10

It didn’t need any pressure whatever to get Governor Okey L. Patteson of West Virginia to recognize the work that the Court of Last Resort was doing.

Robert Ballard Bailey was under sentence of death in the state prison at Moundsville, West Virginia. He was scheduled to have the dubious honor of being the first person executed in the new electric chair which had been installed when West Virginia changed the method of execution from hanging to electrocution.

Warden Orel J. Skeen had doubts about the guilt of Robert Bailey.

Not only were there some peculiar things in connection with the evidence in the case itself, but the prison grapevine beat an insistent tattoo about the prison. The grapevine insisted positively and absolutely that Robert Bailey was innocent.

Bailey also had what should have been one of the most convincing alibis in the world. The city police of Charleston, West Virginia, gave him that alibi.

At the exact moment when witnesses insisted that Robert Bailey was perpetrating the murder, the city police were trying to apprehend him on a charge of drunken driving.

The witnesses fixed the time of murder at only a few minutes after three-thirty in the afternoon. The police definitely fixed the time of pursuit at three-thirty in the afternoon. The police insisted that Robert Bailey was staggering drunk. The eyewitnesses to the murder said that the murderer, whom they identified as Robert Bailey, was cold sober. There could be no mistake about the Robert Bailey whom the police were chasing. Not only did the police recognize him but they riddled the back of his automobile with bullet holes, and when Bailey’s automobile was located it was perforated with the bullets which had been fired by the police.

However, Bailey had a head start on the police. He was driving on some rather tricky roads. He had the courage of desperation, and the happy-go-lucky willingness to take chances which is the result of having imbibed too much alcohol.

There were plenty of witnesses to identify Bailey as the drunken driver. These witnesses all knew Bailey. The witnesses who identified Bailey as the murderer were fewer in number and were strangers to him. It could well have been a case of mistaken identity.

Robert Bailey was a peculiar character. He seemed to have been born to be behind the eight ball. When he was sober he was quite all right, but occasionally he would get drunk, and then he would do peculiar things, crimes that had no rhyme or reason. He couldn’t explain why and neither could anyone else. He was just as apt as not to have a dozen or so drinks, then try to steal a wheelbarrow from a contracting job in plain sight of a watchful and hostile overseer.

He always got caught. There was no finesse about these crimes. By the time he’d sober up he’d find himself in jail faced with a charge so absolutely, utterly ridiculous that both prosecutor and judge would lose patience with him and decide they’d teach him a lesson. He had, therefore, served two previous terms in West Virginia penitentiary for crimes so foolish that it almost seemed as though Bailey liked it in the penitentiary and was trying to take a short cut to get back in whenever the law let him out.

The murder of which he was convicted was not like Bailey at all. Somebody who probably was known to a West Virginia housewife picked her up, apparently to give her a ride home. This was in broad daylight shortly before three-thirty in the afternoon.

At exactly three-thirty, a witness, who knew the woman in question, saw her riding in an automobile with a man. She identified the man from a quick glimpse as being Robert Bailey. She was very positive about it being three-thirty. She had a certain personal reason for being conscious of the time, and at the exact moment she had seen the couple in the automobile she had been looking at the clock on a public building, a clock which was one hundred per cent accurate and which showed the hour to be exactly three-thirty P.M.

Later on, farther up the road, a motorist who was following a car saw the legs of a woman protruding from the car. A little farther on the woman either fell or was pushed from the automobile, which was going rather slowly.

The automobile kept on going. The motorist stopped to give aid, and a bystander, who had been walking along the road, also stopped to help.

At about this time a car came along the road from the opposite direction, going back toward the city, and a man stopped and got out. The bystanders asked him if he would take the woman to the hospital or to her home, and he said he would do so, that he knew who she was and would be glad to do what he could.

The man who had been following the automobile was convinced that this was the same car from which the woman had been thrown. When he looked at the back of the car as it moved away it looked familiar to him, and from that he was satisfied that this was the same car.

He identified the driver of that car as Robert Bailey.

He insisted, however, that Bailey was sober; that his speech was perfectly normal, that he smelled no liquor on his breath, that Bailey was able to help him load the woman in the automobile, that his co-ordination was perfect, that he engaged in the very delicate and tricky task of helping to get the rather heavy woman lifted from the road and into the front seat of the automobile.

At that exact moment municipal police insist that Robert Bailey was drunk, and Bailey admits he was. His associates who were with him say he was drunk, and other reputable witnesses say he was staggering drunk; that he was, moreover, at a point some miles removed from the scene of the crime.

The motorist who had identified the murderer as Robert Bailey fixed the time with definite certainty because he was on his way home from work and he knew exactly when he had left the job—shortly after three-thirty P.M.

No matter how you looked at it, it was a thoroughly cockeyed case.

