This date in 1777 saw the public execution of “John the Painter” — a Scotsman who had been christened “James Aitken” at his birth less than 25 years before, but who had run through countless aliases in his adult life as a (mostly) petty thief.
But this man was not a hapless victim of England’s Bloody Code, although he often enough offended the capital statutes against petty property crime.
Rather, the scraggly redhead with the thick Scottish brogue was the author of a stunning act of domestic terrorism, in England, in freelance support of the rebellious American colonies an ocean away.
“So dangerous an individual to the kingdom as this man perhaps never existed,” in the judgment of the Newgate Calendar, who knew him as “John Hill” — just one of Aitken’s many aliases. “and whose confession and repentence can hardly soften the abhorrence felt on the contemplation of the extent of his crimes.”
James Aitken, aka John Hill, aka John the Painter — for this last was, unfortunately, the unprofitable occupation of his apprenticeship training — fired the Portsmouth dockyards on December 7, 1776, then followed that up with an attack on the Bristol dock and city shortly after the New Year, as well as an unsuccessful attempt to ignite the Plymouth quay.
Although he was well-read for his class, he was not ideological, not a zealot of any creed religious or secular.
He was not American himself even in the loose sense that term could hold for the immigrant proto-nation. His only brush with that land was brief and unedifying: fearing his many thefts had made London a bit too hot for him, he signed on as an indentured servant and shipped out to the colonies in 1773 and slave-like labor in the fields. He escaped his master in 1775 and immediately shipped back to Europe, leaving no evidence of any revolutionary contacts.
And he wasn’t a madman. Just lonely, as evidenced, Warner says, by the “sad and always desperate invitations” to drink with which he plied the newest of acquaintances, to their discomfort. “He asked complete strangers to drink with him because he was lonely, and loneliness overrode his reason. His invitations always came too quickly, and his conversation and his manner always just a little off.” He even invited this indiscreet attention when on the incendiary job.
James Aitken reads like an Enlightenment version of the disaffected loser “going postal” on a world that could barely see him to tread upon him. His fondest desire from childhood was that classic Scots aspiration, the army commission. The closest he came was a series of short-term army enlistments to pocket the enrollment bonus, each of which he deserted as soon as practicable. (He did dream that his terrorism spree would earn him an appointment in the Americans’ Continental Army.)
Back in Britain after his unsuccessful foray in the colonies, Aitken conceived a disordered affinity for the burgeoning patriotic cause of the colonies he had recently fled. (Warner thinks he read Thomas Paine‘s Common Sense.) Only accidentally, when he overheard boozers at an Oxford pub chatting about the importance of the dockyards to the British Navy, did the heretofore aimless Aitken animate his wanderings with a new revolutionary purpose: he, scorned nobody, could win the War of Independence by crippling these facilities.
I spent two days in the contemplation of this malicious design, and promised myself immortal honour in the accomplishment of it. I beheld it in the light of a truly heroic enterprise, such as never would have been equalled to the end of time. I was persuaded it would entitle me to the first rank in America, and flattered myself with the ambition of becoming the admiration of the world! (Source)
Aitken was not a criminal mastermind, but there was a plausibility to the plot that fluttered the Admiralty’s heart once the details emerged. The dockyards were critical. They were also — Aitken readily perceived this as he began to case them — scarcely guarded; at Portsmouth, Aitken came and went as he pleased, freely schlepping his materiel in and out. (His attempt at Portsmouth set the subsequent facilities more on guard; the man’s initial plan to hit five different dockyards in sequence would ultimately have been as self-defeating as the 9/11 hijackers planning to commandeer a different plane on five consecutive days … but this was the way Aitken had to conceive it since he lacked the charisma or leadership aptitude to form a cell of fellow-travelers for a coordinated attack.)
Before launching himself into history, Aitken made an autumn 1776 visit to Paris to call upon the American representative there, Silas Deane.
Deane’s own recounting says he was struck by the wildness of Aitken’s scheme. But he was sufficiently taken with the prospective payoff to lend it his blessing, and “sponsor” it to the extent of giving the Scotsman a little pocket money to make his way back to England. He would later defend himself against “respectable persons,” presumably British ones, who “[regard] me equally criminal with the actor.”
[S]upposing me to be the liege subject, not of Great Brittain, but of a foreign independant Nation, at the Time at War with Great Brittain, and that imagining that I had found a favorable opportunity, & met with a proper Agent to destroy, at one blow, the Fleet & armaments preparing to carry, and to spread devastation, and bloodshed in my Country, and that I improved the favorable moment, and attempted through this agency, to effect this great object; on this view of the case I am confident that every one of common sense & impartiality must acquit me, nay more though they rejoice at the defeat of the enterprize they must approve of the motives, which influenced me to engage in it, motives no less than a desire to weaken a declared Enemy, and to preserve my Country, by every means in my power, from the horrors, and distress of Fire and desolation.
… if it was a noble, and most honorable Action in Lord Rodney to defeat the Count de Grasse, would not the Man who at equal hazard of his Life, had set fire to the Count’s Squadron in Brest, & thereby have equally defeated his expedition, been entitled (at least in the Court of Common sense) to the same Honors?
This was certainly good enough to convince Aitken that he torched in the name of Liberty, and he made his way back to set his plan in motion.
After botching his first attempt at Portsmouth and getting locked in the rope house — he pounded on the door until he got someone to open up, then bluffed his way out of the situation — Aitken got the least mileage possible from a superficially successful attack.
At about 3:30 p.m. on Saturday, December 7, Aitken fired three homemade incendiaries in the rope house and slipped away in what witnesses would later reconstruct as an evident state of agitation. The flames soon gutted the brick building (the damage would eventually reckon to £20,000) but he was this close to an exponentially more impressive bit of sabotage.
To begin with, many of his matches failed to start up Aitken’s jerry-built fuses. (This is also what caused his initial arson attempt to abort.) Having been once bitten by finding himself locked into the rope house at night, Aitken made his next trip earlier in the afternoon: that ensured that plenty of dockhands would still be in the vicinity to contain the fire to the one building. It also meant that the tide was in, and the nearby brig swollen with two thousand pounds of gunpowder could be easily put out to sea and away from danger as soon as the alarm went up.*
Admiralty investigators weren’t even sure at first that it was arson. Yards in the era of wood ships and wood buildings had a lot of flammable materials lying around. Fires happened.
Aitken soon dispelled any possible confusion.
Finding the Royal Navy dockyards at Plymouth too vigilant for his machinations, Aitken settled on an ambitious, and again somewhat plausible, scheme to engulf the densely-populated port of Bristol — dockyard and city alike. Repeatedly his blazes petered out or were suppressed. They did little consequential damage, but raised a rapidly-escalating panic at revolutionary incendiaries abroad, and it did not take long to link them to Portsmouth. (Copycat attempts and crackpot anonymous letters threatening same also started popping up elsewhere in the realm.)
“I have not the least doubt that the late fires have been the effects of premeditated malice,” wrote Bristol’s M.P. — the political philosopher Edmund Burke. Naturally this only had the effect of silencing potentially considerable pro-American sentiment in Bristol and throughout the realm. Lord Germain exploited the terrorist panic to push through a February 1777 Treason Act aimed at the American colonies. It authorized detention of suspected rebels without habeas corpus protection at His Majesty’s pleasure.
Aitken himself, though, was at the end of his own fuse. At Sir John Fielding‘s urging, the Admiralty posted an eye-popping £1,000 reward for the terrorists’ (multiple attackers were presumed, owing to the quantity of fires) capture. The arsonist was in irons with a week; a gaoler had noticed him and recognized Aitken’s fit to the description of the unknown Scotsman who had been seen in the vicinity of some of these blazes which Fielding had published in his crime clearinghouse periodical, Hue and Cry.** That man rode off after the suspect and overtook him in the village of Odiham,† where an exhausted and by now fatalistic Aitken surrendered without a fight.
The mizzenmast of the docked HMS Arethusa was removed and set up on land to hang this enemy of the navy outside the walls of the damaged Portsmouth dockyard.
Upon it, they would hang their man as high as Haman: after being turned off, a team of workmen hoisted Aitken’s still-strangling body 60 feet into the air. It’s reportedly the highest gallows ever known to be erected in England, and for the benefit of anyone who didn’t get a good enough look at the spectacle, his body remained conspicuously suspended in chains for years thereafter at Fort Blockhouse, overlooking the Portsmouth harbor as it rotted away.
One might expect that a man who had turned his face against king and country to such an extent would make his end defiantly. James Aitken, once again, defies expectations here, sounding submissive and contrite in the officially reported last words.
I asked John the Painter author Jessica Warner what it was that the state hoped a prisoner like Aitken would say from the scaffold. How did condemned prisoners typically come to shape their last words in (usual) conformity to the expected models? Was it usually necessary for somebody to convince them to do so?
JW: I can only speak for eighteenth-century England. The so-called “dying speeches” of the condemned follow a pretty predictable pattern: the condemned man expresses contrition for his crime, warns others against following his example, and says, in so many words, that he is reconciled with his Creator. That’s the official version, and really two things are going on here: the prisoner is in effect upholding the state’s right to take his life while also upholding the moral order of the Ancien Regime, its laws as much as its religious teachings. I say “official” because just about all dying speeches were penned by other people, the most notorious being the succession of chaplains (ordinaries) who presided over the condemned prisoners at Newgate. It was a bit of a standing joke that dying speeches were printed before they were delivered. The irony is that shorthand was used in the eighteenth century, and so theoretically it was possible to take down exactly what prisoners said.
Popular expectations, to the extent that they can be penetrated, also expected the condemned to make a good end, a good end being measured in terms of bravery bordering on contemptuous indifference to one’s fate. It’s hard to reconcile this indifference with the regret the prisoner was supposed to express.
ET: Did the fact that Aitken was a hated state criminal, rather than an everyday felon, alter anything about the role he was expected to play in the execution ritual?
JW: I don’t think so. The various accounts of his last moments read suspiciously like those you find in other dying speeches. Given the fact that he was a Scot who had poor social skills and who was also more than a little off his head, it beggars belief that he would have performed his part so well and in so conventional a fashion. I don’t doubt, though, that he made a brave end of it.
* The original Portsmouth plan was to start with a diversionary fire in the city itself, and then burn the dockyard while fire engines were occupied with the previous blaze. Again, his imagination outstripped his reach as a lone wolf: the attempt to kindle this preliminary fire just got him run out of his boarding-house and made the landlady a later witness against him.
** For more on Fielding’s criminal investigation reforms, see this post.
On this date in 1816, four British sailors on the HMS Africaine were hanged for buggery. One other crewman suffered 200 lashes; a second, a 17-year-old sentenced to 300, had the flogging stopped at 170 stripes by a surgeon who feared the youth’s life was in danger.
