On December 23, 1950, twenty-two-year-old John E. Day, Jr., a black private serving in Korea, made sexual advances toward the wife of Korean civilian Lee Hak Chum, sometimes given as Lee Mak Chun, in Seoul. Chum came to her defense but Day pulled a pistol and shot Chum to death. Day was immediately arrested, and in January 1951 he faced a general court-martial. Day was found guilty of murder and on October 1, 1951, he was sentence to hang at Fort Leavenworth, the first American to receive a death sentences during the Korean conflict. He was transported to the disciplinary barracks at Fort Leavenworth while the case was under review. The verdict and sentence were approved by the general staff and then the appeals process commenced. The case was considered numerous times but finally the U.S. Supreme Court, after eight years, approved the verdict and sentence, and the matter was forwarded to President Dwight D. Eisenhower. The president carefully considered the matter before issuing an executive order to proceed with the execution and set the date for execution at September 23, 1959.
Just before midnight Commandant Colonel Weldon W. Cox appeared at the cell door and escorted Day into the power plant building and onto the gallows platform. The prisoner took his place on the trapdoor where Colonel Cox read the warrant for execution of sentence. When the reading concluded Day declined to speak to the witnesses, and, while the chaplain prayed for his soul, Colonel Cox retired and turned preparations over to three sergeants. While the chaplain continued praying the three sergeants bound the prisoner’s limbs with straps, adjusted the noose, and pulled the black cap over his head. At 12:02 a.m. the trap was sprung and Day dropped, breaking his neck in the fall. An Army physician was in attendance and he pronounced Day dead in fifteen minutes, and then the remains were lowered into the coffin provided. He was buried in the military portion of the cemetery later that day.
Sources: Daily Herald (Utah County, UT): September 23, 1959. Dallas Morning News (TX): September 25, 1959.
Lezmond Mitchell, the only Native American on federal death row, was killed by lethal injection at Terre Haute, Indiana for murdering 63-year-old Alyce Slim and her nine-year-old granddaughter Tiffany Lee. The offender and both victims were members of the Navajo Nation, and the crimes occurred on the Navajo Reservation in the northeast corner of Arizona.
Mitchell and a companion named Johnny Osringer — underaged, and therefore serving a life sentence instead — were picked up hitchhiking by the victims in 2001. They stabbed Alyce Slim to death when she stopped to let them out, then to murder the terrified little girl in greater privacy, drove her 30 miles into the mountains sitting next to her grandmother’s bloody corpse.
The horrific crime carried with it a problematic jurisdictional question that’s legacy of the continent’s Anglo conquest.
Within their treaty lands, indigenous nations still assert internal sovereignty when it comes to handling criminal offenses — sovereignty that Congress has legislated against by placing some big-ticket crimes like murder and rape under federal jurisdiction.
Neither this arrogation of authority in general nor its application to Mitchell in particular have been embraced by the Navajo Nation, which has advocated against the execution for many years and on the day it occurred issued a statement denouncing it.
The Navajo Nation’s position, from the beginning, was to advocate for the sovereign status of the Nation. Our decision not to accept the death penalty in federal cases remains a Navajo decision, but in this instance the federal government ignored the Navajo Nation. This is an affront to our Nation because we should be the ones to decide these matters. The federal government charged a crime that was added in 1994 to the Federal Death Penalty Act and blindsided the Navajo Nation by using this to sidestep the Navajo Nation’s position.
We have a court system that is fair and just for all persons. We have laws that protect our People. We have brave men and women on our police force to watch over us. Crimes committed on the Navajo Nation are for us to decide. Our judicial and public safety system considers restorative justice in court cases as based on our custom and traditions of hozho’ and k’e. Federal officials may not understand our family connections and our strength in keeping harmony. So, we invite them to meet with us and find an answer to address this important death penalty matter.
The Navajo Nation asked for clemency in Mr. Mitchell’s case in changing his sentence to life in prison without possibility of release. This is the same request supported by U.S. Senators, U.S. House Representatives, Tribal Nations, and tribal organizations. But our collective voice was ignored. We don’t expect federal officials to understand our strongly held traditions of clan relationship, keeping harmony in our communities, and holding life sacred. What we do expect, no, what we demand, is respect for our People, for our Tribal Nation, and we will not be pushed aside any longer.
