On this date in 1951, the first of two batches comprising the “Martinsville Seven” — black, all — went to the Virginia electric chair for gang-raping a white woman. (The remainder were executed on Feb. 5)
In fact, this case generated a bit of a legal milestone: a month before the executions began, the U.S. Supreme Court declined an appeal seeking relief on the then-novel grounds of equal protection — rather than due process.
The argument was that the Old Dominion’s superficially race-neutral rape statute was anything but; that argument was buttressed by data showing that Virginia had executed 45 black men for raping white women from 1908 to 1950, but never once in that period executed any white man for raping a black woman. (The high court only declined to take the appeal; it wouldn’t get around to explicitly ruling equal protection claims based on racial patterns out of bounds until 1987’s McCleskey v. Kemp.)
This seems to be the debut use for this gambit, bound to become an increasingly powerful one both in and out of the courtroom during the civil rights movement.
And it was available — and necessary — here because the Martinsville Seven basically looked guilty as sin. Their confessions and the victim’s accusation and the testimony of a young eyewitness said that, drink-addled, they had opportunistically grabbed a white Jehovah’s Witness housewife when she was proselytizing on the wrong side of the tracks.
certain striking characteristics distinguished the proceedings from classic “legal lynchings.” The evidence presented at trial clearly proved that nonconsensual sexual intercourse with the victim had taken place. All seven defendants admitted their presence at the scene, and although some of the men may not have actually consummated the act … The prosecution emphasized the preservation of community stability, not the protection of southern womanly virtues, as the dominant concern of Martinsville’s white citizens. Most significant, the trial judge made a concerted effort to mute the racial overtones of the trials. Although white juries decided each case, blacks appeared in every jury pool. Race-baiting by prosecutors and witnesses, notably evident at Scottsboro and other similar trials, was absent from the Martinsville proceedings. By diligently adhering to procedural requirements, the court attempted to try the case “as though both parties were members of the same race.”**
The standard playbook for fighting a “legal lynching” case was leveraging outrage over a plausibly innocent convict and an outrageous kangaroo court.†
Paradoxically, by taking these elements out of the mix (relatively speaking), the Martinsville Seven perfectly isolated the extreme harshness of the penalty and the structural discrimination under which it was imposed. The NAACP took up the case on appeal strictly for its discriminatory characteristics, steering for its part completely clear of any “actual innocence” argument.
These challenges posed discomfiting questions that jurists shrank away from. The Virginia Supreme Court, in denying an equal protection application, fretted that actual legal relief could mean that “no Negroes could be executed unless a certain number of white people” were, too. Timeless.
Though a later U.S. Supreme Court would completely overturn death-sentencing for rape, based in part on its overwhelming racial slant, justices have generally avoided meddling to redress broad statistical patterns rather than identifiable process violations specific to particular cases.
Those questions of substantive — rather than merely procedural — equality in the justice system remain potently unresolved, still part of Americans’ lived experience of the law from death row to the drug war to driving while black. As if to underscore the point in this instance, just two days prior to the first Martinsville executions, the Wall Street bankster acting as American proconsul in conquered Germany pardoned imprisoned Nazi industrialist Alfried Krupp, and restored him to the fortune he had amassed working Jewish slaves to death during the war. It was a very particular quality of mercy the U.S. showed the world in those days. (The Martinsville case was known, and protested, worldwide.)
Carol Steiker (she used to clerk for liberal Justice Thurgood Marshall, who as an NAACP lawyer worked on the Martinsville case) argues‡ that the Martinsville Seven’s legacy is linked to their later obscurity, for “[t]heir attempt to present statistical proof of discrimination in capital sentencing represents a ‘road not taken'” — neither in 1951, nor since.
The road taken instead had Joe Henry Hampton, 22, Howard Hairston, 21, Booker Millner, 22 and Frank Hairston, 19 electrocuted one by one this morning in 1951. Their three co-accused, John Clabon Taylor, 24, James Luther Hairston, 23, and Francis DeSales Grayson, 40, followed them on February 5.
* “Race, Rape, and Radicalism: The Case of the Martinsville Seven, 1949-1951″ in The Journal of Southern History, Aug., 1992.
** This quote an actual trial admonishment of the judge, Kennon Whittle.
† Graded on a curve: this is still Jim Crow Virginia. Six trials were wrapped up at warp speed in 11 days, with a total of 72 jurors — each one white. The implied comparison is something along the lines of, all seven tried together in the course of an afternoon, with a good ol’ boy defense attorney mailing it in.
‡ Review of Rise’s book titled “Remembering Race, Rape, and Capital Punishment” in the Virginia Law Review, Apr., 1997
Shipp, who is said to have confessed killing the white man, Claude Deeter, 23, of Fairmount, Ind., was hanged from an elm tree in the courthouse yard. Smith, whom the girl identified as her assailant, was thrown from a third floor window of the jail with a noose around his neck and strangled.
Reports of the crimes and confessions, published in Marion newspapers this afternoon, stirred this quiet community of 23,000 to intense excitement. There was no hint of the impending violence, however, until 8:30 p.m., when a motorcade of Deeter’s fellow townsmen arrived from Fairmount.
