The "trial of the century" that never was: Staff Sgt. Macario Garcia, the congressional medal of honor, and the Oasis Café

Indiana Law Journal

Volumn 83, Issue 4, 2008, Pages 1391-1403

  Olivas, Michael A ^a  

^a UNIVERSITY OF HOUSTON   (United States)

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EID: 56049116966     PISSN: 00196665     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (43)

1. See generally ARNOLDO DE LEÓN, THEY CALLED THEM GREASERS: ANGLO ATTITUDES TOWARD MEXICANS IN TEXAS, 1821-1900 at 103-106 (1983) (providing many illustrative historical examples); DAVID MONTEJANO, ANGLOS AND MEXICANS IN THE MAKING OF TEXAS, 1836-1986 (1987); Neil Foley, Straddling the Color Line: The Legal Construction of Hispanic Identity in Texas, in NOT JUST BLACK AND WHITE: HISTORICAL AND CONTEMPORARY PERSPECTIVES ON IMMIGRATION, RACE, AND ETHNICITY IN THE UNITED STATES 341, 341-54 (Nancy Foner & George M. Fredrickson eds., Russell Sage Foundation 2004); Ariela J. Gross, "The Caucasian Cloak": Mexican Americans and the Politics of Whiteness in the Twentieth-Century Southwest, 95 GEO. L.J. 337 (2007).
2. Hernandez v. Texas, 347 U.S. 475, 482 (1954).
3. 347 U.S. 483 (1954).
4. I have taken the complicated fact pattern from the various newspaper accounts, which clearly reveal an establishment bias. These articles get some facts wrong, such as the spelling of Macario Garcia's name. I also discussed this case with Judge James deAnda, who figured prominently in Texas civil rights cases after 1950, who was John Herrera's law partner in the early 1950's, and who stayed in regular touch with Herrera over the years. A number of documents about the case are also available in the Houston Public Library's Metropolitan Research Center archives, especially in the John Herrera Collection. See Houston Metropolitan Research Center, John J. Herrera Papers, http://www.lib.utexas.edu/taro/houpub/00009/hpub00009.html.
5. Sanchez v. State, 243 S.W. 2d 700, 701 (Tex. Crim. App. 1951). See generally Michael A. Olivas, Hernandez v. Texas. A Litigation History, in "COLORED MEN" AND "HOMBRES AQUI": HERNANDEZ V. TEXAS AND THE EMERGENCE OF MEXICAN-AMERICAN LAWYERING 209 (Michael A. Olivas ed., 2006) (providing many of the documents and background of the Hernandez case).
6. See generally HAROLD M. HYMAN, OLEANDER ODYSSEY: THE KEMPNERS OF GALVESTON, TEXAS, 1854-1980s (1990).
7. Martha Gregory, L.U.L.A.C. Pays Homage to Sugarland War Hero, HOUSTON POST, September 7, 1945, at II-1.
8. Westminster Sch. Dist. v. Mendez, 161 F.2d 774 (9th Cir. 1947); Delgado v. Bastrop I.S.D., No. 388 (W.D. Tex. June 15,1948) (unpublished, school desegregation). See generally Gross, supra note 1, at 373-384 (providing a summary of school and jury cases taking place in the 1940s, including Delgado and Mendez, that led up to Hernandez). Carlos Cadena and Gus Garcia tried Delgado, and when the school district lost, there was pressure by Texas officials not to appeal because losing in the Fifth Circuit would have had implications for school districts throughout the segregated South; the Fifth Circuit then encompassed virtually the entire South. Interview with James deAnda (Aug. 11, 2006).
9. TEXAS COASTER, Sept. 27, 1945, at 1.
10. Walter Wincheir's role in this case was pivotal, and I believe that John Herrera arranged to send a copy of the Coaster article and the Post story to Winchell in New York City. Judge deAnda suggested "Johnny got word to Winchell," in a conversation with me. Interview with James deAnda (Aug. 11, 2006). Tellingly, Winchell misspelled "Macario" in the same way as the Coaster had misspelled it. Walter Winchell, Walter Winchell Papers, *T-Mss 1991-019, (unpublished manuscript, on file with the Billy Rose Theatre Collection, The New York Public Library for the Performing Arts). Walter Winchell-"The Jergens Journal". Series II-Scripts and Writing. Sub-Series-Radio Scripts. September 23,1945 (Sunday) Broadcast Pages 4-5. Winchell mistakenly writes Garcia's given name "Marcio" instead of the correct "Macario." I am grateful to my UH colleague Professor Marie-Theresa Hernandez, who is completing a book on the cultural history of Fort Bend County, for relaying the Winchell information to me. MARIE THERESA HERNANDEZ, CEMETERIES OF AMBIVALENT DESIRE: UNEARTHING DEEP SOUTH NARRATIVES FROM A TEXAS GRAVEYARD (2008) (study of San Isidro Cemetery, burial place for Latino workers near Imperial Sugar Company, Sugar Land, Texas).
