FIKES v. ALABAMA - The Unconstitutional Conviction of "Baby"

E. BARRETT PRETTYMAN, JR.

(The following article is adapted from a chapter in the author's Death and the Supreme Court (New York, 1961), copy-' right by Harcourt, Brace & World, Inc. and reprinted with permission.–Ed.)

Latinists used to quarrel over the variant philosophical constructions of a sententious admonition–flat just itia line] ruat coelum, translated either as, "let justice be done though the heavens fall," or (with the bracketed qualification), "let justice be done lest the heavens fall." A hard choice, in either sense–and one which, in the case of Fikes V. Alabama, led to a rare circumstance when an order of the Supreme Court, or the logical consequences flowing from such an order, could not be obeyed.

It all started on a black night in September 1948, but no one in Selma realized it at the time. The real terror, the almost hysterical fear that gripped the city, was to come later. Selma sat beside the Alabama River in the center of the state, and Broad Street, the main thoroughfare, shot like an arrow over the river and through the town to flat' country westward. It was a clean and prosperous street, but the dirt roads of the Negro community were only a block away, just as the grand, rambling, proud houses of the elite were street-to-street with Negro shacks and shanties.

It was 3:30 in the morning. Mrs. Thelma Manning had dropped off to sleep while reading, her light still on. She was suddenly jolted awake by the sound of a man sitting on her bed. She uttered a paralyzing scream, and he scrambled from the bed and ran downstairs and out the front door. Mrs. Manning called the police. They found the prowler's shoes still neatly placed on the front porch, Mohammedan style.

While the police were investigating Mrs. Manning's complaint, they received a second alarm from only a few 'blocks away. Mrs. J. M. McLaughlin told them she had just been awakened by a light-skinned Negro trying to pull the sheet off her. In the brief struggle that followed, he bit her on the left arm, and then ran from the house.

The police were satisfied that both women had been attacked by the same man. Despite the descriptions they gave and the clue of the abandoned shoes, no subsequent leads developed, and in a few months the manhunt slackened.

Five years passed. In early March 1953, several families reported to the police that their homes had been broken into. Then, on the night of March 18, Mrs. Delores Stenson, the eighteen-year-old pregnant wife of a sergeant at nearby Craig Air Force Base, had fallen asleep awaiting her husband's return from regular duty at the base. At 10.45 P.M., Mrs. Stenson was wrenched into wakefulness by the weight of a body on top of her. She could see only the eyes of a Negro–the rest of the face was hidden by a mask and a rag wrapped about his head. He held a knife at her throat. She began sobbing uncontrollably, and the man raped her.

When he had gone, Mrs. Stenson's screams roused the tenants in the adjoining apartment, and the police were called. The Chief, E. W. Mullen, immediately brought every one of his twenty men into active duty, and most of them worked through the night. Bloodhounds were also brought to town, but to no avail.

It was not until April 24, over a month later, that near hysteria gripped the town. That night, the mayor's daughter, Mrs. Jean Rockwell, was attacked.

Shortly after Mrs. Rockwell had drifted off to sleep, a man slipped around the side of the house and climbed several brick steps which led, inexplicably, to the bedroom window of the Rockwell's sixteen-month-old son. The man cut a hole in the window screen, unhooked the latch, opened the window, and climbed over the sill. Seeing the sleeping child he moved softly out of the room and into the kitchen. He unlocked and opened the kitchen door, guaranteeing himself an exit route. Picking up a butcher knife that lay on the kitchen table, he walked to the bathroom, put a towel around his head, and passed on to the parents' bedroom.

Mrs. Rockwell woke suddenly and in horror to find a man sitting on top of her. He was slight of build and appeared to be in his twenties. He wore no shirt at all, only an undershirt and a pair of blue jeans, and he held a knife in his left hand, with the edge of the blade at her throat. He told her he was going to kill her if she made a sound.

He had picked on the wrong lady.