We thank the many Tribal Nations who supported the Navajo Nation’s stand on sovereignty, and we appreciate the Tribal organization’s letters advocating for tribal sovereignty. We now call on all Tribal Nations and Tribal organizations to begin a dialogue on a respect for tribal sovereignty, respect for all Tribal Nation, and respect for Native Americans. We are moving forward in this fight and we ask all to join us.
Mitchell’s was the fourth federal execution conducted in little more than a month as part of a calculated campaign by Trump administration attorney general William Barr. Prior to the current paroxysm, the United States federal government (as distinct from its 50 states’ separate jurisdictions) had conducted only three executions — all in the early 2000s, most notably Oklahoma City bomber Timothy McVeigh — in the past 57 years.
This morning in Terre Haute, Indiana, like the French guillotine making its way to the western front, America’s twilight men saluted Bastille Day by animating their empire’s creaking machinery on an absurd project to kill one guy to nobody’s edification in the midst of a rolling bloodbath.
Back in 1996, Daniel Lewis Lee traveled from Washington state to Arkansas with fellow white supremacist Chevie Kehoe where they slaughtered a family of three in the course of a robbery aimed at financing a racist enclave in the Pacific Northwest. Gun dealer William Mueller, his wife Nancy, and their eight-year-old daughter Sarah Powell were bound hand and foot and suffocated with plastic bags taped over their heads, before being dumped in a bayou. Kehoe and Lee netted $50,000 in cash and weapons.*
Yet family members of those victims were the most vocal critics of executing Lee.
For one thing, everyone involved in the case, including the prosecuting attorney and trial judge, agrees that Kehoe was the instigator of the crime. But perversely, it was Kehoe who received the lighter sentence. Sometimes this occurs when a wily ringleader turns state’s-evidence against his confederates; in the case at hand, it might have been nothing but the comparative visual affect presented to jurors by the baby-faced Kehoe as compared to the menacing Lee, one-eyed (courtesy of a bar fight) and swastika-tattooed. The two were tried and convicted together in a death case; when the jury returned a life sentence for Kehoe, the U.S. Attorney on the case attempted to withdraw the death notice still pending against Lee, only to be overruled by higher-ups at the Department of Justice.
Earlene Peterson, Nancy Mueller’s mother and Sarah Powell’s grandmother, “believes the jury’s prejudices led to Kehoe and Lee receiving different sentences,” according to a Reason magazine profile.
“Chevie Kehoe was dressed very nicely, like a young businessman, and Daniel Lee was not,” Peterson said, noting that Lee was missing an eye and had a swastika tattooed on his neck. “He looked like an outlaw,” and “was instantly judged the minute he walked into the courtroom,” she says.
And Peterson, joined by several other family members, didn’t want anyone whether businessman or outlaw executed in her name.
Peterson, her granddaughter Monica Veillette, and Kimma Gurel (Nancy Mueller’s sister) sued in federal courts arguing that conducting the execution in the midst of the dangerous COVID-19 outbreak frustrated their right and expressed desire to witness Lee’s execution. But what they would have preferred most of all would have been no execution at all, regardless of COVID; they petitioned President Trump to this same effect.** “For us it is a matter of being there and saying, ‘This is not being done in our name; we do not want this,'” Veillette told the press.
As everyone knows, victims/survivors with an attitude of clemency get no special consideration in the breach from the closure-for-victims crowd. Thus while Attorney General William Barr scheduled Lee’s execution — along with four others — last year to the familiar strains of “We owe it to the victims and their families to carry forward the sentence imposed by our justice system,” his agency defeated these victims’ family members by arguing that their allowance to witness the execution was in fact not any sort of “right” that anyone was “owed.” The first federal execution in 17 years was delayed half a day from its Monday-afternoon schedule by a last-minute judicial injunction that was predictably reversed by the Supreme Court: that issue concerned the lethal injection drug selection.
Peterson, Veillette, and Gurel did not in the end attend the execution, for fear of the coronavirus. Besides being afoot broadly, it was known to have broken out in the Terre Haute federal prison. In fact, one of the execution planners tested positive for COVID-19 just days before the execution and the small viewing chamber reserved for official witnesses makes no allowance for social distancing. (Prison officials and the “Appalachian pagan minister” present to conduct the execution itself also wore no masks, nor did the executed criminal himself.) Considering the short shrift federal authorities have given to protective measures surrounding people who didn’t commit triple homicide, it’s no surprise that the pandemic was also no obstacle, with Barr making the Orwellian assurance — which doubles as a distillation of his philosophy of governance — that his team could “carry out these executions without being at risk.”