11. It is interesting that Winchell played a positive role in this racial incident, as he played the key role in politicizing another WWII racial matter: that of urging punishment for Iva Toguri D' Aquino. See Adam Bernstein, 'Toyko Rose' Dies at 90, WASH. POST, Sept. 27, 2006; see also Richard Goldstein, Iva Toguri D' Aquino, Known as Tokyo Rose and Later Convicted of Treason, Dies at 90, N. Y. TIMES, Sept. 28, 2006, at B7. Toguri was labeled "Tokyo Rose" after being caught in Japan on family business after the US-Japanese War broke out, when she was "forced by circumstance" to read anti-U.S. propaganda over the airwaves. Bernstein, supra. When she died in 2006, the whole issue was replayed in her obituaries, including Winchell's role in leading the media charge against her when she was allowed to return to the United States. See id.; Goldstein, supra. Winchell had a long and complicated career as a newspaper and radio journalist, and his record on civil rights and racial issues was mixed. In some respects, he held progressive views towards African Americans. See NEAL GABLER, WINCHELL: GOSSIP, POWER AND THE CULTURE OF CELEBRITY 405-420 (Knopf 1994) (discussing Winchell's relationship with NAACP and Josephine Baker). In one of the few such matters involving Mexican Americans, he championed Garcia, although his criticism of Richmond, Texas was as likely a patriotic impulse in support of the disrespected and decorated serviceman. His baiting of Iva Toguri D'Aquino as "Tokyo Rose" was a combination of jingoism and racism. See id. at 352.
12. One of the ironic features of my research was that I was drawn to the Macario Garcia incident due to a small and cryptic reference in an online historical resource that indicated, "After a trial in which he was defended by Gustave (Gus) Garcia and John J. Herrera, [Macario] Garcia was acquitted." Maria-Cristina Garcia, Macario Garcia, The Handbook of Texas Online, http://www.tsha.utexas.edu/handbook/online/articles/GG/fga76.html. Intrigued by this reference to Gus Garcia and Herrera's collaboration, which would have foreshadowed their Hernandez v. Texas litigation years later, I tried to find the evidence. It turns out that there is no reference of Gus Garcia having ever been Macario Garcia's lawyer, and there was no trial, hence no acquittal. The other material provided by Maria-Cristina Garcia (now a well-respected Cornell historian) in this online resource (written in the mid-1980's) is accurate and useful, but these two references appear to be inaccurate.
13. See ALONSO S. PERALES, ARE WE GOOD NEIGHBORS? 139-227 (Arno Press 1974) (1948). Other excellent historical work has uncovered many such examples of the era's substantive and petty harassments of Mexican Americans, especially in Texas. See Gross, supra note I, at 360-70; Ian F. Haney Lopez, Race, Ethnicity, Erasure: The Salience of Race to LatCrit Theory, 85 CAL. L. REV. 1143, 1174-76 (1997).
14. Marie Theresa Hernandez, Reconditioning History: Adapting Knowledge from the Past into Realities of the Present: A Mexican-American Graveyard, in RETHINKING HISTORY 289, 293 (1999) (providing a history of San Isidro Cemetery, Richmond, Texas, by the daughter of the man [Jose F. Hernandez] who served as the translator in the Aniceto Sanchez trial).
15. TEXAS COASTER, Feb. 17, 1946, at xx.
16. See CHARLES L. ZELDEN, JUSTICE LIES IN THE DISTRICT: THE U.S. DISTRICT COURT, SOUTHERN DISTRICT OF TEXAS, 1902-1960, at 177 (1993).
17. Steven H. Wilson, Brown over "Other White": Mexican Americans'Legal Arguments and Litigation Strategy in School Desegregation Lawsuits, 21 LAW&HIST. REV. 145, 166 n.65 (2003). See generally ZELDEN, supra note 16.
