The Trial and Hanging of Nelson Charles

Averil Lerman

"The Trial and Hanging of Nelson Charles" by Averil Lerman. Alaska Justice Forum 13(1): 1, 8-12 (Spring 1996). An account based on historical research of the trial and execution for murder of a Native fisherman, Nelson Charles, in Juneau in 1939. This was one of the last executions in Alaska, which abolished the death penalty in 1957. The article looks at the circumstances surrounding the crime, the trial and the execution.

This article summarizes research on the trial and hanging of Nelson Charles, who was executed in Juneau, Alaska in 1939. It is a part of a larger work in progress, a history of the death penalty in Territorial Alaska, derived from both documentary sources and from oral interviews with participants and witnesses. Principal sources for this history include personal interviews conducted by the author, as well as contemporary reports published in newspapers and records of the Territorial court system.

Overview: The Death Penalty in Territorial Alaska

Until it was abolished by the Territorial Legislature in 1957, Alaska had a death penalty. Between 1900 and 1957, eight men were executed in the territory by force of law, each of them convicted of murder. Although records indicate most murders in the territory were committed by white men, only two of the men hanged during this period were white Americans: in Nome in 1902 and in Sitka in 1903. After 1904, all of the men hanged in the Territory were non-white or of minority status. Three were Natives; two were African-American; and one was a foreigner from Montenegro, who was viewed as a minority by the citizens who tried him.

In 1957, after a prolonged debate and an impassioned speech by abolition sponsor Warren Taylor, the territorial legislature abolished the death penalty in Alaska. 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.

Persons Executed in Alaska
Year City Name Race

1902

1903

1921

1921

1929

1939

1948

1950

Nome

Sitka

Fairbanks

Fairbanks

Fairbanks

Juneau

Juneau

Juneau

Fred Hardy

Homer Bird

Mailo Segura

"John Doe"Hamilton

Constantine Beaver

Nelson Charles

Austin Nelson

Eugene LaMoore

White

White

Unknown

Native

Native

Native

Black

Black

1957

1959

Death penalty abolished in Alaska

Alaska statehood

The larger effort undertaken by this author, from which this article has been excerpted, focuses on the last three capital trials resulting in hangings in Alaska, which occurred in Juneau between 1939 and 1950. The history of the death penalty in Territorial Alaska raises numerous questions. Why was the death penalty so rarely applied? Is it simply coincidence that there were only single decades - the 1920s in Fairbanks and then 1939 through 1950 in Juneau - in which hangings occurred, or was this phenomenon related to social stresses, to a particular judge or prosecutor, or to other factors? Did race affect the application of the death penalty? At what stage or stages of the process of arrest, charge, trial, sentence, or post-conviction could race have been a factor? What impact did the death penalty have on the people who came into contact with it, whether as government employees or as persons connected with the murder victim or the man convicted of the murder? And finally, why was th death penalty, so rarely used, abolished?

Fully answering these questions is beyond the scope of this particular article, but they have contributed to its context. What follows is an account of the 1938 trial in Ketchikan of Nelson Charles and of his hanging in Juneau in 1939.

The Murder of Cecilia Johnson

The first man to be hanged in Juneau under the auspices of the Territorial Court was Nelson Charles; he was executed in 1939 as punishment for murdering his mother-in-law, Cecilia Johnson, in Ketchikan the previous year. Charles was a Native fisherman, the father of a young daughter, and a veteran of World War I. Newspaper and oral accounts suggest that he was not originally from Alaska, but rather from the Puget Sound area. Charles was known as a peaceful, easy-going man, except that when intoxicated he seemed to have a liquor-induced mania. At the time of his trial and execution Charles was 37 years old.

The murder of Cecilia Johnson occurred on September 4, 1938, on a hillside behind Tatsuda's Store (a grocery store which still exists). At the time that area of Ketchikan was known as "Indian Town," because it was largely populated by the non-white residents. Ketchikan was, in the 1930s, as racially divided as any small town in Georgia during the same period. Indians and Alaska Natives were barred from white schools, white churches, and many white businesses. Segregated seating areas were enforced in the movie theater. When a Native family was served in a restaurant, it was not unusual for the proprietor to close the curtains so that white customers would not be discouraged from entering.

