Abolition of Alaska's Death Penalty
By DAVE KIFFER
October 15, 2005
The Labor Day weekend in September of 1938 was an eventful one according to the Ketchikan Chronicle. The headline on Tuesday the 6th read: "Murder, Drowning and Illness Cause 3 Deaths Over Holiday"
A bureau of fisheries employee fell overboard and drowned, a postal employee died of a heart attack and Cecelia Johnson, 57, was stabbed to death on a hill above Thomas Basin. Her 37-year-old son in law Nelson Charles was immediately charged with first degree murder.
"According to W.C. Stump, assistant District Attorney, Charles has signed a statement saying he killed his mother-in-law and committed the attack after they met on the hill Sunday afternoon about 5 o'clock," the Chronicle reported. "At 6:20, Charles called local police and told Patrolman C.P. Williams of the crime. Charles waited on Mission Street across from the Federal Building until Mr. Williams came to the building to make the arrest."
The Chronicle reported that Mrs. Johnson had been stabbed in the side and back with an eight inch butcher knife that was later found 10 feet from the scene of the crime and identified by Charles.
"No motive has been given for the crime," the Chronicle continued. "Patrolman Williams testified before Commissioner Austin today that Charles said he killed his mother-in-law 'because I had to..' "
With that, the story the saga of Nelson Charles disappeared from the local newspapers for the next six months. In those days, federal district court met only twice a year in Ketchikan. Charles would wait in jail until the next scheduled court session in April of 1939.
On April 1, Charles was indicted by the grand jury. A charge of sexual assault was also added to the docket. And a local attorney, A.H. Ziegler - who was also the town mayor at the time - was appointed to represent him.
Ziegler had only a few days to prepare a defense and by April 8, Ziegler had already filed a motion to dismiss the case. But the trial began on the 11th with a jury being seated and testimony beginning. The all-white jury consisted of nine men and two women, according to Chronicle.
The government presented its case - which consisted primarily of law enforcement officials and other witnesses reporting that Nelson had confessed to the murder and to also sexually assaulting the dying woman.
In his summation, assistant district attorney George Folta called the crime "the most atrocious murder case ever tried in Ketchikan" and demanded the jury return a guilty verdict and sentence Nelson to death.
The next day, April 13, Nelson took the stand in his own defense. He admitted the slaying, but said he was so drunk that he didn't remember the sexual assault. This was an important point, the Chronicle opined, because without the assault then the murder charge would only be second degree murder because territorial law at the time held that highly intoxicated people could not be found guilty of first degree murder.
The defense also made some procedural moves but didn't call any other witnesses. The prosecution then called several rebuttal witnesses. The case went to the jury at around noon on April 14 and four hours later, Nelson was found guilty of both the murder and the assault.
"His features betraying no flicker of emotion, Nelson Charles heard a federal jury's verdict yesterday afternoon convicting him of murder in the first degree .a conviction automatically calling for the death penalty - by hanging,," the Chronicle reported on April 15, 1939. "If the hanging is carried out Charles will be the first person hanged in the First (judicial) division . "
That was not entirely correct because a Sitka man had been executed more than 30 years earlier.
Judge George Alexander set the execution date for July 21, but several delays pushed the actual date back to November 10.
Averil Lerman, an Anchorage attorney and legal historian, extensively researched the Charles case as part of broader research into the death penalty and how it has been applied in Alaska. Only eight people were executed in the state between 1900 and 1957, when the territorial legislature banned the practice and only the first two - in 1902 and 1903 - were white, Lerman wrote in "The Trial and Hanging of Nelson Charles," which appeared in the Spring 1996 edition of the University of Alaska Anchorage's "Alaska Justice Forum."
Lerman noted that there were certainly numerous murder cases in Alaska during that half century, but only a tiny number of executions. She wrote that several murder cases were tried in Ketchikan in the late 1930s and early 1940s and that no other death sentences were pronounced. The other cases, she noted, involved white perpetrators.
"Why Charles was the only man executed during this period is not clear. Male violence against women was not unusual in that time, any more than it is unusual today.," Lerman wrote. "Initial research suggests that, in general, the slaying of a woman by a man was not itself generally grounds for a death penalty. The husband who killed the mother of three, for example, was sentenced to life imprisonment. A wealthy white man in Juneau who strangled his wife with a stocking in 1946 was sentenced to twenty years. The history of homicide in the Territory shows that, although men murdered women not infrequently, no man other than Nelson Charles was hanged for the murder of a woman."
Lerman was also critical of the defense that Ziegler put on for Charles
"it appears certain from the court records and newspaper accounts that Ziegler did not undertake any significant investigation into the case against Charles," She wrote in 1996. "He was appointed only days before the case came to trial, at a time when he had to present not only this case to the visiting court, but also numerous other matters for other clients, both paying and indigent. The trial record suggests that Ziegler knew almost nothing about his client, or about the government's case, at the start of the trial. In the middle of the trial, he asked for a recess so that he could look for records from the coroner's office, and he tried to obtain witness statements the government had received months before. Ziegler had not located even the most obvious evidence relating to his clientAlthough Ziegler argued strongly against the government's case, according to published accounts of the trial, he put forward not a single witness on Charles' behalf, aside from the testimony of Charles himself. "
In her research, Lerman also found an affidavit by retired U.S. Marshall William Caswell that was filed during the lengthy appeal process. Caswell knew Nelson fairly well and testified that alcohol turned Nelson - normally very polite and friendly - into an "insane" person.
