Escaping justice: Defendant in shooting acquitted despite 'slam dunk' case

Madisonville, Tenn. - If there were any doubts in Charles Moulden’s mind about prejudicial feelings, they were settled the morning of Sept. 4, 1968, as he limped into the Monroe County Courthouse on crutches.

“When I came in, there was this white lady standing in the hall,” Moulden recalls. “I smiled and said howdy to her, how are you doing?

“She said: ‘I’d be doin’ a lot better if you wasn’t here. We don’t want no niggers down here. He shoulda killed you.’
“I told her, ‘Well, he didn’t.’ I wasn’t smiling by then.”

Out on the courthouse lawn, rib-poking good ol’ boy commentary was even more blunt, more biting.
Moulden still has a vivid memory of those humiliating statements:

“Some of ’em were saying stuff like, ‘You know Fred didn’t shoot at that nigger. Fred’s a better shot than that. If he’d shot at that nigger, he would’ve killed him.’ Then they’d laugh.”

Little wonder, then, why the jury reached a quick verdict.

Testimony in the case lasted a little more than half the day. In just under a half-hour — 3:25 p.m. until 3:50 p.m. — the all-male, all-white panel came to a unanimous decision:

“Not guilty, your honor.”

Forty-five-year-old Fred William Ellis — a previously convicted killer already infamous in the East Tennessee backcountry for frequent brushes with the law — was free to go.

Accordingly, Judge James C. Witt dismissed all charges and sent a smug and smiling Ellis on his way.
“Ellis was always acting nonchalant (on the stand),” said Moulden. “My attention was on him all the time. Whenever he looked at me, I could see the anger in his eyes.

“I will tell you this: I tried to make as much eye contact as possible, just to make him mad. I thought, ‘Surely they won’t let him shoot me here.’ ”

By one measure, Moulden says today, he was surprised by the decision.

By another, it was nauseatingly predictable.

CASE NUMBER 3030 appeared airtight. The state had four eyewitnesses on its side.
There was 24-year-old Moulden, the victim who was black, along with his three white fishing buddies: Bill Williams, Arvil Lee Parton and Leroy Parton, all from Sevierville.

On April 10, Williams and the Partons had watched and listened as Ellis, a lifelong resident of the nearby Coker Creek community, cursed and angrily threatened their friend on opening day of trout season in the Cherokee National Forest. Later that same day, they had seen Ellis’ car roar past their fishing party and then Ellis appear seconds later in a bend of the road ahead.

Agreed, only Moulden — cut down as the first shot was fired — had actually watched the assailant re-aim his pistol and squeeze off a second round. By then, the three others had ducked for cover.

Still, it was pretty strong evidence, especially considering that an intoxicated Ellis had been arrested at Tellico Lodge shortly after the assault occurred. He was charged with attempted murder and jailed under a $5,000 bond.
Officers believed Ellis sprinted up the ridge from the site of the shooting, hid his gun, dropped into a low gap and emerged where Bill White’s rustic hunting and fishing resort was located.

It’s a quite plausible theory. Anyone familiar with these hills and hollows could eclipse the distance in a matter of minutes.

RIGHT BEFORE THE TRIAL started, the sheriff had us walk through the courtroom, one at a time, and look around,” said Moulden. “Then he had us walk out through another door and describe what the shooter looked like.

“All four of us identified Fred Ellis. I thought this was going to be a slam-dunk.”
It was a slam-dunk all right. Just 180 degrees in the other direction. Which underscores why Moulden wasn’t surprised by the outcome.

“The whole thing was a farce, a dog and pony show,” he said.

Leroy Parton, 66, who still lives in Sevierville, remains as bitter in 2014 as he was in 1968 when the not-guilty verdict was announced.

“They should’ve hung that son of a bitch,” he said. “Instead, they let him go free.”

Veteran criminal court reporter Jack Harrill recorded the spellbinding testimony on Edison Voicewriter vinyl discs — cutting-edge technology in its era but audio antiques today.

“That jury wasn’t going to convict Fred Ellis of anything,” he said grimly.
Moulden concurs:

“It was either because I was black or all of us were outsiders from Sevier County. Or maybe everybody was afraid to testify against him. It didn’t matter.”

Just how poisonous was this atmosphere?

The Sevier Countians received so many threats, veiled and direct, they had to be driven to the courthouse by deputy escort.

THE DEFENSE, led by Knoxville attorney Calvin N. Taylor, planted seeds of doubt in the jury’s mind at every turn. Such as:

How could Moulden and the Partons distinguish Ellis’ black 1952 Chevrolet from other possible black 1952 Chevrolets on the road that day?

How could they identify Ellis from 50-75 yards away and yet not be able to describe the kind of gun he used?

Had it not been foggy?

Was there not enough emergent vegetation to obscure the shooter?

Who knows if “this colored boy” was even telling the truth about being shot? Why was there no doctor to testify about the extent of his injuries?

Ellis himself took the stand and repeatedly denied any involvement.

