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Last time, sister mine,
we left off with a hard question.

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What makes a statement reliable
enough to use, and who gets to decide?

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Tonight, we follow
the people who had to decide.

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Two juries, two trial judges,
and the Louisiana Supreme Court,

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which sent her case back twice.

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My stack of stories is thinner tonight.

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Most of the old stories rush from her
arrest straight to the electric chair,

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like nothing happened in between.

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Two whole years happened
in between, Vangie.

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Most of what we know about them
comes from the court opinions,

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so my folder does a lot
of the talking tonight.

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Then tonight, I'll do what I
did for Joseph on that road.

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I'll keep stopping us when it matters.

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So, before anything else, I want you
to hear three words that run through

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this whole episode,
without capital punishment.

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Then, tell me what those three
words meant in a Louisiana courtroom

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in 1940.

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Well, here goes.

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The jury could find her guilty
of murder and add those words

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to the verdict.

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Under the law then, that meant life
at hard labor instead of death.

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So, even back then, a jury could believe
she was responsible for Joseph's death

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and still choose to let her live.

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That difficult choice belonged to them.

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Keep it close, because nearly every
fight in this episode comes back to it.

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Joseph's family had already lost
him before any of this began.

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Whatever those juries decided,
nothing was ever going to bring him home.

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That's 100% true, and now the state
was asking for a second life.

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That's why every decision
in that courtroom carried so much weight.

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In our last episode, I promised
we'd come back to her aunt's house.

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Here's what Emma Holt told the court.

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In some of the stories,
it's a madam who calls the uncle.

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You already showed me it was her aunt.

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According to Holt's testimony on record,
her niece arrived very nervous and said she

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had shot a man.

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That first remark came
before any promise of help.

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Then what changed after that first remark?

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Holt promised to do what she could
to help her avoid hanging and said

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she would try to get
her brother to help, too.

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After that promise, Holt said
Toni Jo told her the details.

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The aunt's brother
was Captain George McQuistion.

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The uncle in the state police.

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So, a frightened young woman ran to family,
and family made her a promise.

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Officers testified that they
took her to that uncle,

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and he spoke with her alone.

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Afterward, at his direction,
she told the officers about the killing.

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So then, what did he
say to her in that room?

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Emmie, that's just where you find the gap.

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Her uncle never testified.

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So no one told the jury
what passed between them.

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So I won't fill that silence with a guess.

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But I'll say this, dear heart:
a promise from your own blood,

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when you're that scared,
could weigh heavier than any badge.

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That's exactly what the law asked about.

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Before a confession could go to a jury,

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the state had to show it
was given freely and voluntarily.

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Then did the state manage to show that?

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The Louisiana Supreme Court said it didn't.

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The state hadn't shown that the promise's
influence had ended before she talked

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to the police.

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So those confessions shouldn't have
gone to the jury on that foundation.

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So that doesn't mean she never
said those things, does it?

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No, sister, it doesn't.

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Ruling on how a confession was obtained
isn't the same as deciding it

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was false.

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We'll hear her own later
words in the final episode.

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Her first trial opened on March 27th, 1940.

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She was 24 years old.

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24 years old.

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Folks have spent 80 years making
her a monster or a pin-up.

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I keep wanting to say she
was just a young woman sitting

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in a chair, scared half to death.

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By the 29th, the jury had
found her guilty as charged,

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and she was sentenced to death.

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Three days in that court.

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Paint me that room, sister, because
every story I've read says it was packed.

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This is one place the record
backs the stories up.

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The Supreme Court describes people
standing in the aisles and pressed around

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the lawyers’ tables so close to the jury
box that defense counsel sometimes couldn't

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see some of the jurors.

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It also describes hanging gestures seen
by jurors and shouted demands that she be

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hanged.

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Some of this craziness happened while
the jury was walked through the street

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to their meals.

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Lord have mercy and all
the saints in heaven.

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Imagine sitting in that jury box with the
crowd already shouting the ending they

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wanted.

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Several of the jurors testified
it didn't influence them.

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The trial judge said deputies kept
reasonable order and that he couldn't

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prevent every demonstration.

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So what did the High Court
make of the judge's answer?

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In fact, it disagreed.

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It said he had the power to punish
that kind of conduct as contempt

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and the conditions went on after
requests to clear the crowd.

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Then it was never only about
whether those jurors were strong.

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It was about what the court
allowed to happen around them.

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Every retelling of the stories
in my stack opens with her hard childhood.

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Her mama gone young, a cruel daddy.

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People hold on to that part
because it seems to explain her.

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Some of that did reach
the jury through her aunt.

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Holt testified about the early loss
of her mother and a father she described

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as cruel.

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Then what happened when
Toni Jo took the stand herself?

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Her own lawyers tried to have her tell
her own history and the surroundings

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she grew up in.

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The prosecution objected
and the judge kept that part out.

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Remember those three words, Emmie?

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That jury was deciding whether she
lived and they couldn't hear her life

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from her own mouth.

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That's real close to what
the Supreme Court said.

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Her testimony about her hardships was
relevant to punishment and should have been

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admitted.

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I don't need her childhood
to excuse a single thing.