On this date in 1953 — six months after the execution of a more notorious couple, the Rosenbergs — two Missouri kidnappers were gassed together for the abduction-murder of a millionaire car dealer’s son.
Robert Greenlease owed his millions to a string of midwestern GM dealerships planted at the very flowering of America’s interstate system and suburbanization.
Carl Hall and Bonnie Brown Heady reckoned he’d owe some of those millions to them, too.
On September 28 of 1953, those two snatched little Bobby Greenlease Jr from the grounds of a Catholic school in Kansas City via the all-too-easy expedient of Heady presenting herself as Bobby’s aunt.
Then they extorted Sr. to the tune of $600,000, and after several days’ negotiations, Greenlease paid it through an intermediary — a record US ransom sum that would not be surpassed until 1971.
But the motor magnate never saw his son again. Even by the time they’d sent their first ransom note, the kidnappers had shot little Bobby dead at a deserted farm just over the state line in Kansas.
Although this audacious attack on a minor oligarch made national headlines — it couldn’t help but remind of the Lindbergh baby case — the crooks basically had an opportunity to get away scot-free with all their ill-gotten gains. Bobby Greenlease’s body wasn’t discovered until a couple of days after the ransom was paid, and nobody knew who the abductors were at that point.
Hall and Heady absconded to St. Louis but the wealth, like the crime itself, was just too much for these small-time shoulders to bear. Instead of lying low, Hall — after ditching Heady and taking most of the ransom with him, a reckless provocation of his co-conspirator that might itself have blown up his cover in short order — took up residence in an expensive hotel and started throwing money around. A cabbie reported the shabby character’s suspicious spending, and in no time at all the two were in custody.
A further mystery, never solved, entered the case on the night of Hall’s arrest: half the ransom money disappeared. The mob-connected lieutenant who collared Hall and brought him to the station less $300,000 of the score eventually resigned from the force in disgrace and faced federal prosecution for misappropriation and perjury; the cop indicted with him earned a presidential pardon by turning on his comrade. Other ideas were that the criminals had buried half the money (they claimed this, for a while) and that better-connected figures higher up the food chain had taken in. All the bills’ serial numbers had been recorded but only a few were ever known to have surfaced again in later years, in Michigan and Mexico; where these trace remains of a family tragedy might rest today is anybody’s guess.
As for Hall and Heady, they emerged into the glare of national infamy and — because they had crossed the Kansas-Missouri state line — a federal prosecution. Heady remains to this day the last woman executed under U.S. federal auspices.
The St. Louis Post-Dispatch has a detailed photographic retrospective here.
This charismatic — nearly every bio uses this word — 21-year-old star of the Illinois Black Panther Party had in his brief life shown himself a visionary exponent of radicalism; he would end as one of the signal martyrs to his movement’s violent suppression.
Well did he know it.
“If you’re asked to make a commitment at the age of 20 and you say, I don’t want to make a commitment only because of the simple reason that I’m too young to die, I want to live a little bit longer. What you did is, you’re dead already,” Hampton once mused. “You have to understand that people have to pay the price for peace. If you dare to struggle, you dare to win. If you dare not struggle then damnit, you don’t deserve to win … And I think that struggle’s going to come. Why don’t you live for the people? Why don’t you struggle for the people? Why don’t you die for the people?”
Emerging late in 1966 out of Oakland, Calif., the Black Panthers were a revolutionary and pointedly armed movement that fused black power demands with critique of the entire edifice — war, imperialism, capitalism and the rest of it. Although the organization was dissolved in 1982, the Panthers’ actions and legacy are still quite controversial and their mere specter remains a potent bogeyman for much of contemporary white America.
One thing is for sure: in their moment, they scared the shit out of the powers that be. Within months of its founding, the Federal Bureau of Investigation turned upon the Panthers its COINTELPRO program of domestic surveillance, suppression, and assassination. One particularly notorious FBI memo drew a bead on “Black Nationalist-Hate Groups” with an avowed intention to “prevent the rise of a ‘messiah’ who could unify, and electrify, the militant black nationalist movement” — and to “pinpoint potential troublemakers and neutralize them”.