Mrs. Rockwell immediately began struggling, and a wild fight began which carried itself down forty feet of hallway and into the living room, where the Negro fell over a stool, carrying her down with him. With a single, nimble movement, she twisted the knife out of his hand. He galloped the length of the living room and out the kitchen door. Mrs.' Rockwell ran to the door, locked it, and called the police. The entire battle had lasted about eight minutes.

By now the City of Selma was in a complete state of hysteria. Women did not walk alone after dark; they were locked in at home like members of an ancient harem, while their menfolk roamed the streets as self-appointed commandos, armed with pistols, knives, pipes, sticks. The slightest disturbance caused a covey of men to come circling in for the kill. The night cries of children brought parents convulsively to their feet.

False alarms sometimes poured into the police station too fast to be checked, as. nervous men and women were terrorized by shadows shifting in the darkness. Selma's supply of window bars, used to seal windows so that they could not be raised, was quickly exhausted; orders were placed in Montgomery and as far away as Mobile, until finally every available window bar in the southern half of the State had been purchased by the nineteen thousand residents of the Selma area.

This was the mood of the people–overwrought, apprehensive, explosive–when, at eleven thirty on Saturday night, May 16, Mr. and Mrs. Jake Youngblood, returning from a movie, were driving up an alley in back of their house and Mrs. Youngblood noticed a Negro dart across the alley behind the car. Her husband turned the car around and drove back.

Mr. Youngblood got out and questioned the man. His answers were evasive. Young-blood ordered him to walk ahead of the car, and the Negro meekly complied. The strange parade–Negro in front and bright-eyed car trailing slowly 'behind–passed out of the alley to Deason's Service Station on Broad Street. At eight minutes past' twelve, the police were called again.

They arrived to find a slender black seated in the back of Youngblood's car beside the gas pumps. A number of white men milled about the car, some of them peering in occasionally at the prisoner. The police quickly took the man into custody and booked 'him on an open charge of "investigation." The man was William Earl Fikes.

By next morning, the police had gained considerable information about Fikes.

He was not a resident of Selma at all. He lived with his wife and four children in Marion, Alabama, thirty miles away, where he worked at a service station. In fact, he had been born only five 'miles from Marion, the youngest of three boys, and during his early years he had helped his father farm a plot of land and direct funerals. Books were not William's forte; he entered school at age eight and left eight years later while still in the third grade. On one of his forays from home, while working at a paper mill in Mobile, he met and married a local girl and moved her north to Marion.

There had been strains of insanity in the family. The uncle and the mother of the elder Fikes had both been declared insane, and both had died in mental institutions. In November 1949, about a year after the first, seemingly unrelated, attacks on Mrs. Manning and Mrs. McLaughlin, Fikes had been sentenced to six years in prison in connection with the theft of some tires. After serving less than two of the six years, he was released on parole by Governor James E. Folsom in January 1951, during the last days of Folsom's first term in office.

At eleven o'clock on the morning after his arrest, Fikes was brought into the office of the Captain of Police, I. Wilson Baker.

Captain Baker questioned Fikes for two hours about the various house breakings and attempted rapes that had terrorized Selma. During the questioning, Fikes asked to talk to the county sheriff, who lived in Marion. The sheriff arrived after lunch and conferred with the prisoner. Reluctantly, and yet perhaps with a certain degree of relief, Fikes began to intimate that he had been involved in the house breakings. The sheriff, Captain Baker, and Chief of Police Mullen placed Fikes in a car and drove him around Selma to several of the houses which had been burglarized. At one of them, Fikes pointed out how he had obtained entry. On their return to the police station, the captain again talked to Fikes for several hours at the end of the day.

