Thirty-five years ago, the U.S. Attorney’s office in the Southern District of Alabama played a crucial role in ensuring that the lynching of 19-year-old Michael Donald by two members of the Ku Klux Klan was investigated and punished.
That gruesome case has become newly relevant with the nomination of Alabama Senator Jeff Sessions to run the Department of Justice. Sessions was the U.S. Attorney for the Southern District when the Donald case was tried.
In 1986, Session’s nomination for a federal judgeship was rejected after one of his former subordinates, Thomas Figures, alleged that Sessions called him “boy,” made remarks disparaging civil-rights organizations, and made jokes about the KKK, even as his office was investigating the Donald lynching. Civil-rights groups have harshly criticized Sessions’s nomination, arguing that he is hostile to federal anti-discrimination and voting-rights law. Six members of the NAACP, including president Cornell Brooks, were arrested in early January after staging a sit-in at Sessions’s Mobile office.
After Sessions’s nomination was announced, CNN’s Jake Tapper asked incoming White House Chief of Staff Reince Priebus whether Sessions’s record suggested he would be hostile to reforming local police agencies accused of racial bias. “Look at this man's life,” Priebus replied, citing the Donald case. “He prosecuted that person … for the murder. He then presided over the execution of this person.”
Other defenders of Sessions have used the Donald case in similar ways. A letter from 23 former assistant attorney generals cited the fact that he had “worked to obtain the successful capital prosecution of the head of the Alabama Ku Klux Klan” as evidence of his “commitment to the rule of law, and to the even-handed administration of justice.” The Wall Street Journal said that Sessions, “won a death-penalty conviction for the head of the state KKK in a capital murder trial,” a case which “broke the Klan in the heart of dixie,” and The New York Post praised him for having “successfully prosecuted the head of the state Ku Klux Klan for murder.” Grant Bosse wrote in the Manchester, New Hampshire, Union Leader wrote that “when local police wrote off the murder as a drug deal gone wrong, Sessions brought in the Justice Department's Civil Rights Division, and brought Hays and the Klan to justice.”
Sessions himself recently listed the case as one of the “ten most significant significant litigated matters” he had “personally handled” on his Senate confirmation questionnaire. And in 2009, Sessions told National Review that there had been a campaign to “smear my record,” whereas in fact, he had “prosecuted the head of the Klan for murdering somebody.”
No one involved in the case disputes that Sessions lent his support to the prosecution. “Not all southern United States attorneys welcomed civil-rights division attorneys into their districts back then,” said Barry Kowalski, a former civil-rights division attorney who was one of the main lawyers on the investigation, and who defended Sessions in his 1986 confirmation hearing. “He did, he cooperated with us completely.”
However, in seeking to defend Sessions from charges of racism, Sessions’s allies, and even Sessions himself, seem to have embellished key details, and to have inflated his actual role in the case, presenting him not merely as a cooperative U.S. attorney who facilitated the prosecution of the two Klansmen, but the driving force behind the prosecution itself. The details of the case don’t support that claim.
ichael Donald’s lifeless body was found strapped to a tree in Mobile with thirteen knots, a “Klan signature,” as author Lawrence Leamer puts it in The Lynching: The Epic Courtroom Battle That Brought Down the Klan, his history of the Donald case. He had been beaten savagely, his throat had been slashed, and “his blue jeans and blue jeans jacket were covered in dirt and dried blood.” A cross was burned on the lawn of the Mobile courthouse a few hours before Donald’s body was discovered.
Even so, Leamer wrote, Montgomery police disregarded the possibility that Donald had been lynched. Instead they pursued theories that Donald had been sleeping with a white co-worker at the Mobile Press-Register, where he worked part-time, and had been killed in retaliation. They told reporters that Donald had been murdered in a drug deal gone bad, and arrested three men who were later found to have nothing to do with the case. It had “nothing to do with race,” but rather, “three junkies had killed this lowlife black man who thought he could take drugs from them and not pay.”
When the Donald family’s lawyer, State Senator Michael Figures, suggested that “extremists” were involved, according to a 1989 article in the Los Angeles Times, white people accused him of “stirring up racism.”
When the drug-dealer and affair theories didn’t pan out, police “tried to gather evidence that Donald had led a secret criminal life.” Learner detailed their efforts. “A white transvestite prostitute volunteered that he had slept with Donald and that the teenager was a “hustler.” When the prostitute saw Donald’s photo in the paper, he admitted it did not look like the man he knew, but the police, nonetheless, tried to validate his story. They found someone else who said that Donald was a drug dealer.”
