Friday, December 16, 2011

Might O. Henry deserve a posthumous pardon for actual innocence?

After Grits' recent discussion of writer William S. Porter's (O. Henry's) 1898 federal embezzlement conviction in Austin - and President Obama's decision to quote the Texan writer, whose own pardon prospects have been perennially snubbed, while pardoning a pair of Thanksgiving turkeys -  I revisited some of his short stories and picked up the earliest of several biographies, one by C. Alphonso Smith published in 1916.

To refresh Grits readers' recollection, Porter/O. Henry had been working as a bank teller and part-time newspaperman in Austin in the 1890s, publishing a weekly magazine that boasted a circulation of 1,000 in a town which at the time was home to roughly 11,000 souls. After he was accused of embezzlement, while out on bail, he took a job as columnist for the Houston Post, publishing there for several years and burnishing his reputation both within the industry and at his own publication. When it came time for the trial, though, he panicked. Porter actually boarded the train to Austin that fateful day, planning to return to face charges. However, wrote Smith, fearing the public humiliation of a trial and the permanent stain of lingering suspicion thereafter, even if acquitted, Porter's "imagination outran his reason" and he got off the train in Hempstead, deciding to flee first to New Orleans and then to Honduras. He'd planned to stay there until the statute of limitations expired, hoping his wife would come join him, but sooner than he expected he returned to Austin to care for his wife when she became terminally ill.

This particular biographer believed, based on interviews with jurors and various Austin trial watchers, that the decision to flee was the key fact that convicted Porter, despite what turned out to be incredibly flawed evidence of actual embezzlement presented by prosecutors. Mr. Smith reviewed trial transcripts and evidence and interviewed the attorneys involved as well as Austinites who followed the trial. He concluded that, had Porter gone back to Austin instead of absconding:
he would certainly have been acquitted. He protested his innocence to the end. "A victim of circumstances" is the verdict of the people in Austin who followed the trial most closely. Not one of them, as far as I could learn after many interviews, believed or believe him guilty of any wrong doing. It was notorious that the bank, long since defunct, was wretchedly managed. Its patrons, following an old custom, used to enter, go behind the counter, take out one hundred or two hundred dollars, and say a week later: "Porter, I took out two hundred dollars last week. See if I left a memorandum on it, I meant to."  ... Long before the crash came he had protested to his friends that it was impossible to make the books balance. "The affairs of the bank," says Mr. Hyder E. Rollins, of Austin, "were managed so loosely that Porter's predecessor was driven to retirement, his successor to attempted suicide."
Even more intriguing, from the perspective of considering the merits of a posthumous pardon for the writer:
One error in the indictment was so patent that it is hard to understand how it could have gone unchallenged. He was charged, as has been stated, with having embezzled $299.60 on November 12, 1895, "the said W.S. Porter being then and there the teller and agent of a certain National Banking Association and there known and designated as the First National Bank of Austin." Nothing in O. Henry's life is better substantiated than that on November 12, 1895 he was living in Houston and had resigned his position in the Austin bank early in December 1894. And yet the reader will hardly believe that this flagrant inconsistency in the charge against him has remained to this moment unnoticed. The foreman of the grand jury and the foreman of the trial jury are reported to have regretted afterward that they voted to convict. "O. Henry was an innocent man," said the former, "and if I had known then what I know now, I never would have voted against him."
The failure to catch the disconnect on dates is one of the more egregious examples of incompetent defense counsel I've ever heard of. Outlandish! We've recently seen a case in Houston where a fellow sentenced to life in prison was discovered after the fact to have been in jail at the time the offense was committed. O. Henry's conviction appears to suffer from similarly irreparable flaws, except that nobody caught them until years after he'd already served his sentence and died!

I was half joking when I first suggested President Obama, or his successor, should pardon O. Henry, but if the account of C. Alphonso Smith is accurate, then the writer's conviction represents a serious injustice. Gov. Rick Perry issued a posthumous pardon for Timothy Cole to clear his name when he turned out to be actually innocent. You could make a similar case for posthumously pardoning Will Porter, whose pseudonym to this day graces an Austin middle school as well as the nation's most prestigious short story prize. From this account, it sounds like O. Henry got a bum rap.

RELATED: Eat the turkey, pardon O Henry! President quotes Texas writer but won't pardon him.


ckikerintulia said...

Does POTUS have the power to pardon those convicted by a state court,or is it only the governor who can do that?

Gritsforbreakfast said...

These were federal charges, Rev., which is why he did his time in Ohio, so this one is on the feds.

On the question of whether POTUS can pardon state charges, I simply don't know offhand.

ckikerintulia said...

Thanks for the info. I think the "turkey pardons" represent a stupid tradition. I think the GOP candidates might have some leverage in pushing for pardon of Porter.

margy said...

Article II, section 2 gives President power to pardon "offenses against the United States" - which means federal offenses not state.

Gritsforbreakfast said...

"margy" happens to be one of the premier clemency experts in the US, so what she says. :)