18. In my possession, I have an affidavit from Fort Bend County law officers that no case involving Garcia was ever reported in Fort Bend County-the jurisdiction where Macario Garcia was a party-from 1945 until his death in 1972. Letter from Gloria Hopkins, Fort Bend County District Court, to whom it may concern, (Feb. 21,2006) (on file with author), available at http://www.law.uh.edu/hernandez50/homepage.html.
19. See Olivas, supra note 5, at 221.
20. See Id.
21. 243 S.W. 2d 700 (Tex. Crim. App. 1951).
22. See Olivas, supra note 5, at 212-213
23. See Id. at 213.
24. See Hernandez v. Texas, 347 U.S. 475, 482 (1954).
25. Id. at 475.See ROBERT J. COTTROL, RAYMOND T. DIAMOND & LELAND B. WARE, BROWN v. BOARD OF EDUCATION: CASTE, CULTURE, AND THE CONSTITUTION (University Press of Kansas 2003) (providing a very useful summary of the cases leading to Brown).
26. See generally CARL ALLSUP, THE AMERICAN G.I. FORUM, ORIGINS AND EVOLUTION (1982); HENRY A.J. RAMOS, THE AMERICAN GI FORUM, IN PURSUIT OF THE DREAM, 1948-1983 (1998).
27. A growing literature details the extensive litigation efforts by Mexican Americans in the twentieth century. See generally ARIELA J. GROSS, WHAT BLOOD WON'T TELL: RACIAL IDENTTTY ON TRIAL IN AMERICA (2008); GUADALUPE SAN MIGUEL, JR., "LET THEM ALL TAKE HEED": MEXICAN AMERICANS AND THE CAMPAIGN FOR EDUCATIONAL EQUALITY IN TEXAS, 1910-1981(1987); Gross, supra note 1; George A. Martinez, Legal Indeterminacy, Judicial Discretion and the Mexican-American Litigation Experience: 1930-1980, 27 U.C. DAVIS L. REV. 555 (1994); Lupe S. Salinas, Gus Garcia and Thurgood Marshall: Two Legal Giants Fighting for Justice, 28 T. MARSHALL L. REV. 145 (2003). For an exceptional work that analyzes these issues for the period of time even before the Treaty of Guadalupe Hidalgo in 1848, see LAURA E. GÓMEZ, MANIFEST DESTINIES: THE MAKING OF THE MEXICAN AMERICAN RACE (2007).
28. Hernandez v. Driscoll Consol. Indep. Sch. Dist., 2 Race Rel. L. Rep. 34 (S.D. Tex. 1957); Cisneros v. Corpus Christi Indep. Sch. Dist., 324 F. Supp. 599, 608-15 (S.D. Tex. 1970) (finding that Mexican children constitute an "identifiable, ethnic minority").
29. Wilson, supra note 17, at 194; Olivas, supra note 5, at 219 n.60.
30. On May 4, 1953, the U.S. Supreme Court would strike down the Fort Bend County practice of using a segregated surrogate party, the Jaybird Party, to thwart African American voting in the Democratic Party. Terry v. Adams, 345 U.S. 461, 470 (1953).
31. This is not to say that Mexican American lawyers who brought these various cases were not members of Latino organizations, for a number of them were members. And in some instances, particularly those having to do with school desegregation, lawyers worked closely with LULAC; as one example, Manuel C. Gonzales was actively involving LULAC members, Mexican American academics (such as George I. Sanchez at the University of Texas), and other Latino organizations. SAN MIGUEL, JR, supra note 27, at 74-86; Gross, supra note 1, at 356-370.
32. Hernandez v. Texas, 347 U.S. 475, 479-480 (1953).
33. Id. (noting bathroom signage).
34. See generally Lisa Lizette Barrera, Minorities and The University of Texas Law School (1950-1980), 4 TEX. HISP. J.L. & POL'Y 99 (1998).
35. See generally CLETE DANIEL, CHICANO WORKERS AND THE POLITICS OF FAIRNESS: THE FEPC IN THE SOUTHWEST, 1941-1945 (1991); ERNESTO GALARZA, MERCHANTS OF LABOR: THE MEXICAN BRACERO STORY (1964); MARK REISLER, BY THE SWEAT OF THEIR BROW: MEXICAN IMMIGRANT LABOR IN THE UNITED STATES, 1900-1940 (1976).