The fact that a prominent Klansman recently owned property across the street was seen as simply more evidence the Klan could not have been responsible. The head detective believed “the Klan would not lynch somebody practically on their own front lawn,” according to Leamer. The cops told the FBI this was a simple street crime, so they lost interest.
It would later become clear that Donald had been lynched because the Klan sought to make an example of any black man it could find. A mistrial had recently been declared in the prosecution of a black man, Josephus Anderson who had killed a white police officer named Gene Ballard. (Anderson was later retried and convicted.)
Witnesses later testified that Bennie Jack Hays, the second-highest-ranking Klansman in Alabama, had said at a KKK meeting after the mistrial, and two days before Donald’s death, “If a black man can kill a white man, a white man should be able to get away with killing a black man.” Hays told the two Klansmen who eventually carried out the lynching that they shouldn’t do it until after he closed on the sale of a pair of properties on the street where they intended to leave the body.
“The police department told me when they looked at it, ‘You’ll never solve that case, it’s just an unsolvable case,’” said Bob Eddy, a former state criminal investigator who worked the Donald case. “You just have to know the climate in those times, most of those guys who were law enforcement, not all of them, but most of those guys, a lot of those guys, they didn’t care if you killed a black guy.”
The Donald family later said that the motivation behind the murder was immediately obvious to them. “Black people don’t hang people,” Donald’s sister Betty Wyatt told Michael Wilson of the Mobile Register in 1997. The black community in Mobile organized protests to express their frustration with authorities and the lack of progress in the case, and civil rights leaders like Jesse Jackson and Joseph Lowery urged them to keep up the fight.
Michael Figures’s brother Thomas, an assistant U.S. attorney then working under Jeff Sessions, and the only black assistant U.S. attorney in the state, watched as the local authorities botched the investigation. According to Leamer, Thomas Figures was “endlessly” persistent in trying to get the civil-rights division in Washington, D.C., to reopen the investigation into Donald’s murder, and worked with an FBI agent named James Bodman to obtain the evidence needed to reopen the case. The New York Times Magazine and the Mobile Register likewise credited Figures as the driving force behind getting the Justice Department to take a second look at the killing.
“Mr. Figures definitely did not want the case to end,” Sessions testified in 1986. By 1983, the FBI had reopened the investigation and managed to get one of the local Klansmen to slip up and implicate one of the murderers. “After hearing a lot of lies and following many unproductive leads, Figures and Bodman uncovered one key fact,” that on the night of the murder, one of the perpetrators had “returned to Bennie Hays's house with blood on his shirt,” the New York Times Magazine reported in 1986. “With this new evidence, the Justice Department convened an investigative grand jury in Mobile.”
By Kowalski’s account, which is backed up by Eddy and others, Sessions played a “supervisory role” and “couldn’t have been more cooperative and helpful in the case.” For instance, Kowalski recalled Sessions allowing them to use his office to interview Klan members, who Kowalski said found the official trappings of a federal prosecutor’s office intimidating.
“Sessions asked what we needed, and I said, in order to get a capital murder conviction, we need these things, and he said that in that regard whatever the federal agents did or the FBI did he would make those things available,” said then-Assistant District Attorney Thomas Harrison, who prosecuted Hays in state court. “He did in fact do that.”
Chris Galanos, the District Attorney and lead prosecutor on the case before he was replaced by Harrison, claims that he and Sessions were the reason the federal investigation into Donald’s murder was reopened. “I believed then, and I believe now,” Galanos said, “that were it not for his assistance, the case would have remained unsolved for an indefinite length of time.” (Most accounts, including that of Leamer, the New York Times Magazine, the Mobile Register, do not describe the investigation this way––the latter two do not even mention Sessions in their lengthy accounts of the case).
Figures recalled a more complicated story as far as Sessions’s involvement is concerned.
In 1986, Figures testified before the Senate that while it was “literally true” that Sessions had not “obstructed the investigation of the murder of Michael Donald,” Sessions had “tried to persuade me to discontinue pursuit of the case.” Figures said that Sessions “remarked, with regard to the investigation, that the case was a waste of time, that it wasn’t going anywhere, that I should spend more time on other things, and that, if the perpetrators were found, I would not be assigned to the case.” Figures told the Senate that after the case went to the grand jury, and it “became increasingly apparent that we were going to break the case, Mr. Sessions attitude changed” and that he supported the prosecution.
Sessions’s statements to the Senate in 1986 about his supervisory role in the case are more modest than what he and his supporters say today, and while his testimony at the time generally did not directly contradict Figures’s account, Sessions insisted that he did not urge Figures to drop the case.
“He asked the FBI to go out and re-interview witnesses, and I concurred in that, or I was aware of it, and they were reinterviewed,” Sessions said. “And I remember distinctly saying, ‘We need to know who did this murder, and we do not have proof now, but we need to go do something about it.’”
