Let 'em Holler - A Political Biography of J. Bracken Lee

Don Jesse Neal and Capital punishment

le Don Jesse Neal and Capital Punishment On May 23, 1951, Sgt. Owen T. Farley of the Salt Lake City Police arrested Don Jesse Neal and a woman companion, Wilma Tully, for questioning in connection with a stolen automobile and an Ogden robbery. Farley put handcuffs on Neal and placed him in the center of the front seat, with the woman on the right side. The officer then slid into the driver's seat and headed for the police station; but before the trip was completed Farley was shot, and he died an hour later in a Salt Lake hospital. The fol­lowing day Neal was charged with the murder. Preliminary hear­ings were held in June, and the trial in October lasted only three days before the jury returned a verdict of guilty in the first degree. Judge Arthur Ellett sentenced Neal to die before a firing squad on December 13, 1951. However, a series of appeals and four separate stays delayed the execution until July 1, 1955. This case assumed importance because the appeals took a great deal of time and involved Lee directly in the decision­making process. In many ways the Neal case was to Governor Lee what Joe Hill was to Gov. William Spry. National publicity, much of it negative, centered on Utah, and Lee was frequently called to account for his approach to the case. When Neal appealed to the Utah State Supreme Court, Lee granted a stay of execution pending the result. Subsequently, the court ruled against Neal, who promptly appealed to the U.S. Supreme Court, which in turn denied the petition. Ellett then sentenced Neal a second time to die on June 19, 1954, but U.S. District Judge Willis W. Ritter agreed to hear an appeal for a writ of habeas corpus on the grounds that Neal was denied his constitutional rights during the trial. Ritter subsequently denied 191 J . BRACKEN LEE the appeal as well as the stay of execution. However, Judge Orie L. Phillips of the Tenth Circuit Court of Appeals in Denver agreed to investigate the charge that Neal was denied his consti­tutional rights. As frequently happens in cases of this sort, Neal changed attorneys midway, releasing R. Verne McCullough and retaining Billy Hulsey. After the presentation of evidence by the American Civil Liberties Union, Judge Phillips granted a stay of execution; but when arguments were heard Phillips, too, denied the writ. The counsel for the ACLU sought a stay from Chief Justice Earl Warren of the U.S. Supreme Court and Associate Justices Tom C. Clark and Hugo L. Black, all of whom refused to issue the order. Judge Ellett sentenced Neal a third time to die at sunrise on August 3, 1954. In July the Utah State Board of Pardons turned down Neal's appeal for a pardon or commutation of sentence. The decision came at the end of a day-long hearing in which Neal claimed his woman companion had actually done the shoot­ing. As the execution date approached, ACLU lawyer Monte Levy sought a stay from the U.S. Supreme Court but could not locate any of the justices. Levy then called Governor Lee to request a stay, but he refused to grant it. Finally, Levy succeeded in contacting Justice Tom Clark in Dallas, Texas, and he agreed to study the records in the case. On July 31 Clark informed the Supreme Court that he would sign the stay of execution, and the clerk of the court accordingly sent telegrams to Lee and Warden Marcell Graham of the Utah State Prison. But the question arose as to whether the telegrams were sufficient to grant the stay, and Sheriff George Beckstead, who was charged with carrying out the execution, arrived at the prison with a firing squad and requested that the warden turn Neal over to him. Finally, E. R. Callister, Utah attorney general, ruled that telegraphic confirmation of the stay was sufficient and ordered the warden to retain Neal in custody. The execution was literally stopped at the last minute. After the U.S. Supreme Court acted negatively on the case Judge Ellett sentenced Neal to die a fourth time-May 9, 1955. The appeals continued nevertheless. Judge Ritter refused a peti- 192 CAPITAL PUNISHMENT tion for a writ of habeas corpus but signed a stay of execution anyway, because of the illness of the Tenth Circuit Court of Appeals Chief Judge Phillips in Denver, where the appeal was designed to be heard. The parties disagreed as to whether Ritter had the authority to grant the stay in lieu of the Denver court's action, and the Denver court granted a stay while hearings were held to decide whether Ritter's order should be superseded. The court of appeals finally refused the writ and upheld Judge Ritter's denial, continuing the stay until June 15, 1955. For a fifth time Judge Ellett gave Neal an execution date-July 1, 1955. For one month there followed a series of last ditch attempts