[NOTE: This story was originally published in West Virginia History. Volume 44, Number 3, pp. 193-211. 1983. Re-published courtesy West Virginia Archives and History.]
The Case of Taylor Strauder
The Decision in Strauder v. West Virginia, which the United States Supreme Court handed down in March of 1880, was the Court’s first statement upholding black jury rights. Lawyers still cite the case in courts today, and historians of black civil rights discuss the decision in their writings. But completely forgotten is the history of the plaintiff in the case, Taylor Strauder – a former slave, a carpenter by trade, and a citizen of Wheeling, West Virginia. Reconstructing the narrative of a case like Strauder’s depends upon unindexed newspapers of the period, and official documents that are scattered throughout the eastern United States. Since so few full accounts exist of the experience of black criminal defendants in the Gilded Age, the pertinent questions are: Did Strauder receive effective counsel? Did his contact with the American legal system change him in any way? Was Strauder interested in his own case, and knowledgeable, or was he a mere puppet of ambitious attorneys?
The citizens of Wheeling opened their newspapers on April 19, 1872, and saw the eye-catching headline, “Horrible Murder. A Colored Woman Tomahawked by Her Husband. The Murderer Escapes.” The local newspapers did what they could to respond to the keep public interest in the case, gradually furnishing the facts of the murder as they became available. [1]
On the night before the murder occurred, Taylor Strauder had been at a domino parlor with his friends. As often before, his friends had begun to refer in a joking way to the alleged infidelity of Strauder’s wife. One man said, “You better go on home, I expect there is someone in bed with your wife now.” When Strauder did go home, he saw, or thought he saw, a white man leaving his house by the back door. Strauder accused his wife, Annie, of having been with a man in his absence. She denied this, and a loud argument ensued. A nine-year-old child, Fanny, Annie’s daughter by a previous marriage, was also with the Strauders in the front room. After a while Taylor and Annie Strauder went to sleep, but in the morning the fighting resumed and Strauder seized the hatchet from the hearth and struck his wife twice in the head with the blunt end. He warned the girl, Fanny, not to scream or he would kill her too. Strauder then fled and Annie’s body was found by a relative an hour or two later. A coroner’s inquest was held, and the girl, Fanny, testified that Strauder had killed her mother with the hatchet, and Annie’s sister and mother testified that Strauder had threatened Annie before, and on one occasion had been restrained from violence towards her by a constable. A warrant was now issued for Strauder’s arrest, and soon thereafter the Board of Supervisors of Ohio County offered a two-hundred-dollar reward for Strauder’s capture. He was described as being a “very light mulatto about thirty-two years of age; about five feet ten inches in stature and stoutly built. He … wears a scattered beard on his chin.” [2]
Arrest
The offer of a reward interested a number of “bounty hunters” in the case, and for the first few days after the crime the West Virginia newspapers detailed several erroneous arrests. Six days after the murder, at Haneytown, West Virginia, a Negro aroused the suspicion of two bounty hunters by riding his horse at a rapid pace. “For some reason the darkey turned off the road, and that intensified their suspicion that he was the party they were in search of.” When finally they had seized the man, a “quick examination” showed that he was not Strauder. In another incident, an apprehended Negro “strengthened the suspicion that he was the party guilty of the foul murder by refusing to answer any question.” The Wheeling Register reported, “The citizens of Belmount County, Ohio, are making things lively for any unknown colored brother who may stray through their confines. They at once slap him into jail and send here for an officer or someone to identify him.” Finally this terrorizing of the black community was put to an end, when Strauder was captured by police at Pittsburgh, Pennsylvania. He had found work as a carpenter there, and the police found him eight days after the murder, “at work driving nails.” One of the two plainclothes officers asked Strauder for the hatchet he was using, saying that he “desired to straighten a nail.” Strauder handed the hatchet to the officer, then saw that the second officer had drawn a revolver. When told what he was suspected of, Strauder vigorously protested his innocence, saying that his name was Johnson, that he had never been in Wheeling, and that he was not a married man. [3]
The officers took Strauder to a Pittsburgh jail, and after a few hours two blacks who had formerly lived in Wheeling came by and identified him. At this point Strauder gave up the pretense of innocence and made a full confession to the two blacks, and said that he had had “good cause” for the murder but that he was now sorry for what he had done. The Wheeling Intelligencer printed his confession as it was told to these two men, then went on to say that the black people of Wheeling were loud in their denunciation of Strauder, and that they “expressed the most ardent wishes for his arrest and punishment.” Regarding Strauder’s allegations of his wife’s infidelity, the newspaper answered that “his victim is represented to have been a quiet, well-disposed, and faithful wife.” Fueling public interest in the case, the Intelligencer reported a story “current in the city” that Strauder had tried to commit suicide in his jail cell by hanging himself with his suspenders. But, the paper hastened to add, there was “not a particle of truth in the story.” [4]
