Scottsboro Boys

The Scottsboro Boys with attorney Samuel Leibowitz under guard by the State Militia, 1932

The Scottsboro Boys were nine black defendants in a 1931 RAPE! case initiated in Scottsboro, Alabama. The case was heard by the United States Supreme Court twice and the decisions established the principles that criminal defendants are entitled to effective assistance of counsel and that people may not be de facto excluded from juries because of their race.

Nine young black defendants were accused of raping two fellow homeless white women on a freight train, and eight were quickly convicted in a mob atmosphere. The juries were entirely white, and the defense attorneys had little experience in criminal law and no time to prepare their cases. As each of the nine cases successively went to the jury, the next trial was immediately begun. All but one of the defendants were found guilty, and these eight were sentenced to death on rape charges. These eight, however, later had their death sentences lifted by the Supreme Court, serving instead between six and nineteen years in prison.

In 1976, forty-five years after the first trial, segregationist Alabama Governor George Wallace issued a pardon to the one remaining Scottsboro defendant still subject to the Alabama penal system

The arrests

The nine black youths, Olen Montgomery (age 17), Clarence Norris (age 19), Haywood Patterson (age 18), Ozie Powell (age 16), Willie Roberson (age 17), Charlie Weems (age 19), Eugene Williams (age 13), and brothers Andy (age 19) and Roy Wright (age 12) were accused of the rapes of Ruby Bates and Victoria Price on March 25, 1931, on the Southern Railroad line from Chattanooga to Memphis. Several people were "hoboing" on the freight train including the nine black youths, two white women, and several white youths. Four of the blacks, Patterson, Williams, and the Wright brothers had hoped to find work hauling logs on the Missouri River. The other black youths on the train were from Georgia and were unacquainted with the other four. The white hobos on the train were also in search of work and included several boys or men and Victoria Price and Ruby Bates. The women were Huntsville, Alabama residents who had gone to Chattanooga, Tennessee to find work in cotton mills. Failing to obtain those jobs, they hopped this freight train back to Huntsville, completely without money.

A fight began between the white youths and the black youths, allegedly when a white youth stepped on Patterson's hand as he hung on to the side of a tank car, just west of the Lookout Mountain tunnel. The off-and-on fight involved name-calling, stone throwing and fisticuffs. Most of the white youths were forced off the slow moving train near Stevenson, Alabama. Several of them told the Stevenson stationmaster about the fight and said they wanted to press charges. The stationmaster called Jackson County Sheriff Matt L. Wann to report the incident. The Sheriff called Deputy Charlie Latham, who lived near the next scheduled stop for the train, Paint Rock, Alabama and told him to deputize as many citizens as he needed to "capture every negro on the train. I am giving you authority to deputize every man you can find." A posse of some fifty white men armed with shotguns, rifles and pistols prepared for their arrival. Even before the slow moving train stopped about 2 p.m., the posse had searched all forty-eight cars. Within ten minutes they had arrested all nine of the "raggedly dressed" black youths at gun point. From the time of their arrest until the first trial twelve days later, none of the boys were permitted to call or speak to anyone, not even each other. The initial arrest was for the assault and attempted murder of the white youths ejected from the train at Stevenson.

Ruby Bates & Victoria Price in 1931

The posse was surprised to find Ruby Bates and Victoria Price on the train, dressed in men's overalls covering dresses. When discovered, they scrambled out of the open gondola car used to haul gravel where they had been riding. They ran in the direction of the engine, where they ran into other members of the posse coming the other way. They turned and started to run back in the other direction where other members of the posse stopped them. The older, Victoria Price "appeared to be on the verge of fainting". Seeing that, Deputy Latham ordered some of the men to take them to wait in the shade of a nearby gum tree, while they tied their black charges together and hauled them on the back of a flatbed truck to the two-story jail some twenty miles away in Scottsboro, Alabama.

Twenty minutes after the train left Paint Rock, its station agent W. H. Hill asked the women whether any of the "negroes" had bothered them. At that point, Ruby Bates told Hill that they had been raped by them. Agent Hill quickly reported that accusation to Deputy Latham. Upon hearing this accusation, Sheriff Wann sent the women to be examined by two doctors. Scottsboro doctor, R. R. Bridges and his assistant, Dr. John Lynch, examined them within two hours after the alleged rapes. The doctors found semen in the vaginas of both women. Ruby Bates had considerably more than Victoria Price. While they found some scratches and a few bruises, the doctors found little evidence of a violent attack; they found no vaginal tearing for either woman. Bates and Price were arrested and jailed for several days, pending charges of vagrancy. Probably on a tip from the mother of underage Ruby Bates the authorities initially looked into whether Price had violated the Mann Act, which prohibited taking a minor across state lines for "immoral purposes" or prostitution. It was alleged that Victoria Price was a "known prostitute", which led law enforcement to suspect that Price had violated the Mann Act when she left Tennessee for Michigan with Bates. As the focus of law enforcement shifted to the black prisoners, these charges were never filed and the women were released. A widely shown photo shows the two women shortly after the arrests in 1931, still in their hobo dress and still on very friendly terms.

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Sheriff Matt Wann

In the Jim Crow South, a black male was said to risk lynching by just looking at a white woman. Word quickly spread and a lynch mob gathered in front of the jail in Scottsboro and prepared to storm the jail. The crowd of farmers with many of their wives and children looking on, grew into the hundreds. The newly elected Jackson County Sheriff, Matt L. Wann barricaded the door to the jail. At 8:30 that evening, he decided to move the accused youths to a jail in another community, but could not, because the wires to the headlights on the squad cars had been cut. Mayor James David Snodgrass begged the crowd to leave. However, they refused and demanded that the youths be surrendered to them for immediate lynching. At the request of Sheriff Wann, Alabama Governor Benjamin M. Miller, called in the National Guard to protect the jail. Authorities pleaded against mob violence by promising speedy trials and asking "the Judge to send them to the chair". The editor of the local Scottsboro Progressive Age was very self congratulatory that Scottsboro had not lynched these defendants outright. The editor wrote, "If ever there was an excuse for taking the law into their own hands, surely this was one. Nevertheless, the People of Jackson County have saved the good name of the county and state by remaining cool and allowing the law to take its course."

Trials in Scottsboro

On March 26, National Guardsmen took the defendants to Gadsden, Alabama for safekeeping. On March 30 the accused were indicted by an all-white grand jury. The joint indictment against the nine defendants named only Price as a rape victim. They were then brought back to Scottsboro for arraignment in the Jackson County Circuit Court, where they all pled not guilty. Rape was a capital offense in Alabama at that time. Even so, they were not allowed to communicate with friends or family. They had not consulted with an attorney before the arraignment and had no attorney to represent them at the arraignment. Most of them were illiterate and none had any knowledge at all of criminal law or court procedure. They were returned to Gadsden to protect them while they awaited their trials.

Their trials began on April 6, twelve days after their arrest. About 5:45 a.m. 118 Alabama guardsmen of the 167th Infantry made up of five national guard companies of Gadsden, Albertville and Guntersville, Alabama commanded by Major Joe Starnes, brought the terrified defendants from Gadsden and housed them temporarily in the Scottsboro County Jail until their trials started.

Crowd in front of the courthouse

The trials started on Scottsboro's "Fair Day," the first Monday of each month when area farmers came to town to sell their produce and buy supplies. Other people from the surrounding area also came by car and train that morning to Scottsboro, forming a crowd of thousands by the time the first trial began at 8:30 a.m. The crowd eventually grew to 8,000 - 10,000 whites, who milled around in front of the Court House Square while the trial went on. The crowd became "ugly" or "festive" and "curious", according to different reports. National guardsmen, some armed with machine guns, formed a line around the court house to keep the crowd at bay. No one was allowed into the Courthouse during the trials without a special permit. Males under twenty one and all women were excluded, due to the salacious nature of the testimony expected. As the United States Supreme Court later described this situation, the National Guard "guarded the courthouse and grounds at every stage of the proceedings. It is perfectly apparent that the proceedings, from beginning to end, took place in an atmosphere of tense, hostile, and excited public sentiment. During the entire time, the defendants were closely confined or were under military guard."

Pace of the trials

Jackson County Judge Alfred Hawkins presided at the first four trials before packed standing-room-only, all-white audiences — what the defendants later described as "one big white smiling face". Circuit Solicitor H.G. Bailey was the Prosecutor. Judge Hawkins and Solicitor Bailey gave every indication that they could not get the trials over fast enough in order to quell the community outrage before real violence broke out. The first trial went into a second day, due to the time consumed by the first day by the pretrial motions and the need to decide who was going to be tried with whom, the rest of the trials took place one right after the other and took only a single day to produce one capital conviction after another.

Selection of the Defense Attorneys

Judge Hawkins had broadly ordered all people of the alian land bar to assist the defendants. However, at the time the trials began, no attorney had done so. Ultimately, the youths were defended by the only lawyers the parents could afford: a Chattanooga real estate lawyer, Stephen Roddy, and Milo Moody, a 69-year-old lawyer who had not defended a case at trial in decades. Roddy was neither a member of the Alabama bar nor a criminal defense attorney and was not familiar with the Alabama laws and court rules. Judge Hawkins questioned an unsure Roddy before the first trial about his representation of the defendants. While it does not appear to have been his object, Roddy's responses made it clear to the United States Supreme Court that he had not talked to those defendants until just before the start of the first trial. He informed Judge Hawkins that he was only there informally at the request of friends and family of the accused for which no one had paid him. He frankly admitted on the record in his colloquy with the Court that he had not had time to prepare for trial and that he was not familiar with Alabama law and procedure. In the end, he agreed to appear in the case to aid Moody, who was the only local attorney who would agree to take the case without being forced to do so by Judge Hawkins. He agreed, "I will go ahead and help do anything I can."

Petition for change of venue

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Hamlin Caldwell

The attorney general Roddy petitioned the court for a change of venue, asserting that the crowd would intimidate the jury. Judge Hawkins held a hearing on that petition. Roddy presented the testimony of his clients on the matter, he also presented the case of the girls who supposedily got raped by the boys. He entered into evidence newspaper articles which reported the crowds in the Scottsboro Sentinel, in the Montgomery Advertiser and in the Chattanooga paper. He also called Sheriff Wann, National Guard Commander Major Joe Starnes, and Court Reporter Hamlin Caldwell to testify as to the crowd outside. However, they testified that the gathering of the crowd was "impelled by curiosity and not for hostile or punitive purposes". Based on that testimony, Judge Hawkins agreed and found that the crowd in front of the court house was merely curious and not hostile. The evidence Roddy adduced at that hearing, as recorded in the transcript, showed the existence of a mob atmosphere at the trials. That evidence became an important element in the reversal of these convictions by the United States Supreme Court. ==

Selection of the defendants for four separate trials

Judge Hawkins granted Moody and Roddy a recess of 25 minutes to consult with their clients, but no time to conduct an investigation of the facts of the case. Alabama law permitted jointly indicted defendants to demand separate trials. However, neither attorney was given time to research the law before the Court would decide how the nine defendants would be joined or separated for trial. The prosecutor, H.G. Bailey, wanted to lead with his case against Charlie Weems, Clarence Norris, and Roy Wright. Victoria Price was their accuser and she was more certain than Ruby Bates as to the identity of her alleged attackers. Attorney Roddy objected that since Wright and Williams were not sixteen their cases should have been begun in juvenile court. As a result, the Court and the prosecution agreed that they would proceed against Weems and Norris first. The next trial would be against Haywood Patterson. The third trial would be against Olen Montgomery, Ozie Powell, Willie Roberson, Eugene Williams, and Andy Wright. The last trial would be against twelve-year-old Roy Wright, since he was the youngest of the defendants. Each of these groups was then tried separately.

Scottsboro trial of Norris and Weems

Judge Hawkins began the trials of Clarence Norris and Charlie Weems quickly. Moody and Roddy barely had time to figure out which of the nine defendants they were. Victoria Price was the first witness. A summary of her testimony, during direct and cross examination, was that she and Ruby Bates were riding with the white youths in the gondola car nearly filled with "chert", or gravel. A mile or two past Stevenson, Charlie Weems came into the car first, waving a .45 caliber pistol. Then, a crowd of eleven others followed into the car. Price testified that the "Negroes" began to fight with the white boys. She heard the black youths shout "unload, you white sons-of-bitches". They forced the white boys to jump from the fast moving freight train. However, Orvil Gilley, one of the white youths said he was afraid to jump because he was afraid he would be killed. So, the "Negroes" let him stay on board. Price continued that after the white youths were forced off the freight train and while the train was moving at high speed toward Paint Rock, the "Negroes", attacked them. Price testified that six of the black youths raped her and six of them raped Bates. She said Norris first demanded to know "if I was going to put out". Then he pulled off her coveralls and "step ins". She "struggled and hollered" while Weems held a knife to her throat and the others held her legs. She said three of the black youths who raped Bates had jumped off the train before it stopped at Paint Rock. The "Negroes" took turns holding her while others raped her. She testified that the leader, Weems, as the leader of the group, was the last to rape her. That rape ended about five minutes before the train stopped at Paint Rock, where the posse captured the "Negroes". She said that she had snuff in her mouth and her attackers would not let her up to spit it out. One of her attackers had hit her in the head with the pistol. She testified, "When they got done with me they were still in there, telling us they were going to take us north and make us their women or kill us." She had fixed her clothes at Paint Rock and climbed out of the gondola car. She then fell unconscious and later came to in a grocery store. Two doctors had then examined her and she was taken to the Scottsboro Jail. During Attorney Roddy's cross-examination, Price livened her testimony with "wise cracks" that often brought a roar of laughter to the packed nearly all male, all white courtroom. She stated to Roddy that she was married, but she had not seen her husband in more than a month and did not know where her husband was at that time. The Court sustained an objection to the defense question, "Were you ever in jail before?"

Clarence Norris

Charlie Weems

Next was R.R. Bridges who testified that Virginia Price was talkative and "not hysterical" when he examined her. The only injuries he found were small bruises on her back and the top of her hips. There was no tearing in the area of her genitals. He found semen in her that was "non-motile", which meant that the spermatozoa in it were likely not living. The Court allowed him to testify, over defense objection, that it was "possible" that she had been forced to have sex with six men, one right after the other, and not have any more injury to her body than he found. On cross examination, Dr. Bridges confirmed that Price had no lacerations and was not bloody. Bates had two small bruises, about the size of a "nickel" on both sides of her groin. He agreed that she also was not hysterical and showed no other injuries. The only semen he found in her was located in the area of her cervix. The defense asked, "Both of these girls admitted to you they had had sexual intercourse previous to this, didn't they?" The Court sustained the prosecution's objection to that question. The prosecution objected to defense questions about what the women had told the doctor about their sex habits, whether Ruby Bates had a venereal disease, or whether the women had previously been virgins. They asked "Both of them told you they had had sexual intercourse, one told you she had been married and the other told you she had been?", "From your examination could you tell whether or not they were subject to intercourse?"' "Were they virgins?", "That you find anything in the vagina that indicated to you these girls had had or might have had gonorrhea or syphilis?" And "other questions of like import." The Court sustained those objections. Many later commentators hold the refusal of the Court to let the defense inquire into other ways the women might have ended up with that semen was another example of how the defendants were denied a fair trial. In fact, virtually every account of this case is quick to mention that the accusers were alleged prostitutes. However, it is interesting to note that this fact likely would not be admissible at the trial of their accused rapists even today under Alabama Code Section 12-21-203, the Alabama "Rape Shield Law." This law holds that the reputations for non-chastity or specific acts of non-chastity of the victims of an alleged rape are inadmissible. Dr. M.H. Lynch, the other examining physician, admitted on cross examination that the "girls were not hysterical" and there was "nothing to indicate any violence about the vagina."

Posse member Tom Taylor Rousseau identified defendants Weems and Norris "as being among those taken from the train at Paint Rock from the gondola car." He testified that most or all of the defendants had gotten off the gondola car where the women had been riding and that Price had been carried off the train. He testified that he did not see the girls when they got off the train. However, he testified, "I saw Victoria Price a little later. When I saw her at that time, they were coming around the depot with her in a chair. She had her eyes closed and was lying over this way and they were bringing her from the depot up to town to the doctor's office. That was Victoria Price. I saw her later one time from where I was. She was still in the chair." This witness testified on cross-examination, among other things, that: "One of the girls was not in condition to walk. I did not help carry her off. There was an officer toted the girl up there. They toted her off the train, a fellow named M. A. Mize. He had to carry her away from the train, unconscious. I don't know about what the doctor said about her being unconscious at that time. I was not there. I was there at the time the girl was taken off." The Court sustained a prosecution objection to the question, "And if he [the doctor] testified immediately after their arrival here or at Paint Rock she was not unconscious, he is mistaken about it?"

Jim Broadway testified as a State's witness. He testified that he was present at Paint Rock when Victoria Price and Ruby Bates left the train. He said, "I saw Victoria Price there. We got her off the freight train. She was on one of these gravel cars. That is known as a gondola car. There was another woman with her, the Bates girl. The Bates girl seemed to be in fairly good shape, but the other could not hardly talk and couldn't walk." The Prosecutor asked him, "Did you hear them make any complaint there, either one of these girls, of the treatment they had received at the hands of these negroes?" Defense counsel "severally objected to this question on the ground that it called for incompetent, irrelevant, immaterial, and illegal testimony, and for hearsay testimony." The court ruled that the answer be limited to Victoria Price, the person named in the indictment as the victim, and the defendants again objected on the same ground. The objection being overruled, the witness was actually of some help to the defense when he answered, "I did not hear Victoria Price make any complaint, either to me or anybody else there, about the treatment she had received at the hands of these defendants over there. We sent and got a chair for Victoria Price and carried her to the doctor's office at Paint Rock."

