TEXTBOOK PROTESTER TRUTH

LEFTWING LIBERALS WANT
THE KANAWHA COUNTY TEXTBOOK PROTESTERS TO BE REMEMBERED AS
BEING RACISTS..

LEFTWING LIBERALS USE
SLURS, LIES, EXAGGERATIONS, SENSATIONALISM,
HISTORICAL ERRORS, AND OMISSION OF KEY FACTS TO
PERPETUATE THEIR PROPAGANDA.

AMAZINGLY, AND SADLY,
MANY CHRISTIANS AND CONSERVATIVES HAVE BEEN BRAINWASHED.

MARVIN HORAN WAS RAILROADED

By Karl Priest May 9, 2012 (revised 9-18-2022)

STANDING AT THE STATION

When I compiled and wrote Protester Voices—the 1974 Textbook Tea Party I often heard the opinion that “Marvin Horan was railroaded” (railroad: to convict with undue haste and by means of false charges or insufficient evidence —Webster’s). I had a gut feeling that was true. Opinion and feelings are not enough to make a strong argument that Marvin Horan was a victim of the system. With extensive research that has changed. There is ample evidence that Marvin Horan was sent on a ride paid for by Government Railroad, Inc.

This project (the research and this article) is totally my idea. I approached Marvin after completing the article about his appearance at a Ku Klux Klan rally and asked his permission, with the understanding that I would proceed as if he were guilty. I asked him tough questions and then I tried to dig up facts that would, at the very best, determine that he was lucky to get off with only being convicted on one count. In other words, I assumed the role of Marvin’s enemy in order to be as tough on him as possible. My investigation led to a conclusion that a great injustice was inflicted upon Marvin Horan.

A friend suggested that I just let this matter go. The implication is that Marvin Horan should be a subject of protester reproach. The fact is that the mention of Marvin Horan’s criminal case will not cease. Critics of the Textbook Protest bring it up on a regular basis because they want to have the protest remembered as a disgrace. For that very reason lairs will not leave it alone. The conviction of Marvin Horan is used to seriously shame the memory of the Courageous Corps of ‘74 who held the first modern Tea Party to sound the alarm about the attack upon America’s children. The Marvin Horan story is a security blanket for those who detest the protesters. Horan’s history is also used to mislead people who will not, or cannot, study the matter deeply, but rely upon reports and “research” from media and “scholars” who are driven by their personal agenda based upon their religious convictions. In Chapter 2 of Protester Voices I document the prejudice of two prominent scholars who typify many others who I document in the Textbook Protester Truth webpages.

It is easy for people to assume that a “guilty” verdict is the final statement about Marvin Horan. Those who want to defame him have no reason to look closely at just how that verdict was derived. Those who feel shame at being identified as being aligned with him would rather not talk about the case. The former group will be embarrassed and the latter group will be encouraged when they find out about all the facts.

In March 2012 I spoke to the wife of Marvin’s defense attorney Mike Allen. Mr. Allen was suffering the effects of a stroke and was unable to answer questions. Mrs. Allen also told me that co-counsel Charles Petry had little memory of the case. Mr. Petry was not the lead attorney for Horan's defense and the Trial Transcript (TT) indicates that Petry participated very little during the trial itself. Unable to get insight from the defense attorneys, I had to rely upon the 919 page Trial Transcript and a few first person interviews.

Let’s look at Marvin Horan’s trial— his ride on the government’s Underhanded Railroad.

PASSENGER MARVIN HORAN

Marvin Horan will be the first to say that he is far from perfect. No human is without flaw or sinless. It is easy to play post-protest quarterback and criticize decisions he made under immense pressure during extremely trying times. A couple of things that Marvin did during the protest are easy to criticize. He probably did at least one thing that most would agree could be called “stupid.” Most of his mistakes would be classified as “naïve.” People just do not deserve to be imprisoned because of stupidly or naivety.

Plenty of people have opinions about how they think the demeanor of preachers should be and it often includes how they want preachers to dress, drive, and even their descant and discourse. They have a right to do that of any man they want to pastor their church. A man’s religious deportment is not a subject for criminal prosecution though.

Marvin is a man’s man. He operates with a code of honor that could best be described as coming from the American Old West as depicted in the cowboy movies of the fifties. He believes in “taking it (in particular his conviction) like a man” and not crying about being treated unjustly. That attitude, though commendable, has not been conducive toward getting anyone to look closely at his criminal case.

Few non-political public figures have been slurred and scorned as much as Marvin Horan. Yet, he has turned the other cheek far beyond the biblical standard of seventy times seventy.

