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The
Phillips County Riot Cases
By
Harrison Bennett
When
the violence that occurred in Phillips County, Arkansas, in the
fall of 1919, subsided, the formal processes of the law were set
in motion against African-Americans who had allegedly been
prepared to foment an "insurrection" against the
whites of the area. But the machinery of the law would be
commandeered by a community intent upon working other forms of
violence: sentences of death against those who had escaped the
lynch mobs and repudiation of the notion that equal protection
under the law was to be realized in Phillips County.
The
litigation would culminate, however, in a ruling by the U.S.
Supreme Court that would actually undermine the capacity of a
local community to permanently deprive or deny the rights of
those who might be prosecuted in its courts. The authority of
the federal courts to review state court deliberations for
constitutional errors would be fundamentally changed as a result
of the Phillips County cases, making any future effort to
utilize courts of law as vehicles for channeling the rage of a
mob much less likely to succeed. Though a small recompense for
those terrorized and murdered during the Elaine Riot, this
legacy ensures that their suffering was not entirely in vain.
In
late October and early November of 1919, a Phillips County grand
jury, which included no blacks, returned indictments against 122
blacks (including 73 charges of murder) for their alleged
participation in what local authorities had identified as an
"insurrection" against the white communities and
institutions of the area. The trial that would culminate in a
landmark constitutional ruling by the U.S. Supreme Court began
on November 2, 1919, and concerned a charge against Frank Hicks
of first degree murder against Clinton Lee, with Frank Moore, Ed
Hicks, J. E. Knox, Paul Hall, and Ed Coleman charged as
accessories.
Blacks had been excluded from the petit jury which
heard the cases. The accused were not permitted to engage in
pre-trial consultation which their lawyers, who chose to neither
subpoena witnesses on their behalf or place their clients on the
stand. In addition, "an adverse crowd threatened the most
dangerous consequences to anyone interfering with the desired
result," which was clearly the death of the defendants.
The
jury convicted Frank Hicks of first-degree murder after a mere
eight minutes of deliberation. Moore, Ed Hicks, Hall, and
Coleman were convicted of murder in the first degree as
accessories, following only seven minutes of deliberation. The
principal evidence produced against them was the testimony of
two black witnesses, Walter Ward and John Jefferson, who stated
that they were present when Frank Hicks, in the company of other
black men, fired at Clinton Lee, as well as the testimony of
Helena municipal court judge J. Graham Burke, who claimed that
Ed Hicks, Knox, and Coleman confessed they were among this
company.
Altogether, twelve men were convicted of first degree
murder and sentenced to die by electrocution. Arkansas media
accounts contrasted the state’s reaction to the
"insurrection" to that which followed similar
incidents in Washington, D. C. and Chicago with some pride,
arguing that, "Through it all, the law…was in
control." The men were promptly scheduled to die on
December 27, 1919 and January 2, 1920.
Motions
for new trials were filed on December 18, 1919, by Colonel
George W. Murphy, a former Confederate soldier and Arkansas
attorney general, retained by the National Association for the
Advancement of Colored People (NAACP), and Scipio Africanus
Jones, a former slave who was retained by an Arkansas-based
defense committee, on behalf of all twelve defendants who had
been sentenced to death, arguing that their opportunity for fair
trials had been precluded by the mob atmosphere and adverse
publicity that accompanied the proceedings that condemned them.
They were also, according to the motion, denied due process of
law, in violation of the Fourteenth Amendment to the U.S.
Constitution, because they had been given neither an opportunity
to prepare a defense with their counsel or adequate notice of
the charges levied against them. They were also denied the equal
protection of the law (also a Fourteenth Amendment claim), it
was argued, because blacks had been excluded from the grand and
petit juries which decided their fates.
When
the Circuit Court of Phillips County rejected their claims,
Murphy and Jones appealed to the Arkansas Supreme Court, which
reversed the convictions of Ed Ware, Will Wordlow, Albert Giles,
Joe Fox, Alf Banks Jr., and John Martin (henceforth Ware et
al)
due to a defect in the wording of the jury verdict, and affirmed
the convictions of Frank Moore, Ed Hicks, J. E. Knox, Ed
Coleman, and Paul Hall (henceforth Moore et al), because their
constitutional claim had been forfeit when they failed to raise
it at trial.
