New Jersey v. Cooper Brief Amicus Curiae

    Supreme Court of New Jersey
Docket No. 180

S tate  o f  N ew  J ersey , \
Plaintiff-Respondent, I

I O n  A p p ea l From

R a l p h  C ooper, C ollis E n g l ish , M cK in l e y  \ In d ^ e rm in ^ o f 
F orrest, J o h n  M cK e n zie , J am es A. ( M ercer C ounty 
T horpe  and  H orace W ilso n , a

Defendants-Appellants. J

BRIEF OF THE NATIONAL ASSOCIATION FOR 
THE ADVANCEMENT OF COLORED PEOPLE AS 

AMICUS CURIAE

H erbert H . T ate ,
Attorney for National Association for 
the Advancement of Colored, People 
as Amicus Curiae,

163 Belmont Avenue,
Newark 3, New Jersey

T hurgood M a r sh a ll ,
(of the Maryland Bar),

M arian  W y n n  P erry ,
(of the New York Bar), 

20 West 40th Street, 
New York City,

Of Counsel.



TABLE OF CONTENTS

PAGE

Statement of Interest of Amicus Curiae______  1

Statement of Questions Involved___________  2

Statement of the Case ____________________  3

Statement of Facts _______________________  3

A r g u m e n t  :

I. The conviction of the defendants-ap- 
pellants based upon the alleged confes­
sions secured by force and duress, after 
illegal arrest, during a long period of 
detention is in violation of the 14th 
Amendment to the United States Con­
stitution ___________________ _____ _____ 4

II. The verdict is against the weight of the
evidence ____________________________  15

Conclusion ____________________________  19

TABLE OF AUTHORITIES 

Cases Cited

Ashcraft v. Tennessee, 322 U. S. 143____ __ _ 8

Brown v. Mississippi, 297 U. S. 278 ________  11

Canty v. Alabama, 309 U. S. 629 ___________  11
Chambers v. Florida, 309 U. S. 227__ 4, 8, 9,11,12

Haley v. Ohio, 332 U. S. 596, 92 L. ed. Adv.
Op. 239 ___________ I____________________ 10,14

Lisenba v. California, 314 U. S. 219__________  8, 9
Lomax v. Texas, 313 U. S. 544 ______ _______  11



11
PAGE

Malinski v. New York, 324 U. S. 401........ „_8,12,13
McNabb v. U. S., 318 U. S. 332_____________ 14,15

Vernon v. Alabama, 313 U. S. 547 __________  11

Ward v. Texas, 316 U. S. 547_______________ 9,10
White v. Texas, 310 U. S. 530 _____________  11

Ziang Sung Wan v. U. S., 266 U. S. 1 _____ 11

Statutes Cited

New Jersey Rev. Stat. 1937, Sec. 2:216-9____ 14
United States Constitution, Amendment XIV 2

Authority Cited

President Hoover’s Commission on Law Ob­
servance and Enforcement 14



The National Association for the Advancement 
of Colored People is a membership organization 
which for forty years has dedicated itself to work­
ing for the broadening of democracy and securing 
equal justice under the Constitution and laws of 
the United States. The Association has more than 
thirty branches in the State of New Jersey which 
are joined together in a State Conference of 
Branches for the promotion of their program.

From time to time some justiciable issue is pre­
sented in the courts, upon the decision of which 
depends the evolution of democratic institutions 
for some vital area of our national life. The right 
of a state to secure the conviction of defendants 
upon confessions secured through duress is such 
an issue, and one in the presentation of which the 
Association has played an active role for many 
years. The instant case presents that issue. For 
these reasons the NAACP has requested and ob­
tained leave of this Court to present this brief as 
amicus curiae.

Statement of Interest of Amicus Curiae



Statement of the Questions Involved

1. Whether convictions secured by confessions 
obtained from defendants arrested without war­
rants and who were questioned almost continually 
for more than four days in the presence of many 
police officers, and who were not arraigned until 
after the confessions were secured, who were 
not advised of their constitutional rights and of 
their privilege to remain silent, were secured 
under such circumstances as to violate the Due 
Process clause of the Fourteenth Amendment of 
the Constitution of the United States?

