San Francisco City Hall Courthouse, San Francisco, February 23-27, 1884
On the first day of the trial of George Kwong, there were thousands of demonstrators, mostly women, assembled outside the courthouse on Market and Van Ness Streets. Clara noticed that her friend from the Women’s Suffrage Movement, Ellen Clark Sargent, was outside speaking to the assembled and handing out membership flyers. Clara often attended meetings of the Century Club at Ellen’s home on Folsom Street.
The City Hall itself was a metaphor for public corruption. Its construction began in 1871, originally planned in the French-style, on the triangular space of the former Yerba Buena Park, which had previously been a cemetery. So many different contractors made a profit from the years of construction that they were fired, and others, even more corrupt, took their place.
The cheap, Greek-style structures that resulted had walls filled with sand, and the City Hall buildings had two entrances, one of which faced North toward Van Ness and Nob Hill, where the wealthy could drive-up to the carriage entrance to do their business. The South-facing entrance to the City Hall structures was where Clara and the demonstrators were. This was the Market Street side, which included the infamous “Sand Lots,” where the labor unrest and Chinatown riots had begun.
As Clara passed by the suffragette group, on her way up the steps to the courthouse, Ellen Sargent waved. “You are our standard bearer, Clara Foltz! Portia of the Pacific, representing the rights of the underclasses, including women, is on her way to victory over the patriarchal powers. Just last year, this male-dominated system terminated the jobs of all the women inside San Francisco’s City Hall and replaced them with men. Why? Not because the men were more competent at the jobs. No, they were replaced because men could vote. That’s why we need to get that voting rights power, once and for all time!”
Inside the courtroom, the atmosphere and populace that made-up the ingredients of this so-called fair trial were diametrically opposed to the women outside demonstrating. As she had deduced earlier, Mayor Bartlett had hastily ordered a kangaroo court against Clara’s client, George Kwong.
She had only one week to prepare her case, and during that week she had to assess the tangible evidence, appear at the all-male Voir Dir jury rejection (she had to reject those jurists who were blatant racists), and bring George to the pre-trial hearing, where she argued for most of two hours, with the Judge, Randolph Hoffman, a man she had never before seen, to allow testimony from Chinese witnesses. She believed it was a pyrrhic victory when Hoffman permitted the testimony, because he warned her that her Asian witnesses could not be used as expert witnesses or eyewitnesses to a crime.
Now, as the trial docket was set, and she moved to her defense table on the left side of the courtroom, she noticed with satisfaction that Captain Lees and Detective Vanderheiden were seated directly behind her and not on the prosecution’s side of the room. The two men would be testifying for her during the trial.
Ah Toy had been permitted to act as the court’s translator and her personal legal assistant. Clara could smell the cigar and cigarette smoke coming from the visitors’ gallery, and she smiled to herself when she realized that most of the visitors were male as well. The patriarchal hordes. Just the way she liked it.
District Attorney Matthew C. Welles, Jr., was her adversary. He had a contingent of two other lawyers on his team of prosecutors, and they all dressed like pall bearers at a funeral. Black suits and ties, white shirts, and the collective demeanor of funeral directors. She assumed it was George Kwong’s funeral they were going to prosecute.
“All rise!” the bailiff announced, standing next to the American flag. “The Honorable Randolph Charles Hoffman presiding in the case of the State of California versus George Bai Kwong.”
Clara felt a lump in her throat, as she always did whenever she had to try a case. She had never graduated law school, and there was a voice inside that made her remember that fact. Even though she had made many male graduates look ridiculous, when she took the oral Bar Examination, as her photographic memory could recite most of the California Codes and Criminal Procedures verbatim.
Welles gave his opening statement to the 12 members of the jury. Unlike Clara, he was not a pacer. He spoke from his position of authority behind the prosecution’s rostrum, but his voice was a deep baritone, and it was loud, so he need not visit each jurist the way Clara did when she addressed the panel.
