October 1968 | Volume 19, Issue 6
The Scottsburo Case—an infamous series of litigations which was to inflame both the North and the South for many years—began inconspicuously on March 25, 1931, as white and Negro hobos brawled aboard a freight train moving across northeastern Alabama. One of the white youths thrown from the tram reported the fight to the nearest statwnmaster, and a Jackson (bounty posse stopped the tram at the rural village of Paint Rock. When deputies removed the nine Negro teenagers on board they also discovered two young white pirls, aged seventeen and twenty-one, who were hitching a ride from Chattanooga, Tennessee, back to their home in Huntsville, Alabama. In the first confusing minutes after the arrests, Ruby Bates whispered to officials that she and her friend, Victoria Price, had been raped by the nine Negroes, who ranged m age from twelve to nineteen. A hasty medical examination revealed evidence of sexual intercourse.
That night, sheriff’s deputies, strengthened by the Alabama .National Guard, averted a mass lynching after a sullen mob gathered outside the Jackson County jailhouse in the little town of Scottsboro. Two weeks later, while a crowd of eight to ten thousand filled Scottsboro ‘s streets, two court-appointed attorneys halfheartedly defended the frightened hoys. Four juries convicted and sentenced eight to death; the trial of Leroy VCright, aged twelve, for whom the stale had asked a life sentence, ended m a hung jury.
Cases similar to the Scottsboro one had been largely unnoticed outside the South. But the number of defendants, their extreme youth, the stunning rapidity of the trials, and the, harsh sentences the boys received attracted the attention of national newspapers. In April, the International Labor Defense, a close affiliate of the Communist party, launched a propaganda campaign to expose what it called “the Alabama frame-up. “Although the N. A. A .C.P. belatedly offered legal support to the convicted youths, the LL.D. swiftly gained the backing of the boys and their parents. In late December of 1931, N.A.A.C.P. attorneys withdrew from the case.
The United States Supreme Court accepted the I.L.D.’s contention that the youths had had inadequate legal counsel at Scottsboro and overturned the convictions in 1932. But the rallies, pamphlets, and flamboyant accusations of the International Labor Defense and the Communist party only stiffened the resolve of Alabamians to repel the accusations of “outsiders” and see the Scottsboro defendants put to death. As the new trials approached in the spring of 1933, the International Labor Defense reluctantly turned to one of the nation’s most brilliant criminal attorneys, Samuel S. Leibowitz of Brooklyn, New York. Leibowitz did not subscribe to the I.L.D. ideology, but he felt that the boys’ basic civil rights had been violated, and when the I.L.D.’s executive secretary promised to shelve temporarily his organisation ‘s revolutionary rhetoric, Leibowitz agreed to defend the youths without fee.
He began the case with a plea for a change of venue, and the presiding judge agreed to transfer the trials fifty miles west of Scottsboro to Decatur, the seat of Morgan County. There, with a National Guard unit on duty to keep order, the second series of trials began in late March. The first defendant to be tried was Haywood Patterson, nineteen.
March 27, the opening day, was warm and clear in Decatur. Before 7 A.M. a large and cheerful crowd had gathered outside the two-story yellow brick courthouse. Even the announcement that there would be a half-day’s delay in the proceedings did not seem to dispel the spectators’ good nature. Throughout the morning they sunned lazily on the wide lawn or gossiped around the two courthouse statues, one honoring justice and the other paying tribute to those Confederate soldiers “who gave their lives for a just cause—State’s Rights.” There was some talk about the trial, but mostly the relaxed crowd discussed the Depression. Three and a half years after the crash of 1929, these Alabamians- like most Americans—were optimistically looking to Mr. Roosevelt and his New Deal for relief. For as the cotton mills and railroad shops had closed or curtailed their operations, hard times had come to Decatur. The spring foliage and flowers camouflaged, but they could not conceal, the empty, dilapidated stores downtown and the peeling paint on the outlying houses.
Samuel Leibowitz had been apprehensive when he first arrived in Decatur. He was keenly aware that he and his fellow defense attorney, Joseph Brodsky, were outsiders. Worse, they were New York Jews. To his relief, however, the townspeople greeted him with unaffected hospitality. “[They] … impress me as being honest, God-fearing people who want to see justice done,” he told reporters.
After lunch, as officials announced that the court would soon convene, an irregular line formed, stretching through the courthouse corridors and past the brass spittoons resting on their tobacco-stained rubber pads. Within minutes, the 425 seats were filled—whites in three sections, Negroes in the fourth. At 2 P.M. , Judge James Edwin Horton, Jr., settled into the raised judge’s chair, adjusted his tortoise-shell spectacles, and nodded to the prosecutor to begin reading the indictment.
Lank, raw-boned and more than six feet tall, Horton strongly resembled photographs of the young and beardless Lincoln. His family had served prominently in the political life of the ante-bellum South, and the fifty-fiveyear-old judge spoke without self-consciousness of his obligation to uphold the integrity of the family name. His views on the Negro, like those of the traditionally conservative southerner, were kindly and well-meaning, with a trace of noblesse oblige , yet when one of the two Negro reporters present introduced himself on the first day of the trial, Horton, in the presence of disapproving townspeople, unhesitatingly offered a firm handshake. In the Decatur courtroom he was easygoing and lenient, unbothered by the clatter of reporters’ noisy typewriters. During the two-week trial he had to rule upon many questions of law that he had accepted without question throughout his legal career; generally he remained calm and unruffled, his voice at an even, conversational level.
