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Judge George M. Fountain's Wilmington Ten Case File


A native of Tarboro, Edgecombe County, George Motz Fountain, Jr., was born in 1914 to George M. and Mary Royal Motz Fountain. After attending the University of North Carolina at Chapel Hill, 1932-1934, and earning a law degree from Cumblerland University Law School in Tennessee in 1935, Fountain began the practice of law in Tarboro with his father. At the time of the legal proceedings in the case considered, Judge Fountain was the Resident Judge of the Seventh Judicial District of North Carolina.Collection includes a small quantity of materials, chiefly photocopies, related to the case of State of North Carolina vs. Benjamin F. Chavis et al, dating 1971-1978. Documents includes briefs, trans ... (more below)

Title

Judge George M. Fountain's Wilmington Ten Case File

Collection Number

PC.1985

Date(s)

1971-1978

Language

English

Physical Description
Box
1 legal size
Cubic feet
.5
Abstract

A native of Tarboro, Edgecombe County, George Motz Fountain, Jr., was born in 1914 to George M. and Mary Royal Motz Fountain. After attending the University of North Carolina at Chapel Hill, 1932-1934, and earning a law degree from Cumblerland University Law School in Tennessee in 1935, Fountain began the practice of law in Tarboro with his father. At the time of the legal proceedings in the case considered, Judge Fountain was the Resident Judge of the Seventh Judicial District of North Carolina.

Collection includes a small quantity of materials, chiefly photocopies, related to the case of State of North Carolina vs. Benjamin F. Chavis et al, dating 1971-1978. Documents includes briefs, transcripts, petitions, judgments, and related legal materials created or received by Judge Fountain assigned to hear a request for a retrial of the Wilmington Ten case. The Wilmington Ten were tried for fire bombing a grocery in Wilmington and for conspiring to assault the firemen and police who responded to the fire. Includes one hand-written legal pad of of notes apparently made by George M. Fountain, 46 pages, citing examinations of Jerome Mitchell, and noting dates from 6 February 1971 to 15 March 1977.

Physical Location

For current information on the location ofthese materials, please consult the Public Services Branch, North Carolina State Archives.

Creator

Fountain, George M., 1914-1997.

Repository

State Archives of North Carolina


No apparent original order as received. Folders arranged chronologically and by subject.


Available for research.


Copyright is retained by the authors of these materials, or their descendants, as stipulated by United States copyright law (Title 17 US Code). Individual researchers are responsible for using these materials in conformance with copyright law as well as any donor restrictions accompanying the materials.


Processed by Fran Tracy-Walls, 2011 and 2012

Encoded by Fran Tracy-Walls, 2012


A native of Tarboro, Edgecombe County, George Motz Fountain, Jr., was born in 1914 to George M. and Mary Royal Motz Fountain. After attending the University of North Carolina at Chapel Hill (1932-1934) and earning a law degree from Cumblerland University Law School in Tennessee in 1935, Fountain began the practice of law in Tarboro with his father, until the latter's death in 1940. Active in the political, civic, and religious life of the area, Fountain held such offices as president of the Edgecombe County Young Democratic Club, town mayor(1941), and member of the Board of Trustees of the First Baptist Church.

During World War II, Fountain served in the U.S. Army from 1942-1945, then resumed his practice of law in Tarboro. In 1945 he began service as the solicitor of the Second Solicitorial District, including Nash, Edgecombe, Wilson, Martin, and Washington counties, and in 1953 was appointed to a special judgeship of the Superior Court. During that era judges were rotated, moving from district to district on a regular six-month basis. In 1962 Judge Fountain was elected Resident Judge of the Seventh Judicial District, encompassing Edgecombe, Nash, and Wilson counties. He served in that capacity until retirement in 1982, and became for several years thereafter an emergency judge assigned by the North Carolina Supreme Court to various venues. Judge Fountain had the distinction of being the first Superior Court judge to serve in all 100 counties of the state. He died in Tarboro on April 27, 1997, at the age of 82.

The Wilmington Ten were tried for fire bombing a grocery in Wilmington and for conspiring to assault the firemen and police who responded to the fire. The incident occurred during a period of protests against racial discrimination and segregation.

Sources: Obituary from the  Rocky Mount Telegram, April 28, 1997, and several news articles from the vertical file on Judge Fountain in the Edgecombe County Memorial Library, Tarboro. Articles were in the  Daily Southerner (Tarboro), October 31, 1953; November 7, 1953; June 3, 1985.