Fred Hampton isn’t mentioned by name in this chilling missive from early 1968; he was just then beginning to emerge onto the FBI’s index of rabble-rousers. (Literally, the feds had a list called the “Rabble Rouser Index”.) He was fresh out of high school in 1966, and subsequently a wildly successful NAACP chapter leader, but gravitated to the new Illinois Panthers organ by 1968 where he quickly became its most outstanding organizer and spokesman, the prospective future face of a stirring cross-racial, class-conscious justice movement that Hampton perceived with a wisdom well beyond his years. Under his leadership the BPP spun out health care programs, legal aid programs, and free breakfast programs; he forged the original Rainbow Coalition* that brought rival street gangs and activist groups from different racial communities into a shared political ambition.
“We’re going to fight racism not with racism, but we’re going to fight with solidarity,” Hampton said. “We’re not going to fight capitalism with black capitalism, but we’re going to fight it with socialism.”
Just as energetically did the FBI work — and succeed, in the end — to break up such alliances, using informers and agents provocateur and false flags to encourage schisms and discredit leaders. Chicago’s police department was a ready collaborator in these operations; its relationship was the Panthers was hostile and often violent. Just three weeks before Hampton’s murder, two Chicago cops and a 19-year-old Black Panther were killed in a shootout. (Hampton was in California at the time.)
We don’t have the full documentary paper trail with deliberations and countersigned orders, but the known facts (and the smug grins of the cops) admit no reasonable dispute this side of performative naivete that Hampton was assassinated by a state death squad — “executed”, if you like, to fit an admittedly expansive read of this here site‘s mandate.
A compromised Hampton bodyguard named William O’Neal gave his FBI handler — who also happened to be running the Chicago COINTELPRO operation targeting the Panthers — a detailed floor plan of Hampton’s apartment, which the FBI shared with the Chicago police for a raid putatively hunting illegal weaponry. On the night of December 3, O’Neal slipped Hampton a barbituate to dull his reactions for what was to come; surviving comrades would describe Hampton being roused amid the early-morning fusillade only with difficulty, responding barely and in “slow motion” even as Chicago police stormed front and rear entrances and poured nearly 100 rounds into the place. Another Hampton aide named Mark Clark, sitting watch, was blasted dead in the initial barrage, convulsively discharging his shotgun once into the ceiling as he fell. It was the only shot fired that night by any of the Black Panthers.
By the account of Hampton’s eight-months pregnant partner Deborah Johnson, corroborated by other Panthers in the apartment, Fred Hampton was injured by the volley, but alive — and cold-bloodedly finished off with a coup de grace.
First thing that I remember after Fred and I had went to sleep was being awakened by somebody shaking Fred while we were laying in the bed. Saying, “Chairman, Chairman, wake up, the pigs are vamping, the pigs are vamping!” And, um, this person who was in the room with me, kept shouting out “we have a pregnant sister in here, stop shooting”. Eventually the shooting stopped and they said we could come out. I remember crossing over Fred, and telling myself over and over, “be real careful, don’t stumble, they’ll try to shoot you, just be real calm, watch how you walk, keep your hands up, don’t reach for anything, don’t even try to close your robe”. I’m walking out of the bedroom, there are two lines of policemen that I have to walk through on my right and my left. I remember focusing on their badge numbers and their faces. Saying them over and over on my head, so I wouldn’t forget. Um, as I walked through these two lines of policemen, one of them grabbed my robe and opened it and said, “Well, what do you know, we have a broad here.” Another policeman grabbed me by the hair and pretty much just shoved me — I had more hair then — pretty much just shoved me into the kitchen area. It was very cold that night. I guess that it snowed. And, ah, the back door was open. Some people were on the floor in the kitchen area. I think it was Harold Bell was standing next to me in the kitchen area. They, ah, it was a police, ah, plainclothes policeman there, and I asked him for a pin, so I could pin my robe, because it was just open. And he said, “Ask the other guy.” And, ah, then somebody came back and handcuffed me, and Harold Bell behind the back. I heard a voice come from the area, I guess from the dining room area, which was, the kitchen was off from that area. And someone said, “He’s barely alive, he’ll barely make it.” The shooting, I heard some shooting start again. Not much. Just a little shooting, and, um, and someone said, “He’s good and dead now.” I’m standing at the, um, kitchen wall, and I’m trying to remember details of these policemen’s face, say it over and over in my head, and, and badge numbers, so, you gotta remember, gotta remember. And then when I felt like I was just going to really just pass out, I started saying the ten-point program over and over in my head. Um, at one point I turned around, the shooting had continued again, and I saw the police drag Verlina Brewer and throw her into the refrigerator. And it looked like blood was all over her. And she fell to the floor and they picked her up and threw her again. I saw Ronald Satchel bleeding. I kept trying to focus on the ten-point program platform, because I, again, I wanted to take myself out of that place. And I knew I just couldn’t break down there. Because I didn’t know if I would be killed, or what would happen.
