Convicting the Innocent: Errors of Criminal Justice
(1932)
by Edwin M. Borchard
Case #40
Percy B. Sullivan
INDIANA FEDERAL
Soon after graduation from law school in 1896, and while
hopefully waiting for clients, Mr. Robert F. Davidson happened to be present
on arraignment day in the court room of the United States District Court at
Indianapolis. The presiding judge was the Hon. John H. Baker. After
listening a while to the pleas and the sentences which were imposed,
Davidson concluded that it was time to go elsewhere as prospects of business
in that court seemed not very promising. He started to leave the room, when
Judge Baker spoke from the bench and said, "Sit down, young man, I think I
have a case for you in a few minutes." The United States Marshal then
brought into the room a tall, slender young man, fashionably dressed and
well groomed, notwithstanding the fact that he had spent some time in jail.
The charge against him was passing counterfeit money at Evansville,
Vincennes, and Terre Haute, Indiana. He entered a plea of not guilty and
when questioned by the court, said he had no money with which to employ
counsel. The Judge then called Davidson forward and said, "Here is your
client," and to the accused, "This is your attorney." The two withdrew to a
private room where they conferred, while the Marshal kept guard at the door.
The defendant was Percy B. Sullivan, a graduate of Vanderbilt University and
a former adjutant of the Kentucky militia, who had been in the insurance
business for some time at Louisville, Kentucky. He came from a prominent
Bowling Green family, and was a well-known "man about town."
It developed that Sullivan had not been satisfied with the insurance
business in Louisville. In the late summer of 1896 he made a special selling
drive, going down the river among the farmers and visiting the cities of
Evansville, Vincennes, and Terre Haute, Indiana, and then on to St. Louis,
Missouri.
During the time of Sullivan's stay in Evansville, Vincennes, and Terre
Haute, a well-dressed young man made purchases in the shops of these cities
and paid for them in counterfeit United States currency. This was reported
to Maj. Thomas B. Carter of the Secret Service.
Carter's investigators picked up clues which led to Sullivan in the
Jefferson Hotel in St. Louis. There he was arrested by the United States
Marshal and taken to Indianapolis. Witnesses who in part had identified
Sullivan by his photograph were brought from the several cities that had
been the scene of the swindle. Some of these persons did not recognize
Sullivan. Others positively identified him as the one who had given them the
counterfeit money especially Joseph Kunkler and six other persons from
Evansville. Sullivan did not attempt to deny that he had been in Evansville,
but he stoutly maintained that he had had nothing whatever to do with
counterfeit money, and pointed to the fact that he had eighty dollars with
him when arrested in St. Louis and all of it was good money. He did not
remember having given any money whatever to any of the witnesses who
appeared against him or even having seen them.
Based on the positive identification of the Evansville people, United States
District Attorney Frank B. Burke submitted the case to the Grand Jury,
which, on November 12, 1896, returned an indictment against Sullivan upon
the specific charge of having knowingly passed upon Joseph Kunkler a United
States silver certificate, raised from two to ten dollars.
It was for arraignment upon this indictment that Sullivan was called into
Judge Baker's court and was assigned counsel. The case was called for trial
on November 27, 1896. The prisoner was represented at the trial by
experienced attorneys, W. L. Dulaney and Clarence U. McElroy, from Bowling
Green, Kentucky, who were assisted by Mr. Davidson. The witnesses for the
prosecution were positive in their identification of the defendant. In
establishing the prisoner's felonious intent in the alleged transaction,
Prosecutor Burke produced witnesses from Erie, Pennsylvania, who identified
Sullivan as the man who had passed altered currency there.
The defendant took the stand in his own defense, and denied absolutely
having had or used any counterfeit or raised currency. He denied being in
Erie at the time of the alleged transaction there. On cross-examination,
some irregularities in the conduct of his insurance business which had never
been made the subject of legal action were brought out in an effort to
impeach his credibility. A verdict of guilty was rendered against him by the
jury and on December 8, 1896, he was sentenced to four years' imprisonment
and fined $100 and costs. Two days later he was brought to the South Prison
at Jeffersonville to start serving his sentence.
The exceptional position that Sullivan had occupied in Louisville prior to
his arrest was attested by prominent news items appearing in the papers on
the day he began his prison sentence. Reporters were sent to interview him,
and he spoke freely about his conviction. He said that he was innocent of
the charges, and that he had been "railroaded." He was particularly bitter
in his denunciation of the District Attorney and the Secret Service for the
vigorous manner in which he had been prosecuted. He said that the witnesses
against him were wrong in their identification, perhaps honestly, for they
had been shown his picture before they saw him.