Strauder was brought back to Wheeling by train, in the presence of law enforcement officials from Pittsburgh and Wheeling, and Wheeling reporters. A large crowd met the train at Wheeling, and cries of “hang him, shoot him,” were heard. He was transferred to a streetcar, and reporters wrote, “The crowd of men and boys, women and girls, white and colored, filled the sidewalks and quite a distance into the street. Numbers of them ran alongside the car, seeming intent on getting a glimpse of the unfortunate man.” The streetcar was made to stop at the office of “Squire” R. H. Gillespie, the neighborhood justice of the peace, and when Strauder was brought out into the open, “indignities to the prisoner, in the shape of punching him with sticks, yelling and screeching, were heaped upon him. He was taken into the squire’s office, and when he asked for a drink of water the “irons” were removed. The squire asked Strauder if he were ready for a preliminary examination, and Strauder replied that he was not, but would be ready on the following day. He was then taken to the city jail, completely surrounded by policemen for his own protection. [5]
At the preliminary hearing, Strauder was asked if he had counsel, and he replied that he had “sent for Mr. Richardson the night before, but had received no information whether he consented to defend him or not. A lawyer named George O. Davenport was sent for, and he arrived shortly. After conferring with Strauder in the back room for two or three minutes, Davenport immediately began the defense. It is unfortunately not clear how Davenport was chosen for the defense – whether he was interested in civil rights, or whether he often accepted court appointed cases. Davenport was thirty-two years old, and a native of Ohio. He had served as a delegate to the West Virginia Constitutional Convention of 1872, where he aligned himself with the moderate Democrats; later he would serve one term in the state legislature (1873-1874). Davenport’s law clerk, B. B. Dovener, was admitted to the bar shortly after the Strauder murder; he entered into partnership with Davenport and became increasingly involved in Strauder’s defense. After Davenport’s death, Dovener built up a lucrative practice, specializing in criminal law. Later still, Dovener served as a member of Congress (1895-1907); politically he was “a Republican, the Stalwart of the Stalwarts.” [6]
Trial
Strauder was indicted for murder in the first degree one month after the crime, in the Circuit Court for Ohio County. Twice Davenport asked for a continuance, and he thus gained some fourteen months for his client. When the case finally came to trial, Davenport entered the plea for Strauder of not guilty by reason of “temporary insanity resulting… from Strauder’s domestic difficulty.” Testimony occupied two days; Strauder was then found guilty by an all-white jury after an hour and a half of deliberation. Davenport and his partner Dovener asked for a retrial, and listed a number of errors in the proceedings. The judge dismissed each alleged error in turn, then asked Strauder if he had anything to say before sentence was passed. Standing, Strauder said simply, “I don’t think I’ve had a fair trial.” [7]
Responding to this remark, the judge pointed out that the jury had given all indications of impartiality. The judge said it was clear that Strauder was the murderer, as numerous witnesses had described his various confessions. The murder had been an especially brutal one, concluded the judge, and Strauder had unfeelingly allowed a nine-year-old girl to witness the crime.
Finally, the judge reprimanded Strauder for “his failure to appreciate his terrible situation.” In a similar vein, a newspaper reporter described Strauder’s “seeming callousness.” Throughout the various trials, casual observers would argue about Strauder’s emotional reaction to his situation, since he rarely looked upset or even concerned. After this first trial, the Intelligencer wrote, “He seems to wear upon his face a continual smile, and yet we are inclined to think that this smile cannot be repressed and is no indication of the feelings of Strauder. It is merely the natural pleasant expression of his face.” [8]
In prescribing Strauder’s punishment, the judge suggested that Strauder should “abandon expectation of another trial… and try to make his peace with the Almighty Being whose law he had violated by his fearful crime.” The judge ordered that Strauder be hung by the neck until dead, at a location outside the Wheeling corporate limits, “it being the opinion of the court that there is no jailyard within the city limits large enough” to hold the crowds that were usual at public executions. [9]
Appeal
Davenport appealed the case to the state Supreme Court of Appeals, on numerous grounds, including the West Virginia Statutory exclusion of blacks from juries, which he held to be a violation of the Fourteenth Amendment. The court denied all his allegations of irregular proceedings, except one. On a minor technical point, the court agreed with Davenport, and set aside the findings of the lower court and ordered a new trial. [10]
After this favorable decision in the Supreme Court of Appeals, a reporter from the Wheeling Register visited the prisoner in his cell, “in the company of Captain Dovener.” The reporter remarked at how calmly Strauder received the good news of his respite and went on to say that “the other prisoners of the jail, with whom Strauder is a general favorite, were more demonstrative in their expressions of satisfaction than the man whose life was weighing in the balance.” Asked if he was prepared to die, “he said he was ready to meet the Great Judge, and while he was glad that the court had decided favorably, he was not afraid to meet death.” Strauder expressed his genuine gratitude toward Davenport and Dovener, saying that he was not only glad of the result of the appeal for his own sake, “but because it would add much to their credit as faithful and persevering lawyers.” The newsman went on to relate how Strauder had been in jail for two years and three months now, and was in ill health, having “fallen away considerably.” The interview ended with Strauder remarking that he had written to his parents in Augusta County, Virginia, with the good news of his court victory, and he said “they would enjoy the result” as much as he himself did. [11]
