12

In recent years, there has been a tendency to build up a system of rating prosecutors, a sort of box score or batting average, which has served to weed out and expose a lot of lazy incompetents, but which, in turn, has brought a whole attendant train of its own evils.

In many states prosecutors are required to keep a record showing the number of cases they have prosecuted, the number that have been dismissed, the number of acquittals, the number of convictions, the number of pleas of guilty, etc.

The result is a box score or batting average by which the efficiency of the prosecutor can be measured.

It is, of course, only natural that the prosecutor should want to make a good record. That’s the very purpose of keeping this type of box score. It furnishes him an incentive.

In many ways it is a dangerous incentive.

Personally I don’t think we should measure the efficiency of a prosecutor in the same way we measure the efficiency of a baseball player. Justice is more subtle and illusive. You can’t simplify cases into classifications of black and white. We have grays and blues, and, here and there, we have the very flaming red of the danger signal that is inherent in this system.

To be sure, until this system was inaugurated there were prosecuting attorneys who were lazy, who were inefficient, who would dismiss a case rather than engage in a hard-fought trial where some brilliant defense attorney might show them up.

Now we have hard-driving prosecutors who are intent upon establishing a good over-all average. Some of them, of course, remain immune to this type of pressure, but others do not.

Let us take the case of Mr. X, a prosecutor. He likes the job. He knows that when his term of office is up he is going to have to run again. If he is to be re-elected it will be on the strength of his record. Naturally he wants his record to be one to which he can “point with pride.”

John Doe is in jail, awaiting trial on a charge of armed robbery. There is some evidence indicating John Doe is guilty. There is some evidence indicating John Doe is innocent. John Doe has refused to plead guilty.

The prosecutor considers his box score record.

If he goes to trial, if the court appoints an attorney to represent John Doe, and John Doe secures an acquittal, that acquittal will loom large on the debit side of the prosecutor’s ledger.

John Doe won’t plead guilty to the charge of armed robbery.

But suppose one of the officers goes to John Doe and says, “Look here, you’re sticking your neck out. We have enough evidence to convict you of armed robbery. That’s going to mean a long term in the penitentiary, but if you want to cooperate with us we’ll meet you halfway. You plead guilty to larceny and we’ll let it go at that. That will only be a misdemeanor. You’ll get six months in the clink. How about it?”

So John Doe may very well decide to make the trade, particularly if he is guilty.

Even if John Doe is innocent he may feel that the cards are stacked against him, and prefer six months in jail rather than having to “take a chance,” particularly if the right sort of selling argument is used.

If John Doe is guilty, this deal puts him in a position to laugh at the law.

For purposes of the record, the case of John Doe shows up as an entry on the credit side of the prosecutor’s box score instead of one on the debit side.

Don’t think these things are farfetched. Only a few months ago I was investigating a case where there had been an armed robbery. The defendant had a previous record. He was incarcerated, awaiting trial. He made a “deal.” He pled guilty to larceny and received a sentence of six months in the county jail. (If he had been convicted of armed robbery his sentence would have been ten years to life.)

It happened that owing to other circumstances it became the duty of some of my associates and myself to examine this man, and to try and find out the true facts about this case.

Quite obviously the crime was either armed robbery or it was nothing.

We examined into the facts, secured what information we could, and finally went into session with the individual, pointing out to him the information that we had.

He admitted to us that he had committed the armed robbery.

Prosecuting attorneys should not have to guide their actions by a paper record, and voters must learn to measure the efficiency of a prosecutor by some other yardstick than a “percentage of convictions.”

As a nation we are prone to think altogether too much in terms of results.

I remember, several years ago, when I was an archery enthusiast, studying a manual of Japanese archery which I picked up in Yokohama and had translated. Under the Japanese system of marking, an arrow in the bull’s-eye was good for only fifty percent on the score board. The manner in which the archer conformed to the traditional legends of the sport, the form with which he released the arrow, counted for the other fifty percent.

In American archery, a man could lie on his back, pull the bow with his feet, release the arrow with his teeth, get the arrow in the bull’s-eye, and still the shot would count for a hundred percent.

We worship results.

Now that can be dangerous when it comes to legal matters, particularly matters involving the detection, apprehension and conviction of persons who have perpetrated crimes.