He swore he didn’t own a pistol. He insisted he had only pulled his car off the road to consume “a half-pint of bonded whiskey some feller give me up on North River.” He said he ran into the woods in fear for his own life when he heard shots being fired down the road.

Attorney General Tom J. Taylor of Cleveland re-examined often, allowing the victim and his friends to reiterate their eyewitness versions.

It was during his closing argument to the jury, though, that the prosecutor cut to the chase.

“You gentlemen are not stupid,” his voice can be heard on the scratchy recordings, recently found in the Monroe County Courthouse’s archives.

“You know what happened. You know what this case is really about.

“I don’t know how you feel about mixing colored and white,” Taylor continued, his voice rising with emotion. “But if you are so prejudiced (as to turn Ellis free), you might just as well put a badge on him and let him go back to terrorizing whoever he wants!”

“What if it had been your own (son) who’d been shot?” he pleaded with the panel. “How would you feel then?”
The attorney general’s final sentence to the jury, delivered in the politically correct jargon of the day, reverberated through the courtroom like a fire-and-brimstone sermon:

“You might let (Ellis) go free because he ‘just shot a Negra,’ but I tell you, it might not be a Negra next time!”
It wasn’t.

ALTHOUGH ORIGINALLY ACCUSED of attempted murder, Ellis was ultimately tried for felonious assault. On May 6, 1968, the Monroe County grand jury had returned a true bill on that charge.
His first trial was held May 24. The outcome was a hung jury.

On Sept. 4, as soon as the second jury announced its not-guilty verdict, Moulden saw no further use trying to beat the system.

“The attorney general told me it was my duty to come back and we’d fight this thing in federal court,” Moulden remembered.

“I said, ‘No, sir. I’ve had enough. I wasn’t comin’ back no more. The only way I’d do that was if they gave Fred Ellis a fishing pole and me a pistol.

“I told him, ‘These people want this man down here more than they want me down here. A person with no more intelligence than that, he’ll probably never leave this area.

“Besides, my friends had a concrete-finishing business in Sevierville. They were losing money every time we came to Madisonville. I couldn’t ask them to keep doing that.”

Moulden’s final message to the prosecutor proved hauntingly prophetic:

“Now you’ve got to contend with him. Who’s he gonna  shoot next? He’s already showed he doesn’t mind pulling the trigger on another human being.”

ELLIS BELONGED to a hillbilly family with a reputation for “law-bending” — mostly hunting and fishing violations, as well as making and drinking moonshine.

“I never personally arrested Fred,” said former Monroe County Sheriff Frank White, 82, who still works as a courthouse officer when his health permits. “But it seems like my deputies were picking him up all the time, mostly for drinking. I remember he could really aggravate you.”

By all accounts, the clan’s patriarch, Ben Ellis, was a soft-spoken mountain man who supplemented his meager farm income as a bear-and-boar hunting guide — “in season or out,” the late News Sentinel staff writer Willard Yarbrough once quipped in print.

As Ben’s sons came of age, however, they turned to violence.

Two of them, Ed and Benton, died in separate outbreaks of gunfire. A third, Roy, was wounded in another shootout. Roy died at age 75 in 2008, although it is not clear whether those injuries contributed to his death.

By far, Ed Ellis’ death attracted the greatest media attention. He was a major player in a 20th-century, East Tennessee version of the Hatfields and McCoys.

TROUBLE BEGAN BREWING when another Coker Creek native, Korean War veteran Myles Witt, returned to Monroe County and started a construction business. Witt hoped to develop some of the region into vacation homes and retreats. He attracted outside investors, formed the Unicoi Mountain Corp. and set up operations.
Anger, jealousy, confrontation and retribution — “mountain justice” in local parlance — quickly followed.
The common denominator was a clear liquid dispensed in Mason jars.

The licensed making of corn liquor became legal in Tennessee in 2009; it has blossomed into a lucrative tourist attraction. But for two centuries prior, this art was practiced on the sly throughout these rough, misty highlands.
In the 1960s and ’70s, the notion that flatlanders might start prowling around where stills were located — let alone take up residence — was a recipe for disaster. Here’s what Yarbrough wrote about the situation in an analysis from Sept. 8, 1974:

“The Ellis and Witt clans have been involved in court actions for the past 2½ years, both civil and criminal — ranging from allegations of cabin burnings and shooting into buildings owned by the Witt interests, damage suits and earlier bloodshed.

“The saga is complex,” Yarbrough noted, “but it involves moonshining and little law enforcement, which at times is non-existent.”

The conflict smouldered back and forth before exploding savagely. On Aug. 17, 1974, Ed Ellis was killed in a rural road shootout with Myles Witt and two of his associates.

Witt and his men were charged with murder. Three trials resulted in hung juries. Prosecutors pushed for a fourth. But in November 1978, the Tennessee Supreme Court ordered all charges dismissed because “the probability of any future jury reaching a verdict of guilt or innocence is almost non-existent.”

