11

By this time our work was attracting national attention and letters were pouring in.

Henry Franklin, a young vigorous attorney of Peterborough, New Hampshire, who had had an FBI training, and also parole experience, wrote in with a practical suggestion. He wanted to organize an auxiliary committee of lawyers, who had been connected with the Federal Bureau of Investigation, to help us in our work.

We told him to go ahead, to start out with a small, compact committee of men whom he knew and had worked with.

So now we have a subcommittee of able attorneys who are also familiar with investigative work. They are:

E. Cage Brewer, Jr.

Brewer & Brewer

Box 306

Clarksdale, Mississippi

Philip V. Christenson

Christenson & Christenson

1st Security Bank Building

Provo, Utah

John C. Firmin

322 Niles Building

Findlay, Ohio

Henry H. Franklin

Blodgett & Franklin

Savings Bank Building

Peterborough, New Hampshire

Thomas E. Heffernan

1415 Coast Highway

Corona del Mar, California

Marshall W. Houts

311 Waverly Drive

Tulsa 4, Oklahoma

W. Logan Huiskamp

Boyd, Walker, Huiskamp & Concannon

609 Blondeau Street

Keokuk, Iowa

Paul F. Kelly

333 Pine Street

San Francisco 4, California

Donald A. Rosen

407 Van Nuys Building

210 W. 7th Street

Los Angeles 14, California

I have met most of these men personally. They are alert, vigorous young men who know their law, and understand how to investigate a crime.

One thing is certain. The FBI, under J. Edgar Hoover, has reached a high-water mark in the training of the highest class of investigators this country can produce. For the most part a man who has served the FBI is absolutely tops.

We have used this “Franklin Committee” (Henry Franklin is its chairman) in several cases. The results have demonstrated its great value, and it has greatly increased our efficiency.

Moreover, it is to be remembered that these are, for the most part, young lawyers who have not as yet achieved financial independence. Their time is their chief asset. Therefore an offer on the part of these men to donate their time means a major sacrifice.

Some of these men haven’t been called on yet, because we haven’t had any cases in their part of the country which we felt could be handled to advantage.

Three of them, however, have been called on in cases of major importance, cases which haven’t yet been completed so we can’t report on them at this time. These men have given a great measure of their time not only willingly but eagerly.

Then there are the readers themselves.

Thousands of these readers have sent in letters of encouragement, suggestions and comments. Some of them have gone further. One of them, a very busy man who is in the high income bracket, consistently devotes a part of his time to this work, following our investigations, calling on governors, trying to interest other citizens and getting them to watch the actions of their governors in connection with the cases we publicize.

Nowadays, whenever members of our group travel, they find men who seek them out to tell them how important they feel this work is and how much they want to do to support it.

All of this means a great deal. It means the public is waking up.

However, this awakening public interest carries with it a whole new set of responsibilities and obligations.

For instance, the number of new cases has simply engulfed us.

Tom Smith, who had been driving day and night trying to keep pace with the investigative work, decided that it was a job calling for more vitality than he had to give. He reluctantly tendered his resignation.

Looking around for another investigator we decided that Marshall Houts, with his legal training, his background of investigative experience and training in the FBI, would be an ideal person, and, after some consideration, Marshall Houts decided to come with the Court of Last Resort on a full-time basis.

It would be interesting to tackle the vast pile of material that has accumulated in the Court of Last Resort and figure out how many man-hours have gone into separating wheat from chaff in relation to the number of man-hours that have been spent in trying to liberate individuals we feel have been wrongfully convicted.

This doesn’t necessarily mean that all of these cases are what is known in the vernacular as “bum beefs.” Some of them are, some aren’t. All too frequently we hear some story of an injustice which makes our blood boil with indignation. Weeks later, after we have spent time and money on an investigation, we find that the prisoner lied to us about certain phases of the case and withheld information about others. That, of course, human nature being what it is, is to be expected. But there is not nearly as much of this as we had anticipated. Prisoners seem in the aggregate to be far more ethical in such matters than any of us had expected.

When we first discussed the program with penologists they predicted that every prisoner who wanted his freedom, and all of them do, having everything to gain and nothing to lose by appealing to us, would appeal to us in the most heartrending terms possible.

Actually it is interesting to note there is a sense of honor among these men. Quite frequently we receive letters from prison inmates commending us for the job we are doing, suggesting that we investigate the case of some other prisoner, but taking pains to tell us that they themselves are not material for the Court of Last Resort, that in their cases the conviction was justified.

But merely because we find a case where we are satisfied a man has been wrongfully convicted doesn’t mean we can tell the public about that case. There are some cases where the possibility of error is so apparent we go ahead on the original facts. But whenever possible, we try to conserve our energies for those cases where there is some positive fact indicating the innocence of the defendant. This doesn’t necessarily mean a new fact, it means something that is a definite factual indication of innocence.

It is no good to say, for instance, that John Doe was identified as being the person who perpetrated a crime, that he tells us that the identification was erroneous and that we have decided there are so many indications this was the case that we feel John Doe should be liberated.

We have dozens of such cases. They represent probably the most puzzling and exasperating problem in the whole field of criminal justice. It is in the field of eye-witness identification rather than in the field of circumstantial evidence that the most tragic injustices occur.

