The Scottsboro Boys were nine black teenage boys accused of rape in Alabama in 1931. The landmark set of legal cases from this incident dealt with racism and the right to a fair trial. The case includes a frameup, all-white jury, rushed trials, an attempted lynching, angry mob, and miscarriage of justice.
On March 25, 1931, several people were hoboing on a freight train traveling between Chattanooga and Memphis, Tennessee. Several white boys jumped off the train and reported to the sheriff they had been attacked by a group of black boys. The sheriff deputized a posse, stopped and searched the train at Paint Rock, Alabama, arrested the black boys, and found two white girls who accused the boys of rape. The case was first heard in Scottsboro, Alabama in three rushed trials, where the defendants received poor legal representation. All but the twelve-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. But with help from the American Communist Party, the case was appealed. The Alabama Supreme Court affirmed seven of the eight convictions, and granted thirteen-year-old Eugene Williams a new trial because he was a juvenile. Chief Justice John C. Anderson dissented however, ruling that the defendants had been denied an impartial jury, fair trial, fair sentencing, and effective counsel.
The case was 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 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. After a new series of trials, the verdict was the same: guilty. The cases were ultimately tried three times. For the third time a jury—now with one black member—returned a third guilty verdict. 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. One was shot in prison by a guard. Two escaped, were charged with crimes, and were sent back to prison. Clarence Norris, the oldest defendant and the only one sentenced to death, escaped parole and went into hiding in 1946. He was pardoned by George Wallace in 1976 after he was found, and wrote a book about his experiences. The last surviving defendant died in 1989.
The Scottsboro Boys, as they became known, at the time were defended by many in the North and attacked by many in the South. The case is now widely considered a miscarriage of justice that led to the end of all-white juries in the South. The case has inspired and has been examined in literature, music, theatre, film and television.
On March 25, 1931, on the Southern Railway line between Chattanooga and Memphis.[1][2] nine black youths were "hoboing" on a freight train with several white males and two white women.[3]
A fight began between the white and black groups near the Lookout Mountain tunnel, and the whites were kicked off the train. The train was searched by a posse in Paint Rock, Alabama where they were ordered to "capture every Negro on the train".[4] The posse arrested the black boys for assault.[5]
The boys arrested were Olen Montgomery (age 17), Clarence Norris (age 19), Haywood Patterson (age 18), Ozie Powell (age 16), Willie Roberson (age 16), Charlie Weems (age 16), Eugene Williams (age 13), and brothers Andy (age 19) and Roy Wright (age 12).
The posse came across Ruby Bates and Victoria Price, who said [6] they had been raped by the black boys. A doctor examined the white women. A widely shown photo displays the two women shortly after the arrests in 1931.
In the Jim Crow South, a black male risked lynching by simply looking at a white woman,[7] and word quickly spread of the arrest and rape story. Soon a lynch mob gathered at the jail in Scottsboro, demanding the youths be surrendered.[8]
Sheriff Matt Wann stood in front of the jail and addressed the mob. He said he would kill the first person to come through the door. He then 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. He was not touched by anyone. He walked across the street to the courthouse where he telephoned Governor Benjamin M. Miller[9] who then called in the National Guard to protect the jail[10] before taking the defendants to Gadsden, Alabama for indictment and to await trial by the all-white grand jury. Although rape was potentially a capital offense, the defendants were not allowed to consult an attorney. Most were illiterate.
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.[11] Courthouse access required a permit due to the salacious nature of the testimony expected.[12] As the Supreme Court later described this situation, "the proceedings ... took place in an atmosphere of tense, hostile, and excited public sentiment."[13]
The pace of the trials was extremely 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.[12] The judge persuaded Stephen Roddy, a Chattanooga 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.[14] He agreed, "I will go ahead and help do anything I can."[15]
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[16] describing the crowd as "impelled by curiosity".[15][17] Judge Hawkins found that the crowd was curious and not hostile.[18]
The attorneys were not given time to conduct an investigation, nor to research the law.[19] There were three trials, and some of the defendants were juveniles tried as adults.[20]
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 boys had a gun, and that they all raped her at knifepoint. During Attorney Roddy's cross-examination, Price livened her testimony with wisecracks that brought roars of laughter.[21]
Dr. Bridges testified that his examination of Victoria Price found no vaginal tearing, and that she had had semen in her for several hours. Ruby Bates failed to mention that either of the girls were raped until she was cross-examined.[22] 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.[23]
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 until the train pulled into Paint Rock.
