The Last Public Execution in America

by Perry T. Ryan

THE FEDERAL HABEAS CORPUS PROCEEDING

As a matter of strategy, Bethea's new lawyers' first plan of attack was to present the motion for new trial in the Daviess Circuit Court on July 11; however, the deadline for filing such a motion, under Section 273 of the Kentucky Code of Practice in Criminal Cases, required that the motion be filed by the end of the court term at which the defendant was convicted. Although the order which set the Special Term stated specifically that the term would last until July 4, 1936, Bethea's attorneys argued that the term actually ended when the only trial which it heard had concluded, i.e. on June 22, 1936.

On July 28, Bethea's new lawyers filed an appeal in the Kentucky Court of Appeals. Associate Justice Gus Thomas announced that he would return to Frankfort from Harlan, Kentucky, to rule on the appeal on the following day. Court officials told newspaper reporters that in cases such as Bethea's, the court was not required to hear an appeal but that it could do so in its discretion. Stephen A. Burnley took his papers to Frankfort and left them with Charles K. O'Connell, the clerk of the Court of Appeals. Burnley announced that if the Kentucky appellate court denied Bethea an appeal, his attorneys would seek relief in the federal courts.

Meanwhile, in Owensboro, the plans for the scheduled execution continued. The scaffold was scheduled to arrive on July 29, while G. Phil Hanna, the farmer from Epworth, Illinois, whom Sheriff Thompson had requested to assist her, was scheduled to arrive on Thursday, July 30. Sheriff Thompson had designated her chief deputy, Simon B. Smith, to be in charge of erecting the scaffold. Deputy Smith believed the scaffold would not be tall enough, so he used railroad ties, crossed in log cabin fashion, to build a deck-type structure upon which the gallows would be set. He completed construction of the deck on July 30.

Burnley filed a motion to grant appeal in the Court of Appeals as well as a motion to proceed in forma pauperis. The latter motion was a mechanism by which the poor could gain access to the courts without paying the required filing fees. Both motions are reprinted on the following pages.

COURT OF APPEALS OF KENTUCKY

RAINEY (RAILEY) BETHEA, APPELLANT

VS. MOTION TO GRANT APPEAL

COMMONWEALTH OF KENTUCKY, APPELLEE

Comes the appellant, Rainey (Railey) Bethea, by counsel, and files with the Clerk of the Court herein, a certified copy of the judgment of the Daviess Circuit Court in the above case and same is made a part hereof.

Appellant states that said judgment and sentence was rendered and pronounced at a special term of the Daviess Circuit Court, held on the 25th day of June, 1936, wherein said appellant was convicted of the crime of rape and sentenced to be hanged in said County, on the 31st day of July, 1936; that in the above mentioned proceedings appellant was denied the right and benefit of counsel; that he was denied the right to be heard by himself and counsel in this criminal prosecution, as is guaranteed under the Constitution of Kentucky, and section 11 thereof, and in violation of section 1 of the 14th Amendment to the United States Constitution, which provides that no person shall be deprived of life or liberty without due process of law, nor denied equal protection of the law.

Appellant also files herewith his affidavit in support of this motion and same is made a part hereof.

WHEREFORE, Appellant moves this Court to grant him an appeal to the Court of Appeals of Kentucky, and prays that a stay of execution herein be granted pending said appeal.

/S/ Anderson, Ray, Burnley, and Bonaparte

Attorneys for appellant

Commonwealth of Kentucky, Plaintiff

Vs. Motion and affidavit to prosecute appeal in Forma Pauperis

Rainey (Railey) Bethea Defendant

Comes the defendant, Rainey (Railey) Bethea, and states, on oath, that he is a poor person, without any property of any kind or description, and that there was rendered herein against him a verdict and judgment, at a special term of the Daviess Circuit Court, held on the 25th day of June, 1936, and sentencing this defendant to be hanged on the 31st day of July, 1936, in said County and State, on the charge of rape.

Affiant says that he is innocent of said charge, and that his motion for a new trial having been overruled he now desires to prosecute an appeal to the Court of Appeals of Kentucky, but on account of his impoverished condition, he is unable to execute bond for costs, or furnish the necessary sum of money for his appeal.

He says that his cause is a just one, and he now prays the court to be permitted to prosecute his appeal in Forma Pauperis.

/S/ Rainey Bethea

Defendant

Subscribed and sworn to before me by Rainey (Railey) Bethea, this 20th day of July, 1936. My commission expires July 2, 1938.

/S/ R. Everett Ray

Notary Public, J.C.Ky.

[Jefferson County, Kentucky]

Like the trial courts in Kentucky, the Kentucky Court of Appeals operated in terms. When this motion was filed, the court was not in session. The clerk notified Justice Gus Thomas, of Harlan, Kentucky, that Bethea's attorneys had filed this motion. The next day, Judge Thomas traveled to Frankfort to rule on whether it should be filed. Justice Thomas heard the motion orally on July 29 and declined to permit the filing of the appeal, stating that the record had not been properly perfected for an appeal and that the record was so insufficient that it did not provide a basis for ruling on the case. Bethea's attorney only supplied a copy of the trial court's judgment, which did not include a transcript of the trial proceedings or a transcript of the court record. There was no explanation why a copy of the transcript could not have been obtained from the special court reporter, Birdie Woodward Anderson. At first blush, Bethea's young lawyers might appear incompetent, but they really knew all along that the appeal would be denied. They saw the whole proceeding as nothing more than a necessary stepping stone in which to get the case into federal court. In order to obtain federal review of a state court judgment, the convicted defendant was required to show that he had "exhausted" all of his state court remedies by pursuing every avenue of redress in the state courts. The denial of the motion for appeal in the Kentucky Court of Appeals paved the way for the federal proceedings, which will be discussed later.