New Trial
Once again the case was brought before the Circuit Court for Ohio County, in Wheeling, and quickly Strauder was indicted. The jury was drawn from a panel of thirty white male citizens, under the state law which limited jury service to whites. Davenport asserted that his client would be unable to receive an impartial trial by any jury selected under the West Virginia law, which law was “unconstitutional, null and void.” He asked that the case be removed to a federal court, under a section of the Civil Rights Act of 1875. Davenport wisely argued for the special necessity of a racially unprejudiced jury in this particular case, using the following argument:
Your petitioner avers that under the laws of Virginia and West Virginia the relation of husband and wife was not recognized between slaves, and that an impression is general in this County and the adjacent ones, that colored men are not entitled to the same protection in their marital relations as white men. That the defense of this petitioner will depend greatly on the fact of the petitioner having been a married man at the time the offence he is charged with was committed. [12]
Not only did Davenport point out the special necessity of a racially impartial jury in this particular case, he also pragmatically stopped short of demanding an all-black jury, or a jury with some blacks included. This demand would have been too great for any West Virginia court of the period, and so Davenport asked only that the present jury be quashed, and that a new panel and jury be chosen by a method that did not exclude blacks. The jury itself might or might not include blacks. The court denied the motion to quash the jury, and denied the petition for removal to a federal court. Davenport claimed exceptions to both rulings, and his exceptions were made a part of the record. In fact, one of Davenport’s strategies of defense was to build up a collection of “bills of exceptions” which were official objections to allegedly improper proceedings in the case. These bills of exception could then be used in the subsequent requests for appeal hearings. [13]
Davenport constructed a strong defense considering the overwhelming evidence against his client. He saw to it that Strauder entered a plea of “not guilty as charged”, and centered his argument around the assertion that the murder of Annie Strauder was not murder in the first degree. Davenport introduced a witness who described Strauder’s desire for a happy marriage, and who testified that two days prior to the murder he had seen Taylor and Annie Strauder sitting on their front porch: “They were sittin’ there very lovin’, they were acting very nice and very well together. She was trying to learn him to read.” Davenport also produced several witnesses who seemed ready to testify that Annie Strauder had received numerous male callers when Taylor Strauder was not home, including white men and other men not of the neighborhood. Only one such witness was introduced, however, since the others could not speak of the period immediately before the murder. The court agreed with the state that Annie Strauder’s memory should not be maligned unless the allegations were directly pertinent to the murder itself. [14]
With Strauder thus poignantly hoping for a loving marriage, but confronted with the reality of his wife’s infidelity or prostitution, Davenport told the jury how Strauder came home on the night of the murder, upset at his friends’ jeerings, only to find a white man leaving his home. He argued furiously with his wife, then mastered his temper and went to sleep. The next morning he recalled anew his wife’s alleged infidelity, and the argument resumed. This time he did not master his temper, but instead snatched up a hatched and dispatched his wife. This murder “in the heat of passion” was not murder in the first decree, argued Davenport. Certainly Davenport created a strong defense in a difficult situation, but the prosecution had an excellent case and one that sounded more convincing to the jury. E. G. Cracraft, the county prosecuting attorney, produced witnesses who attested to Strauder’s several threats on his wife’s life, previous to the murder; little Fanny Green, Annie’s daughter, testified to the macabre facts of the case and described Strader’s threats to her if she tried to report the crime; regarding Davenport’s assertion that the murder was committed in the heat of passion, Cracraft pointed out that Strauder had gone to sleep the night he discovered his wife’s infidelity, and only murdered her the following morning. [15]
At four o’clock on November 4, 1874, the jury began deliberation. The newspapers reported that the townspeople hung around the courthouse, “more interested in the jury than in Taylor Strauder.” At ten p.m. the jury filed back into the courtroom and announced that they had not yet been able to achieve a verdict, and the court adjourned. Noted the Register, “this ‘hanging’ of the jury is a surface indication that there will be no ‘hanging’ anywhere else.” [16]
The jury continued deliberation the next day, and by noon they had found Strauder guilty, by this balloting:
1st Ballot: 9 to hang, 3 for life imprisonment 2nd Ballot: 11 to hang, 1 for life imprisonment 3rd Ballot: 12 to hang
