The Charlotte News

Thursday, January 26, 1956

FOUR EDITORIALS

Site Ed. Note: The front page reports that the President this date had asked Congress to appropriate $126,525,000 for basic research to penetrate the "dark mystery" of cancer and to combat other leading killer diseases, the request being part of a five-point program in a special message calling for "a renewed and reinvigorated attack on our health problems." The President did not renew his request of the previous year for Federal reinsurance of health insurance, a proposal which had been opposed by the AMA on grounds that it could be an opening wedge to socialized medicine, the President instead saying that the Administration was considering legislation to permit pooling of risks by private companies. He said that if practical and useful methods could not be developed along those lines, however, he would again urge enactment of the proposal he had made the previous year.

Soviet Premier Nikolai Bulganin and Communist Party Secretary Nikita Khrushchev appeared to be launching a new peace offensive designed to revive the "spirit of Geneva" which had prevailed after the Big Four summit conference of the previous July but had since waned, seeking to regain a measure of Western good will. There were two developments which signaled the renewed Soviet emphasis on peace, Premier Bulganin's letter to the President, delivered with full diplomatic ceremony the previous day, described by the White House as being "friendly" in tone and containing "certain ideas" for the President to study further "in the interest of promoting world peace", and a three-hour interview which Mr. Khrushchev had given in Moscow to Marshall MacDuffie, a New York attorney representing the International Trade Shows of New York, who was a long-time acquaintance of the Secretary, quoting him as saying that he thought American leaders, including the President, basically were striving for peace and did not want war, and that the Soviet leaders believed that there should be further relaxation of international tensions. Mr. MacDuffie had been the chief of the U.N. Relief and Rehabilitation Administration in the Soviet Union just after World War II, at which time he had first met Mr. Khrushchev, and then had met him again on trips to Russia in 1953 and 1954.

British Prime Minister Anthony Eden was currently on the liner Queen Elizabeth, on the way to the U.S., and a dispatch from the ship said that his party had shown no surprise at the letter from Premier Bulganin to the President.

In Washington, it was reported that Israel was believed to be taking a more conciliatory stance in private talks with Western diplomats who were seeking to heal its long-festering dispute with the Arabs, though the Israelis were understood to be as insistent as ever that they needed more weapons to counter Egypt's 80 million dollar purchase of Communist arms and that a security guarantee backed by the U.S. and Britain was essential to a permanent settlement. Diplomats in close contact with the Arab-Israeli dispute had said that notice had been sent around via the diplomatic grapevine that Israel's insistence on a March 1 deadline for Arab agreement on joint Jordan River development was being modified, and that Israeli diplomats were telling British and American leaders that Israel was not girding for war in the spring, but rather was seeking Western commitments to stabilize the area, both developments viewed by diplomats as conciliatory. Israeli Ambassador Abba Eban was reported to have emphasized those points in a brief meeting with Secretary of State Dulles the previous day.

In the latest installment of former President Truman's memoirs, published this date in Life, he had written that he had told General Eisenhower in 1948 that he thought he was using good judgment in deciding not to run for the presidency that year, after asking him about his plans and being told that he had no intention of running for the office at that time. The former President said that he had told him that he did not think he could "add anything to his splendid career and that the only thing he would accomplish by getting into politics would be to detract from his reputation." He said that at the time, some "professional liberals" among the Democrats had been seeking to ditch the President and run General Eisenhower instead, but that he had been determined to run, himself, to carry out "unfinished business" from his first Administration. He had also stated in the latest installment that the greatest "pressure and propaganda" to which he had been subjected while in the White House had come from "a few of the extreme Zionist leaders" who made "political threats" against him in a campaign to win support for establishment of the new state of Israel. He said that he knew that most Americans of Jewish faith, "while they hoped for the restoration of a Jewish homeland, are and always have been Americans first and foremost." But he believed that some of the Zionist leaders needed "a peep at the golden rule." He had ultimately granted swift diplomatic recognition to the new state of Israel in 1948. (Incidentally, note that the issue date is four days after the date the magazine hit the newsstands this date, as indicated, a routine for weekly magazines of the time.)

