Five Murderers Executed In Public at Mt. Vernon, Georgia
Three Killed a Merchant, the Fourth a Child and the Fifth a Companion.
Mt. Vernon, Ga., Sept. 29. — Five murderers were executed upon one scaffold at this place at 2:05 p.m. today. They were Hiram Jacobs, Hiram Brewington, Lucien Manuel, Purse Strickland and Weldon Gordon. All were commonly called negroes, but the first four named were descendants of the Crowatan Indians of North Carolina, and locally were known as “Scuffletonians,” from the name of the community from which they came. Three of them murdered Alexander Peterson, a rich merchant, last July, the fourth killed a five-year-old child and the fifth murdered a negro companion.
Over ten thousand people, white and black, witnessed the executions. Every incoming train deposited its load of human freight and steamboats on the Oconce and Attamba rivers ran a daily schedule. Thousands of women viewed the spectacle without a shudder.
The condemned men spent their last night on earth without any perceptible dread. This morning in the jail several colored ministers offered prayer for their spiritual salvation, exhorting them to be firm and courageous. At 1:30 p.m. the march to the scaffold was begun. The sheriff and prisoners were seated in a hack surrounded by a score of armed guards. They stood side by side on the scaffold. They were requested to make a statement if they desired.
Manuel said: “I have every reason to believe that I am going to meet the angels above. I fear nothing, my sins are forgiven and I shall go to heaven. I tell you my friends, to put your trust in God — good-bye.”
The others followed in the same strain. Strickland shed tears, while the vast throng sang, “A Charge to Keep I Have.” The Rev. Mr. Ross, a colored minister, prayed fervently. Then Sheriff Dunham adjusted the black caps and a photographer took their pictures.
Image from here, which appears to misdate the execution.
At this moment Sheriff Dunham bid them farewell, shaking each other by the hand, saying: “May God have mercy on your souls.”
At 2:05 p.m. the trap was sprung. There were no signs of a struggle, and the bodies hung straight and motionless. Half an hour later the bodies were cut down and deposited in pine coffins.
A number of comment threads on this site attest that many accidental visitors to Executed Today are genealogy researchers turning up information about a famous ancestor. The Internet age is a true renaissance for genealogists; while it’s not this blog’s specific objective, it’s a happy side effect if we throw the odd ray of light on the very odd bits of a family’s history.
It’s in that spirit that we present this date’s profile of Elisha Reese, hanged before a reported 5,000 spectators on September 7, 1849 just outside the city limits of Macon, Ga.
As with many crimes, it was the news on everyone’s lips in its own day, but then passed rather quickly into obscurity. Elisha Reese, age 50, was rejected in his marriage suit by 60-year-old widow Ellen Pratt. The nature of their relationship is not known, but Reese took this badly enough that Ellen’s father, 90-year-old Revolutionary War veteran David Gurganus, swore out a peace warrant against his would-be son-in-law … and then Reese took the existence of this peace warrant with a downright vengeful fury.
For what happened next, click on through to the proper genealogist — and Gurganus descendant — who has researched this story already and posted it as a three-parter on her site, A Southern Sleuth.
By dint of the grueling publishing schedule, this site is rarely equipped to follow as deeply into the wilderness as one might like the trailheads uncovered day by day.
Today is 101 years since a lynching in Hamilton, Georgia that made national news and is just pregnant with curious little details that seem like they ought to attract an enterprising researcher.
The four, whose names are conflictingly reported, were tenant farmers of Norman Hadley, described as “a well-to-do unmarried farmer.” Some days before, Hadley was killed with a few .32 and .38 caliber gunshots through a window while sitting home alone.
Why were these four promptly arrested? What was known or believed about their probable grievance against Hadley — especially given the inclusion of a woman? We know that some topics of race relations were taboo at this period, and the bare facts seem suggestive of a much richer background where the nearby Columbus Enquirer-Sun only murmurs that “it was known that he [Hadley] had had some trouble with these negroes.”
Professing himself ignorant of any stirring popular violence — even though the superior court had only just announced a hurried special sitting so that it could try the case with speed lest vigilantes do what they ultimately did — the local sheriff blithely absented himself from town on the night of the 22nd. Would he have done that were he not Norman Hadley’s uncle? Late that evening,
[The crowd] advanced on the jail and throwing [the jailer] to one side broke the doors down. The terrified negroes were hustled out at the point of guns and marched outside the town. There they were quickly strung up. Immediately their writhing bdies became silhouetted against the sky, revolvers and rifles blazed forth and fully 300 shots were fired before the mob dispersed and left its prey to the winds.
The “prey” — all four of the prey — protested innocence every step of the way.
Whatever was abroad in the town, the wire stories that carried this lynching into press runs around the country found “no motive for the killing of Hadley” that “can be advanced by people here.” But they were absolutely certain: the sheriff had said during the preceding week that the accused were all trying to put the blame on one another, but that “it is not known why the negroes, or whoever killed him did so.” (Columbus Ledger, Jan. 18, 1912) So the interrogation never got around to why?
Whatever skeletons were in Harris County closets, the story’s national import was helped along by the near-simultaneous release of a study indicating that the state of Georgia had contributed a quarter (19 out of 71) of the previous year’s lynchings. It fit the narrative, as they say.
