TOMORROW morning, Senate Judiciary Committee Chairman J. Strom Thurmond of South Carolina is scheduled to resume hearings on a bill whose effect would be to bring back the death penalty for a number of federal crimes, including murder, treason, some types of espionage and air-plane hijacking resulting in death.
The death penalty is a subject on whicih he claims special expertise, since he is probably the only member of Congress to have sentenced anyone to death. He often reminds listeners that he served as a state circuit judge in South Carolina between 1938 and 1946 and pronounced death sentences on four men, each of whom was duly executed.
"I am convinced the death penalty is a deterrent to crime," he told a U.S. News & World Report interviewer last month. "I had to sentence four people to the electric chair. I did not make the decision; the jury made it. It was my duty to pass sentence, because the jury had found them guilty and did not recommend mercy. But if I had been on the jury, I would have arrived at the same decision; in all four of those cases."
Thurmond hasn't said what it was about those four 40-year-old cases which has fixed them in his mind as examples of how we should be dealing with crime today, and he has not made himself available to be interviewed about them. What follows, pieced together from courthouse records, contemporary news accounts and the memories of old lawyers and preachers in the towns where Judge Thurmond held court four decades ago, are the stories of those cases.
On a Saturday night a few days before Christmas in 1940, a young white woman was raped near her home in the coastal town of Georgetown, S.C. The next morning, sheriff's deputies arrested a black man named George Thomas. As news of Thomas' arrest spread, white men, armed with rifles and shotguns, gathered at the jail and demanded that the sheriff turn over Thomas. He refused, but soon the crowd had swelled to what the local paper described as an angry mob of about 300 armed men, and eventually the sheriff, stalling for time, handed over a black prisoner -- not Thomas -- whom the crowd took to the victim's home. When she failed to identify him as her attacker, the crowd drove her to the jail in a pickup truck and kept her there while 10 more prisoners -- one of them Thomas -- were marched out of the jail one by one. She couldn't identify any of them.
Meanwhile, National Guardsmen had been mobilized around the jail and a machine gun mounted on a second-story balcony. While the sheriff stalled by handing over his black inmates one at a time to the mob, somehow -- the old records do not reveal where or when -- he apparently managed to quietly arrange a face-to-face meting between rape victim and Thomas. She reportedly identified him as her attacker. Thomas was slipped away from the jail and rushed halfway across the state to the penitentiary in Columbia, the escorting officers picking their way along back roads to escape at least one carload of pursuers.
White vigilantes roamed Georgetown for the next several nights, and much of the black community had to hide indoors until a National Guard unit could restore order.
The Georgetown Times editoralized later in the week that "The mob violence at the jail [on Sunday] is regrettable but was due to pent-up, heated passions . . . If the situation had ended Sunday, it would have been much better for all concerned."
Meanwhile, the state Supreme Court scheduled an extra session of criminal court to try Thomas. Judge Strom Thurmond was assigned to preside, and the case was set for the last week in January, just six weeks after Thomass' arrest and the rioting that followed it. A week before the trial, the sheriff asked the governor again to mobilize a National Guard unit in Georgetown "for the duration of the term of court." Since a Guard unit was already to be stationed at the armory that week for unrelated reasons, Guard officials decided that more troops weren't necessary. The governor did, however, send several state police officers to help keep order.
It was in this atmosphere that George Thomas' trial began. His NAACP-retained attorney arrived in Georgetown immediately before trail, reported to Judge Thurmond that his own life had been threatened, submitted a sworn statement detailing the incidents that followed Thomas' arrest, and asked that the trial be moved out of Georgetown County. The prosecution presented testimony from local attorneys and others that, as one of them put it, "the County of Georgetown will give any man as fair a trail as he can find in the world." Thurmond denied the motion for change of venue.