2. Whether the verdict of guilty was against 
the weight of the evidence?



3

This is an appeal by writ of error to this Court 
to review a conviction for murder in the Court 
of Oyer and Terminer of the County of Mercer, 
New Jersey rendered on August 6, 1948 on indict­
ment No. 44 of the January Term of that Court, 
upon which the petit jury found a verdict of guilty 
and a sentence of death was imposed.

The writ of error was filed on August 20, 1948.

Statement of the Case

Statement of Facts

The defendants-appellants have been indicted, 
tried and convicted of the murder of one William 
Horner in Trenton on January 27, 1948. The six 
defendants are Negroes and the deceased was a 
white man. The record discloses that aside from 
a highly dubious alleged identification of three of 
the defendants, no evidence connecting any of 
these defendants with crime was produced by the 
State.

The record discloses further that four of the 
five confessions secured were secured by fear and 
intimidation during a long period of illegal deten­
tion, constant questioning, confrontation by al­
leged confederates and frequent accusations that 
statements were “ lies” . The arrests of the de­
fendants were illegal—flagrantly made without 
warrants although there was ample time to secure 
them.



4

A R G U M E N T

I.

The conviction of the defendants-appellants 
based upon the alleged confessions secured by 
force and duress, after illegal arrest, during a 
long period of detention is in violation of the 
14th Amendment to the United States Con­
stitution.

In reviewing the conviction of these appellants 
this Court is charged with grave responsibility. 
The Supreme Court in Chambers v. Florida, 309 
U. S. 227, reversing a conviction based on confes­
sions induced by fear, reemphasized the challeng­
ing role of our judiciary, stating:

“ Under our constitutional system, courts 
stand against any winds that blow as havens 
of refuge for those who might otherwise suf­
fer because they are helpless, weak, outnum­
bered, or because they are non-conforming 
victims of prejudice and public excitement. 
* * * No higher duty, no more solemn respon­
sibility rests upon this Court than that of 
translating into living law and maintain­
ing these constitutional shields deliberately 
planned and inscribed for the benefit of every 
human being subject to our constitution of 
whatever race, creed, or persuasion”  (p. 241).

The convictions before this Court for review 
are, like the convictions in the Chambers case, 
based upon confessions secured from poor, humble 
and ignorant persons in such manner as to make 
“ the constitutional requirement of due process of 
law a meaningless symbol” . 309 U. S. 240



5

In this record, the law enforcement officers and 
the county prosecutor frankly admit that these 
defendants were arrested without warrants, ille­
gally detained far beyond the forty-eight hour 
statutory limitation and subjected to repeated 
questioning, confrontation of supposed confed­
erates, awakened at all hours of the night and per­
mitted no aid, comfort or counsel during a period 
of 4 to 5 days. The police testified that they were 
aware that any detention of a person beyond 48 
hours without arraignment was illegal (R. 2438a). 
The purpose of the illegal detention was openly 
admitted by the Acting Captain of the police on 
the witness stand:

“ We was investigating a high misdemeanor 
and we had admissions by certain ones we had 
under arrest and implicated the others. That’s 
the reason we held them”  (R. 2437a).

At the trial it became apparent that the prose­
cutor and his assistants had been willing accom­
plices in this illegal detention, if not the chief ad­
vocates of it (R. 5758a).

This treatment was continued until the police 
and the prosecutor had decided that it had pro­
duced as much in the way of statements implicat­
ing the defendants in the crime as was humanly 
possible.

A  brief statement of the treatment by police and 
prosecutors which elicited these alleged confes­
sions establishes their illegality.

Collis English : Arrested without warrant Feb­
ruary 6, 1948 in his home at 8.30 p.m.



6

Questioned by three or more police officers who 
admitted they did not advise him of his right to 
remain silent (R. 457a, 497a, 536a).

