TERRITORIES: Mottled Jury

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The four tedious days spent in selecting a jury resolved themselves into a tussle of West against East, of Lawyer Darrow against Prosecutor John Kelley. Mr. Darrow, whose 75 years and frail health cut the daily court sessions short, weeded Hawaiians, Japanese and Chinese out of the jury as often as he could with peremptory challenges. Other Orientals disqualified themselves when they exclaimed that the four defendants "ought to be shot." Broad, Irish-looking Prosecutor Kelley, though essentially fair in his tactics, dismissed ten whites from service. The final mottled jury, composed of three Chinese, a Hawaiian, a Portuguese, a German, a Dane and five Anglo-Saxons, was viewed as a triumph for Lawyer Darrow and the defense because its white element was preponderantly higher than the average population of Hawaii.

What manner of defense Mr. Darrow would set up for Mrs. Fortescue and her co-defendants remained a speculative secret last week. Undoubtedly he was relying on the probability that the prosecution had no eye-witness to the Kahahawai killing, would thus have to content itself with a circumstantial case. That he would attempt to justify the murder as a matter of Anglo-Saxon honor by bringing the rape of Mrs. Massie into the testimony, bobbed up during the jury-picking. Judge Davis, however, was inclined to rule that Kahahawai's guilt in that assault had not been established in court and was therefore irrelevant. One report was that the forthcoming evidence would show that a bungled attempt to castrate Kahahawai resulted in panic and murder. Another possibility was that Lawyer Darrow would claim that something occurred at the Fortescue cottage which produced in the defendants a state of temporary emotional insanity. Recalled was his success with an insanity plea in the Loeb-Leopold case when Drs. Edward Huntington Williams and James Orbison, California alienists, mysteriously arrived in Honolulu last week at the summons of defense counsel.