THE ENGINEER AND FIREMAN: THE PROSECUTION

Law enforcement had an obligation to pursue and prosecute those who were guilty of serious violence (actually the property damage would amount to vandalism). Of course, there is no excuse for any type of vandalism. The handful of people who played with dynamite were more dangerous to themselves than others, but there was always the chance an innocent person would get hurt. Most of the intentions of the authorities were good; however, a long with protecting the peace and property of citizens, they had another important goal. For political, personal, or philosophical (i.e. “religious”) purposes the political powers-that-be saw an opportunity to stifle (at least) or stop (at best) the powerful parents’ movement that was underway. The obvious way to do it was to take down the leadership.

After another protest leader Henry Thaxton’s 1974 arrest for allegedly freeing a prisoner from a squad car he appeared before a Justice of the Peace (now a Magistrate). During the hearing the prosecutor homed in on accusing Henry of traveling around trying to incite a riot. Avis Hill was arguably nearly equal to Marvin as the most prominent leader of the protest. During the protest Avis received a tip from a reliable legal source warning him that he was the target of a federal investigation regarding charging Avis with crossing state lines to incite a riot. Avis had traveled to Louisville and Boston to meet with anti-busing protesters. It is reasonable to conclude that government authorities looked carefully at Hill and Horan and decided that Horan was the easiest target.

Federal prosecutors have a tough job and usually perform their duties with professionalism and honor. There are exceptions however.  An Assistant United States Attorney was sued in 2009 for trying to intimidate a woman “into providing information against her husband, under the threat that she would be indicted, tried, sent to jail, and thus denied visitation with her infant daughter.” There is no evidence there was misconduct involved with the case against Marvin Horan. However, the government did not have a solid case against Marvin so the prosecution had to pull legal tricks and play mind games with the jury. Federal prosecutors John Field and Wayne Rich pushed the throttle and shoveled in the coal to get the train rolling and arrive at the destination they intended.

ALL ABOARD!: BLOWING SMOKE

Marvin stood trial with Larry Stevens who had confessed to his part in a school bombing. On April 14, 1975 Wayne Rich’s opening comments focused on the plans and attempts to damage school property with dynamite.

The prosecution claimed that Marvin deceitfully manipulated the ones who committed the bombings. There is no evidence that those men (except one) had personalities that were easily manipulated. In the Stevens-Horan Trial Transcript there was no effort by Larry Stevens’s attorney to excuse Larry’s actions based upon Marvin’s leadership. Larry Stevens was a man fully in charge of his free will and his mental faculties. He was a close friend to Marvin, but the argument that claims that Larry confided his plans with Marvin is less logical than reasoning that Larry kept his plans secret to protect Marvin. The Trail Transcript revealed that the star witness for the prosecution, Delbert Rose, was likely to be easily influenced. The evidence that Marvin took advantage of that personality flaw will be discussed. Assuming that Rose was easily influenced—the probability that he was actually manipulated by the prosecution is quite high as the reader will see.

In his closing statement Field reminded the jury that Marvin had said (according to testimony by Delbert Rose TT 126), “I have paid enough taxes on Midway School that I consider that I own it...and you have my permission to do anything you want to do with Midway school.” Field continued, “If he said it, if that caused Delbert Rose to act, Marvin Horan is guilty of conspiracy.” (TT 847) It is likely that a lot of people have jokingly said something very similar.

CHUG: THE GRAND JURY TESTIMONY

On the last day of the trial (April 17, 1975) Mr. Field asked to introduce Marvin’s Grand Jury testimony given on January 1, 1975. (TT 703) Mr. Allen objected on the basis that “Mr. Rich went on the record during the hearing on the motions to warrant to counsel for Defendant Horan that the grand jury testimony of Defendant Horan would not be used in the government’s case in chief. The strategy (defense’s) of the trial was prepared on the presumption that this was the case...Your Honor, if the prosecutor is allowed to introduce the grand jury testimony in his case in chief, the defendant respectfully moves the Court for a mistrial on the basis of prosecutorial misconduct.” Prosecutor Field argued that they did not intend to use Horan’s testimony “until yesterday afternoon.” (TT 704) The objection was overruled. Allen made a new objection that “admission of this evidence in that this testimony in the questioning of the witness was extremely leading, and that this prosecution would not be allowed to do this if they had called Mr. Horan as their own witness, which they are in effect doing.” (TT 711)

The Grand Jury testimony began with Marvin declining to have his attorney present. Marvin said, “I don’t feel I need any.” When asked if he wanted to remain silent Marvin said, “I see no reason for that.” “Mr. Horan, have you ever seen that gasoline can before?” “Sure, that belongs to me. I wondered what had happened to it.” Then Marvin was asked if he recalled discussing placing the can on a school furnace, “No.” Asked if he said he would furnish the can Marvin replied, “That’s not true at all.” Marvin then proceeded to explain that night at the Textbook Headquarters. “You gave me the right to shut up if I want to and I’ll talk to you all day if you want. But I want to get it like it is.” (TT 724) That is a classic example of being too honest for your own good!