Fourth Circuit Court of Appeals Chief Judge John J. Parker of Charlotte was now alone on the appellate bench as of this date, as Judge Armistead Dobie of Charlottesville would go into "qualified retirement" as of February 1, and South Carolina and Virginia were waging a patronage duel for his replacement, possibly delaying the appointment of a successor. Senator Strom Thurmond of South Carolina had said that the Justice Department had promised him a South Carolinian for the post, and the Senator had been joined by others from his state in urging likewise, without mentioning any particular names. Virginians also were recommending candidates for the job, with some names having been mentioned. The President had appointed Solicitor General Simon Sobeloff of Baltimore to the other vacancy on the Court, but Senator Olin Johnston of South Carolina and others had indicated opposition to the appointment, as Mr. Sobeloff had presented the Government's case against continued segregation in the public schools before the Supreme Court in Brown v. Board of Education.

In Raleigh, it was reported that Governor Luther Hodges had reiterated this date that he and three advisers had gone to a meeting of Southern governors in Richmond on the prior Tuesday only as observers. At the meeting, three other Southern governors had agreed to ask their Legislatures to test the Brown decision through the use of interposition, but Governor Hodges said that he and the state's Education Advisory Committee would take what they learned from the meeting about interposition and study it, along with other matters, and decide how the state should meet the school segregation issue. He said that it did not necessarily mean that North Carolina would follow any person or state in meeting the problem and would not jump to conclusions. He said that the meeting had centered on "the encroachment" of the Federal Government on the powers of the state, and that North Carolina did not take exception to that sort of thing because it represented the position of the South. Under the theory of interposition, a state would seek to interpose its sovereignty in the face of Federal action that it deemed exceeded the authority given to the Federal Government by the Constitution—ignoring the while the Supremacy Clause and the 14th Amendment. The Governor said that he believed the soundest course still was his recommendation for voluntary continuance of segregated schools. He said that North Carolina was better positioned to meet segregation problems than other Southern states, in part because the state's leaders had not made "defiant statements", in another part because of the school assignment law passed by the previous Legislature in 1955, leaving assignment of pupils to the local school districts, and in a third part because a Federal court decision out of McDowell County regarding a challenge to segregated schools there, had held that the plaintiffs needed to exhaust their remedies first at the state level before proceeding in the Federal court because the law passed by the Legislature regarding assignment of pupils provided first for an administrative remedy, appealable into the state courts.

The Governor also told reporters at his press conference that he would announce his political plans for the year at a rally in his hometown of Leaksville on February 4, with nearly everyone believing that he would be a candidate in the 1956 election. Normally at that time, a Governor of North Carolina could not succeed himself, but because Governor Hodges had acceded to the office by the death of Governor William B. Umstead in November, 1954, he was eligible for election to a full four-year term. The Governor also said that he would discuss at meetings to be held in Wilmington the following Saturday recommendations by experts made to minimize the damage done by hurricanes, with the report of the experts not to be made available until later, the Governor saying that it appeared that the Federal, state and local governments would have to put up "real money" if anything substantial would be accomplished in the area.

In Chicago, while a jazz band had blared the previous night in a cocktail lounge, a nervous, young gunman had fired six shots at two detectives of the narcotics-detail who were questioning him, killing one and wounding the other, with the persons in the lounge apparently not hearing the shots. The youth had been able to escape unmolested and several squads of police rushed to the area to search for him. He had been one of several persons questioned by the detectives, who had gone to the lounge to make a routine check of reports that narcotics addicts frequented it. One of the detectives, a veteran of 22 years, was shot four times in the chest and was dead on arrival at a nearby hospital, while the other had been shot in the right hand and left foot and was not in serious condition. A disk jockey who had been broadcasting from the lounge said that a jazz band had been playing so loud that he had not heard the shots and doubted that any of the customers had either.

