[UPDATE: Shertaugh at IsThatLegal? posted about the Fisher case–also in Mississippi and four years after the White case below–in which the Mississippi Supreme Court called the “water cure” (waterboarding), torture.]

The following rejection of waterboarding comes from the Supreme Court of Mississippi in 1922, during the Jim Crow era:

Gerrard White, an 18-year-old black youth, was threatened and waterboarded by a group of armed white planters into “confessing” to the murder of a white shopkeeper in Mississippi in 1921. White was convicted and sentenced to death. He appealed. Describing waterboarding as “brutal treatment” and “barbarous circumstances,” the Mississippi Supreme Court ruled in 1922 that all the “confessions” obtained by the white planters were inadmissible. Mind you, the lower courts had already excluded the “confession” obtained during the waterboarding itself. Not even the state’s lawyer dared to argue that one was admissible. Rather, the case turned on whether two other“confessions” obtained by the planters minutes before and a few days after the waterboarding were also inadmissible.[1] The Court ruled all the confessions inadmissible.

Is it possible that a Jim Crow Mississippi Supreme Court—with its racist language, in a decision dealing with a black youth accused of murdering a white man—rhetorically condemned the use of waterboarding more readily than did our current Attorney General, Michael Mukasey?

EXCERPT:

White v. State, 129 Miss. 182 (1922).

Holden, J., delivered the opinion of the court.
…

The appellant Gerrard White, a negro boy eighteen years of age, employed as a farm hand, was arrested by the sheriff during the day, and taken to the scene of the murder, where it appears he was released, but was again taken into custody by a Mr. Gilbert, a planter, who took him into the store where the dead man lay, and, after locking the door, proceeded to obtain a confession from him. The store was a small building, and there were gathered in the building several other white men, plantation owners and managers, some of whom were armed. Among the dozen white men in the store was Mr. Gilbert, who testified that the appellant told him, alone, in the corner of the store, that he (appellant) was present and participated in the killing of Mr. Gross; that he (appellant) did not strike any of the blows, but saw Buck Kenard strike Mr. Gross with an ax, and that Ben Pickens struck him with a hatchet; that the purpose of the killing Was robbery, etc. None of the white men in the store testified to this confession except Gilbert. A few minutes after this alleged confession the hands of appellant were tied behind him, he was laid upon the floor upon his back, and, while some of the men stood upon his feet, Gilbert, a very heavy man, stood with one foot entirely upon appellant’s breast, and the other foot entirely upon his neck. While in that position what is described as the “water cure” was administered to him in an effort to extort a confession as to where the money was hidden which was supposed to have been taken from the dead man. The “water cure” appears to have consisted of pouring water from a dipper into the nose of appellant, so as to strangle him, thus causing pain and horror, for the purpose of forcing a confession. Under these barbarous circumstances the appellant readily confessed that he knew where the money was, and told them that it was out at the “dredge ditch.” They then took the appellant to the dredge ditch to find the money, but there was no money found there or anywhere else so far as this record shows. Following this appellant was taken to the Greenville jail and in a few days thereafter the same Mr. Gilbert and Mr. Robertson visited appellant at the jail, and they testified that appellant again voluntarily confessed the crime while in his cell at the jail.

Now let us see what were the facts and circumstances under which the first confession at the store was made. Here was an ignorant negro boy, arrested and taken from his work in the field, and brought to the scene of the horrible murder. The sheriff had questioned him with reference to his guilt and whereabouts, and apparently concluded that he was not guilty, and thereupon released him, and after he was released, or, according to one view of this record, after he was turned over to a deputy, he fell into the hands of Mr. Gilbert and the other infuriated planters and plantation managers gathered there at the scene of the murder. They took him into the store building, locked the door behind him, and there, in the presence of the bloody corpse so foully murdered but a few hours before, and with the crowd of armed white men there assembled for the purpose of obtaining a confession, he was asked to confess, and under these circumstances he told Mr. Gilbert, and it seems that no one else heard it, about his connection with the crime, and who participated in it. Following this, a few minutes afterwards, the brutal treatment described as the “water cure” was administered to him, which succeeded in obtaining a second confession. It is well to state at this juncture that the negro boy denied confessing to the killing until after he was threatened, frightened, and mistreated as described by Mr. Gilbert himself. The word of the helpless negro boy was of no avail to him; though a human being, his situation was indeed hopeless and fearful…

We do not hesitate to say that a confession obtained under these conditions and circumstances is not free and voluntary…

At all events the confessions at the store were involuntary, and it may be that the one at the jail was also involuntary because induced by the same wrongful influence which induced the previous ones…

Reversed and remanded.

[1] Gerrard White had made three “confessions,” the first while cornered by the apparent leader of the armed white planters. Minutes later, the planters waterboarded White and extracted the second “confession.” White was jailed (seemingly on the basis of these first two “confessions”) and, days later, was visited by two men, one of whom had stood on White’s neck during the waterboarding. At the jail, the men extracted yet another “confession.”