Chief Leschi Exonerated of Murder - 146 Years After His Execution

by Hans Sherrer

For Justice:Denied magazine

(Washington Historical Society)

Thirty-four years before the Washington Territory became the state of Washington, the Nisqually Indian Nation and white settlers in the Puget Sound area were engaged in what became known as the Indian War of 1855-56. The territorial government precipitated the war after members of the Nisqually Tribe refused to agree to a land cession treaty that would have created a 900 acre reservation in western Washington for the tribe.

On October 31, 1855 a firefight occurred east of present day Tacoma between the territorial militia and members of the Nisqually Tribe. During that skirmish, volunteer militiaman Colonel Abrams Moses was shot and killed

Territorial Governor Isaac Stevens blamed Nisqually Chief Leschi for Moses’ “murder,” and ordered his arrest. More than a year later, Leschi surrendered after being assured by the Army that he wouldn’t be prosecuted for acts committed by the Nisqually during the war. However Gov. Stevens didn’t think the territorial government was bound by the Army’s agreement. On November 16, 1856, three days after his arrest, Leschi was put on trial for Moses’ “murder” in the federal territorial court.

The prosecution’s case rested on one eyewitness - Antonio Rabbeson - who claimed Leschi was present when Moses was shot. However Leschi claimed he wasn’t involved in the skirmish during which Moses was killed, and his counsel vigorously attacked Rabbeson’s credibility. One distinct irregularity was Rabbeson chaired the grand jury that indicted Leschi for capital murder. The trial ended in a hung jury because two jurors held out for Leschi’s acquittal. One of those jurors, Ezra Meeker, stated that Rabbeson was “obviously lying.” ¹

Leschi was convicted of murder and sentenced to death after a retrial in March 1857. The territorial Supreme Court affirmed his conviction after refusing to consider new evidence - a map by the Army that indicated Leschi was miles away from the scene of Moses’ death. In its decision, the Court wrote that Leschi was the “leader of the Indian forces that “cruelly waged” war on settlers, “sacrificing citizens” in the Puget Sound region.” ² The Court’s decision exhibited passion and prejudice against Leschi, who was the chief of the Nisqually Tribe that had been hostile to being displaced from their lands by white settlers. Leschi was hanged on February 19, 1858 outside of Fort Steilacoom, south of present day Tacoma. The Army refused to participate on the grounds that Moses was a casualty of war, and had not been murdered. At the time many people, including his executioner, believed Leschi was innocent. Charles Grainger, his hangman later said, “I felt then I was hanging an innocent man, and I believe it yet.” ³

Since the time of his conviction and execution, the Nisqually have considered that Chief Leschi was unfairly prosecuted for Moses’ death. Beginning in 2002, members of the Nisqually Tribe, including some of Leschi’s descendants, began a concerted campaign to clear his name. The effort paid off in 2004 when both the Washington State House and Senate passed resolutions recommending that the State Supreme Court conduct an extraordinary review of Leschi’s conviction. Although Chief Justice Gerry Alexander declined to have the Supreme Court review the conviction, he was instrumental in organizing a Historical Court of Inquiry and Justice to retry Leschi in absentia.

The trial was arranged to be held on December 10, 2004, in a make-shift courtroom seating about 200 people in the basement of the Washington State Historical Society in Tacoma. Seven judges were selected to sit in judgment of the case - six state judges, including Chief Justice Alexander, and a judge representing the Nisqually Tribe. Alexander said before the trial, “This really is uncharted territory. It's got real challenges and greater difficulty.” ⁴ Indicative of the trial’s uncharted territory, is it was a hybrid adversarial proceeding, combining elements of both a trial and an appellate review.

The seven judges at Chief Leschi’s retrial on December 10, 2004. (Drew Perine/The News Tribune)

Chief Leschi’s retrial attracted national attention. The New York Times was among the newspapers that published a story about the controversy surrounding his conviction and execution.

Several current prosecutors, led by Carl Hultman, represented the territorial government. A team of lawyers, led by John Ladenburg, represented Leschi in absentia.