CHUG-CHUG: THE GAS CAN

The gas can was entered into evidence early. An AFT agent had obtained it from Delbert Rose on January 3, 1975. (TT 99) As Rose was being questioned by the prosecution Stevens’s attorney was overruled when he objected to “leading questions.” (TT 108) Rose said that when he ignited gasoline at Midway School he used two plastic jugs. He said that Larry Stevens told him to do it. (TT 116)

Rose said that one time there was discussion about putting a can of gasoline on the Midway School boiler. He claimed that Marvin said he would furnish the can. After Marvin left, Stevens told Rose to follow Marvin home and get the can. Rose asked Marvin to borrow the can because his gas tank was leaking. Rose claimed this was to make sure Marvin’s wife would not know what was going on. They went out back to get the can and Marvin told him to wipe it off, be careful, and “God bless you son.” (TT 120-121) Wow! I have loaned out a gas can and made practically the same first two comments. The last one, is not surprising coming from a preacher. Upon cross examination by Mr. Allen, Rose said that he could not remember what he said to Marvin when he borrowed the can and that it was normal for Marvin to say “God bless you” to somebody. (TT 224) Marvin’s wife testified that Delbert stayed in the house with her while Marvin got the gas can.

Another statement supposedly made by Marvin was about “fighting fire with fire.” (TT 234) Can you imagine being held accountable for some of the figures of speech you have uttered such as “A fool and his money are soon parted”? You could be charged with conspiracy to rob someone.

During other meetings Rose claimed that there was discussion about igniting gasoline on Midway’s roof. (TT 235)

Rose said that Larry Stevens asked him to bomb Midway School with dynamite. (TT 161) When the topic came up Rose had been without sleep for five days. Marvin was not present at that discussion. (TT 183)

Rose testified that he had been drinking when he ignited the gasoline at the outside entrance to Midway School. Previously he had said that he was drunk. Now he claimed that he was just “feeling” the effects of the alcohol. He was “high.” (TT 188) I would not recommend using that line after being stopped for drunk driving.

Delbert’s brother, Arthur Rose, testified that Delbert did use a can to get gas from Arthur’s car because Delbert was out of gas. When Mr. Field showed Arthur the gas can and asked if that was the one Delbert had after the meeting where it was discussed about putting a can of gas on Midway’s furnace boiler he said, “I don’t have any idea.”

Other tricks played by the prosecution were intended to mess with the jurors’ minds. The prosecution wanted to portray Marvin as an evil religious radical in order to bolster the prosecution’s anemic case.

CHUG-CHUG-CHUG: THE SCRIPTURE Delbert Rose claimed that Marvin read scripture that led him to believe he (Delbert) was doing God’s work. (TT 122) Marvin supposedly read, “Be not afraid for the LORD thy God is with thee” which is close to how Joshua 1:9 reads. It makes sense that Marvin would have read something like that to a group of tired and discouraged protesters. If violence prone men were present and chose to interrupt that was a call to illegal action, how could Marvin be blamed? The main scripture used against Marvin was from Ecclesiastes Chapter 3: (I have put in red font what the prosecution focused on and blue font what the prosecution ignored.) To every thing there is a season, and a time to every purpose under the heaven: A time to be born, and a time to die; a time to plant, and a time to pluck up that which is planted; A time to kill , and a time to heal ; a time to break down , and a time to build up ; A time to weep, and a time to laugh; a time to mourn, and a time to dance; A time to cast away stones , and a time to gather stones together ; a time to embrace, and a time to refrain from embracing; A time to get, and a time to lose; a time to keep, and a time to cast away; A time to rend, and a time to sew; a time to keep silence, and a time to speak; A time to love , and a time to hate ; a time of war, and a time of peace .

CHUG-CHUG-CHUG-CHUG: THE SPEECH

The prosecution wanted to play a recording of part of a speech Marvin made (April 5, 1975) during a meeting at the Municipal Auditorium. Marvin had said, “God has called on his ministers today—Reverend Graley, Hill and myself—to bring the sins to the attention of the world. The world has listened to the message. They are condemned. They know it is wrong. And friends, I don’t care what the law says, when we blaspheme God it’s wrong; and if going to jail over it, I’ll go. That’s all there is to it.” (TT 712) The prosecution claimed that statement showed that Marvin “has an utter disregard of the law and...bears upon his knowledge and intent in this case.” Allen objected, stating that it was “out of context. Nowhere in there does it refer to what law. As a matter of fact, the textbook controversy has been a quest against a law which allows people other than parents to determine what books their children are taught from. That, Your Honor, is a law which has been challenged.” (TT 713) Field responded that the bombings were done to bring attention to the textbook issue. Co-counsel Petry argued that the tape “is highly prejudicial and is an attempt to sensationalize this trial.” (TT 714) He also pointed out that the other two ministers had already served jail time. “Maybe he’s talking about that.” The court ruled that the broadcast would not be allowed. (TT 715) Later the judge changed his mind and allowed the tape excerpt to be played in order to rebut testimony that Marvin was an advocate of keeping the protest peaceful. (TT 790) With the jury out, Mr. Allen requested that the entire tape be played. The judge would not allow that to be done. (TT 787)