The transcript shows that Judge Thurmond began the jury selection by announcing to the jury panel: "We are about to enter upon the case of the State against George Thomas. George Thomas is a negro, so it will be unnecessary to inquire as to [any kin] relationship to him, since all jurors at this term of court appear to be white."
The jurors were also all men, since women were disqualified from jury service under South Carolina law (and would remain so until 1967). Blacks outnumbered whites in Georgetown County in 1941 by nearly two to one, so the white men summoned to Georgetown's antebellum courthouse were selected by a system that excluded at least 82 percent of the county's adult population.
The prosecution's key witnesses were the victim, who identified Thomas in the courtroom as her attaacker, and the sheriff, who said the victim had earlier identified Thomas after his arrest.
Thomas testified in his own defense that he had come home drunk some hours before the time of the attack, ate his supper and fell asleep with his head on the kitchen table, eventually goint to bed and staying home until early the following morning. His wife and 11-year-old son corroborated this testimony. He also called seven other witnesses to establish his whereabouts throughout the day and night before his arrest. (There are to this day witnesses living in Georgetown who swear now, as they did then, that Thomas was at home when the crime occurred.) In reply the state called a white merchant to say that Thomas had been downtown at at his store during the evening of the incident, and a policeman to testify that grass and burrs were found in Thomas' underwear after his arrest.
The jury deliberated a little over an hour and found Thomas guilty of rape, without a recommendation of mercy. The verdict carried an automatic death sentence, which Thurmond imposed the next morning.
Thomas appealed to the South Carolina Supreme Court, contending that Judge Thurmond denied him a fair trial by refusing to move the case out of Georgetown. Thurmond, therefore, had to make a report to the Supreme Court detailing the situation in Georgetown before and during the trail. In his report, Thurmond made no mention of the rioting and lynching attempt following Thomas' arrest, and he said Thomas had been taken to the state penitentiary in Columbia after his arrest "due to the congested condition at the county jail." He asserted that the presence of National Guardsmen a few blocks from the courthouse had no connection, "directly or indirectly," with Thomas' trial. Though the Georgetown Times reported that traffic had been blocked all around the courthouse, that a special detachment of 35 highway patrolmen had stood guard over the trial and the jail, and that the courtroom had been packed, Thurmond stated that "only a few people attended court" and that in general nothing out of the ordinary had occurrred.
Thurmond's report appears to have sealed Thomas' fate. Based largely on what Thurmond had told it, the Supreme Court found Thurmond had been justified in refusing to move the trial out of Georgetown. George Thomas was electrocuted on Feb. 20, 1942.
He may have been guilty. If guilty, perhaps by the standards of that era he deserved to die. Or perhaps he was not guilty. Or perhaps the verdict was true but the sentence unjustly harsh. These are the sort of doubts that are supposed to be laid to rest by the verdict of an unbiased jury after a fair trail. But because Thurmond didn't provide George Thomas with that kind of a jury or that kind of a trial, the doubts remain.
The next man Judge Thurmond sentenced to die was a 17-year-old black sharecropper named Sammie Osborne, who shot and killed his employer, a prosperous white Barnwell, S.C., farmer named William Walker, after Walker had come looking for Osborne armed with a loaded .32 caliber pistol.
Barnwell County in the early 1940s was a backwoods region of low-lying pine forests, blackwater swamps and modest farms. The white farmers there typically had one or two slave families before the Civil War and a couple of black sharecroppers afterwards. The 1940 census shows that blacks comprised 64 percent of the county's population, but as everywhere else in the state at that time, the ballot box and jury service were reserved for whites.
"Black people here were completely dependent," recalls George Green, an undertaker and black community leader. "You had to work when your boss said to work, do what he said to do, wear what he gave you to wear, eat what he said to eat and live where he put you to live."
But Sammie Osborne was an exception. Green remembers him as a boy who wasn't afraid of anybody, a "nervy" kid with an unhealthy quickness to anger. Even before the killing that put him on trial for his life, some blacks in the little world of Barnwell County had a feeling Sammie Osborne wasn't going to survive there for too long.
