Stroud's Specific
| Jurisdiction | United States,Federal |
| Citation | Vol. 69 No. 01 Pg. 1 |
| Pages | 1 |
| Publication year | 2000 |
69 J. Kan. Bar Assn. January, 1 (2000). STROUD'S SPECIFIC
Vol. 69, January, 2000
According to legend, the band was playing "In Paradise" at the time of the murder.(fn1) Inmate No. 8154 raised his hand for permission to rise from his table in the prison dining hall. After it was granted, he approached Guard Andrew F. Turner.(fn2) During their discussion, No. 8154 flashed a sharpened piece of steel from beneath his prison coat and stabbed Turner in the heart.(fn3) The inmate later wrote with grim sarcasm, "The guard took sick and died all of a sudden . . . of heart trouble."(fn4)
The date was March 26, 1916. The location was Leavenworth Federal Penitentiary during Sunday dinner for 1,200 prisoners.(fn5) Inmate No. 8154 was Robert Franklin Stroud, later known as the Birdman of Alcatraz.(fn6)
Stroud is not the only nationally known figure associated with the law to live in Leavenworth, Kan. David Josiah Brewer of Leavenworth was the first Kansan to sit on the U.S. Supreme Court,(fn7) joining his uncle Stephen Johnson Field. William Tecumseh Sherman, whose father and grandfather were both judges, briefly practiced law there before garnering national fame as a Civil War general.(fn8) Stroud, however, is the most fascinating Leavenworth figure and clearly has the most enduring legal legacy. This article will examine his legal struggles and resulting contributions. But first, a review is required.
I. Historical background
Stroud was born Jan. 28, 1890 in Seattle. Like Brewer and Sherman, he had a legal ancestry: his grandfather was an Illinois lawyer.(fn9) Unlike them, he quit school as a teenager and hoboed in different states.(fn10) At age 17 he was in Alaska Territory.(fn11) At 18, he shot and killed a Russian bartender in Juneau.(fn12) While facing first degree murder charges,(fn13) Stroud pleaded guilty to manslaughter and in August 1909 was sentenced to 12 years confinement, with a four-year early release possible for good behavior.(fn14)
Sentences for crimes committed in Alaska Territory were served at the U.S. penitentiary at McNeil Island, Wash., where Stroud arrived Aug. 30, 1909.(fn15) In a foreshadowing of the Turner murder, two years after his arrival he stabbed an inmate orderly seven times in the back - at the noon meal in the prison dining room.(fn16) Also like the Turner murder, Stroud was to later describe this incident with black humor: "Stroud borrowed the doctor's pocket knife to cut some meat. The meat was the orderly."(fn17) The stabbing earned him an indictment for assault with a dangerous weapon to which he pleaded guilty. On Aug. 5, 1912, four months after the sinking of the Titanic, Judge Edward E. Cushman sentenced him to an additional six months confinement (to be served consecutive to his manslaughter sentence) and the loss of almost four years good time.(fn18) Worse yet, the stabbing earned him a transfer with 13 other "dangerous prisoners" to the hard joint at Leavenworth, the federal government's maximum security prison.(fn19) Stroud stayed in Leavenworth's general population from his arrival in September 1912 until the Turner murder in March 1916 when he was placed in segregation.(fn20)
II. The murder litigation
The indictment for the first degree murder of Turner was returned by a Topeka grand jury April 13, 1916, only 18 days after the crime.(fn21) The wheels of justice ground exceedingly fast, as Stroud's trial began in U.S. District Court for the District of Kansas in Leavenworth the following month.(fn22) Despite his pleas of both insanity and self-defense,(fn23) the jury took less than an hour to convict him on May 24 of the federal crime of first degree murder.(fn24) On May 27, he was sentenced by Judge John C. Pollock to be hanged "by the neck until he is dead" on July 21, 1916.(fn25)
Stroud appealed his conviction, and in December 1916 the U.S. 8th Circuit Court of Appeals reversed and remanded for a new trial based upon admissions of the U.S. Attorney.(fn26) Among other things, the district court had failed to instruct the jury it could also convict without the death penalty.(fn27)
Stroud's second trial for Turner's murder began in Leavenworth in May 1917, almost one year to the day after the first trial. This time, he dropped the insanity defense and pleaded only self-defense.(fn28) The jury again convicted, but perhaps due to his simplified defense, returned a verdict of "guilty . . . without capital punishment."(fn29) As a result, on May 28, 1917, the second district court judge sentenced Stroud to imprisonment at Leavenworth "for the period of his natural life."(fn30) The U.S. attorney general instructed the Leavenworth warden that "because of his dangerous tendencies [he] should be placed in the segregated group of prisoners and afforded no opportunity to get possession of any weapon which he might use in an assault on guards or other prisoners."(fn31)