Taken twice during night to Robbinsville at 
midnight and again at 5 a.m. (R. 506a, 521a).

Questioned on February 7, 8, 9 and 10 in pres­
ence of many officers, confronted with men who 
had made statements implicating him (R. 244a, 
245a, 972a, 1242a, 2452a, 2399a). Finally the 
police testified they “ told him what part he played 
in the crime”  and he confessed (R. 991a, 992a). 
After midnight on the 10th, he signed a confession. 
Arraigned on the 11th.

Ralph Cooper: Arrested without warrant on 
February 7 at 6.30 or 7.00 a.m. in nearby town, 
handcuffed and brought to police station (R. 524a, 
556a, 588a, 617a).

Questioned at length at all hours of day and 
night by many officers February 8, 9 and 10. Taken 
to store where crime was committed, confronted 
with alleged confederates (R. 2398a, 2401a, 2409a). 
February 10 made a “ satisfactory”  statement to 
police (R. 2409a). About 2.30 a.m. February 11 
signed statement (R. 2421a). Arraigned Feb­
ruary 11 (R. 2427a).

James Thorpe: Arrested February 7 at 5.00 
p.m. without a warrant (R. 4792a and 4793a).

Questioned and confronted with alleged con­
federates, 7th, 8th, 9th and 10th (R. 713a, 2400a, 
2401a, 2404a). About midnight February 10th 
signed statement (R. 2415a).



7

Police testified when asked by witness if state­
ment was true he said “ No”  and explained he was 
signing it because he would get less time (R. 
2415a).

Arraigned February 11. Visited by attorney 
February 12.

McKinley Forrest: Arrested without warrant 
on morning of February 7 at courthouse where he 
went to see what he thought would be Collis Eng­
lish’s trial on charge of auto theft (R. 1393a).

Questioned 7th and 8th and at 11.00 a.m. on 8th 
saw his sister for a few minutes (R. 1397a). Ques­
tioned and confronted with alleged confederates 
on 9th and 10th. Police testified on 10th he 
thought he heard his daughter’s voice, he sobbed 
and moaned and a doctor was called to provide a 
sedative (R. 2405a).

About midnight February 10th he signed his 
initials to statement (R. 2417a).

Arraigned February 11th in morning (R. 
2427a).

John McKenzie: Arrested without warrant
February 11th. Questioned and confronted by 
alleged confederates but refused to make state­
ment. Arraigned same day. Made statement on 
February 12th after being confronted with Mrs. 
Horner because of his fear of what Mrs. Horner 
might charge him wTith (R. 2428a).

Of these defendants only Horace Wilson, a ma­
ture man of 40, was able to withstand the pressure 
of the questioning. Even he signed a statement 
showing his utter confusion as to what days the 
police were asking him about. He told truthfully



8

of his employment on Monday and Tuesday a week 
after the murder (R. 3076a). At the trial he was 
able to prove that he had worked there at the time 
he mentioned and at another place on the days 
concerning which the police meant to get a state­
ment.

Under such circumstances, these alleged con­
fessions were clearly inadmissible having been se­
cured by fear produced by deliberate actions of 
the police and the prosecutor in flagrant violation 
of the due process of law. The Supreme Court 
has in many cases held that even in the absence 
of physical violence, confessions which are the 
product of fear, are inadmissible.

Chambers v. Florida, 309 U. S. 227;
Ashcraft v. Tennessee, 322 U. S. 143;
Malinski v. Neiv York, 324 U. S. 401.

In determining whether fear existed to such an 
extent as to result in a “ deprivation of his free 
choice to admit, to deny or to refuse to answer”  
(Lisenba v. Cal., 314 U. S. 219, 241) the Supreme 
Court has always considered “ the confessor’s 
strength or weakness, whether he was educated or 
illiterate, intelligent or moronic, well or ill, Avhite 
or Negro” . (Opinion of Mr. Justice J ack so n , 
Ashcraft v. Tennessee, 322 U. S. 143, 162, dissent­
ing from reversal of conviction of a white man.)

