A miscarriage of justice?

Was Tom Dooley's trial, conviction and execution a miscarriage of justice? I'll take a closer look at this question in this article. First, it is necessary to define what a miscarriage of justice really is. The Danish version of Wikipedia citing Danish Law, defines miscarriage of justice (or "justitsmord" in Danish - a direct translation would be "justice murder") as the phenomenon that a person is convicted for a crime he did not commit." Originally, it was only called a Justitsmord in connection with an enforced death penalty, but that meaning has changed after the abolition of death penalty in Denmark and other countries so other penalties imposed improperly, are also called "justitsmord" or miscarriages of justice. In the Danish terminology it can only be a miscarriage of justice in the accused person is innocent. Swedish and Norwegian laws have roughly similar definitions. American law does not use a term like "justice murder) but call it "miscarriage of justice", when a person is convicted of a crime that he did not commit. However the US definition includes other situations as well.

What could be reasons for a trial to end with a miscarriage of justice? Here the English Wikipedia lists a number of factors that can lead to a trial resulting in a miscarriage of justice. The reasons which are discussed are

  1. Plea bargains that offer incentives for the innocent to plead guilty
  2. Confirmation bias on the part of investigators
  3. Withholding or destruction of evidence by police or prosecution
  4. Fabrication of evidence or outright perjury by police (see testilying), or prosecution witnesses (e.g. Charles Randal Smith)
  5. Biased editing of evidence
  6. Prejudice towards the class of people to which the defendant belongs
  7. Misidentification of the perpetrator by witnesses and/or victims
  8. Overestimation/underestimation of the evidential value of expert testimony
  9. Contaminated evidence
  10. Faulty forensic tests
  11. False confessions due to police pressure or psychological weakness
  12. Misdirection of a jury by a judge during trial
  13. Perjured evidence by the real guilty party or their accomplices (frameup)
  14. Perjured evidence by supposed victim or their accomplices
  15. Conspiracy between court of appeal judges and prosecutors to uphold conviction of innocent

Maybe there are other reasons as well, but these 15 are mentioned by Wiki.  Of the 15 reasons, some may fit the Tom Dooley case, others don't. Those which are not relevant are number one because there was no plea bargain suggested or recived. Plea bargains was not contitutionalzed until 1970, and my guess is, that nobody even thought about such things in 1868.  Basically 3 and 5 can be excluded as there was no physical evidence at all - as far as we know. Reason number 7 can be excluded as neither witnesses nor victims identified Tom or anyone else. There were no expert witnesses and no evidece to be contaminated (like DNA samples, fingerprints or thing like that), so 8 and 9 can be excluded as well. There was only to a very limited extent conducted a forensic investigation, and it showed only that Laura had suffered a single stab wound so also reason 10 can be ruled out, and the same can be said about 14 since there was not a victim who could perjure. But even ruling out all the above reasons, it still leaves some reasons that could easily apply to the Dula case.

The investigators (the sheriff) hardly looked for any other perpetrators than Tom (reason 2), and in fact, only to a very limited extent conducted a proper investigation. Tom was accused, escaped, was arrested and sentenced without attempting to investigate whether there were other options, apart from the possibility of Tom being involved in a conspiracy with Ann, Pauline or both. Nobody was looking for evidence, that could clear Tom of the suspicion. A more thorough and unbiased investigation, might have revealed other possible culprits. I ruled out reason 3 above, but it can not really be ruled out entirely. Maybe a murder weapon was found, that everybody knew belonged to someone else but Tom and therefore was withhold by the sheriff, the procecutor or even the finder. I dont believe that the authorities fabricated false evidence, as there weren't any at all, but I have already mentioned in the article "Did the witnesses tell the truth" , that I certainly find it possible that some of the prosecution's witnesses committed perjury (reason number 4).