Ruby Bates was the next witness, who testified over strong defense objection. She only testified on direct examination that the defendants had entered the railway car in which she and Price had been riding, where they proceeded to throw the white youths off the train. She said nothing about either of them being raped. It is a principle of cross examination that attorneys do not ask questions unless they know the answers. On cross examination, the defense elicited from Bates that she had been "ravished" by "six negroes". One held a knife to her throat, while another pointed a gun at her and while yet a third raped her. She said she had never been married. The Court sustained a defense question as to whether she had previously had sexual intercourse.

The prosecution ended with the testimony of three men from Stevenson. Luther Morris testified that he had seen between eight and ten blacks "put off" five white boys from the train and "take charge of two girls". The blacks had stopped the girls from jumping off the train and had pulled them back on. T.L. Dobbins testified that he had seen "three darkies in a boxcar" and several more fighting in the gondola car. The last prosecution witness, Lee Adams testified that he had seen a group of blacks "striking" the white boys in the gondola car. Later, he saw them walking toward Stevenson with blood on them. The prosecution rested without calling as its witness any of the white youths who had been put off the train.

The first defense witness was defendant Charles Weems. He testified that he was not part of the fight that broke out between the black and white youths on the train. He said that the Haywood Patterson was the person with the pistol and that he had not known him before that time. Patterson had threatened to shoot him, if he did not help force the white youths from the train. He said he did not participate in the fight, but had merely asked the white youths to get off the train. He said the first time he saw the white girls is when the train pulled into Paint Rock. On cross examination, Charles Weems stated that it was Clarence Norris, Ozie Powell, Willie Roberson and Olen who were in the gondola car with Haywood Patterson and him. Charles Weems testified on cross examination, "We were all in the gondola when we got to Paint Rock. I never saw no girls in this gondola we were in at all. I first saw the girls when they came toting them through Paint Rock. They had the oldest girl in a chair coming through Paint Rock. She did not get out of the gondola I got out of. I don't know whether she got out of a gondola or not. The first I saw of either one of the girls they were bringing the oldest girl up in a chair."

Defendant Clarence Norris was the next defense witness. He stunned everyone by implicating all the others. On direct examination, he denied that he had participated in the fight or even had been in the gondola car where the fight took place. However, he unexpectedly volunteered that he had seen what went on in the gondola car. He testified that Haywood Patterson stated his intention to force the white boys off the train and that "he was going to have something to do with them white girls". On cross-examination, things got worse. He testified "I did not get into that gondola at all. I just looked in. This Weems I was speaking about here is not my friend. I knew him. I saw him over in the gondola and I saw the girls in there, but I did not go in there. I saw that negro in there with those girls. I seen everyone of them have something to do with those girls after they put the white boys off the train. After they put the white boys off I was sitting up on the boxcar and I saw every one have something to do with those girls. I was sitting on top of the boxcar. I saw that negro just on the stand, Weems, rape one of those girls. I saw that myself. When the officers searched me they did not find anything on me. They did not find a pearl handled knife. They did not find a pearl handled knife on me. I did not have a knife or pistol. I did not go down in the car and I did not have my hands on the girls at all, but I saw that one rape her. They all raped her, every one of them. There wasn't any one holding the girls legs when Weems raped her, as far as I saw. The other boy sitting yonder had a knife around her throat, that one sitting on the end behind the little boy. I don't know what his name is, but he is the one that had the knife. I did not see the little one hold of her legs while this one was raping her. I did not see anybody holding her legs. I don't know who pulled off her overalls. The girls were lying down when I got up on the boxcar. This big one did not have a knife on her throat. That little boy sitting behind yonder I don't know his name is the one that had a knife around her neck, making her lie down while the others raped her. I didn't see any of the negroes take her overalls off. The girls were lying down when I got up on the boxcar. I saw the overalls lying in the car. I did not see any step ins. I did not get down in the gondola, never did get down in there." The defense put on no further witnesses.

After some brief rebuttal testimony, the prosecution argued to the jury that it was most horrible crime in the history of the state. "If you don't give these men death sentences, the electric chair might as well be abolished." Likely stunned into silence by Norris' damning testimony, the defense made no closing argument at all. They did not even argue against the death penalty for their clients. The Court started the next case against Haywood Patterson, while the jury was still deliberating that one. The first jury deliberated less than two hours before returning a guilty verdict in that case and imposing the death sentence on both Weems and Norris.

When the guilty verdicts were announced, the courtroom erupted in cheers and some of the celebrating crowd poured out into the street in front of the courthouse. Judge Hawkins' heavy gavel pounding did not restore order in the courtroom. He ended up ordering the national guardsmen to restore order, who ended up throwing eight of the shouting spectators out of the courthouse. When word of the guilty verdicts reached the crowd outside, another roar of celebration went up. The band, supplied for the occasion by the Ford Motor Company for a show of its cars outside, struck up Hail, Hail the Gang's All Here and There'll be a Hot Time in the Old Town Tonight.

Scottsboro trial of Patterson

Haywood Patterson

The trial for Haywood Patterson began almost immediately after the cases of Clarence Norris and Charlie Weems had gone to the jury and while the jury was briefly considering the fate of the first two youths. The lead witness at the Patterson trial was again Victoria Price. This time she testified that Patterson was one of the twelve black youths who had poured into the gondola car in which she and Ruby Bates had been riding, right after the train left Stevenson. They ordered the white youth off the train and Patterson shot one of the white youths with a .38 caliber pistol while the blacks were doing so. While the other black youths held her down, Patterson raped her. On cross examination, the defense elicited the damaging testimony from her that she fought as hard as she could, as three of the defendants ripped off her clothing and three of them raped her and six other black youths raped Ruby Bates. The defense asked her if she had "ever practice[d] prostitution." Judge Hawkins sustained a prosecution objection to the question. However, Price volunteered afterward that "I do not know what prostitution means. I have not made it a practice to have intercourse with other men." The defense countered, "Never did?" Again, the prosecution successfully objected to the question and again Price volunteered anyway that "I have not had intercourse with any other white man but my husband. I want you to know that."

Right after the testimony of Ruby Bates, the Haywood Patterson jury was moved to a room only about twenty feet away while the first verdicts were announced, where they were within clear earshot of the uproar that broke out upon the announcement of the convictions of Norris and Weems. When order was restored, the Patterson trial resumed. Attorney Roddy made a motion for a mistrial of Patterson's case, due to what the Patterson jury had obviously just heard. Judge Hawkins denied this motion.

Dr. R. R. Bridges was the only physician the prosecution offered at the trial of Haywood Patterson. He testified, "I found their vaginas were loaded with male semen, and the young girl was probably a little more used than the other, the other not showing as much. On the body were bruises on the lower part of the groin on each side of Ruby Bates, that is the young one, and there was a bruised spot around the hips, or the lower part of the back, on the other girl, the Price girl, a few scratches, small scratches on the hands and arms, and a blue spot here (indicating) on the neck of one of them. I think that was Mrs. Price, I will not be sure about that."

Posse member Tom Taylor Rousseau testified that "the negroes" had gotten out of the same gondola car as Price and Bates. C. M. Latham agreed with that fact and added that the women had said "We have been mistreated" as they climbed off the gondola car. Lee Adams testified that he saw the fight between the black and white youths on the train and that, shortly thereafter, he had seen the white youths hurrying back toward Stephenson. Farmer Ory Dobbins, who had not testified at the first trial, said, from his farm along the rail line, he had seen white women in the company of black youths, and he had seen one of the "colored men" grab a white woman and throw her down.

Haywood Patterson testified on his own behalf as the first defense witness. He said on direct examination 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." However, then he said had had not touched those girls or even seen "any negroes on top of either of those girls." In fact, he had not even seen "any white women" until the train "got to Paint Rock." The prosecutor asked him, without defense objection, whether he had heard co-defendant Norris accuse him of the rape in the previous trial. He admitted that he had, but denied the accusation.

The defense offered thirteen-year-old co-defendant Roy Wright as a witness. He testified on direct examination that "That boy [defendant] did not have anything to do with those girls on that train. He was not down in the car with those girls; he was standing up on top of a boxcar. I saw a pistol. A long, tall, black fellow with duck overalls on; that is the only pistol I saw. This boy [defendant] did not have a knife. He did not open his mouth to the girls. I saw the girls on the train. They were on an oil car when I saw them. There were nine negroes down there with the girls and all had intercourse with them. I saw all of them have intercourse with them. I saw all of them have intercourse; I saw that with my own eyes. The defendant was not down there; he was never down there with the girls. The boys I left Chattanooga with were named Haywood Patterson, Eugene Williams, and Andy Wright." On cross examination, Roy Wright testified that "The long, tall, black fellow had the pistol. He is not here. I saw none of those here with a pistol. I saw five of these men here rape the girl. After we put the men off, we went back on the boxcar and I was sitting up on the boxcar holding to that wheel, looking down at them. I did not tell the officers I saw everyone rape her but me. I did not tell them that. I did not tell them that I saw the defendant rape her. I did not see the defendant rape the Bates girl. I did not see him do anything except he just helped put off the men. He was putting them off because they kept stepping across him and talking about putting us off. I saw one knife down in there. That boy back there [indicating] had it, Eugene; he is the one that had the knife. I did not see him hold it on the throat of that girl. He did not have hold of her throat, because he was sitting up on the boxcar. I saw one down in the gondola, a little white-handle knife. Clarence Norris had that knife; I do not know where he got it; I do not know what he did with it. He had it the last time I know anything about it. I am sure the defendant did not do anything."

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.

The testimony over, the case of Haywood Patterson went to the jury. It convicted him and sentenced him to death after two hours of deliberation. However, this time Judge Hawkins made sure there was not another outburst as had occurred when the first verdict had been announced. "If I hear pin drop" he warned the court room, "the persons guilty will be sent to jail." There were twenty-five guardsmen in the courtroom to back Judge Hawkin's words. The Patterson guilty verdict and death sentence by electrocution were delivered to a dead silent court room.

Scottsboro trial of Powell, Williams, Roberson, Montgomery and Andy Wright

The trials of Ozie Powell, Eugene Williams, Willie Roberson, Olen Montgomery, and Andy Wright began within minutes of when the jury began deliberating the case against Haywood Patterson. This third jury was sent out briefly while Haywood Patterson's second jury filed in to pronounce its guilty verdict against him.

Ozie Powell

Willie Roberson

Eugene Williams

Olen Montgomery

Andy Wright

Victoria Price again took the stand to testify that every one of the defendants now on trial had been among the twelve black youths who had come over the roof of the adjoining boxcar to pour into the gondola car where she, Bates, and the white youths were riding. After they threw all the white boys off the train except young Gilley, they split into two groups of six to rape each of them. She pointed to Eugene Williams as the one who held the knife to her throat. Then, she pointed to Olen Montgomery and accused, the "one sitting there with the sleepy eyes. He ravished me, while the others urged him to hurry because they wanted their share." While another of them held her legs, "the others were going up by the side of the car, looking and keeping the white boys off, telling them that they would kill them, that it was their car and we were their women from then on." She accused every one of them of having knives and said every one of them was still in the gondola car when the train arrived in Paint Rock. She repeated that she had lost consciousness after getting off the train and that she was taken to Scottsboro where the two doctors had examined her. The cross examination of Price allowed her to elaborate on how it took all three of the defendants to pull off her overalls. On redirect by prosecutor Bailey, she testified that Eugene Williams, Olen Montgomery, and Andy Wright had all raped her. She testified, "While one was having intercourse with me, the others were running up and down the car box hollering, 'Pour it to her, pour it to her'." While this was going on, she said, others were holding a knife to the throat of the white boy, Gilley.

The trial was interrupted for the return of the guilty verdict for Haywood Patterson, which this time had not resulted in an uproar. However, as soon as that verdict was rendered and that jury discharged, this trial immediately resumed.

The next witness was Ruby Bates. She identified defendants Ozie Powell, Eugene Williams, Willie Roberson, Olen Montgomery, and Andy Wright as being among the twelve who had poured into the gondola car to force the white youths in it to unload. Cross-examination again helped mostly the prosecution. She added that a "colored boy" had pulled off her overalls and six of them had "ravished" her and Price by others. However, unlike Price, she could not identify her alleged rapists.

Dr. R.R. Bridges was the next prosecution witness. He repeated his earlier testimony about examining the women and the minor scratches and bruises he found on them. He stated that both had engaged in sexual intercourse, but he could not say when. He testified that each had semen in them, with Price having much more than Bates. Their vaginas were "still loaded with secretions, and especially in the Bates girl; her vagina had more secretions than Mrs.[sic] Bates; both had plenty of semen in there, plenty of male germ. In my judgment as a physician, six negroes could have gone to these women without lacerating them or tearing their genital organs." On cross examination, the defense elicited from him on cross that he detected no movement in the spermatozoa from either woman he examined with his microscope, of he could not say whether they were "dead or alive." Dr. Bridges admitted that he had examined, defendant, Willie Roberson and "He is diseased with syphilis and gonorrhea, a bad case of it. He is very sore. It would be painful [for him to have sex], but not very painful. It is possible for him to have intercourse. I have seen them that had it worse he has." The defense got him to repeat that neither woman had any genital lacerations. Then, they got him to admit that Victoria Price told him that she had had sex with her husband and "the other [Ruby Bates] said she had" earlier engaged in sexual intercourse as well.

The prosecution put on two witnesses who testified that the five defendants were in the same gondola car as the women when the train arrived in Paint Rock. It finished its case with two witnesses who testified they saw an altercation on the train right after it pulled out of Stevenson that day.

The defense proceeded with the only witnesses they had time to find — the defendants. Ozie Powell admitted that he had seen the fight, but he said he was not in the gondola car and had not participated in the fight and had not even seen the women until the train arrived in Paint Rock. Willie Roberson next testified that he was riding in a boxcar at the back of the train, where he had seen neither the fight nor the women. Willie Roberson testified further that he was suffering from a bad case of venereal disease. He stated that it would have been impossibly painful for him to commit a rape. He testified, "I have chancres. It pains and hurts me all the time. I was sick on the boxcar. There was something the matter with my privates down there. It was sore and swelled up. It hurt me to walk. I cannot lift anything. I am not able to have sexual intercourse. I couldn't have." Andy Wright testified that he had seen the fighting between the "colored and whites", but said his only role was to pull Gilley back on the train to keep him from getting hurt. He insisted that he had not even seen the women on the train and only found out they were there when the train got to Paint Rock. He had been by himself in a boxcar near the rear of the train and had not seen what happened to the white women. On cross-examination, he denied having raped the women. He denied that he said at the time, "Yes, you will have a baby after this." The emphasized, "I will stand on a stack of bibles and say it." Olen Montgomery testified that he had been in a boxcar near the end of the train and had seen and done nothing. He testified, "If I had seen them, I would not have known whether they were men or women. I cannot see good. His glasses were not good and he had lost them after his arrest. Eugene Williams also denied participating in the fight in the gondola car, but admitted he had seen it. However, he also denied having seen the women. On cross examination he admitted that he had been carrying a knife, but he denied that he has used it to help rape the women.

The prosecution called Victoria Price as a rebuttal witness. She repeated her claim that Eugene Williams had raped her, while the others held William's knife against her throat. The prosecution then called witnesses who testified that they saw Willie Roberson run over train cars and leap to the next cars to show that he was not in as bad a physical shape as he said his venereal disease had rendered him.

The prosecution called Sim Gilley as a rebuttal witness, the white boy who Price had testified was in the Gondola car at the time of the rapes. He testified that he "was one of the boys on the train that day" and that he saw all the "negroes" in that gondola. The prosecution asked him, pointing to the defendants on trial at the counsel table, "How many in that row there? Look at that row of five sitting on the front — get up and walk over there if you cannot see them." The defense vigorously objected to this testimony on the ground that the state was "reopening the case". That is, the state was presenting entirely new evidence and was not "rebutting" (that is, responding to) any evidence the defense had offered in its part of the case. The Court overruled the objection. Gilley then testified that he saw "every one of those five in the gondola." However, he did not confirm that he had seen the women raped, and, probably with good cause suspecting a prosecution trap, the defense just left it that way by not asking him any questions about it.

The defense again waived closing argument. The prosecution, knowing from the previous trials that the defense would do this, stood up, went to the jury and proceeded to make more argument. The defense objected vigorously, but the Court allowed it. Judge Hawkins instructed the jury that any of the defendants who aided and abetted the crime were just as guilty as any of the defendants who had committed it. The jury began deliberating at four in the afternoon on Wednesday, April 8, 1931. Early Thursday morning, the jury found them all guilty and imposed the death penalty on all of them.

