Until 1848, the vast area separating the Rocky Mountains and the Sierra Nevada – commonly referred to in the nineteenth century as the “Great Basin” – was claimed by Mexico. Mexico ceded the area to the United States under the terms of the Treaty of Guadalupe Hidalgo that ended the U.S.-Mexican War. The Great Basin was described as the place “filled with what the Lord had left over when He made the world and what the Devil wouldn’t take to fix up hell.” The combination of a desert terrain surrounded by harsh mountain conditions proved to be inhospitable to all but the Native Americans and a few hearty-souled pioneers. That is, until gold was discovered in California in 1849.
Between 1848 and 1850, the whole of the western United States was officially an unorganized territory. The region had no constitution or provisional government or justice system other than the law of “might makes right.” As fortune-seekers flooded into this region by the thousands, two political forces took root that would forever shape criminal justice in Nevada. The first was the military provisional government running California at that time that, for the most part, allowed justice to be meted out by vigilance committees. The other was the group of political refugees known as the Latter Day Saints, or “Mormons,” that had settled in and around the Great Salt Lake in 1847. While still technically Mexico territory, the Mormons had claimed most of the Great Basin as their own, calling their new home “Deseret.” The Mormons would provide a more structured approach to government, albeit one that detractors claimed simply benefited the church.
The people who had begun to settle on the eastern slope of the Sierra Nevada (in and around present day Carson City) had more in common with California than with the Mormons. Despite this, they found themselves under the rule of the Latter Day Saints when California became a state in 1850 and its official borders stopped short of the eastern slope. The land of what is now northern Nevada was instead included in the newly formed Utah Territory and its people were to be governed by the territorial government seated in Salt Lake City.
Suffice it to say, the Mormons were not, at least in the beginning, all too concerned with the happenings on the eastern slope, by this time referred to as “Washoe” after the local Indian tribe. In the void, “[t]here was little law in the territory,” and “treachery seemed to have been the controlling influence.” One early settler described Washoe thusly: “All kinds of roguery is going on here; men are doing nothing else but steal horses, cattle, and mules.”
In time, the Mormons would exert their authority by setting up various county structures and government systems, including courts. The Mormons named one of their own, Orson Hyde, as the judge of the Carson region, but his authority was never truly recognized in Washoe. A series of failed attempts was made to annex the Carson region to California rather than be under the control of people who owed their allegiance to a religious structure over 500 miles away. This was a time of heightened anti-Mormonism and most of the people of Washoe preferred handling local justice on their own. “Newcomers complained that they were not dealt with fairly under Utah’s justice system” and “that the Mormons received favorable treatment.” The people of Washoe also felt defenseless in the face of what they believed to be a biased justice system, as Brigham Young – the head of the Mormons – moved settlers into Washoe to “insure election results.”
The situation deteriorated in 1856 when an “armed mob of Mormons drove a U.S. District Judge from the territory” and began to defy other United States laws. Believing the Mormons to be in open rebellion, then U.S. President James Buchanan sent troops toward Salt Lake expecting a war. Brigham Young called home all Mormons in anticipation of an epic battle. Though the United States/Mormon war never materialized, it did create a vacuum in how governmental affairs were being conducted. Washoe was again left alone, for the most part, to run its own affairs.
By 1858, a vigilante committee had been set up in the region to dispense justice. The leader of the group was Major Ormsby. Ormsby was instrumental in the movement to free Nevada from the Utah territory. But his desire to take justice into his own hands was opposed by a number of anti-vigilante committees that, in turn, wanted either a more structured and dispassionate system of justice or some as-yet-undefined form of justice that did not give so much power to people like Ormsby. One of these anti-vigilantes was a man named “Lucky Bill” Thorington.
By all accounts, Lucky Bill was a prototype Nevadan: flamboyant, gracious, and hard-working. He earned his nickname by running games of chance and winning almost every time a challenger put big money on the table. He invested his winnings in property, a toll road, cattle, a sawmill, and other endeavors in and around Carson City. One contemporary described Thorington as “both generous and brave and his sympathies were readily aroused in favor of the unfortunate: or which in frontier parlance would be termed ‘the under dog in a fight’ regardless of the causes that had placed the dog in that position.”
Lucky Bill had no problem taking money in games of chance from either horse-thieves or Mormon tithe-collectors, and he opened his house freely to each. “His station was a rendezvous where the weary found rest and the hungry never were turned from his door.” Thorington’s willingness to befriend Mormons put him at odds with the Ormsby-led vigilante committee that was squarely anti-Mormon. At the same time, more and more of the guests at Thorington’s ranch were outlaws from the newly emerging California justice system – a factor that Ormsby’s vigilante committee saw as contributing to the lawlessness in the Carson area. For Ormsby, Lucky Bill had become public enemy number one.
So, when Thorington allegedly abetted a murderer by letting him stay at his ranch, and allegedly helped to sell the stolen horse of the murdered man to – again allegedly – fund an assassination attempt on Ormsby’s life, the vigilante committee struck. On June 17, 1858, Thorington was arrested by a mob numbering close to a hundred. The mob had already hung one person they mistakenly identified as the alleged murderer, but that did not stop their on-going thirst for vengeful justice. A jury was quickly made up of twelve members of Ormsby’s vigilante committee, while others acted as judge, sheriff, and prosecutor. The rest of the vigilante committee could be heard just outside the barn in which Thorington was being tried, constructing a gallows. Lucky Bill was executed shortly after the jury brought back the guilty verdict.
