JOURNAL - IN THIS ISSUE Combating an Eviction Crisis page 9 Trial of the Greensboro Klan, Nazi, Communist Shootout page 12 - North Carolina State Bar
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THE NORTH CAROLINA STATE BAR
JOURNAL
SPRING
2021
IN THIS ISSUE
Combating an Eviction Crisis page 9
Trial of the Greensboro Klan, Nazi, Communist Shootout page 12
How to Plan for a Sabbatical page 18
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THE
NORTH CAROLINA
STATE BAR
JOURNAL
FE AT U R E S
Spring 2021
Volume 26, Number 1
6 The Day North Carolina Voted “Nay”
Editor to History
Jennifer R. Duncan By Philip Gerard
9 Combating an Eviction Crisis in the
Midst of a Global Pandemic
© Copyright 2021 by the North Carolina By Holly Oner
State Bar. All rights reserved. Periodicals
postage paid at Raleigh, NC, and additional 12 A Common Defense—The Defense
offices. Opinions expressed by contributors Case in the Trial of the 1979 Greensboro
are not necessarily those of the North
Klan, Nazi, Communist Shootout
Carolina State Bar. POSTMASTER: Send
By Thomas J. Keith
address changes to the North Carolina State
Bar, PO Box 25908, Raleigh, NC 27611. 18 Turn Your Dreams of a Sabbatical
The North Carolina Bar Journal invites the
submission of unsolicited, original articles,
into Reality
essays, and book reviews. Submissions may By Mark P. Henriques and Bruce L. Kaplan
be made by mail or email (jduncan@
21 The Mysterious and Unbelievable
ncbar.gov) to the editor. Publishing and edi-
torial decisions are based on the Publications Case of the Batboy and the Hot Dogs
Committee’s and the editor’s judgment of By Camille Stell
the quality of the writing, the timeliness of
the article, and the potential interest to the
24 We Don’t Shake Hands Anymore
readers of the Journal. The Journal reserves By David Bannon
the right to edit all manuscripts. The North First Prize in the Pandemic Writing Competition
Carolina State Bar Journal (ISSN 10928626)
26 Book Review: A Warren Court of Our
is published four times per year in March,
June, September, and December under the Own: The Exum Court and the
direction and supervision of the council of Expansion of Individual Rights in
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Cover photo: ©iStockphoto.com/Bill Oxford
T H E N O RT H C A RO L I N A S TAT E B A R J O U R N A L 3
D E PA RT M E N TS 35 Pathways to Well-being B A R U P D AT E S
5 President’s Message 37 IOLTA Update 43 In Memoriam
30 The Disciplinary Department 38 Proposed Ethics Opinions 48 Client Security Fund
31 Upcoming Appointments 42 Rule Amendments 49 Law School Briefs
32 Legal Specialization
33 Lawyer Assistance Program
Officers 16: Dorothy Hairston Mitchell, 40: Anna Hamrick, Asheville
Durham 41: H. Russell Neighbors, Marion
Barbara R. Christy, Greensboro William S. Mills, Durham 42: Michael A. Lovejoy,
President 2020-2021 17: Charles E. Davis, Mebane Hendersonville
Darrin D. Jordan, Salisbury 18: Charles Gordon Brown, Chapel Hill 43: Gerald R. Collins Jr., Murphy
President-Elect 2020-2021 19: William C. Fields Jr., Raeford
Marcia Armstrong, Smithfield 20: Joshua Dale Malcolm, Pembroke Public Members
Vice-President 2020-2021 21: Vacant Patricia Head, Littleton
C. Colon Willoughby Jr., Raleigh 22: Matthew W. Smith, Eden Dr. Joseph E. Johnson, Greensboro
Past-President 2020-2021 23: Thomas W. Anderson, Pilot Mohan Venkataraman, Morrisville
Alice Neece Mine, Chapel Hill Mountain
Secretary-Treasurer 24: Patrice A. Hinnant, Greensboro Executive Director
Stephen E. Robertson, Greensboro Alice Neece Mine
Councilors 24H: Kathleen E. Nix, High Point
By Judicial District 25: Jay White, Concord Assistant Executive Director
1: C. Everett Thompson II, Elizabeth 26: David N. Allen, Charlotte Peter Bolac
City Robert C. Bowers, Charlotte
2: Thomas D. Anglim, Washington A. Todd Brown, Charlotte Counsel
3: Robert C. Kemp III, Greenville Mark P. Henriques, Charlotte Katherine Jean
4: Scott C. Hart, New Bern Dewitt McCarley, Charlotte
5: Kevin Joseph Kiernan, Clinton Gena Graham Morris, Charlotte Editor
6: W. Allen Cobb Jr., Wilmington Eben T. Rawls, Charlotte Jennifer R. Duncan
7: Takiya Fae Lewis, Ahoskie 27: Jennifer Davis Hammond, Salisbury
8: Charles S. Rountree III, Tarboro 28: John Webster, Albemarle Publications Editorial Board
9: C. Branson Vickory III, Goldsboro 29: Richard Costanza, Southern Pines Stephen E. Robertson, Chair
10: Julie L. Bell, Raleigh 30: H. Ligon Bundy, Monroe Thomas W. Anderson, Vice-Chair
Heidi C. Bloom, Raleigh 31: George M. Cleland IV, Winston- Julie L. Bell
Walter E. Brock Jr., Raleigh Salem Heidi C. Bloom
Theodore C. Edwards II, Raleigh Kevin G. Williams, Winston- Andrea Capua
Katherine Ann Frye, Raleigh Salem Margaret Dickson (Advisory Member)
Fred M. Morelock, Raleigh 32: Daryl G. Davidson, Taylorsville Anthony S. diSanti (Advisory Member)
Robert Rader, Raleigh 33: Roy Lawrence McDonald II, Mark P. Henriques
Warren Savage, Raleigh Lexington Camille Stell (Advisory Member)
11: James Thomas Burnette, Oxford 34: John S. Willardson, Wilkesboro John Webster
12: Eddie S. Winstead III, Sanford 35: Andrea N. Capua, Boone G. Gray Wilson (Advisory Member)
13: Dionne Loy Fortner , Smithfield 36: M. Alan LeCroy, Morganton
14: Harold Lee Boughman Jr., 37: Clark R. Bell, Asheboro
Fayetteville 38: Michael Randalph Neece, Gastonia
15: Michael R. Ramos, Shallotte 39: Rebecca J. Pomeroy, Lincolnton
4 SPRING 2021
T H E PRES I DE NT’S M ES SA GE
“We are not makers of history.
We are made by history.”
—Martin Luther King Jr.