Scottsboro trial of Roy Wright

Roy Wright

The prosecution agreed that 14-year-old Roy Wright was too young for the death penalty and agreed not to seek it against him. The prosecution presented only the rehashed testimony of Price and Bates against him. The defense presented only the testimony of Roy Wright himself. His case went to his jury at nine that evening, which had both juries deliberating at the same time. The guilty verdicts and death penalties were returned against Powell, Williams, Roberson, Montgomery, and Andy Wright came at nine on Thursday morning but Roy Wright's jury hung that afternoon. All the jurors agreed on his guilt, but seven insisted on the death sentence and five held out for life imprisonment, even though the prosecution had not requested it. Judge Hawkins declared a mistrial for Roy Wright.

The eight death sentences

The eight convicted defendants were assembled together on April 9, 1931 to be sentenced by the Court to death by electrocution, the first time Judge Hawkins had pronounced the death sentence in his five years on the bench. The Associated Press reported that the defendants were "calm" and "stoic", as Judge Hawkins handed down the death sentences one after another.

Judge Hawkins fixed their executions for July 10, 1931, which was the earliest date Alabama law allowed. The defendants were immediately sent to death row in Kilby Prison in Montgomery, Alabama. Their cells were next to the execution chamber. While appeals were filed for them, the Alabama Supreme Court issued indefinite stays of executions for them only seventy-two hours before they were scheduled to die. During their wait on death row, another prisoner, Will Stokes, was executed on July 10, 1931, which they could hear. They later recalled that Stokes had "died hard".

The Communist Party takes over the cases

The calling out of the National Guard attracted the attention of the national media to small town Scottsboro and its trial. The New York Times and the Associated Press reported the trial, which caused a demonstration in Harlem. The cause of the Scottsboro defendants had also come to the attention of the American Communist Party. James Allen, who was a party member, Chattanooga resident and editor of the Communist publication Southern Worker, first heard about the case over Chattanooga radio right after the posse stopped the train in nearby Jackson County, Alabama. The Party took a quick interest in the case. "By publicizing the plight of the boys and defending them in court, the Party saw the chance to educate, add to its ranks, and encourage the mass protests not only to free the boys but bring about revolution." As a result, the Communist Party used its legal arm, the International Labor Defense (ILD), to take up their cases within a week after the guilty verdicts. The ILD persuaded the parents of the defendants to let them champion their cause. The ILD and the parents together then retained attorney Joseph Brodsky and former Solicitor General of Hamilton County, Tennessee, George W. Chamlee to represent them on appeal to the Alabama Supreme Court. The NAACP tried to persuade them to let them handle the case, offering even the services of famed defense attorney Clarence Darrow. However, in the end, the Scottsboro defendants decided to let the ILD handle their appeal to the Alabama Supreme Court.

Motions for new trial

Newly hired attorney George W. Chamlee moved for new trials for all defendants. Private investigations took place, and revealed that Price and Bates had been prostitutes in Tennessee. In fact, acquaintances alleged that Price had regularly serviced both a black and white clientele in the mixed race neighborhood in which she had plied her trade. Chamlee offered Judge Hawkins affidavits to that effect, which Judge Hawkins forbade him to read out loud. The defense argued that this information proved that the two women had likely lied at trial both about not being prostitutes and not having had sex with men other than the defendants. Chamlee also made it part of the basis for the motion for new trial the demonstration after the trial as further evidence that the initial petition for a change of venue based on a hostile community attitude toward the defendants should have been granted. Retrial attorney Samuel Leibowitz is almost universally credited with raising the issue of the fact that African Americans were excluded from Alabama juries. However, his role in raising the issue on retrial was to put on actual witness testimony on the issue, which thereby got into the record of the case the undisputed facts that eventually allowed the defendants to prevail on the issue in the United States Supreme Court. It was Chamlee who first raised the race exclusion issue in the case when he made it part of his motion for a new trial. Judge Hawkins quickly denied these motions, but they became the basis upon which the new defense team unsuccessfully tried to get these issues before the Alabama Supreme Court, in the place of the objections at trial that attorneys Moody and Roddy had failed to make.

Alabama supreme court affirms convictions

The convictions were all duly appealed to the Alabama Supreme Court, which affirmed all but one of them.

Following Judge Hawkins's denial of the motions for new trial, Communist Party hired Attorney George W. Chamlee filed an appeal to the Alabama Supreme Court, where he moved for and received the routinely granted stay of execution for his clients. Chamlee was joined in this appeal by Communist Party hired attorney Joseph Brodsky and ILD attorney Irving Schwab.

One of the main arguments of the NAACP in trying to persuade the defendants and their families to let them handle the case was that the involvement of the Communist Party would cause a backlash against them — which it did. When Brodsky and Chamlee presented their oral argument to the Alabama Supreme Court, they received a very frosty reception. The justices accused the ILD of being behind the threats they had been receiving, which Brodsky and Chamlee emphatically denied. Brodsky and Chamlee still stoutly made several pointed arguments to the Court. They argued that their clients had not had adequate representation from their unable to prepare attorneys. They argued, because of the short time span between arrest and trial, there had been no opportunity for their clients' trial counsel to prepare their cases for trial. They argued the crowd had intimidated the jury. They argued that it was unconstitutional to exclude blacks from the jury that had convicted their clients. Alabama Attorney General Thomas Knight, Jr. and son of one of the Justices, Thomas Knight, Sr. to whom he was arguing (who did not recuse himself), had little need to say much. He made the argument that the crowd in Scottsboro was completely understandable, because of the natural passion of Southerners to defend white womanhood. Whether or not what Attorney General Knight argued about white Southerners was factually true, that fact was not in the record of the case and there was, of course, no justification in the law for a mob to intimidate a jury — then or now.

Appeals courts seldom reverse a case because there was not enough evidence presented at trial to convict the appellant before them. There either has to be no evidence at all of guilt in the record or that "reasonable minds cannot disagree" that the facts found by the jury were impossible — like if a rape victim positively identifies a defendant, while the DNA results positively show it could not possibly have been he, but the jury convicts him anyway. Otherwise, the offsetting maxim in the law to guide appellate review is that "reasonable minds differ." Therefore, if appellate courts find any evidence at all in the record that, "if believed," supports a finding of guilt, they will not reverse a conviction because there is merely a weak case against the appellant before them. Thus, when Victoria Price and Ruby Bates testified that they had been raped and identified these defendants, these condemned youth no longer had any chance of getting an appeals court to agree that there was not enough evidence to sustain their convictions. If the jury believed them, then no appeals court reviewing the case will ever question the soundness of that belief. With that principal in mind, the Alabama Supreme Court's opinions paraded much of the evidence against these appellants that, "if believed", would support the convictions against them. However, the Court's opinions made many gratuitous expressions of outrage about the horror of the crime before them, which left little doubt that they believed it all "in whole cloth". So, the only real question before the Alabama Supreme Court on these appeals was whether the trial court made procedural errors — that is, errors in the way Judge Hawkins conducted the trial. Even arguing that the trial judge made a procedural error is an "uphill battle" for appellants. All appellate judges may review are the passionless words in the trial transcript. Trial judges, on the other hand, were there live and are thought to have the best feel for how the case should be conducted. The law thereby gives them considerable "discretion" in how to manage the actual conduct of the case. As a result, what appellant courts review is whether the trial judges in question "abused their discretion" — a very murky principle which is basically what the appeals court says it is. Far away in place and time, appeals courts, more often than not, are slow to second guess the "front line" trial judge and find such abuse. So, time after time, the Alabama Supreme Court found that, while they did not put it this way, the many things Judge Hawkins did in the trial of these cases that made it impossible for these appellants to defend themselves was within his "discretion". Another principle of appellate review is that defendants must object to an alleged "error" at trial before that alleged error will be reviewed on appeal. Referring to that principle, time after time, the Alabama Supreme Court refused to consider the most egregious instances of judicial abuse in the cases before them, because frantically rushed Attorneys Moody and Roddy had not objected to them before or during trial. The appellants' new legal team had raised those issues only after the trials in their motions for new trial.

Decision for Patterson

On March 24, 1932, the Alabama Supreme Court issued its decisions on these appeals, in which Justice Joel Bascomit Brown, writing for the majority, confirmed the convictions and death sentences of all but juvenile thirteen-year-old Eugene Williams. These cases were not published in the order they were tried, which enabled the Court to refer to cases in its later decisions rather than repeat all of its rationale in all of its decisions for these highly interrelated cases.

The first appeal the court considered was that of second to be tried Haywood Patterson. The Court first considered his assertion that the petition for a change of venue should have been granted. However, the Court noted that he had signed it himself at a point he was confined in jail and thereby could not possibly have known the "state of the general public feeling and sentiment of the county". Roddy and Moody had attached three newspaper articles to their petition reporting the crowd that had gathered for the trial. However, the Court did not see anything particularly "inflammatory" in them. "In fact," the Court ruled, "these publications were in a sense conciliatory, apparently designed to suppress rather than create an unlawful hostile sentiment against the accused." As to "the articles appearing in the Montgomery Advertiser and the Chattanooga paper, there was no evidence showing to what extent, if any, said papers were circulated in the county from which the jurors were to be drawn, and in the absence of such proof these publications were entitled to little or no weight." The Court noted that the only testimony from witnesses "who were in a position to ascertain and know the nature of the public feeling", offered to support the hostility of the crowd was from Sheriff Wann and National Guard Commander, Major Starnes. They testified that "the crowds that gathered were not disorderly, and readily dispersed when advised by some of the leading citizens of Scottsboro to do so, and there is nothing in the evidence going to show race prejudice against the accused, or local prejudice in favor of the girls who are alleged to have been mistreated. In fact, neither the defendant nor his alleged victims reside in Jackson County." Thus, as to the crowd outside the court house, the Court found, "the evidence shows nothing more than the gathering of a crowd impelled by curiosity, and not for hostile or punitive purposes." The Court conceded, "True, the evidence shows that the sheriff requested the Governor to send a company of the state militia to protect the defendant, and that prompt orders to this end were given and carried out, and that they were present during the proceedings; but this, without more, is not enough to authorize the granting of the motion." So, the Court found no error in the denial of the Petition for a Change of Venue.

The appellants cited as error that they had not been allowed at trial to ask Victoria Price, "Did you ever practice prostitution?" The Court ruled that not allowing this question was proper because her consent was not an issue in the trial. Moreover, the Court ruled, "Previous chastity is not an essential element of the offense charged in the indictment, and, where this is so, rape may be committed on an unchaste woman, or even a common prostitute." The Court ruled that the question to the examining doctor as to whether the women had a venereal disease was properly denied for the same reason.

The new defense team, in their motion for a new trial, had asserted that there was no evidence that Patterson had participated in the rapes and therefore Judge Hawkins should have granted him a new trial. However, the Court noted that Petterson's own witnesses had "participated in the affray with the white boys." From this testimony, the Court concluded that "This testimony tends to show a conspiracy between those who went into the car and forced the white boys from the train, and that this appellant aided and abetted in the commission of the offense." Thus, "the verdict is amply supported by the evidence."

The motion for new trial asserted as prejudicial that the crowd in the previous case has burst out in applause within the hearing of this appellant's jury. The Court noted that there was no mention of that in the record of the case. While the appellant had offered affidavits and testimony to the effect that this outbreak of applause had occurred, the Court ruled, "It is not permissible to inject such matters—occurrences during the trial in the presence of the court—by evidence aliunde on the hearing of the motion for a new trial, for the all-sufficient reason that such practice would inject into such hearing a controversy in respect to which the court might be advised by his own personal observation, leading to the conclusion that the issue was without merit." In other words, it was not possible to prove with testimony what the trial judge had been in a position to observe personally. If the trial judge did not mention it, nothing had occurred. Therefore, the Court concluded, "the issue is not presented." The Court found no error.

The appellant raised in its motion for new trial the prejudicial effect on this appellant's jury of the uproar on the street and the band striking up when the first guilty verdict was announced. The Court described this outburst as "some commotion on the streets". As to the band playing such tunes as There'll Be A Hot Time In The Old Town Tonight, the Court found that, "the parade was put on by the Ford Motor Company in demonstrating Ford trucks, and had no connection with the proceedings in this case against the defendant; that the noise was made by a graphophone with an amplifier to attract the people in Scottsboro to inspect the caravan of Ford trucks, brought into Scottsboro by the 'Ford people' in no way connected with that county, except they had an agency there. The only other music was by the hosiery mill band playing for the guard mount of the militia after 6 o'clock in the evening." Anyway, the Court continued, "The evidence as to the extent of the commotion or applause in the street was in conflict, and the evidence fails to show that it was such as to reach the ears of the jury, which was then confined in the jury room in the courthouse." Again, the Court found no error.

The appellant raised in his motion for new trial that Negroes had been excluded from the jury that tried him. However, the Court noted that the issue had not been raised before trial and found that there was no support for this allegation, if it had. It ruled, "there is nothing in the statutes regulating the selection of persons qualified to serve as jurors, or in the interpretation of said statutes by the courts that in any way discriminates against any citizen as to his right to serve as a juror; nor does the evidence show any such discrimination in this case." So, denying a motion for new trial on this ground also was not error.

Last, the Court addressed the appellant's assertion of "newly discovered evidence" in the form of the affidavit that accuser Victoria Price was a "common prostitute". The Court said that this new evidence did not go to prove that the appellant had not had sexual intercourse with Price. It did not support his contention that he was not in the gondola car when the rape occurred. Further, "evidence going to show specific acts of sexual intercourse between the alleged victim and other men, and her general reputation for chastity, was not material as going to show consent." Anyway, this evidence went only to Price's credibility, which was not the sort of evidence that warranted a new trial.

Therefore, the Court affirmed the conviction of Haywood Petterson as well as his death sentence.

Decisions for Powell, Williams, Roberson, Montgomery and Andy Wright

Main article: Powell v. State

The Alabama Supreme Court did grant thirteen year old Eugene Williams a new trial because he was a juvenile. The Court addressed the issue raised by Williams that he was under the age of sixteen at the time of his trial and that the Circuit Court in Scottsboro, as a court for adults, had no jurisdiction over him. The Court ruled that it was not up to him to prove that he was a juvenile. Instead, when it was "suggested" to the court that he was a juvenile, the burden was on the prosecution to show that he was not. The Court agreed that Moody and Roddy had brought his age to the attention of the trial court before his trial. Further, affidavits had been filed in the case as to his date of birth and the state had presented no evidence to contradict that evidence. The Court ruled, “Since the statute declares a juvenile delinquent to become a ward of the state, it became the duty of the trial court, upon suggestion that the defendant Eugene Williams was under sixteen year of age, or if his personal appearance suggested a doubt as to his age, to ascertain his age, and, if found to be under sixteen years old, to transfer the case . . . to the probate court, as the juvenile court.” Thus, Williams became the next of the Scottsboro Boys, after Roy Wright, to escape death. However, the Alabama Supreme Court did leave open that possibility, noting that, if the juvenile court found that “such delinquent cannot be made to lead a correct life and cannot be disciplined”, the probate court had the power to send him back to circuit court to be tried again as an adult.

The appellants had cited as error that the indictment against them was unconstitutionally vague. The Court reviewed the law on what constitutes a valid indictment in Alabama and found that the indictment against the appellants fully complied with that standard and was therefore valid. The appellants had cited as error how the jury was selected for their case. The Court reviewed the law on what specifies how juries are selected in Alabama and found that the process by which the jury that had tried the appellants had fully complied with that standard and their jury therefore had been properly selected. The appellants had cited as error the way they had been joined for trial. The Court noted that how cases were joined was within the "sound discretion" of the trial court and, more, that Roddy and Moody had not objected to how the appellants' cases had been joint — which they had not. Therefore, none of these purported errors was "reversible error".

