Napue Nightmares: Perjured Testimony in Trials Following the 1993 Lucasville, Ohio, Prison Uprising

• Author: Staughton Lynd
• Position: Historian and attorney
• Pages: 559-634

NAPUE NIGHTMARES:

PERJURED TESTIMONY IN TRIALS FOLLOWING

THE 1993 LUCASVILLE, OHIO, PRISON UPRISING

STAUGHTON LYND∗

I. PERJURED TESTIMONY AFTER NAPUE†1

In 1935, the United States Supreme Court held in Mooney v. Holohan2

that when the state wins a conviction based on perjured testimony, it turns

a proceeding that may end in a defendant’s life imprisonment or execution

into a “pretense of a trial,” and thereby violates due process.3

The Mooney case was a high-profile political controversy in the period

between the world wars:4 the author can recall hearing the phrase “Free

Tom Mooney!” while growing up in the 1930s.

Tom Mooney was a member of the international molders union.5 He

belonged to the Socialist Party and had attended an International Socialist

Congress in Europe.6 He had also been (briefly) a member of the

Industrial Workers of the World7 and was a friend of anarchists like

Copyright © 2008, Staughton Lynd.

∗ Staughton Lynd is an historian and attorney. He is the author of LUCASVILLE: THE

UNTOLD STORY OF A PRISON UPRISING (2004). He has drafted friend of the court briefs on

behalf of the American Civil Liberties Union of Ohio Foundation, Inc., in the cases of two

Lucasville defendants sentenced to death, Siddique Abdullah Hasan (formerly known as

Carlos Sanders) and George Skatzes.

† Editors’ Comment: This article concerns ongoing litigation. The Lucasville riot and

following trials cause strong feelings and much controversy. With such high stakes

involved, the stories of witnesses can change, but we feel this article presents a valuable

contribution to the discussion.

1 The author wishes to acknowledge the eye-opening contribution to this Article by

Russell Stetler and Nick Trenticosta, in a workshop entitled State Misconduct Claims,

presented at the Eleventh Annual Federal Habeas Corpus Seminar in Pittsburgh,

Pennsylvania, August 24–27, 2006.

2 294 U.S. 103 (1935) (per curiam).

3 Id. at 112.

4 KEVIN STARR, ENDANGERED DREAMS: THE GREAT DEPRESSION IN CALIFORNIA 219

(1996).

5 RICHARD H. FROST, THE MOONEY CASE 2 (1968).

6 Id. at 2–3.

7 Id. at 11–12.

560 CAPITAL UNIVERSITY LAW REVIEW [36:559

Alexander Berkman.8 As a significant participant in the class-conscious

radical community of northern California, Mooney had often clashed with

the authorities.9

On July 22, 1916, there was a preparedness parade in San Francisco.10

A bomb exploded, killing ten and wounding forty.11 Mooney (together

with his wife) was arrested, although the arresting officer had no warrant.12

He was immediately subjected to a nightlong interrogation by District

Attorney Fickert, criminal investigator Martin Swanson (a former

Pinkerton agent), and others.13 Mooney unsuccessfully demanded counsel

forty-one times.14

Mooney together with co-defendants Warren Billings, Rena Mooney,

Israel Weinberg, and Ed Nolan were indicted for murder.15 Billings was

sentenced to life imprisonment, Ms. Mooney and Weinberg were acquitted,

and Nolan was never brought to trial.16 Mooney was convicted and

sentenced to be executed.17 In 1918, two weeks before he was to hang, the

governor commuted his sentence to life imprisonment at San Quentin.18

“From the very outset, and increasingly as time went on, the

defense . . . challenged the good faith of the prosecution and impeached the

character and credibility of the prosecution’s major witnesses.”19 In 1926

8 Id. at 39, 79.

9 Id. at 19–79 (chapters 2–5).

10 Id. at 80, 85. Preparedness parades were held in many cities to show that the public

supported military armament in the period leading up to the U.S. entry into World War I.

Id.