But in the case of John Doe, unless there is something we can do to prove there was a mistake in identification, our hands are bound. The jury originally had all of the evidence before it. It had the advantage of listening to the people on the witness stand and of forming its own conclusion as to whether those people were or were not telling the truth, whether they were or were not mistaken. For us to come along at a later date and suggest that John Doe be released simply because we do not agree with the verdict of the jury would weaken our program and expose us to ridicule.

John Doe, quite naturally, sees this problem from a different viewpoint. He is innocent. He was wrongfully convicted. He is serving life imprisonment for a crime he didn’t commit. It is only natural that he should feel his case should receive our consideration, someone’s consideration, everyone’s consideration.

Unfortunately the person who makes the sort of identification which should be entitled to the greatest weight is often made to cut a sorry figure in the courtroom.

That person is sincere and honest. He says, “The light was poor. I had only a fleeting glimpse of my assailant. I was excited at the time. I think that this defendant is the person who held me up. His appearance is in every way similar to that of the culprit.”

The attorney for the defense pounces upon this unhappy witness when it comes time for cross-examination. “It isn’t what you think that counts,” he yells, “it’s what you know! Are you willing to swear that the defendant was the same identical man who held you up?”

“I think he is the same man.”

“Do you know he’s the same man?”

“I think that he is, but I can’t be absolutely positive.”

“Then there is a doubt in your mind, perhaps a rather nebulous doubt, but nevertheless a doubt?”

“Well, if you want to put it that way. I think he’s the man. That’s the best I can do.”

And so the attorney for the defense smiles at the jury and says, “Well, gentlemen, you have taken an oath to acquit this defendant if there is a reasonable doubt in your mind as to his guilt. Now here’s the complaining witness in the case who admits there’s a doubt in his own mind. You can’t expect him to remove a doubt from your mind while there’s a doubt in his mind.”

On the other hand, some person who has made up his mind he’s not going to be trapped on cross-examination, that he isn’t going to let any smart lawyer get the best of him, sits on the witness stand with tight-lipped determination and says, “I know it was poor light. I may have been excited at the time, but I saw my assailant and that’s the man—the man sitting right there next to you—the defendant in the case. He’s the man.”

How frequently does this happen?

No one knows.

Police know that many, many times they get descriptions from victims of the assailant, and when the assailant is finally captured and the crime is definitely pinned on him, it is found that the description given by the victim was absurdly erroneous.

Many, many times there are erroneous identifications which only the police know about. They pick up some person for questioning. They don’t have very much against him. They invite the victims of recent stick-ups to “take a look.”

Suppose one, or perhaps more, of the victims identifies this man. Then another man is picked up and he has some of the loot in his possession, and again the same victims identify this new suspect. Suspect number one is turned loose. He gets out of there fast. Suspect number two doesn’t know there had ever been another identification. Quite naturally, the police don’t tell the lawyer for the defendant, and the witnesses, now convinced that they are positive, don’t say a word.

Sometimes it even works the other way.

In the Boggie case the police picked up the man who seemed to be guilty. Three witnesses identified him. Then it seemed the man had an alibi so the police turned him loose. The witnesses became firmly convinced that they must have been mistaken. The man had an alibi, didn’t he?

Later on police picked up Boggie and felt they had a good case against him. After some hesitancy the witnesses identified Boggie, who it will be remembered, turned out to be innocent.

I have had a professional criminal, whose confidence I had won, tell me that two or three times he had found himself confronted by persons whom he had robbed, and that they failed to identify him. On the other hand, another person positively identified him as being the culprit in a case with which he had nothing to do.

There is one other fruitful source of mistaken identification.

Let us suppose that a prominent citizen is held up on the streets of one of the big cities in the United States. He goes to the police and reports the holdup.

The police want to show him that they are on the job. They ask him for a description of the man. The citizen was emotionally upset at the time. He was probably frightened. The light was far from good. He is probably still under an emotional tension when he is at police headquarters.

“How big was he? How tall was he?” the police ask.

The citizen searches his mind.

“About the same as that fellow over there?” the officer asks, pointing to one of the detectives.

“No, a little smaller.”

“About like that other fellow?”

“Something like him.”

“All right. Five feet eight inches,” the officer says. “Now how about weight? About like this fellow?”

“No, more like that other chap.”

“Weight a hundred and sixty-five.”

Then they take the citizen into a rogues’ gallery where they bring out a series of photographs, where they consult charts labeled Modus Operandi, etc.

They begin to show the citizen pictures.

About that time one of the officers says, “Say, I’ve got an idea. Richard Roe was just released from San Quentin about two weeks ago, and this is exactly the kind of a job that he’d pull. It’s just the way he works.”

“By George, that’s right,” the other man exclaims. “Say, now, look here, I think we’ve got this thing solved. I think we know your man.”

He goes to the file and brings out pictures of Richard Roe.

The man starts to shake his head.

“Now, wait a minute,” the officer warns. “Let’s not be hasty about this. You may have to change your opinion. I think if you could see this man you’d recognize him as the ringleader of the crowd. Remember that this picture was taken four or five years ago and that pictures sometimes don’t look too much like a man. Now just don’t go off on a tangent on this thing. Study that picture carefully. Look at it in a better light.”

