23

Rape in Paradise

CHANG APANA, CIRCA 1932 (Courtesy of Honolulu Police Department)

The case that had everything.

—Time magazine

WHEN CHANG APANA stepped out of his home in Kaimuki on the morning of January 8, 1932, little did he know that he would be a direct eyewitness to one of the most sensational and disturbing cases in American courtroom history. Closing the door behind him, he spent a moment standing on the front lanai, taking in a fresh ocean breeze mixed with the fragrance of mai-say-lan in the garden. Just as he was about to walk down the steps and head out toward the police station, he spotted two cars racing past his home on Waialae Avenue. A white woman was erratically driving the first car, a blue Buick sedan, with two male passengers. The speeding vehicle was followed closely by a police car, inside which Apana saw two of his colleagues, Detective George Harbottle and Officer Thomas Kekua. From the high speed of the chase, Apana immediately recognized trouble. Soon the two cars, trailing a plume of dust, shot out of view. A few moments later, he heard three sharp cracks of a pistol, followed by the roar of engines.

That car chase, which had begun at the busy intersection of Waialae Avenue and Isenberg Road, had barreled through the sleepy neighborhood of Kaimuki before ending up ten miles later on a serpentine trail by the ocean near Hanauma Bay. When the police finally forced the blue Buick off the road and approached the vehicle with guns drawn, they discovered in the back of the car a body wrapped in bedsheets and soaked with water and blood. “I then noticed,” as Detective Harbottle later wrote in his report, “a human leg sticking out of the white bundle, and I placed the occupants of the car under arrest.”¹

Yet the story does not begin, as few do, with a terrifying police chase and an arrest. Rather, we need to backtrack a few months to a late summer day—September 12, 1931, to be precise. On this muggy Saturday evening, just six weeks after Apana and Biggers waved farewell at the Honolulu docks (and exactly one week before the Japanese invasion of Manchuria), a young haole couple was entertaining some friends at their Manoa home. Nipping at the jar of bootleg okolehao (a potent Hawaiian moonshine), they listened to the Boys from Dixie and the Melody Sisters on the radio. The husband, Thomas Massie, a native of a small town in Kentucky, was a U.S. Navy officer stationed in Pearl Harbor. His wife, Thalia, age twenty, came from a family of wealth and influence, at least in name. Her father, Granville Roland “Roly” Fortescue, was a cousin of President Theodore Roosevelt. During the Spanish-American War, in the same year that Hawaii was annexed, young Teddy and Roly had actually fought side by side at the Battle of San Juan Hill in Cuba. Thalia’s mother, Grace Hubbard Fortescue, née Bell, was a niece of Alexander Graham Bell, inventor of the telephone, and a granddaughter of Gardiner Greene Hubbard, first president of the Bell Telephone Company. She seemed, as they said, properly bred, but despite this illustrious background, Thalia’s parents lacked in money what they had in pedigree. Grace tried hard to maintain the appearance of good breeding, though she would have to resort on occasion to giving bridge lessons to make ends meet.

The marriage of Thomas and Thalia was not a happy one. She was bored and was rumored to be going out with other officers. Thomas had threatened her with divorce. On this September night, the couple fought again. The domestic discord continued even after they and their friends left the house and arrived at the Ala Wai Inn, a Japanese teahouse and dance hall in Waikiki. At about midnight, Thalia left the dance floor and walked out of the inn alone. The next time Thomas spoke to her, almost two hours later by phone, Thalia cried out: “Something awful has happened. Come home.”