1935 Received law degree from Cumberland University Law School and began practice of law in Tarboro. 1945 Appointed district solicitor by Governor Gregg Cherry. 1948 Formed private law parternship with C.H. Leggett of Tarboro. 1953 Appointed special Superior Court judge by Governor William B. Umstead. 1962, April Elected Resident Judge of the Seventh Judicial District. 1977. Assigned to hold in May a post-conviction hearing for a retrial of the State vs. Chavis et al. After a two week hearing, the superior court judge found no basis for a new trial. 1982 Retired as active Superior Court judge but continued service as emergency Superior Court judge for several years. 1985, May Received Distinguished Service Award at a Crime and Justice Conference, Raleigh, presented by Justice Harry Martin, North Carolina Supreme Court.

The Wilmington Ten case was set in a backdrop of severe racial discord in that city. There were unresolved tensions going far beyond clashes during court-ordered school integration efforts of the past decade. The most prominent of the Ten was Ben Chavis (Benjamin Franklin Chavis), a native of Oxford, N.C. At twenty-four years of age, Chavis was a recently ordained minister, sent to Wilminton at the beginning of February 1971 to serve as a community organizer under the United Church of Christ Commission for Racial Justice. Growing violence that week had claimed two lives. Tensions were exacerbated by white supremacists firing shots from cars roaming black neighborhoods. On February 6 Chavis and his followers barricaded themselves in the basement of the Gregory Congregational United Church of Christ. As the day wore on, highway patrol units and then National Guardsmen surrounded the church. The precipitating event was the burning during the night of a nearby grocery store. The arson was alleged to have been committed by people from Chavis's group, and aided by snipers firing on firefighters and policemen called to the scene.

Chavis, in a 1972 trial held in Burgaw, Pender County, adjacent to New Hanover County, was given a thirty-five year sentence and others in the group, almost the equivalent. The state court of appeals in 1974 upheld the earlier verdicts. In 1976 the U.S. Supreme Court decided not to intervene and the convicted Ten began serving their prison sentences. In 1977 Judge George A. Fountain was assigned to preside at a full post-conviction hearing. Judge Fountain ruled that on the basis of evidence submitted he found no basis for believing that Allan Hall and others including Jerome Mitchell and Junious Mitchell had committed perjury for the State. A result of the trial was that Judge Fountain rejected the Wilmington Ten's request for a new trial.

During the 1970s the trial and ongoing appeals and hearings [See chronology below] stimulated strong and varied opinions in North Carolina and in the country and attracted international attention. Numerous prominent supporters of the Wilmington Ten, including Amnesty International, characterized the Wilmington Ten as political prisoners of the state. Others challenged the Ten's apparent violent tactics, questioning what had actually transpired in early February of 1971. William F. Buckley, Jr., for one, wrote in a syndicated column of January 4, 1979:  "If it happened that the Wilmington 10 were innocent (noting that defendants were after more than pardons but pardons of innocence), more power to those who establish that innocence. But at this point it smells like a political operation."(involvement of Justice Department under the Carter administration.) In his opinion,  "Somebody is obliging somebody. What isn't apparently being obliged is the search for the truth." [  "US Meddling in Wilmington Ten Case is Suspicious", appearing in  The Milwaukee Sentinel and other papers.]

In 1980 a Fourth U.S. Circuit Court of Appeals in meeting in Richmond overturned the convictions on grounds defendants' attorneys had not had access to a pretrial statement containing changes in testimony by prosecution witness, Allen Hall.

Various interpretations and accounts of events include the following sample: Chapter 10,  "Jim Hunt's Political Prisoners: The Wilmington Ten and Charlotte Three" in Grimsley, Wayne.  James B. Hunt: A North Carolina Progressive. Jefferson, N.C. and London: McFarland and Co., Inc., 2003;  "Statement on the Wilmington 10", Raleigh, January 23, 1978, in  Addresses and Public Papers of James Baxter Hunt, Jr., Governor of North Carolina. Vol. I, 1977-1981. Edited by Memory F. Mitchell. Raleigh: Div. of Archives and History, Dept. of Cultural Resources, 1982; Godwin, John L.  Black Wilmington and the North Carolina Way: Portrait of a Community in the Era of Civil Rights Protest. Lanham, Md.: University Press of America, c2000; Tyson, Timothy.  Blood Done Sign My Name: A True Story. New York: Crown Publishers, 2004 (pages 256-275); and Thomas, Larry Reni.  The True Story Behind the Wilmington Ten. Drewryville, Va.: Khalifah and Associates, c1993.

