The Strange Journey of Strauder v. West Virginia
ON FRIDAY, APRIL 19, 1872, BOTH NEWSPAPERS IN Wheeling, West Virginia, featured stories describing the same lurid event. The headline in the Daily Intelligencer read, “Horrible Murder. A Colored Woman Tomahawked by Her Husband. He Brains Her with a Hatchet. The Murderer Escapes.” Not to be outdone, the competing Daily Register wrote, “A Deliberate and Brutal Murder. A Negro Kills His Wife with a Hatchet. A Sickening Sight. Escape of the Murderer. Inquest and Testimony.”1
The circumstances of the crime were reported to be straightforward. Taylor Strauder, a local carpenter who appeared to be a hardworking and otherwise law-abiding citizen, had, without provocation, savagely murdered the woman he had married only months before. The heinous act had been witnessed by nine-year-old Fanny Green, Anna Strauder’s daughter by a previous marriage. “Taylor Strauder killed my mother with a hatchet,” she told the coroner’s jury. “He struck her two times on the head with it; my mother was sitting on the rocking chair; Taylor Strauder was sitting on the lounge just back of her, and I was lying on the lounge; he asked mother where his shoes were, she said they were where he had left them last night, and he picked up the hatchet and struck her.” Then, according to the girl, Strauder had fled. Sheriff’s deputies testified the fugitive was nowhere to be found.
It was not long before details of another motive began to leak out. Strauder, acquaintances said, was an extremely jealous man who had made the mistake of marrying a woman who was energetically unfaithful. He had been out drinking the night of the murder and was taunted by a companion who had heard stories of Anna’s proclivities. When Strauder arrived home, already in a foul mood, he heard the back door of the cottage in which he lived slam shut as he was entering through the front. He later claimed to have glimpsed a white man hurrying from the house. Once inside, he accused his wife of entertaining other men, and the two fought nearly all night. Early the following morning, the fight resumed. Finally, rather than continue to deny her husband’s accusations, she allegedly turned to him from her rocking chair and said, “What are you going to do about it?” Moments later, the hatchet fell across Anna Strauder’s temple.
A careful search of the area was unsuccessful in revealing Strauder’s whereabouts, so a reward of $200 was posted for his capture. Wheeling, the seat of Ohio County, is set on a narrow spit of land wedged between Pennsylvania and Ohio, so the manhunt was conducted in all three states. Strauder was described as “a very light mulatto: about 32 years of age: about 5 feet and 10 inches in stature and stoutly built. He has a rather spare face, with high cheek bones, and wore when last seen here a scattering beard on his chin.”2 Less than one week later, he was apprehended in Pittsburgh, although whether he had been caught or had given himself up remained unclear. He was returned to Wheeling, jailed, assigned a lawyer, and left for what everyone expected to be a brief wait until the judicial system dispensed with him.
But what neither Taylor Strauder nor any of the law enforcement personnel, lawyers, judges, or jurors who would be involved in this case could have known was that the murder of Anna Strauder would not only set in motion an incredible three-decade odyssey for the accused, but also set the scene for what has been called one of the most important voting rights decisions in American history.
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Taylor Strauder proved to be a cooperative and affable prisoner, popular with both the guards and the other inmates. He made no trouble, did not issue hollow protests of innocence, was devoid of self-pity, and seemed resigned to meeting “the Great Judge,” as he phrased it. As further word of Anna Strauder’s infidelities made the rounds, Ohio County authorities decided not to rush to bring her killer to trial, but to let him remain in jail rather than hang. But West Virginia had a law stipulating that anyone accused of a crime who, after indictment, remained in prison without trial for three sessions of the circuit court would go free. The sessions commenced in May and October, so it was not until the third of these, the May 1873 term, that Strauder was actually brought before a judge. The lawyer originally assigned to defend him had died in a gas lamp explosion, so the firm of Davenport and Dovener became the new defense counsel.
George Davenport was a veteran and highly respected trial lawyer, but he assigned his junior partner, Blackburn B. Dovener, thirty-one years old, to plead the case. Dovener had just recently been admitted to the bar, and this would be his first experience in state circuit court. He was a staunch Republican who had left his native Virginia to fight for the Union. Dovener had entered the army as a private, raised a company of soldiers while still a teenager, and during the conflict had been promoted to captain. After his discharge, he had briefly captained a riverboat before turning to the law.