Osborne moved to Walker's farm in early 1941. Walker seems to have been a strong-willed, temperamental man who took his pistol with him to the fields where his sharecroppers worked. Writing to the governor to urge clemency for Osborne shortly before his scheduled execution, a white Barnwell resident described Walker and his father before him as landlords who kept black tenants in conditions "much akin to peonage, and generally settled [their wages] at the end of the year with an axe handle."
So it may have been inevitable that Osborne and Walker were going to have trouble during that summer of 1941. When it came, it was over whether Osborne had to work in the fields on Saturday. He'd refused on three successive Saturdays, claiming an injured foot, when, Osborne would later testify, Walker forced him out into the field at gunpoint and fired several shots past him. Later that day, Osborne wrote a cryptic note to Walker on a piece of cardboard and left it on a stick near Walker's house, where the 58-year-old farmer lived by himself. "Come on Mr." the note read. "Plese come on. Bring 16 at a time down here in the house. Please come on. I like bad man like you to come." Osborne's name and the word "Hell," printed twice, appeared at the bottom.
Osborne later testified that he intended the note to scare Walker and keep him away. The prosecution contended that the note was actually a challenge intended to lure the white man into an ambush. But is that has in fact been Osborne's original plan, he'd apparently lost his nerve by late Saturday night, because he never returned to his own house. Instead he spent that night a few hundred yards away at the other tenant house on the Walker property with an 18-year-old sharecropper named Girard Davis. He went to sleep with Davis' loaded shotgun next to his bed, and it was there the following morning that Walker found him, not yet out of bed.
Osborne told police that Walker had burst in with a pistol in one hand and a stick in the other and started beating him. Osborne said he grabbed the shotgun and fired in self-defense. Walker's pistol and a stick were found by his body at the foot of Osborne's bed.
After the shooting, Osborne walker barefoot to his father's house, six miles away, and persuaded his father to take him to the state penitentiary in Columbia, apparently because he was afraid he'd be lynched by the posse that was already searching for him. Once he'd turned himself in at the penitentiary, Osborne spoke freely about what had happended and maintained during several interrogations that he had killed Walker in self-defense.
When Osborne was returned to Barnwell four weeks later to stand trial, he found himself being prosecuted by the two most powerful politicians in South Carolina: Solomon Blatt, who at that time (and for the next 32 years) was the speaker of the state House of Representatives, and Edgar Brown, the president pro tem and most influential member of the state Senate. On the Friday before his trial was to begin, the sheriff brought Osborne from the jail to Blatt's law office so the prosecutor could question him one more time before a lawyer was appointed to represent him. He stuck to his story.
Judge Thurmond arrived at the Barnwell County courthouse the next Monday and appointed local counsel for Osborne. His new lawyer moved for a change of venue, which Thurmond denied after a heated hearing; 12 white men were sworn as jurors, and Speaker Blatt began presenting the prosecution's case while a crowd of spectators filled that seats and overflowed into the aisles behind him.
There was no denying that Walker had been heavily armed and had been shot only after entering the room where Osborne was asleep, so the prosecution had to rely on Osborne's note as evidence that the killing had been a premeditated ambush rather than self-defense. But there was a problem: Even if the note was intended as a provocation, it invited Walker to come to Osborne's house, not Davis'. It did nothing to explain what Walker was doing in the bedroom of the Davis house with a stick in one hand and a loaded pistol in the other.
Osborne's note did show something else, however, that may have been more damaging in the eyes of the white men sitting as his jury. It showed that he was one black sharecropper who dared express hatred for his employer, who dared to stand up to him. He "gave the appearance," as one prosecutor later put it, "of being afraid of no white man nor any other man." He was an uppity nigger.