Defendant Clarence Norris stunned the courtroom by implicating the other defendants. He denied participating in the fight or even being in the gondola car where the fight took place, alleging that he saw the rapes by the other blacks from atop the next boxcar.[22][24] The defense put on no further witnesses.
During closing, the prosecution thundered "If you don't give these men death sentences, the electric chair might as well be abolished."[25] The defense made no closing argument at all—not even against the death penalty for their clients.[25]
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 imposing the death sentence on both Weems and Norris.[26]
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, struck up Hail, Hail the Gang's All Here and There'll be a Hot Time in the Old Town Tonight.[26][27] The celebration was so loud that it was likely heard by the second jury inside. After the outburst, defense moved for a mistrial, but Judge Hawkins denied the motion and testimony continued.[28] The second trial continued.
During the second trial's prosecution testimony, Victoria Price stuck with her story mostly, stating flatly that Patterson raped her. She also accused Patterson of shooting one of the white youths. Price also volunteered "I have not had intercourse with any other white man but my husband. I want you to know that."[26][27]
Dr. Bridges repeated his testimony from the first trial.[27] Other witnesses testified that "the negroes" had gotten out of the same gondola car as Price and Bates, and a farmer claimed to have seen white women [on the train] with the black youths.[29]
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, claiming he had not even seen "any white women" until the train "got to Paint Rock".[30]
The younger Wright brother testified that Patterson was not involved with the girls, but that nine black boys had sex with the girls.[27] 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 to also have been on top of the boxcar, and that Clarence Norris had a knife.[31]
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 even know any of it had happened at all.[32] The jury quickly convicted Patterson and sentenced him to death by electrocution.[33]
This trial began within minutes of the previous case. Again the jury had to be sent out while the previous trial's guilty verdict was read.[34]
Once again Victoria Price repeated her testimony, adding that the black boys split into two groups of six to rape her and Ruby Bates. Price also accused Eugene Williams of holding the knife to her throat, and accused all the other boys of having knives.[35] Under cross examination she went into detail,[33] adding that someone also held a knife to the white boy, Gilley, during the rapes.[33]
This trial was also interrupted for a guilty verdict from the previous trial, this time without uproar. Ruby Bates then took the stand to identify all five defendants as among the twelve entering the gondola car, putting off the whites, and "ravishing" her and Price.[33]
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. He also testified that defendant Willie Roberson was "diseased with syphilis and gonorrhea, a bad case of it." He also admitted that Price told him that she had had sex with her husband and that Bates had earlier had intercourse as well.[36]
The defense then called the only witnesses they had had time to find—the defendants. No new evidence came up.
Next prosecution witnesses testified Roberson had run over train cars leaping from one to another, and that he was in much better shape than he claimed.[36] Sim Gilley testified that he saw "every one of those five in the gondola",[37] 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.[37]
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 12-year-old Roy Wright[38] was too young for the death penalty and did not seek it. The prosecution presented only testimony from Price and Bates. His case went to jury at nine that evening, with both juries deliberating at the same time.
At nine on Thursday morning April 9, 1931 the five defendants in Wednesday's earlier trial were all found guilty. Roy Wright's jury could not all agree, 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. Hawkins declared a mistrial.[39]
The eight convicted defendants were assembled on April 9, 1931 and sentenced to death by electrocution. The Associated Press reported that the defendants were "calm" and "stoic", as Judge Hawkins handed down the death sentences one after another.[39]
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 just seventy-two hours before the defendants were scheduled to die. Their cells were next to the execution chamber, and they heard the July 10, 1931 execution of William Hokes[40], later recalling that he "died hard".[41]
After a demonstration in Harlem, the Scottsboro case came to the attention of the American Communist Party. Chattanooga Party member James Allen edited the Communist Southern Worker, and publicized "the plight of the boys".[42] The Party used its legal arm, the International Labor Defense (ILD), to take up their cases,[43] persuading the defendants' parents to let them champion their cause, and retaining attorneys Joseph Brodsky and George W. Chamlee.