The citizen keeps studying the picture. He doesn’t think it’s the man. The officer asks him why not, asks him to point out any particular where the picture doesn’t fit.

Eventually the citizen makes what is called a “partial identification.”

Then he goes home. Two weeks pass, then a grinning detective calls him on the phone. “I think we’ve got your man. Come on and you can identify him.”

The citizen drives up to headquarters. He is shown a shadow box with five men in it. The man in the middle is Richard Roe. The citizen immediately feels a flash of recognition. He’s seen that man before. His face is familiar. It was in connection with all that holdup business. He nods emphatically. “That’s the man.”

How much of that identification is predicated upon a recollection of the face of the man who held him up, and how much of it upon the fact that he studied the photograph so carefully that he became familiar with a photographic likeness?

You don’t know. The officers don’t know. No one knows. The witness himself doesn’t know.

The officers do know that dozens and dozens of times they have persons make positive identifications where in the light of subsequent events it conclusively appears that the identification was based entirely upon the previous study of a photograph. People make positive identifications of individuals who couldn’t by any stretch of the imagination have participated in the crime.

This field of mistaken identification is fruitful of miscarriages of justice. However, if juries are to be distrustful of circumstantial evidence and can’t depend on eyewitness evidence, what can they depend on?

The answer, of course, is that we must accept eyewitness evidence but must be careful to judge the intellectual integrity of the person making an identification.

For instance, the August 9th, 1952, issue of The Saturday Evening Post contained an article, “I Was Accused of a Sex Crime,” written by a businessman who had been driving home from work on an afternoon in April, 1950. He had been slowed down by a traffic jam, and a motorcycle patrolman crossed the avenue in front of him, headed for two girls who were at the side of the avenue waving and shouting.

It turned out that the motorcycle officer mistakenly believed that he had seen this man’s car pulling away from the curb, that the two young girls were appealing for help because a man had made an indecent exposure in front of them.

The two girls “identified” the businessman as the person who had made the indecent exposure.

The businessman was arrested. He was tried. He was convicted. Every effort he made to prove himself innocent was brushed aside. The authorities simply closed their minds because they were so convinced this was the culprit. When the man who actually was guilty wrote letters to the authorities telling them they had the wrong man, they promptly branded these letters fakes and went so far as to accuse the convicted man’s daughter of having written them. They arrested her. A handwriting “expert” testified that she had written these letters.

The whole tragedy of errors came to an end when the man who was guilty, harassed by his conscience, surrendered and finally was able to convince the reluctant authorities that he was the guilty person.

There are literally hundreds of cases where there seems to be good ground for believing the identification evidence was erroneous. We have corresponded with quite a few prison inmates who have been convicted of crimes of sexual violence, where I am very well satisfied that there was a wrong identification.

Unfortunately there are other factors which enter into an identification of this sort.

In the sex crime which was reported in The Saturday Evening Post, it appeared that the police had given the two young girls an opportunity to see the defendant and study his appearance before they were asked to identify him in a line-up. In other words, they made a “preliminary identification.”

Quite frequently a person who is to be placed in a line-up is shown to the witness who is to be asked to identify him, before the line-up, usually without the knowledge of the suspect.

A few years ago there was a very interesting case in Detroit. A girl’s body was found lying on a city dump. She had been stabbed by a knife in the back. The course of the knife wounds had been upward, rather than downward as one would have expected had the assailant been pursuing her and stabbing with the knife.

Police were baffled. However, they finally secured a tip that a young man, who was operating a near-by service station that night, had been seen with a knife.

By that time the police were rather desperate and they ran down this clue for all it was worth. They located the knife. They apprehended the man and finally secured a confession.

The man was tried for first-degree murder. The attorney who was representing him was puzzled by the fact that in two respects the man’s confession did not match the physical facts in the case. For one thing, if the man’s confession had been the truth, the course of the knife wounds would have been down rather than up.

It was a small point, the type of point which a prosecutor could sneeringly refer to as a “technicality,” a “last desperate straw,” at which a guilty defendant was vainly clutching in an ecstasy of desperation.

The jury apparently had but scant sympathy for the defendant and he was on his way to a conviction for first-degree murder when it happened that, in running down another crime, the police stumbled on the purse that had belonged to the dead girl. Since this purse was in the possession of a person who quite evidently had been perpetrating a series of crimes, the police made further search and found a knife which more nearly matched the stab wounds in the girl’s body than the knife possessed by the service station operator.

The upshot of it was that the judge had to interrupt the deliberations of the jury to explain that the real culprit had been apprehended, and that the man who was being tried was actually innocent of the crime, despite the fact that his confession had been obtained.

In cases of this sort there is a mistaken tendency to blame the prosecuting attorney simply because he is presenting the case the police have worked up.

There are, of course, prosecutors who take an unfair advantage just as there are defense attorneys who shamelessly try every trick in the book.

In some jurisdictions the judges really control the presentation of cases and the attorneys are relegated to a more secondary position. In most of our state courts the judges sit back as umpires or referees and the attorneys handle the cases, the prosecutors trying to get the jurors to convict, quite frequently seeking to arouse prejudice against the defendant by sneering sarcasm, by thunderous denunciation, while the defense attorneys try to arouse sympathy by such devices as the aged mother, the weeping wife and the innocent children who must not be left “fatherless.”

