The Boy Nevada Killed
Page 12
I do not question the justice or injustice of the retribution demanded by law as a result of this boy’s actions. I seriously doubt, however, that the forfeiture of the young man’s life will in any way reliever or ameliorate the wrong which has been done, whether deliberately or impulsively. Floyd Loveless was an adolescent boy when this offense occurred, and consequently it is somewhat questionable whether the rigidity of criminal law should apply to his situation. For any lesser offense, it is probably that the case would be handled by a lesser court as an instance of juvenile delinquency; hence, it is the degree of the offense rather than the culpability of the offender, which receives primary consideration.
It would be a tragic thing if society demands the life of this young man, in payment for the unquestionable offense which he has committed, rather than making a determined effort to rehabilitate the tangled and confused personality fabric which Floyd possessed because of his neglected earlier years. I only wish that I could offer a haven to this young man at Boys Town, but his is older than the group for whom our program has been devised. However, other agencies exist which could do much toward the molding of a worthwhile citizen, in contrast to the negative approach of mortal punishment. I truly hope that you will find it possible to intercede in this boy’s behalf, and grant him whatever executive clemency might be possible under the circumstances.
Sincerely yours,
Rt. Rev. Msgr. E.J. Flanagan
One of the most compelling letters written for commutation came from district judge L.O. Hawkins eleven days before Loveless was executed. Hawkins, who had met with Loveless in the Humboldt County jail shortly after he was apprehended, wrote.
My dear Governor;
I am writing on behalf of Floyd Loveless who as I am informed petitioned the Board of Pardons and Paroles to have his sentence of death commuted to life imprisonment; which petition is to be acted upon on the 22nd of this month.
Have mailed to the Board of Pardons and Paroles two petitions signed by approximately ninety residents of Las Vegas, Nevada. One of those petitions bears the signature of nineteen lawyers actively engaged in the practice of law here at this time; five of the lawyers here are not signers of the petition, three of them not being available and two declining to sign the petition. I talked the matter over with Judge George Marshall before preparing the petition and was informed by him that he was wholly in sympathy with the purpose of the petition and believes as I do that there is a grave question of the legality of executing a child under the age of 18 years in Nevada, but felt it better that he not sign the petition, as it might be considered as implied interference by the Judge of one court with the acts of a Court of similar jurisdiction.
About five years ago I tried an Indian boy in Lovelock on his plea of guilty to the charge of murder and after hearing the evidence and exhaustively studying the authorities construing juvenile acts similar to that of Nevada, sentenced the boy to the state’s prison for life. That boy was only a week or two short of being 18 years of age at the time he shot and killed one of the most prominent and well-beloved women of Lovelock, and was passed 18 years of age when the charge of murder was filed against him.
In studying the juvenile laws of this state and other states at that time and reading many authorities where juveniles were accused of murder, spending at least fifty hours in investigating and reading many decisions of cases, the result of that investigation satisfied me it is the intent and purpose of our juvenile laws, if not is legal effect, that a child under the age of 18 years is not to be executed for his crime; no matter what the circumstances, and because of that belief I sentenced that Indian boy to life imprisonment rather than to be executed. His crime was premeditated, and without any element of justification and provocation; a cold-blooded wanton killing.
No one can justifiably accuse me of being unwilling to impose the death penalty in a proper case, as I have imposed that sentence several times; once in the Ceja case (53 Nev. 272) on a plea of guilty and without trial by jury.
Now since the recent conviction in the Loveless case I have studied over our juvenile and criminal laws many times; have read many additional authorities and am satisfied that the execution of Loveless by the state of Nevada will be an illegal and unlawful act; something that should be prevented. While I am not criticizing anyone having to do with that prosecution, the verdict, the sentence or the affirmative of the death sentence flowing from the verdict of guilty of murder in the first degree; I do insist that those responsible therefore have not gone into the matter of the punishment to be imposed upon juveniles when the charge against them is a capital one as thoroughly as possible, and believe had they read all the authorities available regarding that matter they would have concluded as I have. There is enough doubt concerning the legality of imposing a death sentence in Nevada to justify the commutation of that sentence to life imprisonment. I sincerely hope you will vote to commute the sentence of Floyd Loveless from death to that of life imprisonment.
Yours truly,
L.O. Hawkins
HOLDING OUT
It was summertime again. Mrs. Nettie Loveless could hear children laughing as they went about their play. Only a few summers ago, the laughter of her grandson Floyd was part of the noise. He, his brothers and the dog would run back and forth, back and forth, until the little boys dropped of exhaustion, the dog panting heavily. She glanced at the shelf of photos. There was Floyd, in his white baby dress, tottering toward the camera—forever, just a sweet baby. She dabbed at her eyes with a handkerchief. She didn’t believe that Nevada would go through with the execution—she had to hope they wouldn’t. She picked up her fountain pen. She had to write another letter.
