Convicting the Innocent: Errors of Criminal Justice
(1932)
by Edwin M. Borchard
Case #9
Condy Dabney
KENTUCKY
Condy Dabney arrived in the little mining town of Coxton, Kentucky, in
January, 1925, looking for work. He was a young man of thirty-one, with a
wife and two children. Not knowing whether he would find employment in
Coxton, he had left his family at home in Coal Creek, Tennessee.
Dabney was used to working in the coal mines that were numerous in this
section of Kentucky and Tennessee. It was not long before he found work in a
mine near Coxton. He soon established a reputation as a quiet man with a
good disposition, though somewhat taciturn. He had no police record and as
far as anyone knew he had never been in trouble with the authorities of
Tennessee or Kentucky.
Soon after he went to work Roxy Baker, a sixteen-yearold Coxton girl,
disappeared. The community was mystified and somewhat excited. Just before
the Grand Jury met to investigate the disappearance three Coxton men
disappeared. No one could account for their whereabouts. The Grand Jury,
however, did not involve them in the Baker case and no indictment was
returned.
About the first of July, Dabney gave up his job in the mines, bought an old
Ford, and began running a taxi in and about Caxton. He had been driving this
taxi but a month when the community was again aroused to a high pitch of
excitement. Three women disappeared. Two of them were married, and nothing
was ever heard of them again. The third was Mary Vickery, the
fourteen-year-old daughter of E. C. Vickery. The Grand Jury met once more
and this time there were two definite suspects – William Middleton and Condy
Dabney – who were reported to have been seen taking Mary for automobile
rides.
Despite the testimony of many witnesses, the Grand Jury again failed to
indict. Middleton and Dabney were released and the investigation failed to
turn up any pertinent evidence. But Dabney's troubles were not over.
In September, Dabney left Coxton to return to his family
in Coal Creek. He had been told, according to statements he made later, that
one of his children was sick and for that reason he wanted to find work near
Coal Creek.
There are a number of mine shafts around Coxton, some of them old workings.
Those that have been abandoned are sometimes used as hiding places for the
storage of whiskey or as convenient places for operating stills.
United States Marshal Adrian Metcalf had been told that there was a still
hidden in one of the shafts on Ivy Hill, near Coxton, and on the
twenty-first of October he set out to look for it.
In the course of his search Marshal Metcalf came to the old Bugger Hollow
shaft, an abandoned working. In the dark he stumbled over a pile of stones
in one of the passageways and near them he found some clothing. His
suspicions were aroused and he called in several other men. Presently they
had unearthed the body of a girl. An old black winter coat had been thrown
around it. There was no other clothing except pink bloomers, a hat, shoes,
and stockings.
The body was badly decomposed, but it was thought to be that of a girl
perhaps between twelve and fourteen years old. Mary Vickery had been missing
about two months and the discovery of the body brought an insistent demand
that the Vickery case be reopened. It was generally believed that the body
found in the old Bugger Hollow shaft was Mary's. As the weeks passed various
stories went the rounds of the perturbed little town and gradually suspicion
began to point more and more impressively toward Candy Dabney. Perhaps the
tales which did most to involve Dabney were woven out of material supplied
by one Marie Jackson, who finally became the principal witness against him.
So incriminating were the stories that the Kentucky authorities twice
visited him at his home in Coal Creek to question him, but each time they
returned apparently impressed by his protestations of innocence.
Though he knew, of course, something of the strength of the suspicions in
Coxton concerning him, he returned to the Kentucky town in March. Soon after
his arrival he was examined by the Grand Jury and on the eighteenth of
March
an indictment charging him with the murder of Mary Vickery was returned.
Mary's father seemed certain that the body found in the old mine was that of
his daughter. At the trial his positive statements indicated clearly that
there was no doubt in his mind concerning the identification.
He told of going to the mine after the body had been found and picking up a
ring which played an important part in establishing the girl's identity. The
defense suspected that the ring had been planted, but other witnesses
testified that they had seen it at the mine and one of them testified that
he saw Vickery pick it up. It was covered with decayed flesh and a friend of
Vickery's carried it on a stick, being unwilling to touch it.
Vickery said he also found some flesh and hair in the mine and a piece of a
stocking with a darn in it that he remembered seeing in Mary's stocking. He
identified it by its form, which he described as being like the letter L. He
identified the hair as of the same color as his daughter's, saying it was
"sandy like and bobbed, and very fine."
The ring, he said, was one he bought for Mary in Knoxville, Tennessee, for
her birthday, June 7. Asked if she had ever run away from home before, he
replied in the negative and denied the suggestion that the girl did not get
along with her stepmother.