Beginning at 9 A.M., Captain Baker talked with Fikes for about two hours. Fikes now was openly admitting some part in the housebreakings, but his statements were far from conclusive. He mentioned, for example, the two attacks on a single night in 1948, involving Mrs. Manning and Mrs. McLaughlin, but he denied any part in the rape of Mrs. Stenson, the Air Force sergeant's wife. The police dusted off the shoes that had been found on Mrs. Manning's porch, and, sure enough, they fitted Fikes. He was given a 'blood test and found to be type "B." He was taken to a lineup, where he was identified 'by Mrs. Binford as the man she had seen in the bathroom of her home several weeks before.

The strange world of William Fikes was becoming clear to the officers now. On the surface, Fikes seemed to have lived out his humdrum days and evenings in Marion. But according to what he allegedly told the police, some inexplicable tension kept building up in Fikes to a point he could not endure, and so on many evenings, he would climb into his truck and drive past the big white courthouse, past the car cemetery on the edge of town, down the hill to the highway, and along the flat, open, lonely country towards Selma, thirty miles away, where he would begin his search, prowling alleys and peeping in windows.

After two days of questioning, Fikes had hinted at most of this, and now, on Tuesday, he rested in prison without visitors. On Wednesday, Captain Baker, the sheriff, and a doctor met at the prison shortly before noon and interrogated Fikes for a short while before lunch and for most of the afternoon and into the early evening. Each man asked questions, but Captain Baker asked the most. The next day was Thursday, May 21. During the day, William's father arrived at the prison, was denied admittance, and drove away. Captain Baker also arrived, carrying a tape recorder belonging to the City of Selma. He and a police lieutenant set up the machine in the chaplain's office and had Fikes brought in.

The captain asked Fikes specifically about the night the mayor's daughter was attacked. Fikes said he had broken into the house, found a butcher knife, and entered Mrs. Rockwell's room. He admitted he was attempting intercourse with "a white lady." With the addition of more details, the recorded interview ended.

Friday was another day of rest, but on Saturday the 23rd, a full week after he had been arrested, Fikes was again confronted by questioners. This time they were Captain Baker and Mr. James Hare, the circuit solicitor, who both arrived at the prison shortly after 11:30 A.M., with Mrs. Stenson and her husband. Fikes was brought in, and Mrs. Stenson, after looking closely at his eyes and listening to his voice, identified him as the man who had raped her. An attorney came to the prison to see Fikes during the morning but was turned away, allegedly because he had no authorization to represent the prisoner. Fikes had lunch about 12:30 and dinner about 4:30 P.M., with two officials interrogating him in between, and then a second tape recording was made.

That Sunday was the first time since his arrest that Fikes saw any member of his 'family. His father once again drove to the prison and this time was admitted for a talk with his son. No one came to see Fikes on Monday, but on Tuesday the warden, two county solicitors, a police lieutenant, and Captain Baker gathered in the warden's office at the front of the prison and questioned the prisoner for about an hour. The warden's secretary took down two confessions in shorthand and typed them up for Fike's signature–one dealing with the attack on the mayor's daughter, and the other with the rape of Mrs. Stenson.

The confession as to Mrs. 'Rockwell closely paralleled the tape recording which Fikes had made five days before. This was the first time, however, that Fikes had admitted either by recording or in writing that he had raped Mrs. Stenson.

The police and prosecutors now had what they wanted. Their cases against Fikes were airtight. The ten-day interrogation period ended, and on June 2, 1953, an Alabama grand jury returned seven separate indictments against Fikes–one for rape, and six for first degree burglary. All seven carried possible death sentences, since capital punishment 'could at that time be meted out in Alabama for any entry after dark of an occupied dwelling for the purpose of committing a felony–in this case, an entry with the felonious intent of ravishing a woman. No one thought more than one trial would be necessary; the Stenson rape case would be tried first, and with Fike's confession in hand, the prosecution considered a verdict short of death unthinkable.

Two local white attorneys, Hugh (later judge) Mallory, Jr., and Sam Earle Hobbs, were appointed by the court to defend Fikes against the rape charge. When they looked into their client's background and found such a low degree of intelligence, they arranged to have three Negro psychiatrists from the Veterans Administration Hospital at Tuskegee go to Kilby Prison on June 19. The psychiatrists interviewed Fikes for two hours, and the attorneys were heartened by their report. Fikes pleaded not guilty, and not guilty by reason of insanity.