The NAACP also offered to handle the case, offering the services of famed attorney Clarence Darrow. However, the Scottsboro defendants decided to let the ILD handle their appeal.[38]
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 black and white clientele.[44] Chamlee offered Hawkins affidavits to that effect, which the Judge forbade him to read out loud. The defense argued that this evidence proved that the two women had likely lied at trial.[45] Chamlee offered the Scottsboro uproar 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 no opportunity for counsel to prepare their cases, had their juries intimidated by the crowd, and finally, that it was unconstitutional to exclude blacks 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 thirteen-year-old Eugene Williams a new trial because he was a juvenile, saving him from immediate threat of the electric chair.[46]
The Court upheld the lower court's change of venue decision, it 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."[47]
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".[47] Again, the Court affirmed these convictions as well. Thus, 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.[48] 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, a jury free from bias or prejudice, and, above all, from coercion and intimidation."[49]
He pointed out that the National Guard had shuttled the defendants back and forth each day from jail, and that "this fact alone was enough to have a coercive effect on the jury".[49] Anderson criticized how the defendants were represented. He noted that attorney 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."[49] Moreover, they "would have been represented by able counsel had a better opportunity been given".[49] Justice Anderson also pointed out the failure of the defense to make closing arguments as an example of underzealous defense representation.[49] About the courtroom outburst, Justice Anderson noted that "there was great applause ... and this was bound to have influence".[50]
He noted also that the punishment for rape ranged between ten years and death, that some of the boys 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."[50]
The case went to the United States Supreme Court on October 10, 1932, amidst tight security. The ILD retained Walter Pollak[51] 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, second, because of the strange attorney appointment and 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.[52]
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 Chief Justice Charles Evans Hughes, the Court found the defendants had been denied effective counsel. Chief Justice Anderson's previous dissent was quoted repeatedly in this decision.
The Court pointedly 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. The problem was instead with the way Judge Hawkins "immediately hurried to trial".[53]
This victory did not find the Scottsboro defendants innocent, ruling only that 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, Alabama. This was near homes of the alleged victims and in Ku Klux Klan territory.[54]
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.[54]
The two years that had passed since the first trials had not dampened community hostility for the Scottsboro Boys. But others felt they were victims of Jim Crow justice.
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."[55]
Leibowitz asserted his trust in the "God fearing people of Decatur and Morgan County"[55] then made a pretrial motion to quash the indictment on the ground that blacks were 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."[55]
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".[56] He next 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 seemed to not comprehend what he was accusing them of. It was as if the exclusion was unconscious.[57] (Note: Since most blacks could not vote after having been disfranchised by the Alabama constitution, the local juries 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 had called a John Sanford, an African American of Scottsboro. When Knight started treating him with disrespect, Leibowitz leapt to his feet and said, "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." [58]
The judge abruptly interrupted Leibowitz[59] While the motion was denied, this legal move later led to an astonishing second decision from the U.S. Supreme Court.
Judge Horton called the first case against Haywood Patterson and began jury selection. Leibowitz objected that African-American jurors had been excluded from this jury pool also. He called the jury commissioner, asked if there were any blacks on the juror rolls, then suggested his answer was not honest.[56] This questioning of a white official went over badly with the locals, who "chewed their tobacco meditatively".[60] The National Guard posted five men with fixed bayonets in front of Leibowitz's residence that night.[60] The jury was selected by the end of the day on Friday and sequestered in the Lyons Hotel.[60]
A large crowd gathered outside the court house for the start of the Haywood Patterson trial on Monday, April 2. Without the "vivid detail" she had used in the Scottsboro trials, Victoria Price took only sixteen minutes to tell her story.[61] The defense had what she had said before under oath and 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.[61]
Leibowitz used a thirty-two-foot model train to illustrate the various points of his defense,[61] set up on a table in front of the witness stand. When asked if the model train in front of her was like the one where she claimed she was raped, she cracked, "It was bigger. Lots bigger. That is a toy."[61] Leibowitz later conceded that Price was "one of the toughest witnesses he ever cross examined".[62] 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."[61] The attorney tried to question her about a conviction for fornication and adultery in Huntsville, but the court sustained a prosecution objection.
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 had spent the evening in a "hobo jungle" in Huntsville 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.
As the historian James Goodman put it: "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."[64]
Many of the whites in the court room undoubtedly disliked Leibowitz for being a Jew from New York hired by the Communists, and for treating a southern white women, even a low-class one, as a hostile witness.[64] 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".[64] 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.