The judge decreed that Strauder should be “hung by the neck until dead.” According to the Wheeling Register, “These terrible words did not seem to have any effect upon Strauder. To outward appearance he seemed unconscious of their fearful meaning.” The date of execution was fixed for three months from the date of sentencing. [17]
Stay of Execution and Appeal
The public was amazed when, seventeen days before the execution, Judge Haymond of the Supreme Court of Appeals issued a stay of proceedings, in the vacation of that court. It had generally been believed, reported the Register, that Strauder would indeed be executed, that no maneuver would “prevent Strauder from soon making his exit from the vale of tears, with a rope around his neck.” In several grim little “fillers,” the newspaper engaged in some gallows humor. One filler read: “And we won’t have a hanging this month. What a disappointment to a great many people.” And another: “Young men who bet on Strader leaving us on the 26th of March have lost their money.” The Steubenville Gazette reported, “The Wheeling hanging has been postponed. They are ‘going to give the old man another chance.’ It was only a woman he killed anyhow.” On the day that had been named for Strauder’s execution, the Register noted, this was the day for the execution of Taylor Strauder, the wife murderer, but through law’s quibbles and delays, the ends of justice are defeated.” [18]
When the Supreme Court of Appeals reconvened, they considered Davenport’s list of eleven substantive errors in the lower court’s proceedings, including the refusal to allow removal to a federal court. All eleven alleged errors were dismissed in turn, and the court let stand Strauder’s conviction.” [19]
Davenport now petitioned the United States Supreme Court to hear the case on a writ of error, pointing out that in the trial “there was drawn into question the validity of a statute of the United States… and there was also drawn into question the construction of certain clauses of the Constitution of the United States.” The statute whose validity was questioned was the Civil Rights Act of 1875, which allowed removal of a case to a federal court if the defendant was unable to achieve in the state courts “any rights of citizens of the United States.” The clauses of the Constitution which needed explication were the Sixth Amendment (concerning the right to trial to jury), and the Fourteenth Amendment (which promised equal protection of the laws for all citizens).
SCOTUS Grants Certiorari
The Supreme Court agreed to hear the case. Early four years elapsed between the decision of the high court of West Virginia and the arguments before the United States Supreme Court. It is not clear why this delay occurred, but probably the scheduling was arranged to allow the court an opportunity to hear several black jury cases at one time, and thus offer a clearly stated definition of rights. [20]
Davenport and Dovener submitted a brief for Strauder, and state Attorney General Robert White submitted a brief for West Virginia. But two other briefs were also filed. The Hayes administration displayed its interest in Fourteenth Amendment rights by getting involved in the case, and Attorney General Charles Devens filed with the court as “chief counsel” for Strauder, with Davenport as “special counsel.” On behalf of West Virginia, one James W. Green, a Virginia lawyer, was hired to serve as special counsel, and he too submitted a brief. Both of the men who submitted briefs on behalf of West Virginia were Democrats and former Confederates. Of those who argued on behalf of Strauder, Devens and Dovener were Republicans and former Union officers. Davenport’s military record is unknown; he was, though, a Democrat who always shunned the powerful “Confederate wing” of the state party. [21]
Attorney General Devens had a strong interest in the civil rights of blacks. A lifelong Republican, Devens had as a young United States Marshal for Massachusetts been forced to return a runaway slave named Sims into slavery. Devens wrestled with guilt over this action, and four years after having sent Sims back into slavery he attempted unsuccessfully to purchase his freedom. During the war, when Sims had been freed by the advancing Union armies, Devens gave him financial assistance, and later employed him in the Attorney General’s office. [22]
Devens opened his brief by quoting, in Latin, the clause of the Magna Carta that secured the right to trial by a jury of one’s peers. But like Davenport, Devens stopped short of demanding Negro representation on juries. “It is not for a Negro jury that we are contending, explained Devens, “nor is it our specific claim that Negroes shall constitute a part of the jury. It is simply that the jury should be impaneled without discrimination against the race of the accused, just as, if the accused were a white person, we would contend against his race.” Concerning West Virginia’s assertion that the issue was analogous to the state law prohibition of women on juries (and yet women were assumed to receive fair trials), Devens said that the comparison was not pertinent, since Negroes had a constitutional amendment protecting their rights, and women did not. Devens cited the court’s decision in the Slaughterhouse Cases, in which the court had held that while the Fourteenth Amendment does not specifically mention Negroes, it was passed solely for their benefit and would probably never have other applications. Devens summed up his arguments by asserting that the West Virginia jury law was unconstitutional, violating the Fourteenth Amendment, and that Strauder had had the right to have his case removed to a federal court when the first motion for removal had been made, eight years previously. [23]
