The Scottsboro Boys were nine African American teenagers, ages 13 to 20, falsely accused in Alabama of raping two white women on a train in 1931. The landmark set of legal cases from this incident dealt with racism and the right to a fair trial. The cases included a lynch mob before the suspects had been indicted, all-white juries, rushed trials, and disruptive mobs. It is commonly cited as an example of a miscarriage of justice in the United States legal system.
On March 25, 1931, two dozen people were 'hoboing' on a freight train traveling between Chattanooga and Memphis, Tennessee, the hoboes being an equal mix of African-Americans and Caucasians. A group of white teenage boys saw 18-year-old Haywood Patterson on the train and attempted to push him off the train, claiming that it was "a white man's train".[1] A group of whites gathered rocks and attempted to force all of the black men from the train. Patterson and the other black passengers were able to ward off the group. The humiliated white teenagers jumped or were forced off the train and reported to the city's sheriff that they had been attacked by a group of black teenagers. The sheriff deputized a posse comitatus, stopped and searched the train at Paint Rock, Alabama and arrested the black Americans. Two young white women also got off the train and accused the African American teenagers of rape. The case was first heard in Scottsboro, Alabama, in three rushed trials, in which the defendants received poor legal representation. All but 12-year-old Roy Wright were convicted of rape and sentenced to death, the common sentence in Alabama at the time for black men convicted of raping white women,[2] even though there was medical evidence to suggest that they had not committed the crime.[3]
With help from the Communist Party USA (CPUSA) and the National Association for the Advancement of Colored People (NAACP), the case was appealed. The Alabama Supreme Court affirmed seven of the eight convictions, and granted 13-year-old Eugene Williams a new trial because he was a minor. Chief Justice John C. Anderson dissented, ruling that the defendants had been denied an impartial jury, fair trial, fair sentencing, and effective counsel. While waiting for their trials, eight of the nine defendants were held in Kilby Prison. The cases were twice appealed to the United States Supreme Court, which led to landmark decisions on the conduct of trials. In Powell v. Alabama (1932), it ordered new trials.[4]
The case was first returned to the lower court and the judge allowed a change of venue, moving the retrials to Decatur, Alabama. Judge Horton was appointed. During the retrials, one of the alleged victims admitted to fabricating the rape story and asserted that none of the Scottsboro Boys touched either of the white women. The jury found the defendants guilty, but the judge set aside the verdict and granted a new trial.
The judge was replaced and the case tried under a judge who ruled frequently against the defense. For the third time a jury—now with one African-American member—returned a guilty verdict. The case was sent to the US Supreme Court on appeal. It ruled that African-Americans had to be included on juries, and ordered retrials.[5] Charges were finally dropped for four of the nine defendants. Sentences for the rest ranged from 75 years to death. All but two served prison sentences; all were released or escaped by 1946. One was shot while being escorted to prison by a Sheriff's Deputy and permanently disabled. Two escaped, were later charged with other crimes, convicted, and sent back to prison. Clarence Norris, the oldest defendant and the only one sentenced to death in the final trial, "jumped parole" in 1946 and went into hiding. He was found in 1976 and pardoned by Governor George Wallace, by which time the case had been thoroughly analyzed and shown to be an injustice. Norris later wrote a book about his experiences. The last surviving defendant[who?] died in 1989.
"The Scottsboro Boys", as they became known, were defended by many in the North and attacked by many in the South. The case is now widely considered a miscarriage of justice, highlighted by use of all-white juries. Black Americans in Alabama had been disenfranchised since the late 19th century and were likewise not allowed on juries. The case has been explored in many works of literature, music, theatre, film and television. On November 21, 2013, Alabama's parole board voted to grant posthumous pardons to the three Scottsboro Boys who had not been pardoned or had their convictions overturned.[6]
On March 25, 1931, the Southern Railway line between Chattanooga and Memphis, Tennessee, had nine black youths who were hoboing on a freight train with several white males and two white women.[7][8][9] A fight broke out between the white and black groups near the Lookout Mountain tunnel, and the whites were kicked off the train. The whites went to a sheriff in the nearby town Paint Rock, Alabama, and claimed that they were assaulted by the blacks on the train. The sheriff gathered a posse and gave orders to search for and "capture every Negro on the train."[10] The posse arrested all black passengers on the train for assault.[11]
The unfortunate black teenagers were: Haywood Patterson (age 18) who claimed that he had ridden freight trains for so long that he could light a cigarette on the top of a moving train; Clarence Norris (age 19), who had left behind ten brothers and sisters in rural Georgia[citation needed]; Charlie Weems (age 19); brothers Andy Wright (age 19) and Roy Wright (age 12), who were leaving home for the first time; the nearly blind Olin Montgomery (age 17), who was hoping to get a job in order to pay for a pair of glasses that he so desperately needed; Ozie Powell (age 16); Willie Roberson (age 16), who suffered from such severe syphilis that he could barely walk; and Eugene Williams (age 13);[7] Of these nine boys, only four knew each other prior to their arrest.
Two white women who were also aboard the train, Victoria Price and Ruby Bates, told a member of the posse that they had been raped by a group of black teenagers.[12] The posse brought the women to the jail where the accused were being held, and they identified them as their attackers. A doctor was summoned to examine Price and Bates for signs of rape, but none was found. A widely published photo showed the two women shortly after the arrests in 1931.[citation needed]
There was no evidence (beyond the women's testimony) pointing to the guilt of the accused, yet that was irrelevant due to the prevalent racism in the South at the time, according to which black men were constantly being policed by white men for signs of sexual interest in white women, which could be punishable by lynching. Price and Bates may have told the police that they were raped to divert police attention from themselves. They were both suspected of being prostitutes and not only risked being arrested for it, but they could also have been prosecuted for violating the Mann Act by crossing a state line "for immoral purposes."
In the Jim Crow South, lynching of black males accused of raping or murdering whites was common; word quickly spread of the arrest and rape story. Soon a lynch mob gathered at the jail in Scottsboro, demanding the youths be surrendered to them.[13]
Sheriff Matt Wann stood in front of the jail and addressed the mob, saying he would kill the first person to come through the door.[14] He removed his belt and handed his gun to one of his deputies. He walked through the mob and the crowd parted to let him through; Wann was not touched by anyone. He walked across the street to the courthouse where he telephoned Governor Benjamin M. Miller, who mobilized the Alabama Army National Guard to protect the jail.[14][15] He took the defendants to the county seat of Gadsden, Alabama, for indictment and to await trial. Although rape was potentially a capital offense in Alabama, the defendants at this point were not allowed to consult an attorney.[citation needed]
The prisoners were brought to court by 118 Alabama guardsmen, armed with machine guns. It was market day in Scottsboro, and farmers were in town to sell produce and buy supplies. A crowd of thousands soon formed.[16] Courthouse access required a permit due to the salacious nature of the testimony expected.[17] As the Supreme Court later described this situation, "the proceedings ... took place in an atmosphere of tense, hostile, and excited public sentiment."[18] For each trial, all-white juries were selected. There were few African Americans in the jury pool, as most had been disenfranchised since the turn of the century by a new state constitution and white discriminatory practice, and were thus disqualified from jury service.[citation needed]
The pace of the trials were very fast before the standing-room-only, all-white audience. The judge and prosecutor wanted to speed the nine trials to avoid violence, so the first trial took a day and a half, and the rest took place one right after the other, in just one day. The judge had ordered the Alabama bar to assist the defendants, but the only attorney who volunteered was Milo Moody, a 69-year-old attorney who had not defended a case in decades.[17] The judge persuaded Stephen Roddy, a Chattanooga, Tennessee, real estate lawyer, to assist him. Roddy admitted he had not had time to prepare and was not familiar with Alabama law, but agreed to aid Moody.[19]
Against accepted practice, Roddy presented both the testimony of his clients and the case of the girls. Because of the mob atmosphere, Roddy petitioned the court for a change of venue, entering into evidence newspaper and law enforcement accounts[20] describing the crowd as "impelled by curiosity".[21][22] Judge Hawkins found that the crowd was curious and not hostile.[23]
Clarence Norris and Charlie Weems were tried first. During prosecution testimony, Victoria Price stated that she and Ruby Bates witnessed the fight, that one of the black men had a gun, and that they all raped her at knife point. During cross-examination by Roddy, Price livened her testimony with wisecracks that brought roars of laughter.[24]
Dr. Bridges testified that his examination of Victoria Price found no vaginal tearing (which would have indicated rape), and that she had had semen in her for several hours. Ruby Bates failed to mention that either she or Price was raped until she was cross-examined.[25] The prosecution ended with testimony from three men who claimed the black youths fought the white youths, put them off the train, and "took charge" of the white girls. The prosecution rested without calling any of the white youths as witness.[26]
During the defense testimony, defendant Charles Weems testified that he was not part of the fight, that Patterson had the pistol, and that he had not seen the white girls on the train until the train pulled into Paint Rock.[citation needed]
Defendant Clarence Norris stunned the courtroom by implicating the other defendants. He denied participating in the fight or being in the gondola car where the fight took place. But he said that he saw the alleged rapes by the other blacks from his spot atop the next boxcar.[25][27] The defense put on no further witnesses.[citation needed]
During closing, the prosecution said, "If you don't give these men death sentences, the electric chair might as well be abolished."[28] The defense made no closing argument, nor did it address the sentencing of the death penalty for their clients.[28]
The Court started the next case while the jury was still deliberating the first. The first jury deliberated less than two hours before returning a guilty verdict and imposed the death sentence on both Weems and Norris.[29]
The trial for Haywood Patterson occurred while the Norris and Weems cases were still under consideration by the jury. When the jury returned its verdict from the first trial, the jury from the second trial was taken out of the courtroom. When the verdicts of guilty were announced, the courtroom erupted in cheers, as did the crowd outside. A band, there to play for a show of Ford Motor Company cars outside, began playing Hail, Hail the Gang's All Here and There'll be a Hot Time in the Old Town Tonight.[29][30] The celebration was so loud that it was most likely heard by the second jury waiting inside.[31]
After the outburst, the defense of Patterson moved for a mistrial, but Judge Hawkins denied the motion and testimony continued.[32] The second trial continued. During the second trial's prosecution testimony, Victoria Price mostly stuck with her story, stating flatly that Patterson raped her. She accused Patterson of shooting one of the white youths. Price volunteered, "I have not had intercourse with any other white man but my husband. I want you to know that."[29][30]
Dr. Bridges repeated his testimony from the first trial.[30] Other witnesses testified that "the negroes" had gotten out of the same gondola car as Price and Bates; a farmer claimed to have seen white women [on the train] with the black youths.[33]
Patterson defended his actions, testifying again that he had seen Price and Bates in the gondola car, but had nothing to do with them. On cross-examination he testified that he had seen "all but three of those negroes ravish that girl", but then changed his story. He said that he had not seen "any white women" until the train "got to Paint Rock."[34]
The younger Wright brother testified that Patterson was not involved with the girls, but that nine black teenagers had sex with the girls.[30] On cross examination, Roy Wright testified that Patterson "was not involved with the girls, but that, "The long, tall, black fellow had the pistol. He is not here." He claimed also to have been on top of the boxcar, and that Clarence Norris had a knife.[35]
Co-defendants Andy Wright, Eugene Williams, and Ozie Powell all testified that they did not see any women on the train. Olen Montgomery testified that he sat alone on the train and did not know of any of the referenced events.[36] The jury quickly convicted Patterson and recommended death by electric chair.[37]
This trial began within minutes of the previous case.
Price repeated her testimony, adding that the black teenagers split into two groups of six to rape her and Ruby Bates. Price accused Eugene Williams of holding the knife to her throat, and said that all of the other teenagers had knives.[38] Under cross examination she gave more detail,[37] adding that someone held a knife to the white teenager, Gilley, during the rapes.[37]
This trial was interrupted and the jury sent out when the Patterson jury reported; they found him guilty.[39] There was no uproar at the announcement. Ruby Bates took the stand, identifying all five defendants as among the 12 entering the gondola car, putting off the whites, and "ravishing" her and Price.[37]
Dr. Bridges was the next prosecution witness, repeating his earlier testimony. On cross examination, Bridges testified detecting no movement in the spermatozoa found in either woman, suggesting intercourse had taken place some time before. He also testified that defendant Willie Roberson was "diseased with syphilis and gonorrhea, a bad case of it." He admitted under questioning that Price told him that she had had sex with her husband and that Bates had earlier had intercourse as well, before the alleged rape events.[40]
The defense called the only witnesses they had had time to find – the defendants. No new evidence was revealed.
The next prosecution witnesses testified that Roberson had run over train cars leaping from one to another, and that he was in much better shape than he claimed.[40] Sim Gilley testified that he saw "every one of those five in the gondola,"[41] but did not confirm that he had seen the women raped.
The defense again waived closing argument, and surprisingly the prosecution then proceeded to make more argument. The defense objected vigorously, but the Court allowed it.[41]
Judge Hawkins then instructed the jury, stating that any defendant aiding in the crime was as guilty as any of the defendants who had committed it. The jury began deliberating at four in the afternoon.
The prosecution agreed that 13-year-old Roy Wright[2] was too young for the death penalty; it did not seek it. The prosecution presented only testimony from Price and Bates. His case went to the jury at nine that evening. His jury and that from the trial of five men were deliberating at the same time.
At nine on Thursday morning, April 9, 1931, the five defendants in Wednesday's trial were all found guilty. Roy Wright's jury could not agree on sentencing, and was declared a hung jury that afternoon. All the jurors agreed on his guilt, but seven insisted on the death sentence while five held out for life imprisonment (in cases like this, that was often an indication that the jurors believed the suspect was innocent but they were unwilling to go against community norms of conviction). Judge Hawkins declared a mistrial.[42]
The eight convicted defendants were assembled on April 9, 1931, and sentenced to death by electric chair. The Associated Press reported that the defendants were "calm" and "stoic" as Judge Hawkins handed down the death sentences one after another.[42]
Judge Hawkins set the executions for July 10, 1931, the earliest date Alabama law allowed. While appeals were filed, the Alabama Supreme Court issued indefinite stays of executions 72 hours before the defendants were scheduled to die. The men's cells were next to the execution chamber, and they heard the July 10, 1931 execution of William Hokes,[43] a black man from St. Clair County convicted of murder.[44] They later recalled that he "died hard."[45]
After a demonstration in Harlem, the Communist Party USA took an interest in the Scottsboro case. Chattanooga Party member James Allen edited the Communist Southern Worker, and publicized "the plight of the boys".[46] The Party used its legal arm, the International Labor Defense (ILD), to take up their cases,[47] and persuaded the defendants' parents to let the party champion their cause. The ILD retained attorneys George W. Chamlee, who filed the first motions, and Joseph Brodsky.
The NAACP also offered to handle the case, offering the services of famed criminal defense attorney Clarence Darrow. However, the Scottsboro defendants decided to let the ILD handle their appeal.[2]
Chamlee moved for new trials for all defendants. Private investigations took place, revealing that Price and Bates had been prostitutes in Tennessee, who regularly serviced both black and white clientele.[48] Chamlee offered judge Hawkins affidavits to that effect, but the judge forbade him to read them out loud. The defense argued that this evidence proved that the two women had likely lied at trial.[49] Chamlee pointed to the uproar in Scottsboro that occurred when the verdicts were reported as further evidence that the change of venue should have been granted.
Following Judge Hawkins' denial of the motions for new trial, attorney George W. Chamlee filed an appeal and was granted a stay of execution. Chamlee was joined by Communist Party attorney Joseph Brodsky and ILD attorney Irving Schwab. The defense team argued that their clients had not had adequate representation, had insufficient time for counsel to prepare their cases, had their juries intimidated by the crowd, and finally, that it was unconstitutional for blacks to have been excluded from the jury. In the question of procedural errors, the state Supreme Court found none.
On March 24, 1932, the Alabama Supreme Court ruled against seven of the eight remaining Scottsboro Boys, confirming the convictions and death sentences of all but the 13-year-old Eugene Williams. It upheld seven of eight rulings from the lower court.
The Alabama Supreme Court granted 13-year-old Eugene Williams a new trial because he was a juvenile, which saved him from the immediate threat of the electric chair.[50]
The Court upheld the lower court's change of venue decision, upheld the testimony of Ruby Bates, and reviewed the testimony of the various witnesses. As to the "newly discovered evidence", the Court ruled: "There is no contention on the part of the defendants, that they had sexual intercourse with the alleged victim ... with her consent ... so the defendants would not be granted a new trial."[51]
As to representation, the Court found "that the defendants were represented by counsel who thoroughly cross examined the state's witnesses, and presented such evidence as was available."[51] Again, the Court affirmed these convictions as well. The Alabama Supreme Court affirmed seven of the eight convictions and rescheduled the executions.
Chief Justice John C. Anderson dissented, agreeing with the defense in many of its motions. Anderson stated that the defendants had not been accorded a fair trial and strongly dissented to the decision to affirm their sentences.[52] He wrote, "While the constitution guarantees to the accused a speedy trial, it is of greater importance that it should be by a fair and impartial jury, ex vi termini ("by definition"), a jury free from bias or prejudice, and, above all, from coercion and intimidation."[53]
He pointed out that the National Guard had shuttled the defendants back and forth each day from jail, and that
Anderson criticized how the defendants were represented. He noted that Roddy "declined to appear as appointed counsel and did so only as amicus curiae." He continued, "These defendants were confined in jail in another county ... and local counsel had little opportunity to ... prepare their defense."[53] Moreover, they "would have been represented by able counsel had a better opportunity been given."[53] Justice Anderson also pointed out the failure of the defense to make closing arguments as an example of underzealous defense representation.[53] About the courtroom outburst, Justice Anderson noted that "there was great applause ... and this was bound to have influence."[54]
Anderson noted that, as the punishment for rape ranged between ten years and death, some of the teenagers should have been found "less culpable than others", and therefore should have received lighter sentences. Anderson concluded, "No matter how revolting the accusation, how clear the proof, or how degraded or even brutal, the offender, the Constitution, the law, the very genius of Anglo-American liberty demand a fair and impartial trial."[54]
Main article: Powell v. Alabama
The case went to the United States Supreme Court on October 10, 1932, amidst tight security. The ILD retained Walter Pollak[55] to handle the appeal. Alabama Attorney General Thomas Knight, Jr. represented the State.
Pollak argued that the defendants had been denied due process first due to the mob atmosphere, and second, because of the strange attorney appointment and their poor performance at trial. Last, he argued that African Americans were systematically excluded from jury duty contrary to the Fourteenth Amendment.
Knight countered that there had been no mob atmosphere at the trial, and pointed to the finding by the Alabama Supreme Court that the trial had been fair and representation "able." He told the Court that he had "no apologies" to make.[56]
In a landmark decision, the United States Supreme Court reversed the convictions on the ground that the due process clause of the United States Constitution guarantees the effective assistance of counsel at a criminal trial. In an opinion written by Associate Justice George Sutherland, the Court found the defendants had been denied effective counsel. Chief Justice Anderson's previous dissent was quoted repeatedly in this decision.
The Court did not fault Moody and Roddy for lack of an effective defense, noting that both had told Judge Hawkins that they had not had time to prepare their cases. They said the problem was with the way Judge Hawkins "immediately hurried to trial."[4] This conclusion did not find the Scottsboro defendants innocent, but ruled that the procedures violated their rights to due process under the Fifth and Fourteenth Amendments. The Supreme Court sent the case back to Judge Hawkins for a retrial.
When the case, by now a cause celebre, came back to Judge Hawkins, he granted the request for a change of venue. The defense had urged for a move to the city of Birmingham, Alabama, but the case was transferred to the small, rural community of Decatur. This was near homes of the alleged victims and in Ku Klux Klan territory.[57]
The American Communist Party maintained control over defense of the case, retaining the New York criminal defense attorney Samuel Leibowitz. He had never lost a murder trial and was a registered Democrat, with no connection to the Communist Party. They kept Joseph Brodsky as the second chair for the trial.
The case was assigned to District Judge James Edwin Horton and tried in Morgan County. His appointment to the case drew local praise. The judge carried a loaded pistol in his car throughout the time he presided over these cases.[why?][57]
The two years that had passed since the first trials had not dampened community hostility for the Scottsboro Boys. But others believed they were victims of Jim Crow justice, and the case was covered by numerous national newspapers.
At the trial, some 100 reporters were seated at the press tables. Hundreds more gathered on the courthouse lawn. National Guard members in plain clothes mingled in the crowd, looking for any sign of trouble. The Sheriff's department brought the defendants to Court in a patrol wagon guarded by two carloads of deputies armed with automatic shotguns.
In the courtroom, the Scottsboro Boys sat in a row wearing blue prison denims and guarded by National Guardsmen, except for Roy Wright, who had not been convicted. Wright wore street clothes. The Birmingham News described him as "dressed up like a Georgia gigolo."[58]
Leibowitz asserted his trust in the "God fearing people of Decatur and Morgan County";[58] he made a pretrial motion to quash the indictment on the ground that blacks had been systematically excluded from the grand jury. Although the motion was denied, this got the issue in the record for future appeals. To this motion, Attorney General Thomas Knight responded, "The State will concede nothing. Put on your case."[58]
Leibowitz called the editor of the Scottsboro weekly newspaper, who testified that he'd never heard of a black juror in Decatur because "they all steal."[59] He called local jury commissioners to explain the absence of African-Americans from Jackson County juries. When Leibowitz accused them of excluding black men from juries, they did not seem to understand his accusation. It was as if the exclusion was so ordinary as to be unconscious.[60] (Note: Since most blacks could not vote after having been disenfranchised by the Alabama constitution, the local jury commissioners probably never thought about them as potential jurors, who were limited to voters.)
Leibowitz called local black professionals as witnesses to show they were qualified for jury service. Leibowitz called John Sanford, an African-American of Scottsboro, who was educated, well-spoken, and respected. The defense attorney showed that "Mr. Sanford" was evidently qualified in all manner except by virtue of his race to be a candidate for participation in a jury. During the following cross examination, Knight addressed the witness by his first name, "John." The first two times that he did so, Leibowitz asked the court to have him alter his behavior. He did not, and this insult eventually caused Leibowitz to leap to his feet saying, "Now listen, Mr. Attorney-General, I've warned you twice about your treatment of my witness. For the last time now, stand back, take your finger out of his eye, and call him mister", causing gasps from the public seated in the gallery.[61] The judge abruptly interrupted Leibowitz.[62]
While the pretrial motion to quash the indictment was denied, Leibowitz had positioned the case for appeal. The issue of composition of the jury was addressed in a second landmark decision by the U.S. Supreme Court, which ruled that race could not be used to exclude anyone from candidacy for participation on a jury anywhere in the United States. This astonished (and infuriated) many residents of Alabama and many other Southern states.