Another time Judge Horton knew 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."[65] 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."[66]
Leibowitz systematically dismantled each prosecution witness' story under cross-examination. He got Dr. Bridges to agree on cross examination that "the best you can say about the whole case is that both of these women showed they had sexual intercourse?"[67] 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 not seeing the women until they got off the train. The Posse member Tom Rousseau made the same claim initially, but on 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, later admitting 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 proving Dobbins could not have seen everything he claimed. Dobbins also insisted seeing the girls' wearing women's clothing, although other witnesses had testified they were in overalls.[68]
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 he had become convinced the defendants were innocent.[69]
Leibowitz began his defense by calling Chattanooga resident Dallas Ramsey, who testified that his home was next to the hobo jungle mentioned earlier and that he had seen both Price and Bates get on a train there with a white man on the morning of the alleged rape.[70]
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.[71]
Leibowitz next called Lester Carter, who testified that he had intercourse with Bates, and a Jack Tiller 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, and Price had asked young Orville Gilley to confirm that she had been raped. However, Gilley had told her to "go to hell". Morgan County Solicitor Wade Wright cross-examined him. 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.[72]
Five of the original nine Scottsboro defendants testified that they had not seen Price and Bates until 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.
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, while he was not a participant, he had seen the fight with the white boys from his vantage point from between a box car and a gondola car, where he was hanging on. He said he saw the white boys 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. However, they pretty much held their own.[73]
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".[74] 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."[74]
Just after the defense rested "with reservations", someone handed Leibowitz a note. The attorneys approached the bench for a hushed conversation followed by a short recess. Leibowitz called one final witness. Ruby Bates had been notably absent. She'd 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.[59] Now, two guardsmen with bayonets opened the courtroom doors and Bates entered, "in stylish clothes, eyes downcast".[75]
Every head turned. Judge Horton stared, the prosecutors seethed, and her companion Victoria Price, brought out for Bates to identify, glared. Attorney General Knight warned Price to "keep your temper".[75] The young girl, alleged victim of "the worst crime in the state", was going to testify. After so many witnesses' stories crumbling under cross-examination, Bate's testimony must have seemed to be the final blow to the prosecution's case. Bates testified that there was no rape, that none of the defendants touched her or even spoke to her. When asked if she had been raped on March 25, 1931, Bates said, "No sir." Why did she lie? 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 continued that Price said "she didn't care if all the Negroes in Alabama were put in jail".[75]
She admitted having intercourse with Chester 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.[75]
With his eye tuned to the southern jury, Knight picked up on her northern dress in cross examination. He ripped into Bates, asking her where she had gotten her stylish coat, hat, and shoes. 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.
By the time Leibowitz finally closed, the prosecution had played on anti-Semitic remarks.[76] Wade Wright fanned the anti-semitic flames into a bonfire, referring to Ruby's boyfriend Lester Carter as "Mr. Caterinsky" and calling him "the prettiest Jew" he ever saw. He ranted, "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?"[76]
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".[77] One author describes Wright's closing argument as "the now-famous Jew-baiting summary to the jury." 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."[78]
In his closing, Leibowitz called Wright's argument an appeal to regional bigotry, claiming talk about Communists was just to "befuddle" the jury. He painted 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".[79] As to Wright's reference to "Jew money", Leibowitz pointed out that he was defending the Scottsboro Boys for nothing and was paying his wife's expenses.