July 25, 1944
Dear Mr. E.P. Carville,
Once more I am writing about my grandson Floyd Loveless hoping you will spare his life he is so young and he was a good boy everyone liked him he was liked by all his friends until this awful thing happened to him. Please spare his life I no [sic] he has done wrong but I think God has forgiven him. I have been praying for him and I no [sic] you are a good man. And surely he could be spared from Death. Everyone feels so sorry for him. It seems just like a dream, I wish it was. He was always so good to me I hope you will do all you can for Floyd. I can’t be with him to share his trouble. God will take care of him is my prayer. Hoping to hear from you.
Mrs. L.B. Loveless.
Governor Carville responded on August 2, 1944.
Floyd Loveless as a baby. Photo courtesy of Robert Kay Loveless.
Dear Mrs. Loveless,
I have your letter of July 25th and I want you to know that you have my deepest sympathy at this time when you are suffering for your grandson.
At the present time I do not know whether Floyd’s case will come to the State Board of Paroles and Pardons, of which I am Chairman. If it does come before this Board at a commutation hearing, I want you to know that the verdict that is given by the members of this Board will be one that is made after most serious consideration of all phases of the case.
I have inquired of the Warden how your grandson is and have been told that he is in good health and that he has been a good boy while he has been an inmate of the Nevada State Prison.
Very truly yours,
E.P. Carville Governor
The verdict came in August. The Nevada Supreme Court denied Floyd Loveless’s second appeal. Wines had contended that the killing of Constable Berning was second degree (which would have carried a lesser sentence). The court disagreed. In the opinion written by Justice Ducker, it is stated,
We cannot lend our assent to this view. On the contrary, the circumstances of the case are such that we feel no difficulty in determining that the jury were well justified in finding that the killing of the officer, was willful, deliberate, and premeditated. Putting aside the evidence which discloses that the accused was a criminal character who, shortly prior to the killing had traversed the streets of Elko armed with a concealed and deadly weapon, looking for an oppo
rtunity to commit a crime.
“The judgment and order denying the motion for a new trial appealed for are affirmed, and the district court is directed to make the proper order for the carrying into effect by the warden of the state prison,” the judgment rendered.
Judge Dysart set the execution date for September 29, 1944.
August 16, 1944
Dear Taylor
RE: State V. Loveless
I have just received a long distance telephone call from Mrs. Brodigan, Clerk of the Supreme Court. She advises that in a unanimous opinion written by Justice Ducker the Supreme Court affirmed the judgment of the Elko County District Court carrying a death sentence and directed the lower court to make the proper order for carrying into effect the judgment rendered. I presume that I will receive a copy of the opinion tomorrow.
Within the next few days, I will go to Carson City and see Loveless at the State Prison and have him sign a written application for commutation of his sentence from death to life imprisonment. In the meantime I have called Mrs. White and she will commence circulating a petition in Reno, petitioning the Board to commute the sentence to life imprisonment. She has also called Judge Hawkins at Las Vegas and requested him to circulate a similar petition. I assume that it would be futile to circulate a petition at Elko. However, if you think it wise, I suggest that you get some friend to circulate a petition there.
I am still hopeful that we can get the Board to commute the sentence. I will keep you advised of developments here.
With kin personal regards, I am sincerely yours.
Oliver Custer
On August 18, 1944, the day after the Supreme Court denied him a new trial, Floyd reached out for help. At the behest of fellow inmates, he chose to turn to Frank B. Robinson, the controversial founder of the Psychiana religion. Robinson, who founded his mail-order religion during the Depression, regularly advertised his books and lessons in different publications. Robinson’s ideas of God power, unlimited power and affirmation were impressive and helped garner him a following.
Using a typewriter provided by Mr. and Mrs. Whitney, Floyd typed his letter with, it would seem, help from someone who had a better mastery of grammar and a flair for the dramatic.
August 18, 1944
Dear Mr. Robinson,
As the prophet of old said in his hours of trouble, “I am oppressed, O Lord! Undertake for me.” I too, am in trouble and need your help. I have nothing to offer but my sincere belief that you can help me. In the following statements I shall try to state why I need your help. I am too young to have the experience that you have in dealing with the major difficulties of life so may I ask you to try to understand why I am calling on you. I have heard of your wonderful success in the field of guiding others to health and happiness so I, too, need that guidance.
Yesterday the State Supreme Court of this state denied me a new trial, confirming the sentence of the lower Court that I must die in the lethal gas chamber for having killed one A.H. Berning in 1942. At the time of this offense I was only fifteen years of age, and should I [have an] alibi I would say that I was not responsible, but, that alone would not suffice. I had been committed to an Industrial School in Indiana and had run away from there to avoid the physical punishment inflicted on the least provocation, therefore, when the gentleman in question stopped me for questioning I shot him rather than be subjected to what I thought would be a return to the living hell I had left. Instead of relieving the situation I made matters worse. I wish to make clear that I am not laying any blame on anyone except myself. Now that I realize the awful mistake I made I am asking that you intercede with the God-Power that I may have a chance to life and what happiness I can gather from the ruins of my past. As I stated above I have nothing to offer but my sincere belief that you and those you have so wonderfully helped can help me to another chance.
Dr. Robinson, any consideration given my humble pleas in my hours of distress will be greatly appreciated. May I thank you for the time and trouble expended in listening to my story and may I lean on you.
