1 NOVEMBER 1963, Page 6

The Trial

EABLISIIED American political authority has developed the custom of referring to the events of last summer and fall as 'the Negro revolution' in its public language; but its repre- sentatives can be forgiven if they think of these events as 'the Negro trouble' in their private complaints. President Kennedy's soundings seem to have instructed him as an instance that he is likely to lose a surprising number of votes to resentful whites in areas hitherto counted safe for the Demo-liberal-labour coalition.

The politician in the Northern and border States, when he rules even more than when he runs, finds himself an increasingly tormented mediator between aspiring poor Negroes and re- sisting poor whites. Governor Millard Tawes, of the small State of Maryland, embodies this position in peculiarly painful form. He presides over a, State which, small as it is, runs a range of social and sectional conflict which reflects in small that of the country as a whole. Maryland includes Baltimore, a large, cosmopolitan and increasingly Negroid city; the suburbs of Wash- ington and Baltimore, which are refuges for those whites who have fled the cities to leave ghettoes behind them; and the Eastern Shore, which, until quite recently, was cut off by the unbridged waters of the Chesapeake Bay from the rest of the State and had developed in iso- lation a society very like that of the rural Eastern Carolinas.

Millard Tawes was born on the Eastern Shore and was a banker and processor of seafood in Crisfield, at its extreme tip. Since he is sixty-nine and stayed there until he was in his fifties, we have every reason to assume that he was com- fortable with the country Southern segregation which was Crisfield's accepted order. Yet Tawes's origin and training are no more relevant than if he had been born a Baltimore Quaker; a Governor of Maryland can have no interior; his course these days is directed from outside him- self and by the conflicting passions of other men. Whatever convictions authority in his position may have had it has long since set aside; the convictions, passionately held, of other men are, after all, the source of all the inconveniences ' with which it struggles. The immediate function of authority is to appease. And the occupa- tional unhappiness of authority is a kind of homesickness in time: a Governor offers at last to do for the Negro that which would have con- tented him a decade ago and in shock and sorrow finds out how much more is wanted.

The Governor of Maryland has the power to grant mercy to condemned criminals. The other day Millard Tawes sat , to hear the appeal of

John and James Giles, and of Joseph Johnson, three Negroes sentenced to execution in the Slate gas chamber for the rape of a sixteen-year-old white girl in the woods by the Patuxent River, sixteen miles from President Kennedy's own White House, in July, 1961. The Negro-white rape case is, of course, a staple. of Southern legal history, the root of lynchings, the abiding focus of Northern protest. The Giles-Johnson matter is so like the famous Scottsboro, Alabama, case of the Thirties as to constitute an instance of nature imitating propaganda; here, too, the assailants were young and here, too, their victim's honour had been interred long ago. The Giles brothers and Joseph Johnson came before Millard Tawes, as the Scottsboro boys did before the Governor of Alabama. The difference be- tween the Maryland of 1963 and the Alabama of 1933 was, of course, at least the difference between the death penalty and life imprisonment. There was no reason to doubt Governor Tawes came prepared to offer these defendants clemency and a commutation to life imprisonment. But the old remedies are all gone now; what the Governor had to endure was not an appeal that Maryland be merciful to these condemned men, but a de- mand that Maryland apologise to them.

The Governor opened by saying that he hoped the business could be done in two hours because he had to attend a civil rights panel that after- noon. And he hoped, too, that everyone \ wok] remember that these defendants had been found guilty by two Maryland juries and sentenced to death by two Maryland judges. That legal history is the core of the Giles-Johnson problem. The Governor was being asked to reduce their sentence, not to life, but to no more than twq years apiece; and to do that would be almost to admit that all the agencies of Ntaryland justice had tried and condemned them so cruelly be- cause they were Negroes and the girl was N+ bite.