Incidentally, Hampton’s killing was also a key catalyst for the terroristic turn of the Weather Underground — whose decisive “war council” meeting occurred later that same month of December 1969, with Hampton’s blood heavy in the air (and his picture prominently displayed on the wall) as an emblem of the futility of pacific resistance within the belly of the beast. “It was the murder of Fred Hampton more than any other factor that compelled us to feel we had to take up armed sturggle,” said David Gilbert, who’s now serving a prison sentence for a deadly bank robbery. “We wanted to create some pressure, to overextend the police so they couldn’t concentrate all their forces on the Panthers. We wanted to create a political cost for what they were doing. And we also felt that to build a movement among whites that was a revolutionary movement, a radical movement … it had to respond when our government in our name was destroying the most promising, exciting, and charismatic leadership to come out of the Black movement in a long time.” (Source) It was a paradoxical inspiration, since Hampton himself had criticized the emerging Weathermen after their “Days of Rage” riot in Chicago as “anarchistic, opportunistic, individualistic,” and even “Custeristic” — as in Indian Wars cavalryman George Armstrong Custer, famous for his defeat — “in that its leaders take the people into situations where they can be massacred. And they call that revolution.”
* The name and concept of the Rainbow Coalition were later revived by Jesse Jackson in his left-wing presidential challenges in 1984 and 1988, but there is not a continuous institutional thread from Hampton’s coalition to Jackson’s. Jackson did, however, deliver a eulogy at Hampton’s funeral on December 6, 1969.
After doing a 90-day turn in Judge Isaac Parker‘s jail for selling liquor, the half-Creek, half-Black teenager Rufus Buck emerged violently politicized — “enraged by what he considered the theft of Indian lands. He decided it was his duty to rid the land of those who, in his eyes, did not belong”
If his theory of resistance was naive, the grievance was real enough. Earlier that century the Creeks of the American Southeast had been made to quaff humiliation by the emerging United States, and expelled with many other indigenous peoples from their ancestral lands to present-day Oklahoma; in Buck’s own lifetime, this remnant Indian Territory was itself beingpositioned for takeover by white settlement.
Buck gathered four other youngsters to his banner and from July 28, 1895 — when they slew a U.S. marshal — until their capture on August 10 they gave vent to rage and despair in a spree of robberies, murders, and rapes consciously directed at white settlers. This hopeless paroxysm of violence, almost precisely contemporary with suppression of the Ghost Dance movement and the official closing of the American frontier, marks the passage of an era; even the famous Judge Parker was in his dotage and would pass away a few months after the Buck gang’s own execution.
After the young men went to the gallows for rape on July 1, 1896, a poem was discovered in Buck’s cell, scribbled on the back of a photograph of his mother.
Mi dreAM —
i, dremP’T i, wAs, in, HeAven,
Among, THe Angels, FAir:
i, d, neAr, seen, none, so HAndsome,
THAT TWine, in goLden, HAir:
TheY, Looked, so, neAT,
And; sAng, so, sweeT
And, Play, d, THe, THe, golden, harp
i, was, ABouT, To, Pick, An Angel ouT,
And, TAke, Her, To, mY HeaRT:
BuT, THe, momenT, i, BegAn
To PLea,
i, THougHT, oF, You, mY, Love,
THere, Was, none, I, d seen
so, BeAuTiFul,
On, eArTH, or, HeAven, ABove.
gooD! By, My Dear, Wife..anD MoTHer
All. so. My SisTers.
Rufus, Buck
Youse Truley
Two of eight Apaches — Nacod Qui Say and Rah Dos La, among other possible transliterations — who murdered an Arizona sheriff and deputy while escaping from a transport to the penitentiary were hanged on this date in 1889.
The vituperation of many surviving news accounts, however, gives us an essential fact that the judiciary’s papers surely wouldn’t. After decades of war with the Apaches in the Southwest, white settlers were set on edge by a native revolt against settler authority and from the first reports of the incident began ruminating about “the treacherous red man.” (Tucson Daily Citizen, Nov. 4, 1889)
When five were condemned to hang in this affair — three would cheat the executioner by committing suicide two days before the hanging — a newspaper in Florence where the gallows went up remarked that “should a few bands of Apaches be taken from the war path and suspended by the necks, where the other Indians on the reservation could get a good, fair look at them, there would be no more Apache outbreaks.”
