The Last Public Execution in America
by Perry T. Ryan
EPILOGUE
Although many criticisms have been levied against the trial and
the hanging, most of the criticisms can be readily dismissed because
they are based upon falsehoods in the historical account of the
proceedings. Contrary to widely held belief, the Bethea trial does
not represent a clear case of racial injustice, even though various
abuses toward blacks in the early twentieth century can be readily
documented. Although he was only convicted of rape, Bethea murdered
and robbed his victim while in the process of committing a burglary
at her residence. The evidence against him was not only substantial,
but overwhelming. Legal scholars familiar with the case do not
seriously believe he was innocent.
It is apparent that the Bethea trial and hanging may be criticized
for only four reasons. First is the criticism that the death penalty
should not be permitted under any circumstances. This view maintains
that capital punishment is always cruel or that it has not been shown
to sufficiently deter criminal behavior. Second is the objection that
Bethea was hanged in public and that even small children were
permitted to attend. Third is the argument that Bethea's trial was
unfair and that the death penalty, as applied to Bethea, was racially
motivated. Fourth is the view that Bethea's defense attorneys should
have done more to protect him before and during the trial.
The first two criticisms are general in nature and will not be
addressed here, even though the strongest arguments criticizing the
Bethea trial and hanging are those which object to the public nature
of the execution and those which criticize the death penalty in
general. There are a number of scholarly works which have already
been written upon these subjects, so the reader is referred to those
works for further discussion. It is sufficient to say that there are
credible arguments that the death penalty does not actually deter
crime. The second argument, that death sentences should not be
carried out in public has found so much support that, since the
Bethea hanging, no state in the United States permits public
executions. In 1938, Kentucky abolished the law which authorized
public hangings, making the Bethea hanging the last public execution
in America. Lest there be any misunderstanding, I do not advocate
public executions, but it is quite a phenomenon that the abolition of
public executions in Kentucky was based upon several falsehoods
reported by an overzealous press. After interviewing many individuals
who were present at the hanging itself, I was unable to locate a
single spectator who agreed with the various press accounts of the
execution which reported a chaotic and disorderly "Roman Holiday,"
replete with disrespectful remarks and racial insults. No one
remembered any significant disorder at the execution.
As to the third criticism, that racism influenced the sentence
which was inflicted, modern historians can only speculate as to
whether this is a valid concern. Taking into account the historical
disadvantage suffered by blacks in the criminal justice system, we
can safely assume that being black did not enure a benefit to Bethea
when he was sentenced. While racial prejudice towards blacks might
have affected the sentence, the significance of racism is far from
being clear. A cursory analysis of the other hangings in Kentucky
which were conducted near the same time suggests that a white man
convicted in Daviess County of the same crimes which Bethea committed
might well have met the same fate, and consequently, race might have
been a nearly insignificant factor. While it is true that between
1920 and 1938, eight of the nine individuals who were sentenced to
die in Kentucky for rape were black, in 1935, only one year before
the Bethea hanging, a white man, Willie DeBoe, was hanged for raping
a woman in Livingston County, a few miles west of Owensboro. The
victim was raped, not killed. Indeed, she stood beside the gallows
when the sentence was carried out.
The fourth criticism is that Bethea's attorneys should have done
more to protect him before and during the trial. Bethea was
represented by four Owensboro attorneys. Bill Kirtley was an
experienced criminal defense lawyer who led the other three in their
efforts to save Bethea. Bethea's attorneys, who were appointed by
court order and who received no compensation for their services,
conducted an exhaustive search for evidence prior to the trial.
Kirtley and William Wilson, at their own expense, journeyed to
Louisville to interview Bethea and followed up on everything he told
them. They even prepared affidavits to request that the trial be
moved to some other county due to pretrial publicity. Only minutes
before the trial began, however, Bethea told them that he wished to
plead guilty. Although a guilty verdict was unavoidable under these
circumstances, Bethea's attorneys might have made a plea for mercy to
the jury during the closing argument stage of the proceedings. That a
man who had murdered, raped, and robbed a helpless seventy-year-old
widow would receive the death penalty in 1936 was almost a foregone
conclusion. It is indisputable that people received death sentences
for less outrageous conduct. At first blush, it might appear that
Bethea had nothing to lose at that point. However, it would not have
been unreasonable that his counsel believed a plea for mercy might
have had an adverse impact on the jury. It is quite plausible that
his attorneys were concerned that a plea for mercy might actually
inflame the jury, thereby assuring his death on the scaffold.