B Y BARB ARA R. C H R I S T Y
M
artin Luther King Jr. to help women, the poor, and labor. Her pas- vote) to use their votes to advance voting
was partially right. We sions were evidenced by her participation in rights for all women. Her last public words
are definitely made by the NAACP, the Women’s Trade Union before she collapsed at the podium were,
history, League, the Equality League “President Wilson, how long must women
but we of Self Supporting Women in wait for liberty?” She died three weeks later of
are also making history. As I New York, the National pernicious anemia at the age of 30.
finish this article, I am watch- Child Labor Committee, and I will betray my age by telling you that I
ing a virtual inauguration in the National American loved Paul Harvey’s “The Rest of the Story”
front of a plaza filled with Woman Suffrage Association. which was a feature on his radio show in the
flags representing US lives Inez participated in her 1970s. He would tell an interesting story that
lost in a worldwide pandem- first suffrage parade in 1911 always had a twist at the end—the “rest of the
ic. The large amount of civil- carrying a sign that read, “For- story.” Well, the “rest of this story” is that
ian and military police is a ward, out of error,/Leave be- Judge Allegra Collins of the North Carolina
reminder of the deep division hind the night,/Forward Court of Appeals is the great niece of Inez
and simmering anger of through the darkness,/For- Milholland. Judge Collins is known to be an
many. History is being ward into light!” Because of analytical thinker, a thorough researcher, and
made. It seems perfectly fit- her passion, courage, and her an articulate writer. Like her Great Aunt Inez,
ting that against such a backdrop, this edi- striking good looks, she soon became the face she is an excellent athlete who used natural
tion of the State Bar Journal contains articles of the suffrage movement. On March 3, 1913, talent combined with discipline and determi-
about significant events that continue to the day before President Woodrow Wilson’s nation to play collegiate and professional ten-
shape our history. inauguration, Inez, 27 years old at the time, nis and to represent the United States in the
One of these articles is about North made a memorable appearance on horseback Pan American Games twice with the US
Carolina’s role, or lack thereof, in ratification at the Woman Suffrage Procession in Wash- Women’s Handball Team.
of the 19th Amendment a scant 100 years ington, DC, which she had helped organize. I love the parallels in these stories. Inez
ago. It brought to mind a story I heard recent- In today’s parlance, Inez “went viral” as Milholland made a public stand for women’s
ly about Inez Milholland. Born in Brooklyn, headlines called her “A Superwoman, a Rare right to vote in connection with the inaugura-
New York, in 1886, Inez attended Vassar Radiant Creature” and touted “The Beauty of tion of President Wilson. Now, 100 years after
where she was an outstanding student, thes- the Suffrage Workers.” Due to her popularity, that right to vote was granted, Kamala Harris
pian, and athlete. She started the suffrage she was asked to speak on a nationwide tour was sworn in as this country’s first female vice-
movement at Vassar, enrolling two-thirds of to promote the suffrage movement. She and president, and in between those two events are
the students. When the president of Vassar her sister, Vida, headed west by train and trav- the achievements of a multitude of female
forbade suffrage meetings, Inez and others eled through nine states in 30 days, giving at attorneys, judges, and politicians.
instead held “classes.” Upon graduation, she least 50 speeches. The grueling schedule took Another one of this edition’s articles is
applied to study law at Oxford, Cambridge, its toll and by the time she reached Los about the deadly confrontation and ensuing
and Harvard, but was denied admission Angeles on October 24, 2016, her health was trial that took place 40 years ago in
because she was a woman. She was finally in serious decline. Speaking before an esti- Greensboro, North Carolina, between
admitted to NYU Law School, and upon mated crowd of 1,500 she implored women
graduation in 1912 opened her own practice in the west (who had already won the right to CONTINUED ON PAGE 17
T H E N O RT H C A RO L I N A S TAT E B A R J O U R N A L 5
The Day North Carolina Voted
“Nay” to History
B Y PH I L I P GE RAR D
O
n a typically
humid August
morning in
1920, 50 sen-
ators and 120 representatives—all of them men, most of them
©iStockphoto.com/diane555
wearing vested suits and ties knotted around celluloid collars—filed
into their respective chambers in the state Capitol in Raleigh for a
special session called by Governor Thomas W. Bickett.
The Old Farmer’s Almanac reminded its Such was the dual curse of American Assembly were likely unaware of the fact, this
readers that, according to an old Irish super- womanhood: On the one hand, women were August 17th marked the last chance they
stition, this day, August 17th, marked the often placed on a pedestal, considered too would have to act as champions of enlighten-
beginning of “Cat Nights”—the date when frail or virtuous for politics or business; on ment—or forever be relegated to the dark
witches who had turned themselves into cats the other, they were also credited with pos- void of missed opportunity.
during eight former “lives” could no longer sessing devious and uncanny powers. In They had come together to decide
return to human form. For their ninth life, truth they were neither madonnas nor sor- whether women—who made up a little
they were fated to prowl the lengthening ceresses. In North Carolina they formed a more than half the state’s voting-age popula-
nights, hunting prey with their keen noctur- rugged working class in the textile and tobac- tion of 1.2 million—should be granted the
nal vision. And, of course, in those benighted co factories and had achieved considerable right to vote. They carried into their respec-
days of yore, any independent-minded influence over cultural and civic life—largely tive chambers their own superstitions, preju-
woman, especially an unmarried one, ran the through indirect means. dices, and strong opinions.2
risk of being branded a witch.1 Though the members of the General The campaign for women’s suffrage was
6 SPRING 2021
born in 1848 at the first women’s rights con- had sent a telegram to their counterparts in lieved along with their wealthy husbands that
vention in Seneca Falls, New York, and the Tennessee urging them to help thwart the a woman properly found fulfillment in being
first suffrage amendment was voted down by national suffrage amendment on the grounds a wife and mother, her “pure nature” unsullied
Congress in 1878. An 1897 amendment was of states’ rights: by politics. More pragmatically, they feared
put forward to the North Carolina General We, the undersigned members of the that working class white women would use
Assembly and—in keeping with the prevail- House of Representatives of the General their votes to push for equal pay in the textile
ing ethos that regarded women as unfit for Assembly of North Carolina, constituting mills (owned by their husbands or other mem-
politics—summarily relegated to the a majority of said body, send greetings to bers of their moneyed class) that relied on
Committee on Insane Asylums. But by 1919, the General Assembly of Tennessee, and them as a force of cheap labor, as well as for
women had demonstrated considerable polit- assure you that we will not ratify the Susan reform of child labor laws for those same fac-
ical acumen and Congress, urged on by B. Anthony Amendment, interfering with tories. And having relegated African American
President Woodrow Wilson, passed a joint the sovereignty of Tennessee and other citizens to the political sidelines through vio-
resolution adopting the Nineteenth States of the Union. We most respectfully lence and insidious law, they now feared that
Amendment. request that this measure be not forced literate Black women voting would threaten