It would not be alarming for a parent to say, “I will do whatever it takes to get my child through college.” That does not mean that the parent is thinking about robbing a bank. If, at a PTA meeting, that parent chats with some other parents who discuss cheating on income taxes—it does not make that parent guilty of conspiring to defraud the government just because some of the group that discussed it actually do the deed.

Consider some headlines regarding Marvin’s actions during the protest: “Return to Work, School, Text Fight Chief Urges” (Charleston Gazette 9-14-1974). Marvin issued an “urgent appeal...for all citizens to return to work and return their children to school.” “‘It’s Over,’ Says Book Protest Leader—Horan Claiming ‘Fair Deal’” (Charleston Daily Mail 9-14-1974) This was based upon the board’s agreement to remove the books for a 30-day review. “Rev. Horan Urges Book Opponents Support Santrock” (Charleston Daily Mail 1-25-1975) This was in reference to the new school superintendent.

CHUG-CHUG-CHUG-CHUG-CLICKETY-CLACK: THE NIGHT RIDER DIVERSION

Arthur Rose testified that he thought he heard Marvin refer to “night riding.” (TT280) The prosecution argued to use the dictionary definition of that term obviously because it had connotations of Klan activities. The defense argued that Mr. Rose should give his understanding of the term. The prosecution won.

CHUG-CHUG-CHUG-CHUG-CLICKETY-CLACK - WHOOH-WHOOH : THE KKK

After the Mayor of Marmet testified that Marvin “took action to help work out a peaceful solution” to the protest, Mr. Field wanted to introduce the fact that Marvin hadattended a KKK rally. At the bench Mr. Allen argued that they were not trying the Klan and it was not illegal to be a Klan member anyway. Mentioning the Klan would be “totally inflammatory and totally prejudicial.” Allen complained that the prosecution had pulled out some photos of that rally. The Court would not allow the photos to be shown. (TT 766-769) At the bench Allen pointed out that the jury had laughed when the mayor gave his response about the rally. Judge K. K. Hall (1) said, “I don’t want to get into that.” (TT 809) I can imagine that when either of the prosecutors opened his morning paper that he was overjoyed to see the photo of Marvin holding an umbrella at the rally.

In open court Field asked the mayor about a series of protester rallies. Referring to one at the Capitol Field asked, “Was it raining that day.” The mayor replied, “No sir, huh-uh. The one you’re getting at, I wasn’t there.” (TT 770)

CHUG-CHUG-CHUG-CHUG-CLICKETY-CLACK - WHHHOOOEEEOOOHEEEOOO : THE GAS TANK

The subterfuge that scored the greatest reward for the prosecution was the discussion of connecting blasting caps to automobiles or buses. Rich made it a focus of an interview he gave after the trial. (Charleston Gazette, November 5, 1975) That topic was still on the minds of jurors in 2012 as you will see below.

Delbert Rose testified that he was among a group that discussed ways to blow things up. One idea was to connect a blasting cap to a vehicle’s gas tank. (TT 118) In another statement about blasting caps in gas tanks Delbert Rose did not mention Marvin. (TT 193)

Wayne Rich found out about the blasting cap/fuel tank talk when he received a call at 11 p. m. one night from an investigator that had been interrogating Delbert Rose. Rich remembered that Rose had said they talked about automobiles. (Transcript of Trey Kay’s radio documentary “The Great Textbook War”) I wonder what time that interrogation began and if Rose had an attorney present when he finally started telling his tales.

THE CONDUCTOR: THE JUDGE

Judge K. K. Hall punched Marvin’s ticket.

The Trial Transcript, pages 856-889 contain Judge Hall’s instructions and explanation of the law. I wonder how much of what the judge said was retained by the jurors. Even if they had used a transcript, it would have required long and careful reading.

Here are some things that jumped out at me. (I quote verbatim from the transcript.)

1. The evidence must be clear and sufficiently strong to convince the jury beyond a reasonable doubt that the defendant on trial is guilty as charged.

2. A reasonable doubt means in law just what the words imply, namely, a doubt founded upon some good reason.

3. You, ladies and gentlemen of the jury, must use your common sense...

4. You, as jurors, are the sole judges of the credibility of the witnesses and the weight their testimony deserves.

5. A conspiracy is a combination of two or more persons, by concerted action, to accomplish some unlawful purpose...a conspiracy is a kind of “partnership” in criminal purposes...

