CHAPTER 34 Still He Lay in Jail
December 9, 1910
New Brunswick, New Jersey
Winter on the New Jersey shore was a sad thing, the ocean unswimmable at forty-eight degrees, the boardwalk swept clean of people by the westerlies, a day’s fifteen hours of sunlight down to a meager nine, overcast skies and empty promenades. In Asbury Park, it was only at Palace Amusements, the Victorian pavilion on Kingsley Street, that a familiar sound of summer could be heard—the swirling jangle of a Wurlitzer organ serenading the camels and goats and horses on Ernest Schnitzler’s grand, gilded, year-round Carousel. But in winter, these sounds were a teasing echo of the true joy of summer music.
On such a dreary day in December 1910, two white men, Charles Brooks Ames and Walter Lester Glenny, both attorneys, entered the New Brunswick chambers of Willard P. Voorhees, a justice on New Jersey’s seven-member Supreme Court.
Brooks and Glenny presented a writ of habeas corpus for Thomas Williams. Technically, Williams had not been charged with murder, and was being held as a material witness in the Marie Smith case. But that was just a technicality. Most understood that to the Monmouth County prosecutor, John S. Applegate Jr., Williams was his primary suspect.
The writ of habeas corpus called on Williams’s jailers to justify his incarceration, or set him free. Justice Voorhees granted the writ and called for a hearing two days later to enact it. Then he reached out to the Monmouth County prosecutor, John S. Applegate Jr., to inform him of the writ and give him time to prepare for the hearing.
When he got the news about the writ of habeas corpus, Prosecutor Applegate—who had not yet heard that Frank Heidemann had admitted to the crime—was angry and defiant. A new grand jury was to be impaneled for the Williams case that January, and Applegate was adamant about holding Williams until the jury was in place, despite not having charged him with anything.
“Those who are working together to get Williams out of jail on a writ of habeas corpus are wasting their time,” Applegate announced to reporters. “We have enough evidence to warrant keeping him in jail until an investigation has been made.”
To keep the pressure on Applegate, the editors of the Asbury Park Press—steered by the anti-Williams reporter Alvin Cliver—ran a vaguely threatening editorial that warned against Applegate going soft on the lawyers. “The public prosecutor of Monmouth County has a strange conception of his duty if he does not have Thomas Williams, accused of the murder of little Marie Smith, held for the January term of the grand jury, and seek by every means in his power to have the man indicted and brought to trial,” the Press declared. “If lynch law is to be held in check, our citizens must know that due process of law will mean trial in open court and not merely the opinion of some court officer.”
Who were these white lawyers who marched into a judge’s chamber and spoke up for a poor black prisoner? Such a display of legal strength on behalf of an itinerant black man accused of murder was simply unheard-of at the time—so where did these two come from? What was happening? Some newspapers struggled to identify the mysterious attorneys, reporting only that they represented “a colored association.”
The Asbury Park Press, however, got it right.
C. Brooks Ames and W. Lester Glenny had been sent to New Brunswick by the National Association for the Advancement of Colored People, then too new to be known by just initials.
Brooks was a graduate of Princeton, class of 1905. He was the brother of a famous poet, Van Wyck Brooks, and enjoyed writing poetry himself. Glenny attended Columbia University, class of 1902. He was a champion amateur golfer. Both men came from prominent families in Plainfield, New Jersey, and both worked as lawyers in New York City. Glenny was counsel for the New York Evening Post, the newspaper owned by Oswald Garrison Villard.
Villard asked the men to take on the Williams case. The NAACP had no paid attorneys on staff, and Villard did not hesitate to borrow his Post counsel. The NAACP’s National Legal Committee—to be overseen by Joel Spingarn, whose interest in the Steve Green case had just brought him on board—was not yet fully in place. The defense of Tom Williams would be paid for with money from the association’s general coffers, which included Spingarn’s recent one-hundred-dollar donation.
The NAACP announced its role in the case through a story in the third issue of The Crisis, published in January 1911.