A modern reader cannot review the facts of Thorington’s arrest, trial, and sentence without acknowledging the resounding truth of the U.S. Supreme Court’s words in Powell v. Alabama, the country’s first major right to counsel case. “The prompt disposition of criminal cases is to be commended and encouraged. But, in reaching that result, a defendant, charged with a serious crime, must not be stripped of his right to have sufficient time to advise with counsel and prepare his defense. To do that is not to proceed promptly in the calm spirit of regulated justice, but to go forward with the haste of the mob.”
Though the vigilantes successfully rid themselves of Thorington, the episode firmly turned the people of the Carson Valley against the vigilante committee. “[A]fter Thorington’s hanging almost all the vigilantes faded from the scene, while many of his friends remained (some of whose descendants continue to reside in Carson Valley).” Ormsby would die less than two years after Thorington’s death, killed while undertaking one last act of vigilantism. Nevada was poised for a different approach to justice.
Meanwhile, on the other side of the country, Abraham Lincoln assumed the office of the President of the United States and the nation was thrown into civil war. As the people of the eastern slope sought to create a system of government free from Mormon influence and free from the rush to judgment so core to the vigilante committees, the federal government desired new states to help ensure Lincoln a second term. Tapping Nevada’s natural resources to help fund the war effort was an added benefit, and Nevada was placed on the fast track for statehood.
In 1861, the United States approved creation of a Nevada Territory, essentially splitting the Utah Territory in two. Slightly less than 7,000 people lived in the entire Nevada Territory at that time. Still, in September 1863, approximately, 6,660 votes were cast in the territory in favor of making Nevada a state.
A constitutional convention was called for November of the same year. On the second day, a committee of three people was appointed to work on the state constitution’s preamble, the name of the state, the state seal and coat of arms, and the state’s Bill of Rights. Though the naming of the state underwent some debate, the right to counsel did not. On November 6, 1863, Section 8 of the Nevada Constitution was proposed and adopted with no debate, ensuring from that day forward that “in any court whatever, the party accused shall be allowed to appear and defend in person and with counsel” and that under no circumstances shall the accused be deprived of “life, liberty, or property, without due process.”
There was one small hiccup unrelated to the right to counsel. The voters of Nevada summarily rejected the new constitution because it was thought its taxation plan could negatively affect the mining industry. Tax changes were made in a subsequent convention held in 1864. The voters of the Territory of Nevada approved the Constitution on September 1, 1864, and no changes were made to the right to counsel as it had been written the previous year.
Interestingly, the 1864 Constitution included a new “paramount allegiance to the Federal Government” clause vowing Nevadans support of federal powers “as the same have been or may be defined by the Supreme Court of the United States.” This same clause remains in the Nevada Constitution to this day, expressly committing the state to support all right to counsel case law handed down by the U.S. Supreme Court.
Nevada was made a state on October 31, 1864, eight days before the Presidential elections and in time to help re-elect Lincoln. The American Civil War ended just months later, in early May 1865.
So what does all of this have to do with Shepherd L. Wixom? With the still fresh memories of Utah Territory justice that had lacked any semblance of due process, by the 1870s the norm in Nevada appears to have been for the judge to appoint an attorney whenever requested by a defendant facing criminal charges. As a modern state attorney general ethics opinion observed in reflecting upon this tradition, because “an indigent defendant unversed in the law” might be deprived of due process, the Nevada courts “from the beginning” recognized their power to appoint lawyers for the poor. Furthermore, to the extent that Nevadans saw themselves as closely aligned with California, that state had passed a sweeping right to counsel statute on February 14, 1872.
There were also some quite practical reasons to appoint counsel. Though it is tempting for a 21st century mind to impose a modern-day notion of criminal justice on the events occurring in Lander County during the nineteenth century, in fact criminal justice then was much different in some very key ways. Criminal proceedings were actually quite rare in the 1870s. Trial judges would ride a circuit around the state, hearing cases in one town one day and the next town when he could get there, and any cases that required the judge’s attention would simply have to wait until he next came to town. There were also relatively few attorneys, and those few often rode circuits side-by-side along with judges. So, when a criminal case came up, it was frequently fairly convenient to appoint an attorney rather than have a defendant try to defend his own interests.
Indeed, as will be revealed in a later chapter, when Wixom’s case reached the Nevada Supreme Court in 1877, the Court admitted that appointing attorneys for poor people in criminal proceedings was a “common” and “perhaps universal practice” in the state. It is no wonder Shepherd Wixom expected the judge to appoint him an attorney during his arraignment.
Photo credits: 1. Stagecoach outside the Warm Springs Hotel (c. 1860’s). Hotel was used as the Nevada Territorial Capitol in 1861. Courtesy of the Nevada State Library and Archives; 2. Wells, Fargo & Co.’s Express Office, Carson City (1865). Special Collections, University of Nevada, Reno Library; 3. Birdseye panoramic of Carson City (c. 1870). Nevada Historical Society; 4. Nevada State Penitentiary under construction (c. 1870). Nevada Historical Society.