This sort of rhetoric would rate as positively liberal beside the cruder commentary. For example, a few days before the execution, U.S. President Benjamin Harrison had said in an address to Congress that as the white man “can no longer push the Indian back into the wilderness,” it had become essential “to push him upward into the estate of a self-supporting and responsible citizen.” The Tombstone Prospector found some Khruschchevian merriment mulling its preferred form of “support.” Harrison must not have been too put off, since he denied clemency.*
Tombstone Prospector, Dec. 6, 1889.
Meanwhile, in the spirit of the old saw that “the only good Indian is a dead Indian,” a wag at the following week’s San Diego Weekly Union did Tombstone one better in the racist headline department.
San Diego Weekly Union, Dec. 12, 1889
* Arizona didn’t attain statehood until 1912; prior to that it was federally administered and the last word on clemencies and commutations belonged to the U.S. President.
Seventy-five years ago today, six German saboteurs were electrocuted in a Washington, D.C. jail … a failed World War II operation that bequeathed its target nation a controversial legal landmark.
On June 13 of 1942 — just eight weeks before they faced the electric chair — Herbert Hans Haupt, Heinrich Heinck, Edward Kerling, Herman Neubauer, Richard Quirin and Werner Thiel, all of them German nationals who had returned to the Fatherland after previous emigration to the U.S., were dropped by U-Boats along with two other men, Ernest Peter Burger and George John Dasch, in two quartets on the eastern fringe of Long Island and the Florida coast.
“Operation Pastorius” to sabotage war industries on the U.S. mainland would never even have time to get its land legs; spied in Long Island by a Coast Guard watchman whom they clumsily attempted to bribe, the agents scattered themselves to New York and Chicago. Burger and Dasch — who for this reason were not in the end electrocuted* — had their reservations about the Third Reich to begin with and guessed after the Coast Guard encounter where this fiasco was heading. They rang up the gobsmacked FBI to shop themselves and their comrades, enabling the feds to pick up the other six men in short order.
The eventual fate of the Nazi saboteurs is no surprise, but the means to obtain it was controversial then and remains so to this day.
On a substantive level, the Germans had landed in uniform for the explicit purpose of asserting POW status were they to be apprehended immediately; this didn’t cut much ice since all had then discarded their uniforms and attempted to melt away in the U.S. Attorney General Francis Biddle successfully cited the American Revolution precedent of John Andre, whom patriots hanged as a spy after detaining him out of uniform behind their lines. That they hadn’t yet done anything yet was a bit beside the point.**
Much thornier was U.S. President Franklin Delano Roosevelt’s order to try the Germans using a seven-member military tribunal that he conjured for this purpose, and seemingly with the objective of assuring the harshest possible sentence. (Bear in mind that these events transpired only months after Pearl Harbor.) Such a commission is explicitly anticipated by the U.S. Articles of War† whose 81st and 82nd provisions the saboteurs were charged with violating:
ART. 81. RELIEVING, CORRESPONDENCE WITH, OR AIDING THE ENEMY. — Whosoever relieves or attempts to relieve the enemy with arms, ammunition, supplies, money, or other thing, or knowingly harbors or protects or holds correspondence with or gives intelligence to the enemy, either directly or indirectly, shall suffer death or such other punishment as a court-martial or military commission may direct.
ART. 82. SPIES. — Any person who in time of war shall be found lurking or acting as a spy in or about any of the fortifications, posts, quarters, or encampments of any of the armies of the United States, or elsewhere, shall be tried by a general court-martial or by a military commission, and shall, on conviction thereof, suffer death.
However, the military commission did not seem very well in keeping with the American preference for regular jurisdictions as expressed by Ex parte Milligan, the post-Civil War decision forbidding the use of military courts anywhere that civilian courts are functioning.‡ The signal Milligan precedent formed the basis of a furious objection by Army defense lawyer (and future Secretary of War) Kenneth Royall, who fought his clients’ hopeless corner so vigorously that the doomed men signed a letter praising his efforts. (“unbiased, better than we could expect and probably risking the indignation of public opinion.”)
Already recessed for the summer, the Supreme Court hastily reconvened to cut this Gordian knot: the only forum of judicial review the case would ever receive. Its decision, Ex parte Quirin — titled after one of the defendants — spurned Royall’s Milligan claim and upheld Roosevelt’s statutory authority to determine this case for a military tribunal by a unanimous vote.