To the disappointment of the spectators, the sensational testimony that they expected to hear did not begin right away. In fact, the whole first week of the trial was taken up with a complex constitutional duel between defense and state attorneys over the question of Negro jurors, and the crowd quickly lost interest. Leibowitz argued that Alabama officials had defied the Fourteenth Amendment by excluding Negroes from the Jackson County juries which had originally convicted the nine youths, and from the Morgan County venire from which a new jury would now be chosen to retry the first de- fendant, Haywood Patterson. The absence of Negro jurors was incontestable; a courtroom official said he could not recall seeing black men in the jury box since before the turn of the century. But a Scottsboro civic leader explained on the witness stand that the absence of Negro jurors was not a matter of racial prejudice. It was simply that Neerroes had not been “trained for jury duty in our county … and I don’t think their judgment—you could depend on it altogether.” Besides, he added as the spectators chuckled, “they will nearly all steal.” One jury commissioner told Leibowitz that Negroes were not excluded for any particular reason; “Negroes was never discussed.”
Thomas Knight, Jr., Alabama’s thirty-four-year-old attorney general, was present to handle the prosecution. Affable and charming, he ordinarily conveyed the image of well-bred southern gentility. In the courtroom, however, he was a fierce antagonist. Nervously pacing across the courtroom, he alternately cajoled and threatened the apprehensive Negro leaders from Scottsboro and Decatur who testified on the jury question. The nineteen witnesses included a Pullman porter, the owner of a drycleaning shop, a dentist, a seminary-trained minister, and a doctor educated at Phillips Exeter Academy in New Hampshire and the University of Illinois. Knight succeeded in showing that some of them were unaware of the intricate details of the jury selection system and that others did not know all the legal requirements for jury duty. He was not able to conceal, however, what Leibowitz wanted to prove: that the Negro wit- nesses were completely qualified to serve as jurors yet that, because of their race, none had ever been called.
After four days of testimony and argument, Horton denied Leibowitz’s motions to quash the Jackson County indictment and set aside the Morgan County venire. Significantly, however, he also ruled that the jury rolls of both counties contained only the names of whites. A smiling Leibowitz perfunctorily objected to the court’s decision; privately he told friends he was confident no conviction could now withstand the scrutiny of the United States Supreme Court.
Despite Leibowitz’s pleasure at the progress of the trial, reporters had sensed a shift of local mood from geniality to distrust and then to anger. However wellintentioned Morgan County citizens might be, their ultimate loyalty was to preserving the racial status quo. Still buried in the walls of several of the town’s buildings were bullets fired during the Civil War; the entire area had been a center of Ku Klux Klan strength during the Reconstruction era and again in the Klan resurgence of the 1920’s. Leibowitz’s insistence on referring to Negro witnesses as “Mr.” had perplexed the spectators, but when he pressed his demand for Negro jurors, grim hostility appeared on the faces of the overalled farmers. Leibowitz, warned a Black Belt newspaper, had “thrown down the challenge to … white supremacy.”
Judge Horton’s brief remarks to the venire of jurors on Friday afternoon referred obliquely to the rising hostility. “Now, gentlemen,” he said, “under our law when it comes to the courts we know neither black nor white. … It is our duty to mete out even-handed justice. … No other course is open to you“—his voice suddenly became stern and harsh—”and let no one think they can act otherwise.” The judge’s implicit warning ended the open threats which had been heard on Decatur’s streets, but resentment smouldered beneath the surface, a resentment bolstered by the presence of “outside radicals” who had come to observe the proceedings.
The jury was selected in one afternoon. Leibowitz was not altogether satisfied, since the state had used its challenges to exclude younger men who might have had “liberal” ideas, but at least he felt he had managed to keep the most obvious “red-neck” types off the jury.
When the actual taking of testimony began the following Monday, ‘the seats were jammed for the first time since the opening day. Although it was cool in the building when the courtroom doors opened at 8:30 A.M. , within an hour the spectators had begun to shed their coats, and by noon courthouse officials were forced to turn on the overhead fans to dispel the oppressive stuffiness caused by constant smoking in the crowded courtroom. Just before 9 A.M. Victoria Price, the older of the two complainants, took the stand. (The other girl, Ruby Bates, was absent; although she had testified at the trials two years before in Scottsboro, state officials said that she had recently disappeared.) Mrs. Price wore a blue straw hat and a black dress with a fichu of white lace at the throat. Her stylish costume was quite unlike the bedraggled outfit she had worn at Scottsboro, and in keeping with her new mien, she restrained her habit of chewing snuff, which at earlier hearings had necessitated frequent spitting. She seemed nervous in the witness chair, crossing and uncrossing her legs and fingering her long necklace of glass beads. When Attorney General Knight began his questioning, however, she spoke in a clear, firm voice that carried to the back of the courtroom.
Mrs. Price began her story from the time she and her friend Ruby boarded the train at Chattanooga to return to their home in Huntsville. Just south of Stevenson, Alabama, she said, about a dozen Negro youths leaped from the top of an adjacent boxcar into the gondola that she and Ruby were sharing with seven white hobos. After a brief scuffle, all but one of the outnumbered white boys were thrown from the train. The only remaining white, Orville Gilley, was forced to watch the brutal assaults- that followed. Thrusting her finger toward Haywood Patterson, Mrs. Price identified him as one of the rapists. Knight asked her if Patterson’s “private parts penetrated your private parts.” “Yes sir, they did,” she replied. Suddenly Knight pulled a torn cotton undergarment from his briefcase, and asked Victoria Price to state whether these were the step-ins she was wearing at the time of the assault. Leibowitz leaped to his feet. “This is the first time in two years any such step-ins have ever been shown” in connection with the case, he objected. “They are here now,” Knight answered, grinning, and tossed them into the lap of one of the bewildered jurors. The courtroom exploded into laughter, and Judge Horton had to gavel for quiet. In less than twenty minutes the Alabama attorney general completed his direct examination and, with a gracious smile toward the defense table, abandoned his star witness to Leibowitz.
