Sharyn McCrumb - The Ballad of Frankie Silver

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Frances Silver, a girl of 18, was charged in 1832 with murdering her husband. Lafayette Harkryder is also 18 when he is accused of murder and he is to be the first convict to die in the electric chair. Both Frances and Lafayette hid the truth. But can the miscarriages of justice be prevented?

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I saw Nicholas Woodfin from time to time after the trial of Frankie Silver, of course, for we were brother attorneys in the same district, and our paths were bound to cross both professionally and socially, for he, too, was a Whig in politics. He had prospered in the years since I first knew him. He is a shirttail relative now, for he married Miss Eliza Grace McDowell of Quaker Meadows, my wife’s cousin, and though they make their home in Asheville, we see them from time to time.

Woodfin served in the State Senate the year after I left it, but his true renown was as an eloquent trial attorney. By tacit agreement, we did not speak of his first capital case for many years thereafter. I think he was ashamed of his failure to secure a pardon for his client, and I think he was genuinely grieved and blamed himself for her tragedy. Since then, I have heard many of our fellow attorneys remark on the curious fact that Nicholas Woodfin refused to represent clients who were on trial for their lives. I thought I knew the reason why.

It was nearly twenty years after the case of Frankie Silver that we met again under circumstances that called to mind the events surrounding our first encounter.

In November 1851, William Waightstill Avery, a prominent fellow attorney and my own nephew by marriage, was charged with murder.

Waightstill was a student in college at the time of the trial of Frankie Silver, which made him nine years younger than I, and I had always considered myself an older relative rather than a comrade. He was the son of my wife’s eldest sister Harriet, who had married Isaac Thomas Avery of Swan Ponds. Young Waightstill, who was named after his paternal grandfather, North Carolina’s first attorney general, was a clever and hardworking fellow who had graduated as valedictorian of his class at the state university in Chapel Hill. He went on to read law with Judge William Gaston, qualifying to practice in 1839, the year that I was elected to represent Burke County in the North Carolina State Senate. In 1851, at the time of his trial, Waightstill had just completed a second term representing Burke County in the North Carolina House of Commons. He was thirty-five years old.

The tragedy that led to his being charged with murder began eighteen days earlier, when Waightstill Avery was arguing a civil case in the McDowell County Superior Court. He was representing a McDowell County man named Ephraim Greenlee, a former client of attorney Samuel Fleming of Marion. Greenlee was accusing Fleming of fraud in connection with some disputed property, and during the course of arguing the case, Waightstill Avery blamed Sam Fleming for the disappearance of a will that was relevant evidence in the matter. I am not sure whether he was arguing that Fleming was careless, incompetent, or deliberately concealing the pertinent documents for his own gain, but one interpretation is scarcely better than the other when a lawyer’s reputation is at stake.

Fleming took exception to this slur on his skills as an attorney, for, of course, he denied any blame in the matter. Fleming was a tall, red-faced fellow with a thatch of auburn curls and a fiery temper to match. He towered over young Waightstill Avery, quivering with indignation and shouting that he’d have satisfaction for this insult to his honor.

Avery took this for the usual legal bravado that one hears bandied about in the law courts, but this time he had misjudged his opponent, with fatal consequences. When court was adjourned, Avery gathered up his papers and left the courthouse, but when he got outside, he saw that Samuel Fleming was waiting in the street for him, shouting abuse and brandishing a rawhide horsewhip in a threatening manner, while the north wind whipped his cape about him, making him look like an avenging devil. There’s those who would say that’s exactly what he was. Sam Fleming was not rich in friendships.

Now my nephew Avery was a small man, and he had perhaps the more pride and dignity because of it, but he was by no means a coward, nor was he an undistinguished citizen of the Carolina frontier. He had no reason to fear a fellow attorney, for although I say that he was a citizen of the “Carolina frontier,” things had changed a good deal in the two decades since the trial of Frankie Silver. True, there were as yet no railroads in the mountains, but the roads were better now. The population continued to grow, and the cities were no longer rustic hamlets dotted through the endless forest. The Indians had been removed across the Mississippi, the economy was flourishing, and western North Carolina was as pleasant and peaceful a place as one could find upon God’s green earth. We were civilized gentlemen serving the law, and brothers all by the mutual respect conferred by our profession.

Samuel Fleming cared nothing for the sanctity of the legal fraternity, nor for the peace of McDowell County. He was after blood.

I was not present when the altercation took place, but I heard many accounts of it afterward, and everyone agreed that Samuel Fleming was abusive and reckless in his manner. When Waightstill Avery tried to edge past his tormentor, knocking him down in the process, the enraged Mr. Fleming flung himself upon the smaller man, pounding him about the head and shoulders with a rock until he was stunned into insensibility. While poor Waightstill sat there in the muddy high street, attempting to get his bearings and regain his footing, Samuel Fleming lit into him with the horsewhip, punctuating each slash with an oath.

In his dazed and weakened condition, poor Avery could not defend himself. Indeed he was so much smaller and less robust than his opponent that it is doubtful whether he could have given a good account of himself even if he had been perfectly fit. He lay there in the mire, hands braced before him to shield his face and neck from the blows, while blood from the welts on his cheek dripped onto his broadcloth coat and spangled the mud beneath him with flecks of red.

I would like to think that someone in that great throng of onlookers went to his aid, while other right-thinking citizens pulled Samuel Fleming away and tried to talk sense into him. I never heard of anyone interfering, though, and I am forced to conclude that a crowd watched this shameful performance, and perhaps even cheered it on, with no thought toward rescuing the unfortunate victim.

At last-no doubt when his stream of invective had given out and his arm was tired-Fleming ceased his attack upon my unfortunate nephew and swaggered off, boasting about the thrashing that he had given to the young turkey cock who would question his competence as a lawyer. Waightstill Avery was helped to a house nearby, where his wounds were seen to, while a servant took a damp rag and tried as best she could to remove the streaks of mud from his coat and breeches. He was not badly hurt, but the shame and injustice of that public whipping festered inside Waightstill Avery worse than gangrene ever cankered an injured limb. In Morganton he made light of the cuts and bruises and kept his own counsel about his feelings toward his assailant, but word of Fleming’s continual boasting reached us in Burke County, and all of us knew that the incident was not over.

Two weeks after the confrontation in Marion, Mr. Fleming had yet another occasion to appear in court, but this time he was representing clients before Judge Kemp Battle at the new courthouse in Morganton. I call this building the new courthouse even though it is twenty years old, but I am nearly fifty now, and time does not move as slowly for me as it once did. This present courthouse was under construction at the time that Frankie Silver was in jail awaiting her execution, and I remember feeling glad at the time that after the tragic circumstances of the Silver case, we could put the past behind us and begin again the pursuit of justice in a new building. I have since learned that it is not so easy to wipe the slate clean; there is enough tragedy and iniquity in the world to fill any amount of courthouses and judicial buildings.

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