Metropolitan News-Enterprise


Wednesday, March 9, 2011


Page 7



Prosecutor Sutherland Draws Praise From Defendants’ Lawyer in Lugo Case




141st in a Series


Thomas W. Sutherland was district attorney for Los Angeles County (as well as San Diego County) at the time the “Lugo Boys,” two brothers, were arrested along with another for the murders of two men in El Cajon Pass. There was high tension here on April 25 and 26 of 1851—the two days on which I’ll focus today—as the judge was about to release the young defendants on bail.

The prospect loomed of their being gunned down by members of the “Red” Irving Gang or being lynched by outraged Anglo citizens who were convinced of their guilt.

Behind bars, and in irons, were Francisco Lugo Sr., Francisco Lugo Jr., and Mariano Elisalde, suspected of murder based on the uncorroborated statement of a jailhouse informant, Ysidro Higuera, a convicted horse thief.

As recounted by the defendants’ lawyer, Joseph Lancaster Brent, in “The Lugo Case, a Personal Experience,” published in 1926 (21 years after his death):

“One morning I went into the district court and moved that the prisoners be admitted to bail, as the grand jury had ignored the bills against them. The district judge [Oliver S. Witherby] and the district attorney came from the adjoining county of San Diego, and after the district attorney had examined the papers, he stated to the court that the prisoners were entitled to bail and the judge so ordered, and fixed the bond at $10,000 each; and the law required that the sureties should each be worth double the amount of the bond. I asked the court to defer the matter until 2 P. M., when I would have the bondsmen ready.”

This would have been April 25. Although Brent neglects to mention it, 10 days earlier, Witherby had rejected a like bail motion. The narrative continues:

“There were several people in the court when the judge agreed to bail the prisoners, and the news soon spread over the city.”

It came to the attention of John “Red” Irving—his nickname stemming from the hue of his face and beard—who headed a band of about 25 lowlifes who had just arrived on their steeds and were camped at the Arroyo Seco. A May 31 article in the Los Angeles Star reflects that “[w]hen here, they excited the terror of the citizens, and many offences were charged upon them.”

Brent tells of a visit to his office that day by two members of the gang, including the second-in-command, George Evans (identified by Brent only by his surname), who advised, according to the book:

“The matter is about the Lugos. Our boys have been given the job of taking them out of jail; and now we hear the judge is going to turn them loose, and we don’t intend to stand it.”

Brent’s recollection is that Evans went on to say:

“You are the lawyer of the boys, and we think it fair to let you know that they can never be taken out the jail alive, unless we are settled with. We want you to tell their father that if he don’t pay us the $10,000 were promised, to capture the jail and liberate his sons, when we started for Mexico, the boys must stay in jail, or lose their lives if they come out.”            

The lawyer relates that he instructed the visitors to leave, and quotes this parting taunt by Evans:

“They think it is cheaper to buy the judge and district attorney than us, but those boys will never get out alive except with our consent, and they had better know it.”

Accuracy of the quotes is inconceivable. Even if Brent had scribbled down what had been said minutes later, precision would have been doubtful…but there’s no indication by him in the book that he was relying on any such contemporaneous reconstruction by him of the conversation. Moreover, as W.W. Robinson notes in his 1962 book “People Versus Lugo,” Brent’s rendition was “written a half century or more after the events.”

Robinson does point out, however, that the events recited in Brent’s book “are in general agreement with facts disclosed in the court files themselves and supplement them.” That factor, coupled with the significance of the events—no doubt causing them to be ingrained in Brent’s memory—and the particularity with which Brent describes what transpired, tend to promote confidence in the overall accuracy of his impressions.

Sutherland’s acquiescence in the matter of bail—a politically inexpedient move in light of predominant public sentiment against the defendants—came long before the firm establishment of a prosecutor’s duty to subordinate the cause of winning cases to serving justice. The DA and the judge demonstrated fidelity to law—something not apt to be understood by an outlaw like Evans. He might well have concluded, in relying on his own values, that the father, Jose Maria Lugo, had opted to spend his money on paying off Sutherland and Witherby rather than financing a storming of the jail (L.A.’s small, adobe version of the Bastille).

The lawyer—who would go on to be elected to two terms in the state Assembly and later serve as a brigadier general in the Confederate Army—discloses in his book his distress over hearing from Evans of the father’s “unlawful negotiations with Red Irving and his men.” When the elder Lugo arrived a short time later with his sureties, Brent recounts, he declared he was quitting the case. The father assured him “with a solemn oath” that he had taken part in no negotiations with the outlaws, Brent says.

Robbins’ book and other sources—including “Los Angeles, City of Dreams” by Harry Carr (1935), “Los Angeles: Epic of a City” by Lynn Bowman (1974), “Mexicans in California After the U.S. Conquest” by Carlos E. Cortés (1976), and “Gold Dust and Gunsmoke: Tales of Gold Rush Outlaws, Gunfighters, Lawmen, and Vigilantes” by John Boessenecker (1999)—say that Irving had put forth his proposition to Antonio Maria Lugo, grandfather of Francisco Jr. and Francisco Sr.

An April 11, 1999 “Then and Now” column in the Los Angeles Times, relying on such sources, says that Antonio Lugo, “one of the city’s richest land barons,” had shunned the offer, and comments: “honorable man that he was, he preferred to depend on his lawyer and the court.”

Whether the grandfather had, in fact, been approached by Irving…and if so, whether he accepted or declined the offer…and whether, if he did commission the raid, his son Jose Lugo knew of the arrangement and lied to Brent, are unknown.