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I just believe a jury choosing life
or death ought to hear the life.

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Now, sister mine, this part I need us
to walk through gently because it's

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about Joseph's family.

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Joseph's widow, Lulu Pearl, came
to the trial with their daughter, Lita.

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The court describes Lita as 17.

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She was 17.

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Of course they came.

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That was her daddy
and Lulu Pearl's husband.

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In its first opinion, the court
describes them seated inside the rail

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with the prosecution facing the jury.

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Then, it also describes newspaper
statements by the special prosecutor,

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J. P. Copeland, about bringing them
to court to arouse sympathy and counter any

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sympathy for Toni Jo.

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Over the defense's objection,
they stayed in those seats.

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Later, Copeland pointed to them during
his argument and spoke of their sorrow.

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Neither of them had testified.

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Their grief was real, every bit of it.

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They didn't owe anybody forgiveness,
and they did nothing wrong by sitting

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in that courtroom.

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That bit of criticism wasn't aimed at them.

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It was aimed at how their presence
was used and at the trial court

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for allowing it.

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Then, we hold both, sister.

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Their loss gets its full weight,
and so does the question of what

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a fair trial asks of everyone in that room.

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Here's one I hear all the time.

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Poor girl, no money, nobody fighting
for her, so of course she lost.

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Fully half of that is true.

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She couldn't afford a lawyer,
so the court appointed two.

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Clement Moss and Norman Anderson.

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Their practice had been mainly civil law,

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and they asked for more time to prepare.

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Then did they get the time they asked for?

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In fact, they did not, and the Supreme
Court said the roughly 25 days

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was enough.

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But it also praised their industry
and their intelligence.

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So the other half of my story falls apart.

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Somebody was fighting for her.

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They truly fought hard, Vangie.

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Nearly every problem we've talked about
tonight reached the Supreme Court because

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those two lawyers objected on the record.

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Then, they're part of the reason
we can tell this at all.

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On November 4th, 1940, the court set
aside her conviction and her death

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sentence.

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Toni Jo would be tried again.

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Meanwhile, her case was on appeal.

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The two men in her story
were facing their own reckonings.

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Let's start with Cowboy, since he's
the one everybody wants to talk about.

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So that February,
a Texas court convicted him,

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and the prison ledger shows him
received on February 8, 1940,

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under a 50-year entry.

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As far as the record shows,
he was still in a Texas prison while

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she stood trial.

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Here's the best and the worst
of Cowboy, the way I see it.

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If the officials had it right,
he's the one who told her to tell

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the whole truth.

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If the old story's right, the plan
that put her in that courtroom started

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with getting him out.

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That first part?

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It comes from officials'
accounts in the papers.

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That second part is still the legend
we haven't been able to confirm.

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Don't I know it, sister?

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So I'll only say this much.

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Whatever he felt for her, he
couldn't reach her where she was.

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She faced those juries without him.

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Then we have Finnon Burks,
the man the papers called Arkansas.

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He was tried separately,
convicted, and sentenced to hang.

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So I'll be completely honest.

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I've never felt much of anything for Arkie.

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But I want to know him
better before I judge him.

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Here's something that might help.

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At his own trial,
he didn't ask to be acquitted.

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He told the jury Toni Jo fired the shot,

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and he asked them to spare his life
with those same three words.

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So he was fighting for the same
thing she was, a little more life.

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Then, during Arkie's trial, the assistant
district attorney told the jury he would

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ask the judge to explain
pardon and commutation,

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and that the average prisoner sentenced
to life served no more than 10 years.

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Lord.

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So that jury was told those three
words might only mean 10 years.

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The state of Louisiana's Supreme Court
didn't treat it as a reversible error.

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The trial judge said the defense
had pictured life as the rest

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of his natural life, and he told
the jury pardon and parole weren't

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their concern.

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00:10:50,230 --> 00:10:52,890
So then what came of his appeal?

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00:10:53,230 --> 00:10:57,310
Arkie's conviction and death
sentence were affirmed in late 1940.

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00:10:57,810 --> 00:11:01,870
The same court set aside her death
sentence and let his stand.

201
00:11:03,120 --> 00:11:07,340
a young man waiting on a death
sentence while the woman he rode

202
00:11:07,340 --> 00:11:09,260
with got a second trial.

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00:11:09,900 --> 00:11:12,440
I still don't care for him much, Emmie,

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00:11:12,580 --> 00:11:15,860
but that's a heavy thing
for anybody to carry,

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00:11:15,940 --> 00:11:18,260
and his part in her story wasn't finished.

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00:11:18,780 --> 00:11:23,100
When her second trial came, the state
called him as a witness against her.

207
00:11:23,500 --> 00:11:25,840
Her second trial came in 1941.

208
00:11:26,640 --> 00:11:31,320
Her lawyers argued that Burks already
convicted shouldn't be allowed to testify

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at all.

210
00:11:32,420 --> 00:11:34,060
Did the court agree with them?

211
00:11:34,560 --> 00:11:35,960
No, it didn't.

212
00:11:36,120 --> 00:11:36,880
Not at all.