Forms part of: Frank and Frances Carpenter collection (Library of Congress).
Gift; Mrs. W. Chapin Huntington; 1951.
Lerman reported that Caswell didn't contact Ziegler until after the case went to the jury.
"The post-verdict submission of Caswell's affidavit raises troubling questions about Ziegler's preparation for this case and about the court system practices of the time.," she wrote. "As a senior, white, law-enforcement officer speaking so favorably about Charles, Caswell would probably have had a powerful effect on the all-white jury. His testimony might well have been the difference between a verdict for first or second degree murder or between a sentence for life and a sentence for death. "
The fact that both the killer and the deceased were extremely drunk during the incident was also a factor, according to court testimony. Part of Nelson's defense was that Johnson had attacked him with the knife first.
Ziegler filed an appeal almost immediately, but then never followed through with additional legal documents. Lerman says that a lack of money on the defendant's part probably brought the appeal process to a quick halt.
"As the date of execution grew closer, the Alaska Native Brotherhood, the most politically significant Native group in Southeast Alaska, petitioned President Franklin Roosevelt to commute Nelson's sentence from death to life in prison.," Lerman wrote. "Such petitions filed by others on behalf of convicted white murderers sentenced to death had previously been successful. This petition focused on the fact that Charles was known as a fine man when sober and had never become intoxicated until after prohibition was repealed. The petition stated that Charles had enlisted for service in the First World War after lying about his age and that he had then fought in major battles in France. The petition was denied."
Although that petition and other appeals were unsuccessful, they did serve to push back the execution date to November 10.
During that time, Juneau prepared for its first execution. Nelson wasn't the first person to be sentenced to death in Juneau, but - according to a story in the Ketchikan Chronicle - two previous death sentences were commuted.
The scaffold was built in the stairwell of the federal jail in Juneau.
"The plan was to permit a drop of four and one-half feet below the level of the trapdoor," Lerman wrote." Construction of the scaffold was started the day before the hanging. Charles faced his imminent death calmly. According to the local newspaper (The Alaska Daily Empire) , Charles left behind thirteen letters of farewell. One, addressed to Marshal Mahoney, stated that the Marshal 'had treated him kindly and that he did not hold Mahoney in any way to blame for what was about to happen to him.' Whether or not Charles himself was fully literate is not clear: the newspaper reports that he had written the numerous letters, but that his last two letters were dictated by him to Salvation Army Captain Stanley Jackson 'as he waited the last hour.' The paper also reported on Charles' condition on the night before his death, almost as if to reassure the public about a hospital patient recovering from some serious illness: 'Nelson Charles was calm throughout the night, jailers said, and ate a hearty breakfast. He slept about an hour and a half.'
Although there are several published accounts of the hanging itself, Lerman concluded that the best one was actually an unpublished essay by John Gaffney, a young reporter who witnessed the hanging, and kept his essay for 50 years after the event.
Gaffney wrote that Marshal William Mahoney brought the condemned man out to the stairwell scaffold and made sure his arms and legs were secured.
"As he finished his task, he stepped back a little; is there anything you'd like to say, Nelson? he asked.," Gaffney wrote. " We listened as we had never thought a man could listen, listened till our ears would burst, listened while we expected him to say nothing, but hoped he would; we expected a brief negative nod of the dark head. But he spoke, his voice a half-sob, whispering, barely more: I am innocent of killing my mother-in-law, he murmured. I don't want to hang; I still say I am innocent. His head was bowed forward, you could feel if not see the hot tears in his eyes, you could feel his trembling in your own body."
As the two men approached the scaffold, Nelson refused to go on. The marshal and his deputy had to lift Nelson on to the scaffold. As Mahoney pulled a small hood over Nelson's ear, it got caught. Gaffney wrote that Nelson softly said "fix my ear" and that were his last actual words.
When Nelson was on the trap door, Mahoney signaled his deputy who then flipped a switch on the wall. Unseen from the witnesses, were four deputies who would each pull on a rope, but only one of the ropes would actually release the trap. That way it would not be known which deputy was responsible for the actual execution.
"The deputy reached somewhere toward the back wall and at once a clicking noise commenced," Gaffney wrote. "It was loud in the quiet, widely spaced clicks, which seemed seconds apart, loud yet muffled, un-mechanical sounding clicks; the water near me dripped on, drip, drip, click, click, drip, click, drip, click. Then, the clicking stopped with the louder sound of the trap's springing. There it was; the square of wood on which he stood fell away and he fell toward the pit, fell then swung. Not a movement, just swung, turning, turning, now right, now left; like a stone on a string, a bit of paper on a cord, held in the air for a kitten to leap at."
Nelson was declared dead several minutes later. He was buried in an unmarked grave in Evergreen Cemetery.
It would be nearly a decade before two other men were executed in Alaska, both in Juneau. Austin Nelson and Eugene LaMoore were both hanged for the killing a store clerk. Both were African American and were tied to the crime by circumstantial evidence only. During that same period, at least half a dozen white defendants in murder trials were either acquitted or sentenced to lengthy jail terms.
Lerman wrote that the apparent racial discrepancy was not lost on the Territorial Legislature.
"In 1957, after a prolonged debate and an impassioned speech by abolition sponsor Warren Taylor, the territorial legislature abolished the death penalty in Alaska," Lerman wrote in 1996. " According to Vic Fischer, who was the junior sponsor of the abolition bill, one factor motivating abolition was concern about the apparent race bias in the application of the death penalty."
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Dave Kiffer ©2005