Osborne, in his own defense, repeated essentially the same account that he had given to the police when he turned himself in and to the prosecutor just before the trial. The jury found him guilty of murder, made no recommendation of mercy, and Judge Thurmond sentenced him to death.
On appeal, the South Carolina Supreme Court ruled that Thurmond had not correctly explained the law of self-defense to the jury, and sent the case back for a new trial. Osborne's motion for a change of venue was again denied, and he was retried in the same courthouse before a different judge and a different all-white jury. The jury required only 15 minutes to find him guilty again, and he was again sentenced to death.
By this time more than two years had elapsed since Walker's death, and Osborne's plight had begun to attract attention. Several church groups mounted a modest campaign to persuade Gov. Olin Johnston to commute Osborne's sentence to life imprisonment. The state Pardon Board heard a new attorney for Osborne argue that Walker had been proven to have been the aggressor. One Barnwell resident, peititoning the governor to commute Osborne's sentence, conceded that "a negro is a negro, and a white man is a white man, but it is up to us to be at least fair and try to show them the right road." A friend of the governor's also recommending commutation, suggested that "with the white man with everything in his hands . . . we could afford to give the negro a little better show in the courts."
Osborne's execution drew nearer, however, Blatt kept up the pressure against commutation. The speaker had written to the governor to arrange for a private discussion of the case just before it was to be considered by the Pardon Board, and later argued before the board against any clemency. Two days before the scheduled execution, Gov. Johnston received a Pardon Board report which recommended, two votes to one, against commuting the sentence. That night, Johnston drove the few blocks from the governor's mansion to the state penitentiary and spent an hour with Osborne in the holding cell next to the execution chamber. "I believe I could have cleared myself if I had had more time," Osborne would say the next day, "but I begged and begged the governor to give me more time and to pardon me but he wouldn't do it."
Osborne was electrocuted the next morning, Nov. 19, 1943. A newspaper reporter described Osborne as speaking rapidly in a soft voice as the electrodes were placed on his head and saying, "I'm ready to go because I know that I am not guilty." He was 20 years old.
If Thurmond has had any second thoughts about the death sentence he imposed on Sammie Osborne nearly 40 years, ago, his public statements on the subjects in the last several months have shown no trace of them. But the man who prosecuted Osborne and successfully lobbied for his execution no longer seems interested in taking any of the credit -- and is not even sure he did the right thing.
Solomon Blatt is 86. His hearing is poor today, but his memory remains sharp, and earlier this month he began to recall each detail of the Osborne trial. "The Osborne case always did worry me. It still worries me," he says.
Walker's family was related to Blatt's he explains, and he felt obligated to prosecute the case when they asked him. He says now that he initially offered Osborne a chance to plead quilty and receive a life sentence, but was told a few days later that some civil rights groups that had raised money for Osborne's defense had vetoed had vetoed any such compromise. "So you see," he says, "the blame for his death rests elsewhere than with me."
He acknowledges that once he decided to proceed with the case, he prosecuted vigorously and fought to see that Osborne's sentence was carried out. But he doesn't try to jusitfy the result. "I still worry about it," he says again. "If I was wrong, I hope I'll be forgiven for what I did. If I was right, I hope I'll be relieved of my burden."
The third man Strom Thurmond sentenced to die was another black sharecropper named George Abney, who was tried in July 1940 for the murder of his employer's wife. Abney was indicted and given a lawyer on a Monday, tried that Wednesday, sentenced to death by Judge Thurmond at noon on Thursday, and executed 43 days later.
Since no one appealed George Abney's case, no transcript of his trial was ever prepared, and outside of a dozen sheets of paper filed away in the courthouse of the sleepy town of Saluda, S. C., and a one-line entry in the state executioner's logbook, there is no record of what happened to Abney, or why. But in an office across the street from the county courthouse, there is an old lawyer who remembers.
Billy Coleman is 65 now, slightly stooped but still vigorous. "Mr. Billy" has been practicing law for 40 years, but on that hot July morning in 1940 when Judge Thurmond called him to the bench from the back of the courtroom and appointed him to defend George Abney, he was "just brand new" out of la school.