The Africaine: it was a French ship originally, captured in 1810 by the British.
“The Africaine had a reputation as a ‘man-fucking ship’ long before evidence of sodomitic practices came to the attention of Captain [Edward] Rodney,”* Arthur Gilbert explained in his seminal study published in the very first (volume 1, issue 1 — 1976) edition of the Journal of Homosexuality. “There were several reports of “uncleanliness” on the ship early in 1815 and, on one occasion, two seamen were punished for ‘lying on a chest together one night’.”
Late in 1815, Captain Rodney determined to crack down on the man-fucking and by threatening them with “dreadful consequences” coerced two of the crew into implicating themselves and a great many others in a buggery ring. As the Africaine made its way back to Portsmouth that autumn, it was scene to an ever-widening investigation.
Out of about 220 to 230 men aboard, some 50 members of the crew would ultimately be involved in the investigation, 23 of them charged or implicated with a wide variety of riffs on “the unnatural crime”: one Raphael Seraco was seen “with his yard actually in the posterior of John Westerman”; another sailor “placed his yard between [my] thighs and in that position effected an emission”; still another had “his yard against the backside of the boy Christopher Jay and … in quick motion as if he was committing the unnatural crime”; one of the ship’s boys “being much hurt sung out ‘Oh’” during an attempted rape; and someone had been rogered “on the flag stones of the Galley.”
While seabound sodomy was hardly unheard-of, the practitioners among the Africaine‘s crew had seemingly grown unusually (and dangerously) bold about practicing it without a modicum of concealment, “copulating in plain view like dogs.”
“God must put it into men’s heads to commit the unnatural crime of buggery,” an accused boatswain’s mate had allegedly declared. “If God was to put it into his head to fuck a man, [I] would as soon do it as fuck a woman.”
The sheer number of men rolled up in accusation and counter-accusation made across-the-board death sentences inconceivable. And among those implicated, it was extremely difficult to ascertain truth when fear and favoritism and innuendo were so thick in the air — “terrified as we were,” as one accused man later recounted, “in the idea of being prosecuted for the horrible crime imputed to us, dismayed and alarmed … in the duress of our situation, our minds and feelings every moment distorted by hope and fear without a friend to counsel us.”**
Blackstone had long before noted that the witch-hunt potential of a charge of sexual deviance demanded “that the accusation should be clearly made out.” To Rodney’s credit, he didn’t start stringing people up from the yardarm while the Africaine was at sea.
In port, Captain Rodney gave the matter over to the Admiralty with what one imagines was probably no small relief. In the grand tradition of prosecutorial discretion, the court-martial board proceeded to break down the many accused into those who would be charged and those who would cut deals to implicate the charged.
Seraco and Westerman, mentioned above, were the first sentenced to death, and then Seraco again condemned along with another partner, John Charles. (Seraco had been implicated by several people during Captain Rodney’s seaside inquiry, and Seraco in turn had accused no fewer than 14 of his mates in a vain attempt at self-protection.)
One of the other (uncharged) seamen giving against Seraco offered this juridically damning and sociologically interesting testimony:
Seraco put the question to me whether I would let him fuck me. I told him I did not much mind. He connected with me forward on the Starboard side. He entered my backside — I did the same with him three times. John Charles the prisoner was the first who mentioned the thing to me or I should never have had such a thought in my head.
Testimony of this nature, Gilbert says, posed a problem of jurisprudence: this was evidence not directly bearing on the charge that the defndant committed a specific act of sodomy with the other defendant. Legally, unless the Seraco-Charles liaison had been the charge at the bar, this testimony was extraneous. The Attorney General opined that, in a like civilian trial, he would have advised against executing a death sentence that had been obtained with such evidence — and that fact may have helped procure a pardon for a sailor named Joseph Tall.
Raphaelo Troyac (Treake), condemned with Tall, got the same favor — but Treake was immediately re-tried for a different act of buggery and re-condemned. Troyac was another Italian, and Albert notes that their common crime was popularly euphemized as le vice Italien and considered a characteristically Mediterranean indulgence. “All the scandalous behavior in the Africaine has been owing to Treake and Seraco. They are the origin of the whole of it,” another crew member — a Spanish Morisco — testified.†
As January 1816 unfolded, several others went before the court martial and received prison sentences (or in the odd case, acquittal) as the great sodomy-and-uncleanliness audit proceeded.
By month’s end, it was all finished but the noosings.
On February 1, the four condemned “died truly penitent acknowledging the justice of their sentences and admonishing their shipmates to take warning from their unhappy fate not to be guilty of such detestable practices.” The ship’s clipped log entry tersely recorded that unhappy fate.
a.m. Fresh breezes and cloudy … employed getting ready for punishment. At 9 made signal [with] a gun. At 11 executed Seraco, Westerman, Charles, and Treake [for] a breach of te 29th article of war, and punished alongside [John] Parsons … with 200 lashes and [Joseph] Hubbard with 170 lashes for a breach of the 2nd article of war as sentenced by a court martial.
p.m. … sent the bodes of the executed to the hosptal. Read articles of war to the ship’s company.
On that same date as the poor buggers of the Africaine suffered their various corporal punishments, the Portsmouth commander Admiral Edward Thornborough appointed three captains to lead an inquiry into whether this floating Sodom was the fault of Captain Rodney’s soft discipline. The investigators heard good testimony all around among the ship’s junior officers to the conduct of Captain Rodney, and within days exonerated all the higher-ups, only pausing to complain that there could have been more frequent religious services and readings of the Articles of War.
And that was that … even for the ship itself. By mid-February, the HMS Africaine was being stripped down at a Thames dock. She would be officially decomissioned and broken up that year.
How exceptional were the Africaine sodomites in the British navy as the 18th century gave way to the 19th?
I’d like to start with a question about the historiography. Arthur Gilbert brought this incident to wide public view in the 1970s, and you’ve written about it much more recently. How has the scholarly sense of homoeroticism in the British navy, or in western militaries generally, evolved in the past forty years or so?
Its evolution has paralleled the gay rights movement that began with the Stonewall riots. Generally, scholars have come to realize that homoeroticism in the ranks is more than an isolated phenomenon. Most research on the matter, however, has centered on the persecution of gay service members or the rights of gays to serve openly: can it be allowed, what problems would it create, how military personnel and the public might deal with it, etc. Scholarly interest in the historical dimension of military homoeroticism has been confined to an isolated handful of researchers. Most scholars are dealing with more contemporary and more relevant aspects of the subject.
How widespread were same-sex trysts in the Royal Navy at this time?
No idea. This is, of course, what everyone wants to know, and there is simply no data that even suggests a guess let alone an answer.
What was it about the case of the Africaine that resulted in this sizable court-martial and multiple hanging, when at least some other incidents of “buggery” and “uncleanliness” over the years appear to have been dealt with quietly or discretely ignored?
What made the Africaine different? The number and conspicuousness of the Africaine business meant it had to be dealt with. All other known incidents that produced courts martial or even summary punishment involved only pairs of mariners. Admittedly, some mariners were involved with multiple partners, but the relationships were dyadic rather than involving multiple partners simultaneously.
Do we know if men who engaged in homosexual behavior within the navy also did so on terra firma, or is that an “identity” most took on specifically to adapt to their confined all-male environment at sea? Is there any connection or analogue we can speak to between these cases and the simultaneous molly culture?
I have only run across mention of one or two navy sodomites who took their proclivities with them on land. This does not mean it didn’t happen. It is just that it is almost impossible to follow sailors once they leave their ships. They leave almost no evidence of their individual activities when not signed on board navy ships. No, I see no parallels or connections to eighteenth-century molly culture.
This is a a tangential point, but I was struck by your remark relative to the Italian Rafael Seraco that “sodomy, Popery, and Italy were inseparably linked in the minds of eighteenth-century Englishmen.” Why was that?
Sodomy, Popery, and Italy were linked in the minds of Englishmen long before the eighteenth century. Sodomy arrived in England as an Italian import according to popular views prevalent at least since the early seventeenth century, and probably earlier. The pope and the Catholic Church were also considered the handmaidens of sodomy at the same time. Part of this is due to raging anti-Catholicism in England dating from the Reformation of Henry VIII. Another part of it is the human tendency to blame the “other” for real or perceived ills: Jews, Communists, Fundamentalists, Liberals, whoever is handy. Catholics and sodomites were easy targets for Englishmen from the sixteenth century onward.
On this date in 1989, with the last words “I want to say I hold no grudges,” Carlos DeLuna died by lethal injection in Texas
At the time, not many people took seriously DeLuna’s claim that a different Hispanic man named Carlos — one Carlos Hernandez — was the man who actually slashed Wanda Lopez to death in a Corpus Christi gas station on February 4, 1983.
“I didn’t do it. But I know who did.” That’s what he’d told a police officer soon after his arrest.
A generation later, it’s increasingly clear that Carlos DeLuna really didn’t do it … and that he knew who did it, knew he was going to the gurney for the crime of a man whom the state claimed was just a “phantom” invented by the defendant. Just a few months before DeLuna went to his death, that “phantom”, still on the streets, had knifed a four-inch gash in another woman’s abdomen. Carlos Hernandez had even bragged to others that his “stupid tocayo” — namesake — “took the blame for” a murder he’d committed. (Hernandez died in 1999.)
DeLuna was arrested suspiciously hiding under a truck near the scene of a grisly knife slaying at a gas station. A Hispanic man had been reported as the suspect, and the eyewitness was able to identify DeLuna as that man, just moments after his arrest. Case closed.
Except everyone was wrong.
He was hiding because he’d been violating his parole by drinking at a strip club across the street. He chanced to look just like another Hispanic man from the area, a fellow who just happened to be a violent thug. And he didn’t have a spot of blood on him even though the murder scene looked like the set of a slasher film.
“It was an obscure case, the kind that could involve anybody,” Columbia Law Prof. James Liebman said. “Maybe those are the cases where miscarriages of justice happen, the routine everyday cases where nobody thinks enough about the victim, let alone the defendant.”
The facts of the case have been extensively documented elsewhere, including a 2006 Chicago Tribune series* and an entire 2012 issue of the Columbia University Human Rights Law Review, culmination of a years-long project organized by Liebman.
The latter investigation, complete with original source documents, video, and photographs, is preserved for public use at the magnificent Los Tocayos Carlos site. Its intensively-sourced book-length treatment comes highly recommended, but you might need to clear your schedule.
Executed Today is pleased to welcome one of the coauthors of Los Tocayos Carlos, Andrew Markquart — a 2012 graduate of Columbia Law who collaborated with Prof. Liebman on the DeLuna investigation and now practices in New York.