6. Mere similarity of conduct among various persons, and the fact they may have associated with each other, and may have assembled together and discussed common aims and interests, does not necessarily establish proof of the existence of a conspiracy.

7. However, the evidence in the case need not show that the members entered into any express or formal agreement...What the evidence in the case must show beyond a reasonable doubt in order to establish proof that a conspiracy existed is that the members in some way or manner, or through some contrivances, positively or tacitly (understood without being openly expressed) came to a mutual understanding to try to accomplish a common and unlawful plan.

8. The evidence in the case need not establish that all the means or methods set forth in the indictment were agreed upon to carry out the alleged conspiracy...

9. What the evidence in the case must establish beyond a reasonable doubt is that the alleged conspiracy was knowingly formed, and that one or more of the means or methods described in the indictment were agreed upon...

10. One may become a member of a conspiracy without full knowledge of all details of the conspiracy...

11. Whenever...a conspiracy existed...then...the acts thereafter knowingly done, by any person likewise found to be a member, may be considered by the jury as evidence in the conspiracy...even though the ...acts may have occurred in the absence and without the knowledge of the defendant...

12. ...there may be a conviction, even though the conspirators may not have succeeded...

13. A defendant may be convicted as a conspirator even though he may have played only a minor role in the conspiracy.

14. The overt act need not be criminal in nature, if considered separately and apart from the conspiracy. It may be an innocent act of a man walking across the street...

Items 1-2 were crucial and items 3-6 were very important if the jury was to vote to acquit Marvin. Items 7-14 make it almost impossible for anyone charged with conspiracy to get an “innocent” verdict.

This brought to my mind an end-of-year talent show I saw as a junior high school student. Between acts, a boy walked across the stage carrying a drinking glass. Finally, after several trips the emcee stopped him and asked what he was doing. The boy said that there was a fire in the school office. The emcee told him that glasses of water would not put the fire out. The boy said, “Water? This is kerosene!” According to the rules of law above he was in a conspiracy to burn down the school. The teachers who supervised the event were too. So was the principal who did not punish anyone. And don’t forget to include all (several hundred) students (and lots of teachers) who roared with laughter which would be encouraging a federal felony to be committed. Remember tem 12.

ARRIVING AT THE DESTINATION: THE JURY DELIBERATION AND DECISION

Court adjourned for the day as soon as the judge’s instructions were completed.

The jury began deliberation on April 18, 1975 at 9:31 a.m. and at 11:52 a.m. the foreman requested Marvin’s statement to the Grand Jury. Judge Hall said, “It wasn’t introduced as evidence. It was just read.” There was some discussion at the bench, and then Hall told the jury that they would “just have to recall what was said, as best you can.” Then the court recessed for lunch at 11:55 a.m. (TT 897-899)

The jury resumed deliberations at 1:30 p.m. and at 2:37 p.m. Hall asked if they had agreed upon a verdict. Hall was about to say something when Field asked to approach the bench. Hall said he was about to give a supplemental charge approved as a substitute for the “Allen charge.” (TT 900) The Allen charge (not to be mistaken as having anything to do with Mike Allen, Marvin’s attorney), also referred to as the “dynamite charge,” (2) is where a judge encourages the jury to come to a verdict to avoid a mistrial or hung jury. Some modifications of that charge have been ruled unconstitutional.

Field said that the government had prepared a proposed supplemental charge. There was some discussion and Allen objected and was overruled. Hall said, “I think this jury ought to come to a verdict of some kind.” Now here is something Allen said that I find mystifying. “I want to renew our motion as to the motions and objections made during the trial. What has kept me awake, Your Honor, is whether or not I objected to the presentation in evidence of the statement or the grand jury testimony and statements of Larry Stevens as proffered in final to the Court, and as finally submitted to the jury.” Hall just said, “Let’s go.” (TT 902-903)

Two parts of the Allen instruction given to the jury were (1) “In the course of deliberations, a juror should not hesitate to re-examine his own views and change his opinion if convinced it is erroneous. (2) Each of you who finds himself in the minority should reconsider your views in the light of the opinions of the majority.” The judge also told the jury not to “surrender his honest conviction” and the majority “should give equal consideration to the views of the minority.” (TT 903-904) He stressed that it was his and their “sworn duty to see that these defendants get a fair and full trial, and that the government likewise gets a fair and full trial.” He closed with, “I would like for you to go back to your jury room, agree upon verdicts, and return to the courtroom.” (TT 905) Stevens’s attorney objected to the supplemental charge because it had already been given. Allen also objected on the basis that it was premature.

