By PAUL LEO MCSORLEY, ESQ.
NOVEMBER, 1998
The epitome of a lawyer, for most, is acting as a defense counsel in a murder trial. I participated in my first murder trial a mere six months after leaving the service. In the Marines, I did not pursue a legal career. It had been my original plan, but then the hope for a separate Marine JAG (Judge Advocate General) Corp fell to budget cuts. I had the opportunity to act in the much-publicized case of Drill Sergeant McKeown. I chose not to accept an appointment as assistant counsel and went instead to be interviewed by the Base Commander, Gen. Joseph Earnshaw. Such a position I believed would help my advancement in the Marines in which I had now intended to remain. I applied for a “regular” commission, as opposed to a “reservist”. It is the equivalent to an Annapolis graduate. The interview resulted in my being selected as his aide-de-camp. I received a regular commission. I served for a year and then the General retired. He managed, before doing so, to have me transferred to the Marine Barracks in Philadelphia. (I practice politics even at that young age). Once in the Philadelphia area and now with three children, the military career looked less appealing. I left the service in November 1958. In April of 1959 I became an assistant defense counsel for a boy named, Harold Johnson. He was the fifth of nine boys indicted for the murder of In-Oh Ho.
In-Oh Ho was killed on April 25,1958. Eleven boys between the ages of 15 to 19 brutally attacked this Korean student attending the University of Pennsylvania. It was a notorious affair, which no city wishes to entertain. The times were such that juvenile crime was on the rise. National media was printing frightening statistics of crimes by “kids” in gangs. The New York Times on April 7, 1958 began a series on such teen-age gangs. It said this,
“Of all the pains that plague a modern city, none is more corrosive than juvenile delinquency…Their code of ethics is a distorted boy’s-eye view of the underworld, laced with real touches of bravado and evil that are gleaned from television and movies…They prowl the dark streets, kill and maim one another…”
They were growing in that city and everywhere. The FBI released national figures showing the horror was not limited to big cities. The Public was aroused. No more sociological excuses were being accepted for this kind of behavior. Philadelphia joined the rising tide of anger and disbelief with the murder of In-Oh Ho.
The “Evening Bulletin” in reporting on the hearing of the eleven boys charged said, “a soft policy towards the owners of hands dripping with blood is a frightful mistake” (emphasis added). These “juveniles” would be treated as “adults” said the judge. Nine of them were indicted for murder in the first degree.
The event was such news that it was reported in the New York Times. A week later Time Magazine ran a story including a picture of the then Mayor. He was Richardson Dilworth and he is seen standing in a line, with his hat in his hands, waiting to ascend three small steps. The steps are in the front of a typical row home in West Philadelphia, which the article advises, is a Funeral Parlor. The article goes on to report, “Philadelphia’s Mayor Richardson Dilworth was crying as he groped for a phrase that could crystallize an emotion. ‘It is a terrible thing”, he sobbed finally, to the mourners at the lamp lit coffin in a small West Philadelphia Funeral home, ‘that this could happen in our city’. The mayor’s tears said it better”.
In contrast to the anger and vengeance of the Philadelphia media was the response of In-Oh Ho’s parents. The May 3, 1958 New York Times reports, “The South Korean parents of Oh In Ho (sic), slain University of Pennsylvania student, today asked Philadelphia authorities to be lenient with the teenagers who waylaid and beat him to death last Friday night…His parents, Mr. And Mrs. Oh Ki Byung, who are Presbyterians, sent a petition from Seoul in which they asked, ‘the most lenient treatment possible within the law of your government’…Residents of the area in which the slaying occurred have started collecting funds to provide milk for Korean children in the name of Mr. Oh. The money is to be turned over to the United Nations International Children’s Emergency Fund.”
If the defendant is without funds an attorney is appointed in capital cases. My father had been selected as one of the appointed counsels with John E. Walsh. He requested I be substituted for him. I was appointed. So I became the counsel to one Harold Johnson at a time when the air was full of recrimination and fear.