“Gentlemen, I represent the people of the State of California. They have appointed me today to show you how the accused, George Kwong, was jilted by the victim, Miss Mary McCarthy, and in response, Kwong did knowingly and willfully attack her in the residence at 814 Sacramento Street at approximately seven in the evening of February 12, 1884. The State has a witness you will hear who will testify that George Kwong had a fight with the victim on the day before her murder, and another witness will explain how Kwong had learned to autopsy corpses while working as a coroner’s assistant for a summer in Oakland. The victim, Miss McCarthy, who was trying to become an honest woman, was pulled back into prostitution by Kwong and his father, Andrew, who are well known to profit from such illegal enterprises in Chinatown. We will show that McCarthy was keeping money from such prostitution for herself, and that this enraged Kwong so much that he murdered her and stripped her corpse down to a mere skeleton, using the post-mortem kit he obtained from his job in Oakland. Kwong wanted to make Miss McCarthy an example to other women who would attempt such independence in the future.”
There were several gasps and groans from jury members during his speech and a few shouts from the audience.
“We shall also show that this planning against independent prostitutes was well known by the police, especially the Chinatown Squad, and that the Kwongs kept a strict business practice and detested any such absconding of money by women like Miss McCarthy. In fact, their Tong enforcers, the San Ho Jui, or Triad Society, made certain these women were kept in line and paid the Kwongs regularly for their work in the flesh trade. We know this murder can be the tip of an iceberg of corruption in Chinatown, and these criminals, left unchecked, will continue to import and kidnap innocent women to continue their business. Miss McCarthy’s murder is perhaps the beginning of a widespread conspiracy to plant terror in the minds of women who would think about going against the dictates of the criminal element in Chinatown. Mister George Kwong, who is guilty of enforcing the will of his elders, must pay for his criminal act, and we are here to prove his murderous guilt beyond any reasonable man’s doubt.”
“Thank you, Counselor. Missus Foltz? Would you like to give your opening statement?” Judge Hoffman turned to Clara. She rose from her chair, spread out the front of her conservative, dark-blue dress with the medium-sized bustle in the rear, and walked over to stand in front of the jury.
“Shall we get the rather obvious facts out of the way first, Gentlemen? I am a female representing another minority, a Chinese man by the name of George Kwong. I have no obligation by law to prove that Mister Kwong did not commit this heinous murder. No, the only requirement to defend him, since he is not guilty in the eyes of the law up until that moment when Mister Welles proves his accusations to you, is to show you the number of ways my client may have not reasonably committed the act in question. This horrible act was done to a woman, Miss Mary McBride, who was in love with my client, and he was in love with her.”
A few men in the audience laughed. Clara began to pace, moving from one juror to the next and looking each in the eyes.
“In fact, the defense will show through testimony and evidence that George was attempting to get her out of her sinful profession and not into it, as the prosecution alleges. I will not argue that Andrew Kwong is innocent of taking money from the Tongs, who run the prostitution and other illicit enterprises inside Chinatown. Instead, I will show how these illicit businesses have come about because of many years of racism and restriction of basic human rights. The Chinese in San Francisco came to our city with the hope of eventually becoming citizens. However, their overlords in southern China, the Manchu, and their overlords in this country, the owners of the railroads, conspired together to prevent these innocent workers from gaining any civil rights in these United States. Instead, they were attacked and some were murdered by mobs. They were not allowed outside of their ghettos to mingle with their fellow workers and citizens, and they needed protection just to exist. The Tongs became that protection, and they were often independent from the Six Companies because they threatened men like the Kwongs with violence if they did not submit. Did the authorities help them gain respect and citizenship? No, instead, they appointed a special Chinatown Squad to harass and to subject them to demeaning searches and, in some cases, even killing babies with deadly fumigants and sprays.”
Several of the jury members said “No!” Others frowned and coughed.
“Counselor Foltz. Please stay on the topic of murder in the first degree.” Judge Hoffman admonished her by striking his gavel.