"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."[80] He attacked Price with gusto, calling her testimony "a foul, contemptible, outrageous lie".[80] He ended with the Lord's Prayer and a challenge to either acquit or render the death sentence—nothing in between.[80]
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".[81]
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 had accepted Leibowitz's challenge, found the defendant guilty of rape, and sentenced Haywood Patterson to death in the electric chair.[82] The jury foreman Eugene Bailey had held out for eleven hours for life in prison, but in the end agreed to the death sentence.[82]
The defense moved for a retrial and, believing the defendants innocent, Judge James Edwin Horton agreed to set aside the guilty verdict. 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 his job when he ran for re-election.[83]
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—the fourth 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 boy in the gondola car, and that Gilley would corroborate Victoria Price's story in full. Also, at Knight's request, Judge Horton was replaced by Judge William Washington Callahan, a racist who would instruct the jury that no white woman would voluntarily have sex with a black man.[84]
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"[85] He banned photographers from the courthouse grounds and typewriters from his court room.[82] "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.[86] 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 the affidavits quoting hundreds residents about their intense dislike for the defendants, to show there was "overwhelming prejudice" against them.[87] The prosecution countered with testimony that some of the quotes in the affidavits were untrue, and further that six of the people quoted were dead.[88] 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.[89]
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 African-American names. When, after several hours of reading names, Commissioner Moody finally claimed several names to be African American,[90] Leibowitz got handwriting samples from all present until someone admitted that the handwriting appeared to be his. Leibowitz called in handwriting expert who testified that those names had been added and by former Jury Commissioner Morgan.[91]
Judge Callahan did not rule that excluding people by race was constitutional, only that the defense had not proven what absolutely everyone knew full well. By letting Leibowitz go on record on this issue, Judge Callahan provided grounds for the case to be appealed to the US Supreme Court for a second time. It was the basis for the court's finding that an exclusion of African-American grand jurors had occurred.
Haywood Patterson's Decatur retrial began on November 27, 1933. Thirty-six potential jurors admitted having a "fixed opinion" in the case,[91] which caused Leibowitz to move for a change of venue. Callahan denied the motion.[89] Callahan excluded defense evidence that Horton had admitted, at one point exclaiming to Leibowitz, "Judge Horton can't help you [now]."[86] He routinely sustained prosecution objections but overruled defense objections.
Price again testified that a dozen armed black men entered the gondola car. She said Patterson had fired a shot and ordered all whites but Gilley off the train.[92] She said the blacks had ripped her clothes off and repeatedly raped her at knife point, pointing out Patterson as one of the rapists.[93] She said the blacks raped her and Bates, afterward saying they would take them north or throw them in the river.[91] 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 between her various versions of the rape.
Judge Callahan kept interrupting Price's cross examination, calling defense questions "arguing with the witness", "immaterial, "useless", "a waste of time" and even "illegal".[94] The many contradictions notwithstanding, Price steadfastly stuck to her testimony that Patterson had raped her.[95]
Orville Gilley's testimony at Patterson's Decatur retrial was a mild sensation.[93] He denied being a "bought witness", repeating his testimony about armed blacks ordering the white boys off the train.[92] 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".[96] Leibowitz cross examined him at length about contradictions between his account and Price's testimony, but he remained "unruffled".[96] 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 he went "somewhere with them" that night.[97]
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.[92][98]
Lester Carter, who 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 them), took the stand for the defense. 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.[99] 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.[100]
Haywood Patterson took the stand, admitting he had "cussed" at the white boys, 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 he'd not seen the women before Paint Rock.[98] Patterson explained contradictions in 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."[101]
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."[101]
Closing arguments were made November 29 through November 30, without stopping for Thanksgiving. Callahan limited each side to two hours of argument.[102]
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."[103] 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".[98]
The 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."[98] 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."[104]
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."[105] 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.[105]
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.[106]
As Time magazine 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 Norris 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."[107]
Judge Horton was soundly defeated when he ran for re-election. The vote against him was especially heavy in Morgan County. In the same election, Thomas Knight was elected Lieutenant Governor of Alabama.[108]
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 the boys had pistols, that they threw off the white boys, 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.[109] 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 spent the night there, or about Carter or Gilley. Neither would he allow 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.[110]
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."[111]
Ruby Bates gave a deposition from her hospital bed in New York, and it 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.[112] She said that there were white boys riding in the gondola car with them, that some black boys came into the car, that a fight broke out, that most of the white boys 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 at all.[113] Norris did not take the stand.[112]
Closing arguments were on December 4, 1933. In his closing argument, Leibowitz called the prosecution's case "a contemptible frame-up by two bums".[114] 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".[114] 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.[114]
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".[115]
New York 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 fourteen hours of deliberation, the jury filed into the court room and 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, Alabama 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.[116]
The case went back 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.[117]
Attorneys Samuel Leibowitz, Walter H. Pollak and Osmond Frankel argued the case from February 15 to February 18, 1935. Leibowitz showed the justices where the names of African Americans had been hurriedly 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 Fraenkel and Walter Pollak argued those.[118]
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 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.[119] 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".[120] 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 his case as well.[121]
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."[122]
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. As indictment could be made with a two-thirds vote, the grand jury voted to indict the defendants. Thomas Knight, Jr. now Lieutenant Governor, was appointed special prosecutor to the cases.[123]
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, where they all pled 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.[124]
By January 23, Haywood Patterson was convicted of rape but sentenced to 75 years—the first time in Alabama that a black man had avoided the death penalty in the rape of a white woman.[38] Patterson escaped from prison in 1948 and published The Scottsboro Boy in 1950, before being caught by the FBI. After the governor of Michigan refused to extradite Patterson to Alabama, he was arrested for stabbing a man in a bar fight. He was convicted of manslaughter. Patterson died of cancer in prison in 1952, after serving one year of his second sentence.