36. EDNA FERBER, GIANT (1952).
37. See, e.g., DON GRAHAM, COWBOYS AND CADILLACS: HOW HOLLYWOOD LOOKS AT TEXAS 59-64 (1983); Karen Lynn Vincent Weber, Twentieth-Century Texas Culture in Literature and Film at Ch. II (Dec. 1998) (unpublished master's thesis, University of Houston-Clear Lake) (available at library Houston Library clearlake); Jonathan Yardley, Ferber's 'Giant,' Cut Down to Size, WASH. POST, May 8,2006, at C1 (providing a more recent reappraisal of the book and movie). While conducting research for this project, I discovered a link between Dr. Garcia and another, similar incident, in an online Garcia oral history: In the hands of Pulitzer-prize winning author Edna Ferber, Dr. Garcia and the American GI Forum served as raw material for both the 1952 book GIANT and the 1956 movie "GIANT" starring Rock Hudson, Elizabeth Taylor, James Dean, and Dennis Hopper. Two Dr. Garcia inspired-incidents appeared in the book GIANT: the Felix Longoria case and an incident when Dr. Garcia's wife and daughter were refused service in a small Texas cafe because they were accompanied by Mexican American friends. Biography, Justice for My People: Dr. Hector P. Garcia, http://www.justiceformypeople.org/ drhector.html. Dr. Garcia's wife was Italian, and he met her in his own WWII military service in Europe. See id. After writing this piece, I was told of the movie's effect upon Tino Villanueva, who wrote Scene from the Movie GIANT, a 1993 Curbstone Press book of poems about the movie and his first seeing it when he was a child in Texas.
38. Lewis W. Gillenson, Texas' Forgotten People, A Million and a Half Mexican-Americans Live on Little More Than Hope, LOOK, March 27, 1951, at 29.
39. JULIE GILBERT FERBER, EDNA FERBER AND HER CIRCLE, A BIOGRAPHY 176 (1999).
40. GRAHAM, supra note 29, at 59-60. Graham also notes that the major threads of the novel and movie are the "serious Texas deficiencies": "Everything coalesces around the status of Mexicans in south Texas, which can be summed up in a word: medieval. [The wife of the chief figure in the novel] treats the Mexicans as people, and the Texans treat them as serfs." Id. at 86. See also RAMOS, supra note 19, at 24-25 (describing Ferber's trip to South Texas with Dr. Garcia).
41. James deAnda recalled his interactions with Garcia, for an oral history project. See Selected Interview Segments: Judge James deAnda, The Dr. Hector P. Garcia Story, http://www.justiceformypeople.org/interview_deAnda.html.
42. While it is hard to gauge how influential these incidents were, I have been surprised at how many older Mexican Americans have known of the Felix Longoria and Macario Garcia matters. As a small example, the wonderful interview data from the U.S. Latino & Latina WWII Oral History Project at the University of Texas, Austin, have provided some insight. See generally UNIVERSITY OF TEXAS LIBRARIES, U.S. LATINO AND LATINA WORLD WAR II ORAL HISTORY PROJECT, http://www.lib.utexas.edu/ww21atinos/index. html. When queried about why he went into LULAC and AGIF politics in Houston, veteran Leon Aguia responded in a 2002 interview that he had experienced discrimination after WWII in Lockhart, Texas (where a drugstore refused him service, even while he was in uniform) [Tape 1, at 1:15:23] and he had heard of the Richmond incident [Tape 1, at 22:35]. This Article draws from the WWII Oral History Project, and a revised version will appear in WWII LATINO/A CULTURAL CITIZENSHIP (Maggie Rivas-Rodriguez & Emilio Zamora eds., forthcoming, 2008). A recent study shows how far back the challenges to the existing political and social order by veteranos went, especially in New Mexico. See, e.g., Phillip Gonzales & Ann Massman, Loyalty Questioned: Nuevomexicanos in the Great War, 75 PACIPIC HIST. REV. 629 (2006) (construction of Hispanic identity by NM Mexican origin veterans from WW I).
43. Samuel P. Huntington, The Hispanic Challenge, FOREIGN POL'Y, Mar.-Apr. 2004, at 30, 44, available at http://www.foreignpolicy.com/story/cms.php7story_id=2495&page=7.