The dutiful husband hurried home, where he was shocked by the sight of his wife: clad only in her nightgown, her jaw broken, and blood dripping from her upper lip. Wrought with emotion, Thalia described, tearfully, how she had been kidnapped by a gang of “Hawaiians.” After leaving the inn, she said, she had been walking along Kalakaua Avenue toward the ocean for some air when a car pulled up beside her. Five Hawaiian boys forced her into their vehicle and drove her to an isolated area off Ala Moana Road. They then dragged her into the bushes, punched her, and raped her six or seven times. As Thomas would later confide to a jury in graphic detail, his wife, as she had relayed the horrific ordeal to him, was “in a total state of collapse and broken down from sodomy.”²

Based on clues from another incident reported to the police that night—a shoving match between a Hawaiian woman and a local boy following a near car accident—the police soon rounded up five suspects, all youngsters of either Hawaiian or Asian descent: Ben Ahakuelo, Henry Chang, Horace Ida, Joseph Kahahawai, and David Takai. It was as if Fu Manchu had materialized, now in the guise of these five young men who came off to the public as the worst kind of sexual predators. Reality had fully collided with fantasy, as if all the sexual nightmares of a Caucasian minority had now come home to roost. When the news, like a thunderclap, reached the street the next morning, it sent shock waves through the whole territory. In the words of historian David Stannard, who has written the best book on the Massie Case, “this promised to be Hawaii’s most explosive criminal case ever—the first one in history involving the rape, by Hawaiians, of a white woman, and a navy officer’s wife at that.”³ The tabloids were eager to expand readership, and newspaper headlines screamed: “Gang Assaults Young Wife.” The articles contained inflammatory details about how “a young woman of the highest character…a white woman of refinement and culture” had been attacked by a gang of “fiends.” Rumors ran rampant throughout the ranks at Pearl Harbor, with claims that the “thugs” had violated a fellow officer’s “kid bride” in every sordid way. Rumor, like fire, can spread quickly and lethally, and this particular conflagration showed no sign of being brought under control. One sailor later described what he had heard at the base: “There are only three orifices on the human body, and they kicked her and broke her pelvis and they bit the nipple practically off one of her breasts. They broke her jaw in such a manner that one of her teeth had to be taken out. They broke her nose. Blackened both of her eyes, of course. On her face was a perfect imprint of a rubber heel, where they stomped on her.”⁴

Whether or not he truly believed these sensational accusations, Admiral Yates Stirling, the commandant of the Fourteenth Naval District, reacted to the news with rage and disgust. His first inclination, he said, was to “seize the brutes and string them up on trees.” Stirling’s reference to lynching was, as Stannard puts it, “no surprise to those who knew him.” Though born in California, he had grown up in the South and had seen how whites had dealt vigilante justice to black suspects without a trial. In the early part of his military career, Stirling had “[fought] revolutionaries in the Philippines and Chinese warlords on the Yangtze River.” To say that he did not like Asians is hardly an understatement. In his memoir, Stirling bragged about the indiscriminate killings and scorched-earth campaigns he had carried out in the Far East: “We burned the villages; in fact, every house for two miles from either bank was destroyed by us. We killed their livestock: cattle, pigs, chickens, and their valuable work animals, the carabaos [water buffalo], It seemed ruthless; yet it was after all war, and war is brutal.” As the top U.S. Navy commander in the Pacific, he believed that Hawaii’s polyglot population was a threat to America’s security in the region. As Gavan Daws puts it, Stirling had nothing but scorn for what he called “enthusiastic priests of the melting-pot cult.” Now that a carload of dark-skinned criminals had brutally attacked a white woman, much less the daughter of a prominent Eastern family, Stirling was determined to see justice served, one way or another.⁵

Thinking along the same lines was the most influential businessman in the islands, Walter Dillingham, then dubbed the J. P. Morgan of Hawaii. Born in Honolulu and educated, like Biggers, at Harvard, he was the head of the Dillingham Corporation, which had a virtual monopoly over construction, shipping, and land development in Oahu. Dillingham was also outspoken in his contempt for nonwhites. For many years, he had served as the vice chairman of the American Defense Society, a nativist organization founded in 1915 with members such as the eugenicist Madison Grant. In addition, the U.S. Navy was the biggest client of Dillingham’s company, and Admiral Stirling was his personal friend. Therefore, Dillingham had also made up his mind that those “beasts,” as he called them, would get what they deserved.⁶

At first, it appeared as if Stirling and Dillingham would have nothing to worry about. Lawrence Judd, the governor of Hawaii, was more than willing to take orders from the top military man and the top businessman. Throughout the territory years, a handful of sugar factors, known as the Big Five, would take turns and select their own representatives for the governor’s position. In 1929, they chose Lawrence Judd, the grandson of Dr. Gerrit Judd, to be the governor and, make no mistake about it, to protect the interests of big business.