ET: How did you come to focus on this case, and what went into the investigation?
AM: I got involved after my first year at law school. I started out as a research assistant for Prof. Liebman, and he had been working on this project for years in one form or another when I got involved. I had already had quite a bit of interest in death penalty issues, so I jumped on it.
The initial investigation that Prof. Liebman did was back in 2004. He had done a previous study called “A Broken System” in which they found a shockingly high rate of reversals in capital cases. And basically the question that came out of that for him was, what does that mean?
Does that mean that the courts are doing their jobs and there are a lot of reversals because they’re being very diligent?
Or, is that high number indicative of some big systemic problems?
He started out looking at cases in Texas, for obvious reasons, and particularly focused on cases involving single eyewitnesses. This one came out fairly early on, but there wasn’t much about it initially to suggest this was a strong case. But Prof. Liebman was having someone going down to Corpus Christi anyway and had him check it out, and within one day this investigator was able to track down a lead and figure out exactly who this Carlos Hernandez person was who DeLuna claimed was the actual killer. From there the floodgates opened.
This case reads like something out of Dumas … your doppelganger, who looks just like you and also shares your name, commits a crime and you take the rap. Speaking as a layperson, it’s astonishing that Carlos DeLuna explicitly made the very argument you’re making, that this guy Carlos Hernandez was the real killer. But it wasn’t so much that DeLuna’s allegation was considered and rejected as that it was never taken seriously at all, even by his own defense. Why was that?
It’s a good question and it’s one of the major points we tried to make.
At first DeLuna was a little hesitant, with good reason: Hernandez was well-known in Corpus Christi; he was a terror in the town and had been known to use violence against people who threatened to expose him. Eventually the threat of execution overcame that.
His defense team did very little to research what could or would have been his saving argument, and on the flip side the prosecution said Carlos Hernandez didn’t even exist, which is just a mind-blowing claim. This guy had a rap sheet a mile long. He had been a major suspect in 1979 in another murder case involving one of the prosecutors in the DeLuna case.
The defense lawyer in that case did what DeLuna’s lawyer should have done: he called Carlos Hernandez to the stand and basically prosecuted Carlos Hernandez as his defense. He got his client off, and we’re pretty confident from our research that Hernandez was actually guilty of that murder, too.
Hernandez was definitely no “phantom”: he was known to law enforcement, known in the neighborhood. Can you explain why the prosecuting attorneys would make such a claim?
It’s hard to explain. I suspect they probably thought they had the right guy, they probably thought he was making up a bogus story … and they cut a few corners. But that’s speculation.
Your report writes, “Central to DeLuna’s obscurity was the failure of lawyers on the defense as well as the prosecution side to have the curiosity and gumption to look just an inch or two below the surface.” It seems like there just wasn’t much of any work done by any actor to pursue evidence that could defend DeLuna.
Carlos DeLuna’s defense lawyer had trouble getting any kind of funding to do investigation. And this was his first criminal case of any kind, let alone capital case.
The police only investigated for a couple of hours before turning it over to the store manager to clean up to open the next morning. It was a simple case of tunnel vision: they had arrested Carlos DeLuna, they got a quick eyewitness ID, and they thought they were done.
There’s all kinds of evidence at the scene. In the police photos, which are available at our website, there’s a footprint in blood that has to be the culprit’s shoeprint, and they never even saw it. It was that sloppy. You can also see the detective, Olivia Escobedo, literally standing on evidence — a nice metaphor for the investigation.
Yes, he did. For reasons I can’t make sense of, he either was just severely misremembering, or just made up, some story about hanging out with these girls earlier in the evening that was completely untrue. But the thing about it is that the story as he gave it didn’t even help his case. It didn’t give him an alibi. But it hurt his case, because then they could bring in these girls to testify and destroy his credibility.
It’s hard to figure out what was in his head to say that. DeLuna wasn’t the most intelligent person; his IQ tested just barely above the threshold for cognitive impairment.
The original trial was in 1983, and Carlos was executed in 1989. How representative are the circumstances of this case still, relative to new death penalty trials today or to death row prisoners whose appeals are being handled now?
“[DeLuna]‘s lying. He won’t admit it. I hope this is the day he gets it. He’ll lie like he’s been lying and now he’ll have to pay for what he did to my daughter.”
-Wanda Lopez’s mother Mary Vargas, quoted in Dec. 7, 1989 Dallas Morning News
“After carefully reviewing the information recently uncovered and printed by Steve Mills and Maurice Possley in the Chicago Tribune, I am convinced that Carlos DeLuna did not kill my sister and that Carlos Hernandez was the real murderer.”
-Wanda Lopez’s brother Richard Vargas, June 2006
You see these kind of cases and issues come up even today. That’s one point we try to make: yes, this case was from 29 years ago, but a lot of things remain the same.
There was no physical evidence, despite all the blood at the scene: it was just based on eyewitnesses.** And you kind of have a casebook bad eyewitness identification. They didn’t use a lineup; it was nighttime; it was a cross-racial identification, which we know are highly error-prone; he [DeLuna] was in the squad car, at the scene, handcuffed, under a highly stressful environment. You have these kinds of show-up identifications happen all the time, all over the country. They’re rife with error.
And there’s a lot of good public defenders out there who really work hard and do good work, but also a lot of underexperienced and overburdened public defenders who are just being crushed. There’s always systemic pressure for cops and prosecutors to cut corners. I certainly don’t think the lessons of Carlos DeLuna’s case have been learned.
In your view, what are the most important of those lessons?
The fallibility of our criminal justice system. Carlos DeLuna wasn’t convicted and executed in some third world country — he was given a trial and a lawyer and appeals and all the other protections and yet he still slipped through the cracks.
And the other lesson is the widespread nature of the factors involved, like the unreliable eyewitness ID. People go to prison on that basis every day. It seems highly likely there are more Carlos DeLunas.
The way that we found this story and developed it was enormously labor-intensive. The number of man-hours that went into this, between authors, investigators, research assistants, and the whole staff of the Columbia Human Rights Law Review … you just can’t do this for every case where there’s some kind of colorable suggestion of the possibility of wrongful execution.
I’d be very surprised if there aren’t more like him.
* The Tribune series on DeLuna began on June 25, 2006 … the day before Supreme Court crank Antonin Scalia taunted in Kansas v. Marsh that there was “not one” case of a “clear” wrongful execution. “The innocent’s name would be shouted from the rooftops by the abolition lobby,” Scalia wrote.
** Eyewitness (mis)identification is also at the heart of the Ruben Cantu case, another suspected wrongful execution in Texas.
On this date in 1891, William Rose was hanged — and, when the rope snapped, hauled back up and hanged again — for murdering his feuding neighbor Moses Lufkin in Redwood County, Minn.
The scaffold botch was an apt conclusion to a deeply controversial case. Two juries hung (both leaning towards acquittal) before a third trial finally convicted Rose with the help of new eyewitness testimony that wouldn’t inspire much confidence now — and didn’t even back then.
Lufkin had been shot through a window at night — this is according to that questionable eyewitness testimony — by an unknown assailant who then fled. Connecting Rose to the murder required stitching together circumstances: Rose’s known hatred for Lufkin; the want of an alibi; the fact that he’d recently bought some ammunition. Rose protested his innocence from start to finish, and many people believed him.
In a letter published by the St. Paul Weekly Pioneer Press on Oct. 15, Rose accused that very witness of the murder: Lufkin, who was loathed by many besides Rose, had been living with the witness; said witness also knew Lufkin had cash on hand from a pension payment and the sale of his farm. Rose even repeated this accusation at the gallows.
The contentious proceeding — “one of the most remarkable cases known in the history of the State of Minnesota,” in the words of one contemporaneous report* — has been revived for a present-day audience in Patricia Lubeck’s new book, Murder in Gales: A Rose Hanged Twice. Lubeck and her friend and research assistant Michelle Gatz combed through original trial transcripts and newspaper coverage, and it left the author “pretty sure that William Rose didn’t do.”
Lubeck (author website) is the curator of Redwood County Museum, which still preserves the jail cell where Rose spent his last night on earth. She was gracious enough to share her research with Executed Today. (Other interviews with Ms. Lubeck are here and here.)
Patricia Lubeck. (Photo courtesy of Ms. Lubeck.)
ET: First off, how did you come by this story and what made you decide to devote a whole book to it?
PL: Kind of by a fluke. I came across it at the Minnesota History Center; I was helping my friend research.
When I worked at Yellow Medicine County, I researched the first man hanged in that county and became interested in early crime in southwestern Minnesota. At one point, the archivist at the Minnesota History Center brought out several boxes of court transcripts from trials. I was perusing through several cases when I came across the Lufkin vs. Rose case, and it looked very interesting.
So, William Rose and Moses Lufkin were neighbors and foes. What was the nature of their enmity — how did it get started?
They were two families who settled in southwest part of Minnesota in the late 1800s and they were friendly neighbors in the beginning. But soon petty differences arose, and the quarreling increased in bitterness from year to year.
Then a new element came into the picture when William Rose fell in love with Lufkin’s beautiful daughter Grace, and her father put a stop to the romance. This sparked the feud and lawsuits.
I think because of that feud, when Lufkin was murdered, the community kind of thought that maybe Rose did it.
The problem of the dicey sufficiency of the evidence was at the heart of the case at the time — in trial, on appeal, in the court of public opinion. Does this case have any lessons for thinking about the wrongful-conviction phenomenon here in the 21st century? Or what else do you hope the reader will take away from your book?
I guess I was just really outraged by what William Rose went through, and I felt like I was the voice for Rose. This is a story that not many people know about; it was not just a cut-and-dried case and there were a lot of factors involved. I just want people to know that there were many other possible suspects that could have done it, but that he, Rose, was the one who paid for the crime.
And I still feel that somebody has the missing piece, and somebody may come forward to exonerate Rose. I would like anyone who has information about this case to contact me by mail at: Box 52, Belview, MN 56214.
They had to try him three times to get the conviction, and the case was unusually protracted and controversial. Was there any legal chicanery involved in accomplishing the guilty verdict? By the standards of the time were there any areas where the courts clearly dropped the ball legally?
Another man who lingered alone [after Rose's funeral] was ol’ man Slover … [who] proclaimed to those still standing at the gravesite, “Gentlemen, this is awful.”
“It certainly is,” replied [Rose's friend] John [Averill]. “Are you sure you’ve got the right man?”
Slover replied, “I don’t know, John, but I hope so.”
The difference in the third trial was that Eli Slover came forward and said he was sure that it was William Rose who shot the gun. He had testified at the previous two trials that he wasn’t sure at all … and the shooter was someone he supposedly saw from the back, in the dark, so how would he be sure?
