Bending Toward Justice: The Posthumous Pardon of Lieutenant Henry Ossian Flipper

Indiana Law Journal

Volumn 74, Issue 4, 1999, Pages 1249-1291

  Jackson, Darryl W ^a   Smith, Jeffrey H ^a   Sisson, Edward H ^a   Krasnoff, Helene T ^a  

^a NONE

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EID: 0347174800     PISSN: 00196665     EISSN: None     Source Type: Journal    
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References (118)

1. This book is still in print; see reprint edition by Ayer Co., Salem, New Hampshire (1991).
2. Trial transcript at 506 (copy available on request). The facts surrounding the conviction are discussed in detail in Lt. Flipper's Pardon Petition at pages 6-13.
3. Trial transcript at 464, 470, 477-478, 488, 491. Key testimony is reproduced in the Pardon Petition at 59-61.
4. The charge for which Lt. Flipper was convicted consisted of five specifications, all of which related to his attempt to wait until he had the funds on hand for which he was responsible. The first specification was for making a false statement to Colonel Shafter on August 10, 1881, in connection with transmittal of the funds and representing orally that the funds were in transit to the Chief Commissary of Subsistence. Specifications two through four concerned the weekly statements he completed on July 9, 16, and 23, 1881, that showed the funds in transit to the Chief Commissary of Subsistence. Specification five involved him displaying a check by which he attempted to convince Colonel Shatter that the funds were not deficient.
5. Attached as Exhibit 1.
6. President Arthur's order is attached as Exhibit 2.
7. When not in federal service, Lt. Flipper was a civil engineer, surveyor, and expert in mining and land laws, practicing in the Southwest, Mexico, and South America. He was the first African-American to gain distinction in these professions in the United States. See Henry O. Flipper, Negro Frontiersman: The Western Memoirs of Henry O. Flipper, reproduced in the Pardon Petition Appendix at Tab A, page vii.
8. See Brief of the United States in Opposition to Motion to File Additional Evidence in Faxon v. United States, No. 119, Oct. Term 1897 at 9; Pardon Petition at 49-51 and Pardon Petition Appendix Tab B1.
9. See Brief of the United States in Opposition to Motion to File Additional Evidence in Faxon v. United States, No. 119, Oct. Term 1897 at 9; Pardon Petition at 49-51 and Pardon Petition Appendix Tab B1.
10. See Brief of the United States in Opposition to Motion to File Additional Evidence in Faxon v. United States, No. 119, Oct. Term 1897 at 9; Pardon Petition at 49-51 and Pardon Petition Appendix Tab B1.
11. See Annual Report of the Attorney General, 1904, at 99; Pardon Petition at 51-52 and Pardon Petition Appendix at Tab B2.
12. See Annual Report of the Attorney General, 1904, at 99; Pardon Petition at 51-52 and Pardon Petition Appendix at Tab B2.
13. See Letter from Senator Albert B. Fall to Senator James W. Wadsworth, dated Sept. 9, 1922; Letter from Senator Albert B. Fall to Senator Harry S. New, dated Sept. 9, 1918; Pardon Petition at 52-58 and Pardon Petition Appendix at Tabs C2 and C4.
14. A complete copy of these proceedings is included as Exhibit 3 and in the Pardon Petition Appendix at Tabs E1, E2 and E3.
15. The Citizens Stamp Advisory Committee of the U.S. Postal Service is considering an application for a stamp honoring Lt. Flipper. The request, which has been pending since 1985, has garnered the support of broadcasting entrepreneur Ted Turner, former Arizona governor Rose P. Mofford, and many others. We understand that the request is still "under consideration" at this time.
16. Attached as Exhibit 4.
17. See Official Opinions of the Attorneys-General of the United States, Vol. 20, at 339-340, attached as Exhibit 5.
18. Id. at 343.
19. Id. at 343-344; 11 Stat. 763-764.
20. See Letter from Jayson L. Spiegel, Acting Assistant Secretary of the Army for Manpower and Reserve Affairs, to the Acting Pardon Attorney, dated May 5, 1998, attached as Exhibit 6.
21. Attached as Exhibit 7.
22. See, e.g., Letter from Franklin J. Henderson, Colonel and Immediate Past National President, Ninth & Tenth (Horse) Cavalry Association, dated June 19, 1998; Letter from James M. McPherson, George Henry Davis Professor of History, Princeton University to President Clinton, dated June 5, 1998, attached as Exhibits 8 and 9.