The African-American Savannah Tribune, as one might imagine, editorialized indignantly (Jan. 27, 1912):
The lynching of the four Negroes, one woman and three men, at Hamilton, Ga., on Monday night to avenge the death of a prominent white farmer, which was supposedly committed by the victims, was one of the most brutal and wanton crimes ever perpetrated in this state. There was not even the usual confessions of the unfortunate victims given out, in fact they professed their innocence to the end, but the mob was bent on taking their lives and therefore carried out their murderous intentions. The case was as follows: On last Sunday afternoon the man, who was murdered, was sitting in his home alone, a shot was fired through he window and he fell dead. That afternoon four Negro tenants were arrested charged with the murder and the next night they were taken out and lynched. The sheriff, who was uncle of the dead man feared no lynching and took a trip to Columbus, Ga., and in the mean time the Negroes were seized and put to death. Even circumstancial evidence against the Negroes was slight but they had to die to appease the wrath of the mob. Surely such crimes cannot much longer continue without some effort being put forth on the part of the law abiding citizens to stop them. Such dastardly crimes as this are indicative of the low value which is placed upon human life, especially if the life be that of a Negro.
The tone of moral outrage contrasts rather markedly with the Columbus Ledger‘s “let the law take its course” demand for a more orderly hanging scene.
The Hamilton Lynching
Law abiding citizens of Harris county have doubtless been made to blush with shame at the result of last night’s lynching, which cannot but be condemned by all lovers of good government.
Residents of that county were justly wrought-up over the killing of one of their prominent young citizens and punishment for the guilty party or parties could not have been too severe. But the law should have been allowed to take its course.
Judge Gilbert of the Chattahoochee circuit had, upon urgent request of the citizens of Harris, called a special term of the superior court of that county to investigate the case and give the four negroes a speedy trial, that justice might be meted out witout delay, and it appears that everything possible had been done to bring about the apprehension and speedy punishment of the blacks who murdered young Hadley.
Therefore, it seems to the Ledger that there was absolutely no excuse for the acts of last night.
These men may have put to death the guilty parties, or they may have lynched several innocent blacks. They doubtless feel confident that they got the right negro, but have they assurance of this fact?
Law-abiding citizens cannot endorse the acts of this mob, and we must condemn the incident, or any other which tends to disregard law and disrupt government.
Less sentimental still — the heartless progressivism of economy — was the Ledger‘s reasoning on Jan. 26.
Lynching and Business
Lynching has a business side. Most of us have considered more or less the other aspects of it — the breaking of law, creation and increase of a spirit of lawlessness, the turning back of civilization and the taking of human life, without warrant or justification, which is plain murder.
But, lynching has a business side, which is worth consideration at this time.
…
In other sections the South is regarded by literally hundreds of thousands of otherwise well-informed people as a country of miasma, fever, laziness and lynching …
Day after day, wee after week and year after year, Southern newspapers and other influences that are devoted to the best interests of the South hammer away at this misinformation about our section in efforts to dissipate it. bout the time they seem to be making some headway along comes a lynching or a massacre, like that in Harris county, and the people of other sections believe that their first opinions and ideas were right and have been confirmed. And most assuredly they hae a reason for thinking so.
Just now the South has opportunities that it has never had before. For many years the tide of home-seekers and the trend of capital seeking investment has been westward … [but they are now] turning to the South — and it should be remembered that there are more homeseekers and investors in this country than ever before.
But mob rule, lawlessness, ruffianism and murder will not attract them. Even the leader of a mob would hardly want to move to a lawless section of some other part of the [coun]try. No man who has sense enough to make money to invest would buy property in a section in which the law is so disregarded, for robbery is a lesser crime than murder.
If Harris county alone should suffer for the massacre that has been permitted in the shadow of its courthouse, the balance of us would have little to say. But Harris county will not be the only one to suffer. Muscogee will suffer and so will every county in Georgia and so will the whole South.
It is about time for people in this part of the country to look the matter squarely in the face from a business view point.
On this date in 1841, Archilla Smith was hanged over a tree branch in Cherokee Country (since the gallows hadn’t been delivered in time) for the murder of John MacIntosh.
Payne lived with the Cherokees in Georgia immediately preceding their forcible removal to Oklahoma along the Trial of Tears, and then repaired to Oklahoma with the evicted tribe. (Payne unsuccessfully lobbied the U.S. Congress against its removal policy.)
The procurement of Cherokee signatures on the treaty that gave legal cover to the tribe’s expulsion from Georgia was a source of bitter controversy … and a generation of internecine violence. Our principal for this date’s post, Archilla Smith, himself affixed an X-mark to this notorious document, and he was defended at the trial in question here by another signer, Stand Watie.
Payne’s book, however, does not much treat the political context of Indian removal, nor even read as something like a true crime book: the brawl between the killer and the victim, two aggressive men with a passing and private quarrel, is little more than the background fact; the question for the jury turned on little but the degree of wilfulness or intent in the fatal stab wound Smith dealt, and various witnesses describe the same scene of their melee with slight differences of shading.
Rather, it’s a courtroom drama, and an outsider’s sketch of Cherokee jurisprudence (amalgamating tribal and Anglo-Saxon practices) circa 1840. It’s also the first newspaper any Oklahoma trial.
There as no appearance of bitter feeling on either side. The accused and the judge and jury and spectators, all seemed in the best of humor with one another. The accused smoked much of the time; and his judge, and most of the jury, every now and then would get up and go across the log-court to him with “Arley, lend me your pipe;” and receive his pipe from his mouth (as is the Indian custom); and revel in the loan of a five minutes’ smoke. … The wife and handsome young daughter of the accused attended … His three young sons, one a boy about ten, — the others about twelve and fifteen, were in the court room nearly all the time, and often sat by their father’s side.
