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Mono Indian continued his fight

Madera Tribune File Photo

Rayna Tom Carmen is shown here in a 1951 photo from The Madera Tribune.


In June 1950, Sheriff W.O Justice transported Rayna Tom Carmen to San Quentin Prison where he was lodged on Death Row. The 39-year-old Mono Indian from North Fork had been found guilty of shooting 16-year-old Wilbur McSwain to death and attempting to kill his brother, Alvin McSwain. The McSwain brothers were also Mono Indians. The shooting took place at the McSwain’s home near North Fork.

As is the law in every capital case, the death sentence required an automatic appeal, and by February 1951, that process was underway. The appeal judges examined the trial record and ruled that everything was okay. They upheld the murder conviction and the assault to commit murder conviction. Mason Bailey, however, would not sit still for this.

The defense attorney who, without equivocation, was absolutely determined to save Carmen’s life, stepped onto the stage. To this day, no one can explain Bailey’s unshakable resoluteness to keep his client out of the gas chamber. For ten years, it became almost a monomania for the former Superior Court Judge. That’s why he took the case to the California State Supreme Court.

The High Court took note of the discrepancies between the witnesses for the prosecution and those of the defense. Carmen had testified that he didn’t slap Josephine Davis in his argument with her, but merely “patted her playfully on the face … to quiet her.” He also had testified that the McSwain brothers didn’t just intervene; they struck him in the face, knocking out several teeth and pinning him to the ground.

Carmen went on to give the following testimony: 1) that he “suffered severe pain in his head all the time thereafter until and after he was taken into custody; 2) that he does not remember making threats at Kilroy’s Stand; 3) that he went to the McSwain home to find out what the trouble was all about and to see what, if anything, he had done wrong; 4) After leaving the porch at the McSwain home he stepped in a hole while approaching the car and stumbled. When he recovered his balance the rifle came up in a firing position and discharged (the shot that killed Wilbur); 5) He was merely shooting at the car when he wounded Alvin McSwain.

The court also noted that there was evidence that Carmen purchased a bottle of whiskey and drank some of it in the course of the evening and also drank some beer. The officer to whom Carmen made a statement testified that the defendant said he fired the gun, not pointing at anyone but just to scare the McSwains.

As the Supreme Court weighed the evidence, it noted that no one was contending that there wasn’t enough evidence to support a first-degree murder conviction, but it also noted that a case could possibly be made for a manslaughter conviction, and that’s what got Rayna Carmen off Death Row for a little while.

Bailey admitted that he could see the possibility that a jury could convict Carmen of first-degree murder, but he also contended that, given the same testimony, a jury might have voted for manslaughter, and on that point, Bailey contended, hung cause for a reversal.

Bailey charged that Judge Murray had committed a judicial error by not instructing the trial jury that it had the option of choosing manslaughter over first-degree murder. Judge Murray had even gone so far as to openly refuse to give the jury any instructions on manslaughter, although both the prosecution and the defense requested them.

The appellate court had refused to overturn the murder conviction, hands down, but on March 1, Carmen received a new lease on life. California’s highest court affirmed Rayna Carmen’s conviction on the assault with the intent to commit murder on Alvin McSwain, but it reversed his conviction on the murder charge, ruling that the trial judge had erred in not including manslaughter in his instructions to the jury. On June 14, 1951, after a year on death row, Rayna Carmen was brought back to Madera by Undersheriff Marlin Young and Deputy Bill Helm.

In the meantime, some legal twists emerged among the team that was trying to have Carmen executed. First, Madera County got a new district attorney in 1951, Walter Chandler. Second, the new D.A. announced he could not prosecute the case because Carmen had sought legal advice from his law firm in 1950. Third, given this prosecutorial vacuum, the state stepped in and assigned a high-profile, San Francisco lawyer, Andrew Eyman, to prosecute the case. Through it all, Mason Bailey remained steadfast.

On Oct. 1, 1951, Rayna Carmen’s retrial for murder in the Madera County Court of Judge Stanley Murray began. They brought him back shackled into the same courtroom where he had received his first death sentence. The same judge was ready; the prosecutor was ready. It would be done right this time; the state was determined that he was going to pay, but they forgot that Rayna Tom Carmen was an Indian.

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To be continued…

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