,” stopped me in my tracks. Barely an hour earlier, Judge Colton had, on his own motion, ordered that the evidence not be made available at all, for any purpose. This inexplicable action confirmed that twenty-five years later, nothing had really changed.

  Among the reasons for Colton’s ruling was his purported concern that James could be prejudiced in the event that a real trial was granted one day, and that James had an appeal pending before the state supreme court. The fact that James had earlier submitted an affidavit stating that he supported the proposed access to the evidence and waiving any future right to complain, was dismissed by the judge who went so far as to question James’s mental state, unbelievably expressing concern about whether he was able to give informed consent. It was ironic: we were attempting to gain access to evidence to provide a television trial precisely because James had been unable to get an official trial for twenty-four years, yet this judge, whose predecessors and court had denied every post-conviction relief petition during that period, denied even the most minimal access to evidence, purportedly to protect James in the event he one day got an official trial.

  The judge also seemed to ignore the fact that other media representatives had been routinely given permission to view and photograph the evidence, which after all was all that our consent order allowed.

  The court’s action stunned everyone. Had something or someone caused Colton to do a dramatic and uncharacteristic about-face? Even some of his friendliest colleagues couldn’t explain his action.

  Early the n
ext morning we drove furiously to the Riverbend maximum security prison in Nashville where James had been transferred. James decided to withdraw his pending appeal, thus eliminating one alleged objection set out by the judge. I was impressed by his calm, indeed philosophical, reaction. He immediately saw the political nature of the judge’s decision. For him it was one more example of the double standard that had long hindered his case.

  At the subsequent hearing, with all parties in agreement, the judge listened politely, complimented counsel on their presentations, and reserved his decision. Ten days later he denied the motion and made his order permanent.

  HBO pursued an appeal. Given the scheduling of cases, I knew that this would get us nowhere, and the lawyers’ bills would further drain the budget.

  Shortly afterward we discovered that after issuing an order in our case, Judge Colton had allowed a television station to film the evidence. We promptly requested equal right of access. He couldn’t deny our request, and we were finally able to examine and photograph the physical evidence within the confines of the clerk’s evidence room.

  Early on I insisted that we take James’s testimony in the prison before the beginning of the production. I wanted to have him undergo direct and cross-examination, under oath, before the judge, just in case, for whatever reason, the state authorities decided not to allow him to participate. We also wanted to safeguard against anything happening to him before his actual testimony.

  Meanwhile, Ken Herman was sent to find out whether Charlie Stephens was still alive. There was a rumor that he had been seen in a Memphis tavern within the last year. We and others had believed that Stephens had been dead for a number of years. Herman was unable to find Stephens. Then, at the dirt-floor house where Stephens’s brother and closest living relatives still lived, he learned that two FBI agents had come down there with Charlie in the late 1970s and had stayed for about two weeks in the area. Eventually, a job had been arranged for Charlie in Fort Smith, Arkansas, and he moved there. The family told us that they had received word from Little Rock in the summer of 1979 that Charlie had died of a heart attack, but they never saw the body, which had been cremated. Ken went to Little Rock and concluded that Stephens had in fact died there in August 1979.

  In New York in early August I visited and interviewed Earl Caldwell, who was currently writing for the New York Daily News. His description of events surrounding the killing cast much doubt on the official version. Caldwell, who had previously been interviewed for the BBC documentary, was a New York Times reporter in 1968 assigned to cover Dr. King’s April visit to Memphis. He told me that the Times national editor, Claude Sitton, said he had heard Dr. King had lost control of his group, and that he wanted Caldwell to “nail” him. Caldwell was dumbfounded. He decided he would simply do his job. He certainly was not about to play a part in any effort to “nail” Martin Luther King.

  Caldwell stayed in room 215 on the ground level of the Lorraine, near the southern end, or Butler Street side of the motel (see Chart 1). At about 6:00 p.m. on April 4 he was standing in the doorway of his room in his shorts when he heard what he thought at first was a bomb explosion. He was looking at the brush area at the rear of the rooming house on the other side of Mulberry Street and saw a figure in the bushes, a white male wearing what appeared to be coveralls. The man was crouched or semicrouched in the midst of the high bushes and was staring at the balcony. Caldwell was astonished when told (and shown pictures) later on that there was no brush; that the area was actually wide open and that a sniper would have had no place to hide.

  He didn’t see a gun in the hands of the man, and he was quickly distracted by Solomon Jones, who began driving the car back and forth frantically in the driveway of the motel. When Caldwell looked back to the brush area, the man had disappeared. He soon learned that Dr. King had been shot. (Though Caldwell was unaware of it, soon after the shooting Solomon Jones told the assembled national media that he had seen a man come out of the bushes at the time of the shooting, make his way over the wall, actually enter the Lorraine property, and then slip away. Desperate to follow, he tried to find a way out of the Lorraine Motel parking area, becoming hysterical when he couldn’t find a clear path to drive out, because he believed that the shooter was getting away—hence the furious maneuvering back and forth of the car, seen but not understood by Earl Caldwell.)