Bethea's attorney's obviously knew that the motion would be denied by the Court of Appeals. Indeed, the pleadings for the next step were already being prepared, and immediately upon discovering that the Court of Appeals had declined to hear Bethea's appeal, on July 29, Bethea's attorneys filed a petition for writ of habeas corpus in the United States District Court for the Western District of Kentucky at Louisville. United States District Judge Elwood Hamilton issued a temporary writ of habeas corpus until he could decide whether the execution could proceed. Judge Hamilton spoke by telephone with Governor Albert B. Chandler as well as Kentucky Attorney General Beverly W. Vincent and decided that a stay of execution was not necessary because the temporary writ of habeas corpus ordered Jefferson County Jailer Martin J. Connors to bring Bethea to the hearing on August 5. By its own terms, the jailer would automatically be precluded from delivering Bethea to Owensboro authorities.

Also on July 29, Father Herman J. Lammers, assistant pastor of the Cathedral of the Assumption Church in Louisville, visited Bethea in his Louisville jail cell. Father Lammers had visited Bethea routinely, teaching him the doctrines of the Roman Catholic Church. After Father Lammers arrived at the jail, Bethea expressed his desire to be baptized and that he wished to receive Holy Communion, so Father Lammers performed the baptism at the jail. Edward L. Pope served as Bethea's godfather. To become a Roman Catholic, the church required the candidate's baptismal record to reflect that he was named after a saint. The priest permitted Bethea to choose a name from a book of saints' names, and Bethea chose "Joseph." Father Lammers noted in the church record that he had baptized "Joseph Rainey Bethea."

After the baptism, several newspaper reporters from New York, including the Associated Press, took about twelve photographs of Bethea.

Bethea's petition for writ of habeas corpus made accusations which appear to be false, but an attorney has an ethical duty to present the evidence according to his client's own version of the facts, and that is what they did in his behalf. The petition stated as follows:

IN THE

UNITED STATES DISTRICT COURT

FOR THE

WESTERN DISTRICT OF KENTUCKY

 

PETITION FOR WRIT OF HABEAS CORPUS

 

TO THE HONORABLE

ELWOOD HAMILTON, JUDGE.

 

Your petitioner, Rainey (Railey) Bethea, respectfully represents that he is unlawfully restrained of his liberty by Martin J. Conners [sic], jailer of Jefferson County, Kentucky; that the pretended cause of the said unlawful restraint and imprisonment is as follows:

That your petitioner was, on or about the 10th day of June, 1936, arrested by the Sheriff of Daviess County, Kentucky, or other officer of said County, and State, and immediately thereafter removed to the Jefferson County Jail, at Louisville, Kentucky, supposedly for safekeeping and to prevent mob violence to said petitioner; that during the above mentioned trip to Louisville, Kentucky, he was beaten by the officers who had him in charge, and threatened with death at their hands and of a mob, if he denied then or ever denied being guilty of the charge of rape for which he was arrested; that while in the custody of said officers and after his arrival at the Jefferson County Jail, he was again threatened and forced to sign, against his will or consent and contrary to the truth, what later developed to be an alleged confession by your petitioner of having committed the crime of rape, and which alleged confession was introduced and admitted in evidence against his [sic him] at the time of his alleged trial which was had on the 25th day of June, 1936, at Owensboro, Kentucky, at which time your petitioner was allegedly tried and convicted of the crime of rape; that on this same date he was sentenced and judgment pronounced that he be hanged on the 31st day of July, 1936.

Your petitioner further says that he was denied his rights under the Constitution of Kentucky, the right to counsel and the benefit thereof in his behalf and for his defense; that he was denied his Constitutional right to be heard by himself and counsel; that he did not have the benefit of counsel to prepare and present his defense and that no defense was made in his behalf; that although he asked that he be permitted to testify in his own behalf, at the trial, and to deny his guilt, and requested that certain witnesses be summoned to testify in his behalf, it was not permitted, and no witnesses were called in his behalf.

Your petitioner further says that he is not guilty of the crime of rape, or of any crimes, and that he is innocent, yet an alleged plea of guilty was entered for him but without his consent and against his will, and against the truth; that your petitioner did not plead guilty at any time, or was he permitted to take the stand in his behalf, and that he was not at any time told or confessed to anyone that he is guilty of said charge; that he has not had his day in court.

He further says that he is now deprived of his liberty and imprisoned, and that if the judgment of the Daviess Circuit Court is carried into execution on July 31st, 1936, that he will be deprived of his life without due process of law and in violation of his rights under the United States Constitution.

Your petitioner further states that his right to an appeal to the Court of Appeals of Kentucky, was cut off, denied, sacrificed and barred to him, by the attitude and effort and action of one of the attorneys appointed to defend him, and contrary to the truth, and that he was denied his Constitutional rights under the Constitution of the State of Kentucky and also his gaurantees [sic guarantees] under the United States Constitution.

