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March|April 2005
Insult to Injury By Reynolds Holding
Right On By Richard W. Garnett
Wrong, But Not Too Right By Kermit Roosevelt
The Mine Line By Geoffrey Gagnon
How the West Was Lost By Daniel Brook
Saving the Race By Daniel J. Sharfstein
A Crime With a Name By Nicholas Thompson

Saving the Race

In 1940, Thurgood Marshall defended a black chauffeur charged with raping his white mistress—and exposed the racism of the North.

By Daniel J. Sharfstein

THE WOMAN LIMPED ALONG THE ROAD, SOAKING WET, scraped and bruised, her dress torn. Two truck drivers spotted her in the pre-dawn hours of December 11, 1940, and pulled over by the Kensico Reservoir in Westchester County, N.Y. Waiting for the police, they listened to the woman's sensational story. Eleanor Strubing told them she had been raped again and again in her Greenwich, Conn., mansion by her "Negro chauffeur-butler." The man then bound and gagged her, she said, drove to the reservoir, pushed her off a bridge, and pelted her with rocks. Strubing's sealskin coat and one shoe had been lost in the freezing water.

Police quickly found the chauffeur, Joseph Spell, back at the estate where Strubing lived with her husband, a wealthy advertising executive. After 16 hours of interrogation, a prosecutor announced that Spell had confessed. Along the East Coast, newspapers screamed the details of the "night of horror" and "lurid orgy." The New York Times reported on its front page that Spell admitted to attacking Strubing and "hurling" her off the bridge. A giant picture of Strubing reclining on the beach in a swimsuit was splashed across the cover of The Daily News. Nine months earlier, Richard Wright had published Native Son; now Greenwich had its own Bigger Thomas.

The publicity storm triggered an emergency at the New York headquarters of the NAACP. The organization's initial concern was the tone of the news stories—"highly colored," as NAACP assistant secretary Roy Wilkins complained in a telegram to the city editor of The Daily News. In every story, Spell was immediately and repeatedly identified as the "Negro chauffeur," "the colored servant," and even "a colored man with a bad hangover." The graphic coverage of Strubing's account echoed Southern tales of rape that were used for decades to justify lynching. Rumors filtered into the NAACP that panic-stricken Westchester families were firing their black servants. Two days after the arrest, Thurgood Marshall, the organization's top lawyer, was on a train to Greenwich, committed to defending Joseph Spell "to the limit of our resources."

At 32, Marshall was spending most of his days on the road, trying cases, investigating race riots, and meeting with local NAACP branches. He jokingly called his work "that stirring saga of unselfish devotion to a great cause, 'Saving the Race,' by Thurgood Marshall." While working on Spell's case, he also defended W. D. Lyons, a black Oklahoma man who had confessed, after repeated beatings, to a triple homicide. Lyons v. Oklahoma is remembered for Marshall's skillful cross-examinations, for the jury's surprising decision to give the defendant a life sentence instead of the death penalty, and for Marshall's bitterness after the Supreme Court affirmed the defendant's conviction despite overwhelming evidence of his innocence. By contrast, The State of Connecticut v. Joseph Spell has faded with time to become a curious footnote to Marshall's career.

Yet the Spell affair reveals the underappreciated importance of the NAACP's litigation in the North. Swamped with requests for help from all over the country, the organization's lawyers targeted the South, suing over voting rights, equal pay for black teachers, and segregation in higher education. This was the road that led to the landmark desegregation case Brown v. Board of Education. Meanwhile, a small number of Northern cases served the express purpose of raising funds and recruiting new members. A week after Spell's arrest, Marshall requested a budget increase from $4,000 to $9,000. "We will have to spend more money on regular defense cases because these teachers' salaries cases and university cases will not continue to keep our name going," Marshall wrote his trusted adviser, NAACP board member William Hastie.

W. E. B. Du Bois, one of the NAACP's founders, thought Northern cases were more than just fundraisers. In 1934, he resigned from the organization in a huff, writing in The Crisis that the group's Southern focus was based on the "fable" that there was "little or no segregation in the North." Unless the NAACP reckoned with the prevalence of Northern discrimination, racial equality would remain out of reach. "We have by legal action steadied the foundation so that in the future, segregation must be by wish and will and not law," Du Bois wrote, "but beyond that we have not made the slightest impress on the determination of the overwhelming mass of white Americans not to treat Negroes as men."