A criminal commits a particularly atrocious crime which receives a lot of newspaper publicity. The chief of police is immediately put on the spot by the mayor. The chief passes the word down to the officers under him, and virtually all other work is dropped while the entire force concentrates on getting the man responsible for the crime.

We investigated one case where it was rumored that the grand jury had said to the district attorney, with whom it had been having trouble, “Either apprehend the man who committed this crime within forty-eight hours or hand in your resignation.”

That sounds apocryphal because presumably the grand jury had no way of forcing the district attorney to resign, and it wasn’t up to the district attorney to do the police work but only to present the case after the police had rounded up the criminal. It is, however, presumed to be a true story, and, in any event, is indicative of the pressure that is brought to bear on persons who are engaged in enforcing the law.

In the case above referred to, a person was arrested within the forty-eight hour period.

One thing is certain. The careful deliberation, the sifting of facts, the impartial weighing of evidence, can hardly be accomplished when newspapers are bringing pressure to bear on the police for an immediate arrest, hinting at incompetency and inefficiency, and the mayor is putting the chief of police on the carpet because his men can’t turn up the culprit.

Under such circumstances it is only human nature for the police to take the heat off themselves by turning in a culprit.

The case of Silas Rogers was one where the police were working under pressure. A popular police officer had been ruthlessly shot down. The murderer had literally slipped through the fingers of the police.

The police knew that the murderer was a Negro; that when last seen he was probably wearing a white cap. Silas Rogers was a Negro. He was on his way out of town. He was wearing a white cap. That was all the police had to go on.

For a while the police apparently held Silas Rogers simply because there might be a possibility he had been connected with the murder. He “matched the description.” In other words, he was a Negro in a state where there are thousands and thousands of Negroes, and he was wearing a white cap.

Later on, when other suspects had slipped through the fingers of the police and made good their escape, and only Silas Rogers was left, Silas Rogers became the fall guy. He was it.

The police had arrested Silas Rogers as a suspect. He was being held for investigation in connection with a murder. There was no other likely candidate who hadn’t eluded the police and escaped. Silas Rogers was there. There was widespread public interest in the case. There was a wave of public indignation. The newspapers were going to press.

All of that was an unhappy combination of events for Silas Rogers, who had been picked up simply because, in a very vague, general way, he matched the description of the man the police were looking for.

Perhaps the greatest weakness inherent in the whole police system is that once the police have made an arrest, once a man has been accused of crime, our vaunted freedom of the press, which gives newspaper reporters the right to know what is going on, crucifies further investigation on a cross of public prejudice and newspaper publicity.

There is every indication that, without waiting to develop any additional evidence, the police “worked Silas Rogers over,” leaving scars which remain to this day.

That, however, was more or less to have been expected under the circumstances. A popular police officer had been murdered, presumably by a Negro. Rogers was brought in as a suspect. Police officers were suffering from an emotional shock and frayed nerves, so they went to work on Silas Rogers.

By the time the afternoon papers had gone to press, Silas Rogers was the official suspect held in custody by the police. After that he became the defendant. The prosecutor had to try this defendant in front of a jury. Naturally he wanted to have evidence that would bolster his case. Naturally the police wanted to get this evidence, so gradually the police found themselves drawn into a net where they had to get evidence against Silas Rogers rather than investigate the murder.

This happens in case after case. The police pick up a suspect. They don’t have too much on him. He may or may not be guilty.

It looks a lot better for the police, however, to have a suspect actually in custody, and so the combined forces of publicity soon make the suspect the defendant, and then the prosecuting attorney quite naturally says to the police, “Well, where’s your evidence? You expect me to prosecute this man. You want him charged. Where’s the evidence?”

Under those circumstances it is inevitable that evidence tending to prove the suspect is the right man is put forward by the police, while evidence tending to show that he is not the right man is ignored, pushed to one side, covered up and forgotten.

That is all very well when the suspect happens to be the right man, but not when he happens to be the wrong man.

That is what happened in the Rogers case.

Looking back on it, it is very easy to say that the police bungled the investigation. However, that is to discount the slow process by which a suspect tends to be forced into the position of a defendant.

Briefly, the facts in the Rogers case go back to the early morning of July 18th, 1943, when two police officers of the city of Petersburg, Virginia, were making a routine automobile patrol.