Wherefore, your petitioner prays that a writ of Habeas Corpus may be granted, that the execution of the judgment of the Davies [sic Daviess] Circuit Court be stayed, and that he be discharged from such unlawful restraint and imprisonment.

 

/S/ Ray, Anderson, & Bonaparte

 

The petitioner, Rainey (Railey) Bethea, says that the statements of the foregoing petitioner are true.

 

/S/ Rainey Bethea

 

Subscribed and sworn to before me, by Rainey (Railey) Bethea, this 29th day of July, 1936. My commission expires July 2, 1938.

 

R. Everett Ray, Notary Public

Later on the same day, Bethea's attorneys filed an amended petition on his behalf. The amended petition stated as follows:

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE WESTERN DISTRICT OF KENTUCKY

 

PETITION FOR WRIT OF HABEAS CORPUS

 

Rainey (Railey) Bethea, Petitioner,

Vs. Amended Petition

Commonwealth of Kentucky Respondent.

TO THE HONORABLE ELWOOD HAMILTON, Judge of the District Court of the United States for the Western District of Kentucky:

Your petitioner, Rainey (Railey) Bethea states that he is now being unlawfully restrained of his liberty by Martin J. Connor [sic], Jailor of Jefferson County. And that on July 31st, 1936, he will be deprived of his life by the Sheriff of Daviess County. Your petitioner further states that the pretended ground of this unlawful restraint of liberty, and of this unlawful deprivation of life is a charge and conviction of the offense of Rape, pursuant to which conviction your petitioner was, in accordance with the law of the Commonwealth of Kentucky, sentenced to be hanged. However, your petitioner was was [sic] unable to present a defense to the charge of Rape which was preferred against him; because he was without Counsel. The Counsel appointed by the Daviess Circuit Court to defend him entered a plea of guilty for him against his wishes, failed to permit him or his witnesses to take the stand, failed to make a final argument in his behalf; although such an argument was made by the Commonwealth's Attorney, and, when the Court had sentenced him to die, forfeited his right to move the Court to grant him a new trial. All of this was done on the pretext that if your petitioner in any way denied or contradicted his guilt, that he would be killed in the court room by the enraged mob.

Your petitioner further states that he has filed a copy of the judgment in his case, which copy was duly certified, in the office of the Clerk of the Court of Appeals of Kentucky, and that at the same time he moved the Court of Appeals to grant him an appeal. However, his motion was overruled by the Court, this means that your petitioner has exhausted his remedies in the courts of the State, and that he, an innocent man, must pay with his life for a crime which he did not commit.

WHEREFORE, your petitioner prays that a writ of habeas issue, returnable , that he be discharged from the force and effect of the void judgment to which he is now subject, and that he be remanded for further proceedings in accordance with Your's [sic] Honor's wishes.

/S/ R. Everett Ray

/S/ Chas. W. Anderson

/S/ Harry E. Bonaparte

Attorneys for Petitioner

 

Your petitioner, Raniey [sic] (Railey) Bethea says that the statements contained in the foregoing petition are true.

[Not signed by Bethea]

Subscribed and sworn to before me by Raniey [sic] (Railey) Bethea this day of July, 1936.

My commission expires , 19 .

[Not signed or notarized]

On July 29, 1936, Judge Hamilton issued three orders. The first ordered a hearing to determine the merits of the petition for writ habeas corpus. The second ordered the Jefferson County Jailer to produce Bethea in court on August 5. The third permitted Bethea to proceed in forma pauperis.

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE WESTERN DISTRICT OF KENTUCKY

OWENSBORO DIVISION

RAINEY (RAILEY) BETHEA, PETITIONER,

VS. ORDER

COMMONWEALTH OF KENTUCKY, RESPONDENT.

 

This cause coming on to be heard on the petition of Rainey (Railey) Bethea for a writ of habeas corpus and the Court having read and considered the said petition, and being now fully advised in the premises,

IT IS ORDERED that a writ of habeas corpus issue as prayed in the said petition and that said hearing on said writ of habeas corpus be set for the fifth (5th) day of August, 1936, at ten oclock [sic] A.M., in the Court Room at the Federal Building, Louisville, Jefferson County, Kentucky, and Martin J. Connors, Jailer of Jefferson County, Kentucky, who has said petitioner in his custody is hereby ordered and directed to produce the said petitioner at the time and place above stated and not to deliver or surrender the said petitioner to any person whomsoever.

/S/ Elwood Hamilton

Judge

July 29th 1936.

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE WESTERN DISTRICT OF KENTUCKY

OWENSBORO DIVISION.

RAINEY (RAILEY) BETHEA, PETITIONER,

VS.

COMMONWEALTH OF KENTUCKY, RESPONDENT.

THE PRESIDENT OF THE UNITED STATES

to MARTIN J. CONNORS, JAILER,

JEFFERSON COUNTY JAIL, LOUISVILLE, KENTUCKY;

GREETING:

We command you that you have the body of Rainey (Railey) Bethea, by you imprisoned and detained, as it is said, together with the time and cause of such imprisonment, by whatsoever name he shall be called or charged, before the District Court of the United States in and for the Western District of Kentucky, at the Federal Courthouse in Louisville, Kentucky, on the 5th day of August, 1936, at ten oclock [sic] a.m., to do and receive what shall then and there be considered concerning the said Rainey (Railey) Bethea and have you then and there this Writ.