The other key figure involved in the Massie Case, who would also be eager to please people like Stirling and Dillingham, was Captain John McIntosh, chief of the Detective Division of the Honolulu Police Department. In fact, McIntosh was always frank to admit how he had attained his current position. “I was put there,” as he had once told an interviewer, “by the business interests and the politicians.” As the captain, McIntosh was known not only for his harsh treatment of nonwhite subordinates but also for his blatantly racist treatment of officers. In high-profile cases, according to Stannard, he often “removed nonwhite detectives from an investigation they had begun and replaced them with handpicked haoles.” The Massie Case would prove no exception. By Sunday morning, none of the nonwhite detectives who had worked the case, except for John Jardine (Portuguese were not considered haole at the time), were allowed to handle the investigation.⁷ Seeking to affirm his position and bring a speedy end to a grisly case, McIntosh had from the very beginning convinced himself that the five suspects in custody were guilty. He was so eager to convict them that he even tried to plant evidence: He drove the suspects’ impounded car to the alleged crime scene after a rain and left behind tire marks in the west ground. The police photographer, sensing a frame-up, refused to take pictures.

From the start, the case was a travesty of justice, reflecting the entrenched corruption and racial prejudice that defined the territorial government. Judge Alva Steadman, in whom the haole elites had complete confidence, was assigned to the case. Three years earlier, Steadman had served as the judge in the sensational criminal trial of Myles Fukunaga, a nineteen-year-old Japanese youth with mental problems who had kidnapped and killed the ten-year-old son of a Hawaiian Trust Company executive. Fukunaga’s motive was simple: Hawaiian Trust was about to evict his parents from their Honolulu rental home, and he wanted revenge. But he also wanted a $10,000 ransom to help his parents out of the jam. In his ransom note, the deranged Fukunaga quoted from Shakespeare’s Macbeth: “Life’s but a walking shadow, a poor player/that struts and frets his hour upon the stage/and then is heard no more….” In a secret spot behind the Seaside Hotel in Waikiki, Fukunaga beat the young boy with a steel chisel and choked him to death. In the ensuing trial, which lasted two days, Fukunaga’s lawyers offered no defense and called no witnesses. Such a sham was territorial justice at the time that the jury included the victim’s bodyguard and gravedigger as well as members of the search party. After the guilty verdict, and despite the defendant’s obvious insanity, Steadman sentenced him to death by hanging. It took only six weeks from arrest to execution, and Dillingham singled out Steadman as “a man’s man in every way.”⁸

Three years later, it seemed that all the cards were stacking against the five suspects. All except one: the facts. There were many questions that would cast serious doubts over Thalia’s allegations. First and foremost, two doctors who examined her separately could not find any physical evidence of rape. Nor could the police find any trace of semen on Thalia’s clothes or those of the suspects. Equally troubling was the fact that Thalia’s accounts of the assault were remarkably inconsistent; it seemed that she was adding new details about that night as more information was conveniently revealed to her by the police. Especially damaging to her credibility was the fact that all five suspects had solid alibis during those hours; it was simply impossible for them to have had the time to commit the crime.

The suspects, whose plight had evoked great sympathy among the island’s Asians and Hawaiians, were given an excellent team of lawyers dispatched by Princess Abigail Kawananakoa, the last living symbol of Hawaii’s deposed monarchy. Out of desperation, the mother of Ben Ahakuelo, one of the two Hawaiian boys, had called the princess for help. The princess, a benevolent woman who genuinely cared for her people, asked well-known attorney William Heen to represent the defendants. Half Chinese and half Hawaiian, Heen was one of the most influential legal figures in the islands. A graduate of Berkeley’s Hastings Law School, Heen had been the first non-haole to be appointed a circuit court judge. Even after his resignation in 1919, islanders called him Judge Heen for the rest of his life.⁹