They noticed a red Studebaker automobile driven by a Negro wearing a white cap, and containing two white soldiers.

On that July morning officers W. M. Jolly and R. B. Hatchell saw something about that Studebaker automobile which immediately impressed them as being out of key. Perhaps it was the way the Studebaker was being driven. Perhaps it was the incongruity of the two white soldiers being driven by a Negro.

Whatever it was, the officers whipped their car into a U-turn and caught up with the Studebaker, flagging it down.

There were some cars parked at the side of the road, however, and the driver of the red Studebaker couldn’t pull in to the curb until he had rolled along some little distance, so the police car, riding on the tail of the red Studebaker, loafed along behind.

Suddenly there was a break in the traffic ahead. The driver of the red Studebaker gunned the car into high speed. The police car promptly followed suit.

The red Studebaker shot through a red light at better than sixty miles an hour, made a screaming turn, and the driver suddenly found he was on a dead-end street. A barrier had been erected at the end of this street on the edge of a drop into a stream bed covered with brush and dense foliage.

The Negro did some remarkably expert driving. There was not room to stop the car. He swung it into a skidding turn up a narrow walk-way between the Petersburg Hospital building and the barrier on the edge of the steep drop.

At this point the car crashed into a hedge. The front wheels were actually dangling over a perpendicular cliff. The Negro driver jumped out, darted behind the hospital, and then, presumably, down into the brush-covered stream bed.

The officers put handcuffs on the two white soldiers, who remained in the car, and then started cruising around the edges of the stream bed trying to find the Negro.

It will serve no useful purpose to detail the step-by-step incidents of the search. Suffice it to say that Officer Hatchell eventually went down into the stream bed and disappeared.

A short time later a nurse in the hospital heard two shots. Going to the window she saw Officer Hatchell lying on the ground less than thirty feet from the place where the Studebaker had been wrecked a half hour before. Hatchell was carried into the hospital and died.

The shots had been fired at about seven forty-five A.M.

Approximately two hours later two police officers cruising the roads saw a Negro wearing a white sailor’s cap and a tan shirt, on the north end of a bridge leading out of town. He carried a small bundle of clothing.

That man was Silas Rogers, a twenty-one-year-old Negro, who was headed for New York to report to his draft board in response to a summons he had received in Miami, Florida, where he had been working for some little time.

Silas Rogers told the officers that he had decided to hobo his way up to New York in order to save transportation money. He had done it before and so knew the ropes. He said he had traveled by freight train from Florida to Hamlet, North Carolina, and there had secreted himself aboard the Seaboard Airlines northbound train, the “Silver Meteor.” He claimed that he had been discovered by a railway employee who had ordered him to get off the train at Petersburg.

Tired from his experiences in bumming rides, he had gone into the Negro washroom at the railroad depot. There he had taken off a shirt and green pin-striped pants which he had worn over another shirt and blue trousers in order to protect these inner clothes from the grime of train travel. He had wrapped the discarded garments into a small package, and had decided to try hitchhiking.

It transpired that the two white soldiers were AWOL, that the red car had been stolen. The story of the soldiers was that they knew nothing about the car having been stolen, that they were hitchhiking to be near their pregnant wives at the time of delivery when they were picked up by the Negro driver who had offered them a ride.

There were, of course, certain defects in the police reasoning which made Silas Rogers a suspect.

In the first place, the stories of two AWOL soldiers riding in a stolen car, trying to save themselves as much as possible, should certainly have been open to suspicion.

Both soldiers, both having pregnant wives, both wives expecting to be confined at the same time, both AWOL. It was a touching story.

A subsequent check indicated that neither of them had pregnant wives, and that one of them was not even married at the time. Moreover there is evidence to contradict their statement that they had been picked up by the driver of the stolen car “outside of Raleigh.”

Secondly, even conceding that Rogers was the driver of the stolen car, there was absolutely no real evidence to indicate that it was the driver of the stolen car who had shot Officer. Hatchell. It was, of course, possible that the driver of the car had jumped out and concealed himself in the brush and had waited nearby within a distance of some thirty feet, but the probabilities are against it.

There was very considerable evidence that at that very time there were two men in the stream bed who had entered there a short time earlier after having escaped from prison the night before. These men had been seen entering the stream bed by a reputable witness. It was possible to find their tracks.