And Robert Bailey was sentenced to be electrocuted.

Bob Bailey, always noted for doing the wrong thing at the wrong time, in the worst possible manner, awakened from the drunken sleep in which he plunged on his return home. He had a recollection of having been pursued by the police and of having been shot at. He went out and looked at his automobile, and, sure enough, found that it was perforated with bullet holes. He knew he was in a jam. Thereupon, running true to form, he did the worst possible-thing. He grabbed his wife and child and ran away, waiting for things to blow over. He insists that he knew nothing whatever about any murder charge, but only knew he had been quite drunk, that he had fled from the pursuing officers, that he was a two-time loser, and that if they caught up with him things would go hard with him.

On the other hand, the newspapers in Charleston saw in the case a marvelous opportunity for editorial comment. Here was a ne’er-do-well two-time loser who had run afoul of the law on various and sundry occasions, who had received clemency at times, who had failed to respond to treatment, who was definitely not an asset to the community. Apparently he had finally culminated his criminal career by committing a murder.

The newspapers went to town.

Bailey, hiding in an isolated district in Florida, was, he insists, ignorant of all this hullabaloo. According to his story he was merely waiting for things to blow over.

Things didn’t blow over. The wind blew, but it blew the flames of public indignation into a fever heat of prejudice.

Eventually Bailey was located. He was arrested and, according to his story, that was the first he knew of any murder charge. No one believed him. He was brought back, prosecuted, convicted of murder in the first degree, and sentenced to death by a judge who promptly sat down and wrote a letter to the Governor asking him at least to commute the sentence.

All in all it was quite a case.

Bailey perfected an appeal and the higher court turned him down.

Warden Orel J. Skeen, who has the courage of his convictions, who is a firm upstanding Southern gentleman, who believes in a square deal for all of the inmates in his institution, couldn’t believe that Bailey was guilty.

He had come to know Bailey pretty well while he was confined in the institution. He didn’t think Bailey was of the type to commit this crime, and the prison grapevine told him Bailey was innocent. Warden Skeen was increasingly reluctant to strap Bailey in the electric chair and pull the switch which turned on the current, yet there was no other alternative.

Then Skeen thought of Tom Smith.

Tom Smith, it will be remembered, had been the warden of the Washington State Penitentiary at Walla Walla, and as such had come to know all of the wardens pretty well. These wardens are all members of the Prison Association and meet at conventions once each year.

When Tom Smith left his position as warden to engage in work for the Court of Last Resort there was quite a bit of comment among the various wardens; and Skeen, who had known Tom Smith personally and liked him, recalling his new activities, picked up a telephone and put through a call for him no matter in what part of the United States he might happen to be.

As it happened, Tom Smith, Dr. LeMoyne Snyder, Alex Gregory and I were in Lansing, Michigan, working on the Vance Hardy case.

Tom Smith received Skeen’s telephone call there on a Thursday afternoon, and, after a brief conference, agreed to get in touch with Skeen the next day. Robert Bailey was scheduled to die in the electric chair during the early part of the following week.

Smith, Gregory and I drove all night, arriving in Moundsville, where the penitentiary is located, in the very, very small hours of the morning.

Harry Steeger caught a night plane out of New York and was there by morning to meet us.

We talked with Warden Skeen and then we went to talk with Robert Bailey.

Bailey was thin, emaciated, and apprehensive. The thought of the electric chair loomed large in his mind. He couldn’t hold food on his stomach. He couldn’t sleep. The man was on the point of becoming a nervous wreck.

Gregory, however, felt that there was a strong possibility Bailey could take a polygraph test, and that his responses could give us a valuable clue. Bailey was only too anxious to try it. He was anxious for anything, any last chance, any straw at which he could clutch.

I sat in the room with Gregory while he put Bailey through a polygraph test.

The test indicated that Bailey was innocent of the crime of which he had been convicted.

Because of Bailey’s nervous condition, however, because of the seriousness of the situation, Gregory wanted to be sure. He asked me to leave the room and spent a long session during the afternoon giving Bailey test after test.

At the end of that time Gregory pronounced that in his opinion Robert Bailey had no guilty knowledge of the murder.

That presented us with quite a question.

It was a long drive over to the state capitol, but we arose early Saturday morning and drove down there so we could interview the judge who had tried Bailey’s case.

The judge was in a peculiar position. He didn’t want to talk for publication, but, reading between the lines of his conversation, we got a pretty good picture of the situation and how the judge felt about the case. He also gave us a carbon copy of the letter he had sent to Governor Patteson.

It was then just before noon on Saturday. The days were beginning to get hot, and we knew that everyone who could arrange to do so had planned to leave the heat of the city and go out to the country. It would be impossible to do anything officially before Monday morning. But Robert Bailey was scheduled to die during the first part of the following week. Steeger had to be in New York on Monday morning. We had left a red-hot situation in Michigan, and Tom Smith, Alex Gregory and I had to be back in Lansing at least by Monday morning.