Perhaps because he wanted to impress in his first court case, Dovener attacked the Strauder case as if he were charging the Confederate lines at Chancellorsville. He immediately made a motion to remove the trial to federal court. In March 1873, West Virginia had passed a law that stated, “All white male persons who are twenty-one years of age and who are citizens of this State shall be liable to serve as jurors, except as herein provided,” the exceptions being state officials. Dovener argued that restricting the jury to whites violated the equal protection clause of the Fourteenth Amendment. His motion to remove the case was denied.
On May 9, 1873, Taylor Strauder was found guilty of first-degree murder and sentenced to be hanged. Local newspapers, aware that the case was by then familiar to their readers, were forced to create an even more bloodthirsty version of the crime, little of which bore any relation to the truth, but which made calls for Strauder’s speedy execution that much more insistent.
Within three months after their marriage, he attempted to force her into the cellar of their house that he might cut her throat with a razor. Because of his bad treatment of her, she had determined to leave him and apply for a divorce. He is reported to have said, “If you can’t live with me you shall never marry any one else. I will kill you first.” The night before the murder, Strauder went home about 11 o’clock. Finding a child of his wife’s, by her first husband, in the bed, he threw it out on the floor, and a quarrel ensued, whether about the child or on account of his accusing her of infidelity will never be known; at any rate they quarreled, and on the morning of Thursday, April 18, 1872, when they arose from their bed, he asking her some question in regard to his shoes and, receiving an answer that seems to have soured him, he seized a hatchet, and with the pole or head of it, struck her once on the temple and once behind the left ear. The little daughter of the woman, awakened by the noise, saw the terrible deed. She attempted to scream, but Strauder threatened to kill her too if she made any outcry. The poor little thing frightened half to death was compelled by him to lie down on her couch and cover up her head in the bedclothes, thus giving him a chance to escape. After a while, it must have seemed to her an age, she uncovered her head and found her stepfather gone. Jumping out of bed, she ran to her mother, whom she saw leaning over the arms of a rocking chair speechless and the crimson tide flowing from her wounded head, and said, “Mamma, hold up your head; then, maybe, it won’t hurt you.” She was only seven years old, and could not realize that her mother was dead. Strauder, in the meantime, fled.3
Two weeks later, Dovener was back in court, submitting motions to gain Strauder a new trial. Although he maintained the Fourteenth Amendment argument, he and Davenport had added other exceptions, one of which was a claim that one of the jurors was not a United States citizen and another that one of the jurors had expressed an opinion on Strauder’s guilt. The motions were denied and Strauder was given an August 29, 1873, date for his execution. Dovener, to the outrage of many in the community, once again announced his intention to appeal.
During the delay, Strauder remained fodder for local news, and the tone of the reporting began to change. While awaiting his fate, he was reported to have undergone a spiritual conversion. In July, “the pastor of the 5th Street African Methodist Church and several of the members of that congregation visited the jail on Sunday evening and administered the rite of baptism . . . Afterwards they engaged in devotional services . . . Jailer Kennedy informs us that the condemned man deeply feels his position and that Strauder is misunderstood.”4
Strauder, by then the longest tenured prisoner in the Ohio County jail, had also come to be on such good terms with his jailers and local deputies that they openly advocated that the man who had cleaved in his wife’s skull with a hatchet be allowed to live. Two weeks before his execution date, Dovener succeeded in getting a stay pending his motions for a new trial. The state supreme court would make the ruling, but not until January 1874. On August 29, a newspaper ran a small item about the execution under the heading, “Not today.”5
As it turned out, not in January 1874 either. With Taylor Strauder now seemingly a permanent tenant of the county jail, the state supreme court adjourned the matter until July. Then, in what was a surprise to all parties, none more so than Taylor Strauder, the court agreed with his lawyers, and on July 21 sent the case back to circuit court for retrial. They did so not on constitutional grounds, but rather due to a procedural error by the prosecutors in filing the charges.6 In September, Strauder’s attorneys moved to have him released as three court terms had passed. When that was denied, the case went once more to a grand jury, which returned a second indictment in October. On November 5, 1874, Strauder was once again convicted of first-degree murder and sentenced to hang, and just as quickly Blackburn Dovener was back in court, petitioning for a new trial.
