Liberty Defined - Part 3

The First Amendment became the initial rallying cry for incorporation of the Bill of Rights to the states through the Fourteenth Amendment. As to freedom of speech, the Court was either entirely on board or resigned to the incorporation of that First Amendment principle to the states via the Fourteenth Amendment. Then, the incorporation junket goes out of order and jumps right to the Sixth.

Most of the cases regarding the meaning of the Fourteenth Amendment before the Court after that watershed dealt with taxation and property rights encompassed within the terms of the Fourteenth Amendment Due Process and Equal Protection language (and there is one on voting rights that will be an upcoming short Sidebar - stay tuned). But, the American Civil Liberties Union (ACLU) and the American Communist Party and the National Association for the Advancement of Colored People (NAACP) had talented lawyers who seemed to be searching for the next incorporation argument.

They found it with Ozie Powell and his companions. Known now as the Scottsboro Boys, these were young Black men and boys (the defendants ranged in age from 13- 20) – some of whom knew each other, some of whom did not - falsely accused of raping two white women on a train in Alabama. They were swiftly convicted and sentenced to death. To give a sense of what is meant by “swift” – the accusation related to events on March 25, 1931; the indictment was returned on March 31, 1931; the defendants were arraigned and pleaded not guilty on March 31, 1931; apparently “all the members of the bar” were appointed to represent these folks at tht time and there was some kind of severance of the trials so the young men were tried in small groups but all of the trials were completed in one single day on April 8, 1931. They were sentenced to death on April 9, 1931. The cases were timely appealed. The Alabama Supreme Court upheld the verdicts and sentences on March 24, 1932 and the rehearing was denied on April 9, 1932. Kind of puts a whole spin on the idea of a speedy trial. Today, discovery would not even be complete in that timeframe.

The facts are fairly well known by now and will not be repeated here (but you can learn all about these insane trials here). The salient appellate arguments included a denial of their Sixth Amendment rights to counsel and to an impartial jury. The defendants raised these rights via the Due Process and Equal Protection clauses of the Fourteenth Amendment as well as under the Alabama Constitution, sec. 6 which guaranteed those same rights to criminal defendants.

The relevant facts as per these guaranteed rights included a jury which excluded, “negroes from the list of jurors” (raised for the first time on appeal and therefore discarded by the court) as well as the denial of meaningful counsel. The Alabama Supreme Court found no merit in these claims. It ruled that the legislature had the authority to define who was qualified for jury duty (which statute defined as, “all male citizens of the county who are generally reputed to be honest and intelligent men and are esteemed in the community for their integrity, good character, and sound judgment.” See, Powell v. State, 224 Ala. 540, 550 (1932)). So, ya know, if Black men were not called to jury duty or seated on the petit jury, it's because the jury commissioner did not feel they fit the legal description and just did not call them in. Not racist, just umm... there were no people of color well known in "the community" for their integrity, good character, and sound judgment. That's all. Nothing racist here.

Did we mention that the military was present throughout the trials? But, again, like the rationale for the all white jury, this was clearly just for everyone’s safety and not at all to coerce the jurors into a verdict or sentence. Why would armed soldiers in the courtroom and an angry white mob in the gallery have any impact at all on the "good judgment" of the jury?. So, that did not infringe on the impartial jury guarantee. At least not according to the Alabama Supreme Court.

As to the assistance of counsel – even though it was utterly unclear who exactly was representing these young men – at least one lawyer cross examined the state’s witnesses. And, really, isn’t that enough? I mean, this unpaid counsel who knew nothing of these defendants (as they did not live in the area) had a whole week to prepare. A whole week (like, as long as it took to create the world – plenty of time!)

Nevermind that the one of the complainants was a notorious liar and the other would eventually recant her false claims. And, nevermind that no crime had been committed by anyone save these complainants when they testified – that is not something to worry about. Had an appropriate investigation and a reasonable (not super speedy) process occurred, this would have become apparent and the charges might have been dropped entirely. According to the Alabama Supreme Court, this was a fair and speedy trial and these (innocent) boys and men should just be electrocuted or hanged or shot or however the state wanted to do away with them.

In fairness, the decision was not unanimous. The Chief Justice, John C. Anderson, dissented and averred that this was not a fair trial. The case was unreasonably rushed through the system, the presence of the military was improper, the court should have appointed real counsel to each defendant, and the sentencing seemed profoundly coerced as the potential penalty ranged from 10 years up to death and for each and every defendant - even the 13 year old - the jury chose death. Judge Anderson remained convinced that these were not fair proceedings for these men whether or not they were guilty of the crimes. And, make no mistake, Judge Anderson thought they were guilty. He just wanted fair proceedings to precede the electric chair so there would be no stain on the conscience.

On  October 10, 1932, the case was argued before the Supreme Court of the United States raising, among other things, the argument that the defendants were denied the right to counsel guaranteed by the Sixth Amendment incorporated to the states via the Fourteenth Amendment guarantee of due process of law.

As an aside, while I wish there were more exploration of the notion of equal protection in this case and in all incorporation cases, sadly there really is not. The Court went solidly with due process rather than equal protection. For the last 100 years we have kind of hewed to that course. There may be more interesting arguments regarding equal protection, especially when it comes to the right to counsel and the composition of the jury in cases where race blind and poverty blind provisions in the law may not provide  defendants from marginalized groups with "impartial juries" or proficient counsel as guaranteed under the Sixth Amendment or whatever independent right may exist under the Fourteenth Amendment. That is, does the equal protection clause (or even the due process clause) guarantee a right separate from that outlined in the Sixth Amendment? Is there a separate right of a jury trial under Art. III sec. 2 that is different from, even if related to, the rights guaranteed by the Sixth Amendment that the Fourteenth Amendment incorporates? Does that Art III mention of a jury trial guarantee a “jury of peers”or some other configuration of jurors separate from the impartial guarantee of the Sixth Amendment? Even now, this is unclear (and, umm, the current Court may not the Court before which these specific questions might be well raised – just saying.)

We will all recall that Powell v. Alabama, 287 U.S. 45, 69 (1932) is one of Justice Sutherland’s rare really good moments. This is the case where he waxed poetic about the precious guarantee of competent counsel for criminal defendants and their right to be heard. It’s as beautiful today as it was when it was written:

Historically and in practice, in our own country at least, [the voice of the accused in court] has always included the right to the aid of counsel when desired and provided by the party asserting the right. The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect. If in any case, civil or criminal, a state or federal court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense.

They won. I wish there were a happy ending. But, there isn’t.

All of the defendants were held pending retrial. For years. In Alabama prisons. A few had charges dismissed and were released in 1937. Others were retried and convicted again. They served a variety of sentences. None had a particularly happy life. All were posthumously pardoned in 2013 by Governor Bentley via a special statute. Here are brief biographies of the nine defendants.

Justice Sutherland’s opinion remains a testament to our notions of due process. Justice Butler’s dissenting opinion joined by Justice McReynolds has long been lost to history. Because the case barely mentions the Sixth Amendment, but undeniably incorporated its provisions to the states, it is unclear what process is due under the Fourteenth Amendment in regard to the guiding hand of counsel and whether that is an independent guarantee to counsel not explicitly mentioned in the Sixth Amendment. Indeed, nearly a century later, we still struggle with what is meant by the guarantee of competent counsel for indigent criminal defendants and how to fulfill that promise in order to ensure fair proceedings.

There is an ongoing national crisis in regard to competent attorneys for poor criminal defendants. As to Alabama specifically, it is unclear whether access to counsel is their biggest criminal justice problem. They may need additional solutions. As to the falsely accused, we have made progress, but there is still work to do.