The Spell case underscores the power of Du Bois's critique. Throughout the winter of 1940-41, the NAACP's fundraising letters to its Northern branches stressed "the large number of Negro domestics who will be directly affected by this case and will suffer unless we do all in our power to secure justice for Spell." Shut out of factory work and union jobs, thousands of African-Americans in Connecticut were forced to depend on positions in domestic service. John W. Lancaster, the head of the Bridgeport chapter of the NAACP, had graduated from Fordham University. He, too, was a chauffeur.

When Marshall reached Greenwich, he was met by Samuel Friedman, a white attorney hired by the Bridgeport NAACP. A few years older than Marshall, Friedman had practiced law with his brother, Irwin, since the 1920s. Unassuming in his dark three-piece suit and matching bow tie, his short black hair neatly combed back, Friedman was developing a reputation as a tenacious advocate with a flair for courtroom drama. Nearly 60 years after the trial, he described the Spell case in a videotaped interview with Bridgeport attorney Jacob Zeldes.

Friedman's initial reaction to Spell's arrest, based on what he had read in the newspapers, was the same as that of most white people. "I don't think you could find a man on the street that in any way had any sympathy for Spell or that believed that this was consensual, including me," he said. Bridgeport was not a hospitable city for African-Americans: A 1933 Connecticut law banning discrimination in public places was not enforced. Friedman was allowed to take Marshall to lunch at the Stratfield Hotel restaurant only because he was the hotel's lawyer.

MARSHALL TOLD HIS CO-COUNSEL THAT HE DID NOT BELIEVE A WORD of Strubing's story. It was the NAACP's policy to limit its criminal defense work to innocent clients. In one of his few comments about the case, Thurgood Marshall told Juan Williams, his biographer, that the press coverage of Spell's arrest prompted grim laughs at the NAACP. "He was supposed to have raped this woman four times in one night," Marshall recalled. "All I got to tell you is when the story got in the newspaper, all the secretaries, all of 'em, came and said, 'Hey, defend that man. We want to see it. Four times! Ha ha. Ha ha. Four times in one night. Yeah, bring him in here, let us see him.' I told 'em get out of my office."

Still, Marshall and Friedman knew that Spell's defense would be a tough fight. The lead prosecutor, Lorin Willis, was an unreconstructed bigot. "He hated everybody," said Friedman. "If you were a Polack, if you were a Jew, if you were a wop—this was Willis. He was a no-good S.O.B., that's what he was." The prosecution refused to open its files or make witnesses available to the defense and it kept Strubing in seclusion in the five weeks between Spell's arrest and trial.

The second strike against Spell was his accuser's status as, in Marshall's words, "a member of the very highest strata of society." The Strubings were relatively new to Greenwich, but their money was old. Eleanor, known as Ellie, was the daughter of an investment banker who had been a governor of the Philadelphia Stock Exchange. Her husband's existence was charmed. After taking time off from Princeton to serve as an ambulance driver on the Western Front in World War I, John K. Strubing, Jr. returned home and quarterbacked the 1919 Tiger football squad to victory over Yale and a tie with undefeated Harvard. Adoring fans presented their "sturdy youths" with little gold footballs for their watch chains.

If the Strubings could have stepped out of an F. Scott Fitzgerald novel, then Spell belonged to Richard Wright, whose work chronicled urban and rural black poverty. Born in Lafayette, La., in 1909, Spell spent six years in the Army before being dishonorably discharged for getting drunk and stealing and smashing an officer's car. He married at 17 and split with his wife after three months. Spell never bothered to get a divorce. Thirty-one at the time of his arrest, he and his common-law wife, a childhood friend named Virgis Clark, lived in the attic of the Strubing estate. He told Marshall and Friedman that he was also "going with" a 21-year-old White Plains High School student. Spell and Clark had worked for the Strubings as butler and cook for a little more than a month. The day before he started with the Strubings, Spell had been arrested and had received a suspended sentence for threatening to hurt a former employer unless she gave him a small loan.