It remains unclear why Dovener—and Davenport, who had by this time become active in the case—displayed such tenacity for an ax murderer who had not denied that he had committed the crime of which he was accused and had been tried for it and convicted twice. At this stage, there was no indication they were intending a constitutional test—their appeals were based almost entirely on procedural challenges—nor were they being paid to drag the process out. It may have been simply that these two lawyers believed fervently in the canons of their profession and that every possibility of saving their client must be exhausted before they gave up.
In January 1875, their petition was denied, and Strauder was yet again given a date of execution, this time March 26. He took the news placidly, as always, and was the object of great sympathy from jail personnel with whom he had by then been associated for almost three years. But sympathy was tempered with uncertainty. As late as early March, one newspaper reported that bets were being taken on whether or not the sentence would be carried out.7 Sure enough, the very next week, a state supreme court judge granted a stay of execution, pending a decision on appeals by the defendant.
From there, the appeals went back and forth for almost two years, never resolving, never prompting a new trial, a West Virginia version of Bleak House’s Jarndyce v. Jarndyce. All the while, Taylor Strauder remained in the Ohio County jail, not free, but not especially restrained either. Three days before Christmas 1876, the Ohio County commissioners made their annual inspection of the jail, accompanied by reporters. As they opened the door, “Immediately a colored man came out of one of the cells to the left and approached the barred door. The turnkey handed him a key, which he took and proceeded to lock up in their cells the prisoners who were sauntering idly about taking their regular afternoon exercise. The prisoners all safely in their cells, the colored man returned to the door and handed back the key.”
“The colored man,” the reporter observed, “was no other than Taylor Strauder, the noted wife murderer, [who] appeared to be well acquainted with the party, and a great favorite as well, as he shook hands cordially all around and conversed freely with them.”
Time, apparently, had also softened the community’s outrage.
Poor Strauder! He has been a prisoner for nearly five years, and yet his fate is as uncertain as upon the dreadful day when he committed the bloody deed for which he is held to answer . . . During his incarceration he has earned the confidence and esteem of the officers of the prison, and is a valuable assistant to the turnkey in the discharge of his various duties, he has always behaved himself in an exemplary manner, and is treated by his fellow prisoners with the utmost respect.8
He had also taught himself to read and write and mentioned that he intended to write a book about his experience as a prisoner.
By June 1877, with no movement in the case, some began to argue for Strauder to be granted clemency, but none was forthcoming. Finally, in November, the state supreme court denied each of the myriad motions that Davenport and Dovener had made, including one that asked the trial be removed to federal court due to discrimination in jury selection. Finally, the question that would become the basis for the constitutional challenge was put into focus. The court wrote, “A prisoner is not entitled to have a case removed into the U.S. Circuit Court for trial upon his petition supported by affidavit setting forth that he is a colored man, and that such prejudices exist in the State against his race that he cannot get justice in the State Courts, and that also by a law of the State only white men can get upon the jury.”9 The court instructed the case be returned to circuit court for reimposition of sentence. George Davenport immediately filed notice that he would apply to remove the case to the United States Supreme Court on Fourteenth Amendment grounds.
Four months later, the Court had not decided whether to take the case, and the circuit court had dallied in imposing a new sentence. Sentiment against hanging Strauder had grown in the community, so even if he was condemned, “a strong effort will be made to have the Governor commute his sentence.”10 Before that could happen, however, on April 15, 1878, Morrison Waite announced that the Supreme Court would hear the appeal. Ten days later, Taylor Strauder, now a local celebrity, marked his sixth anniversary as a prisoner in the county jail, the longest any inmate had ever been incarcerated in that facility. He even petitioned the county for $150 to help defray the cost of Davenport and Dovener’s upcoming trip to Washington, but the county commissioners turned him down, albeit with some reluctance.
Strauder v. West Virginia was not heard until October 1879, but it was billed as one of the most important cases regarding African American civil rights ever heard by the Supreme Court. To add to the drama, United States Attorney General Charles Devens, a former Union army general who had served with Grant, had joined the Strauder team to prosecute the appeal, and Senator John Brown Gordon of Georgia, a former Confederate general who had served with Lee, would aid the state attorney general in defending it.
The decision would not be handed down for some months, but in the interim it was reported in January 1880 that “Taylor Strauder has improved the leisure of his confinement in jail in writing another book.”11 No record of any such writings exist.