WITNESS, the Honorable ELWOOD HAMILTON, Judge of the United States District Court.

/S/ W. T. Beacham

Clerk of the District Court

of the United States

for the Western District

of Kentucky.

Issued July 29th 1936.

The foregoing is hereby allowed this 29th day of July 1936.

/S/ Elwood Hamilton

United States District Judge.

Reporters from various newspapers from New York City arrived in Owensboro late July 29, only to learn that Judge Hamilton had postponed the hanging.

A few days later, Harold Holl of the United States Marshal's office forwarded copies of the orders to Sheriff Florence Thompson, advising her that the orders did not affect her but that a stay of execution had been granted by the federal judge.

On July 30, Arthur Hash wrote Sheriff Thompson a letter confirming that he would execute Bethea on her behalf. His letter is reprinted on the following page.

P.O. Box 502.

Louisville, Ky.

July 30th, 36.

 

Mrs. Florence Thompson,

Sheriff Daviess County.

Owensboro, Kentucky.

 

Dear Mrs. Thompson:-

I am very glad you accepted my service, and free, as stated in my first letter, and let me say this to you I dont [sic] believe you will ever regret it. I want you to look at this case this way, "Rainey Bethea" was convicted for a terrible crime he him self admitted he did. he [sic He] was given a hearing, and he pleaded guilty, and was then given the death penelty [sic] which I know he rightly deserved. You are not asking me to do anything. I am doing it for the "Commonwealth of Kentucky, and for the sake of Society[.]"

I am sorry the execution was halted by Federal Judge Elwood Hamilton, but, I am almost sure the Judge will let the case stand as it was, and it will be only a short time untill [sic] the execution and again let me assure you I will be in your City at One O'Clock P.M. the day before the next date set. "That was my plan for to-day[.]"

Now Mrs. Thompson if by any chance I should not be on the train that leaves at 7:45 A.M. you may know I dident [sic] see the date set for the execution. if [sic If] as, and when it happens, that could happen, and if it should you be sure and call me Jackson. 9260 and I will catch the 4.45 [sic] train, and I will get in your City around 7 P.M.

I want to thank you for calling me, and I will again ask you to let no one see my letters. "I know you wont" [sic] assuring you I am always at your service, I am,

Your friend,

/S/ A. L. Hash

At 9:10 a.m., on July 31, Commonwealth's Attorney Herman Birkhead sent a Western Union Telegram to the District Court Clerk, W. M. Beckham. The telegram requested, "Send immediately copy of application of Rainey Bethea for writ of habeas corpus with bill=Herman A. Birkhead Commonwealths Attorney." The clerk complied with the request and mailed the copies, billing Birkhead for $1.95.

On Saturday, August 1, 1936, Birkhead mailed a letter to the clerk asking him to issue subpoenas for several witnesses, Robert M. Morton, J. R. Murphy, H. E. Crady, and George Koper. Birkhead asked the clerk to deliver the subpoenas to United States Marshal L. E. Cranor on Monday, August 3, to be served. Birkhead enclosed his check for $1.95 to pay for copies of the petition and the amended petition.

On the same day, Rainey Bethea's attorneys tendered a motion which requested the presence of several witnesses at the hearing on August 5. The motion stated as follows:

IN RE: RAINEY (RAILEY) BETHEA

PETITIONER FOR WRIT OF HABEAS CORPUS

STATE OF KENTUCKY

COUNTY OF JEFFERSON SCT.

Affiant, R. Everett Ray, attorney for the petitioner, herein, states that he expects to prove by witnesses in this case as follows:

By:R. M. Morton, E. R. Workman, H. E. Crady [sic W. E. Crady], George Koper, W. W. Kirtley, William Wilson, Carrol E. Byron, William Wells, Raleigh Bristow, and L. I. Dishman--

that petitioner was denied the right to be heard by himself and counsel, and that his rights generally under the 14th amendment to the United States Constitution were grossly violated; that petitioner was without counsel in any substantial sense.

By:Willie Mitchell, alias Willie Johnson, Lud Moorman, and Clyde Matty--

An alibi.

/S/ R. Everett Ray

Subscribed and sworn to before me by R. Everett Ray, this 1st day of August, 1936. My commission expires January 4, 1939.

Charles W. Anderson, Jr.

Notary Public, J.C.Ky.

[Jefferson County, Kentucky]

On the morning of the hearing in the federal district court, Bethea's attorneys filed a second amended petition for writ of habeas corpus, challenging the constitutionality of Section 273 of the Kentucky Code of Practice in Criminal Cases, which alleged as follows:

IN THE

UNITED STATES DISTRICT COURT

FOR THE

WESTERN DISTRICT OF KENTUCKY

PETITION FOR WRIT OF HABEAS CORPUS

2ND AMENDED PETITION

TO THE HONORABLE ELWOOD HAMILTON, JUDGE.