On July 15, 1937, Clarence Norris was convicted of rape and sexual assault and sentenced to death. Governor Graves later reduced his death sentence to life in prison. He jumped parole in 1946, went into hiding, married and had two children. When he was found in Brooklyn in 1976, the NAACP and Alabama's attorney urged Governor George Wallace to pardon Norris, which he did in the same year. Norris' autobiography The Last of the Scottsboro Boys was published in 1979. Norris died January 23, 1989.
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.
On July 24, 1937, Charlie Weems was convicted of rape and sentenced to 105 years in prison. He was paroled in 1943 after serving 12 years in some of the worst prisons in the nation.
Ozie Powell was sent to Kilby prison with Wright and Norris. While being transported to Birmingham Prison on January 24, 1936, two officers threatened the men. Powell pulled a pocket knife and cut one of the officers, while the other two allegedly pulled him away with their manacled hands. One of the officers shot Powell in the face, and he suffered permanent brain damage.[125] Powell pled guilty to assaulting the Deputy and was sentenced to 20 years. The state dropped the rape charges as part of this plea bargain. 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 6 years in prison; the adults on death row.
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.[126]
On July 26, 1937, Haywood Patterson was sent to Atmore State Prison Farm, and all the remaining "Scottsboro Boys" were sent to Kilby Prison. Governor Graves had planned to pardon them in 1938, but was angered by their hostility and refusal to admit their guilt; he refused the pardons.
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, then returned to Huntsville.Victoria Price worked in a Huntsville cotton mill until 1938, then moved to Flintville, Tennessee.
A book widely thought to be authoritative, Scottsboro: A Tragedy of the American South was published in 1969, it wrongly asserted that Price and Bates were dead. A National Broadcasting Company TV movie Judge Horton and the Scottsboro Boys was aired in 1976 and contained the assertion 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 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. Victoria Price died in 1983, in Lincoln County, Tennessee.[127][128]
Today most residents of Scottsboro acknowledge the injustice that started in their community.[129] In January 2004, the town dedicated a historical marker in commemoration of the case at the Jackson County Court House.[130] 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.'"[129]
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 charges of rape. The Tom Robinson trial of To Kill a Mockingbird is often said to be based on the Scottsboro case, however, 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.[131] Ellen Feldman's 2009 Scottsboro: A Novel was shortlisted for the Orange Prize and is a fictionalized account of the trial told from the point of view of Ruby Bates and a journalist, Alice Whittier. In addition, African-American poet and playwright Langston Hughes wrote about the trials in his work, " Scottsboro Limited".
An excerpt:
The Town of Scottsboro
"Scottsboro's just a little place:
No shame is write across its face --
Its courts too weak to stand against a mob,
Its people's heart, too small to hold a sob."
The American folk singer and songwriter Leadbelly commemorated the incident in his song "The Scottsboro Boys".[132] 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".
In 1976, NBC aired a TV movie called Judge Horton and the Scottsboro Boys. In 1998, Court TV produced a television documentary on the Scottsboro trials for its Greatest Trials of All Time series.[133]
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.
Timothy Hutton starred in a 2006 film adaptation titled Heavens Fall.[134]
The Scottsboro Boys is a staged musical portrayal of the Scottsboro case. The show premiered Off Broadway in February 2010[135] and moved to Broadway's Lyceum Theatre in October 2010. Despite good reviews, the show failed to attract large audiences—perhaps due to its controversial subject matter and its minstrel show format—and closed on December 12, 2010.[136][137]