to get another stay, with the U.S. Supreme Court again refusing, the Utah Board of Pardons listening to Neal and then refusing to pardon or commute, Judge Ellett denying a motion for a new trial on grounds of new evidence, and the Utah Supreme Court upholding Ellett's final ruling. Such a litany of appeals suggests that Neal and his attorneys used every possible legal recourse and that the state and federal governments granted every reasonable legal request over an incredible period of time. Finally, the execution by firing squad took place on July 1, 1955, with Neal maintaining his innocence to the end.1 NEAL'S OWN STORY Working feverishly for almost four years to save himself from death, Neal studied legal precedents, hired and fired attorneys, and placed ads in newspapers. To a California girl he had never met Neal wrote a lengthy letter in 1953, explaining his side of the story. He promised her that he was telling the truth and predicted that she would come to believe in his innocence. He recounted the story of the arrest, emphasizing the fact that he was handcuffed with his hands behind his back and placed in the center of the front seat. While driving through an intersection, the officer allegedly glanced to the right and saw the woman take a gun from her purse. Neal claimed that Farley then lunged across Neal's body in a futile attempt to get the gun, which fired just as the car struck a parked car. After the crash, the woman opened her door and jumped out. In his struggle to stop her, the 193 J . BRACKEN LEE policeman lunged out the same door to Neal's right. Neal said that the officer hit his head on a parked car and was rendered unconscious.2 Neal panicked and his first reaction was to flee. He said he twisted his arms around, burst open the left door, and ran to a bus, pulling his hands and the gun under his coattail. Once on the bus he could not get the fare from his pocket; so he told the driver that he had injured his arms and begged him to reach in his pocket for the money. Although the driver testified at the trial that Neal told him he had just killed a man, Neal insisted that was not true. Instead, Neal thought the driver could not hear what he was saying and just kept "snarling" for his fare, so Neal got off after two blocks and was recaptured "almost immediately."3 At the trial Neal's companion, Wilma Tully, testified that she saw Neal turn his back to the officer and then heard a shot. Neal called her story ridiculous. He pointed out that the autopsy proved that the bullet entered Officer Farley's stomach two inches above the navel and passed straight through the center of the body, slightly downward through the spine and into the seat cushion. He claimed that he could not have fired the shot unless he had been sitting on the hood of the car with the officer slumped down halfway under the steering wheel before him. Neal also disputed Tully's statement that he had forced the officer out the right side of the car, insisting that it would have been more logical to shove him out the driver's side. He claimed that the officer "lunged" to the right, toward Tully, which would have been ridiculous had Neal fired the shot. Neal asserted that none of these things had ever been mentioned at his trial, and yet they could not be denied. He said he had no motive for the killing since the officer was only investigating "an overdue rented auto­mobile." He complained that the woman's drunkenness and her past criminal record never came out at the trial and that she was coached on testimony and paid $798 after he was sentenced to death. Allegedly, the handbag, which he claimed contained the gun, was never used as evidence, and the gun was not hidden in the crack between the car seat and the back rest, because two officers had thoroughly searched it before the killing.4 194 CAPITAL PUNISHMENT A postman had testified at the trial that Neal had asked the unconscious officer, "Do you want one more?" and that the officer said, "He shot me." Neal claimed that neither statement had been uttered and that furthermore the postman was hard of hearing. He also claimed a discrepancy in the postman's testimony based on a newspaper account in which the postman quoted the officer as saying, "I've been shot." Neal insisted that the dying man was unconscious and therefore said nothing. When faced with contradictions in his testimony after the trial, the postman had allegedly told a businessman, "It doesn't make any difference. He isn't any good anyway."5 Judge Ellett said that if the woman had fired the gun across Neal's body there would be no powder burns, but the deter­mined Neal disagreed because the officer had "lunged." He said he had requested laboratory tests, but the court and the state attorney general had refused, Ellett adding that it would make