- tloojs
- Apr 6, 2021
- 1 min read
When the website launched back in January, I was advised that I needed a “Facebook” page to associate with my practice. As I already had a personal page, I was told that it was easy to make a business page. I made a mental note to get around to looking up the process. Today, I finally got that “round tuit” and it turns out that is is fairly easy to set up a Facebook Page for a business. Having done so, it magically added posts for some of the older Virginia Appellate Lawyer Blog Posts, but (so far) not the more recent ones. Maybe it takes time for them to migrate?
When people talk about the “trial of the century” – the acquittal of Orenthal James Simpson of the murders of Nicole Simpson and Ronald Goldman, eventually the topic will turn to the subsequent civil trial in which O.J. was found to be responsible for Goldman’s death. How, someone will ask, can the results of both trials be correct? The answer, of course, is that criminal and civil trials have different standards of proof – beyond a reasonable doubt vs. a mere preponderance of the evidence. What many do not know is that around the same time as the O.J. trial, there was another civil action for wrongful death which resulted in a verdict that called into question a prior determination that a different person was guilty of causing the death – arguably one of the three most significant deaths in the 20th century alongside that of President John F. Kennedy and his brother Senator Robert F. Kennedy – the assassination of Dr. Martin Luther King, Jr.
What follows, in italics, is accepted as an accurate recitation of the known facts of the assassination of Dr. Martin Luther King, Jr. by the State of Tennessee and its courts, the United States Congress, the federal courts of the United States, and the United States Department of Justice, all of which have conducted numerous inquiries and reviews of the evidence over the last five decades. After the recitation of those facts, this essay will recount, in bold face, an entirely different version of the events which allege a conspiracy reaching into the highest levels of government to assassinate Dr. King to silence his dissent against the continued involvement of the United States in the Viet Nam War. This is the version that has been maintained by Dr. King’s family and many others over the same period and which was accepted, at least in part, by a civil jury which awarded nominal damages to the King family in a suit against one of the alleged conspirators. The conclusion will discuss not just why both versions are entitled to be considered seriously under the law as “correct,” but also why only one of those versions should be consider to be representative of the proper role of the judicial system with in the Rule of Law.
The Official Version of the Assassination of Dr. Martin Luther King, Jr.
Just after 6 PM CST on April 4, 1968, a single .30-06 bullet fired from a Remington Model 760 rifle struck Dr. Martin Luther King, Jr. at a downward angle on the right side of his face. Dr. King had been standing at the railing of the balcony walkway outside room 306 of the Lorraine Motel. The bullet broke Dr. King’s jaw, severed his jugular vein and damaged several vertebrae as it traveled down his upper spine before lodging in his shoulder. Although King was rushed to St. Joseph’s Hospital where medical staff attempted to revive him with open chest cardiopulmonary massage, he was pronounced dead at 7:05 PM CST. However, the damage to King’s spine and the loss of blood would probably have rendered King both a quadriplegic with limited brain function even if he had survived.
Shortly after the shot was fired, witnesses saw a man, later identified as James Earl Ray, fleeing from a rooming house across the street from the Lorraine Motel. Ray had been renting a room in the boarding house under an assumed name. Police found a package dumped close to the site that included a Remington Model 760 rifle and binoculars, both with Ray’s fingerprints. It was later determined that Ray had purchased the rifle six days prior to the assassination using a different false name.
Ray, a career criminal who was first convicted of a felony at age 19, was at the time of the assassination a fugitive, having escaped from the Missouri State Penitentiary where he was serving a 20-year sentence for armed robbery. Following his escape, Ray was able to travel freely through the US, Canada, and Mexico, adopting various alias and pursuing various schemes and criminal enterprises, including a short-lived attempt to break into the rapidly growing industry in pornographic movies.
Early in 1968, Ray, became interested in the presidential campaign of segregationist George Wallace. Wallace, the former Democratic Governor of Alabama, had left the party to run for President on the far-right American Independent Party ticket. Ray was a racist and was quickly drawn to Wallace’s segregationist platform. He spent much of his time in Los Angeles volunteering at the Wallace campaign headquarters in North Hollywood.