The cases of the Arkansas defendants would
henceforth proceed along two separate courses. The case of the
Ware et al defendant’s was remanded to the Phillips County
Circuit Court for retrial, and they were promptly convicted for
a second time. This conviction would also be overturned by the
state supreme court, however, because the discrimination against
prospective black jurors which characterized the second trial
was, argued the justices, contrary to the Fourteenth Amendment
and the Civil Rights Act of 1875.
The
Ware et al defendants
would eventually win their freedom, ironically, because of the
apathy of state authorities respecting the prosecution of their
third trial. Their case had not been acted upon for over two
years by April 1923, and Arkansas law provided that a defendant
was entitled to discharge if the state failed to bring his/her
case to trial after two terms of court. Accordingly, Scipio
Jones requested, and received an order of release from the
Arkansas Supreme Court on June 25, 1923.
But
the only option available to the Moore et al defendants was to
petition for a federal writ of habeas corpus. The writ of habeas
corpus ("habeas corpus" in the original Latin means
"you are ordered to have the body") was an instrument
by which a magistrate or court could order the appearance of a
person detained by another authority for the purpose of
determining the legality of his/her detention.
The authors of
the American Constitution appreciated the value of the writ to
personal liberty, and established express limitations upon its
suspension. The initial presumption that prevailed prior to the
Civil War had been that the states were peculiarly competent to
preserve individual liberties. Federal habeas corpus was not
held to properly extend to state prisoners who asserted a
federal claim if the purported violation occurred in a court of
competent jurisdiction.
The so-called "jurisdiction
doctrine" would dominate the habeas jurisprudence of the U.
S. Supreme Court from the 19th Century well into the
20th Century. The Civil War and violent
Reconstruction provided the impetus for passage of the Habeas
Corpus Act of 1867, which extended, for the first time, the
benefits of federal habeas corpus to prisoners held in state
custody. This statute would be the basis for the petition filed
by counsel for Moore and his co-defendants.
The
principal obstacle before them was the Court’s ruling in Frank
v. Mangum, where the Court denied the habeas petition of Leo
Frank, who had been tried under circumstances similar to those
endured by the defendants in the Phillips Country cases. One
could not claim, according to the majority in Frank, that the
state denied due process to a defendant whose trial had been
dominated by a mob if it supplied some form of corrective
process.
Justice Oliver Wendell Holmes, joined by Justice
Charles Evans Hughes, dissented, reasoning succinctly that
"Mob law does not become due process of law by securing the
assent of a terrified jury." The decision nonetheless
concerned the Moore et al defense team, because the state of
Arkansas had provided the men opportunities to appeal their
convictions in the state supreme court, which had concluded that
"it was not necessarily the case" that their trials
had been "an empty ceremony."
The
Court, whose composition had changed significantly since the
disposition of Frank v. Mangum, ruled in favor of the
Moore et
al defendants. Justice Holmes would author the opinion of the
Court in Moore et al v. Dempsey, making his dissent in the Frank
case the law of the land.
The Court took note of the fact that:
1) the community leaders of Phillips County had effectively
promised that they would secure the death of the defendants by
legal process if it would desist in its attempts to lynch them;
2) testimony against the defendants apparently had been obtained
by torture; and 3) "an adverse crowd (threatened) the most
dangerous consequences to anyone interfering with the desired
result."
The Court was particularly concerned about the
conduct of the proceedings themselves, including the exclusion
of blacks from the juries, the lack of pre-trial consultation
with counsel, their failure to request a change of venue,
subpoena witnesses, or place their clients on the stand, and the
disturbingly summary length of deliberations by the juries.
Justice Holmes declared: "If the case is that the whole
proceeding is a mask-that counsel, jury, and judge are swept to
the fatal end by an irresistible wave of public passion, and
that the state courts failed to correct the wrong, neither
perfection in the machinery for correction or the possibility
that the trial court and counsel saw no other way of avoiding an
immediate outbreak of the mob can prevent this Court from
securing to the petitioners their constitutional rights."
The state court’s disposition of the facts of a case, where
they touched upon the enforcement of a federal right, would no
longer be deemed sacrosanct. Even "perfection in the
machinery for correction," which satisfied the Frank
majority, would not suffice if, in the final analysis, the
violation of a federal constitutional right or liberty were
allowed to stand.
It was eventually agreed that the
Moore et al
defendants would plead guilty to charges of murder in the second
degree, with their sentences to be retroactively counted. On
November 11, 1925, their sentences were commuted by Governor T.