213
00:11:37,280 --> 00:11:40,220
His conviction didn't make
him incompetent to testify.

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00:11:40,580 --> 00:11:43,500
Whether the jury believed
him was a separate question,

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00:11:43,800 --> 00:11:46,800
and that question follows
us into the final episode.

216
00:11:47,080 --> 00:11:50,840
So, we have two people who had
pointed at each other in a jail

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00:11:50,840 --> 00:11:54,200
hallway, and now one of them
was on the witness stand.

218
00:11:54,640 --> 00:11:59,080
This time, though, the trouble started
before a single witness was heard.

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Before any evidence at
all reached the jury?

220
00:12:02,400 --> 00:12:04,520
Then show me where, ma douce sœur.

221
00:12:04,800 --> 00:12:06,220
Where did the trouble start?

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00:12:06,600 --> 00:12:09,600
If you can believe it,
it started in jury selection.

223
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Here's part of a question
put to a prospective juror.

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00:12:13,460 --> 00:12:16,740
Could you vote for the death verdict
without hurting your conscience?

225
00:12:17,260 --> 00:12:22,220
That seems fair enough to ask, whether
somebody could ever bring themselves to do

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00:12:22,220 --> 00:12:22,480
it.

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00:12:22,480 --> 00:12:25,020
Her lawyers didn't object to that one.

228
00:12:25,520 --> 00:12:27,360
Then the prosecutor went further.

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00:12:27,860 --> 00:12:32,060
In short, he asked, if you
were convinced she was guilty and thought

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00:12:32,060 --> 00:12:36,400
the circumstances didn't entitle
her to mercy, would you vote for death?

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00:12:36,700 --> 00:12:39,280
So, could you and would you?

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00:12:39,680 --> 00:12:42,940
Those sound alike, but they
aren't the same question at all.

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00:12:43,480 --> 00:12:46,300
Louisiana Supreme Court
saw it the same way.

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00:12:46,620 --> 00:12:50,740
It found the answers committed the jurors
in advance, under those conditions,

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00:12:50,740 --> 00:12:52,780
before they had heard the case.

236
00:12:53,040 --> 00:12:56,780
But then, those three words
never needed a special reason.

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00:12:57,240 --> 00:12:59,860
A jury could choose life
whenever it saw fit.

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00:13:00,320 --> 00:13:01,160
You got it.

239
00:13:01,320 --> 00:13:03,160
That's exactly what the court said.

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00:13:03,560 --> 00:13:06,420
Jurors could return a verdict
without capital punishment,

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00:13:06,540 --> 00:13:08,840
even if they thought the crime atrocious.

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That choice was theirs, without conditions.

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Toni Jo's lawyers objected,
and the judge overruled them.

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The opinion says every juror who served
was asked the same questions and gave

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the same answers.

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so every juror who sat had already
told the court how they'd answer

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before the story was even told.

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Yes, and there was one more problem.

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A prospective juror had read about
the case and talked about it,

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and under questioning, he said he didn't
know whether his opinion would affect

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his conclusion.

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The judge ruled him qualified.

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Oh, let me guess what the High
Court thought of that ruling.

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The court held he wasn't qualified because
his answers didn't show his opinion would

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give way to the evidence.

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On May 26, 1941,

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her second conviction and death
sentence were set aside.

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Toni Jo was 25 years old,
and she would have to face a third

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jury.

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Toni Jo, in her short life,
has faced two trials, two death sentences,

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and two times the highest court
in Louisiana said it wasn't done the way

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the law required.

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Sister, that right there?

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That's the part the old stories skip.

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The machinery made mistakes,
and it also caught some of them.

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00:14:27,260 --> 00:14:29,460
I'll admit that surprised me too, sis.

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I came in expecting
a straight line to the chair.

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00:14:32,740 --> 00:14:34,780
Definitely wasn't a straight line.

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Each correction meant a new jury,
with those same three words open to them

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00:14:39,740 --> 00:14:40,180
again.

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00:14:40,620 --> 00:14:43,560
I don't think she got a fair
shake those first two times.

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That's not only me talking either.

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The Supreme Court said so
twice in its own careful way.

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The highest court in the state said
those trials didn't follow the law.

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Next time, we read
whether the third one did.

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00:14:57,640 --> 00:14:59,580
She wasn't a monster, Emmie.

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She was a young woman with a hard
life who did something terrible

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or helped do it, and then a whole
machine had to decide what

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to do with the rest of her life.

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Toni Jo had three juries to hear her.

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Joseph asked for his life once.

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No sister, he begged,
on the side of a road,

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00:15:18,400 --> 00:15:20,660
and no quarter or mercy was given.

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That's why he stays at this table.

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Whatever we feel for her, we
never set him down.

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In the next episode, a third
trial and a conviction that stood.

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We'll see what the record keeps.

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And you are right.

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Every step of the way, sister mine.

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Joseph was there first,
and he'll be there last.

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If the signal found you, you are meant to be here.

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Subscribe and join us at 104.7 The Between

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00:15:49,270 --> 00:15:51,210
for more Stories Through the Static.

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00:15:51,830 --> 00:15:53,770
We'd love to see you drop in at the Mansion:

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