23. The pardon in Burdick stated, in pertinent part: Whereas, the United States attorney for the southern district of New York desires to use the said George Burdick as a witness before the said grand jury . . . and, Whereas, it is believed that the said George Burdick will again refuse to testify in the said proceeding on the ground that his testimony might tend to incriminate himself; Now, therefore, be it known, that I, Woodrow Wilson, President of the United States of America . . . hereby grant unto the said George Burdick a full and unconditional pardon . . . . 236 U.S. at 85-86.
24. Copies of these letters are attached as Exhibits 10 and 11 and were also included as character references in Lt. Flipper's Petition for Pardon at 54 and in the Appendix to that Petition at Tabs C2 and C4.
25. Attached as Exhibit 12. The full text of these memoirs is included in the Appendix to Lt. Flipper's Petition for Pardon at Tab A.
26. Even if one were to take the words of Wilson literally and approach a pardon as if it were a deed, there would be no impediment to issuing a pardon to Lt. Flipper. A deed traditionally is a conveyance of realty. See Black's Law Dictionary 414 (6th ed. 1990). Since Lt. Flipper has died, his heirs, who have made this pardon application on his behalf, can accept any property posthumously deeded to him. Lt. Flipper's estate would be administered in Georgia. Under Georgia Law, an estate may be reopened after it is settled for the purpose of administering additional property. See Ga. Code Ann. § 53-7-50(d) (1997). If a person dies intestate, his heirs may petition the court for an order that no administration is necessary if the heirs agree to a division of the property. See Ga. Code Ann. §§ 53-2-40 through 53-2-42 (1997). Therefore, even if a pardon were really a deed, one may be granted to a Georgia decedent. Lt. Flipper's heirs would be happy to reopen his estate or to go to court to obtain the order that no administration was necessary, if that is what now is required to clear his name.
27. Even if one were to take the words of Wilson literally and approach a pardon as if it were a deed, there would be no impediment to issuing a pardon to Lt. Flipper. A deed traditionally is a conveyance of realty. See Black's Law Dictionary 414 (6th ed. 1990). Since Lt. Flipper has died, his heirs, who have made this pardon application on his behalf, can accept any property posthumously deeded to him. Lt. Flipper's estate would be administered in Georgia. Under Georgia Law, an estate may be reopened after it is settled for the purpose of administering additional property. See Ga. Code Ann. § 53-7-50(d) (1997). If a person dies intestate, his heirs may petition the court for an order that no administration is necessary if the heirs agree to a division of the property. See Ga. Code Ann. §§ 53-2-40 through 53-2-42 (1997). Therefore, even if a pardon were really a deed, one may be granted to a Georgia decedent. Lt. Flipper's heirs would be happy to reopen his estate or to go to court to obtain the order that no administration was necessary, if that is what now is required to clear his name.
28. Even if one were to take the words of Wilson literally and approach a pardon as if it were a deed, there would be no impediment to issuing a pardon to Lt. Flipper. A deed traditionally is a conveyance of realty. See Black's Law Dictionary 414 (6th ed. 1990). Since Lt. Flipper has died, his heirs, who have made this pardon application on his behalf, can accept any property posthumously deeded to him. Lt. Flipper's estate would be administered in Georgia. Under Georgia Law, an estate may be reopened after it is settled for the purpose of administering additional property. See Ga. Code Ann. § 53-7-50(d) (1997). If a person dies intestate, his heirs may petition the court for an order that no administration is necessary if the heirs agree to a division of the property. See Ga. Code Ann. §§ 53-2-40 through 53-2-42 (1997). Therefore, even if a pardon were really a deed, one may be granted to a Georgia decedent. Lt. Flipper's heirs would be happy to reopen his estate or to go to court to obtain the order that no administration was necessary, if that is what now is required to clear his name.
29. See also Hempel v. Weedin, 23 F.2d 949, 951 (W.D. Wash. 1928) ("In Burdick v. United States it was held that the acceptance of a pardon was essential to its validity, but it has been held this is not true in all cases.") (citing Perovich).
30. Attached as Exhibit 13.
31. Attached as Exhibit 14.
32. The Crown's policy in issuing "free" pardons had been to grant such pardons, whether posthumous or not, only in cases where the convicted person was found to have been "morally and technically innocent" of the crime. The British court in the Bentley case accepted the Home Secretary's finding that Bentley failed this standard. Id. at 454. This unwillingness to grant an unconditional pardon without finding that the grantee was innocent is not relevant to the scope of the pardon power, but is a distinction in policy. In contrast to the Crown's policy, the U.S. Department of Justice Manual says that "in all clemency cases, the guilt of the petitioner is assumed, and the question of guilt or innocence is not relitigated in clemency proceedings." Department of Justice Manual § 1-2.108 at 1-57 (1990-1 Supp.), attached as Exhibit 4.