Late on the fourth night after Spell's arrest, Marshall and Friedman interviewed him together at the Greenwich town jail. Spell insisted that, contrary to the prosecutor's statements, he had not confessed to rape and kidnapping, but only to having consensual sex with Strubing. Spell and Strubing agreed that on the night of December 10, Clark was asleep in the attic and John Strubing was in Cincinnati on business. At about 10 p.m., Ellie Strubing had come home from dinner with friends. She was fresh from the shower and wearing only a robe when Spell knocked on her bedroom door and asked if he could borrow some money.

According to Strubing, Spell raped her, made her get dressed, took her downstairs, bound her hands and feet, and raped her again. After forcing her to write a ransom note, Spell put Strubing in the car, cut off the bottom of her dress and gagged her with the remnant, and drove until a policeman stopped the car. The officer did not notice Strubing, whom Spell had pushed below the dashboard. Spell took her back to the house and raped her a third and possibly a fourth time. Finally, he drove to the reservoir and pitched her in.

To Friedman, Strubing's version sounded "as cockamamie . . . as you could get." Spell's recounting of events made slightly more sense to him. Spell said that when he went to Strubing's bedroom, his employer agreed to the loan, saying, "You've been nice to me, Joseph, and you can have anything I've got." He replied that he "would like to be with her," and she walked over to her bed and turned down the cover. As Spell undressed, Strubing's pet schnauzer started barking. Afraid that Virgis Clark would wake up, the pair put on clothes and went downstairs to the living room. There, Strubing took off her "rubber pantie girdle" and lay down on the sofa with Spell, only to worry that people might see them from the window. Spell suggested they go to the garage. Off went the girdle again, and, in Spell's words, they "had business" in the car.

But when Strubing fretted about getting pregnant, the sex stopped, leaving Spell to the devices of his "pocket handkerchief." Next, he suggested a drive, and Strubing put on her fur coat. When they reached the Kensico Reservoir, she asked him to stop and then got out of the car, jumped a guardrail, and ran down an embankment. "She said that she was all right and for me to go on home," Spell told his lawyers. "I was afraid that if I went toward her, she might hurt herself." Spell left for a friend's house in White Plains and played blackjack until 5 a.m. Breaking even, he returned home and dozed off in the laundry room, where the police woke him up a few hours later.

Spell's story may not have seemed airtight to Friedman, but he felt confident enough to stand with Marshall and tell reporters that Spell was innocent. When prosecutors offered a plea bargain, Marshall wrote to Friedman, "The more I think over the possibility suggested yesterday of Spell's accepting a 'plea' the more I am convinced that he cannot accept any plea of any kind. It seems to me that he is not only innocent but is in a position where everyone else knows he is innocent. For that reason he should accept nothing other than the dropping of all charges." Although Spell risked 30 years in prison, Friedman agreed.

WHEN SPELL'S TRIAL BEGAN IN JANUARY 1941, the press converged on the Bridgeport superior court, promising readers, as the Bridgeport Herald put it, the "most sensational sex mystery in history." What followed was a re-enactment of old myths of white womanhood and black aggression that NAACP Secretary Walter White described as "expected in Mississippi, but not in Connecticut." Witness after witness emphasized how distraught Strubing appeared on the morning of December 11. The examining doctor had been forced to sedate her, they recalled, and when a black truck driver who had stopped to help approached her at the Kensico Reservoir, she had screamed to a police officer, "Protect me! Protect me! There's a colored man!"

On the second day of trial, Ellie Strubing entered the courthouse in a dark plaid coat and matching pillbox hat, attended by a doctor and a nurse. Her personal attorney happened to be chair of the state Republican Party. It was Strubing's first public appearance since the incident. According to The Daily News, she tearfully testified that Spell threatened her with a knife, choked her, forced her to write a ransom note, and raped her "while I was helpless with my hands tied." She begged him to take her silver and jewelry, but "he said he couldn't do anything with that." Close to hysterics, she told the whispering courtroom, "I'm sure he raped me three times. But I can't remember now. On a stone floor—or something. It's so confused."

The defense countered with cold facts. They pointed out that investigators had failed to find a ransom note. And Strubing had not called the police during several periods of time in which Spell left her alone. Spell stuck to the story he had told Marshall and Friedman, and Greenwich police Sgt. John Teufel backed him up. Teufel said that when he asked the doctor who examined Strubing whether he had taken a vaginal smear, the doctor answered that he "didn't find anything to take a smear of."