Most people lose sight of the fact that it is the sworn duty of the prosecutor to present the case the police have made against the defendant. All too frequently when there has been an erroneous conviction the people blame the prosecutor instead of poor investigative technique.

In this Detroit case there had been a “free and voluntary” confession.

That, of course, is a disturbing factor. Some people do not have the mental stamina to hold out against hours of repeated questioning.

We ourselves had one very interesting case where there was an erroneous identification and where it was claimed there was a confession by a man who, as it turned out, was innocent. Actually this was probably not a complete confession but was a statement containing some facts which the police considered incriminating and which as it turned out were false.

This was in the case of Silas Rogers, who was recently pardoned by Governor John S. Battle of Virginia.

According to the story Rogers told us, he had made this statement because of police brutality. According to his story, the police had beaten him to a point where he hardly knew what he was saying.

However, there are other cases where it would seem that there is no actual physical violence, but where the mind of the suspect simply doesn’t have the stamina to keep contradicting assertions.

If we are to take away from the police the power to question a suspect, to confront him with the evidence against him, and ask him to try and explain it; if we deprive them of the opportunity to expose the attempts at explanation as falsehoods, and finally to trap the prisoner into such a position that he realizes further subterfuge is hopeless and he throws up his hands and says, “All right, I did it,” we are going to impair the efficiency of the police to such an extent that criminals will have a field day.

On the other hand, far too many confessions are obtained by physical violence; and there is the question of what, for want of a better name, I shall call “mental violence.”

There are ways of beating a person’s mind into submission just as effectively as his body can be beaten into submission.

We are, at the present time, investigating another case in which there was a “confession.” That is the strange case of Lefty Fowler in Oklahoma. Fowler was convicted of murdering Helen Beavers. The entire circumstances surrounding his conviction are such that it is difficult to believe he is guilty. It seems to us, in our judgment, that there was far better evidence against another suspect than against Lefty Fowler. For some reason, the investigation against this other suspect was abruptly dropped, and Fowler was apprehended. So far we have never been able to find any really significant circumstance that caused the authorities to concentrate on Fowler other than the fact that he knew the dead woman and had quit his job shortly after the murder.

Fowler confessed not once but three times. He insists that he was frightened into making these confessions. None of them really conforms to the physical facts or explains how the murder was committed. The first two confessions are so wide of the mark as to be almost absurd. The third confession eliminated some of the contradictory facts of the first two, but contains absurdities of its own. It was taken down in shorthand and winds up with this statement purporting to come from the lips of Fowler:

“Gentlemen, there is your confession, that’s what you wanted and it was a nice piece of work. I’m proud of you.… Will you shake hands with me. I am glad to know you.”

Alex Gregory has given Fowler a very careful examination with the polygraph and is absolutely convinced that Fowler did not kill Helen Beavers and has no guilty knowledge of her death.

It was rumored that there was another girl in the car with Helen Beavers at the time she was killed, and finally the investigators of the Court of Last Resort located this young woman.

Under questioning this woman told our investigator that she was with Helen Beavers at the time of the murder, that she herself managed to make an escape. She was obviously in abject terror for her own life. Her story was corroborated by certain physical facts. I feel certain that the authorities, using her testimony, could have convicted at least one of the two persons she says murdered Helen Beavers.

However, the authorities convicted Lefty Fowler. They are quite satisfied with the case the way it is.

We are far from satisfied.

The State Bar of Oklahoma asked me to attend their annual convention at Tulsa to explain the work of the Court of Last Resort. I did so, and following my talk it was quite generally agreed that if we had any case in Oklahoma the lawyers would investigate the facts.

The State Bar as a unit could not, because of the nature of its organization, act in individual cases, but we were assured that where it seemed a case had merit there would be plenty of volunteers to see that justice was done.

So when we had investigated the Fowler case and made the facts public, three of Oklahoma’s most prominent attorneys stepped forward and announced they were going to represent Lefty Fowler in filing a petition asking for a full pardon.

This committee of lawyers consists of Hicks Epton, president of the State Bar of Oklahoma; Floyd Rheams, one of the most prominent and influential members of the Tulsa Bar, and O. A. Brewer, generally conceded to be one of the most clever courtroom strategists in the state.

To secure the combined services of these outstanding attorneys a client would have to be a very wealthy individual. He could rest assured that his wealth had secured for him just about the best combination of legal brains available in the state.

But Lefty Fowler has no money at all. Yet, because the Oklahoma attorneys are interested in the cause of justice, Fowler finds himself on equal terms with the wealthiest oil magnate in the state.

Because the Fowler case is, as I write this, officially pending before the Pardon and Parole Board of the State of Oklahoma, and as there is some possibility the matter may still be pending at the time this book is published, I will skip many of the controversial details.

Quite naturally the action of the three representatives of the Oklahoma Bar, in coming to the rescue of a penniless prison inmate, caused widespread newspaper and editorial comment within the State of Oklahoma.

Thanks to that comment and questions asked the interested parties by enterprising newspaper reporters, some of the statements, which had been made to us by Fowler, and which were so weird and bizarre that we would have discounted them if it hadn’t been for Gregory’s polygraph examination, have now been substantiated.