Orel Skeen called up Governor Patteson’s secretary, Rosalind Funk, and explained the situation to her.

Rosalind Funk, as I was to learn later, had been the Governor’s secretary for some time. She knew what was important and what wasn’t, and she knew how Governor Patteson felt about matters.

While Orel Skeen was talking with Mrs. Funk, I felt the chances of our seeing Governor Patteson before Monday were about one in a thousand, and we had to be in Michigan Monday morning.

Warden Skeen hung up.

“What did she say?” I asked.

“She said it was important enough to warrant her getting in touch with the Governor personally. We’re to call back in ten minutes.”

Ten minutes later Mrs. Funk relayed what the Governor had said. It came as a great surprise to me.

Governor Patteson had planned a week-end trip, but Mrs. Funk conveyed his words to us as she had taken them down in shorthand. “These gentlemen are prominent men. Their time is valuable. They’re devoting that time gratuitously to the interests of justice. I think Robert Bailey is guilty. I’ve examined the transcript in the case, and have seen no reason thus far for taking any action. I believe it’s a case where the law should take its course. But if these gentlemen are willing to sacrifice their week end on this case, I’m willing to sacrifice my week end. I’ll meet them at my office at the State Capitol at one-thirty this afternoon.”

Governor Patteson is one official who takes the responsibilities of his office seriously, and who tries to be fair regardless of personal or political considerations. He extended us the most courteous treatment, and had the most open mind of any official we had so far encountered. He was dignified in his official position, yet managed to extend to us the hospitality of his state so that I always picture West Virginia as one of the most truly friendly states I have ever visited.

We filed up to the Governor’s office at one-thirty. The electrical current in the building had been shut off and the air conditioners weren’t working. It was hot and oppressive in the Governor’s office, but he sat in there and listened to what we had to say. He asked questions. We were there from one-thirty until nearly five o’clock; then Governor Patteson called in the press and announced that under the circumstances he had decided to grant a reprieve in the Bailey case, that we had signified our desire to make a further investigation, that he was going to assign a member of the West Virginia State Police to be with us at all times so that our investigation would be clothed with official authority. Bailey was not going to be executed as long as there was any doubt as to his guilt, and we were going to be given every opportunity to complete our investigation.

It is not possible at this time to give all of the ramifications of the investigation in the Bailey case. The case is still open. But I mention these matters in order to show the caliber of the chief executive of West Virginia. It was a refreshing experience.

We embarked upon an investigation of the Bailey case, and in many respects it was one of our most exasperating cases. The facts did not fit, and it’s impossible to put them together. For instance, the witness who, sometime after Bailey’s arrest, identified Bailey as being the man who was driving the car from which the victim was pushed, was equally positive in his assertion that the car Bailey was undoubtedly driving that day was not the car that the witness saw being driven by the murderer.

The woman victim in the case, picked up at about three-forty-five outside of Charleston by this person who had been identified by the witnesses as Bailey, with the promise that she would be taken home or to a hospital, apparently never was taken to her home and certainly not to a hospital. She was found shortly before midnight lying by the side of the street in Charleston, a place where it was almost impossible for her to have lain undiscovered for more than an outside limit of thirty minutes. Her neck had been broken. She was still alive. She was taken to a hospital and there died.

She is reported to have stated to members of her family that the man who was responsible for her injuries was “Bob the glasscutter.” Robert Bailey was a glazier.

There were various bits of contradictory evidence. One of the woman’s shoes was found at the place where she had either fallen or been thrown from the automobile. Yet when the victim was found in the alley late that night, the driver of the ambulance is positive that she was wearing both shoes. At almost every point in the case we were confronted with contradictory evidence.

At the end we became convinced that the evidence in the case presented a cockeyed picture. It didn’t establish Bailey’s guilt beyond a reasonable doubt. We picked up the prosecutor in the case and went to Governor Patteson to make a report showing exactly what we had uncovered.

Governor Patteson heard that report and promptly commuted the sentence of Robert Bailey to life imprisonment, stating that in the present condition of the evidence he was far from satisfied with the verdict, that there was a reasonable doubt to say the least as to Bailey’s guilt, and he called on the state police to institute a new investigation of the murder right from the beginning.

Presumably that investigation is being made at the present time and therefore there are certain aspects of the case which should not be discussed. However, from a practical standpoint, our investigation just about covered every available fact, and until new facts are brought to light by the course of time, and through uncovering new witnesses, it is possible that the case of Robert Bailey will remain in statu quo.