See also: Patterson v. Alabama
Judge Horton called the first case against Haywood Patterson and began jury selection. Leibowitz objected that African-American jurors had been excluded from the jury pool. He called the jury commissioner to the stand, asking if there were any blacks on the juror rolls, and when told yes, suggested his answer was not honest.[59] The locals resented his questioning of the official and "chewed their tobacco meditatively."[63] The National Guard posted five men with fixed bayonets in front of Leibowitz's residence that night.[63] The jury was selected by the end of the day on Friday and sequestered in the Lyons Hotel.[63]
A large crowd gathered outside the court house for the start of the Patterson trial on Monday, April 2. Without the "vivid detail" she had used in the Scottsboro trials, Victoria Price told her account in 16 minutes.[64] The defense had what she had said before under oath on paper, and could confront her with any inconsistencies. The only drama came when Knight pulled a torn pair of step-ins from his brief case and tossed them into the lap of a juror to support the claim of rape.[64]
Leibowitz used a 32-foot model train set up on a table in front of the witness stand to illustrate where each of the parties was during the alleged events, and other points of his defense.[64] When asked if the model in front of her was like the train where she claimed she was raped, Price cracked, "It was bigger. Lots bigger. That is a toy."[64] Leibowitz later conceded that Price was "one of the toughest witnesses he ever cross examined."[65] Her answers were evasive and derisive. She often replied, "I can't remember" or "I won't say." Once when Leibowitz confronted her with a contradiction in her testimony, she exclaimed, sticking a finger in the direction of defendant Patterson, "One thing I will never forget is that one sitting right there raped me."[64] The attorney tried to question her about a conviction for fornication and adultery in Huntsville, but the court sustained a prosecution objection.[65]
Price insisted that she had spent the evening before the alleged rape at the home of a Mrs. Callie Brochie in Chattanooga. Leibowitz asked her whether she had spent the evening in a "hobo jungle" in Huntsville, Alabama, with a Lester Carter and Jack Tiller, but she denied it. Leibowitz said that Callie Brochie was a fictional character in a Saturday Evening Post short story and suggested that Price's stay with her had been equally fictional.[66]
Victoria Price responded on cross-examination at the trial: "You're a pretty good actor yourself, Mr. Leibowitz"
Price was not the first hardened witness [Leibowitz] had faced, and certainly not the most depraved. Nor was she the first witness who tried to stare him down and, failing that, who seemed as if she were about to leap out of her seat and strike him. She was not the first witness to be evasive, sarcastic and crude. She was, however, the first witness to use her bad memory, truculence, and total lack of refinement, and at times, even ignorance, to great advantage.[67]
Many of the whites in the court room likely resented Leibowitz as a Jew from New York hired by the Communists, and for his treatment of a southern white woman, even a low-class one, as a hostile witness.[67] Some wondered if there was any way he could leave Decatur alive. The National Guard Captain Joe Burelson promised Judge Horton that he would protect Leibowitz and the defendants "as long as we have a piece of ammunition or a man alive."[67] Once Captain Burelson learned that a group was on their way to "take care of Leibowitz", he raised the drawbridge across the Tennessee River, keeping them out of Decatur.[citation needed]
Judge Horton learned that the prisoners were in danger from locals. Once he sent out the jury and warned the courtroom, "I want it to be known that these prisoners are under the protection of this court. This court intends to protect these prisoners and any other persons engaged in this trial."[68] Threats of violence came from the North as well. One letter from Chicago read, "When those Boys are dead, within six months your state will lose 500 lives."[69]
Dr. R.R. Bridges testifying in Decatur
Leibowitz systematically dismantled each prosecution witness' story under cross-examination. He got Dr. Bridges to admit on cross-examination that "the best you can say about the whole case is that both of these women showed they had sexual intercourse."[70] Paint Rock ticket agent W. H. Hill testified to seeing the women and the black youths in the same car, but on cross-examination admitted to not seeing the women at all until they got off the train. Posse member Tom Rousseau claimed to have seen the women and youths get off the same car but under cross-examination admitted finding the defendants scattered in various cars at the front of the train. Lee Adams testified that he had seen the fight, but later saying that he was a quarter mile from the tracks. Ory Dobbins repeated that he'd seen the women try to jump off the train, but Leibowitz showed photos of the positions of the parties that proved Dobbins could not have seen everything he claimed. Dobbins insisted he had seen the girls wearing women's clothing, but other witnesses had testified they were in overalls.[71]
The prosecution withdrew the testimony of Dr. Marvin Lynch, the other examining doctor, as "repetitive." Many years later, Judge Horton said that Dr. Lynch confided that the women had not been raped and had laughed when he examined them. He said that if he testified for the defense, his practice in Jackson County would be over. Thinking Patterson would be acquitted, Judge Horton did not force Dr. Lynch to testify, but the judge had become convinced the defendants were innocent.[72]
Leibowitz began his defense by calling Chattanooga resident Dallas Ramsey, who testified that his home was next to the hobo jungle mentioned earlier. He said that he had seen both Price and Bates get on a train there with a white man on the morning of the alleged rape.[73]
Train fireman Percy Ricks testified that he saw the two women slipping along the side of the train right after it stopped in Paint Rock, as if they were trying to escape the posse. Leibowitz put on the testimony of Chattanooga gynecologist, Dr. Edward A. Reisman, who testified that after a woman had been raped by six men, it was impossible that she would have only a trace of semen, as was found in this case.[74]
Leibowitz next called Lester Carter, a white man who testified that he had had intercourse with Bates. Jack Tiller, another white, said he had had sex with Price, two days before the alleged rapes. He testified that he had been on the train on the morning of the arrests. He had heard Price ask Orville Gilley, a white youth, to confirm that she had been raped. However, Gilley had told her to "go to hell." Morgan County Solicitor Wade Wright cross-examined Carter. Wright tried to get Carter to admit that the Communist Party had bought his testimony, which Carter denied. But he said that the defense attorney Joseph Brodsky had paid his rent and bought him a new suit for the trial.[75]
Five of the original nine Scottsboro defendants testified that they had not seen Price or Bates until after the train stopped in Paint Rock. Willie Roberson testified that he was suffering from syphilis, with sores that prevented him from walking, and that he was in a car at the back of the train.[citation needed]
Olen Montgomery testified that he had been alone on a tank car the entire trip, and had not known about the fight or alleged rapes. Ozie Powell said that while he was not a participant, he had seen the fight with the white teenagers from his vantage point between a box car and a gondola car, where he had been hanging on. He said he saw the white teenagers jump off the train. Roberson, Montgomery, and Powell all denied they had known each other or the other defendants before that day. Andy Wright, Eugene Williams, and Haywood Patterson testified that they had previously known each other, but had not seen the women until the train stopped in Paint Rock. Knight questioned them extensively about instances in which their testimony supposedly differed from their testimony at their trial in Scottsboro. They did not contradict themselves in any meaningful way.[76]
Haywood Patterson testified on his own behalf that he had not seen the women before stopping in Paint Rock; he withstood a cross examination from Knight who "shouted, shook his finger at, and ran back and forth in front of the defendant."[77] At one point, Knight demanded, "You were tried at Scottsboro?" Patterson snapped, "I was framed at Scottsboro." Knight thundered, "Who told you to say that?" Patterson replied, "I told myself to say it."[77]
Just after the defense rested "with reservations", someone handed Leibowitz a note. The attorneys approached the bench for a hushed conversation, which was followed by a short recess. Leibowitz called one final witness. Thus far in the trial, Ruby Bates had been notably absent. She had disappeared from her home in Huntsville weeks before the new trial, and every sheriff in Alabama had been ordered to search for her, to no avail.[62] Now, two guardsmen with bayonets opened the courtroom doors, and Bates entered, "in stylish clothes, eyes downcast."[78]
Her dramatic and unexpected entrance drew stares from the residents of the courtroom. Victoria Price, brought out for Bates to identify, glared at her. Attorney General Knight warned Price to "keep your temper."[78] Bates proceeded to testify, and explained that no rape had occurred. She said none of the defendants had touched her or even spoken to her. When asked if she had been raped on March 25, 1931, Bates said, "No sir." When asked why she had initially said she had been raped, Bates replied, "I told it just like Victoria did because she said we might have to stay in jail if we did not frame up a story after crossing a state line with men." Bates explained that Price had said "she didn't care if all the Negroes in Alabama were put in jail." This recantation seemed to be a severe blow to the prosecution.[78]
Bates admitted having intercourse with Lester Carter in the Huntsville railway yards two days before making accusations. Finally, she testified she had been in New York City and had decided to return to Alabama to tell the truth, at the urging of Rev. Harry Emerson Fosdick of that city.[78]
Rev. Harry Emerson Fosdick
Ruby Bates testifying.
With his eye tuned to the southern jury, Knight cross-examined her. He noted her stylish dress and demanded where she had gotten her fine clothes. When she responded that the Communist Party had paid for her clothes, any credibility she had with the jury was destroyed. Judge Horton warned spectators to stop laughing at her testimony or he would eject them.[78][citation needed]
By the time Leibowitz closed, the prosecution had employed anti-semitic remarks to discredit him.[79] Wade Wright added to this, referring to Ruby's boyfriend Lester Carter as "Mr. Caterinsky" and called him "the prettiest Jew" he ever saw. He said, "Don't you know these defense witnesses are bought and paid for? May the Lord have mercy on the soul of Ruby Bates. Now the question in this case is this—Is justice in the case going to be bought and sold in Alabama with Jew money from New York?"[79]
Leibowitz objected and moved for a new trial. Judge Horton refused to grant a new trial, telling the jury to "put [the remarks] out of your minds."[80] One author describes Wright's closing argument as "the now-famous Jew-baiting summary to the jury."[81] He goes on to say that, "Until Wright spoke, many of the newspapermen felt that there was an outside chance for acquittal, at least a hung jury. But ... From then on the defense was helpless."[81]
In his closing, Leibowitz called Wright's argument an appeal to regional bigotry, claiming talk about Communists was just to "befuddle" the jury. He described himself as a patriot, a "Roosevelt Democrat", who had served the "Stars and Stripes" in World War I, "when there was no talk of Jew or Gentile, white or black."[82] As to Wright's reference to "Jew money", Leibowitz said that he was defending the Scottsboro Boys for nothing and was personally paying the expenses of his wife, who had accompanied him.[82]
"I'm interested", Leibowitz argued, "solely in seeing that that poor, moronic colored boy over there and his co-defendants in the other cases get a square shake of the dice, because I believe, before God, they are the victims of a dastardly frame up."[83] He called Price's testimony "a foul, contemptible, outrageous lie."[83] He ended with the Lord's Prayer and a challenge to either acquit or render the death sentence—nothing in between.[83]
Attorney General Knight delivered his rebuttal, roaring that if the jury found Haywood not guilty, they ought to "put a garland of roses around his neck, give him a supper, and send him to New York City." Considering the evidence, he continued, "there can be but one verdict—death in the electric chair for raping Victoria Price."[84]
The jury began deliberating Saturday afternoon and announced it had a verdict at ten the next morning, while many residents of Decatur were in church. The jury foreman, Eugene Bailey, handed the handwritten verdict to Judge Horton. The jury found the defendant guilty of rape, and sentenced Patterson to death in the electric chair.[85] Bailey had held out for eleven hours for life in prison, but in the end agreed to the death sentence.[85]
According to one account, juror Irwin Craig held out against imposition of the death penalty, because he thought that Patterson was innocent.[86]
Irwin "Red" Craig (died 1970) (nicknamed from the color of his hair) was the sole juror to refuse to impose the death penalty in the retrial of Haywood Patterson, one of the Scottsboro Boys, in what was then the small town of Decatur, Alabama. His son, Sonny, later recalled him as saying: "Those young men were innocent; everybody knew that but they were going to be punished for what they didn't do." The Ku Klux Klan staked a burning cross in his family yard.
He was called in to see the judge presiding over that retrial, James Horton, who exhorted him to change his vote to guilty. "If you don't, they will kill you, Red", said the judge. Craig protested: "I can't change my vote, judge." Horton replied: "Don't worry about that, I'll take care of it."[86]
The defense moved for a retrial and, believing the defendants innocent, Judge James Edwin Horton agreed to set aside the guilty verdict for Patterson. Horton ruled the rest of defendants could not get a fair trial at that time and indefinitely postponed the rest of the trials, knowing it would cost him his job when he ran for re-election.[87]
Judge Horton heard arguments on the motion for new trial in the Limestone County Court House in Athens, Alabama, where he read his decision to the astonished defense and a furious Knight:
These women are shown ... to have falsely accused two Negroes ... This tendency on the part of the women shows that they are predisposed to make false accusations ... The Court will not pursue the evidence any further.
Horton ordered a new trial— which would turn out to be the third for Patterson.
When Judge Horton announced his decision, Knight stated that he would retry Patterson. He said that he had found Orville "Carolina Slim" Gilley, the white teenager in the gondola car, and that Gilley would corroborate Price's story in full. At Knight's request, the court replaced Judge Horton with Judge William Washington Callahan, described as a racist. He later instructed the jury in the next round of trials that no white woman would voluntarily have sex with a black man.[88]
During the Decatur retrial, held from November 1933 to July 1937, Judge Callahan wanted to take the case off "the front pages of America's newspapers."[89] He banned photographers from the courthouse grounds and typewriters from his court room.[85] "There ain't going to be no more picture snappin' round here", he ordered. He also imposed a strict three-day time limit on each trial, running them into the evening.[90] He removed protection from the defense, convincing Governor Benjamin Meek Miller to keep the National Guard away.
The defense moved for another change of venue, submitting affidavits in which hundreds of residents stated their intense dislike for the defendants, to show there was "overwhelming prejudice" against them.[91] The prosecution countered with testimony that some of the quotes in the affidavits were untrue, and that six of the people quoted were dead.[92] The defense countered that they had received numerous death threats, and the judge replied that he and the prosecution had received more from the Communists. The motion was denied.[93]
Leibowitz led Commissioner Moody and Jackson County Circuit Clerk C.A. Wann through every page of the Jackson County jury roll to show that it contained no names of African-Americans. When, after several hours of reading names, Commissioner Moody finally claimed several names to be of African-Americans,[94] Leibowitz got handwriting samples from all present. One man admitted that the handwriting appeared to be his. Leibowitz called in a handwriting expert, who testified that names identified as African-American had been added later to the list, and signed by former Jury Commissioner Morgan.[95]
Judge Callahan did not rule that excluding people by race was constitutional, only that the defense had not proven that African-Americans had been deliberately excluded. By letting Leibowitz go on record on this issue, Judge Callahan provided grounds for the case to be appealed to the U.S. Supreme Court for a second time. It was the basis for the court's finding in Norris v. Alabama (1935), that an exclusion of African-American grand jurors had occurred, violating the due process clause of the Constitution.
Haywood Patterson's Decatur retrial began on November 27, 1933. Thirty-six potential jurors admitted having a "fixed opinion" in the case,[95] which caused Leibowitz to move for a change of venue. Callahan denied the motion.[93] Callahan excluded defense evidence that Horton had admitted, at one point exclaiming to Leibowitz, "Judge Horton can't help you [now]."[90] He routinely sustained prosecution objections but overruled defense objections.
Price testified again that a dozen armed negro men entered the gondola car. She said Patterson had fired a shot and ordered all whites but Gilley off the train.[96] She said the negros had ripped her clothes off and repeatedly raped her at knife point, and pointed out Patterson as one of the rapists.[97] She said they raped her and Bates, afterward saying they would take them north or throw them in the river.[95] She testified that she had fallen while getting out of the gondola car, passed out and came to seated in a store at Paint Rock. Leibowitz questioned her until Judge Callahan stopped court for the day at 6:30. When he resumed the next morning, he pointed out many contradictions among her various versions of the rape.
Judge Callahan repeatedly interrupted Leibowitz's cross-examination of Price, calling defense questions "arguing with the witness", "immaterial, "useless", "a waste of time" and even "illegal."[98] The many contradictions notwithstanding, Price steadfastly stuck to her testimony that Patterson had raped her.[99]
Orville Gilley's testimony at Patterson's Decatur retrial was a mild sensation.[97] He denied being a "bought witness", repeating his testimony about armed blacks ordering the white teenagers off the train.[96] He confirmed Price's rape account, adding that he stopped the rape by convincing the "negro" with the gun to make the rapists stop "before they killed that woman."[100] Leibowitz cross-examined him at length about contradictions between his account and Price's testimony, but he remained "unruffled."[100] Gilley testified to meeting Lester Carter and the women the evening before the alleged rapes, and getting them coffee and sandwiches. Callahan interrupted before Leibowitz could find out if Gilley went "somewhere with [the women]" that night.[101]
The prosecution called several white farmers who testified that they had seen the fight on the train and saw the girls "a-fixin' to get out", but they saw the defendants drag them back.[96][102]
Lester Carter took the stand for the defense. He had testified in the first Decatur trial that Price and Bates had had sex with him and Gilley in the hobo jungle in Chattanooga prior to the alleged rapes, which could account for the semen found in the women. But Judge Callahan would not let him repeat that testimony at the trial, stating that any such testimony was "immaterial."
Ruby Bates was apparently too sick to travel. She had had surgery in New York, and at one point Leibowitz requested that her deposition be taken as a dying declaration. While she was not dying, committed to his three-day time limit for the trial, Judge Callahan denied the request to arrange to take her deposition.[103] Although the defense needed her testimony, by the time a deposition arrived, the case had gone to the jury and they did not hear it at all.[104]
Haywood Patterson took the stand, admitting he had "cussed" at the white teenagers, but only because they cussed at him first. He denied seeing the white women before Paint Rock. On cross-examination Knight confronted him with previous testimony from his Scottsboro trial that he had not touched the women, but that he had seen the other five defendants rape them. Leibowitz objected, stating that the U.S. Supreme Court had ruled previous testimony illegal. Judge Callahan allowed it, although he would not allow testimony by Patterson stating that he had not seen the women before Paint Rock.[102] Patterson explained contradictions in his testimony: "We was scared and I don't know what I said. They told us if we didn't confess they'd kill us—give us to the mob outside."[105]
Patterson claimed the threats had been made by guards and militiamen while the defendants were in the Jackson County jail. He said threats were made even in the presence of the judge. Patterson pointed at H.G. Bailey, prosecutor in his Scottsboro trial, stating, "And Mr. Bailey over there—he said send all the niggers to the electric chair. There's too many niggers in the world anyway."[105]
Closing arguments were made November 29 through November 30, without stopping for Thanksgiving. Callahan limited each side to two hours of argument.[106]
Knight declared in his closing that the prosecution was not avenging what the defendants had done to Price. "What has been done to her cannot be undone. What you can do now is to make sure that it doesn't happen to some other woman." Leibowitz objected that the argument was "an appeal to passion and prejudice" and moved for a mistrial. Knight agreed that it was an appeal to passion, and Callahan overruled the motion. Knight continued, "We all have a passion, all men in this court room to protect the womanhood in Alabama."[107] For his summation, solicitor Wade Wright reviewed the testimony and warned the jury, "that this crime could have happened to any woman, even though she was riding in a parlor car, instead of box car."[102]
Solicitor H.G. Bailey reminded the jury that the law presumed Patterson innocent, even if what Gilley and Price had described was "as sordid as ever a human tongue has uttered." Finally he defended the women, "Instead of painting their faces ... they were brave enough to go to Chattanooga and look for honest work."[102] Bailey attacked the defense case.
They say this is a frame-up! They have been yelling frame-up ever since this case started! Who framed them? Did Ory Dobbins frame them? Did brother Hill frame them? We did a lot of awful things over there is Scottsboro, didn't we? My, my, my. And now they come over here and try to convince you that that sort of thing happened in your neighboring county.[108]
Judge Callahan charged the jury that Price and Bates could have been raped without force, just by withholding their consent. He instructed them, "Where the woman charged to have been raped is white, there is a strong presumption under the law that she will not and did not yield voluntarily to intercourse with the defendant, a Negro."[109] He instructed the jury that if Patterson was so much as present for the "purpose of aiding, encouraging, assisting or abetting" the rapes "in any way", he was as guilty as the person who committed the rapes.[109]
He told them that they did not need to find corroboration of Price's testimony. If they believed her, that was enough to convict. Judge Callahan said he was giving them two forms – one for conviction and one for acquittal, but he supplied the jury with only a form to convict. He supplied them with an acquittal form only after the prosecution, fearing reversible error, urged him do so.[110]
As Time described it, "Twenty-six hours later came a resounding thump on the brown wooden jury room door. The bailiff let the jurors out [from the Patterson trial]. The foreman unfisted a moist crumpled note, handed it to the clerk. A thin smile faded from Patterson's lips as the clerk read his third death sentence."[111]
In May 1934, despite having run unopposed in the previous election for the position, James Horton was soundly defeated when he ran for re-election as a circuit judge. The vote against him was especially heavy in Morgan County. In the same election, Thomas Knight was elected Lieutenant Governor of Alabama.[112]
Judge Callahan started jury selection for the trial of defendant Norris on November 30, 1933, Thanksgiving afternoon. At this trial, Victoria Price testified that two of her alleged assailants had pistols, that they threw off the white teenagers, that she tried to jump off but was grabbed, thrown onto the gravel in the gondola, one of them held her legs, and one held a knife on her, and one raped both her and Ruby Bates.[113] She claimed Norris raped her, along with five others.
Callahan would not allow Leibowitz to ask Price about any "crime of moral turpitude." Nor would he allow Leibowitz to ask why she went to Chattanooga, where she had spent the night there, or about Carter or Gilley. Neither would he allow questions as to whether she'd had sexual intercourse with Carter or Gilley. During more cross-examination, Price looked at Knight so often Leibowitz accused her of looking for signals. Judge Callahan cautioned Leibowitz he would not permit "such tactics" in his courtroom.[114]
Dr. Bridges was a state witness, and Leibowitz cross-examined him at length, trying to get him to agree that a rape would have produced more injuries than he found. Callahan sustained a prosecution objection, ruling "the question is not based on the evidence."[115]
Ruby Bates had given a deposition from her hospital bed in New York, which arrived in time to be read to the jury in the Norris trial. Judge Callahan sustained prosecution objections to large portions of it, most significantly the part where she said that she and Price both had sex voluntarily in Chattanooga the night before the alleged rapes.
Leibowitz read the rest of Bates' deposition, including her version of what happened on the train.[116] She said that there were white teenagers riding in the gondola car with them, that some black teenagers came into the car, that a fight broke out, that most of the white teenagers got off the train, and that the blacks "disappeared" until the posse stopped the train at Paint Rock. She testified that she, Price and Gilley were arrested, and that Price made the rape accusation, instructing her to go along with the story to stay out of jail. She reiterated that neither she nor Price had been raped.[117] Leibowitz chose to keep Norris off the stand.[116]
Closing arguments were on December 4, 1933. In his closing argument, Leibowitz called the prosecution's case "a contemptible frame-up by two bums."[118] He attempted to overcome local prejudice, saying "if you have a reasonable doubt, hold out. Stand your ground, show you are a man, a red-blooded he-man."[118] The prosecution's closing argument was shorter and less "barbed" than it had been in the Patterson case. It was addressed more to the evidence and less to the regional prejudice of the jury.[118]
Leibowitz made many objections to Judge Callahan's charge to the jury. The New York Times described Leibowitz as "pressing the judge almost as though he were a hostile witness."[119] New York City Mayor Fiorello H. La Guardia had dispatched two burly New York City police officers to protect Leibowitz. During the long jury deliberations, Judge Callahan also assigned two Morgan County deputies to guard him.
The jury began deliberation on December 5. After 14 hours of deliberation, the jury filed into the court room; they returned a guilty verdict and sentenced Norris to death. Norris took the news stoically.
Leibowitz's prompt appeal stayed the execution date, so Patterson and Norris were both returned to death row in Kilby Prison. The other defendants waited in the Jefferson County jail in Birmingham for the outcome of the appeals. Leibowitz was escorted to the train station under heavy guard, and he boarded a train back to New York.[120]
See also: Patterson v. Alabama
The case went to the United States Supreme Court for a second time as Norris v. Alabama. The court reversed the convictions for a second time on the basis that blacks had been excluded from the jury pool because of their race.[121]
Attorneys Samuel Leibowitz, Walter H. Pollak and Osmond Frankel argued the case from February 15 to 18, 1935. Leibowitz showed the justices that the names of African Americans had been added to the jury rolls. The Justices examined the items closely with a magnifying glass. Thomas Knight maintained that the jury process was color blind.
Because the case of Haywood Patterson had been dismissed due to the technical failure to appeal it on time, it presented different issues. Attorneys Osmond Frankel and Walter Pollak argued those.[122]
On April 1, 1935, the United States Supreme Court sent the cases back a second time for retrials in Alabama. Writing for the Court, Chief Justice Charles Evans Hughes observed the Equal Protection Clause of the United States Constitution clearly forbade the states from excluding citizens from juries due solely to their race.[123] He noted that the Court had inspected the jury rolls, chastising Judge Callahan and the Alabama Supreme Court for accepting assertions that black citizens had not been excluded. According to the U.S. Supreme Court, "something more" was needed. The Court concluded, "the motion to quash ... should have been granted."[5] The Court ruled that it would be a great injustice to execute Patterson when Norris would receive a new trial, reasoning that Alabama should have opportunity to reexamine Patterson's case as well.[124]
Alabama Governor Bibb Graves instructed every solicitor and judge in the state, "Whether we like the decisions or not ... We must put Negroes in jury boxes. Alabama is going to observe the supreme law of America."[125]
After the case was remanded, on May 1, 1935, Victoria Price swore new rape complaints against the defendants as the sole complaining witness. An African American, Creed Conyer, was selected as the first black person since Reconstruction to sit on an Alabama grand jury. Indictment could be made with a two-thirds vote, and the grand jury voted to indict the defendants. Thomas Knight, Jr. by now (May 1935) Lieutenant Governor, was appointed special prosecutor to the cases.[126]
Leibowitz recognized that he was viewed by Southerners as an outsider, and allowed the local attorney Charles Watts to be the lead attorney; he assisted from the sidelines. Judge Callahan arraigned all the defendants except the two juveniles in Decatur; they all pleaded not guilty.
Watts moved to have the case sent to the Federal Court as a civil rights case, which Callahan promptly denied. He set the retrials for January 20, 1936.[127]
By January 23, 1936 Haywood Patterson was convicted of rape and sentenced to 75 years—the first time in Alabama that a black man had not been sentenced to death in the rape of a white woman.[2] Patterson escaped from prison in 1948; he published The Scottsboro Boy in 1950. That year he was caught by the FBI in Michigan. The governor of the state refused to extradite Patterson to Alabama. He was later arrested for stabbing a man in a bar fight and convicted of manslaughter. Patterson died of cancer in prison in 1952, after serving one year of his second sentence.
On January 24, 1936, Ozie Powell was involved in injuring a deputy.
During May 1937, Thomas Knight died.