-Payne
At one point, the judge digresses into the ancient right of clan vengeance and dismisses it in view of the “improved” system. But Payne’s postscript notes that one of Smith’s own jurors (from the first jury) would himself be killed just days after the execution when the juror attempted to exact family retribution on a murderer who had been acquitted in court. This is the snapshot of an evolving society.
Archilla Smith’s first jury hung. The second jury tried to hang, but was forced by the judge to come to a conclusion. Finally, it convicted Smith on December 26, 1840. Smith took word of his fate evenly.
“You are every one of you old acquaintances of mine, Jurors,” he remarked after hearing his fate. “You have been several days engaged about my difficulty. But I have no hard thoughts against any one of you, Jurors, nor Judge, against you. I believe your object has been that my trial should be a fair one.”
Cherokee law required that after five days, the sentence be executed. Accordingly, the hanging was fixed for New Year’s Day at noon.
Because there was also no tribal prison, Smith was simply held under guard in a log hut, and was able to get around the new Cherokee capital of Tahlequah with those guards. In Payne’s narrative, this invites no trouble on the part of the prisoner, whose bonhommie even after his death sentence belies the ill-tempered knife-slayer described by court witnesses. (Though Smith did once try to bribe his guard to let him escape.)
Accordingly, on one of those five days between sentence and hanging, Archilla Smith and his friends simply rode up to the Cherokee Chief John Ross to appeal personally for a pardon. He’d obtained about two hundred signatures on a petition supporting such an act of clemency.
Nevertheless, Ross, a foe of the removal treaty and of Stand Watie,* told them that the matter was out of his hands … but Smith and his party still ate dinner at Ross’s home that evening and nothing untoward occurred. Open hospitality was a Cherokee custom, and Ross regularly entertained dozens of visitors at his two-and-a-half-story log house, “as many as the table can accommodate.”
When the hang-day finally came, two different men preached under the noose.
The first, an Anglo named Worcester, who issued a bog-standard 19th century Anglo hanging sermon in English:
Almighty God! We see before us an awful instance of thy power. May it eventuate in an equally impressive exemplification of thy love. May the bitter fruit of the one sin for which atonement is now about to be exacted, procure the pardon of many. May it not only produce sincere penitence and consequent acceptance with thee, in the unhappy sufferer who now stands upon the threshold of eternity, but operate as a warning to all who either witness or hear of his fate. May it show this people to what dreadful results intemperance may lead; and when they see that the great commandment ‘whoso sheddeth man’s blood, by man shall his blood be shed’ cannot be evaded; may it bring them to a salutary meditation through which all may be converted. In the name and through the meditation of our blessed Savior, we ask that the influences of the Holy Spirit may draw this blessing on the nation; and may the victim now offered up to the violated laws have cause to bless a doom, which if it awaken him to a proper knowledge of Thee and of himself will yet prove to him a happiness and a mercy into thy hands, oh blessed Savior, we commend his spirit.
The second gallows-preacher was a half-blood Protestant minister named Reverend Young Wolf — and this reverend had actually been the foreman of the jury which condemned Archilla Smith in the first place. Young Wolf preached in Cherokee, thus:
God of heaven! Creator of all things! Thou, who knowest our inmost thoughts I pray to thee have mercy on this man. He is standing on the threshold of death. He will presently leave this world to enter the world of spirits. Thou canst see into his heart. Thou art aware whether the charge for which he suffers is true or not. If he is guilty, I supplicate thee to forgive all his sins. Into thy hand we submit ourselves. We assemble together as a people to witness the death which our friend is about to suffer; and may it make us remember that we too, are born to die sooner or later, and prepare to meet thee in peace. May the view of thy power which we are now beholding, humble us before thee. May we continue humble. We are now about to part with our friend Archilla. We give him up to thee. May he receive thy pardon for his sins, that hereafter we may all come together again before thy throne and unite there in thy praise!
The doomed addressed the multitude last.
He, too, spoke in Cherokee, and the natives whom Payne spoke with were divided as to whether the “escapes” and “third time” which Smith mentioned referred to the two times that his juries refused to convict him, or to two previous, undetected crimes.
Friends, I will speak a few words. We are to part. You will presently behold how evil comes. I do not suffer under the decree of my Creator but by the law passed at Tahlequah. — Friends, you must take warning. — I think, perhaps, that my being hated has brought me to this. No man can hope every time to escape; and the third I have been overtaken by the law. But avoid such practices. — I suppose I was preordained to be executed in this manner. I am ready to die. I do not fear to die. I have a hope, there, to live in peace. (Tears now gushed from his eyes.) I should not have shed tears had not the women come here to see me. — I have no more to say.
* Ross and Watie were lead figures of the rival factions within the Cherokee polity, and they would be recognized as opposing chiefs by the Union and the Confederacy (respectively) during the coming U.S. Civil War. Stand Watie lives on in bar bets: he has the distinction of being the last Confederate general (and his First Indian Brigade the last Confederate force in the field) to surrender to the Union, on June 23, 1865.
On this date in 1858, a slave named Henry — property* of a local farmer named William Jackson — was hanged in Decatur, Georgia for attempted rape.