no difference, even if tests showed that the gun was "fired from the moon." Concluding his account emotionally, Neal wrote, "I swear to you before God that I am innocent, and earnestly and prayerfully seek your help to prove it."0 The letter had a forceful impact on Constance Keehn, the twenty-one-year-old California girl who read it. She had been attracted to the case by an ad in the Los Angeles Times, saying, "California boy in serious trouble. God knows I am innocent." Keehn demonstrated a flair for the dramatic in her magazine story of the events: This one ad, this faint SOS, was about to lead me along a desperate trail, across an ocean, and over deserts. Before I was through, I would smell clues like a detective and know law like a prosecuting attorney. I would see the cowardice of people who prefer their own personal security to freedom and justice for somebody else. I would see my picture printed in newspapers all over the country, and I would know the heart­break that comes from the too frequent cynicism of officials. I would do it all again, if I had to go back. I'd clip out that little ad, just as I did that warm day in April, 1953. I'd retrace my steps across the living room to daddy's desk, and address the envelope that held my reply.7 195 J . BRACKEN LEE After a year of searching and analyzing, Keehn became con­vinced that Neal could not have committed the murder. Her investigation proved to her that he had been beaten by police officers in retaliation for Farley's death, that authorities possessed photographs of the bullet hole in the car seat but withheld the evidence from the trial, and that reenactment of the crime in the courtroom had been a mockery because it was done with folding chairs and nothing representing the steering wheel. Keehn believed that Neal was a patsy and that the woman with him should have been prosecuted but was not, largely because "a woman has never been executed in Utah."8 Keehn said she had talked with all the people who had known Neal, among them Father Boileau, a Catholic priest in Alaska who had converted him, and a prison chaplain, neither of whom could imagine Neal taking anyone's life. She sent Neal pin-ups and books "to help break the monotony of his days in the death cell" and tried to drum up money and support for his cause, culminating in an article for Inside Detective. She wrote: When I decided to visit Salt Lake City, see some of the witnesses in Don's trial, and visit Don in the death house, I hit the headlines. It was last March. Reporters interviewed me, cameramen begged me to cross my legs, then snapped the pictures from the floor. I thought, if my looks will bring public attention to Don's plight, fine. I'll pose for the cheese­cake if it will help him. But some of the stories weren't the kind that would help Don.9 Keehn insisted that press reports that she was in love with him were ridiculous, because she had seen him for only fifteen min­utes in prison.10 Finally, in desperation, she wrote a letter to Eleanor Roose­velt in hope that she would be able to help because of her national prestige. She explained to Mrs. Roosevelt that state officials were selfish and simply did not care. She even claimed that mystery writer Erie Stanley Gardner had told her that Neal could not have committed the crime: Mr. Gardner said that the Governor of Utah believes an eye for an eye and a tooth for a tooth, and refuses to let anything 196 CAPITAL PUNISHMENT sway him. They executed one young man there not too long ago that had saved the life of a Warden in a prison riot, and Mr. Gardner says in almost any other state that he knows of the sentence would have been commuted. He says that the Court of Last Resorts couldn't help in a case where the gov­ernor and officials feel as they do in Utah. Just about every­one I have talked to about Utah (and I have spoken to many who are in a position to know, including ex-officials from there) say that it is a completely impossible state. They live almost as if they were not a part of the United States.11 Additionally, she said, an effective publicity battle could not be waged because both newspapers in Salt Lake City and all radio and TV stations except one were "under the direct control of the Governor and the Republican Party."12 Mrs. Roosevelt for­warded the information by airmail to Lee with a note explaining that she did not know either Constance Keehn or Neal but thought Lee should have an opportunity to read the material. She said that she knew how difficult such decisions were and that any governor would want to consider very carefully all available evidence before a man was actually executed.13 The letter could hardly be called an attempt by Mrs. Roose­velt to intercede on Neal's behalf. She made no appeal but rather served as an intermediary to supply