In his 2016 Senate Judiciary Committee questionnaire, Sessions wrote “When I became the U.S. Attorney for the Southern District of Alabama, I, along with Assistant U.S. Attorney Thomas Figures and the Civil Rights Division of the Department of Justice, worked to solve the murder.” The questionnaire also accurately identifies Hays as the “son of the local Klan chieftain.”
The federal attorneys were ultimately successful in forcing one of the perpetrators, Tiger Knowles, to testify against his accomplice Henry Hays, Bennie Hays’s son, and to plead guilty to a federal civil rights charge. The evidence they collected gave the state the crucial support it needed to pursue a murder charge against Hays.
Hays was prosecuted in state court by Harrison, a local assistant district attorney. Kidnapping and murder were not capital offenses, so in order to make Hays eligible for the death penalty, state prosecutors argued that Hays’s theft of a dollar from Donald turned the crime into murder in the course of a robbery––a crime punishable by death.
“The amount is not relevant, it’s the fact that he stole, that he took something from somebody holding a gun on him saying, give me whatever’s in your pocket,” explained Harrison. “That constitutes robbery under the laws of the state of Alabama, and was sufficient to bump it up from a murder case to a capital murder case and that’s what I wanted to do. I wanted a capital murder conviction of Henry Hays.”
It was a longshot, but the jury, and crucially, the judge, bought it. The jury convicted Hays and recommended life in prison, but the judge overturned the sentence and gave Hays the death penalty.
Hays was not the head of the KKK in Alabama, as Sessions would later claim to National Review––his father, Bennie Hays, was the second-highest-ranking Klansman. According to his brother Raymond, Henry, 27 at the time, committed the crime in part to impress his father, Raymond told the Register. Bennie Hays was later charged in connection with the murder, but he died in 1993 before he could be convicted.
Sessions has suggested that he played a major role in deciding that the case be tried in state court. “I insisted that the case eventually developed against one of the klansmen be sent to state court and tried there, despite our desire to be involved in it, because Alabama had the death penalty or life without parole,” Sessions testified in 1986.
But he had little choice––at the time, there was no way to prosecute a racist murder under federal law. The only option would have been an endlessly convoluted charge of conspiracy to deprive black defendants of a fair trial by intimidating witnesses, a crime in which Donald would not even have been the victim.
“To try to explain that charge to a jury would not be easy, there was a lot more we had to prove than first-degree murder, and secondly our the federal system in this country, we give the primary authority for prosecuting criminal acts to the state,” Kowalski said. “So unless there’s a particular reason not to let a state go forward we normally let the state prosecute.”
That made prosecuting Hays in state court the obvious, if not only possible decision––one Kowalski said both he and Figures recommended to their respective bosses.
After Hays’s conviction and death sentence, Sessions served as Alabama attorney general during his appeal, and opposed ameliorating his sentence. He took that stand against the wishes of civil-rights groups like the NAACP Legal Defense Fund, which arranged for Hays’s representation by Rick Kerger during his appeal.
The author B.J. Hollars wrote in Thirteen Loops that Kerger was initially surprised by the request made by the NAACP LDF, but was told, “we work against the death penalty no matter who it’s directed against.”
That position persists to this day. As Dylann Roof, the white supremacist who gunned down nine black parishoners in a church in South Carolina in 2015 faced trial, NAACP LDF legal director Christina Swarns wrote a New York Times op-ed explaining that ”supporting the death penalty for Mr. Roof means supporting the use of a punishment that will continue to be inflicted on people who are nothing like him.”
s Alabama state prosecutors were trying Henry Hays, the segregationist turned civil-rights activist and Southern Poverty Law Center founder Morris Dees was hatching a plan to go after the United Klans of America as a whole, by trying them to the killing and suing them in civil court. The UKA was involved in many of the most infamous racist crimes of the civil-rights era, from the beating of freedom riders, to the bombing of the 16th Street Baptist Church, to the assassination of the civil-rights activist Viola Liuzzo.
The idea, Leamer wrote, was that Dees would accuse the UKA of having a mock military structure, meaning that the killing of Michael Donald was an act encouraged by the group’s leader Robert Shelton, making the UKA itself liable. Dees “did not intend to argue that Shelton was directly involved with the murder,” Leamer wrote. “Instead he would allege that the Imperial Wizard headed an organization with a military structure whose custom, practice, and policy was to advance the goal of white supremacy through violence.”