That the prosecutor and/or judge and jury were prejudced against the class to which Tom belonged, is quite likely (reason 6). That the journalist from the New York Herald was, is a fact which is evident from his article and it is likely that other members of the "upper class" to which the judges and prosecutors belonged, were prejudiced against the members of the lower class. The jury was probably primarily recruited from the upper class or well to do citizens of Statesville. Tom defense lawyers at least thought that the jury Tom and Ann would face in Wilkes County would be biased against them as this assumption was part the reason he gave for requesting  the case moved to Statesville. Statesville was in fact not that far from Wilkesboro (only a little more than 30 miles), so it's more than likely that the story was also known here. The 12 members of the jury were selected among "100 freeholders," which the sheriff had summoned. A "freeholder" was a farmer who owned his own land and who had the right to sell or rent it etc. So in short, the jurors were all members of the better-off class in the county. Tom was therefore not convicted by "a jury of peers" in the straight meaning of the words; since at least some of the jurors should have been sharecroppers, tenant farmers, hired farm workers and the like. There is thus a good possibility that the jury was biased against Tom, only because he belonged to the lower class.

There was hardly a "false confession", unless Tom's confession was made to save Ann (reason 11). Rather, I believe that there may have been a forged confession involved, by someone who wanted it to look like Tom actually confessed. I don't think that the udges consciously misdirected the jurors during trial (reason 12), but the judges rulings when the defense protested, may have affected the jurors. For instance both jugdes accepted as testimony opinions which were objected by defence as "hear say" and it may have influenced the jury to believe that these statements were "true", even though the words were based only on second or third hand knowledge.

Reason 13, that the truly guilty committed perjury during the proceedings can definately not be excluded. If the truly guilty were James Isbell, at least Tom accused for having done so, and if the truly guilty party was Wilson Foster, he has certainly not told the whole truth about his whereabouts and behavior on the morning when Laura disappeared.

Finally, there are reason 15, perhaps the worst of all reasons, namely that miscarriage of justice was caused by a conspiracy between the judge and the  prosecutor, and in Tom's case, perhaps even members of the defense team also was involved in this conspiracy.

The above assumptions might very well make me sound like Mel Gibson in the movie "Conspiracy Theory", but as Lars Bugge, a Danish author has written: "If you believe in all conspiracy theories you will be fooled a lot times, but if you reject all conspiracy theories, you will also be fooled sooner or later". (Lars Bugge, Flere konspirationsteorier, 2004). I will therefore conclude that it is certainly possible that Toms hanging was the result of a miscarriage of justice by one or more of the above reasons. However, there is more to the case than that, as a person under the American legal system may be exposed to "miscarriage of justice" in other ways besides being innocently convicted. Even a guilty person can be the vicitim of miscarriage of justice.

U.S. law provides for the concept of "wrongful conviction" almost the same as "miscarriage of justice" or "conviction on a false basis." According to this phenomenon, there may be a miscarriage of justice, or at least the case should be rejected by the judge although the accused actually committed the crime. It occurs when the accused has been convicted despite procedural errors or other errors committed by the prosecution or the police*. It will also count as wrongful conviction in cases where the accused has been convicted, although in fact there is not sufficient evidence to convict. In the Tom Dooley case two more things must be taken into consideration - independant of whether he actually murdered Laura Foster or not.

* The most famous case is probably the case Miranda v. Arizona from 1966. Here a man named Ernesto Miranda was arrested for kidnapping and rape of a 18-year-old girl. After two hours of interrogation, he signed a confession in which he declared, that he confessed voluntarily and without threats. Miranda was sentenced to 20-30 years of imprisonment. The case was appealed, first to Arizona Supreme Court who rules accordingly. Later it was appealed to the U.S. Supreme Court. The Supreme Court stated that Miranda should have been warned that he did not have to speak without a lawyer was present. The police had committed an elementary error, and on basis of this, the Supreme Court acquitted Ernesto Miranda. Since this case, all  policeofficers in the U.S. must warn everyone who is arrested on the right to an attorney. This is known in fact as a "Miranda" or a "Miranda warning." Viewers of American crime movies or series will sure be able to recognize "You have the right to remain silent. Anything you say or do can and will be held against you in a court of law. You have the right to speak to an attorney. If you cannot afford an attorney, one will be appointed for you. Do you understand these rights as they have been read to you?"

The picture on the right shows Nathaniel Boyden, assistant to the procecution. The picture is from commons.wikimedia. com

The first is the question of whether there should ever have been made any legal charges against Tom at all. There was no formal extradition after he was arrested in Tennessee. One can argue that it is unreasonable that this matters if he actually committed the murder, but according to the legal system it does today as it did in 1866. When the search team arrested Tom and led him back to Wilkesboro, it was actually a kidnapping carried out by representative of the authorities. After his arrest Tom should have been handed over to the local police authority, that is the sheriff in Johnson County, Tennessee, where he was arrested and proper procedures of extradition should have been started. The guidelines for the extradition of prisoners between two states is defined in Article 4 of the U.S. Constitution, which had existed for 70 years when Tom Dooley was arrested. So its not relevant to argue that the rules did not apply then, since the first legislation on this subject is dating back to 1793.