On July 15, 1937, Clarence Norris was convicted of rape and sexual assault and sentenced to death. Governor Bibb Graves of Alabama in 1938 commuted his death sentence to life in prison. He was paroled in 1946 and moved north, where he married and had children. In 1970 he began seeking a pardon, with the help of the NAACP and Alabama's attorney. In 1976 Governor George Wallace pardoned Norris, declaring him "not guilty." Norris' autobiography, The Last of the Scottsboro Boys, was published in 1979. Norris died on January 23, 1989, of Alzheimer's disease.
On July 22, 1937, Andrew Wright was convicted of rape and sentenced to 99 years. He was paroled, but returned to prison after violating parole. Finally released in 1950, he was paroled in New York State.
On July 24, 1937, Charlie Weems was convicted of rape and sentenced to 105 years in prison. He was paroled in 1943.
On July 24, 1937, Ozie Powell was brought into court and the new prosecutor, Thomas Lawson, announced that the state was dropping rape charges against Powell and that he was pleading guilty to assaulting a deputy. He was sentenced to 20 years. The state dropped the rape charges as part of this plea bargain.[7] Powell was released from prison in 1946.
On July 24, 1937, the state of Alabama dropped all charges against Willie Roberson, Olen Montgomery, Eugene Williams, and Roy Wright. The four had spent over six years in prison on death row, as "adults" despite their ages. Thomas Lawson announced that all charges were being dropped against the remaining four defendants: He said that after "careful consideration" every prosecutor was "convinced" that Roberson and Montgomery were "not guilty." Wright and Williams, regardless of their guilty or innocence, were 12 and 13 at the time and, in view of the jail time they had already served, justice required that they also be released.
After Alabama freed Roy Wright, the Scottsboro Defense Committee took him on a national lecture tour. He joined the United States Army. Later he married and joined the Merchant Marine. After Wright came back from a lengthy time at sea in 1959, he thought his wife had been unfaithful. He shot and killed her before turning the gun on himself and committing suicide.[128]
On July 26, 1937, Haywood Patterson was sent to Atmore State Prison Farm. The remaining "Scottsboro Boys" in custody, that of Norris, A Wright and Weems were at this time in Kilby Prison.
Governor Graves had planned to pardon the prisoners in 1938, but was angered by their hostility and refusal to admit their guilt. He refused the pardons but did commute Norris' death sentence to life in prison.
Ruby Bates toured for a short while as an ILD speaker. She said she was "sorry for all the trouble that I caused them", and claimed she did it because she was "frightened by the ruling class of Scottsboro." Later, she worked in a New York state spinning factory until 1938; that year she returned to Huntsville. Victoria Price worked in a Huntsville cotton mill until 1938, then moved to Flintville, Tennessee.
Scottsboro: A Tragedy of the American South (1969) by Dan T. Carter was widely thought to be authoritative, but it wrongly asserted that Price and Bates were dead. An NBC TV movie, Judge Horton and the Scottsboro Boys (1976), asserted that the defense had proven that Price and Bates were prostitutes; both sued NBC over their portrayals. Bates died in 1976 in Washington state, where she lived with her carpenter husband, and her case was not heard. Price's case was initially dismissed but she appealed. When the US Supreme Court agreed to hear the case in 1977, Price disregarded the advice of her lawyer and accepted a settlement from NBC. She used the money to buy a house. Price died in 1983, in Lincoln County, Tennessee.[129][130]
Most residents of Scottsboro have acknowledged the injustice that started in their community.[131] In January 2004, the town dedicated a historical marker in commemoration of the case at the Jackson County Court House.[132] According to a news story, "An 87-year-old black man who attended the ceremony recalled that the mob scene following the Boys' arrest was frightening and that death threats were leveled against the jailed suspects. Speaking of the decision to install the marker, he said, 'I think it will bring the races closer together, to understand each other better.'"[131]
Sheila Washington founded the Scottsboro Boys Museum and Cultural Center in 2010 in Scottsboro.[133] It is located in the former Joyce Chapel United Methodist Church, and is devoted to exploring the case and commemorating the search for justice for its victims.[134]
In early May 2013, the Alabama legislature cleared the path for posthumous pardons.[133] On November 21, 2013, the Alabama Board of Pardons and Paroles granted posthumous pardons to Weems, Wright and Patterson, the only Scottsboro Boys who had neither had their convictions overturned nor received a pardon.[135][136]
Governor Robert J. Bentley said to the press that day:
While we could not take back what happened to the Scottsboro Boys 80 years ago, we found a way to make it right moving forward. The pardons granted to the Scottsboro Boys today are long overdue. The legislation that led to today's pardons was the result of a bipartisan, cooperative effort. I appreciate the Pardons and Parole Board for continuing our progress today and officially granting these pardons. Today, the Scottsboro Boys have finally received justice.[137]
In 1936, Haywood Patterson was convicted of rape and sentenced to 75 years in prison. He escaped in 1949 and in 1950 was found in Michigan, but the governor refused to extradite him. In 1951 he was convicted of an assault and sentenced to prison, where he died of cancer in 1952.
In 1936, Ozie Powell was involved in an altercation with a guard and shot in the face, suffering permanent brain damage. In 1937 He pleaded guilty to assault, and the rape charges were dropped. He was paroled in 1946.
1937, Charlie Weems was convicted and sentenced to 105 years. He was paroled in 1943 after having been held in prison for a total of 12 years in some of Alabama's worst institutions.
1937, Andy Wright was convicted and sentenced to 99 years. He was paroled and returned to prison after violating parole. He was paroled in New York State in 1950.
1937, Clarence Norris was convicted of rape and was the only defendant sentenced to death. Governor Bibb Graves of Alabama in 1938 commuted his death sentence to life. Given parole in 1946, he "jumped" and went into hiding. In 1976 he was found in Brooklyn, New York. Governor George Wallace pardoned him that year, declaring him "not guilty". Norris published an autobiography, The Last of the Scottsboro Boys (1979). He died of Alzheimer's disease on January 23, 1989.
In 1937, the state dropped all charges for Willie Roberson, Olen Montgomery, Eugene Williams, and Roy Wright, who had already been in prison for six years.
Roy Wright had a career in the US Army and Merchant Marine. In 1959, believing his wife had been unfaithful during his tour, he shot and killed her, and shot himself, committing suicide.[128]
2013, the state of Alabama issues posthumous pardons for Patterson, Weems, and Andy Wright.
In this Ryan Walker editorial cartoon — published four days after the conclusion of the Scottsboro trial — a member of the Ku Klux Klan seizes a black baby from a cradle and charges him with rape. The jury instantly convicts the baby, and the judge instantly sentences him to death; the Klansman emphasizes that this has been a fair trial, and is preferable to a lynching.
African-American poet and playwright Langston Hughes wrote about the trials in his work Scottsboro Limited.
The novel To Kill a Mockingbird by Harper Lee is about growing up in the Deep South in the 1930s. An important plot element concerns the father, attorney Atticus Finch, defending a black man against a false accusation of rape. The trial in this novel is often characterized as based on the Scottsboro case. But Harper Lee said in 2005 that she had in mind something less sensational, although the Scottsboro case served "the same purpose" to display Southern prejudices.[138]
Ellen Feldman's Scottsboro: A Novel (2009) was shortlisted for the Orange Prize; it is a fictionalized account of the trial, told from the point of view of Ruby Bates and a fictional journalist, Alice Whittier.
Richard Wright's 1940 novel Native Son (New York: Harper, 1940) was influenced by the Scottsboro Boys case. There is a parallel between the court scene in Native Son in which Max calls the "hate and impatience" of "the mob congregated upon the streets beyond the window" (Wright 386) and the "mob who surrounded the Scottsboro jail with rope and kerosene" after the Scottsboro boys' initial conviction. (Maxwell 132)[139]
The American folk singer and songwriter Lead Belly commemorated the events in his song "The Scottsboro Boys".[140] In the song, he warns "colored" people to watch out if they go to Alabama, saying that "the man gonna get ya", and that the "Scottsboro boys [will] tell ya what it's all about."
Metal/Rap band Rage Against The Machine provides imagery of the Scottsboro Boys in their music video "No Shelter", along with imagery of the executions of Sacco and Vanzetti, two men who were also denied a fair trial in court and were executed by authorities.[141]
In 1976, NBC aired a TV movie called Judge Horton and the Scottsboro Boys, based on the case.
In 1998, Court TV produced a television documentary on the Scottsboro trials for its Greatest Trials of All Time series.[142]
Daniel Anker and Barak Goodman produced the story of the Scottsboro Boys in the 2001 documentary Scottsboro: An American Tragedy, which received an Oscar nomination.
Jean-Paul Sartre's 1946 play The Respectful Prostitute (La Putain respectueuse), in which a black man is wrongfully blamed for an incident on a train involving a white prostitute, is believed to have been based on the Scottsboro case.[144]
The Scottsboro Boys is a staged musical portrayal of the Scottsboro case. The show premiered Off Broadway in February 2010[145] and moved to Broadway's Lyceum Theatre in October 2010. The show received good reviews, but closed on December 12, 2010.[146][147] The musical opened in London's Young Vic Theatre in 2013 before moving to the Garrick Theatre in October 2014.
Direct from Death Row The Scottsboro Boys, a black ensemble vaudevillesque "play with music and masks" Mark Stein production, directed by Michael Menendian, and presented at Chicago's Raven Theatre during the 2015 and 2016 seasons.[148]
The Scottsboro Boys
INJUSTICE IN ALABAMA
By Jay Bellamy
With scant media coverage and little fanfare,
on November 22, 2013, a three-judge panel of the Alabama Board of Pardons and
Paroles posthumously pardoned Haywood Patterson,
Charlie Weems, and Andy Wright, three black men
wrongly convicted of raping and assaulting two white
women more than 82 years earlier.
Although long deceased, the three were the last of a larger group to
have their convictions cleared from the official record. Many believe
the Scottsboro Boys, as they would become known, were the catalyst
for the civil rights movement in the United States. This is their story.
The Scottsboro Boys case began on March 25, 1931, when nine young black men
and boys hopped aboard a Southern Railway train in search of work in Memphis,
Tennessee. The youngest were 13-year-olds Eugene Williams and Roy Wright. The
other seven were Charlie Weems, 19; Andy Wright (Roy’s brother), 19; Clarence
Norris, 19; Haywood Patterson, 18; Olen Montgomery, 17; Willie Roberson, 17;
and Ozie Powell, 16. Patterson, Williams, and the Wright brothers traveled together;
the others were Georgia natives unknown to each other.
As the train passed through northern Alabama, a fight broke out between the
young black men and a group of white youths. One of the white men, walking atop
a tank car, stepped on the hand of Patterson, who was hanging from the side. After
an exchange of angry words, the whites jumped off when the train slowed and began
pummeling Patterson and the others with gravel before jumping back on.
The fight began anew near Stevenson, Alabama, with the black youths prevailing
and throwing all but one of the white antagonists off the train. Meanwhile, several of
those forced to jump off had run back to the Stevenson depot and accused the black
youths of assaulting them. A posse of armed men met the train when it pulled into
the Paint Rock, Alabama, station. They quickly boarded the train, rounded up the
nine black youths, and took them off to the Scottsboro jail.
Opposite: The Scottsboro Boys were visited by Juanita E. Jackson of the NAACP (fourth from left) in
January 1937. Jackson campaigned for their release and helped them write letters. Above: Haywood Patterson, age 18, during his second trial in early April 1933 with New York attorney Samuel Leibowitz at
left.The Supreme Court found in late 1932 that all the defendants deserved new trials.
The Scottsboro Boys Prologue 27
Also on board were 21-year-old Victoria
Price and 17-year-old Ruby Bates. Bates was
a minor with a history of prostitution, and
Price had a questionable reputation, being
described by one former neighbor in a defense affidavit as a “common street prostitute of the lowest type.” Both worked at a
local cotton mill, where they could depend
on just a few days of work a month. It was
for this reason, Price claimed, that she and
Bates had gone to Chattanooga seeking new
employment.
Fearful of being charged with vagrancy
due to their failure to purchase a train ticket,
the two accused the prisoners of rape. Facing
charges of assaulting two white women, the
nine young black men would now have to
fight for their lives. Many whites of that
place and time harbored extremely negative feelings about black men consorting in
any way with white women and would have
been happy to see the youths lynched, saving
the state the expense of a trial. Several hundred men gathered at the police station but
were turned back when the National Guard
arrived to protect the prisoners.
When Price identified only six of the
young men as her attackers, the jail guard
replied: “It stands to reason that the others
had Miss Bates.” On March 30, an all-white
jury handed down indictments charging the
defendants with rape. Not only were the
prisoners denied the opportunity to contact
family, but they were given just one hour
to consult with an attorney. Trouble for the
“Scottsboro Boys” was only just beginning.
Prosecution’s Case Relies
On Questionable Testimony
After the defense agreed to divide the cases, the trial of Clarence Norris and Charlie
Weems began on April 6. Representing the
state was Circuit Solicitor H. G. Bailey,
and defending the prisoners were Milo C.
Moody, a local attorney who hadn’t tried
a case in years, and Stephen R. Roddy, a
real-estate attorney with no experience in
criminal law. Where the 69-year-old Moody
was frequently prone to forgetfulness,
Roddy often appeared incapacitated due to
heavy drinking.
The judge was Alfred E. Hawkins, who,
according to defendant Clarence Norris, was
“a low down bastard. He let it be known that
we were guilty and a trial was a waste of time
and money ‘for niggers.’”
The prosecution’s case against Norris and
Weems relied heavily on the testimony of
Victoria Price, who was often evasive in
her answers, pretended not to understand
the question, or flat-out lied. In trying to
cast doubt upon Price’s credibility, the defense asked her if she had ever engaged in
prostitution.
When she claimed not to know what
prostitution meant, she was asked, “Haven’t
you made it a practice to have intercourse
with other men?”
“No, sir, I absolutely haven’t,” she
answered.
Price also claimed that she and Bates had
arrived in Chattanooga on March 24 and
spent the evening at a boardinghouse. Price
went on to say that she and Bates were hiding in a gondola car on the train when the
fight broke out the following afternoon. She
testified that after the white youths were
thrown off, six of the defendants entered the
car and raped her at knifepoint.
The prosecutor, Bailey, then called on
Dr. R. R. Bridges to describe any injuries
Price might have sustained during the rape.
Surprisingly, he testified that he found only
a few small bruises and scratches and that
she was “not lacerated at all.” He further declared that there was no blood on either victim and that neither had seemed particularly
upset. When asked if either girl had been
raped, the best he could offer was that it was
“possible.” Dr. Marvin Lynch, who also examined Price and Bates, then testified that
he could find no evidence of any internal
violence coming from a rape.
Ruby Bates then took the witness stand,
but she was not as brash and confident as
Price. Price even made wisecracks at times
during her testimony—mostly directed at
defense attorney Roddy—that caused considerable laughter in the courtroom. Bates,
however, seemed shy and nervous. Up to
this point, she had spoken very little of the
alleged rape, but she now supported her
friend’s story. She was, however, unable to
identify any of her attackers.
When the defense called defendant
Charlie Weems to testify, he was very sure
of himself and conducted himself well on
the stand. He told how Haywood Patterson
had come to him and told him of the fight
with the white boys and how he had agreed
to help Patterson and his friends if the fight
were to continue. He further claimed that,
although he had been part of the fight, he
had raped no one and that he had seen no
women on the train. “There wasn’t a soul in
that car with me and Patterson except those
negroes and one white boy,” he testified.
Clarence Norris stunned all those in attendance when he announced during his
testimony that “every one of them [his codefendants] have something to do with
those girls after they put the white boys off
the train.” He claimed that a gang rape had
indeed taken place, but he was the only one
who did not participate. He said that Roy
Wright held a knife on the women while the
others took turns assaulting them.
Many believe the Scottsboro boys . . . were
the catalyst for the civil rights movement.
28 Prologue Spring 2014
Norris later explained his testimony: “We
was scared and I don’t know what I said.
They [the prison guards] told us if we didn’t
confess they’d kill us—give us to the mob
outside.” When Roddy offered to enter a
guilty plea in exchange for life sentences,
Bailey refused the deal.
Verdicts Come for Weems, Norris
As Patterson’s Trial Begins
The trial of Haywood Patterson had already begun when the Weems-Norris verdict was announced. Hearing that both
were found guilty, crowds gathered around
the courthouse to cheer. Roddy complained
that the cheers might bias the Patterson
jury, but his request for a mistrial was denied. It took only three hours for the jury
to convict Patterson, and a mere 15 days
after their arrests, five of the six remaining
defendants were also found guilty and sentenced to death.
The lone exception was 13-year-old Roy
Wright. His case ended in a hung jury when
he was found guilty but punishment could
not be agreed on. Although the prosecution
recommended a life sentence, 11 jurors held
out for the death penalty. When the remaining juror refused to vote likewise, the court
was forced to declare a mistrial.
A representative from the International
Labor Defense (ILD, the legal arm of the
Communist Party) who attended the proceedings recognized the potential the case
might provide in recruiting new members,
especially African Americans. Although the
Communist Party supposedly represented
the idea of racial equality for all, it was still
perceived as a white man’s organization.
The National Association for the
Advancement of Colored People (NAACP),
which first chose to stay out of the case
for fear that the accused might actually be
guilty, now recognized the likely innocence
of the Scottsboro nine. NAACP representatives went to Alabama to offer their services
to appeal the verdicts. The NAACP argued
Above: Witness Victoria Price testifying during the April 1933 trial of Haywood Patterson, one of nine men
accused of rape. She claimed that six of the defendants entered the railcar and raped her at knifepoint. Her
testimony was later discredited. Below: Dr. R. R. Bridges testified on April 3, 1933, with Judge James E. Horton
(leaning forward) presiding, that he found no blood on either Victoria Price or Ruby Bates, or that they sustained internal damage consistent with rape.
The Scottsboro Boys Prologue 29
Spring 2014
that “communist involvement in the case”
would prejudice a jury.
With support from the mothers of the
boys, the ILD convinced the nine young
men to choose them as their legal representatives. With July 10 set as the execution date, the ILD sprang into action and
managed to secure a stay of execution until
the cases could be reviewed by the Alabama
Supreme Court.
In March 1932 the Alabama Supreme
Court upheld all but one of the original
convictions. Eugene Williams was the lone
exception, and the court ruled that he never should have been tried as an adult. The
ILD lawyer, Joseph Brodsky, argued that
the remaining defendants had been unfairly
judged because there were no blacks on the
jury, but the court ruled that the state had
the right “to fix qualifications for jurors.”
When the ILD turned to the Supreme
Court of the United States for relief, the
Court announced in November that the
defendants had received inadequate counsel
and therefore would be granted new trials.
The second trial of Haywood Patterson
began on March 27, 1933, with Samuel
Leibowitz—a New York lawyer hired in part
for his amazing record of 77 acquittals and 1
hung jury in 78 murder trials—now appearing as lead defense counsel.
Accuser Changes Her Testimony
As Patterson Trial Moves Ahead
Victoria Price was called to the stand on
April 3. After a short examination by the
state, Leibowitz wasted no time going on
the attack. He brought up Price’s reputation before painting her as a liar by pointing out untruths in her previous testimony.
His next witness testified to having seen
Price engage in sexual activity two days before the alleged rape. Leibowitz suggested
that this might account for a small amount
of semen found during her examination.
Doctor Bridges was then called to the stand
to restate his previous testimony that there
Judge James Horton received numerous messages, some threatening, during the Patterson trial. An April 6,
1933, telegram from the District Committee International Labor Defense in Detroit urged a change of trial
venue to Birmingham.
was no blood found on either woman and
that neither Price or Bates sustained internal damage consistent with rape.
When Ory Dobbins, a farmer who
claimed to have seen the defendants pull
Price and Bates back on the train as they attempted to escape, was called to the witness
stand, Leibowitz quickly discredited him.
Knowing that both women were wearing
men’s overalls when they were taken from
the train, Leibowitz asked how it was that
Dobbins knew it was a woman the defendants had pulled back onboard. “She was
wearing women’s clothes,” he answered.
When Judge James Horton asked if it
could have been overalls they were wearing,
Dobbins was even more specific and said,
“No sir, a dress.”
To learn more about
The biggest surprise came when Ruby
Bates entered the courtroom. After disappearing from public view following the first
trial, some thought she might have been kidnapped or worse. Now testifying for the defense, she said that her conscience had gotten the better of her and that she was there
to tell the truth. There was no rape, she said,
and it was Price’s idea to accuse the defendants of the crime in order to keep from being arrested themselves.
Attorney General Thomas Knight, however, pounded away on cross-examination
until Bates admitted that the ILD had paid
for her clothes and her trip back to Alabama
(she had been in hiding in New York), suggesting that she was nothing more than a
paid witness for the defense. She either lied
• The treatment of African Americans in the post– Civil War South, go to www.archives.gov/publications/prologue/2008/fall/.
• How the Civil Rights Act of 1964 became law, go to www.archives.gov/publications/
prologue/2004/summer/.
• The beginnings of the A frican American migration from the South, go to www.archives.gov/publications/prologue/2008/summer/.
30 Prologue
The International Labor Defense (legal arm of the Communist Party) provided defense counsel for the Scottsboro Boys. Its Action Committee planned a march in Washington in early May 1933 and asked for a meeting
with the President to urge presidential intervention and adoption of a bill of rights for blacks.
during the first trial, Knight implied, or
she was lying now; therefore, her testimony
could not be believed.
In closing summation, the assistant
prosecutor asked the jury to “show them
that Alabama justice cannot be bought
and sold with Jew money from New York.”
Leibowitz angrily demanded a mistrial be
declared, but Judge Horton denied the motion. On April 9, 1933, the jury returned
with its verdict—Haywood Patterson was
guilty as charged. It was later learned that
it took only five minutes for the jury to
reach a decision. The defense immediately
filed a motion with Judge Horton for a
new trial.
While awaiting the judge’s decision, the
ILD planned a march on Washington,
D.C., in support of the Scottsboro Boys for
early May.
On May 8, 4,000 marchers converged on
Washington. Among them was Ruby Bates,
who marched alongside Janie Patterson,
Haywood Patterson’s mother. When the
marchers reached the White House, they
were disappointed by President Franklin
Roosevelt’s refusal to meet with them.
Instead, a petition signed by 145,000 people
calling for presidential intervention was
handed to the White House appointments
secretary.
A letter presented along with this petition
called for the President to use his “good office
to influence the granting of a desired change
of venue, to a largely populated center” and
further urged him to issue “a new declaration of civil, political and economic justice
and freedom, in the authentic voice of the
Chief Executive of the nation, aiming at the
future strict enforcement of the Thirteenth,
Fourteenth and Fifteenth Amendments to
the Federal Constitution, for the purpose of
safeguarding the life, liberty and prosperity,
and guaranteeing the pursuit of happiness of
twelve millions of black Americans.”
Judge Horton Risks His Career,
Orders New Trial for Patterson
At considerable risk to his professional career, Judge Horton, believing that Price was
lying about the rape, announced on June 22
that he was setting aside the verdict and ordering a new trial for Patterson.
In his decision he pointed out several
discrepancies between Price’s story and the
evidence presented. While Price claimed to
have been hit on the head with the butt end
of a gun during the supposed rape, the doctors found no sign of a head injury. She also
stated that the doctors had seen her bloodsoaked coat, but Judge Horton wondered
why neither had mentioned it during their
testimony. Price also testified that at the
time of the rape she was lying in a car full
of chert (crushed gravel), causing the sharp
jagged rock to dig into her back. However,
despite finding a few bruises in that location,
the doctors found no visible lacerations.
The judge also questioned why none of
the seven white boys were called to testify. In
conclusion, he wrote that history had proven
“that women of the character shown in this
case are prone for selfish reasons to make false
accusations both of rape and insult upon the
slightest provocation for ulterior motives.”
The Scottsboro Boys Prologue 31
The White House felt public pressure for fairness in the Scottsboro cases. In a December 1933 letter, 15-yearold Pearl Blumkin wrote that “seven mothers . . . will sit alone, mourning and brooding for their sons.” She
asked naively why they could not be tried in the north “where Negroes are considered as we are?”
noticeable, as he overruled nearly every defense objection and denied Leibowitz the
opportunity to question Price’s character
and credibility. It was his opinion—and he
openly shared it with the jury—that a white
woman would never consent to sex with a
black man. Haywood Patterson would later
say of Callahan: “He couldn’t get us to the
chair fast enough.”
Appearing for the prosecution was Orville
Gilley, the lone white man allowed to remain
He further declared that “this tendency on
the part of the women shows that they are
predisposed to make false accusations upon
any occasion whereby their selfish ends may
be gained.” Judge Horton failed to win reelection the following year.
Using his political connections, Attorney
General Knight managed to have Patterson’s
third trial, which began that November, transferred to the court of Judge William Callahan.
Callahan’s prejudice was immediately
on the train after the others were thrown off.
