Harvard Law School '66
The Biblical Mark of Cain is not intended to be a punishment, nor lead to some form of punishment. In the words of Gunther Plaut, editor of The Torah which is used in most Reform synagogues, "[I]t is not a hand of rejection but a sign of protection." The person who best expresses my own conflicted feelings with regard to those who kill is the Irish poet Oscar Wilde in his long poem "The Ballad of Reading Gaol". Wilde spent a couple years in prison on what might be loosely called a morals charge today. During his routine exercise walks, Wilde would observe another prisoner walking in another ring in the opposite direction:
I walked with other souls in pain,
Within another ring,
And was wondering if the man had done
A great or little thing,
When a voice behind me whispered low,
"That fellow's got to swing."
I can see clearly now that it the not the murderer per se that attracts me. Murder, any murder for any reason, is a terrible thing, so very terrible that even a man like Albert Camus, a Nobel prize winner who rejected any morality based on Judeo-Christian precepts, could reject it categorically: "There are some causes worth dying for but none are worth killing for." Equally terrible is what is done to a person convicted of murder: They are locked away in a tiny cell for years to prevent them from "cheating the hangman". What is humorous in a way is our attempt to make killing humane. To my mind the Chinese do it best with a small caliber bullet to the base of the skull. The organs are immediately "harvested" and the next-of -kin is sent a bill for the bullet.
Nothing attracts public attention like a murder trial. In the mid-1950s, we my family living in a little coal patch near Wheeling. A man named Walter Rabulsky was accused of murdering a bar girl and dumping her body along the railroad tracks. The trial was highly publicized and based on circumstantial evidence. My parents were quite divided, arguing the evidence as it appeared each day in newspapers. My mother was certain that Rabulsky had done it while my father was skeptical about the quantum of evidence. Rabulsky's acquittal was almost a personal triumph for my father.
The trial was one of the few things that brought excitement to both of my parents, so I was surprised at their relative lack of interest at the next big murder case that occurred in Wheeling. I had expected them to be as enthusiastic as they had been about the Rabulsky case, but they were almost indifferent. The perpetrator in this case---a young boy murdered a playmate in the crawl space under a house on Wheeling Island---was clear and thus the "who-done-it" element was not present. I read the early stories eagerly but not even my mother wanted to talk about the case. Nonetheless, I was determined to skip high school, hitchhike the eight or 10 miles to Wheeling, and see with my own eyes someone who had to swing.
Tommy Williams was the defendant's name. He was 13 or so but was being tried as an adult because of the heinousness of the crime. The testimony was to the effect that Williams and an even younger boy had lured the third boy under the house with the intent of killing him. Because the City-County building was under construction, the trial was held in the banquet hall of the Greek Orthodox church on lower Chapline Street. When I opened the door to the courtroom, I was surprised by the fact that there were only a handful of spectators. The facts of the case doubtless sent a shudder through the minds parents in the early part of the Eisenhower era. It is one thing to preach to kids to be wary of strangers. It is another thing when one's precious is lured away by playmates and one of them beats the child to death.
The trial was a classic battle of psychiatrists. It was the first time I had heard the phrase "Oedipus complex": The victim was a surrogate for the father who came back from the war and supplanted young Tommy in his mother's affections. "Sounds like you," my mother said, unimpressed with the summary of the psychiatrist's testimony that she read in the newspaper. "I'm not going to let you use that excuse if you kill someone", she laughed. My father was less kind when he found out that I had been skipping school to go to the trial. He called me a "ghoul".
"But Pop," I said, "I want to be a lawyer. That's why I'm going to the trial." I was lying through my teeth but the answer pleased him. My fascination with murderers was certainly not the reason that I eventually became a lawyer. I went to law school as a prerequisite to entering into politics. The murder mystery of the Orient Express still bores me. It was the transgression of the natural law that fascinated me (making me an odd bedfellow with Justice Clarence Thomas) at the time. Hemingway's idea that killing was a divine attribute exercised by a mortal was what first intrigued me. The terrible fate that awaited people convicted of this terrible crime completed the equation.
Mary Wright, the grandmother of megalawyer and Democratic Congressional candidate Ralph Baxter, also attended the trial. She lived in Pine Grove which made her commute over 60 miles one way. She was driven by her husband Earl who rode to work at the Hope Gas facility in nearby Hastings with my grandfather John Henry Stewart. Earl Wright had to take off from work to drive his "ghoulish" wife to and from the trial. When the trial was over, Earl resumed riding with my grandfather. For the next few days, Earl would regal my grandfather with second hand accounts of the trial. When my grandfather came home in the evening he would tell his wife (also named Mary) about the proceedings.
When the story of the trial passed from my grandmother to my mother on a Sunday afternoon telephone call, my mother learned that the thing than had most impressed Ralph Baxter's grandmother about the proceedings was how Tommy Williams's older brother had sat behind him every day in the courtroom, listening to every word of the testimony. It was Mary Wright's opinion that the older brother was probably in on the murder, possibly even the instigator. "I wouldn't put it past him" Mrs. Wright told my grandmother.
"I didn't have the heart to tell your grandmother," my mother said with a smile, ''that her precious grandson was the person that Mary Wright thought was in on the murder."
Years later I would tell Tom Goodwin, the man who prosecuted the case (I would try a civil case against him), and a half dozen years later one of the defense attorneys Jim Byrum (in 1962, he would meet me at the door of a 12-step program) about how I had seem them ''strut their hour upon the stage'' when I was just a high school student. Also, I would meet with one of the psychiatrists (a Dr. Osterman) about a client of mine at his office at 3 or 4 a.m. He kept weird office hours, which would lead to his murder in the late 1970s. I was later appointed to represent the accused murderer (a fellow named Barrett from eastern Ohio) on a post-conviction review case.
[Osterman was a proponent of electroshock treatments and the murderer administered his own form of "shock treatment" to Osterman with a 12 volt battery. The word on the street was that this was a hit disguised to look like a drug robbery. According to scenario suggested to me by a local "doper" lawyer--Steve Herndon, a conversation between Osterman and a lawyer in his building about an underaged patient lead to the hit.
If Herndon knew what he was walking about, this lawyer ended up involved in Barrett's trial.]
Williams was sentenced to the old maximum security prison at Moundsville for life with mercy, which meant that he would be eligible for parole. When he sentenced Williams, the judge said that because of his youth, he was to be accompanied by a guard at all times when he was out of his cell. This was to protect him from sexual predators.
In 1963 between college and law school, I would spent 6 or 7 months as a guard at the prison. The place was as tough as it was reputed to be. An old guard once pointed out Williams at my request. Like me he was now in his early 20s, quite indistinguishable from the hundred or so other inmates milling around the yard. I asked about whether he had always been accompanied by a guard.
"Oh, yes. He was accompanied everywhere he went until he turned 18. It was in the order of commitment, you know. He would have been a prize catch for one of the old cons," the old guard said. Then he smiled and gave me half a wink. "Of course, the guard would turn his head every now and then. By then he was community property, if you know what I mean." I had a few opportunities later to speak with him but never did, basically because I didn't know what to say. After all, I had grown up with sports and girls and college while Tommy had grown up, well, he had grown up here, in the constant company of guards who would for reasons of their own occasionally turn their heads. And then it got worse.
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