For instance, Fowler told us that originally he had been arrested on the charge of being drunk. He had been sentenced, and was in jail serving that sentence when another man was thrown into the cell with him.

This man managed to smuggle a flask of whisky into the jail. He had it in his hip pocket. He seemed intoxicated and urged Fowler to drink with him.

According to the petition filed by the committee of attorneys with the Pardon and Parole Board, this person, who was committed under the name of Virgil Havens, made Lefty Fowler a proposition.

Let us quote from Fowler’s petition:

He (Virgil Havens) offered Lefty a drink which was refused. He next made Lefty a proposition. He had a lawyer coming down to get him out of jail and he would have his lawyer pay Lefty’s fine if Lefty would drive his car to Chickasha. He was still a little drunk and didn’t want to take a chance on driving it himself. Lefty agreed to this. A short time later, a man whom Havens introduced as his lawyer, entered the cell and secured the release of the two men. Lefty subsequently learned that this “lawyer” was … of the Oklahoma Crime Bureau.

Now it is significant that on the police judge’s docket, under the heading of “City of Waurika versus Virgil Havens” appears this statement:

This man was a secret detective out of Jake Sims’ office at Oklahoma City, who pulled a fake drunk to get in jail with Lefty Fowler to secure his release and plan a second arrest by … State Highway Patrol.

Now why did all this take place? Why all the cloak-and-dagger stuff? What did anyone expect to gain?

Fowler was in jail. If the authorities wanted to rearrest him for the murder of Helen Beavers, all they had to do was to go and arrest him. If they wanted him taken to Duncan, all they had to do was take him there.

But notice what Fowler claimed happened.

A cellmate, who was a member of the Oklahoma Crime Bureau, posed as a drunk purely for the purpose of getting Lefty Fowler to drive a car which would enable the State Highway Patrol to arrest him at a certain predetermined point.

Why?

Moreover, we find this law enforcement agency having a detective posing as an attorney, an attorney who was supposed to befriend Lefty Fowler by paying his fine.

Why?

It is, of course, a dangerous practice for an officer of the law to pose as an attorney for any purpose whatsoever.

Why was it necessary to have an “attorney” call on Lefty Fowler? Why was it necessary to have Lefty Fowler released and put into a situation which was quite obviously a frame-up so he could be rearrested?

Was all of this cloak-and-dagger stuff part of a third-degree, an attempt to terrify Fowler so that he would think his life was in danger?

According to Fowler’s petition:

Lefty and Havens got into Havens’ car. Lefty was driving and proceeded north on Highway 81 toward Duncan. Four miles south of Duncan,… in highway patrol car number 63, sirened Lefty to a stop. At this point, Havens jumped out of the car and yelled “run!!” What would have happened if Lefty had run is pure speculation. Fowler has his own ideas and says that this incident had considerable influence on his subsequent actions.

The trooper who had made this arrest subsequently testified that the arrest was “on the investigation of murder,” although, according to Fowler’s petition, he further stated he had “stopped the car for reckless driving.” The trooper admitted under cross-examination that the car was not stolen, that he had never found out whom the car belonged to, and that he made no further investigation concerning the car, and that no charges other than murder were ever lodged against Fowler.

Now then, we come to a startling situation. The car apparently belonged to a relative of the prosecutor, and the car, with out-of-state license plates, had been furnished as part of an elaborate plot or scheme for the purpose of arranging for this second arrest.

What was the object of this second arrest? Why was it so carefully engineered? Whose idea was it?

The whole experience gave Fowler a mental picture which was far from reassuring when he came to face his questioners.

According to Fowler’s petition, one of these men entered the prison in civilian clothes, sat down in front of Fowler and told him that he was going to give him one more opportunity to make a confession. As Fowler looked at him, this man unbuttoned his coat, “pulled it open and placed his hand on a gun he was wearing.”

The officials deny the truth of many allegations in the petition filed on behalf of Fowler, but they don’t deny this elaborate rigmarole over the “stolen car.” Some of Fowler’s statements sound incredible to us, but nothing sounded more utterly incredible than this automobile setup—and the truth of this story so far as the main essentials are concerned now seems fairly well established.

It appears that the officer of the Highway Patrol who made the arrest understood that Fowler was actually being arrested on “the investigation of murder.” Was this officer told anything else?

We keep coming back to the questions. What was the purpose of all this rigmarole? What was anyone trying to accomplish by it? What did they hope to accomplish? Someone had thought out this elaborate scheme. What was behind it? What was the idea that person had in mind?

Now then, according to newspaper reports, when reporters called on the various officers and asked them about the allegations made in Fowler’s petition concerning the weird, bizarre circumstances in connection with this arrest, the persons readily admitted that Fowler’s release was engineered so Fowler could be rearrested in the car that had been furnished for this purpose.

It would certainly seem that justice has no right to resort to all of this cat-and-mouse type of thing. Justice should have dignity. Justice should use every scientific skill at its command to carry out its investigative work, but justice should never obtain the release of a suspect through the intervention of a detective impersonating a lawyer nor arrange to have the suspect drive a car with an out-of-state license to a predetermined point where he is to be stopped and then rearrested on a charge that is a fabrication.