The Fairmount delegation, numbering about 100, gathered in the public square, openly displaying their guns and shouting for a lynching … The sheriff led his deputies to the front door, argued a moment with the leaders of the mob and then ordered the tear bombs thrown. Blinded, the lynchers fell back for a few minutes, but returned and began the sledge hammer siege which forced the jail doors within ten minutes. No shots were fired on either side.
Following the lynching the mob gathered in the square for an hour, some proposing to drive the 2,000 members of the Negro colony from the city and burn their dwellings. Peace officers from Indianapolis, Kokomo, Fort Wayne, and other towns were arriving however, and gradually the mob broke up.
The corpses hung in the square for hours, attracting throngs of gawkers — including a photographer able to snap this picture:
Teacher/poet Abel Meeropol ran across this photo of the Shipp-Smith lynching a few years later in a magazine, and it so “haunted” him — his word — that he penned the anti-lynching poem “Strange Fruit”. You know it from Billie Holiday‘s arresting vocal rendition.
Southern trees bear strange fruit
Blood on the leaves
Blood at the root
Black bodies swinging in the southern breeze
Strange fruit hanging from the poplar trees
Pastoral scene of the gallant south
The bulging eyes and the twisted mouth
The scent of magnolia sweet and fresh
Then the sudden smell of burning flesh
Here is a fruit for the crows to pluck
for the rain to gather
for the wind to suck
for the sun to rot
for the tree to drop
Here is a strange and bitter crop
Abel Meeropol was no passing sentimentalist himself, but a prolific left-wing activist. During the McCarthy years, he adopted the children of the Rosenbergs when the latter were electrocuted as Soviet spies. As faithfully as those two orphaned boys have carried the torch for their lost birth parents, they also still carry an adoptive surname: Michael Meeropol and Robert Meeropol.
A third person was almost lynched in the same Marion, Ind., incident, but 16-year-old James Cameron (sometimes called “Herbert” or “Robert” in the 1930 news reports) managed to convince the mob that he wasn’t involved. Just how he managed this feat and what he’d really been up to is another strand of Carr’s tapestry: many of the Marion blacks as well as whites she interviewed overtly mistrusted Cameron.
At any rate, the crowd let him off with a beating, and Cameron served time as an accessory to the crime.
After release, he became an anti-lynching activist in Indiana and, later, Wisconsin — where he founded a (since-shuttered) Black Holocaust Museum. He started several NAACP chapters.
In the more immediate aftermath, it was far from a given that this date’s effusion of summary justice wouldn’t cascade into a generalized racial pogrom.
As the Tribune article notes, the lynch mob mulled attacking the black community, ultimately dissuaded by the gradual arrival of lawmen. By the next day, the Indiana national guard had occupied Marion. The Tribune on Aug. 10 reported the town “peaceful to all outward appearances but acutely aware of an undercurrent of racial antagonism that it feared might flame into open warfare at any moment.”
Lest this seem a bit over-the-top, recall that all this went down just a few years since a lynch mob in Tulsa had metastasized into one of America’s most notorious race riots. The prospect of wholesale bloodletting was very real.
When the local attorney general and grand jury waved away the small matter of punishing mob leaders, several of whom were publicly known by name, Indianapolis attorney general (and Marion native) James M. Ogden drove up to town and personally filed indictments, to the fury of white residents.
“It was astonishing to see and feel the mob atmosphere that still prevailed nearly seven months after the murder,” wrote a correspondent for The Nation. Ogden’s deputies were “looked upon as enemies of the community, not only by the mob, but also by most of the court officials.” After all-white juries acquitted the first two people tried, the state dropped its remaining indictments.
The maelstrom of race and politics and history that emerged from that first fatal transaction — a brutal but banal Lover’s Lane heist — grew so far beyond the original cast of criminal and victim that they practically became secondary to the story.
On August 8, 1930, a wire story datelined Fairmount, Ind., ran in the Indianapolis Star (but not the Marion papers):
Deep regret that the negro slayers of their son Claude, were lynched in Marion last night by a mob, was expressed today by Mr. and Mrs. William Deeter, members of the Apostolic faith, a sect similar to the Quakers.
“God should have been the judge,” said the elderly Deeter. “They had no right to do it,” his wife assented.
Both are opposed to capital punishment and did not want to see the negroes put to death for their crime.
Lynching is such a vile word. Likely taken from the name of Captain William Lynch of Virginia (circa 1780), the term for administering justice while dispensing with a trial had, by 1916, long since taken on its more common meaning of a white-on-black public killing.
But Jesse Washington‘s case defies this simple definition, straddling the line between state execution and an unrestrained populace. Washington’s brutal lynching at the hands of a white mob in Waco, Texas, on May 15, 1916, clearly fits the definition, and the particularly grisly details of his demise conjure all-too-familiar images of violent racism in the pre-Civil Rights South; but in another more disturbing way, Washington was effectively executed, his punishment carried out not by the state of Texas, but by the people themselves.
Jesse Washington’s charred corpse after the lynching.