For those anguished months in the fall of 1931, it was as if annexation had yet to happen, and the lives of these five young men symbolically came to represent the innocence of the island people now compromised by all the sinister forces of the haole occupiers. Opening on November 16, the trial was a spectacle no Hawaiian could forget. Heen and his team pounced on the facts and peeled the hard rind of falsehood off the prosecution’s case, piece by piece. The trial went on for two weeks. In the ensuing ninety-seven-hour marathon deliberation, the jury—consisting of two Chinese, two Japanese, one Hawaiian, and seven whites—was deadlocked. Even after Judge Steadman had repeatedly rejected their “deadlocked” decisions and sent them back to the jury room hoping to force a guilty verdict, the twelve-member jury remained evenly divided: six for conviction, six for no conviction. As it was later revealed, the votes did not break down along racial lines. One white juror had voted not guilty from the first to the last ballot; and the jurors who pushed hardest for conviction were Chinese, Japanese, and Hawaiian.¹⁰ Reluctantly, on December 6, Judge Steadman declared a mistrial, which caused a sensation greater than the alleged crime itself.

In Admiral Stirling’s mind, such an outcome was an insult to law, to “the white man’s most sacred tenets.” To Dillingham, this was exactly what he had dreaded for so many years—irresponsible nonwhites running amok after being given the right to vote. Such a fear had driven him to join organizations like the American Defense Society in the first place. The verdict, or the lack thereof, was simply unacceptable to these two men and other haoles. They waged a war on the territory, especially against its nonwhite population, on multiple fronts.

Shortly after the trial ended, Admiral Stirling cabled Secretary of the Navy Charles Francis Adams. He described the brutality of the rape; the incompetence of the police department, with its “vast majority of Hawaiians and mixed bloods” the inexperience of the prosecutors; and the racial bias of the jury. Then Stirling added something that soon would be picked up by newspapers across the nation: in Honolulu, he stated, there had been forty rape cases reported in the previous year, and in several of the cases the convicted criminals were released on parole after only four months of imprisonment.¹¹ Stirling’s report about forty rapes was a barefaced lie, but it was as if a bombshell had been dropped, not only on the Department of the Navy but also in the mainland media. While the islands were more than five thousand miles from the American South, many of the territory’s white settlers, no doubt threatened by their minority status, had racial attitudes strikingly similar to those in Dixie, though scented by a gentle tropical fragrance that could quickly grow rancid in time of crisis. The image of dark-skinned rapists running loose in the streets and assaulting white women tapped deeply into the worst fears of miscegenation. In response, Chief of Naval Operations Admiral William Pratt informed Stirling that he would stop sending fleets to Honolulu for two months, “unless justice is done at the coming retrial and the police and hoodlum conditions are thoroughly cleaned by local authorities.”¹² The New York Times printed Stirling’s report verbatim; Time magazine, under the heading of “Races: Lust in Paradise,” reported that “Yellow man’s lust for white women had broken bounds” the headlines of the Oakland Tribune screamed, “Racial War Fear Grips Island City” and William Randolph Hearst’s chain of newspapers and tabloids began running lurid cartoons of “milk-skinned maidens being carried off to tropical lairs by brown brigands, bare-chested and slant-eyed.”¹³

The U.S. Navy officers and sailors stationed at Pearl Harbor contributed mightily in escalating the level of tension. One day after the trial ended, the Honolulu police responded to at least eight riot calls, all between military men and nonwhite civilians. The worst incident took place when four carloads of sailors kidnapped Horace Ida, one of the five accused, and took him all the way up to the high cliff at the Nu’uanu Pali. Trying to coerce a confession out of Ida, they stripped him, beat him with leather belts and metal buckles, kicked him, and hit his head with a gun butt. Only after Horace “feigned unconsciousness” did they stop and throw his body into the bushes. The brutality fell just a notch short of fulfilling Admiral Stirling’s prophecy that he would not be surprised to hear any day that one or more of the five accused “had been found swinging from trees by the neck up Nu’uanu Valley or at the Pali.”¹⁴

It turned out that the admiral was correct in his prediction. Grace Fortescue, Thalia’s mother, had arrived earlier in Honolulu to provide moral support for her daughter. Utterly disgusted by the outcome of the trial, she believed that unless she did something to ascertain a guilty verdict in the retrial, the five accused would probably walk free again and, under Hawaii’s law, for good. Not wanting to take chances with the judicial system that had already failed her once, she devised a scheme.

