“We Done Shot the Wrong NIGGER”: The Bernard Whitehurst Story

By: Donald V. Watkins

©Copyrighted and Published (via Facebook) on May 9, 2014; Updated and Republished on March 2, 2018; Republished June 22, 2020

“We done shot the wrong nigger”, screamed the voice on a Montgomery, Alabama police radio shortly after 4:30 p.m. on December 2, 1975.

These chilling words were spoken by an unnamed police officer immediately after the fatal shooting of Bernard Whitehurst following a police chase through a poor black neighborhood on Montgomery’s West side. Whitehurst, a 30-year-old black janitor, was walking home when he was spotted by white police officers who were looking for a black male who reportedly had robbed a Westside food market of $35. Like many blacks in the 1970s, Whitehurst had a psychotic fear of white police officers. He immediately started running from them.

Whitehurst raced through the streets and was chased into the backyard of an abandoned house on Holcombe Street. As he climbed a fence behind this house, officer Donnie Foster shot Whitehurst, twice. Whitehurst gasped for air and collapsed. Within minutes, he was dead.

Montgomery Public Safety Director Ed Wright and Police Chief Charles Swindall were enroute to the scene during the police chase and were standing over Whitehurst’s body within three minutes after his death.

A gun was located 27 inches from Whitehurst’s body, and this gun had been fired. It seemed like an open and shut case of self-defense and the shooting of a fleeing felon – something Montgomery police officers were authorized to do in 1975.

Within days of the shooting, Ms. Ida Mae Whitehurst, Bernard’s grieving mother, and Florence Whitehurst, his wife, hired me to investigate his death. What I uncovered over the next sixteen months was startling and would rock the very foundation of the police department for years to come.

During this period, the Whitehurst case would become the largest police scandal in Montgomery’s history. This scandal was headlined in the April 3, 1977, edition of the Washington Post as “Alabama’s Watergate”.

In the aftermath of this scandal, James Robinson, the City’s moderate mayor, and Colonel Ed Wright, its top cop, resigned. Eight other police officers were fired or had to resign because of a massive police cover-up of this police shooting.

This is What Happened and Why.

Initial police reports claimed that Whitehurst was shot and killed in an exchange of gunfire as he faced Foster in a crouched position holding a pistol aimed at the officer. Whitehurst fired several shots at Foster, who heroically returned the fire by pumping two bullets into Whitehurst's body, one of which was fatal.

The police department produced a material witness to these events - a black sanitation worker named James Adams, who signed a statement supporting the department’s version of the shooting. Police claimed that Adams came to them unexpectedly.

I quickly discovered that Adams was in jail more than 100 miles from the scene when Whitehurst was killed. Adams had a past criminal record and had been the subject of a state psychological evaluation. The results showed that Adams was unable to read or write, and had been described by a psychologist as “being incapable of self maintenance.” Adams later claimed that he was pressured by a police detective to sign a false statement about the Whitehurst case.

Next, I located a witness who was standing next to a patrol car about two minutes after Whitehurst was killed. The witness overheard one of the officers screaming over the radio, “We done shot the wrong nigger”. I requested the police radio call recording for the afternoon of Whitehurst’s death. I was promptly told that the tapes for that day had been recorded over and were no longer available as evidence in the investigation.

I discovered that the clothing Whitehurst wore on the day he died did not match the description of the clothing worn by the robber. Also, neither the store’s owner nor its sole employee on duty that afternoon could identify Whitehurst as the robber in pictures shown to them by police. Additionally, Whitehurst had $500 tied up in a sock and $20 in his pocket when he died, not the $35 taken in the robbery. This $520 was later given to his wife.

The police department failed to follow standard crime scene procedures after the shooting. They failed to conduct a Paraffin test on Whitehurst’s hands to test for gunpowder residue. This test would have confirmed whether Whitehurst had fired the gun found next to his body. Police also failed to perform an autopsy on his body to confirm the entry and exit wounds of the bullets. Autopsies were routine in homicide cases in those days.

I then received a big tip in the case. A reliable source informed me that the gun found near Whitehurst’s body was “planted” there by investigating detectives who arrived on the scene after the set of first patrol officers. Patrolmen Rayford Latham and Danny Phillips arrived on the scene within seconds of the shooting. They immediately looked for a weapon and did not see the gun that investigating detectives later told them was lying only 27 inches from Whitehurst’s hand. Phillips was not asked by investigators to give a written statement. Latham was told by investigators, ”You seen it – you just didn’t look close enough.” He got the message. Both officers subsequently resigned.

The gun that police said had been used by Whitehurst during the shootout with Foster had actually been confiscated by police during a 1974 drug raid, and had been logged into the department’s evidence room. It was literally impossible for Whitehurst to have gained access to this weapon. According to the evidence log, the gun was still in the police department.

By now, I was beginning to receive a growing wave of death threats and they were starting to bother me. I was 28-years-old with a young wife and four young sons. I was told to back off, or I would be killed. They also threatened harm to my children. The one threat that caused me the most anguish and concern was a late night phone call I received where the white male caller said that he would throw acid in my children’s faces if I kept pushing this case.

I reported the threats to Montgomery County District Attorney Jimmy Evans and shared all of the information I had developed with him. Evans was a brave man who could not be bullied or threatened by the police department. He had already convened a grand jury to investigate the Whitehurst shooting.

I asked Evans to exhume Whitehurst’s body, and he agreed to do so. On June 29, 1976, the body of Bernard Whitehurst was exhumed. State toxicologists conducted an autopsy to determine from which angle the two bullets entered Whitehurst’s body. The police bullet that killed Whitehurst entered through his back, according to the autopsy report. Whitehurst was not facing Foster in a gunfight, as Foster had claimed. Instead, he was shot in the back as he was climbing the fence.