The prosecutor, Michael Madigan, was suspected of meeting with certain witnesses prior to their testimony; coaxing them and possibly even bribing them to give the testimony he wanted in order to bring in a conviction against Rose. I think that the prosecutor wanted to bring in a guilty verdict, and he persuaded Eli Slover to say that William Rose was the one that he saw that night, running away. Later on, this prosecutor got in trouble himself. He went to prison and got disbarred for perjury in 1893.
William Rose on the gallows accused Slover by name as the murderer; Lufkin had moved in with the Slovers and recently sold his farm, so the Slovers knew he had cash on him. He [Slover] is one of a number of other possible suspects I list in the book. This Lufkin guy was a bad man; he himself always stated he would die a violent death.
But at the time that William Rose was facing his trials, there was another murder that happened around the same time period in Redwood County — Clifton Holden, who killed Frank Dodge. People were shocked to have two murders in their midst, after having had a couple of other homicides in the recent past,** and there was a danger that Holden and Rose could have been lynched. At the time, the press and public sentiment cried out for a conviction, and the county was becoming burdened by the costs of trials and so a guilty verdict was found. Holden was also sentenced to hang, but at the 11th hour, Gov. Merriam reduced the sentence to life in prison.
Although memory of these sad events have faded, they were talked-about in the area for years after William Rose’s hanging. “Time and again,” said one newspaper account Lubeck quoted, “has some cute individual started the story that Will Rose was innocent.” There were even confused local rumors that Slover had made a deathbed confession from his later residence in Oregon.
“These events brought home to the people of Minnesota the the truth that the prevailing system during the 1800s, of executing criminals, was radically, morally, and terribly wrong,” Lubeck argues.
** The Marshall (Minn.) News Messenger harrumphed on Nov. 30, 1888, shortly after Rose’s avoided conviction in his first trial, “Redwood County had its fourth murder in two years, and we know of no other county where a murderer may so easily escape, even by going through the court system of Redwood.
“The Alexander murder, premeditated, easily escaped. The Gorres murder only got 6 years for manslaughter, about what a small thief would receive; the Rose murder resulted in acquittal. And now Clifton Holden has murdered a fourth victim.
“Meanwhile the taxpayers are being grieveously burdened with taxation for all these murder trials.”
ET: Just by way of orientation, what’s the baseline legend of Frankie Silver that Appalachian children learn? And how exactly did this particular hanging come to be so richly preserved in ballads and folklore and the like?
PDY: The legend is that this true story was the basis for the black blues song, Frankie and Johnny.
Frankie killed her man out of revenge cause he done her wrong. The legend is that she was the first — or only white — woman ever hanged in North Carolina, that she sang a confession from the scaffold. This was the story I heard as a child; only later would I learn that none of this was based on facts.
Most historians now think the song, Frankie and Johnny, was based on a murder in St. Louis, although several folklore collections published in the 20th century say it was based on Frankie and Charlie Silver.
What is it that drew you to this case in the first place?
Most people’s mothers tell them stories about Winnie the Pooh and, oh my, Tigger the tiger. My mother told me about a woman who cut her husband’s head off with an axe and burned his body in the fireplace.
As a writer, I’ve always been grateful for that.
Your book makes the case that she was wrongly executed, and not only that — but that “the true story, the facts … are even more interesting than the story as it has been passed down by so many ballad singers, folklore specialists, storytellers and newspaper columnists”. What’s the most important misconception people have about Frankie Silver? What surprises you most about the story?
There are many misconceptions, starting with the murder itself. There is ample evidence from the time to prove that her husband was loading his gun to kill Frankie and she picked up the axe to defend herself.
She did not sneak up on him as he lay sleeping; she killed in self defense.
She was not the first or only woman ever hanged in North Carolina, she was one of at least 15.
She did not read or sing a confession from the scaffold.
A young school teacher plagiarized a Kentucky ballad, “Beacham’s Lament,” had it printed and handed out at the hanging. It is this ballad, in which Frankie laments her guilt, that has come down as factual. However, when I was a college student, I came across 17 different letters and petitions to the governor asking for a pardon for Frankie. In these documents, it is clearly spelled out that Charlie Silver was a drunk, abusive husband and Frankie killed him in self-defense.
Hindsight is 20/20, of course … but it doesn’t seem to require hindsight to think that her lawyer would have been expected to introduce evidence of domestic violence even if that wasn’t the main thrust of his defense. Would it also have seemed that way to the reasonable barrister in the 1830s, or was there good reason for him to avoid it? Can we say that she was hanged for poor lawyering?
The late Sen. Sam Ervin was, like me, a great believer in Frankie’s innocence. A letter he wrote me explaining why is reproduced in the new edition of my book. He explained to me that at the time she was tried, the accused was deemed an incompetent witness and could not take the stand in her own defense. The law was changed in North Carolina in 1859 so that, as now, you can choose to defend yourself but you still cannot be compelled to testify against yourself.
Frankie’s lawyer, perhaps at the insistence of Frankie’s father, pleaded innocence. In other words, he could not introduce evidence of extenuating circumstances such as spousal abuse if he was saying she didn’t do it in the first place. In the book, I note that a man named Reuben Southard beat his wife to death that same year in the same county and got off with court costs. In one of the petitions, Frankie’s neighbors assert that it has often happened that a man murdered his wife with no legal consequences. In an article for his local newspaper, Ervin blamed Frankie’s lawyer for the outcome of the trial, not realizing that her lawyer was his own great great uncle.
Over the longer arc, it’s surprising to me that the claim by a woman who killed her husband that he was an abusive spouse — especially if that claim attracted a lot of support at the time — would go underground in the historical recollection of the case. In its essentials, this is one of the stock templates we have for thinking about a domestic crime. What happened in Morganton, and with the families’ descendants, over the years to shape the popular memory of the event? And does it suggest any larger lessons to you about the way we construct our histories?
The explanation is quite simple. All that survived over the years was this ridiculous “ballad,” in which Frankie confessed her guilt. She had nothing to do with that ballad.
Fayetteville Observer, July 30, 1833
But, in fact, she did write out a confession.
The confession itself has never been found but we know from other sources that it explained that she killed in self defense. The documents that detailed Charlie’s abuse and other details about the case remained hidden in the governors’ papers in the North Carolina Archives until I discovered them in 1963 when I was a student at the University of North Carolina at Chapel Hill.
In the play, a minister who is working to save Frankie from the gallows, overhears a young man singing the silly ballad. He is asked if a hundred years from now people will still be singing that ballad, not knowing what really happened. He answers: “People would rather believe a simple lie than a difficult truth.”
Compounding the historical image of Frankie has been the fact that her family was ashamed of having a convicted murderer in their midst. It was Charlie’s family that became the keeper of the legend and all its misconceptions. The Silvers kept alive the fake ballad “confession” and did everything they could to preserve the image of Charlie as a faithful husband who was killed by a spiteful wife.
Do you find that here in 2012, there are still people whose oxen are gored if your research contradicts their own version of the story — especially if you present Charlie as a violent husband?
You betcha! The Silvers to this day are rather vehement in defense of their Charlie.
It was a historic moment when I was invited to speak in the old church house near the murder scene for the Silver family reunion. In the basement of the church, they have created an extraordinary archive on the murder story and the family in general.
By this time, they have accepted that Charlie may not have been the innocent victim they’ve been told about. Many in the family are serious about their historical researches and want to know the facts. However, a contemporary Charlie Silver also said, “I just wish people would stop talking about it.”
You’re working on a program for Discovery channel’s “Deadly Women”. Does it hold any new revelations about this intriguing historical case?
The chief revelation came to me after being questioned by a very bright young woman named Colette Sandstedt for the program. She had done her homework exceedingly well. By the time we had gone over all the historical evidence I had collected over the past 50 years, I was ready for her last question: “What is the most shocking aspect of this case to you?”
I answered: “The most shocking aspect of the case is the way this poor woman has been misrepresented for almost 200 years.”
On this date in 1474, Peter von Hagenbach was tried in a remarkable judicial proceeding in the Rhine city of Breisach, found guilty, and publicly beheaded by the end of the day.
This Alsatian knight in the train of Charles the Bold had been installed by that Burgundian duke as his satrap in in the Upper Rhine, in lands that Burgundy held on lease from the Habsburgs.
He made a legendary villain of himself in the early 1470s:
His regime of arbitrariness and terror extended to murder, rape, illegal taxation and wanton confiscation of pivate property, and the victim[s] of his depredations included inhabitants of neighbouring territories as well as Swiss merchants on their way to and from the Frankfurt fair … the outrages of Hagenbach, remarkable even by the standards of the late fifteenth century, greatly contributed to forging what, until then, had been considered impossible, that is, alliances against Burgundy by all her neighbours: Austria, Berne, France, and the towns and knights of the Upper Rhine, all formerly at loggerheads with one another.
After overturning Burgundian authority in the Upper Rhine, that unique alliance aired its many grievances with Hagenbach at a unique tribunal. There, the ex-knight was prosecuted before judges drawn from the several Germanic and Swiss principalities who had allied against him.
Breisach: seems like a nice place to oppress. (cc) image from Routard5.
This unusual procedure gained a special prominence in the 20th century postwar era as historical precedent for “war crimes” prosecutions. Since that time, there’s been a going debate over just what kind of precedent it really makes.
Gordon wrote a 2012 paper re-examining the Hagenbach case attempting to reconcile both the legal and historiographical perspectives on Peter von Hagenbach.
ET: You characterize the present-day understanding of the Hagenbach case as proceeding from Georg Schwarzenberger‘s recovery of the incident further to providing legitimizing precedent for the Nuremberg tribunals. Between 1474 and World War II, did anyone think of this case as one with a wider import for jurisprudence? (And if not, do we know anything about how Schwarzenberger unearthed it?)
GG: To the extent anyone did, from my research, it would have been historians, not jurists per se. Hagenbach was the object of a fair amount of historical scholarship but that had evolved over the years. In the initial period after the trial, Hagenbach was portrayed as the quintessential bogeyman. But over the centuries, historians began to view him in a different light. By 1945, a more nuanced view of Hagenbach had been established. I have not researched Schwarzenberger’s biography in great detail. So I’m not sure how his eureka moment arose. What is clear is that the Nuremberg trial caused him to focus on Hagenbach (my sense is that Hagenbach was fairly well known in Europe — his supposed mummified head was on display in an Upper Alsace museum, for example — but given the absence of anything resembling Nuremberg before Nuremberg, people tended to ignore the details of the Hagenbach legal proceedings).