At Patterson’s retrial, and later at Norris’s, he
claimed that the attacks on Price and Bates
ended only when he begged the black youths
to stop before they killed the two women. To
the dismay of the defense, Ruby Bates had
moved to New York and refused to return
to Alabama after receiving letters suggesting
she should be lynched along with the defendants. When both Patterson and Norris
were found guilty, the remaining trials were
delayed until the appeals process for both
could be exhausted.
In 1934 the special assistant to the U.S.
attorney general reported to President
Roosevelt that he found the testimony of
both Gilley and Price to be filled with inconsistencies and that if the Scottsboro Boys
continued to face execution, it was his advice that the President intervene. Roosevelt
then met with incoming Alabama governor David Bibb Graves at Warm Springs,
Georgia, and asked him to do all he could
to “clear it up.” The governor promised to
look into the matter but later backed out of
a plan to pardon the prisoners when they refused to acknowledge any guilt.
White House Flooded with Mail;
FDR Refuses to Get Involved
Ruling that the paperwork in Patterson’s
trial had not been submitted in time, the
Alabama state Supreme Court refused to
review the case. Two ILD officials then
foolishly contacted Victoria Price and attempted to bribe her into changing her
story. After first agreeing to do so, she then
changed her mind and contacted the police. When ILD representatives arrived in
Alabama carrying $1,500 in cash for Price,
they were immediately arrested. Angered
by the actions of the ILD, Leibowitz and
Communist Party officials reached a compromise. He would represent Clarence
Norris, who still believed in him, while
ILD attorneys would speak for Haywood
Patterson.
32 Prologue Spring 2014
Correspondence began arriving at the
White House shortly after the arrests of the
Scottsboro Boys. One particularly poignant
letter was received from 15-year-old Pearl
Blumkin in December 1933. She wrote:
“Christmas is coming. It is a night of happiness and joy. Yet, in seven little homes sits
seven mothers who will sit alone, mourning
and brooding for their sons.” She then asks
somewhat naively: “Why can’t these boys be
given a fair trial in the Northern states where
Negroes are considered as we are?”
But by 1935 much of the public was
growing frustrated with Roosevelt for his
failure to intervene. Mr. Ernest Pierce wrote
the President, addressing him as “Franklin
Deflated Roosefelt,” saying:
All the way down the historical line
there have been so-called great men
who, viewed from the more acute
angle of greater distance, proved to
be DAMNED FOOLS. ARE YOU
AWAKE ENOUGH TO KNOW
THAT TOM MOONEY [convicted
of a San Francisco bombing in 1916]
and the SCOTTSBORO BOYS
ARE STILL SUFFERING THE
INJUSTICE OF OUR CRIMINAL
COURTS?
WHAT COULD BE MORE
CRIMINAL THAN YOUR FAILURE
TO ACT?
Even Andy and Roy Wright wrote to the
President, asking him to bring their case to a
conclusion, as they were the sole support for
their mother and sister.
Eleanor Roosevelt herself was not immune from the pressure. A Mrs. Davis of
Indianapolis appealed to the First Lady’s
motherly instincts, writing: “You as a
mother can easily understand just how the
mothers of those boys feel.” The New Deal
Girls Social Club in New York asked her to
“use your influence with the President in behalf of the Scottsboro Boys.”
Rev. Pearl Burnett of Flint, Michigan, inquired about the President’s refusal to meet
with a contingent who had come to the White
House. “I did not believe Pres. Roosevelt
would deliberately refuse to see anyone,”
Burnett wrote, adding “these boys have been
punished enough by their three years of incarceration.” Despite public sentiment that was
clearly on the side of the Scottsboro Boys,
Roosevelt chose to stay out of the fray, believing this was a state issue and not a federal one.
On April 1, 1935, the Supreme Court
decided Norris v. Alabama and Patterson v.
Alabama. Leibowitz had argued that the verdict in the Norris trial should be overturned
because the exclusion of black residents from
the jury rolls in Alabama prevented the defendant from receiving a fair trial from a jury
of his peers. For Patterson, the ILD’s Walter
Pollak contended that a mere technicality
about paperwork should not preclude the
defendant from receiving a new trial. The
Court agreed with both arguments and sent
the cases back to Alabama. In the Norris
decision they wrote that the defendant had
been denied his 14th Amendment right of
equal protection under the law, while in
Patterson’s case they simply saw the unfairness of allowing him to be executed while at
the same time granting Norris a new trial.
The fourth trial of Haywood Patterson
began on January 21, 1936, with the ILD,
the NAACP, the American Civil Liberties
Union, the League for Industrial Democracy,
and the Methodist Federation for Social
Services now working together on behalf of
the Scottsboro Boys.
With the ILD no longer in sole control of
the defense, Leibowitz had agreed to return.
However, because of harsh comments he
had made about Alabama, not to mention
his religion and his affiliation with the communists, the Jewish lawyer from New York
was now considered a liability. Leibowitz,
whose first concern was always his clients,
agreed to take on an advisory role and accepted Clarence Watts, a Southern attorney
with local ties to the community, as lead
counsel for the defense.
Life Takes Different Tur ns
For the Scottsboro Boys
From the witness stand, Patterson declared
that not only was he innocent of rape, but
he also claimed to have seen neither woman
on the train that day. During cross-examination, prosecutor Melvin C. Hudson, the
local solicitor, simply mocked Patterson’s answers and treated him with utter contempt
throughout the questioning. Hudson then
called Obie Golden, a guard at Kilby prison,
to testify to a supposed confession Patterson
had made two years earlier. When asked on
cross-examination why he never told anyone
of this in the past, Golden was unprepared
and had no answer.
In summation, Hudson made an impassioned plea for the jury to protect the “womanhood of Alabama.” If Patterson were allowed to go free, he told them, women
would “have to buckle six-shooters to their
middles.” Watts then took his turn for the
defense and asked the jury to consider the
evidence carefully and to administer fair justice for the defendant.
When the jury returned with a guilty verdict, Patterson was given a sentence of 75
years rather than the death penalty the prosecution had hoped for. For the first time in
state history, a black man had escaped the
death penalty after being convicted of raping
a white woman.
[The Supreme Court] wrote that the defendant had been denied his 14th Amendment
right of equal protection under the law.
Prologue 33
The Scottsboro Boys
Spring 2014
Clarence Norris’s trial began nearly a year
and a half later, and for the first time Judge
Callahan allowed the defense to call witnesses to testify to Victoria Price’s character.
Despite two deputy sheriffs from Huntsville,
Alabama, telling the jury that they “would
not believe her under oath,” and Doctor
Bridges’s earlier testimony (he had died the
previous March) regarding the lack of any
serious injury found on Price, the jury returned with a guilty verdict and once again
sentenced Norris to death. This proved too
much for Watts to handle, and he fell ill.
Leibowitz was once again left to represent
the remaining defendants.
The next two trials ended with Andy Wright
receiving a 99-year sentence and Charlie
Weems getting 75 years. Ozie Powell, who
was seriously wounded after being shot in the
head while attempting to escape the previous
year, was next brought into the courtroom. It
was then announced that rape charges against
Powell were being dropped and that he would
instead plead guilty to assaulting a police deputy during his escape attempt. State Attorney
General Thomas Lawson then shocked everyone in the courtroom when he announced
that all charges against Olen Montgomery,
Willie Roberson, Eugene Williams, and Roy
Wright were being dropped as well.
In 1943 Charlie Weems was paroled, followed by both Clarence Norris and Andy
Wright in 1944. Norris, however, was returned to jail after violating the conditions
of his parole by leaving the state without
permission. Two years later, he was again paroled and once again fled.
In 1973, after spending a number of
years in New York, Norris contacted the
Alabama governor’s office to see if he was
still wanted for his last skip. When told that
he was, Norris enlisted the NAACP to help
him obtain a pardon. In October of 1976,
after a media blitz and public relations campaign launched by the NAACP, the state of
Alabama granted Norris his pardon. Ozie
Powell, who was never the same after being
shot in the head, was released in 1946.
Andy Wright, like Norris, violated his
parole by leaving Montgomery, Alabama,
without permission. He was captured the
following year and paroled for good in 1950.
In 1951 he was accused of raping a 13-yearold girl (the daughter of a girlfriend) in New
York but was acquitted by an all-white jury.
Roy Wright, the youngest of the Scottsboro
Boys, joined the military after his release
from prison and served until 1959.
Upon returning home, believing his wife
had been unfaithful to him, Wright took
both of their lives in a murder-suicide.
Although they each suffered from various
problems on the outside, Willie Roberson,
Eugene Williams, Olen Montgomery, Ozie
Powell, and Charlie Weems eventually settled into everyday society and started new
lives for themselves.
Life behind bars was not an easy one for
Haywood Patterson. Not especially liked by
any of his co-defendants, he found this to be
the case as well with many of the prisoners
and guards at Atmore prison near Mobile,
Alabama. In fact, one guard had paid another prisoner to kill Patterson, but he miraculously survived despite being stabbed 20
times. Because of this and other abuses suffered at the hands of prison guards, he twice
attempted to escape, the second attempt being a successful one.
On July 17, 1947, Patterson was working
on a prison farm when he and several other
inmates simply ran off from their assigned duties. After swimming through snake-infested
creeks and evading pursuing dogs, Haywood
reached Atlanta, Georgia, before eventually
arriving at his sister’s home in Detroit. He was
arrested there in 1950 after killing a man in
a barroom brawl. Two years later, Haywood
Patterson died in prison at age 39.
•
As scholar David Pitts has remarked, the
Scottsboro case resulted in a “more widereaching interpretation of the Fourteenth
Amendment guarantee of ‘equal protection
under the law.’”
Whereas in most cases whites could feel
confident about the protection of their 14th
Amendment right guaranteeing them a fair
trial, blacks, especially those in the South
and of lower financial and economic status,
could not always feel as secure. As stated earlier, the Alabama Supreme Court had ruled
that the state had the right to “fix qualifications for jurors,” preventing the defendants
from being judged by a jury of their peers.
The Scottsboro Boys deserved the
same protection under the law that the
Constitution grants to all Americans. They
didn’t always get it. P
Note on Sources
My special thanks go to Christina Jones and
Tab Lewis at the National Archives at College
Park, Maryland, and Kirsten Carter at the
Franklin Roosevelt Presidential Library and
Museum in Hyde Park, New York, for their help
in locating documents related to the Scottsboro
case. Thanks also go to Karen Needles for bringing the Scottsboro Boys case to my attention.
Letters to President Roosevelt are in the
Straight Numerical File 158260-46 section
1-13, General Records of the Department of
Justice, Record Group 60. Records regarding
the Scottsboro march on Washington are from
File 104-32—Scottsboro Demonstrations
May 8, 1933, Central Classified Files, 1937–
1950, Records of the U.S. Secret Service,
Record Group 87.
Two books were helpful in writing this article:
The Scottsboro Boys by James Haskins published
by Henry Holt and Company, Inc. 1994, and
“The Scottsboro Boys and Fundamental Rights”
by David Pitts, published in Issues of Democracy
(July 2001). The quotation from Clarence
Norris about Judge Hawkins is from “The 1930s
in America: Facing Depression” published by
the Center for Gifted Education at the College
of William and Mary, published in 2003.
Author
This account of the Scottsboro case, appearing in two parts and concluding in the spring issue
of the Cornell Law Forum, was derived from a summer
2001 Cornell Adult University class on great American
trials that the author co-taught with Glenn C. Altschuler,
the Thomas and Dorothy Litwin Professor of American
Studies at Cornell.1
“No crime in American history – let alone a crime
that never occurred—produced as many trials,
convictions, reversals, and retrials as did the alleged
gang rape of two white girls by nine black teenagers
on the Southern Railroad freight run from Chattanooga to Memphis on March 25, 1931. Over the
course of the next two decades, the
struggle for justice of the ‘Scottsboro
Boys,’ as the black teens were called,
made celebrities out of anonymous
people, launched and ended careers,
wasted lives and produced heroes,
opened southern juries to blacks, exacerbated sectional strife and divided
America’s political left.”2
In the course of their struggle against prejudice
and an unresponsive court system, the Scottsboro
Boys, together or separately, endured 16 trials, two
United States Court reversals, as many as four
series of death sentences, and prison terms ranging
from 6 to nearly 17 years. Although the State of
Alabama, try as it might, was unable to execute the
Scottsboro youths, their lives were left in shambles.
The Setting
The setting for this saga is Alabama in 1931. To
understand what happened, we need to be reminded of the contextual background, and particularly of three major aspects of life in the Deep
South.
First, during the Depression, economic hard
times were prevalent everywhere but were particularly bad in Tennessee, Alabama, and many of the
southern rural areas. There was a substantial
underclass of unemployed persons, whites and
blacks both, who often lived together in so-called
hobo jungles or shacks in sections of larger southern cities. In this surprisingly integrated society the
common elements were poverty and joblessness.
Women mill workers who became unemployed
Above: Fearing a mob lynching, Alabama Governor
B. M. Miller called in the National Guard to protect
the accused: Clarence Norris, Olen Montgomery,
Andy Wright, Willie Roberson, Ozzie Powell, Eugene
Williams, Charlie Weems, Roy Wright, and Haywood
Patterson
The Scottsboro Boys endured 16 trials, two United States
Court reversals, as many as four series of death sentences,
and prison terms ranging from 6 to nearly 17 years.
2 Cornell Law Forum
often resorted to prostitution in order to earn
enough to survive. The two white women, the
alleged rape victims, came from this milieu. In the
constant search for jobs, a preferred method of
transportation was to hop a freight train. Hoboing,
“riding the rails,” was a way of life for many.
Second, there was the extreme racism that prevailed in southern society—a ruthless oppression of
black people. Most white citizens of the south were
not cruel in their daily lives but they
expected blacks to keep their place.
They believed that black people were
inferior. There was often a suspicion
that young black males, if not controlled, would always be prone to rape a
white woman. Even a well-educated,
moderate Southerner of this period who would
oppose lynchings and violence would doubtlessly
support segregation, and would see nothing wrong
in the fact that blacks could not vote or serve on
juries. Such a person would certainly resent northern troublemakers who would try to meddle by
criticizing southern customs.
Third, on a national level, the law was largely
unresponsive to the plight of black people. In
1868, the Federal Constitution was amended to
provide that no state shall deprive any person of
life, liberty, or property without due process of
law, nor deny to any person the equal protection
of the laws. These Constitutional guarantees, articulated in the 14th Amendment, meant that the
national government pledged to enforce legal
equality between blacks and whites. After Reconstruction, however, the federal government and the
courts—including the United States Supreme
Court—failed to breathe life into these legal rules.
The words were there, the promise was there, but
the reality was ignored. Yes, black people were
now entitled to vote, but somehow they didn’t.
Yes, black people were now entitled to sit on
juries, but somehow they didn’t. In the absence
of specific evidence of actual state discrimination,
little was done. And specific evidence usually
meant an admission by state officials that they
were intentionally discriminating. Our nation
declined to enforce the 14th Amendment on behalf
of black people. There was a reluctance in the
federal government to meddle with state procedures when it came to civil rights issues. It reflected the tendency of the rest of the nation to let
Southerners handle the race question as they
pleased.3
In addition, another aspect of the law was undeveloped. The protections afforded to criminal
defendants, white or black, were not clearly defined. The 14th Amendment imposes limitations
on the states but these limitations are phrased in
the somewhat vague and general words “due process” and “equal protection.” On the other hand,
The protections afforded to criminal defendants, white or
black, were not clearly defined.
The Scottsboro defendants leaving jail in Decatur,
Alabama
Winter 2002 3
the Bill of Rights—the first 10
amendments, enacted in 1791 when
our Constitution was originally
adopted—are more specific. The Sixth
Amendment, for example, speaks of the
right to the assistance of counsel in a
criminal case, the right to confront witnesses, and
the right to trial by jury. But the Bill of Rights was
framed to limit federal power, not state power.
Thus, the question was whether these specific protections, like the right to counsel and the right to a
jury trial, were included in the 14th Amendment
phrase, “due process,” or in the meaning of “equal
protection.” In 1931, the answer was not clear. In
many instances, the United States Supreme Court
had not yet decided which portions of the specific
guarantees in the Bill of Rights were incorporated
into 14th Amendment due process. It was unclear,
in other words, which of the specific limitations on
the federal government and on federal courts were
also limitations on state governments and on state
courts.4
The Tragedy Begins
The Scottsboro tragedy began on March 25, 1931.
A Southern Railroad freight train left Chattanooga,
Tennessee, on its way to Memphis. Scattered
among the cars were some two dozen people—
some white, some black. The train followed the
course of the Tennessee River. It traveled west,
then dipped south into rural northern Alabama,
where its path would take it through places like
Stevenson, Paint Rock, and Huntsville until it ran
north again to Memphis.
Shortly after the slow-moving train crossed the
Alabama border, a white youth walked across the
top of a railroad car and stepped on the hand of an
18-year-old black man named Haywood Patterson.
A fight broke out between the whites and blacks.
The larger group of blacks got the better of it and
forced all the whites except one off the train. The
whites who were ejected from the train complained
at a nearby depot that they had been assaulted by a
gang of blacks. The stationmaster telegraphed
ahead to the Paint Rock station. Word reached the
county sheriff, who deputized every man in Paint
Rock who had a gun and lined them up along the
tracks at the depot. This posse was ordered to arrest
every black person on the train when it stopped at
Paint Rock.
The train arrived and was searched. The posse
found nine black males ranging in age from 12 to
20 years old. Only four of the nine had known
each other before they were arrested. Then came a
surprise. Two young white women, with men’s
caps on their heads and dressed in men’s overalls,
were also found on the train. They were unemployed mill workers named Victoria Price and
Ruby Bates. They had gone to Chattanooga, they
said, in search of work; having found none, they
were now returning home to Huntsville.
As the deputies were tying the blacks together,
one of the girls told a deputy that she and the other
woman had been raped by the nine of them. Everyone was transported to Scottsboro, the county seat.
In the jail, the older of the two girls, Victoria Price,
identified six of the nine blacks as her assailants.
The guard concluded that “if those six had Miss
Price, it stands to reason the others had Miss
Bates.” One of the accused, Clarence Norris, protested and called Vickie Price a liar. The guard hit
him with a rifle butt. The women were promptly
sent downtown to be examined by two local physicians.
Farmers from the nearby hills began gathering.
By dusk, a crowd of several hundred had assembled. They surrounded the dilapidated twostory jail. There were shouts of “Give them to us,”
and “If you don’t, we’ll come in and get them!”
The sheriff called the governor in Montgomery and
the governor ordered the National Guard to
Scottsboro. There would be no lynching tonight.
The idea that a capital case could be tried less than two
weeks after the crime seems incredible even by the
prevailing standards of 1931.
4 Cornell Law Forum
The First Trials
Now events moved rapidly. Under the
threat of mob violence, with the National Guard’s constant presence and
manned machine guns on the courthouse steps deterring hostile crowds of
thousands, the nine blacks were hustled to trial just
12 days after their arrest. The idea that a capital
case could be tried less than two weeks after the
crime seems incredible even by the prevailing standards of 1931.
Of the nine defendants, one was 12 years old
and away from home for the first time. Another
was 13. A third was practically blind. Another was
suffering from a venereal disease so acute that any
act of intercourse would have been extremely painful; to walk, this man needed a cane. All the blacks
were illiterate, far from their homes, and without
access to their families. They were not asked
whether they had or could get a lawyer. They were
not asked whether they had relatives who could be
called and who might be able to hire a lawyer for
them. They were not told that a lawyer could be
appointed to defend them.
Just before the proceedings began, the judge
asked simply if the case was ready for trial. Yes,
said the prosecutor. No one answered for the defendants. A Tennessee real estate lawyer, not a
member of the Alabama bar and unfamiliar with
Alabama law, stood up and said he was not representing the defendants but was willing to advise
them. An elderly local lawyer who had not tried a
case in many years agreed to advise the Tennessee
lawyer. It was never clear whether either of these
“advisors,” or anyone else, represented the accused.
The Tennessee lawyer did participate on behalf of
the Scottsboro defendants—in a manner of speaking. He was allowed 25 minutes to confer with his
clients. No time was provided for a reasonable
investigation of the alleged crime or of the backgrounds of the alleged victims. There was no time
to find witnesses. So the trials began.
The defendants were tried in four groups.
Clarence Norris and Charlie Weems were tried
first, because they were the oldest. Next came
Haywood Patterson, the one whose hand had been
stepped on. The third trial involved a group of five
defendants: Ozzie Powell, Willie Roberson, Andy
Wright, Eugene Williams, and Olen Montgomery.
The fourth and final trial was that of Roy Wright,
the 12-year-old.
Before each of the four juries, the key prosecution testimony was that of the alleged victims,
Victoria Price and Ruby Bates, and the local doctors, Bridges and Lynch. Both doctors testified to
having found semen in the vaginas of the two
Haywood Patterson
The prosecutor did not ask for the death penalty—only life
imprisonment. That act of mercy disappointed the jury, a
majority of which held out for the death penalty.
Winter 2002 5
women. The adviser, or “lawyer,” for the accused
did not question the medical testimony, did not
make much of an opening statement, and, incredibly, saw no purpose in giving a summation. Worse
still, because the adviser did not have the opportunity to speak to his clients at length, he could not
prepare them to testify. He called them to the
stand nonetheless, so they could say whatever they
wanted. As you might expect, some of the nine
said, in effect, “Not me and not my two or three
friends, but, yes, these other defendants, they are
the ones who did it.” No single lawyer can represent multiple clients if the latter blame each other
for the crime charged. It would constitute a gross
conflict of interest. But these “technicalities” went
unnoticed or were ignored. In short, the defense,
insofar as it existed at all, was a disaster.
These rapid-fire trials were over in three days.
Most took five hours or less. The jury
deliberations for most of the trials
averaged about 30 minutes. The verdict for eight of the nine was “guilty of
rape” and the penalty in each case was
death. The exception was the trial of
Roy Wright, the 12-year-old. Here the
jury could not agree and the result was
a hung jury. Why couldn’t the jury agree? Well,
because Mr. Wright was only 12, the prosecutor
did not ask for the death penalty—only life imprisonment. That act of mercy disappointed the jury, a
majority of which held out for the death penalty.
As a result, they could not render the required
unanimous verdict.
From the time of arrest to the time of the death
sentences only two weeks had passed.
Saviors
The Scottsboro Boys did not die in the electric
chair. Not then, and not later. Who saved them? In
this tragedy there were heroes—individuals or
groups whose skill or courage or commitment
saved the lives of these young victims.
In chronological order of appearance, the first of
these saviors was the American Communist Party
(ACP). The initial media response to the convictions was limited to a few brief stories in several
newspapers. There was no national media presence
at the trial. Soon after the convictions, the ACP
became involved. They knew a good issue when
they saw it. The convictions, the ACP argued, were
a dramatic example of capitalistic repression of the
poor. Obviously, their motive in helping the
Scottsboro Boys was propaganda. But were their
motives important? When you are powerless and
facing death, when no one else is aiding your cause,
you take what help you can get. The ACP had the
means and the network to mobilize mass protests
that brought the case national and international
attention. Within days, demonstrations throughout
the United States, as well as in Germany, Spain,
and Moscow, raised a storm of protest. Moreover,
the communists had a well-established legal defense
team; the International Labor Defense and its chief
lawyer, Joseph Brodsky, were experienced and
dedicated. The Scottsboro Boys now had support
and competent legal representation.
The next savior to enter the picture was the
United States Supreme Court. After the convictions were affirmed in the Alabama courts, they
were appealed to the United States Supreme Court.
In the landmark decision of Powell v. Alabama,5
the
Court reversed the Scottsboro convictions. This
decision appears in all the constitutional law and
criminal procedure casebooks. Let me explain why.
There was no question that the Justices regarded
the legal representation of the Scottsboro Boys
inadequate. It was never clear whether the TennesThe convictions, the American Communist Party argued,
were a dramatic example of capitalistic repression
of the poor.
6 Cornell Law Forum
see lawyer was really representing the defendants.
He seemed tentative, probably because of the mob
atmosphere. He had no time to prepare. Counsel
was never formerly appointed by the court. The
unfairness was obvious. But the Supreme Court
needed a legal basis on which to reverse. The specific Sixth Amendment right to counsel would do
nicely except, as I’ve mentioned, the Sixth Amendment operated only against the federal government,
not against the states. The 14th Amendment’s “due
process” clause does apply to the states but what
does “due process” entail? There was no precedent
that said the right to counsel applies to the states
through the operation of 14th Amendment due
process—no precedent, that is, until Powell v.
Alabama created it in 1932.
This decision is a legal landmark because it
extended and clarified the meaning of due process.
It is a seminal right-to-counsel decision—seminal
because it is the basis of the decisions that followed.
In Powell, the Court said two things. First, it read
the right to counsel into the due process clause.
Therefore, this guarantee would now apply to all
state trials. Second, it applied that principle to the
Scottsboro trial and found that due process was
lacking. That insufficiency saved the Scottsboro
Boys from being executed—at least for now.