In the interim, suffragists had tirelessly upon the people of North Carolina.7 white supremacist rule. And any national
campaigned, courting the press, cajoling The opposition legislators had plenty of mandate regarding elections might open the
legislators, and launching 56 separate state allies—including not just men, but, surpris- door for federal intervention to reinstate fair
referenda.3 ingly to a later generation, a cadre of power- voting rights for Black citizens.10
By the time the North Carolina legisla- ful women who had devoted themselves to On the suffragist side were even more for-
ture convened in August 1920, 35 states had the antisuffragist cause. Mary Hilliard midable women. Gertrude Weil of Charlotte
already ratified the 19th Amendment to the Hinton, a noted heraldic artist from a plan- headed the Equal Suffrage Association of
Constitution granting full women’s suf- tation family, led the state branch of the North Carolina. The daughter of a Jewish
frage—one vote shy of ratification. This was aptly-named Southern Rejection League. immigrant businessman, she had studied at
the day when the North Carolina Senate Her cohort included Sallie Mayo Cameron, the Horace Mann Preparatory School in New
could signal strong progressive vision, faith another plantation belle; Elizabeth Cheshire, York. There, one of her teachers had been
in the political judgment of more than half whose husband was an Episcopal bishop; Margaret Stanton Lawrence, daughter of suf-
of the adult population of the state who had Musette Kitchin, wife of a former governor; fragist movement founder Elizabeth Cady
been denied the chance for political partici- and Gabrielle DeRosset Waddell, married to Stanton—who once decried “the contempt
pation for all the generations since the former Congressman and Confederate with which women themselves regard this
founding of the republic—some 600,000 Colonel Alfred Moore Waddell, who had led movement...it is met with a scornful curl of
women. Governor Bickett read the writing the white supremacist coup in Wilmington the lip, and expression of ridicule and dis-
on the wall, “arguing for a graceful accession in 1898. Their husbands and other powerful gust.” Stanton had collaborated with Susan
to the inevitable.”4 men collaborated wholeheartedly in the B. Anthony to draft the exact language of
Now the Senate was gaveled into session. effort at rejection.8 what would become the Nineteenth
The senators would not have the luxury of Indeed, the Southern Rejection League Amendment way back in 1878.11
debating and voting in camera: they would counted among its staunch supporters Lillian Exum Clement, an attorney and
do so fully in the public eye. Indeed, the Furnifold Simmons, who had orchestrated outdoorswoman from Asheville who grew
public galleries were mobbed with specta- the Democratic Party’s White Supremacy up at Biltmore, where her father worked to
tors—ardently supporting or opposing ratifi- Campaign in 1898 that resulted in the build the great estate, led the state branch of
cation. To maintain decorum, in an unprece- Wilmington racial massacre, and Judge the National Woman’s Party with a quiet
dented move, the seating was segregated— George Rountree, another conspirator, who ferocity.12
not by race, but by politics. To the left were was elected to the legislature in the wake of The presence of the suffragists in the gal-
gathered the suffragists, dressed in white or the coup. Rountree had authored a constitu- leries was strategic, a repeat of the tactic used
yellow, the colors of their campaign. Many tional amendment requiring that voters be during earlier attempts to get state legislators
wore armbands or sashes bearing the slogan able to read and write a section of the state to grant suffrage, as noted in the association’s
“Votes for Women.”5 constitution and pay a poll tax, and it includ- 1915 convention minutes: “Whenever dis-
On the right side congregated the antisuf- ed the so-called “Grandfather Clause,” cussion upon any of these bills was to come
fragists—while their sisters in the other camp exempting whites from the strict literacy test up in either house, this league had a full rep-
carried white roses as symbols of their fight, requirement “if he or a lineal ancestor could resentation in the visitors’ galleries during the
they handed out red roses.6 vote under the law of his state of residence on debates, hoping thus to show at least a pas-
The issue had proved so contentious that 1 January 1867.” The new requirements had sive protest against the failure to pass the
the North Carolina House had for the prevented blacks from voting in any num- measures. This proved effective, for several of
moment dodged the issue—tabling any con- bers in the state for an entire generation.9 our advocates freely admitted that the pres-
sideration of the amendment until all its reg- Though opposing suffrage seemed counter ence of the ladies had given courage to them
ular business should be concluded. A few to their own interests, in fact these women in their efforts.”13
days earlier, on August 11th, in a back-door were against allowing working class women to And in the run-up to the special session,
move, 63 antisuffrage members of the House vote—especially Black women. True, they be- they had campaigned actively, staging parades
T H E N O RT H C A RO L I N A S TAT E B A R J O U R N A L 7
and rallies, enlisting endorsements from antisuffragists. But then he received a note pleasant haze of half-remembered history, the ratification
of the Nineteenth Amendment is surrounded by images
newspapers—countered of course by antisuf- from his mother, Phoebe Ensminger Burn,
of determined suffragist on the march over the protests of
fragist lobbying and petitions.14 admonishing him: “Hurrah, and vote for buffoonish men. The reality was a lot more interesting
Many prominent men also supported the suffrage!” She praised the spirit of Carrie than that,” The Wilson Quarterly, Woodrow Wilson
“great democratic movement” of suffrage, Chapman Catt, a suffrage leader, and told International Center for Scholars, Vol. 29, Issue 3,
Summer 2005. bit.ly/Spring2021-3.
including Chief Justice Walter Clark, who her son to “be a good boy and help Mrs. Catt
4. Caroline Pruden, “Women Suffrage.” Encyclopedia of
addressed the Equal Suffrage League at put the ‘rat’ in ratification.” To the shock of
North Carolina, edited by William S. Powell (The
Greenville in 1916. “To speak in its support his colleagues, he obeyed his mother and cast University of North Carolina Press, 2006), and NCPedia.
is like advocating the Ten Commandments,” the deciding “yea” vote. 5. Elna C. Green, “Why NC didn’t give women the vote,”
he intoned. “Some may not favor, but none As he told the assembly in a speech the fol- Carolina Woman. bit.ly/Spring2021-4.
are exactly in a condition to say that they are lowing day, “I know that a mother’s advice is 6. Megan Sadler, “A War of Roses,” WLVT, Aug. 18, 2020.
opposed.” always safest for a boy to follow, and my bit.ly/Spring2021-5.
The judge’s long oration was studded with mother wanted me to vote for ratification.”18 7. “Telegram to the Tennessee Legislature and the Sixty
Three Members of the House Who Signed It,”
biting, folksy humor: “No matter how bad a Fittingly, the Nineteenth Amendment Documenting the American South, University of North
character a man has, if he can only keep out borrowed language straight out of the Carolina at Chapel Hill. bit.ly/Spring2021-6.
of the penitentiary and the insane asylum we Fifteenth Amendment, which had enfran- 8. Elna C. Green, “Why NC didn’t give women the vote,”
permit him to vote and to take a share in the chised Black citizens after the Civil War, with Carolina Woman.
government, but we are afraid to trust our a single crucial substitution: “The right of 9. Elna C. Green, “Those Opposed: The Antisuffragists in
mothers, wives, and daughters to give us the citizens of the United States to vote shall not North Carolina, 1900-1920.” The North Carolina
Historical Review, July 1990, Vol. 67, No. 3, 315-333.
aid of their intelligence and clear insight.” be denied or abridged by the United States or JSTOR; and James L. Hunt, “Grandfather Clause.”