The Supreme Court has weighed as a factor in 
reaching its decisions on the admissibility of con­
fessions the following characteristics of defen­
dants :

that they were “ ignorant, young, colored ten­
ant farmers”  Chambers v. Florida, 309 U. S. 
227, 238.



9

that they were ‘ ‘ interrogated by men who held 
their very lives—so far as these ignorant 
petitioners could know—in the balance”  id. 
p. 240.
that he was “ an ignorant Negro” — Ward v. 
Texas, 316 U. S. 547, 555.
that they were “ ignorant and untutored per­
sons in whose minds the power of officers was 
greatly magnified” . Lisenba v. California, 
314 U. S. 219, 239, 240.

Therefore this Court in determining the effect 
upon the defendants of the actions of the police 
and the prosecutor, must consider the prisoners 
as individuals. All were Negroes. Three were 
born and raised in Georgia, one in South Carolina 
and one in North Carolina Only one was a native 
of Trenton. Two of the defendants were com­
pletely unable to read or write (R. 5252a, 2935a); 
the others had little schooling. Less than one 
month before his arrest James Thorpe had one 
arm amputated (R. 4791a).

These are then the poor, the ignorant, the help­
less, the weak and outnumbered for whom consti­
tutional protections stand as a shield against that 
exploitation which would otherwise be inevitable 
under any system of government.

It is noteworthy that the outstanding Supreme 
Court decisions invoking the protections of the 
due process clause against convictions secured by 
involuntary confessions have dealt almost exclu­
sively with cases in which the defendants came 
from the class to which these defendants also be­
long. Early decisions dealt with more violent 
forms of duress, yet, as Mr. Justice F ran k fu rter



V
10

said in his concurring opinion in Haley v. Ohio, 
332 IT. S. 596, 92 L. ed. Adv. Op. 239:

“ It would disregard standards that we 
cherish as part of our faith in the strength 
and well-being of a rational, civilized society 
to hold that a confession is ‘ voluntary’ 
simply because the confession is the product 
of a sentient choice. ‘ Conduct under duress 
involves a choice’, Union P. E. Co. v. Public 
Service Commission, 248 U. S. 67, 70, 63 L. ed. 
131,132, 39 S. Ct. 24, P u r . 1919B 315, and con­
duct devoid of physical pressure but not 
leaving a free exercise of choice is the product 
of duress as much so as choice reflecting physi­
cal eontraint”  (p. 246).

Mr. Justice F r a n k f u r t e r  recognized the dif­
ficulty which faces a court reviewing a record such 
as this in the absence of physical or intellectual 
weights and measure “ by which judicial judg­
ment can determine when pressures in securing 
a conviction reach the coercive intensity that calls 
for the exclusion of a statement so secured” . 92 
L. ed. Adv. Op. 246. Even in the absence of such 
weights and measures, however, the Supreme 
Coui’t in Ward v. Texas, 316 U. S. 547 clearly 
stated the standards by which it judged confes­
sions to be illegally secured:

“ This Court has set aside convictions based 
upon confessions extorted from ignorant per­
sons who have been subjected to persistent and 
protracted questioning, or who have been 
threatened with mob violence or who have 
been unlawfully held incommunicado Avithout 
advice of friends or counsel, or who ha\Te been 
taken at night to lonely and isolated places for 
questioning. Any one of these grounds would 
be sufficient cause for reversal”  (p. 555).



11

citing:
Ziang Sung Wan v. United States, 266 

U. S. 1, 14;

Brown v. Mississippi, 297 U. S. 278;

Chambers v. Florida, 309 U. S. 227, 241;

Canty v. Alabama, 309 U. S. 629;

White v. Texas, 310 U. S. 530;

Lomax v. Texas, 313 U. S. 544;

Vernon v. Alabama, 313 U. S. 547.