33. A copy of this posthumous pardon is attached as Exhibit 15.
34. Attached as Exhibit 16.
35. Attached as Exhibit 13.
36. Attached as Exhibit 14.
37. For example, some states include additional offenses beyond impeachment in their constitutional prohibition on pardons. Other states require the governor to act in conjunction with the state legislature or an advisory board in issuing pardons. See Section V.B., infra.
38. See Md. Const. art. II, § 20, which states: He shall have power to grant reprieves and pardons, except in cases of impeachment, and in cases, in which he is prohibited by other Articles of this Constitution; and to remit fines and forfeitures for offences against the State; but shall not remit the principal or interest of any debt due the State, except, in cases of fines and forfeitures; and before granting a nolle prosequi, or pardon, he shall give notice, in one or more newspapers, of the application made for it, and of the day on, or after which, his decision will be given; and in every case, in which he exercises this power, he shall report to either Branch of the Legislature, whenever required, the petitions, recommendations and reasons, which influenced his decision.
39. See Cardin v. State, 533 A.2d 928 (Md. Ct. Spec. App. 1987), appeal denied, 538 A.2d 777 (Md. 1988); see also John W. Frece, Schaefer Grants Cardin Pardon in S & L Scandal, Baltimore Sun, Sept. 10, 1994, at A1, attached as Exhibit 17.
40. See Cardin v. State, 533 A.2d 928 (Md. Ct. Spec. App. 1987), appeal denied, 538 A.2d 777 (Md. 1988); see also John W. Frece, Schaefer Grants Cardin Pardon in S & L Scandal, Baltimore Sun, Sept. 10, 1994, at A1, attached as Exhibit 17.
41. See Cardin v. State, 533 A.2d 928 (Md. Ct. Spec. App. 1987), appeal denied, 538 A.2d 777 (Md. 1988); see also John W. Frece, Schaefer Grants Cardin Pardon in S & L Scandal, Baltimore Sun, Sept. 10, 1994, at A1, attached as Exhibit 17.
42. See id. See generally Alec Matthew Klein, S & L Meltdown, Baltimore Sun, May 7, 1995, at E1; Thomas W. Waldron, Commuted Term was Typical of Schaefer, As Governor, He Relied on Instincts, Advice of Longtime Friend, Baltimore Sun, Oct. 4, 1997, at B1, attached as Exhibits 18 and 19.
43. See id. See generally Alec Matthew Klein, S & L Meltdown, Baltimore Sun, May 7, 1995, at E1; Thomas W. Waldron, Commuted Term was Typical of Schaefer, As Governor, He Relied on Instincts, Advice of Longtime Friend, Baltimore Sun, Oct. 4, 1997, at B1, attached as Exhibits 18 and 19.
44. Pardon Proclamation (for Jerome S. Cardin), Md. Exec. Dep't (Sept. 2, 1994), attached as Exhibit 20.
45. See Cal. Const. art. V, § 8(a), which states: Subject to application procedures provided by statute, the Governor, on conditions the Governor deems proper, may grant a reprieve, pardon, and commutation, after sentence, except in case of impeachment. The Governor shall report to the Legislature each reprieve, pardon, and commutation granted, stating the pertinent facts and the reasons for granting it. The Governor may not grant a pardon or commutation to a person twice convicted of a felony except on recommendation of the Supreme Court, 4 judges concurring.
46. The only other constitutional limitation on the California governor is that he may not pardon an individual who has been twice convicted of a felony except on the recommendation of at least four judges of the state Supreme Court.
47. See Dave Lesher, Dead Man's Name Finally to be Cleared; Crime: Investigator Shows Murder Confession 68 Years Ago Was Coerced, L.A. Times, Apr. 15, 1996, at 1, attached as Exhibit 21.
48. See id.
49. See generally Stephen Green, Pardon Still Awaited in 1920s Crime Convictions, Sacramento Bee, July 10, 1995, at A1; Stephen Green, Terrible Legal Wrong Finally Righted, Sacramento Bee, Apr. 16, 1996, at A1; Bleys W. Rose, Pardon Sought in 1925 Humboldt Murder Case, Press Democrat (Santa Rosa, Cal.), July 13, 1995, at A1, attached as Exhibits 22, 23, and 24.