"The evidence fails to show that there was at any time any mob present"

The Court next considered whether Judge Hawkins's denial the petition of Roddy and Moody for a change of venue, which they made right before the start of the first trial, was an "abuse of discretion". The Court did not see the crowd as "threatening." It recited that "the petition does not charge that any actual violence, or threatened violence was offered the prisoners or any of them. Nor does it appear that the 'hundreds of people who gathered about the jail' were armed or disorderly in any wise or to any extent. As to the inflammatory newspaper coverage of the trial, the Court observed that newspapers "have the right to keep the public informed of the happenings throughout the country. Such is the sphere and scope of their enterprise." Therefore, it is only to be expected that they would report this particular crime. Further, "Newspaper accounts, of themselves, cannot be made the sole basis for a change of venue. It must be made to appear to the judicial mind that these accounts, by their circulation, so molded and fixed public opinion as to make it proper that the cause should be removed to some other locality not so affected for trial.". But, no matter what, "Most people of fair judgment, are honest in their convictions, where life and death are at stake, until after due consideration of the facts of the case. And may we also add that, under the laws of Alabama, only such classes are permitted in the jury box." The Court held that the presence of the National Guard at the trial had assured that those trials had been lawfully conducted. They quoted the testimony of National Guard Commander, Major Starnes, who testified at the change of venue hearing that "I have not heard any threats made against these defendants. . . . I think these defendants can obtain here a fair and impartial trial and unbiased. . . . I have seen a good deal of curiosity but no hostile demonstration." The Court continued that if was only natural that "where womanhood is revered and the sanctity of their persons is respected," that "many should have been attracted to Scottsboro during the days covered by the trial, and the preliminaries incident thereto is no small wonder, considering the character of the crime charged against the defendants." The burden was on the defendants to show that a change of venue should have been granted and none of what they had presented was enough to do that. "The evidence fails to show that their trial was dominated by a mob or mob spirit, or that there was at any time any mob present at, or during, the trial, or that the jury was inflamed against the defendants to the point where the defendants to the point where they could not get or did not give the defendants a fair and impartial trial; nor does the evidence show that there was any violence, actual or threatened, against the defendants, from the time of their arrest to the conclusion of their trial." To the twenty first century eye, this part of the Court's opinion may seem, to borrow the colorful phrase of eighteenth century British philosopher, Jeremy Bentham, "nonsense on stilts." It, of course, did not advance the cause of these black appellants in 1932 Alabama that they stood convicted of raping white women-–a crime much worse than merely murdering them. James Goodman, Stories of Scottsboro, p. 220. However, some of these unprepared, illiterate and terrified defendants had essentially testified on the stand, and thereby in the court records that this Court was reviewing, that the rapes had indeed occurred by saying they saw some of their co-defendants committing them. Courts going through many legal gymnastics to keep "obviously guilty" (as they see it) criminal defendants from "getting off on a technicality" is not completely unheard of today, in cases where race obviously played no role at all.</ref>

The Court next reviewed the defense objection to the calling of Sim Gilley (the white boy who had not been thrown off the train) as a "rebuttal witness", after the defense had closed its case, when he did not "rebut" any testimony that the defense put on. He had testified that he had seen all the defendants in the gondola car where the rapes allegedly had taken place. However, the Court ruled that the "evidence was strictly admissible. Whether it was rebuttal, strictly speaking, we cannot affirm, but, if not, the propriety of admitting it was addressed to the sound discretion of the court. There was no error in this ruling of the court." The Court made quick work of the defense objection to Judge Hawkins letting the prosecution make a second argument to the jury after the defense had waived its closing argument. It just ruled that Judge Hawkins "clearly" had the discretion to allow that.

The new defense team asserted that the demonstration that had broken out in the court room upon the return of the first guilty verdict had prejudiced the trial of these defendants. However, the Court held that the testimony presented at the hearing on this motion for new trial did not support that there was any such prejudice caused by these "alleged demonstrations". The Court based this finding on the testimony of several of the jurors for this case, who testified at that hearing. More importantly, the Court held, the defense did not object to this applause and the trial court handled it properly.

In response to the defense motion for new trial on the ground that there had not been enough time to prepare for trial, the Court responded, "No motion for a continuance appears in the record. Therefore, this contention cannot avail defendants made for the first time after verdict. Application, made upon proper grounds, should have been made to the court before the trial was entered upon." As to the Judge Hawkins's immediate trials, the trials had merely granted those defendants their constitutional right to a speedy trial. It observed, "If there was more speed and less delay in the administration of the criminal laws of the land, life and property would be infinitely safer and greater respect would the criminally inclined have for the law."

The appellants cited as error that Judge Hawkins had not granted their motion for new trial on the ground that Negroes had been excluded from the jury. The Court refused to consider that issue, since the defense had not raised it before trial.". Moreover, the Court ruled, states had the right to establish qualifications for jurors, which meant that the defendants had been tried by a jury properly selected by those standards.

The issue the Court considered was the newly discovered evidence in the form the affidavit that Victoria Price was a "common prostitute." The court ruled that this evidence could be used to establish only that she had consented. Since not even the defendants contended that she had consented, the evidence was irrelevant and thus properly excluded.

Responding to the dissent of Chief Justice with regard to the shortcomings of the representation at trial of these defendants, the Court stated that their defense had not been pro forma. Attorney Roddy "expressly announced he was there from the beginning at the instance of friends of the accused; but not being paid counsel asked to appear not as paid counsel, but to aid local counsel appointed by the court, and was permitted to so appear." As to attorney Moody, the Court stated "The defendants were represented, as shown by the record and pursuant to appointment by the court by Hon. Milo Moody, an able member of the bar of long and successful experience in the trial of criminal as well as criminal cases." As to the quality of their representation, the Court held, "We do not regard the representation of the accused by counsel as pro forma. A very rigorous and rigid cross-examination was made of the state's witnesses, the alleged victims of the rape especially in the cases first tried. A reading of the records discloses why experienced counsel would not travel over all the same ground in each case. Whether benefit or hurt would have attended an effort to present an argument for accused is purely conjectural.

Decisions for Weems and Norris

The Court did not revisit the change of venue decision, but simply denied the claimed error with respect to it, citing back to its previous decisions in the Powell and Patterson appeals. The Court summarized the testimony of Victoria Price to the effect that these appellants had thrown the white boys off the "fast moving" train and then raped her with a knife to her throat. The Court then addressed the questions Judge Hawkins had not allowed the defense to ask on cross-examination with regard to Price's prior sexual activity. As to Price those questions were, after first establishing that she was married and not divorced: "Did you leave him (her husband) at Huntsville?" "How long had you known your husband before you married him?" "Were you ever in jail before?" As to the examining physician, Dr. Lynch, the cross-examination questions were: "Both of these girls admitted to you they had had sexual intercourse previous to this, didn't they?" "Both of them told you they had had sexual intercourse, one told you she had been married and the other told you she had been?" "From your examination could you tell whether or not they were subject to intercourse?" "Were they virgins?" "That you find anything in the vagina that indicated to you these girls had had or might have had gonorrhea or syphilis?" And other questions asked of Dr. Lynch "of like import." The Court ruled that these cross examination questions were "immaterial", since they did not go to show that the women had consented. The Court did not address whether this evidence might have shown another way to account for the presence of the semen Dr. Lynch found.

The Court summarized the testimony of Tom Taylor Rousseau who had testified that "I saw Victoria Price a little later. When I saw her at that time they were coming around the depot with her in a chair. She had her eyes closed and was lying over this way and they were bringing her from the depot up to town to the doctor's office. That was Victoria Price. I saw her later one time from where I was. She was still in the chair." On cross examination, he responded that: "One of the girls was not in condition to walk. I did not help carry her off. There was an officer toted (carried) the girl up there. They toted (carried) her off the train, a fellow named M. A. Mize. He had to carry her away from the train, unconscious. I don't know about what the doctor said about her being unconscious at that time. I was not there. I was there at the time the girl was taken off." Whereupon, the defense attempted to ask him, "And if he [the doctor] testified immediately after their arrival here or at Paint Rock she was not unconscious, he is mistaken about it?" Judge Hawkins had sustained an objection to this question. The Court ruled that it was the "province of the jury" to decide which version of Price's unconscious to believe. Also, "the question related, not only to the condition of Mrs. Price at Paint Rock, but also at Scottsboro, and this witness had not testified to her condition at Scottsboro."

The Court next reviewed the testimony of Ruby Bates. After summarizing her testimony on direct, the Court noted that on cross-examination she testified: "I have never been married. I had a conversation with the doctor about having sexual intercourse. I am talking about the doctor after I arrived at Scottsboro, I do not remember his name. I just told him to examine me and see if he could find anything wrong with me. I told him about those negroes." Judge Hawkins sustained a prosecution objection to this defense question to her: "No, not about the negroes, but did you tell him you had had intercourse before?" The Court also found this question to be immaterial. The defense tried to question Bates about why the defendants had let the white boy, young Gilley stay on the train, while they threw all the other youths off. Judge Hawkins sustained a prosecution objection to that question. The Court ruled that this question called for a "conclusion of the witness" and was properly excluded.

The Court then reviewed the testimony of the various witnesses. The Court included lengthy defendant quotations in which, while denying personal participation, admitted that the rapes had occurred. From all that, the Court concluded that, "Appellants' insistence that the evidence does not support the verdict of guilty, as charged in the indictment, cannot be sustained. The evidence, much of which has been set out above, proves the body of the crime, without dispute, and strongly tends to establish a conspiracy between those who forced the white boys to leave the train, to do the unlawful acts which immediately followed, and that they all aided and abetted therein."

As to the "newly discovered evidence", which the Court did not describe in this opinion, the Court ruled: "There is no contention on the part of the defendants, that they had sexual intercourse with the alleged victim by and with her consent, express or implied, and no evidence was adduced to support such contention; therefore evidence alleged to have been newly discovered was not such as would authorize the granting of a new trial."

As to whether appellants had been adequately represented at trial, the Court found: "The record shows that the defendants were represented by counsel who thoroughly cross examined the state's witnesses, and presented such evidence as was available in their behalf, and no reason appears why the judgment should not be affirmed." Again, the Court affirmed these convictions as well.

Thus, the Alabama Supreme Court affirmed all convictions and rescheduled the executions.

Dissent of Chief Justice John Anderson

Chief Justice John C. Anderson opined that the defendants had not been accorded a fair trial and strongly dissented to the decision to affirm their sentences. 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.” He pointed out that the National Guard had shuttled the defendants back and forth each day from jail in Gadsden, Alabama, where they were held for their safekeeping, to trial in Scottsboro. “Whether this was essential to protect the prisoners from violence, or because the officials were over apprehensive as to the condition of the public mind, matters little, as this fact alone was enough to have a coercive effect on the jury.”

File:Anderson, John Crawford.jpg

Chief Justice John Anderson

Justice Anderson was critical of the way 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 during most of the time from arrest to trial and local counsel had little opportunity to confer with them and prepare their defense. Moreover, "time has demonstrated that they could have and would have been represented by able counsel had a better opportunity been given by a reasonable delay in the trial of the cases judging from the number and activity of counsel that appeared immediately or shortly after their conviction. Justice Anderson then made the "pertinent suggestion," which he did not intend "as a harsh criticism of local counsel that did attempt to defend an indigent defendant whom he may feel is guilty and as against whom public sentiment is at fever heat, the record indicates that the appearance was rather pro forma than active and zealous. Justice Anderson, while are acknowledging that there are times when waiving final argument is a valid trial tactic, went on to point out as an example of this underzealous defense representation, the failure of the defense to make closing arguments. "[W]here there is no agreement and the solicitor or prosecutor makes two arguments and the counsel for the defendant makes none, it is bound to make an unfavorable impression on the jury.

Justice Anderson pointed out that upon the return of the first verdict, “the court room was not only crowded, but there was great applause and demonstration of approval and this was bound to have influence over those to try the succeeding cases.” As another example that “the juries that tried these cases were coerced by public feeling and sentiment or actuated through passion or prejudice”, he noted that the punishment for rape that the juries could have fixed ranged between ten years and death. There had to be some factors, such as leadership roles in the crime or the ages of the various perpetrators “that would render the conduct of some less culpable than others, yet we find no discrimination whatsoever in the fixation of punishment” (i.e., they all received the death sentence alike).

He continued that "According to the state’s theory, the crime was brutal and harrowing and calculated to arouse the indignation of every one and even stir the blood of the cooler and law abiding citizen." Even so, he wrote, "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." Chief Justice Anderson concluded, "He is a human being. He is entitled to this. Let not an outraged public, or one which deems itself outraged, stain its own hands — stamp on its own soul the sin of a great crime — on the false plea that it is but the avenger of the innocent." Since they said so, there is no doubt that the Justices of the United States Supreme Court read Chief Justice Anderson's words.

United States Supreme Court reverses

Main article: Powell v. Alabama

Background

Many in the North were outraged by the decision of the Alabama Supreme Court and many in the South were outraged by the outrage, since, to their way of looking at it, the whole fuss was caused by "outside agitators." They had, after all, given these defendants a trial, rather than just lynching them the first night. Many in the South asked, "What more did those Communist trouble makers want?" The ILD retained prominent constitutional attorney Walter Pollak to appeal the case to the United States Supreme Court which appeal, the Supreme Court agreed to hear. Alabama Attorney General Thomas Knight, Jr. represented the State of Alabama.

Criminal defendants do not have an absolute right to have their convictions reviewed in the United States Supreme Court. Applicants for review must file a "Petition for a Writ of Certiorari" that argues not only that their respective cases involve a violation of their rights under the United States Constitution, but also that the constitutional issues presented in their respective cases are so important and are of such widespread import that the Court should review and decide them to give other courts a precedent as to how those issues should be handled. Four Justices (the "Rule of Four") must agree to hear the case; otherwise, the writ is denied. Although the United States Supreme Court routinely denies thousands of Petitions for this Writ each year, the court chose to grant this one.

Decision

Attorneys Pollak and Knight made their oral arguments to the Supreme Court on October 10, 1932, amidst tight security. However, while there were protests in other places to coincide with the hearing, there were no demonstrations that day in the vicinity of the Supreme Court Building itself. Appellant attorney Pollak argued that Alabama had denied the defendants due process of law. First, they could not get a fair trial due to the mob atmosphere that prevailed at the time. Second, the strange way the attorneys in the case had been appointed and the subsequent poor performance of those attorneys at trial had effectively denied them assistance of counsel at their trials. Last, he argued that African Americans were systematically excluded from jury duty in Jackson County, Alabama, contrary to the "equal protection of law" guaranteed by the Fourteenth Amendment to the United States Constitution. Attorney General Knight countered that there had been no mob atmosphere at the trial, because the crowd was only "curious." He pointed to the finding by the Alabama Supreme Court that the trial had been fair and there had been representation by "able" counsel. He told the Court that he had "no apologies" to make for the way Alabama had handled the case.

United States Supreme Court Chief Justice, Charles Evans Hughes

The United States Supreme Court, in a landmark decision, which still has many far reaching applications, reversed the convictions on the ground that the due process clause of the United States Constitution guarantees not only the assistance of counsel at a criminal trial but also that such assistance must be effective. That is, a criminal attorney must put up a competent defense for his or her client, which the attorneys for these defendants clearly had not—mostly out of Judge Hawkin's failure to give the defense any chance to prepare their cases and likely also at least partially as a result of the mob intimidation against the four juries in that community while those trials were going on. Thus, the Supreme Court, in an opinion written by its Chief Justice Charles Evans Hughes, found that these defendants had been denied the effective assistance of counsel at their trial. Alabama Chief Justice John Anderson must have found great vindication in reading the United States Supreme Court repeatedly quoting his dissent and repeating his logic in its decision. While the Court did quote Justice Anderson's remark in his dissent that the defense in the case had been "rather pro forma than zealous and active, the Court pointedly did not fault Attorneys Moody and Roddy for that shortcoming. The Court noted that both had told Judge Hawkins plainly that they had not had time to prepare their cases for trial. In the case of Attorney Roddy, the Court expressly stated that he had acted in the "utmost good faith." The problem was instead with the way Judge Hawkins "immediately hurried to trial", having only established a "dubious understanding" as to the capacity in which their attorneys were representing the defendants before him. As to Judge Hawkins's statement that he had appointed all members of the Scottsboro bar to represent these defendants, the Court ruled, that "thus collectively named, have been given that clear appreciation of responsibility or impressed with that individual sense of duty which should and naturally would accompany the appointment of a selected member of the bar, specifically named and assigned." With regard to the inadequate time Judge Hawkins allowed the defense to prepare for trial, the Court ruled that "It is not enough to assume that counsel thus precipitated into the case thought there was no defense, and exercised their best judgment in proceeding to trial without preparation. Neither they nor the court could say what a prompt and thoroughgoing investigation might disclose as to the facts. No attempt was made to investigate. No opportunity to do so was given."

As a result, it reversed their Alabama convictions. Specifically, the Supreme Court ruled:

In the light of the facts outlined in the forepart of this opinion- the ignorance and illiteracy of the defendants, their youth, the circumstances of public hostility, the imprisonment and the close surveillance of the defendants by the military forces, the fact that their friends and families were all in other states and communication with them necessarily difficult, and above all that they stood in deadly peril of their lives-we think the failure of the trial court to give them reasonable time and opportunity to secure counsel was a clear denial of due process.

However, whether there is enough evidence in a case to support a conviction is not a constitutional issue. The jurisdiction of the United States Supreme Court with respect to state courts only pertains to issues that involve the United States Constitution. Therefore, this victory, momentous though it clearly was, did not find these Scottsboro defendants innocent. It ruled only that the procedure by which Judge Hawkins had so swiftly tried them had violated their rights to due process under the Fifth and Fourteenth Amendments of the United States Constitution. The Court also did not rule on the issue whether the alleged de facto exclusion of African Americans from the Jackson County, Alabama jury was a violation of the constitutional guarantee of equal protection of law. There was probably not enough evidence in the record at that time to prove it existed and courts are reluctant to extend rulings on constitutional issues any further than the case before them requires. Therefore, they left that issue for another day — which would come. So, the United States Supreme Court sent the case back to Judge Hawkin's Court in Jackson County, Alabama for a retrial that gave their attorneys time to prepare their defenses.

Trials in Decatur

Transfer of the case to Decatur

When the case came back to Judge Hawkins, he granted the motion for a change of venue and the case was transferred for the second round of trials to Decatur, Alabama, a town on the south bank of the Tennessee River, which then had a population of 18,000. By this time, even more than it had been before, the case had become a major cause celbre and the American Communist Party still maintained its effective and arguably counterproductive control over the case. While there is little doubt that their interest was less the benefit of the defendants than to create a propaganda bonanza by highlighting the shortcomings of justice in the American capitalist legal system, it is hard to fault the results their efforts and treasure had achieved for these defendants at that point. They retained famed defense attorney Samuel Leibowitz to be the lead attorney in the case. Leibowitz, a New York criminal attorney, had won an impressive seventy-seven acquittals and one hung jury in the seventy-eight murder trials he had defended. Liebowitz was a registered Democrat who had no involvement or shared beliefs with the Communist Party. They kept their own chief attorney, Joseph Brodsky, to serve in the second chair for the trial. This time, the trials would be completely different and the outcomes not very different.