At trial, Friedman questioned witnesses while Marshall, satisfied with his co-counsel's performance, took notes from the second chair. During his two-day cross-examination of Strubing, Friedman combed through her story for discrepancies until she lost her temper. Once he'd shaken her out of the role of helpless victim, Friedman guided her back through her testimony. Why hadn't she called out to the policeman who stopped Spell? Friedman tied a handkerchief over his mouth, and asked Strubing if Spell had similarly gagged her. She said yes. Later, the lawyer retied the handkerchief as tight as he could and tested Strubing's claim that she could not make a sound. "I let out a shriek," he recalled. "The jurors almost jumped out of their seats!"

Marshall told Friedman that it was a relief to try a case in the North, where he could enter a courthouse through the front door without fearing for his life. But throughout the trial, anonymous hate mail filled with graphic death threats and pictures of lynchings was sent to the lawyers, the jurors, and the judge. The state's closing argument was hardly less offensive, imploring the jury to "save the women of Connecticut" from "degradation." Spell was a "lust-mad Negro" who stalked his victim "like a panther," Lorin Willis said. Strubing, by contrast, was "a chaste and virtuous woman." "Acquit Spell and you send her forth with a name and reputation shattered and ruined beyond repair," Willis told the jurors. "There is no place on this earth—no spot or hole dark enough that she can find to protect her—if he is acquitted of this crime."

Friedman skewered Strubing's "fantastic story" and "evasive answers"—"her resort to tears, her antics on the stand, her resort to every possible trick in the cards." But looking at the all-white jury, he knew that discrediting Strubing was too risky. He had to offer the jury a way to affirm Strubing's social standing and still acquit Spell. In a move that the Baltimore Afro-American described as "brilliant," Friedman appropriated the prosecution's rhetoric, explaining how he overcame his own doubts to believe in Spell's innocence. "They had this improper relationship all through the night. Joseph sees nothing wrong in it. The formality of marriage and divorce means nothing to him," Friedman argued. "But not to Mrs. Strubing. She has moral fiber and dignity. . . . She knows she has done wrong." Strubing had plunged into the water with thoughts of killing herself, Friedman surmised. "But as soon as she hit the water she was a changed woman. She was a good swimmer and she simply couldn't drown."

As jury deliberations began, NAACP Secretary White started scrambling for funds to pay for transcripts and legal fees in the event that Spell was convicted. "We should win it hands down," he wrote to the editor of the New York Age. "But, as you know all too well, one can never figure on the vagaries of the prejudices of white people." According to The Daily News, Strubing waited in her Greenwich home, "waxing floors, knitting and doing other manual work prescribed by her doctor." After 12 hours, the jury returned with a verdict shortly before midnight: not guilty.

FOR THE NAACP, THE VERDICT WAS AS MUCH A RELIEF as a triumph. In the seven weeks between Spell's arrest and the verdict, the organization had raised only $107.74 for his defense. But if the group's members were too poor to contribute much, many of them called the NAACP to thank Marshall for defending Spell. One Wilfred I. Hatchette sent an original poetic tribute with the lines, "Behold mad history . . . / Whose telegrams for once can't bear / The fruits of prejudice." A year after Spell's acquittal, Greenwich formed its own NAACP chapter.

By the time of the verdict, Thurgood Marshall had already left Bridgeport for the Lyons murder trial in Oklahoma. Friedman also left town, vacationing with his wife to give the neighbors a chance to cool off. "A lot of people were sore," he recalled. "I can't tell you the things they said." Spell told reporters that he would move home to Louisiana, but he only made it to East Orange, N.J. He lived there with Virgis until his death in 1968.

Despite the prosecution's prediction, Ellie never became an outcast. The Strubings retreated for several days to Philadelphia, where Main Line matrons sent telegrams to the governor of Connecticut to protest the verdict. The couple later moved east from Greenwich to Old Lyme, where John was country club president and Ellie threw perfect dinner parties. After John died in 1961, Ellie married a prominent New Haven attorney. According to a stepdaughter, Ellie remained close to the people she was friends with before the trial. Shortly after she died in 2000, her step-grandson married an African-American woman. Ellie had been invited before her death but she said she would be unable to attend the wedding.

Daniel J. Sharfstein is writing a book on the color line in the American South, a subject he has written about previously for Legal Affairs.

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