It was a common belief at the time of these events that Alaska Natives and other indigenous Americans were particularly susceptible to alcohol and that alcohol caused in them a severe reaction. However, this problem was not viewed with much interest or sympathy in some quarters, but rather was seen as an indicator of the inferiority of the Natives. In April 1938 the Ketchikan Alaska Chronicle published the following note titled "Firewater Trouble." It appears to have been derived from a nationally syndicated column:

Canada has asked Uncle Sam to please see that its Indian wards get no firewater when they come visiting on this side, but is doubtful if the request will get anywhere. The Indian bureau and state department favor complying, but the treasury and justice departments, who would have to do the nurse-maiding, can't see it at all. They have enough headaches as it is keeping the whoopee juice away from U.S. Indian wards.

Cecilia Johnson, aged 58, was Native. She and her husband were in Ketchikan along with their adult daughter, Rosie; Nelson Charles, Rosie's husband; and Nelson and Rosie's young daughter. The family, who was staying with friends in the area, seemed to be celebrating a successful fishing harvest. According to trial testimony, Cecilia Johnson had been steadily drinking whiskey on her husband's fishing boat for at least three days before her death. She was known to be a heavy drinker and was greatly affected by liquor. In the afternoon of September 4, 1938, Nelson Charles and Cecilia Johnson were seen going up the hill behind the store. Shortly after six o'clock that evening, Charles phoned the Ketchikan police from a public phone in the Barbecue, a restaurant near the Federal Building. He told the patrolman who answered the phone that he had stabbed his mother-in-law with a butcher knife and stated he would wait for them at the restaurant. When the police arrived, Charles took them up the hill to where Johnson's body was lying. She had been stabbed in the back and chest and had been sexually molested with an empty bottle. Charles said that his mother-in-law had been drinking and had said she wasgoing to kill him; that she had tried to stab him with a butcher knife; and that he only stabbed her after this attack. Charles was arrested and taken to the federal jail. Funeral services were held for Cecilia. Johnson at the Presbyterian Church three days later.

Charles spent six months in jail before a grand jury was impaneled. An indictment was issued against him on April 1, 1939. During that period, he had no lawyer. After the indictment Federal Territorial Judge George Alexander appointed Ketchikan attorney Adolph H. Ziegler to defend Charles on the first-degree murder charges; he gave him a week to prepare for trial. On April 11, 1939, jury selection for Charles' trial began.

The Trial

By the time of Nelson's trial, the defense attorney, Adolph Ziegler, had been practicing law for more than twenty years and was a prominent member of his community. He had been elected to a seat in the house of the Territorial Legislature in 1929, 1931, and 1935, and he served on the Territorial Board of Education for fourteen years. At or around the time of the Nelson Charles trial, Ziegler was mayor of Ketchikan, a position to which he had been elected in 1938. Although a Democrat, he was viewed as very conservative on social issues - and an unlikely champion for an Indian charged with murder.

The U.S. Attorney was Assistant District Attorney George W. Folta, also an experienced lawyer, who, like Ziegler, had never attended law school, but had learned the law through an apprenticeship. By the time of the Charles trial, Folta had been practicing law in the Territory for eleven years. He was known as a zealous and aggressive prosecutor. (Nine years later, Folta would be appointed to fill the single judicial appointment in the First Division of the Territory of Alaska, the seat then held by Judge Alexander, but of course neither Folta nor Alexander knew that in 1938.)

The jury assembled for the trial of Nelson Charles was all white. The government asserted that Charles had confessed to stabbing Johnson and that he had also sexually assaulted her with a bottle, either before or after she died. Joe Johnson, the husband of the victim, testified that his wife had been drinking heavily for days before her death, and that "alcohol stayed in her system for a long time." The trial of Nelson Charles took four days.

At closing argument, the prosecutor argued to the jury that it had to return a death verdict. He said that he had never before sought a death penalty, but that execution was necessary here. He told the jury that a sentence other than death might mean nothing more than a six or seven year jail term. He said that, if the jury returned a verdict without recommending capital punishment, it meant that capital punishment in Alaska was a dead letter in the law. Death was justified, argued the U.S. Attorney, not because Charles had intended to kill Cecilia Johnson - an argument that would have been hard to make under the circumstances of Charles' profound intoxication at the time of the crime. Rather, he said, death was justified because the law permitted a capital murder conviction where a murder occurred during the commission or attempted commission of a rape, even without intent to kill.