After Judge Hall told the jury the encouragement to come to a decision (at 2:46 p.m.) the jury went back to work. (TT 905)

In April 2012 I made telephone contact with two people who served on the jury. I simply wanted to ask some questions to help me understand how the jury determined Marvin was guilty of conspiracy. Much to my surprise one juror was extremely hostile. As best as I could hastily take notes the juror said, “He (Marvin) put dynamite in school bus gas tanks. I was afraid he would be found innocent. We wanted to keep him under Federal jurisdiction so we convicted him of one charge. He claimed to be a man of God. Just think of those poor school children.” The other juror could only remember one thing and that was the defendants were “going to do something to school buses.” It is likely that the other deceptive strategies used by the prosecution impacted the jurors, but there is do doubt that this one swayed them to convict Marvin.

The jury reached a verdict at 3:55 p.m. (TT 906)

Now, I cannot judge for sure what was in a man’s heart by this transcript, but I feel that true hatred came out now. Mr. Rich moved for the bonds to be revoked. He used Marvin’s appearance at the Klan rally and Ed Miller being in the court to “obviously support him.” Then Mr. Rich brought up the speech Marvin gave at the Municipal Auditorium as Marvin’s “utter disregard for the laws of the citizens of this District.” He called Marvin “a threat to the District.” Judge Hall denied the motion. (TT 909)

END OF THE LINE: THE SENTENCING

On May 19 Marvin appeared for sentencing. Allen brought up his motion to set aside the verdict and grant a new trial. That was denied.

Now, we see what I think was the obvious goal of Field and Rich—to get Marvin. Field said, “If Your Honor please, it is the government’s view that Mr. Horan was the instigator and leader in this entire episode during this period of time. We feel that he misled Mr. Stevens, Mr. Blankenship, Mr. Rose, and others, that Mr. Horan used them as pawns; and we feel that the Court should reflect a sentence upon Mr. Horan as a deterrent to others who might take the same action.” (TT 916)

In Hall’s statements to Marvin, Hall said that Marvin was the leader of the conspiracy. (TT 916)

An appeal was made based upon the judge delivering a form of the Allen charge after the jury had deliberated for three hours and 19 minutes. The United States Court of Appeals for the Fourth Circuit ruled on March 24, 1976 that even though the court had declared in another case that “giving of such an instruction two and one-half hours after the beginning of deliberations constituted undue haste...We repeat the admonition.” However, the court found the “other assignments of error are without merit.” I am unsure what “other assignments” means, but the bottom line is that Marvin served his sentence. (http://md.findacase.com/research/wfrmDocViewer.aspx/xq/fac.19760324_0040560.C04.htm/qx)

See (2) below.

A TICKET HOME: EXONERATION

Liberals have no problem believing that the government will, intentionally or not, wrongly convict a man for an act of violence (often rape and murder.) The matter need not be strictly a liberal concern since all Americans are affected. A February 11, 2005 USA Today headline declared, “Report: Thousands Wrongly Convicted Each Year.” That article focuses on incompetent defense counsel, but it provides a factual foundation that a "guilty" verdict does not mean a defendant is actually guilty. A Google search for "exonerated inmates" brings up numerous cases of convicted inmates being set free.   Even with good intentions there can be a case of a “holy grail for federal prosecutors” such as the Jesse Shotts case. Schotts was a liberal lawyer whose words were used against him. Another search for “wrongfully convicted” yields several cases of men imprisoned for crimes they did not commit such as one innocent man who spent nearly 30 years in prison.

It is inconceivable that Marvin’s trial was not moved far away from Kanawha County. It is impossible that the jurors were not highly informed about the Textbook War. Judge Hall told the jurors, “Everyone has heard something about this case. The important part is have you formed a conclusion or opinion of guilt or innocence.” (TT 9, emphasis added) From the stream of headlines, particularly about the school bombings, and based upon what the two jurors told me, I suspect the jurors were not neutral even though they could have honestly claimed, at the start of the trial, that they had not come to a conclusion.

Also, Marvin should have been tried alone. The counts he and Stevens were facing were easily confused. Marvin was charged with counts 1, 2, 4, and 5. Stevens faced all six counts. Count 1 was for conspiracy. Counts 2 and 5 were (two separate occasions) for making a bomb. Count 4 was for bombing Midway school. Counts 3 and 6 were for possessing a bomb.