Robert White’s brief for West Virginia attempted to prove the validity of the state jury statute. He held that the only applicable federal law in this instance was the Sixth Amendment to the Constitution which states, “The accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the crime shall have been committed.” Asked White, “Has this right been denied the prisoner? Has he not been tried by a jury of the State wherein the crime was committed?” Hinting that Strauder was hoping to appeal to pro-freedmen attitudes on the largely Republican bench, White added, “Simply because he is a Negro does not make out his case.” White held that the West Virginia law was not an abridgement of “privileges and immunities” since jury duty is not a privilege, but an “onerous service” laid on the white man’s shoulders. [24]
The brief for West Virginia by James W. Green was an outspoken statement of state’s rights. Concerning the state jury law he had the audacity to proclaim, “Whatever may be thought of the statesmanship, the justice, or the expediency of such a statute, as the one in question, it is not in conflict with any provision of the Constitution of the United States… If West Virginia chooses, she may abolish altogether the trial by jury, for it is not guaranteed by the Constitution of the United States, except for the federal courts.” [25]
SCOTUS – A Landmark Decision
On March 1, 1880, four months after the oral arguments, the Supreme Court handed down the decision in the Strauder case. On a seven-to-two vote, the court ruled in favor of Taylor Strauder, declaring that the West Virginia jury requirements were unconstitutional and that the “removal clause” of the Civil Rights Act of 1875 was constitutional. If West Virginia chose to pursue the case, it would presumably be removed to a federal court for trial. [26]
In other black jury cases decided on the same day, blacks fared not so well, and the victory in the Strauder case was effectively watered down. For instance, in Virginia v. Rives the court held that a Negro’s right of removal to a federal court existed only if the state law explicitly limited jury service to whites, or if the Negro defendant could prove the prejudice of jury selection officials. The mere absence of blacks on juries, even over a period of decades, was not sufficient grounds for removal. [27]
Northern newspapers either ignored the Strauder decision, or merely printed a brief summary taken from the headnote. Sothern editorialists, on the other hand, were furious, railing against the seven Republican justices who voted to strike down the West Virginia jury statute. Implying that the justices had partisan motives, the Democratic Wheeling Register wrote, “It is to be hoped, when our judges lie prostrate on their beds of death, gazing with their glassy eyes on the death of liberty, that they will not be compelled, as a sort of half justification, to say, ‘We only obeyed the behests of our party’.” Justice Field, one of the court’s two Democrats, wrote the minority opinion, a stirring document which many felt reflected his desire for Southern support in his quadrennial presidential aspirations. [28]
The reaction of the black press to the Strauder decision was appropriately guarded. The Washington, D. C. People’s Advocate observed,
The power exerted by Congress in enforcing the rights of the Negro is now vindicated, and the states-rights Democracy have met a Waterloo; but the enemy is skotched [sic} not killed; the notion of states-rights which is served up for the legal pablum of every Democrat has not been eradicated, and in the coming canvas we expect to hear frequently of Taylor Strauder. [29]
Strauder’s Role
What role did Strauder himself play in the proceedings – did he participate actively and follow the legal points closely, or did he passively await the action of the attorneys? Three letters located in the National Archives written by Strauder to Attorney General Devens shed some light on these questions. Strauder wrote the first letter from prison, on December 10, 1879, after the oral arguments and before the Supreme Court had handed down its decision. In this letter Strauder introduced several legal points, but the letter clearly was not written with the help of his lawyers, since Strauder stated in the letter that he had mentioned these points to his counsel but had not yet heard from them. Strauder had, in fact, used his years in jail to learn to read and write, and he had “taken a course in reading.” It is recorded that his self-education enabled him to take a knowledgeable interest in the legal arguments of his case. The letter from Strauder to the attorney general reads as follows:
Wheeling, December 10, 1879
To Attorney-General Devens, Esq.,
Please present the following questions to the Supreme Court of the United State, if it can possibly be done, at the present session. Which is as follows:
A juror rase and stated the circuit court that he had expressed his opinion against me and had said, “that I (Strauder) ought to be hung.” This incompetency was not discovered until the cause was under progress several hours. I (Strauder) immediately objected to the said juror; but the court held that he was a competent juror, after putting the following questions:
Court. “Was your opinion and bias such as evidence would not remove.” Answer. “It might be removed.” Court. “Are you prejudiced against the prisoner.” Answer. “Yes, but evidence may change my mind.”
I then made a sworn affidavit, that I knew nothing of his incompetency previous to the panel; yet said juror was allowed to sit by the court. I hold that this question is too important to escape the attention of the court.
The verdict was consentanous with the said juror’s biased opinion; and I am greatly injured in having such juror to try my cause. I have tried to obtain the name of said juror, but up to the present time, I have not been able to get it. I notified Capt. Dovener of this matter, but he has not responded as yet. Why this question was not presented in our brief, I cannot comprehend.