The balding lawyer, younger than most spectators had anticipated, exuded confidence. During his career he had reduced even honest witnesses to incoherent confusion, and he was convinced that Victoria Price was lying. Leibowitz had all the skills of a good trial lawyer: an actor’s sense of timing, a flair for the dramatic, and a clear, forceful voice. But his main strength was an almost infallible memory for detail and, above all, for contradictions. “I am not a great lawyer,” he had once said in response to a compliment. “I’m only thorough.” He began his cross-examination gently, almost kindly: “Miss Price … shall I call you Miss Price or Mrs. Price?” “Mrs. Price,” answered the witness sullenly. She looked at her interrogator as though he were a poisonous snake circling her chair.
For more than three hours Leibowitz put her through a grueling cross-examination. First, he sought to discredit her testimony by proving she was a known prostitute and thus unworthy of belief. Second, by confusing her in cross-examination he hoped to convince the jury that she was lying. Finally, he planned to reveal what had really happened during the forty-eight hours preceding the alleged assault.
It was easy enough to discredit Mrs. Price’s claim to be a “southern lady.” In Huntsville, with the nickname of Big Leg Price, she was a well-known streetwalker. Leibowitz introduced arrest and conviction records showing she had been found guilty of “adultery and fornication” on January 26, 1931, with a Hunts- ville married man, L. J. “Jack” Tiller. But Mrs. Price proved unexpectedly difficult to entangle in cross-examination. Using a model of the freight train, Leibowitz tried to illustrate the sequence of events. Mrs. Price adamantly refused to agree that the model looked like the train she had ridden. What were the differences? asked Leibowitz. “That is not the train I was on,” she snapped. “It was bigger, lots bigger, that is a toy.” No amount of cajoling from Leibowitz could force from her an admission that it was a suitable replica.
During the trials in Scottsboro, Mrs. Price had been colorful and inventive in her account of the assault. At Decatur she stuck to a plain, unembroidered story, as lacking in specific details as possible. She and Leibowitz often shouted back and forth at each other, but whenever the attorney uncovered contradictions in her testimony, she would retreat into vagueness: “I can’t remember,” or “I ain’t sure, that has been two years ago.”
“When you got to the doctor’s office, were you not crying in any way?” Leibowitz asked. “I had just hushed crying, the best I remember I was crying—I won’t say, I ain’t positive,” Victoria said crossly. To the attentive courtroom, Leibowitz recalled Mrs. Price’s story in the original trials: that she and Ruby had gone to Chattanooga looking for work and on the night of March 24 had stayed at Mrs. Gallic Brochie’s boardinghouse on Seventh Street. The next morning, both girls had testified, they fruitlessly searched for a job in the city’s cotton mills before boarding the Huntsville-bound freight at 11 A.M.
Leibowitz pointed out that Mrs. Price had said Mrs. Brochie’s house was three or four blocks from the train yards. Wouldn’t you rather say it was two miles? asked Leibowitz. “No sir, I wouldn’t say two miles,” she replied. “Suppose I told you that Seventh Street in Chattanooga, the nearest point … to the railroad yards of the Southern Railroad is two miles and show you the map, would that refresh your recollection?” he asked sarcastically. “I don’t know,” retorted an equally sarcastic Victoria, “I haven’t got a good enough education.” When he challenged her entire account of the overnight stay in Chattanooga, she broke in, shouting, “That’s some of Ruby Bates’s dope,” and added: “I do know one thing, those Negroes and this Haywood Patterson raped me.” Leibowitz stood and stared at her for a moment. She was, he told her, “a little bit of an actress.” “You’re a pretty good actor yourself,” she quickly replied.
After a few questions about her activities on the day before the alleged incident, the tone of Leibowitz’s voice suddenly changed. Gravely, he asked Mrs. Price: “Do you know a man by the name of Lester Carter?” She thought he was one of the white boys thrown from the train, she replied. “Mrs. Price, I … want to ask you that question again and give you an opportunity to change your answer if you want to,” said Leibowitz. “Did you know Lester Carter before that day, Yes or No?” By his intense expression, spectators in the courtroom knew the question was crucial; they leaned forward to hear her answer. Mrs. Price, losing her composure for the first time, mumbled: “Before in Scottsboro—he—was on the train.” “I didn’t ask you that,” said Leibowitz. “Before this day on the train did you know Lester Carter?” “I never did know him,” she said firmly.
He continued in the same low voice. Had she asked a companion of hers “to pose as your brother, since you didn’t want the authorities to know you were travelling across the state line from Chattanooga … [with] somebody with you?” Mrs. Price looked to the table where Knight sat and then back at Leibowitz. “If I said that I must have been out of my mind.” “Did you say it?” he asked firmly. Shouting, she clenched the arms of her chair. “If I said it I must have been out of my mind!”
Leibowitz questioned Mrs. Price about Jack Tiller, the married man with whom she had been convicted of adultery. “Did you have intercourse with Tiller a short time before you left Huntsville [for Chattanooga]?” She shook her head emphatically. “In the railroad yards?” he asked, still in the same quiet voice. “I have told you three times, and I am not telling you any more—no, sir, I didn’t.” Leibowitz returned to Carter. He asked her again if she had arranged with Carter, or “whatever man that was with you, [that] he wasn’t supposed to know you on the train because you were afraid to cross the state line and [were afraid of] being locked up for the Mann Act?” She turned angrily to Judge Horton: “I haven’t heard no such stuff,” she shouted. “That is some of Ruby’s dope he has got.”