We have of this occasion a first-person account from a 16-year-old white neighbor of the Jackson farm, Catherine Hewes, and the impressions she recorded of it that evening are reprinted by John C. Edwards in “Slave Justice in Four Middle Georgia Counties” in the Summer 1973 Georgia Historical Quarterly. A few additional paragraph breaks have been added for readability, and [sic] notations where necessary either by myself or by Edwards; however, there are many other minor language irregularities not worth individually noting, and simply presented as-is.
The Execution of Henry Jackson a slave of William Jackson at Decatur Ga. at an early hour this morning I dressed myself and prepared to accompany my brother and Sister to Decatur, a beautiful village an [sic] the County site of DeKalb county Ga. As we lived four miles south of Decatur we crossed the Georgia R Road in sight of the village, where we stopped a few moments to enquire where the gallows had been located and were infomed that it was situated one mile north of the Court-house on the Shallow ford road.
By ten Oclock a great many people throned the streets, and clustered around the old weather beaten jail. Our little company had beome quite a respectable crowd before we reached the Public Square where we drove slowly through the immense mass of living beings. All along the way form the Court-house to the gallows Carriages, Wagons and carts were seen bearing on their living freight to the scene of the execution. The high and low the rich and the poor the free and the bond alike pressing forward to the gallows their desires of seeing the law enforced and crime meet its own reward.
After a slow tedious drive we arrived at the appointd place where the rough benches had been erected in an old field whos [sic surroundings were on the amphitheater order. For several hours I had been pleasantly situated and with good company which caused thime [sic] to pass by almost imperceptibly but when I was confronted by a “gallows,” the simple construction of which was two upright posts and a cross beam from the top of the posts I viewed it with horror.
My reflections gushed forth when my eye took in the surroundings. On one side of the gallows were the colored people and on the other side the white people who had gathered on the little hillock. It was quite gratifying to the feelings to see the willingness of slave owners to teach their Slaves an important lesson by sending them here to day. The gallows, yes here on this gallows ill-fated Henry, will have to give up his life for crime and go to his long home with God in eternity.
In the midst of my reflections I saw a vast crowd of people coming from Town toward the gallows[.] It was announced that “They are a coming.” and I looked and saw on [sic] Ox-cart coming on which rode the unfortunate Henry dressed in a suit of white sitting by the coffn which was to incase his lifeless form. They drove the Ox-cart near the gallows, then the drive unhitched the Sturdy oxen and proceeded to direct the cart by hand.
The Sheriff plased [sic] his guard and when the cart stopped under the gallows by the platform a negro man ascended the stand and sang Hymns. Many joined in singing aloud the praises of God, while I stood gazing on in amazement. At the conclusion of the Hymn he offered a very appropriate prayer which seemed to affect a great many. When he raised up from prayer he began exhorting the people from Acts 6-23 — “For the wages of sin is death, but the gift of God is eternal life through Jesus Christ our Lord.” [sic — she means Romans 6:23] When he had ended his discourse, the Rev. Jns. W. Yarbough got up and made a short, but very appropriate exhortation.
They closed the religious services, but the convict desired to speak to the people. His discourse was very affecting, so much so that some of the black women shouted praises to their immortal King. The mother of Henry screamed aloud and shouted with vehemence while her son stood on the platform speaking to the auditory. At the conclusion of his remarks the Officers began to fix for his execution. The Sheriff, Capt John Jones, a capital man, was very much affected during the Scene. They first tied his feet together, then his hands, and then adjusted his clothing. The Sherff then permitted him to look over the vast multitude which surrounded him for a few moments and then tied a white handkerchief over his face which excluded it from view.
The hangmans Knot was adjusted around his neck then the rope was passed over the cross-bar of the gallows[.]
All things read at 12 N the Sheriff descended the steps to the ground and with help drew the Cart on which the Convict stood from under him — leaving the dangling form of the poor victim suspended in the air by a rope. When the form dropped from the Cart, a loud groan went up from the people and then they people [sic] began to disperse.
After the untwisting of the rope and the shrugging of the shoulder had ceased the Dr. E N Calhoun (I believ [sic]) approached and took hold of the hand and after a few moments announced that life was extinct. We came back to town and staid [sic] a few hours, and while at the Old Washington Hotel Kept by Mr. Banks George, I saw the Sheriff Mr Jones bring the corps [sic] back and carry the coffin up a flight of rickety steps to the door of the second story of the jail and deposit it therein. Doubtlessly the Doctors will take advantage of this subject for anatomical investigation, and be found with sleeves rolled up chatting over the mortal remains of this deluded victim. We left town with Mrs Parker, masters Bob and Miss Betsy, and got home before night.
Cottage House DeKalb Ga.
Catherine M. Hewey
November 3, 1858
* Henry was William Jackson’s only slave, and the latter was not compensated by the state for Henry’s execution: it was a substantial loss to the master.
On this date in 2008, Curtis Osborne suffered lethal injection in Georgia for a double murder.
In the words of the Atlanta Journal-Constitution report, “Osborne was executed for shooting Arthur Jones and Linda Lisa Seaborne on Aug. 7, 1990. Osborne allegedly killed Jones because Osborne didn’t want to give him the $400 he got for selling Jones’ motorcycle. Seaborne was killed because she was there.”
Pretty awful.
It’s very difficult to capture in individual cases the structural dimensions of the death penalty system, simply because individual cases are, well, individual. Themanyplausibleactualinnocencecasesareonething. Here what you’ve got is a guy who unquestionably shot dead two humans so that he could feed his cocaine habit: making some procedural argument for Curtis Osborne is going to sound like a lot of special pleading.