On March 1, 1880, the Court finally rendered its verdict. By a 7–2 vote, the justices ruled that Strauder’s conviction would be overturned because he had been deprived of equal protection of the laws as guaranteed to him under the Fourteenth Amendment.
William Strong wrote the opinion. Born in Connecticut and raised in Pennsylvania, Strong was an abolitionist Democrat who had switched to the Republican Party in 1858 to support the candidacy of Abraham Lincoln. He served on the Pennsylvania Supreme Court after the war, and when Edwin Stanton died four days after being confirmed to the Court in December 1869, he was appointed by Ulysses Grant to take his place. Strong prided himself on being a man of principle—he would resign in perfect health in December 1880 to set an example for other justices who remained on the Court even though faculties were diminished. Strong lived until 1895.
Despite his abolitionist credentials, Strong’s record left his commitment to equal rights suspect. In 1872, in Blyew v. United States, he took a narrow view of the Civil Rights Act of 1866 to free two white men who had been convicted in Kentucky of murdering a black family with an ax. One of the victims, a woman in her eighties, was blind. Kentucky had a law that did not allow blacks to testify against whites, but the principal witness against the killers was the seventeen-year-old son of the murdered family who identified them on his deathbed, and said that one of the men had said “he intended to go on killing niggers.”12
As a result, the trial took place in federal court, since the Civil Rights Act of 1866 stipulated
that the district courts of the United States, within their respective districts, shall have, exclusively of the courts of the several States, cognizance of all crimes and offences committed against the provisions of this act, and also, concurrently with the circuit courts of the United States, of all causes, civil and criminal, affecting persons who are denied or cannot enforce in the courts or judicial tribunals of the State or locality where they may be any of the rights secured to them by . . . this act.
Those rights included “to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens.”13 The specific purpose of the act, about which there was no misunderstanding, was to protect newly freed slaves from what might be oppressive state laws or discriminatory application. The Blyew murder case would have seemed just the sort of discriminatory behavior for which the law had been passed.
Justice Strong, however, did not agree. He chose to interpret the phrase “affecting persons who are denied or cannot enforce in the courts or judicial tribunals of the State or locality” to preclude victims of crimes and apply only to those accused of crimes. “Obviously the only parties to such a cause are the government and the persons indicted,” he wrote. “They alone can be reached by any judgment that may be pronounced.” With this interpretation, Strong was able to then say that obviously discriminatory state legislation did not come under the purview of a law enacted precisely to deal with discriminatory state legislation. Blyew and the other murderer went free.
In his Strauder opinion, Strong opened with an important distinction.
It is to be observed that the first of these questions is not whether a colored man, when an indictment has been preferred against him, has a right to a grand or a petit jury composed in whole or in part of persons of his own race or color, but it is whether, in the composition or selection of juror by whom he is to be indicted or tried, all persons of his race or color may be excluded by law solely because of their race or color, so that by no possibility can any colored man sit upon the jury.14
Citing the Slaughter-House Cases, he also was careful to point out for what reason the Fourteenth Amendment was adopted.
This is one of a series of constitutional provisions having a common purpose—namely, securing to a race recently emancipated, a race that, through many generations, had been held in slavery, all the civil rights that the superior race enjoy . . . At the time when they were incorporated into the Constitution, it required little knowledge of human nature to anticipate that those who had long been regarded as an inferior and subject race would, when suddenly raised to the rank of citizenship, be looked upon with jealousy and positive dislike, and that State laws might be enacted or enforced to perpetuate the distinctions that had before existed, discriminations against them had been habitual.
Strong then gave his view on white America’s obligations. “The colored race, as a race, was abject and ignorant, and in that condition [slavery] was unfitted to command the respect of those who had superior intelligence. Their training had left them mere children, and, as such, they needed the protection which a wise government extend to those who are unable to protect themselves.”
From here, Strong could have gone in either direction—that the West Virginia statute was in violation of the Fourteenth Amendment, or that it was reasonable given black jurors’ inability to make the judgments necessary to arrive at a fair verdict. He chose the first.
The very fact that colored people are singled out and expressly denied by a statute all right to participate in the administration of the law as jurors because of their color, though they are citizens and may be in other respects fully qualified, is practically a brand upon them affixed by the law, an assertion of their inferiority, and a stimulant to that race prejudice which is an impediment to securing to individuals of the race that equal justice which the law aims to secure to all others.
Taylor Strauder’s conviction was therefore overturned.
