Max Mason Posthumously Pardoned

The following letter was submitted by the Public Defender's Office. A full pardon for Max Mason was granted on June 12, 2020.

May 20, 2020
 
Minnesota Board of Pardons
Department of Corrections Central Office
1450 Energy Park Drive #200
St. Paul, MN 55108
 
Dear Board of Pardons:
 
We are writing to urge the Board to grant Max Mason’s posthumous request for a pardon extraordinaire. We hope with the proper context of Mr. Mason’s conviction, the Board will do the right thing and take this important step toward rectifying a century of racial injustice.
 
I.

“The lynchings in Duluth were only one part of a nationwide paroxysm of racial violence that peaked in 1919. In June 1920 the entire country continued to be convulsed in violent racial hatred and plagued by mass violence.”[1]
 
In 1919, racial tension throughout the United States was reaching a boiling point. In northeastern Minnesota, thousands of lives and jobs were destroyed by World War I, the Spanish influenza, and the 1918 Cloquet fire. Many were left feeling hopeless. The time was ripe for scapegoats, and incendiary propaganda like The Birth of a Nation inflamed the passions of white America.[2] Race riots and lynchings were common. During the Red Summer, over 1000 people throughout the country died—including nearly one hundred Black men lynched by white mobs.[3]
 
Duluth was not exempt from violence. Racism, panic, and a false accusation of rape from a white woman named Irene Tusken led to the deaths of circus employees Elias Clayton, Elmer Jackson, and Isaac McGhie on June 15, 1920. The three young Black men were lynched from a lamppost just yards away from the police department, with a mob of 10,000 Duluthians cheering the executions.[4]
 
Duluth’s horrific lynching garnered equally horrifying media support. For example, the Ely Miner newspaper said the lynching was “most effective” and “those who were put out of their criminal existence by the mob will not assault any more young girls.”[5] The Mankato Free Press added, “white men—men of blood—will not sit idly by when black rascals pounce like fiends on white women. […] Mad dogs are shot dead without ceremony. Beasts in human shape are entitled to but scant consideration.”[6] Across the bridge in Superior, Wisconsin, the Chief of Police declared, “We are going to run all idle negroes out of Superior and they’re going to stay out.”[7]
 
It was in this atmosphere that a young Black circus employee named Max Mason was arrested for raping Ms. Tusken—the same alleged rape that had already cost Messrs. Clayton, Jackson, and McGhie their lives.

II.

Mr. Mason’s trial and conviction were based on two of the most common factors in wrongful convictions lasting to this day: racial bias and eyewitness misidentification.
 
Immediately after the alleged assault, Ms. Tusken and her companion said Mr. Mason was not involved in the alleged rape. However, the next day, the Duluth Police Department decided they did not have enough Black suspects. Police chased the circus to Virginia, Minnesota, where they arrested every Black man they could find, including Mr. Mason. This time, under pressure from the police, Ms. Tusken identified Mr. Mason as one of her “rapists.”
 
Ms. Tusken was examined the day after the alleged rape by her family physician, Dr. David Graham. He told police Ms. Tusken had no signs of assault, and in his professional opinion, she was not raped.[8] 
 
The lack of physical evidence left only eyewitness identification and the racially biased testimony of a white woman who said she recognized Mr. Mason as one of the Black men who allegedly attacked her.
 
“The vagaries of eyewitness testimony are well known; the annals of criminal law are rife with instances of mistaken identification…The hazards of such testimony are established by a formidable number of instances in the records of English and American trials.”[9] Here, Ms. Tusken’s false identification of Mr. Mason—urged by a police department desperate to find a scapegoat—was enough for a jury to quickly convict Mr. Mason. It was likely easy for the jury to do so, given the prevalent belief that Black men were predators trying to steal the virtue of white women.[10] Indeed, the prosecutor’s closing argument supported this notion of fragile white femininity.[11]
 
Mr. Mason appealed the results of his trial, but our Supreme Court upheld the conviction.[12] Mr. Mason then sought clemency, which both the trial judge and St. Louis County Attorney supported. Indeed, five years after Mr. Mason’s conviction, the St. Louis County Attorney freely admitted a white person would not have been convicted with the evidence presented.[13] Though Mr. Mason was eventually paroled on the condition he leave Minnesota and never return, he was never pardoned.

III.

Duluth is a special place. Under the watchful gaze of Gitchigami,[14] Duluth is consistently ranked Most Livable in the United States.[15] Our city features multiple award-winning colleges and universities that focus on public service and academic innovation, while our indigenous Ojibwe neighbors contribute mightily to our vibrant culture. We are also thriving under the excellent leadership of our city’s first female mayor and the Sixth District’s first female Chief Judge.
 
When we see something wrong in our city, we take creative steps to fix it. The arena of racial justice is not exempt from this notion. Less than ten years ago, white defendants in St. Louis County were three times as likely to be released from jail pending trial compared to black or indigenous defendants, and district court judges set bail twice as high for racial minority defendants compared to their white counterparts.[16] Instead of accepting this injustice as an unchangeable fact of the criminal courts, we took the opportunity to change, grow, and learn. With assistance from the Racial Justice Improvement Project, we set up robust pretrial initiatives including intensive pretrial release and specialized training for judges.
 
Within four years, the pretrial disparity between white and racial minority defendants was significantly reduced, and the racial disparity (as reported by a local researcher) was deemed no longer “statistically significant”[17] —while reducing incarceration by 90,425 jail days and saving our community over 10.6 million dollars in needless incarceration. [18]  Similarly, our treatment courts consistently lead the nation in reducing recidivism, reducing harm and celebrating changed lives. Our neighbors have learned to heal their chemical use disorders and mental health crises, and we have learned to better serve our local veterans.[19]
 
Now we need your help to come alongside our city and address one of the dark chapters still open from the 1920 lynchings. Our community has owned this racist history, and repairing the future is our shared responsibility.[20] The hope for a better tomorrow compels us to recognize that Mr. Mason was convicted of sexual assault solely because he was Black. The community celebrated while Mr. Mason went to prison. Bigotry triumphed over justice. Today, Minnesota law gives this Board the authority to publicly rebuke one of the injustices that scar our State, and we urge you to take this powerful opportunity to do the right thing in the name of the future of every Minnesotan.

Very truly yours,

Daniel K. Lew
Chief Public Defender

Fred T. Friedman
Chief Public Defender Emeritus (1986-2014)