The Charlotte News

Monday, December 21, 1942


Site Ed. Note: The front page offers little of weight which is new on the various fronts. The newest offensive by the RAF in Burma continued, as bombing raids were undertaken on Rangoon. Fighting was sustained in and around Buna on New Guinea, despite reports the previous week that the Allies had secured the village, previously a vital stronghold of the Japanese on the Papuan Peninsula. The Russians maintained their winter counter-offensive, moving toward Rostov, in what was believed to be an attempt to box in the Nazis with pincers directed from both north and south. In North Africa, General Montgomery pushed Rommel further toward Tripoli, while bombing raids remained the only substantial activity in Tunisia, ground operations having been stalled during the previous week by heavy rains and consequent muddy terrain.

Meanwhile, on the home front, gas rationing, frozen since noon on Friday, was back to its norm, after Leon Henderson announced the savings of over 10,000 barrels of oil by the weekend deep freeze. He cautioned, however, that further such drastic rationing was likely on the horizon, suggesting that pleasure driving might be eliminated entirely for the duration of the war to conserve precious fuel. Because Mr. Henderson was in his last days as head of OPA, he could afford to lay things on the line unvarnished, to prepare the public with the worst expectations from the new director, Prentiss Brown; thus, everything exceeding those expectations for the better would be received as cream.

As always since America's participation in the war began, what lay in back of these fuel shortages was the absence of sufficient rolling stock and tankers efficiently to transport the oil to eastern distribution points. Transportation facilities were busy supplying the war effort. Oil itself was plentiful in the Gulf states.

And, to add to the difficulties of energy supply, extremely low temperatures on this first day of winter 1942, in some cases record lows, were being recorded throughout the eastern seaboard and into the Midwest and West. In Charlotte, it reached a relatively warm low of 18 and a high of 28.

The Supreme Court case, incidentally, to which another weather report refers, holding that Nevada divorce decrees were entitled in North Carolina to full faith and credit, was Williams v. State of North Carolina, 317 US 287.

On the editorial page, "Forty-Third" announces the departure of editor J. E. Dowd to become a lieutenant, junior-grade, in the Navy, the 43d member of The News staff to join the armed forces during the previous year. Mr. Dowd was old enough, in his forties, to avoid service, but chose to volunteer because, the piece explains, having been at West Point at the end of World War I, he believed he should take a more active role in the present war. Mr. Dowd remained stateside during the war and returned to the newspaper in 1945.

We certainly agree with the praise provided him by the piece, and so, as with the man in the diner described in the story from The Christian Science Monitor, we shall let the piece speak for itself.

As we have commented numerous times, it has been difficult at times to discern ascription of editorials to Mr. Dowd, as opposed to either Cash, or, in succession as associate editor, Stuart Rabb or Burke Davis. And, of course, there were at times others on the staff who made occasional contributions to the column. While primary responsibility for the column was in the hands of the associate editor, Mr. Dowd wrote many of the editorials, especially those on local, state, and national political matters. It will thus be of interest to determine whether there is a noticeable shift in style and substance in some of the editorial topics or a shift in emphasis of the column as Burke Davis, just 29 years old, became the chief editor.

By the end of the war, as reported in the sixtieth anniversary edition of The News published December, 1948, yet another 34 members of The News staff would join the armed forces, making the full number 77. A monthly summary of The News was distributed to Charlotte servicemen, titled News from the News.

J. E. Dowd, as he appeared in 1938 in the fiftieth anniversary edition of The News

"Crossroad" tells of the unenviable circumstances facing Finland, torn between the Axis and Allies, its fate safe with neither. Whether to add Finland to the Axis with a declaration of war by the U.S., to satisfy both the Russians and British who already had declared war on Finland, or to continue neutrality, despite its being a land occupied by the Nazis, was the perplexing question now being studied by the State Department in consultation with the American diplomatic representative to Finland.

The editorial culled from the Statesville Daily, regarding William Wellman, we find particularly controversial and loathsome. As explained in Thursday's column, Mr. Wellman had been convicted, in either Statesville or Concord (the editorial from Statesville states that the trial was in Cabarrus County, presumably Concord, but the Thursday editorial, "Out of Control", stated that the conviction occurred in Iredell, the seat of which is Statesville), of assault of an elderly woman in Statesville and sentenced to die, before being granted a 60-day reprieve by Governor Broughton to allow assessment of newly discovered alibi evidence, a payroll slip signed by Mr. Wellman 400 miles away from the scene of the crime, entered just two or three hours before the crime occurred. The Statesville editorial proceeds, in the most obscurantist manner imaginable, to pick apart the rationale for the reprieve and seeks to rationalize, in simple-minded fashion, what a "fair" jury before a "fair" judge did in convicting and sentencing Mr. Wellman to death, and that which a "fair" appellate court did in affirming the conviction, calling therefore for careful scrutiny of this new alibi evidence before setting the man free or even commuting his sentence.