Paragraph 2 of that article states: "A person charged in any state with treason, felony, or other crime, who shall flee from justice, and be found in another state, shall on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime." Tom would maybe have been extradited anyway, but he could not just be "picked up" at the discretion of the search team. The correct procedure would have been that the governor of North Carolina (probably through his Attorney General) wrote an extradition request to the governor of Tennessee (probably through his Attorney General), and requested that Tom was extradited, providing a justification of the request. Receiving such a request the governor of Tennessee would then have to decide whether to extradite Tom or not. In the case of Tom Dooley several modern lawyers agrees that the request probably would have been rejected. Tom was accused of a murder that no one knew for sure had been committed. No body had been found and there was no evidence what so ever of any foul play. Theoretically Laura could be staying somewhere in Tennessee  and Tom may have been on his way to join her, or she could have eloped with somone else, and Tom had no idea about it, and so on. All in all, no one knew if Laura had been murdered, and therefore the governor should have rejected an extradition request.

Subsequent practice has allowed what happened to Tom, being brought across the state border by a search team without proper extradition procedures and brought to trial. In 1888  a search team from Mahon in Kentucky arrested a fugitive criminal in West Virginia, and brought him back to stand trial. Despite the fact that the accused relied on the illegal arrest to set him free, the U.S. Supreme Court decided that "even though his arrest and transfer to Kentucky was illegal, he could still be prosecuted in Mahon," (Mahon v. Justice, 1888), but in this case the crime was a matter of fact, while it was only a supposed crime in the Dooley case. Therefore the two cases are not comparable.

Another factor which may be considered is that after Tom had been arrested and brought back to Wilkesboro, he was incarcerated for almost three months before the body was found and a crime proven, without his case being heard by a judge at any time, without Tom being offered any bail (which Tom would hardly have been able to pay anyway). Tom was simply waiting for Laura's body be found, and one may wonder how long he would have stayed in prison if the grave had never been discovered? The imprisonment was therefore a definate violation of Toms constitutional rights, and Zebulon Vance ought to have used this fact in his defense.

In stead Vance apparently would use the fact that Tom was a war hero, rather than that he had been illegally detained. Some historians believe that the reconstruction period following the Civil War, was a time when it did not matter that much whether constitutional rights were respected. Times were tough for the Confederates, who were under strict control of the northerne politicians and military, and therefore it was perhaps more important for the state government to show that it did not allow crimes, and had them punished in the "right way", and the means were less significant. North Carolina was part of  the so-called Second Military District, commanded by Daniel E, Sickles, who had been a Major General during the Civil War. Sickles was extremely controversial, being a murderer himself (he was the first ever to be acquitted due to momentarily insanity only seven years before the murder of Laura) and already in 1867 he was removed from office by President Andrew Johnson, who didn't like the way he treated the population in the district. But at this time Sickles were still in office so maybe Governor Worth were "forced" to condone what happened - if he was even aware of it.

Attorney Ted G. West (in "The Ballad of Tom Dooley") gives yet another reason to talk about miscarriages of justice. This reason is that both Judge Buxton and Judge Shipp allowed some testimony from Ann Melton made after Laura's murder as evidence. For these testimonies to be allowed, there must first be established proof of a conspiracy between Ann and Tom to commit murder. The Supreme Court twice refused to take a position on this matter and gave as reason, that the question of whether evidence of a conspiracy was strong enough to allow the statement was merely a matter for the judges in the two cases to decide, not a matter of procedure. Ted West does not contradict this decision from the Supreme Court, but criticize the two judges rulings. According to West the evidence of a conspiracy agreed upon before the fact, were far from strong enough to allow the statements.

The only evidence of a conspiracy that was raised during the proceedings, was that Tom and Ann, who notoriously had been lovers for several years despite Anns marriage, had been seen by witnesses who had observed that they had been talking quietly together, or had talked out of earshot of others. West believes, like myself, that there may be many other good reasons that an unfaithful couple do not want others to hear what they are talking about, and taking such conversations as evidence of a conspiracy to commit murder is pretty far out. The judges should have rejected these opinions. Personally I also see this as an indication of the fact that both judges for some reason wanted Tom Dooley to be convicted of murder. If they were not bribed or otherwise influenced, the reason may simply have been to have the case closed with a conviction.