In Oakland, Calif., Burton Abbott, a 27-year old student at the University of California at Berkeley, was sentenced to be executed in the gas chamber, based, according to the story, on two strands of hair, 18 bits of fiber and less than a handful of clay, the evidence on which a jury the previous day had convicted him of kidnaping and beating to death a 14-year old girl, who had disappeared the prior April 28 in the vicinity of the Claremont Hotel near the Berkeley campus. (As the reported case on appeal indicates, there was quite a lot more evidence arrayed against the defendant than just the hair, fiber and matching clay samples, including not only his admitted whereabouts during the three days immediately following the girl's disappearance having been determined to be in close proximity to her later-discovered shallow grave, about 100 yards from a cabin owned by the defendant's in-laws in Trinity County, but also eyewitness testimony by five people who either identified or tentatively identified him and his car as possibly matching a motorist who was seen on the side of the road near the scene of the girl's disappearance on the afternoon in question, appearing to struggle with a young girl, who had clothing consistent with that of the girl when she disappeared, and appeared to be resisting the man, and that several belongings of the girl, including her bra, had been found buried in the basement of the defendant's home, after his wife had discovered a purse in the basement containing the girl's identification, recognized the name as that of the missing girl, and called the police. There was also evidence tending to undermine his claimed alibi, that on the day of the disappearance of the girl, he had departed for the cabin during the morning and thus was nowhere near Berkeley in the afternoon when she disappeared.) The jury had deliberated for nearly 52 hours. The jury returned the death penalty on both counts, by a specific finding for the kidnaping and by omitting a recommendation for mercy on the guilty verdict on first-degree murder. A juror stated that five ballots had been taken, all the previous day, and that two of them were 11 to 1 for guilt, there never having been any more variation than that. The defense attorneys had contended that an unknown person had framed Mr. Abbott and they planned to make a motion for new trial on February 3 when he would appear for formal sentencing. Mr. Abbott would be executed in March, 1957. (We have to observe that if he was framed for the crime, then the framer had to be someone who knew a lot about the defendant and then followed him some 250-300 miles, with the girl's body, to the cabin, dug the shallow grave and deposited her corpse in it, then somehow gained access to his basement back in the Bay Area and to the backseat area of his car, where the hair, fiber and some blood evidence was discovered, to plant the other evidence. One could speculate ad infinitum on such matter, but the obvious other candidate would be a jealous wife, possibly after seeing the defendant in the Berkeley donut shop at the same time the girl was there and drawing inferences of illicit conduct. But the eyewitness testimony regarding the struggle between a young girl and a man generally matching the description of the defendant and his car and generally matching the girl appears to eliminate or seriously undermine that notion. The defendant's mother believed that her brother may have been the culprit, but that still does not explain the eyewitness statements. To add to the defendant's problems, he had publicly failed a polygraph examination, which, while not admissible at the trial absent mutual stipulation, was nevertheless likely known by every juror given the level of pretrial publicity on it, apparently the result of some bad advice from counsel who should have had the test conducted initially by a qualified private examiner before allowing the defendant to take it as administered by a police examiner, a test for which the defendant had volunteered. We have to conclude, therefore, that, aside from the fairness of the trial, when viewed from the post-Miranda perspective regarding the mandated admonition by the police to an accused, on whom the investigation has focused, of the right to remain silent, even in the face of accusatory statements, which includes the right not to have that silence admitted against the accused at trial, the Court having recognized the right to remain silent under such circumstances but also finding that there was no "miscarriage of justice" from the error of admitting the evidence with adverse inferences attached to the silence, the defendant was up against it. Whether after Miranda, in the world of 1966, this conviction might have been reversed under the plain error rule, involving denial of fundamental constitutional rights, here the denial of a fair trial by admission of his silence in contravention of the Fifth Amendment privilege against self-incrimination and, under the Fourteenth Amendment, due process, is highly questionable, assuming reasonably competent counsel on appeal. Given that it was a capital case, it is reasonably likely that there would have been a reversal later, had the defendant been alive still in 1966 to challenge that evidence again by way of habeas corpus on the basis of changed law after Miranda. The result in Abbott may be compared somewhat directly to a 1965 decision by the California Supreme Court in People v. Stewart, subsequently decided at the same time by the U.S. Supreme Court as part of the Miranda decision, affirming the California Court's reversal of a murder and robbery conviction and resulting sentence of death, based on a violation of the principles enunciated in Miranda, the California Supreme Court having relied on its predecessor case, Escobedo v. Illinois, decided in 1964, but nevertheless using essentially the same standard to determine the reversibility of the error as applied in Abbott, whether it was reasonably likely that a result more favorable to the accused would have been reached by the jury absent the error, such that a miscarriage of justice occurred. That assessment, however, was necessarily skewed in favor of the reversal by the result in Escobedo, and even more so by Miranda, regardless of the standard applied, weighing of the evidence to determine the prejudice of the error or plain error, mandating reversal. In any event, Abbott was decided a decade before Miranda and by the time of the latter decision, the defendant was already nine years in the grave.)