It is clear that the alleged confessions of English, 
Thorpe, Forrest and Cooper were secured by two 
of the means proscribed in the Ward case—per­
sistent and protracted questioning by police and 
unlawful detention incommunicado.

Remembering that these defendants were sub­
jected to protracted interrogations lasting into the 
early hours of the morning while confined for four 
days and questioned without formal charge, that 
two were arrested without warrants in a small 
farm tenant house, the decision of the Supreme 
Court in Chambers v. Florida, 309 U. S. 227, con­
tains a description of “ lawless means”  which 
most accurately describes the methods by which 
these confessions were secured:

“ For five days petitioners were subjected to 
interrogations culminating in Saturday’s 
(May 20th) all night examination. Over a 
period of five days they steadily refused to 
confess and disclaimed any guilt. The very 
circumstances surrounding their confinement 
and their questioning without any formal 
charges having been brought, were such as to



12

fill petitioners with terror and frightful mis­
givings. Some were practical strangers in 
the community; three were arrested in a one- 
room farm tenant house which was their home; 
the haunting fear of mob violence was around 
them in an atmosphere charged with excite­
ment and public indignation from virtually the 
moment of their arrest until their eventual 
confessions, they never knew just when any­
one would be called back to the fourth floor 
room and there, surrounded by his accusors 
and others, interrogated by men who held 
their very lives—so far as these ignorant peti­
tioners could know—in the balance. The re­
jection of petitioner Woodward’s first ‘ con­
fession’, given in the early hours of Sunday 
morning, because it was found wanting, 
demonstrates the relentless tenacity which 
‘ broke’ petitioners’ will and rendered them 
helpless to resist their accusors further”  (p. 
240).

That the petitioners in the Chambers case were 
ignorant and were Negroes, added weight to the 
evidence that the confessions were involuntary. 
So here the methods used by the police considered 
in the light of the humble position of the defen­
dants gives added weight to the charge that these 
confessions were involuntary, produced by fear of 
the power of the police.

Of this entire procedure the Supreme Court 
said in the Chambers case “ To permit human lives 
to be forfeited upon confessions thus obtained 
would make of the constitutional requirements of 
due process of law a meaningless symbol”  (p. 
242).

More recently in Malinski v. New York, 324 U. S. 
401, the Supreme Court viewed with suspicion a



13

confession where the illegal detention was of 
shorter duration—3 days—and the questioning 
was not particularly protracted, yet the purpose of 
the illegal detention and the confrontation of Ma- 
linski with his alleged confederates was precisely 
to create a state of mind in which a confession 
would be secured. Adding to that suspicion, the 
statement of the prosecutor in his summation that 
“  ‘ Malinski was not hard to break’ ; that ‘ he did 
not care what he did, he knew the cops were going 
to break him down’ ”  (p. 407), the Supreme Court 
concluded “ If we take the prosecutor at his word, 
the confession of October 23 was the product o f 
fear—one on which we could not permit a person 
to stand convicted of a crime”  (p. 407).

Again there is a striking similarity to the Tren­
ton case for the prosecutor there in his summation 
spelled out the psychological terror by which these 
confessions were induced—by which these men 
were “ broken” :

“ We had a lead on the murder. The police 
were on the move to protect your lives. * * * 
They worked four continuous nights, no sleep, 
* * * They got the lead * * * (R. 5757a).
“ Remember the police now had the wedge in 
this case. Why, it ’s common sense; what hap­
pens ; You have one man who has made an ad­
mission of his participation in the crime, you 
confront him with another one, and you try 
to show him you know about this, that he was 
in it. What happened? Cooper broke. So 
you use the two to confront a third man. So 
they figure these two men have admited their 
participation, I guess I ’m next. And that’s 
the way the six of them—except that McKen­
zie did not come in until much later”  (R. 
5758a).



14

Again, in the Haley ease, supra, Mr. Justice 
F r a n k f u r t e r ' s concurring opinion gives weight to 
the fact that the securing of a confession “ was the 
very purpose”  of the police procedure, stating:

“ Of course, the police meant to exercise pres­
sures upon Haley to make him talk”  (p. 246).