Considering the attitudes toward crime in 1936, Bethea was certainly
not in the best position to receive mercy. His lawyers no doubt knew
that, where a defendant sits silently with no defense whatever, there
was some hope that the jurors might have compassion for him and give
a lighter sentence. Attorneys certainly must make various strategic
decisions during a trial, and if this was the strategy of Bethea's
attorneys, they cannot be faulted. It simply is not fair to impose
modern standards of jurisprudence on attorneys of 1936.
Whether such a closing argument would have had any impact upon the
jury is also speculative. Given the historic tenor of Daviess
Countians in 1936, it is dubious that the strongest plea for mercy
would have saved Bethea. Jurors were not likely to be merciful upon a
murderer, whose passion caused him to rape his victim and whose greed
compelled him to steal her jewelry. Even under modern law, a prisoner
who wishes to claim ineffective assistance of counsel must prove not
only that his counsel's performance was defective but also that the
defective performance was prejudicial, or harmful to him. Since the
result would not likely have been different for Bethea, it is
doubtful that even the most skilled attorney could have saved his
life.
Bethea had an all-male, all-white jury. By modern standards, this
would be unfair and unconstitutional. Throughout the history of the
United States, many blacks have been given harsh sentences for the
crimes which they committed against whites. There are documented
cases in which white law enforcement officials coerced blacks into
pleading guilty to crimes of which they had no knowledge. Bethea pled
guilty to his crime. Bethea's guilt is as certain as such matters can
be. Although he was never charged with murder, burglary, or robbery,
the evidence conclusively establshed that he entered his victim's
home, raped her, strangled her, took her jewelry, and then fled to
avoid detection. Indeed, he made a total of five out-of-court
confessions. In one of them, taken before a disinterested notary
public, he told police where he had hidden the stolen jewels.
Following Bethea's instructions, the police found the stolen items
exactly where he said he had left them. Despite an exhaustive search,
no one in Owensboro knew of the location of these items, so Bethea
had knowledge of the crime which he would not have had without being
involved.
Some critics might think it was harsh to have imposed the death
penalty. Perhaps the death penalty is inappropriate under any
circumstances, but even if Bethea were tried today, modern Kentucky
law would authorize the same sentence because a person may receive
the death penalty for committing murder when an "aggravating
circumstance" is proven. In other words, a person who commits a
murder while in the act of committing another felony can receive a
death sentence. In the Bethea case, there was more than one
aggravating circumstance because, in addition to the murder, he
committed three additional felonies: rape, robbery, and burglary.
After a great deal of research into the case, I have reached, with
some confidence, the following conclusions:
1. The Owensboro Police conducted a thorough investigation under
difficult circumstances, an investigation that would be difficult to
match if the crime were committed today.
2. The Owensboro Police did not fabricate evidence of Bethea's
guilt, suppress evidence of his innocence, or in any way coerce him
into pleading guilty at trial.
3. Bethea received as fair a trial as could be expected under the
circumstances. He had the benefit of trial counsel. One of his
lawyers was experienced in criminal defense cases and provided
competent and effective representation. Although his counsel could
have made a plea for mercy during the closing argument stage of the
trial, such a plea would not have likely affected the outcome of the
case, considering the nature of the crime combined with Bethea's
guilty plea and the tendencies historically attributable to jurors of
the day. Indeed, his attorneys might have made a well-reasoned,
tactical decision not to make a plea for mercy, in fear that such a
plea might inflame the jury and thereby ensure his death.
4. There is no evidence to support the idea that Bethea was aided
in the crime by an accomplice.
5. No witness present at the execution remembered the crowd as
disorderly.
No one saw Bethea attack Lischia Edwards. The specific details of
her death will never be known, but in my opinion, based upon my
understanding of Bethea's criminal record, his personality, as well
as other evidence I have encountered, he murdered, raped, and robbed
her while in the course of committing a burglary.