According to the local newspaper account, Ziegler did not make the closing argument for the defense, but instead left it to his partner, W.B. King, to present the argument to the jury. If this account is correct, it is surprising, since there is no other evidence of King's involvement in preparing or litigating the case. (Ziegler's own lengthy memoir of his life at the bar contains no mention of his own work on this case.)

The jury was expressly instructed by the judge that the race of the defendant and of the victim should not be relevant to its verdict. The jury was also instructed to remember that the killing of an Indian "was as much of an offense as the killing of any one of you would have been."

The case went to the jury at lunchtime on Friday, April 14, 1938. After four hours they returned a verdict, finding Charles guilty of first degree murder. The jury also decided that the penalty for the crime would be death.

Post-Conviction

The week after the trial, Ziegler filed a "Motion for New Trial." He made several strong arguments, but the main challenge was based on a claim of newly discovered evidence. This evidence was the testimony of a retired U.S. Marshal, William H. Caswell, who lived in Ketchikan. In an affidavit, Caswell stated that he had known Charles for many years and that, "when not under the influence of liquor he is a quiet, peaceful and polite person and I have never known him to even have an argument or get into trouble of any kind." He said that Charles's behavior and appearance were, however, transformed when he was intoxicated and that he had seen Charles in this state a few days before Johnson was killed:

I met him on the street in Ketchikan within a few days prior to [the date of the murder], that he was drunk at the time; that after he passed me on the street, close to the Federal Building in Ketchikan, Alaska, he turned around and hailed me and came up to me; that he was drunk and commenced crying and apologized to me for being intoxicated; that at said time he had the same bulging of the eyes and stare and had every appearance of an insane person; that from my experience with the man, my observation of his action and conduct when drunk I am convinced that intoxication produces a condition in his mind of insanity. . . .

Caswell stated that his experience in law enforcement had led him to conclude that some people when intoxicated had no idea what they were doing:

From my personal observation, and with the firm conviction and belief in my judgment, based on long experience with similar cases, that the defendant at the time of the commission of the crime charged against him was crazy drunk and entirely irresponsible for his conduct and actions.

Caswell also stated that he had approached Folta with this information on the last day of Charles's trial, but, by the time he talked to Ziegler on that day, the case had already gone 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. 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.

However, it appears certain from the court records and newspaper accounts that Ziegler did not undertake any significant investigation into the case against Charles. 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 an indigent. When the federal judge came to town, lawyers had to work around the clock, preparing case after case, until the court left town for another six months. Small towns like Ketchikan had few lawyers, which meant that the burden of representing indigent defendants weighed heavily on each of them. 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 from Folta witness statements the government had received months before. Ziegler had not located even the most obvious evidence relating to his client. It is obvious he did not know about Caswell, either. Although 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.

Ziegler's "Motion for a New Trial" was denied by Judge Alexander on April 29, 1939. On the same day, Nelson Charles was sentenced to "be hanged by the neck until he be dead, at Juneau, Alaska."

Ziegler delayed the hanging by filing a "Notice of Appeal" in May 1939. But, according to the court file, he never wrote or submitted an appeal brief expanding on the points he raised. Money, or lack of money, probably accounted for his abandoning the appeal. In capital cases where indigents were convicted of first degree murder, it was rare that any appeal was ever filed, since there was no provision made for any free legal representation beyond trial, and the out-of-pocket costs that might be incurred were substantial, including the preparation of a transcript of the trial as well as the necessity of traveling by boat to California to argue the case to the Appeals Court.

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. 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.