Most respectfully, Taylor Strauder [30]
A clerk’s notation indicated that the letter was answered on December 11, but no copy of the reply appears in the correspondence books of the Attorney General’s Office. The point Strauder raises is an interesting one. The matter of the juror Edward Larkin had been dropped in the briefs filed by Devens and Davenport – they apparently felt that the federal issues were the only issues that would interest the supreme bench. Strauder however here attempts to bring additional evidence on his own behalf to the attention of the court, before the decision was reached.
On April 29, 1880, Strauder wrote to Devens again, saying, “I think you will excuse me for interrupting you, in your official capacity…” He mentioned that the mandate had not yet been issued by the Supreme Court, and he asked that it be sent as soon as possible to the Supreme Court of Appeals of West Virginia. Strauder added, “Mr. Davenport, is not expecting to live but a short time. I am very anxious to have the case finally settled, while he is yet alive. I am reliably informed that he will not be able to be at the bar again. I am very feeble myself, and am quite anxious to have this case disposed of.” Notations indicate that the letter was not answered. [31]
On July 7, Strauder and Dovener each wrote a letter to Devens, and each was answered two days later. Strauder again asked that the mandate be sent, then added,
“You have, no doubt, heard of the dead of Mr. Davenport ere this reaches you.” Dovener also asked that the mandate be sent, explaining,
Strauder is still very much concerned about his case and we desire to have the papers sent to the Supreme Court of this state and from that court to the Circuit Court of Ohio County, in order that we may be able to have the case sent to the United States Circuit Court, and have that court, (if it can be done) release him on bail, which we will be able to give. Mr. George O. Davenport, who was present in Washington when the case was argued, died on the 8th day of June last.
Very Resp. Your Ob’s serv’t. B. B. Dovener.
To Dovener, Devens replied that the mandate would be sent immediately, then wrote, “I well recollect Mr. Davenport and the interest he showed in this cause when he was here. I regret his early death.” [32]
Back in Wheeling
In early September, two months after the mandate was issued by the Supreme Court, the United States District Court at Wheeling issued a writ of habeus corpus for Taylor Strauder. He was brought into district court on September 8 by the sheriff of Ohio County and placed in the custody of a United States Marshal. For two days state Attorney General White and Strauder’s counsel Dovener fought over what should be done with the prisoner. Dovener asked that Strauder be released, or failing this, that he be allowed to post bail (which Dovener was willing to provide). The arguments centered around technical issues and the large crowd in attendance found the proceedings “dry and uninteresting.” The newspaper accounts reported that “occasionally the attorneys would get into a little row, and the crowd would brace up and expect something and be disappointed.” During these arguments about the future of his case, Strauder “appeared to be listening, understandingly, to what was being said, and noting the weak and strong points. Once, during Col. White’s argument, he noticed an error, or what he deemed as an error, as quickly as did his counsel, and by a significant gesture directed attention to it.” [33]
Strauder was quite newsworthy, so recent a supplicant before the Supreme Court, and the Register even told its readers the details of Strauder’s dress. During the proceedings “he was neatly dressed in a suit of black and his get-up was immaculate. His collar was white as snow and his shirt front ornamented with dull gold buttons… his hair and whiskers were carefully trimmed.” Despite eight years of dragged out legal proceedings, the public had not forgotten Strauder: it is reported that as he was led from the court by a Deputy United States Marshal “he was quite an object of curiosity to people on the street, as he passed along.” In a “filler”, the Register declared, “Taylor Strauder is now a bigger man than Fred Douglass.” [34]
Back in Court at Parkersburg
On September 10, 1880, the judge of this United States District Court sent the case to the Circuit Court for the District of West Virginia, at Parkersburg. Eleven days after this ruling, Strauder “left by the ten o’clock B&O train for Parkersburg,” in the company of a Deputy United States Marshal. This was the first time in over eight years that Strauder had been outside Wheeling, and the reporters for the Register speculated that the trip would be “quite a novelty to him.” To the reporters and others who were at the B&O to see him off, Strauder smiled and wryly “expressed the thought that he would not stay at Parkersburg.” [35]
With Strauder no longer in Wheeling, the newspaper accounts became more sporadic. Early in January 1881, the Wheeling Register announced that Deputy United States Marshal B. J. Campbell was in town, “hunting up witnesses for the Taylor Strauder case.” It was reported that Campbell was meeting with great difficulties, since “the affair happened so long ago that several important persons have either died or moved away and cannot now be found.” The Wheeling newspapers had nothing to report about the Strauder case for some six months. Twice, however, the Register filled out a column by quoting nearby newspapers that wrote about Strauder; for instance the Pittsburgh Commercial Gazette had told its readers that Taylor Strauder, “the colored wife murderer, who has so greatly troubled the legal tribunals of West Virginia… [was, when arrested] very ignorant, but during his long incarceration he has not only learned to read and write, but has become fairly educated.” [36]