On January 8, 1932, with the help of Thomas Massie and two other U.S. Navy officers, Fortescue lured Joseph Kahahawai into a car and drove him to her rented bungalow in Manoa. At the house, they waved guns at Kahahawai and demanded a confession to the rape. At some point, a gun went off and Kahahawai lay dead. Leaving one person behind to clean up the evidence at the house, Fortescue and her cohorts left to dump the body into the blowhole at Hanauma Bay. Detective George Harbottle spotted their car on Waialae Avenue; Kahahawai’s cousin had already reported the kidnapping to the HPD and provided a description of the car. What ensued was a ten-mile car chase, part of which Chang Apana saw from the front steps of his Kaimuki house. The four were arrested on charges of murder.

At this point, the case that began as a young white woman’s sensational allegation against five nonwhite men finally hit the central nerve of the entire nation. It put American culture to an ultimate test by exposing the glaring disparity between the rule of law and the rule of the mob—in this case, the lynch mob.

Lynching, one of the cruelest manifestations of racial hatred, persisted like a cancer in America for nearly a full century after Emancipation. According to records held at Tuskegee Institute, there were more than 3,400 black victims of lynching between 1880 and 1951. Kentucky, the home state of Thomas Massie, had one of the worst lynching records in the country. Between Massie’s birth in 1905 and his departure for the U.S. Naval Academy in 1925, more than eight hundred blacks were known to have been lynched in ten Southern states, including Kentucky. In the words of David Stannard, that was a rate “of roughly one per week, year in and year out.”¹⁵ An antilynching bill was introduced in Congress in 1922; it was passed by the House of Representatives but blocked in the Senate.

Growing up in Maryland, south of the Mason-Dixon Line, Admiral Stirling empathized with Massie. He also knew how Massie, a fellow Southerner, must have felt, seeing those “niggers” walking free on the street after what they had done to his wife. The problem for Stirling now was how to protect Massie, his mother-in-law, and his navy comrades, who had defended the white man’s honor. Hearing about the arrests of Massie and others, Stirling, over the objections of the territorial attorney general and the county prosecutor, kept the four suspects out of jail by taking them to one of his navy ships on the base. He also threatened Governor Lawrence Judd, hardly a proponent of Asian or Hawaiian rights, with a military takeover of the territorial government. What had merely been a sensational trial threatened to become a national scandal, since Stirling was eager to thwart the islands’ democratic process.

It seemed that the United States, still mired in the Great Depression, actually stood behind Admiral Stirling—or at least that’s what the popular media indicated. The New York Sunday News and the New York Mirror were the first two papers to hit the streets after the Massie family arrests. Under the headlines of “Honor Killing in Honolulu Threatens Race War,” “Melting Pot of Peril,” and “Guard Honor Slayers from Hawaiian Lynch Mob,” the tabloids printed pictures and stories that suggested “the age old race war between the Occident and the Orient…threatens to envelop the Hawaiian Islands in a sea of blood.” Very soon, major newspapers, including the New York Post, Chicago Tribune, and San Francisco Chronicle, began running editorials clamoring for the removal of Governor Judd and the declaration of martial law in the Hawaii Territory. They referred to the murder as either a “lynching” or an “honor killing.” The forty or so newspapers owned by Hearst, which claimed about one-fourth of all the readership in the country, would print similar editorials written by the newspaper magnate himself. As if borrowing a page from Jim Crow, Hearst employed the most brazen racial language to whet his readers’ prejudice:

The situation in Hawaii is deplorable. It is becoming or has become an unsafe place for white women…. The whole island should be promptly put under martial law and the perpetrators of outrages upon women promptly tried by court martial and executed. Until such drastic measures are taken, Hawaii is not a safe place for decent white women and not a very good place for self-respecting civilized men.¹⁶