With logic that makes a contemporary by any State on account of sex.”19 Encyclopedia of North Carolina, edited by William S.
reader cringe he argues, “In North Carolina North Carolina had effectively voted Powell (The University of North Carolina Press, 2006),
the white population is 70% and the negro “nay” to history. and NCPedia. bit.ly/Spring2021-7.
30%, hence there are 50,000 more white In the upcoming election, Lillian Exum 10. Elna C. Green, “Why NC didn’t give women the vote,”
Carolina Woman;.and Elna C. Green, “Those Opposed:
women than all the negro men and negro Clement, a democrat from Buncombe The Antisuffragists in North Carolina, 1900-1920.” The
women put together. The admission of the County, would become the first woman in North Carolina Historical Review, July 1990, Vo. 67, No.
women to the suffrage therefore could not history to take her seat in the legislature— 3, 320.
possibly jeopardize white supremacy, but voted in by the staggering mandate of 11. Jaime Huaman, “Gertrude Weil,” NCPedia; Stanton
would make it more secure.”15 10,368 to 41. Shortly after assuming office, quoted in Joe. C. Miller, “Never A Fight of Women
Against Men: What Textbooks Don’t Say about Women’s
After five hours of exhaustive debate, at she confided to a reporter for the Raleigh Suffrage.” The History Teacher, May 2015, Vol. 48, No. 3,
last on the verge of a vote, Senator Lindsay News and Observer, “I am by nature a very 438. JSTOR; and Akhil Reed Amar, “How women won
C. Warren of Beaufort County offered a sur- timid woman and very conservative too, but the vote: in the pleasant haze of half-remembered history,
prise motion, one contrary to the express I am firm in my convictions. I want to blaze the ratification of the Nineteenth Amendment is sur-
rounded by images of determined suffragist on the march
wishes of the governor: table a vote on the a trail for other women.”20 over the protests of buffoonish men. The reality was a lot
amendment until the 1921 session. The That trail was well traveled by 1971, when more interesting than that,” The Wilson Quarterly,
motion carried 25-23.16 the General Assembly at long last ratified the Woodrow Wilson International Center for Scholars, Vol.
Between the delaying tactics by both Nineteenth Amendment—the second to last 29, Issue 3, Summer 2005.
houses of the General Assembly and the state to do so, ahead of Mississippi. Weeks 12. Alice R. Cotton, “Stafford, Lillian Exum Clement,”
Dictionary of North Carolina Biography, 6 volumes, edited
seemingly shrewd preemptive move to enlist later, on May 30, Gertrude Weil, aged 91, by William S. Powell. (The University of North Carolina
the Tennessee legislature, the antisuffrage leg- passed away quietly in the Goldsboro house Press, 1979-1996), and NCPedia.
islators must have felt smugly victorious in where she was born.21 n 13. Proceedings of the Second Annual Convention of the Equal
preserving the status quo without having to Suffrage Association of North Carolina Held at Battery Park
Hotel, Asheville, NC, October 29th, 1915. (Jones-Stone
take a public stand. Because of the supposed Philip Gerard is the author of 13 books of
Printing Company, 1916), Documenting the American
threat of suffrage to white supremacist rule, fiction and nonfiction. In 2019 he received the South, University of North Carolina at Chapel Hill.
they were confident that the other southern North Carolina Award for Literature, the state’s bit.ly/Spring2021-8.
states would also reject it. highest civilian honor. 14. Elna C. Green, “Why NC didn’t give women the vote,”
But the next day, August 18, 1920, the Carolina Woman.
Tennessee State Legislature ratified the Endnotes 15. Walter McKenzie Clark, “Ballots for Both: An Address
by Chief Justice Walter Clark at Greenville, NC, 8
Nineteenth Amendment—and in what has 1. “Cat Nights Begin,” The Old Farmer’s Almanac 1920.
December 12916,” Documenting the American South,
been called “the single biggest democratizing 2. United States Department of Commerce, Fourteenth University of North Carolina at Chapel Hill, 1, 3, and 11.
event in American history,” some ten million Census of the United States: State Compendium, North bit.ly/Spring2021-9.
Carolina, Government Printing Office, 1925.
women across the nation finally enjoyed the 16. Elna C. Green, “Why NC didn’t give women the vote,”
bit.ly/Spring2021-1.
right to vote.17 3. Jaime Huaman, “Gertrude Weil,” NCPedia.
Carolina Woman.