Sullivan was soon transferred from Jeffersonville to the prison at Michigan
City, Indiana.
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Some time after Sullivan's conviction Major Carter called
Mr. Davidson to his office one day and stated that he had always been in
doubt as to Sullivan's guilt; that he believed that at last he had the man
who had actually committed the offense for which Sullivan had been
convicted; that the man who had just been arrested had admitted passing
counterfeit money at Evansville, Vincennes, and Terre Haute about the time
charged against Sullivan. Major Carter gave to Davidson a photograph of
Tyler, the prisoner who had just been arrested, and a photograph of
Sullivan, and suggested that he see the witnesses who had testified at
Sullivan's trial, asking them to say which man had passed the counterfeit
money; and, if their answers were satisfactory, to secure their affidavits.
Mr. Davidson went to Evansville, Vincennes, and Terre Haute and saw most of
the witnesses who had testified at Sullivan's trial. Without letting them
know which was Sullivan's and which was Tyler's picture, he showed them both
photographs and asked them to point out the man who had passed the money.
They all promptly pointed to Tyler's photograph and, confronted with the two
photographs, they found but little resemblance.
In due course Tyler was convicted and sentenced for these offenses.
Thereupon, the affidavits, accompanied by incontestable evidence that
Sullivan had not been in Erie, were submitted to the Department of Justice
at Washington in support of an application for a pardon. The trial judge,
the District Attorney, and the Secret Service all concurred in the opinion
that Sullivan was mistaken for the real culprit and in urging that a pardon
be granted. Upon the recommendation of Attorney-General Griggs, President
McKinley granted a full and unconditional pardon on May 12, 1898. Sullivan
was immediately released, and he disappeared from public notice but for the
time being only.
Sullivan spent some years in traveling over the country, participating
extensively and successfully in the insurance business and in the promotion
of large mining and milling interests in Colorado. Eventually he returned to
identify himself with one of the growing cities of Illinois. He entered the
land-development, insurance, and banking businesses. In one of his
undertakings business rivals learned of the old Indianapolis conviction and
were planning to make use of it to Sullivan's detriment. He procured through
Mr. Davidson a copy of the pardon record from the Department of Justice,
"certified with a gold seal and fastened with a broad band of royal blue
ribbon," showing that he was innocent, and fought his rivals to the finish
successfully. Mr. Sullivan became prosperous and wealthy. He married, and
his children went through college with great credit to themselves and their
parents. Today (1931) Mr. Sullivan is one of the prominent public-spirited
citizens of this Illinois city, where he has lived for over a quarter of a
century.
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In its setting, the Sullivan case differs in no material respect from the Andrews, Greenwald, and Lee cases. Sullivan's was a clear case of mistaken identity. It does exemplify the dangers of the practice of first exhibiting to the victims of a crime, the prospective prosecuting witnesses of the accused person, a single photograph for purposes of identification. In the case of distant witnesses, the practice may in part be unavoidable, but it should be limited to cases of necessity only and include more than one photograph. The practice is tendentious, for the psychological factors of such an exhibition of single photographs favor identification rather than repudiation of identity. Once an opinion is formed, other emotions, such as pride and stubbornness, make for confirmation of the original identification rather than for open-minded reconsideration. Although Sullivan and Tyler bore but little resemblance, Sullivan was, nevertheless, identified at the trial by those who had first identified his photograph. Only the fact that the real culprit continued his career after the innocent man was in prison enabled Sullivan to escape serving out his sentence. The case also shows that a criminal conviction, even where it does not completely ruin a man, nevertheless is a fearful handicap and can be used by enemies in after years to embarrass the most innocent. Had Sullivan been indemnified by the Government, as he should have been, he would have been vindicated in the eyes of society and would not have had to undertake a campaign to prove to his traducers that he was the victim of a miscarriage of justice.
BIBLIOGRAPHY
1. United States v. Percy B. Sullivan. Case No.
5627, November Term, 1896, United States District Court, Indiana.
2. United States Attorney General's Report, 1898, p. 202.
3. Louisville Courier-Journal, Louisville Times, and
Louisville Commercial, December 10, 1896.
4. Acknowledgment: Robert F. Davidson, Indianapolis, Ind.