On appeal to the Alabama Supreme Court, the defense argued 1) the inadequacy of the defense counsel, 2) the fact that the boys’ were illiterate and 3) they never consulted with an attorney. Judge Hawkins settled the issues of the defense attorney, but ignored the fact that the boys’ had received inadequate counsel, and that Blacks were systematically excluded from Alabama’s juries.
When discussing the issue of mob influence at the trial, Judge Hawkins cited the Leo Frank case (an American man who became the only known Jew in history to be lynched on American soil), and said that Justice Holmes (American jurist who served on the Supreme Court of the United States from 1902 to 1932), might have had a different decision of he had lived a little closer to the South.
The Alabama Supreme Court found that they would uphold the decision of the trial court, except for one of the defendants, Eugene Wilson, because he was a juvenile at the time of trial.
Despite their outspoken disdain for the legal process, the ILD officials retained Walter Pollak, one of the nation’s most eminent constitutional attorneys. After a preliminary hearing on May 27, 1923, the Supreme Court agreed to hear the case. The arguments delivered were substantially the same as before the Alabama court with one exception: Attorney Pollak stressed the jury question, contending that there had not been any Blacks on the Jackson County juries since the reconstruction.
The reconstruction involved policies implemented between 1863 and 1877 when the nation focused on winning the Civil War, abolishing slavery, defeating the Confederacy, and reconstructing the nation and the Constitution. The Supreme Court had restricted itself to one question, and Justice Sutherland (appointed to the United States Supreme Court) went on to say, that the issue was whether the defendants were in substance, denied the right of counsel, and if so, whether such denial infringes the due process clause of the Fourteenth Amendment. However, there was a crucial question: What constitutional peg would support this possible decision?
The solution was the due process clause of the Fourteenth amendment. In Hurtado v. California, the Supreme Court had denied that the defendant’s right to due process in the state court included the first eight Amendments to the Constitution. In the same decision, however, the court described due process in extremely vague terms.
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