“A little innocent schoolgirl is brutally murdered,” wrote W. E. B. Du Bois. “A Negro vagabond is arrested. Immediately, the news is heralded from east to west, from north to south, from Europe to Asia, of the crime of this black murderer. Immediately a frenzied, hysterical mob gathers and attempts to lynch the poor wretch. He is spirited away and the public is almost sorry he has escaped summary judgment. What proof was there against this man? He was lazy, he had been in jail for alleged theft from gypsies, he was good-natured and he drank whiskey. That was all. Yet he stayed in jail under no charge and under universal censure. The coroner’s jury found no evidence to indict him. Still he lay in jail.”
On the morning of December 9, 1910, after Black Diamond had been imprisoned for twenty-seven days, Ames and Glenny arrived at Justice Voorhees’s chambers in New Brunswick for the 11:00 a.m. habeas corpus hearing. Tom Williams was not taken from his cell to attend the hearing—Ames told Justice Voorhees they didn’t need him there.
Representing Monmouth County—Prosecutor Applegate and County Sheriff Clarence Hetrick. Applegate told Voorhees they had enough evidence of Williams’s guilt to justify keeping him in jail until he could undergo a thorough grand jury investigation.
Brooks, who took the lead, argued that no charges had been filed against Williams, nor was he plausibly a material witness. After all, he had not been called to testify at the coroner’s inquest just weeks earlier. Williams hadn’t even been deposed about his whereabouts on the day Marie Smith disappeared. There was no evidence whatsoever that showed Williams knew anything about the crime at all. Describing him as a witness, Brooks argued, was a ruse to keep him locked up.
Justice Voorhees asked Applegate for the evidence against Tom Williams. Applegate said he could not reveal it because it hadn’t yet been presented to the grand jury. Voorhees had heard enough testimony, and delivered his verdict. He concluded Tom Williams had not been properly committed to jail as either a suspect or a witness.
Therefore, he ordered Williams released from the custody of the sheriff’s office immediately.
With that, Tom Williams—who had never been an official suspect in the murder of Marie Smith—ceased to have any legal connection to the crime, save for the suspicions of many in Asbury Park who continued to believe Williams was indeed guilty of the savagery.
The judge’s ruling meant Williams was free to go.
But, in truth, he wasn’t. John Applegate had made sure of that.
Applegate had a surprise for the New York City lawyers. He produced an affidavit from Edward Cashion, the keeper of the Monmouth County Jail in Freehold. In the affidavit, Cashion testified that Williams confessed to voting twice in the gubernatorial election held on November 8, one day before the murder of Marie Smith.
According to Cashion, Williams admitted he was not eligible to vote because he’d served eighteen months in jail for a prior felony. Nevertheless, on November 8 he voted twice—once in the second district of the first ward in Asbury Park, and again in Oakhurst, a town four miles north—under the pseudonym Thomas E. Morris. Applegate also produced voting records that proved Williams had voted twice. This was clearly a crime, and Applegate had already prepared an arrest warrant, and he served it on Tom Williams in his jail cell two days earlier.
The NAACP lawyers were knocked off balance. Ames and Glenny did not challenge the new charge against Williams, but they did ask Justice Voorhees to set bail for their client. Voorhees had to get a sentencing book and look up the maximum penalty for voting after having lost the right of franchise. He found it was punishable by up to two years in prison and a fine of five hundred dollars. The penalty for voting twice was three years in prison and a fine of one thousand dollars. Voorhees totaled the monetary penalties and set Williams’s bail at two thousand dollars.
The hearing was over. Justice Voorhees congratulated Ames and Glenny for their work on Williams’s behalf but said he could do no more for their client. There was no way Williams could raise his bail money, which meant he would stay in jail. And as long as Williams remained in jail—and couldn’t leave town, as Steve Green had done—Applegate had a chance to try him for the murder of Marie Smith. Despite the lack of a good case against him, it was not hard to imagine such a trial happening.
As one local newspaper put it, “It is admitted that the evidence against Williams is purely circumstantial—but many a man has been convicted on less.”