If those officers of the State of Oklahoma had wanted to arrest Fowler for murder and take him to Duncan, all they had to do was to serve a warrant while Fowler was in jail and say, “We’re sorry, Fowler, but you’re now being arrested for the murder of Helen Beavers.” Or they could simply have said, “We have reason to believe that you may know something about the murder of Helen Beavers and we’re going to take you to Duncan, Oklahoma, and hold you for investigation.—You can, of course, apply for habeas corpus if you want to, in which event we’ll file a murder charge against you, and let it go at that.”

That is being done every day of the week in every state in the union.

Why all the run-around?

It would appear that the leading newspapers in the State of Oklahoma feel the same way about it.

The following is a quotation in part from the Tulsa Tribune:

We trust the pardon and parole board will devote a special meeting, as Chairman Tom Phillips suggested yesterday, to the “Lefty” Fowler case. There seem to be several places to take hold of this subject, now that it has been reopened for a second time by Argosy Magazine’s Court of Last Resort and three prominent Oklahoma lawyers, including the president of the state bar association.

Fowler is a former Duncan policeman who confessed five years ago to the murder of a woman employed there as a waitress. He was sentenced to life imprisonment. He has since maintained he was beaten and confessed to save further torture. Erle Stanley Gardner, the author and Court of Last Resort conductor, believes him and apparently has convinced the lawyers who are co-operating with him in the appeal for a pardon.

This would stand as a clash of opinions between Gardner and the others and the prosecutor, judge and jury at the trial if it were not for the presence of a number of other alleged facts.…

A fourth point can stand a lot of amplification, though the elementary facts are admitted readily by those who should know best about them. Fowler was subjected to a story-book detective experience while in jail in Waurika. A pseudo drunk was put in the cell with him by state crime bureau operators. A pseudo lawyer gained their release and then a highway patrolman stopped them between Waurika and Chickasha and charged them with car theft. Their car hadn’t been stolen, but was loaned the operatives for the drama.…

This, we want to hear more about. If the object was to arrest Fowler so he couldn’t leave the state upon his release from his short jail sentence for drunkenness, why wasn’t he arrested on a new warrant while he was in the Waurika jail?…

Fowler made several confessions. The first confessions simply weren’t usable. They didn’t conform to the existing facts as the officers knew them and so they were not satisfied with them.

It is significant to note that the first confession starts out, “This statement made by me, E. L. (Lefty) Fowler, on this 25th day of March 1948, at the hour of five o’clock A.M.…”

Again, according to Fowler’s petition, “No one, however, attempted to deny the fact that the final statement was signed fourteen days after Fowler’s initial arrest or that during that period of time he was incarcerated in three different jails.…”

There are some things about the Lefty Fowler case which simply don’t make sense no matter how one looks at them.

Helen Beavers disappeared on the evening of January 23rd. Her disappearance remained a complete mystery until the following February 9th when a man opened the trunk of an automobile which had been parked in his back yard. The automobile had a flat tire and the man wanted to get out a jack.

He flung open the lid of the trunk and found himself confronted by the frozen, well-preserved body of Helen Beavers. The body was lying on its back, one knee elevated so that it enabled the trunk to be closed. The clothing was pulled well up so that the lower portion of the body was bare. Helen Beavers had been clubbed to death and there had been considerable bleeding.

The physical facts show that Helen Beavers was a chunky girl, weighing around a hundred and forty pounds. She had been killed by blows on the head. There were thirteen of these blows and, according to the testimony, any one of them would have killed her. The confession that the authorities finally used showed an admission by Fowler that he had hit Helen Beavers twice, apparently with his fist. He had “no memory” of hitting her with any weapon or hitting her more than twice.

A neighbor, some time after the murder, found a twelve-inch “Giant Western” wrench under his porch. It was covered with mud and leaves so he washed it with gasoline and then observed what he thought were hairs and bloodstains on the wrench, so he turned it over to the police.

The police sent the wrench to the FBI. The FBI found there was no blood on the wrench. They found some hairs on the wrench that were similar to Helen Beavers’ hair, but there was not sufficient similarity so that they could make an identification.

The police station at Duncan seems to have been operated on such a basis that the “disappearance” of evidence was not at all unusual. A number of wrenches had been seized in a burglary and placed in a drawer in the chief’s office for “safekeeping.” The wrenches all disappeared. It was the theory of the State that this particular “Giant Western” wrench was the murder weapon; that Lefty Fowler, as a police officer of Duncan, had access to the wrenches in the drawer in the chief’s office and had taken either this one or all of them.

This theory is full of holes.

According to Fowler’s final “confession” the murder was committed around five o’clock in the morning, on the spur of the moment, in a rage, over an argument about a whisky bottle.

Had he been carrying a twelve-inch wrench with him all during the night? Was it in his hand?

One doesn’t put a twelve-inch wrench casually in a pocket as one would carry a notebook or a gold pencil.

If the wrench had been used as a murder weapon and there were hairs on it, why wasn’t there blood on it?

No one could identify the wrench except by saying that it “looked like” one of the wrenches that had been there in the police station. Probably a million other wrenches “looked like” it.

In other words, it was impossible to prove that the wrench was the murder weapon. It was impossible to prove that it was one of those that had been in the police station. It was impossible to prove that Lefty Fowler had taken it, and it was impossible to prove it had ever been used to hit Helen Beavers or anyone else.