A near-capacity crowd–one-third Negro and two-thirds white–turned out for the trial of Alabama v. Fikes in the Selma courthouse on June 22. His attorneys requested the judge to change the venue of the trial, to put the case over to a later date, and to be relieved as Fike's attorneys–this last request on the ground that they had not had sufficient time to prepare his defense. All three requests were denied, and the trial proceeded.

The star witness at the trial, of course, was Mrs. Stenson. The prosecutors, County Solicitor Henry F. Reese and Circuit Solicitor Hare, very much wanted her to make a positive identification of Fikes. Obviously, this was impossible, since her attacker had worn a mask and a rag about his head. Mrs. Stenson, however, was as positive as she could be under the circumstances. She testified that "to the best of my knowledge," she had identified a man at the prison "by his eyes and voice" as her attacker, and she pointed to Fikes as the man whom she had previously identified. She admitted under very careful and gentle handling on cross-examination that Fikes had been the only man brought before her for identification and that her attacker's face had been largely covered, but she nevertheless insisted that Fikes was the culprit.

There was other evidence, but the real battle developed over the written confession that Fikes had signed on May 26, admitting the rape. Twice, Judge Callen refused its admission on the ground that the police had failed to take Fikes before a committing magistrate promptly after his arrest, so that he could be warned of his rights. Finally, however, over vigorous defense objections, the judge allowed the jury to read the confession a'fter all of the officials involved in obtaining it testified that the police themselves had warned Fikes of his right not to speak and that the confession had been given voluntarily and not as the result of threats, coercion, or force.

The case went to the jurors–all residents of Selma–at 11:40 P.M. on June 23, the day after the trial began. Every one in town expected a quick decision. But at half past twelve, the jurors returned to ask Judge Callen whether there was a fixed sentence they could impose which the defendant would have to serve. Judge Callen told them that minimum sentence for rape was ten years, but that he could give no assurance that a defendant would serve any specified period of time. The jurors retired again.

At 1:10 in the morning, still deadlocked, they were shepherded by a sheriff to various offices and corridors in one wing of the courthouse, where they spent the night. By the middle of the next morning, the entire town knew that something had gone wrong in the jury room. What could possibly be holding things up? Finally, at 5:45 P.M. on June 24, a full eighteen hours after they had begun their deliberations, the jurors, looking utterly exhausted, filed back into the courtroom. The crowd had grown to two hundred, about half of them Negroes.

The foreman announced that the jury found William Earl Fikes guilty of rape. But, he added, ". . . [we] sentence him to ninety-nine years in the state penitentiary." There was shocked silence. The foreman said the jury had a further recommendation: that Fikes never be granted a parole. Judge Callen allowed the recommendation but pointed out that "it in no way has any bearing in this case nor in the future disposition of the prisoner.

It did not take long for the enterprising reporters of the Selma Times-Journal to discover what had occurred in the jury room. From the outset, the jurors had voted unanimously in favor of a conviction, and eleven to one in favor of the death penalty. The one dissenter said he simply did not believe in capital punishment. His fellow jurors pointed out that he had been questioned on that score when they were being impaneled, and he had failed to reveal his belief. The juror remained adamant. He would not agree to the death penalty, and that was that. The eleven other jurors had no choice but to give in and consent to a life sentence. The recommendation to the court that Fikes not be paroled was an added concession by the single dissenter.

When one of Fike's attorneys was asked whether there would be an appeal, he replied, "No comment. The case has too many angles to discuss it at the present time." The most important angle he had in mind was that Fikes had been lucky to escape the death penalty, and if the Alabama Supreme Court were to reverse the case, Fikes might not be so fortunate at a second trial. This tentative conclusion was discussed with the defendant and a definite decision reached: Fikes would not appeal.