Most humbly yours,
Floyd Burton Loveless
Ten days later, Frank Robinson wrote to Governor Carville.
My dear Governor,
I do not know your name. I don’t believe I need to. I receive many strange, urgent requests for help in the course of a year. Several similar requests to the enclosed have come to me, and, I am happy to say, I have been instrumental in saving more than one life thru a simple letter to the Governor of the State involved.
I know nothing about this case sir, I do know this boy is but 17 years of age. I know that my own son, a beautiful boy of 19 is flying a Torpedo Bomber far out over the Pacific Ocean tonight, doing his part to make justice and liberty safe for this war-maddened world. I trust he is also fighting for the element of mercy.
Governor—is there not some way in which the life of this young man can be reprieved? Could you not find it in your heart to grant him a reprieve? It’s hard for one so young to die in a gas chamber—is it not?
I know the Laws must be upheld. But I also know that One, far greater than I said, long ago—“Though your sins be as scarlet, they shall be as wool.” This young man has killed another man, and the Law demands his life. But Governor—you have the power to reprieve him. Won’t you please do this?
If there is a way in which I can help, won’t you please tell me what that way is?
Please let me hear that you have decided to save the life of this boy, whom I do not know, and have never heard of before. You will find a great satisfaction coming into your life if you will. Thank you for listening to me. Governor Bottolfson [sic] of our State can tell you about me if you need further information.
Cordially yours,
Frank B. Robinson
In response, Governor Carville replied:
August 29, 1944
Dear Reverend Robinson,
I want to thank you for the very fine letter you have written in behalf of Floyd B. Loveless, who has been sentenced to death in the Courts of the State of Nevada.
Undoubtedly a commutation hearing will be had in the near future by the Nevada State Board of Paroles and Pardons on Floyd Loveless’ case. As Governor of the State of Nevada, I am chairman of this Board, but it would be impossible for me to give you any idea as to the decision of the board, or a possible decision of it, before the case is thoroughly gone over at the hearing.
You may be assured, however, that each member will be impressed with the seriousness of his decision and to the very best of their ability will show the greatest amount of justice possible.
Sincerely yours,
E.P. Carville, Governor.
True to Frank B. Robinson’s word, the governor of Idaho C.A. Bottolfsen wrote to Governor Carville that same day:
August 29, 1944
Dear Governor Carville,
I am writing you on behalf of Frank B. Robinson of Moscow, Idaho, who has written regarding a 17 year old boy condemned to die in Nevada. I have known Robinson for a number of years and have always known him as a man looking out for the best interests of others. He has at all times looked toward the betterment of the community even though it meant personal expense to him. I do not hesitate to recommend him as one of Idaho’s outstanding humanitarians.
I hope that this letter will better acquaint you with Mr. Robinson. I know that he is writing to you only because of his great interest in the welfare of others. With best wishes, I am
Yours very truly,
C.A. Bottolfsen Governor
Neither Wines nor Custer was surprised at the Supreme Court’s decision denying a new trial for Floyd. Now they would have to put their final plan into action: a commutation hearing. September 29 was fast approaching. Without Floyd’s signature on the application for commutation, his execution date would stand. Taylor Wines and Oliver Custer believed there was a good chance of having the boy’s death sentence commuted. But he had to fight. As the days wore on, he seemed less inclined to do so.
Oliver Custer decided to take a chance. Instead of going to the office on Tuesday morning, August 22, 1944, he drove down to the state prison in Carson City. With the mandatory war speed limit in effect, the trip took nearly an hour. The time wasn’t wasted. Alone in his car, Custer outlined the steps he and Taylor Wines would take for Floyd’s commutation hearing. Promising himself to remain optimistic until the end, Custer steeled himself for his meeting with Floyd. He would be positive.
The teenager greeted him warmly. He didn’t get many visits and was happy to see anyone from the outside, even an attorney he barely knew. The meeting lasted less than an hour. In that time, Floyd told Oliver Custer about his life back in Indiana and of losing his mother while he was still a toddler. He didn’t remember her. It was too long ago. But he had always known that her death—and the secrets surrounding it—had somehow set him and his brothers apart from the other kids.
“I wanted to prove to the others that I could make good. Make something of myself.” Floyd looked at the paper and fountain pen that Custer had taken from his briefcase.
“Both Mr. Wines and I believe you have a good shot at this Floyd—”
“No, I don’t want to ask for a commutation, Mr. Custer. This is no life. I had rather die in the gas chamber than have to live in this place for the rest of my life.”
“What does your family want you to do?” Custer asked.
“They want me to try, but—”
‘Well, then, perhaps you ought to do it for them.”
Custer had found his motivator. Floyd picked up the pen and signed the paper. “There’s nothing here for me, Mr. Custer.”
Custer was used to keeping his face an unreadable mask. Used to holding his emotions in check, nonetheless, he would think about the boy’s words on the long drive back to Reno and for a very long time afterward.
When he returned to his office, he dictated the following letter to Taylor Wines.
Dear Taylor,
I have just returned from Carson City, where I had a conference with Floyd Loveless.