And my sense is that Schwarzenberger had an agenda — he realized the case could help legitimize what many would claim to be illegitimate ex post facto law at Nuremberg. So he relied on the earlier historical accounts of the Hagenbach case (it seems he based his seminal Manchester Guardian article primarily on the account of French historian Prosper de Barante). And thus he created a fissure between legal scholars and contemporary historians.
Who tried Hagenbach, under what authority, and how were the different interested parties formally represented? Whose idea was all this? What can we tell of the public atmosphere surrounding the trial — was there bottom-up pressure to do this?
After the League of Constance (consisting of various regional polities fed up with Hagenbach) paid off his debt for him, Archduke Sigismund of Austria resumed control over the Upper Alsace territory mortgaged to Charles the Bold. And thus Sigismund made the decision to have Hagenbach tried by the international ad hoc tribunal (another inexplicable link in the chain: Hagenbach escaped lynch-mob justice on Easter Sunday, April 10, 1474 — only thanks to Breisach resident Friedrich Kappelar’s decision to arrest him and await instructions from Sigismund).
Sigismund’s decision to convene an ad hoc international tribunal was utterly remarkable for the time. And it is not clear how or why Sigismund came up with it (although historians suggest it had something to do with the prominent position Hagenbach held as representative of the Duke of Burgundy).
Numerous representatives of sovereigns from around the region, twenty-eight in all — including sixteen knights, sat as part of this international ad hoc tribunal.
Eight of the judges were nominated by Breisach, and two by each of the other allied Alsatian and Upper Rhenanian towns [Strasbourg, Sélestat, Colmar, Basel, Thann, Kenzingen, Neuburg am Rhein, and Freiburg im Breisgau] as well as by Berne, a member of the Swiss Confederation, and Solothurn, allied with Berne.
In fact, each sovereign represented a member of the League of Constance (Berne being the only representative of the Swiss cantons).
Thomas Schutz, the chief magistrate of Ensisheim, was designated as the tribunal’s presiding judge. The nominal trial prosecutuor was the new Alsatian bailiff chosen by Sigismund to replace Hagenbach — Hermann von Eptingen. Eptingen, for his part, chose Heinrich Iselin, one of the commissioners from Basel (one of the League of Constance’s members), to present the prosecution’s case to the court. The other representative from Basel, Hans Irmy, took on Hagenbach’s representation. At some point later in the trial, Iselin resigned because, as the evidence came in, he felt the case lacked merit (and even made a motion to withdraw the charges). He was then replaced by Hildebrand Rasp. Hagenbach also requested additional attorneys and the tribunal assigned him two attorneys — one from Colmar and one from Selestat.
The trial was held in open air before the Breisach mayor’s residence and was attended by “a multitude” of people from Breisach and surrounding towns. It appears as if it were somewhat of a circus atmosphere.
Is there a degree to which the pre-modern characteristics of the belligerents — Burgundian duchies, Swiss cantons, the Holy Roman Empire patchwork — set a contradictory precedent for the postwar world?
Let me quote my paper:
Nothing in history leading up to that moment in 1474 would have suggested the remarkable course of action taken by Sigismund. It is tempting to see that decision as an historic anomaly that would not be repeated for centuries to come. But on closer inspection, Sigismund’s choice to hold a trial before an international court fits well within the historical narrative of that era.
It was a time of religious and political disintegration. The Holy Roman Empire was fading into irrelevance and the Catholic Church was on the verge of losing its European hegemony. It was the eve of the nation-state — a unique moment when the old collective structures were dying and the new ones had yet to be born. Given the interstitial political turbulence, the time was ripe for a plural approach to law enforcement in the cosmopolitan geographic center of Europe. Hagenbach’s inter-regional depredations, which helped forge a rare pan-Germanic consensus, provided the perfect forum to experiment with international justice during that fragmented time. The Westphalian order, already on the horizon, would foreclose any such future experiments until Nazi brutality put a chink in the Westphalian armor and inspired an unprecedented transnational justice operation in the wake of a truly global war. In that sense, although on much different scales, Breisach and Nuremberg have much in common. And should the nation-state ever manage to reassert its absolute supremacy again, Breisach will undoubtedly be on the lips of future international jurists seeking, as before, to end impunity at the expense of sovereignty.
You discuss a revisionist thesis about Hagenbach that essentially says he wasn’t a monster, and even that he was a forward-thinking but star-crossed reformer. Why do you think that we can, in fact, conclude that there’s something to the claim that Hagenbach was tyrannous or criminal? What do you consider the most credible charges, and the ones that to his judges would have distinguished Hagenbach from a run-of-the-mill brutal lord or military commander?
What evidence supports the view that the good burghers of Alsace were the victims of Sir Peter’s violence? Their treatment of the wayward knight after his arrest is most revealing in this regard.
While torture may have been commonplace in ordinary criminal inquisitions of the time, the severity of torment inflicted leads one to believe it was inspired by and directed at the kind of mass, depraved criminality of which Hagenbach has traditionally been accused. Significantly, in this regard, in addition to enduring horrific torture, he was stripped of his knighthood. Degradation of knighthood was exceedingly rare in the Middle Ages and reserved only for the most extreme and infamous crimes.
And there is other evidence to suggest Hagenbach’s culpability for atrocities. Most telling perhaps is the trial record itself.
Hans Irmy, it must be remembered, mounted a valiant and spirited defense to the very end. And yet the record does not reveal his even attempting to refute the charge that Hagenbach planned to exterminate the citizens of Breisach or that he murdered the four petitioning residents of Thann. At most, he offered the rejected defense of superior orders. Nor did Irmy (or Hagenbach, for that matter), directly deny the rape charges (merely objecting that taking women in this fashion was common practice and/or he had paid for services rendered). Rape, as opposed to murder, appears to have been Hagenbach’s preferred weapon of terror and atrocity.
And there is a plausible explanation for why Hagenbach would have wanted to murder the citizens of Breisach.
Hagenbach was aware of other towns that had plotted to kill him during the previous year and, when requesting entry to create defensive fortifications in anticipation of an attack by the League of Constance, he had already been denied admittance with his troops into Thann and Ensisheim. He was only able to gain entry into Breisach because his mercenaries were already present there. Given the animosity shown him in these other towns and the previous conspiracy to kill him, Hagenbach did not want to take any chances. Killing Breisach’s citizens would have permitted him to use the town as a defensive fortification without the risk of an uprising from its citizens.
Did Hagenbach slaughter thousands of innocent civilians in concentrated liquidation campaigns? There is no evidence to suggest he did — he was not a fifteenth century proto-Nazi. But the record suggests that he terrorized the local population by murdering civilians, raping numerous women and conspiring to commit a large-scale massacre in Breisach. It should be noted that the rape charges are the most persuasive as there are numerous examples and they were never directly refuted.
And Hagenbach’s back story further validates this view of him. He was the product of a Burgundian ducal culture that was steeped in and glorified violence — the reflection of its bellicose chief, Charles the Bold (known to his enemies as Charles the Terrible). The duchy was in almost a permanent state of war with one enemy or another during Charles’s reign. Charles the Bold’s Burgundy was in the practice of laying siege to towns and routinely killing civilians who resisted — Liege, Dinant, Neuss — all were subjected to horrific violence by Burgundian troops, and Hagenbach played a leading role in the first two. And within that violent culture, Hagenbach was Charles’s fiercest, most loyal lieutenant. In that regard, Sir Peter’s steadfast reliance on superior orders at trial speaks volumes.
And it is not to be overlooked that a criminal disposition was apparent even before Hagenbach cast his lot with Charles the Bold. The reported kidnapping of Marquard Baldeck, the Swiss banker for whom Hagenbach demanded ransom, is telling in that regard. As noted previously, Hagenbach supposedly demanded ransom from Baldeck’s family and the scheme was scuttled only when Philip the Good ordered Baldeck released without any extortion payment. Hagenbach also seems to have fabricated a murder plot against Charles the Bold, which he falsely pinned on a court rival to have him eliminated.
Add to this Hagenbach’s contempt for the emerging bourgeoisie and townspeople, as well as a deep animosity toward the Swiss, and his stewardship of the Upper Rhine represented the perfect storm. By 1474, he had indeed become the scourge of the Sundgau. In this regard, it is interesting to note Burgundy expert Richard Vaughan’s insight that, in fact, it may have been Hagenbach driving policy and tactics in Charles’s Alsatian territory, not the other way around:
Many of Hagenbach’s activities were undertaken at [Charles's] express command, though often as a result of representations made to him by Hagenbach in the first place. It is possible, for example, that Charles only agreed to sign the treaty of St. Omer on Hagenbach’s persuasion. In the duke’s letters to Hagenbach of 8 August 1470 he orders him to undertake the siege and conquest of Ortenberg castle, ‘in accordance with your memorandum (advertissement)’, which seems to imply that Charles was here acting on detailed advice to take Ortenberg sent him by Hagenbach. As to other mortgaged places, the bailiff wrote to Charles describing how he had seized possession of Landser and seeking the duke’s approval, which was given on 6 January 1474. . . . On 26 December 1470 he wrote congratulating Hagenbach on taking Ortenberg . . .”
Finally, it should be pointed out that Hagenbach may be responsible for atrocities in the region, even if he personally did not commit or order or was unaware of all of them. In particular, the Picard and Wallon mercenaries he hired toward the end of his reign had a well-known reputation for being unruly, violent and hostile toward the local Alsatian population. French historian Emile Paul Toutey, for example, describes Picard soldiers engaging in mass rape of Breisach’s women toward the very end of 1473. These troops may have acted on their own initiative but Hagenbach was their superior and, at the very least, he bore command responsibility. And this may also have contributed toward the writing of Hagenbach’s black legend.
Did the Hagenbach case, in your opinion, actually break new legal ground relative to what had occurred up through 1473? Does it have any analogues you’re aware of over the next century or two, prior to the advent of the Westphalian system?
In my opinion, nothing in the historical record up through 1473 suggests the possibility (certainly not the likelihood!) of what actually took place in 1474.
Eminent German historian Hermann Heimpel does note that the contemplated trial was consistent with other legal actions in late fifteenth century Swabia. What must have seemed entirely unprecedented, though, was the make-up of the court that would sit in judgment of Peter von Hagenbach. He was not to be tried by a local judge. Instead, numerous representatives of sovereigns from around the region, twenty-eight in all — including sixteen knights — would sit as part of an international ad hoc tribunal. Nothing after this, until the Versailles Treaty’s Article 227 contemplated international ad hoc tribunal trial of Kaiser Wilhelm II post-World War I (which never took place since the Dutch refused to extradite), even suggested such a procedure.