Washington was born in 1899, a black farmhand who may or may not have been mentally retarded.* While his life is not well-documented, his death most certainly is. Washington was arrested on May 8 of that year for the rape and murder of Lucy Fryer, the 53-year old wife of a well-to-do cotton farmer. Fryer was found bludgeoned to death. Washington was spared for a week by the Waco sheriff, who successfully took him into custody before a pre-trial mob got their hands on him; Washington was then sent to Dallas for holding to prevent a local incident. To appease the mob, he was transferred back to Waco and tried for the crime just one week later.
It’s unclear whether Washington was guilty — evidence is scant and the trial lasted just one hour, but Washington appears to have had ample opportunity to perpetrate the act and is purported to have confessed — but his guilt or innocence in the matter was not on the mob’s mind. On May 15, the well-attended trial ended, and in four minutes, the jury reached its guilty verdict. Before the 17-year old could be sentenced, and with little or no resistance offered by any of the various legal entities in the courthouse, several hundred of the onlookers (some brandishing weapons) rushed Washington and carried him out the doors. Outside, a larger crowd waited to beat and castrate him. A chain was thrown around Washington’s neck, and he was dragged to the town square, where he met an immense crowd as well as the pile of dry goods boxes that was to be his end.
A Fred Gildersleeve image of the lynching of Jesse Washington.
By some estimates, up to 15,000 (mostly white, though not exclusively white) people watched the horrible events unfold; without question, Waco’s mayor as well as several other public officials watched from their second-story perch at town hall on one side of the square. Washington was tossed onto the boxes and coal oil was poured over him. The other end of the chain was thrown over what has become known as the Hanging Tree, and the fuel below Washington’s feet was set ablaze. Immersed in the flames, he attempted to climb the blisteringly hot chain multiple times, each time to be lowered back into the cauldron. It’s unclear how long Washington was alive, but the event lasted more than an hour, after which his fingers and teeth were claimed as souvenirs, his body parts were separated from the torso, and the remains of Washington were dumped in a bag so they might be dragged once more through the Waco streets.
Also watching from the mayor’s position was a cameraman who wanted to sell photographs of Washington’s charred corpse as postcards. Fred Gildersleeve snapped a series of images which would briefly make Waco the most shamefully famous city in the nation. Gildersleeve’s work paints a portrait of a town possessed by spite and uncontrolled rage: thousands of white spectators standing about the burning body of Washington from above, then hundreds of blacks gathered around his burned and brutalized remains from ground level. Others took pictures as well,
some more disturbing than others.
A complete and startlingly brutal account of this murder is given by Patricia Bernstein in her 2005 book The First Waco Horror: The Lynching of Jesse Washington and the Rise of the NAACP, which also tracks the increased viability of the NAACP in the wake of the slaying. What makes this case noteworthy for this column, though, is that Washington was found guilty prior to his lynching, and he would doubtless have received a state-supported death sentence. At the time, Texas law would have allowed for a public hanging; presumably, the spectacle surrounding Washington’s execution would have been just as significant (though not nearly as gruesome). Instead, vigilante justice was administered on the young farmhand, and his case because a linchpin for the Civil Rights movement. As with other lynchings of the time, no persons were charged in the incident, though it was obvious that there was significant planning involved and, from some of the images, that some form of self-appointed executioner actively participated in the deed.
Unlike a state-sponsored execution, though, Washington’s death raised the ire of the jury foreman, who harshly criticized the court for not protecting him. And because he was lynched, his cause was also taken up by several Northern papers, pushed into the national spotlight by NAACP secretary Royal Freeman Nash and Elisabeth Freeman.** Over 90 years later, the town of Waco is still dealing with the Waco Horror. The lynching has reared its head multiple times as many residents have pushed for a plaque to be erected on the site of the lynching, as one was for a distressingly large number of prior lynchings in Waco. Some in the town continue to resist, asserting that Washington’s guilt absolved the mob of responsibility for its act.
A postcard commemorating the lynching; written on the back: “This is the barbecue we had last night. My picture is to the left with a cross over it. Your son, Joe [Myers].”
Washington’s case raises two of the critical issues in the modern death penalty debate: culpability of the executioner (and witnesses), and cruelty of punishment. Nobody in the mob was prosecuted for the crime, and in the Waco of that day, it would have been unusual if someone had; today, we take little interest in the state executioner but would vociferously condemn such mob action. On a similar note, Washington’s death was barbaric and brutal, and few would argue that such an execution should be undertaken through legal channels, but recent Supreme Court cases have found it difficult to identify the meaning of “cruel and unusual punishment”. The debate continues in the United States, but these are two arguments, posed by Cesare Beccaria, that caused Leopold II to outlaw capital punishment in the Grand Duchy of Tuscany in 1789, and cases like Washington’s suggest they should continue at the very least to give us pause today.
* Some accounts state simply that he was illiterate, and if this is the litmus test for mental retardation in the early 1900s, around 6 percent of the population fell into that category.
** Freeman worked tirelessly to drag information from Waco’s inhabitants, her actions likely sparking papers like the local Waco Times-Herald to quickly shut the door on the case; that paper officially apologized 90 years later for its and other newspapers’ roles in venerating the lynch mob.