The tone of the editorial suggests that if a person is convicted in the courts, then woe be unto him or her who might dare question the sacrosanct results of such a "fair" process, no matter the lynch-mob mentality behind it in the first instance, as made amply evident by the tone of the editorial itself. Mr. Wellman was guilty in the eyes of "the community" and guilty he must remain, no matter what the evidence was to the contrary after the fact.

Though not explicitly stated in the editorial, that was the message it was conveying. The burden all along was not on the state to prove beyond a reasonable doubt and to a moral certainty that Mr. Wellman was guilty. It was instead for Mr. Wellman to show and demonstrate to "the community" beyond any scintilla of doubt that he was innocent.

Once convicted, the "community", at least judging by the tone of the piece, acquires a stake in making sure the defendant remains convicted, lest the Heavens fall and all bastions of integrity and justice with them. The piece concedes that Governor Broughton’s experts were convinced that the handwriting on the payroll slip was indubitably that of Mr. Wellman. But, that is not enough for "the community", opines the editorial. For the good and fair people of the community had spoken and that was what was important, not, objectively, whether Mr. Wellman, unless he had a doppelganger capable of time-space travel 400 miles away from his body, was in Virginia when the crime of which he was convicted was committed in Statesville.

And the crime, under any modern view of jurisprudence, would not be deemed deserving of a death sentence in any event. Although the nature of the assault has yet to be described in the accounts, assault is not a capital crime today except in the most primitive of conceptualizations of "jurisprudence", that found, for instance, in Arab countries where corporal punishment is still barbarously exacted in the public square.

The editorial is hallmark therefore of the mentality which caused a hundred years to pass after the Civil War without recognition of the Fourteenth and Fifteenth Amendments, prompting the need for civil rights legislation, and blood in the streets over it, to enforce recognition of these basic concepts, equality and justice for all under the law and the right to vote, the Bill of Rights being applicable not just to the Federal government vis à vis the citizenry but to the states and localities as well. The editorial thus explains, Q.E.D., why African-Americans and others were systematically denied their rights under the Constitution, why, in some minds, even today, these absurdly anachronistic royal notions still persist, even into the courts, providing them thereby viability co-equal with, even trumping, the Constitution.

Newspapers and other forms of media often act as the enablers of the continued mentality, scaring the populace, with the bogeyman criminal midnight creeper stalking your every move, into accepting that what is there in black and white is not really there at all, that what the "good" people of "the community" think in their hearts and in their "commonsense" is right, as long, of course, as they reach the "right" conclusion: the nigger is guilty and ought be executed. Let us rationalize away that which is staring us in the face with cognitive dissonance: that payroll slip the nigger has is just something someone made up for him, has to be, probably by another nigger; for who else would employ such a nigger as this 'ne except another 'ne? The good people of the community have spoken. The nigger is guilty.

Many families in this country not only have never gotten over the Civil War, they have never gotten over the Revolution, believe in some fanciful Florian de Puysange notion passed down through generations that they were favored by King George and his predecessors, and thus if only those crazy radicals hadn't waged a revolt against England, why, they'd still be Royal Governours, Lords and Ladies of the realm, not stuck arguing over some antiquated form of egalitarian, socialist, communist nonsense called the "constitution", refuge in which only radicals, criminals, and communists seek. The good people know that their lot is in "commonsense" where Royalty may thrive.

The editorial is neither thoughtful nor thought-inducing in its absurd attempts to question evidence based on speculation in order to rationalize a finding of guilt, the "fair" verdict delivered up by twelve good and true of the community. It questions why Mr. Wellman could not recall where he worked in February; it implicitly questions hand-writing analysis; it questions the veracity of the employer by suggesting, without any relevance to the issue at hand, that the employer had kept shabby records in other cases such that double pay was being issued.