Freed & Arrest & Freedom
On May 2, 1881, over nine years after he was first incarcerated, the United States court at Parkersburg released Taylor Strauder from custody. The court freed Strauder because he had never been legally indicted, the grand jury which found the alleged indictment having been selected by unconstitutional means. When Strauder first heard the news that he was free, he exclaimed, “George Davenport ought to be here to hear this.” The Register commented that the labors of Davenport and Dovener “have excited certainly no small comment,” and that Strauder himself by dignified conduct had gained the respect “of all of the officials with whom he was brought into contact.” [37]
After the court had announced its intention to free Strauder, the prosecutor Lewis S. Jordan moved that Strauder be returned to state custody for retrial, and this motion was denied. Jordan then asked that Strauder be brought before a United States grand jury for indictment, but this motion too was denied. When the court adjourned, Strauder was informed by Wheeling officials that he would soon be rearrested. Strauder walked out of the federal courthouse a free man, but as soon as he stepped on “West Virginia soil” he was arrested by a Wheeling constable and quickly returned to that city. [38]
Once in Wheeling there was a delay of one day before Strauder was to be taken for a ‘preliminary examination” at the county court. Reporters for the Wheeling papers interviewed Strauder at the Atlantic Saloon, where he had stopped with his guard on the way from the B&O depot to jail. Strauder was “refreshing himself with a cool glass of foaming beer.” When asked if he expected to be in jail much longer, Strauder replied, “Oh! I’ll be out in a short time. There’s the Supreme Court decision and I guess they can’t go back of that. There are various legal forms to be complied with before the matter can be settled, but it won’t take long.” About the prospect of returning to the too-familiar Wheeling jail, Strauder commented that the ventilation had been much better at the jail in Parkersburg, and that accordingly his health was much improved. He joked, “If I have to stay in jail long, I guess I’ll petition Judge Melvin to let me go back to Parkersburg.” Regarding the action of the Wheeling officials, Strauder added with a smile, “There wasn’t any use of arresting me nohow, as I intended to come here as soon as ever I got free.” [39]
Before the county court, Dovener argued “that there was a premise of law that no one would dispute, and that was, that when an inferior court takes charge of a case and it is moved to a higher court, the lower court never again can take that case, unless the case be referred back from the higher court.” And the Parkersburg court had specifically refused to refer the case back. The county court finally agreed with Dovener, and Strauder was again released. Strauder shook Dovener’ s hand, then walked out of the door of the courthouse a free man. “Going out on the street, open hands were extended to him on almost every side.” [40]
Strauder had been in jail over nine years, and had been broken in health by his incarceration. Over the long years of legal proceedings, his longtime lawyer had died, and the nine-year-old eyewitness of the crime, Fanny Green, had grown up and married. Strauder’s incarceration had given him the time to embark upon a program of self-education, and he seems to have earned the respect of the other inmates, of the lawyers, and of “all the officials with whom he was brought into contact.” Though a confessed murderer, few citizens who had read accounts of his years of prison life objected to his being freed. Many people, said the Register, “are of the opinion that he has already been sufficiently punished.” [41]
Conclusions
The records of this case which still exist are not sufficient to give a truly three-dimensional account of Taylor Strauder; perhaps the saddest aspect of Strauder’s history is that more cannot be known about him as a person. He was clearly a man of great personal dignity, who through nine years of prison life and painfully slow legal proceedings, leaves no record of ever having said or done anything which might lesson our respect for him – the brutal murder he committed stands out as an almost incredible act when placed against the background of his later actions. [42]
Though broken in health, and denied nine years of freedom, Strauder is one case of a black defendant who saw the legal system work for him. He had the benefit of counsel that was generous and patient, and he benefitted from a United States Attorney General who was interested in Negro rights. He also benefitted from a Supreme Court that was willing to take a few faltering steps to uphold the Fourteenth Amendment. But Strauder’s story should not be considered “typical” – too little is known about how black criminal defendants fared in the Gilded Age.
On May 3, 1881, forty-two-year-old Taylor Strauder walked from the courthouse to the jail, where he claimed his possessions, then walked to lawyer Dovener’ s office and stored them. He then announced that he was going to look for work. In the conclusion of its account of the county court proceedings that freed Strauder, the Register commented, “So ends another chapter in the eventful life” of Taylor Strauder. [43]
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Strauder v. West Virginia (1880)
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End Notes:
1. Wheeling Intelligencer, April 19, 1872.
2. Wheeling Intelligencer, April 19 and 27, 1872; Wheeling Register, April 19, 1872; Appellate Case File #8964, Records of the U. S. Supreme Court, Record Group 267, National Archives (hereafter Appellate Case File #8964).