There was one rather interesting sidelight in the Bailey case. It will be remembered that when we first contacted Governor Patteson he was pretty well convinced that the law should take its course. Warden Skeen, marshaling his reasons for asking us to come in and make an investigation, mentioned among other things the fact that the prison grapevine stated Bailey was innocent. The Governor was skeptical of the accuracy of this grapevine.

Warden Skeen said, “Don’t ever underestimate that grapevine, Governor. I don’t know how those men get the information they have. I don’t know how they reach the conclusions they do. They have unlimited time, of course, in which to think, and they’ll digest and redigest every bit of information they get.”

The Governor’s smile was good-naturedly skeptical.

“Well,” Skeen said, “let me give you a specific instance. You remember when you rang me up and asked me if I would accept the position as warden?”

The Governor nodded.

“If it’s a fair question,” Skeen went on, “how long before you placed that telephone call had you decided that I might make a good warden?”

“About two hours,” the Governor said.

Skeen nodded. (Apparently there had been a political situation where two factions each had been plugging for one individual as warden, and Skeen had not only been a dark horse but a last-minute choice.)

“When I assumed my position as warden of the penitentiary,” Skeen said, “I found that they had been making book in the prison on the next warden, and that as early as ten days prior to the date you called me up, the betting had been two to one that I’d be the next warden.”

“Why, I hadn’t even thought of you in that connection at that time,” Governor Patteson said.

Skeen smiled. “That’s the point I’m trying to make.”

The Governor thought that over. The smile of good-natured skepticism left his face.

Veteran wardens never discount the prison grapevine. Nor do they discount that telepathic something which is a definite intangibility, yet which is of major importance in the administration of prisons; that is, the peculiar feeling of tension or lack of tension which one gets as soon as one enters the walls.

Sometimes things are rolling along smoothly. It’s impossible to tell what gives this impression. There is simply a lack of tension. Perhaps it’s in the way the men move. Perhaps it’s in their walk, the swing of their hands, the way they hold their heads. No one knows. No one has ever been able to classify it.

But at other times there will be the feeling of tension. An experienced prison man stepping inside the walls knows instantly that all is not well. Men may be moving around as usual, but there’s a seething cauldron of trouble boiling a devil’s brew beneath the surface. You can feel it. It’s there, it’s a very definite factor.

There is, of course, some sort of telepathic emotional force which permeates any body of men who are held so closely confined. Let something important happen in a prison and the word seems to spread instantaneously and without the need of oral communication.

Men in confinement are subject to peculiar emotional stresses, and when these stresses get bottled up too long without any outlet one never knows what is going to happen.

I remember standing on a prison wall with the warden of one of the penitentiaries, watching the men down in the enclosed yard batting baseballs around. It was a big yard but there were times when the baseballs banged against the walls.

“Rather tough on baseballs,” I said.

“They cost a lot of money,” the warden admitted, and then went on, “But it’s one of the best investments we can make in the prison. As long as we have the men down there taking out their animal spirits in good healthful exercise, out in the sunlight, we don’t need to worry about some of the other problems quite so much. The more we can keep them outside, the more we can keep them engaged in athletic sports, the more we can keep them interested in good healthful competition, the better off we are.”

Opposed to that are other prisons which are classified as “high security units,” where men are constantly watched, where no spontaneity is permitted, where exercise is regimented almost as rigorously as the rules of confinement. One never knows when some untoward minor occurrence in a prison of that sort is going to transform the inmates in a split fraction of a second from automatons into yelling, bloodthirsty devils, grabbing the nearest guards to serve as hostages, wrecking everything they can get their hands on, starting on an orgy of destruction which must burn itself out emotionally before the men can be brought back to any semblance of control.

Those prison riots are terrible things. Officials who have been through a full-fledged prison riot are never quite the same afterward.

A riot is mass hysteria. Just as a woman may give way to hysterics, so does the collective body of prison inmates become a wildly yelling group of emotional maniacs. They don’t know what they’re going to do. No one knows. They’re savage animals until the twisted, warped emotions burn themselves out.

Men who have been repressed, subdued, regimented, punished, build up an emotional tension. Wise prison officials try to furnish some safety valve, some channel of escape so that the tension never reaches the point of explosion.

That’s the reason for prison clubs, debating societies, athletic contests, prison newspapers.

The “tighter” the prison, the more inflexible the rules, the more strict the discipline, the more chance there is for riot if any fortuitous circumstance ever gives the men a chance.

It only needs a little thing, perhaps a blow, a wild demoniacal yell, and then as though things had been rehearsed to a split second of timing, taut nerves give way all at once to spontaneous pandemonium.

Escapes may be planned and rehearsed. Riots are as spontaneous as a dust explosion in a factory.

Recently in visiting one of the “high security” Eastern prisons, I found that the warden had gone back and examined records over the years on the three riots the prison had experienced. They had all taken place on the third Friday in the month.

Why?

No one knows.