In March of 1968, Ray underwent facial reconstruction surgery to change his appearance. Shortly thereafter he left California for Atlanta where he began to conduct surveillance of Dr. King. Ray drove the Birmingham, Alabama where he bought the rifle, a telescopic sight, and ammunition using a false name, and returned to Atlanta. There, Ray learned of Dr. King’s planned trip to Memphis on April 1. It was widely known that Dr. King and his entourage stayed at the Lorraine Motel and that King and Dr. Ralph Abernathy regularly stayed in Room 306. Ray booked a room at the boarding house opposite the motel with a direct view of room 306.
After the assassination, Ray drove through the night, arriving back in Atlanta early on the morning of April 5. From Atlanta, he traveled to Canada where he obtained a false passport and traveled to England. Over the next two months, Ray traveled to Portugal and back as he planned his eventual escape to Africa where he planned to live in Rhodesia or South Africa. When Ray attempted to board a flight to Belgium on the first leg of his trip, he was identified by British customs agents, detained, and eventually deported to the United States where he was charged with King’s murder under Tennessee state law. Ray agreed to a plea bargain that required him to allocute to the crime. After entering his plea, however, Ray subsequently recanted the confession. While not denying that he was involved in the assassination of Dr. King, Ray alluded to a co-actor, identified only as “Raul”, whom Ray claimed was the actual assassin. However, Ray never provided any additional details regarding Raul or otherwise provided any evidence that he had not acted alone.
The Alternative Version of the Assassination of the Dr. Martin Luther King, Jr.
There are numerous conspiracy theories surrounding the assassination of Dr. Martin Luther King. The most prominent of these is the belief promoted by King’s widow, Coretta Scott King, and King’s children. According to this theory, Ray was not the assassin, but was framed by the elements of the United States government acting on the direct orders of President Lyndon Johnson. However, Dr. King was not targeted because of his work for civil rights – which Johnson generally supported – but because of his more recent public opposition to the war in Viet Nam.
From the outset, the King family and its closest associates believe that the Memphis Police Department failed to conduct a proper investigation of the murder. As the investigation quickly focused on Ray as the most likely suspect, the King family asserted that the authorities refused to consider the possibility that Ray acted alone. After Ray recanted his confession, the King family actively pursued Ray’s allegation that “Raul” been the actual assassin, but also concluded that “Raul” was an operative of the Central Intelligence Agency or the Federal Bureau of Investigation.
In 1993, 25 years after the assassination, Loyd Jowers, who had owned a restaurant near the Lorraine Motel, claimed that he had been closely associated with organized crime figures in Memphis and that with their assistance he hired a Memphis police lieutenant to assassinate Dr. King. Jowers subsequently expanded on his allegations by claiming that if the assassin had not been successful or backed out of the conspiracy, a “special forces team” from the United States Army was in Memphis and would have completed the assassination. Jowers further alleged that the decision to assassinate Dr. King had been authorized by President Lyndon Johnson upon the recommendation of the CIA, the FBI, and the Pentagon because Dr. King’s opposition to continuing the Viet Nam War was having a significant impact on public opinion.
Believing that Jowers was the connection between the assassination and the United States government because the CIA has worked extensively with organized crime in the 1960s, the King Family brought a civil suit against Jowers for wrongful death in 1998. In the suit, witnesses were called to testify to various aspects of the alleged conspiracy that connected the government to the Memphis underworld and then to Jowers. The jury returned a verdict in favor of the King family, awarding nominal damages of $100, as has been requested by the family’s attorney, William F. Pepper. Based on this verdict, many media stories reported that the “conspiracy” was now a proven “fact” and that the jury verdict was more reliable than Ray’s conviction, which was based only on his guilty plea and allocution. Since the 1998 verdict, the King family and many others have insisted that Ray, who had died that year, was innocent.
Let’s first address whether the law should permit two proceedings addressing the same incident to have contradictory outcomes. It is, after all, not possible for James Earl Ray to have been guilty of assassinating Dr. King if Loyd Jowers was also guilty of participating in a conspiracy to assassinate Dr. King. And, in fact, it is not possible, but not because one verdict must be right and the other wrong. Rather, it is not possible for the simple reason that James Earl Ray was found guilty of the murder, and Loyd Jowers was not found guilty of participating in a conspiracy to assassinate Dr. King.