The last and most important reason why I think that the case resulted in a miscarriage of justice, is the total lack of physical evidence. There is no hard evidence that Tom committed murder, and no witnesses who saw him do it. The entire case and sentencing is based solely on circumstantial evidence, and under U.S. law, this kind of evidence must be very strong before a conviction can be made. There are three conditions that all must be met before a person can be convicted on circumstantial evidence alone and if they are not, the person should be acquitted.

First and foremost, the circumstantial evidence must be so strong that it uniquely identifies the accused as the culprit. Simultaneously, they must exclude all other possible hypotheses. Finally, they must convince the jury about the defendant's guilt beyond all reasonable doubt. If the same evidence can lead to two or more conclusions, and that the accused is guilty of what he is accused of is only one of these, doubts must always benefit the accused.

In the case of Tom Dooley there is hardly much doubt that the circumstantial evidence could point to Tom being the killer and this must have convinced the jury beyond any reasonable doubt, since they found him guilty. Bias against Tom and/or the social class to which he belonged may also have played a part. In any case it is clear that the circumstantial evidence certainly does not exclude any other hypothesis. Ted West uses as an example of the hypothesis, one that I have mentioned as well, namely that Ann Melton killed Laura Foster. West explains that it doesn't matter whether Ann committed the murder or not. Alone the fact that suspicion can be raised against her is reason enough for Tom to be acquitted.

I even mention several other hypotheses that are more or less likely, but all of which are possible and there is every reason that the jurors should have dismissed the case due to justifiable doubts as to the circumstantial evidence. Tom was not questioned as a witness in the case, but he could probably have argumented several perfectly good reasons for his behavior that had nothing to do with the murder of Laura. Most evidence is based on his whereabouts in the days before and after Laura's disappearance, but it all took place in the area where he lived and where he probably had acted the same way and used the same roads and paths for most of his life. We know for example, that he regularly visited Laura, Ann, and probably also his friends and acquaintances, such as George Washington Anderson and his family, the Scotts and others, and to visit them, he had to use exactly the same roads and trails as he used at the time of the murder. For some reason his presence in these places had became odious and a sign of him being a murderer.

Tom's running off to Tennessee is often regarded as the best evidence of his guilt, but is it now, if you take a closer look? As you can probably guess my answer is that it is not a particularly good indication of guilt.  First Tom did not ran away not immediately after the murdre, but waited for about a month. In the period between the murder and the escape he acted as he used to before Laura disappeared. He moved freely in the area and visited friends and acquaintances, he continued his relationship with Ann (and perhaps Pauline) and he continued to entertain on his fiddle. Not the most obvious sign of guilt. But why did he take of then? Tom himself told that it was because someone were telling lies about him. This was revealed by Pauline Foster in her testimony.  He told it to Ann and Pauline, the two who both at times were suspected of being involved in the murder. If he had actually committed the murder, why then deny it to just the two that were most likely to know the truth? And if Pauline wanted Tom convicted of murder, she might just as well have told in court, that he actually admitted to the murder! If she had said so, and added that Tom had told her, when they were alone, it would have been word against word between her and an accused murder.

Maybe he did not plan on staying away for long and he certainly didn't plan on going far away. At least not right away, as he promised to  come back and get Ann and her mother at Christmas time. He had hardly planned to travel to California or something like that. It is possible that Tom simply went to Tennessee to earn money - or maybe to meet women who did not know him and his reputation :-).

A final indication, although it is uncertain, that Tom was unjustly convicted, is that one of the prosecutor's assistants, John M. Clement, who continued as a prosecutor for several years after the Dooley case, never later would prosecute cases where the accused would risk a death penalty. Did he learn something about Tom's case? Something that he could not reveal, but which caused him to fear that the death penalty could be used to kill an innocent?

So yes I think that Tom Dooley was a victim to miscarriages of justice by American standards regardless of whether he actually committed the murder or not. Fortunately, the case is of such a nature that anyone can form their own opinions, which I did. I hope however that I have argued my case, though readers will not necessarily be convinced that my interpretation is correct.

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