But those procedural arguments are the very guts of the animal. The U.S. death penalty proposes, as an institution, to attempt not the question, does Curtis Osborne deserve to die?, but the question, among hundreds of Curtis Osbornes, do we have the apparatus to justly distinguish the ones that deserve to die?
As an impoverished drug addict, Osborne was represented at trial by a since-deceased public defender named Johnny Mostiler.
If you search this case, the thing you’ll find immediately is that another defendant being represented at the same time by Mostiler would later swear that Mostiler told him, speaking of Osborne, “that little nigger deserves the chair.” And the context of the conversation was about how Mostiler had just received a plea offer that Mostiler didn’t plan even to relay to Osborne, for the aforementioned reason.
Pretty awful.
This sort of thing is hard to substantiate: the allegation comes from a man serving a murder sentence of his own, and Mostiler isn’t around to defend himself. But on its own, it’s a shocking claim and a reminder of how profoundly the trial attorney’s performance shapes the entire legal experience. As Time magazine put it, what if your lawyer wants you executed?
Whether Mostiler really dropped an N-bomb on Osborne’s case, we really don’t know. But it’s been said that capital punishment means those without capital get the punishment, and the fact of the matter is that not many of any race who have recourse to indigent defense are served at the bar by Atticus Finch.
Leave aside even that shocking racism allegation, one that no court saw fit to adjudicate. (Prosecutors called the racism claim “outlandish”; appellate court ruled it procedurally out of bounds.) Just reckon the structural situation.
The American Prospect profiled the blinged-out, fast-living Mostiler after his death — breathing not a word about Osborne’s case, which was nowhere on anybody’s radar — and described, essentially, the neoliberal project in action for public defenders.
Mostiler represented not only Osborne, but virtually every poor defendant in Spalding County, Georgia … because, in 1990, he’d pitched the county on a fixed annual contract. Mostiler argued that the county was
wasting money paying as many as 20 court-appointed attorneys $50 an hour to handle indigent cases without knowing exactly how many hours those attorneys would bill during any given year. Mostiler proposed instead that the commissioners pay him a flat fee to handle all of the county’s indigent cases, regardless of the number. That way the county would have to deal with only one lawyer, and it would know its final bill at the start of the fiscal year rather than at the end.
Let justice be done though the heavens fallwithin the confines of fiscal probity. This grift was going to be worth a good deal more than $400 … and come with its own body count, too.
Mostiler bragged about saving the county a good million bucks over the course of the nineties. That’s a new definition of the adversarial judicial process, fresh-minted for the race-to-the-bottom era: every exertion by a defense attorney on his client’s behalf costs him part of his own paycheck.
Small wonder that Mostiler hardly ever tried cases — no more than seven a year, he said, out of as many as 900 felonies. Most were dispatched within minutes in shotgun plea deals and no small number of those momentary clients remain on the inside of a Georgia penitentiary as we speak. Did we mention that Mostiler did all this “lawyering” in only 60% of his lawyer time? He kept up a lively private civil practice, too, one where he probably averaged more than 100 minutes per case.
Death sentences, of course, don’t result from plea bargains — but at Mostiler’s zero-sum rates he also wasn’t going to prep this like the Dream Team. Slate reported that
Mostiler never hired a psychiatrist to examine evidence that Osborne was a victim of childhood abuse, and was borderline retarded, despite a court-ordered sanity evaluation that had found “indications of depression, paranoia, and suicidal ideation.” He never examined the history of mental illness in Osborne’s family because, he said, he didn’t know how to conduct that kind of investigation. Mostiler called no expert witnesses to testify for his client and didn’t bother to interview the state’s experts before they appeared at trial. And he rejected appointment of a second attorney to help with Osborne’s defense, which the American Bar Association and all serious death penalty litigators say is essential if a capital murder defendant is to receive a fair trial.
Pretty damn awful.
Once Osborne’s conviction was in the books at the trial level, no appellate court could intervene without clearing a very high bar: would the evidence un-investigated and the argument un-made likely have made a difference? Could anyone prove that Mostiler described his client with a racial slur? Nobody could really say so. End of story.
It was 18 years between the time Osborne laid those two souls in the ground and the time he laid himself down on the gurney. The irony is that all that time, all those exhaustive appeals, left the most salient and troubling questions in his case un-examined. There were substantive questions here, but Georgia prevailed in a procedural argument that those questions remain closed.
All this unsalved death and sorrow, and all for what? So Curtis Osborne could have another hit. So Spalding County, Georgia wouldn’t have to trouble the property levies with billable hours. For nothing but a little bit of money.
What I done, I did in self-defense, or I would have been killed myself. Where I was I could not overcome it.
-Lena Baker’s final statement
The state of Georgia has only ever electrocuted a single woman: African-American maid Lena Baker, put to death on this date in 1945 for murdering her abusive employer.
Baker was a sharecropper and a former sex worker hired to care for white mill owner Ernest Knight as he recuperated from a broken leg. This, as Baker’s biographer Lela Bond Phillips puts it, “developed into a sexual relationship.”
Both Knight and Baker were alcoholics, and the Knight liked to keep his domestic in the gristmill for days on end.*
As an interracial liason, it was also entirely taboo; Knight’s son tried everything to separate his dad from this scandalous arrangement, including moving the family and beating up Baker.
Knight pere was even more committed to keeping her.