Months later, I discovered an August 13, 1976, internal police department report written by Lt. J.C. Cunningham. The report disclosed the many lies told by police officers, the attempted cover-up of Whitehurst's death, and the department's aggressive work to prepare a defense instead of searching for the truth. The report also disclosed a key fact - Detective Cecil Humphries, one of the investigators on the scene, acknowledged that he secretly fired the rounds out of the gun found next to Whitehurst after checking and noticing that no rounds had been fired.

Armed with all of this information, Evans indicted three officers for perjury. The first trial, involving Detective Thomas Litaker, resulted in a mistrial. The other officers were never tried.

Attorney General Bill Baxley took over the grand jury investigation from Evans. He later reached an agreement with City officials that would be dispositive of the case. Under the agreement, polygraphs would be administered to 10 police officers concerning the events in the Whitehurst case. Officers that failed the test would be immediately fired. Those who passed the test would receive apologies.

Colonel Ed Wright failed his polygraph test and voluntarily retired from the department. Four officers, including Cecil Humphries, failed their polygraph tests and were fired. Two officers refused to take the test and resigned. Latham and Phillips had resigned earlier, rather than joining the police cover-up of Whitehurst’s death.

Chief Charles Swindall and three other officers passed their polygraph tests. Mayor Robinson passed his test, but was never able to regain the public’s trust because of this scandal. He resigned before his term ended.

A federal lawsuit I had filed on April 12, 1976, on behalf of Ms. Whitehurst and the Whitehurst family for $7 million in damages ended with a jury verdict in favor of the City of Montgomery, Wright, and Swindall. A six member all-white jury deliberated about two hours before ruling in the City’s favor. The verdict thrilled Judge Robert Varner, an ultra-conservative white federal judge. Varner truly enjoyed his long and distinguished track record of ruling against black civil rights plaintiffs in his court. Ms. Whitehurst’s subsequent appeal was lost on April 5, 1979, when the all-white U.S. Fifth Circuit Court of Appeals panel hearing the case upheld the jury's verdict.

Political efforts to settle the case with the Whitehurst family failed after the City’s defense counsel recommended that no settlement offer be made. Emory Folmar, the new mayor was also vigorously opposed to a settlement.

The Reckoning

On July 17, 2012, the Whitehurst family received a resolution from the City expressing only “condolences, sympathies, and regret” for Bernard Whitehurst’s tragic death. The City made no apology, nor did it compensate the Whitehurst family for his wrongful death.

On April 16, 2013, the City unveiled a memorial dedicated to the Whitehurst case and placed it in front of the police department. Titled, “Montgomery Learning from the Past”, this memorial is the way the City chose the close the books on the Whitehurst chapter in its racial history. The historical marker acknowledged that: “Whitehurst, 32, did not match the robbery suspect’s description; that he was unarmed, despite police claims that they returned fire after being fired upon; that the gun found by his body had been confiscated by police in a drug investigation a year earlier, and was placed at the scene as part of a police cover-up."

Bernard Whitehurst, like so many African-American suspects during this era, was summarily executed by a police officer simply because he was the wrong color on the wrong day and was in the wrong place at the wrong time. He did not deserve to die that cold December afternoon. The $500 Whitehurst had tied up in his sock was the Christmas money he had saved for his wife's gift and his kids' toys.

Epilogue

Bernard Whitehurst was not a “nigger”; he was a devoted husband, father, brother, and son to the family that loved him. Above all, Bernard Whitehurst was a wonderful human being who deserved to be treated as such, in life and in death.

As for me, many good police officers in the Department, both black and white, protected my family and me from the threatened physical harm throughout the Whitehurst case. One of them was corporal Sidney Williams, who retired as a major in the Department. Williams was a client of mine who sued the Department in 1975 for using racially biased promotional tests that had not been validated in accordance with EEOC Guidelines. We won his case and the tests were scrapped. This victory cleared the way for a host of black officers to rise through the ranks of the Department all the way up to the rank of police chief. After his retirement, Williams became the chairman of the Alabama Pardons and Parole Board, where he served as a board member with distinction for eight years.

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PHOTO: Bernard Whitehurst lies in his casket after being fatally shot in the back by Montgomery Police officer Donnie Foster on December 2, 1975. Foster falsely claimed that Whitehurst was an armed fleeing felon who was shooting at him. It was later determined that Whitehurst was an unarmed and innocent black man who happened to be in the wrong place at the wrong time. His summary execution by Foster created a police scandal that the Washington Post called "Alabama's Watergate".

PHOTO: To find out the truth about how Bernard Whitehurst died, Donald Watkins (far right) had his body exhumed for an autopsy. Police officials did not perform an autopsy after Whitehurst was fatally shot by Officer Donnie Foster.

PHOTO: Bernard Whitehurst's body was well preserved when his casket was reopened for the autopsy.

PHOTO: Police claimed that Bernard Whitehurst was facing them when he fired several shots in their direction. The autopsy photo below showed that Whitehurst did not have any bullet entry wounds in his chest, meaning he could not have been facing police in a shootout.

PHOTO: When Bernard Whitehurst's body was turned over, the bullet entry would in his back was clearly visible. The photo below proved that Whitehurst was shot while running from police officers, as opposed to engaging them in a face-to-face shootout. It was later determined that police planted a gun next to Whitehurst's body after they killed him.

PHOTO: In 2013, the City of Montgomery erected a historical marker outside of its police headerquarters that admitted, for the first time, the true story of Bernard Whitehurst's death and police cover-up. Whitehurst's family was never compensated for his death.