To understand the long-term significance of this
decision, we have to appreciate that the actual
holding was a narrow one. What the Court said
was that 14th Amendment due process requires the
effective right to counsel in this case because in this
case the defendants were all young, uneducated,
and illiterate. A mob atmosphere surrounded the
trial and this was a capital case. The Court left
open a host of questions that would be answered
later. Does the right to counsel apply to all capital
cases—even if the defendants are mature and educated, and there are no mobs? Yes, said the Court
in a later decision. Does the right to counsel apply
to non-capital, serious felony cases? Yes, said the
Court some years later. Does the right to counsel
apply to all felonies, whether serious or not? Yes,
said the Court in another decision. When in the
trial process does the right to counsel attach—only
at the time of trial? No—earlier; at least at the
time of indictment, answered the Court. Why not
even earlier than that, such as at the time of initial
arraignment? Good point, said the Court, and it so
held. Why not still earlier? The Court ultimately
agreed, and held that the right to counsel attaches
at the time of custodial interrogation. If the police
arrest a suspect and the suspect asks for a lawyer, at
that point all interrogation of the suspect must
stop. But how will the suspect know he has this
right to counsel? Ultimately, the Court held in
Miranda v. Arizona6 that if the police take a suspect into custody, they must advise him that he
has the right to a lawyer and that if he cannot
afford one, a lawyer will be appointed for him.
Thus, over the course of 35 years, in decision after
decision, the Supreme Court expanded the right to
counsel in state as well as federal trials. Where did
all this begin? It began with Powell v. Alabama.
This is not the end of the story. Now the nine
Scottsboro defendants must return to the Alabama
courts to be tried again. And back in Alabama, not
much has changed.
This account of the Scottsboro case, appearing in two parts and concluding in the spring issue
of the Cornell Law Forum, was derived from a summer
2001 Cornell Adult University class on great American
trials that the author co-taught with Glenn C. Altschuler,
the Thomas and Dorothy Litwin Professor of American
Studies at Cornell.1
“No crime in American history – let alone a crime
that never occurred—produced as many trials,
convictions, reversals, and retrials as did the alleged
gang rape of two white girls by nine black teenagers
on the Southern Railroad freight run from Chattanooga to Memphis on March 25, 1931. Over the
course of the next two decades, the
struggle for justice of the ‘Scottsboro
Boys,’ as the black teens were called,
made celebrities out of anonymous
people, launched and ended careers,
wasted lives and produced heroes,
opened southern juries to blacks, exacerbated sectional strife and divided
America’s political left.”2
In the course of their struggle against prejudice
and an unresponsive court system, the Scottsboro
Boys, together or separately, endured 16 trials, two
United States Court reversals, as many as four
series of death sentences, and prison terms ranging
from 6 to nearly 17 years. Although the State of
Alabama, try as it might, was unable to execute the
Scottsboro youths, their lives were left in shambles.
The Setting
The setting for this saga is Alabama in 1931. To
understand what happened, we need to be reminded of the contextual background, and particularly of three major aspects of life in the Deep
South.
First, during the Depression, economic hard
times were prevalent everywhere but were particularly bad in Tennessee, Alabama, and many of the
southern rural areas. There was a substantial
underclass of unemployed persons, whites and
blacks both, who often lived together in so-called
hobo jungles or shacks in sections of larger southern cities. In this surprisingly integrated society the
common elements were poverty and joblessness.
Women mill workers who became unemployed
Above: Fearing a mob lynching, Alabama Governor
B. M. Miller called in the National Guard to protect
the accused: Clarence Norris, Olen Montgomery,
Andy Wright, Willie Roberson, Ozzie Powell, Eugene
Williams, Charlie Weems, Roy Wright, and Haywood
Patterson
The Scottsboro Boys endured 16 trials, two United States
Court reversals, as many as four series of death sentences,
and prison terms ranging from 6 to nearly 17 years.
2 Cornell Law Forum
often resorted to prostitution in order to earn
enough to survive. The two white women, the
alleged rape victims, came from this milieu. In the
constant search for jobs, a preferred method of
transportation was to hop a freight train. Hoboing,
“riding the rails,” was a way of life for many.
Second, there was the extreme racism that prevailed in southern society—a ruthless oppression of
black people. Most white citizens of the south were
not cruel in their daily lives but they
expected blacks to keep their place.
They believed that black people were
inferior. There was often a suspicion
that young black males, if not controlled, would always be prone to rape a
white woman. Even a well-educated,
moderate Southerner of this period who would
oppose lynchings and violence would doubtlessly
support segregation, and would see nothing wrong
in the fact that blacks could not vote or serve on
juries. Such a person would certainly resent northern troublemakers who would try to meddle by
criticizing southern customs.
Third, on a national level, the law was largely
unresponsive to the plight of black people. In
1868, the Federal Constitution was amended to
provide that no state shall deprive any person of
life, liberty, or property without due process of
law, nor deny to any person the equal protection
of the laws. These Constitutional guarantees, articulated in the 14th Amendment, meant that the
national government pledged to enforce legal
equality between blacks and whites. After Reconstruction, however, the federal government and the
courts—including the United States Supreme
Court—failed to breathe life into these legal rules.
The words were there, the promise was there, but
the reality was ignored. Yes, black people were
now entitled to vote, but somehow they didn’t.
Yes, black people were now entitled to sit on
juries, but somehow they didn’t. In the absence
of specific evidence of actual state discrimination,
little was done. And specific evidence usually
meant an admission by state officials that they
were intentionally discriminating. Our nation
declined to enforce the 14th Amendment on behalf
of black people. There was a reluctance in the
federal government to meddle with state procedures when it came to civil rights issues. It reflected the tendency of the rest of the nation to let
Southerners handle the race question as they
pleased.3
In addition, another aspect of the law was undeveloped. The protections afforded to criminal
defendants, white or black, were not clearly defined. The 14th Amendment imposes limitations
on the states but these limitations are phrased in
the somewhat vague and general words “due process” and “equal protection.” On the other hand,
The protections afforded to criminal defendants, white or
black, were not clearly defined.
The Scottsboro defendants leaving jail in Decatur,
Alabama
Winter 2002 3
the Bill of Rights—the first 10
amendments, enacted in 1791 when
our Constitution was originally
adopted—are more specific. The Sixth
Amendment, for example, speaks of the
right to the assistance of counsel in a
criminal case, the right to confront witnesses, and
the right to trial by jury. But the Bill of Rights was
framed to limit federal power, not state power.
Thus, the question was whether these specific protections, like the right to counsel and the right to a
jury trial, were included in the 14th Amendment
phrase, “due process,” or in the meaning of “equal
protection.” In 1931, the answer was not clear. In
many instances, the United States Supreme Court
had not yet decided which portions of the specific
guarantees in the Bill of Rights were incorporated
into 14th Amendment due process. It was unclear,
in other words, which of the specific limitations on
the federal government and on federal courts were
also limitations on state governments and on state
courts.4
The Tragedy Begins
The Scottsboro tragedy began on March 25, 1931.
A Southern Railroad freight train left Chattanooga,
Tennessee, on its way to Memphis. Scattered
among the cars were some two dozen people—
some white, some black. The train followed the
course of the Tennessee River. It traveled west,
then dipped south into rural northern Alabama,
where its path would take it through places like
Stevenson, Paint Rock, and Huntsville until it ran
north again to Memphis.
Shortly after the slow-moving train crossed the
Alabama border, a white youth walked across the
top of a railroad car and stepped on the hand of an
18-year-old black man named Haywood Patterson.
A fight broke out between the whites and blacks.
The larger group of blacks got the better of it and
forced all the whites except one off the train. The
whites who were ejected from the train complained
at a nearby depot that they had been assaulted by a
gang of blacks. The stationmaster telegraphed
ahead to the Paint Rock station. Word reached the
county sheriff, who deputized every man in Paint
Rock who had a gun and lined them up along the
tracks at the depot. This posse was ordered to arrest
every black person on the train when it stopped at
Paint Rock.
The train arrived and was searched. The posse
found nine black males ranging in age from 12 to
20 years old. Only four of the nine had known
each other before they were arrested. Then came a
surprise. Two young white women, with men’s
caps on their heads and dressed in men’s overalls,
were also found on the train. They were unemployed mill workers named Victoria Price and
Ruby Bates. They had gone to Chattanooga, they
said, in search of work; having found none, they
were now returning home to Huntsville.
As the deputies were tying the blacks together,
one of the girls told a deputy that she and the other
woman had been raped by the nine of them. Everyone was transported to Scottsboro, the county seat.
In the jail, the older of the two girls, Victoria Price,
identified six of the nine blacks as her assailants.
The guard concluded that “if those six had Miss
Price, it stands to reason the others had Miss
Bates.” One of the accused, Clarence Norris, protested and called Vickie Price a liar. The guard hit
him with a rifle butt. The women were promptly
sent downtown to be examined by two local physicians.
Farmers from the nearby hills began gathering.
By dusk, a crowd of several hundred had assembled. They surrounded the dilapidated twostory jail. There were shouts of “Give them to us,”
and “If you don’t, we’ll come in and get them!”
The sheriff called the governor in Montgomery and
the governor ordered the National Guard to
Scottsboro. There would be no lynching tonight.
The idea that a capital case could be tried less than two
weeks after the crime seems incredible even by the
prevailing standards of 1931.
4 Cornell Law Forum
The First Trials
Now events moved rapidly. Under the
threat of mob violence, with the National Guard’s constant presence and
manned machine guns on the courthouse steps deterring hostile crowds of
thousands, the nine blacks were hustled to trial just
12 days after their arrest. The idea that a capital
case could be tried less than two weeks after the
crime seems incredible even by the prevailing standards of 1931.
Of the nine defendants, one was 12 years old
and away from home for the first time. Another
was 13. A third was practically blind. Another was
suffering from a venereal disease so acute that any
act of intercourse would have been extremely painful; to walk, this man needed a cane. All the blacks
were illiterate, far from their homes, and without
access to their families. They were not asked
whether they had or could get a lawyer. They were
not asked whether they had relatives who could be
called and who might be able to hire a lawyer for
them. They were not told that a lawyer could be
appointed to defend them.
Just before the proceedings began, the judge
asked simply if the case was ready for trial. Yes,
said the prosecutor. No one answered for the defendants. A Tennessee real estate lawyer, not a
member of the Alabama bar and unfamiliar with
Alabama law, stood up and said he was not representing the defendants but was willing to advise
them. An elderly local lawyer who had not tried a
case in many years agreed to advise the Tennessee
lawyer. It was never clear whether either of these
“advisors,” or anyone else, represented the accused.
The Tennessee lawyer did participate on behalf of
the Scottsboro defendants—in a manner of speaking. He was allowed 25 minutes to confer with his
clients. No time was provided for a reasonable
investigation of the alleged crime or of the backgrounds of the alleged victims. There was no time
to find witnesses. So the trials began.
The defendants were tried in four groups.
Clarence Norris and Charlie Weems were tried
first, because they were the oldest. Next came
Haywood Patterson, the one whose hand had been
stepped on. The third trial involved a group of five
defendants: Ozzie Powell, Willie Roberson, Andy
Wright, Eugene Williams, and Olen Montgomery.
The fourth and final trial was that of Roy Wright,
the 12-year-old.
Before each of the four juries, the key prosecution testimony was that of the alleged victims,
Victoria Price and Ruby Bates, and the local doctors, Bridges and Lynch. Both doctors testified to
having found semen in the vaginas of the two
Haywood Patterson
The prosecutor did not ask for the death penalty—only life
imprisonment. That act of mercy disappointed the jury, a
majority of which held out for the death penalty.
Winter 2002 5
women. The adviser, or “lawyer,” for the accused
did not question the medical testimony, did not
make much of an opening statement, and, incredibly, saw no purpose in giving a summation. Worse
still, because the adviser did not have the opportunity to speak to his clients at length, he could not
prepare them to testify. He called them to the
stand nonetheless, so they could say whatever they
wanted. As you might expect, some of the nine
said, in effect, “Not me and not my two or three
friends, but, yes, these other defendants, they are
the ones who did it.” No single lawyer can represent multiple clients if the latter blame each other
for the crime charged. It would constitute a gross
conflict of interest. But these “technicalities” went
unnoticed or were ignored. In short, the defense,
insofar as it existed at all, was a disaster.
These rapid-fire trials were over in three days.
Most took five hours or less. The jury
deliberations for most of the trials
averaged about 30 minutes. The verdict for eight of the nine was “guilty of
rape” and the penalty in each case was
death. The exception was the trial of
Roy Wright, the 12-year-old. Here the
jury could not agree and the result was
a hung jury. Why couldn’t the jury agree? Well,
because Mr. Wright was only 12, the prosecutor
did not ask for the death penalty—only life imprisonment. That act of mercy disappointed the jury, a
majority of which held out for the death penalty.
As a result, they could not render the required
unanimous verdict.
From the time of arrest to the time of the death
sentences only two weeks had passed.
Saviors
The Scottsboro Boys did not die in the electric
chair. Not then, and not later. Who saved them? In
this tragedy there were heroes—individuals or
groups whose skill or courage or commitment
saved the lives of these young victims.
In chronological order of appearance, the first of
these saviors was the American Communist Party
(ACP). The initial media response to the convictions was limited to a few brief stories in several
newspapers. There was no national media presence
at the trial. Soon after the convictions, the ACP
became involved. They knew a good issue when
they saw it. The convictions, the ACP argued, were
a dramatic example of capitalistic repression of the
poor. Obviously, their motive in helping the
Scottsboro Boys was propaganda. But were their
motives important? When you are powerless and
facing death, when no one else is aiding your cause,
you take what help you can get. The ACP had the
means and the network to mobilize mass protests
that brought the case national and international
attention. Within days, demonstrations throughout
the United States, as well as in Germany, Spain,
and Moscow, raised a storm of protest. Moreover,
the communists had a well-established legal defense
team; the International Labor Defense and its chief
lawyer, Joseph Brodsky, were experienced and
dedicated. The Scottsboro Boys now had support
and competent legal representation.
The next savior to enter the picture was the
United States Supreme Court. After the convictions were affirmed in the Alabama courts, they
were appealed to the United States Supreme Court.
In the landmark decision of Powell v. Alabama,5
the
Court reversed the Scottsboro convictions. This
decision appears in all the constitutional law and
criminal procedure casebooks. Let me explain why.
There was no question that the Justices regarded
the legal representation of the Scottsboro Boys
inadequate. It was never clear whether the TennesThe convictions, the American Communist Party argued,
were a dramatic example of capitalistic repression
of the poor.
6 Cornell Law Forum
see lawyer was really representing the defendants.
He seemed tentative, probably because of the mob
atmosphere. He had no time to prepare. Counsel
was never formerly appointed by the court. The
unfairness was obvious. But the Supreme Court
needed a legal basis on which to reverse. The specific Sixth Amendment right to counsel would do
nicely except, as I’ve mentioned, the Sixth Amendment operated only against the federal government,
not against the states. The 14th Amendment’s “due
process” clause does apply to the states but what
does “due process” entail? There was no precedent
that said the right to counsel applies to the states
through the operation of 14th Amendment due
process—no precedent, that is, until Powell v.
Alabama created it in 1932.
This decision is a legal landmark because it
extended and clarified the meaning of due process.
It is a seminal right-to-counsel decision—seminal
because it is the basis of the decisions that followed.
In Powell, the Court said two things. First, it read
the right to counsel into the due process clause.
Therefore, this guarantee would now apply to all
state trials. Second, it applied that principle to the
Scottsboro trial and found that due process was
lacking. That insufficiency saved the Scottsboro
Boys from being executed—at least for now.
To understand the long-term significance of this
decision, we have to appreciate that the actual
holding was a narrow one. What the Court said
was that 14th Amendment due process requires the
effective right to counsel in this case because in this
case the defendants were all young, uneducated,
and illiterate. A mob atmosphere surrounded the
trial and this was a capital case. The Court left
open a host of questions that would be answered
later. Does the right to counsel apply to all capital
cases—even if the defendants are mature and educated, and there are no mobs? Yes, said the Court
in a later decision. Does the right to counsel apply
to non-capital, serious felony cases? Yes, said the
Court some years later. Does the right to counsel
apply to all felonies, whether serious or not? Yes,
said the Court in another decision. When in the
trial process does the right to counsel attach—only
at the time of trial? No—earlier; at least at the
time of indictment, answered the Court. Why not
even earlier than that, such as at the time of initial
arraignment? Good point, said the Court, and it so
held. Why not still earlier? The Court ultimately
agreed, and held that the right to counsel attaches
at the time of custodial interrogation. If the police
arrest a suspect and the suspect asks for a lawyer, at
that point all interrogation of the suspect must
stop. But how will the suspect know he has this
right to counsel? Ultimately, the Court held in
Miranda v. Arizona6 that if the police take a suspect into custody, they must advise him that he
has the right to a lawyer and that if he cannot
afford one, a lawyer will be appointed for him.
Thus, over the course of 35 years, in decision after
decision, the Supreme Court expanded the right to
counsel in state as well as federal trials. Where did
all this begin? It began with Powell v. Alabama.
This is not the end of the story. Now the nine
Scottsboro defendants must return to the Alabama
courts to be tried again. And back in Alabama, not
much has changed.
Who were the Scottsboro Boys? They were nine
black unemployed youths who made a most
unfortunate decision to hobo a train that left
Chattanooga for Memphis and passed through Scottsboro
and Huntsville, Ala., along the way. They were called
“boys”because their agesranged from 13 (Roy Wright and
Eugene Williams) to 19 (Charlie Weems). The authorities
charged all nine of them with death penalty offenses for
allegedly gang raping two hobo white women.A jury convicted the youths simply because of their race at a time
when no jury composed of all white males in a deep
Southern state would reject a white woman’s uncorroborated and unquestionably false testimony against a person
of color no matter how unjust and absurd — even while
the whole world watched.
Olen Montgomery, age 18, was completely blind in
one eye and nearly blind in the other. He could only get
around by placing his hand on someone’s shoulder and
being led from one place to another. The so-called rape
occurred in a gondola car, and Olen Montgomery was
riding on an oil tanker car at the end of the train and
knew nothing about any rape occurring until he was
arrested for it. Willie Robinson had untreated gonorrhea
and syphilis. His private parts were covered with sores
and swollen to the extent that he walked with a cane and
was impotent. Sex for him would have been extremely
painful and he would most assuredly have infected any
partner (neither of the “victims” contracted venereal disease). Robinson had an IQ of 64 and a mental age of
nine. He had not been in the gondola car at all on the day
the alleged rape occurred.
Fateful Day in 1931
On a cool March day in 1931, a slow-moving freight
train left Chattanooga headed west toward Huntsville.
Just as the train left Stevenson, Ala., two bleeding white
hobos ran to the stationmaster. They complained that a
“bunch of Negroes” had beaten them up and thrown
them from the train without provocation. The truth was
that the two transients had told all the black people in the
gondola car to either jump off the train or find another
car to ride in because they did not want to “ride with niggers.” The fight was short; it was two against seven.
The stationmaster telephoned Sheriff M.L. Wann,
and he in turn called a deputy to stop the train at Paint
Rock station. His instructions to the deputy were to
“capture every Negro on the train and bring them to
Scottsboro,” which was the county seat of Jackson
County. The Jackson County deputy did as he was told.
There were nine black youths aboard, and to everyone’s
surprise, also on board were two white females wearing
men’s overalls and caps.
In 1931, riding a train in Alabama without a ticket or
the money to purchase one constituted the crime of
vagrancy and customarily resulted in a fine of $30 or 30
days on the county work crew. To avoid the vagrancy
B Y J O H N E D M O N D M AY S A N D R I C H A R D S . J A F F E
History Corrected —
The Scottsboro Boys
Are Officially Innocent
© Library of Congress,NAACP
W W W . N A C D L . O R G T H E C H A M P I O N
arrest, Ruby Bates claimed that she and
her friend, Victoria Price, had been raped
by the nine black youths.
The deputy who stopped the train
was there to investigate a simple misdemeanor assault. Upon hearing the rape
allegation,the police took the two females
to a doctor in Scottsboro and took the
nine youths to the county jail. As word of
the accusation spread, a mob formed outside the jail.TheAlabama National Guard
was called out to protect the prisoners.
In the Courts
An all-white grand jury, which had
met the week before, reconvened and
indictments for rape, a capital crime at
the time, were returned against all nine.
The trial in Scottsboro was a travesty. The
court appointed a local attorney who was
experiencing senility, Milo Moody, along
with an “advisor,” Stephen R. Roddy from
Chattanooga. Roddy’s practice consisted
primarily of writing title opinions. Ada
Wright of Chattanooga, the mother of
two of the boys, Andrew and Roy Wright,
had paid him a small fee to assist their
Alabama attorney.
The grand jury returned the nine
indictments on a Tuesday morning and
Judge Alfred E. Hawkins set the trials for
the following Monday. The court appointed counsel on the date set fortrial. On that
day lawyer Roddy was reported to be
drunk (“he couldn’t even walk straight”).
1
The court gave the two lawyers less than
half an hour to confer with their nine
clients in a capital case before starting the
voir dire. The drunken Roddy agreed that
all nine defendants could be tried at the
same time even though Alabama law at
that time permitted each co-defendant, on
motion, the absolute right to a separate
trial if he requested one.When questioned
by the trial judge, Roddy said he wanted
no severances. District Attorney H.C.
Bailey told the court he wanted three trials
— one for 13-year-old Charley Weems,
one for Clarence Norris and Roy Wright,
and one for the other six.
The trials resulted in nine guilty verdicts. As to Roy Wright, who was only 13,
the jury voted seven for death and five for
life imprisonment even though the prosecution asked for life imprisonment for
Wright. Thus, there was a mistrial as to
Wright. The other eight transients were
sentenced to die.These were the first death
sentences for Judge Hawkins as a jurist,
and he cried as he pronounced them. The
Alabama Appellate Court affirmed the
convictions and death sentences.
It was a different story in the U.S.
Supreme Court. In the landmark case of
Powell v. Alabama,
2 the Supreme Court
held it to be ineffective assistance of
counsel and a denial of due process for a
trial court to put a capital defendant on
trial with counsel who had only 30 minutes to interview his client and prepare
before striking a jury. Later in a subsequent appeal to the Supreme Court in
Norris v. Alabama,
3 the Court deemed it a
violation of the Fourteenth Amendment
to have a “gentlemen’s agreement” among
the Jury Commissioners of Alabama that
no blacks be considered for grand jury or
petit jury service. These commissioners
in each county compiled the jury rolls
from which potential jurors were chosen
and the Jackson County Grand Jury
returning the nine indictments was all
white. Neither Jackson County nor any
other Alabama county had ever had a
black grand or petit juror.
After the Court decided Powell v.
Alabama, the youths filed a motion for
change of venue. Judge Hawkins determined that the case should be moved to
the town of Decatur in Morgan County
as opposed to Birmingham, where the
defendants wanted it to go. The case was
assigned to Judge James Edwin Horton.
The year was 1933, and Judge Horton
was nearing the end of his second term as
circuit judge. He was the son and grandson of Confederate veterans.A product of
the Old South, he nonetheless possessed a
strong sense of justice and a firm belief
that all persons must be equal before the
law. Judge Horton’s life ambition was to
be an appellate justice. When the case was
assigned to Horton, Gov. Bibb Graves sent
an assistant to see him with a promise that
if he handled the Scottsboro cases “with
the least embarrassment to the state of
Alabama,” the governor would appoint
him to a place on the Supreme Courtsoon
to be vacated by a justice who had a serious heart condition.
Famed New York lawyer Sam
Leibowitz and Joseph Brodsky represented
the Scottsboro Boys in Decatur. The evidence at trial overwhelmingly proved that
they were innocent. Ruby Bates recanted
her previous testimony in Scottsboro.
Bates testified that she was never raped
and that she and Victoria Price made up
the whole story to keep from being arrested for vagrancy. The gondola car where
the supposed rape occurred had been used
to haul crushed gravel. While Victoria
Price testified she was forced down, held
down and raped, there was not a scratch
on her from the sharp edges of the gravel
remaining in the gondola.
Lester Carter, one of the hobos
thrown from the train,testified that he had
sex with Ruby Bates the night before in the
hobo jungle in Chattanooga. He further
testified that several feet away, Victoria
Price had sex with Price’s boyfriend, Jack
Tiller. The semen found inside Victoria
Price was small in quantity and the sperm
were dead. A physician in Scottsboro
examined Victoria and Ruth immediately
after the rape accusation. The medical testimony supported the defense, not the
prosecution, in that the doctors found
nothing consistent with forcible intercourse and certainly not by nine different
people. In fact, Victoria Price testified that
she was never in a hobo jungle in
Chattanooga but stayed at a ladies’ boarding house owned by Callie Brochie. Sam
Leibowitz proved that no such person
lived inChattanooga and that therewas no
such boarding house there. Leibowitz
established that Callie Brochie was a fictional character who owned a boarding
house in a Saturday Evening Post series. In
his closing argument, Morgan County
Solicitor Wade Wright repeatedly insulted
Sam Leibowitz for his Jewish faith.