Preparation for the Hanging

While Charles was, without any legal assistance, attempting to avoid the scaffold, the U.S. Marshal's office in Juneau was trying to figure out how to build a scaffold. Execution by hanging is not as simple a matter as it might at first appear to be. A "good" hanging is one in which the person executed dies quickly from a broken neck. To insure this result, a greased and stretched rope is used. If the rope is too elastic, the victim dropped from the scaffolding will fall, and then will be bounced upward (as happens, for example, in the sport of bungee jumping). A rough and abrasive rope will prevent the noose from sliding quickly downward around the victim's neck, possibly resulting in a loose "catch" at the bottom of the fall and a slow death by strangulation. Strangulation, taking a period of over 10 minutes, may also be caused if the noose is not properly placed to apply maximum pressure along the spine, or if the drop between the length of the rope and the open trapdoor in the scaffolding is inadequate. Too long a drop, however, may also interfere with the intended result, since the pressure of a long fall applied to the spinal column may result in decapitation. Avoiding decapitation requires evaluation of the victim's weight and strength.

The U.S. Marshal in Juneau, where the hanging was to occur, was William Mahoney. Because there had never been an execution in Juneau, Mahoney had never before had occasion to study the technology of hanging. The Office of the U.S. Marshal was on the daily beat of George Sundborg, then a young reporter on a local weekly called The Juneau Independent, and a stringer for the Associated Press. Sundborg recalls seeing the Marshal and his deputies pore through the manuals in order to learn their new duty: Several weeks ahead of the date of the hanging, the Office of the U.S. Marshal was making preparations there for it. . . . They of course had never conducted a hanging, and I think they got a few books out of libraries somewhere, probably from the U.S. Marshal Service, to tell them how a hanging was to be set up and carried through. And I know that they had done some dry runs with the trap that they built, and had carefully calculated the weight of the victim - of the accused, so that he wouldn't be dropped so far as to behead him, which sometimes happens in a hanging, I learned at that time.

Like men on a firing squad, one of whom has a blank cartridge in his rifle, the Deputy Marshals were insulated from individual responsibility for the act of executing Nelson Charles. Sundborg explained:

And so Walter Hellan, who was in charge of all of this, had told me that so that the person who actually sprung the trap would not know that he had done it, they set up several, I think four, different ropes that would pull a pin that dropped the trap. And three of them would be false, and one would be the one that actually did it. And so the four men, all of whom were Deputy Marshals - the one who did it would not know that it was he who had pulled the one that actually caused this man's death.

(On the day after the hanging, Deputy Marshal Walter Hellan complained that Sundborg should not have published the names of the four deputies who held the strings, that revealing even that much responsibility was too much.)

Federal Jail in Juneau / Signatures of Witnesses

The scaffold was constructed in a stairwell of the building which housed both the federal jail (men on the ground floor, women on the second) and the Marshal's residence (on the third floor). The building had at one time been the territorial capitol, and still displayed its initial purpose with a colonnaded entrance and a small, latinate cupola at its peak. Instead of building a gallows, the Marshal decided to make use of the architecture of the building itself. Sundborg described the federal jail and the plan worked out by Mahoney:

It was a large building which previously had been the capitol. And it was a wooden building but very large, and quite attractive. But it had grown old and it had been supplanted by the federal building, which was across the street from it. It had outside stairways, that is, one was out in the open when going from the second floor to the third floor, and so on. And [the Marshal's office] had decided that they would do the hanging under one of these stairways because there was an open space there with quite a drop. And so we went in and they had set up a floor in the place with a trap in the midle of it.

The plan was to permit a drop of four and one-half feet below the level of the trapdoor. Construction of the scaffold was started the day before the hanging.

Charles faced his imminent death calmly. According to the local newspaper, 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."

Federal law required that the execution be witnessed by at least twelve people. The Marshal had approached this issue with surprising solemnity. The witnesses selected received printed invitations, which, according to George Sundborg, looked almost like engraved wedding invitations, printed on blue paper tickets. The invitations were sought after. Al Anderson, a writer for the Alaska Daily Press and a stringer for the United Press Service, received an invitation from Mahoney. More than fifty years later, he still remembered with astonishment the extent to which others envied him for it.

Consistent with traditional execution protocol, Marshal Mahoney invited a number of journalists to witness the hanging. These included George Sundborg, Al Anderson, and John Gaffney, a young reporter who worked for Anderson. The others included a Catholic priest, a Salvation Army minister, Marshal Mahoney, two of his deputies, and two doctors, who were retained to confirm the death of Nelson Charles. Three other witnesses were apparently unrelated either to law enforcement or to the press; they included an employee of the Internal Revenue Service, a well-known criminal defense attorney, and another, unidentified, man.