50. See generally Stephen Green, Pardon Still Awaited in 1920s Crime Convictions, Sacramento Bee, July 10, 1995, at A1; Stephen Green, Terrible Legal Wrong Finally Righted, Sacramento Bee, Apr. 16, 1996, at A1; Bleys W. Rose, Pardon Sought in 1925 Humboldt Murder Case, Press Democrat (Santa Rosa, Cal.), July 13, 1995, at A1, attached as Exhibits 22, 23, and 24.
51. See generally Stephen Green, Pardon Still Awaited in 1920s Crime Convictions, Sacramento Bee, July 10, 1995, at A1; Stephen Green, Terrible Legal Wrong Finally Righted, Sacramento Bee, Apr. 16, 1996, at A1; Bleys W. Rose, Pardon Sought in 1925 Humboldt Murder Case, Press Democrat (Santa Rosa, Cal.), July 13, 1995, at A1, attached as Exhibits 22, 23, and 24.
52. See Stephen Green, Dead Man is Cleared by Wilson, Fresno Bee, Apr. 16, 1996, at B3, attached as Exhibit 25.
53. The governor noted in the pardon, however, that Mr. Ryan, before his death, had sought a pardon. See In the Matter of the Clemency Request for Jack Ryan, Executive Dept., State of California (Apr. 15, 1996), attached as Exhibit 26. As discussed supra, Lt. Flipper worked during his lifetime to clear his name.
54. Id.; see also Wilson Grants Posthumous Pardon to Convicted Killer, L.A. Daily News, Apr. 16, 1996, at N9, attached as Exhibit 27.
55. See Ariz. Const. art. V, § 5, which states: The Governor shall have power to grant reprieves, commutation, and pardons, after convictions, for all offenses except treason and cases of impeachment, upon such conditions and with such restrictions and limitations as may be provided by law.
56. See Chacon v. United States, 48 F.3d 508, 510 (Fed. Cir. 1995). See also Chacon v. United States, 32 Fed. Cl. 684, 686 (1995).
57. See Chacon v. United States, 48 F.3d 508, 510 (Fed. Cir. 1995). See also Chacon v. United States, 32 Fed. Cl. 684, 686 (1995).
58. See Posthumous Pardons are Urged for 5, Ariz. Daily Star, Oct. 3, 1990, at B2, attached as Exhibit 28.
59. Abraham Kwok, Mofford Expected to Pardon 5 Cons Killed Fighting Forest Fire, Ariz. Republic, Oct. 3, 1990, at B3. See generally E. J. Montini, Inmate Hurt Fighting Fire Merits Pardon, Ariz. Republic, July 4, 1990, at B1; Art Thomason, Firefighting Victims' Lives Recounted; Memorial Funds are Set Up as Families Mourn, Ariz. Republic, June 29, 1990, at C2, attached as Exhibits 29, 30, and 31.
60. Abraham Kwok, Mofford Expected to Pardon 5 Cons Killed Fighting Forest Fire, Ariz. Republic, Oct. 3, 1990, at B3. See generally E. J. Montini, Inmate Hurt Fighting Fire Merits Pardon, Ariz. Republic, July 4, 1990, at B1; Art Thomason, Firefighting Victims' Lives Recounted; Memorial Funds are Set Up as Families Mourn, Ariz. Republic, June 29, 1990, at C2, attached as Exhibits 29, 30, and 31.
61. Abraham Kwok, Mofford Expected to Pardon 5 Cons Killed Fighting Forest Fire, Ariz. Republic, Oct. 3, 1990, at B3. See generally E. J. Montini, Inmate Hurt Fighting Fire Merits Pardon, Ariz. Republic, July 4, 1990, at B1; Art Thomason, Firefighting Victims' Lives Recounted; Memorial Funds are Set Up as Families Mourn, Ariz. Republic, June 29, 1990, at C2, attached as Exhibits 29, 30, and 31.
62. Attached as Exhibit 32.
63. Excerpts of the government briefs are attached as Exhibit 33.
64. Attached at Exhibit 34.
65. See Mass. Const. pt. 2, ch. 2, § 1, art. 8, which states: The power of pardoning offences, except such as persons may be convicted of before the senate by an impeachment of the house, shall be in the governor, by and with the advice of council, provided, that if the offence is a felony the general court shall have power to prescribe the terms and conditions upon which a pardon may be granted; but no charter of pardon, granted by the governor, with advice of the council before conviction, shall avail the party pleading the same, notwithstanding any general or particular expressions contained therein, descriptive of the offence or offences intended to be pardoned.