Looking back, I can sense no time when my representing Harold caused me fear. I would have refused to undertake any such representation in the later years of my practice. It must have been the cockiness of youth that allowed me to undertake such a serious matter with little, or no, concern as to my ability to do the job. I was not alone. I had a senior attorney who made all the major decisions except to appeal the verdict. He left that to me. His objections to that decision were based on economics not legal analysis. I had less a burden in that area than he. The same arrogance, that eradicated fear of not doing a proper job, also supplied me the courage to undertake the appeal regardless of the economics. Any fears I might have had in that area were reduced by the belief that my father was there to help me over any rough financial hurdles. Money was secondary, the cause was the controlling factor.
I have no recollection of any time spent in preparation for the trial. It was held in May of 1959 and covered a period of some 16 days. A good number of them were taken with jury selection. The days on which evidence was given numbered four. I remember being impressed with the Prosecutor, Thomas Reed. He was black and he was tough. He would later become a judge. This was his fifth trial of the matter so he went quickly through the prosecution. The prior hearings all resulted in conviction. Four of Harold’s companions previously were found guilty of murder or homicide. One, Alphonso Borum, was given the death penalty, two received life sentences, and the other a ten to twenty year prison term. The Prosecutor was over zealous in some matters. I recall trying to have Mr. Walsh object to some of the acts with no success. I was junior and I wasn’t all that sure about the quality of my objections. I would be vindicated later on some of these matters.
I have no memory of Harold Johnson, the boy of 18. I would meet the man some dozens of years later. I was working at that time as a volunteer for what we called the ”V.D.”, Voluntary Defenders. It later became “P.O.”, the Public Defenders. I often wondered if it did so because of the possible connection with venereal disease. I went down to the Moyamensing Prison in South Philly and interviewed clients. On some of those trips I went with an employed Voluntary Defender, Richard Sprague. He would later become one of the outstanding defense counsels in the State. But I have no recollection of having any such interview with Harold. It may be that he was up in northeast Philadelphia at Holmesburg prison. Or it could be that I was appointed so late that John Walsh had completed all of the preliminaries.
“Two brothers who have become star witnesses for the Commonwealth in asserting they saw but took no part in, the brutal holdup killing of ln-Ho Oh…took the stand yesterday to identify Harold Johnson, 18, of Brown street near 39th, as one of the robber gang.
“Edward McCloud, 18 and his brother, Harry, 17, of Parrish St. near 39th, testified on the sixth day of Johnson’s trial that they saw him in the mob milling around Oh the night of April 25 year (sic) year (near?) at 36th and Hamilton St. while he was being beaten and kicked to death.
“But they, as well as Joseph (JoJo) Williams, 17, of Nassau St. near York, said they had seen no blows struck at the University of Pennsylvania student by Johnson. The McClouds are under arrest as member of the gang, but Williams has appeared for the Commonwealth only as a spectator.
“The prosecutor, Assistant District Attorney, Thomas M. Reed said he would probably end his side of the case today after completing some technical testimony.” So reported the Philadelphia Inquirer.
The “technical testimony”, referred to, would be slides of the beaten body offered along with medical examiners testimony. He would also introduce the juvenile record of Harold over tentative objections.
Our client was accused of going through the pockets of the victim after he was knocked down. The wallet taken from him was found at another defendant’s home. The theory of the prosecution was that he engaged in a felony, which resulted in a killing. Under the “felony murder rule”, a person who commits a felony, which plays any part in the death of another, may be found guilty of 1st degree murder. First-degree murder can result in a sentence of death or life imprisonment.
The first defendant, tried and convicted in this matter, was Alphonso Borum. He was the leader; I think the oldest and allegedly the instigator. He encouraged the others to jump the next guy who came along to get his money. The name “Alphonso or Alphonse” always remained with me as the perfect contradiction between the idea of the name and a person. Alphonse or Alphonso connoted for me one who was an English Gentleman or Butler, not a street gang leader.
The gang wanted to attend a dance in the neighborhood and admission price was 35 cents. “Oh” was picked at random. He was at his uncle’s house in the area and went out to mail a letter. He had been an interpreter for the U.S. Army in Korea, an excellent student in the university in Seoul and was at Penn as a graduate student on a scholarship. He was 26 years old.
