Evening star., 1951-05-06
|CIark's S Dissent
AssaiIs Reversal
In Rape Case
Totum, Given Deuth
For Attack on Child,
Granted New TriuI

GRANTED New rioI
A new trial will be scheduled in
District Court soon for Ernest
Tatum, 28-year-old laborer, whose
conviction and death sentence on
charges of raping a 9-year -old girl
have been set aside by the United
States Court OF Appeals.
The reversal, in which the court
split 2 to l. was denounced in a
dissenting opinion by Judge Ben
nett Champ Clark as "the most
shocking that has emenated from
this court and one Of the most
shocking judicial decisions
Tatum, colored, of the 500 block
of Cullinane court s. W., was con-
victed of assaulting the child in
July of 1949 on a vacant lot near
Second street and Florida avenue
N. E. The jury recommended the
death penalty.
Jury Not Instructed on Sanity.
The majority decision, written
by Judge David L. Bazelon, was
based on the grounds that Judge
Alexander Holtzof failed to in
struct the jury on the essential
issue" of Tatum's sanity.
Judge Clark insisted, however,
that the defendant did not offer
"a Scintilla of evidence in his
own defense except to say that he
could not remember what had
occurred"
| The majority opinion, con-
CURED in by Judge E. Barrett
Prettyman, pointed out that
Tatum's defense rested on his
story that he had been drinking
on the day in question and
remembered nothing.
| The question of whether Tatum
was sane or not was raised by
testimony Of two Government
pSychiatrists that. in their opin-
ion, Tatum was of sound mind on
the day of the crime.
Missouri Decree Recalled.
/ The majority held the sanity
issue ha dbeen Sufficiently raised
by testimony at trial to require
its submission to the jury under
guidance of instructions, and
noted the complete absence of
instructions" by the court on this
/ point.
The disSenter called the decision
"one step below the famous de-
cree OF the Supreme Court of Mis-
souri,, many years ago, when it
reversed outright a first degree
murder case on the ground that
the grand jury had inadvertently
left out the word the in the in
dictment.
1T is not necessary" added
Judge Clark, to recount in all
its horrid details this most re-
Voting of crimes. Suffice it to
say that the defendant raped a
little 9-year-old child.
An Affirmative Defense.
Here at a time when the wave
OF sex crimes has reached such
an alarming extent that Con-
gress, the bar. the prosecuting
ohcials. the public and the press
have been aroused as never before
to the necessity of stamping it
out. it remains for the highest
court OF this jurisdiction to f1out
the necessity for reform by re-
versing this case on a technicalitv
SO fiimsy and unsound that it had
to be evolved out of the inner
consciousness of a member of the
majority"
Later in his dissent Judge Clark
declared:
Insanity is an affirmative de-
fense. In this case no insanit has
been alleged except by the major
Ilty OF this court. It was not an
issue at the trial. The issue is
wholly created by the majority of
this court"
Sees No Reversible Error.
Judge Clark admitted that the
trial court ''is perhaps to be CEN
sured for telling the jury that
Tatum was guilty even after ad-
mission of his own counsel" but
declared that was not reversible
error.
Defense counsel had fought to
keep Tatum from receiving the
death penalty, which is possible
in a rape case only when recon-
mended by the trial jury.
In considering his dissent, Judge
Clark said:
"In my settled Judgment this is
a sad day for the enforcement of
the criminal law and for the safety
of women and children in the Dis
trict of Columbia"