The best account of the hanging of Nelson Charles was written by John Gaffney, the young reporter who worked with Al Anderson. Gaffney wrote the account, not for the newspaper, but in a private essay shortly afterwards, an essay which he kept for more than 50 years.

Gaffney and Anderson walked from the newspaper office up to the federal jail, careful to arrive before the 8:30 a.m. deadline. They handed over their blue tickets at the gate of the jail yard and entered the ground floor entrance of the old building. Each witness was required to sign three forms, which were laid on a table near the door. The group of witnesses milled around until one of the doctors, who was late, was telephoned.

Once the doctor arrived, all of the witnesses were taken outside again and walked single file around to the side of the building, where the trapdoor had been placed under the large staircase that led from the ground up to the second floor. A second set of stairs descended to the basement level. A rope had been hung from the bottom of the second floor landing to the trapdoor structure that had been built over the excavated area into which the lower stair descended. Two small benches had been placed on the wooden platform, ten feet from the trapdoor that would open into the pit below. Gaffney described what he saw:

Directly in front of the first bench there ahead of me was a wire screeing, not fine wire, but wire with holes big enough for eggs to go through, big enough so that if you didn't think about the wire you forgot it was there. In front of us was a pit about fifteen feet deep, formed by the stairway and the basement. The floor of the basement was of concrete; the concrete was black looking and wet. Then, opposite us, across the pit, was a little platform; about twelve feet by five feet; in the center of the platform was the trap.

The rope was attached to a wide plank which had been nailed firmly to the side wall of the building. A door opened from the building onto the platform.

The witnesses seated themselves on the benches. From nearby came a loud sound of regular dripping, either melting snow or water in pipes. The Marshal came out the door and told everyone to refrain from talking once Nelson Charles came out. Then he left. There were only a few further remarks from the witnesses assembled, waiting. Al Anderson recalls hearing someone say, "Jesus Christ, what a way to make a living." Gaffney wrote:

There were more sounds at the doorway. This would be it. First the marshal appeared, his arm holding someone else's arm, his body half-hiding another man. Then, slowly, so slowly, three of them were there; the marshal, a deputy, and between them, a man, a native, whom I had never seen before; he was the man. . . . He stood there, not more than fourteen or fifteen feet away, looking at us. He looked as we had expected, like the full-blooded native he was. He wore blue serge trousers, black shoes, a white shirt, and a dark tie, well knotted and in place.

Charles's arms and hands were bound tightly to his sides with white straps. As the witnesses watched, Mahoney took another strap and bound Charles's legs together. Gaffney wrote:

As he finished his task, he stepped back a little; is there anything you'd like to say, Nelson? he asked. 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.

Assisted by two men, Charles shuffled inch-by-inch to the edge of the trap. He then refused to proceed, and had to be lifted onto the center of the trapdoor by Marshal Mahoney and his deputy, Walter Hellan.

Mahoney took a small black hood from under his vest. He began to pull it over Charles's head. Too small, it got caught on Charles's right ear. "Fix my ear," he asked softly. The newspapers reported thes as Charles's last words.

Mahoney took the noose off a peg on the wall and placed it over Charles's hooded head. He drew the loop tight around Charles' neck and placed the knot of the noose just behind his right ear.

Watching these preparations, John Gaffney noted his own reaction:

Had I any thought of a man, a criminal, about to pay for his crime? Any thought of a disreputable and dangerous killer about to give his life for one he had taken? No; nothing like that. Only that a man was about to die; that there, almost within reach, was a man, a man like ourselves; a young man who somewhere had a wife, who had once slept an untroubled sleep, had only the day before laughed and hoped for life.

I was aware of some feeling as I sat there then, some unusual feeling that was strange to me; then it was vague, and there was not time to fathom it. But now I know; it was the certainty, the sureness of it. I knew for the only time in my life that within minutes this man who now lived as I lived would be dead, a stone, lifeless, cold and stiff. Men have been stricken with fatal diseases and we have known they will die; we have held our buddies in our arms at the front and watched the last breaths spend themselves; but even then there has been hope, and when not hope, the awareness that death might stay away yet awhile. Would it come now, or later, perhaps? But none of that now; nothing less than a miracle can save this fellow, and there are no miracles in this life; we know no other. Soon he will be a stone.