Hagenbach tried to raise a “superior orders” type of defense, claiming that Charles the Bold had ordered him to do the nasty things that were imputed to him. The dismissal of this defense does sound pretty modern, but was it mere expedience on the part of the court since it had no way to compel evidence from Charles the Bold?
That’s a great question! I don’t think so. Why? Because Hans Irmy asked for a trial continuance to contact Charles the Bold to appear before the tribunal and corroborate Hagenbach’s claims of superior orders. The tribunal flatly denied the motion for continuance. There was not even an attempt to contact the Duke of Burgundy. Like the decision to try Hagenbach before an ad hoc international tribunal, the decision to deny the motion (and flatly reject the defense) seems nothing other than ground-breaking. In short, it was an epochal precedent.
What interpretive conflicts does this case raise for you when considering it as a legal scholar, versus as a historian? How do you think people today should understand Peter von Hagenbach’s prosecution?
Again, I quote from my paper:
My piece attempts to identify and resolve certain vertical and horizontal dissonances in Hagenbach scholarship. With respect to the former, this has amounted to an exercise in historiographic and historical archeology. The recent attention lavished on the case by international criminal law (ICL) experts is informed by a cartoonish conception of the defendant — an ultra-violent, sexually depraved monster who ran amok for years along the Upper Rhine and terrorized its population. Consistent with that interpretation, the authorities who captured and tried him engaged in a righteous and visionary justice enterprise. They came out on the winning side of a Manichean struggle that gave birth to ICL and ennobled its pedigree.
Digging deeper, though, one finds a very different narrative developed initially by nineteenth century historians and embraced by most of their twentieth century confreres. They saw Hagenbach as a would-be administrative reformer whose efforts were thwarted by xenophobic subjects and a parsimonious superior. In trying to transform a fragmented archipelago of city-states into a cohesive governmental entity, Hagenbach was despised because he threatened an ingrained culture of seigneurial privilege and parochial complacency. In his efforts to redeem property put in hock by Sigismund, he likely reinforced views of Burgundy as excessively acquisitive and bent on conquest (this was exacerbated by Charles’s own efforts to accede to the imperial throne). And in levying taxes to pay for good government, Hagenbach stoked local fears of financial servitude and ruin. But in doing the Duke’s bidding, he did not have the Duke’s support. And so he was left to flounder, his undoing hastened by his admitted crass and prurient behavior. They point out that his trial, a marketplace spectacle based on torture-extracted confessions, was little more than drumhead justice. It was akin to executing Charles the Bold in effigy. Peter von Hagenbach may not have been the most adroit governor and perhaps he did manifest contempt for the rising merchant and urban classes. But, the revisionists would contend, his final deserts were not just at all.
Digging deeper still, the bottom layer of historiography consists of the journalistic rough draft and the first generations of historians that followed. It is largely consistent with the modern ICL expert view but without the larger historical perspective and legal focus. And it is more regionally tinged and archaic. This layer is at once more reliable, given its comtemporaneity or relative proximity, and less reliable, given the inherent biases of its initial chroniclers and the disproportionate influence they exerted on sixteenth through eighteenth century historians.
But my piece demonstrates that each layer is not necessarily inconsistent with the others. In fact, there are many points of convergence. And it is there that a unified, coherent narrative can be stitched together. Hagenbach was coarse and confrontational. But he was also hardworking and loyal and wanted to do right by his master. His entire career had been built on pleasing Charles the Bold. He undoubtedly meant to reform and upgrade the administration of his Alsatian fiefdom. And consequently resentment of the bailiff grew over the years as he pushed while the Alsatians pulled. Hostilities boiled over in 1473 and matters came to a head in 1474. Charles’s loyal lieutenant with a criminal past and odd sexual predilections felt increasingly boxed in and he eventually lashed out. The almost exclusive procedural focus of his defense at trial strongly supports accounts of the resulting crime spree.
It should also be noted that modern Hagenbach scholarship is characterized by a certain horizontal dissonance as well — between jurists and historians. Given the historical points of convergence just noted, however, these two schools ought to find common ground too. Certain views of the revisionist historians concerning the Hagenbach judicial proceedings are not without merit. The Breisach ad hoc tribunal may not have been a kangaroo court but it bears no resemblance to the well-oiled machine of modern international criminal justice administration. The defendant was hideously tortured for days before the trial. He was given no notice of the charges or allegations against him in advance of the hearing. He had no time to speak with a lawyer before standing in front of the judges. The proceeding itself was held on a market square in a circus atmosphere and concluded within a matter of hours. He was not able to call his most important (and only) witness to the stand – Charles the Bold. And there is no indication of a high burden of proof or that any such burden even rested with the prosecution. The Breisach Trial was certainly not the paragon of due process.
On the other hand, this was the late Middle Ages — centuries removed from our modern notions of due process. Torture was part of standard pre-trial procedure at that time. And the trial itself seems relatively fair for that era. Hagenbach was represented by a zealous advocate in Hans Irmy and he was given two additional lawyers of his choice. There is as well a flip side to the “public spectacle” aspect of his trial — transparency. Hagenbach could have been summarily condemned in front of a secretive Star Chamber but his trial was held in public (and that was consistent with local custom). He was able to confront witnesses called against him. He had twenty-eight finders of fact (compared to twelve in the modern jury system). And Charles the Bold, his sole designated witness, was not allowed to testify because the defense of superior orders was rejected ab initio. As well, the proceedings lasted from early in the morning until late at night — which could equate to two or three modern court days. There seems to have been significant deliberation among the twenty-eight judges suggesting that a consensus was cobbled together after carefully sifting through the evidence. In an age of witch-hunts, trials by ordeal, the Star Chamber, and the Inquisition, this was an exceedingly fair trial.
And in many ways it seems inappropriate to use twenty-first century ICL terminology to analyze a fifteenth century judicial proceeding. But if that terminology is used, this piece has demonstrated that the Breisach Trial has many of the hallmarks of a modern international atrocity adjudication. As a threshold matter, regardless of anything else, it is the first recorded case in history to reject the defense of superior orders. In itself, that distinction invests the trial with universal historic importance in the development of atrocity law.
A spirit of hatred and revenge took possession of me. I had numerous fights in defense of what I believed to be my rights and those of my countrymen. I believed we were unjustly deprived of the social rights that belonged to us.
On this date in 1879, legendary Californio outlaw Tiburcio Vasquez was hanged in San Jose.
Born to a respectable family (his grandfather was the first mayor of San Jose) when the land was under Mexican control, Vasquez was among the many chagrined to find themselves demoted to second-class citizenry by the norteamericanoconquest of the Mexican-American War.
That occurred when Vasquez was in his early teens, and soon thereafter the young man was plying California’s ill-policed byways with the whole litany of depredations characteristic of the frontier outlaw: livestock rustling, highway robbing, shopkeep stickups.*
One of the latter furnished the proximate cause of his death and probably the most infamous single incident among his exploits: an armed robbery in Tres Pinos** that resulted in three shooting deaths and a serious manhunt.
For Vasquez, the end of the rope (last word: “Pronto”) was just the last act of a legendary career, of poetry and horsemanship and countless enchanted inamoratas. He was renowned in his own time, and has graduated since into a mythical, and potently symbolic, figure of the other peoples of the Golden West.
How did you separate fact from folklore researching this outlaw? How much do we really know about him?
Generally speaking the whole genre of outlaws and lawmen is sort of known for bad research and myths and crazy stories. It tends to attract — here I’m denigrating myself– people who are a little off. Like myself. The movie buffs tend to get reality mixed up with what they’ve seen in the movies.
The whole genre has attracted poor research and sensational writers since the days of the dime novels. Though there are real historical groups: the Wild West History Association is probably the best example — True West magazine and Wild West magazine do a god job of publishing authentic history.
With Vasquez in particular, he became a folk hero in his own lifetime to disadvantaged Hispanics.
He was personally very well-liked; as a general rule, he didn’t rob Hispanics (although he did from time to time); he paid for safe harbor and food; he was a terrific dancer; he wrote poetry to is female admirers. He was a bigger-than-life personality, sort of the life of the party.
Among the larger Hispanic community as he became more notorious in the 1870s, he became a folk hero in his own lifetime. A lot of the myths are exaggerations of things he really did.
When the colonized cannot earn a living within the system, or when they are degraded, they strike out. The most physical way is to rebel. This can be done in an organized way, as was done by Juan Cortina in Texas, or it can express itself in bandit activity. An analysis of the life of Tiburcio Vasquez clearly demonstrates that, while in the strict sense of the word he was a criminal, at the same time his underlying motivation was self-defense. Some Anglo-American folklorists have attempted to portray Tiburcio Vasquez as a comical and oversexed Mexican bandit … dismiss[ing] the legitimate grievance of Chicanos during the nineteenth century. While it is true that Tiburcio Vasquez was an outlaw, many Mexicans still consider him a hero.
His outlaw career seems like it’s bound up in this Anglo-Hispanic cultural collision. To what extent does that influence how he’s “read” by others?
His life is sort of a microcosm of what was going on. The first portion of my book deals with the rise and fall of the native settlers of California.
With the loss of California in the Mexican-American War and then the discovery of gold, they became second-class citizens in their own land. So Vasquez becomes a folk hero — he robbed stagecoaches, thumbed his nose at the sheriff, and got away.
You find these same outlaw myths in all cultures. Vasquez is no different, though he’s better documented than most. People would sing corridos about him.
There were some quotes by him that says that he was driven to it, the Anglos drove me to it — but that’s no different from Jesse James or Billy the Kid saying they were driven to it, even if it’s true. Most of these guys I’m talking about are or were history professors; they should have known better.
What led you to this story?
When I was a kid in the early 60s I watched all the westerns. Clint Eastwood and Steve McQueen were my favorite. But then I wanted to know, was there a Wild West here in California? So when I got into high school I went and read everything I could get my hands on about early California history.
Vasquez and Black Bart were pretty much the most famous early California outlaws. So I started researching Vasquez in high school, and collected information for about 40 years, but it took me another four years to write it.
There’s never been a biography about Vasquez. There were three paperback books published about him, one after he was captured and two right after he was hanged — they’re not dime novels, but they’re sort of semi-fictional. There have been many magazines, many book chapters since, but everything published about him has just been a rehash of those three books. (n.b. — here’s a pdf of one of those original 1870s books -ed.)
It must have been a compelling story for you to stick with it for 40 years.
It’s just sort of a great story from early California. Vasquez was very colorful.
He fell under the influence of a guy named Anastacio Garcia when he was about 16 years old, and his parents seem to have separated. He had a large family; all of them were extremely honest. One of his brothers was a very prominent rancher; another brother served a term as a justice of the peace in Los Angeles County.