Back in Honolulu, Thomas Massie and the others were kept on the USS Alton, a decommissioned ship that had been used as a guest-house for visiting VIPs. As the leading lady in the Gang of Four, Grace Fortescue occupied a cozy penthouse with “polished wood and gleaming metal,” while enjoying a splendid view of the city through the portholes. “With staterooms for cells,” writes Stannard, “the accused murderers of Joseph Kahahawai had available to them books, cards, and music…electric fans, call bells and all the conveniences of a modern hotel. The onboard officers’ mess would provide their meals.” A deluge of flowers and lavish bouquets—almost as if a head of state or the last queen of Hawaii had died—began to arrive as soon as the news about the arrests reached the mainland. Thousands of well-wishers sent cablegrams, along with floral arrangements that would soon fill up the ship.¹⁷

Aboard her floating penthouse, Fortescue consented to an interview with Russell Owen, a Pulitzer Prize–winning journalist working for the New York Times. Fortescue and her codefendants, as Owen observed, did not show “any trepidation or a feeling that they had done something for which they should be ashamed or sorry.” She had, as she told him, “slept better since Friday, the 8th—the day of the murder—than for a long time.”¹⁸ What Owen would later omit in his published piece was even more revealing. To the question of “why she felt what had happened was justified,” Fortescue replied that “she came from the South and that in the South they had their own ways of dealing with ‘niggers.’” She seemed, as Owen indicated, unable to understand that “Hawaiians are not related to the Negroes.”¹⁹

Fortescue was not alone in confusing Hawaiians with “Negroes.” In 1928, four years earlier, a soldier on shore leave had shot and killed a Honolulu policeman named William Kama, who coincidentally was a close family friend to Kahahawai. Kama and his fellow officer, Sam Kunane, both Hawaiian, were trying to break up a fight between a few soldiers and local men when one of the soldiers, Chester Nagle, “pulled out a pistol and shot Kama in the head.” Nagle then turned the gun on Kunane and shot him in the chest. At the court-martial, Nagle provided a very simple justification for the killing. When he shot Kama and Kunane, he said, he did not think they were police officers, because he had never heard of such a thing as a “colored policeman.” Nagle’s attorney also tried to defend him by insisting that Nagle did nothing more than shoot “two black men” who had approached him in a menacing manner. Eventually the military jury found Nagle guilty of manslaughter, but his sentence was reduced after he had been shipped out of the islands.²⁰

As much as they believed that they had done nothing wrong by lynching a “nigger” rapist, Fortescue and her codefendants had to worry about the forthcoming trial in a civilian court—the same court that had already allowed the “thugs” to walk free. They would need to find, as they had been advised, the best defense attorney in the country.

Hailed as America’s first celebrity attorney, Clarence Darrow was to the courtroom, as Stannard puts it, what Babe Ruth was to the baseball field.²¹ Born in Farmington, Ohio, in 1857, Darrow was the son of Amirus Darrow, an ardent abolitionist, and Emily Eddy Darrow, an advocate of female suffrage and women’s rights. Admitted to the bar at the age of twenty-one, Darrow began his legal practice in Youngstown, Ohio. He became known as the “Attorney for the Damned” for his successful defenses in a number of high-profile cases in which the defendants seemed all but certain of going to the gallows. In 1924, Darrow saved Leopold and Loeb—a Jewish duo of convicted murderers from good families in Chicago—from the hangman’s noose by convincing the jury that the teenage killers were not completely responsible for their actions. In 1925, Darrow was the defense lawyer in the famous Scopes (Monkey) Trial, which involved the legality of teaching the theory of evolution in state-funded schools in Tennessee. The same year, he represented Ossian Sweet, a black doctor who had killed a white man when an angry mob had tried to drive the Sweet family out of their newly purchased home in Detroit. Without notes, Darrow delivered a seven-hour closing argument that ranged from a recounting of the barbaric history of slavery to a defense of a man’s fundamental right to protect his home and family.²² His rousing speech even moved the judge to tears, and the all-white jury acquitted Sweet. As Darrow admitted in his memoir, The Story of My Life, which had just appeared in early 1932, the secret of his success was his ability to connect with the jury and make them see what he wanted them to see. “I never liked technicalities,” he wrote in the book. “I believe that few cases are ever won that way; I preferred to take outstanding facts and do the best I could with what was obvious to all.”²³