  Caldwell said that at various times he had written about what he had seen, although not in the Times because it had a policy of not allowing reporters to inject their views into a news story. He was never interviewed by the FBI or any other police authority and was not called to testify by the HSCA, so his observations were effectively buried.

  IN AUGUST 1992 I began reviewing and copying the attorney general’s files, a process that would go on for months. With each visit to Memphis the list of names of people to be interviewed grew.

  The four-drawer metal cabinet containing the files had about eight thousand pages of documents, reports, and materials developed from the MPD and FBI investigations of the case. I initially focused on material that would be relevant to James’s testimony. Much of the documentation in the form of copies of James’s receipts, canceled checks, and correspondence simply corroborated his version of events.

  The primary document was the 1968 MPD investigation report and its many supplements, which contained statements from the police and firemen on duty in the area of the murder scene that day; it also had statements of other people who were in and around the South Main Street area at the time. Its conclusion: that the shot was fired from the bathroom and that the killer ran down the north, front stairs of the rooming house carrying a bundle of belongings that included the murder weapon, exited through the front door, and headed south toward his car, which was parked in front of Canipe’s. It postulated that he saw a police car, which was part of TACT unit 10, whose members were then on break at the fire station, parked up to the sidewalk in the driveway of the fire station, panicked, and dropped the bundle in Canipe’s doorway and then got into the Mustang and drove off. All this must have been accomplished in under two minutes of the shooting, because that was how long it took Lt. Bud Ghormley to reach the bundle, with Deputy Vernon Dollahite arriving from the opposite direction soon after. (There was no mention of the other Mustang that James McCraw and others saw in front of Jim’s Grill, which was where James said he had parked and left his car until he drove away shortly before 6:00. The report concluded that James had driven his car to the York Arms Store when he went to purchase the binoculars and then returned and parked in front of Canipe’s.)

  MY ASSISTANT, JEAN, flew in from London to help with my sessions with James, which began on Saturday, August 22. Our preparation lasted ten or more hours a day. We intensively went over his story and the various statements he had made over the years. The inevitable memory lapses concerning various details had to be confronted and explained. We began in the beginning, with his childhood.

  I wanted James to emerge as the type of person I knew him to be rather than the violent racist the media had portrayed. While growing up, he had little contact with blacks, but he remembered shooting dice with blacks at the bus stop on his way home from the shoe factory when he was working there. He evinced no hostility toward blacks whatsoever and his employers at the Indian Trails restaurant in Illinois had said he got along very well with his fellow workers, most of whom were minorities. They were sorry to see him go.

  James was basically shy, with average intelligence and an understated sense of humor. He bought a gun only when he needed it for a job; he didn’t routinely carry a weapon. His source, inevitably, was one or another “fence.” He had no experience with a rifle outside of his army training. In the army he qualified as a marksman, which was the lowest rating possible and a requirement of basic training.

  He had never fired at another person and in fact only ever loaded his six-shot pistols with five bullets, leaving the firing chamber empty, which would require pulling the trigger twice to fire the gun. (
For example, as mentioned earlier, when he was arrested at Heathrow Airport he had only five bullets in his six-chamber revolver.) He followed this practice to avoid accidentally discharging the gun, which was a real possibility as far as he was concerned. Early in his criminal activity, when approaching the scene of a planned burglary, the owner of the premises yelled at him and he fled frantically, tripping and discharging the weapon, shooting himself in the foot.

  There was no doubt that he was an incompetent, petty criminal—a bungler. On more than one occasion he either failed to get to the scene of a planned crime, got there too late, or was arrested soon after fleeing. Once, while robbing a store, he took off his shoes to move about quietly. He saw police outside and panicked, running away in his stocking feet and carrying on for miles before putting on a pair of women’s shoes that he found along the way. He did this, he said, because he didn’t want to look conspicuous as he approached a town. He was picked up soon after. He was easily led and had a proclivity for meeting in bars his various companions in crime who would propose illegal operations. This tendency was particularly important in light of his assertion in the King case that he was a patsy following the instructions of a handler named Raul whom he also met in a bar—the Neptune in Montreal.

  I asked James about the Atlanta map found in his apartment in Birmingham. Although he said he did mark the map, he denied making any marks associated with Dr. King’s residence, church, and SCLC office. He said that he invariably bought a map when he traveled to a new area and would routinely mark it to get his bearings.

  Regarding his movements on the afternoon of the killing, he basically confirmed his earlier story. He said he had walked to the York Arms Store to buy the binoculars, ending up covering the ground twice since he didn’t go far enough the first time, and returned to ask Raul for further instructions.