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Background photo of the beach at Whale Cove was made by Bryce Buchanan in 2004. (Via WikiMedia Commons, cc/by/SA)
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Also, the court did not require the grand jurors to be sworn, nor did it examine them as to qualifications — again, raising the specter of jury-picking.
Finally, the verdict wasn’t rendered in open court, nor in the presence of the defendant. Apparently the jury just sent word to the judge that the guy was guilty, and went home.
So the case went to the Supreme Court on appeal — and the Supremes handed down an absolutely astonishing verdict on the case:
They acknowledged the errors, but affirmed the verdict anyway. They explained that, given that O’Kelly was obviously guilty, because his was the territory’s first murder case, letting him off on even a very serious technicality would be poisoning the well of justice at its very source.
“Time was when the unfortunate accused was dragged to trial without counsel, or a fair chance for self-defense,” Chief Justice George H. Williams wrote, by way of explanation. “Then other rules prevailed, and courts tried to make technicalities the means of justice; but, when a prisoner comes before our courts with more privileges and presumptions in his favor than he otherwise could have, these olden rules cease with the reasons on which they rested, and criminals cannot be allowed to take refuge from the judgments of our liberal laws in the cobwebs of an antiquated practice.”
Perhaps hoping the territorial governor would take the hint and remove this somewhat thorny problem from his plate, Williams added that executive clemency was the only appropriate way to address procedural errors in a case where a defendant’s guilt was stark and obvious, adding, “If judicial compassion now bends the laws to suit a seemingly hard case, a door may be opened through which the midnight assassin and mercenary murderer may escape from the punishment due to their crimes.”
And now we come to a point in this story where sources conflict.
In his 1935 article, McNary writes that the governor did not intervene, despite the pleas. So, the local court scheduled June 9, 1854, for the hanging. But the hanging never took place, because the Cavalry came to the rescue — almost literally.
It seems that O’Kelly’s allegedly-imaginary wife, Sarah O’Kelly, left Missouri on the Oregon Trail in the spring of 1854 to join her husband, along with their several children. Word reached them en route that O’Kelly was about to be hanged for murder. So their oldest son took a horse and raced ahead of the wagon train.
He beat the clock, appearing at the Benton County sheriff’s office and introducing himself to Sheriff T.J. Right, and letting the lawman know the rest of the family was on the way.
This, of course, changed everything. O’Kelly went from a pirate trying to unlawfully seize another man’s land by force of arms, to a legitimate landowner defending himself and his property from — well, a pirate. It also was, in that age, far less of a big deal to hang a single man than it was to deprive an innocent wife and children of their family breadwinner.
Sheriff Right opened the cell door and set O’Kelly free — although he had no authority to do any such thing, he was confident that the law would catch up and everything would be all right.
This was certainly irregular, and that irregularity is something to consider, because historian Ronald Lansing (writing in 2005) gives a completely different account.
According to Lansing, the governor’s office actually intervened three times in the case, each time under a different governor: first to delay the hanging while the Supreme Court considered the appeal; again, after the Supreme Court’s sentence, in response to Justice George Williams’ hint, when he commuted the sentence to two years in prison; and a third time, in March 1856, when he was actually pardoned.
In any case, eventually the O’Kellys did get their full section of land — but it didn’t happen until 1881. By the time it did, Nimrod O’Kelly had died of old age; but he probably would have been content to know his wife and children at least had a home.