Vasquez, possibly because his father wasn’t around, fell under the influence of Garcia and got involved in the Roach-Belcher feud. Garcia was a hired gun, and the two of them were involved in a brawl in a Fandango house in 1854 and one of them killed a local constable. Tiburcio Vasquez fled Monterrey and never appeared openly after that.
But he basically did not change.
He was engaged to Garcia’s sister when he was 17 and she apparently broke it off. That seemed to have embittered him because he never had another serious relationship again with another woman. He was a real rounder, he got shot over women, took off with the wives of other gang members.
That was very foolish — that’s what got him the noose, when a cuckolded gang member testified against him at trial. He never made any effort to change; he was what you call a career criminal.
He was a very cultured person, and even if you compare him to more modern-day criminals like Clyde Barrow or Pretty Boy Floyd or John Dillinger, none of them had that kind of culture. He really was sort of the prototype of that sort of charismatic bandit who at the same time is both charming and deadly.
Probably the thing to me that was the most fascinating was the information I dug up about his family: his parents, his sisters who were very loyal to him; his brothers who all tried to get him to go straight. I was very pleased to meet the descendants of some of his brothers, so it was fascinating to reconstruct his family life to try to explain his personality.
So what was the nature of that bandit career?
Well, he wasn’t a remorseless killer, though he was involved in nine murders — he always said it was someone else.
The one that he was hanged for, his gang killed three people in a robbery. He claimed someone else pulled the trigger. Some witnesses said it was Vasquez himself, but under the law then and now, if you band together to commit a felony and someone dies, everyone involved is culpable for murder.
He’d been doing a lot of robberies before then, but he’d do them in remote areas. He tried not to kill anyone; he’d tie people up — but he was also involved in a lot of gunfights. Basically he’d shoot to escape. In doing the research I found that he had fired into a brothel in Santa Cruz and wounded three people; another time he fired into a stagecoach station.
One of the great Vasquez stories is, he gets out of San Quentin and he goes to San Juan Bautista which is one of the most picturesque villages in California then and now — it was one of his favorite hangouts. One of his gang members, Salazar, had tried to go straight. Vasquez shows up at San Juan and finds out that Salazar has married this gorgeous 15-year-old named “Pepita” and he and another gang member lust after her and get her to run off with the gang. So Salazar comes gunning for him; they have a gunfight right there in front of the mission, and Salazar shoots Vasquez through the chest and damn near kills him. His gang gets him out of it … the girl gets pregnant, evidently with Tiburcio’s child and she dies of a botched abortion. It’s sort of the Vasquez story in a microcosm, it looks pretty romantic on the surface and you look a little deeper and it becomes pretty grisly.
He gave a lot of interviews after he was captured and they give color to the story. There’s the natural human inclination to paint yourself in the best light.
None of which helped him avoid execution.
His hanging was actually the most publicized hanging in the history of the Pacific coast; newspapers came from Canada, New York all over the country to witness the hanging.
He was hanged in front of a big crowd, a thousand people or more present. People climbed trees and telegraph poles became the jailhouse was packed. The sheriff had 300 or 400 invitations issued and then many many more were clustered around.
Executed Today would be remiss not to add that our day’s gallows-bird was the namesake of the Vasquez Rocks, a small Natural Area Park north of Los Angeles where the outlaw used to hide out.
This striking triangular rock formation, thrust out of the earth by tectonic action, has been used extensively in film productions of every genre since at least the 1930s, including with almost compulsive frequency in the Star Trek franchise — e.g., Captain Kirk fighting the Gorn:
* There’s a good deal of material about Tiburcio’s career linked here.
Last year, the Rhode Island General Assembly approved a measure posthumously pardoning John Gordon — who on February 14, 1845 was the last man executed in that state.
Gordon’s hanging, for the murder of a prominent industrialist who had bad blood with Gordon’s brother, was long notorious in Rhode Island as one secured on highly uncertain evidence in an atmosphere of anti-Irish prejudice.
ET: Can you set the scene — what’s going on in Rhode Island at this time, and what are the tensions surrounding Irish immigrants?
SM: Rhode Island was the site of the first factory in America in the 1790s, called Slater Mill. It really changed the face of Rhode Island and eventually the rest of the US.
In Rhode Island, curiously, as more and more people left the farms to work on the mills, they had an unusual requirement that really didn’t make any difference years earlier: in order to vote, you had to have so much land. (Specifically, $134 worth of land.)
By 1840, not only were the usual suspects not able to vote — women, people of color, Native Americans — 60% of native-born white male Rhode Islanders were also unable to vote. It meant that just a handful of people ruled the state, compared to the time of the American Revolution when just about every white male could vote. And immigrants in particular — and in those days, that was the Irish — were basically precluded from voting. You had a residency requirement, a property qualification. It made Rhode Island almost unique in New England, almost like a southern state.
A group of reformers came to the forefront, a guy named Thomas Wilson Dorr, a blueblood aristocrat, Harvard-educated, one of the best legal minds of the country. He threw his lot in with the reformers to try to get people the right to vote. It really polarized the state in 1842.
The Irish were sympathetic, but Irish priests tried to keep them out of it because they wanted to acclimate. But because a lot of the animosity toward people having the right to vote was directed at Irish immigrants. People blamed the Irish even though the Irish didn’t get particularly involved in the Dorr War.
Often times they got blamed for everything whether they did it or not. And of course we face the same situation with immigrants today.
What was the crime and how did the Gordons come to be the focus of the prosecution?
In 1843, a Yankee industrialist out in Cranston by the name of Amasa Sprague was found on New Year’s Eve 1843 bludgeoned to death in what today we might call a hate crime. He had a gold watch still on him, he had money in his poket, and he had been beaten to death.
Amasa Sprague was a very influential guy. His older brother who helped run the mill with him and was the US Senator from Rhode Island had the local city council lift the liquor license from the Gordon family’s business, which for all intents and purposes ended their livelihood. This was Nicholas Gordon’s shop: John Gordon had only just crossed over from Ireland.
When Sprague was found dead about six months after the license was lost, they focused on the Gordon family. The authorities formed a posse and they went after this Irish family.
How did anti-Irish sentiment manifest itself at trial?
The juries in all three trials had no Catholics and no Irish that I’m aware of. There was a lot of religious and socioeconomic animosity.
At the time, the Supreme Court of the state would sit in on the whole trial just because it was a capital trial, and the trial judge would say in the transcript — which is still available (pdf) — he basically says to the jury, if you find testimony that contradicts itself between a Yankee and an Irish witness, you should give the Yankee testimony more credence.
Doesn’t the fact that John Gordon’s brothers were not convicted militate against the notion of overwhelming anti-Irish prejudice?
You can’t go overboard on these things. The juries — all three of them — they found one Gordon innocent and in the other case they had a hung jury. I don’t want to say they were completely prejudiced, because they weren’t, but almost everything else in Rhode Island at that time was stacked up against them.
The earlier Irish who came in the 1820s and 1830s were a little bit better off, a little bit better-educated [compared to later Irish immigrants after the potato famine]. The animus against the Irish was still intense; the Irish were seen as criminal, unskilled, uneducated, ignorant. The Protestant majority at the time, mostly of English heritage, kind of brought that over with them even though they had been there for a long time.
So how did the legal proceedings play out?
They put two of the recently immigrated brothers up for conspiracy for murder, but not the oldest brother. So John Gordon and his brother William go on trial first.
The jury came back with a guilty verdict for John Gordon, who didn’t have much of an alibi, but a not guilty verdict for William, who did have an alibi. So you’ve got a conspiracy conviction with only one conviction.
Then they put Nicholas Gordon on trial, and the jury comes back deadlocked. His second trial is not going to be until the spring of 1845. In the interim, his brother John was to be hanged, Valentine‘s Day 1845 — rather than wait to see what happened at Nicholas Gordon’s trial and whether there even is a conspiracy.
The defense petitions the governor and the general assembly to hold off the execution until after the trial of the oldest brother. The governor washes his hands of it, and the general assembly votes very narrowly to go ahead with the execution.
So they hang him, and what’s interesting in that part of it is an itinerant, traveling Catholic priest — a guy named Father John Brady — hears John Gordon’s last confession.
Well, they invite the elite of providence inside the prison to watch the hanging. (There’s about 1,000 Irish outside the prison in support of John Gordon.) When they put the noose around his neck, the priest is with him, and the priest berates the elites and authorities, and he says, John, you are going before a just God who has seen way too many of your countrymen.
I always argue in my writings that this guy, he’s an immigrant, he’s uneducated, he’s just been in America for a few months. I just can’t believe that this guy would ever lie to the priest hearing his last confession, and the priest would never berate the elites unless he’d heard a confession of innocence.
After John Gordon’s hanging, his brother Nicholas goes on trial as planned, and they come back with another hung jury — this time, with a majority voting him as innocent. They were going to try him again except about 18 months later, Nicholas dies of natural causes.
I’ve seen a lot of people describe growing up hearing unambiguously that this was a wrongful execution. Is that how it was perceived right from the start? How universal was/is that perception?
There was such a collective feeling of guilt about this that in 1854, Rhode Island abolished the death penalty and John Gordon was the last person ever executed there.
There’s one flaw in the law. This was added late in the 20th century, that anyone convicted of killing a prison guard during an escape could still be killed. And there was an incident, I remember it as a kid maybe 30 years ago, but they still didn’t condemn even that person to death. But Rhode Island has never changed that.
None of us who ever testified ever said categorically that John Gordon was innocent, because we just can’t prove that. But we did say that he never got a fair trial, just like Sacco and Vanzetti in the 1920s.
We did in our research was come up with two or three suspects who had much better reason to assassinate Sprague. But there were no witnesses to the case. It was all circumstantial evidence. I have to say, every time I look at the case — there are some pieces of evidence that would make the Gordons look very guilty. There are other aspects of it that make them look very innocent. If it was in today’s world, the police would interrogate them as people of interest.
It’s not as cut-and-dried as some people make it. All I know is that they got an unfair trial.
Gordon was posthumously pardoned last year. How did that campaign get going, and how receptive were folks in the capitol?
The problem was a lot of people had forgotten the case. I had been writing for a number of years op-ed pieces in the Providence Journal, and mentioned John Gordon from time to time.
But it was an 80-year-old guy named Ken Dooley, and he grew up a couple miles from the murder site near Cranston, and he was a playwright. He came back home and remembered his grandmother singing some little ditty of a song 70 years ago saying something like “Poor Johnny Gordon”, and so he researched it, and he wrote a play.
And they put it on in Cranston, and over the couse of the month several thousand people saw it. A state representative, an Irish guy, saw the play four or five times and then introduced that into the general assembly trying to obtain a posthumous pardon — just to say that the evidence didn’t support the execution.