66. See id. § 3, art. 1 (amended 1855), which states: There shall be a council for advising the governor in the executive part of government, to consist of [eight] persons besides the lieutenant governor, whom the governor, for the time being, shall have full power and authority, from time to time, at his discretion, to assemble and call together. And the governor, with the said councillors, or five of them at least, shall and may, from time to time, hold and keep a council, for the ordering and directing the affairs of the commonwealth, according to the laws of the land.
67. See Ladetto v. Commissioner of Correction, 369 N.E.2d 967, 967 (1977) citing In re Opinion of the Justices, 98 N.B. 101, 102 (1912) ("The granting of a full or a partial pardon is the result of concurrent action by both the Governor and the Council. Neither alone can take effective action. Both must agree before the Constitution is satisfied.").
68. See Ladetto v. Commissioner of Correction, 369 N.E.2d 967, 967 (1977) citing In re Opinion of the Justices, 98 N.B. 101, 102 (1912) ("The granting of a full or a partial pardon is the result of concurrent action by both the Governor and the Council. Neither alone can take effective action. Both must agree before the Constitution is satisfied.").
69. See Commonwealth v. Sacco, 151 N.E. 839 (Mass. 1926); Sacco-Vanzetti Case (visited June 10, 1998) 〈http://encarta.msn.com/index/concise/0vol08/00eef000.asp〉, attached as Exhibit 35.
70. See Commonwealth v. Sacco, 151 N.E. 839 (Mass. 1926); Sacco-Vanzetti Case (visited June 10, 1998) 〈http://encarta.msn.com/index/concise/0vol08/00eef000.asp〉, attached as Exhibit 35.
71. See Charles L. Lindner, British Nanny Trial Not the First to Defy Expectations, L.A. Times, Nov. 16, 1997, at M3, attached as Exhibit 36.
72. Watt Espy, Leo Frank's Due-Process Pardon Raises Concern for Others' Rights, Atlanta J. & Const., Mar. 29, 1986, at A11. See generally Lynn Van Matre, Recordings, Chicago Trib., May 9, 1996, at 6, attached as Exhibits 37 and 38.
73. Watt Espy, Leo Frank's Due-Process Pardon Raises Concern for Others' Rights, Atlanta J. & Const., Mar. 29, 1986, at A11. See generally Lynn Van Matre, Recordings, Chicago Trib., May 9, 1996, at 6, attached as Exhibits 37 and 38.
74. See Pa. Const. art. IV, § 9, which states: (a) In all criminal cases except impeachment the Governor shall have power to remit fines and forfeitures, to grant reprieves, commutation of sentences and pardons; but no pardon shall be granted, nor sentence commuted, except on the recommendation in writing of a majority of the Board of Pardons, and in the case of a sentence of death or life imprisonment, on the unanimous recommendation in writing of the Board of Pardons, after full hearing in open session, upon due public notice. The recommendation, with the reasons therefor at length, shall be delivered to the Governor and a copy thereof shall be kept on file in the office of the Lieutenant Governor in a docket kept for that purpose. (b) The Board of Pardons shall consist of the Lieutenant Governor who shall be chairman, the Attorney General and three members appointed by the Governor with the consent of a majority of the members elected to the Senate for terms of six years. The three members appointed by the Governor shall be residents of Pennsylvania. One shall be a crime victim; one a corrections expert; and the third a doctor of medicine, psychiatrist or psychologist. The board shall keep records of its actions, which shall at all times be open for public inspection.
75. See 1984-88 Pa. Op. Att'y Gen. No. 18 (April 21, 1987), attached as Exhibit 39.
76. See Mary Klaus, 'Molly' Leader Said Doomed for Aiding Fellow Miners, Harrisburg Patriot & Evening News, Feb. 19, 1987, at B2, attached as Exhibit 40.
77. Id.
78. See In re Application of Kehoe, John (PB 6988-M), Pa. Bd. of Pardons, no. B-1370 (Dec. 1978) (recommending posthumous pardon for Kehoe), attached as Exhibit 41.