The judge said, “A reasonable doubt means in law just what the words imply, namely, a doubt founded upon some good reason.” (TT 860) “If you do not have a belief or conviction, or it on consideration of all the evidence you are left with the conclusion that a finding of innocence may be drawn as reasonably as a finding of guilt, then you must acquit the defendant of any and all counts of the indictment as to which such a conclsion exists.” (TT 861) “An act is done knowingly if done voluntarily and intentionally, and not because of mistake or accident or other innocent reason.” (TT 874) “Before the jury may find that a defendant, or any other person, has become a member of a conspiracy, the evidence in the case must show beyond a reasonable doubt that the conspiracy was knowingly formed, and that the defendant, or other person, who is claimed to have been a member, willingly participated in the unlawful plan, with the intent to advance or further some object or purpose of the conspiracy.” (TT 879)

“You, as jurors are the sole judges of the credibility of the witnesses and the weight their testimony deserves. You should carefully scrutinize all the testimony given, the circumstances under which each witness has testified, and every matter in evidence which tends to show whether a witness is worthy of belief. Consider each witness’ intelligence, motive and state of mind, and demeanor and manner while on the stand. Consider the witness’ ability to observe the matters as to which he has testified and whether he impresses you as having an accurate recollection of these matters. Consider also any relation each witness may bear to either side of the case; the manner in which each witness might be affected by the verdict, and the extent to which, if at all, each witness is either supported or contradicted by other evidence in the case.” (TT 861)

“In order to establish proof that such a common plan or arrangement existed, the evidence must show that the parties to the plan or arrangement in some way or manner, or through some contrivance, positively or tacitly came to a mutual understanding to try to accomplish some intended object or purpose of the plan or arrangement.” (TT 866)

Mr. Allen pointed out that “conspiracy is a state of mind” and “The prosecution has to show you what Marvin Horan was thinking.” (TT 58-59) In Mr. Allen’s closing argument he pointed out there were only four witnesses against Marvin and three of them all had a reason to try to save themselves some punishment. The other witness was Arthur Rose. Arthur was classified as a witness for both sides. (TT 281) Mr. Rose’s testimony could be diminished (if not impugned) by the fact he was Delbert Rose’s brother.

The defense pointed out that if Delbert was not trying to save himself some punishment, why had the state not sentenced him yet? There had been sufficient time (3-4 months) to do it. (TT 824)

Here is a summary of the evidence against Marvin. One witness was the brother of the key witness. Four other witnesses were either convicted, trying to avoid, or hoping to lessen charges by a plea bargain. They all claimed that Marvin was present when they planned their criminal acts. Some of them used a scripture Marvin supposedly read (which could easily have been interpreted as advocating peaceful actions) as excusing their actions. The key witness, Delbert Rose, was mentally unstable man. Even Mr. Rich referred to Delbert Rose as “pathetic.” (TT 53) Rose had been discharged from the military due to a nervous breakdown. (TT 146) A couple of years later he was hospitalized again for his condition. He suffered from black outs and passing out spells. (TT 148) Rose relied upon valium in order to function close to normally. (TT 149) He could not remember when he pled guilty. (TT 154) The defense pointed out that Rose only had precise memory on matters concerning Marvin and his codefendant. (TT 825) Also, Rose was in federal custody and awaiting sentencing which could have meant 35 years in prison plus a $40,000 fine on one charge and five years plus $10,000 on another charge. If Marvin could manipulate him indirectly, is it not extremely likely that the prosecution could do it directly? Rose testified that he had met with federal agents the day before he testified at the trial. (TT 156) He was waiting on the results of his plea bargain. (TT 157) Rose borrowed a gas can from Marvin and never used it in the commission of a crime. The prosecution had to resort to trickery in order to insert horrific images into the minds of the jurors.

Bill Ayers, co-founded the violent Weather Underground in 1969. His group engaged in terrorist tactics into the 1970s. They conducted a campaign of bombing multiple buildings; a “Days of Rage” which included widespread vandalism, bloody police confrontations, general mayhem, burglary, theft, a jailbreak; and the throwing of gasoline-filled Molotov cocktails at a judge’s house. One of their bombs exploded during production, or they would have carried out what one of their members said was to be “the most horrific hit the United States government had ever suffered on its territory”—a bombing of a Fort Dix (NJ) club for military personnel...Ayers went on to become a Distinguished Professor of Education at the University of Illinois at Chicago (teachingfuture teachers) and a current cohort of President Barack Obama. (Protester Voices—The 1974 Textbook Tea Party, pg. 9) Ayers never went to prison for his admitted acts. The Weather Underground was a self-described communist revolutionary group that conducted a campaign of bombing public buildings.” (http://en.wikipedia.org/wiki/Bill_Ayers) One of his criminal cohorts was Linda Evans who was sentenced to prison for “harboring a fugitive in the 1981 Brinks armored truck robbery, in which two police officers and a guard were killed” and latter she was found guilty of “conspiracy and malicious destruction in connection with eight bombings including that of the U. S. Capitol.” Her sentence was commuted by President Bill Clinton . Another friend of Ayers, Susan Rosenberg, was” caught in possession of 740 pounds of dynamite intended for use in terrorist attacks.” President Bill Clinton commuted both of their sentences. Those people unashamedly committed acts far beyond what Marvin Horan was accused of doing.

