"Manslaughter, with Leniency"

Seven-to-five for acquittal.

That was how the jury, 30 minutes out of its box in the Honolulu courtroom, stood on its first ballot. Of the five Americans, three Chinese, a Dane, a German, a Portuguese and a Hawaiian, only a minority were for convicting Lieut. Thomas Hedges Massie, U. S. N., Mrs. Granville Roland Fortescue, his mother-in-law, and Seamen Lord and Jones for the second-degree murder of Joseph Kahahawai Jr. After that, locked in around the long table with Foreman John Stone at its head, the jurors settled down to harangue one another on Hawaii's most sensational case.

Under the law they had to trust their recollection on all the things that had been said in court during the three-week trial. They had heard Prosecutor Kelley's witnesses give an account of Kahahawai's kidnapping and the discovery of his corpse. They had listened to Lieut. Massie's long story of how his wife had been ravished, its effect on his mind, his success in extorting a confession from Kahahawai just before, with a revolver in his hand, his mind went blank. Pretty young Thalia Fortescue Massie had dramatically corroborated her husband's tale. Alienists had sworn that Lieut. Massie was insane at the time; others, that he was not. What rang loudest in the jury's ears, though, were the last things they had heard, the lawyers' summations.

Clarence Darrow, in what he said would be his last big case, took more than four hours to plead for acquittal. He swung his long arms, glared, shouted, coaxed, sentimentalized, used all his courtroom tricks before sinking back into his chair an exhausted old man. His argument was that the defendants had been trapped by Fate in a chain of sorrowful circumstances beyond their control.

"My God!" he exclaimed. "Am I dreaming? . . . Can you imagine any greater calamity which could have befallen this family? ... If this wife and mother, this husband and these faithful boys go to the penitentiary, it won't be the first time the penitentiary has been sanctified by its inmates. But if they go, it would place such a blot on the fair name of this island that all the Pacific Ocean could not wash it away. . . . Every instinct that moves human beings is with us in this case. . . . Lieut. Massie is not a small man, except in size. There is no cowardice, no fear in him. . . . What's that other defendant's name? Oh, yes, Lord. It almost popped my mind. I don't think it's been mentioned here more than once. I remember Jones because he got drunk and somehow that appealed to me. What have these two boys done that 20 years should be taken out of their lives? . . This beautiful island, halfway from Asia, mother of all, and America, newest of all. . . ."

Prosecutor Kelley, summing up, accused Lieut. Massie of lying, of hiding behind women's skirts. "The most you can say for him is that he lied like a gentleman. [He] would at least have had the respect of the community if he had picked up a gun and mowed down his wife's assailants when she first identified them at the hospital instead of waiting four months to commit murder

"Is there to be one law for people here and one for visitors? If you let these people go, they'll make Massie an admiral because he and Admiral Pratt [Chief of Naval Operations in Washington] think alike. They both believe in lynch law. If one serpent of lynch law is allowed to raise its head, watch out! Without being swayed by mercy or by admirals--for in the language of Smedley Butler I say, 'to hell with the admirals'*--there's no reason why you can't bring in a unanimous verdict of guilty. We do not ask for vengeance-- only justice."

Charging the jury, Judge Davis stressed the conspiracy angle which would tie the four defendants together and make them all responsible for Kahahawai's death. He minimized the ravishment of Mrs. Massie except in so far as it affected her husband's mind. He told the jury it could find the defendants guilty of second-degree murder, or of manslaughter, or could acquit them altogether. Lieut. Massie could also be acquitted on the insanity plea.

After the first ballot the jury knew it was in for a siege of debate. The idea of compromising on a lesser charge--i. e. manslaughter--was early advanced. When they went to bed that night, the jurors were still about evenly divided.

Next day it drizzled. Sharp angry words filled the jury room. Some jurors, weary of argument, lapsed into sullen silence or stretched their legs out on a balcony. Gradually the majority for acquittal had become a majority for a manslaughter verdict. The Darrow summation did not impress the jury. Said one member afterwards: "He talked to us like a lot of farmers. That stuff may go over big in the Middle West but not here." The testimony of alienists was generally discounted on both sides. The jurors agreed Lieut. Massie was sane. Some jurors expressed large doubts about Kahahawai's alleged confession, others that Lieut. Massie had done the actual shooting. Mrs. Massie's fit of temper on the witness stand where she tore up evidence did the defense no good with the jury. Talk ran on. Minority jurors were tired of haggling, obstinacy ceased to be a virtue. Dusk came and dinner, then the second night. . . .

Next morning the jury stood 10-to-2 to convict on a manslaughter charge. Some one suggested a recommendation of leniency. That brought another juror over and a cheer that could be heard outside went up from the barren jury room. When Judge Davis summoned the jury during the afternoon to ask if an agreement was in sight. Foreman Stone said he thought so. Back in the jury room the last man was argued with, shouted at, verbally bulldozed until his resistance was at last broken down. The 15th ballot was unanimous.

The sun was just sinking into the Pacific when the jury filed back into the courtroom. Foreman Stone handed out its four verdicts on the four defendants:

Guilty of Manslaughter, with leniency recommended.

A wild sob stabbed the courtroom's silence. It came from Mrs. Massie. "Don't cry, darling," said her husband. Mrs. Fortescue's chin tilted defiantly. Seaman Jones bit his fingernails. Lawyer Darrow slumped into a chair.

Judge Davis postponed sentence for a week. The four convicts faced anything from ten years imprisonment to a suspended sentence. Honolulu was ominously silent.

While defense counsel prepared to appeal and the city's white women organized a boycott against business firms employing the jurors, the U. S. mainland made no bones about its shocked astonishment and dismay at the verdict. Editorial writers produced red-hot pieces to the effect that Hawaii was no longer a "white man's country." In California Vice Admiral Standley declared that Lieut. Massie had "the sympathy of the Navy." Said Rear Admiral Reeves: "Isn't it a shame! I didn't believe it was possible."

In Washington the White House was flooded with telegrams protesting the verdict, asking President Hoover to issue immediate pardons.* At the Capitol Senator McKellar of Tennessee suggested impeachment for Judge Albert M. Christy who was accused of forcing the grand jury to indict. To New York's Copeland the verdict was "distressing," to Utah's King, "a miscarriage of justice."

Almost forgotten in the deluge of sympathy for the defendants and condemnation for Hawaiian justice was the fact that a retrial of the Ala Moana assault on Mrs. Massie is scheduled to begin in the same Honolulu court this month. The four surviving defendants, brown bucks now out on bail, will be prosecuted by the same man who got his first conviction in the Kahahawai case. Last week Honolulu waited anxiously to see if Prosecutor Kelley would exhibit the same energy and resourcefulness in driving for a conviction in the assault case as he did in the murder case.

*Sitting in the courtroom was Rear Admiral Yates Stirling Jr., Commandant of the Pearl Harbor Naval Base.

*Territorial pardoning power rests with Governor Lawrence M. Judd of Hawaii, not with the President.

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