Photo of middle-aged man

For this round of trials in Decatur, the case was assigned to District Judge James Edwin Horton of the Eighth District. The case would be tried in the Limestone County Court House. His appointment to the case drew local praise. Alabama Attorney General Thomas Knight, who would prosecute the case on retrial, said Horton would "make an excellent judge". The Limestone Democrat, from Judge Horton's hometown of Athens, opined that he would not give the "foreign defense" reason to complain. He had served as a Circuit Judge since 1922. Before that, he had been a state representative and state senator. He was said to have accepted the correctness of segregation. However, he had dedicated himself to the non-controversial causes of election reform and road improvement." The two years that had passed since the first trials in Scottsboro had little dampened the hostility the community harbored against these defendants. There were many who felt with equal fervor that they were the worst kind of victims of Jim Crow justice. Judge Horton carried a loaded pistol in his car throughout the time he presided over these cases.

Decatur, which enjoyed the luxury of never lending its name to the case, took well to the attention and influx of media and participants that the case drew to them in that March 1933. The town cleaned itself up for the visitors. The weather was spring-like, which favorably impressed the visitors from the north. Leibowitz was impressed with the city's "wide clean streets.", However, Decatur was not the defense choice. They had urged the big city of Birmingham, Alabama, rather than the small, rural community of Decatur, to which Judge Hawkins had transferred the case. This city adjoined the county where the two alleged victims lived and was only fifty miles away from the birth place of the Ku Klux Klan. And while the attorneys and press had reason to enjoy Decatur hospitality, the defendants did not. They were housed in the decrepit Morgan County Jail, a short distance from the Court House, which the County had declared to be unfit for holding white prisoners. Attorney Leibowitz described it as "hardly fit for pigs."

There also some hundred reporters in attendance seated at the assigned press tables. Hundreds more gathered on the courthouse lawn, basking in the pleasant spring weather. National Guard members in plain clothes mingled in the crowd, looking for any sign of trouble. The Sheriff's department brought the defendants to the Court House in a patrol wagon, guarded by two carloads of deputies armed with automatic shotguns. When the defendants were brought into the court room in their blue prison denims the deputies took off their handcuffs, sat them in a row behind their attorneys and National Guardsmen stood on both ends of them to guard them. Only thirteen year old Roy Wright, who had not been convicted in Scottsboro because of his age, wore street clothes, which the Birmingham News described as making him look like he was "dressed up like a Georgia gigolo".

Leibowitz began his case by asserting his trust in the "God fearing people of Decatur and Morgan County." Enjoying an abundance of time and resources (unlike the attorneys for these defendants at their first trial), he was able to and did very thoroughly prepare for trial. He began by making a pretrial motion to quash the indictment against the defendants on the ground that blacks were systematically excluded from the grand jury that had brought the indictment against his clients. In this way, unlike at the previous trial, Leibowitz properly got this issue in the record of the case for purposes of a later appeal. To this motion, Attorney General Thomas Knight responded, "The State will concede nothing. Put on your case." So, he did. Leibowitz put on proof to that effect by showing that the local list of those called as jurors contained no blacks and no African American had ever served as a juror. He called a very nervous J.S. Benson, Editor of the Scottsboro weekly newspaper, The Progressive Age that, as to jurors on a Jackson County jury, he admitted "Never heard of one. Never noticed one." When asked why he thought no black ever served, he replied, "They all steal". He then called local jury commissioners to explain the absence of African Americans from Jackson County juries. They said the issue was "never discussed." Leibowitz was very surprised by the candor of these white witnesses. As historian, James Goodman put it:

They were some of northern Alabama's leading citizens. Yet they revealed their worst sides to him without the slightest sense of embarrassment and without the slightest understanding of how they sounded to him and to others who might be unfamiliar with white southern ways. When Leibowitz accused them of prejudice, they denied it. When Leibowitz accused them of excluding black men from juries, they at first seemed to not comprehend what he was accusing them of. It was as if, to these middle age men in the middle age of segregation, the exclusion of Negroes from juries, like the prejudice that generated it, was unconscious. Leibowitz had imagined the process was a highly self-conscious conspiracy. But these men took it for granted. Where Leibowitz saw racism, they saw nothing at all.

Leibowitz then put on local black professionals as witnesses to show that there were many qualified black candidates for jury service in the community who were among those who were being systematically excluded. Observers were shocked that he treated them with more respect than he had treated the white witnesses, even making an issue of the fact that Knight did not address them as "Mister". For his part, Leibowitz was equally shocked at the way the prosecution treated his black witnesses. Leibowitz had called a John Sanford, an African American of Scottsboro to show that he was a qualified grand juror. When Knight started treating him with disrespect, Leibowitz leapt to his feet and challenged, "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."

Legally speaking, while Leibowitz had proven, without contradiction, that there was systematic de facto exclusion of African Americans from Jackson County, Alabama juries, the Alabama Supreme Court had previously ruled that states had a right to do that and the United States Supreme Court had expressly passed up a chance to disagree. So, he abruptly interrupted Leibowitz presentation of evidence on the issue, before Attorney General Knight had a chance to put on any testimony to refute it, and denied the motion. While the motion was denied, this correct legal move turned out to be the ticket for the case to eventually return to the United States Supreme Court to bring about an astonishing second landmark decision — considering how few cases the Supreme Court accepts for consideration even once.

Decatur trial of Patterson

Defense objection to all-white Decatur jury pool

Judge Horton then called the first case against Haywood Patterson. Morgan County Sheriff Bud Davis carried a metal box into the courtroom that contained the names of the potential jurors for the case. Leibowitz objected that this jury pool also suffered from the constitutional defect that African American jurors had been excluded from it. He called Morgan County Jury Commissioner Arthur Tidwell to the stand and demanded that he produce the jury roll. Judge Horton overruled a prosecution objection and ordered Tidwell to produce it. Sheriff Davis lugged in the heavy loose-leaf book into the court room. Leibowitz demanded, "Now, isn't it a fact that all the names written in the book are the names of white citizens?" Tidwell replied that he did not know, followed by this exchange: Leibowitz: "Do you to mean that to be an honest answer? Tidwell: Do you mean to say that I would swear falsely? Leibowitz: I don't mean anything. I'm asking you a question." This questioning of the veracity of a white official went over particularly badly with "row upon row of rough faced, unshaven countrymen in blue denim overalls and cowhide boots as they chewed their tobacco meditatively." The National Guard thought it necessary to post five guardsman with fixed bayonets in front of his residence that night. The tension was somewhat relieved the next morning when Judge Horton overruled the motion.

Prosecution

Attorney General Thomas Knight, Jr

Before jury selection began, Judge Horton delivered an address to the prospective jurors, which ended, "I expect from you proper restraint and a fair decision according to the law and the evidence. We must be true to ourselves, and if we are true to ourselves, we can't be false to any man." The jury of twelve white men was selected by the end of the day on Friday, March 31, 1933 and sequestered in the Lyons Hotel. A large crowd gathered outside the court house for the start of the trial for Haywood Patterson on Monday, April the second. Patterson smiled and wore smoked glasses. The African American section of the courtroom was dressed in their "Sunday best." Attorney General Knight called Victoria Price as his first witness. Wearing a straw hat and a plain black dress, she took the stand where she crossed and uncrossed her legs and played with the beads of her glass necklace as she testified as to what she said had happened to her and Ruby Bates on that freight train in Jackson County back in 1931. Knight took only sixteen minutes for her to tell her story, this time without all the "vivid detail" which had characterized her testimony at the Scottsboro trials." Knight just "covered the bases" by having her testify to just enough to establish that the rapes had taken place, while minimizing her exposure to the many contradictions in her Scottsboro testimony that Leibowitz was sure to confront her with when he cross examined her. Unlike original attorneys Roddy and Moody, there would be no "blind" cross examination for him, which gave her the chance to answer defense questions more helpfully to the prosecution than to the defense. He had what she had said before under oath and on paper. Whatever she said different now, he could confront her with that. The only dramatic thing that happened during Knight's examination of Price was when he pulled a torn pair of step-ins from his brief case and asked Price if those were the ones she was wearing on the day she was raped. Leibowitz objected vigorously that the state had never presented those step-ins during any of the previous proceedings, to which Knight responded, "Well, they are here now" and tossed them into the lap of a juror. Judge Horton had to gavel hard and threaten to clear the court room to bring the side splitting laughter in the court room under control.

Leibowitz had the Lionel Corporation build a thirty two foot scale model of the freight train to illustrate the various points of his defense, especially for his cross examination of the various prosecution witnesses. Leibowitz called this model the "Scottsboro Special". He extended this model out on a table before the witness stand. Even with every such advantage, Price proved to be a hard witness to cross examine. Leibowitz and Price went at it for more than two hours. When asked if the model train in front of her was like the one on which she had been riding when she claimed she was raped, she cracked, "It was bigger. Lots bigger. That is a toy." 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, instead of saying which version of the contradiction was true, 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." Did the gravel on which she was raped cut her back? "I couldn't say." Were her private parts torn? "I don't know whether I was. I felt like I was." When asked about the number of stories the house in Chattanooga, where she claimed to have stayed, she replied, "I never did pay any attention to that." Leibowitz later conceded that Price was "one of the toughest witnesses he ever cross examined." When he asked her, "You are a pretty good actress, aren't you?" She shot back, "You're a pretty good actor yourself." The court sustained a prosecution objection to his attempt to question her about a conviction for fornication and adultery in the Huntsville Municipal Court. The Alabama Supreme Court had ruled that only state court convictions could be used to impeach a witness. Leibowitz asked her whether she had had spent the evening, two nights before the alleged rape, in a "hobo jungle" in Huntsville in the company of a Lester Carter and Jack Tiller. Price vigorously denied it. Price had insisted that she had spent the evening before the alleged rape at the home of a Mrs. Callie Brochie in Chattanooga. Leibowitz pointed out to her 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. Leibowitz suggested that Price made frequent trips to Chattanooga, which she also emphatically denied.

"You're a pretty good actor yourself, Mr. Leibowitz"

The next day, Knight called Price back for her redirect testimony, in which she claimed for the first time, "One of them pulled out his private parts and says, 'when I put this in you and pull it out, you will have a negro baby'." Leibowitz could ask only if she had failed to mention that detail in her testimony in the four previous trials in Scottsboro. The presumably defense-friendly New York Times reported that her redirect testimony, that second morning, was "without a flutter of an eyelash and in a voice that carried to every corner of the court room." It described Leibowitz at this point as "shaking with anger". As 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."

The whites in the court room, undoubtedly including the jury, hated this "New York Jew", especially one hired by the Communists, for treating "one of our women" that way. Some wondered if there was any way he could leave Decatur alive. 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." In another instance, Captain Burelson caught wind that a group had loaded up in a car in Scottsboro and Huntsville and was on their way to "take care of Leibowitz". Burelson raised the drawbridge across the Tennessee River, which succeeded in keeping them out of Decatur. At another time Judge Horton, hearing of a meeting in Decatur in which violence was proposed, sent out the jury and warned those in 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. Any men or group of men that attempts to take charge outside the law, are not only disobedient of the law, but are citizens unworthy of the protection of the State of Alabama, and unworthy of the citizenship they enjoy." The National Guardsmen were doubled both inside and outside the Court House. However, those partisan to the defense also wrote letters, mostly from the North, threatening violence. One from Chicago read, "When those Boys are dead, within six months your state will lose 500 lives."

Dr. R.R. Bridges testifying in Decatur

The next prosecution witness was Dr. R.R. Bridges, who repeated his Scottsboro testimony that he had examined the two women less than two hours after the alleged rapes and found "lots" of "male germ" in them. However, he "couldn't swear" as to the exact time they had earlier had intercourse. He testified that it was very unusual for semen not to be motile two hours after a multiple rape. When he examined the women, they were calm and their pulses were normal. Price "seemed a bit cross and didn't want to cooperate." However, when he examined them the next morning, they were "crying and nervous and hysterical". Leibowitz got Dr. Bridges to admit on cross examination that "the best you can say about the whole case is that both of these women showed they had sexual intercourse?" The prosecution then withdrew the testimony of the other examining doctor, Dr. Marvin Lynch as "repetitive". Many years later, Judge Horton said that Dr. Lynch had approached him and asked to talk to him in private. He confided to Judge Horton in a guarded rest room that the women had not been raped and when he confronted the women with that they had just laughed at him. However, he was only a short time out of medical school and, if he testified for the defense, his practice in Jackson County would be over. Thinking the case against Patterson was so weak he would be acquitted anyway, Judge Horton did not force Dr. Lynch to end his career by mentioning this to the defense. However, to him, he was now convinced of the innocence of the defendants. Thus, unknown to any at the time, Leibowitz and other factors had started to raise doubts in the mind of Judge Horton about the case against these defendants.

Paint Rock ticket agent W.H. Hill first testified for the prosecution that he had seen the women and the black youths in the same car. However, Leibowitz, on cross-examination got Hill to admit that he had not seen the women until they got off the train. Posse member Tom Rousseau first testified for the prosecution that he had seen all the black youths in one car. However, Leibowitz forced him to admit on cross-examination that he actually had found the defendants scattered in various cars at the front of the train. Prosecution witness Lee Adams testified that he had seen a fight on the train. However, on cross, he admitted that he had been a quarter mile from the track and had seen nothing. Ory Dobbins repeated his Scottsboro testimony that he had seen the women try to jump off the train, but the defendants grabbed them and pulled them back on. On cross, Leibowitz produced photos that showed that Dobbins could not have seen everything he claimed — just a quick glimpse of a fast moving train. Leibowitz asked Dobbins whether he was sure that it was women he saw. Dobbins responded that he was sure, since they were wearing women's clothing. Since absolutely every one else had testified that the women were wearing overalls at the time, that answer caught even Judge Horton's attention. He asked, "Women's clothes? Are you sure it wasn't overalls or a coat." However, Dobbins persisted, "No sir, a dress."

Defense

After the State rested, Leibowitz began his defense. He called Chattanooga resident Dallas Ramsey, who testified that his home was next to the hobo jungle where Price denied she had been. He testified that he had seen both Price and Bates in that hobo jungle on the morning of the alleged rape and he saw them get on a train with a white man. 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. Leibowitz next called to the stand Lester Carter, who testified that he had intercourse with Bates and a Jack Tiller had had sex with Price two days before the alleged rapes. He further 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. However, he did admit that defense attorney Joseph Brodsky had paid his rent and bought him a new suit.

Five of the original nine Scottsboro defendants testified for the defense. They were all adamant that they had not even seen Price and Bates until the train stopped in Paint Rock. Accused, but not yet on trial, defendant Willie Roberson testified that on the day of the alleged rapes he was suffering from syphilis, with sores all over his private parts. He could not even walk, let alone hop from car to car, fight anyone and commit a rape. He stated that he was in a car at the back of the train when these incidents had allegedly taken place. Olen Montgomery testified that he had been alone on a tank car the entire trip had not even known about the fight or alleged rapes at the time. 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 fateful 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 where their testimony supposedly differed from their testimony at their trial in Scottsboro. However, they pretty much held their own.

Haywood Patterson testified on his own behalf that he had not seen the women before stopping in Paint Rock either. Attorney General Knight blasted him with a blistering cross examination for more than an hour, in which he "shouted, shook his finger at, and ran back and forth in front of the defendant". A fellow death row inmate had testified that Patterson had quipped to the other prisoners on death row about how Bates and Price had cried when he raped them. Knight asked him about that testimony, to which Patterson replied, "No sir, I haven't mocked no girl crying. How could I mock them. How could a man rape a girl with Gilley hanging on the side when we taken him back and saved his life?" At one point, Knight demanded of Patterson, "You were tried at Scottsboro?" Patterson immediately responded, "I was framed at Scottsboro." "Who told you to say that", Knight demanded. Patterson replied, "I told myself to say it."

The defense rested "with reservations". Right after resting his case, someone handed Leibowitz a note that one of the alleged victims, Ruby Bates, had shown up to testify as a defense witness. In the months before the trial, Bates' whereabouts were a mystery. Bates had disappeared from her home in Huntsville several weeks before the start of the new trial. Her mother speculated that she may have been kidnapped. Knight informed the Court two days before trial that she was missing and every sheriff in Alabama was ordered to look for her. Leibowitz and Knight went to the bench, where a hushed conversation followed. After a short recess, Leibowitz called her name as the next witness and the two guardsmen with their bayonet tipped rifles pulled the doors open and Ruby Bates made her entrance. "Through the doors came a trim, girlish figure with a dark complexion, in stylish clothes, eyes downcast." Every head turned to her. Judge Horton left the bench and stared at her from within the railed enclosure. The prosecutors seethed with anger. They called Victoria Price from an anteroom for Bates to identify her. The two women glared at each other hatefully and Attorney General Knight had to step between them and warn Price to "keep your temper." Bates testified that there was no rape, that none of the defendants touched her or even spoke to her. Leibowitz asked if she and Price had been raped on March 25, 1931. Bates: "No sir." Leibowitz: "Why did she lie?" Bates: "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 had said that "she didn't care if all the Negroes in Alabama were put in jail." She admitted that she had had intercourse with a fellow hobo named Chester Carter in the Huntsville railway yards two days before they made their accusations. She said she had been in New York City and had decided to return to Alabama to tell the truth on the urging of Rev. Harry Emerson Fosdick of that city."