Relentlessly the chief defense attorney continued to probe. He asked Mrs. Price once more where she had spent the night before the alleged assault. Perhaps in a hobo jungle? he asked slyly. Victoria stared at him, her eyes filled with hatred. Columnist Mary Heaton Vorse, one of only two women in the courtroom, found it impossible to describe her “appalling hardness.” Only two years before, reporters had described Mrs. Price as “pretty and vivacious.” Now, with her hair tightly curled in a new permanent and her face heavily rouged, she seemed more than “tough,” Miss Vorse wrote. She was “terrifying in her depravity.” Through clenched teeth Mrs. Price repeated again the account of how she had stayed with Mrs. Brochie while she looked for work. Leibowitz asked her if she didn’t want to change her story. She shook her head. “By the way, Mrs. Price,” said Leibowitz with open disgust, “as a matter of fact, the name of Mrs. Callie [Brochie] you apply to this boardinghouse lady is the name of a boardinghouse lady used by Octavius Roy Cohn in the Saturday Evening Post stories—Sis Callie, isn’t that where you got the name?” Knight jumped to his feet in protest and Judge Horton sustained his objection. Leibowitz, however, had dramatically made his point; he was pleased with the results of his cross-examination.
The prosecution, concerned about the damaging effects of Leibowitz’s questions, re-examined Mrs. Price in order to impress upon the jurors the gravity of the charge. Without the “flutter of an eyelash and in a voice that carried to the furthest corner of the courtroom” (wrote one reporter), she related in the most specific Anglo-Saxon terms the sexual demands made upon her by the defendants. Leibowitz knew the only purpose of the re-examination was to inflame the emotions of the jurors. In a voice shaking with anger he sarcastically asked Mrs. Price: “You are not embarrassed before this huge crowd when you utter these words?” “We object,” exclaimed Knight, while Mrs. Price looked at Leibowitz with such venom that one reporter thought she was going to strike him. Suspecting that Victoria’s fear of the Mann Act had led her to accuse the Negroes, Leibowitz explained that he had only one more question. “I want to ask you if you have ever heard of any single white woman ever being locked up in jail when she is the complaining witness against Negroes in the history of the State of Alabama?” Without waiting for her answer or Knight’s objection, Leibowitz angrily took his seat at the defense table.
The last witness for the state on Monday was Dr. R. R. Bridges, one of the doctors who had examined the girls shortly after the alleged rape. Bridges’ testimony and that of his younger colleague, Dr. M. W. Lynch, had been crucial for the state’s case at Scottsboro. Under cross-examination, however, Leibowitz brought out facts that made the doctor a stronger witness for the defense than for the state. Bridges admitted that less than two hours after the alleged rape both girls were completely composed and calm, with normal pulse and respiration rates, and no pupil dilation. Even though Mrs. Price claimed she had been brutally raped six times, the doctor testified that there was no vaginal bleeding and that he and Dr. Lynch had had great difficulty finding enough semen to make a smear slide. The semen they did find was completely nonmotile. Bridges readily admitted that this was unusual: spermatozoa normally live from twelve hours to two days in the vagina.
The following morning, Attorney General Knight explained to Judge Horton that the state did not intend to call Dr. Lynch, since his testimony would be repetitious. After Horton’s consent, however, a bailiff whispered to the judge that the young doctor urgently wanted to speak to him—in private. The only room available in the crowded building was one of the courthouse restrooms, and there the two men talked. Lynch, visibly unnerved, went straight to the point. Contrary to Knight’s explanation, said Lynch, his testimony would not be a repetition of Dr. Bridges’, because Lynch did not believe the girls had been raped. From the very beginning, said the Scottsboro physician, he was convinced the girls were lying. Even Dr. Bridges had noted at the examination that the vaginal areas of the two women were “not even red.” “My God, Doctor, is this whole thing a horrible mistake?” asked the stunned Horton. “Judge, I looked at both the women and told them they were lying, that they knew they had not been raped,” replied the doctor, “and they just laughed at me.”∗
∗ This account, based upon recent interviews and correspondence with former Judge Horton—and carefully checked by him in manuscript form—has been emphatically denied by Dr. Lynch, who wrote to the author on October 16, 1967, that as “far as I can recall, no such statements were ever made to Judge James E. Horton or anyone else regarding the trial of Haywood Patterson versus Alabama. Of course, it has been 35 years and better since this incident happened; and as far as I can recall, I was never put on the stand as a witness in this case.”
Horton sent for Knight and confronted him with Lynch’s statement. Knight was adamant. It was only the opinion of one doctor, he insisted, and the state was committed to the prosecution of the nine boys.
Judge Horton, now doubting that any rape had occurred, faced a painful dilemma. He could force Dr. Lynch to take the stand or he could himself, by Alabama statute, end the trial. In either case, Lynch—because of his courageous act—would be ruined. In his mind, Horton went over the twelve jurors who sat on his left. He knew more than half of them personally and—in spite of their conventional southern attitude toward Negroes—he believed that the weight of the evidence presented by the defense would convince them of Patterson’s innocence. With many misgivings, he decided to allow the trial to continue.
Before the state rested its case on Tuesday afternoon, Knight called to the stand five additional witnesses. Their testimony was inconclusive, and it became clear that the case would stand or fall on the testimony of Victoria Price.