On the night of April 29-30, 1944, the elder Knight locked Baker up in the mill, after she’d attempted to flee him. Baker testified that after Knight got back from church — it was Sunday, after all — Baker tried to leave over Knight’s threats. The two fought over Knight’s pistol, and the fight ended when the pistol discharged through Knight’s head. As to how it went off or who pulled the trigger, Baker said she didn’t know.
Although the irascible, hard-drinking Knight wouldn’t have won any popularity contests among his white neighbors, this breach of the color line was prosecuted both vigorously and speedily: a one-day trial that August (the all-white, all-male jury goes without saying, right?) sufficed to send the maid to her death.**
** In 2005, the Georgia Board of Pardons and Paroles — which turned down Baker’s clemency application in early 1945 — issued a posthumous pardon suggesting that a non-death penalty manslaughter charge would have been the more appropriate conviction. Baker’s family and defenders read that as vindication; there’s a detailed NPR story about it here.
Twenty years ago today, Warren McCleskey died in Georgia’s electric chair for the murder of a police officer.
Yet the “question reverberates: Did Warren McCleskey deserve the chair? For the question to outlive him is a damning commentary on capital punishment in the United States.”
The most reverberating commentary on this case was the 1987 Supreme Court decision McCleskey v. Kemp — a landmark 5-4 ruling that still shapes the way judges handle purported racial discrimination in the criminal justice system.
McCleskey (the decision, not the man) “marked the end of an era in death penalty jurisprudence … reject[ing] the last major challenge to the death penalty in America” from the generation of legal tinkering reaching back to the 1960s.
McCleskey v. Kemp was decided on April 22, 1987, at which time just 70 humans had been executed since the “modern” era of capital punishment began in the 1970s. (Today, the count is well beyond 1,200.)
The victims attributed to those 70 were 83% white (77 of 93),* even though blacks and whites are murder victims in roughly equal numbers — suggesting on its face that white victims are treated as disproportionately “valuable” by prosecutors, juries, and/or judges. This was, prospectively, the case with Warren McCleskey himself, an African American who in the course of an armed robbery had gunned down (or maybe not: see below) a white off-duty policeman.
McCleskey’s appellate team marshaled a statistical study by Iowa Prof. David Baldus indicating that black murderers (to a small extent) and killers of white victims (to a greater extent) were indeed more likely to receive a death sentence in Georgia, even when controlling for dozens of other variables. “According to this model,” wrote Justice Lewis Powell for the majority, “black defendants, such as McCleskey, who kill white victims have the greatest likelihood of receiving the death penalty.”
Though it accepted evidence of a discriminatory pattern,** the high court nevertheless ruled that McCleskey was not entitled to appellate relief unless he could demonstrate that that it was at work in his specific case.
And with some reason: the import of granting constitutional relief to a claim of “endemic racism in the system” would open a Pandora’s box of appeals from America’s burgeoning carceral state.
McCleskey’s claim, taken to its logical conclusion, throws into serious question the principles that underlie our entire criminal justice system … if we accepted McCleskey’s claim that racial bias has impermissibly tainted the capital sentencing decision, we could soon be faced with similar claims as to other types of penalty.
This reasoning too backtracked from equal protection concerns that had helped lead a similarly bare 5-4 majority to strike down then-existing capital statutes 15 years before in an appeal originating from the same state — Furman v. Georgia. That old regime had then been replaced with a death penalty system supposedly capable of minimizing arbitrariness. McCleskey served notice that justices wouldn’t be going out of their way to hunt arbitrariness any time soon.
The Court’s remaining liberal lions — it still had such a thing in 1987 — dissented furiously from McCleskey. William Brennan replied to the majority:
Warren McCleskey’s evidence confronts us with the subtle and persistent influence of the past. His message is a disturbing one to a society that has formally repudiated racism, and a frustrating one to a Nation accustomed to regarding its destiny as the product of its own will. Nonetheless, we ignore him at our peril, for we remain imprisoned by the past as long as we deny its influence in the present.
He also found “fear that recognition of McCleskey’s claim would open the door to widespread challenges … seems to suggest a fear of too much justice.”
Brennan was on the losing side of this judgment in a larger historical sense as well — at least, the brief span of history to unfold since Warren McCleskey sat in the electric chair.
McCleskey author Lewis Powell retired a few weeks after issuing it, and not long thereafter expressed regret for the McCleskey decision.‡ Relentless death penalty foes Brennan and Thurgood Marshall would hang up the spurs within a few years. (The circus Senate hearing to place Clarence Thomas in Thurgood Marshall’s seat was ongoing when Warren McCleskey finally died.)
But the deciding vote in McCleskey was cast by freshman Reagan-appointed justice Antonin Scalia, and he’s still going strong.
Scalia was then the Court’s emerging conservative paladin, though he was so new to the Court that McCleskey’s litigators hoped he might be amenable to their suit as a swing vote. Far from it: after Thurgood Marshall’s death in the early 1990s, his donated papers were found to contain a Scalia memo that rubbished the McCleskey majority’s mere consideration of the Baldus study.
I disagree with the argument that the inferences that can be drawn from the Baldus study are weakened by the fact that each jury and each trial is unique, or by the large number of variables at issue. And I do not share the view, implicit in [Powell’s draft opinion], that an effect of racial factors upon sentencing, if it could be shown by sufficiently strong statistical evidence, would require reversal.
Since it is my view that the unconscious operation of irrational sympathies and antipathies, including racial, upon jury decisions and (hence) prosecutorial [ones], is real, acknowledged by the [cases] of this court and ineradicable, I cannot honestly say that all I need is more proof.