The court’s common front concealed a variety of stances on the reach of executive authority. While the whole court agreed that “Congress has explicitly provided … that military tribunals shall have jurisdiction to try offenses against the law of war in appropriate cases,” a concurring memorandum by Justice Robert H. Jackson — later famous for his role prosecuting the Nuremberg trials — proposed to carry the argument well beyond this point. Jackson claimed in a concurrence that he would eventually withdraw that “the Court’s decision of the question whether it complied with the Articles of War is uncalled for … it is well within the war powers of the President to create a non-statutory military tribunal of the sort here in question.” This was by no means the consensus of his colleagues.
The later publication of a “Soliloquy” memorandum by one such colleague, Felix Frankfurter, throws a less than dispassionate light on deliberations. Writing to smooth over internal disputes between the blackrobes, Justice Frankfurter shows himself personally hostile to the Germans — “You’ve done enough mischief already without leaving the seeds of a bitter conflict involving the President, the courts and Congress after your bodies will be rotting in lime,” he chides them in his own voice. “That disposes of you scoundrels.” In the end, the court took his advice to sidestep the potentially deep jurisdictional question.
But that question has not been left rotting in footnotes (they never are). Quirin in general and Jackson’s expansive claims of executive power in particular have been relied upon by 21st century Presidents to justify muscular and controversial innovations like the Guantanamo Bay prison and the drone war.
A few books about Operation Pastorius and Ex parte Quirin
Jurisprudence is not the only artifact of the Nazi saboteurs’ failed infiltration.
Bizarrely, a tributary slab “in memory of agents of the German Abwehr” was discovered in 2006 illicitly placed on National Park Service land in southeast Washington DC, the same vicinity where the saboteurs had been secretly buried after their electrocution. There it had seemingly reposed some twenty-odd years, unknown but to its devotees … who if the stone’s carvings are to be credited must consist of the heirs of the (defunct since 1983) National Socialist White People’s Party, also known as the American Nazi Party.
* They would be condemned to death along with the rest, but Roosevelt commuted their sentences: a fine boon but far short of the outright pardons they had been promised for their cooperation. In 1948, President Truman had Burger and Dasch deported to Germany, where many saw them as traitors.
** After unsuccessfully attempting to trade Andre for Benedict Arnold, whose defection Andre had facilitated, and whom the American revolutionaries would have much preferred to Andre for a hanging.
† Enacted by Congress in 1920, these Articles of War are no longer operative in the U.S.: they were replaced by the Uniform Code of Military Justice in 1951.
‡ Haupt and Burger were also U.S. citizens, further complicating the commission’s suspension of their constitutional habeas corpus rights.
On this date in 1820, William Holmes, Edward Rosewain, and Thomas Warrington aka Warren Fawcett all hanged in Boston as pirates.
A Scotsman, an Englishman, and a Connecticut Yankee (respectively), the three numbered crewed a privateer bearing the flag of newly independent Argentina. Having captured a merchantman heavy with valuable cargo, they’d been put aboard it with a few others, to sail the prize home.
On July 4, 1818, following a drunken quarrel between one of their number and the mate of this skeleton crew, they stole below and agreed upon a mutiny whereupon that very evening they crept upon the sleeping mate and “Holmes and Warrington seized him by the heels and pitched him over the rail of the vessel.” Roused by the mate’s shrieking, the captain raced up to the deck where he too was overpowered and forced over the edge where he clung for dear life to a rope, until the trio cut it. (According to the testimony of one of the surviving crew, Salem Gazette, July 12, 1819)
The hijackers then trimmed sail for Baltimore which even those pre-Wire days was renowned as a haven for freebooters. Unfortunately they weren’t the best mariners, and overshot the Chesapeake all the way to Scituate, Massachusetts, where they clumsily ditched their ride and were rounded up in due course. A U.S. Circuit Court condemned them for “piratical and felonious homicide upon the high seas,” and the Supreme Court upheld the judgment. (A pdf of proceedings is here)
Heinousness aside, we are by this point in history well abroad in the period of fretful chin-wagging over the deleterious spectacle of public execution, and as church bells tolled the condemned out of jail on the morning of June 15 in 1820 right-thinking observers again wondered whether the whole scene wasn’t counterproductive to its purported objectives.