Harry Burn, at age 24 the youngest mem- 17. Akhil Reed Amar, “How women won the vote: in the
bit.ly/Spring2021-2; Stanton quoted in Joe. C. Miller,
pleasant haze of half-remembered history, the ratification
ber of the Tennessee State Legislature, “Never A Fight of Women Against Men: What
of the Nineteenth Amendment is surrounded by images
showed up for the suffrage vote wearing a red Textbooks Don’t Say about Women’s Suffrage.” The
History Teacher, May 2015, Vol. 48, No. 3, 438. JSTOR;
rose pinned to his lapel—the emblem of the and Akhil Reed Amar, “How women won the vote: in the
CONTINUED ON PAGE 22
8 SPRING 2021
Combating an Eviction Crisis in
the Midst of a Global Pandemic
B Y HO L LY O N E R
O
ver the past many
months, politi-
cians, the press, the
©iStockphoto.com/canbedone
legal community,
and tenants’ advocates warned of a COVID induced
housing crisis and an impending “tsunami” of evic-
tions. As a tenants’ lawyer on the front lines of eviction defense, I can tell you: it’s here. 20, 2020, and September 4, 2020.2 North
Carolina was found to be the 10th worst in
terms of coronavirus spread from eviction of
the 27 states studied.3
Voices for Civil Justice, a nonprofit over the past year. The Housing Crisis
organization in Washington, DC, wrote in As of the date of this writing, tenants will Frankly, North Carolina faced a housing
their August 2020 newsletter “[w]e have all have no protection against eviction after crisis among low-income families long before
seen the beginnings of what promises to be a January 31, 2021—in the dead of winter at the virus. In NC there are currently 135,575
wave of pandemic-driven evictions, dutifully the height of the pandemic. Evicting people affordable housing units available for a low-
processed by court systems too often passive- during this pandemic not only threatens the income population of approximately 3 mil-
ly playing their part in the housed-to-home- health and safety of those evicted, it puts lion.4 Housing is considered affordable when
less pipeline.” COVID-related evictions are everyone in the community at greater risk. A a person pays no more than 30% of her
not only for nonpayment of rent. Since June recent study found that COVID-19 inci- annual income toward rent and utilities.5
2020, landlords have also filed summary dents significantly increased in states where Families paying more than 30% of their
ejectment actions for breach of lease. Some evictions were allowed to proceed. income for housing are considered cost bur-
are alleged to have unauthorized occupants Nationally, the results translated to a total of dened and may have difficulty affording
in the home after family members arrived to 433,700 excess cases and 10,700 excess necessities such as food, clothing, transporta-
help provide childcare. Others have allegedly deaths associated with eviction moratoriums tion, and medical care.6 In order to afford
breached their lease based on incidents of lifting.1 In North Carolina alone, 15,690 the NC average monthly rent for a two-bed-
domestic violence. The issues that give rise to cases and 304 deaths were directly related to room apartment plus utilities—without pay-
these evictions have only been aggravated the lapse in eviction protection between June ing more than 30% of income on housing—
T H E N O RT H C A RO L I N A S TAT E B A R J O U R N A L 9
a household must earn $35,256 annually.7 Policies in renting, lease enforcement, Legal Protections during COVID-19
The average household gross income for a and eviction filing and judgements that dis- From March 27, 2020, through July 25,
Legal Aid of North Carolina client is less parately impact people of color all con- 2020, there was a federal eviction moratori-
than half of that. tribute to housing instability which, in um included in the CARES Act that pre-
An analysis by the Eviction Lab at turn, can have devastating and long-lasting vented landlords from evicting tenants for
Princeton University listed eight North effects on individuals, families, and their nonpayment of rent from federally subsi-
Carolina cities (Greensboro, Winston- communities. dized homes, including homes with federally
Salem, Fayetteville, Charlotte, High Point, subsidized mortgages. On May 30, 2020,
Durham, Wilmington, and Raleigh) among How Evictions Impact Tenants Governor Cooper initiated an eviction mora-
the 100 American cities with the highest Evictions have a lingering effect. Families torium preventing landlords from evicting
eviction rates. The COVID-19 pandemic and individuals who are evicted have tenants for nonpayment of rent. The gover-
has intensified the housing crisis in our state, increased physical and mental health issues, nor’s moratorium lasted for three weeks and
the exact numbers of which are still hard to children experience educational disruption, required landlords to give tenants a mini-
predict. There have been estimates that over parents lose jobs, and families become home- mum of six months to pay back June rent.
700,000 North Carolinians could be at risk less.11 In North Carolina, landlords regularly On September 4, 2020, the federal gov-
of eviction.8 search databases for tenants’ previous evic- ernment initiated a sweeping national mora-
tions, even when those evictions were dis- torium—the Center for Disease Control
Tenants Affected missed in court. Oftentimes the filing itself order (“CDC order”) published in the feder-
In his 2016 critically acclaimed book, will compromise a tenant’s credit score or al register. It prevents all evictions for non-
Evicted: Poverty and Profit in the American rental history. With an already inadequate payment of rent through January 31, 2021.
City, Professor Matthew Desmond wrote, supply of affordable housing, families are The CDC order applies to all residential ten-
“If incarceration had come to define the forced into overcrowded shelters, poorly ancies; however, it only helps tenants who
lives of men from impoverished Black maintained homes, or vulnerable and often know how to invoke its protections. It
neighborhoods, eviction was shaping the exploitative situations. requires that tenants sign a declaration under
lives of women. Poor Black men were locked For low-income families generally, it is penalty of perjury and deliver the declaration
up. Poor Black women were locked out.”9 not hard to imagine the consequences of the to their landlords. In the declaration the ten-
In July 2020 the Center for Public Integrity COVID-19 pandemic: loss of hourly wage ant swears, among other things, that he or
released a report that nearly two-thirds of work, cost-prohibitive childcare, meeting she makes under a certain income, has suf-
eviction cases nationwide were filed against the needs of school age children whose fered substantial loss of income, and has
tenants living in communities of color. On schools have closed, and lack of transporta- applied for governmental rental assistance.
July 22, 2020, the US Census Bureau tion, to name a few. In 2018, the Federal The CDC order sparked controversy and
reported that 56% of renters afraid they Reserve found that 40% of Americans widespread confusion among landlords, ten-
could not pay their next month’s rent were would not be able to afford a $400 emer- ants, lawyers, and judges. On September 16,
Black or Latinx. Eviction cases are filed gency. Many families live paycheck to pay- 2020, the New York Times published an arti-
against Black women at almost twice the check with no health care benefits and cle titled, “How Does the Federal Eviction
rate of all white renters.10 struggle to make ends meet. They have no Moratorium Work? It Depends Where You
Not only do people of color make up a savings to rely on to fix a car in need of Live.” The article addressed the vastly differ-
disproportionate number of tenants in evic- repairs, let alone financially survive during a ent ways that judges across the country
tion court; Black and Latinx people dispro- global economic crisis due to an unprece- responded to the order—from ignoring it all-
portionately suffer economic inequality, dis- dented and highly contagious virus. These together to dismissing cases on the spot. On
crimination in healthcare, increased rates of circumstances coupled with an eviction October 28, 2020, Governor Cooper issued
food insecurity, disparity in the child welfare paint tenants with a scarlet “E” and exact a Executive Order No. 171, “Assisting North
system, and are overwhelmingly over-policed heavy toll on the tenant, her family, and the Carolinians at Risk of Eviction,” which
and arrested. Additionally, the CDC reports community. attempted to clarify the CDC Order’s appli-
higher COVID-19 infection and death rates On September 5, 2020, the American cation in North Carolina. However, there
among Black Americans. Bar Association wrote a letter to Congress continues to be a lack of uniformity in how
Then Chief Justice Cheri Beasley spoke requesting support for emergency rental the order is applied and, in some cases, an
publicly on June 2, 2020, to address racial assistance to end the COVID-19 eviction outright refusal to comply.
inequity in America and, specifically, in the crisis. In it, they described the devastating Some landlords and landlord-advocates
court system. She said, “[i]t is essential to impact the pandemic has had on both ten- across the country challenged the constitu-
understand the root cause of the pain that ants and landlords. They wrote, “[t]his assis- tionality of the CDC order; however, a fed-
has plagued African-Americans and the tance is desperately needed…[f ]ailure to act eral court in Georgia denied a preliminary
complexities of race relations in America… will lead to a sharp spike in unemployment injunction to stop its enforcement.