Given his reputation as the champion of the underdog or victimized, Darrow, by accepting the case of Grace Fortescue and her cohorts, would be on the wrong side of the fence. He would now have to defend four whites who had murdered a nonwhite victim. However, strapped for cash, Darrow found the retainer fee of $40,000 simply too enticing to pass up, so on March 24, 1932, he and his legal team arrived in Honolulu to prepare for the case.

When the trial opened on April 4, the courtroom was packed with local VIPs and journalists from the world’s news organizations. Hawaii had just joined the worldwide network of wireless radio four months earlier, and direct radiophone service between Honolulu and the outside world had begun in early March. Darrow once said, “The practice of law has always appealed to the spectacular in life.”²⁴ The timely arrival of wireless technology certainly enhanced the spectacle of the trial, and a worldwide audience did, so to speak, get its money’s worth by tuning in to the daily updates from the remotest inhabitable islands in the middle of the Pacific. Radio stations across the mainland, according to Stannard, broadcast staged reenactments of the courtroom drama day in and day out during the monthlong trial.²⁵

For America, especially after the defeat of the antilynching bill and with the resurgence of racial violence in the 1920s, the outcome of the trial would have explosive implications. Darrow was obviously aware of that, and, great lawyer that he was, he tried to tap into the spirit of the age, something that he called the “unwritten law.” “While it could not be found in the statutes,” Darrow said, “it was indelibly written in the feelings and thoughts of people in general.” And in 1932, the unwritten law subscribed to by most Americans was the belief that “a man has the right to kill another man who has assaulted his wife…especially when the rape victim was white and the rapist was not.” It was this law, not the statutory one, to which Darrow was appealing when he argued the Massie Case in front of the twelve jurors: seven white men, three Chinese, and two Hawaiians. Darrow strategically presented Thomas Massie as the one who had fired the shot that killed Joseph Kahahawai, even though there was no conclusive evidence. He skillfully characterized the killing as a case of a Southern (white) gentleman defending his wife’s honor at a moment of rage. In his four-hour closing argument, which was carried live on radio across the United States, Darrow made a passionate appeal to the jury by invoking the power of the unwritten law. He argued that within each good person there is, “somewhere deep in the feelings and instincts…a yearning for justice, an idea of what is right and wrong, of what is fair between man and man, that came before the first law was written and will abide after the last one is dead.” Following such a deep-seated, time-honored sense of justice, how could anyone sleep, Darrow histrionically asked, “hearing the words of Massie, picturing the tear-stained face of Massie’s wife?”²⁶

In closing arguments, prosecutor John Kelley identified the obvious flaw in the so-called unwritten law—its racial inequality. Yes, Mr. Darrow had spoken of mother-love and husband’s honor, Kelley said. “Well, there is another mother in this courtroom. Has Mrs. Fortescue lost her daughter? Has Massie lost his wife?” Then, as described by Stannard in his brilliant book, Kelley looked toward where Joseph Kahahawai’s parents were sitting and rested his case by asking, “Where is Kahahawai?”²⁷

After two days of deliberation, the jury on April 29 delivered a verdict that stunned nations on three continents: all four defendants guilty of manslaughter. As soon as the first verdict on Thomas Massie had been read, Thalia first let out a scream and then uttered a piercing wail, causing others to be unable to hear the rest of the verdict. Darrow, the most venerated lawyer of his generation, sank into his chair, muttering: “I couldn’t believe it. I couldn’t think or understand how anybody could be that cruel.”²⁸ The personal disbelief was squarely matched by the outrage expressed in the mainstream media. “I am astounded! Shocked!” said Floyd Gibbons in his Hearst column the next morning. “The Fortescue-Massie case verdict is legal mockery…. Are we no longer Americans? No longer free and white? Are all the mainland millions of us in a class with those seven white men of the Massie jury who let five yellow and brown men swing a verdict directly against the sympathies of the whole civilized world?” Then Gibbons went on to call for “white American rule in Hawaii.”²⁹

