State's first posthumous pardon could come Friday in case called 'a stain' on Minnesota history

DULUTH – Max Mason was the only person sent to prison for the reported rape of Irene Tusken, an unproven allegation that resulted in a white mob lynching three black men in downtown Duluth 100 years ago next week.

On Friday, as the state continues to confront the aftermath of George Floyd's death and calls for racial justice, Mason could become the first person granted a posthumous pardon in Minnesota's history.

"It is not surprising that Mason, a poor black laborer from the South, was convicted of a fictitious charge of raping a white woman by an all-white jury in the 1920s in Duluth," reads his pardon application. "There is also no question that now, one century after the horrors of Duluth in 1920, the time has come for Max Mason to receive that pardon."

If the members of the Board of Pardons — Gov. Tim Walz, Attorney General Keith Ellison and Lorie Skjerven Gildea, chief justice of the Minnesota Supreme Court — find they have the legal authority to grant a posthumous pardon, they could vote to grant one Friday morning.

The application has the backing of numerous former state leaders and current Duluth officials, who have submitted letters in support of the pardon.

"A pardon reminds all of us that the lynchings and circumstances giving rise to them were a stain on the history of Minnesota and do not reflect who we are as a state," wrote nearly a dozen former pardon board members, including former Govs. Arne Carlson, Tim Pawlenty and Mark Dayton and former attorneys general Walter Mondale, Skip Humphrey and Lori Swanson.

"The historical record clearly reflects that Mr. Mason was investigated, charged and convicted because of his race and not because of the strength and sufficiency of the evidence," St. Louis County Attorney Mark Rubin wrote.

Jerry Blackwell, a Minneapolis lawyer who drafted Mason's pardon application, said he's hopeful the application will get the unanimous vote needed to grant the pardon.

"I'm simply hopeful they will see this is the right thing to do," Blackwell said. "Any time is the right time to do justice. This is a wrong that can be righted."

Mason's case

After word traveled around town 100 years ago that Tusken had been raped by black circus workers, the six suspects who were being held at the Duluth jail were ripped from their cells by a mob of thousands on June 15, 1920. The mob held a mock trial, then quickly moved to lynch three of the men — Elias Clayton, Elmer Jackson and Isaac McGhie.

Mason, meanwhile, had traveled with the circus north to Virginia but was later arrested and tried as "a scapegoat to exculpate the actions of the mob," Blackwell wrote in the pardon application.

"Few if any residents … questioned whether Irene Tusken had been raped," he wrote. "To do so, of course, would have meant that the lynch mob had not murdered rapists, but innocent men."

Tusken's doctor found no evidence of an assault.

In the prosecutor's closing argument in November 1920 he told the jury: "We have mobs because people think the Negroes won't be convicted. That's why they take the law into their own hands. People of Duluth and St. Louis County want to know through your verdict that when a white girl is ravished by a black or white man, and the man is proven guilty, the man is going to be found guilty."

Mason was sentenced to 30 years in prison. His appeals and initial pleas for a pardon or commutation of his sentence were all denied.

In 1925 the parole board released Mason from prison on the condition he stay out of Minnesota, noting that "there has always been considerable mystery and doubt in the minds of the Duluth people about this case."

Mason died in Memphis, Tenn., in 1942 at the age of 43.

Commemoration canceled

Mason's case first returned to the pardon board, which meets twice a year, in December 2019. The board voted then to clear the way for this week's vote on a pardon.

Blackwell took on the case on behalf of Duluth activist Jordon Moses and the Clayton Jackson McGhie Memorial committee, which has been planning a variety of events to mark the centennial of the lynching.

Though COVID-19 caused the cancellation of the mass gathering planned, Blackwell said that the pardon could be "a commemoration for all the lessons that history has to teach.

"This is an opportunity for the state to look at this ugly history unvarnished and say, 'We are better than this.' "