Shorter Scalia: racism happens, so what?§ (Ultimately, Scalia opted not to file a separate opinion explicitly making this case; he just signed on to the majority opinion.)
As one might imagine, death penalty jurisprudence at One First Street NE in these latter days has become correspondingly rougher — and the problems raised by McCleskey have scarcely abated.
Although the McCleskey case is what our day’s principal is best known for, he was also caught up in one of the more everyday — but not the less disreputable — toils of the system: the phony jailhouse informant. Very late in the appeals process, McCleskey’s lawyers were finally able to show that the fellow-prisoner who testified that McCleskey admitted the shooting to him was in fact a police plant operating on a quid pro quo to reduce his own sentence. (It’s amazing how often defendants spontaneously confess to these guys; the Troy Davis case which climaxed last week also featured a jailhouse snitch.) Somehow, prosecutors forgot all along to mention that arrangement even when directly asked.
The Supremes ruled, Kafkaesquely, that this issue was procedurally out of order because McCleskey hadn’t raised it earlier, neatly ignoring that the reason he hadn’t raised it was that prosecutors were actively concealing the fact. That’s the subject of the other SCOTUS case under our man’s name, McCleskey v. Zant.
(At issue was whether McCleskey was himself the triggerman. Since he was part of the robbery gang, he was legally on the hook for capital murder whether or not he personally fired the shot; but, his death sentence turned in reality on the jury’s belief that McCleskey was the individual killer — a detail supplied by the suspect police informant. None of McCleskey’s confederates faced execution.)
The final drama this date was a “chaotic” mess of last-minute legal maneuverings, with McCleskey strapped into the chair at one point, then interrupted from his last statement to be returned to his cell, then finally hauled back to the lethal device after an early-morning telephone poll of Supreme Court justices.
* Execution demographic counts via the Death Penalty Information Center’s executions database.
** While the McCleskey court accepted Prof. Baldus’s statistical interpretations even while rejecting their constitutional import, a vigorous pro-death penalty case is made here against the reading that the modern American death penalty is racially discriminatory to any great extent.
† This Latin phrase — fiat justitia ruat caelum — is actually engraved above the sitting justices at the Georgia Supreme Court.
‡ The regret was about more than Warren McCleskey; Powell’s biographer described a complete change of heart in the June 23, 1994 New York Times:
when the retired Justice Powell said he had changed his mind about the McCleskey case, I thought he meant that he would now accept the [Baldus] statistical argument.
“No,” he replied, “I would vote the other way in any capital case … I have come to think that capital punishment should be abolished.” …
Justice Powell’s experience taught him that the death penalty cannot be decently administered. As actually enforced, capital punishment brings the law itself into disrepute.
§ See Dennis Dorin, “Far Right of the Mainstream: Racism, Rights, and Remedies from the Perspective of Justice Antonin Scalia’s McCleskey Memorandum,” Mercer Law Review, 1994.
The reader is likely aware that as of 7 p.m. this evening, Georgia Diagnostic and Classification State Prison local time, a man named Troy Anthony Davis will die by lethal injection — barring some sort of intervention that by this point would rate just this side of the miraculous.
Since Davis already had one of those, an extraordinary 11th-hour Supreme Court intervention the last time he was up for death, you’d have to guess he’s over quota as it is.
The controversial particulars of this case are too voluminously available for this space to hope to contribute much. As Scott Lemieux observes, the affirmative case for Troy Davis’s innocence is not a slam dunk: but the evidence as it exists, of unreliable eyewitness accounts from a nighttime scene, supplied under police pressure and later largely retracted, could today hardly approach the threshold of guilt beyond reasonable doubt. I don’t know if Troy Davis shot Mark MacPhail, and neither do you. Davis dies for it tonight just the same: all the paperwork is in order.
The “demon of error,” Illinois Gov. George Ryan called it, as he emptied that state’s death row. This unsettling matter demands one play bookmaker with a man’s life. Are you as much as 80% sure? Would that be sure enough? Maybe the uncertainties are unusually large here, but at some level this is the calculus for most criminal adjudications, death or otherwise.
“If a case like this doesn’t result in clemency, which is a discretionary process that calls a halt to an execution based on doubt surrounding the integrity of the verdict, then it suggests that clemency as a traditional fail-safe is not adequate,” criminologist James Acker told the Christian Science Monitor. “The Davis case raises doubts about the discretionary clemency process and ultimately raises doubts about whether the legal system can tolerate this potential error in allowing a person to be executed.”
Clemency as an inadequate, dead-letter procedure (Gov. Ryan aside) is familiar to any observer of the American capital punishment scene; Rick Perry thinks he can disdain it all the way to the presidency.
Perry’s state of Texas has something in common with Georgia: the clemency decisions are not directly in the hands of the governor. It’s an interesting arrangement that helps to scatter responsibility for that weightiest of decisions; every actor in the apparatus is in a position to say, “I alone did not have power of life and death.”
Georgia is one of just five states (not including Texas, where the governor has final say and exercises significant behind-the-scenes power over his advisors) where the clemency process is entirely vested in a committee.* The Georgia Governor is a fellow named Nathan Deal, and his autopen will spill much ink in the hours ahead signing form response letters explaining that he doesn’t have anything to do with pardons or clemencies in his state and thanks for writing.
It wasn’t always this way.