It does seem reasonable to suppose, however, that, if Brent’s account is accurate, Evans was sincere in a belief, correct or not, that a deal had been struck. It would have been pointless for him to have made a knowingly false assertion to Brent, realizing that the lawyer could readily check out the story with Jose Lugo. Indeed, subsequent extreme actions by Irving and his gang (discussed in the next column) suggest strongly that there was not a mere disappointment over a business proposition being spurned, but fury over a commitment being breached.

An astonishing event occurred as Brent was conversing with Jose Lugo et al. In his words:

...I heard a great clatter of horsemen in the street and, upon looking out, I saw twelve or fourteen of Irving’s men racing by at full speed. A block away from us a road left the main street, and, ascending a sharp slope, approached the public jail, which, standing by itself upon a high hill, overlooked the town.

When these racing horsemen reached the road leading to the jail, they turned into it, rode up the slope, and, in the presence of the whole city, dismounted and stood at guard over the jail. It was evident that this bold action was intended to carry out the threat of Evans, their leader, made to me, that the prisoners should not be released by process of law unless they paid them a toll of $10,000.

The reckless boldness of the seizure of the public jail, in open day and in sight of the whole city, was a proof the men relied upon the sympathy of the American population which belief was justified by the fact. The street leading to the Court House was filled with people attracted by the hour of the meeting of the court and the knowledge or anticipation that something was about to occur; and expressions of approval of the action of the bandits were frequently uttered.

The consensus among the Anglo populace was that the defendants were guilty. One of the slain men was a Creek Indian, and such a killing was not apt to disturb calm. However, the other was an Irishman, and the murder of a white man did evoke outrage.

The sworn statement of the horse thief was seen by Anglos as convincing, while the “Californios”—Spanish-speaking residents here before the American take-over in 1848—discounted it.

At about 2 p.m. on April 25, the sheriff, George Burrill, announced that court was going into session. Brent asked Witherby for a continuance until the next morning, and got it. The District Court had wrapped up all of the matters with which it was to deal at its April Term, except for the bail matter.

“[T]he district attorney, a very capable, intelligent gentleman, had agreed that he would get the court to meet” the next day “when I notified him I was ready,” Brent says. Chalk one up for Sutherland in the area of civility.

Brent exited the courthouse, encountering derisive laughter in the streets. It was understood that he could not have had his clients brought to the courthouse; they would have been killed.

“No one seemed to feel any indignation that a desperate band of strangers had seized the jail and overturned the reign of law to enforce a lawless claim for $10,000,” Brent complains, “and I perfectly satisfied myself that no  reliance  could be placed upon a single American in the struggle between the authorities and Irving’s men, and without their assistance nothing could be done.”

Back at his office, he elicited cooperation of Jose Lugo and the others in recruiting several dozen Californios, to be in town the next morning with seeming lack of common purpose, but be ready to take action, if necessary, to thwart the Irving Gang. The recruitment effort succeeded.

The next morning, Brent was in the street, discussing the case with his associate counsel, Isaac S.K. Ogier (who would succeed Sutherland as district attorney).

“Neither of us had a ray of hope of avoiding a desperate fight in our effort to save the lives of the prisoners,” he notes.

This is the juncture where, as mentioned in the last column, the cavalry came to the rescue. However, the riders did not gallop in, a bugler playing the tune that connotes “Charge!” and a German Shepherd at the lead. The soldiers, led by Captain and Brevet (honorary) Major Edward H. Fitzgerald, were on a routine march.

Brent  recites:

“As soon as possible we interviewed Major Fitzgerald, who said his troops [from San Diego] would camp all day in Los Angeles, and resume their march next day. When the actual situation was disclosed to him, he was in great doubt what he could do.

“He was shown the guard of Irving’s men still camped at the jail. Major Fitzgerald knew and esteemed our district judge and Mr. Sutherland, the district attorney, both of whom lived in San Diego; and he had interviews with them. He said it was not competent for a United States officer to interfere with his troops in the domestic affairs of a state except on order from the President; but that it had been held that the soldiers were amenable, with the consent of their officers, to be called like other citizens by the sheriff to act as members of his posse; and that under the extraordinary circumstances, he would allow the sheriff to summon his men individually as members of his posse.”

Brent provides this description of the atmosphere in Los Angeles that day:

“The whole town was in turmoil all the morning and business was almost suspended No one had the least idea that the soldiers were to take part in the scenes, but the whole community was on tip-toe expecting some denouement such as the hanging or shooting of the Lugos.”

He mentions:

“So impressed were the district judge, attorney and clerk with what would be the personal peril to them in the court room that they took precautions to protect themselves. Four discharged soldiers, who were well known as good men, were employed by these officers, armed and placed in the clerk’s room, which opened just behind the judge’s seat, with instructions in case of firing to cover the exit of the judge and officials into the clerk’s office, and then to defend the room against all comers.”

The troops showed up in town a few minutes before 2 p.m., the purpose of their presence not apparent.  Some of Irving’s men also were about, rather than at the jail, intending to enter the courtroom when it opened. In the company of the sheriff, the soldiers unceremoniously went up to the jail, and brought the prisoners to court, with no resistance from the stunned outlaws.

The court proceeding began.

“The district attorney was very particular in making each bondsman enumerate his property,” Brent grumbles, “and it seemed to me the exciting crisis was unduly prolonged.”

Bail was granted. The soldiers escorted the defendants out; they mounted horses and a cadre of Californios accompanied them home.


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