On cross-examination Vickery testified that he did not attend the funeral
and that he allowed the county to bury the body. Pressed for an explanation,
he hesitated. Before he could reply, Dabney's attorney, G. G. Rawlings,
suggested: "You did not know that was your girl, that is what you started to
say, wasn't it?"
"At the present time I wasn't perfectly sure," Vickery replied.
G. J. Jarvis, counsel for the prosecution, took the stand and testified that
Vickery stated at the undertaker's, where the body had been taken after its
discovery, "That is my girl." Another witness testified that Vickery had
said he was not sure it was his daughter. There was conflicting testimony as
to the color of the hair found in the mine. One witness
said it was brown; another described it as black and very coarse.
Then came Marie Jackson, upon whose allegations the state had leaned heavily
to obtain an indictment. Her story, briefly, was as follows:
About seven o'clock the morning Mary Vickery disappeared, she and Mary
stopped Dabney's taxi as it came up to them on a road just outside of
Coxton. Marie ordered Dabney to drive them to town, where they arrived about
ten o'clock (though the distance seems to have been but four or five miles).
Dabney, she testified, took them to Marler's Restaurant, where she got out.
Dabney then drove away with Mary and did not return until one o'clock. When
he came back, she said, all three of them drove out to Ivy Hill, Mary
sitting in the front seat with Dabney. At the hill they got out of the car
and sat down on a log in a clearing. After they had talked a little while,
according to Marie, Dabney told her to go around behind the hill as he
wanted to talk to Mary alone. She said she went away and sat down at a place
from which Dabney and Mary were visible to her. She told the court that she
saw Dabney hug the girl, who protested, and then strike her with a stick.
Mary fell to the ground and the witness said she saw Dabney attack her. She
then told how Dabney walked around the hill, came back, and finally found
her. He told her, she said, that if she ever mentioned what had happened he
would burn her at the stake and that if he was prevented he would have
someone else do it. She said Condy then took the body into the mine while
she fled from the scene.
She testified that she met Dabney next day and rode with him as far as
Pineville, on her way home. She did not mention the murder, fearing that he
might attack her.
This story appears to have impressed the jury greatly, though other
witnesses offered testimony that conflicted with it in several respects.
Three girls – the Stewart sisters and a Miss Smith – whose testimony was
substantially in agreement, testified that they saw Dabney and Mary Vickery
between two and four on the afternoon she disappeared. The Stewart sisters
said that
they were walking along the road with Mary to their grandmother's about two
o'clock, when Dabney came along, with a woman in his car, and asked them if
they wanted a ride. They refused. Soon after, William Middleton and Otis
King came along and all three of the girls rode with them for a while, the
two sisters finally leaving Mary in the car talking with Middleton and King.
This was substantiated by Middleton, who set the time as being about four
o'clock. King said he did not know Mary Vickery but that he found out later
that it was she who had been in the car. The mother of the Smith girl, who
said she saw Dabney and Mary together, testified that she saw Mary before
that with the other two girls and two men. 'This testimony accounted for
Mary's time between two and four o'clock of the afternoon she disappeared
and contradicted the testimony of Marie Jackson, who said that she and Mary
and Dabney were on Ivy Hill from one o'clock until nearly dark.
Another witness said he talked with Dabney after getting off the train in
Coxton one morning and inquired if Mary had been found. Asked what Dabney
had replied, he testified: "I believe he said there wasn't much use hunting
for her – going any ways off to look for her, he didn't think she was very
far off."
The state also offered as a witness one Claude Scott, with whom Dabney had
spent some time in jail while awaiting trial. He said he had known Marie
Jackson fifteen years; that he had talked to her while in jail; and that
he delivered a letter to Dabney from Marie. He said Dabney offered him
fifteen dollars to testify in the case, and, to use his own words, " . . he
tried to make me remember stuff that Marie Jackson should have said through
that window to me; while he was sitting there he tried to make me remember
stuff I never heard her say and she never said to me."
Finally Dabney took the stand in his own defense. He told a straightforward
story of his movements from July, 1925, to March, 1926. He said he did not
remember ever carrying Mary Vickery in his taxi, but that he might have done
so, as he carried many people he did not know. He said he knew
Marie Jackson, and had taxied her occasionally with men. He said he did not
know Marler's Restaurant, and that he had never been on Ivy Hill. He called
Marie Jackson's testimony false and said he left Coxton because he had
received a letter saying his little daughter was ill. When he got home to
Coal Creek he worked at various jobs during the late fall and winter and was
at all times available to police officers, he said. He testified that he had
been arrested on suspicion in the Vickery case but was later released. He
told the court that he did not refuse to return to Coxton and he denied that
he returned in March only after hearing that the Grand Jury declined to
indict him. He insisted that he was innocent and knew nothing whatever about
the disappearance of Mary Vickery.