Because Sam Leibowitz bought Lester
Carter a suit, tie and shoes to wear to
court, the solicitor made the following
argument in his closing:
Lester Carter sold his Alabama
birthright for a suitcase full of
New York Jew ready mades.
4
Judge Horton never realized his
dream of an appellate judgeship. Instead,
he chose conscience and justice over politics and ambition. In a rare and singular
act of courage, after the jury convicted
Haywood Patterson and sentenced him to
die, Judge Horton granted Sam
Leibowitz’s motion for a new trial, for
Patterson based on the “verdict of the jury
being against the great weight of the evidence.” His ruling ended his political
career forever and he was overwhelmingly
defeated for re-election in 1934.
After Judge Horton granted the
motion for new trial, the case went to
Judge William Callahan of the same
circuit. Judge Callahan proved to be
the antithesis of Judge Horton by
resorting to heavy-handed tactics and
braised rulings. In the new trial of
Haywood Patterson, due to a number
of complications the tenacious legal
giant Sam Leibowitz was forced to relegate his role as lead attorney to that of
an advisor to newly appointed
Huntsville attorney Clarence Watts.
Watts did his best, but just as in the
1950s classic To Kill a Mockingbird,
powerful societal codes trumped any
semblance of justice. In his closing
argument he said these words:
W W W . N A C D L . O R G M A R C H 2 0 1 4
T
H
E
S
C
O
T
T
S
B
O
R
O
B
O
Y
S
29
Gentlemen of the jury, the hardest thing in life is to do what you
know is right when everyone
around you is urging you to do
what you know is wrong.
5
Guilty verdicts and death penalties
followed for the defendants.
The Aftermath
No one was executed. Haywood
Patterson, ultimately convicted in four trials,went to prison.In 1948 he escaped and
hoboed a train to Detroit. The governor of
Michigan refused his extradition back to
Alabama. He died in 1950 in Michigan
while serving a sentence for manslaughter.
After six and one-half years of confinement, the state moved to dismiss the
charges against the blind Olen
Montgomery, the crippled William
Robinson, Roy Wright, and Eugene
Williams. The charges were not dismissed
upon insufficient evidence, but solely on
the basis of the defendants having served a
sufficient amount of time behind bars.
Charlie Weems made parole in 1943. He
had contracted tuberculosis and would
soon die in Atlanta, Ga. The state paroled
Andy Wright in 1943. He also had tuberculosis and would be returned to Kilby
Prison several more times for minor
felonies (thefts and assaults). Roy Wright
made parole and died by his own hand in
1959 after killing his wife. Ozie Powell had
stabbed a Morgan County deputy while
awaiting a new trial. The rape charges
against him were dismissed in return for
his plea to a 20-year sentence for assault
from Judge Callahan. He made parole in
1944. Clarence Norris remained under a
death sentence that was commuted by
Gov. Graves. Paroled in 1943, he returned
to prison on a parole violation and in 1946
was paroled again. In 1974 he learned that
he was wanted in Alabama for a parole
violation. He was living in Queens. The
governor at the time, George Wallace,
signed a pardon for Clarence Norris in
1975. When he died in 1989, Norris was
the last living “Scottsboro Boy.”
It is not often one can actually witness
history corrected. Yet this is precisely what
happened onApril 19, 2013, in Scottsboro,
Ala.,when Gov.Robert Bentley signed two
pieces of legislation into law. The Alabama
Legislature passed a resolution recommending a posthumous pardon for all the
defendants against whom charges were
not dismissed. Legislators also passed a
resolution declaring all nine Scottsboro
Boys to be innocent. Even the pardon
given Clarence Norris by Gov. Wallace did
not declare him innocent. The two acts
unanimously passed both houses of the
Alabama Legislature, all Republicans and
all Democrats voting in the affirmative. At
the side of Gov. Bentley, with tears in his
eyes, stood Clarence Norris Jr., witnessing
the complete exoneration of his father.
Seven months later, on November
21, 2013, the Alabama Board of Pardons
and Paroles granted posthumous
pardons to Charles Weems, Andy Wright,
and Haywood Patterson. They were the
final three defendants to have convictions
from the case on their records.
6
So much time has passed since the
early 1930s, and all the Scottsboro Boys
are dead. The pardons and exonerations
never helped them while they were alive,
yet it is nevertoo late to do the right thing.
Equal justice before the law cannot be a
dream.Advocates involved in the criminal
justice system must make it a reality. It is
nevertoo late to right awrong— especially one in the name of justice. History has
been corrected. The Scottsboro Boys are
all, each and every one, innocent.
The authors are honored to have
participated in this long overdue fight
for justice.
Notes
The Scottsboro Boys were nine black defendants in a 1931 rape case initiated in Scottsboro, Alabama.
The case was heard by the United States Supreme Court twice and the decisions established the principles
that criminal defendants are entitled to effective assistance of counsel
[1] and that people may not be de
facto excluded from juries because of their race.
[2]
Nine young black defendants were accused of raping two fellow homeless white women on a freight
train, and eight were quickly convicted in a mob atmosphere. The juries were entirely white, and the
defense attorneys had little experience in criminal law and no time to prepare their cases. As each of the
nine cases successively went to the jury, the next trial was immediately begun. All but one of the
defendants was found guilty, and these eight were sentenced to death on rape charges. These eight,
however, later had their death sentences lifted by the Supreme Court, serving instead between six and
nineteen years in prison.
The nine black youths, Olen Montgomery (age 17), Clarence
Norris (age 19), Haywood Patterson (age 18), Ozie Powell (age
16), Willie Roberson (age 17), Charlie Weems (age 19), Eugene
Williams (age 13), and brothers Andy (age 19) and Roy Wright
(age 12) were accused of the rapes of Ruby Bates and Victoria
Price on March 25, 1931, on the Southern Railroad line from
Chattanooga to Memphis.
[4][5] Several people were "hoboing" on
the freight train including the nine black youths, two white
women, and several white youths. Four of the blacks, Patterson,
Williams, and the Wright brothers had hoped to find work hauling
logs on the Missouri River. The other black youths on the train
were from Georgia and were unacquainted with the other four.
The white hobos on the train were also in search of work and
included several boys or men and Victoria Price and Ruby Bates.
The women were Huntsville, Alabama residents who had gone to
Chattanooga, Tennessee to find work in cotton mills. Failing to obtain those jobs, they hopped this freight
train back to Huntsville, completely without money.
[6]
A fight began between the white youths and the black youths, allegedly when a white youth stepped on
Patterson's hand as he hung on to the side of a tank car. The off-and-on fight involved name-calling,
stone throwing and fisticuffs. Most of the white youths were forced off the slow moving train near
Stevenson, Alabama. Several of them told the Stevenson stationmaster about the fight and said they
wanted to press charges.
[7] The stationmaster called Jackson County Sheriff Matt L. Wann to report the
incident. The Sheriff called Deputy Charlie Latham, who lived near the next scheduled stop for the train,
Paint Rock, Alabama and told him to deputize as many citizens as he needed to "capture every negro on
the train. I am giving you authority to deputize every man you can find."
[8] A posse of some fifty white
men armed with shotguns, rifles and pistols prepared for their arrival. Even before the slow moving train
stopped about 2 p.m., the posse had searched all forty-eight cars. Within ten minutes they had arrested all
nine of the "raggedly dressed" black youths at gun point. From the time of their arrest until the first trial
twelve days later, none of the boys were permitted to call or speak to anyone, not even each other.
[8] The
initial arrest was for the assault and attempted murder of the white youths ejected from the train at
Stevenson.
[9]
To Kill a Mockingbird Lesson Plan for Laws of Life Essay Writing 5.1T Scottsboro Notes
The School for Ethical Education www.ethicsed.org
2
Crowd outside the courthouse.
The posse was surprised to find Ruby Bates and Victoria Price on the train, dressed in men's overalls
covering dresses. When discovered, they scrambled out of the open gondola car used to haul gravel where
they had been riding. They ran in the direction of the engine, where they ran into other members of the
posse coming the other way. They turned and started to run back in the other direction where other
members of the posse stopped them. Twenty minutes after the train left Paint Rock, its station agent W.
H. Hill asked the women whether any of the "negroes" had bothered them. At that point, Ruby Bates told
Hill that they had been raped by them.
In the Jim Crow South, a black male was said to risk lynching by just looking at a white woman.
[13] Word
quickly spread and a lynch mob gathered in front of the jail in Scottsboro and prepared to storm the jail.
The crowd of farmers with many of their wives and children looking on grew into the hundreds.
[note 2] The
newly elected Jackson County Sheriff, Matt L. Wann barricaded the door to the jail. At 8:30 that evening,
he decided to move the accused youths to a jail in another community, but could not, because the wires to
the headlights on the squad cars had been cut. Mayor James David Snodgrass begged the crowd to leave.
However, they refused and demanded that the youths be surrendered to them for immediate lynching.
[14]
At the request of Sheriff Wann, Alabama Governor Benjamin M. Miller, called in the National Guard to
protect the jail.
[15] Authorities pleaded against mob violence by promising speedy trials and asking "the
Judge to send them to the chair".
[16] The editor of the local Scottsboro Progressive Age was very self
congratulatory that Scottsboro had not lynched these defendants outright. The editor wrote, "If ever there
was an excuse for taking the law into their own hands, surely this was one. Nevertheless, the People of
Jackson County have saved the good name of the county and state by remaining cool and allowing the
law to take its course."
[16]
[without benefit of any research or preparation time by lawyers
who were not experience or familiar with Alabama trial law,
individual trials moved forward quickly with large crowds in the
streets outside the courthouse.]
When the guilty verdicts were announced, the courtroom erupted in
cheers and some of the celebrating crowd poured out into the street
in front of the courthouse. Judge Hawkins' heavy gavel pounding
did not restore order in the courtroom. He ended up ordering the
national guardsmen to restore order, who ended up throwing eight
of the shouting spectators out of the courthouse. When word of the
guilty verdicts reached the crowd outside, another roar of
celebration went up. The band, supplied for the occasion by the
Ford Motor Company for a show of its cars outside, struck up Hail,
Hail the Gang's All Here and There'll be a Hot Time in the Old
Town Tonight.
[39][40]
The eight convicted defendants were assembled together on April 9, 1931 to be sentenced by the Court to
death by electrocution, the first time Judge Hawkins had pronounced the death sentence in his five years
on the bench. The Associated Press reported that the defendants were "calm" and "stoic", as Judge
Hawkins handed down the death sentences one after another.
[53]
Judge Hawkins fixed their executions for July 10, 1931, which was the earliest date Alabama law
allowed. The defendants were immediately sent to death row in Kilby Prison in Montgomery, Alabama.
Their cells were next to the execution chamber. While appeals were filed for them, the Alabama Supreme
Court issued indefinite stays of executions for them only seventy-two hours before they were scheduled to
die. During their wait on death row, another prisoner, Will Stokes, was executed on July 10, 1931, which
they could hear. They later recalled that Stokes had "died hard".
[54]
To Kill a Mockingbird Lesson Plan for Laws of Life Essay Writing 5.1T Scottsboro Notes
The School for Ethical Education www.ethicsed.org
3
Many in the North were outraged by the decision of the Alabama Supreme Court and many in the South
were outraged by the outrage, since, to their way of looking at it, the whole fuss was caused by "outside
agitators." They had, after all, given these defendants a trial, rather than just lynching them the first night.
Many in the South asked, "What more did those Communist trouble makers want?"
[76] The ILD retained
prominent constitutional attorney Walter Pollak[77] to appeal the case to the United States Supreme Court
which appeal, the Supreme Court agreed to hear. [Twice the US Supreme Court heard and overturned
convictions from the Alabama Courts.]
[After multiple re-trails which included two hearings before the US Supreme Court, all the Scottsboro
Boys were ultimately released (or escaped) from prison. Individual outcomes included]
1-Haywood Patterson: On January 23, 1936, in this retrial, Haywood Patterson was again convicted of
rape but was sentenced to 75 years in prison rather than the death penalty—the first time a black man had
been sentenced to anything other than death in the rape of a white woman in Alabama. There was a
Methodist minister on the jury who persuaded the others to agree to this sentence as a "compromise."
Victoria Price expressed her extreme disappointment that Patterson escaped the death sentence this time,
pronouncing bitterly that it was extremely unfair that he would get off with only 75 years. Haywood
Patterson escaped in 1948 and fled to Detroit, Michigan.
2. On July 15,1937, Clarence Norris was again convicted of rape and sexual assault and sentenced to
death. Governor of Alabama Bibb Graves later reduced Clarence Norris' death sentence to life in prison.
He was paroled in 1946. In 1979 his autobiography The Last of the Scottsboro Boys was published in
which he described his ordeal. The last living Scottsboro Boy wanted to clear his name. Norris died
January 23, 1989 when at 76.
3. On July 22, 1937, Andrew Wright was again convicted of rape and sentenced to 99 years. He was
paroled, but returned to prison after violating his parole. He was finally released for good in 1950.
4. On July 24, 1937, Charlie Weems was convicted of rape and sentenced to 105 years in prison. He was
paroled in 1943, having served 12 years in some of the worst prisons in the nation.
5. Ozie Powell pleaded guilty to assaulting a Deputy Sheriff named Edgar Blaylock with intent to murder
him during an escape attempt and was sentenced to 20 years. Judge Callahan did not give him any credit
for the six years he had already served on the rape charge. However, the state did drop the rape charges
against him as part of this plea bargain. The incident happened on January 24, 1936. Powell was finally
released for good in 1946.
6.On July 24, 1937, Roy Wright had all charges against him dropped; the state said that they felt that
given his age, and time served, he should now be released. He joined the United States Army. When he
got out of the Army, he married and joined the Merchant Marine. After Wright came back from a lengthy
time at sea in 1959, he came to believe that his wife had been unfaithful to him during his absence. As a
result, he shot his wife to death and then took his own life.
7.On July 24, 1937, Eugene Williams had all charges against him dropped, for the same reasons given for
Wright.
8.On July 24, 1937, Olen Montgomery had all charges against him dropped, as the state announced that
after consideration, it now believed him to be not guilty.
9.On July 24, 1937, Willie Roberson had all charges against him dropped, for the same reasons given for
Montgomery.
While it has sometimes been suggested that the case inspired Harper Lee's Pulitzer Prize winning To Kill
a Mockingbird, Lee denied this, claiming it was a far less sensational case that moved her to write the
One of America‘s most infamous legal episodes began on March 25,
1931. Nine black youths from Georgia and Tennessee were accused of raping
two white women on a freight train in northern Alabama. In hastily arranged
trials, eight of them received death sentences. Their appeals, retrials, and
subsequent legal proceedings riveted the attention of the nation and the world
and ultimately produced two Supreme Court rulings in their favor and nearly
twenty years of legal wrangling.
Known to history as Scottsboro, this episode teaches several lessons
relevant to students of American constitutional law and history. The
Scottsboro Cases illuminate why the modern revolution in American criminal
procedure began mainly with cases involving black criminal defendants from
the South. The episode also reveals how Supreme Court interventions in
southern race cases tended to incite political backlashes that undermined
implementation of the Court‘s decisions—thus making Scottsboro an
important forerunner of Brown v. Board of Education.
1
The competition
between the National Association for the Advancement of Colored People
(NAACP) and the International Labor Defense (ILD) for the right to represent
the Scottsboro defendants on appeal illustrates competing perspectives on the
use of law as a method of social reform—a debate that reverberates to the
* Kirkland & Ellis Professor, Harvard Law School. This Article was published in conjunction
with my delivery of the Boden Lecture at Marquette Law School in September 2009. I am grateful to
Dean Joseph Kearney for extending that invitation. Thanks to Bill Stuntz for comments on an earlier
draft and to Carrie DeCell, Kelsey Israel-Trummel, Jessica King, Gabe Mendel, Asieh Narriman,
Sheri Shepherd, and Sarah Teich for research assistance. The research for this Article was greatly
facilitated by the remarkable reference librarians at the University of Virginia School of Law, where I
had the privilege to serve as a faculty member for over twenty years; special thanks are due to Cathy
Palombi. Anyone working on Scottsboro must acknowledge the extraordinary contributions to our
understanding of that episode made by Dan Carter and James Goodman. An earlier, abbreviated
version of this Article was published as Michael J. Klarman, Powell v. Alabama: The Supreme Court
Confronts ―Legal Lynchings,‖ in CRIMINAL PROCEDURE STORIES: AN IN-DEPTH LOOK AT LEADING
CRIMINAL PROCEDURE CASES 1–44 (Carol S. Steiker ed., 2005).
My footnoting practices in this Article combine those used by historians and those of law
professors. In general, I have combined the sources relevant to a particular paragraph in a single
footnote at the end of that paragraph. However, for quotations and for other sentences containing
specific details, I have adhered to conventional law review practices.
1. 347 U.S. 483, 495–96 (1954); see MICHAEL J. KLARMAN, FROM JIM CROW TO CIVIL
RIGHTS: THE SUPREME COURT AND THE STRUGGLE FOR RACIAL EQUALITY 385–442 (2004).
380 MARQUETTE LAW REVIEW [93:379
present day.2
The limited impact of the Supreme Court rulings in Scottsboro
on the southern criminal justice system sheds light on another great debate in
American constitutional law and theory: the capacity of the Supreme Court to
compel social change.3
Finally, the Scottsboro litigation illustrates not only
some of the indirect benefits of litigation as a method of organizing social
protest,4
but also the intangible costs generated by Court victories that fail to
appreciably change oppressive social practices.5
II. THE STORY OF SCOTTSBORO
A. A Fateful Train Ride
The freight train left Chattanooga for Memphis at 10:20 a.m. on March 25,
1931. Thirty minutes after it had pulled out of Stevenson, Alabama, the
stationmaster there saw a group of white hoboes walking along the train tracks
back toward the station. They told him that several black youths had thrown
them off the train after a fight. The stationmaster telephoned ahead to the next
stop, Scottsboro, but the train had already passed through. It was finally
stopped at Paint Rock, where a sheriff‘s posse discovered nine black youngsters
and, to everyone‘s surprise, two young white women dressed in men‘s overalls.6
The nine blacks, known to history as the Scottsboro boys, ranged in age
from thirteen to twenty. Five of them were from Georgia, though they
claimed not to know one another. The other four did know one another; they
were from Chattanooga, Tennessee. All of the nine were vagrants, and most
of them were illiterate.
Twenty minutes after the train had been stopped, one of the women, Ruby
2. See, e.g., Thomas M. Keck, Beyond Backlash: Assessing the Impact of Judicial Decisions on
LGBT Rights, 43 LAW & SOC‘Y REV. 151 (2009); Tomiko Brown-Nagin, Elites, Social Movements,
and the Law: The Case of Affirmative Action, 105 COLUM. L. REV. 1436 (2005); William N.
Eskridge, Jr., Some Effects of Identity-Based Social Movements on Constitutional Law in the
Twentieth Century, 100 MICH. L. REV. 2062 (2002); Reva B. Siegel, Text in Contest: Gender and the
Constitution from a Social Movement Perspective, 150 U. PA. L. REV. 297 (2001).
3. See, e.g., JOEL F. HANDLER, SOCIAL MOVEMENTS AND THE LEGAL SYSTEM: A THEORY OF
LAW REFORM AND SOCIAL CHANGE 192–209 (1978); GERALD N. ROSENBERG, THE HOLLOW HOPE:
CAN COURTS BRING ABOUT SOCIAL CHANGE? (1st ed. 1991); Bradley C. Canon, The Supreme
Court and Policy Reform: The Hollow Hope Revisited, in LEVERAGING THE LAW: USING THE
COURTS TO ACHIEVE SOCIAL CHANGE 215 (David A. Schultz ed., 1998); JEFFREY A. SEGAL &
HAROLD J. SPAETH, THE SUPREME COURT AND THE ATTITUDINAL MODEL 333–55 (1993); STEPHEN
L. WASBY, THE IMPACT OF THE UNITED STATES SUPREME COURT: SOME PERSPECTIVES (1970).
4. HANDLER, SOCIAL MOVEMENTS AND THE LEGAL SYSTEM, supra note 3, at 214–22
(discussing indirect benefits from law reform activity); KLARMAN, FROM JIM CROW TO CIVIL
RIGHTS, supra note 1, at 93–95, 162–67, 284–86, 365–69, 463–68; MICHAEL W. MCCANN, RIGHTS
AT WORK: PAY EQUITY REFORM AND THE POLITICS OF LEGAL MOBILIZATION 10, 56–57, 279
(1994) (discussing indirect benefits of reform litigation activity).
5. KLARMAN, FROM JIM CROW TO CIVIL RIGHTS, supra note 1, at 95–96, 282–84.
6. DAN T. CARTER, SCOTTSBORO: A TRAGEDY OF THE AMERICAN SOUTH 3–5 (rev. ed. 1979);
JAMES GOODMAN, STORIES OF SCOTTSBORO 3–4 (1994).
2009] SCOTTSBORO 381
Bates, called over a posse member and told him that she and her companion,
Victoria Price, had been gang-raped by the blacks. The boys were
immediately arrested and taken to the Scottsboro jail. As the sheriff sent the
women to two local doctors for medical examinations, news of the alleged
attacks spread. By day‘s end, a crowd of several hundred people had gathered
outside of the jail, demanding that the ―niggers‖ be turned over for lynching. 7
Sheriff M.L. Wann pleaded with the mob to allow the law to take its course
and threatened to shoot anyone who rushed the jail. He also telephoned the
governor for assistance, and by 11:00 p.m., twenty-five armed guardsmen
were on their way to Scottsboro. To ensure the boys‘ safety, they were moved
to a sturdier jail in nearby Etowah. The local circuit judge, Alfred E.
Hawkins, convened a special session of the grand jury to indict them; local
citizens complained of the five-day delay. One local newspaper remarked, ―It
is best for the county that these things be disposed of in a speedy manner as it
gives no excuse for people taking the law into their own hands.‖8
A decade or two earlier, black men charged with raping white women
under similar circumstances might well have been executed without trial.
Lynchings in the South peaked in the late 1880s and early 1890s, when well
over a hundred were reported annually and in some years over two hundred.
Most lynchings occurred in response to allegations of crime—usually murder
or rape—though occasionally the alleged ―offense‖ was as minor as breach of
racial etiquette or general uppityness. Prior to World War I, lynchings
typically enjoyed the support of local communities; efforts to prosecute even
known lynchers were rare, and convictions were virtually nonexistent.9
By 1930, however, the number of reported lynchings had declined
dramatically—from an average of 187.5 per year in the 1890s to 16.8 in the
later years of the 1920s.10
This decline was attributable to many factors,
including the possibility of federal anti-lynching legislation, the diminishing
insularity of the South, more professional law enforcement, and better
7. CARTER, SCOTTSBORO, supra note 6, at 6–8 (citation and internal quotation marks omitted).
8. Id. at 6–9, 16–17 n.11 (quoting the PROGRESSIVE AGE (Scottsboro, Ala.), Apr. 2, 1931)
(internal quotation marks omitted); GOODMAN, STORIES OF SCOTTSBORO, supra note 6, at 21–22.
9. CARTER, SCOTTSBORO, supra note 6, at 105; KLARMAN, FROM JIM CROW TO CIVIL RIGHTS,
supra note 1, at 118–19; see generally W. FITZHUGH BRUNDAGE, LYNCHING IN THE NEW SOUTH:
GEORGIA AND VIRGINIA, 1880–1930 (1993); GRACE ELIZABETH HALE, MAKING WHITENESS: THE
CULTURE OF SEGREGATION IN THE SOUTH, 1890–1940, at 199–227 (1998); LEON F. LITWACK,
TROUBLE IN MIND: BLACK SOUTHERNERS IN THE AGE OF JIM CROW 280–325 (1998); NEIL R.
MCMILLEN, DARK JOURNEY: BLACK MISSISSIPPIANS IN THE AGE OF JIM CROW 224–56 (1989);
ARTHUR F. RAPER, THE TRAGEDY OF LYNCHING (1933); UNDER SENTENCE OF DEATH: LYNCHING
IN THE SOUTH (W. Fitzhugh Brundage ed., 1997) (discussing lynching in relation to racial violence,
its regional and cultural contexts, and its legacy).