In the meantime, more than a hundred senators and representatives began pressuring Governor Judd to pardon the four convicted killers. They sent a threatening cable to Judd, expressing their “deep concern for the welfare of Hawaii” and stating that only “prompt and unconditional pardon of Lieutenant Massie and his associates” would ensure the continuation of that concern. In other words, pardon or else. Eventually, Judd even received a call from President Herbert Hoover. Even though the content of that phone conversation was never revealed, we can make a reasonable guess from the subsequent turn of events.³⁰

On May 4, the judge sentenced each of the killers to ten years of imprisonment with hard labor. Within an hour, however, the four were sipping champagne at the Governor’s Mansion across the street from the courthouse—Judd had commuted their sentence to one hour in custody of the High Sheriff of the Territory.

In retrospect, when Clarence Darrow was wrapping up his closing argument with a climactic rhetorical question, he looked into the eyes of the five nonwhite jurors and instinctively knew that he had just lost the last case of his career. As he would later recall, “When I gazed into those dark faces, I could see the deep mysteries of the Orient were there. My ideas and words were not registering.” Sharing Darrow’s conflation of Chinese and Hawaiians, Grace Fortescue made a similar observation of that dramatic moment: “The stoical Oriental faces betrayed no emotion.”³¹ The courtroom maestro, who had made a career out of making heartfelt appeals to jurors, had been tripped up by what he regarded as an insurmountable racial barrier. Maybe he was correct in blaming his defeat, however temporary, on the racial feelings of the jurors, but how could they think or feel otherwise when justice was in such lamentably short supply?

Seen from another perspective, however, it would be wrong to interpret the verdict as a mere expression of racism. The seven Caucasian jurors, each one of whom had the power to cause a jury deadlock, had certainly not cast their votes based on racial prejudice. As the Chicago Tribune put it in a front-page story the day after the verdict, “Racial lines were obliterated by the jury’s verdict, and the Hawaiian race cannot be in any way held responsible for this decision.”³² In fact, the seven white jurors had plenty of good or convenient reasons to acquit their fellow Caucasians: four of them worked for Big Five corporations; two were Walter Dillingham’s employees.³³ The same Chicago Tribune story pointed out: “The greatest business houses in the Territory were represented on that jury.” In addition to concerns with their own job security, the seven white jurors, as well as the five nonwhites, were also fully aware of the other possible consequence of their decision: martial law in Hawaii, or a military takeover of the civilian government. But in the end, each one decided to follow his or her conscience and obey the rule of law rather than choose the convenient path that had been followed by countless all-white juries across the nation in similar cases. As one of the white jurors put it after the trial, “Kahahawai was killed…and we could not allow ourselves to be swayed by emotions. Law and order must prevail.”³⁴ Even though the governor’s decision to commute the sentence had rendered the Massie Case yet another ugly manifestation of racism, the guilty verdict by a mixed-race jury seemed to indicate that, in the early 1930s, the racist foundation of American culture was showing signs of cracking, at least in Hawaii.

Months later, at the request of prosecutor John Kelley, Governor Judd hired the Pinkerton Detective Agency, the nation’s leading private-investigation firm, to conduct an independent probe of the Massie Case. On October 3, 1932, after a thorough, three-month examination, the agency’s report concluded: “It is impossible to escape the conviction that the kidnapping and assault was not caused by those accused…. We found nothing in the record of this case, nor have we through our own efforts been able to find what in our estimation would be sufficient corroboration of the statements of Mrs. Massie to establish the occurrence of rape upon her.”³⁵ In other words, the rape had never occurred. Still, Joseph Kahahawai was dead, and many lives were ruined and careers shattered. Hawaii, now haunted by the specter of military rule and humiliated by the interference of a federal government five thousand miles to the east, would struggle in the wake of this racial tragedy for many years. Chang Apana, who had fought all his life for the rule of law, would have only months to live—certainly not long enough to see the day when the scales of justice could finally be fairly balanced.^*