In planning his defense, Leibowitz realized that normal legal assumptions could not be made at this trial. Usually a defense lawyer has only to prove that there is reasonable doubt of his client’s guilt. In Decatur, Leibowitz knew he would have to prove beyond a reasonable doubt that Patterson was innocent.
His first witness was Dallas Ramsey, a Negro who lived near the hobo jungle in Chattanooga. He testified he had seen and talked with two white girls and two white men on the evening of March 24 and the morning of March 25, 1931. Ramsey picked Mrs. Price from the courtroom as one of the women; from a photograph he identified Ruby Bates. The four had apparently stayed the night in the wooded vagrant’s refuge near his home.
George W. Chamlee, a prominent white Chattanooga attorney, took the stand next. He told the jury he had made dozens of personal inquiries and examined city directories in an effort to locate Mrs. Price’s “boardinghouse friend,” Gallic Brochie. He was convinced, he said, that Mrs. Brochie was a figment of Victoria’s imagination. No woman by that name had lived in Chattanooga between 1930 and 1933.
Then Leibowitz took a calculated risk. One by one he put six of the Scottsboro boys on the stand. The jury, he knew, would surely discount their insistence that they were innocent; and, if they made an unfavorable impression, Patterson’s conviction would be assured. But Leibowitz had to dispel the state’s image of the youths as malevolent conspirators acting coldly and methodically to throw the white boys from the train and then rape the two defenseless white girls.
The first two boys who testified were tragic representatives of a society’s deprivation and neglect. Homeless, unemployed, illiterate, they had wandered across the South since their early teens. Willie Roberson, short and stocky and with a wild shock of hair, sat quietly in the courtroom with a vacuous stare. Syphilitic since birth, he spoke with a severe speech impediment. At the time of his arrest, he was in great pain from open venereal sores, and walked with a cane. (Four years later a psychiatric examination disclosed a mental age of nine and an intelligence quotient of sixty-four.) Olen Montgomery was blind in his left eye; with his right he could see “good enough not to get hurt, that is all.” Yet Victoria Price had identified them “positively” as two of the defendants who had run across the top of a moving boxcar, leaped into the gondola where she sat, fought a pitched battle with the white boys, and then brutally raped her. Montgomery and Roberson told the courtroom they had been riding back toward the rear of the train and had not even known of the disturbance until they were arrested at Paint Rock.
On the witness stand Ozie Powell, Eugene Williams, Andrew Wright, and Haywood Patterson readily admitted participating in the fight. Williams and Patterson, who were travelling with the two Wright brothers (Andy and his twelve-year-old brother, Leroy), explained that somewhere between Chattanooga and Stevenson several whites had begun throwing rocks at them and shouting, “Black son-of-a-bitches.” Patterson said that he had rounded up the other Negroes who were hitching on the train to “have it out.” Most of the white youths leaped from the gondola before actually being hit. After the fight, the victorious blacks scattered across the train. Unanimously the Scottsboro boys insisted they had not even seen, let alone molested, the two white girls. Patterson in particular, tall, black, and ostentatiously unservile, held his own during Knight’s stormy questioning. When the Attorney General made some reference to Patterson’s having been tried at Scottsboro, he was bluntly corrected. “I was framed at Scottsboro,” declared the young Negro. Knight, flushed with anger, demanded, “Who told you to say you were framed?” Patterson retorted: “I told myself to say it.”
It is doubtful whether the testimony of the Scottsboro boys had any effect, one way or the other, on the deliberations of the jurors, for it was Leibowitz’s scathing cross-examination of Mrs. Price that preoccupied Alabamians. Anyone “possessed of that old Southern chivalry,” said the Sylacauga News , could not read of the “brutal” harassment of Mrs. Price without “reaching for his gun while his blood boils to the nth degree.” Within hours after Victoria stepped from the witness stand, reporters overheard angry threats on the streets of Decatur. On Wednesday, Judge Horton learned that a “mass indignation rally” had been held the night before in the local Masonic hall. Several of the two hundred men at the meeting bluntly demanded that the “New York Jew lawyers” be tarred, feathered, and ridden out of Decatur on a rail. For the Scottsboro boys, the prescription was summary justice from the nearest tree.
A grim-faced Judge Horton ordered the jury removed from the courtroom, and then, in a voice betraying deep emotion, he told the spectators that the guilt or innocence of Haywood Patterson and his fellows was for the jury alone to decide. He wanted to make it absolutely clear, he said, that the court intended to protect the prisoners and their attorneys. “I say this much, that the man who would engage in anything that would cause the death of any of these prisoners is a murderer; he is not only a murderer, but a cowardly murderer.” For the first time in the trial Horton raised his voice. Anyone who attempted to take the lives of the prisoners “may expect that his own life be forfeited,” he sternly told the silent courtroom. “I believe I am as gentle as any man … I don’t believe I would harm anyone wrongfully.” But he added, emphasizing every word, that there would be no compromise with mob violence. “Now, gentlemen, I have spoken … harsh words, but every word I say is true and I hope we will have no more of any such conduct. Let the jury return.”
Horton’s stern warning ended the open threats of violence. But according to reporters, it also seemed to intensify the community’s bitter hostility.