“It’s all related, Your Honor. The Kwongs were two men who worked the most to show they were part of our community. Andrew learned to speak fluent English, and he even converted from his natural-born faith to become a Methodist. His son, George, worked with him on the only permitted newspaper, The Oriental, so they could spread the good, Christian news of redemption and hope to his fellow Chinese. These were not men who detested our culture. These were men who loved our city and our citizens. Why would George want to jeopardize his future by killing a white woman? We women have so few rights as it is. Why would a good, upstanding Chinese man want to kill the woman he loved and to whom he had devoted his time in order to save her from the world’s oldest profession? This is a profession which women have been forced to enter, when their rights were violated, when men have raped them and then gone unpunished. George Kwong wanted to save his lover, Mary McBride, not kill her. Love does not kill. Love preserves. It preserves our human dignity, and it returns our basic human rights to us if we earn them, just as the Kwongs have earned them. Thank you, kind Gentlemen of the Jury.”
“Mister Welles, you may call your first witness,” Judge Hoffman pointed to the Bailiff to swear in the summoned person by the witness stand.
“Your Honor, I call Stanley Boscombe to the stand.”
The young journalist from the San Francisco Examiner walked over to stand before the uniformed Bailiff. “Please raise your right hand, and place your left hand on the Bible,” the Bailiff instructed. Boscombe, as well as all the other witnesses that day, did so. “Do you solemnly swear, to tell the truth, the whole truth and nothing but the truth, so help you God?”
“I do,” Boscombe said.
“You may be seated,” the Bailiff said.
Stanley Boscombe sat down in the witness chair next to the judge’s raised platform. Clara cross-examined three witnesses that day. Boscombe, whom the prosecution attempted to use as a witness to George Kwong’s being present before the murder took place, was rebutted by asking him questions about the purpose of journalism. “Isn’t it the job of a journalist to be on the scene of a crime in order to transcribe what occurred? Could my client have been there to take a photograph of the crime scene? Did George Kwong have a weapon on him?” These interrogatives were all answered in the affirmative, except the last, which was a “no.” Clara knew it was her purpose to put a reasonable doubt in the minds of the jurors, nothing else, and this was what she did.
The second witness for the prosecution was Rachel Benedict, the teacher at the Methodist Home for Wayward Women in Chinatown. She was on Clara’s list of prime suspects, even though Clara doubted that she had performed the actual murders. Captain Lees explained that the strength required to flay a woman the way those victims had been dissected, most definitely required the force of a male. Of course, Benedict could still be guilty as an accessory.
Welles’s line of questioning attempted to prove that the personal relations between George Kwong and Mary McCarthy had been toxic and that when George left the mission that day before the murder, he was especially angry at McCarthy.
Clara cross-examined Benedict by asking pointed, yes or no, questions. Did the Defendant bring Mary McCarthy to you for help? Did the Defendant help you by giving money to the home? Did you see George Kwong and Mary McCarthy enjoying themselves? Did the argument you witnessed escalate into anything physical? All of these answers, except the last one, were answered affirmatively, and Clara believed she had planted her seeds of doubt in the minds of the jurors.
The final witness for the prosecution that day was the coroner from Oakland, Travis Goodbody. As predicted, Goodbody was asked to identify George Kwong as the man he employed for the summer internship. The second attorney on the prosecution’s team, William Varson, did the questioning of this key witness. Varson had a habit of looking back at the judge after every question, as if he were pleading to God. Clara, on the other hand, always gave her reiterations of witness responses directly to the jury. The jury, after all, decided the guilt or innocence of her client.
Varson continued with his examination of the coroner by bringing forth the Civil War post-mortem kit, the alleged tools used to strip the flesh and hone the body of the victim. Varson asked several highly technical questions about how this process could be accomplished on a female body, and Goodbody swore that these tools could do the job. Clara objected when Varson tried to ask whether George Kwong asked Goodbody any questions relating to using any of the tools to kill someone, and the judge, thankfully, sustained her demurrer, and struck the question from the record.
Clara had her own rebuttal witness, whom she would be presenting after the prosecution was finished with its witnesses, and she smiled over at him after she asked Goodbody her only cross-examination question. “Do you keep your tools under lock and key?” When Goodbody said “no,” Clara turned around and grinned at Lees, and he smiled back.