Liberals should do more than lip-service to liberalism. Conservatives should challenge their own complacency. The chapter of Ecclesiastes that was used against Marvin goes on to state the following: “I said in mine heart, God shall judge the righteous and the wicked: for there is a time there for every purpose and for every work.” (Ecc. 3:17)

The judge told the jury that they “must use common sense.” There is more than reasonable doubt that Marvin Horan was not guilty of conspiracy. Now, the people of West Virginia are called to do that very thing—use common sense--based upon information the jury did not have.

Allowing any injustice to go unanswered does a great disservice to all American citizens. I call upon true liberals and people of all faiths to pursue this matter with government authorities. Marvin Horan was handed a one-way ticket on the Wrong Way Railroad. It is time for the citizens of West Virginia to bring him home.

Marvin’s appeal was based upon a technical legal basis. Now, his appeal based upon tried-and-true logic. Instead of being heard by a panel of judges, Marvin’s next appeal should be judged by the people.

Conservatives and Christians should ask God’s pardon for their indifference to Marvin Horan and ask for a governor’s pardon for Marvin.

Let’s give Marvin a ticket home!

(1) Judge K. K. Hall, a Democrat, threw out West Virginia’s abortion laws and in 1976 was appointed to the U.S. 4 th Circuit Court of Appeals. (http://www.wvencyclopedia.org/articles/128)

(2) In December 2015 the Allen Charge was used to convince a jury to declare a verdict in a case involving a prominent coal company CEO. A local commentator called the Allen Charge an “ unusual, but not unheard-of step…judge gives a mildly coercive instruction to a deadlocked jury to continue deliberations to try to reach a verdict…The Allen charge is also sometimes called the “dynamite” or “hammer” charge…”
(http://wvmetronews.com/2015/12/02/judge-turns-up-pressure-on-blankenship-jury/)

In January, 2022 I obtained the records of a case that was made to the U.S. Supreme Court in April of 1976. Attorney John Boettner, Jr. asked the Supreme Court to review the decision of the United States Court of Appeals for the Fourth Circuit regarding Marvin’s case. The Appeals Court had denied Marvin’s request for a retrial.

Boettner argued that the Allen charge (1) “invaded the province of the jury. (2) was unwarranted because, after “twenty-four hours of testimony extending over four trial days” it was given after only three hours of deliberation, and (3) “the accompanying command to reach a verdict…coerced a verdict against the petitioner (Marvin).

Some highlights of the 22-page argument plus a 15-page appendix:

(1) Marvin was charged with five counts
(2) Marvin’s appeal for a new trial was based upon new evidence because a juror felt “’pressured’ into finding Horan guilty of count one because of the conduct of the judge” in giving the Allen charge.
(3) The evidence against Marvin “was established solely through convicted co-defendants pursuant to the plea bargaining arrangement.”

Boettner pointed out many issues with the trial and then focused on the Allen charge providing many legal citations ant that the Allen charge is

(1) coercive of minority jurors,
(2) gives the judge undue influence,
(3) may force a jury into a hasty verdict, and
(4) ignores practical considerations of hung juries.

The (later to be famous) Robert H. Bork (Solicitor General, Department of Justice) argued against the appeal. I found his arguments specious. He focused on the gas can conspiracy, alleged statements made by margin about destroying the Midway school cafeteria, and Marvin’s use of Bible verses.

Bork admitted, “It is true that four courts of appeals, in the exercise of their supervisory powers, have held that the Allen charge should be modified. He ignored the fact that, in Marvin’s case, the Allen charge was given quickly.

I assume the Supreme Court did not hear the case.

Here is an opinion of the Allen charge from the University of Richmond Law Review, Volume 6, Issue 2, Article 14, 1972:

The "Allen charge," first upheld by the United States Supreme Court in Allen v. United States,2 is employed by trial judges to blast deadlocked juries into reaching a verdict;4 hence its nickname, the "dynamite charge."… The "Allen charge" is an anachronism in our modem age. It has no place in a society in which jury verdicts are regarded as the result of patient and impartial deliberation. Its very use shows a failure by the courts to recognize that a hung jury is at least a temporary victory for the accused and a valid alternative to a verdict of guilty or not-guilty; that the majority of the jurors are not necessarily correct; and that a unanimous verdict, in criminal cases, means exactly that.

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The other side of the story is told in “Marvin Horan was not a Racist”.

For more documented facts about the racism slur please see The Kanawha County Textbook Protesters were NOT Racist.

In order to fully understand the protesters as the Courageous Corps of ’74 and the good citizens and patriots they really were please read PROTESTER VOIECES—THE 1974 TEXTBOOK TEA PARTY.

See Marvin during the protest in the beginning of this video.

Hear Marvin discuss his charges in 1975. (Hmmm. Could powerful people have conspired to set him up?)

TEXTBOOK WAR HOME