The concern of the community that he might some day be released was allayed by an announcement from the circuit solicitor that he intended to prosecute Fikes on the next of the seven indictments. This time, Fikes would 'be tried for entering the home of the mayor's daughter with an intent to ravish her, also a capital offense.

By now, the plight of the twenty-seven-year-old Negro had reached the attention of the National Association 'for the Advancement of Colored People. Envelopes were passed out in Negro churches, soliciting money to aid in Fike's defense. Apparently the drive was successful, because two prominent Negro attorneys, Peter A. Hall and Orzell Billingsley, Jr., soon arrived from Birmingham. After various motions, the Rockwell case proceeded to trial on December 7, 1953. It lasted three days.

The courtroom was again filled almost to capacity, with some two hundred Negroes on one side of the room. Judge Callen again presided. Hare and Reese were joined by a special prosecutor for the state, Thomas G. Gayle.

Mrs. Rockwell, the first witness, told of the attack on her during the rainy night of April 24. She said her assailant had a towel draped over his head so that she saw only "one of his eyes." He was "real thin.. . real slender." She could not positively identify Fikes as the culprit.

Hall sought to put Fikes on the stand, but he wanted it understood that Fikes could be cross-examined only about the confessions. The prosecutor objected; if Fikes took the stand, he would open himself up to questioning on the entire case. It was a ticklish point, but Judge Callen ruled with the prosecutor, and Hall, rather than allow Fikes to be subjected to a full-dress cross-examination, advised his client to keep away from the stand altogether. And so Fikes did not testify, and the confessions were duly admitted into evidence against him.

For a second time a jury deliberated the fate of William Fikes. But no member of this jury was squeamish about the death penalty. After only forty minutes of consultation, the foreman announced: "We, the jury, find the defendant guilty of burglary in the first degree as charged in the indictment, and fix his punishment at death." For the first time in over ten years, a Dallas County jury had given the death penalty.

The problem which had bothered Fike's attorneys after his first trial did not confront Hall and Billingsly; they had nothing to lose by an appeal. And appeal they did, to the Alabama Supreme Court.

By the time the record had been certified, the briefs prepared and printed, the case argued, and the opinions written, a year and a half had passed. The Alabama Supreme Court rendered its decision affirming the conviction on May 12, 1955.

As to the confessions introduced against Fikes, the court concluded that all the evidence showed them to have been given voluntarily. Four justices joined in this opinion. Two other concurred in the result, stating that they thought it was error not to have allowed Fikes to testify only about the confessions, but under all the circumstances, they saw no reason 'for reversing the conviction. The seventh justice simply concurred in the result without comment.

Since questions under the United States Constitution were involved, the case was now ripe for appeal to the United States Supreme Court.

Feeling that Hall and Billingsley were primarily trial attorneys and that this case demanded the services of a more experienced appellate lawyer, the NAACP called in Jack Greenberg, the assistant counsel to the NAACP's Legal Defense and Educational Fund, to make the argument before the Supreme Court.

Greenberg had three arguments, all based on the Fourteenth Amendment. First, the confessions used against Fikes had been obtamed from him involuntarily. Second, Fikes was unconstitutionally denied an opportunity to testify for the limited purpose of attacking the confessions. And third, Negroes had been systematically excluded from the grand jury which indicted him.

Greenberg's job was to make the circumstances surrounding the confessions as suspicious as possible. The Supreme Court had held many times that it is a violation of the Due Process Clause of the Fourteenth Amendment to convict a man on the basis of a confession which is coerced from him. But what constituted coercion? The clear case, of course, is one in which a man is beaten until he agrees to write what he is told to write. But there are other methods equally effective, of making a man perform. Trickery, threats, promises, and a myriad of ruses and pressures can produce startling results.