The Giles-Johnson case began with the eon- frontation of three poor Negroes with tit o poor whites in a dark wood. There had been a tight: the three Negroes swore it began when the girl's escort invoked upon them a racial obscenity. Her escort was knocked unconscious and ihe girl ran away to be found, by her acc, un:. by the three Negroes dazed and terrified and ‘N thereafter ravished. James Giles and Joseph Johnson admitted that they had indulged them- selves, but asserted that their object had been entirely willing, even, Joseph Johnson said, eager. This, of course, was a hopeless defence. since to accept it a Southern Maryland jury would have to believe it possible that a lone a bite man would choose to insult three Negroes in an otherwise abandoned forest and that a white girl would willingly couple with three strange Negroes. The prosecution did have one easier problem : the victim admitted that she had offered no physical resistance, and had disrobed and submitted herself because she was told to. The prosecution had, however, met that problem by summoning up the atmosphere to be assumed from the traditional conception of the instincts of Negroes and the helplessness of white girls in the dark of the night. This conception had been accepted by the Attorney-General of the State of Maryland and neatly summarised in his state- ment of facts to the United States Supreme Court in opposition to the Giles-Johnson appeal: `Dazed and terrified, and alone in the woods with three demonstrably violent coloured men, she withstood repeated rapes.'

After the condemnation of the Giles brothers and Joseph Johnson, a number of residents of suburban Washington formed a committee to ask clemency for them; its original assumption was that they were guilty, but, that the penalty was too harsh. Then Howard Knapp, a Pentagon mathematician who had joined the committee, spent four months investigating the case. He found out that the victim had a history of sexual exercise both bizarre and unwearying and so well known to the prosecuting attorney that he had put her in a home for wayward girls while she was waiting to testify. Her escort had a record for drunkenness and fighting and public invective against Negroes. The testimony of the defendants had gone so against all the reason of tradition that no jury could have believed them; yet here was a man who, if any man could, might have started a fight with three Negroes, and here was a girl who, if any girl could, might have lain down for anyone who asked her. The evidence for these possibilities was, of course, a secret to the jury' and the defence and known only to the prosecuting attorney, who disre- garded it.

Hal Witt, as counsel for the Giles brothers and Johnson, expatiated on the character of the witnesses against them until Millard Tawes began struggling to turn the morning back from a trial of the State of Maryland. He had heard enough about the character of the complainants, he said; what about the character of the de- fendants? He had their record before him : `Drunkenness, larceny, housebreaking,' and Hal Witt intervened to say that these enormities all described one petty crime by John Giles. The Governor went remorselessly on: 'Hunting out of season, fined $17.50. These boys would have been much better off if they had just gone right home,' said the Governor; and, upon that shocked summation of the crime of three men sentenced to execution, Witt yielded the floor. It fell, oddly enough, to Robert Heeney, the suburban lawyer who had defended Joseph Johnson, to advert to the so-not-to-be-mentioned reality. 'Your Excellency,' he said, 'if I could have changed the colour of the skin of one of the persons out there that night, this could never have been a death case. At most it is the co- habitation of a Negro with a white girl.'

Then Knapp came on, a 'private man who has consumed every day for four months on the case of these three poor Negroes, to remind the Governor that, after reading his new evidence, five of the jurors who had convicted the Giles brothers had written to say that, had they known, they would not have voted to convict. `I thought,' the Governor said, 'it was only four.' Knapp handed up a letter from the fifth repentant juror. In that moment of solemn glory for the private American, mistaken but remembering those notions of honour which are also a tradition,

the Governor asked if the State's Attorney who had prosecuted the case had anything to say.

Then up stood a thick young man in a silk suit to say that he had tried these cases without fear or favour and: 'After hearing all these facts, we would have no objection if your Ex- cellency decided to commute these sentences on the basis of the facts you have heard today.' The Governor, of course, had heard no facts which this young man had not already known before he started these three defendants on the way to the house of execution, or which he • could not have found out through the most routine use of resources that outmatched Knapp's in every way except pertinacity and sense of justice. Yet he stood there shining with the

newly-discovered virtue of good will, and Millard Tawes, going troubled away, might have envied his ignorance of how thin an armour good will turns out.

What doubt there seemed left was not about whether the Giles brothers and Joseph Johnson would have to be executed, but how long the Governor would set their terms of servitude. He might, having heard all this, reduce their sen- tences to twenty years each. That would be about ten times what their sins deserve and may be taken as a measure of what mediating authority has by now come to consider an acceptable com- promise between justice and the good reputation, the order and the traditional assumptions of organised society.