He knew George Abney, though. Abney's father had sharecropped for Coleman's father, and the two boys had grown up together on the Coleman farm. George was a few years older, and Coleman recalls the rabbit traps George used to build for him, and their horseback rides together, the black boy sitting in front, the small white boy clinging to him from behind as they rode though the fields and pine woods of that red clay county.
The Abneys moved off the Coleman place in the early 1930s. George married, and in the early spring of 1940 he was sharecropping six miles out of town on a two-horse farm for a white man named Reardon. By then, Coleman recalls, Abney wa suffering from an advanced case of syphilis. "He was just eaten up with it. His teeth were falling out. And it was starting to affect his mind."
Instead of getting him proper treatment, Coleman relates, his employers took him to a black root doctor who prepared a foul-smelling concoction of "scummy, green, slimy stuff like what you would get off the top of a stagnant pond." Mrs Reardon brought a bottleful of this remedy over to Abney's house, and she and Abney's wife tried to hold him and force a dose of it down his throat. Abney went crazy. "His shotgun was hanging on the wall, and he just grabbed it and shot his wife, and then he shot Mrs. Reardon," says Coleman.
After the shootings, Abney walked the six miles into Saluda, still carrying the shotgun. The local magistrate notices " a darky on the street with a shotgun" and arrested him. "I asked him several questions," the magistrate testified at the coroner's inquest the following night, "but he did not answer me, just mumbled. I could not understand anything he said." Abney was taken to the jail, and when the bodies of Reardon and his wife were discovered a short time later, he was rushed to the state penitentiary to avoid the possibility of lynching.
Four months later Judge Thurmond arrived in Saluda, and Abney was brought back to stand trial for Reardon's murder. (He was also charged with his wife's murder, but never tried for it.) Thurmond appointed Coleman to defend his childhood friend, and the trial began two days later in a packed, sweltering courtroom.
Coleman remembers the atmosphere was charged with rumors of a lynching. He wanted the jury to understand that in Abney's wretched, half-deranged condition, what Mrs. Reardon had done was provocation to him, and that she hadn't had any business being in his house in the first place.
"But back in 1940, you couldn't say that. It would have been dangerous to say anything like that. You're talking about white people and black people. I'd have been run out of town if I'd said that.
"It was just lynching time. That's the way the public felt." Pausing a moment, he adds, "I guess I just wasn't man enough to stick up for what I should have."
It took Wednesday and a little of Thursday morning to select a jury of 12 white men, hear the testimony of 13 witnesses, and complete the lawyers' jury arguments and Judge Thurmond's instructions. The jury deliberated for 45 minutes and returned a verdict of guilty, without a recommendation of mercy. Judge Thrumond imposed the automatic death sentence.
"About the only way I could make myself feel good about it," Coleman remembers, "is that if he hadn't gotten the chair he'd have gotten lynched. My neighbors were coming to me and saying, 'You going to defend that nigger?' That crowd was about ready to do some lynching."
Abney was taken back to the state penitentiary to await his execution, which Thrumond had set for Sept. 6. An appeal to the state Supreme Court would have automatically stayed his execution, but the young lawyer didn't know whether he had any grounds to appeal on, or even how to go about filing an appeal, so none was filed.
On Sept. 6, Abney was strapped into the electric chair at the state penitentiary in Colombia. A short item in a Columbia newspaper related that his last request was to see his mother; when that was denied, he said, "Then I gives up," and the switch was pulled.
Billy Coleman insists today that he supports the death penalty. "But if the same thing had happened today, George Abney wouldn't have been electrocuted. And I don't think he should have been electrocuted." Coleman says he's not sure the changes in the South since 1954 have necessarily been for the better, but to understand what happened to George Abney, he says, you have to understand how different everything was back then.