79. See Okla. Const. art. VI, § 10, which states: There is hereby created a Pardon and Parole Board to be composed of five members; three to be appointed by the Governor, one by the Chief Justice of the Supreme Court; one by the Presiding Judge of the Criminal Court of Appeals or its successor. An attorney member of the Board shall be prohibited from representing in the courts of this state persons charged with felony offenses. The appointed members shall hold their offices coterminous with that of the Governor and shall be removable for cause only in the manner provided by law for elective officers not liable to impeachment. It shall be the duty of the Board to make an impartial investigation and study of applicants for commutations, pardons or paroles, and by a majority vote make its recommendations to the Governor of all deemed worthy of clemency. Provided, the Pardon and Parole Board shall have no authority to make recommendations regarding parole for convicts sentenced to death or sentenced to life imprisonment without parole. The Governor shall have the power to grant, after conviction and after favorable recommendation by a majority vote of the said Board, commutations, pardons and paroles for all offenses, except cases of impeachment, upon such conditions and with such restrictions and limitations as he may deem proper, subject to such regulations as may be prescribed by law. Provided, the Governor shall not have the power to grant paroles if a convict has been sentenced to death or sentenced to life imprisonment without parole. The Legislature shall have the authority to prescribe a minimum mandatory period of confinement which must be served by a person prior to being eligible to be considered for parole. The Governor shall have power to grant after conviction, reprieves, or leaves of absence not to exceed sixty (60) days, without the action of said Board. He shall communicate to the Legislature, at each regular session, each case of reprieve, commutation, parole or pardon, granted, stating the name of the convict, the crime of which he was convicted, the date and place of conviction, and the date of commutation, pardon, parole and reprieve.
80. Id.
81. According to telephone interviews with officials at the Pardon and Parole Board and the governor's legal counsel office, there is no evidence that Governor Keating utilized the official pardoning process of recommendation by the Board to grant the pardon.
82. See Oklahoma Officials Clear Black Man in 1921 Riot and Apologize to Family (Tulsa, Oklahoma Atrocity; J. B. Stradford Who Died in 1935 at Age 75 is Vindicated), Jet, Nov. 18, 1996, at 8, attached as Exhibit 42.
83. See Neb. Const. art. IV, § 13, which states: The Legislature shall provide by law for the establishment of a Board of Parole and the qualifications of its members. Said board, or a majority thereof, shall have power to grant paroles after conviction and judgment, under such conditions as may be prescribed by law, for any offenses committed against the criminal laws of this state except treason and cases of impeachment. The Governor, Attorney General and Secretary of State, sitting as a board, shall have power to remit fines and forfeitures and to grant respites, reprieves, pardons, or commutations in all cases of conviction for offenses against the laws of the state, except treason and cases of impeachment. The Board of Parole may advise the Governor, Attorney General and Secretary of State on the merits of any application for remission, respite, reprieve, pardon or commutation but such advice shall not be binding on them. The Governor shall have power to suspend the execution of the sentence imposed for treason until the case can be reported to the Legislature at its next session, when the Legislature shall either grant a pardon, or commute the sentence or direct the execution, or grant a further reprieve.
84. See generally Marion v. State, 29 N.W. 911 (Neb. 1886).
85. See Leslie Boellstorff, Posthumous Pardon Given to William Marion (visited June 10, 1998) 〈http://nadp.inetaebr.com/marion.html〉; Gabriella Stern, Board to Rule Today: Grandson Seeks Pardon for Man Hanged in 1887, Omaha World-Herald, Dec. 12, 1986, attached as Exhibits 43 and 44.
86. See Leslie Boellstorff, Posthumous Pardon Given to William Marion (visited June 10, 1998) 〈http://nadp.inetaebr.com/marion.html〉; Gabriella Stern, Board to Rule Today: Grandson Seeks Pardon for Man Hanged in 1887, Omaha World-Herald, Dec. 12, 1986, attached as Exhibits 43 and 44.
87. Pardon Proclamation: In the Matter of a Posthumous Pardon to William Jackson Marion, Neb. Bd. of Pardons (Dec. 12, 1986), attached as Exhibit 45.
88. See, e.g., Ex parte Melosevich, 133 P. 57, 59 (1913) ("the powers of the board of pardons, composed of the Governor, the Justices of the Supreme Court, and the Attorney General, are derived from the Constitution (Const. art. 5, § 14; Rev. Laws, § 307). . . ."); State v. Echeverria, 248 P.2d 414, 416 (1952) citing State v. Butner, 220 P.2d 631, 634 (1950) ("The power to commute the sentence from death to life imprisonment is vested exclusively in the Board of Pardons and Parole commissioners by the provisions of § 14 of Article V of the state constitution.").