When James Earl Ray entered a plea of guilty to the charge of first-degree murder of Dr. Martin Luther King, Jr. in a criminal proceeding (not a trial), his guilt of that offense was established as a matter of law and that judgment has never been overturned. Ray’s guilty plea and his allocution, as well as the evidence that the State of Tennessee had arrayed against him, establish that James Earl Ray is guilty of the murder of Dr. King as a matter of law and beyond a reasonable doubt. Q.E.D.
Civil trials, such as the one brought against Jowers by the King family, do not result in findings of guilt or innocence (neither do criminal trials, which deal result in verdicts of guilty or not guilty – rather than guilty or innocent – “not guilty” really means “not proven,” a verdict once used in Scottish courts). Rather, civil trials result in a determination of liability. In the 1998 civil suit, a jury was asked to determine whether the evidence presented established that Jowers was a participant in a conspiracy to assassinate Dr. King. To make that finding, the jury was required to consider only whether the evidence presented in that trial made it “more likely than not” that Jowers was liable for the death of Dr. King because of his actions. More likely that not means simply that the credible evidence received at trial is just slightly more that equal on the question of Jowers liability. Any realistic review of the evidence would not merely support the jury’s verdict but conclude that the evidence of Jowers’ liability was overwhelming.
Thus, there is no conflict between the result of the criminal proceeding, wherein James Earl Ray was found guilty of the murder of Dr. King, and the civil trial where Jowers was found liable for participating in a conspiracy to murder Dr. King and frame Ray for the crime. Two different proceedings in different spheres of the judicial system with two different standards of proof.
But if the evidence against Jowers was truly overwhelming, does that mean Ray was wrongfully convicted? No, for the simple reason that the evidence against Jowers was overwhelming not despite the evidence against James Earl Ray, but precisely because that evidence was never presented in the civil suit against Jowers – or was only presented with the intention of denigrating its veracity.
If the evidence from the civil trial were to be viewed in the context of a criminal trial, it likely would have been found insufficient to warrant submitting the case the jury or even requiring the defense to put on a case. Why? Because the civil trial was in everything but name a sham, perpetrated by Peppers and Jowers for the express purpose of returning a verdict against Jowers. Let’s start with the fact that Peppers, the King family’s attorney, was a long-time promoter of Ray’s innocence and had even produced a “mock trial” for the HBO network in which Ray acquitted of the murder of Dr. King. Attorneys reviewing the film openly derided the nonsensical presentation of “evidence,” which was entirely one-sided.
Nonetheless, excerpts of this “trial” were permitted to be played in the civil case against Jowers. If you are wondering how that could be allowed, the answer is simply that Jowers did not object to the admission of this “evidence.” In fact, Jowers “defense” in the civil suit was nonexistent, permitting the plaintiffs to introduce statements of multiple levels of hearsay, opinions offered without any foundation, and testimony of “experts” without voir dire. Throughout the trial, Jowers’ counsel asked few questions of witnesses on cross-examination, and when he did, it was usually to allow the witness to repeat a statement from the direct testimony. Jowers did not testify, and the inconsistencies that had been exposed in his prior statements were never presented to the jury.
The trial, which lasted four weeks, was so obviously one-sided that the trial judge rarely even raised an eyebrow as the defense allowed obvious violations of the rules of evidence to go by without an objection. The judge became so disinterested in the proceedings that he was seen to fall asleep at times (as did several of the jurors).
Jowers initially claimed that he could produce two witnesses, his sisters who had worked at his restaurant, to corroborate his claims, and initially they indicated that they could do so. However, by the time of the civil suit, both had recanted their statements of support (which never actually corroborated any of Jowers claims) after it was revealed that one of the sisters had agreed to fabricate testimony supporting Jowers in exchange for a payment from money Jowers expected to receive for a book or movie deal.
In a criminal trial with an even minimally competent defense attorney, virtually none of the “evidence” introduced in the civil trial would have been permitted. Moreover, those witnesses whose testimony would have been permitted would have been subject to cross-examination that would have not only impeached their testimony but would have in most cases shown that they had a vested interest in the outcome.