The prosecution did not present any witnesses. Their case was based on the legal record, and that “the territorial justice system was thorough and professional, strictly adhering to the rules of law.” Consequently it was argued Leschi‘s conviction was soundly based on what the trial court and the Territorial Supreme Court agreed was relevant and incriminating evidence. The defense countered with 11 witnesses who focused on establishing three points: That Leschi wasn’t at the scene of Moses’ death; that Rabbeson‘s testimony was unreliable; and that the Nisqually and the Washington Territorial government were at war, and thus under the “law of war” his death was not a murder by whoever killed him, but an unfortunate consequence of the conflict.

After more than three hours of testimony and presentation of evidence, the prosecution and defense made their closing arguments. Prosecutor Hultman passionately and methodically argued the State‘s position that the Court should be bound by the regular rules of appellate procedure, and not consider any evidence that wasn’t in the trial record. He asserted that under the appellate standard of viewing the evidence in the light most favorable to the prosecution, the Court should defer to the jury’s guilty verdict in 1857 that was affirmed by the Territorial Supreme Court. Ladenburg countered that the verdict was fatally flawed in light of the evidence of Leschi‘s innocence that wasn‘t considered by the jury, and the failure of the jurors or the Supreme Court to consider that Moses’ death could not be considered a murder under the state of war that existed between the Nisqually and the territorial government. Ladenburg argued that irrespective of the compelling evidence of his innocence, it is reasonably probable that the failure of Leschi‘s lawyer to request an “enemy combatant” instruction affected the outcome, and thus constituted reversible error. Ladenburg contended that since Leschi was deprived of due process by ineffective assistance of counsel, his trial was constitutionally defective. It was also noted during the closing arguments that another Nisqually prosecuted and convicted of murdering a combatant during the war was pardoned prior to his scheduled execution. Ladenburg closed by telling the judges, “We cannot bring Leschi back to life, and we cannot restore Leschi to his land. We can, we must, restore his good name.” He continued, “The only fair and just result for a historical court is to correct the historical record of our state and declare Leschi exonerated.”

After the closing arguments the Court recessed to consider its verdict. When the Court reconvened, Chief Justice Alexander first announced that the seven judge panel unanimously agreed to the answers to two interlocutory questions posed by the prosecution or defense: The Court‘s decision had historical significance; and, a state of war existed between the Washington Territorial government and the sovereign Nisqually Nation at the time of Moses’ death on October 31, 1855.

Justice Alexander then announced the Court’s decision that was based on all evidence relevant to determining Leschi’s guilt or innocence - irrespective of whether it was within or beyond the bounds of the trial record. The judges unanimously decided that regardless of who shot Moses, “The killing was a legitimate act of war, immune from prosecution.” ⁵ Consequently, Leschi was declared “exonerated” of Abrams Moses’ murder.

Thus, even though there was significant and compelling evidence that Leschi was not present at the scene of Moses’ death, as judges are apt to do, the seven member court took the shortest route to reaching its decision by deciding he had been charged, prosecuted, convicted and executed for a non-existent crime.

One of the judges that exonerated Chief Leschi, Thurston County Superior Court Judge Daniel Berschauer, noted “Even though this decision has no legal consequence, it clearly has a historical consequence.” One of those consequences is that as many as 500 Washington State history books may be amended by various means to reflect the Court’s decision.

Cynthia Iyall, a descendant of Chief Leschi’s sister and chairwoman of the Committee to Exonerate Chief Leschi said after the verdict, “I'm just happy; this is really about the future. This is for all the kids: they need to know who that man was and what truthfully happened to him.”

Cynthia Iyall, a descendant of Chief Leschi who helped lead a two-year effort to get his murder case reopened, at his grave in Tacoma, Washington. (Annie Marie Musselman for The New York Times)

Although Chief Leschi is currently remembered in the Puget Sound region, with a school, a park and a Seattle neighborhood named after him, Dorian Sanchez, chairperson of the Nisqually Tribe, noted, “Now the world can know him as we know him, “warrior, leader, hero and innocent.””

Another historical aspect of Chief Leschi’s case is that he was the first person sentenced to capital punishment and executed in the Washington Territory that became the State of Washington - and he is now exonerated.

Since the precedent of a Historical Court of Inquiry and Justice has been established, it may now be possible that other miscarriages of misjustice in Washington state may be reopened for review. A prime case for such review were the second degree murder convictions of seven men under very dubious circumstances, related to the death of Wesley Everest in Centralia, Washington on November 11, 1919. ⁶

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