"It was strictly segregation. That was before there was even talk about integration." And George Abney had killed a white woman. Billy Coleman emphasizes that he's not critizing Thurmond. It was just the times.
The list of people executed by sentence of Judge Thurmond includes one white man, an alcoholoic, 27-year-old mill worker named J. C. Hann who was electrocuted for killing his ex-girlfriend with a razor. The transcript of Hann's trial is now unavailable, the prosecutor doesn't remember much about the case, and the defense attorney has been dead for many years.
According to the state Supreme Court's decision in denying his appeal, Hann admitted at his trial that he blamed his former girlfriend for a case of gonorrhea which (in that pre-penicillin era) was interfering with his plans to marry another woman. He said that she'd been taunting him about his predicament when he lost his temper and killed her, and he begged for mercy on the witness stand. Hann was executed on Feb. 7, 1941.
Although Thurmond often cites this series of executions as evidence of the deterrent value of capital punishment, the FBI's annual crime reports show that in 1941, the year in which his death sentences were imposed on Sammie Osborne and carried out on J.C. Hann, South Carolina's murder rate was more than four times higher than that of the country as a whole. The year before, it had been three times higher. And although South carolina would continue for the rest of the 1940s to execute people at a far greater rate than would the rest of the nation, the state's homicide rate during the decade was never to fall below twice that of the United States as a whole.
Thurmond now stresses that he was required by law to impose death sentences in all four capital cases. But after he was elected governor in 1946, Thurmond enjoyed an unrestricted legal power to commute death sentences. It was a power which Gov. Thurmond used sparingly: In the first year of his administration, more people were executed than in any 12-month period before or since. A total of 21 men would be executed during Thurmond's term of office, all of them black.
Thirty years after the men sentenced by Strom Thurmond went to their deaths, the U.S. Supreme Court ruled that the legal procedures by which they and thousands of others had been selected to die violated the constitutional ban on cruel and unusual punishment because they included no rational guidelines for deciding which crimes or criminals merited the death penalty and which did not.
Like most other states, South Carolina subsequently enacted new sentencing laws which specified the particular circumstances under which a crime was sufficiently serious to justify the death penalty. Of the four men sentenced to death by Judge Thurmond back in 1940 and 1941, not one could have been executed under the revised South Carolina law.
But it is not only in hindsight that the death sentences which Strom Thurmond meted out were illegal. For the wholesale exclusion of black people from jury service had been condemned by the U.S. Supreme Court in a series of decisions stretching back to the 1880s. And just two months before Judge Thurmond empaneled an all-white jury to try George Thomas for the rape of a white woman in a county that was nearly two-thirds black, Justice Hugo Black of Alabama had written for a unanimous Supreme Court that racial discrimination in jury selection "not only violates our Constitution . . . but is at war with our basic concepts of a democratic society and a representative government."
So it can't be said that judges like Thurmond had no way of knowing in 1941 that there was anything wrong with the all-white judicial system. Thurmond and his colleagues did what they did because there was not yet anyone to stand up to them.
Strom Thurmond may be right when he suggests, as he has done again and again, that there is something to be learned from these obscure death sentences. The lesson isn't the one he might have us draw, but it's one which Congress might do well to consider as it evaluates his proposal to put the federal government back into the business of executing its own citizens:
The judicial system which condemned and executed Sammie Osborne seemed fair enough to the people who administered it in 1941. Forty years later, it's clear to almost everyone that he shouldn't have been executed nor perhaps even convicted. But it wasn't clear to everyone then, when he was still alive and could have been spared; and now it's too late.
So it is, in greater or lesser degree, with each of the four men whom Judge Thurmond sentenced to death. Our country's sense of justice has changed in 40 years, and will no doubt change again. The most up-to-date and safeguard-laden death penalty law may well seem as barbaric and unfair to our grandchildren as the trials of George Thomas and Sammie Osborne do to us today.