This Court is called upon to invoke on behalf of 
these helpless defendants the constitutional pro­
tection intended to prevent the police from “ using 
private secret custody of either man or child as 
a device for wringing confession from them.”  
Haley v. Ohio, supra, p. 243. Although during the 
conduct of the trial every effort was made to im­
press upon the jury the need to uphold the police 
in the methods used in order to maintain respect 
for law enforcement, no such consideration is pos­
sible or necessary as a justification for methods 
proscribed by the constitution.

Our society condemns the secret protracted 
questioning of suspects by the police. President 
Hoover’s National Commission on Law Observance 
and Enforcement found that the abuse of police 
power under such circumstances was actual and 
extensive, but even more important the report of 
that Commission found that the tolerance of such 
methods was not necessary nor desirable for the 
suppression of crime. As the Supreme Court said 
in McNahh v. U. S., 318 U. S. 332, there exists an 
impressive list of state statutes requiring that ar­
rested persons be promptly taken before the com­
mitting authority, including New Jersey Rev. Stat. 
1937, Sec. 2 :216-9. Analyzing the pui'pose of this 
legislation, the Supreme Court found it inherent



15

in a democratic society, which respects the dignity 
of all men, as a safeguard against the misuse of 
the law enforcement process, and there said:

“ Zeal in tracking down crime is not in itself 
an assurance of soberness of judgment. Dis­
interestedness in law enforcement does not 
alone prevent disregard of cherished liberties. 
Experience has therefore counseled that safe­
guards must be provided against the dangers 
of the overzealous as well as the despotic. 
The lawful instruments of the criminal law 
cannot be entrusted to a single functionary.
* * * Legislation such as this, requiring that 
the police must with reasonable promptness 
show7 legal cause for detaining arrested per­
sons, constitutes an important safeguard— 
not only in assuring protection for the inno­
cent but also in securing conviction of the 
guilty by methods that commend themselves 
to a progressive and self-confident society.
* * * It reflects not a sentimental but a sturdy 
view of law enforcement. It outlaws easy 
but self-defeating ways in which brutality is 
substituted for brains as an instrument of 
crime detection”  (p. 344).

The violation of due process here is so flagrant 
that the admission of these fear induced confes­
sions was a clear denial of due process of law call­
ing for a reversal of the conviction by this Court.

II.

The verdict is against the weight of the 
evidence.

The sixteen volume record in this case is a 
monument to confusion—not because the issues 
are unclear or the testimony technical, but because 
the simple, untutored defendants were subjected to



16

“ tricky”  cross examination and testimony of 
every witness was so lengthened and repetitious as 
to be confusing even on second and third reading.

Throughout the record there shine two aspects 
of the trial—one that the Negro in Trenton was 
treated as he would have been in the South—and 
the other that the trial was perverted from a 
search for the truth into a search for support for 
the prestige of the police of Trenton.

The prosecution has sought to make much of the 
fact that these men did not insist upon constitu­
tional rights at the time of their arrest and illegal 
detention. Speaking of the police invasion of Wil­
son’s home for the purpose of arresting Wilson 
and Cooper without a warrant the prosecutor asks 
why both these men were found in bed in the early 
hours of the morning and he states “ An innocent 
man doesn’t react that way. An innocent man 
would have stood up and said ‘ What right have 
you to be here’ ”  (R. 5741a). This Court should 
remember that these were second class citizens. 
These were not persons who from their infancy 
have been taught their right to stand up as an 
equal of a white man—much less white policemen.

Alleged “ confessions’ aside, the evidence 
amounts to nothing. No jury could be free of a 
reasonable doubt.

Without the confessions, the state’s case is as 
follows:

Elisabeth McGuire Horner ivho lived with de­
ceased :

On January 16 a Negro went into the second­
hand store and looked at a mattress. The store



17

is in a neighborhood immediately contiguous to 
Ihe main “ black ghetto”  in which Trenton’s 
Negroes are forced to live. On January 20, two 
other Negroes came in and paid $2.00 deposit on a 
mattress and got a receipt (E. 237a, 239a).