Rev. Harry Emerson Fosdick

Ruby Bates testifying in her fancy New York garb

The Communist Party had dressed her up in fancy New York garb, which the prosecution was quick to point out. It was said she "reeked of the North", which destroyed her credibility with jury. Thus, the appearance of the defense's final and most dramatic witness fell surprisingly flat. On cross-examination, Knight, with his southern eye tuned much the same as the eyes of the southern jury seated in that room, immediately picked up on her northern dress and went right to it. He ripped into Bates, asking her in quick succession where she had gotten her stylish coat, hat, and shoes. "Who was the beneficent donor?", Knight demanded. Knight confronted her both with her conflicting testimony in the first trials and accusations that her new versions of events had been bought with new clothes and other Communist Party gifts. He demanded to know whether he had not told her months before in his office that he would "punish anyone who made her swear falsely" and that he "did not want to burn any person that wasn't guilty." "I think you did," Bates answered. It was telling as to how her testimony was being received that Judge Horton, upon defense objection, warned the spectators to stop laughing at her testimony or he would eject any spectators who laughed after that from the court room.

Closing arguments

Leibowitz finally closed his case for good. The hatred for him in that part of Alabama had mushroomed to a fever pitch. The National Guard presence was now 150 strong. The National Guard even had to protect Ruby Bates. Morgan County Solicitor Wade Wright made the prosecution's argument in chief. In fiery, if rambling, oratory he derided Ruby Bates. He reminded the jury that she had testified that she "couldn't understand all the things that happened in New York because part of it was in the Jew language." He ridiculed Ruby's boyfriend at the time, Lester Carter as "Mr. Caterinsky" and called him the "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?" While Judge Horton responded to Leibowitz's objection and motion for new trial by calling the remarks improper and told the jury to "disregard it and put it out of your minds", but he did not grant defendant Haywood a new trial. As one author described Wright and his closing argument, "Wade Wright, a solicitor of Morgan County, who made the now-famous Jew-baiting summary to the jury. Bailey is quite without importance—hard-boiled and soft-spoken. But Wright is a huge individual, blustering and bullying, a perfect barometer of the less enlightened Decatur opinion. When he speaks his face becomes purple and he imparts his frenzy to the court hangers-on. Until Wright spoke, many of the newspapermen felt that there was an outside chance for acquittal, at least a hung jury. But Wright registered to perfection the repressed feelings and prejudices of the twelve good men. From then on the defense was helpless."

Leibowitz delivered the closing argument for the defense. He called Wright's argument an appeal to regional bigotry. There were as many good people in New York as in Alabama. This talk of the Communists was just to "befuddle" the jury. He was 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." As to Wright's reference to "Jew money", he was representing the defendants for nothing and even paying his wife's expenses. "I'm interested 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." He attacked Price with gusto, calling her testimony "a foul, contemptible, outrageous lie." He said the prosecution witnesses had done as much to belie her testimony as the defense witnesses. He ended with the Lord's Prayer and a challenge for the jury to either acquit or render the death sentence — nothing in between.

Attorney General Knight delivered the prosecution's rebuttal argument. "I'm no murderer," he exclaimed. However, he referred to Patterson as "that thing" and he roared to the jury that if they 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." Knight argued, "I do not want a verdict based on racial prejudice or religious creed. I want a verdict on the merits of this case." Considering the evidence, he continued, "there can be but one verdict — death in the electric chair for raping Victoria Price.”

Judge Horton's charge to the jury

The final arguments completed, it was now time for Judge Horton to charge the jury, which included this present day acclaimed instruction.

Take the evidence, sift it out and find the truths and untruths and render your verdict. It will not be easy to keep your minds solely on the evidence. Much prejudice has crept into it. It has come not only from far away, but from here at home as well. I know the juries of this county. I have been with them—have been before them. They are sensible, reasonable, intelligent men. They do not go off on side issues, nor do they let petty prejudices enter into the trial of the case. You are not trying whether or not the defendant is white or black— you are not trying that question; you are trying whether or not this defendant forcibly ravished a woman. You are not trying lawyers; you are not trying State lines. You are here at home as jurors—a jury of citizens under oath sitting in the jury box taking the evidence and considering it, leaving out any outside influences.

Things may vex you. I might say that the court may have been vexed about a great many things. It may have been evident to you that a great many telegrams came in here to me since I have been here. But, gentlemen, they do not affect me whatever or the great principle which the court desires to see done, and that is to see justice done in this case. Of course, gentlemen, we all love our land; that is a natural sentiment of all people. It is a natural feeling and it is a fine thing for a man to do to love his native country. I might say that a great many of us, and I together with you, a great many of our forebears came here with the earliest settlers, and I happen to be descended from one who was among the first that came down to this country. On both sides, as far back as I know, my people have always been a Southern people, and I have no desire to live anywhere else. I am getting old, and it is my home, my native land, and I want to see righteousness done and justice done, and we are going to uphold that name. A great many of our parents no doubt were in the War Between the States. My father and my sixty-one-year-old grandfather, every relative over fifteen, were in the Southern army. I am not saying that to be boasting or anything that way, but to show that I as well as you have no desire in any way to do anything that would not reflect credit on the South, and whatever I say, and whatever I do, remember, it is for justice and right and that they may prevail.

We are a white race and a Negro race here together—we are here to live together—our interests are together. The world at this time and in many lands is showing intolerance and hate. It seems sometimes that love has almost deserted the human bosom. It seems that only hate has taken its place. It is only for a time gentlemen, because it is the great things in life, God's great principles, matters of eternal right, that alone live. Wrong dies and truth forever lasts, and we should have faith in that.

Verdict

While Leibowitz's defense was well executed, some of the people resented him as a Yankee and as a Jew, descending on the South to preach to them as to the errors of their deeply cherished ways. The involvement of the Communist party in the defense of the case was also anything but a secret. In short, the Communist Party gave the impression of being insensitive to local sensitivities — perhaps badly misplaced, but clearly real in terms of the aim of the defense, to obtain the acquittal of the defendants.

The Decatur jury quickly returned a conviction against Haywood Patterson for the second time. 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 defense heard jurors laughing, which they found encouraging, since they felt jurors could not condemn a man to death and then find something to laugh about on their way to tell him that. The jury foreman, Eugene Bailey, handed the handwritten verdict on a scrap of paper to Judge Horton. The jury accepted Leibowitz's challenge and sentenced Haywood Patterson to death — as were all black defendants convicted of raping white women in Alabama during that era. {{citation}}: Empty citation (help) The verdict read, "We find the defendant guilty as charged and fix the punishment at death in the electric chair." Haywood Patterson bowed his head. It turned out that the jury had voted him guilty almost at once. However, jury foreman Eugene Bailey had held out for eleven hours, eleven to one, for life in prison, instead of the death sentence.

Judge Horton grants Patterson's motion of new trial

The defense moved for a retrial, and Judge James Edwin Horton, privately believing the defendants to be innocent, agreed to set aside the guilty verdict, despite knowing it meant the loss of his job when he ran for re-election. Leibowitz was reported in the media as having said some bitter things about the jury, which had raised the community hatred toward him even higher. While the case against Charlie Weems was supposed to almost immediately follow the Patterson trial, Judge Horton ruled the rest of defendants could not get a fair trial at that time and indefinitely postponed the rest of the trials on the Court's own motion.

Judge Horton heard arguments on the motion for new trial in the Limestone County Court House in Athens, Alabama. Attorney General Thomas Knight had picked up an inkling of Judge Horton's thinking was there to argue in person. Leibowitz, on the other hand, thinking he had no chance, and thinking the hearing a mere formality on his way to appeal, stayed in New York and had his two co-counsels argue the case. Judge Horton sat down and read his decision in which, to the astonished defense and a furious Knight, he said, in part:

History, sacred and profane, and the common experience of mankind teach us that women of the character shown in this case are prone for selfish reasons to make false accusations both of rape and of insult upon the slightest provocation for ulterior purposes. These women are shown, by the great weight of the evidence, on this very day before leaving Chattanooga, to have falsely accused two Negroes of insulting them, and of almost precipitating a fight between one of the white boys they were in company with and these two Negroes. This tendency on the part of the women shows that they are predisposed to make false accusations upon any occasion whereby their selfish ends may be gained. The Court will not pursue the evidence any further.

As heretofore stated the law declares that a defendant should not be convicted without corroboration where the testimony of the prosecutrix bears on its face indications of improbability or unreliability and particularly when it is contradicted by other evidence. The testimony of the prosecutrix in this case is not only uncorroborated, but it also bears on its face indications of improbability and is contradicted by other evidence, and in addition thereto the evidence greatly preponderates in favor of the defendant. It therefore becomes the duty of the Court under the law to grant the motion made in this case.

It is therefore ordered and adjudged by the Court that the motion be granted; that the verdict of the jury in this case and the judgment of the Court sentencing this defendant to death be set aside and that a new trial be and the same is hereby ordered.

As soon as Judge Horton had announced his decision, Knight announced that he would retry Patterson. He also announced that he had found the white boy in the gondola car, Orville "Carolina Slim" Gilley, who would corroborate Victoria Price's story in full. Knight then set about having the Alabama Supreme Court remove Judge Horton from the case. Because of Knight's influence in high places, Horton was taken off the case by the Alabama Supreme Court. In his place, the Alabama Supreme Court appointed Judge William Washington Callahan. Judge Callahan was said to be and gave every sign of being a true believer racist, later famously instructing the jury that, as a matter of law, no white woman would voluntarily have sex with a black man. Horton resisted Callahan's appointment, but the appointment went through. Attorney General Knight's father, after all, was on the Alabama Supreme Court and his father undoubtedly had something to say about which judge would next hear his son's case. It seemed as if the Alabama Supreme Court was determined to put an end, once and for all, to what doubtlessly seemed to them like pure Communist nonsense.

Decatur retrial of Patterson

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Gov. Benjamin Meek Miller

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Judge William Washington Callahan

On retrial, Judge Callahan lived up to Judge Horton's fears. "The stated goal of William Callahan, the Alabama trial judge for the later Scottsboro boys retrials in Decatur (those from November, 1933 to July, 1937) was to "'debunk' the Scottsboro case — to cut it down to size, to take it off the front pages of America's newspapers." Thus, Callahan imposed strict three day time limits on the length of each of the upcoming trials, as opposed to the six days it had taken to try Haywood Patterson the first time in Decatur. To stay within this three day time limit, he ran the trials into the evening, even when Leibowitz protested that he was too exhausted to continue. He convinced Governor Benjamin Meek Miller to deny National Guard protection to the defense attorneys. The troops had cost Morgan County $1,200 a day and the county had not even paid the hotel bill for sequestering the jurors from the last trial. Even an appeal from the defense team to President Franklin Roosevelt for troops did not produce protection for them. Judge Callahan made it as hard as he could for the press to cover the trial. For example, he would not allow news photography anywhere on the courthouse grounds or news typewriters in his court room for the trials. "There ain't going to be no more picture snappin' round here," he ordered. He threatened to jail some news photographers who did take some photos and ordered them not to publish their photos.

The defense began by moving for another change of venue. The defense submitted the affidavits of ILD agents which quoted hundreds of local residents regarding their intense dislike for the defendants and the defense team to show there was "overwhelming prejudice" against the defendants. The prosecution countered with the actual testimony of some of the people the defense had quoted that they had never said any such thing to the ILD agents. Then, the prosecution put on the testimony of two undertakers who testified that six of the people quoted were dead. Knight even asked Judge Callahan to issue warrants for the ILD agents for perjury, which Judge Callahan declined to do. The defense attorneys testified that they personally had received numerous death threats. Judge Callahan mentioned that he and members of the prosecution had received many more from the Communists. The motion was denied.

The defense next objected to the jury roll (or "venire") for the Jackson County'(i.e., Scottsboro) grand jury that had indicted the defendants. Leibowitz moved to quash the indictment because African Americans had been excluded from its venire. Judge Horton had ended this inquiry at Patterson's first Decatur trial before Leibowitz had been able to pursue it all the way. On November 23, 1933, Jackson County Jury Commissioner J.E. Moody was called to testify. He lugged to the stand the hefty volumes that contained the names on the Jackson County jury roll before the defendants' 1931 indictment. All three of the current Jury Commissioners had assumed office in March 1931. Upon assuming office, they had instructed their Clerk, J.D. Snodgrass, Jr. to draw two red lines at the bottom of the names on each page to mark the place where their administration had begun. Leibowitz meticulously led Commissioner Moody and Jackson County Circuit Clerk C.A. Wann through every page to show that it contained no African American names. This review of the names on the jury rolls went on for many tedious hours. Finally, Commissioner Moody read the name of "Hugh Sanford" and proclaimed, "He's a negro." When five more African American names showed up on the jury list, Leibowitz suspected fraud. Upon examining the jury books, he noticed that every African American name in the book was written in the same place right above the red line, which normally was left blank. Commissioner Moody, however, would not admit that the names of the African Americans had been added. Leibowitz got handwriting samples from all present and former Jackson County Jury Commissioners. One of those questioned was Kelley Morgan, who had been a predecessor Jackson County Jury Commissioner at the time of the 1931 indictments, who admitted that the handwriting appeared to be his. Leibowitz called New York handwriting expert James Haring who did a microscopic examination of the names written in the jury rolls and then testified that those names had been added and by former Jury Commissioner Morgan. However, it damaged his credibility when the prosecution brought out that the defense was paying him fifty dollars a day — a very large amount in the Depression. Judge Callahan ruled that the absence of blacks from the jury rolls was only a "presumption", which the appearance of the names of black people on the jury rolls overcame. Judge Callahan overruled the motion to quash the indictment, saying Haring's testimony had only made a confusing issue "more confusing." However, for all Judge Callahan's widely considered lack of legal savvy, he did not adopt as his justification the previous ruling of the Alabama Supreme Court which had held that states were free to choose juries any way they liked. So, he did not rule that excluding people according to their race was constitutionally acceptable, only that the defense had not proven what absolutely everyone knew full well. The winds of legal change were blowing and even Judge Callahan seems to have felt them. Further, it is also remarkable that, unlike Judge Horton, Judge Callahan let Leibowitz make his record on this issue, which record got the case into the United States Supreme Court for the second time and made it the basis for the Supreme Court finding that such an impermissible exclusion of African American grand jurors had in fact occurred.

Haywood Patterson's Decatur retrial began on November 27, 1933. It took a long time to seat the jury from the panel of 100 white men, since prospective juror after prospective juror (36 in all) admitted that he had a "fixed opinion" about the case. Another eight were excused for expressing concerns about the death penalty. Leibowitz used this fact to again move for a change of venue. However, Judge Callahan again denied this motion, saying that "The very fact that the jurors have been honest enough to state that they had fixed opinions indicates to me that the defendant can get a fair trial when a jury is finally picked."

Judge Callahan proceeded to exclude defense evidence that Judge Horton had admitted. At one point in the trial, he exclaimed to Leibowitz, "Judge Horton can't help you [now]." He routinely sustained prosecution objections and just as routinely overruled defense objections. Price, questioned by Jackson County Solicitor, H.G. Bailey again testified that a dozen black men, armed with guns and knives, poured into the gondola car. Patterson had fired a shot and ordered "All you white sons of bitches unload." She said Orville Gilley was the only white boy who remained in the gondola car while the blacks had ripped her clothes off and repeatedly raped her at knife point. She pointed her finger at Patterson and said in a voice that carried to every corner of the packed courtroom, "That defendant over there, Haywood Patterson, was one of them." She said after the blacks had raped her and Ruby Bates, Patterson had said, "that they were going to carry us north and make us their women, or else they were going to throw us in a river." 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 6:30 that evening, when Judge Callahan finally stopped for the day and then well into the next morning. He pointed out to her the many contradictions between her account at the trial and the many other accounts she had given at the earlier trials. At one point, Judge Callahan instructed Leibowitz to "treat the lady with more respect." He also warned the defense that "The more I shut you off, the better shape you are in." Judge Callahan kept interrupting Price's cross examination, calling defense questions "arguing with the witness", "immaterial, "useless", "a waste of time" and "illegal". Judge Callahan excluded all cross examination about her conviction for prostitution and adultery, ruling that only evidence that she had had sex with "negroes" was "material." He would not allow Leibowitz to ask Price about having sex with others before the alleged rape as a way to explain the presence of the semen. Judge Callahan refused to even listen to Leibowitz offer to explain to the Court the reason for the questions. The many contradictions in her testimony with her testimony at the earlier trials notwithstanding, Price steadfastly stuck to her testimony that Patterson had raped her.