The King family continues to maintain that Ray was innocent and that the verdict in the civil suit establishes that the Dr. King was assassinated as part of a conspiracy involving the US Government. Jowers died in 2000, never having received any offers for a book or movie deal. William Peppers, now 83, has also supported claims that Sirhan Sirhan was not guilty of the assassination of Robert F. Kennedy, that the 9/11 terrorist attack on the World Trade Center and the Pentagon was a false flag operation of the U.S. Government, and that President George W. Bush should be tried for War Crimes.
Under the law, Ray and only Ray, is guilty of the murder of Dr. Martin Luther King, Jr. It is also true that this fact does not affirmatively prove or disprove the existence of a conspiracy to commit that murder. In fact, though never tested by a court in either a criminal or civil trial, there is good reason to believe that Ray did not act alone. During the initial investigation, authorities considered the possibility that Ray received help from family members or friends. Ray’s ability to move across international borders – admittedly an easier task at the time than in the present day – his obtaining financial resources to facilitate his travels, and his ability to obtain false travel documents all suggest that he must have had some assistance both before and after the assassination. However, it is also true that Ray had lived most of his adult life on the run, with an almost preternatural ability to assume false identities and gain the trust of unwitting accomplices.
What we can say is that the law – that is, the orderly process of determining the status of persons and events in judicial processes that are conducted fairly and competently – establishes Ray’s guilt, but only confirms the allegation of a conspiracy which contradicts that fact because the law also requires that state to remain neutral in overseeing those processes. If the Jowers trial was not unique in America jurisprudence, it certainly was well outside the norm of what would be considered an adversarial process to reach the truth.
Should the judge have intervened to stop the Jowers trial? No, such an intervention would have been improper. But it would likewise have been improper for the judges who oversaw the many proceedings in which Ray sought to withdraw his plea and obtain a trial to have overturned the conviction based on the evidence before them, which never approached the level necessary to call into doubt Ray’s guilt.
Our system of justice permits both the sham civil trial and the repeated efforts to overturn Ray’s guilty plea to go forward because the alternative – restricting access to the courts only for “legitimate” claims would require the court to act as a gatekeeper, not merely determiner, of who was entitled to seek justice.
- tloojs
- Apr 2, 2021
- 6 min read
When I started this “Blawg” I indicated that I would leave the analysis of Supreme Court of Virginia Opinions to my friend Steve Emmert, and I have mostly done so. I did say, however, that I would occasionally comment on cases of particular interest or import, and I think today’s decision in City of Charlottesville v. Payne, the litigation over Charlottesville’s decision to remove statues from and rename parks dedicated to Generals Lee and Jackson is just such an occasion. I have already seen more than few comments on news websites condemning the decision as judicial activism, which it is most certainly not. My commentary will be directed to those who believe that it is and, hopefully, I can explain to those who are willing to receive such explanation and stumble across my words, why.
You may have noticed that I have not said what the Court decided or how it reached that decision – and in fact, I do not intend to do so. By now you have undoubtedly read news stories reporting the result – and fumed or cheered. As my stated purpose is not to defend the decision, but to explain why it is not a case of judicial activism, the Court’s decision is, in fact, irrelevant.
The phrase judicial activism appears to have been coined by the American historian Arthur M. Schlesinger, Jr., in a 1947 article in Fortune. For Schlesinger, judicial activism was simply the willingness of a judge or multi-judge court to use constitutional review to invalidate legislative or executive action. In Schlesinger’s view, this was neither a good thing nor a bad thing, it was simple the jurisprudential method of certain judges.
As a form of jurisprudence, activism is simply the antonym of restraint. It is not pejorative, and studies suggest that it does not have a consistent political valence. Both liberal and conservative judges may be activist in this sense, though conservative judges have been more likely to invalidate federal laws and liberals more likely to strike down those of the states.
I will not, however, confine my discussion to this academic definition. Rather, it is my contention that judicial activism as used in modern discourse has taken on a broader, and decidedly pejorative, meaning and is almost always associated with the actions of judges viewed to on the left end of the political spectrum, and more frequently against judges of known conservative views when their ruling run contrary to accept conservative dogma. In a sense, the term as come to be synonymous with the accusation that a court is usurping the proper function of the elected branches by “legislating from the bench.” It is this definition that I have seen applied to Payne (though Payne is the correct short form of the case, I predict that the decision will be popular called City of Charlottesville going forward).