Greenberg had no direct evidence of improper conduct by the police, but he tried to make up for the holes in his case by ticking off the suspicious circumstances surrounding Fiske's capture, extended interrogation, and trial, all of which Greenberg claimed spelled out a case of systematic coercion. He admitted that the Court's decision should not hinge on any arbitrary counting of the hours and days during which the prisoner was held for questioning; there was no magic cut-off point in time, after which the interrogation became unconstitutional. But all of the circumstances here, he said, showed a deliberate attempt to seal off the prisoner from any outside help until his will had been broken.

When Greenberg sat down, he was replaced at the lectern by Robert Straub, representing the State of Alabama. Straub had hardly begun speaking before he was bombarded with questions, and he was so persistently interrogated thereafter~ that the Chief Justice graciously allowed him extra time to complete his argument.

The Justices wanted to know why the police had failed to take Fikes before a committing magistrate. An Alabama statute specifically required the police to take a prisoner "forthwith" before a magistrate, and one of the purposes of the statute is to assure that each prisoner be informed of his constitutional rights, including his right to remain silent, prior to the time he is interrogated at length by the police. Fikes, however, had been questioned for more than a week before he ever saw a committing magistrate.

Straub had three answers when the justices asked him about this. First, the police' had testified that they themselves had warned Fikes of his right not to speak. Second, it was not at all unusual in Alabama for a man to be questioned at length before he saw a magistrate, particularly when the police were not sure they had the right man; the police had not singled out Fikes for special or unusual treatment. Third, the Alabama Supreme Court had held several times that even though the statute be violated, the prisoner's confession was not thereby automatically rendered inadmissible.

By the very nature of the case and through no fault of the attorneys, the oral arguments were not completely enlightening, and the Court must have felt a certain degree of frustration in attempting to deal with it. No one really knew for sure–certainly not the lawyers arguing the case–exactly what had occurred during Fikes's incarceration. It was true that the police officers had all testified that no coercion had been used, but police officers are never prone to admit they have violated someone's constitutional rights, and the Justices, from long experience in reviewing criminal cases, were not so naive as to believe that the officers' testimony was totally free from doubt. On the other hand, since Fikes had not been allowed to testify about the confessions, the officers' testimony stood unchallenged and unrefuted in the record.

Five weeks after the Fikes argument–a relatively brief period, considering the intervention of the Christmas recess–the Court rendered its decision. Fikes v. Alabama, 352 U.S. 191 (1957). Chief Justice Warren wrote the majority opinion and was able to garner the supporting votes of five other Justices–Black, Frankfurter, Douglas, Clark, and Brennan–although Justices Frankfurter and Brennan deemed it necessary to ad a few words of their own to what the Chief Justice wrote.

Warren discussed only the legality of the confessions, because the conviction was reversed on that ground and it thus became unnecessary to cover Greenberg's other arguments. For Warren and the Justices he carried with him, the question of due process rested not only on the events that had occurred, but on the type of person they had involved. The Chief Justice emphasized Fike's character, limited mentality, and background, with particular emphasis on the evidence of his insanity.

The reversal of Fikes's conviction for first degree burglary presented the Alabama authorities with a difficult decision. If the Supreme Court had reversed on either of the two other points raised by Greenberg-the failure to allow Fikes to testify about his confessions, or the discriminatory selection of the grand jury–Alabama undoubtedly would have tried Fikes again for the same offense, or proceeded against him on the next indictment. The grand jury would then have been more carefully selected, and Fikes would have been allowed to testify. But the Supreme Court had ruled that Fikes's confessions were invalid, which meant that those confessions could not be used at any future trial. Reviewing the record, the circuit solicitor concluded that Fikes could not be convicted of the attack on Mrs. Rockwell without the confessions. The only evidence linking Fikes to this particular attack was his blood type, which Judge Callen had not even allowed to be introduced in evidence, and Mrs. Rockwell's identification.