However, the most significant thing, and the thing which interests us mainly about the Fowler case, is that, after the body of Helen Beavers was discovered, the police checked back to the night of her disappearance and tried to find the men who had been with her on that fatal night.

They built up a good enough case against one suspect to put him in jail.

How good a case did the authorities have against this suspect?

The facts are, of course, within the exclusive knowledge of the authorities. Quite naturally they haven’t seen fit to confide in us. There are certain things, however, which we do know.

After Fowler’s conviction, one of the officials turned a ring over to Helen Beavers’ mother. He thought she might like it as a memento of her dead daughter. It was a ring that her daughter had been wearing, etc., etc., etc.

Quite apparently it was Helen Beavers’ ring.

Our investigators found a witness who said that she had seen Helen Beavers on the night of her death. That, as it happened, they had been comparing rings; that Helen Beavers’ ring was similar to her ring, and that it had been bent in a distinctive manner so as to fit Helen’s finger.

She identified this ring which had been given to Helen Beavers’ mother as being Helen Beavers’ ring, presumably a ring which she was wearing on the night of her murder.

How did the authorities get that ring?

Apparently the story is that, after Helen Beavers’ body was discovered, a young woman went to the authorities and said, in effect, “I secured this ring from a man who knew Helen Beavers. I got it from him before Helen Beavers’ body was discovered and I have reason to believe it’s Helen Beavers’ ring.”

According to the best information we can get, she gave the name of the person from whom she had secured this ring, and that person was the same individual the authorities were holding for investigation.

Some time after Fowler’s conviction, we learned that an hysterical, frightened woman had told the authorities that she had been an eyewitness to the murder of Helen Beavers; that she had been out in the car with Helen Beavers and two men; that one of the men had clubbed. Helen Beavers to death, and that both of them had lifted her body to put it in a place where it could be concealed and that this woman had taken advantage of that opportunity to run away.

Later on we learned that apparently she had pointed out to investigating officers the exact spot where Helen Beavers had been murdered, and it was within a few feet of the place where the body had been discovered.

We found this young woman. She is, quite naturally, in fear of her life. She told her story to our investigators.

It is, of course, difficult to know exactly what evidence the authorities had, but apparently they had a suspect in jail and could have introduced evidence that he had been with Helen Beavers on the night of her murder; that a ring, which a witness would identify as being that of Helen Beavers, had been found in his possession prior to the time Helen Beavers’ body was discovered; that a person who claimed to be an eyewitness had told the authorities and was presumably ready to testify that she had seen Helen Beavers clubbed by this man and the body dragged toward a place of concealment by this man and a companion.

Notwithstanding such a case, the authorities suddenly dropped the case against this man, released him from custody and concentrated on Lefty Fowler.

Why?

We don’t know.

Apparently from all of the information that has been divulged publicly there were just two reasons: One, Lefty Fowler had known Helen Beavers; two, he had quit his job about a week after the murder.

Now all that, of course, is something concerning which we have to conjecture. The authorities undoubtedly had some reason for what they did.

But here is the point: Suppose the jury trying Lefty Fowler had known these facts? What would that jury have done?

In all human probability, that jury would have turned Lefty Fowler loose without even leaving the box.

Fowler didn’t know these facts. The authorities did. After Fowler had been convicted an official delivered the ring to Helen Beavers’ mother. If Fowler had been able to produce that ring at the time of his trial, if his attorney had been able to show the history of that ring and how it came into the possession of the prosecutor, the case against Fowler would have gone out of the window.

Here was a fact that was known to the authorities. It was not known to the defendant. It was, to our minds, an important fact in the case.

Those are some of the things that are disclosed by Fowler’s petition before the Board of Pardon and Parole, and it will be interesting to see what happens.

According to the newspapers, one of the investigating officials said in an interview that the Court of Last Resort, after all of its investigation, had not uncovered any fact that was news to the investigating officials.

That may well be.

That’s the significant thing, the tragic thing. The officials may have known all these facts, but the jury didn’t, and Fowler didn’t.

And there, of course, we run up against a situation that is more and more significant.

The police investigate a case. They come to the conclusion that John Doe is guilty. They marshal whatever evidence they can find against John Doe, they put it in the hands of the prosecutor, and the prosecutor goes ahead and presents that case to the jury.

But what about evidence that indicates John Doe is innocent?

The police are pretty apt to consider all of that evidence as being a “false lead.” But suppose they uncover evidence directly indicating that some other person is guilty of the crime. What do they do with this evidence? Do they turn it over to John Doe’s attorney and say, “This is evidence that is undoubtedly pertinent to the case. We think you should have it”?

Should the police prosecute a case when they hold evidence in their possession that strongly indicates the man is innocent?

Let us cite an interesting example from a case in our files that was partially investigated.

The scene was a dimly lit cocktail lounge. It was fairly well filled with people. Two men entered, went to the bar and suddenly announced, “This is a stick-up.” One man held up the people in the cocktail lounge and ordered them to sit still. The other tried to get the money from the cash register. The bartender resisted. In the struggle, a shot was fired, and the bartender fell dead. The stick-up men fled.