10. RAPER, TRAGEDY OF LYNCHING, supra note 9, at 25, 46–47.
382 MARQUETTE LAW REVIEW [93:379
education.11
But the decline in lynchings probably also depended on their
replacement with speedy trials that reliably produced guilty verdicts, death
sentences, and rapid executions.12
Some jurisdictions actually enacted laws
designed to prevent lynchings by providing for special terms of court to
convene within days of alleged rapes and other incendiary crimes.13
In many
instances, law enforcement officers explicitly promised would-be lynch mobs
that black defendants would be quickly tried and executed if the mob desisted,
and prosecutors appealed to juries to convict in order to reward mobs for good
behavior and thus encourage similar restraint in the future.14
In such cases, guilt or innocence usually mattered little. As one white
southerner candidly remarked in 1933, ―If a white woman is prepared to
swear that a Negro either raped or attempted to rape her, we see to it that the
Negro is executed.‖15
Prevailing racial norms did not permit white jurors to
believe a black man‘s word over that of a white woman; prevailing gender
norms did not allow defense counsel to closely interrogate a white woman
about allegations involving sex. As one contemporary southern newspaper
observed, the honor of a white woman was more important than the life of a
black man.16
And because most southern white men believed that black males
secretly lusted after ―their‖ women, they generally found such rape allegations
credible. Congressman George Huddleston of Birmingham, whom the
NAACP initially approached to represent the Scottsboro boys on appeal,
repulsed the overtures, observing that they had been ―found riding on the
same freight car with two white women, and that‘s enough for me!‖17
Scottsboro whites told an investigator from the American Civil Liberties
11. See, e.g., GUNNAR MYRDAL, AN AMERICAN DILEMMA: THE NEGRO PROBLEM AND
MODERN DEMOCRACY 565 (1944); GEORGE BROWN TINDALL, THE EMERGENCE OF THE NEW
SOUTH 1913–1945, at 174, 554 (1967); Todd E. Lewis, Mob Justice in the ―American Congo‖:
―Judge Lynch‖ in Arkansas During the Decade After World War I, 52 ARK. HIST. Q. 156, 179–84
(1993).
12. On these ―legal lynchings,‖ see MCMILLEN, DARK JOURNEY, supra note 9, at 206–17;
George C. Wright, By the Book: The Legal Executions of Kentucky Blacks, in UNDER SENTENCE OF
DEATH, supra note 9, at 250–70.
13. See, e.g., Bettis v. State, 261 S.W. 46, 47 (Ark. 1924); CHARLES S. MANGUM, JR., THE
LEGAL STATUS OF THE NEGRO 298 (1940); LAWRENCE D. RICE, THE NEGRO IN TEXAS 1874–1900,
at 253 (1971).
14. See, e.g., RICHARD C. CORTNER, A ―SCOTTSBORO‖ CASE IN MISSISSIPPI: THE SUPREME
COURT AND BROWN V. MISSISSIPPI 3–4, 8 (1986); Anne S. Emanuel, Lynching and the Law in
Georgia Circa 1931: A Chapter in the Legal Career of Judge Elbert Tuttle, 5 WM. & MARY BILL
RTS. J. 215, 228 (1996).
15. John Gould Fletcher, Letter to the Editor, Is This the Voice of the South?, 137 NATION 734,
734 (1933).
16. CARTER, SCOTTSBORO, supra note 6, at 134.
17. Excerpt from a Confidential Report on the Scottsboro Cases (May 7, 1931), microformed
on Papers of the National Association for the Advancement of Colored People, pt. 6, reel 2, frames
893–94 (August Meier ed., Univ. Publ‘ns of Am. 1982) [hereinafter NAACP Papers].
2009] SCOTTSBORO 383
Union (ACLU) that, ―We white people just couldn‘t afford to let these niggers
off because of the effect it would have on other niggers.‖18
The Scottsboro defendants received precisely the sort of ―justice‖ that
often prevailed in trials that substituted for lynchings. Both local newspapers
treated the defendants as obviously guilty even before the trial. The
hometown newspaper of the alleged victims, the Huntsville Daily Times,
―described the rapes as the most atrocious ever recorded in this part of the
country, a wholesale debauching of society.‖19
Judge Hawkins tried to assign
all seven members of the Scottsboro bar to represent the defendants, but all
but one of them declined. That one was Milo Moody, nearly seventy years
old and later described by one investigator as ―a doddering, extremely
unreliable, senile individual who is losing whatever ability he once had.‖20
The trials began on April 6, just twelve days after the train incident. A
crowd estimated at five to ten thousand gathered outside the courthouse,
which was protected by national guardsmen wielding machine guns. Hawkins
appointed as trial counsel a Tennessee lawyer, Stephen R. Roddy, who had
been sent to Scottsboro by the defendants‘ families to look after their
interests. Roddy was an alcoholic, and one observer reported that ―he could
scarcely walk straight‖ that morning.21
When Roddy objected to his
appointment on the grounds that he was unprepared and unfamiliar with
Alabama law, Hawkins appointed Moody, the local septuagenarian, to assist
him. Roddy was permitted less than half an hour with his clients before the
trial began. Defense counsel moved for a change of venue based on the
inflammatory newspaper coverage and the attempted lynching of the
defendants. But Sheriff Wann now denied that the defendants had been
threatened, and Judge Hawkins denied the motion.22
The state sought the death penalty against eight of the nine defendants—
all but the one who was identified as being only thirteen years old. The nine
were tried in four groups, beginning with Clarence Norris and Charley
Weems. Victoria Price was the main prosecution witness, and she testified
that the black youths had thrown the white boys off the train and then gangraped her and Bates. According to one secondhand account, Price testified
18. Hollace Ransdell, Report on the Scottsboro Case (May 27, 1931) [hereinafter Ransdell
Report], microformed on NAACP Papers, supra note 17, at pt. 6, reel 3, frame 175.
19. CARTER, SCOTTSBORO, supra note 6, at 20 (citation and internal quotation marks omitted).
20. Memorandum from Mrs. Hollace Ransdall [sic] on Visit to National Office on May 18,
1931 (May 19, 1931), microformed on NAACP Papers, supra note 17, at pt. 6, reel 3, frame 27;
CARTER, SCOTTSBORO, supra note 6, at 17–18; GOODMAN, STORIES OF SCOTTSBORO, supra note 6,
at 26.
21. CARTER, SCOTTSBORO, supra note 6, at 21–22 (citation and internal quotation marks
omitted).
22. Id. at 19–24.
384 MARQUETTE LAW REVIEW [93:379
―with such gusto, snap and wise-cracks, that the courtroom was often in a roar
of laughter.‖23
Judge Hawkins blocked defense counsel‘s efforts to elicit admissions that
the women were prostitutes and that they had had sexual intercourse with their
boyfriends the night before the train incident, which could have explained the
semen found in their vaginas during medical examinations. Testimony
provided by the examining doctors raised serious doubts as to whether the
girls had been raped: They were not hysterical when examined, nor had they
incurred any serious physical injuries. Moreover, Price had so little semen in
her vagina that a sequential rape by six men, as she alleged, was highly
improbable. Finally, the sperm found in the women was non-motile, which
virtually ruled out the possibility of intercourse within the preceding few
hours. In their testimony, the two women also provided inconsistent accounts
of various details of the incident, such as whether they had spoken with the
white boys on the train and how long the interracial fracas had lasted. One
man present when the train was stopped testified that he had not heard Price
make any rape allegations.24
However, the admission by Norris on cross-examination that the women
had been raped by all of the other eight defendants, though not by him,
severely undercut his defense. (It later came out that Sheriff Wann had
warned Norris that he would be killed if he did not admit that the girls had
been raped.) Defense counsel prodded the illiterate and confused Norris to
change his story, but he held firm. The defense called no witnesses and made
no closing argument.25
While the jury deliberated on the fate of Norris and Weems, the trial of
Haywood Patterson began. When the first jury returned to the courtroom to
announce guilty verdicts and death sentences, crowds in and out of the
courthouse erupted with delight. According to defense lawyer Roddy,
―[i]nstantly, a wild and thunderous roar went up from the audience and was
heard by those in the Court House yard where thousands took up the
demonstration and carried it on for fifteen or twenty minutes.‖26
Even though
Patterson‘s jury heard this commotion, Judge Hawkins refused to declare a
mistrial.27
The prosecution‘s case grew stronger with each trial, as previously
23. Ransdell Report, supra note 18, at frame 181; see also CARTER, SCOTTSBORO, supra note
6, at 24–26.
24. CARTER, SCOTTSBORO, supra note 6, at 26–30.
25. Id. at 33–35.
26. Letter from Stephen R. Roddy, Attorney, to the Friends and Relatives of the Nine Negro
Boys Charged with Rape, in Jackson County, Alabama (Apr. 11, 1931), microformed on NAACP
Papers, supra note 17, at pt. 6, reel 2, frame 627.
27. CARTER, SCOTTSBORO, supra note 6, at 35–38.
2009] SCOTTSBORO 385
unhelpful witnesses were dropped and the alleged victims improved their
stories with each recounting. Within a five-minute span on the witness stand,
Patterson contradicted himself as to whether he had seen the girls being raped
or indeed had seen them on the train at all. Several of the other defendants
also testified inconsistently. After less than twenty-five minutes of
deliberation, the jury convicted Patterson and sentenced him to death.28
Five of the defendants were prosecuted together in a third trial. The
state‘s case against them was even weaker because these defendants did not
incriminate each other on cross-examination, the women were less certain in
identifying them as the rapists, and one of the defendants was nearly blind
while another had such a severe case of venereal disease that raping a woman
would have been very difficult. The jury nonetheless returned five more
death sentences. Judge Hawkins declared a mistrial in the case of the last
defendant, Roy Wright, when the jury could not agree on whether to sentence
the thirteen-year-old to life imprisonment or to death—a sentence the
prosecution had not even sought. None of the four trials lasted more than a
few hours.29
B. Representation on Appeal
The Communist Party quickly realized the potential for propaganda and
fund-raising afforded by the Scottsboro episode, which it saw as the Sacco
and Vanzetti case of the 1930s. Communists denounced the trials as ―legal
lynchings‖ and assailed the ―parasite landlords and capitalist classes of the
South.‖30
Less radical voices also protested this ―barbarous penalty‖ imposed
on eight black youngsters.31
By contrast, the NAACP, which was generally
reluctant to intervene in criminal cases unless reasonably certain that the
defendants were innocent, was slow to act. The NAACP‘s hesitation enabled
the ILD, the legal arm of the Communist Party, to secure the defendants‘
consent to its representing them.32
Stung by criticism from supporters for its dilatory response and
discovering that ―public interest is so deep that we cannot afford not to be in
the case,‖ NAACP leaders aggressively challenged the ILD for control of the
boys‘ appeals.33
The NAACP convinced some black leaders in Chattanooga,
28. Id. at 38–43; GOODMAN, STORIES OF SCOTTSBORO, supra note 6, at 14–15.
29. CARTER, SCOTTSBORO, supra note 6, at 42–48.
30. Id. at 49 (citation and internal quotation marks omitted).
31. Id. at 50 (citation and internal quotation marks omitted).
32. Id. at 49–60; GOODMAN, STORIES OF SCOTTSBORO, supra note 6, at 7–8, 25–29.
33. Letter from Walter White, Secretary, NAACP, to Bob & Herbert (May 3, 1931),
microformed on NAACP Papers, supra note 17, at pt. 6, reel 2, frame 829; see also Letter from Roy
Wilkins, Assistant Secretary, NAACP, to Walter White, Secretary, NAACP (May 7, 1931),
microformed on id., frame 889 (noting that while the NAACP had been silent on the Scottsboro case,
386 MARQUETTE LAW REVIEW [93:379
which was home to several of the defendants, that communist involvement
would be a millstone around the boys‘ necks, and the defendants were
persuaded to retract their consent to ILD representation. The ILD responded
by publicly attacking the NAACP as ―[b]ourgeois [r]eformists‖ and ―secret
allies of the lynchers‖ who would help ―lead the boys to the electric chair.‖34
The communists declared that the boys could be saved only by mass protest,
not by appeals to the ruling class. They ridiculed the NAACP for its
willingness to ―kiss the rope that hangs their brothers, if only the rope is
blessed by a ruling class judge,‖ and they accused the association generally of
ignoring the interests of the black masses.35
In response, the NAACP accused the communists of using the case for
their own selfish advantage and warned that their incendiary rhetoric would
harm the defendants‘ chances of winning reversal on appeal or securing a
commutation of their sentences from the governor. Walter White, the general
secretary of the NAACP, told the mother of one of the boys, Eugene
Williams, that ―the odds against her son were terrific at best—that when Red
prejudice was added to Black, she would practically insure her boy‘s
execution by remaining tied up with the Communists.‖36
White even accused
the communists of calculating that ―the boys dead will be worth more for
propaganda purposes than alive.‖37
By contrast, the NAACP‘s strategy on
appeal would be to hire an eminent white lawyer from the South who would
avoid publicity and try to win reversal or commutation on narrow legal
grounds.38
the ILD and the Communist Party had been publicizing it and ―generally whooping it up‖ and that
this was causing ―no little embarrassment to the Association‖).
34. CARTER, SCOTTSBORO, supra note 6, at 56–57, 61–62 (citations and internal quotation
marks omitted).
35. Id. at 67 (citation and internal quotation marks omitted); see also Letter from William
Patterson, Secretary, ILD, to NAACP (June 30, 1933), microformed on NAACP Papers, supra note
17, at pt. 6, reel 2, frames 459–72 (arguing that the freedom of the Scottsboro boys could be won
―only by rousing the Negro masses in alliance with the white workers to a relentless struggle against
the whole system of national oppression of the Negro people,‖ and attacking the NAACP for trying
to block such alliances while placing excessive faith in the courts).
36. Letter from Walter White, Secretary, NAACP, to Bob & Herbert, supra note 33, at frame
826.
37. Letter from Walter White, Secretary, NAACP, to Messrs. Fort, Beddow & Ray (Aug. 19,
1931), microformed on NAACP Papers, supra note 17, at pt. 6, reel 4, frame 146; see also Letter
from Walter White, Secretary, NAACP, to Roy Wilkins, Assistant Secretary, NAACP (May 13,
1931), microformed on id., at reel 2, frames 973–75 (noting that the NAACP had cause to believe
that ―some of the Communists [felt] that if the boys [were] electrocuted after at least a semblance of
legal action to save them [had] been made, it [would have been] even more valuable for the
Communists in their appeal to Negroes for support‖).
38. Murder from Afar, PHILA. TRIB., Aug. 27, 1931, microformed on NAACP Papers, supra
note 17, at pt. 6, reel 8, frame 351; CARTER, SCOTTSBORO, supra note 6, at 69–72; see also Letter
from Walter White, Secretary, NAACP, to Ludwell ―Lud‖ Denny (Apr. 29, 1931), microformed on
2009] SCOTTSBORO 387
NAACP leaders were torn between wanting not to jeopardize the
defendants‘ chances of winning the support of moderate whites in the South
and wishing not to alienate those of its members who demanded a vociferous
condemnation of the white South for its willingness to execute the defendants
on dubious evidence. By distancing itself from the ILD, the NAACP
alienated the many blacks who saw little reason to repudiate the communists‘
assistance, which they saw as ―sincere and wholehearted.‖39
The editor of one
black newspaper observed that the NAACP had ―outlived its usefulness if it
now feels that fighting the spread of communism is more important than
fighting white Southerners who will lynch, massacre, and slaughter and
expect to get away with it.‖40
Another black editor accused the NAACP of
having an ―Uncle Tom attitude‖ in this case.41
Yet Walter White was
convinced that it would be ―suicidal‖ for the NAACP ―to be tied up in any
way with that outfit of lunatics [the communists].‖42
Most black newspaper
editors saw the battle between the NAACP and the ILD as ―deplorable‖43 and
a ―sad spectacle,‖44 and one observed that ―we have too few friends to have
the quarrel as to which we shall lend a helping hand in any given case.‖45
After months of repeatedly changing their minds over the choice of legal
representative, by the end of 1931 all of the defendants had settled on the ILD,
partly because of the NAACP‘s occasionally condescending attitude toward
them and their parents. For example, one NAACP official, William Pickens,
referred to some of the boys‘ parents as ―the densest and dumbest animals it
has yet been my privilege to meet‖—a statement that the ILD ensured the
parents heard about.46
The communists also sent small monthly checks to the
NAACP Papers, supra note 17, at pt. 6, reel 2, frames 748–49 (noting that this case would have been
―difficult enough to handle under normal circumstances, but the tactics of the Communists have
inflamed feeling against the boys to fever pitch‖ and observing that the only way to save the boys‘
lives was to find a lawyer, ―preferably an Alabamian, whose standing is such as to help mobilize
effectively the considerable sentiment which, we are informed, exists in Alabama among white
people of the decent sort, that the boys are innocent‖).
39. CARTER, SCOTTSBORO, supra note 6, at 69 (citation and internal quotation marks omitted).
40. Id. at 96 (citation and internal quotation marks omitted).
41. The Conservative N.A.A.C.P, OKLA. CITY BLACK DISPATCH, May 14, 1931, microformed
on NAACP Papers, supra note 17, at pt. 6, reel 8, frame 118.
42. Letter from Walter White to Bob & Herbert, supra note 33, at frame 828.
43. Editorial, This We Regret, CAL. NEWS, Jan. 7, 1932, microformed on NAACP Papers,
supra note 17, at pt. 6, reel 8, frame 469.
44. An Offensive Defense, CAROLINA TIMES, Jan. 9, 1932, microformed on NAACP Papers,
supra note 17, at pt. 6, reel 8, frame 507.
45. The Reds at Scottsboro, AFRO–AM. (Balt.), Jan. 9, 1932, microformed on NAACP Papers,
supra note 17, at pt. 6, reel 8, frame 489; see also CARTER, SCOTTSBORO, supra note 6, at 85–90.
46. Letter from William Pickens, Field Secretary, NAACP, to Walter White, Secretary, NAACP
(June 6, 1931), microformed on NAACP Papers, supra note 17, at pt. 6, reel 3, frames 355–57.
388 MARQUETTE LAW REVIEW [93:379
defendants‘ families and treated their parents with kindness and respect.47
In a final effort to win back control of the cases, the NAACP persuaded
Clarence Darrow to participate in the appeals.48
Not wishing to be perceived
as rejecting assistance from the nation‘s most eminent criminal defense
lawyer, the ILD professed eagerness to have Darrow‘s help. But the
organization insisted that Darrow sever his connections with the NAACP and
take orders from the ILD. Confronted with such an ultimatum, Darrow and
the NAACP withdrew from the case. One black newspaper predicted that the
consequence of Darrow‘s withdrawal ―is almost surely to be murder in
Scottsboro‖ and warned that the defendants‘ ―innocent blood will be a
crimson stain on the [ILD].‖49
Because communists generally viewed courts as simply ―instruments
of . . . class oppression,‖ they did not place much faith in litigation.50
Rather,
they favored ―revolutionary mass action outside of courts and bourgeois
legislative bodies.‖51
Communists believed that the Scottsboro cases could
educate the masses and increase party membership, especially among blacks.
Throughout the spring and summer of 1931, communists organized large
demonstrations in the North—often featuring the defendants‘ mothers—to
protest the boys‘ treatment and to petition Governor Benjamin Meeks Miller
of Alabama and President Herbert Hoover for redress. In Dresden, Germany,
communists threw rocks through the windows of the American consulate and
47. CARTER, SCOTTSBORO, supra note 6, at 91.
48. Letter from Walter White, Secretary, NAACP, to Clarence Darrow, Attorney (Aug. 31,
1931), microformed on NAACP Papers, supra note 17, at pt. 6, reel 4, frame 259 (stating that he had
hoped it would have been unnecessary to ask Darrow to enter the Scottsboro case, but that with the
white lawyers from Birmingham withdrawing, ―we are frankly up against what is probably the most
delicate and difficult situation of our history‖); see also Letter from Walter White, Secretary,
NAACP, to Willie Robinson [sic] (Sept. 11, 1931), microformed on id., frame 268 (expressing great
pleasure in telling Roberson that the NAACP had succeeded in retaining Darrow, ―the greatest
criminal lawyer in the United States if not in the world‖).
49. Murder in Scottsboro, PHILA. TRIB., Jan. 7, 1932, microformed on NAACP Papers, supra
note 17, at pt. 6, reel 8, frame 464; see also CARTER, SCOTTSBORO, supra note 6, at 97–103;
GOODMAN, STORIES OF SCOTTSBORO, supra note 6, at 37–38.
50. CARTER, SCOTTSBORO, supra note 6, at 138 (citation and internal quotation marks
omitted); see also Appeal to the American Workers for Effective Mass Action to Save the Scottsboro
Boys, DAILY WORKER (N.Y.), Jan. 20, 1932, microformed on NAACP Papers, supra note 17, at pt. 6,
reel 8, frame 532 [hereinafter Appeal to the American Workers] (asserting that the ―main function‖ of
courts ―is to administer law made specifically as a means of persecuting the Negroes‖).
51. CARTER, SCOTTSBORO, supra note 6, at 138 (citation and internal quotation marks
omitted); see also Appeal to the American Workers, supra note 50 (―[T]he hope for the nine
Scottsboro victims of American lynch democracy, does not lie in the chambers of the Supreme Court
of Alabama. It lies with the masses of American workers, who in vigorous protests and
demonstrations will show their determination to end lynch law and to stop Negro persecution. . . .
Confidence in the courts cannot bring justice. Only confidence in the might and power of the
organized efforts of the American working class is the method of obtaining the freedom of these
innocent boys.‖).
2009] SCOTTSBORO 389
condemned the ―bloody lynching of our Negro co-workers‖—a scene that was
repeated elsewhere in Europe that summer.52
Even in Tallapoosa County,
Alabama, communists used the ―Scottsboro lynch verdict‖ to organize black
sharecroppers into a union demanding higher wages and the release of the
boys; whites responded with violence and murder.53
By the summer of 1931, Governor Miller was receiving thousands of
abusive letters from around the world. One typical protest condemned ―the
brutal slave drivers of Alabama acting through a Ku Klux Klan judge and jury
inflamed by race hatred . . . to send nine innocent children to the electric
chair.‖54
ILD attacks on white Alabamians as ―lynchers‖ were reprinted in
local newspapers, increasing resentment toward the Scottsboro boys. Local
whites grew more defensive, insisting that the defendants had been given ―as
fair a trial as they could have gotten in any court in the world.‖55
The
Commission on Interracial Cooperation, which often supported the appeals of
southern blacks convicted in obviously unfair trials, refused to support the
Scottsboro defendants because of hostile public opinion. The governor‘s
secretary explained that Scottsboro had become ―a white elephant‖ for Miller
and that the ILD‘s inflammatory statements had ―tied his hands.‖56
One white
constituent warned the governor not to let any ―threat or demand from dirty
yankees or damn communists from the North and throughout the world . . .
sway you.‖57
Judge Hawkins confided to defense lawyer Roddy that he did
not ―really think the boys should be put to death, but . . . the Communists are
more of an issue than are the FACTS of the case.‖58
One white Alabamian
captured the view of many, observing that ―I might have been for acquittin‘
them at the first trial, but now after all this stink‘s been raised, we‘ve got to
52. CARTER, SCOTTSBORO, supra note 6, at 142 (citation and internal quotation marks
omitted); see also Fight for Doomed Negroes, N.Y. TIMES, July 1, 1931, at 9 (noting that
communists protesting Scottsboro were responsible for recent mob attacks on the American
consulates at Dresden and Leipzig, Germany); Communist Uprising Is Police Idea, BIRMINGHAM
AGE-HERALD, June 18, 1931, at 1 (noting that youth in Dresden threw bottles through the windows
of the American consulate containing messages stating, ―Down with the bloody lynch law on our
Negro comrades‖).
53. CARTER, SCOTTSBORO, supra note 6, at 121–30, 138–46, 167; Labor Defense Charges
―Murder,‖ N.Y. TIMES, July 18, 1931, at 30; Volleys Disperse Alabama Negroes, N.Y. TIMES, July
18, 1931, at 30.
54. CARTER, SCOTTSBORO, supra note 6, at 145 (citation and internal quotation marks
omitted).
55. Id. at 112 (citation and internal quotation marks omitted).
56. Letter from William Pickens, Field Secretary, NAACP, to Walter White, Secretary,
NAACP (June 1, 1931), microformed on NAACP Papers, supra note 17, at pt. 6, reel 3, frame 252.
57. CARTER, SCOTTSBORO, supra note 6, at 136 n.90 (citation and internal quotation marks
omitted).