That statement about the tracks needs a little explanation. There had been a very heavy dew the night before. The stream bed was choked with a thick growth of vegetation, and people walking through the vegetation in the early morning hours brushed moisture from the leaves and grass, leaving a trail which in places was quite plain. Such a person also would have become soaking wet at least from his knees down if he had traveled any distance at all through that wet vegetation.

There is confusion about what happened next. There is evidence to the effect that the two soldiers promptly identified Silas Rogers as the driver of the car. There is also evidence that they stated he was not the driver of the car and maintained that position until it became apparent that as far as the police were concerned it was Silas Rogers or no one. At that point it became apparent that, unless Rogers was the guilty party, the murderer of Officer Hatchell had slipped through the fingers of the police.

Some of the evidence indicating that the police did not really believe Silas Rogers was the guilty person until some time after he had been picked up is most persuasive. For instance, the police search for the murderer continued. Officers trailed one giant Negro who certainly seemed to have been trying to make his escape. He was accosted by the officers at a distance of some two hundred feet. At first it appeared that he intended to shoot it out with the officers, but then he thought better of it, turned and took to his heels. Two officers fired twelve shots at him and missed each shot.

That left the police with two empty guns, a record of twelve clean misses, and Silas Rogers. It had to be Silas Rogers. If the murderer had been the big Negro, twelve consecutive misses in a running “battle” would have made poor copy.

But here again there seems to be a contradiction. There was some evidence that the two soldiers made a prompt identification of Silas Rogers, and that Officer Jolly did the same.

However, there were certain things about Silas Rogers that simply didn’t fit into the picture.

In the first place, his trousers and his shoes were completely dry. They showed no evidences of having been wet that morning. The driver of the stolen Studebaker had been expert. Rogers had never driven a car in his life and didn’t know how to drive a car. He had never held a driver’s license or even a learner’s license. Whenever it was that the soldiers made their identification, one of them mentioned studying Rogers’ face while it was illuminated by matches the soldier was lighting and holding to cigarettes in the driver’s mouth.

Rogers never had smoked.

Yet the unmistakable fact remained that a police officer had been killed. The assumption was he had been killed by the Negro who had been driving the car. The two soldiers said Rogers was the man, and that was enough for the jury.

Rogers was found guilty and sentenced to death.

That sentence would, in all probability, have been carried out if it hadn’t been for Jack Kilpatrick, editor of the News Leader of Richmond. He started checking into some of the discrepancies in the Rogers case, and the more he saw of the case the less he liked it. Discrepancy after discrepancy began to pile up. Much of the evidence was contradicted by indisputable physical facts.

As a result of Kilpatrick’s investigation and the disquieting things he turned up, Rogers’ sentence was commuted from death to life imprisonment.

That, however, was small solace for a man who had been improperly convicted. It was, of course, a relief to be taken from the death row. Having a death sentence hanging over one, watching time trickle down through the squares of the calendar, is a harrowing experience. There is always a surge of relief when such a sentence is commuted.

However, that surge of relief soon gives way to a dull despondency at the contemplation of a lifetime that must be spent at hard labor within the walls of a penal institution.

Many attempts were made to check on the story told by Silas Rogers. Had he been bumming his way on the “Silver Meteor”? Undoubtedly some Negro had been on the train, but was that Negro Silas Rogers?

Rogers was able to produce a witness who said he had seen him hide himself aboard the “Silver Meteor.” He found the conductor who had ordered him off the train, but in the darkness was unable to identify him. A station porter knew of a hobo being aboard the “Silver Meteor” that night but was unable to identify Rogers as being the man. Rogers’ attorneys located a colored man at a gas station who was able to identify Rogers and remembered his tight little bundle of clothes.

However, the key witness in the case could not be located, which, of course, led to the suspicion that this key witness might be only a figment of Silas Rogers’ imagination. He insisted that he had talked with a “mechanic” on the train and that this “mechanic” would be able to identify him.

No matter how they searched they couldn’t get any clue to this mechanic. He seemed to have no existence in reality.

Then, more than a year after Silas Rogers had been convicted, a chance conversation among train men disclosed that a diesel supervisor, who lived in North Carolina, and whose work rotated him from one train to another, remembered a conversation with a Negro hobo on the “Silver Meteor.”