So, how is it that Payne is not judicial activism in this sense? That is easy to explain. To legislate from the bench, a Court must say that a statute does not say what it plainly does, but something else entirely. In Payne, the unanimous court (a point that I will come to shortly) does the exact opposite. The Court says that Code §§ 15.2-1812 and -1812.1 must be read exactly as written by the General Assembly and interpreted using the rules of construction that were and are well known to the legislature. Those rules require the courts to give the words of statutes: 1) their plain and ordinary meaning, 2) to add nothing to those words nor take any words out, and 3) to not consider anything but the statute (and related statutes, for example definitional sections. There is also one other particularly important rule: all statutes are presumed to be prospectively applied, that is only to actions that occur after their enactment, and not retrospectively unless there is express language in the statute which directs otherwise.
This last rule is what makes Payne decidedly not judicial activism. The relevant code sections were enacted in 1997. Prior to that date, there was no specific legislation that authorized the building of war monuments by local governments and likewise no statute about removing such monuments by cities (there was a different statute that applied to counties, but that statute does not apply because the locality here is a city). In drafting and passing this new legislation, the General Assembly grants the authority to erect such monuments and thereafter not to disturb them. In doing so, all the language of the statutes clearly speaks to future actions by local governments. Nowhere in the statutes is anything said about monuments existing prior to the enactment of the new law.
The principal accusation made by those asserting that this interpretation amounts to judicial activism assert that regardless of the absence of language of retrospective application in the legislation, because it was proposed and passed by a legislature control by the Republican Party and signed into law by a Republican governor, the clear intent was to have the law apply to existing monuments honoring the military heroes and fallen martyrs of all wars (but especially the War Against Northern Aggression). And therein lies the rub – even assuming – even conceding – that this was the intent of the proponents of the legislation, courts are not permitted to interpret laws based on the intention of the those who drafted them, but only on what they wrote.
While the Court concedes that the statute “could be clearer,” there is simply no question that had the legislature intended for the new code to apply to existing statutes, monuments, and the like, it could have done so by adding language that made the law apply retrospectively. Although the statute does not expressly say that it applies only to new monuments, there is language which clearly contemplates that the localities “may” do so, not that they “already have done so.”
Now let me turn to an issue alluded to earlier – that this is a unanimous decision. The opinion was authored by Justice Bernard Goodwyn, and several of the comments criticizing the opinion are directed at Justice Goodwyn’s reputation as a liberal (and not a few of these make veiled or even direct references to his race being a factor in the result of “his” opinion). But it is not “his” opinion. It is the opinion of all seven active members of the Court.
If one were foolhardy enough to engage in the labeling of members of the Court by political persuasion, it would be fair to say that Justice Goodwyn is of a liberal mindset as is Justice Cleo Powell; if there is a centrist member of the Court, it is Justice William C. Mims; but the remaining four Justices are most decidedly conservative in background and judicial temperament. Chief Justice Donald Lemons, and Justices Kelsey, McCullough and Chafin have impeccable credentials as jurists with a restraint as their watchword. The idea that somehow all four of these Justices would join this opinion if it had any taint of activism or judicial legislating is risible. Quite the contrary, I am persuaded that they joined the opinion precisely because it used traditional, and restrained, rules of statutory interpretation to apply the law as written.
Had an opinion be drafted reversing the judgment in Payne on the ground that “removal of the statues is the right thing to do, the law be damned,” that would have been judicial activism and I seriously doubt any member of the Court would have even considered drafting such an opinion.
So, you may not like the result, but if so, do not accuse the Court of activism or “intellectual dishonesty.” If you want someone to blame, go to the archives and look up the names of the legislators who proposed the legislation (though they most certainly didn’t draft it – a mundane task that is always left to staff), review its history in the legislature. You will likely find that the legislation was not studied intently – I would be willing to wager than the majority of those who vote for and against it never bothered to read its text. Unlike the Court, they were content to “assume” the law said what its proponents intended it to, which I concede was to protect all monuments on public ground honoring the participants in America’s wars – but especially the Civil War. But the Court cannot assume, it must read the law and it must apply it as written – even when badly written.