1971, February During a night of rioting, a white-owned grocery store, near the Gregory Congregational United Church of Christ was burned to the ground. Ben Chavis, eight other black men and one white woman were charged with firebombing the store and conspiring to ambush police and fire fighters responding to the blaze. 1972, September Trial of Wilmington Ten held in Burgaw, Pender County, in Fifth Judicial District. They were eventually convicted and issued sentences totalling 232 years in prison. 1974, late State Appeals Court upheld convictions. 1975 U.S. Supreme Court refused to hear the case, which went back to federal district court for review. 1976 Wilmington Ten began serving prison terms. 1977, May Judge Fountain assigned to hold post-conviction hearing for a retrial in May. After a two week hearing, the superior court found no basis for a new trial. 1978, January North Carolina Court of Appeals denied request for retrial of Wilmington Ten. Governor James B. Hunt compelled to review the case. 1978, January 23 Governor issued a statement that he would not pardon the Wilmington Ten, but announced a reduction of their sentences, making each closer to consideration for parole. By the end of the year all but Ben Chavis were out of prison. 1978, November The U.S. Justice Department wrote a friend-of-the court brief requesting that a federal court heed its recommendations that the convictions be overturned. 1979, June U.S. District Court judge ruled that there was no reason to review the case and upheld the convictions. 1979, late Ben Chavis released from prison, the last of the Wilmington Ten to be freed. 1980, October June 1979 decision appealed to Fourth U.S. Circuit Court of Appeals in Richmond. Arguments heared on the 9th resulted in reversal of previous decisions on grounds that defendants' attorneys had not had access to a pretrial statement containing changes in testimony by prosecution witness, Allen Hall.

[Identification of item], PC.1985, Judge George M. Fountain's Wilmington Ten Case File, 1971-1978, North Carolina State Archives, Raleigh, N.C., USA.


Received December 15, 2008 as a transfer from Trial Court Administrator, General Court of Justice, District Court Division, 7BC, Tarboro, Edgecombe County, NC.


Additional information on topics found in this collection may be found in the Manuscript and Archives Reference System (MARS)  http://mars.archives.ncdcr.gov/BasicSearch.aspx.

 See also:

State Agency records: Governor's Papers, James Baxter Hunt, Jr., Office of General Counsel, 1977-1984/Legal Counsel: Files of Jack Cozort, including those concerning the Wilmington Ten. (MARS ID: 372.8) Also, Justice/Attorney General, 1972-1977/Education and Corrections Section: Wilmington Ten Case File. (MARS ID:23.34)


File includes a small quantity of materials, chiefly photocopies, related to the case of State of North Carolina vs. Benjamin F. Chavis et al, dating 1971-1978. Documents includes briefs, transcripts, petitions, judgments, and related legal materials, notes and some correspondence created or received by Judge Fountain assigned to hear a request for a retrial of the Wilmington Ten case. The Wilmington Ten were tried for fire bombing a grocery in Wilmington and for conspiring to assault the firemen and police who responded to the fire. Includes one hand-written legal pad of notes apparently made by George M. Fountain, 46 pages, citing examinations of Jerome Mitchell, and noting dates from 6 February 1971 to 15 March 1977.

No apparent original order as received. Folders arranged chronologically and by subject.


File includes a small quantity of materials, chiefly photocopies, related to the case of State of North Carolina vs. Benjamin F. Chavis et al, dating 1971-1978. Documents includes briefs, transcripts, petitions, judgments, and related legal materials, notes and some correspondence created or received by Judge Fountain assigned to hear a request for a retrial of the Wilmington Ten case. The Wilmington Ten were tried for fire bombing a grocery in Wilmington and for conspiring to assault the firemen and police who responded to the fire. Includes one hand-written legal pad of notes apparently made by George M. Fountain, 46 pages, citing examinations of Jerome Mitchell, and noting dates from 6 February 1971 to 15 March 1977.


  • Chavis, Ben, 1948-
  • Black power--United States--History--20th century.
  • Appellate procedure
  • Judicial process
  • Judges
  • Superior courts.
  • North Carolina--Politics and government--20th century
  • Pender County (N.C.)
  • New Hanover County (N.C.)
  • Wilmington (N.C.)--Race relations.
  • Fountain, George M., 1914-1997.