11 Id. at 86–87.

12 Id. at 104–05.

13 Id. at 25, 106.

14 Id. at 105–08. The police stenographer’s record of the interrogation became

available to the defense only in 1935, the year of the Supreme Court decision. Id. at 106.

15 Id. at 115.

16 Id. at 118.

17 Id. at 190.

18 Id. at 318–19.

19 Id. at 119. Alice Kidwell, a potential witness, wrote her imprisoned husband: “The

authorities are going to let you out . . . . I know I am needed for a witness and they are

helping by getting you out.” Id. at 120. A convict friendly to Billings obtained the letter

and sent it to defense counsel, and Ms. Kidwell was not called. Id. at 124. John McDonald

initially described two men who did not resemble Mooney or Billings whom he said he

watched placing a suitcase at the spot where the explosion occurred. Id. at 122. He

changed his story after the arrests, and his original story was buried in the police archives

until 1930. Id. In 1921, John McDonald (apparently after an illness brought him close to

(continued)

2008] NAPUE NIGHTMARES 561

the police and trial court judges in Mooney’s case, and nine of the ten

surviving jurors, supported Mooney’s petition for clemency.20

The Supreme Court’s unanimous decision in Mooney v. Holohan

declared that due process

cannot be deemed to be satisfied by mere notice and

hearing if a State has contrived a conviction through the

death) executed an affidavit stating that when he first went to the authorities, District

Attorney Fickert said, “Do you know Tom Mooney? He is the [expletive deleted] we

want.” Id. at 345–47. McDonald stated that Lieutenant Goff took him to Mooney’s cell

but he “had no recollection of ever having seen the man before.” Id. at 347. Then Fickert

said, “Now Mac, we’ll take good care of you; we’ll pay for your hotel expenses” and “I

will see that you get the biggest slice of the reward.” Id. McDonald said that Fickert

repeatedly coached him in his testimony. Id.

Another witness against Mooney was Ms. Mellie Edeau. Id. at 207–08. She had seen

two “middle-aged men” (Mooney was thirty-three in July 1916) with a heavy black suitcase

at the scene of the crime. Id. at 207. Urged by fellow workers, she sought out the

authorities. Id. Detective Smith took her to see Mooney and co-defendant Warren Billings,

alone in their cells, and she told Smith “that she had never seen either of them before in her

life.” Id. Later she testified against both Billings and Mooney, having told other

employees that “there was a lot of money in it.” Id. at 208. When Detective Smith showed

District Attorney Fickert his diary entry to the effect that Ms. Edeau could not identify

Mooney and Billings, Fickert told him to keep his mouth shut. Id.

The key testimony against Mooney came from an out-of-town cattleman named Frank

Oxman. Id. at 168. Oxman offered his services to the prosecution for $2,500, “payable

upon conviction of the guilty parties.” Id. Oxman in turn recruited Ed Rigall, who would

confirm Oxman’s false eye witness testimony and could expect to clear at least $100. Id. at

171, 178. The letters Oxman wrote to Rigall may be examined in HENRY T. HUNT, THE

CASE OF THOMAS J. MOONEY AND WARREN K. BILLINGS 259–62 (Da Capo Press ed. 1971)

(1929). Rigall had never even been in California. FROST, supra note 5, at 177. “Rigall and

Oxman were entertained by the police and members of the District Attorney’s staff during

their stay in San Francisco.” Id. at 178–79. In the end, although Rigall was not called to

testify, the prosecution paid him $150 over and above expenses. Id. at 183. In 1920, a

police officer revealed that Oxman had never seen the vehicle in which he testified that

Mooney brought the bomb to the explosion site until shown the vehicle at the police

station. Id. at 341. The authorities gave Oxman the vehicle’s license number, which he

then testified he had written down after seeing the bomb go off. Id. Earl Hatcher, a friend

of Oxman’s, came forward to say that Oxman had been with him in Woodland, California,

at the time of the explosion, not in San Francisco at all. Id. at 351. Hatcher’s letter was

torn to pieces, but the pieces were put in an envelope and came to light years later. Id. at

352.

20 FROST, supra note 5, at 359.