[a]nd while we rely on our political leaders and homelessness, as well as extreme On October 15, 2020, North Carolina
to institute those necessary changes, we demands on community health and housing introduced the Housing Opportunities and
must also acknowledge the distinct role that services during a time of year when such Prevention of Evictions (“HOPE”) program.
our courts play.” resources are in highest demand.” The HOPE program provided $117 million
10 SPRING 2021of rental assistance for tenants that made to keep their homes. For example, in 2017 threatened with eviction each month. Today,
80% or lower than the area median income New York City implemented a law guarantee- with unemployment levels unseen since the
and got behind on rent or utility payments. ing a court-appointed lawyer in housing Great Depression and the expiration of fed-
On November 11, 2020, less than one cases. Since the law went into effect, 84% of eral benefits along with national and several
month later, the funds ran out and the pro- tenants who had a lawyer avoided an eviction. state eviction moratoriums, millions of
gram stopped accepting applications. Investing in lawyers to advocate for ten- renters are at risk of losing their homes…”
Although eviction moratoriums and ants has multiple benefits: cities and counties Fortunately, Ms. Johnson was represented
rental assistance undoubtedly provide relief save money paying less for homeless services, by Legal Aid in both her housing and unem-
for struggling tenants, they ultimately delay courtrooms run more efficiently, and tenants ployment cases. Legal Aid was able to suc-
the inevitable. The tsunami continues to maintain housing stability which leads to cessfully settle the housing case. She prompt-
grow and will hit harder without more com- economic stability and fewer incidents of ly appealed the unemployment denial and,
prehensive relief. Eviction moratoriums do crimes of poverty. There are even benefits for though her hearing was not held until
not address the deeper issues that plague ten- landlords. Tenant lawyers can help to medi- December 15, 2020, Legal Aid won her
ants facing housing instability. ate disputes before a summary ejectment case unemployment appeal hearing, securing
is filed, diverting cases from ever entering the thousands of dollars of retroactive unem-
Legal Aid of North Carolina Responds courtroom. Landlords save money by not ployment. But Ms. Johnson is one of many
Legal Aid of North Carolina has a robust paying court costs and attorneys’ fees, avoid- tenants affected by the pandemic. Between
eviction defense practice, with 20 offices cov- ing the cost of tenant turnover, and increas- January and December 2020, Legal Aid
ering all 100 counties. But the demand is ing the likelihood of getting back-rents paid. lawyers and volunteers have assisted thou-
overwhelming and both legal and financial sands of tenants facing eviction under similar
resources are limited. While some funds have Conclusion circumstances. Over the past few years, sum-
become available for rental assistance that COVID-19 knocked out the shaky foun- mary ejectment filings in North Carolina
will help both tenants and landlords, there is dation supporting many tenants across have sharply increased, almost doubling
no guarantee of ongoing financial support North Carolina. Anita Johnson12 was one of between 2018 and 2019. And that was before
for even the poorest tenants. Landlords have these tenants. In the beginning of 2020, Ms. the pandemic.14
also been severely impacted by this pandemic Johnson had a stable job working as a home As a legal community we must come
and some are beginning to face foreclosure health aide. She had never missed a rent pay- together to address this calamitous issue
with months of unpaid rent accumulating. ment or been late on rent. When her car when housing instability threatens lives and
Even so, many landlords have shown com- broke down requiring $1,000 to repair, she evictions will help spread the virus. The
passion towards tenants falling behind on started riding the city bus to work. In March tsunami is here, and I don’t know any other
rent and have been willing to waive late fees she was let go from her job because, accord- way we will weather the storm. n
and implement payment plans to help resi- ing to her employer, riding the city bus pre-
dents catch up. sented too strong a risk of COVID for her Holly Oner is a housing lawyer for Legal
In an effort to respond to the overwhelm- patients. She immediately applied for unem- Aid of North Carolina in Greensboro. She
ing demand, Legal Aid’s Statewide Volunteer ployment assistance. In June she received a joined Legal Aid in 2017 after practicing as a
Lawyer Program has organized and provided determination denying her benefits. public defender for The Legal Aid Society in
ongoing training to a cohort of pro bono Currently, there is a 20,000-case backlog of New York City.
lawyers who have volunteered to help pre- unemployment benefits cases and almost
vent evictions and avoid homelessness. The half a million people unemployed in North Endnotes
project, called the Eviction Negotiation Carolina. 1. Leifheit, Kathryn M. Linton, Sabriya L. Raifman, Julia
Project (ENP), partners volunteer attorneys Ms. Johnson’s landlord filed a summary Schwartz, Gabriel, Benfer, Emily, Zimmerman,
Frederick J., and Pollack, Craig, Expiring Eviction
with tenants facing eviction for nonpayment ejectment action against her on August 7.
Moratoriums and COVID-19 Incidence and Mortality
of rent. Volunteer attorneys represent the Ms. Johnson continues to ride the bus every (November 30, 2020). ssrn.com/abstract= 3739576.
tenants to negotiate with landlords in order day diligently applying for jobs. She remains 2. Id.
to maintain the tenancy and to compromise terrified of becoming homeless, and she fears 3. bit.ly/Spring2021-11.
the rent owed. that without stable shelter it will only make 4. bit.ly/Spring2021-12; Table 6, p. 22.
The project is now placing appropriate it more difficult for her to climb out of the 5. 42 U.S.C. § 1437a(a)(1)(A).
cases with volunteers to help tenants avoid hole. “[I]t is hard to argue that housing is not 6. Affordable Housing, bit.ly/Spring2021-13.
homelessness and ensure public health and a fundamental human need. Decent, afford- 7. That means someone working 40 hours a week for 52
safety. More attorneys are needed to meet the able housing should be a basic right for weeks a year would need to earn $16.95 an hour—more
ongoing demand, and Legal Aid would wel- everybody in this country. The reason is sim- than twice the current $7.25 per hour minimum wage
in the state.
come additional volunteers for this project as ple: without stable shelter, everything else
8. The Raleigh News & Observer, August 22, 2020,
well as our other pro bono projects. falls apart.”13 Thousands of NC Residents at Risk of Eviction after
(Attorneys interested in volunteering may In a New York Times opinion article on Rent Protections Expire Next Week.
send an email to probono@legalaidnc.org.) August 29, 2020, Professor Desmond wrote, 9. Matthew Desmond, Evicted: Poverty and Profit in the
Nationwide, tenants who are represented “[b]efore the COVID-19 pandemic, more
by a lawyer are twice as likely as pro se litigants than 800,000 people around the nation were CONTINUED ON PAGE 22
T H E N O RT H C A RO L I N A S TAT E B A R J O U R N A L 11A Common Defense—
The Defense Case in the Trial of the 1979
Greensboro Klan, Nazi, Communist Shootout
B Y T H O MAS J. KE I TH
Part One: Pre-Trial was given a
In April 1983, I received a call from choice of
Russell Eliason, our US Magistrate Judge for which one of
the Winston-Salem division. He was trying the two
to appoint defense counsel for the six remaining
Klansmen and three Nazis who had just defendants to
been indicted by a federal grand jury for 12 re p re s e n t —
substantive crimes and for conspiracy to the one the
commit various civil rights crimes in the government
November 3, 1979, shootout in Greensboro contended
Photo: News & Record
where five members or associates of the killed four
Communist Workers’ Party (CWP) a.k.a. CWP mem-
Workers Viewpoint Organization (WVO)1 bers or the
had been shot and killed. Two lawyers in only defen-
Winston-Salem had already accepted dant who did
appointment, and three of the defendants not have a gun
who had been acquitted in the 1980 state and might
murder trial would be represented by the have been an
same three experienced defense attorneys. informant. I National newspaper headlines on the day of November 4, 1979.