Now under round-the-clock protection by National Guardsmen, Leibowitz continued doggedly to hammer away at the state’s case. To intensify the impact for the defense of Dr. Bridges’ testimony, he called to the stand Edward A. Reisman, a Chattanooga gynecologist who had spent all his life in Alabama and Tennessee. After reviewing all the medical evidence, Dr. Reisman declared that in his professional opinion it was “inconceivable” that Mrs. Price had been raped six times, as she claimed. But the spectators completely distrusted Dr. Reisman. As one Decatur resident told the New York Times reporter, “When a nigger has expert witnesses, we have a right to ask who is paying for them.” On Thursday morning Liebowitz presented his most damaging witness. Lester Carter, a twenty-three-yearold hobo, had been on the train when the fight began; it was his name that had so startled Mrs. Price during Leibowitz’s cross-examination. Now, wearing a new gabardine suit and a brightly flowered tie, Carter added graphic details to the story Leibowitz had previously sketched. In January of 1931, Carter testified, a Huntsville police court had convicted him of vagrancy and sentenced him to sixty days in the county workhouse. There he met Victoria Price and her boyfriend, Jack Tiller, who were serving time for adultery. When the three were released in March, Tiller invited Carter to stay around Huntsville for a few days. The hospitable Mrs. Price even offered to arrange a date for Carter with her best girl friend, Ruby Bates. On the night of March 23, approximately forty hours before the alleged rape, Tiller and Carter met the two girls outside the gates of a local mill. Talking and giggling, they walked to the Huntsville hobo jungles.
“What occurred in the jungles that night?” asked Leibowitz. “I hung my hat on a little limb and went to having intercourse with the girl [Ruby],” replied Carter. Less than three feet away, Tiller and Victoria also were “having intercourse.” When a light rain began to fall, the four got up from the honeysuckle bushes where they had been lying and crawled into an empty boxcar pulled onto a sidetrack. During the night, in the intervals between love-making, they “talked and started planning this hobo trip,” he said. The girls complained that they were sick of Huntsville; perhaps they could go to Chattanooga and “hustle” while the two men got temporary jobs. Tiller explained that he did not want to risk another adultery conviction, but he promised vaguely to meet the other three in Chattanooga if they did not return in a few days. Just before daybreak, the girls went home and collected a change of clothes. They agreed to meet Carter in the freight yards that afternoon.
On the way to Chattanooga, Carter explained, he pretended he did not know the girls; they rejoined each other only after leaving the train. Just beyond the railroad yards, they met Orville Gilley, a slender, self-styled “hobo poet.” After Gilley introduced himself, they walked together to Chattanooga’s hobo jungle, built a small fire, and shared a meager meal of chili and coffee. During the night, Carter told the court, he once again had sexual relations with Ruby Bates. He could not say for certain about Victoria and their new friend.
The next morning, the four decided they had seen enough of Chattanooga. Tired and hungry, they boarded the 11 A.M. freight for Huntsville. Five white hobos sat in the next car toward the caboose. Just south of Stevenson, Alabama, Carter said, he heard several shouts above the noise of the train. He investigated and saw white and Negro boys fighting in the adjoining car. By the time he and Gilley could get there, however, most of the white youths had jumped or been shoved from the train. Without striking a single blow, Carter “climbed down where the couplings are” and got off. Gilley remained behind. In Scottsboro several hours later, Gilley denied there had been any rape, said Carter.
Although Carter testified persuasively and was unshakable in cross-examination, the jury and spectators listened with open skepticism. His eagerness to testify, his frequent nervous gestures, and his immaculate appearance, one observer said, gave the impression that the defense had “carefully schooled” him. Carter’s most damaging mannerism was his insistence on saying “Negro,” instead of the typical white southern pronunciation, “Nigra.” In cross-examination, Morgan County Solicitor Wade Wright, who was assisting Knight, drew from Carter an admission that the defense had paid his room and board for almost a month and had even bought him the “fancy” new elevendollar suit he was wearing.
Shortly after noon on Thursday, the defense rested “with reservations,” but Leibowitz had scarcely taken his seat when a messenger brought a note to his table. Walking over to the bench, Leibowitz whispered to Judge Horton, who then announced a brief recess. The courtroom remained quiet but visibly excited. Ten minutes later, National Guardsmen opened the back doors of the room. A heavy-set, perspiring woman in her forties came down the aisle; Ruby Bates walked behind, her eyes fixed on the floor. The spectators leaned forward with an audible gasp; at the prosecution table there was open consternation. Miss Bates’s chaperone, a social worker from the Church of the Advent in Birmingham, explained that the church rector had asked her to bring the young woman to Decatur. The chaperone knew nothing about the case.
Ruby was dressed in a smart gray coat with matching cloche. In 1931 an investigator for the American Civil Liberties Union had described her as a “large, fresh, good-looking girl” with soft “calflike” eyes. But the freshness now was gone. Unlike the spirited Victoria, Ruby seldom raised her eyes from the floor as she mumbled her testimony. Leibowitz asked few questions in his direct examination. On the night of March 23, 1931, “did you have intercourse with Lester Carter … ?” “I certainly did,” Ruby replied softly. “Did Victoria Price have intercourse with Jack Tiller … in your presence?” he asked. “She certainly did,” said Ruby. Judge Horton, who had been sitting behind the bench throughout the trial, got up and moved down to a seat in front of the spectators facing Miss Bates.
Did any rape take place on the Chattanooga-toHuntsville freight train? continued Leibowitz. Not that she knew of, Ruby replied, and she had been with Victoria Price for the entire trip. While the jury and spectators strained to hear her low voice, she explained why she had decided to testify for the defense. Five weeks before, she said, she had left Huntsville with a boyfriend to avoid any involvement in the new Decatur trials. First she had gone to Montgomery; from there she had hitched a ride to New York, where she had worked for a “Jewish lady” for several weeks. But her conscience bothered her, and after reading about a famous New York minister, Dr. Harry Emerson Fosdick (“Dr. Fostick,” she called him), she visited him in his study one evening late in March. He arranged for her to go to the Birmingham Church of the Advent and from there to Decatur. Leibowitz completed his questioning in less than fifteen minutes.
