While reading an article in Thursday’s New York Times (4/4/13),I flashed back forty years deep into my public defender days. Alabama lawmakers voted to issue posthumous pardons to the Scottsboro Boys, nine black teenagers, who were wrongly convicted of rape more than 80 years ago based on false accusations by two white women.
All but the youngest of the defendants, whose ages ranged from 13 to 19, were sentenced to death by all-white southern juries before the verdicts were finally overturned. The case became synonymous with racial injustice and set important legal precedents, including a Supreme Court ruling guaranteeing the right to effective counsel. I have cited to the Powell opinion hundreds of times.
The last of the so-called “boys” died in 1989. The pardons mean nothing to them nor to the racial bigots who sought to destroy them. Perhaps it means something to present day Alabama to put this emblem of racism behind them but like today’s Germany the stink is harder to erase.
I became captivated by this case and the trials it spawned through a personal connection. I started my career as a novice public defender in January 1971. Both our office and the criminal courts were in the old Metro Justice Building sitting, not too majestically, on N.W. 12th Street. At the time, the only other buildings in the area were the immensely ugly Dade County Jail and a hodge-podge of medical buildings.
The mostly empty spectator seats in the courtrooms were occupied mainly by older men who were outpatients from the nearby hospitals. Many of them were treated early in the morning and again in the late afternoon so they would hang out at the courts to amuse themselves. We saw them almost every day and we became friendly with these court watchers, and they loved to give us unsolicited advice on how to try a case. Soon we adopted them as informal shadow jurors.
One elderly man kept buttonholing me with some pretty good ideas. I finally asked him how he came by them. He was a retired judge from New York City named Samuel Leibowitz. At the time the name meant nothing to me. There was no Google or the internet in those ancient days. I soon forgot about him and thus missed a singular chance to talk to a legend. Some time later I read Courtroom: The Story of Samuel Liebowitz by Quentin Reynolds and I belatedly put two and two together. Legal history buffs will also recognize Reynolds as one of Louis Nizer’s most famous clients (see My Life in Court by Louis Nizer).
Leibowitz defended many notorious cases (albeit he refused Al Capone), but the one that still has currency today is the Scottsboro Boys. For the first trial one defendant’s mother hired a real estate lawyer for $60. Death sentences quickly followed. The U.S. Supreme Court overturned the convictions in Powell v Alabama (1932) for the first time ruling that defendants were entitled to an effective lawyer.
Leibowitz was then brought in by civil rights groups and he worked for the next four years on the cases without pay or even reimbursement for most of his expenses. Leibowitz quickly became hated in Decatur, where the trial was held, when he opened his defense of Haywood Patterson, the first defendant to be retried, by challenging Alabama’s exclusion of blacks from the jury rolls. Death threats were made against him after his brutal cross-examination of alleged victim Victoria Price. One reporter wrote that after the cross he overheard several people saying, “It’ll be a wonder if he gets out of here alive.” Five uniformed members of the National Guard were assigned to protect him during the trial, with another 150 available to defend against a possible lynch mob.
Clarence Norris, a Scottsboro defendant, said of the courtroom mobs: ”Not a black person around anywhere. Everybody was white but us nine. ‘Let’s take these black sons of bitches and put ’em up to a tree.’ I thought I was going to die.” “The courtroom,” said Haywood Patterson, the most outspoken of the defendants, “was one big smiling white face.”
Leibowitz dropped other bombshells on the prosecution’s case. One witness, a white hobo on the train, testified Victoria Price was a prostitute and an adulterer (BTW not admissible evidence today). Ruby Bates, the other alleged victim, took the stand for the defense and testified there was no rape saying that Price made up the story because she was afraid of being arrested for transporting a minor, Bates, across state lines for the purpose of prostitution.
The prosecutors responded with venom. They claimed the defense witnesses were liars, pawns of Jews and Communists and traitors to the South. The chief prosecutor ended his final argument with a single question: “Is justice in the case going to be bought and sold in Alabama with Jew money from New York?” Of course a rural southern jury was not about to let that happened and quickly returned guilty verdicts with death sentences.
Leibowitz was understandably outraged by the verdict and made a misstep by angrily insulting the jury. Asked by a reporter to explain the verdict, he portrayed white Southerners en masse as “lantern-jawed morons,” adding, “If you ever saw those creatures, those bigots whose mouths are slits in their faces, whose eyes popped out at you like frogs, whose chins dripped tobacco juice, bewhiskered and filthy, you would not ask how they could do it.” This fed right into the popular belief that the defense was insulting the southern way of life making any retrial far more difficult. But it was an all too human response to an outrageous verdict. Been there done that.
Leibowitz appealed to the U.S. Supreme Court arguing that Patterson’s and Norris’ convictions violated due process because blacks were systematically excluded from Alabama’s juries. When Leibowitz alleged that the names of blacks appearing on jury rolls were fraudulently added after Haywood’s trial began, Chief Justice Charles Evans Hughes asked Leibowitz if he could prove that allegation. Leibowitz had caused the jury roll books to be brought to Washington and he handed the jury rolls and a magnifying glass up to the Chief Justice. The documents were passed from Justice to Justice, a highly unusual event during oral argument in the Supreme Court, and the Justices indicated their disgust. The Supreme Court again reversed the defendants’ convictions in Norris v Alabama.
Before their release, the defendants had suffered constant beatings from guards while imprisoned so close to the electric chair that they could hear the executions, a regular reminder of their potential fate.
After his work on the Scottsboro Boys case was finished, Leibowitz returned to his New York practice but became much more interested in civil rights issues. Among other cases, he met on death row several times with Bruno Hauptmann, the German immigrant convicted of kidnapping Charles Lindbergh’s baby, in the hopes of convincing him to reveal details of the crime.
During the 1940s, he was appointed to serve a 14-year term as a Justice of the Kings County Court, then the principal trial court for criminal matters in Brooklyn. Leibowitz was reelected to his judgeship in 1954. When the County Courts in New York City were merged into the New York State Supreme Court in 1962 as part of a court reorganization in 1962, Leibowitz’s title changed to New York State Supreme Court Justice.
One case he handled must have been fun. He presided over the criminal trial of Brooklyn Dodgers manager Leo Durocher for assaulting a fan at Ebbets Field in 1945. He served until 1969 when he reached the final mandatory retirement age of 76 so he was at least 80 when I met him.
It is all too fitting that Irving Younger, author of the infamous The Ten Commandments of Cross-examinatiuon, held an endowed law professorship of trial advocacy at Cornell named after Samuel Leibowitz.
Unfortunately I don’t remember much about him at all. He was old and frail and I had no idea who he was. Today I wish I had spent more time with him and gotten the inside story of some of his cases especially Scottsboro. But it was not to be. At least I can say I was in the presence of greatness.