It was a risky legal theory, Leamer wrote––most of Dees’s colleagues at the SPLC didn’t think it would work, and the judge in the case was extraordinarily skeptical at the outset. But as Leamer and Hollars wrote, there were several factors that turned in Dees’s favor. The first was that Beulah Mae Donald, Michael Donald’s mother, who was represented by Thomas Figures’s brother Michael, agreed to allow the case to be filed in her name. Shelton’s attorney, John Mays, did not offer a defense, or seek a directed verdict from the judge. Dees skillfully played the Klan members against one another, obtaining internal UKA documents that would prove to be pivotal during the trial, and he exploited Mays’s failure to take the case seriously.
But the most powerful moment during the trial was the testimony of Tiger Knowles, who stoically recited his role in the murder, apologized to Beulah Mae Donald, and implicated the Klan as an organization in Donald’s death, imploring the jury to find the UKA liable.
“I do hope you decide a judgment against me and everyone else involved. And whatever it is, it may make a hardship,” Knowles told the court. “But I hope you decide on it. Because you people need to understand that this can’t happen.”
The jury returned a $7 million verdict that bankrupted the organization, leaving one of the most dangerous iterations of the KKK fatally weakened. In 1994, Shelton told the Associated Press that ''The Klan is my belief, my religion. But it won't work anymore. The Klan is gone. Forever.''
Richard Cohen, the legal director of the SPLC, and one of the attorneys representing the Donald family, said that “in addition to helping to develop the evidence in the criminal investigation that we used, Sessions’s office was helpful in arranging for an FBI agent to testify for us at the civil trial.”
It was however, the civil case pursued by the SPLC, not the prosecution of Henry Hays, that “broke the Klan in the heart of dixie.” Hays was not the head of the KKK in Alabama, and he was prosecuted by state authorities, not the U.S. attorney’s office. And according to Sessions’s former subordinate Thomas Figures, that prosecution would never have occurred had Sessions had his way.
Figures was later charged with attempting to bribe a witness in a drug case. He was acquitted, and went on to serve as a municipal judge. His supporters argued that the charge was retaliation for his testimony against Sessions, who said he had recused himself from the case. Asked by the New York Times about the allegation, Sessions said "I'm sorry people see it that way. It is a matter I would like to see behind me, and I'm sorry to see it come up again."
essions’s role in investigating the Donald murder has been a go-to rebuttal to the decades-old allegations of racism.
“Those who try to argue that Sessions is a racist have to reckon with his legal track record — a record that included pursuing the ultimate penalty against a Klan killer,” wrote David French in National Review.
While Sessions’s remarks about race are likely what derailed his nomination to a federal judgeship in 1986, civil-rights groups today have focused not just on those remarks, but also on the record on civil rights he has amassed since. Given that many of these groups have consistently opposed the use of the death penalty, Sessions’s support for its use in the Donald case seems more likely to reinforce than to allay their concerns.
It would be out of character for Sessions not to have supported the death penalty in the Donald case––Sessions is such a staunch supporter of the death penalty that in 2002 he publicly opposed the Supreme Court decision ruling that execution of mentally disabled people violated the Constitution. “The Court seemed to say that they had divined, somehow, that the American people had evolved in their thinking and, therefore, the laws their legislatures had passed were not valid anymore; that they could not execute people who were retarded,” Sessions said.
Supporters have repeatedly pointed to Sessions’s record to insist that he is in fact a champion of civil rights. But as in the Donald case, those claims have rarely held up to close scrutiny. Despite once claiming to have filed dozens of desegregation cases, Sessions appears to have filed none––instead taking credit for work done by the civil-rights division on which his signature was included merely as a formality. By contrast, one of Sessions’s signature efforts as a prosecutor was an attempt to convict three voting-rights activists on charges of fraud for assisting elderly voters in filling out ballots.
Sessions’s record as a senator has led civil-rights groups, including the NAACP, the Leadership Conference on Civil and Human Rights, and Color of Change, to oppose his nomination and question whether he would fairly administer laws protecting against discrimination on the basis of race, gender, or sexual orientation. He opposed the decriminalization of homosexual sex, opposed same-sex marriage, blamed school shootings on laws protecting disabled students, and supported the Supreme Court decision striking down key portions of the Voting Rights Act, saying “now if you go to Alabama, Georgia, North Carolina, people aren't being denied the vote because of the color of their skin." More recently, he was among the first to back Donald Trump’s proposal for a ban on Muslims entering the country, and trivialized the president-elect’s admission of sexual assault.
The Trump transition has urged supporters to highlight Sessions’s “strong civil rights record.” But the more closely that record is examined, the less it looks like the record of a civil-rights advocate of any kind, and the more it appears to be the standard, unremarkable record of a longtime conservative Republican from a Southern state.