Convicting the Innocent: Errors of Criminal Justice (1932)
by Edwin M. Borchard
Case #36

Sisson and Sullivan

WASHINGTON, D.C.
 

Brentwood Road, Northeast, in Washington, where James R. Keeton and Judson L. Powers lived, was very dark at midnight, September 20, 1922. The street was lined with shade trees, behind which one might easily hide.

Keeton and Powers were on their way home from work at the Union Station. They were electricians for the Pullman Company. As they approached their rooming house, they saw a man sitting on a lawn across the road. A moment later several men – seven or eight – sprang out of the shadows and attacked them.

Some months previously Keeton and Powers had applied for membership in the electrical union, but before they were admitted a strike was called and practically all union men walked out. Keeton and Powers, however, continued at their work and provoked the enmity of several militant labor leaders.

In July, shortly after the strike had been called, Powers had been stopped on his way home. After answering several questions asked by the little group of inquisitors, one of them cursed him and struck at him but he ducked and got away.

This man he later recognized from a police photograph as Sullivan, one of those taking part in the September attack in front of his home. He and Keeton thought another one was a man named Dean, the president of the local electrical workers' brotherhood. A third they recognized as a foreman at the station named Sisson, who though once friendly with Keeton, had later refused to speak to him. The others were unknown to them.

Both were being severely beaten when Powers broke away and ran toward the house. At the door he turned and shouted, "I'm going to get the gun." When he returned with the weapon ready to drive his assailants off with bullets, he found Keeton alone, staggering toward the house moaning and holding his jaw, which was broken in four places and injured in five others. He had been struck repeatedly in the face by one of the men who used half a brick as a weapon. Powers had his friend taken to the hospital and then called the police.

Two days later, as the result of Keeton and Powers' identifications, three men had been arrested – Robert W. Sisson, Maurice J. Sullivan, and Earle D. Dean – and each offered an alibi.

All three had been in the city the night of the assault. Dean, with the corroboration of members of his family, and a druggist in whose store he claimed to have been late that evening, accounted for his time from 11.00 P.M. until about 1.00 A.M. He denied that he had been near the Union Terminal that night, which contradicted the stories of Powers and Keeton that they had seen him in a lunch room just before they got on a street car to go home, and that he later appeared to be following the street car in an automobile.

He did, however, admit that he had been present the night in July that Powers had been first stopped on his way home. His description of the incident did not agree exactly with Powers' story but it established the fact that there had been trouble at that time.

Sisson's wife said her husband seldom went out at night and that on the night in question he had gone to bed early, that they slept in the same bed together, and that he had gone out but once that night. That was early, she said, when he went to make a telephone call. Sisson told the same story and also said he had never met Sullivan until they had both been arrested.

Sullivan offered the most elaborate alibi. He said he knew nothing of the affair until he read about it in a newspaper the next morning. Several members of his family testified that he went to bed about ten o'clock the night of the assault. His wife said he got up about 11.20 to help her feed their sick child and that she was up nearly all night with the child so that had her husband gone out she would have known it. A physician testified that the child had been sick and it was established that a prescription had been filled for the child next morning.

Sullivan's credibility may have been weakened when it was brought out that he had been previously convicted of assaulting his mother-in-law, though in the present case she testified for him.

Despite their alibis, all three men were found guilty. Sisson and Dean were sentenced to five years each and Sullivan to seven years. A motion for a new trial was overruled, and on an appeal the appellate court on February 5, 1924, affirmed the convictions.

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The three men had been at the District of Columbia reformatory at Lorton, Virginia, about a year and a half when Dean informed the authorities that he had a confession to make. He named seven men and said that they and himself were the men who had assaulted Keeton and Powers and that Sisson and Sullivan had had nothing to do with it.

He admitted that he had been in the automobile which Keeton said followed the street car. He said he had followed the two men but a few blocks and then taken a short cut to their home to arrive ahead of them. It also appeared that a man named Smith, one of the assailants, looked like Sisson, which might account for the identification of Sisson.

Sullivan, it was discovered, had been in an auto with one of the assailants about eight o'clock the night of the attack and wanted to admit this at his trial but had been prevented from doing so by the strike committee on the promise that the committee would make a "clean breast" of the affair at the proper time.

All seven men named by Dean pleaded guilty, but got off much more lightly in the matter of sentences than had Sisson and Sullivan. Instead of the five and seven-year terms given Sisson and Sullivan, respectively, three of the men actually guilty of the crime got three years each, two others were sentenced to two and a half years, and the other two got a year and a half each.

On July 12, 1924, President Coolidge pardoned Sisson and Sullivan, who had spent over a year and a half in the reformatory for a crime of which they were innocent.

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Again we have a conviction based upon mistaken identification. Keeton saw Dean at the lunch room, and Dean made no effort to escape recognition. Doubtless, Keeton had him firmly enough fixed in mind to recognize him again a quarter of an hour later at the scene of the crime. But his alleged recognition of Sisson and Sullivan was the result of a gross mistake and association with the past. Possibly Smith did resemble Sisson, but Sisson's only possible connection with violence was his refusal to speak to Keeton when they had met some weeks before. There was no other ground for assuming that Sisson would participate in such an assault. Sullivan's identification was even flimsier. Keeton said Powers had pointed Sullivan out two days before – though neither Keeton nor Powers knew his name – as the man with whom Powers had had trouble in July. It is doubtful whether Keeton had ever had a fair look at Sullivan. Powers' view of the supposed Sullivan, at the time of the September assault, lasted but a few seconds, in semidarkness. But the July incident made Powers receptive to associating Sullivan with the September affair. Dean's alibi was deceptive, even if we exclude perjury by the witnesses, possibly because he moved around by motor car and not by foot, as he said. The alibis of Sisson and Sullivan, though apparently air-tight, were disbelieved by the jury, presumably because they were strikers and were thought to harbor grudges against Keeton and Powers, and might, therefore, be presumed to have been present at the assault.


BIBLIOGRAPHY

1. Sisson et al. v. United States, 54 App. D.C. 189, 295 Fed. 1010 (February 5, 1924).

2. Transcript of Record, filed June 18, 1923, in the Court of Appeals of the District of Columbia.

3. Brief for the appellants in the case, filed November 7, 1923; the brief for the appellee in the case, filed November 28, 1923, in the Court of Appeals of the District of Columbia.

4. United States Attorney General's Report, 1925, p. 386.

5. Acknowledgment: James A. O'Shea, Washington, D.C.