The Christian Watchman of June 17, 1820 — having observed with “regret” that “no satisfactory evidence of the genuine repentance of the sufferers has come to our knowledge” — approvingly reprinted another paper’s editorializing against the public execution:
The frequent recurrence of these scenes compels us to ask, whether the manner in which, in obedience to custom, they are now conducted, be such as promotes the great ends of this dreadful judicial infliction.
It scarcely need be said, that every thing which has a tendency to mislead the public feeling on these occasions, — to turn the reflections of the beholders from the enormity of the crime to the severity of the punishment — defeats the great objects, which the law has in view.
It is not from any want of humanity and tenderness toward the unhappy persons themselves, that we make this remark; but because we think the scene of a public execution, as it takes place among us, runs too far into a dramatic spectacle, and has the effect, first of exciting and occupying the curiosity, and then of making an untimely pity for those, whose dark and murderous passions have brought down upon them the righteous inflictions of the law.
The unreflecting spectator, who sees the Reverend priest in the party-coloured vestments of his church, pouring into the ears of the convicts those precious promises of Christianity, which it is scarce the right of the most tried faith and patience to claim, who sees them standing on the fatal scaffold in the arms of a Confessor, and receiving with the fatal doom of bloody crime in this world, the promises of eternal blessedness in the other; we say that the unreflecting spectator, who beholds this, if he do not conclude that the whole is a solemn mockery — will either be thrown wholly into confusion to his notion of judicial infliction, or he will be inclined to pity and sympathise with the sufferers. And either of these effects will defeat the order of justice.
The ceremony of execution should, in our opinion, be as short and simple as possible. The Warrant of Execution, in an abridged form, should be read; a short and solemn prayer, without purple surplices or embracings, or kissings, be made, and the last horrid moment hastened, as far as public decency admits.
Milton Yarberry was one of those belt-notching Wild West gunmen badass enough to be worth deputizing for a frontier town with a spiraling crime problem — which Albuquerque was experiencing as the just-completed railroad boomed its population. A number of crimes had been attributed to him in a career that took him from stage-robbing in his native Arkansas, to the Texas Rangers, to a Colorado saloon, to a New Mexico cathouse, a veritable bucket list of spaghetti western tropes packed into 34 roughhewn years with bodies planted at nigh every stop. Yarberry was even reputed to have fought alongside Billy the Kid.
The last of these tropes, of course, was as the bad hombre upon whom the townspeople foist a badge.
It will not surprise that even when minted as a peace officer, Marshal Yarberry continued his manslaying ways. Still, nobody in our present age of impunity could well imagine a lawman standing trial for murder twice in the space of a year.
Yarberry in early 1882 defeated a charge for wasting his lover’s paramour during a row in the street, as witnesses said Harry Brown shot first, just like Greedo.
There was no administrative leave or counseling after that, just straight back on the beat — and barely a month later, the copper gunned down a guy whom he was trying to stop for questioning. It was a confusing encounter in which the Marshal insisted that he fired when the victim, Charles Campbell, wheeled on him with a gun. A single state’s witness was able to establish in the court’s mind that there was no gun in Campbell’s possession.
Our hard-living triggerman would never waver from his self-defense story as his appeals were made;** he had many supporters who believed that he was being railroaded on account of the public relations hit the city was taking for employing a dude who had so liberally populated the Republic’s Boot Hills — and those advocates included the sheriff who recruited Yarberry as a Marshal, Perfecto Armijo, who was also the sheriff detailed to hang Yarberry in the end.
The local Albuquerque podcast City on the Edge has an episode dedicated to Yarberry here.
* In the anarchic game of telephone that was 19th century reporting, some editor somewhere mistakenly understood a story of Yarberry’s condemnation in 1882 as an actual report of his execution; as a result, there were news stories (themselves repeated by multiple papers) announcing Yarberry’s hanging in June 1882. In this business, once one wrong date is out there it’s bound to be echoed into eternity, so it’s still possible to find sources that misdate the execution to June 16, 1882. Past the question of the calendar, the fact that these stories actually expanded with details about the fictitious hanging scene strongly underscores the degree to which the hang-day bulletin had become colorfully but generically abstracted from any save accidental relationship to the actual scene at the gallows.
Cincinnati Daily Gazette, June 17, 1882, vividly peopling an imaginary scene.
** Because New Mexico was still just a territory — it was only admitted to the Union as a state in 1912 — Yarberry’s clemency decision went to the U.S. President, Chester A. Arthur.
Back in 1996, 
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