Julian Scheer and Ann Sawyer of The News report of a motion being presented by the defense attorneys of the man who had been convicted of second-degree murder and sentenced to 30 years for killing his wife's suspected lover, emerging from the trunk of her car in the parking lot of a drive-in restaurant and killing the man with a combination rifle and shotgun, the motion alleging that newly discovered evidence had been found in the form of two eyewitnesses to the shooting. The judge commented that if they had such evidence, it had been the duty of the defense attorneys to let him know about it during trial. One of the defense attorneys explained that "two speeches" had been made—presumably referring to final arguments of counsel—just before the instructions had been given by the judge to the jury, when he learned of the witnesses and that he did not think it was fitting and proper to bring the new testimony in at that time, that it was too late, that he had taken the case at the 11th hour and it had been his first notice that the witnesses existed. He said that if the judge did not grant a new trial on the basis of the motion, he would appeal the ruling to the State Supreme Court. The witnesses were two women who said that they had seen the shooting on the night of January 3, that they had informed the investigating officers of what they had seen, but had not been called by the prosecution to testify. An investigating officer had shown his notes on the investigation to Police Chief Frank Littlejohn during the current morning and told him that the women had said on the night of the shooting that they had seen absolutely nothing. The judge said that the first time he had known anything about the witnesses was when he read a statement from one of them in the morning newspaper, saying that she would have been heard if she had any evidence to offer in the case. The other witness had reported threatening telephone calls and the first witness also reported a similar call during the current morning. It had been reported the previous day that there were supposedly four witnesses who were not called by the prosecution, including two soldiers from Fort Bragg named in warrants and, according to Solicitor Basil Whitener, could therefore have been subpoenaed, whereas the two female witnesses had not been named in warrants. One of the soldiers had been transferred and the other was unavailable, and the solicitor had concluded that they were not too important. The two women had said the previous day that they had called the defense attorney during the trial, but he had said that the testimony was concluded by the time he received the call from one of the women, saying that she had evidence which could be helpful, that she had seen the struggle between the defendant and the man who was killed, with the defendant contending that they had struggled over the weapon and it had discharged, while another witness had testified at trial that the two men never got closer than eight feet from one another. The new witness said that there was a struggle, that she had seen the men fighting directly in front of her car, and that she had given her name and address to the police officers and thought she would be called to testify. The judge, at the time of the verdict and sentencing, had stated, as reported earlier, that he would prefer to sentence the wife in the case, as he viewed her as having been the moving force behind the tragedy and that she had treated the whole proceeding as a joke. (When we inevitably return to this case on its retrial the ensuing summer, just remember it as "Shorty" with the short-order combo in the trunk at the Merita Grill.)

In Melba, Idaho, residents had donated $5,500 to the March of Dimes, more than $27 for each of the 203 inhabitants of the town, which claimed to have originated in 1949 a polio auction to raise funds, such events having since become common across the country. Three years earlier, the auction had raised $7,600, amounting to a per capita contribution of $37 for the town, which it claimed was a national record, compared to the average in Idaho as a whole of 50 cents per person. An auctioned television set had brought the highest single amount during the current auction, $758. Some 1,500 people from the town and nearby towns had visited the village high school the previous day to examine the items being auctioned off. A farmer had dressed a doll in $100 bills and raffled it off for $300. The man who won it, a service station owner, stripped the doll and gave the money to the auction committee. The auction committee chairman said that most of the people were bidding only for fun, with the object being to raise money for continued polio research and treatment.

On the editorial page, "Gov. Hodges Should Scorn Interposition" indicates that the action of four Southern governors meeting in Richmond to endorse the obsolete doctrine of interposition was somewhat reminiscent of the fable of the scorpion and the turtle, in which the scorpion, a poor swimmer, had asked the turtle to carry it on its back across a river, to which the turtle had said, "Don't be silly, you'll sting me while I'm swimming and I'll drown," to which the scorpion had said that if it were to sting the turtle and it would go down, then both would drown, and so it would be illogical to sting the turtle, to which the turtle then said that the scorpion was right and so to hop aboard. The scorpion climbed onto the turtle and halfway across the river, stung the turtle, causing the turtle to ask as it sank why the scorpion had stung it, the scorpion saying it had nothing to do with logic, that it was just its nature.