information. The execution was stayed but not because of Mrs. Roosevelt, for her letter did not arrive until two days after the scheduled date of execution. In spite of all the efforts to save Neal, Lee remained uncon­vinced of his innocence. On one occasion he met Neal alone in his office and told him that he wanted to do everything in his power to help. Six men were executed during Lee's tenure, and he claimed to have approached each one in the same way. He told Neal that there was only one way he could help him-"and that is, you've got to tell me the absolute truth." But, concluded Lee sadly, "He couldn't tell you anything that was the truth!" Lee had no recollection of Constance Keehn but remembered another benefactor: He had some kindly, wealthy woman from Texas that took an interest in him, and she bothered the hell out of me. And she used to go out there and visit him. And she wanted his 197 J . BRACKEN LEE body after it was shot. And she wanted to witness the execu­tion. And she just knew he was innocent and she pled with me-and that lying son of a bitch fooled her. But right at the last minute where he'd been playing up to her and getting her sympathy and had her working for him and had her spend money for everything on earth-he run her out and cursed her and told her he never wanted to see her again. Whew! When all hope was gone, he ditched her like nobody's business, and the warden told me he never heard anybody talk as mean as he talked to that poor old lady. He was a mean man-mean all his life. Look at his record-he was a killer from way back. Cold blooded.14 Lee conceded that the case had been widely publicized and that many people suspected that it was physically impossible for Neal to commit the crime, since his hands were handcuffed behind him. But Lee insisted that he was handcuffed so loosely that after the shooting "he was able to work his body and legs through his hands so that his hands were in front of him."15 In rejecting the appeal the Utah Supreme Court essentially agreed with Lee. Neal's attorneys argued that Neal could not have fired the shot with his hands cuffed behind him and that he could not have formed a deliberate and premeditated inten­tion to kill, since the shooting occurred during a scuffle. But the justices believed that the evidence suggested that "the defendant formed a cold, deliberate and premeditated intention to kill the officer." The court found that Neal deliberately reached between the seat cushions and got the gun, then maneuvered himself into position to shoot the officer. Then he shot Farley without giving him a chance to comply with his wishes. The justices further noted that after fleeing the murder scene, Neal had managed to work his body and legs through his hands so that the pistol was in front of him, enabling him to threaten an employee of a repair shop. They concluded that it would have been physically impos­sible for the officer to have leaped in the fashion described by Neal, and that his police training would have taught him not to expose the whole front of his body to gunfire. Rather, he would have kept the defendant between him and the woman.10 198 CAPITAL PUNISHMENT Judge Ellett was disturbed enough about the publicity sur­rounding the case, especially Keehn's article in Inside Detective, that he wrote Lee a lengthy letter disputing the "numerous erron­eous statements" made in it. In the first place, Keehn claimed to have verified Neal's story personally by examining the records of the case. According to Leland Cummings, clerk of the Utah Supreme Court, she at no time saw the records of the case. Ellett disputed Neal's claim that Officer Farley saw the woman remove a gun from her purse, for at the trial Neal had denied that he had ever seen a gun. Actually, the purse was placed in evidence, and the jury watched the district attorney place the gun inside the purse: "It was very difficult to close the purse if nothing was in it except the gun. If a handkerchief and lipstick and compact are placed in, it is impossible to close the purse."17 According to Ellett, Neal's story of his encounter with the bus driver, in which he "begged" him to reach in his pocket for the fare, was suspect. In fact, the bus permitted no fare because it was a company bus operated as a courtesy of Sears Roebuck. As for the hard-of-hearing postman, Ellett noted that he gave no evidence of being hard of hearing at the trial, answering all questions put to him in an ordinary tone of voice. With respect to powder burns, Ellett commented that the coat of the officer was doubled over at the time the shot was fired, and therefore the powder burns were on the inside of the coat. The powder burns surrounding the hole were small, indicating that the muzzle of the gun was very near the cloth. The hole in the cloth