Having arranged the noose, Marshal Mahoney stepped back a step, raised his arm, and softly said, "OK." Walter Hellan, the Deputy Marshal, flipped a switch on the wall next to him. Gaffney remembered:

The deputy reached somewhere toward the back wall and at once a clicking noise commenced. 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.

Nobody spoke; they stared at the swinging form below them. According to the witnesses, after the drop, Charles neither moved nor made any sound. The Marshal walked off the platform and went downstairs to help one of the dctors climb up a pile of boxes to determine whether or not Nelson Charles was still alive. Then the other doctor made his examination. "Dead," was all he said once he reached the body swinging from the rope.

The wooden wall that had been nailed up onto the side of the staircase was removed by men outside. The witnesses were asked to leave. As they walked through the gate, a black hearse pulled through the gate towards the jail. One of the newspapers reported that the body was recovered not by cutting the noose from the rope, but instead by pulling it back up through the trap.

Al Anderson, dropping his voice to a gravelly drawl to quote Mahoney, remembered what happened after the hanging:

And afterwards, I'll never forget, the United States Marshal congratulating Walter Hellan on the "smooth job, well done." And I think after that that I went downtown to a bar and had a good stiff drink, then came back to my office at the Alaska Daily Press, wrote the story, and everybody stayed away from me because they knew I had enough on my mind.

The Daily Alaska Empire commended the job done by Marshal Mahoney and his deputies: "The execution was carried out smoothly and expertly, although it was the first ever held in Juneau."

Nelson Charles had asked that a funeral be conducted by the Salvation Army. He was buried in an unmarked grave in Evergreen Cemetery, the only graveyard in Juneau. This writer has not yet discovered what happened to his wife and his daughter.

Conclusion

Nelson Charles's case, by itself, is not representative of all the other capital cases tried in Territorial Alaska. Unlike some of the men hanged in the Territory, Charles was clearly implicated in the homicide for which he was executed. The question for the jury was not whether Charles had stabbed Cecilia Johnson, but whether he had intended to kill her, whether he had acted in self-defense, and whether her death occurred during an attempted assault. Unlike some men hanged in the Territory, Charles had an experienced attorney who made an attempt to mount a legal defense during the trial. And, unlike several other men hanged before abolition of the death penalty, Charles could speak English, as could the witnesses called by the state.

Murder was not as uncommon as some might suppose in Southeast Alaska in the late 1930s. In June 1937 a man was arrested for having drowned his two sons. In August 1937 a cannery worker was killed by another cannery worker. In December 1937 a man killed his 17-year-old son. In January 1938 another woman, the mother of three, was killed. It is clear Southeast Alaska had a number of murders.

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. 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.

How much difference would it have made to Charles and to all the other Natives hanged after 1903 if they had been tried before a judge and a jury drawn from "Indian Town"? The Alaska Native Brotherhood petition filed on behalf of Nelson Charles suggests that, in the Indian community, Charles was condemned for his crime, but was also recognized as a man who was valued and respected when he was not poisoned by drink. The petition suggests that a Native jury would have sentenced Charles to life imprionment, and not to death.

There is no question that white juries frequently sentenced white murderers to life in prison and not to the gallows. The court records contain the files of several such cases tried in Southeast Alaska at approximately the same time. One such case was that of George Harrison Meeks, convicted in 1946 for the robbery and slaying of Clarence Campbell in Juneau. The Assistant U.S. Attorney who prosecuted Meeks, Robert Boochever - now a senior judge of the Ninth Circuit Court of Appeals - has said in an interview with the author that, in his opinion, Meeks would have been hanged if he had been black.

Would Charles have been in a different position if the jury, the prosecutor, the defense attorney, and the judge had not all come from the white Alaska population, the same population that did not want to mingle with Natives, did not want to integrate the schools, and did not want to sit together at the movie theater on Saturday night? The fact of the racial divide is undisputed. But what were its consequences?

This is a question as timely today as it was fifty years ago, and further research needs to be done on these questions.

Averil Lerman is an attorney and legal historian.