But the identification simply would not stand up, absent other proof. Fikes had worn a towel over his head, and even if a jury were to believe that Mrs. Rockwell could positively identify her assailant by a glimpse of one eye, a reviewing court would not. She had not been sufficiently definite at the trial. The circuit solicitor reluctantly decided that he would have to be content with the life sentence which Fikes was serving for the rape of Mrs. Stenson.

But if the decision reached by the circuit solicitor was difficult, the one confronting Fike's attorney was downright appalling.

One of the confessions in the Rockwell case which the Supreme Court had held unconstitutional had been obtained on the same day and by the same methods as the confession used against Fikes in the Stenson case. All of the legal infirmities of the Rockwell confession were applicable to the Stenson confession; and it was clear that Fikes had been convicted in the Stenson case as unconstitutionally as the Supreme Court had now held he had 'been convicted in the Rockwell case. Thus, assuming that the point could be raised properly in the Alabama courts, Fikes's attorneys were certain that they could obtain a reversal of the Stenson conviction.

But did they want to? Did they dare? Mrs. Stenson, unlike Mrs. Rockwell, had been quite certain that Fikes was the man who attacked her, and she had remained unshaken on cross-examination. If the Stenson conviction were reversed, the state almost certainly would try Fikes again, ignoring his confession and relying instead on Mrs. Stenson's identification, with evidence of other crimes as a type of corroboration. Everyone knew that Fikes had escaped the death penalty at his first trial solely because one juror had not believed in the death penalty. Would Fikes be as fortunate a second time? His attorneys thought not. They simply could not gamble his life on such odds.

And so the decision was made to do nothing at all about Fikes's conviction for the rape of Mrs. Stenson, even though a reversal would have been virtually assured. In effect, Fikes would go to jail, presumably for life, under an unconstitutional conviction.

The town of Selma was soon back to normal. The housebreakings stopped on the night of Fikes's arrest, the bars were taken off windows, and the police returned to their regular schedule.

William's father and mother and the brother who had never gotten into trouble lived on in Marion. Every other Sunday, Mr. and Mrs. Fikes packed their car and drove one hundred and forty miles to At-more Prison, north of Mobile, where William was moved from Kilby. When they arrived at the prison, they stayed as long as they could with William, telling him the news they had stored up for two weeks, and when they went, they left him a large basket of food.

Every other Sunday, it was the same story. As soon as they reached the outside of the prison, Mr. Fikes asked his wife, "How do you think Baby looks?"

And Mrs. Fikes replied, "I think Baby looks just fine."

*******

That would have been the end of the Fikes story, except that in late 1974, over 21 years after William Fikes's arrest, his son visited the author of this article and asked if anyth'ng could be done to obtain his father's release. The son pointed out that his father had been transferred to the Mount Meig Diagnostic Center, a prison facility, and was being treated for tuberculosis. The son felt that due to the passage of time, there was little chance that witnesses would' still be available for a retrial, and therefore a reversal of his father's conviction would probably mean freedom and a return to his family.

The author assigned a young attorney, Edward F. Glynn, Jr., Esq., to look into the matter. Glynn filed a petition for a writ of habeas corpus with the United States District Court for the Middle District of Alabama in December 1974, and traveled to Alabama to argue the petition. The State argued that the confessions in the Rockwell and Stenson cases were sufficiently distinguishable, and that in any event Fikes had waived his rights by not appealing the Stenson conviction.

On January 21, Judge Robert E. Varner, Jr., granted the writ. He held that the two confessions were obtained in so similar a fashion that they must suffer the same fate; the Supreme Court's opinion in the Rockwell case controlled. As to waiver, the Court held that Fikes had not appealed his Stenson conviction for fear of receiving the death penalty in a retrial, and therefore, under Fay v. Noia, 372 U.S. 391 (1963), he could not be denied habeas corpus because he had by-passed a state court remedy.

Alabama decided not to appeal this decision and not to re-try Fikes. Therefore, on March 24, 1975, Judge Varner ordered Fikes released from prison. Just 22 years after his unconstitutional conviction, "Baby" returned to his family