An interesting aside is that a colorful and busy black attorney named Cecil Moore represented Borum. There is part of a street in Philadelphia now named for him. In North Philadelphia, the old Columbia Ave is called “Cecil Moore Blvd.” He and Reed were constantly at battle in the criminal division in those days. Mr. Moore had been retained by Borum he was not an appointed attorney. At one point Mr. Moore was so busy in the criminal law, he had a separate list, courtroom, and judge who handled his defendants.
The evidence against Harold was as summarized above. It was minimal in its showing of direct criminal acts. Even the felony murder theory suffered since there was evidence that the wallet was found, on the following morning, not in Harold’s home, but in some other participant’s house. The prosecutor made up for this lack of proof by constantly pointing to the horrible death that Oh suffered. He had testimony of the neighbors regarding the noise and rampage. I even remember him educating the witnesses, and myself, as what the numbers indicated on the police cars. They show the precinct, the officer who used them in some cases, etc. The pictures of the mutilated body were projected on the courtroom wall to end his case. The jury would go out with vivid memories of blood. The loss of the life of this young man had to be avenged.
We presented no evidence. We had none to present, other than the defendant’s own testimony. He was willing to admit he was there. He denied he struck Oh, and a Commonwealth witness had corroborated this fact on the first day of the trial. He was a boy, and in the hands of Thomas Reed, he would have become a monster. So we did not have him testify. The prosecutor, nevertheless, over objections introduced his juvenile record and psychiatric testimony of his sanity. The jury was out not more than 40 minutes and returned a verdict of conviction of 1st degree murder.
The Evening Bulletin, for May 14, 1959, read, 5th Oh KILLER GETS LIFE TERM, State Asked Death Penalty, Jury out 40 Minutes:
“A jury of seven women and five men last night convicted Harold Johnson, 19, of murder in the first degree…The jury deliberated 40 minutes before returning their verdict. Johnson plucked nervously at his tie as the jury foreman read the decision. Otherwise the youth showed no emotion…Earlier, Johnson had dabbed at his eyes with a white handkerchief when Assistant District Attorney Thomas M. Reed urged ‘the only proper verdict-murder in the first degree; the only appropriate penalty, death’.
In his summary Reed admitted that there wasn’t a shred of evidence that Johnson had participated in the beating and kicking of Oh. Reed told the jurors that under the felony-murder rule a person who participates in a robbery in which the victim is killed is guilty of first-degree murder as the actual killers
Earlier in the eight-day trial, one of the nine defendants testified he saw Johnson bend over the fallen Oh and take something from his pockets.
Johnson himself did not take the witness stand in his own defense. In fact, his attorneys, john E Walsh, Jr. and Paul Leo McSorley, closed their case without presenting a single witness.
They apparently believed that the Commonwealth had failed to prove its case. They asked that Johnson be acquitted.”
So ended my first murder trial. But it really did not since I felt some of the errors had resulted in not giving Harold a fair hearing. John Walsh, while not disagreeing with that analysis, decided he wanted to have nothing further to do with the matter. I prepared my first appeal to the Supreme Court of Pennsylvania. In capital cases convictions were appealed directly to the highest court in the State, the Supreme Court.
I had help in the preparation of the brief, but I fail to recall specifically who. Over the years of practice I had what might be called assistants, but were usually lawyers younger than myself, getting work where they could while waiting for an opening. I have idea that the help came from Richard Torpe but have no way of confirming it now. Later he would practice out of Huntingdon Valley, while he lived in Toms River, N.J. I moved four times over the years so I have no copy of the brief I submitted.
The beginning of the end came in January 1961. I was in Washington, D.C. with John Rogers Carroll, Esq. on some business. We came into the Union Station to board the train back to Philadelphia and I purchased an Evening Bulletin. The date was January 17, 1961. Imagine my elation as I read on the front page, in the lower right hand corner: “Court Orders New Trial for In-Ho Oh Defendant,” and goes on, “Harold Johnson, 20, one of ten youths convicted in the robbery slaying of In-Ho Oh, was granted a new trial yesterday by the State Supreme Court”. I had hit a home run the first time up to bat in the big leagues.