For a moment, the Attorney General stared silently at Ruby, who sat with her eyes downcast. “Where did you get that coat?” he finally asked. She hesitated for a moment, and then whispered, “I bought it.” “Who gave you the money to buy it?” Knight asked. “Well, I don’t know,” she replied evasively, her eyes still fixed on the floor. “You don’t know?” Knight repeated sarcastically. “Where did you get that hat? Who was the beneficent donor?” There was a long pause as Ruby sat biting nervously at her lower lip. From his seat inside the spectators’ rail, Judge Horton leaned forward and gently asked her, “Do you know?” Almost inaudibly she murmured, “Dr. Fostick of New York.”
Whenever Knight questioned her about her testimony at Scottsboro, she repeated over and over: “I told it just like Victoria Price told it,” or “I said it, but Victoria told me to.” The majority of the Attorney General’s questions were not, however, about her earlier allegations at Scottsboro. He seemed more intent on proving to the jury that Ruby had been bribed by the defense. Knight suspected that her conscience had been given an assist by representatives of the International Labor Defense. Firing his questions rapidly at the subdued witness, he asked her about her finances. How much money was she making when she left Huntsville? How had she paid for the trip from Montgomery to New York? Who gave her funds for the trip back to Alabama? Although she talked vaguely of loans from her employer in New York, her obvious lack of candor brought smirks and open laughter from the packed courtroom. The Attorney General also drew from Ruby an admission that she was suffering from syphilis and gonorrhea in May of 1931 and had told a Huntsville doctor who treated her that she had contracted it from Negroes who had raped her.
The main testimony in the trial ended when Ruby Bates meekly stepped from the witness stand late Thursday afternoon. Her story caused “an immediate and bitter reaction among the residents of … [Morgan] and neighboring counties,” said the New York Times correspondent. Citizens of the area were convinced she had “sold out” to the defense. Although Attorney General Knight expressed confidence that the “mob spirit” would exhaust itself in harmless talk, reporters noticed that Miss Bates was hustled away from the courtroom and taken to a secret hiding place by a detachment of National Guardsmen. Knight also strengthened the National Guard unit guarding Leibowitz and Brodsky.
On the following afternoon County Solicitor Wright began the state’s summation. Renowned among local all-day singers, Wright bellowed his remarks in the singsong chant of a sawdust-trail evangelist. At first he rambled on about the “fancy New York clothes” of the defense’s chief witnesses, Lester Carter and Ruby Bates. But soon he was ringing the changes on all the fears and hatreds that had been aroused in the two weeks of the trial. In summarizing the testimony of Carter, he said with mincing sarcasm: “What does Mr. Carter tell you, maybe it is Carterinsky nowl If he had a-been with Brodsky another two weeks he would have been down here with a pack on his back a-trying to sell you goods. Are you going to countenance that sort of thing?” From a front-row seat, an excited spectator exclaimed “No!” with the fervor of an “Amen” in church.
As Wright’s anti-Semitic tirade poured out, Leibowitz sat at the defense table with a look of stunned disbelief. Attorney General Knight stared fixedly at the floor, his face flushed with embarrassment. The faces of several jurors betrayed their excitement. Horton sharply reprimanded the solicitor, but Wright went tumbling on, almost lost in his own rhetorical fervor. He turned and pointed a finger at the counsel table where Leibowitz and Brodsky sat. “Show them,” he paused for effect, “show them that Alabama justice cannot be bought and sold with Jew money from New York.” Leibowitz leaped to his feet, slamming his hand on the defense table. “I move for a mistrial,” he said. “I submit a conviction in this case won’t be worth a pinch of snuff in view of what this man just said.” Horton scolded Wright for his “improper statements” but refused to end the trial.
Leibowitz, facing the unenviable task of restoring calm to the feverish courtroom, began his closing remarks late in the afternoon. “Let us assume the prosecution is prejudiced,” he began. “Let us assume the defense is also prejudiced. Let us assume both sides are trying to prove their points.” He looked squarely into the face of each juror. “It is the sworn duty of each of you,” he told them, to convict only upon “hard evidence,” not emotion. He summarized the four days of testimony and emphasized what several state officials were admitting privately: that the prosecution’s case rested solely on the testimony of Victoria Price. And her story, he said, was the “foul, contemptible, outrageous lie … [of] an abandoned, brazen woman.”
The defense attorney continued his summation the next morning. By ten o’clock his voice had begun to crack with fatigue. Several times he took a few sips of water, pausing as if to gather his strength. He recalled Wade Wright’s tirade, referring to it as a “hangman’s speech.” “What is it but an appeal to prejudice, to sectionalism, to bigotry?” Wright, he maintained, was simply saying: “Come on, boys! We can lick this Jew from New York!” The jury’s verdict, he concluded, would show whether Alabamians would give even this “poor scrap of colored humanity” a “fair, square deal.”
When the weary Leibowitz took his seat, Attorney General Knight began the final arguments for the state. In an obvious reference to Wright’s tirade, he shouted: “I do not want a verdict based on racial prejudice or a religious creed. I want a verdict on the merits of this case.” Knight exhorted the jurors to stand up for Alabama; he expressed his confidence that they were not “cowards.” Referring scornfully to the almost forgotten Patterson as “that thing,” he told the jury in a tone of unveiled contempt: “If you acquit this Negro, put a garland of roses around his neck, give him a supper, and send him to New York City.” There, he said, “Dr. Harry Fosdick [will] dress him up in a high hat and morning coat, gray-striped trousers, and spats.” Only one verdict was possible: death in the electric chair.