And Gov. Chaffee, who comes from an ancient Yankee family in Rhode Island, signed the damn thing. It was that play that this guy wrote and we were all amazed that this kind of came out of the blue. We held a lot of events around it — had church services, put up ceremonial headstones. I always tell people that I want this on my headstone: that I had a hand in getting John Gordon pardoned.
There are some excellent resources already available online concerning the Gordon case, including:
On this date in 1992, Johnny Frank Garrett was executed by lethal injection, with the tart last words,
“I’d like to thank my family for loving me and taking care of me. And the rest of the world can kiss my everloving ass, because I’m innocent.”
Although Garrett was only 17 at the time a nun from a neighboring Amarillo convent was raped and murdered, and he may have qualified as developmentally disabled to boot — both factors that today would exclude him from execution — that whole innocence story didn’t have much public traction.
“No, no, not at all,” New Mexico attorney Jesse Quackenbush told this site in an interview. “He was villainized from day one: he was a nun-murderer who needed to be executed. The only sympathy really came from the Pope.”
But two decades on, Garrett’s dying profession is one of the more troublesome skeletons in the Texas execution machine’s closet, thanks in no small part to Quackenbush himself.
Quackenbush directed the documentary The Last Word (viewable free on Netflix), a powerful brief not only for Garrett’s innocence* but against the comprehensive rot of the system that shunted hm off this mortal coil — from the front-line investigators all the way through the Lone Star State’s intentionally broken executive clemency farce.
“It was a system-wide failure that caused this kid to die. It wasn’t just the legal system,” Quackenbush said. “The media played a part. The governor was looking more to her own re-election hopes.* There was a dysfunctional family. The Supreme Court wasn’t morally deep enough to realize that executing 17-year-olds and ‘mentally retarded’ prisoners was wrong. There’s the system in Texas that allowed the prosecutors to hand-pick the pathologists to provide junk science.
“It’s a multifaceted failure, and no one facet is more to blame than the others.”
Garrett, a white teenager, disappeared into a Kafkaesque legal labyrinth, after the alleged supernatural vision of a local soothsayer acclaimed him the culprit in the murder of a nun named Tadea Benz. Corporeal indicia of guilt falls somewhere between circumstantial and laughable: fingerprints in a convent he had visited many times, the inevitable jailhouse snitch, and an unrecorded supposed “confession” that Garrett refused to sign.
As in a preponderance of death cases, especially in Texas (pdf), a meek and all-but-unfunded defense team offered scant resistance as prosecutors made the most of this eminently disputable evidence: once the one-sided trial was in the books and the crucial direct appeals likewise slipped past, the proceedings lay beyond the reach of judicial review.
This novel is inspired by the Garrett case.
For all that, there yet remains one un-litigated piece of evidence.
Around the time of Sister Benz’s death, there was another rape-murder of another elderly Amarillo woman, a crime that authorities publicly described as “too similar” to the Benz case not to be part of the same crime spree.
That case went unsolved … but years after Garrett’s execution, DNA databases matched an old semen sample from that second crime to a Cuban rapist (he was among the criminals and undesirables that Castro expelled to the U.S. during the Mariel boatlift) named Leoncio Perez Rueda.
More dispositive evidence in the form of still-testable crime scene samples may yet reside in Amarillo’s evidence lockers — semen and blood samples that, in the era of DNA, Quackenbush thinks would exonerate Johnny Frank Garrett.
If testing this sort of thing sounds like a no-brainer, you don’t work for Amarillo.
“The [Garrett] family offered the city of Amarillo complete civic immunity and they still refused to run a DNA test, and threatened to countersue** if the family tried to pursue it,” Quackenbush says. “In the state of Texas there are still only laws protecting DNA access for living people: if you’re already executed, you have no rights.”
Which is a particular pity — since “the chances of executing innocent people are still really high.”
* Quackenbush’s case for Garrett’s innocence is outlined in this legal memo (pdf). This site maintains an extensive archive of resources about the case.
** In this, it’s not unlike the Ruben Cantu case, where post-execution evidence of innocence has also been met with legal threats by the state.
While there may be serious doubt about the wisdom of capital punishment it is at present imposed by the law of this State, and if it is to be applied in any case then it should be in this … Any man who will live off of the shame of a woman and beat her from time to time as he would a dog, and finally kill her, must expect to suffer the penalty of the law.
-Illinois Gov. John Altgeld denying clemency to George Painter (Jan. 25, 1894)
On this date in 1894, the Land of Lincoln bloodily botched (but ultimately accomplished) the hanging of George Painter.
Painter died for the sordid murder of prostitute-lover-income source Alice Martin.
Painter insisted he was out at the pub when Martin was throttled and bludgeoned to death in their mutual bed, but the timelines left the alibi leaky and a patch of bloody on the reprobate’s coat undid him.
Despite swearing his innocence on pains of being “condemned to a flaming hell for all eternity” and winning three gubernatorial reprieves as his appellate lawyers scrounged up sketchy supportive testimony from various lowlifes, matters were pretty solidly against him by the end. So much so that the seemingly-sturdy rope, “of the same coil with which the anarchists were hanged,” snapped jaggedly when Painter was dropped.
The condemned killer’s body carthwheeled from the jolt of the rope’s end, crashing headlong into the concrete floor. Doctors advised that Painter’s neck was broken and life gone or ebbing … and puzzled executioners, unsure what to do with this unusual semi-successful botch, hauled the hemorrhaging near-corpse back up the scaffold, strapped it up, and dropped it again. You can’t be too careful.
Although the subject of Loerzel’s book, the immigrant sausage-maker Adolph Luetgert, was not put to death for his trouble, we were thrilled that the author sat down with Executed Today to find out a little bit about how criminal justice looked in Chicago on the eve of the 20th century.
ET: One of the aspects that you cover in Alchemy of Bones that’s also present in the Painter case is circumstantial evidence of uncertain probative value. What’s a definitive piece of evidence to a late 19th-century juror?
RL: Obviously if we had a time machine and we could go back 100 years and reinvestigate some of these cases with today’s forensic science, I think we would find a lot of cases of miscarriages of justice. It’s hard to tell looking at these cases today when all you have is these newspaper articles and court transcripts. You can look at it with common sense and try to determine from what people are saying whether there might be some element of doubt.
Today there’s been this huge change with the introduction of DNA evidence and we’ve suddenly discovered that a huge number of people on death row or in prison who are innocent. And that has caused a lot of people to question the reliability of eyewitness testimony and the identification of suspects.
All these things — the testimony of witnesses who say they saw something or said, yeah, that’s the guy — that’s what people in the 19th century were being convicted on. We’re talking about an era when even fingerprints weren’t being used yet.
In the Luetgert case one of the key things was that they found some bone fragments. The Luetgert case is one of these rare murder cases where for all intents and purposes there was no body found. We have some of those cases still today where someone is missing; all the circumstances seem to point to the fact that someone is dead. And prosecutors and police face an additional hurdle — they have to persuade a court that a murder actually happened.
With those sorts of cases, you had some bones that were found. The forensic science of the time — you coudn’t run a DNA test on it. Part of the question was, were those bone fragments even human? Is it possible that pig bones or cow bones were found in a sausage factory? Of course it was possible.
The Luetgert trial was one of the first cases which had testimony from anthropologists, which was a pretty new field at the time. They brought in some experts from the Field Museum.
How did that go?
It wasn’t necessarily the greatest start — but it was sort of like the criminal justice system started to take some baby steps toward bringing science into the courtroom.
Later, in the 1920s or 30s, there was a landmark case called Frye. They still today have the Frye rule — when courts look at a witness to determine if he is an expert. In the Luetgert case, they didn’t do that, and it was kind of a carnival. A high school chemistry teacher was one of the people they put on the stand to testify about the bones.
Luetgert’s crime, murdering his wife and dissolving her or possibly stuffing her into the sausages, was so much more infamous than Painter’s. Why didn’t Luetgert get the death penalty?
Then as now, it was somewhat arbitrary which criminals would get the death penalty and which would get a prison sentence.
In Illinois during that era, there were a lot of people convicted of crimes and sent to prison for much less than a life sentence. They had a system there of “indeterminate sentence” where they would sentence someone to a wide range of possible terms, maybe from two years to 50 years; it was really flexible and vague with the idea that it was a more humane way of dealing with criminals.
It probably also put the thought in the minds of jurors that, do we want to put this guy in prison and he might be getting out in a few years?
In the Luetgert case, there was some outrage that if you were going to convict a person of this crime, you have to sentence him to death. Some people thought that they sentenced him to life in prison because, what if his wife is still alive? There were all these stories coming out at the time of the trial where people thought they had seen Mrs. Luetgert.
So there was the thought, what if we hang him and a year later, Mrs. Luetgert shows up?
None of the jurors ever came right out and said it, but it’s possible that that doubt played some role in the decision not to sentence him to death.
Luetgert’s case got national media attention which Painter’s did not. Was it a milestone for that kind of treatment? What was the media landscape for crime reporting at the time?
There were a few other cases during that era, so it’s hard for me to say that this was the first. But it was certainly an early example of a sort of 19th century equivalent of what we experience with, for instance, the O.J. Simpson trial.
Newspapers covered it in great depth. In Chicago they had a dozen newspapers at the time; they would print page after page of transcripts and reports — far more detailed than anything you see in trial coverage in newspapers now.
It actually looks like a lot of newspapers around the country did what we today call news aggregating. We complain about sites like the Huffington Post … well, a 19th century newspaper in a small town in Iowa would just publish a huge long excerpt of a story from a Chicago newspaper. And sometimes they would credit it and sometimes they wouldn’t.
Compared to present-day one- and two-paper cities, that’s still quite a difference.
There’s a lot of media out there now. If you look on the web, blogs, news aggregator sites, TV and radio. We still have a lot of media coverage now, it’s just spread out into a lot of different channels.
I was frankly shocked when I was researching how detailed some of the articles were. It helped me as a researcher. Interestingly, the readership included a lot of people who were not necessarily well-educated, yet newspapers wouldn’t hesitate to run page after page of transcripts. Nowadays, I think you’d have an editor saying, “give me 10 inches.”
Having written the book on the case, do you think Luetgert was rightly convicted?
I believe so. More than the forensic testimony, Adolph Luetgert’s behavior after his wife disappeared sort of points to a guilty conscience. He feared that certain people would go to the police and he either offered them jobs or threatened them.
Though this is precisely the sort of fuzzy circumstantial evidence those 19th century juries were acting on.
That’s absolutely true. In some of these cases you look at, what’s the difference between a man acting suspicious and an innocent man being wrongfully accused? There’s some overlap there.