File consists of materials, chiefly photocopies, related to the case of State of North Carolina vs. Benjamin F. Chavis et al, dating 1971-1978. Documents includes briefs, transcripts, petitions, judgments, and related legal materials, notes and some correspondence, with most created or received by Judge Fountain.

Box: PC.1985.1  
Folder: 1  
Allen Hall Material, undated and
1971-1977

Scope and Content

Hall was a witness for the proscution in the 1972 trial. Includes photocopies of court documents entitled Indictment, Conviction. Also includes copies of a letter, and note written by Hall. Earliest date noted is 26 October 1971 and the last date is 5 May 1977.

Folder: 2  
Jerome Mitchell Material: Court Orders and Indictments
1971-1974

Scope and Content

Mitchell was a witness for the proscution in the 1972 trial. These are photcopies of court orders and indictments with the dates 26 Oct 1971; 28 July 1972; 8 Feb 1974.

Folder: 3  
Jerome Mitchell Letters, Petitions from Prison
1974-1977

Scope and Content

These are copies of letters addressed to various officials, including Governors Holshouser, Hunt, and parole officers. These appear to have been studied by George M. Fountain and labelled as S (Section), followed by example numbers as follows: 1-2; 4-7;10-11; 14. The numbers 3, 8, 9, 12, 13 are missing. The date ranges recorded on the letters are 28 Feb. 1974 to 5 May 1977. Letters were addressed to Governors Holshouser, Hunt, various parole officers.

Folder: 4  
Examinations/testamonies of Jerome Mitchell: Notes recorded on Legal Pad, Presumbably by George M. Fountain

Scope and Content

Though undated, these handwritten notes reference dates from 6 Feb 1971 to 15 March 1977. Consists of 46 pages.

Folder: 5  
Grand Jury Investigation Court Transcript
8 March 1977

Scope and Content

From proceedings at the U.S. District Court, Eastern [District]. Raleigh Division

Folder: 6  
James E. Ferguson, II, Correspondence and Enclosures (motions) to Judge Fountain.
26 Apr-23 Aug 1977

Scope and Content

Ferguson, representing the Wilmington Ten, was a partner with the firm Chambers, Stein, Ferguson and Becton of Charlotte, N.C. Ferguson's letters are as follows: 1) 26 April 1977 re. State of N.C. v. Benjamin F. Chavis, et al. Typed original with signature of Ferguson; 2)23 August 1977. re State of N.C. v. Benjamin F. Chavis, et al. Photocopy of typed letter to Ms. Frances N. Futch, Clark of Court, Pender County Courthouse, Burgaw, NC. Emclosures indicated on letters apparently included the following Motions: Motion to Recuse, 23 August 1977; Motion for Production of State's Proposed Findings, Conclusions and Order, with attached exhibits A-D signed by Ferguson.

Folder: 7  
George M. Fountain to James E. Ferguson, II, Correspondence
27 Apr and 7 June 1977

Scope and Content

References attached orders [not with papers when received].

Folder: 8  
Correspondence from Office of Attorney General to Judge Fountain.
May-June 1977

Scope and Content

Includes three letters from Attorney General Rufus Edmisten to Fountain, 2 May 1977, and Assist. Atty Gen. Richard N. League, to Fountain, 3 May 1977 and 17 June 1977.

Folder: 9  
Correspondence and Enclosures: R. Michael Jones to Judge Fountain
1977-1978

Scope and Content

Includes copies of Jones's letters to the Editorial Board, Barrister Magazine, Young Lawyers Division, American Bar Association, and also copies of articles printed in the ABA magazine; and other articles commenting on the Wilmington 10 case. Letters to Fountain were dated 20 Oct 1977 and 17 Jan 1978. Jones was an attorney in Wilson, NC. The letters as received contained no personal correspondence to Fountain.

Folder: 10  
Resolutions in Support of Justice for the Wilmington 10, City Council of Berkley, California
11 Apr 1978

Scope and Content

These are copies of resolutions adopted by the city council and signed by the mayor and the city clerk and clerk of council. Includes list of other individuals and organizations that were being sent copies, including President Carter, the Rev. Ben F. Chavis, Commission for Racial Justice. A typed note attached to one instructs Judge Fountain to destroy the previous copy mailed earlier.