A quick check of dates showed that this supervisor had been on the “Silver Meteor” on the date of July 17th, so this man was rushed to the penitentiary to see if he could identify Silas Rogers.

He gave Silas Rogers a long, searching look, then nodded his head. “That’s the boy,” he said.

This Rogers case is interesting because it shows what can happen when we relax our rules of evidence, or when we let down our guards. It is to be noted that there was absolutely no evidence indicating that Rogers had killed Officer Hatchell.

There was evidence of a sort that Rogers had been driving the stolen car, that he had tried to conceal himself by running down into the barranca. There was an inference that this driver of the stolen car might well have had a motive for killing Officer Hatchell.—Two links in the chain of evidence, but absolutely nothing connecting those two links. Along toward the last, when so much doubt was cast upon the testimony of the two soldiers, the authorities countered by adopting the position that Rogers might not have been the driver of the car, but that in any event, no matter how he came to Petersburg, he was the one who had killed Officer Hatchell.

Jack Kilpatrick put in untold hours of work trying to find some positive proof in the case. He examined voluminous records to show that Rogers had never had a driving license or a learner’s license. That, of course, was trying to prove a negative.

We made a search which supplemented Kilpatrick’s search. There once more, of course, we were trying to prove a negative, a recognized, legal impossibility.

However, it is almost certain that Rogers didn’t know the first thing about driving an automobile. It is very certain that the Negro who was driving that red Studebaker was an expert driver, a quick thinker, and had that deft touch in an emergency, that instantaneous reaction to changing circumstances which comes only with years of driving.

Joining forces with Kilpatrick and the Richmond News Leader, we campaigned for a full pardon for Silas Rogers.

Months dragged by. It seemed no new evidence could possibly be uncovered. Yet it became more and more apparent that Silas Rogers had been improperly convicted.

Careful search of the stolen Studebaker, developing all latent fingerprints, failed to disclose any of Rogers’ prints. Police who had later claimed they had never doubted Rogers’ guilt from the moment they had apprehended him, were shown to have spent hours with bloodhounds chasing a more likely suspect—AFTER the arrest of Rogers.

Yet the Governor hesitated over the case. It received much executive deliberation. An officer had been murdered. There must be no mistake. Rogers could not be pardoned if there was any chance he was the guilty party.

It was no longer a case of proving Silas Rogers guilty beyond all reasonable doubt. He had already been convicted. He couldn’t expect clemency under the circumstances until every shred of evidence had been reconsidered.

At length Governor John S. Battle told us that there was only one feature in the case which remained uncleared and which stood between Silas Rogers and a pardon. That had to do with the identification of an article of wearing apparel, and Argosy investigators, getting on the job, trailed witnesses around the southeastern United States until finally they had clarified that one point which had stood in the way of clemency. On December 22nd, 1952, Governor Battle issued a pardon to Silas Rogers.

Rogers was released from prison a free man but with his life completely and utterly disorganized. Harry Steeger gave him a job with Argosy Magazine, giving him work so that Rogers could “find himself” and build up a little cash reserve. He is now a clothing worker.

That Rogers case indicates what can happen when there is a lack of proof and a jury is forced to resort to inference.

But what about society?

Remember that if Rogers is the wrong man then the right man escaped. That man, who deliberately killed a police officer, walked out of Petersburg and vanished. He is somewhere in our midst today, a dangerous killer.

Could improved investigative methods have resulted in the apprehension of that killer, and the release of Rogers, while there was still time to do something about it and while there was an opportunity to get proof instead of surmise?

Looking back at it, it is quite apparent that the investigation of the case was inept. There should have been more men on the job. Officer Hatchell shouldn’t have gone down in the stream bed by himself.

Yet the police were presented with a problem and apparently with inadequate equipment. If the police, who fired twelve shots at the running fugitive, had had a rifle, the story might have been different. If there had been a helicopter that could have been made available on reasonably short notice, that stream bed might have been sealed off and carefully combed. There was evidence that no less than three desperate men were concealed there. Any one of these men might have killed Hatchell.

One of these men might have been apprehended with the weapon which had discharged the fatal shot still in his possession. Then there would have been some proof instead of mere conjecture.

We desperately need to pay more attention to our police problems, to give the officers every facility, and to arrange for added equipment for emergency use before the emergencies arise.