Stroud felt the second judge had committed reversible error, but he faced the age-old dilemma. On the one hand, if he appealed and obtained a new murder trial, that jury might acquit. On the other hand, that jury might not only convict but might also order the death penalty. The safest option, though painful, was to not gamble but to accept the life sentence and eventually seek parole.(fn32)
Stroud gambled. He forwarded a writ of error to the U.S. Supreme Court three months after the jury verdict, praying that the conviction and life sentence be reversed.(fn33) Based upon admissions of error and an accompanying motion to reverse and remand made by U.S. Solicitor General John W. Davis,(fn34) the Supreme Court sent it back for a new trial.(fn35)
As a result, in what was slowly becoming an annual ritual, in 1918 Stroud faced his third May trial in Leavenworth for Turner's murder. This time he filed a "Plea in Bar" and raised two new legal defenses. He argued as a matter of law that (1) forcing him into trial for the same offense would be violative of the 5th Amendment and (2) to try him for his life after a jury had once spared it would be to put him twice in jeopardy of his life for the same offense in violation of the 5th and 7th Amendments.(fn36) Although the district court judge, Robert E. Lewis of Denver, refused to hear the argument and summarily overruled it,(fn37) Stroud's gamble was still viable: the jury could yet acquit or at least order a life sentence. This third jury, however, also found him guilty of first degree murder. Even worse, it made "no recommendation dispensing with capital punishment."(fn38) Stroud had bet his life and lost. That same day, for the second time in two years, he was sentenced to hang "until you are dead."(fn39)
That you be returned . . . to the United States Penitentiary at Leavenworth, Kansas, from whence you came and that you be held in solitary confinement until Friday, the 8th day of November next, that on that day between the hours of six o'clock a.m.and nine o'clock a.m.you be taken to a place within the walls of the United States Penitentiary at Leavenworth, Kansas, and that you there be hanged, by the Marshal of the District until you are dead***(fn40)
Since the appellate courts had reversed Stroud's murder convictions twice before, he tried again. This third time, however, the prosecution did not acknowledge error, and Stroud had to fight to establish the validity of the numerous errors he alleged in his "elaborate brief."(fn41) They included judicial abuse of discretion in refusing to grant a change of venue, double jeopardy, unreasonable search and seizure and failure to sustain a juror challenge for cause. The latter three issues were to have future Supreme Court implications and are discussed separately below.(fn42)
For Stroud's claim of double jeopardy, the Court acknowledged that "the protection afforded by the Constitution is against a second trial for the same offense."(fn43) It recognized, however, that the convictions and sentences from the two former trials were reversed upon writs of error alleged by Stroud himself. Accordingly, "The only thing the appellate court could do was to award a new trial on finding error, thus the plaintiff in error [Stroud] himself invoked the action of the court which resulted in a further trial."(fn44) Moreover, since the jury had rejected a life sentence, the court had no choice but to order the remaining alternative of death. In short, a more severe sentence upon reconviction, even when the new sentence is death, did not trigger the protection of the Double Jeopardy Clause.
For Stroud's claim of unreasonable search and seizure, the Court acknowledged that Leavenworth officials had seized some letters he had written after the murder which contained "expressions tending to establish the guilt" of Stroud.(fn45) The prosecution gladly introduced them into evidence at trial. In rejecting Stroud's claim, the Court found the letters were voluntarily written, no threat or coercion was used to obtain them nor were they seized without process: "They came into the possession of the officials of the penitentiary under established practice, reasonably designed to promote the discipline of the institution."(fn46)
Regarding the issue of juror challenge for cause, the Court recognized the defense challenged certain jurors upon the ground that they were in favor of nothing less than capital punishment for first degree murder convictions. The Court agreed that one such juror, Williamson, should have been removed for such cause. However, because Stroud had struck Williamson by using a peremptory challenge, and had been given two peremptory challenges more than allowed by statute, no prejudice had occurred.(fn47)
Stroud's appeal was argued on Oct. 22, 1919, and the Supreme Court unanimously affirmed his murder conviction one month later.(fn48) With absolutely nothing...
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