Later that evening, Ah Toy told Clara she believed the first day had gone well, especially Clara’s brilliant opening statement. The defense team, composed of Clara, Ah Toy, Captain Lees and his partner, Dutch Vandenheiden, were dining together at the Luck Dragon in Chinatown. The large restaurant was filled with many of the visiting female demonstrators from across the United States, and Clara was somewhat of a celebrity to them.
The owner, Stephen Fong of the Hip Kat Company, was personally seeing to it that Clara and her party were given the royal treatment. The table was filled with the most delectable and freshest dishes, and their teapot was refilled regularly during the meal.
“It all seems so choreographed and ritualized. I keep thinking I’m simply talking to walls with animal trophy heads on them. Don’t you agree, Isaiah? This is just a kangaroo trial.” Clara sipped from her small teacup, and then wiped her lips with a cloth napkin.
“What do you have planned, Clara? You knew this would happen going in because I told you as much. Despite your newspaper victory, and all these demonstrators, the country is still against the Chinese. The economy’s been hemorrhaging jobs like one of this killer’s victims, and the Chinese are seen as threats to the few remaining jobs for men.” Captain Lees picked up a fried wonton and began to chew it.
Clara looked over at Ah Toy. “Shall I tell them?”
Ah Toy nodded. “I think you need to at this point.”
“You never told me you would have one of your men, a Detective O’Brien, I think his name is, following me around day and night. Well, I never told you that I have a plan to bring the real killer out of hiding.” Clara plunged one of her chopsticks into a bowl of fried rice. “I informed every suspect on our list that he or she was the murderer. I also told them I was going to prove it as a surprise during the trial.”
Lees pounded his fist on the table. “You did what? Are you insane?”
“Now wait a minute, boss. Why would telling them they’re guilty do anything to bring them out? Why would they risk killing Clara until they knew what she had on them?” Vanderheiden said, twirling the end of his auburn mustache.
“What do you have on this real killer? Who is it?” Lees scowled at her.
Clara looked down at her hands. She felt the same way she had when she lied to her father while she was secretly meeting Jeremiah Foltz. She looked back up and confronted Isaiah’s eyes. “I don’t have anything, really. I need to prove a few things first. I just thought since this was a kangaroo court anyway, I would just …”
“Just commit suicide?” Lees roared.
“If the killer tried to get me, then I would save some other poor woman. Besides, you gave me the gun.” Clara was now whispering.
“I gave you that gun to give you confidence, not real protection. This killer obviously means business. I wouldn’t doubt he knows how to wear a bulletproof vest. Your Derringer’s bullets would be like hitting the killer with two beanbags.”
“I agree with Detective Vanderheiden,” Ah Toy said. “This murderer won’t risk killing a famous person like Clara. Not unless Clara named that person in court and proved why he or she is guilty.” Ah Toy took Clara's hands into her own and engaged her eyes. “Since you won’t be showing anything like that during the trial, then there is no danger.”
“What do you think is our best way to proceed? I am going to put you on the stand, Isaiah, and the questions I will ask are going to relate to the way this city has its hands in corrupt activities. What if you lose your job?” Clara stared hard at the Captain of Detectives. Even though she had known him just a brief time, she cared about him.
“I can only tell the truth. If my superiors can’t handle the truth, then my job isn’t worth my time and effort. I’ve already told you a lot of what you used in your opening statement today. Also, when you wrote that editorial about how the Chinese are being treated, I was completely supportive. I do agree with you about this being the only way to fight this accusation against your client. Without you, Clara, George Kwong would already be hanging from Russian Hill.” Lees grasped Clara’s hands and scowled.
“All right then. We will attempt to put the mayor and the Chinatown Squad on trial, if that’s the only way I can fight. I need to get some sleep now, so I bid you all adieu, my friends. Thank you for your cooperation.”
Clara stood up, arranged her hat, and buttoned the top button at her throat. “Once more, into the fray!”