Horton delivered his charge to the jury before noon. He began with a pointed reference to the state’s star witness, Victoria Price. The law was designed to protect all classes of people, he said, but the law also had a “stern duty to perform when women of the underworld come before it.” It was the obligation of the jury, in evaluating Mrs. Price’s testimony, to weigh her background of promiscuity and prostitution. In an effort to calm the emotionally charged courtroom, the judge concluded with a plea for the jury to put aside extraneous matters. “We are not trying lawyers,” he said. “We are not trying state lines. We are not trying whether the defendant is black or white.” The only duty of the jury was to ascertain whether there was a reasonable doubt about the guilt of Haywood Patterson. If there was a reasonable doubt, he emphasized, then they should return a verdict of not guilty. Horton, visibly exhausted from the wearing two-week trial, gave the case to the jury just before one o’clock.
The courtroom was soon empty except for lawyers and newspapermen. Patterson and the other Scottsboro boys sat in their cells and played cards or sang gospel songs to pass the time. When the jury still had not reached a decision at 11:30 P.M. , Horton ordered them locked up for the night, and told them to resume their deliberations the following morning, Sunday, at 8:30 A.M.
They reached a verdict at 10 A.M. Leibowitz and Brodsky hurried over to the courthouse. There they found Patterson—guarded by two militiamen- sprawled in a chair and smoking a cigarette. Across the room, Knight sat at the prosecution table, the muscles of his face twitching nervously. When Judge Horton arrived at 11 A.M. , he called for the jury; the court stenographer opened his notebook to take down the last words of the trial. As the jurors filed in they were still laughing from a joke; they became solemn when they saw the tense courtroom.
“Have you agreed upon a verdict?” Horton asked the foreman. He replied, “We have, your honor,” and handed a heavily creased slip of paper to the bailiff, who laid it on the judge’s bench. Horton unfolded the slip of paper and read the large pencilled letters: “We find the defendant guilty as charged and fix the punishment at death in the electric chair.” There was not a sound in the courtroom as spectators craned to see the defense table. That night a shaking Haywood Patterson would clutch a prison Bible in fear, but he had decided beforehand he would never show his inner terror to the gawking white spectators. His face did not change expression. Leibowitz looked as though he had been struck; he leaned back slackly in his chair.
After the jury had been dismissed and a postponement of further trials announced, Leibowitz walked to the bench and grasped Horton’s hand. The judge warmly returned the handshake. “I am taking back to New York with me a picture of one of the finest jurists I have ever met,” said Leibowitz, his voice shaking with emotion. “I am sorry I cannot say as much for the jury which has decided this case against the evidence.”
Later, reporters learned from several jurors that they had not even discussed, much less considered, the testimony of Ruby Bates. The twelve men had taken their first ballot five minutes after the judge gave them the case. The vote was: guilty 12, not guilty o. The rest of their deliberation time had been taken up with the question of the sentence. Eleven jurors had voted immediately to send Patterson to the electric chair. One, the foreman, had held out until Sunday morning for life imprisonment.
On June 22, 1933, ignoring a warning that he was jeopardizing his own chances for re-election, Judge Norton granted a defense motion and overturned Haywood Patterson’s conviction. In a devastating indictment of the state’s case, he concluded that Victoria Price’s testimony was not only uncorroborated, but also improbable and contradicted by evidence which “greatly preponderates in favor of the defendant.” To reporters, Horton implied he would also reverse any future convictions based upon her testimony.
Defense attorneys hoped that Norton’s meticulous and persuasively written decision would cause a shift in public opinion in the state. It did not. At the instigation of Attorney General Knight, Horion was removed from the case and another jurist more amenable to the state’s position was appointed. (The warning to Judge Horion was not just a threat: in the 1934 Democratic primary he lost his seat on the bench, despite a vigorous campaign. That same year, Attorney General Knight was elected lieutenant governor.) When Patterson and Clarence Norris, another of the Scottsboro boys, were tried again in December of 1933, both received the death sentence. In 1934, the United States Supreme Court accepted the defense contention that Negroes were systematically excluded from Alabama’s juries and gave Patterson and Norris another trial. But in 1936, Patterson was convicted for the fourth time and received a sentence of seventy-five years.
The following year, the state began prosecution of the remaining eight defendants, and in rapid succession juries convicted Clarence Norris, Charley Weems, Andrew Wright, and Ozie Powell. But Lieutenant Governor Knight was dead by this time, and the state was in a mood to compromise. Instead of death, the assistant attorney general had asked only for life imprisonment. In the midst of the trials, it was suddenly announced that the state would dismiss the charges against the remaining four defendants. Although WiIUe Roberson and Olen Montgomery had already spent six years in jail, it was admitted that they were “unquestionably innocent.” Since Leroy Wright and Eugene Williams had been only twelve and thirteen years of age in 1931, “the State thinks that the ends of justice would be met … by releasing these two juveniles on condition that they leave the State never to return.” On this grotesque note, the public story of Scottsboro came to an end.
Of the five who remained in jail, Patterson successfully escaped to Detroit years later, and eventually died of cancer in a Michigan jail. The other four were finally paroled. Andrew Wright, the last of the parolees, left prison nineteen years after he had been taken from the freight train in Paint Rock.
In 1939, Victoria Price offered to recant—for a substantial fee. No one cared to pay it. She and Ruby Bates both died in the same year, 1961, in towns thirty miles apart.