The two largest law firms in Winston- chose Eddie
Salem—Womble Carlyle and Petree Dawson, the informant. Klansman Jerry Paul Smith, whom he had
Stockton—agreed to assign one lawyer from I began to wonder if I had made the right represented in the state trial in 1980. The
each firm to represent the sixth and seventh selection when I received a copy of the government contended that Smith killed a
defendants. All Judge Eliason needed were indictment. Virgil Griffin, the grand dragon CWP member.
two more lawyers. of the Invisible Empire of the Ku Klux Klan, Jeffrey P. Farran from Greensboro for Jack
I flatly informed him I could not afford to was the first of nine named defendants; Wilson Fowler Jr., a self-proclaimed Nazi
accept the appointment. The appointed rate Eddie Dawson was second. Usually, in the whom he had represented in the state trial in
was only $20 an hour for out-of-court and Middle District, the least culpable defen- 1980.
$30 an hour for in-court time. As a small dants are listed last. The rest of the defen- S. Fraley Bost from Winston-Salem for
firm practitioner, it would be financially dants were represented as follows: Klansman Roy C. Toney.
ruinous for me to get involved in a long case. Fred R. Harwell Jr. from Winston-Salem Harold F. Greeson from Greensboro for
His honor informed me that the court sys- for Klansman Virgil Griffin. Our team elect- Klansman Coleman B. Pridmore, whom he
tem would probably pay higher than the ed Fred as our spokesman. had represented in the state trial in 1980.
indigent defense rate and that the trial would Jim D. Cooley from Winston-Salem for Leon E. Porter Jr. from Winston-Salem
only take about a month. Neither turned out Klansman David Matthews, who the govern- for Raeford Milano Caudle, a self-pro-
to be correct. But what convinced me to ment contended killed four CWP members. claimed Nazi.
accept was his argument that even though Roy G. Hall Jr. from Winston-Salem for The investigation by the USDOJ took
the defendants were members of unpopular Roland Wayne Wood, a self-proclaimed Nazi. three years. The initial trial date was only six
groups, they deserved good representation. I Neill A. Jennings Jr. from Greensboro for months away in October. It was later contin-
12 SPRING 2021ued to January 9, 1984. associate to help
What follows is how this disparate me organize the
defense “team,” most of whom had never materials related
worked together, prepared for a trial that to Dawson and
resulted in all nine defendants being found conduct legal
not guilty of all 25 charges on Palm Sunday, research, while at
April 15, 1984. the same time
The government presented us with pack having to lay off
mule loads of discovery. My portion filled 78 one legal assistant.
Photo: News & Record
large three-ring notebooks that took up 25 Each of us was
linear feet of bookshelves. It included inter- assigned certain
views of over 400 possible witnesses by mul- witnesses who
tiple law enforcement agencies and grand might be for or
jury testimony. There were over 850 possible against us. Usually,
exhibits and hours of videotapes taken by several of us would
four television stations on the scene, which interview one of
showed some portions of the shooting inci- them together in
dent. We realized that we would have to places such as KKK members take weapons from the back of a car prior to the shooting
develop unique pretrial strategies in order to China Grove, between them and members of the Workers Viewpoint Organization/
deal with the massive task ahead. Smithfield, or Communist Workers Party on November 3, 1979.
The first meeting of all nine attorneys was even Nashville,
held in Hal Greeson’s office in Greensboro Tennessee. We would share our notes of the to Hollywood, California and having the
on May 6, 1983. What I recall most was interviews with all other counsel. We even video “enhanced” by placing a round circle,
Greeson saying, “Don’t worry guys. We’re cooperated on opening statements. Each one or “halo,” around the defendant, which
going to win.” Jeff Farran and Neill Jennings of us would touch on one part of our joint would draw the viewer’s eye to that defen-
said the same thing. But from my experience, defense. dant’s acts.
a multi-defendant case is a nightmare. Each But there were also times when each of us We also had this capability, only better.
defendant has a defense that may be antithet- had to take the lead when the evidence My law partner Gary Smithwick specialized
ical to another defendant’s defense. For focused primarily on our client. For example, in FCC matters. Gary also owned a third of
instance, my client had been an informant the attorneys defending alleged “shooters” a new UHF-TV station, Channel 61, in
on the other five Klansmen. had the most difficult job. They had to Greensboro. Whenever we needed to focus
The Greensboro attorneys recommended understand the government’s novel argu- on what a Communist was doing at the
that we all have the same defense. Self ments. One FBI witness—a chemist— scene, I would drive to Greensboro and have
defense was available on their substantive would testify how the lead in the unfired Gary’s staff add the “halo” to our copy of the
crimes, but we would need more than that to shells in a specific defendant’s shotgun could video. At one hearing, the lead FBI agent
defend the conspiracy to violate the civil be “consistent with” the buckshot pellets that complained that he was going to fly to
rights of parade participants, allegedly killed or wounded a demonstrator. Another California to get some tapes enhanced, so he
because of their race (all but one of those FBI witness attempted to show that the Klan couldn’t be in court for a few days, “…and all
killed were white).2 The defendants would fired the first offensive shots based on his Mr. Keith has to do is drive to Greensboro.”
contend their actions were political, not analysis of acoustic patterns from the videos. The videotapes were quite helpful to the
racial, and that they went to Greensboro to The attorneys from the two big law firms, defense. One identified Dori Blitz, a
oppose Communism. It was therefore essen- Fraley Bost and Leon Porter, brought a great Communist, emptying her revolver at defen-
tial that we develop a new defense and act as deal of additional resources to our group. dant Smith.