Comes your petitioner, Rainey (Railey) Bethea, and for a 2nd amended petition herein, respectfully represents as in his original, and amended petition herein, and further says that he was denied a fair and impartial trial; that he was denied due process of law; that the trial court, officials thereof, and the attorneys appointed for his defense, were completely dominated by mob spirit and the enfluence [sic] by fear of mob violence; that mob spirit and enfluence [sic] prevailed throughout the trial, thus preventing a fair trial to your petitioner.

Your petitioner further says that Section 273 of the Criminal Code of Practice, Carroll's Kentucky Code, which requires that application made for new trial be made at the same term at which the verdict is rendered, is a denial of due process of law, since your petitioner was convicted a few minutes before the end of the term.

Wherefore your petitioner prays as in his original petition herein.

/S/ Anderson, Burnley, Ray, Bonaparte

Attorneys for petitioner

The petitioner, Rainey (Railey) Bethea, says that the statements are true.

/S/ Rainey Bethea

Subscribed and sworn to before me by Rainey Bethea this 5th day of August, 1936.

R. Everett Ray

Notary Public, J.C.Ky.

[Jefferson County, Kentucky]

Since the prosecutors were in Owensboro, they prepared their answer to the petition and brought it with them to be filed on the day of the hearing. They met with the Jefferson County Jailer, Martin J. Connors, soon after their arrival in Louisville and asked him to sign the document shortly before it was filed in the clerk's office. The answer was filed with the transcript of the trial and copies of the indictment and the judgment of conviction, as entered by the Daviess Circuit Court. Also included in the answer were copies of the order directing the Daviess County Sheriff to transfer Bethea to the Jefferson County Jail, an order directing the return of the personal property of Lischia Edwards to her estate, a copy of an order directing the court reporter to prepare the transcript, and a copy of an order tendering the filing of a statement of evidence and a bill of exceptions. Jailer Connors' answer, as prepared by Birkhead, stated as follows:

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE WESTERN DISTRICT OF KENTUCKY

 

ANSWER TO THE PETITION FOR WRIT OF HABEAS CORPUS AND RESPONSE TO THE WRIT OF HABEAS CORPUS ISSUED BY THIS COURT IN THE MATTER OF RAINEY (RAILEY) BETHEA NOW PENDING BEFORE THE HONORABLE ELWOOD HAMILTON, JUDGE OF SAID COURT.

 

Comes the respondent, Martin J. Conners [sic], Jailer of Jefferson County, Kentucky, and denies that during the trip wherein Rainey Bethea was conveyed from Owensboro, Kentucky, to the Jefferson County Jail by the deputy sheriff of Daviess County on the 10th day of June, 1936, or at any time, he, the said Rainey Bethea, was beaten by the officers who had him in charge, or any officers, or by any one, or threatened with death at their hands or the hands of any one, or at the hands of a mob, or any person, if he denied then or ever denied being guilty of the charge of rape, for which he was arrested, and denies that any threats were used or any improper conduct was used by said officers, or any one, toward the said Rainey Bethea during the said trip, or at any other time, or that he was again threatened at the Jefferson County Jail, or any place, or forced to sign, against his will or consent, or in any manner, or contrary to the truth, or in any manner, what later developed to be an alleged confession by said petitioner of having committed the crime of rape, and he says that said statements and confessions were made by the said petitioner voluntarily and of his own accord, without any threats or misconduct on the part of the officers or under any promise of reward for immunity or in any manner; denies that his rights under the Constitution of Kentucky, or any Constitution, were denied him, or that he was denied the right to counsel or the benefit thereof in his behalf or for his defense, and denies that his constitutional right to be heard by himself or counsel was denied him, or that he did not have the benefit of counsel to prepare or present his defense or that no defense was made in his behalf; denies that he asked to be permitted to testify in his own behalf at the trial, or at any time, or to deny his guilt at said trial, or any time, or he requested that certain witnesses be summoned to testify in his behalf, or that said witnesses, if any he desired, were not present; denies that said petitioner is not guilty of the crime of rape, or any crime, or that he is innocent, or that any plea of guilty was entered for him without his consent or against his will or against the truth; denies that said petitioner did not plead guilty at said trial, or any time, or that he was not permitted to take the stand at said trial, or any time, in his behalf as a witness, and denies that he has not at any time told or confessed to anyone that he was guilty of said charge, and denies that he had not had his day in court; denies that he is now deprived of his liberty or imprisonment [sic] wrongfully or unlawfully, or that if the judgment of the Daviess Circuit Court is carried into execution on July 31st, 1936, or any time, that he will be deprived of his life without due process of law or in violation of his rights, or any rights, under the United States Constitution, or at all; denies that said petitioner's right to appeal to the Court of Appeals of Kentucky was cut off or denied or sacrificed or barred to him by the attitude or effort or action of one of his attorneys appointed to defend him, or any one, or that same was contrary to the truth, or that he was denied his constitutional rights under the Constitution of the State of Kentucky, or any law, or his guarantees under the United States Constitution, or any constitution or any law.

