Clark v. United States

Many people suffered from the collapse of Wilbur Foshay’s Public Utilities Consolidated Corporation (PUCC)—chiefly the company’s investors, who lost their money, and Foshay and his associates, who went to prison. But those who suffered most were neither. The tragic figures turned out to be a juror, Genevieve Clark, and her family.

Wilbur Foshay’s story is well known. In the 1920s he built a multi-state empire of utility companies, PUCC. Flush with cash and, perhaps, hubris, he built Minnesota’s first skyscraper, the Foshay Tower, in downtown Minneapolis. Then came the stock market crash of October 1929. Foshay went broke. When it came out that he had lured investors with misleading profit reports, the US government charged him with mail fraud.

Foshay’s case came for trial in federal court in St. Paul in the fall of 1931 before a jury of eleven men and one woman, Genevieve Clark. After six weeks of testimony and several days of deliberations the jury reported itself hopelessly deadlocked. Judge Joseph Molyneaux declared a mistrial.

Stories circulated immediately that there had been something fishy about what went on in the jury room. The vote had been 11-1 for conviction; the lone dissenter had been Genevieve Clark. It was learned that she had briefly worked for the Foshay Companies but had not revealed this to the court. It was learned that her husband, real estate agent and former banker Daniel D. Clark, was a friend of one of Foshay’s co-defendants. It was also learned that early in jury deliberations she had made clear that she would not vote to convict.

Minnesota’s US Attorney, Lafayette French, took the rare step of charging Mrs. Clark with contempt of court. Mrs. Clark went on trial before two federal judges, Gunnar Nordbye and John Sanborn, even before Wilbur Foshay’s retrial. The judges found her in contempt and sentenced her to six months in jail and a fine of $1000. She appealed to the Eighth Circuit Court of Appeals and lost. She then appealed to the United States Supreme Court in 1933 in a case called Clark v. United States. The appeals, expensive and desperate, bled the Clark family dry. At the Supreme Court level their lawyer, Sigurd Ueland, worked for free.

Justice Benjamin Cardozo wrote the opinion for Clark v. United States for a unanimous Supreme Court. He observed that. Mrs. Clark had not lied about working for Foshay—she had not been asked directly—but she had withheld information that anyone could be expected to know was relevant. As a juror she had taken an oath to render a verdict based on the evidence, but her conduct had shown a dishonest disregard for the evidence. She had subverted the American system of justice. Her conviction and sentence were upheld. A second jury, meanwhile, convicted Wilbur Foshay of mail fraud.

The courts had been careful to limit the factual bases of their decisions narrowly, to Mrs. Clark’s failure to reveal that she had worked for Foshay, and her close-mindedness in jury deliberations. But there were other damning facts. She had told a relative how much she wanted to be on the Foshay jury. Her name had not been among those in the original pool assembled by the clerk of court, yet somehow it had appeared, handwritten, on the clerk’s desk, with fateful consequences. During trial, when jurors were forbidden to get outside information, she had met with her husband.

The district court ordered Mrs. Clark to surrender on April 24, 1933, but she did not. On April 28 a car was found on a roadside near Prior Lake in Scott County. A hose attached to the exhaust pipe led to a hole chopped into a car window. On the front seat, dead, lay Daniel Clark. On the back seat, also dead, lay Genevieve Clark, her arms around the bodies of her two young sons.

Wilbur Foshay was sentenced to fifteen years in federal prison. He had friends, however, who did not rest in their support. President Franklin Roosevelt commuted his sentence and he went free after not quite three years. Foshay lost his fortune, his tower, his reputation, and his thirty-five months in prison; his many investors lost money; Genevieve, Daniel, Dean, and Rowland Clark lost their lives.