89. See, e.g., Ex parte Melosevich, 133 P. 57, 59 (1913) ("the powers of the board of pardons, composed of the Governor, the Justices of the Supreme Court, and the Attorney General, are derived from the Constitution (Const. art. 5, § 14; Rev. Laws, § 307). . . ."); State v. Echeverria, 248 P.2d 414, 416 (1952) citing State v. Butner, 220 P.2d 631, 634 (1950) ("The power to commute the sentence from death to life imprisonment is vested exclusively in the Board of Pardons and Parole commissioners by the provisions of § 14 of Article V of the state constitution.").
90. See, e.g., Ex parte Melosevich, 133 P. 57, 59 (1913) ("the powers of the board of pardons, composed of the Governor, the Justices of the Supreme Court, and the Attorney General, are derived from the Constitution (Const. art. 5, § 14; Rev. Laws, § 307). . . ."); State v. Echeverria, 248 P.2d 414, 416 (1952) citing State v. Butner, 220 P.2d 631, 634 (1950) ("The power to commute the sentence from death to life imprisonment is vested exclusively in the Board of Pardons and Parole commissioners by the provisions of § 14 of Article V of the state constitution.").
91. See Nev. Const. art. V, § 14, which states: 1. The governor, justices of the supreme court, and attorney general, or a major part of them, of whom the governor shall be one, may, upon such conditions and with such limitations and restrictions as they may think proper, remit fines and forfeitures, commute punishments, except as provided in subsection 2, and grant pardons, after convictions, in all cases, except treason and impeachments, subject to such regulations as may be provided by law relative to the manner of applying for pardons. 2. Except as may be provided by law, a sentence of death or a sentence of life imprisonment without possibility of parole may not be commuted to a sentence which would allow parole. 3. The legislature is authorized to pass laws conferring upon the district courts authority to suspend the execution of sentences, fix the conditions for, and to grant probation, and within the minimum and maximum periods authorized by law, fix the sentence to be served by the person convicted of crime in said courts.
92. See Jack Viets, Nevada May Finally Undo Old Miscarriage of Justice, San Francisco Chron., May 11, 1987, attached as Exhibit 46.
93. See Pardons in 1907 Slaying, Newsday, May 13, 1987, at 15; 2 Unionists Cleared of 1907 Crime, Chicago Trib., May 14, 1987, at 9, citing Sally Zanjani and Guy Rocha, The Ignoble Conspiracy: Radicalism on Trial in Nevada, attached as Exhibits 47 and 48.
94. See Pardons in 1907 Slaying, Newsday, May 13, 1987, at 15; 2 Unionists Cleared of 1907 Crime, Chicago Trib., May 14, 1987, at 9, citing Sally Zanjani and Guy Rocha, The Ignoble Conspiracy: Radicalism on Trial in Nevada, attached as Exhibits 47 and 48.
95. See Pardons in 1907 Slaying, Newsday, May 13, 1987, at 15; 2 Unionists Cleared of 1907 Crime, Chicago Trib., May 14, 1987, at 9, citing Sally Zanjani and Guy Rocha, The Ignoble Conspiracy: Radicalism on Trial in Nevada, attached as Exhibits 47 and 48.
96. See Ed Vogel, Pardoned: Radical Union Men Absolved of Guilt in Goldfield Murder, Nev. Appeal, May 13, 1987, at A10, attached as Exhibit 49.
97. Hearing on Posthumous Petition of Morrie Preston and Joseph Smith Before the Nevada Board of Pardons, 124-27 (May 12, 1987) (transcript of the hearing), attached as Exhibit 50.
98. See id., 124, 157-58. See generally State v. Preston, 95 P. 918 (Nev. 1908), reh'g denied, 97 P. 388 (Nev. 1908).
99. See id., 124, 157-58. See generally State v. Preston, 95 P. 918 (Nev. 1908), reh'g denied, 97 P. 388 (Nev. 1908).
100. See Ga. Const. art. IV, § 2, para. 2(a), which states: Except as otherwise provided in this Paragraph, the State Board of Pardons and Paroles shall be vested with the power of executive clemency, including the powers to grant reprieves, pardons, and paroles; to commute penalties; to remove disabilities imposed by law, and to remit any part of a sentence for any offense against the state after conviction.