Further answering as to said amended petition, this respondent denies that the said Rainey Bethea is now being unlawfully, or at all, restrained of his liberty by Martin J. Conner [sic], Jailer of Jefferson County, Kentucky, or that, except as hereinafter stated, on July 31st, 1936, or any time, he will be deprived of his life by the Sheriff of Daviess County unlawfully or without right; denies that said petitioner was unable to present a defense to the charge of rape which was preferred against him because he was without counsel, or at all; or that counsel appointed by the Daviess Circuit Court to defend him entered a plea of guilty for him against his wishes, or at all, or failed to permit him or his witnesses, or any of them, to take the stand, or that the conduct of his attorneys, or any one, forfeited his right to move the court to grant him a new trial, and denies that all or anything that was done or anything that was not done in defendant's behalf was done on the pretext that if said petitioner in any way denied or contradicted his guilt that he would be killed in the court room by [an] enraged mob, and denies that said petitioner has exhausted his remedies in the courts of the State of Kentucky, or that he is an innocent man or must pay with his life for a crime which he did not commit.

Further answering, the respondent states that on the 22nd day of June, 1936, the said petitioner was indicted by a grand jury of Daviess County for the crime of rape, charging him with assaulting and ravishing Mrs. Lishia Edwards of Owensboro, Daviess County, Kentucky, and said indictment was returned in open court indorsed a true bill by the foreman of said grand jury and filed by the Clerk of the Daviess Circuit Court on said date of June 22nd, 1936, and thereupon said charge against said petitioner was set for trial in said court on the 25th day of June, 1936, and on said date W. W. Kirtley, Carroll Byron, Wm. L. Wilson, and Wm. Wells, four regular practicing attorneys of the Owensboro Bar, were appointed to represent the said petitioner in his trial, which was set for the said 25th day of June, 1936, and thereupon some of said attorneys spent their own money and went to the jail at Louisville, Kentucky, and consulted with the said petitioner and conferred with him in regard to the charge of rape, the crime with which he was charged in said indictment and for which they were appointed to represent the said petitioner in said trial, and summoned such witnesses as the said petitioner gave to them which he claimed were necessary to his defense and he was fully advised at said time as to his rights in the premises, and on the morning that his case was set for trial and [sic] he was returned to Owensboro, Kentucky, for trial, while in the custody of the Sheriff of Daviess County, Kentucky, he confessed to R. S. Weikel that he had raped and ravished the said Mrs. Elisha [sic] Edwards at the time and place charged in the indictment and desired the said R. S. Weikel to tell the jury the confession he was making, and he had confessed theretofore that he was guilty of said charge at the jail in Jefferson County and on the road of the Jefferson County Jail, and all of said confessions and statements were free and voluntary without any threat, hope of reward or immunity or through any persuasion or ill or wrongful advice from any one, and at said trial, after all parties had announced ready, he was asked by the Judge of the Daviess Circuit Court as to his plea to the charge contained in the indictment, namely, rape, he waived his formal arraignment and pleaded guilty and said plea was made personally by the said petitioner; thereupon numerous witnesses were placed on the witness stand by the Commonwealth to show the facts and circumstances in regard to said crime committed by the said petitioner against Mrs. Lishia Edwards and at the conclusion of the evidence he was asked, or the attorneys representing him in his presence were asked, by the Court if they desired to offer any evidence, and in response to same the attorneys representing said petitioner interviewed him in regard as to whether he desired to say anything or to testify in his case to which he replied in the negative and refused to testify. The witnesses for the said petitioner which he suggested to his attorneys to be subpoenaed were for the purpose of proving an alibi, and after his plea of guilty there was no proof necessary as to the alibi and no and no [sic] further successful defense that said attorneys could make for the said petitioner. The respondent further states that immediately after said trial said petitioner was conveyed to him as jailer of Jefferson County, Kentucky, and turned over to him by an order of the Daviess Circuit Court, which is in words and figures as follows:

 

It appearing to the Court that the defendant, Rainey (Railey) Bethea, has this day been convicted it is now ordered by the Court that he be forthwith taken to the Jailer of Jefferson County, in Louisville, Kentucky, and delivered to him, who will safely keep said Rainey (Railey) Bethea until called for by the Sheriff of Daviess County whose duty it will be to carry out the foregoing judgment of the Court.

And since said time this respondent has been holding said petitioner in custody by reason of said order and subject to the further orders of the Daviess Circuit Court.

A transcript of the record including the indictment and trial and the convixtion [sic conviction] of said petitioner on said charge of rape, together with a full and complete transcript of the evidence heard on said trial is filed herewith and made a part of this answer and response.

WHEREFORE, having answered, this respondent prays that said petition be dismissed and said writ of habeas corpus be denied or refused by the Court.

 

/S/ Martin J. Connors

 

Subscribed and sworn to before me by Martin J. Conners [sic], this the 5th day of August, 1936.

 

/S/ Mary N. Hogan

Deputy Clerk

United States District Court

On August 5, 1936, the hearing for Bethea's petition for habeas corpus was held at the Federal Building in Louisville before Judge Hamilton. Bethea was the first witness. Although no transcript of this hearing was prepared, he claimed that he had never pled guilty. He said that his court-appointed lawyers wanted him to plead guilty but that he had refused to do so. "If they had let me testify, I would have told them I wasn't guilty of that. They rushed things so I didn't know what was going on," he said. He also claimed that he had asked his attorneys to strike two of the prospective jurors from the jury panel but that they had refused to do this as well. Bethea also claimed that he had wanted to subpoena three witnesses to court to testify in his behalf but that the Owensboro lawyers had refused to do this for him.