The next day in court, the prosecution finished its presentation of evidence and witnesses. Sheriff Connolly, the arresting officer, testified that his men found the post-mortem kit under George Kwong’s mattress, and when asked about it, the Defendant had told him he did not know how it got there. Clara was able to get Connolly to admit that anybody with access to the house could have placed the kit under the mattress. She also pointed out the fact that as the Coroner for the City of Oakland, Travis Goodbody was also affiliated with the police department. She asked Connolly if police did favors for each other in order to get a conviction, and the sheriff admitted that “in order to make the law run smoothly, its officers needed to cooperate to convict a murderer.”
Welles and his prosecution team spent the rest of the day presenting detailed charts and statistics that claimed to show how Chinatown profited from its prostitution businesses. When Welles said that it was “common knowledge” that when a woman became independent, she was a direct threat to the profits made by the Six Companies, especially Andrew Kwong and his family, Clara objected. She explained to the judge that this was hearsay, and without specific contracts or testimony proving that the Kwongs profited directly from Chinatown prostitution, it was inadmissible. Sadly, Judge Hoffman overruled her, and permitted the accusations and statistical information.
Clara spent that night coaching both Captain Lees and her assistant, Ah Toy. They were going to be the first two witnesses she was going to call. She first spent a half hour at the Luck Dragon talking with two journalists from the East Coast who were covering the trial for their newspapers. One, a gentleman from the New York Times, seemed more interested in the fact she was the first woman lawyer in California than he did about the case itself and what it represented. The second, a woman, who was writing for the private newspaper of the Women’s Suffrage Movement under Susan B. Anthony, was more sympathetic to the plight of Clara attempting to get a fair trial under such patriarchal hegemony.
After they left, Clara went over what she was going to try to do with her questions the next day in court. “I want to show how the Chinatown Squad was formed, and I want to show how it has treated the Chinese unfairly from its inception. Also, I want to prove that independent prostitution has been permitted in the past, and that women like you, Ah Toy, have actually made a success of it under dire circumstances.”
“I think you should talk about the so-called post-mortem kit again,” Lees pointed out. “Those tools are too small and flimsy to be used to slice through thick muscle and sinew. When Dutch and I found the body, our first thought was that a Tong member had done the work because they use these large hatchet-like knives that would be ideal for this kind of hideous flaying of a human body.”
“Good thinking, Isaiah,” Clara said. “I thought those tools looked small. After all, they are meant to be used on the battlefield during the war, as anything larger would have been cumbersome.”
“I’ll tell you anything you need to relate about the business, Clara, you know that. Besides, if Missus Hopkins found out I was in the news she would find it humorous. The first thing she told me when she found out I had been a Madame was that husbands should pay their wives more for that activity. If they did, then maybe the husbands wouldn’t have to frequent bordellos so often.”
It rained all the next day, and during Clara’s questioning, there were flashes of lightning and bursts of thunder. It was as if the gods were taking her to task for the information she was spreading about the corruption of police in San Francisco.
She was objected to five times by the prosecution, but she knew Captain Lees had already responded, so the jury was able to hear his testimony nevertheless. It was a trick her lawyer father taught her about being a lawyer. “The horse is already out of the barn,” was the way he put it to her.
Lees testified that he believed the Chinatown Squad was established because of the passage of the 1882 Exclusion Law. The pressure put upon the Chinese was meant to be so awful that they would leave San Francisco. That’s also when the captain of detectives reported that he had seen a Chinese baby killed from the fumigation by Jesse Brown Cook of the squad. “The Sheriff blamed every outbreak of disease on the Chinese,” Lees testified, and Welles objected. Lees even testified that the Chinatown Squad was often more of a hindrance to crime fighting than it was an aide. When Clara asked if Lees believed people in public office were benefitting from the persecution of the Chinese, he answered in the affirmative (objection).
Lees also gave an excellent explanation of how he believed the so-called “flaying equipment” used by the Defendant would not have done the job. Clara let him pick-up the variety of small knives and scalpels to show on her arm (with sleeve rolled up to the pleased attention of the male jurors) that the apparatus could not cut through muscle and tendon very easily. Then, Clara brought over a Tong hatchet, and Lees showed how much more powerful it could be wielded because of the large and sharp blade.
