Not Guilty: Thirty Six Actual Cases in Which
An Innocent Man Was Convicted
by Judge Jerome Frank and Barbara Frank

Excerpt from Chapter 5 on

James Montgomery

By 1923 it had become possible, at least in some areas of the United States, for a Negro like James Montgomery to live as a respected member of his community. Paradoxically the Ku Klux Klan could still flourish in that same area. Montgomery, age twenty-six, a veteran of World War I, had his home in Waukegan, Illinois. Although not, by any standards, a man of means, most people would have thought him in comfortable circumstances. He held a well-paying factory job that provided him with sufficient funds to lay aside some money every year for an emergency or a luxury. He owned two houses in the town. One he rented out; the other he and his wife occupied. Appearances indicated that his marriage was more than usually happy and that he found his life a fully satisfying one. But his world's end, swift and terrible, rested on but a word or two.

The words were spoken by a sixty-two-year-old spinster, Mamie Snow. Mamie sold notions, door-to-door, to keep herself alive. To fill the fearful void she must have known, she lived largely in her fantasy. Sometimes Mamie's images became so vivid she confused them with reality. One of Mamie's fantasies sent Montgomery to the penitentiary.

Mamie knew Montgomery by sight, having often sold her wares in his neighborhood. In the grip of a nightmare fancy about him, in December 1923, Mamie went to the police with a story she doubtless thought was true: She told the officers that Montgomery had attacked and raped her.

The police chief immediately arrested Montgomery. The prosecutor, a member of the Ku Klux Klan, had had past dealings with Montgomery. A year before, Montgomery won a civil suit against the prosecutor. Outraged by this rejection of his creed of white supremacy, the prosecutor welcomed the opportunity for revenge that Mamie's story afforded him.

As a matter of routine he had Mamie examined by a physician, Dr. John Walter. Dr. Walter found no evidence of rape, thus destroying the case against Montgomery, since his findings proved that there had been no crime. But the prosecutor, determined to bring Montgomery to trial, suppressed the doctor's evidence when he presented his case to the grand jury, which, on the basis of the demented Mamie's testimony, indicted Montgomery for rape.

On the eve of trial Montgomery and his lawyer were threatened with the violent wrath of the Klan if Montgomery set up a serious defense. The threat had its intended effect.

In the first week of January, Montgomery went to trial. His terrified lawyer did not examine the prospective talesmen; he accepted a jury hand-picked by the prosecutor. After Mamie had told her story, the prosecution rested. Montgomery's lawyer, who had not cross-examined, offered no evidence. The case went to the jury, who, on January 9, 1924, found Montgomery guilty. The judge sentenced him to a life term in the penitentiary.

Montgomery spent twenty-four prison years in utter hopelessness. To add to his bottomless despair, he lived with the knowledge that his wife, barely able to subsist after the funds from the sale of his property and life savings had been exhausted, had fallen ill.

But the facts behind Montgomery's conviction finally emerged. In 1947 a Chicago lawyer, Luis Kutner, visited a client in the penitentiary. Kutner's client told Kutner that Montgomery needed help, and suggested that the lawyer talk to him, since a belief prevailed among the prisoners that he was innocent.

Kutner spoke with Montgomery in his cell. No one else knows what they said that day, but Kutner left convinced that Montgomery did not belong in prison.

Kutner began a thorough investigation into Montgomery's case since, although he felt sure that he knew the facts, he needed proof. It took him two years to collect that proof. He learned that Mamie, who died later in a mental hospital, did not recognize Montgomery on the day after she identified him at police headquarters. He obtained evidence of the Klan- inspired threats to Montgomery and his lawyer. He spoke to Dr. Walter, who told him of the evidence the prosecutor had suppressed.

His investigation complete, early in the summer of 1949 Kutner, on Montgomery's behalf, filed a petition for a writ of habeas corpus before Judge Michael Igoe in the United States District Court of Chicago. On June 27, Judge Igoe held a hear­ing at which Dr. Walter testified that there had been no crime. The judge then made an intensive study of the evidence. On August 10, 1949, he handed down his opinion in which he said that Montgomery's innocence was clear, as was also the prosecutor's guilt.

". . . society cannot suppress lawlessness by means of lawlessness," the judge's opinion read. ". . . society cannot inspire respect for the law by withholding the protection of the law from those accused of crime. It was and is the prosecuting attorney's duty to assist in giving a fair trial to a defendant . . .

"There is one way to stop a practice that has become altogether too common, and that is to bring it to a conscious level where the public can scrutinize it and take such steps as are necessary to ensure a true rendition of justice to all. . . ."

The judge ordered Montgomery's release, on the ground that, because of the gross unfairness of his trial, he had been denied his constitutional rights. The state did not seek to try him again.

Through Kutner he brought suit against the state for $250,000, in the Illinois Court of Claims. But that court turned Montgomery down on the ground that, since the prosecutor was an employee of the county, the state had no responsibility for the methods he pursued.

Until 1956 bills were introduced in the Illinois legislature to provide compensation for the wrongly convicted man. In December of that year the most recent bill died in committee. Apparently the ten dollars he received from the prison warden, the sum given to each convict on his release, is the only compensation the state feels is due Montgomery.


1. United States ex rel. Montgomery v. Ragen, 86 Fed. Supp. 382.

2. New York Times, August 11, 1949, 1:6.

3. New York Times, August 13, 1949, 10:2.

4. New York Times, August 26, 1949, 18:6.

5. Court of Claims Report, 21 Ill. 205.

6. Letter from Judge Michael L. Igoe, December 31, 1956.