Stephen A. Burnley, one of Bethea's attorneys, testified that he had attempted to file an appeal in the Kentucky Court of Appeals but that all state remedies had been exhausted before Bethea had filed his petition for habeas corpus in federal court.

The attorneys representing the Commonwealth of Kentucky presented several witnesses who denied Bethea's allegations that he had been threatened.

Edward R. Workman, of Louisville, testified that he was present in the Jefferson County Jail when he heard a confession made by Bethea before Robert Martin. He said that Bethea understood the confession and was subjected to no duress.

William W. Kirtley, one of Bethea's trial attorneys, testified that Bethea had told him he had signed one confession because he was threatened with a black jack and another confession because he was "doped." He said that Bethea had insisted to plead not guilty at trial but that on the morning of the trial in Owensboro, Bethea had told him that he wanted to plead guilty. Kirtley also testified that Bethea pled guilty "of his own volition." Kirtley stated that, at the conclusion of the Commonwealth's case, he asked Bethea whether he wanted to testify, but Bethea refused. Judge Hamilton asked Kirtley why a motion for a change of venue had been abandoned. Kirtley replied that none was necessary because Bethea had pled guilty. Kirtley said that Bethea was taken to the Jefferson County Jail for safe keeping after his arrest because of rumors of mob violence at Owensboro, but he further remarked that he now thought, "it would have been better for Bethea if he had been left in Owensboro." At this point, two of Bethea's lawyers could take no more of Kirtley's testimony and demanded that Kirtley explain. Kirtley rather humorously replied, "Well, if he had been kept there he would not have been bothered with you lawyers."

Following Bill Kirtley's testimony, William Wilson, the son of Judge Wilson, stated that Bethea had acknowledged that he had committed the crime and that he had implicated another black man, Bill Mitchell, as an accomplice.

Daviess Circuit Judge George S. Wilson testified next, stating that he believed that Bethea's lawyers had adequately performed their duties. One of Bethea's lawyers pointed out that his court-appointed attorneys were appointed only three days before the trial. Judge Wilson retorted that this was sufficient time where the defendant had pled guilty. One of Bethea's attorneys then pointed out that Bethea had not pled guilty at the time the court-appointed lawyers were appointed. He asked Judge Wilson whether this would have been sufficient time if the plea had been not guilty. Judge Wilson replied, "Absolutely not if the man has any defense at all." Judge Wilson said if the plea had been not guilty, he would have expected defense counsel to have moved for a continuance.

At 12:00 noon, Judge Hamilton recessed the hearing. Returning after lunch, Bethea's attorney C. Ewbank Tucker asked that Edward Workman be recalled. Meanwhile, Robert S. Weikel, Daviess County Jailer, took the stand. Weikel testified that Bethea had confessed his crime on the morning of the trial.

Jailer Weikel's testimony was confirmed by his son, Robert S. Weikel, Jr., who testified next.

Mrs. Elizabeth S. Triplett, a deputy clerk of the United States District Court in Owensboro, testified that she was present during Bethea's trial and that she heard him say "guilty" in response to Judge Wilson's question as to how he wished to plead.

L. D. "Birdie" Gasser, a reporter for the Owensboro Messenger, testified that he believed there had been no danger of mob violence in Owensboro at the time and that Bethea would have been safe without the state police having been sent there. "The people had too much respect for law and order to resort to violence," he said.

Deputy Sheriff Lawrence I. Dishman testified that as he drove a car to transport Bethea to Louisville, Bethea made some remarks pertaining to a confession but that he could not hear the details because Bethea was in the rear seat.

Following Deputy Dishman's testimony, Deputy Sheriff Albert Reisz confirmed Dishman's statement. Deputy Reisz also testified that, after the trial had concluded, Bethea told him that he "was glad that it was over." Bethea also told Reisz, "when a man does a thing like that, he ought to hang." Deputy Reisz stated that Bethea also expressed that, since he had confessed, he "felt easy."

Owensboro Policeman Raleigh Bristow testified next, confirming the testimony of Deputy Sheriffs Dishman and Reisz that Bethea had confessed.

Finally, Robert Morton, the Louisville lawyer/notary public who took Bethea's written confession in the Jefferson County Jail, testified that he had been called by Deputy Jailer Schmitt to come to the jail. Morton said that Bethea acknowledged the seriousness of the charge. He told Bethea not to sign the confession unless it was voluntary because it would be used against him. He said that Bethea stated that he had signed the confession voluntarily. Morton testified that he asked Bethea whether the officers were influencing his decision, and Bethea replied, "The only thing I'm afraid of is to go back to Owensboro." He testified that Bethea had said the officers had not threatened him.

Jefferson County Deputy Jailer Wallace Crady testified that on the second day that Bethea was in the Jefferson County Jail, he had called for him and told him that he wanted to tell him where the jewelry was hidden which belonged to the woman who was murdered. Crady said that following Bethea's confession, he telephoned the Owensboro police and gave them the facts. Crady testified that he learned a few hours later that the Owensboro police had found the jewelry where Bethea had said it was hidden.

During the rebuttal stage of the hearing, Bethea's lawyers recalled him to the stand. Bethea again denied that he had signed any confessions or made any incriminating statements. When shown his written confession, Bethea actually acknowledged his signature, but he stated that he did not know what he was signing when he signed it.