It was her questioning of former Madame Ah Toy that really got the attention of jury and of the newspaper journalists in the audience. At one point, Ah Toy stood up in her red silk qipao to show the jury how she danced for her male patrons. Even Judge Hoffman was so transfixed by her undulations that he forgot to admonish her until five minutes into her act. Clara had made a point of showing that being an independent prostitute was more beneficial to the woman than being held hostage and sold in slave auctions, which was the way the gangsters in Chinatown wanted things to be run.
The final day, Clara brought to the stand her Chinese contingent of witnesses. With Ah Toy acting as translator, she questioned the head of the San Ho Hui, Xi Ming, who testified that he often paid bribes to various police officials so as to keep them from arresting his women. Welles objected that Ming was “no expert witness,” and the judge sustained his objection. Clara also interviewed Andrew Kwong at length to explain the good deeds he did for his community and for the Methodist Church and its outreach. He also testified about his son, George, and that he had never had any discipline problems from him at all. Clara also interviewed the minister of the Tin How Temple, Guan Shi Yin, who stated that George helped him with religious services and ceremonial duties. Finally, Clara questioned a Chinese prostitute who knew George. She stated that George was always trying to get women out of the profession and into a “respectable line of work.” She also said she knew that was what he was doing with Mary McCarthy.
When instructed by Judge Hoffman to present their final summations, Welles did not speak. He had brought in a special closing argument specialist, one Harold Rossiter, a Sacramento District Attorney. Rossiter, unlike the “pallbearer” Welles, spoke to each of the male jurors individually. His most passionate and affective speech came when he was discussing the threat of violence and disease on womanhood.
“If you allow this man to go free, what are you telling our Christian women in San Francisco? That you care nothing about their lives? For, make no mistake, Gentlemen. This killer will strike again. He has already chosen a white woman, and who will be the next victim? It could be your wife, sir, or yours, sir! The bloody handwriting is on the walls of Chinatown’s opium dens and inside its brothels. Unless you put a stop to it, it will become an infestation of gruesome murders, and the blood will be on your hands, Gentlemen, unless you vote today for a conviction of murder in the first degree!”
In her closing statement, Clara thought she was not going to do it, but she did. She mentioned the seven Chinese prostitutes who had been killed. However, she was quite innovative about doing it.
“I know you swore that you never read anything about this case before becoming a jurist. I must say that is how our system works best. Jurors must not be emotionally swayed by members of the press before or during a trial. That is why we have jury sequestration. I must tell you that there have been women murdered before Miss McCarthy, Gentlemen of the Jury. But they were Chinese women, and they were also independent women, trying to be like my witness Ah Toy. They simply wanted to be able to work their way out of this life of sin and brutality in order to see another day of hope. But, they were struck down in their youth, just like the victim in this case. George Kwong, my client, had no reason to commit this act of brutality. He wanted to save women like her from this life. He could not save the seven others of his own race, and he could not save the life of the one woman with whom he fell in love. The weapon was not seen in his hand, the testimony of his anger at Mary McCarthy is mixed, at best, and the fact that he worked one summer as a coroner’s apprentice speaks to the fact that my client wanted to learn another trade besides journalism. He was not planning to kill anybody, and he just wanted what his father, Andrew, was attempting to get. Respect as a citizen of San Francisco, who wanted to become a United States citizen one day and sit with you outside the ghetto of Chinatown. You must acquit my client today, Gentlemen, for the good of humanity and for the best interests of justice.”
It took only six hours for the jury to deliberate. When they filed back into the courtroom, Clara and Ah Toy had returned from lunch. They stood at their positions at the Defense table. Clara kept staring at the American flag as Judge Hoffman requested the verdict from the jury foreman. The foreman, a short man with a brush mustache, looked tired.
“Has the jury reached a verdict in the case of the State of California versus George Bai Kwong?” Judge Hoffman asked.
“Yes, we have, Your Honor. We find the Defendant guilty of first degree murder.”
There were shouts and flashes from dozens of cameras. Outside, there were protesting screams from the demonstrators.
Clara and Ah Toy refused to talk to any journalists. Clara put her arm around George Kwong, who was crying unabashedly. She leaned over and whispered, “It’s not over yet. I know who the killer is.”