A predecessor of Deal’s in that mansion, one with a promising political career ahead, was bayed out of politics for exercising his prerogative to spare Leo Frank because “I cannot stand the constant companionship of an accusing conscience.” The modern office-seeker typically comes with this accusatory module helpfully un-installed, but one can see how there’d be advantages to removing from the office anything to invite experimentation with self-destructive scruples.
The roots of Georgia’s current system go back to the 1930s, when the notoriously corrupt Eurith Rivers held the governorship and used the solemn power of pardons like merchants in the temple — and every bit as lucratively.
Among those reforms was the progressive concept of rooting out the pardons racket by removing the authority from the governor’s hands. No pardon power, no embarrassing Marc Rich cases. As Gov. Arnall himself explained,
There were those who used to say facetiously, “If you bring the governor a cow, he’ll get you a pardon for your kinfolks, or if you get him a bale of cotton if you do this, or if you get the right lawyer or if you get the right set-up, you can get pardons, pardons, pardons.” So they had gotten a lot of pardons, and the newspapers were after them day in and day out for granting these pardons.
Pardons, pardons, pardons. You can’t get hold of them for a bale of cotton any longer.
These institutions naturally have a life of their own, and what was forward-looking under Georgia’s 1943 constitution seems anything but to Troy Davis’s supporters this day. In the end, the board is still appointed by governors, and it predictably skews towards prosecutors and police — the latter of whom are out for Davis’s blood since Mark MacPhail wore a badge for his day job. It deliberates behind closed doors, and need not record or account for its considerations.
But this is really the lament against the decision itself more so than the process: individual governors are no more bound to broadcast their decision-making process, although some choose to do so. The rules of the game matter, but whatever they might be, it is humans who apply them — human judgment that makes the choices, whether as the first officers on the scene, as jurors, or as a panel of inscrutable bureaucrats with power over life and death.
* Here’s an example of a similar committee in Nebraska granting a pardon, in the relatively less-fraught circumstance of a man 100 years dead.
Update: After a last-second reprieve that extended into a four-hour execution-night drama, the U.S. Supreme Court denied (pdf) Davis’s last appeal. He was executed at 11:08 p.m.
A quarter-century ago this date, a “scared” mentally disabled prisoner named Jerome Bowden was electrocuted in Georgia for a crime many think he did not commit.
Bowden drew a death sentence for a robbery-murder on the strength of two very suspect pieces of evidence:
the accusation of a juvenile co-defendant who might well have been the real murderer; and
a signed confession Bowden could barely understand
While present-day DNA exonerations are fortunately forcing reconsideration of the ubiquitous problem of false confessions, Bowden’s was understandably doubted even before his execution.
Asked to explain his signature on a document obviously beyond his capacity to compose himself, he gave a confused answer that seemed to indicate he’d been led to sign it by a suggestion that it would keep him out of the electric chair.
“Detective Myles had told me this here … Had told me about could help me, that he could, you know, which I knew that confessing to something you didn’t take part in was-if you confess to something that you didn’t do, as if you did it, because you are saying that you did.”
Bowden’s assent to this fatal “admission” sadly evokes the characteristic eagerness to please one often encounters in the developmentally disabled — sometimes, as with Joe Arridy, to their own destruction.
It’s noticeable, too, in Bowden’s incongruously ingratiating last statements, recordings of which were taken and subsequently leaked publicly. This and others are available at SoundPortraits.org.*
Bowden had been evaluated with an I.Q. of 59 at the age of 14, the examiner reporting him “functioning at the lower limits of mild retardation. He has little or no insight into his situation … He is easily distracted and has a tendency to act on impulse regardless of the consequences.”
And even though the authorities hustled through a test the day before his execution that reckoned Bowden with an I.Q. of 65 — still solidly below the conventional threshold for mental disability, but good enough for the Georgia Board of Pardons and Paroles — the whole affair shook the state. It “unsettled more than a few persons in government and law enforcement,” the Atlanta Constitution later editorialized.
Its [the state’s] reasoning was grievously faulty. Whether Bowden understood his fate or not, whether he knew right from wrong — he was indisputably handicapped …
Most states have progressed beyond the dated right-wrong standard in weighing such cases … and ask: Could the defendant help himself? There is compelling evidence that Bowden could not …
brute whimsy was given full sway. For the state of Georgia, it was a willful lapse of decency.
–Atlanta Constitution, July 1, 1986 editorial**
This lapse of decency rippled over the months ahead until Georgia in 1988 became the first state to enact a law barring the execution of the mentally disabled.
While that decision was reversed in 2002, the putative ban on executing the mentally disabled in the United States remains very far from a bright line. It’s up to the states themselves to decide who falls under that definition,† and at least some have given ample indication that they’re prepared to exploit any expediency necessary to get a fellow onto death row, or keep him there. Earlier this very week, Texas (of course) put to death a man of dubious competence, Milton Mathis, essentially by cherry-picking its data and having federal appellate review barred on a technicality.
A quarter-century on, those ripples started by Jerome Bowden still have a way to go.
** Both Constitution quotes, and the childhood IQ examiner quote, as cited in Robert Perske’s Unequal Justice?.
† As an irony of its early adoption, Georgia later found itself with an unusually stingy legal standard for protecting disabled defendants from the death penalty.
In the words of the Atlanta Journal-Constitution report, “
The state of Georgia has only ever electrocuted a single woman: African-American maid Lena Baker, put to death on this date in 1945 for murdering her abusive employer.
Bowden drew a death sentence for a robbery-murder on the strength of two