But how did any of these purely speculative notions dispute with any credit the unmistakably exonerative evidence of a signed payroll slip too near the time of the crime to allow for travel to its locus? Could the time at which the slip was signed have been fabricated? If so, the editorial does not tell us; and so we tend to believe the contrary, that it was time-stamped irrefutably by a time clock. Certainly, the governor's experts would have been wise to any attempt to manipulate such an obviously crucial matter. Yet, they had found the evidence beyond reproach.

The question before Governor Broughton, never once addressed by the editorial, was the same as that before the courts when newly discovered evidence, that which cannot be reasonably discovered at time of trial, surfaces after a criminal conviction: is the evidence of a type such that it is reasonably probable that, had it been before the trier of fact at trial, a different outcome was likely? Obviously, any form of exculpatory evidence would so qualify. Its quality is for the trier of fact ultimately to weigh. And in the case of a capital crime, where once an execution is held, there is no further opportunity for appeal, special care must be taken, and regardless of legal niceties such as whether the evidence was reasonably discoverable at the time of trial. No one should be retained in prison merely to conform with legal standards when plainly exculpatory evidence exists, never heard or weighed by a jury. Obviously, no system of justice may send to death anyone under such circumstances and persist in the fictional belief of its conformance to any civilized standard of jurisprudence.

The editorial misses the point. It is not whether someone thought the man guilty or whether the whole community thought the man guilty on the evidence presented, but whether, objectively, evidence had surfaced after trial which might have made a difference in the outcome had it been before the jury. Instead, the editorial seeks to retry the matter in the public press through speculation. If the payroll slip had been signed 30 miles from the scene of the crime two hours before it, then even though it was physically possible to commit the crime, it is still something which the jury should be allowed to hear and weigh on re-trial. No one would want themselves judged on any other basis. Had the editorialist or one of his friends or family members been in Mr. Wellman's shoes, would he have taken such a callously skeptical attitude toward the exculpatory evidence?

It is a primary fault still with our system of justice: all too often "commonsense" is used to justify punitive treatment, but not to justify exoneration. Such attempts to simplify and streamline justice only destroy it, and respect for it, by improperly shifting the burden of proof to the accused. For how can anyone ever hope to comport themselves, not only as the law is written, but in accord with someone’s subjective opinion of "commonsense", to the detriment of the citizen before the bar, unless, that is, the hapless citizen is politically favored by the Royalty, blessed as they are with "commonsense", while the rest of us poor dumb pikers hain’t got the sense God gave a goose, b’gosh?

Such obscurantist, infantile, and rationalizing mentality is antithetical to the Constitution. Lawyers and judges who adopt "commonsense" as their arbiter, in lieu of standards articulated in the law, should be disbarred for not upholding their oaths to support the Constitution. Newspapermen and the media commentariat who adopt such vague standards to promote their own careers, and, not incidentally, sustain advertising revenues, obsequiously seeking the favor of the "commonsense" "community", ought not be read or listened to by the populace. For they go well beyond the limits of freedom of the press, essentially advocating, even if passively as in the case of the Statesville Daily editorial, some form of emotional "justice" which is plainly not what the clear standards enunciated in the Bill of Rights had in mind. Otherwise, the Sixth Amendment would simply say: "And Due Process and Equal Protection under the laws are what a judge, of sound mind and juridical commonsense, deems it to be." It does not so allow but prescribes. And for the very good reason that our forefathers had seen quite enough of what sound-minded, commonsense periwigs, acting on behalf of the King, had dispensed in masquerade of justice for decades prior to the Revolution.

In the present instance, questioning whether it was proper to release a man previously scheduled for execution or to commute his sentence on the basis of uncontested exculpatory evidence, the editorial plainly steps over into the crowd in the public square bearing torches after midnight, demanding the release of the prisoner to their vigilante hands, and joins them in chorus, even leads them to the square. And that being done only to try to rationalize the "fair" treatment Mr. Wellman supposedly received from the "community", the while urging an opinion on the community that any result other than that sought originally to be exacted by the community would be to label the community unfair, too dumb to know the guilty man when they saw him, and thus unacceptable.

We always know the truth. God told us so. The Nigger Is Guilty; Lynch Him.

