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The Scottsboro Nine

February 18, 2013

Hoboing is a long American tradition – jumping a freight train and riding. Many discharged Civil War veterans hoboed their way home at the end of the war. Laborers and adventurers hoboed west looking for work. Early in the 1900s, scholarly studies estimated that half to three-quarters of a million people traveled as hobos at any given time.

Hitching on a freight train had several advantages – it was free, and freight trains often ran long distances. Still, hobos were often killed or injured in falls from trains or other accidents, and were hassled or worse by train crews and rail security personnal.

Hoboing surged during the Depression. With no local job prospects, people – mostly young men – jumped on freight trains passing through their towns, looking for places with better prospects. Any given freight train could carry a number of travelers – inside empty cars, on top of cars, or hanging off the sides of cars.

On March 25, 1931, almost two dozen hobos were riding a Southern Railway train from Chattanooga to Memphis. Just out of Chattanooga, the freight line dips down into northern Alabama. In Jackson County, several white boys jumped off the train, went to the local sheriff and claimed they had been attacked by a group of black boys on the train. The sheriff organized a posse that met the train in Paint Rock. The posse boarded the train with orders to arrest every black rider. The posse found nine African-American teens and two young white women in various places on the train. The two women claimed that six of the black boys had raped them, and that the three others had aided in the rapes.

The nine boys, ranging in age from 12 to 19 years old, were taken to the county jail in Scottsboro, beginning a legal ordeal that ended only when the last of the nine died in 1989, but in important respects has still not ended. The nine defendants became known worldwide as the Scottsboro Boys. They were tried as many as four times, two of their convictions being thrown out by the U.S. Supreme Court in historic, precedent-setting decisions.

The defendants were indicted on March 31, 1931. A local lawyer volunteered to represent the nine defendants at trial, but he was given no time to prepare a defense and no opportunity before trial to consult with his clients. The nine defendants were tried in four trials that ran from April 6 to April 8, and on April 9, 1931 – just 15 days after their arrest – eight of the defendants were sentenced to death. (The jury in the final trial, that of 12-year old Roy Wright, agreed that Wright was guilty but could not agree whether to impose the death penalty or life in prison.)

At that point the case came to broader attention, and the Communist Party and the NAACP both offered legal assistance. The defendants opted for the Communist Party. Their lawyer appealed the cases and won stays of execution pending appeal. The Alabama Supreme Court rejected only one of the convictions – that of 13-year old Eugene Williams, who the court said should be re-tried as a juvenile. The other seven convictions were upheld over a vigorous dissent by Chief Justice John Anderson, who argued that the trials were not fair or impartial, but were rushed and the jury subjected to intimidation; that the defendants had been given inadequate access to counsel; and that the relative culpability of the defendants should have led to at least some non-capital sentences.

In 1932, the Supreme Court decided the case with a landmark decision called Powell v. Alabama, holding for the first time that criminal defendants facing the death penalty are constitutionally entitled to meaningful legal representation.

The cases went back to the Alabama trial courts, where the trial venue was changed to Decatur, a rural stronghold of the Ku Klux Klan. Lead defense counsel for the re-trials was Samuel Liebowitz, a Jewish lawyer from New York sent to Klan country by the Communist Party to defend illiterate African-American teens on charges of raping white women, before all-white judges and juries.

The first defendant re-tried was Haywood Patterson. His attorney systematically dismantled the prosecution’s witnesses, but the jury convicted anyway and issued another death sentence. The presiding judge, James Horton, delayed the remaining trials and granted a defense motion to vacate Patterson’s second conviction. (As a result, Horton later lost re-election.) The prosecutor scheduled yet another trial for Patterson, and had Judge Horton replaced by Judge William Callahan.

Judge Callahan ran what can only be called rigged re-trials. He rejected defense motions – finding, among other things, that the defense did not prove that African-Americans were excluded from juries. He repeatedly intervened in the defense cross-examination of one of the supposed rape victims, and he refused to delay the trial to allow the other, who had recanted, to travel to Alabama to testify. Judge Callahan instructed the jury that there is a “strong presumption” that sex between a black man and a white woman is involuntary, and he initially gave the jury only the form for a conviction – only when the prosecutor insisted, fearing an appellate reversal, did Judge Callahan give the jury the second form, for acquittal.

Patterson was convicted once more, and again sentenced to death. After the re-trial and conviction of a second defendant, Clarence Norris, the cases made their second trip to the Supreme Court.

In Norris v. Alabama, decided in 1935, the court found that in fact African-Americans had been systematically excluded from the Alabama jury pool, based on their race. The court vacated the convictions and returned the cases to Alabama. A single African-American was assigned to the grand jury. Four of the original nine defendants were convicted, but none were sentenced to death – sentences were 75 years, 99 years, 105 years, and life. Charges were dropped against the other five defendants, who had spent six years in jail.

Alabama Governor Bibb Graves reportedly planned to pardon the men in 1938, but angrily changed his mind when they refused to admit their guilt. Andrew Wright was the last of the four to leave prison when he was paroled in 1950. I learned of the case as a child, when I read Scottsboro Boy by Haywood Patterson. Patterson had escaped from prison in 1948, and the Governor of Michigan refused to extradite Patterson.

The episode has been the subject of a number of books, movies, TV shows and plays, but I think none of those capture the full complexity of the Scottsboro Nine chapter of our history. The story played out just 70 years after our Civil War, and black-white, North-South hostilities remained virtually undiminished. The court cases took place during a time of “Southern justice,” the Supreme Court’s responses to which is largely responsible for the development of our modern concepts of constitutional justice.

The line between victims and villains in the story is not so clear – one of the supposed rape victims quickly recanted and spent much of the rest of her life atoning for the false accusation. An Alabama lawman courageously fended off a lynch mob the night of the defendants’ arrest, and called in the National Guard to protect the defendants. Two of the Scottsboro Nine committed homicides in the 1950s. Judge Horton’s integrity cost him re-election; in the same election, the lead prosecutor won election as Alabama’s lieutenant governor. The Governor himself first wanted to pardon the defendants but then changed his mind.

The last survivor of the Scottsboro Nine was Clarence Norris. He jumped parole in 1946, went into hiding and started a family, surfacing in Brooklyn in 1976. Norris was pardoned by the Alabama governor, none other than George Wallace. Wallace had made a career out of racial hatred, but after he was shot, nearly killed, and paralyzed for life in 1972, he changed. Wallace apologized for his racist, segregationist past, and worked hard to atone for it. In his last term as governor in the mid-1980s, it was said that he appointed a higher percentage of African-Americans than any other governor in the country.

Today, there is a historical marker outside the Jackson County courthouse, comemorating the Scottsboro Nine cases. But only Clarence Norris has ever been pardoned. Now the Alabama legislature is moving two bills to correct that. The first will authorize posthumous pardons, and the second will exonerate the Scottsboro Nine as “victims of a series of gross injustice.”

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On Friday, April 19, 2013, Alabama Governor Robert Bentley signed legislation pardoning all of the Scottsboro Nine. He gave the bill-signing pen to Clarence Norris, Jr., the son of the last survivor of the Scottsboro Nine, and the only one to be pardoned while he was alive.

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2 Comments
  1. Dvid Boyle permalink

    I have not read any of your website as of this time, but I had to comment that “Ecce Homo” is one of my favorite readings. I salute your intelligence!

    Dave boyle

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