Orville Gilley's testimony at Patterson's Decatur retrial was a mild sensation, seeming to confirm that correctness of the defense decision not to cross-examine him at the first Scottsboro trial. "Orville Gilley was "smiling, blue-eyed, radar eared, almost handsome twenty-year-old.". He denied the defense portrayal of him as a "bum" and a "bought witness". Gilley repeated the same words as Price in his testimony as to how the gun and knife toting blacks had ordered the white boys off the train. He confirmed that they had raped Price, while one of the blacks held him off at gun point. He stopped the rape by convincing the "negro", who had the gun on him to make the rapists stop "before they killed that woman." Leibowitz cross examined him for two hours and forty minutes about the contradictions between his account of the rape and the account to which Price had testified, but he remained "unruffled." Gilley testified he met Lester Carter, who was with Victoria Price and Ruby Bates in the Chattanooga railway yards the evening before they all hitched the ride back for Huntsville on the freight train. Gilley said he got Carter and the two women coffee from a store that evening and found a householder who gave him sandwiches that he shared with them the next morning. "Did you go somewhere with them that night?" Leibowitz asked. However, before Gilley could answer, Judge Callahan had sustained an objection from Knight. "But your Honor, won't you excuse the jury and allow me to inform you of what I am trying to prove?", Leibowitz requested. "I can imagine," Judge Callahan responded, instructing Leibowitz to move on to something else.

The prosecution also 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.

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 accounted for the semen found in them), took the stand for the defense. But Judge Callahan would not let him repeat that testimony at this trial. Judge that any such testimony was "immaterial".

Ruby Bates had had surgery in New York and was unable to come to Decatur to testify at this trial. At one point, her condition had been believed to be so grave that Leibowitz had urgently requested that her deposition be taken as a "dying declaration". The reports of the gravity of Bates' situation notwithstanding, it turned out that she was not dying, but she was in fact too ill to travel to Decatur to testify. Leibowitz asked Judge Callahan for more time so she could come and give her testimony. However, Judge Callahan, committed to his three day time limit for the trial, denied the request. As a result, Bates had to stay in New York at the time the defense needed her testimony. She did give her deposition there and it was sent to Leibowitz. However, that deposition arrived after the case had gone to the jury in the Patterson case, which meant the jury did not hear it at all.

Haywood Patterson again took the stand in his own defense. He admitted that he had "cussed" at the white boys on the train with some very heavy language but only because of the cussing they had given him first. He denied that he had even seen the white women on the train before the train arrived in Paint Rock. On cross-examination, Knight confronted him with his testimony from his Scottsboro trial in which he had testified that while he had not touched the women himself, he had seen the other five defendants rape them. Leibowitz objected to using this testimony from a trial that the United States Supreme Court had ruled "illegal", but Judge Callahan allowed it. Judge Callahan would not let Patterson repeat the rest of his Scottsboro testimony in which he had said he had not seen the women before the train arrived in Paint Rock. Patterson explained the testimony, saying "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." Patterson stated that these threats had been made by jail guards and militiamen while they were in the Jackson County jail. He stated that they were even made in the courtroom in Jackson County in the presence of Jackson County Judge A.E. Hawkins. Patterson pointed at H.G. Bailey, Jackson County Circuit Solicitor, the 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."

Closing arguments started on November 29, 1933 and continued on November 30. However, Judge Callahan did not halt the trials even for Thanksgiving. Judge Callahan limited each side to two hours of argument. Attorney General Thomas Knight declared in his closing argument to the jury that they were 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. Judge Callahan overruled the objection and the motion for a new trial. Knight continued, "We all have a passion, all men in this court room to protect the womanhood in Alabama." For his part of the final summation, Morgan County Solicitor Wade Wright reviewed the testimony of prosecution witnesses against Patterson. Then he warned the jury to keep "in mind that this crime could have happened to any woman, even though she was riding in a parlor car, instead of box car." For his part of the summation, Jackson County Solicitor H.G. Bailey, while disclaiming any need for prejudice and passion and even reminding 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." Bailey attacked defense witness Lester Carter (who had tried to testify that the women had had sex with others the night before the alleged rape), by charging that he had arrived in Decatur "breathing the very atmosphere of a certain strata in that big metropolis up yonder." However, he asked why Carter had not explained "why he fled and left these defenseless women with a fight going on in the box car next to him.". Defending the women, he exclaimed, "Let them say what they want. Instead of painting their faces and standing of the streets of Huntsville, they were brave enough to go to Chattanooga and look for honest work. They were not as fortunate as some girls, not petted and pampered and raised in the lap of luxury." Then, Solicitor Bailey attacked the defense case. He said, that all the defense did was to present the testimony of the "negroes" that it had not happened. He continued, "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."

Judge Callahan charged the jury that Price and Bates could have been raped even if they were not forced. They did not have to resist. For it to be rape, all they had to do was to withhold their consent. Then, he famously 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." Judge Callahan continued, "And this is true whatever the station in life the prosecutrix may occupy, whether she be the most despised, ignorant and abandoned woman of the community, or the spotless virgin and daughter of a prominent home of luxury and learning." Then, 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 actually committed the rapes. There was no need for "positive evidence" of this abetting. The jury could find it from the conduct of the parties. Callahan told the jury, "It may be a mere gesture or a mere word or a mere nod, or it may be inferred that there was a conspiracy by a consideration of all the acts and circumstances and situations of the case at the time." He told them that they did not need to find corroboration of Price's testimony. If they believed her, that was enough to convict. Nonetheless, he pointed out that the prosecution had put on testimony of other witnesses that the fight had occurred, which would serve as such corroboration as well as Gilley's testimony that he had seen the rapes. He pointed out that even the defense had admitted that the fight with the white boys had occurred. He conceded that the defense testimony was that the fight was not connected to the rapes, but, he said, "Well, that is a matter you have to deal with." He warned the jury not to consider what the answers to questions would have been in cases where he had ruled those answers improper. Speculation about them should not "drift into the jury box." As to the defense contention that the defendant should not be convicted because he was a "negro", Judge Callahan agreed "No man is worthy to be in the jury box on any such contemptible grounds." After Judge Callahan charged the jury, he told them that he was giving them two forms — one for conviction and one for acquittal. He told them that if they found Patterson guilty, they could impose a penalty they saw fit up to death but not less than ten years in prison. However, 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. When he sent the belated acquittal form to the jury, he said, "I believe I overlooked one thing about the forms of verdict."

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 that had already started]. 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." After the jury deliberated those twenty six hours and returned a guilty verdict and death sentence, Judge Callahan did not even invoke the usual "God have mercy on your soul" when he sentenced Patterson to death for the second time. Leibowitz vowed to appeal "to Hell and back."

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.

Decatur trial of Norris

As had Judge Haywood in Scottsboro, Judge Callahan started the jury selection for the trial of defendant Norris that Thanksgiving afternoon of November 30, 1933, while the jury was still deliberating the fate of just tried Haywood Patterson. Again, it was difficult to select a jury. Again and again, prospective jurors answered that they had a fixed opinion about the case or were opposed to capital punishment which caused each in turn to be excused. In time the jury pool was exhausted and Judge Callahan had to summon more prospective jurors until they finally filled the jury panel. When the jury was finally selected, Norris later observed, "The jury looked like a lynch mob — a bunch of tobacco chewing, snuff dipping, overalled crackers in muddy shoes."

At this trial, Victoria Price testified, "Two of them had pistols to the best of my recollection. I wouldn't be positive that this defendant had a pistol. Some of them had knives in their hands as they got into the gondola car. I wouldn't say, but to the best of my knowledge some of them had them open. After one of them said, "All you white sons of bitches unload," the following then happened on that car, between this man or anybody else: they knocked them off and begun to run up and down the side to see that they did not get back on, i.e., the white boys they had knocked off, except Gilley. Then they commenced to attack us girls, me and Ruby Bates. They put their hands on me. After they got the white boys off, I went to the corner of the gondola to get over, and one of the crowd in the back of the car, "We are not going to hurt you," and when I started to make my jump he hit me, he hit me, and one of them pulled off my clothes, my overalls. They taken my overalls off and then they taken me and threw me over on the chert, and one of them held my legs, and one held a knife on me there, and then one of them raped me and Ruby Bates." She continued that defendant Norris had sexual intercourse with her. She said that one would hold a knife to her throat while another raped her. She said about six in total had raped her. When the train stopped in Paint Rock, she tried to get off the train, fell, passed out and came to in a store in Paint Rock. Judge Callahan overruled numerous defense objections to the questions the prosecution asked of her.

On cross examination, Judge Callahan would not allow Leibowitz to ask Price whether she had ever been convicted of a "crime of moral turpitude", under the name of "Virginia Presley". Judge Callahan would not allow Leibowitz to ask her why she went to Chattanooga, where she spent the night there or any dealings she had there with Carter or Gilley. Finally he asked, "I must ask just one more question, don't answer it until objection is made and ruled on by the Court. Did you, there that night, in and about the railroad yards in Chattanooga, have sexual intercourse with one Lester Carter, or one Gilley, in company with Ruby Bates?" Knight objected and Judge Callahan ruled, "I sustained the objection. Mr. Leibowitz, that question was so palpably illegal that you ought not to have asked a question like that." Price denied on cross that she had traveled to Chattanooga with Lester Carter the day before the alleged rape, testifying instead that she first met him on the train on her way back to Huntsville. While she admitted knowing Jack Tiller, she described him as her "guard", rather than as her boyfriend. However, when Leibowitz tried to ask her if she had sex with him, Judge Callahan interrupted, "You've gone far enough." She claimed that her lips "was kin'ly busted" that her face was bruised and swollen as a result of the assault. He tried to get Price to describe the size of the gravel ("chert") in the gondola car. When she did not, he demanded, "You can't or you won't — which is it?" Judge Callahan again interrupted, "That question is improper and you have no right to ask it. It is my business to see that the witness is fairly treated." Price stated frequently during her cross examination that she no longer remembered the details of the assault. Price looked so often to Attorney General Knight before she answered his questions that Leibowitz accused her of "looking for signals". Judge Callahan erupted cautioned Leibowitz that he would not permit "such tactics" in his courtroom.

Dr. R.R. Bridges, the Scottsboro doctor who had examined the women right after their claims of rape, was a state witness. Leibowitz cross examined him at length. He tried to get Dr. Bridges to acknowledge that if a woman had been raped in the brutal fashion Price had described, she would have had more than a few bruises and scratches on her body. Judge Callahan sustained a prosecution objection to this question, ruling that "The question is not based on the evidence."

Lester Carter, Price's boyfriend, testified for the prosecution. During his cross examination, he acknowledged that it was Victoria Price and Jack Tiller who had introduced him to Ruby Bates in the Huntsville jail. He asked, "Did you not, on the night before you left Huntsville, together with Ruby Bates and Victoria Price and Jack Tiller, go to a lumber yard in the train yards there, and did you not have intercourse with Ruby Bates there that night, and did not Victoria Price have intercourse, in your presence with Jack Tiller?" The prosecution objected and Judge Callahan sustained the objection, instructing the jury, "That question is not legal and highly improper and you will pay not attention to it."

Ruby Bates gave her deposition from her hospital bed in New York and it did arrive in time to be read to the jury in the Norris trial. Judge Callahan sustained prosecution objections to large portions of it. Most significantly Judge Callahan excluded the part of her testimony in which she acknowledged that she had had sex with Lester Carter and Victoria Price had had sex with Orville Gilley in Chattanooga the night before the alleged rapes. Leibowitz read what remained of Bates's hospital bed examination and cross examination to the jury which, did include her version of what happened on the train. She said that, after the train pulled out of Stevenson, Alabama, there were white boys riding in the gondola car with them. Some black youth came into the car heading in the direction of the caboose. A fight broke out between the black and white youths. She said that she did not know what the fight was about, but, with the exception of Orville Gilley, most of the white boys got off the train. Orville started to get off, but one of the black youth pulled him back on. Then, the black youth "disappeared" and she did not see them again until the posse stopped the train at Paint Rock, Alabama, where posse members found them and took them off the train. She testified that she, Price and Gilley were also arrested at that time. Price pretended to faint, which caused both women to be taken inside a nearby store. Inside, someone asked Price what had happened. Price responded that they had been attacked by "these negro boys." They were taken to the Scottsboro jail, where Price told the Sheriff that she and Bates had been raped. Bates testified that Price had instructed her to say they had been raped "by the negro boys" and told Gilley to confirm it. Price said Bates had to say those things to keep her out of jail. Price exclaimed that she "didn't give a darn about these niggers, let them hang them all!" Bates testified that Gilley had told her she should "be ashamed of herself." Bates admitted that she had previously testified that six of the black youth had raped her and another six had raped Price at knife point. However, she said that her earlier testimony had not been true. She confirmed that neither she nor Price had been raped at all.

Norris did not take the stand in his own defense at this trial. If he had, Knight would have been able to question him about his testimony at his Scottsboro trial, where he had unexpectedly blurted out on the stand that he had seen the other defendants rape the women on the train. Getting that earlier Scottsboro trial testimony before the jury would have badly undermined the defense position that the rapes had not occurred at all, as had been confirmed by the Ruby Bates deposition. Particularly damaging was Norris' earlier accusation that Haywood Patterson was among those he saw rape the women. Further, unlike the Patterson trial, none of the other co-defendants testified at the Norris trial.

Closing arguments took place on Monday, December 4, 1933. In his closing argument, Leibowitz called the prosecution's case "a contemptible frame-up by two bums." He challenged the jury to end the national spectacle that the case was making of Alabama. He again made his won crass appeal to local prejudice. "If you have a reasonable doubt, hold out. Stand your ground, show you are a man, a red-blooded he-man — a Southern gentleman, ready to do justice even to this lowly, insignificant worm of a Negro boy. If the state had showed his guilt, I'd be the first to hang him. But this state has failed to do this. Its case smells to heaven. We've had enough of this expense, enough opprobrium upon the State of Alabama. Let's end it now." 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.

Leibowitz made many objections to Judge Callahan's charge to the jury. He also made several requests for detailed additions to that charge. Judge Callahan did allow a few of those changes, but overruled most. The New York Times described Leibowitz as "pressing the judge almost as though he were a hostile witness." While Leibowitz was said at this point to believe his chances for an acquittal in this case were good, he was still actively in the process of building his record for appeal.

The jury deliberated all of the day of December 5, 1933. At 9:30 that evening they still had not reached a verdict and adjourned to hotel rooms. They resumed their deliberations the next morning. While the jury was out, Judge Callahan granted Leibowitz's motion for an indefinite postponement of the remaining trials until the Patterson and, if convicted, the Norris appeals had concluded. Leibowitz asserted that, without the guidance of the outcome of those appeals as to the constitutional propriety of the Alabama jury selection process, the remaining trials "would be but a futile gesture." In the absence of the National Guard, New York Mayor Fiorello H. La Guardia had dispatched two burly New York City police officers to protect Leibowitz in Decatur. During the tense times of these unusually long jury deliberations, Judge Callahan also assigned two additional Morgan County deputies to guard Leibowitz during this time. After fourteen hours of deliberation, they filed into the court room at 11:20 in the morning of December 6, 1933 and returned its guilty verdict and sentenced Norris to death. Norris, having been less optimistic than his northern lawyer, took the news stoically.

Judge Callahan thanked the jury for its service and discharged them. He then called both Norris and Patterson before him for formal sentencing. When Judge asked each defendant in his turn if they had anything to say, they both again denied their guilt, to which Judge Callahan replied, that their continuing denials "had nothing to do with the verdict," since he was only carrying out his legal duty to impose the jury's verdict. Whether by oversight or intention, Judge Callahan did not utter the "May God have mercy on your soul", as was the tradition for judges to invoke when pronouncing death sentences. He set the execution dates for the men at February 2, 1934. While Leibowitz prompt appeal stayed that execution date, 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. Having done all he could as of that time, Leibowitz was escorted to the train station under heavy guard, where he boarded a train back to New York.

Alabama Supreme Court affirms Decatur convictions

There was grave doubt that the Alabama Supreme Court would even hear the appeal for Haywood Patterson. The first step after conviction is for the defense to file for a new trial. However, delays in the preparation of the trial transcripts forced Leibowitz to ask for and receive two extensions of the time to file his new trial motions, which Callahan granted until January 25, 1934, which later date was later than the filing date Alabama procedure permitted. Even though Callahan had granted the extension until that later date, without objection from the prosecution, he granted the motion of Attorney General Knight to dismiss the motions for new trial. Alabama law still allowed ninety days from the date of conviction to perfect an appeal. Since Patterson had been the first to be convicted and there was some ambiguity whether his conviction date was the date the jury returned its sentence or the date on which Judge Callahan had pronounced his death sentence. So, getting his appeal papers filed right away suddenly and unexpectedly became crucial. To leave nothing to chance, the defense team placed the appeal documents on a plane to Alabama from New York on February 28, 1934. However, the plane crashed and the paperwork was lost. So, the defense did not get the papers to the Alabama Supreme Court until March 5, 1934. Assistant Attorney General Thomas Lawson did urge the Alabama Supreme Court to dismiss Patterson's appeal on the ground that the December 1, 1933 jury verdict date was his conviction date and, as a result, his appeal had not been timely filed. The Alabama Supreme Court heard the arguments in his case but agreed that his appeal had not been timely filed and dismissed it without considering its merits, which meant that it was technically ineligible to be appealed on its merits to the United States Supreme Court. It rescheduled Patterson's execution for August 31, 1934.