Such editorials only contributed to racism and lynch mob mentalities. Such was--and is--a despicable practice. And it applies not only to cross-racial cases, but race neutral cases as well. We have a lynch mob, sensationalistic urge in this country which has grown to unhealthy proportions with the advent of 24-hour news, especially in the last 20 years. The networks stand voraciously in the wings each day, judging by their typical content, to fill time with this or that salacious story, prejudging the while, hampering justice and fairness the while, creating a climate of prejudgment in the country by providing tacit approbation to the practice, almost always leaning heavily to the prosecution in its commentary, almost always presuming the guilt of the accused while giving the necessary admonition to the public with a wink: of course, folks, we must always be aware that there is a presumption of innocence in this country, no matter how much we may dislike that fact. We must be fair. Yes, we know the nigger is guilty, but let's at least pretend, for the moment, that this black nigger boy is innocent until the right verdict comes down from a jury of twelve good and true white trash people, who we know will do the right thing heya, in accord with law and awda.

Unless that mentality, fueled by uninformed Conservative talk punk-junk radio, ceases in its prejudgment of matters, both political and social, our justice system, already in a shambles with too many "commonsense" jurists appointed in the past thirty years and not enough judges who will take the time to understand and apply the law as written to the facts as provided by the record--not those made up to fit preconceived notions--, with due deference to the accused, not to the prosecution with the burden of proof, will become little more than an Inquisitional process resembling despotism, with merely the form of due process, and not its substantive hallmark, fairness, being the inevitable result. It is already well on its way in that direction.

It is a large part of the reason the country has lost respect for its institutions. For it is the courts, more than any other institution of government, with which the public has the most contact. It is why the public cries out in frustration.

So, do yourself a favor next year when election time rolls around and you see judges up for confirmation on the ballot of your state. Find out something about these jurists, not whether they are "liberal" or "conservative", but whether they are fair, not necessarily whether they are polite to both sides, but whether they apply the law evenly as between parties, regardless of economic circumstance, and appear to have a sound grasp of the facts of the case before them and how the law relates to those facts, and regardless of whether the party is a prosecutor or a defendant, a plaintiff or defendant in a civil matter; whether they recognize the rights of the accused in criminal cases or merely provide lip service to the Constitution, whether in civil cases they routinely rule for corporate interests or whether they provide an equally fair shake to the individual citizen litigant, or whether they just use cute catch-phrases such as "commonsense" while routinely ruling that the corporation trumps the individual, the prosecutor, the hapless prejudged criminal defendant. And then cast your vote knowledgeably and count in this arena for a change. For, in truth, it is the courts ultimately, every bit and more so than your state legislature or the Congress or the President or the governor of your state, which determine which policies ultimately stand the test of law and how those policies are practically implemented.

In short, turn your gripes where they belong, homeward. And focus on your hometown courts and how they operate, and whether they operate as the Constitution intended and provide fairness as their first hallmark, not affording deference to one side while chastising the other, disregarding the law and the facts. The best way to find out the truth is to attend court yourself occasionally and even seek to talk to some of the parties after the conclusion of a case to find out what they thought about the court proceedings and the performance of the judge. It is up to you. Legislatures rarely take to task judges. Lawyers are checked in venturing opinions, even privately, lest they wish to risk their bar cards. They cannot open their mouths for fear of reprisal. Don’t ask a lawyer what he or she thinks of a judge. Ask the parties. Their responses may be loaded based on the outcome obviously, but ask enough parties and you may get a fair impression of a particular judge's performance.

For more on William Wellman's case, its currency even unto present times, and its eventual outcome in 1943, after it was originally brought to Governor Broughton's attention, both by the defendant and by playwright Paul Green, author of "The Lost Colony", just days before the scheduled execution on November 20, go here. We note that this 2004 piece describes the crime as a rape rather than an assault. There is a major difference in the law between those two crimes, and which version of the case is correct we do not know at this juncture. Given the age of the victimized woman, it may be that there was an assault with intent to commit rape, derived from the description of the nature of the assault. Regardless, the death penalty is no longer exacted for rape, any more than it is for felonious assault. And for the very good reason that it provides incentive to the assailant to leave the victim alive. (See Coker v. Georgia, 433 US 584 (1977), and Kennedy v. Louisiana, _____ US ____, 07-343 (2008), each specifically holding, under traditional analysis of the Eighth Amendment's prohibition of "cruel and unusual punishment", that the punishment of death is disporportionate to the crimes of rape and child rape, respectively, where death neither resulted nor an intent to kill can be established.)

What is truth? That is the question Samuel Grafton repeatedly asks in his column this date. He offers, in the final analysis, that, in political terms, it is measured not in platitudes but in what ultimately is accomplished toward effecting salutary goals.

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