58. Id. at 119 (citation and internal quotation marks omitted).
390 MARQUETTE LAW REVIEW [93:379
hang ‘em.‖59
C. Alabama Supreme Court
It was in this climate that the Scottsboro verdicts were appealed to the
Alabama Supreme Court. In recent decades, state supreme courts in the South
had become somewhat more protective of the procedural rights of black
criminal defendants, frequently reversing convictions, even in cases of murder
or rape, on grounds such as prejudicial racial statements by prosecutors, the
refusal of trial judges to change venue or grant defense counsel adequate time
to prepare, and the use of coerced confessions.60
To be sure, criminal justice
for southern blacks remained grossly unequal: Blacks still could not serve on
southern juries; black lawyers could not command fair hearings in southern
courtrooms; black witnesses were treated as less credible than white
witnesses; and the death penalty was never imposed on white rapists or on
men who raped black women. Still, some progress had been made. Yet in
explosive cases that generated outside criticism of the South or that were
otherwise perceived to threaten white supremacy, southern courts regressed in
their treatment of black defendants.61
Alabama whites were especially incensed by criticism over Scottsboro
because they felt that they deserved praise for avoiding a lynching. The
Scottsboro Progressive Age complimented local citizens for ―their patience
and chivalry‖62 after the alleged rapes, and the Chattanooga Daily Times
praised them for setting ―the rest of the South an impressive example in selfrestraint.‖63
A Georgia newspaper warned that appealing the convictions of
black men for raping white women was ―playing with fire‖; a hasty trial was
preferable to a lynching and indeed was ―a first step, and a very important
one.‖64
Many southern newspapers predicted a resurgence in lynchings if
outsiders persisted in criticizing trials such as those at Scottsboro.65
59. Id. at 136 (citation and internal quotation marks omitted).
60. E.g., Tannehill v. State, 48 So. 662, 662 (Ala. 1909); Williams v. State, 146 So. 422, 424
(Ala. 1933); Bell v. State, 20 S.W.2d 618, 622 (Ark. 1929); Graham v. State, 82 S.E. 282, 286 (Ga.
1914); State v. Jones, 53 So. 959, 961 (La. 1911); Byrd v. State, 123 So. 867, 870–71 (Miss. 1929);
Story v. State, 97 So. 806, 807 (Miss. 1923); Sykes v. State, 42 So. 875, 875 (Miss. 1907); MANGUM,
LEGAL STATUS OF THE NEGRO, supra note 13, at 343–49, 356–63; MCMILLEN, DARK JOURNEY,
supra note 9, at 197–223.
61. KLARMAN, FROM JIM CROW TO CIVIL RIGHTS, supra note 1, at 130–31.
62. CARTER, SCOTTSBORO, supra note 6, at 105 (citation and internal quotation marks
omitted).
63. Id. at 106 (citation and internal quotation marks omitted).
64. Emanuel, Lynching and the Law in Georgia, supra note 14, at 246–47 n.161 (quoting
Editorial, Playing with Fire, FORUM (Washington, Ga.), June 25, 1931) (internal quotation marks
omitted).
65. CARTER, SCOTTSBORO, supra note 6, at 105–16; see also The Steffens–Dreiser Nonsense,
unidentified newspaper, May 22, 1931, microformed on NAACP Papers, supra note 17, at pt. 6, reel
2009] SCOTTSBORO 391
When the Scottsboro appeal reached the state supreme court, its justices
were said to be seething with anger at the protests and threats directed at
them.66
The Communist Party newspaper, the Daily Worker, had called the
court an ―instrument of the Wall Street Imperialists,‖ which would surely
affirm the boys‘ convictions.67
Chief Justice John C. Anderson publicly
criticized such statements, which he said had been made with ―the evident
intent to bulldoze this court,‖68 and he insisted that the justices ―will not be
intimidated.‖69
In their appeals, the ILD lawyers briefly raised the issues of race
discrimination in jury selection and the inadequacy of defense counsel, but
they emphasized the unfairness of the trials and especially the mob‘s
influence on the juries. In reply, the state attorney general denied that ―a
curious mob‖ had influenced the outcome of the trials.70
The headline in the
Montgomery Advertiser‘s report of the oral argument observed, ―Negro
Partisans ‗Dictate‘ Course to High Court.‖71
The Alabama Supreme Court had previously reversed convictions in
similar cases of mob domination.72
Other southern courts in less publicized
cases had reversed convictions when defense counsel had been appointed
even a couple of days before trial.73
Yet on March 24, 1932, the Alabama
Supreme Court voted 6–1 to uphold the death sentences of four of the
defendants. The court granted a new trial to Eugene Williams because he had
been a juvenile—thirteen years old—at the time of conviction.74
The court
emphasized that the speed of the trials was ―highly desirable‖ because it
instilled greater respect for the law and that the presence of national
guardsmen surrounding the courthouse gave ―notice to everybody that the
strong arm of the state was there to assure the accused a lawful trial.‖75
The
8, frame 134 (probably appearing in the MONTGOMERY ADV. and applauding the citizens of Jackson
County for deporting themselves ―with dignity and self-restraint‖ and noting that prompt action like
that taken by the court in the Scottsboro cases is what critics of mob violence had always urged as a
substitute for lynchings).
66. CARTER, SCOTTSBORO, supra note 6, at 156.
67. Id. at 156 (citation and internal quotation marks omitted).
68. Id. (citation and internal quotation marks omitted); GOODMAN, STORIES OF SCOTTSBORO,
supra note 6, at 49.
69. Defers New Action in Scottsboro Case, N.Y. TIMES, Nov. 8, 1932, at 13.
70. CARTER, SCOTTSBORO, supra note 6, at 157.
71. Id. at 158 (citation and internal quotation marks omitted).
72. Seay v. State, 93 So. 403, 405 (Ala. 1922); Thompson v. State, 23 So. 676, 676 (Ala. 1898).
73. E.g., McDaniel v. Commonwealth, 205 S.W. 915, 918 (Ky. 1918); Stroud v.
Commonwealth, 169 S.W. 1021, 1022–23 (Ky. 1914); State v. Collins, 29 So. 180, 181–82 (La.
1900) (discussing numerous additional Louisiana cases).
74. Powell v. State, 141 So. 201, 213–14 (Ala. 1932), rev’d, 287 U.S. 45, 73 (1932).
75. Powell, 141 So. at 211, 213; see also CARTER, SCOTTSBORO, supra note 6, at 158 (internal
quotation marks omitted).
392 MARQUETTE LAW REVIEW [93:379
court also ruled sufficient the appointment of counsel on the morning of trial.
In a letter to the NAACP‘s Walter White, Chief Justice Anderson, the sole
dissenter, explained that the communists had ―been very imprudent and
injected a lot of irrelevant bunk into the controversy and instead of helping it
possibly injured these defendants.‖76
Anderson, who had much preferred that
―these defendants be tried under different circumstances,‖ regretted that his
colleagues had not been ―above permitting outside influence to prejudice
these defendants.‖77
As a reward for his efforts, Anderson received a
telegram from an ILD branch assailing him as a ―traitor to the masses‖ for his
willingness to abide by the majority‘s decision.78
The Montgomery Advertiser opined that the court‘s ruling ―should satisfy
all reasonable persons‖ that the Scottsboro boys had received fair trials.79
Yet
several other Alabama newspapers regretted that the court had not granted a
new trial to allay doubts regarding the defendants‘ guilt. The Birmingham
Age-Herald observed, ―[t]he fact remains that there was an element of mob
feeling in the air,‖80 and the Birmingham News insisted there was ―ground for
divergence of opinions concerning these cases.‖81
Moderate whites in
Alabama blamed the ruling on communist efforts at intimidation, which they
suspected the state jurists had ―leaned unconsciously backwards‖ to resist.82
A black newspaper similarly concluded, ―it is possible that the highest legal
tribunal in Alabama affirmed these death sentences because it did no[t] want
to appear as being swayed, cowed or bluffed by a group of radicals.‖83
Communists thought the ruling revealed the ―highest courts working hand in
glove with owners of America against [the] working class.‖84
76. Letter from John C. Anderson, Chief Justice, Supreme Court of Alabama, to Walter White,
Secretary, NAACP (Apr. 25, 1932), microformed on NAACP Papers, supra note 17, at pt. 6, reel 5,
frame 792.
77. Id.
78. CARTER, SCOTTSBORO, supra note 6, at 170 n.98 (citation and internal quotation marks
omitted).
79. Id. at 159 (citation and internal quotation marks omitted).
80. Id. (citation and internal quotation marks omitted).
81. Editorial, The Affirmation of the Scottsboro Cases, BIRMINGHAM NEWS, Mar. 25, 1932,
microformed on NAACP Papers, supra note 17, at pt. 6, reel 8, frame 586.
82. CARTER, SCOTTSBORO, supra note 6, at 159 (citation and internal quotation marks
omitted). See also Scottsboro Boys Doomed, SAVANNAH TRIB. (Ga.), Apr. 14, 1932, microformed
on NAACP Papers, supra note 17, at pt. 6, reel 8, frame 651 (―Even if the judges were inclined to be
more merciful, the bombarding of them with letters and telegrams, many of these containing threats,
would cause less favorable action.‖).
83. The Scottsboro Appeal, SAN ANTONIO INQUIRER, Apr. 8, 1932, microformed on NAACP
Papers, supra note 17, at pt. 6, reel 8, frame 631 (excerpting editorial from the HOUSTON DEFENDER,
Apr. 2, 1932).
84. Backs Conviction of Seven Negroes, N.Y. TIMES, Mar. 25, 1932, at 6 (quoting a telegram
from the ILD to Governor Miller of Alabama).
2009] SCOTTSBORO 393
The Daily Worker predicted that review by the U.S. Supreme Court—just
another ―capitalist court‖85—would be a ―mere gesture aimed at facilitating
the legal lynching of these children.‖86
A black newspaper in the North
professed greater faith in the high court, reasoning that ―America, grasping for
the moral leadership of the world, cannot afford to set the example of staging
a legal lynching.‖87
The liberal Nation agreed that the boys‘ prospects were
―very bright‖ because ―the conscience of the world [would] be profoundly
shocked‖ if the Court affirmed their convictions and thus ―encourag[ed] legal
lynching in the South.‖88
D. The U.S. Supreme Court
In 1932 the U.S. Supreme Court was hardly the champion of racial
equality that it would one day become in popular mythology. Around 1900,
the Court had sustained the constitutionality of laws mandating racial
segregation89 and disfranchising blacks,90 leading the fledging NAACP to
conclude in 1915 that the Court ―has virtually declared that the colored man
has no civil rights.‖91
To be sure, the Court in the second decade of the
twentieth century struck down residential segregation ordinances,92 certain
laws that promoted peonage (compulsory labor to discharge debts),93 and the
grandfather clause (a device insulating illiterate whites from the
disfranchising effect of literacy tests).94
But in 1927 the Court strongly
implied that state-mandated racial segregation in public schools was
constitutionally permissible,95 and in 1935 the Court would unanimously
sustain the exclusion of blacks from Democratic Party primaries—the only
85. CARTER, SCOTTSBORO, supra note 6, at 160 (citation and internal quotation marks omitted).
86. Id. at 160 (citation and internal quotation marks omitted).
87. IOWA BYSTANDER, Jan. 30, 1932, microformed on NAACP Papers, supra note 17, at pt. 6,
reel 8, frame 562.
88. The Scottsboro Case, 135 NATION 320 (1932), microformed on NAACP Papers, supra note
17, at pt. 6, reel 8, frame 745.
89. Berea Coll. v. Kentucky, 211 U.S. 45, 58 (1908); Plessy v. Ferguson, 163 U.S. 537, 550–52
(1896).
90. E.g., Giles v. Teasley, 193 U.S. 146, 166–67 (1904); Giles v. Harris, 189 U.S. 475, 485–88
(1903); Williams v. Mississippi, 170 U.S. 213, 225 (1898); see generally KLARMAN, FROM JIM
CROW TO CIVIL RIGHTS, supra note 1, at 8–60 (surveying the Court‘s performance in race-related
cases during the Jim Crow era).
91. NAACP, FIFTH ANNUAL REPORT: REPORT OF THE CHAIRMAN OF THE BOARD OF
DIRECTORS (1914), reprinted in 9 CRISIS 286, 293 (1915).
92. Buchanan v. Warley, 245 U.S. 60, 82 (1917).
93. United States v. Reynolds, 235 U.S. 133, 150 (1914); Bailey v. Alabama, 219 U.S. 219, 245
(1911).
94. Guinn v. United States, 238 U.S. 347, 367 (1915); Myers v. Anderson, 238 U.S. 368, 382–
83 (1915); see generally KLARMAN, FROM JIM CROW TO CIVIL RIGHTS, supra note 1, at 61–97
(surveying the Court‘s performance in race-related cases during the Progressive era).
95. Gong Lum v. Rice, 275 U.S. 78, 85–87 (1927).
394 MARQUETTE LAW REVIEW [93:379
elections that mattered in the one-party South.96
In 1932, virtually nobody
thought of the Court as a heroic defender of the rights of racial minorities.97
Nor had the Court yet taken substantial strides toward protecting the
procedural rights of criminal defendants in state courts. Prior to Moore v.
Dempsey98 in 1923, the Court had reversed state criminal convictions on
federal constitutional grounds in only a handful of cases involving race
discrimination in jury selection.99
In other cases, the Court had denied that the
Fourteenth Amendment converted the procedural protections of the federal
Bill of Rights into safeguards against state governments and had narrowly
construed the Due Process Clause of that Amendment, which does explicitly
constrain the states.100
Moore was the progenitor of modern American criminal procedure. The
case arose from an infamous racial massacre in Phillips County, Arkansas, in
1919. Black tenant farmers and sharecroppers had tried to organize a union
and hire white lawyers to sue planters for peonage practices. Local whites
cracked down with a vengeance. When whites shot into a church where black
unionists were meeting, blacks returned the gunfire. A white man was killed,
and mayhem quickly ensued. Marauding whites, supported by federal troops
ostensibly dispatched to quell the disturbance, went on a rampage, tracking
down blacks throughout the countryside and killing dozens of them. Seventynine blacks, and no whites, were prosecuted and convicted for their actions
during this ―race riot,‖ and twelve received the death penalty. The trials of
those twelve lasted only an hour or two each, and the juries, from which
blacks had been systematically excluded, deliberated for only a few minutes.
Huge mobs of angry whites surrounded the courthouse, menacing the
96. Grovey v. Townsend, 295 U.S. 45, 53–55 (1935) (sustaining the exclusion of blacks from
Democratic Party primaries when the decision to exclude was made by the party convention). But cf.
Nixon v. Condon, 286 U.S. 73, 89 (1932) (striking down a state law authorizing party executive
committees to exclude groups from participating in party primaries); Nixon v. Herndon, 273 U.S.
536, 541 (1927) (striking down a state law barring blacks from participating in primary elections).
See generally KLARMAN, FROM JIM CROW TO CIVIL RIGHTS, supra note 1, at 98–170 (surveying the
Court‘s performance in race-related cases during the interwar period).
97. Compare Zechariah Chafee Jr., Liberal Trends in the Supreme Court, 35 CURRENT
HISTORY 338, 339, 343 (1931) (noting a recent liberal trend on the Supreme Court in cases involving
economic regulation and freedom of speech, but saying nothing about such a trend on race issues)
with FRANK FREIDEL, F.D.R. AND THE SOUTH 92–94 (1965) (noting that some southern senators
opposed President Roosevelt‘s Court-packing plan in 1937 partly because they saw the Court as a
bulwark of white supremacy).
98. 261 U.S. 86, 91–92 (1923).
99. Rogers v. Alabama, 192 U.S. 226, 231 (1904); Carter v. Texas, 177 U.S. 442, 448–49
(1900); Neal v. Delaware, 103 U.S. 370, 397–98 (1881); Strauder v. West Virginia, 100 U.S. 303,
310, 312 (1880).
100. Twining v. New Jersey, 211 U.S. 78, 99 (1908); Maxwell v. Dow, 176 U.S. 581, 592–93
(1900); Hurtado v. California, 110 U.S. 516, 534–35 (1884).
2009] SCOTTSBORO 395
defendants and the jurors and threatening a lynching. Five of the defendants
appealed their death sentences to the Supreme Court, arguing that mobdominated trials violate the Due Process Clause of the Fourteenth
Amendment. By a vote of 6–2, the Supreme Court agreed, reversed the
convictions, and ordered a federal district judge to conduct a hearing on
whether the defendants‘ trials had been influenced by the mob.101
Moore offered some hope that the Scottsboro defendants might find
justice in the Supreme Court. Their lawyers raised three constitutional claims
in their appeal: mob domination of the trials in violation of the Due Process
Clause; intentional exclusion of blacks from the grand and petit juries in
violation of the Equal Protection Clause; and denial of the right to counsel in
violation of the Due Process Clause.102 On the day of the oral argument, extra
police officers patrolled the Supreme Court building and grounds; the plaza
facing the Capitol was cleared; and elaborate preparations were made to
preempt the mass communist demonstrations that had been promised.103
Mary Mooney, mother of the imprisoned California labor leader Tom Mooney
(who had been wrongfully convicted for the Preparedness Day bombing in
San Francisco in 1916), attended the Court session, noting her interest in
seeing that other mothers‘ sons received justice.104
Several of Alabama‘s
congressmen also attended the argument, as did an unusually large number of
blacks.105
A few weeks later, the Court reversed the defendants‘ convictions on the
ground that the right to counsel had been denied, declining to reach the other
two issues.106
Perhaps the justices chose the basis for decision that they
deemed least controversial. For the Court to have reversed the Scottsboro
convictions on the basis of Moore might have required basic changes in Jim
Crow justice: The Scottsboro trials were not quite so farcical as those of the
Phillips County defendants. The Scottsboro boys received a genuine defense;
their trials lasted for several hours (not forty-five minutes); the juries trying
them deliberated more than the five minutes in Moore; their cases did not
101. RICHARD C. CORTNER, A MOB INTENT ON DEATH: THE NAACP AND THE ARKANSAS
RIOT CASES 7–23 (1988); KLARMAN, FROM JIM CROW TO CIVIL RIGHTS, supra note 1, at 98, 120–
23; O.A. Rogers, Jr., The Elaine Race Riots of 1919, 19 ARK. HIST. Q. 142, 142–50 (1960).
102. See Brief for Petitioners at 3–4, 34–62, Powell v. Alabama, 287 U.S. 45 (1932) (Nos. 98,
99, and 100), reprinted in 27 LANDMARK BRIEFS AND ARGUMENTS OF THE SUPREME COURT OF THE
UNITED STATES: CONSTITUTIONAL LAW 299–300, 330–58 (Philip B. Kurland & Gerhard Casper
eds., 1975).
103. Guarded High Court Hears the Negro Pleas, N.Y. TIMES, Oct. 11, 1932, at 19,
microformed on NAACP Papers, supra note 17, at pt. 6, reel 8, frame 743.
104. Id.; Hugo Adam Bedau & Michael L. Radelet, Miscarriages of Justice in Potentially
Capital Cases, 40 STAN. L. REV. 21, 98 (1987).
105. Guarded High Court Hears the Negro Pleas, supra note 103.
106. Powell, 287 U.S. at 73.
396 MARQUETTE LAW REVIEW [93:379
raise the broader implications of the Phillips County race riot; and they had
not been tortured into confessing.107
Similarly, to invalidate their convictions
because of race discrimination in jury selection would have been far more
provocative to white southerners because preserving white supremacy in the
courtroom required excluding blacks from juries.108
By contrast, overturning
the convictions because the defendants had been denied the right to counsel
was unlikely to affect the outcome of any retrials or Jim Crow justice in
general.109
Prior to 1932, the Court had never ruled that due process requires the
states to provide counsel to indigent defendants in capital cases, but neither
had it rejected that position. Every state court confronting that issue had
required the government to appoint counsel in such circumstances.110
To be
sure, Ozie Powell, whose appeal was the focus of the Supreme Court‘s first
intervention in Scottsboro, had received a court-appointed lawyer. He made
two arguments as to why this appointment failed to satisfy federal
constitutional standards.111
First, the state had not afforded him adequate
opportunity to hire counsel of his own choice. Second, the court appointment
was inadequate because it had been made the morning of the trial, and thus
defense counsel was denied an adequate opportunity to consult clients,
interview witnesses, and prepare a defense.
The Alabama court had deemed this last-minute appointment of counsel
sufficient to satisfy the state constitutional requirement of a court-appointed
lawyer in capital cases. In general, the U.S. Supreme Court has no authority
to review state court interpretations of state law. Thus, for the Court to
reverse Powell‘s conviction, it would have had to construe the Due Process
Clause of the Fourteenth Amendment to require the assistance of counsel in
capital cases. American constitutional history reveals that the justices are
least reluctant to expand constitutional rights when doing so involves holding
a few renegade states to the norm already espoused by the vast majority.112
As of 1932, not a single state had rejected the right of indigent defendants in
capital cases to state-appointed counsel. Indeed, one reason that state courts
107. See generally Brief for Respondent at 27–28, Powell, 287 U.S. 45 (Nos. 98, 99, and 100),
reprinted in 27 LANDMARK BRIEFS, supra note 102, at 399–400 (arguing that the mob-domination
claim was stronger in Moore than in Powell).
108. See KLARMAN, FROM JIM CROW TO CIVIL RIGHTS, supra note 1, at 273.
109. Alfred J. Cilella & Irwin J. Kaplan, Note, Discrimination Against Negroes in Jury Service,
29 ILL. L. REV. 498, 505–06 (1934).
110. Otto M. Bowman, Comment, Constitutional Law—Due Process—Right of Counsel, 12
OR. L. REV. 227, 228–30 (1933).
111. Brief for Petitioners at 48–59, Powell, 287 U.S. 45 (Nos. 98, 99, and 100), reprinted in 27
LANDMARK BRIEFS, supra note 102, at 344–55.
112. Michael J. Klarman, Rethinking the Civil Rights and Civil Liberties Revolutions, 82 VA. L.
REV. 1, 16–17 (1996) (listing examples).
2009] SCOTTSBORO 397
had not yet considered whether the Due Process Clause of the Fourteenth
Amendment guaranteed such a right is that all of them confronting the issue
had interpreted their own state constitutions to do so.
Once the justices determined that due process required the appointment of
counsel for indigent capital defendants, reversing Powell‘s conviction was
easy. First, Powell had been denied the opportunity to hire a lawyer of his
own choice. Second, to most disinterested observers, the trial judge‘s
appointment of counsel had been obviously inadequate. At the trials,
although defense counsel did cross-examine prosecution witnesses, they made
only a feeble effort to change the trial venue, presented neither opening nor
closing arguments, and called none of their own witnesses other than the
defendants, some of whom implicated each other in a desperate effort to avoid
the death penalty.113
The Scottsboro trials may not have been quite the sham
affair under review in Moore, yet most lawyers would have considered
obviously inadequate the representation afforded to the defendants.
Moreover, the trial record revealed a high probability that the defendants
were innocent—a circumstance likely to be significant to Supreme Court
justices reviewing their convictions, even if technically irrelevant to the merits
of their appeal. Because criminal procedure safeguards often shield the guilty
from punishment, they are usually controversial, and the justices are probably
more inclined to identify new rights in cases where defendants have a strong
claim of innocence. As we have seen, the medical evidence introduced at the
Scottsboro trials raised serious doubts as to whether any rape had occurred, and
the accusers had provided inconsistent testimony.114
Moreover, the women
possessed a clear motive for fabrication: avoiding a possible Mann Act
prosecution for traveling across state lines for immoral purposes (prostitution).
Many newspapers, even in parts of the South, applauded the high court‘s
decision in Powell. The Richmond Times-Dispatch went so far as to say that
the ruling ―will be welcomed throughout the country, with the possible
exception of Alabama.‖115
The New York Times likewise hailed the ruling,
which it said ―ought to abate the rancor of extreme radicals, while confirming
the faith of the American people in the soundness of their institutions and
especially in the integrity of their courts.‖116
Professor Felix Frankfurter of
113. See Brief for Petitioners at 9–14, 51–59, Powell, 287 U.S. 45 (Nos. 98, 99, and 100),
reprinted in 27 LANDMARK BRIEFS, supra note 102, at 305–10, 347–55 (enumerating the
inadequacies of defense counsel).
114. See supra text accompanying notes 23–24.
115. The Scottsboro Case, RICHMOND TIMES-DISPATCH, Nov. 9, 1932, at 10.
116. The Scottsboro Case, N.Y. TIMES, Nov. 8, 1932, at 20. For other newspapers applauding
the decision, see The Scottsboro Case, N.Y. HERALD TRIB., Nov. 8, 1932, at 20; The Scottsboro
Cases, BALT. SUN, Nov. 9, 1932, at 10 (noting that the decision is ―in conformity with the principles
of fair dealing and will awaken approving echoes in every part of the nation‖); Righteously
398 MARQUETTE LAW REVIEW [93:379
the Harvard Law School called the decision ―a notable chapter in the history
of liberty‖ and observed that the same Court that had recently served the
interests of property owners was now protecting ―illiterate‖ and ―vagrant‖
blacks from oppression.117
A black newspaper proclaimed the ruling ―a great
stroke in the name of justice,‖118 and the NAACP saw it as a ―vindicat[ion]‖
of its view that victories for racial justice ―are best won by strictly legal
means.‖119
By contrast, the Daily Worker condemned Powell for instructing
Alabama authorities on ―how ‗properly‘ to carry through such lynch
schemes.‖120
The liberal lawyer Morris Ernst likewise assailed the decision as
―empty and meaningless‖ and ―cunningly uncourageous‖ because it
disregarded the issues of ―deep social significance‖ and left the defendants in
―horrid shape‖ for a retrial, which was likely to feature a half-hearted lawyer
―who will saunter . . . before a white jury while mobs outside sing anthems
and shout for hangings.‖121