Strauder v. West Virginia

Upon his return to Wheeling, Strauder appeared before the circuit court for Ohio County, West Virginia and received a preliminary examination before Judge Thayer Melvin. The court assigned George O. Davenport and Blackburn B. Dovener as Strauder's counsel, and set his arraignment for the May 1872 term of the circuit court. On May 20, 1872 the grand jury returned an indictment for murder in the first degree. Strauder demurred the indictment as defective, arguing the facts alleged did not rise to murder in the first degree, and that the panel from which the grand jury was selected excluded non-whites; the court overruled the arguments. Counsel for Strauder then attempted to remove the case to the U.S. district court for West Virginia, but this too was overruled. Strauder then pleaded not guilty by reason of temporary insanity and asked the court for a continuance to the October term, which was granted. At the next term, Strauder received a second continuance to the May 1873 term.

During the first continuance, the State of West Virginia adopted a new state constitution in August 1872. The state legislature reconstructed the state courts and passed a criminal procedure bill on April 3, 1873 providing criminal defendants with preliminary examinations to occur at the county court (as distinguished from the circuit court for the county). At the May 1873 term of the circuit court, Strauder made a motion requesting this examination before the county court. The circuit court denied the motion, citing the preliminary examination the circuit court had already given. The case then proceeded to trial over May 6–8, 1873; the jury returned a verdict of guilty after approximately 90 minutes of deliberations. The court sentenced Strauder to death by hanging on July 8, 1873.

On appeal, the Supreme Court of Appeals of West Virginia held on July 20, 1874 that, since Strauder's case had not yet commenced trial at the time of the passage of the April 3, 1873 statute providing for a preliminary examination before trial, Strauder's case was within the scope of the statute. Since Strauder had timely made the request for the examination, the ruling of the circuit court denying the examination by the county court on grounds that the statute wasn't applicable to the case was reversed. "The error of the circuit court in refusing the accused an examination before the county court of the county of Ohio upon said charge of murder, is fatal to all the other proceedings in the cause by which the accused was tried, convicted and sentenced to be hung..." Consequently, the supreme court reversed the circuit court's denial of the request for the preliminary examination, overruled and nulled all rulings made in the case after that point, set aside the verdict, and remanded the case with instructions that the preliminary examination take place in the county court in accordance with the law.

The clerk of the circuit court certified the case to the county court, which completed its preliminary examination on September 9, 1874 and remanded Strauder to the circuit court for trial. A grand jury convened and on October 20, 1874 returned an indictment similar to that of May 20, 1872. Strauder's arraignment on the new indictment took place on November 2, 1874.

At the arraignment, Strauder and his counsel moved to quash the new indictment and to remove the case to federal court on grounds that West Virginia law precluded non-white citizens from grand and petit jury service. During the course of the first trial, an act regarding trial procedure had passed as part of the 1873 reconstruction of the West Virginia courts in consequence of the new state constitution; the act of March 12, 1873 provided "[a]ll white male persons, who are twenty-one years of age and not over sixty, and who are citizens of this State, shall be liable to serve as jurors, except as herein provided." The only exception provided regarded service as a state official. The judge denied both motions. Strauder then demurred each count contained in the indictment and was again overruled. At that point, Strauder pleaded not guilty to the indictment, and the trial proceeded to jury selection, which resulted in an all-white jury. Strauder's counsel raised an objection to the composition of this jury was entered, but the court overruled the objection. The trial continued through November 4 when the case went to the jury for deliberations. On November 5, the jury returned a verdict of guilty and a sentence of death. Strauder and his counsel moved for a new trial on grounds of an impartial juror and that the jury contained no jurors of Strauder's race, for which arguments were heard January 5, 1875. The court denied the motion, and proceeded to sentence Strauder to death by hanging on January 9, 1875.

Arguments before the Supreme Court of Appeals of West Virginia took place June 27, 1876. Strauder's counsel raised 11 points of exception. The supreme court handed down its ruling on November 17, 1877, relying on the opinions of the Supreme Court of the United States in The Slaughter-House Cases and Bradwell v. Illinois to find the Fourteenth Amendment had not been "intended to protect the citizens of any State against unjust legislation by their own State." The Supreme Court consequently affirmed the trial court's denial of the motion to remove of the case to federal court as correct. Strauder's case was then sent back to the Circuit Court of Ohio County for resentencing, but held over until the April 1878 term.

While awaiting resentencing, Strauder and his counsel appealed to the Supreme Court of the United States. On April 15, 1878, Chief Justice Morrison Waite granted a writ of error. The case was set for argument in the October 1879 term, and oral arguments were heard over October 20–21, 1879 along with the companion cases of Virginia v. Rives and Ex parte Virginia. Assisting Strauder's counsel in the arguments before the Supreme Court were U.S. Attorney General Charles Devens and former justice of the Supreme Court of Virginia Westel Willoughby. Arguing for the State of West Virginia were West Virginia Attorney General Robert White and special counsel James W. Green, a Virginia lawyer.

The two dissenting justices, Field and Clifford, explained their position in the case of Ex Parte Virginia, decided the same day.[3] In the latter case, Field wrote, with Clifford joining, "The equality of the protection secured extends only to civil rights, as distinguished from those which are political or arise from the form of the government and its mode of administration."[3]

On Monday, September 6, 1880, the sheriff of Ohio County was served with a writ of habeas corpus to produce Strauder before the U.S. district court the next day and to show cause why he was being held. Over the next two days, before Judge John Jay Jackson Jr., arguments were heard over why the writ should be quashed, the state seeking to maintain its custody of Strauder. Arguments were also heard whether Strauder should be released pending the next hearings, or bail set. On Thursday, September 9, the court denied the state's motion to quash the writ, ordered custody of Strauder be transferred to the U.S. Marshal, and that a bail hearing for Strauder be scheduled. By October 9, Judge Jackson denied both discharge and bail.

The case was next heard on Thursday, January 13, 1881, whereupon Strauder entered a plea of abatement to defeat the 1874 indictment on the grounds that it too suffered from the constitutional deficiency passed upon by the Supreme Court—that is, the venire from which the grand jury had been drawn in May 1874, subject to the same 1873 jury law, excluded non-whites as jurors. On Saturday, April 30, 1881, Judge Jackson ruled in favor of Strauder, quashing the 1874 indictment and discharging Strauder from federal custody.

Anticipating that the federal court would discharge Strauder, the Wheeling Chief of Police Henry Conant swore out in secret a new warrant for Strauder's arrest before Aquilla B. Caldwell of the First Judicial Circuit on April 7, 1881. When the federal court then in fact discharged Strauder, Conant immediately moved to rearrest Strauder in the courtroom; Judge Jackson objected, causing Conant to withdraw. Conant instead rearrested Strauder upon his leaving the federal courthouse, and both returned to Wheeling on May 2. The next day, arguments were heard before Judge Caldwell regarding the circuit court's jurisdiction. Strauder and his counsel argued that even though the U.S. district court had discharged Strauder, it had only done so on the 1874 indictment, and since the state's prosecutor had never made a declaration of nolle prosequi or otherwise dismissed the 1872 indictment, and since the entire case had been certified to the federal district court, both the 1872 and 1874 indictments were under the federal court's jurisdiction when the April 7 warrant had issued. Further, since the 1872 indictment was still pending before the federal court, it still had jurisdiction over the case. As such, argued Strauder, the state circuit court had no jurisdiction, rendering its warrant invalid. Judge Caldwell ultimately agreed that the 1872 indictment was still alive and before the federal court, and ordered Strauder discharged from state custody, finally freeing Strauder from his nine-years confinement.