101. See id. para. 2(b), 2(c), which states: (b) (1) Wien a sentence of death is commuted to life imprisonment, the board shall not have the authority to grant a pardon to the convicted person until such person has served at least 25 years in the penitentiary; and such person shall not become eligible for parole at any time prior to serving at least 25 years in the penitentiary. (2) The General Assembly may by general law approved by two-thirds of the members elected to each branch of the General Assembly in a roll-call vote provide for minimum mandatory sentences and for sentences which are required to be served in their entirely for persons convicted of armed robbery, kidnapping, rape, aggravated child molestation, aggravated sodomy, or aggravated sexual battery and, when so provided by such Act, the board shall not have the authority to consider such persons for pardon, parole, or commutation during that portion of the sentence. (3) The General Assembly may by general law approved by two-thirds of the members elected to each branch of the General Assembly in a roll-call vote provide for the imposition of sentences of life without parole for persons convicted of murder and for persons who having been previously convicted of murder, armed robbery, kidnapping, rape, aggravated child molestation, aggravated sodomy, or aggravated sexual battery or having been previously convicted under the laws of any other state or of the United States of a crime which if committed in this state would be one of those offenses and who after such previous conviction subsequently commits and is convicted of one of those offenses and, when so provided by such Act, the board shall not have the authority to consider such persons for pardon, parole, or commutation from any portion of such sentence. (4) Any general law previously enacted by the General Assembly providing for life without parole or for mandatory service of sentences without suspension, probation, or parole is hereby ratified and approved but such provisions shall be subject to amendment or repeal by general law. (c) Notwithstanding the provisions of subparagraph (b) of this Paragraph, the General Assembly, by law, may prohibit the board from granting and may prescribe the terms and conditions for the board's granting a pardon or parole to: (1) Any person incarcerated for a second or subsequent time for any offense for which such person could have been sentenced to life imprisonment; and (2) Any person who has received consecutive life sentences as the result of offenses occurring during the same series of acts.
102. Telephone interview with Walt Davis, Assistant Director of Clemency at the Georgia Board of Pardons and Paroles (June 15, 1998).
103. See Pardon of Leo Frank, Ga. Bd. of Pardons and Paroles (1986), attached as Exhibit 51.
104. See Worcester v. Georgia, 31 U.S. 515 (1832).
105. See David Corvette, After 161 Years, Two Who Opposed Cherokee Eviction are Pardoned, Atlanta J. & Const., Nov. 25, 1992, at B4; Tom Watson, 160 Years Later, Georgia Apologizes: For Cherokee, Pardon Helps Heal, USA Today, Nov. 25, 1992, at A2, attached as Exhibits 52 and 53.
106. See David Corvette, After 161 Years, Two Who Opposed Cherokee Eviction are Pardoned, Atlanta J. & Const., Nov. 25, 1992, at B4; Tom Watson, 160 Years Later, Georgia Apologizes: For Cherokee, Pardon Helps Heal, USA Today, Nov. 25, 1992, at A2, attached as Exhibits 52 and 53.
107. Attached as Exhibit 54.
108. Halsbury's, 4th ed. Reissue 1996, Vol. 8(2), ¶ 830, at 486; Criminal Appeal Act of 1995, Pt. II, §§ 8-25.
109. See Letter from Walton Davis, Assistant Director of Clemency, Georgia State Board of Pardons and Paroles (July 6, 1998), attached as Exhibit 55.
110. See Letter from Erin Mahoney, Special Hearings Coordinator, Arizona Board of Executive Clemency (July 16, 1998), attached as Exhibit 56.
111. Telephone interviews with Patricia Cushwa, Parole Commission in Maryland (June 10, 1998) and Jennifer Glass, Assistant to the Secretary of the Pennsylvania Board of Pardons (June 15, 1998).
112. See Letter from Susan J. McCurdy, Executive Secretary, Nevada Board of Pardons (July 10, 1998), attached as Exhibit 57.
113. Telephone interview with Susan J. McCurdy (June 15, 1998). See also Hearing on Posthumous Petition of Morrie Preston and Joseph Smith Before the Nevada Board of Pardons at 139-41, attached as Exhibit 50 (discussing Board members' concern with the possibility of "opening the floodgates," and mentioning that "there was no increase in demands for posthumous pardons" in Georgia subsequent to the Leo Frank pardon).
114. See Letter from Lisa M. Perry, Administrative Assistant, Nebraska Board of Pardons (July 6, 1998), attached as Exhibit 58.
115. See The Negro Frontiersman, Pardon Petition Appendix at Tab A at 21.
116. See Brief of the United States in Opposition to Motion to File Additional Evidence in Faxon v. United States, No. 119, Oct. Term 1897 at 9; Pardon Petition Appendix Tab B1 at 9.
117. Id. at 7-9.
118. See Annual Report of the Attorney General, 1904, at 99; Pardon Petition Appendix Tab B2 at 99.