By Pamela Ann Wilkins
Like many lawyers and law professors, I’m a history buff. And as a child of the South, part of the first generation of South Carolina schoolchildren to attend integrated schools from kindergarten through twelfth grade, I find the history of the Civil Rights movement particularly compelling. When one adds to this my interest in criminal procedure, my fascination with Alabama’s Scottsboro case should come as no surprise.
Most will be familiar with the case. Of course, the New York Times and other media just reported the most recent development: on Thursday, November 21, 2013, more than eighty years after they were accused and convicted of raping two women on a train passing through Alabama, three of the Scottsboro defendants received pardons from the State of Alabama. The pardons were posthumous, as the last Scottsboro defendant died in 1989.
But that’s the coda to a sad and twisted tale. The short version of the story is as follows: In 1931, nine young black men were arrested, tried, and sentenced to death (apart from the youngest boy) for the rape of two white women. The alleged gang rape was said to have occurred on a train passing through Scottsboro, Alabama. The young men, who ranged in age from thirteen to nineteen, initially were represented by a Tennessee real estate lawyer inexperienced in criminal matters. The trial of all nine defendants took only two and a half days.
The Scottsboro case yielded two seminal United States Supreme Court cases, the first of which was Powell v. Alabama. In Powell, an important precursor to Gideon v. Wainwright, the Supreme Court held that at least in certain capital cases, the Due Process Clause required the provision of competent counsel for indigent defendants. The court found the Scottboro defendants had been denied the assistance of competent counsel and, therefore, had not received fair trials. The cases were remanded.
The Scottsboro defendants received high quality representation at their retrials. Samuel Leibowitz, who was one of the country’s premier criminal defense lawyers, agreed to represent the defendants. He conducted an exhaustive investigation before trial, and the facts he uncovered were devastating to Alabama’s case: for example, one of the two alleged rape victims recanted and stated that the other alleged victim counseled her to make the story up; moreover, the sperm found in one of the alleged victims was dead, which would have been impossible had the alleged rape taken place when the victim said. Nonetheless, the jury again convicted the defendants and sentenced most of them to death. Concluding the prosecution’s primary witnesses were not at all credible, the trial judge granted a motion to set aside the guilty verdicts. (That judge subsequently lost his bid for reelection.)
The State of Alabama then retried the defendants, who were again convicted. Some were again sentenced to death and others to various terms of imprisonment. A petition for certiorari from this conviction yielded Norris v. Alabama, in which the United States Supreme Court condemned arbitrary and selective exclusion of blacks from grand and petit juries. Finally, the State of Alabama dropped charges against several of the defendants. However, despite Alabama’s weak case and despite national and international outcry, four defendants were again convicted. They escaped sentences of death. Their pardons and an acknowledgement of their innocence came well over fifty years after the last of them left prison.
What does this story say to us now? Is it merely a relic of a very different time and place, a sordid tale of the segregated, lynch-ridden, Depression-era South? Sadly, I think not. The case seems surprisingly relevant in many respects, and in my view carries the following important lessons for Michigan and for other states:
• First, the integrity of a criminal justice system is only assured when criminal defendants enjoy a meaningful right to counsel. Until attorney Samuel Leibowitz entered the case, the Scottsboro defendants looked guilty, at least in the eyes of most whites in Alabama. Although Leibowitz himself aroused the indignation of many white Southerners, his painstaking investigation and zealous representation of the Scottsboro defendants changed the narrative of the case to such a degree that even the most conservative and segregationist Alabama newspaper editorialists of the era admitted that something had gone terribly wrong in the arrest and prosecution of the Scottsboro defendants. Had a lawyer as talented and hardworking as Leibowitz not entered the case, the narrative likely would not have shifted, the
Scottsboro defendants likely would have been executed, and today no one would have heard of the case.
To be sure, the Supreme Court recognizes a more expansive set of constitutional protections than was the case in 1931. Nonetheless, these protections mean little unless competent defense lawyers insist on these protections and have the time and resources to subject the State’s narratives to meaningful adversarial testing. Of course, resources include money, time, and effective training systems. An individual lawyer’s conscientiousness and good faith is necessary but not sufficient.
The State of Michigan is taking steps to improve its indigent defense system. Nonetheless, its system — like those in many other states — does far too little to ensure effective representation for criminal defendants. The Innocence Projects of various law schools and other organizations do an important service, but the need for a large number of such projects points to a broken system. How many wrongfully convicted men and women languish in Michigan’s prisons because they lacked a Samuel Leibowitz?
• Second, racism — whether conscious or unconscious — likely still affects narratives, and we should work to minimize the effects of such racism. Fortunately, the United States has made great progress toward racial justice, and neither Michigan nor anywhere else in the country is afflicted by racism to the degree that likely was true in 1931 Alabama. Nevertheless, contemporary research in cognitive science — in particular the research of psychologists on implicit bias — suggests most Americans harbor implicit (unconscious and automatic) racial biases that favor white Americans and disfavor black Americans. The research suggests these biases affect the perceptions of trial actors, including judges and jurors. There also is a developing body of research on countering or neutralizing implicit biases, and lawyers in criminal cases would do well to acquaint themselves with the research.
• Third — and this should go without saying — pardons, whether posthumous or otherwise, simply aren’t good enough. After their wrongful convictions and long time in prison, the Scottsboro defendants mostly were broken men who led troubled lives. The financial, emotional, familial, and professional consequences of wrongful convictions may last a lifetime. Like Innocence Projects, pardons are an important protection but should be largely unnecessary.
Don’t get me wrong: the pardons of the Scottsboro defendants are a good thing. However, the men themselves do not benefit from the pardons, and, in my view, the real test for Michigan and the rest of the country is whether we can learn anything from this monumental case from a not-so-bygone era.
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Professor Wilkins joined the faculty of the University of Detroit Mercy School of Law in 2003. She teaches Applied Legal Theory and Analysis, Torts, Criminal Law, Criminal Procedure, and the Death Penalty in America. In 2010, she was awarded the School of Law’s Barnes Award for Excellence in Scholarship and Teaching.