The police picked up two men. These men had been in trouble before. They were tried for the crime. Two persons who had been in the cocktail lounge unhesitantly identified these two men as being the murderers.

The defense attorneys tried to find out who else had been in the cocktail lounge. They were unable to do so. The police had the names of these witnesses. They refused to divulge them. After the two men had been convicted of murder, the police belatedly filed a supplemental list of persons who had been in the cocktail lounge.

Friends of the defendants went to these persons. One by one, they took these persons up to the state prison where the men were incarcerated. Each one of these people swore positively that the convicted men were not the men who had perpetrated the holdup.

Friends of the convicted men secured affidavits from these witnesses, and then went to members of the jury who had convicted the defendants.

These jurors stated that if that evidence had been introduced at the time of trial they would have acquitted the defendants.

What was done about it?

Nothing.

Now quite obviously this is not right. A man who is charged with crime is thrown in a cell. He doesn’t have any opportunity to investigate and quite frequently he doesn’t have funds to make such an investigation.

The police represent a big, powerful organization. They have the facilities, the authority, and the numbers to make a complete investigation.

An investigation should be fair and it should be complete, otherwise innocent men will be wrongfully convicted.

We admit that the Fowler case is a puzzling one, but there are these facts to be considered: One, the authorities were in the possession of information which, if it had been disclosed to the jury, the court or the defendant, would undoubtedly have resulted in the defendant’s acquittal; two, the authorities, for some reason best known to themselves, proceeded to enact a cat-and-mouse drama which is unworthy of the dignity of the law; three, one of the best polygraph examiners in the country, after a series of careful examinations, has concluded that Lefty Fowler is innocent.

This makes for a sequence of events that can well mean the perpetration of a gross injustice.

Let us concede for the sake of the argument that the authorities were acting in the greatest of good faith. In fact, for the sake of this argument, let’s concede that Lefty Fowler is lying (and there is some evidence indicating he is) about any physical violence having been used in connection with obtaining his confession.

The law should act with dignity. The law should act with justice. Fowler’s attorneys should have known that the authorities had this ring which had been identified as that of Helen Beavers, and they should have known under what circumstances the authorities acquired this ring.

If the authorities had wanted to arrest Lefty Fowler for the murder of Helen Beavers, they should have done so in an orderly and dignified manner. They should have advised him of the charge against him, advised him of his rights, seen that he was arraigned and given the benefit of counsel.

When the law becomes confused, then the case becomes confused, and it is very possible that the wrong man is convicted.

There is, of course, much more to this Fowler case. We can, at the present time, comment only on facts that are fairly well established. We still don’t know all of the facts. We are, however, reasonably certain that we do know all of the facts that were used as evidence to bring about Fowler’s conviction.

We have an affidavit from an investigative officer who stated that he talked with this young woman who claimed to be an eyewitness to the murder; that he took her to Duncan, Oklahoma, and asked her to point out the scene of the murder; that for some time she avoided doing so, and then finally, breaking down and weeping hysterically, took him to the very spot where the murder had been committed and the body discovered.

Someone had administered a terrific beating to this young woman. Her eye was black. She was bruised, frightened and almost hysterical.

While it is expecting too much of human nature to ask the police to turn over to the defendant on a silver platter any evidence they may have uncovered indicating a defendant is innocent, they certainly should report to the court any evidence they may have uncovered indicating that some other person may be guilty of the crime.

Furthermore, we believe that prosecutors who wish to be fair should use their judgment as to what facts are and what are not significant, and see that all of the significant facts are presented to the court.

In the long run, we are apt to pay a terrific price if we fail to follow these rules. Let jurors get the idea that there may be evidence in the case which the police have held back, and all testimony introduced by the prosecutor is going to be viewed with such suspicion that guilty men may well escape in even greater numbers.

And there, of course, we have the other horn of the dilemma, the greatest injustice of all, the guilty man who “beats the rap” and, having perpetrated the crime, goes free to again prey upon society.

It would certainly seem that the only way we can steer a safe course between these two reefs is to encourage a spirit of scrupulous fairness on the part of all investigating officers.

If evidence won’t stand the light of day, it shouldn’t send a man to prison or to the chair. If a prosecutor wants to ask for a conviction, he should be perfectly willing to see that the truth, and all of the truth, is placed before the jury.

There are, of course, rules of professional ethics designed to cover these matters, but it is difficult to draft a rule that will cover all of these situations.

Prosecutors usually adopt the position that they are called upon to present the case for the state; that the defense attorney is retained to look after the interest of the defendant. If there are any weak links in the evidentiary chain, the prosecutor believes that it is the duty of the defendant’s counsel to hammer away at those weak links.

But how about positive facts?

It is as though someone, in putting a jigsaw puzzle together, found there were several pieces left over, and, at the same time, noticed there were several gaps in the jigsaw puzzle. Since the pieces won’t fit, he decides they are irrelevant and have nothing to do with that particular puzzle.

It probably never occurs to him that it is his mental concept that is at fault. If it does occur to him he is, of course, strongly tempted to put that thought out of his mind.

And so in this Lefty Fowler case, as I write this, we are in the midst of a peculiar but exceedingly interesting situation. There are many things about Fowler’s story I personally don’t like. There are, however, many things about the Fowler conviction that need clearing up.