R. Everett Ray gave a closing argument on behalf of Bethea. Judge Hamilton would not permit Ray to continue uninterrupted, asking him several times, "What could they do after he pleaded guilty in open court? What would you have done?" Ray replied that he would have pleaded with the jury for a lesser punishment than death. Ray argued that Bethea's case was not distinguishable from the Scottsboro case.

The Scottsboro case, as it was called, was officially known as Powell v. Alabama, and was decided by the United States Supreme Court on November 7, 1932. The case involved seven black defendants who were charged with raping two white girls while the girls were on a train which was approaching Scottsboro, Alabama. The incident occurred on March 25, 1931. The defendants were indicted six days later, on March 31, 1931, and each of the defendants pled not guilty. The trial was held only a few days later. Each defendant was too poor to afford counsel, so the trial judge appointed counsel for them on the morning of the trial. The seven defendants were given three separate trials, each of which was concluded on the same day. After their juries convicted them, they were each given death sentences. In a scathing opinion, the United States Supreme Court reversed, stating that the appointment of counsel on the day of the trial was a denial of due process, since a fair trial could not be had with such little time to prepare. The complete citation of the case is Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932).

Ray also argued that the record disclosed that Bethea's trial counsel did not question the jurors, did not cross examine the prosecution's witnesses, did not address the jury, and failed to present a motion for a new trial. Ray noted that the fact that his counsel failed to make a motion for a new trial had cost Bethea his right to appeal to the Kentucky Court of Appeals.

Judge Hamilton denied Bethea's petition and ruled that the hanging could lawfully proceed. He announced his opinion orally, from the bench, stating in part, "The writ of habeas corpus was

designed to protect only the rights an accused person had under the common law, and these did not include any right whatever to an appeal." Thus, Judge Hamilton ruled that Bethea's trial attorneys' failure to ask for a new trial was not of such constitutional magnitude as to deny him any constitutional rights. "There is not a scintilla of evidence that any threats were made against this man. No witnesses have testified to them. There has been no testimony that violence was apparent. It has been denied." Judge Hamilton again asked what more Bethea's lawyers could have done, and he responded to his own question by saying, "There is very little that attorneys could say for a man who pleaded guilty to the crime of rape. It is time every man, white or black, learned that there is no argument for mitigation of punishment that juries will entertain." Judge Hamilton refused to accept Ray's argument that Bethea's case was not distinguishable from the Scottsboro case, pointing out that in the Scottsboro case, the trial judge had appointed "the whole defense bar" to assist the defendant. The United States Supreme Court held that this amounted to assigning no counsel at all. Judge Hamilton noted that Judge Wilson had appointed four attorneys to represent Bethea and that errors of judgment as to the procedure which they chose would justify a ruling that Bethea had been denied his constitutional right to counsel. Judge Hamilton also prepared a written order, which stated as follows:

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE WESTERN DISTRICT OF KENTUCKY

OWENSBORO DIVISION.

 

RAINEY (RAILEY) BETHEA, PETITIONER,

VS.

COMMONWEALTH OF KENTUCKY, RESPONDENT.

The Jailer of Jefferson County, Kentucky, having produced in court the petitioner, Rainey (Railey) Bethea, in obedience to a writ of habeas corpus heretofore issued by this Court, the petitioner was represented by counsel as follows:

Harry E. Bonaparte, Everett Ray, C[.] Ewbank Tucker, Stephen A. Burnley and Charles W. Anderson.

The Commonwealth of Kentucky was represented by Herman Birkhead, Commonwealth[']s Attorney of the 6th Judicial District; B. Vincent, Attorney General of Kentucky; and Sydney Neal, County Attorney of Daviess County, Kentucky, and the Commonwealth[']s Attorney tendered an answer and response to the petition, which is ordered filed.

The Petitioner tendered a Second Amended Petition, which is ordered filed, and, on motion of the Commonwealth[']s Attorney, the affirmative allegations of it were controverted of record.

Both sides announced ready for trial; the Petitioner introduced his own evidence, and that of his witnesses, and, after same was concluded, Commonwealth of Kentucky made a Motion to dismiss the writ of petitioner's evidence, but later withdrew said motion and began the introduction of his evidence, and, after the conclusion of all the evidence, and argument of counsel both for the Petitioner and for the State, the Court being fully advised, adjudges that the petitioner, Rainey (Railey) Bethea, is lawfully in the custody of the Jailer of Louisville, Jefferson County, Kentucky, where he was held under a judgment of the Daviess Circuit Court at the time of the issuance of the writ herein.

IT IS THEREFORE ORDERED AND ADJUDGED that the writ of habeas corpus heretofore issued be now dismissed, and that the petitioner, Rainey (Railey) Bethea, be and he is hereby remanded to the custody of the Jailer of Jefferson County, at Louisville, Kentucky, to be there confined and held according to law. The Commonwealth of Kentucky is to pay the costs of this proceeding.

/S/ Elwood Hamilton

Judge

August 5, 1936.

On the same day, in the Owensboro Police Court, Bill Mitchell, the man whom Bethea had implicated as an accomplice to his crime, was exonerated of all charges. Mitchell had been arrested on June 12, and had been held in the Daviess County Jail on a charge of vagrancy ever since. City Police Judge Robey dismissed the charge against Mitchell for lack of evidence, stating that he "had better go back to Tennessee."