In 1931, in the Scottsboro case, nine Black boys were accused of raping two Southern women in the state of Alabama. The boys were arrested and the National Guard was called out to protect the defendants while they were being held in jail on rape charges. An article written by The New York Times stated that the guardsmen had prevented a mass lynching. The local paper, Scottsboro Progressive Age, and citizens, considered the evidence conclusive with regard to their quilt.
Judge Hawkins, the local judge, assigned seven members of the Scottsboro Bar to represent the Black boys, and only one accepted the position. Judge Hawking was a member of the local community, and it was believed that his objective was to prevent a lynching, and not necessarily to sort out the truth.
The defendant’s attorney, Stephen Roddy, who was not a criminal law attorney, opened the defense case with a petition for a change of venue, based on the inflammatory news stories in the Jackson County Sentinel, and the Scottsboro Progressive Age publication, that Sheriff M. L. Wann had asked for the National Guardsmen.
The State responded by recognizing there was some evidence that the stories in the local papers affected the public opinion. However, the State chose not to grant a change of venue, nor was a mistrial granted based on the circus-like atmosphere in the courtroom during the trial. The eight Scottsboro boys were found guilty, and sentence to be handed down.
At the time of the trial the International Labor Defense of New York City demanded a change of venue, and declared that Judge Hawkins (who presided at the trial) would be held responsible for the boys’ fate. The Communist party, it was believed, used this case to gain the support of the Blacks for their own cause.
The National Association for the Advancement of Colored People (NAACP), who had initially been interested in this case because it was receiving national attention, withdrew their support by the time of the appeal. This allowed the International Labor Defense (ILD) to use the case for its own cause. Walter White (a spokesman for Blacks in the United States for almost a quarter of a century), of the NAACP, and Clarence Darrow (a lawyer and leading member of the American Civil Liberties Union), were credited with the success the case received at the appeal’s stage.
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.
It was that the law of the land in each State, which derives its authority for the inherent and reserved powers of the State, exerted within the limits of those fundamental principles of liberty and justice, which lie at the base of all our civil political institutions. Due process required no particular form. The people could institute new methods of procedures so long as these were in the furtherance of the public good.
Justice Sutherland declared that the “right to have counsel heard had been so accepted by the States that it had become an integral part of due process”. He concluded that the “right to counsel when necessary is the logical consequence from the constitutional right to be heard by counsel.” The cases were reversed and remanded to the lower court.
What the court was saying under due process, is that one of those aspects of afforded liberty as part of Anglo-American criminal justice, (from the prospective of 1932), is that individuals were entitled to the right of effective counsel on the state level in capital cases. Justice Sutherland also applied some of the Six Amendment rights to the States, because the court picks and chooses particular rights.
It does not suggest that every criminal case on the State level, or every felony, has the right to counsel. The Sixth Amendment to the United States Constitution is the part of the United States Bill of Rights which sets forth rights related to criminal prosecutions in federal courts. The Supreme Court has applied the protections of this amendment to the states through the Due Process Clause of the Fourteenth Amendment.
Another interesting point is that only once at the early part of the decision, does Justice Sutherland refer to the group as Negroes, and that is the only racial reference in the decision. The court was going out of its way to sort of slap the Southern court’s hand, but was not giving them a fully obvious scolding. On the racial question, regarding the jurors being selective exclusively from the White community, the court stated that it did not have to approach that question, because it was going to rest its decision on the due process right to counsel.
Historically speaking, the South had some of the best legal aid support in the nineteenth century. However by the nineteen-twenties and thirties, what you had was the practice of each state determining its own rules, and the South having weak legal aid organizations.
In the urban North and California, you had the beginning of modern Legal Aid offices. The practice that went on, of Judge Hawking appointing attorneys from the Bar, was not all that unusual, and the quality of criminal lawyers at that time was believed not that good. Also, what the court stated is that a defendant should have good counsel in capital cases.
When we look at these decisions directed toward the South, it is one thing for the court to say this, and another for it to implement the decision. Thus, hostility developed between the Southern judiciary, and the Supreme Court. It is not all that clear what affect it had on local Southern cases, since not all of the cases reach the Supreme Court, and the NAACP and IDF could not handle every case.
Finally, there had been an American Civil Liberties Union report that both victims were prostitutes and lived in the Black part of town. The fact that their clients were universal was never published by the Southern newspapers because it was inconsistent with the cultural Southern notions that dedicated that era.
This went along with the feeling in the South that Blacks were less passive and more incline to violent or aggressive. This was further enhanced by a sense of hostility by the Supreme Court and the Northerners, the idea that the communists were in the South to organize the Blacks and laborers, and the general hostility towards the union tradition.