On January 26, two Negroes came back and one 
said he wanted the deposit back. The Negro identi­
fied as McKinley Forrest signed a receipt (R. 
241a).

On January 27 three Negroes came in to the 
store and two went back to see the mattress again, 
and two went into the back room and one remained 
in front with the witness. This witness was hit 
on the head and lost consciousness and some time 
later the body of the deceased was found (R. 247a- 
252a). In his pocket was a roll of bills containing 
$1,570 (R. 453a).

Frank Eldracher:

His car was parked near the store. He saw two 
Negroes, one tall and dark, one short and light, 
come out of store calmly, close door, walk down 
the street. Then door opened and Elizabeth Mc­
Guire Horner called for help—with blood on her 
face (R. 359a).

Police Officer Dennis:

Found two bottles of “ step up”  in store—one 
broken, one near body (R. 351a and 353a).

A. Kokenakis:

Has store in Negro neighborhood; sold two 
bottles of “ step up”  to Negroes the day of the 
murder (R. 440a-446a).



18

Two people, according to this evidence saw men 
who might have been the assailants. But only one 
identified any of them, and that identification was 
most flimsy. For although Elizabeth McGuire 
Horner claimed to have seen two Negro men con­
cerned with the murder on two successive days, 
yet two weeks after the murder, when she saw the 
defendants at the police station, she was unable to 
identify them (R. 277a). She testified she later 
recognized four of the defendants from photo­
graphs furnished by Police (R. 278a-283a). At the 
trial however, she identified one defendant (Ralph 
Cooper) as the man who came in to look at a mat­
tress January 16, two defendants (McKinley For­
rest and Collis English) as having come in three 
times, once to pay a deposit, six days later to get 
the deposit back, without question, and the third 
time the day of the murder, and the fourth de­
fendant (Hoi’ace Wilson) as having come in on 
the day of the murder and discussed with her the 
purchase of a stove. Having had such knowledge 
of the men she could not identify them face to 
face shortly after their arrest. Her memory had 
to be refreshed with photographs of the accused 
men taken by the police. Surely this is a most 
unsatisfactory—in fact incredible—identification. 
Particular doubt is cast upon the identification of 
McKinley Forrest by the fact that Mrs. Horner 
definitely said he was the one who signed a re­
ceipt in a false name. There was uncontroverted 
evidence that McKinley Forrest is illiterate, un­
able even to sign his own name (R. 5252a).

The other witness, who saw two Negroes come 
out of the store, Mr. Eldracher, did not identify 
any of the defendants as the men he saw.



19

Even assuming that the two bottles of “ step 
up”  had been connected with the crime, the woman 
who sold two bottles of “ step up”  to two Negroes 
did not recognize any of the defendants and did 
not connect them in any way with the crime.

John McKenzie was not connected with the 
crime by any witness and Ralph Cooper’s only 
connection with the scene of the crime was Eliza­
beth McGuire Horner’s testimony that ten days 
before the crime he looked at a mattress in the 
store.

That any person should lose his life in the elec­
tric chair by such flimsy evidence would strike a 
blow at the roots of justice. That six Negroes 
should die when only the most questionable iden­
tification connecting them with the crime has 
been made of three intensifies the injustice and 
heightens the danger to justice.

Conclusion

It is therefore respectfully submitted 
that the conviction of these defendants 
in the Court below should be reversed.

H erbert H . T ate , 
Attorney for National Association 
for the Advancement of Colored 
People as Amicus Curiae.

T hurgood M a r sh a ll ,
(of the Maryland Bar)

M arian  W y n n  P erry ,
(of the New York Bar)

Of Counsel.



L a w y e r s  P ress, I nc., 165 William St., N. Y. C. 7; ’Phone: BEekman 3-2300