Justices Field and Clifford dissented on the grounds that the Fourteenth Amendment’s protections applied only to “civil rights,” not “political rights,” to which, according to Field and Clifford, jury composition belonged. Political rights, Field insisted, were the province of state governments alone. Whether or not there was an objective dividing point in the hazy distinction between civil and political rights would be pivotal in the coming decades.
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Now that Strauder was again back on their hands, West Virginia officials were left with the question of what to do with him. Fanny Green, the only prosecution witness who could testify directly to the crime, was now seventeen and was certain to be attacked ferociously by Blackburn Dovener if she were called as witness. Dovener had protested from the first that the girl had been coached, and he was almost certainly correct.
Even if the state did opt for a retrial, the case had to clear hurdles in federal circuit court, where Dovener petitioned to have Strauder released on a writ of habeas corpus, or at least freed on bail while Ohio County officials decided whether to retry him. That process dragged on for a year, until finally, on April 30, 1881, Judge J. J. Jackson ordered Strauder freed. But even that did not end the matter. As he walked out of the courtroom, he was once again arrested. West Virginia had decided to try him again after all.
Strauder’s reaction was hardly one of surprise. As he stepped off the train with his captor,
looking very well . . . dressed neatly and tastefully,” he said, “Yes sir, I am here again, and under arrest, but this don’t amount to anything. There wasn’t any use in arresting me no how, as I intended to come right here as soon as ever I got free. Did it surprise me any? Not a bit. I ’spected it all the time. I knew of the intention of the parties here shortly after they made the move. Do I feel uneasy? Not a bit. The trouble has all been gone over once, and I don’t think I should have to use the same gauntlet again. I feel sure that I shall be free in a few days.15
And so he was. Three days later, he was taken before a justice of the peace and discharged.
The following year, Strauder got married again, this time to Minnie Johnson, a woman, possibly white, he had met while he was in jail. Minnie Johnson died three years later—of natural causes—while Strauder seems to have been away, on the job as a riverboat carpenter. Taylor Strauder then slipped from public view.
For Blackburn Dovener, it was the reverse. Regardless of where one stood on the particulars of the case, Strauder v. West Virginia was a legal triumph. Dovener became one of his state’s most sought-after attorneys. Just two years after he secured Strauder’s final release, Dovener was elected to the West Virginia state legislature, and in 1894 to Congress, representing West Virginia’s First District, where he would serve for six terms.
But Dovener was not yet through with Taylor Strauder. In April 1898, with Dovener now a respected national figure, his erstwhile client was back in the news.
Taylor Strauder, known as Andrew E. Strauder, shot and probably fatally wounded Ida Houston, his white sister-in-law, tonight. She in turn shot him in the forehead, neck and shoulder, and he may die. Strauder was separated from his wife, Katherine Strauder, a few months ago, she refusing to live with him when she heard he had murdered his first wife in Wheeling. He demanded admittance to her home, at 5 Arthur Street tonight, was refused and then forced the door in. He fired two shots at Mrs. Strauder, neither taking effect and the Houston woman then rushed to a trunk and secured a revolver. Just as she was about to fire, Strauder fired three times at her, one bullet entering the abdomen. The wounded woman emptied her revolver at Strauder, three shots taking effect. The life of the woman is almost despaired of, and physicians fear Strauder’s wounds will end in death.16
The article also noted that Strauder, who had actually been married three times, was an extremely jealous man who suspected his wife of infidelity.
Word of Strauder’s arrest and imminent death rekindled interest in his earlier trials. Dovener, by now reluctant for the public to be reminded that, because of his efforts, a murderer had gone free, granted an exclusive interview to the Wheeling Daily Intelligencer, in which he attempted to put the best possible face on the affair. He concluded, “As a result of this long fight against the discrimination on colored men, the legislature of our state amended the jury law by striking out the word ‘white,’ and it, as amended, remains the law today.”17
In a final irony, Strauder did not die of his wounds, nor did Ida Houston. He was arrested, tried, convicted of attempted murder, and sentenced to prison. It was only then that Taylor Strauder disappeared permanently into history. Already in his sixties, he most likely died in jail, but there is no record of when or where it occurred, or where Strauder’s final remains are interred.
After twelve years in Congress, Blackburn Dovener was defeated for renomination in 1906. He lived for eight more years until his death at age seventy-two, and was buried in Arlington National Cemetery.