3. Wheeling Intelligencer, April 23, 24, and 25, 1872; Wheeling Register, April 23, 1872.
4. Wheeling Intelligencer, April 24, 25, and 29, 1872.
5. Wheeling Intelligencer, April 26, 1872; Wheeling Register, May 2, 1881.
6. Wheeling Intelligencer, April 27, 1872; Charles A. Wingerter, History of Greater Wheeling and Vicinity (Chicago: Lewis Publishing Co., 1912), 556-557; Wheeling Register, June 10, 1880; Wheeling Intelligencer, January 25, 1872 and March 25, 1872.
7. West Virginia v. Strauder, 8 W. Va. 686 (1874); Wheeling Register, July 9, 1873.
8. 8 W. Va. 686; Wheeling Intelligencer, July 9, 1873.
9. Wheeling Intelligencer, July 9, 1873; Wheeling Register, July 9, 1873.
10. 8 W. Va. 686, 689-705.
11. Wheeling Register, July 21, 1874.
12. Appellate Case File #8964; West Virginia v. Strauder, 11 W. Va. 745 (1877).
13. Ibid.
14. Ibid., 793-797, 824-825; a transcript of the testimony in this trial may be found in the Appellate Case File #8964. Unfortunately all of the older records of the Circuit Court of Ohio County have been lost.
15. Ibid.
16. Wheeling Register, November 5, 1874.
17. Wheeling Register, November 6, 1874.
18. Wheeling Register, March 19, 11, and 26, 1875; Steubenville Gazette quoted in the Wheeling Register of March 11, 1875; Appellate Case File #8964.
19. 11 W. Va. 745, 824-825.
20. Civil Rights Act of 1875, 18 Stat. 114, 115; Appellate Case File #8964.
21. Men of West Virginia (Chicago: Biographical Publishing Co., 1903), 20-25, 92; Wheeling Intelligencer, January 25, 1872 and March 25, 1872; Stephen Cresswell, “The Attorney Generalship of Charles Devens,” Hayes Historical Journal, 3 (Fall 1982): 32-45.
22. James Grant Wilson and Fohn Fiske, editors, “Charles Devens,” in Appleton’s Cyclopedia of Biography (NY: Appleton & Co., 1888), 3:203; Cresswell, “The Attorney Generalship of Charles Devens,” 39-40.
23.Devens’ brief for the plaintiff in error, at 5-6, Strauder v. West Virginia, 100 U.S. 303 (1880).
24. White’s brief for the defendant in error, at 4-7, 100 U.S. 303.
25. Green’s brief for the defendant in error, at 6, 100 U.S. 303.
26. Strauder v. West Virginia, 100 U.S. 303, 304-305 (1880).
27. Virginia v. Rives, 100 U.S. 313 (1880); Ex Parte Virginia, 100 U.S. 339 (1880).
28. The Natchez Democrat, March 6, 1880; New Orleans Daily Picayune, March 2, 1880; Atlanta Constitution, March 2, 1880; New York Times, March 8, 1880; Wheeling Register, March 2, 3, 9, and 10, 1880; Carl Brent Swisher, Stephen J. Field: Craftsman of the Law (Washington: the Brookings Institution, 1930, 165.
29. People’s Advocate (Washington, DC), March 13, 1880.
30. Taylor Strauder to Charles Devens, December 10, 1879, Source Chronological File for West Virginia, Records of the Department of Justice, Record Group 60, National Archives. This record group cited hereafter as RDJ, NA.
31. Taylor Strauder to Charles Devens, April 29, 1880, Ibid.
32. Ibid., July 7, 1880, and B. B. Dovener to Charles Devens, July 7, 1880, Ibid.; Charles Devens to B. B. Dovener, July 9, 1880, General and Miscellaneous Letter Books, RDJ, NA.
33. Wheeling Register, September 9 and 29, 1880.
34. Ibid., September 9, 1880.
35. Ibid., September 11 and 20, 1880.
36. Ibid., January 8, 1881; Pittsburgh Commercial Gazette quoted in Wheeling Register, January 14, 1881.
37. Ibid., May 2, 1881; Wheeling Intelligencer, May 2, 1881.
38. Ibid., May 2, 1881, Wheeling Intelligencer, May 2, 1881.
39. Wheeling Register, May 2, 1881, Wheeling Intelligencer, May 3, 1881.
40. Wheeling Register, May 4, 1881.
41. Ibid., May 4, 1881; Wheeling Intelligencer, May 4, 1881.
42. Strauder drops out of the pages of the Wheeling newspapers after May 4, 1881. There are no death records for Taylor Strauder in Ohio County.
43. Wheeling Register, May 4, 1881.