one cohesive unit in our preparation and at They had unlimited access to WestLaw, para- Part of the division of labor included
trial. We acted so consistently as a team legals, and investigators. Plus, their firms had researching and drafting the pretrial motions
because of the common themes, that the some deep pockets if we needed something that affected all nine defendants. Three of us
government attorney would refer to us as special. For example, Womble Carlyle, Bost’s were assigned to be the Motions Team: Fred
“co-counsel,” while we were only appointed law firm, rented a conference room for us in Harwell, Jim Cooley, and me. Over the
to represent our individual clients. a building next to the federal courthouse in course of seven months, we ground out hun-
No one lawyer could do all the work him- Winston-Salem where the trial was held. dreds of pretrial motions. The docket entries
self. Just for one of the 412 possible govern- We also had some resources that not show 222 motions (including a half dozen by
ment witnesses, there would be multiple even the government had readily available. the government) filed by August 10, and the
reports from multiple investigators from the At trial, the government lawyers wanted to trial was still five months away. This included
Greensboro Police Department (GPD), FBI, use the videotapes from the four television the separate motions filed by each defense
SBI, and ATF, plus federal grand jury inter- stations that filmed the shooting to show attorney for his client’s individual issues.
views and state court trial testimony. I had to the action of a specific defendant at a par- Several months before trial, we still did
employ three law students and a part-time ticular point in time. They did this by going not have enough information from our vari-
T H E N O RT H C A RO L I N A S TAT E B A R J O U R N A L 13ous Bill of Particulars to address all the for cause, and there were many strikes for from being present. The media sued for a
aspects of the alleged conspiracy. As a result, cause when the jurors expressed their unwa- mandamus to open the process, and jury selec-
Fred Harwell drafted a motion to hold a vering opinions against Klansmen, Nazis, or tion halted several days until the US Court of
James hearing. US v. James, 590 F.2d 575 Communists. Appeals for the Fourth Circuit could hold an
(5th Cir. 1979). If granted, the government Shortly before trial, we met in our rented emergency hearing in Charlotte. Several days
would have to lay out how it would prove its conference room to strategize how we would later, Judge Flannery’s decision was upheld
conspiracy case before the court would allow approach jury selection. We had the poten- and jury selection resumed. Jim Cooley
statements of co-conspirators into evidence. tial jurors’ answers on the jury question- argued our position in Charlotte. Chief Justice
On the assigned hearing day, Judge Thomas naires. We knew their job, place of employ- Warren Burger for the US Supreme Court
A. Flannery, specially assigned to the case by ment, education, military status, religion, denied the media’s request for certiorari to set
the DC Federal Court, denied all our other prior jury experience, opinion on labor aside the exclusion order.
motions. But when he came to Harwell’s unions, and their answer to question #17, When jury selection resumed, the govern-
motion, the judge ordered the government “What newspapers or magazines do you sub- ment kept the marine, knowing that if he
to lay out its evidence of a conspiracy for us. scribe to or read regularly?” were stricken with the last challenge, it would
Shortly before trial, we received a brief from We then divided into two teams. Some of have to seat the “Guns & Ammo” guy.
the government detailing each act in the con- us would act like the government in jury In fact, we accurately predicted all 11 of
spiracy by each named defendant such as in selection. The others would act as defense the seated jurors, all nine of the government’s
their purchase of seven dozen eggs to throw attorneys. Each potential juror had an index strikes, and the government’s dilemma for
at the Communists. We now knew their card with the name and number on it. The the 12th seat. Our pretrial work was over.
complete case. potential jurors’ names were then placed on a Now it was on to testimony.3
Dan Bell, USDOJ lead prosecutor for the whiteboard as they would sit on the panel.
government’s three-lawyer team, hounded us We would discuss the pros and cons of Part 2: The Trial
from the beginning to agree to scores of stip- each potential juror. Each team had to figure Part of our trial strategy to show that the
ulations that would allow his evidence to be out who the other team might strike and how Communists were the aggressors would
introduced into evidence without objection not to “waste” a challenge in a blind strike. require us to go back four months in time to
and streamline the government’s case. As a Occasionally, someone would want further July 8, 1983, in China Grove, NC, where the
former assistant solicitor, I knew you could information about a potential juror. This is seeds of the confrontation were planted and
spend a lot of precious time during a trial lin- when Bost’s and Porter’s investigators would later nurtured by the CWP.
ing up chain-of-custody witnesses and gather further background information on Joe Grady headed another version of the
exhibits. It was the prosecutor’s job to do the those potential jurors. Eventually, both teams KKK known as the Federated Knights of the
heavy lifting, not the defense’s job to make it were ready to cast their challenges. Ku Klux Klan. Grady was trying to fill his
easier for the prosecutor to convict our We had one problem. After the 11th ranks by showing the 1917 D.W. Griffith’s
clients. I saw no need to stipulate to any- potential juror was seated on the whiteboard, movie Birth of a Nation to the party faithful
thing, unless it helped our defense, such as the defense team would be out of peremptory at a public community building in China
which guns were owned or fired by the challenges, but the government team would Grove, NC. A China Grove resident, Paul
Communists. still have one challenge left. For the 12th seat, Luckey, opposed his city allowing the out-of-
As a result of our refusal to stipulate to the government team would also have a towners to use the city property.
most of the government’s evidence, its case dilemma. Next up would be juror #67, the The media picked up on Luckey’s oppo-
dragged on for almost three months. In con- only potential juror with any college educa- sition. The Southern Regional CWP leader-
trast, we decided that ours would be quick tion. He was from a semi-rural area and had ship decided the best way to build their party
and direct. The last thing the jury would served three tours in South Vietnam in 1965- and attract the working man, especially
remember was our presentation, not what the 1969 as a marine sergeant, where he was African-American workers, was to campaign
government’s 75 chain-of-custody witnesses wounded. If the government team cast its last against the KKK who were doing the dirty
had said over the three previous months. peremptory challenge on the marine, it would work for the capitalist class. The CWP July
Taking portions of our proposed jury be out of challenges. Then would come 1979 ten-page Southern Regional Bulletin
questionnaire, the court created a 22-ques- potential juror #68. He was from a rural described their plan:
tion short answer biographical jury question- county, where he sharpened saws at a sawmill. Comrades,…we have initiated a cam-
naire. The court gave each side its initial list He received an honorable discharge from the paign against the Ku Klux Klan…we can-
of 80 prescreened jurors with their answered navy in the early 1970s, and his answer to not win workers to the Party by words
questionnaires. Jurors would be called in question #17 as to the only magazines he read alone. To win…and break out of the
numerical order from the list. was, “Guns & Ammo.” Neither team could bands of legality, our uncompromising
Any peremptory challenges to seating a predict which former serviceman Dan Bell, propaganda must be backed [by] militant
juror would be by the simultaneous or “blind USDOJ, would select, but we thought neither force. (emphasis added)
strike” method. The government would have would be good for the government. The Durham CWP had been trying to
ten peremptory strikes, and the defense When the actual jury selection started on build its brand by infiltrating the trade
would have two each for 18 challenges. Of January 9, 1984, as a result of our motion, unions at various textile mills where they
course, either side could try to strike a juror Judge Flannery excluded the public and press could meet, educate, and bring textile work-
14 SPRING 2021You can also read