where the powder burns were located was ruptured, indicating that it was torn by the force of the explosion.18 Ellett denied that Neal begged for a lie detector test. The judge suggested that the search of the car conducted prior to the shooting may not have been adequate. Officer Farley probably did not make a thorough search of Neal either, for he had eighteen shells in his pocket when arrested. Finally, Ellett claimed to be certain in his own mind that Neal had fired the shot that killed Farley, and he felt that Neal had "compounded his crime of murder in the first degree with deliberate attempts to gain sympathy by misstatements of fact."19 199 J. BRACKEN LEE Neal maintained his innocence to the end and continued his fight for appeals until only hours before the execution. The Deseret News noted editorially that justice had been done because Neal had had every opportunity to be heard. Just prior to the execution, Neal said, "I've already died four times."20 In spite of expected criticism, Governor Lee handled a diffi­cult case admirably, always demonstrating his desire for justice. Although he believed that Neal had been given a fair trial, he fully supported his right to appeal the conviction. By the time the execution occurred Lee was convinced that in the absence of new evidence everything possible had been done to protect Neal's rights. To his critics he explained that Utah law did not grant the governor the right to commute a sentence but only to stay an execution-which could only extend until the next meeting of the Board of Pardons, the body that could rule on the validity of the action.21 As further evidence of his sincerity it should be noted that Lee held genuine reservations about capital punishment. He did not consider it completely effective as a deterrent to crime, espe­cially since most murders were committed in the heat of passion. He thought that the only alternative to the death penalty was life imprisonment.22 Lee modified his views over the years, as can be seen by his statements about later occupants of Utah's death row, Myron Lance and Walter Kelbach, who were analyzed and interviewed in a 1972 network television documentary. Disturbed that they had not indicated feelings of repentance or sorrow, though they freely admitted and even described what they had done, Lee favored execution for Lance and Kelbach. Although he still doubted that execution acts as a deterrent, he argued that a per­son who kills in a premeditated fashion "will dominate the guards at the prison, the other prisoners, and everybody-he doesn't have anything to lose." In such a case, the only solution Lee saw was to "put him out of his misery."23 200 CAPITAL PUNISHMENT !News accounts of the Neal case were numerous. The chronology of events is outlined clearly and minutely in Deseret News, April 5 and June 30, 1955. The July 2, 1955, issue contains the account of the execution. 2Neal letter as quoted by Constance Keehn, "I'll Never Believe He's Guilty," Inside Detective, June 1954, p. 19. 3Ibid. 4Ibid., pp. 20, 21. "Ibid. "Ibid., p. 62. 7Ibid., pp. 17, 18. sibid. 9Ibid. 10Ibid., pp. 62, 63. "Constance Keehn to Eleanor Roosevelt, June 14, 1954, Lee Gubernatorial Papers. 12Ibid. "Eleanor Roosevelt to Lee, June 17, 1954, Lee Gubernatorial Papers. 14Lee interview. lr,Lee to Don Parsons, executive director, Super Market Institute, Inc., April 20, 1955, Lee Gubernatorial Papers. "Decision from the Supreme Court of the State of Utah vs. Don Jesse Neal, No. 7813, by Justices James H. Wolfe, Chief Justice, Roger I. McDon-ough, and J. Allan Crockett, J. Henriod not participating, ibid. 17Judge Arthur Ellett, Third Judicial District, Utah, to Lee, July 21, 1954, ibid. 18Ibid. 19Ibid. 20Deseret News, July 2, 1955, editorial. 21Lee to Parsons. 22Lee to Robert Castagnola, Boston, Mass., May 24, 1951, in response to a questionnaire regarding capital punishment, Lee Gubernatorial Papers. 23Lee interview. The next most famous case of capital punishment during Lee's administration was that of Vern Braasch and Melvin Sullivan, accused of murdering a service station attendant in Beaver, Utah, in 1949. A serious controversy arose over questionable police tactics and the absence of counsel. After their conviction they were sentenced to die by firing squad, but a lengthy appeal process took the case to the Utah State Supreme Court four times, to the Board of Pardons twice, to the U.S. Supreme Court three times, and to the U.S. District Court twice. The two men were finally executed in 1956. Again, Lee and the courts were circumspect in granting appeals and stays to ensure that justice was done. Charles Larrowe wrote a caustic article about it entitled "Notches on a Chair: Utah Firing Squad," Nation, April 14, 1956, in which he labeled Utah's judicial system as outmoded. 201