Decisions

> Rudy Turilli of Stanton, Mo., found a vocation in his belief that Jesse James was not killed in 1882, but lived into the 1950s under the alias of J. Frank Dalton. After meeting Dalton in 1948, Turilli opened the Jesse James Museum in Stanton and published a book arguing his thesis. In 1967 Turilli announced on a television program that he would pay $10,000 to anyone who could prove him wrong. Stella James, daughter-in-law of the outlaw, and her two daughters tried to collect after supplying affidavits from James family members that Jesse had indeed died in 1882. When Turilli refused to pay, the women sued and won in the Franklin County circuit court. The verdict, recently upheld on appeal, put the courts in the unusual position of considering an academic point of history. Turilli now says that he will ask for a new hearing on the grounds that his television boast was not legally binding.

> No one complained about Specialist David B. Cortright's abilities as an Army bandsman at Fort Wadsworth in New York City. But Cortright's antiwar activities were another matter. He signed a protest petition published in the New York Times and distributed literature to fellow band members. After his fiancee and the wives of four other musicians tried to march with the band in an Independence Day parade last year carrying signs saying "NixOn War" and "Military Wives for Peace," the Army had had it. Some band privileges were revoked, and when dissension within the ranks followed, the Army transferred Cortright to band duty at Fort Bliss, Texas. The soldier claimed in U.S. district court that his free-speech rights had been violated. Though the lower court agreed, Chief Judge Henry Friendly for the U.S. Second Circuit Court of Appeals reversed the ruling. Friendly found that the Army had not gone too far in holding that Cortright's right of protest was outweighed by the Army's interest in maintaining efficiency in all units. In dissent, Judge James L. Oakes warned: "Even a very little chill on a very big right is too much. A transfer to Texas today could be a transfer to Hue tomorrow."

> For 75 years, U.S. judges have used the so-called Allen charge, an instruction encouraging holdout jurors to join the majority in reaching a unanimous verdict. Fearing a divided jury in an assault and robbery case, District of Columbia Judge Oliver Gasch recently invoked elements of the Allen charge. When the jury could not agree, the judge complained to the jurors of the court's backlog and added that retrying the case before another jury "just doesn't make sense to me." A verdict of guilty followed. The defendant appealed, arguing that the judge had forced a decision. The Court of Appeals for the District of Columbia sided with the defendant and then went a step further. It barred the use of the Allen charge in its jurisdiction, becoming the third federal appeals court to take that position.

> On trial in New York City for having accepted payola and having lied about it at a 1966 Federal Communications Commission hearing, Disk Jockey Hipolito Vega suddenly found himself faced with an unusual dilemma. The federal district court jury had been deadlocked for two sessions. One of the jurors reported to the judge that he was the primary holdout and that he could not see his way clear to changing his opinion. Hoping to head off a hung jury. Judge Lloyd MacMahon made a suggestion. "You have one guy holding out," he informed the defense. "I don't know which way he is. Do you want to accept a jury verdict of eleven?"

Vega consulted with his wife and attorney. The alternative was a new trial, at which a previously unavailable prosecution witness was likely to appear. Moreover, Vega's lawyer thought that some of the other jurors were "more simpatico" to the defense. All things considered, Vega decided that the holdout had been arguing for conviction, and agreed to excuse him. Vega guessed wrong. The remaining eleven soon agreed unanimously that he was guilty.

The former D.J. at Manhattan's WBNX decided to appeal, contending in retrospect that he had been coerced into waiving the twelfth juror by the threat of an immediate retrial. The Second Circuit Court of Appeals was unimpressed by Vega's hard-luck tale. For one thing, a jury of twelve is not sacred--the acceptable number has dropped as low as six. Vega's right to a unanimous verdict was not violated, because the eleven-member jury he agreed to was not divided. The court also found that the judge's mention of a speedy retrial was reasonable. Thus, while courts will not enforce normal gambling debts, they apparently will enforce a fair bet lost in the courtroom. For Vega, the tab was a sentence of three months and $1,500.

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