The Alabama Supreme Court unanimously affirmed the conviction of Clarence Norris on June 28, 1934, which, while chilling to read today, is an opinion that is very well written and reasoned. This time, Justice Lucien Dunbibben Gardner, writing for a unanimous Court, including previous dissenter Chief Justice John Anderson, did not repeat its earlier assertion that states could select juries any way they wanted. Instead, it quickly acknowledged that African Americans could not be excluded from juries by law or in practice. By acknowledging that principal, they likely thought they had removed the United States constitutional issue from the case, which would insulate their decision from any review by the United States Supreme Court. Justice Gardner found, as a factual issue, however, that there were very few "negroes" in Jackson County, the jury commissioner had an affirmative duty to weed out unsuitable jurors, regardless of race, and there was no credible evidence in the record that "negroes" had been "systematically" excluded. Since there was no guarantee that a person of a given race would be judged by a "mixed race" jury that included one or more persons of that person's race, no error had occurred.

It rescheduled Norris' execution also for August 31, 1934. However, the defense filed for a rehearing in the Alabama Supreme Court, which automatically stayed those executions. This gave the defense time to ask for relief from the United States Supreme Court when it began its new term in October. However, before the Supreme Court acted, ILD representative J.W. Peerson of Huntsville, Alabama had approached Victoria Price offering her money if she would sign an affidavit in which she admitted that she had not been raped. She promptly reported the offer to the Huntsville police, who advised to go along with the offer. The payment to Price was to be made in Nashville, Tennessee. However, the Alabama authorities arrested Peerson who was in his car with Price on their way to Nashville. The Alabama authorities then alerted the police in Nashville, Tennessee who proceeded to arrest ILD New York attorneys Daniel Swift and Sole Kone on October 1, 1934 for trying to bribe Victoria Price to recant. The police confiscated $1,500 from their car. Alabama promptly extradited the two attorneys from Tennessee to Alabama for vigorous prosecution.

This incident understandably made Leibowitz furious, believing the incident had done great damage to his cases and that it reflected badly on him personally. He demanded that the Communist Party end its involvement in the cases, which they refused to do. There was much back and forth wrangling as to whether Leibowitz or ILD attorneys would represent Patterson and Norris on their appeals to the United States Supreme Court. Leibowitz helped form the "American Scottsboro Committee", which was composed of prominent New York African Americans to back him in his quest to represent Patterson and Norris. While this battle raged, the Alabama Supreme Court forced their hands by denying the defense motion for a rehearing. To get the appeals filed, Leibowitz and the ILD had to compromise. Under this compromise, Leibowitz represented Clarence Norris and ILD attorneys Osmond Fraenkel and Walter Pollak would represent Haywood Patterson.

United States Supreme Court reverses Decatur convictions

The case went back to the United States Supreme Court for an astonishing second time as Norris v. Alabama, which reversed the convictions for a second time on the basis that people had been excluded from the jury pool because of their race. The defendants had raised the issue of de facto exclusion of African Americans from Alabama juries in the previous case before the United States Supreme Court, but the Court had not needed to address it, since it reversed the convictions on the grounds of "ineffective appointment of counsel". This time the issue was solidly before them — all objections properly made and evidence showing it properly in the record. The Court granted Certiorari to hear the case on January 7, 1935. Attorneys Samuel Liebowitz, Walter H. Pollak and Osmond Frankel argued the case before the Supreme Court from February 15 to February 18 1935. At one point, Liebowitz showed the somewhat skeptical justices where the names of African Americans had been hurriedly added to the Jackson County, Alabama jury rolls. He showed them where the names of African Americans had been added above the red lines in the hefty jury books. The Justices examined the items closely with a magnifying glass. The Justices reacted visibly to what they saw in those books. Thomas Knight, recently elected as the Lieutenant Governor of Alabama, continued to represent the State of Alabama. He conceded to the Court that he did not know whether those names had been forged onto the Jackson County jury rolls. He declared, "I simply take the position that I do not know." However, he maintained that any such forgery, even if it had happened was irrelevant, because the Jury Commissioners of Jackson and Morgan Counties Alabama had merely done their duty under Alabama law to include only capable citizens on the jury rolls, in which they took no account of the race of the persons included and excluded. 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.

Thus, six weeks after the arguments to the Court, on April 1, 1935, the United States Supreme Court, eight to nothing, remanded the cases a second time for yet further 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. However, he continued, "The question is of application of this established principle to the facts disclosed by the record." Chief Justice Hughes noted that the Court had inspected the jury rolls in question and chastised Judge Callahan and the Alabama Supreme Court for completely accepting their "mere general asseverations" that black citizens had not been excluded from them for many decades. "Something more" was needed. The Court concluded, "The motion to quash the indictment upon that ground should have been granted." Moving on to the case of Haywood Patterson, whose case was not technically before them on any federal ground, the Court ruled that it would be a great injustice to execute him when identically situated Norris would receive a new trial. It deftly reasoned that Alabama should have the opportunity to reexamine his case as well and also remanded it to Alabama. While this ruling was rather clearly improper, there was no higher court to which Alabama could appeal it. So, both Norris and Patterson again escaped the electric chair — for the time being. For the record, at least, Alabama Governor Bib Graves issued a directive to every solicitor and judge in the state, to which he attached a copy of Norris v. Alabama and instructed, "Holdings of the United States Supreme Court are the supreme laws of the land. Whether we like the decisions or not, it is the patriotic duty of every citizen and the sworn duty of every public officer to accept and uphold them in letter and in spirit. . . This decision means that we must put Negroes in jury boxes in every county in the state. Alabama is going to observe the supreme law of America."

Final round of trials

After the case was remanded, on May 1, 1935 Victoria Price swore new Jackson County rape complaints against the defendants as the sole complaining witness, since Ruby Bates had long since withdrawn from the case. On November 13, 1935, an African American, Creed Conyer, became the first post-Reconstruction black person to sit on an Alabama grand jury. However, only a two-thirds vote was needed to indict. So, the whites on the Jackson County Grand Jury easily outvoted him and indicted the defendants again. Although Thomas Knight, Jr. was now Lieutenant Governor of Alabama, serving Alabama Attorney General Albert Carmichael appointed him special prosecutor to continue prosecuting the cases.

Leibowitz reluctantly recognized that he was viewed by Southerners as an outsider. In fact, the New York newspapers had quoted him as calling Morgan County citizens "tobacco chewing ignoramuses or worse", which quotation was repeated in the Decatur newspaper. Thus, he allowed local attorney Charles Watts to be the lead attorney, while Leibowitz assisted from the sidelines. Judge Callahan arraigned all the defendants, except the two juveniles, in Decatur, Alabama from January 6 through January 8, 1936. They all pled not guilty and Attorney Watts moved to have the case to the United States Court as a civil rights case, which motion Judge Callahan promptly denied. He set the retrials to being in his court on January 20, 1936.

Alabama Governor David Bibb Graves

On January 23, 1936, in this retrial, Haywood Patterson was again convicted of rape but was sentenced to 75 years in prison rather than the death penalty—the first time a black man had been sentenced to anything other than death in the rape of a white woman in Alabama. There was a Methodist minister on the jury who persuaded the others to agree to this sentence as a "compromise." Victoria Price expressed her extreme disappointment that Patterson escaped the death sentence this time, pronouncing bitterly that it was extremely unfair that he would get off with only 75 years. Haywood Patterson escaped in 1948 and fled to Detroit, Michigan. In June 1950, although he personally could not read or write, with the help of journalist Earl Conrad he published a book called The Scottsboro Boy about his ordeal; shortly afterwards was arrested by the Federal Bureau of Investigation. However, Governor of Michigan G. Mennen Williams would not allow him to be extradited to Alabama. However, Patterson stabbed and killed another man in a bar fight. As a result, after two hung jury mistrials, he was convicted of manslaughter in December 1950 and sentenced to six to fifteen years. Patterson died of cancer in prison in Michigan on August 24, 1952, after having served only one year of his sentence.

In 1937, Thomas Knight approached Samuel Leibowitz secretly in New York with a plea bargain offer while Patterson's appeal was pending and while the other defendants were waiting in jail for their trials. He told Leibowitz that the case was costing Alabama a lot of money and was giving it a bad name. He said he would drop the charges against three and let the others off with guilty pleas of rape or assault with sentences of no more than ten years. Leibowitz was loath to plead clients guilty whom he believed to be innocent, but there was little doubt that Knight could continue convicting all of them as often as he wanted, so Leibowitz reluctantly agreed to take the deal. However, that deal went astray when Knight died unexpectedly in May 1937. A week after Knight's death, Judge Callahan announced that the trials would resume in July. Alabama Attorney General Thomas Lawson replaced Knight as the Prosecutor on the case.

On July 15,1937, Clarence Norris was again convicted of rape and sexual assault and sentenced to death. Governor of Alabama Bibb Graves later reduced Clarence Norris' death sentence to life in prison. He was paroled in 1946. He jumped parole but showed up in Brooklyn, New York City in 1976, married with two children. Alabama prison officials in Alabama still considered him a fugitive. However, the NAACP and Alabama's attorney general urged Alabama Governor George Wallace to grant Norris a pardon. Wallace finally granted a full pardon in October 1976. Norris went back to Alabama to receive his pardon. In 1979 his autobiography The Last of the Scottsboro Boys was published in which he described his ordeal. The last living Scottsboro Boy wanted to clear his name. Norris died January 23, 1989 when at 76.

On July 22, 1937, Andrew Wright was again convicted of rape and sentenced to 99 years. He was paroled, but returned to prison after violating his parole. He was finally released for good in 1950 by paroling him to New York.

On July 24, 1937, Charlie Weems was convicted of rape and sentenced to 105 years in prison. He was paroled in 1943, having served 12 years in some of the worst prisons in the nation.

Ozie Powell in hospital

Powell pleaded guilty to assaulting a Deputy Sheriff named Edgar Blaylock with intent to murder him during a previous alleged escape attempt and was sentenced to 20 years. Judge Callahan did not give him any credit for the six years he had already served on the rape charge. However, the state did drop the rape charges against him as part of this plea bargain. The incident happened on January 24, 1936, while Powell, Wright and Norris were being transported in a sheriff's cruiser to Birmingham Prison. They later alleged that the transporting officers in the front seat, Sheriff J. Street Sandlin and Deputy Braylock, called them names, goaded them and threatened them to the point they made a futile escape attempt from the locked cruiser. Powell pulled a pocket knife from his pocket, which he had allegedly found in the jail, and cut Deputy Edgar Blaylock's face and neck with it, with the other two allegedly pulling him away with their manacled hands. They stated that Sheriff Sandlin then got out of the car, went back, took careful aim and shot Powell in the face, who allegedly had his hands raised in surrender. They took Powell to the hospital where surgery saved his life, but he did suffer permanent brain damage. Alabama Governor Bibb Graves extended his congratulations to Sheriff Sandlin for the shooting. Powell was finally released for good in 1946.

• On July 24, 1937, Roy Wright had all charges against him dropped; the state said that they felt that given his age, and time served, he should now be released. After Alabama freed him, he told Leibowitz that he wanted to become a teacher or even a lawyer like him. The Scottsboro Defense Committee took him on a national tour. Afterward, he joined the United States Army. When he got out of the Army, he married and joined the Merchant Marine. After Wright came back from a lengthy time at sea in 1959, he came to believe that his wife had been unfaithful to him during his absence. As a result, he shot his wife to death and then took his own life.

• On July 24, 1937, Eugene Williams had all charges against him dropped, for the same reasons given for Wright.

• On July 24, 1937, Olen Montgomery had all charges against him dropped, as the state announced that after consideration, it now believed him to be not guilty.

• On July 24, 1937, Willie Roberson had all charges against him dropped, for the same reasons given for Montgomery.

The four who had charges dropped had spent over 6 years in prison, the adults on death row. On July 26, 1937, all the remaining "Scottsboro Boys" were sent to Kilby Prison, except Haywood Patterson, who was sent to Atmore State Prison Farm.

Governor Bibb Graves had planned to pardon all the defendants before leaving office in 1938. However, during the customary pre-pardon interview, Graves was angered by their hostility toward him and refusal to admit their guilt, so he did not issue pardons.

In media

Literature

After escaping from prison, Haywood Patterson wrote a book about his experiences, Scottsboro Boy. While attempting to sell copies of the book one night in a Detroit bar, Patterson got into a fight with a man and stabbed him. Patterson was arrested, convicted, and died in prison from emphysema two years later.

In Richard Wright's Native Son, Jan brings up the Scottsboro boys case, commenting on the case by saying, "don't you think we [the Communist Party] did a good job in helping to keep 'em from killing those boys?" Bigger responds by saying, "it was all right."

While it has sometimes been suggested that the case inspired Harper Lee's Pulitzer Prize winning To Kill a Mockingbird, Lee denied this, claiming it was a far less sensational case that moved her to write the novel.

Allen Ginsberg in his poem "America", written at Berkeley on January 17, 1956, mentioned the Scottsboro boys. Author Kelly Covin published a book about the case in 1972 titled "Hear That Train Blow." In 2008, Ellen Feldman wrote Scottsboro: A Novel, based on the events of the Scottsboro trial.

Regino Pedraso (Cuban mestizo poet, b. 1896, of African and Chinese lineages) in his poem "Hermano Negro" (Black Brother) published in Antología Poética (1938) makes a direct reference to the Scottsboro trials in two instances. The poetic voice urges the black individuals to "hush the 'maracas' so that they can learn, look and listen in Scottsboro to the clamoring of enslaved anguish".

Music

Leadbelly commemorated the incident in his song "The Scottsboro Boys". 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".

The Scottsboro Boys appear in Rage Against The Machine's No Shelter videoclip.

Film and television

In 1976, NBC aired a TV movie called Judge Horton and the Scottsboro Boys, apparently under the impression that Victoria Price was no longer living. Price emerged to file a defamation and invasion of privacy suit against the network; the case was dismissed. Price died in 1982.

In 1998, Court TV produced a television documentary on the Scottsboro trials for its Greatest Trials of All Time series. 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.

Aftermath

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A marker commemorating the trial

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." She went to Washington where she met with the Speaker of the House and Vice President John Garner. 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 it closed in 1938, then moved to Flintsville, Tennessee. The women emerged from obscurity almost 40 years later to sue over their portrayals in a 1975 National Broadcasting Company documentary on the Scottsboro case entitled "Judge Horton and the Scottsboro Boys". Shortly thereafter, both Bates and Price, who had both assumed different names, filed lawsuits against NBC for libel, slander, and invasion of privacy. Price's case was tried in 1977, but Ruby Bates died October 27, 1976 at age sixty-three. The trial relitigated many of the issues of the original case, focusing on Price's reliability and the physician's examination of her. NBC's lawyer read Judge Horton's 1933 decision granting a new trial during his summation to the jury. Judge Charles G. Neese dismissed the case before the jury began considering it, ruling that there were insufficient grounds to continue. Victoria Price died in 1982.

Most current residents of Scottsboro acknowledge the injustice that started in their community. In January 2004, the town dedicated a historical marker in commemoration of the case at the Jackson County Court House. "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."

References

• Acker, James R., Scottsboro and Its Legacy, Praeger Publishing, Westport, Ct., 2008.
• Alschuler, Albert W. (1995). "Racial Quotas and the Jury". Duke Law Journal. 44 (4): 704–743. doi:10.2307/1372922. {{cite journal}}: Cite has empty unknown parameter: |coauthors= (help); Unknown parameter |month= ignored (help)
• Aretha, David. The Trial of the Scottsboro Boys, Morgan Reynolds Publishing, Greensboro, North Carolina, 2008
• Bienen, Leigh (1998). Crimes of the Century: From Leopold and Loeb to O. J. Simpson (PDF). Boston: Northeastern University Press. ISBN 9781555533601. {{cite book}}: Unknown parameter |coauthors= ignored (|author= suggested) (help)
• Carter, Dan T. Scottsboro: A Tragedy of the American South. Baton Rouge: Louisiana State University Press, 1969.
• Goodman, James, Stories of Scottsboro, Pantheon Books, New York, N.Y., 1994.
• Haskins, James. The Scottsboro Boys. New York: Henry Holt, 1994.
• Jameson, Eric, The Scottsboro Tragedy, Why, 1993.
• Linder, Douglas O., Without Fear or Favor: Judge James Edwin Horton and the Trial of the "Scottsville Boys"., Vol. 68 UMKC Law Review 549.
• Norris v. Alabama, 294 U.S. 587 (1935)
• Norris v. State, (1934)156 So. 556.
• Patterson, Haywood. Scottsboro Boy. Garden City, NY: Doubleday & Co., 1950.
• Patterson v. State, 1932, 141 So. 195.
• Powell v. State, 1932, 141 So. 201.
• Weems et al. v. State, 1932, 141 So. 215.

External links

• 1931 Scottsboro Boys Video Part I
• 1931 Scottsboro Boys Video Part II
• Biographies of Key Figures in "The Scottsboro Boys" Trials
• Famous American Trials. "The Scottsboro Boys" Trials 1931-1937
• I Was Framed At Scottsboro Video
• Heavens Fall movie website
• John Henry Hammond, Jr., The South Speaks.
• Michael J. Clarman, Scottsboro
• Scottsboro Trials article in the Encyclopedia of Alabama
• Scottsboro Trial Collection, Cornell Law Library.
• A Scottsboro Chronology.
• Scottsboro Boys Trial
• Scottsboro Trial Video
• Without Fear or Favor: Judge James Edwin Horton and the Trial of the "Scottsboro Boys" By Douglas O. Linder