THE DEATH of Benton (“Babe”) Ellis was even more grisly and mysterious.
On April 13, 1988, his body was found in the woods about one mile from his house. He had been struck at close range by a shotgun blast to the back of his head.

Months passed with no arrest, prompting investigators to attempt loosening lips another way.

On Aug. 5, 1988, the News Sentinel reported that a $2,500 state reward had been posted for information about the killing.

Still nothing. Money may be an effective lubricant for solving crime in some settings. Not here.

It wasn’t until 1997 that a suspect was brought into custody. He was a Kentuckian, Roy E. Browder.
He also was Babe Ellis’ nephew.

Browder’s trial was postponed several times. Finally, on April 19, 1999, he pleaded guilty to voluntary manslaughter and was sentenced to three years in prison. He was paroled on Christmas Eve of that year and returned to Kentucky on probation.

IN THE MID-1960S, long before the Moulden case, Fred Ellis had served 17 months in North Carolina for voluntary manslaughter. A decade later, he continued to be implicated as the Monroe County feuding, arson and gun battles raged.

In 1977, he received a two-to-five-year prison sentence on attempted murder charges — this time involving a shootout with Myles Witt and his wife, Dixie — but was granted probation after serving 60 days. During that same era, he racked up a litany of other arrests, everything from public drunkenness to attempted jailbreak.

Many longtime employees of the Tennessee Wildlife Resources Agency also recall a brief — albeit terrifying — standoff near Waucheesi Lookout between the Ellises and the late game warden John French.

“The way I heard the story,” says retired wildlife biologist Dick Conley, “the boys had been drinking when John stopped them. One of ’em got out of the truck and started to point a shotgun at him. John grabbed his own pistol and stuck it in one of Ellis boy’s ears and hollered, ‘If you mother------s shoot me, I’ll shoot him!’ Everybody backed off pretty quick, but it rattled John to the day he died.”

Ironically, on Sept. 4, 1969 — one year to the day after Fred Ellis was declared not guilty in the shooting of trout fisherman Charles Moulden — he was found guilty of possessing moonshine and fined $10 and court costs, a total of $69.85.

Despite his lengthy association with violence, Fred Ellis did not die at the end of a gun. He passed away Oct. 3, 1986, at Athens Community Hospital.

Some say due to heart attack, others cancer. The Tennessee Department of Public Health would not release the cause listed on his death certificate.

At any rate, he appears to have been a very old man at the relatively young age of 62.

MOULDEN HAS paradoxical feelings about the person he believes wounded him that spring day nearly half a century ago.

“Don’t get me wrong. It took me well over a year to get rid of my worst anger,” he says.
“I was one mad man. I kept saying to myself and my friends, ‘That’s fine if he stays down there in Monroe County. But if I ever catch him in Sevier County, I’ll plant him.’ ”

The years have softened his attitude and refocused his perspective.

“Fred was a product of his environment, his culture and the times,” said Moulden. “That’s just the way it was. I’m sure he was saying (in court) what his lawyer told him to say.

“Of course, he was a coward who hid behind a gun. I would have been happy to fist-fight him, man to man. But I do have a strange kind of respect for him. He told me to my face how he felt about me and what he was going to do to me. I was just young enough and dumb enough to believe it never would actually happen.”

At this point, Moulden can’t help but inject some gallows humor: “You know, Fred was a pretty good shot, wasn’t he!

“When I went down, he probably thought he’d killed me. It was 50-75 yards between us. Maybe he had aimed for my chest and the bullet dropped and hit me in the leg.

“I’m just glad he missed the second shot.”

RACIAL PREJUDICE STILL EXISTS today, Moulden acknowledges. Instead of being expressed openly, though, bitter feelings often are veiled.

“What’s worse?” he asked, “for somebody to come right out and say they hate you for the color of your skin? Or to smile at you and be polite and then say bad things as soon as you turn your back?”

If given the chance, what would Moulden say in 2014, not only to his attacker but the jurors who set him free?
He thought for a moment. Sighed deeply. His gray-bearded face finally settled on a resolute countenance:

“If they were willing to shake my hand and say they were sorry, I’d shake theirs. If the Good Lord can forgive them, surely I can, too.”

What’s his opinion of the current social and political climate sweeping America, a stance that advocates carrying concealed weapons and stand-your-ground resistance?

“I certainly understand it,” he answered, “and I suppose if anybody oughta be carrying a gun, it’s me. But I don’t.
“Think about it: Nobody announces he’s going to shoot you.

“They didn’t at that movie theater in Colorado or at that school in Connecticut. They just started shooting, the same way I got ambushed. By that time, it’s too late to reach for your gun.”

Then Moulden was asked what he would have done if he had had a gun that day.
“Hmmph,” he responded, a grim smile on his lips. “You know the answer as well as I do.

“In 1968, it wouldn’t have mattered if Fred Ellis had put six holes in me and I only returned one shot in his general direction. A black guy shootin’ at a white man back then?”
He shakes his head wistfully.
“They would’ve strung me up to the nearest tree.”

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