Contempt of Court Redux

I was reviewing some book reviews I wrote years ago in preparation for a lecture on the Supreme Court. This one would have been appropriate for my talk on the 14th Amendment, which was already too long, anyway, but it will fit nicely when I discuss the lack of enforcement powers of the Supreme Court. This was a case where they showed a bit of muscle and in 1906, no less, and related to the 14th Amendment.

I had forgotten that one of my Goodreads friends noted that it was popular in the south to have your picture taken at a lynching, especially if you were one of the perps, and have postcards made from the pictures which then were mailed to friends and relatives. Many of them are still available in antique shops and some were collected in a book and made into a movie. If you have the stomach for it you can look at them at https://withoutsanctuary.org.


My edited review from 2012:

Note. If you don't like spoilers, don't read the book since the first chapter reveals what happens right up front. Everyone else *should* read it. Often we labor under the assumption that because things are the way they are today, it must have been ever thus. This book will quickly disabuse you of that notion.

The extraordinary story of two heroic black lawyers who championed the case of an innocent man, a sheriff more interested in political advancement than justice, mob rule, and one of the very few times when the Supreme Court has issued a contempt citation for failure to follow its rulings, and the importance of the 14th Amendment to the Constitution. To quote Thurgood Marshall: " The Shipp case was perhaps the first instance in which the court demonstrated the the Fourteenth Amendment and the equal protection clause have any substantive meaning to persons of the African-American race. . . .The import of the Sheriff Shipp case on the federal court's authority over state criminal cases should not be underestimated." It also meant that Justice Harlan was to become one of my most recent heroes.

The case began with the assault on a young white woman who had been walking home from work when she was attacked by a black man and although she was never able to identify him precisely, a black man roughly meeting her description by the name of Ed Johnson was arrested. There was another witness who swore he had seen Johnson with a leather strap in the vicinity. Johnson unwaveringly swore his innocence and had several witnesses who maintained he had been several miles away at a bar.

While Chattanooga had been a place of reasonable racial harmony for several years and had had no recent lynchings, (in fact, two well-respected local ministers, one having served with the union, the other with the Confederacy, were a strong force arguing against mob violence but they were out of town that evening,) a mob formed when they heard someone had been arrested and was soon whipped into such a frenzy they began to batter down the doors of the jail. They were only persuaded from further violence when Sam McReynolds, the judge assigned to the case, showed up and offered to prove that Johnson was not even there. He and the Sheriff had arranged earlier in the day to have Johnson and another marginal suspect taken to another city. Finally satisfied, the mob dispersed.

Before Gideon v Wainright, suspects had few rights and were not entitled to a lawyer. Unlike most states, however, Tennessee law required that a lawyer be appointed in capital cases. Also unlike today, which practice is now forbidden, it was common for judges to meet with prosecutors to plan the prosecution. The question was whom to appoint as the defense attorneys for John after the grand jury had returned a "true bill" of indictment. Despite numerous efforts, the Sheriff had been unable to get a confession from Johnson who continued to swear to his innocence.

The authors do a masterful job of portraying the case. The three court appointed lawyers really did their best against a stacked deck, especially Judge Shepherd who, in an impassioned summation to the jury, ripped the judge and prosecutors for not giving Johnson a fair trial. Initially the jury was split 8-4 for conviction, but after the judge sent them home for the night, he met with the prosecutors. No one knows what happened during that meeting but everyone feared the eruption that would occur should Johnson be found innocent or there be a hung jury. In any case, immediately upon returning to their deliberations the next morning, the jury announced they had a verdict and all four of the holdouts had changed their minds.

The trial itself had some startling scenes with a couple of jurors, in tears, requesting that the victim be brought back to testify and *they* asked her if she could swear that Johnson was her attacker. She never could with certainty. After the verdict Shepherd wanted to appeal to the Tennessee Supreme Court but three more lawyers, appointed by the court, picked in a closed door meeting with the prosecution (highly unethical behavior) and, it was later admitted by the judge, two of whom were picked by the prosecution, persuaded Johnson, and the other lawyers that *even if he was innocent* it was better to be hung in the course of *justice* rather than by a lynch mob. When they announced their decision not to appeal the verdict, an extraordinary decision, the judge sentenced Johnson to hang, the penalty for rape in Tennessee.

They had failed to reckon with Noah Parden, whose resume alone is worth a book. His trip to Washington where he convinced Justice Harlan to issue a stay of execution and the later decision that resulted in the federal application of basic rights to the states under the 14th amendment is riveting. What Parden had managed to do was to persuade the Court of the need to apply the Sixth Amendment requirement of a fair trial to the states Due Process was not to mean simply did the rules get followed, but did the defendant get a fair trial. Equal Protection had to mean that black defendants would get the same presumptions of innocence and privileges accorded to white defendants.

Unfortunately, the significance was perhaps not lost on the mob, which, horrified that the federal court might deign to dispute its cherished denial of black men's rights, decided to enforce its own brand of morality. The Supreme Court has no enforcement powers but what they did was, I believe, never before, nor since, done. No spoilers here, read the book.

To give you a small flavor of the endemic racism that pervaded American society at the time, it was the practice of lawyers admitted to the bar of the Supreme Court to kiss the Bible as they were sworn in. After black lawyers were admitted to the bar, that practice was dispensed with because white lawyers refused to have their lips touch anything that might have been sullied by black lips.

Ed Johnson lies today forgotten in a closed African-American cemetery under a tombstone on which is inscribed, I AM A INNOCENT MAN. GOD BLESS YOU ALL.

Interestingly, much of the research for the book was done at Tuskeegee University in Alabama which has a detailed record of virtually every lynching. Many of the original documents are in terrible shape and part of the proceeds of the book will be allocated to help the preservation of those materials.