The Supreme Court unanimously in an opinion written by Bok, J. held that psychiatric report was inadmissible in murder prosecution, both generally and specifically, in that it contained evidence of defendant’s sanity and it was admitted during prosecution’s case in chief. This was the error cited that, without a doubt, gave the court sufficient basis for a reversal. They did however admonish the prosecution for introducing the juvenile records of the defendant, and the length of time the pictures were displayed to the jury. In a concurring opinion Musmanno J. blasted the prosecution for its over-use of the pictures.
“The Majority Opinion here is properly censuring the enlargement and screen projection for a half day of repellant pictures in the court below, says that ‘we regard the duration of their view excessive’. It does not say how excessive! I don’t’ believe the pictures should be shown to the jury at all unless they supply an indispensable link in the chain of evidence inculpating the defendant. In any event, there is no reason why the photographs should be allowed for any period, which exceeds the time required for an intelligent person to grasp the significance of what is pictorially portrayed. Pictures, if used at all, are to inform, and not to emotionally stir, much less to twist judgment into a verdict which may be based on bias, hatred, or revenge.”
I say, above, that this was the “beginning of the end” for we now faced a new trial and all that it encompassed. Our position was very strong because the number one defendant, Alphonso Borum, still had his motion for a new trial to be heard. Our case’s reversal gave Cecil Moore, Borum’s attorney, and powerful ammunition for same reasons. The District Attorney wanted Mr. Borum’s conviction badly, and rightly so, since it appeared he was the leader. It made our position for a negotiated plea very strong. We began a new trial some months later, in September, and after four jurors had been selected Mr. Reed agreed to accept a plea to second-degree murder, with the time in prison being the sentence. We agreed that Harold would testify in any new trial by Borum. Harold was released.
We filed a second petition for a fee. It had been paid for the first trial. The maximum was $500 per attorney. There was no fee paid for the appeal. At the hearing for the second petition the city opposed payment on the grounds that the statue permitted a maximum payment of $500 no matter what services were rendered. In March of 1962 Judge Vincent Carroll dismissed the petition. Once again we took an appeal to the Pennsylvania Supreme Court. This time the Philadelphia Bar Association joined with us and we even had behind the scenes encouragement from the judge who ruled against us. My friend, and classmate Edward Blake, was his law clerk and he allowed that the Judge felt the law need clarification and/or change. This time we struck out but got a dissent by the ever-colorful justice Musmanno. I will never forget his pointed questions,
“If the defense counsel is not to be paid for his work at the second trial, why should the district attorney be paid, or the judge, or the court clerk, or the court reporter, or the tip staff, for services they render during the second trial? Why should the defense counsel be the only one to offer a sacrifice on the table of public benefaction?”
But one Judge never makes a majority, so we were not paid. It was some consolation that it took the Court seven (7) pages of reasoning to deny our petition for fee, but only two (2) to grant Harold a new trial!
So the saga of In-Oh Ho came to end on January 22, 1963, but the story of Harold Johnson did not. In 1971 I was serving as the Commissioner of Records, under Mayor James H.J. Tate’s administration. I had an office on the first floor of City Hall. Outside the office under the lighted title of “Commissioner” was my name. (Finally got my name up in Lights!). One day my secretary came in and said there was a gentleman outside who is inquiring if the Paul L. McSorley named on the sign out side, is the same Paul L. McSorley who represented a boy named “Harold Johnson” some years earlier. I told her I was. Harold Johnson, the man, came into my office.
He sat and told me a wonderful story. He was married had three children. He thanked me for the representation and how it gave him a chance to live a nearly a normal life. I thanked him for taking the time to stop and say all those nice things. I wished him the best. He became one client I would never forget, since he cared enough to come back and say “Thanks”. A lawyer can receive no higher reward.
Paul L. McSorley
(Rev. Nov.’98)