C. Mcrae, and they were released several months thereafter.
It
is difficult to overstate the importance of the Court’s ruling
in
Moore v. Dempsey, both as a matter of constitutional law and
as a pivotal point in the history of American civil liberties.
The case was one of the earliest indications that the Supreme
Court might emerge as the principal defender of civil liberties
in the nation.
Once the Court began to formally apply the
provisions of the Bill of Rights against the states, the
importance of the Moore precedent would become clear. The Court
had, in that case, pierced the veil that shielded the factual
circumstances of a trial, conducted by the state, from federal
judicial oversight. Henceforth, federal judges could, in
addition to examining the form of the proceedings, actually
replicate the work of the state courts of appeal by examining,
and if necessary, rendering new decisions with respect to the
facts.
Inferior
federal courts would be enlisted in order that the meaning of
the broad constitutional liberties the Court was incorporating
against the states could be precisely articulated and adapted to
a myriad of legal and factual circumstances. The federal writ of
habeas corpus would be an indispensable instrument by which the
"Due Process Revolution" would be accomplished.
The
supremacy and uniformity of federal law would have been far more
difficult to achieve were it not for the liberal habeas regime
inaugurated under
Moore v. Dempsey. It is fitting that the
atrocities at Elaine, prosecuted according to the conviction
that African Americans should not be equal in any sense of that
term, would provide the occasion for judicial action which, if
only to a limited degree, would grant all Americans greater
protection of their constitutional rights.
Source:
http://www.clt.astate.edu/sarahwf/elainrt/justicehb.html
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Salvage the Bones
A Novel by Jesmyn Ward
On one level, Salvage the Bones is a simple story about a poor black family that’s about to be trashed by one of the most deadly hurricanes in U.S. history. What makes the novel so powerful, though, is the way Ward winds private passions with that menace gathering force out in the Gulf of Mexico. Without a hint of pretension, in the simple lives of these poor people living among chickens and abandoned cars, she evokes the tenacious love and desperation of classical tragedy. The force that pushes back against Katrina’s inexorable winds is the voice of Ward’s narrator, a 14-year-old girl named Esch, the only daughter among four siblings. Precocious, passionate and sensitive, she speaks almost entirely in phrases soaked in her family’s raw land. Everything here is gritty, loamy and alive, as though the very soil were animated. Her brother’s “blood smells like wet hot earth after summer rain. . . . His scalp looks like fresh turned dirt.” Her father’s hands “are like gravel,” while her own hand “slides through his grip like a wet fish,” and a handsome boy’s “muscles jabbered like chickens.” Admittedly, Ward can push so hard on this simile-obsessed style that her paragraphs risk sounding like a compost heap, but this isn’t usually just metaphor for metaphor’s sake. She conveys something fundamental about Esch’s fluid state of mind: her figurative sense of the world in which all things correspond and connect. She and her brothers live in a ramshackle house steeped in grief since their mother died giving birth to her last child. . . . What remains, what’s salvaged, is something indomitable in these tough siblings, the strength of their love, the permanence of their devotion.— WashingtonPost
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The New Jim Crow
Mass Incarceration in the Age of
Colorblindness
By Michele Alexander
Contrary to the
rosy picture of race embodied in Barack
Obama's political success and Oprah
Winfrey's financial success, legal
scholar Alexander argues vigorously and
persuasively that [w]e have not ended
racial caste in America; we have merely
redesigned it. Jim Crow and legal racial
segregation has been replaced by mass
incarceration as a system of social
control (More African Americans are
under correctional control today... than
were enslaved in 1850). Alexander
reviews American racial history from the
colonies to the Clinton administration,
delineating its transformation into the
war on drugs. She offers an acute
analysis of the effect of this mass
incarceration upon former inmates who
will be discriminated against, legally,
for the rest of their lives, denied
employment, housing, education, and
public benefits. Most provocatively, she
reveals how both the move toward
colorblindness and affirmative action
may blur our vision of injustice: most
Americans know and don't know the truth
about mass incarceration—but her
carefully researched, deeply engaging,
and thoroughly readable book should
change that.—Publishers
Weekly |
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The White Masters of the
World
From
The World and Africa, 1965
By W. E. B. Du Bois
W. E. B. Du Bois’
Arraignment and Indictment of White Civilization
(Fletcher)
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Ancient African Nations
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