On March 31, 1926, the jury returned a verdict of guilty and recommended
life imprisonment. A motion for a new trial was overruled. An appeal was
taken. On the same day Dabney was sentenced to be confined for life at hard
labor in the state penitentiary at Frankfort.
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As Dabney was without funds and had had to take the pauper's oath, a
transcript of the testimony was printed at the state's expense and filed
with his bill of exceptions, May 19. His appeal to the Kentucky Court of
Appeals was pending, almost a year later, when on a night in March,
Patrolman George S. Davis noticed, quite by chance, the name of Mary
Vickery on the register of a hotel in Williamsburg, Kentucky.
The name sounded familiar to Davis. He thought he had heard it before. He
asked about it and was told that Mary Vickery had lived in the hotel at one
time. He was told that she had gone across the Cumberland River to visit
friends. He soon found her and recognized her at once; and the story she
told Davis was quite different from the imaginative tale Marie Jackson had
spread upon the record.
Mary said she left Coxton, August 23, 1925, with five dollars in her
pocketbook, because she couldn't get along with her stepmother. She had gone
to the train in a taxi.
She did not know the driver, but the description she gave fitted Dabney. She
was sure she did not know Marie Jackson. From Coxton she said she went
first to Livingston, where she worked as a waitress, then to Berea, where
she worked as a maid. From Berea she moved on to Mount Vernon and finally
to Cincinnati, where she found work in a woolen mill. She admitted that
while in Cincinnati she had heard that someone had been convicted of
murdering her and was told that she should go home, but it was some time
before she decided to do so. She informed Davis that she was then on her way
back to Coxton.
Her return to Coxton led to an immediate pardon for Dabney and the
appointment of G. J. Jarvis as a special investigator to inquire into the
conduct of Marie Jackson. True to form Marie offered more stories about the
Vickery case, all untrue. Jarvis was quoted in one newspaper account as
being of the opinion that Marie Jackson testified against Dabney to get a
$500 reward that had been offered, but other accounts have it that Marie
wanted Dabney to leave his wife and children and live with her. He would not
consent and for revenge she testified against him.
As a result of Jarvis' investigation of the Jackson episode, she was
convicted of false swearing, and on the same day (March 27) it was reported
that Mary Vickery was married to C. E. Dempsey by Rev. H. C. Davis of the
Baptist Church of God in Coxton.
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Reading the cold record, it seems hard to understand why a jury should
deduce from so much conflicting testimony a conclusion of Dabney's guilt.
Perhaps Dabney's directness and apparent indifference operated against him,
rather than in his favor. So far as personal credibility was concerned,
there should have been but little question – he had been an inconspicuous,
unobjectionable citizen. Marie Jackson, the state's star witness, had not
been. Why she should have been believed, and not he, is hard to say. Perhaps
unfavorable inferences were drawn from his six months' return to his home in
Coal Creek, Tennessee, shortly after Mary Vickery's
disappearance. But if Marie Jackson was believed by the jury, the testimony
of the Stewart girls and Miss Smith must have been disbelieved, for the
Jackson story was quite inconsistent with theirs. The father's
identification of a decomposed body was also none too certain, and the
difference among the witnesses as to the color of the hair should have
aroused suspicion of the accuracy of the identification. But it was assumed
that murder had been committed, and someone must apparently be required to
suffer for it. Piecing together every unfavorable inference, however
inconsistent, and refusing to give weight to evidence in Dabney's favor, the
jury became sufficiently convinced that the murder could and should be
charged to Dabney. Perjury and too easy credulity, operating on minds
predisposed by the circumstances of time and place to believe the worst,
rather than official or judicial incompetence, were responsible for a
grievous miscarriage of justice.
BIBLIOGRAPHY
1. The Bill of Evidence in the case, 2
volumes, filed May 19, 1926, in the Harlan, Ky., Circuit Court, F. M. Jones,
Clerk; also filed in the Kentucky Court of Appeals, Frankfort, Ky., June 30,
1926, John A. Goodman, Clerk.
2. The Appellant's Brief, filed June 30,
1926, in the Kentucky Court of Appeals, Frankfort, Ky., by G. G. Rawlings,
Harlan, Ky.
3. The Bill of Exceptions, order, etc.,
filed June 30, 1926, in the Kentucky Court of Appeals.
4. Various news reports in the
Louisville Courier-Journal from March 20 to March 27, 1927.
5. A news report in the New York Times
of March 20, 1927.
6. Numerous letters from Dean Alvin E.
Evans, University of Kentucky, Lexington, Ky.; W. B. O'Connell, Clerk of
the Kentucky Court of Appeals; Hon. J. L. Hughett, Commissioner of Pardons,
Frankfort, Ky.; G. G. Rawlings, Harlan, Ky.; G. J. Jarvis, Harlan, Ky.
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