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On the Lap of Gods
By Robert Whitaker

nantucket flagBURNING THEMES
By Robert Whitaker
Crown, 324 pages

Review by Steven Sarshik

In 1921, a black Arkansas lawyer named Scipio Africanus Jones filed an appeal with the United States Supreme Court on behalf of six black men wrongfully convicted of murder.  The defendants had been denied any opportunity for a fair trial in the racially-charged atmosphere which existed in small-town Helena, Arkansas.  They had been “represented” by two white attorneys who did not even meet with them prior to trial to prepare a defense.  The lawyers did not call any witnesses on behalf of the defendants and did not make closing arguments.  The trial took place in only eighty-four minutes.  The jury, which included a man who had tried to hunt down the defendants, and a police deputy who had helped torture and whip the defendants prior to trial, returned with a verdict of guilty after only eight minutes.  The story of how attorney Scipio Africanus Jones was able to convince the Supreme Court to order a hearing for the defendants, and spare them from electrocution, in a precedent shattering decision, Moore v. Dempsey, is told in this extraordinary book.

Author Robert Whitaker paints a very detailed picture of the conditions which existed in the Mississippi delta prior to this case.  Black sharecroppers who lived in the town of Hoop Spur, Arkansas, in the Mississippi delta, were subjected to the worst form of economic serfdom.  The workers and their families lived in dilapidated cabins, so cold in the winter that they had to line the inside with newspapers to try and keep out some of the cold.  From August to November, they worked in the fields putting the raw cotton in bags strapped over their shoulders.  They were forced to buy food and supplies on credit at plantation commissaries or local stores where they were charged exorbitant amounts, twenty-five to one hundred percent more than whites had to pay.  When it came time to settle-up at the end of the season, the landowner would deduct these expenses from the worker’s share of the cotton crop.  Often, the landowner would provide no accounting, but merely scribble a bottom-line figure on a piece of paper.  The sharecroppers had to accept the word of the landowner, and over time, especially when the price of cotton increased on the market, the sharecroppers believed they were not getting a fair deal.

In 1919, some of the black sharecroppers in Hoop Spur decided to hold a meeting to explore the possibility of joining a union.  White planters learned of their plans and decided to break up the meeting.  A shooting spree broke out and a sheriff was killed. Word quickly spread throughout the region that the sheriff had been “ambushed,” and posses were formed to track down those supposedly responsible.  In an atmosphere of crackling tension, bands of white marauders swept through the fields shooting blacks.  Federal troops were called in, but instead of trying to provide protection for the sharecroppers and their families, they “were anxious to get into the battle with the blacks.”  Although there was no definitive count of the number killed, it was believed that hundreds of blacks were shot by the posse members and by troops.

Blame for these clashes was not placed on the lawless vigilantes, but on the blacks who had tried to organize the union meeting.  Twelve suspects were jailed and held at that Phillips County Courthouse, where a white committee comprised of the town’s leading businessmen conducted an investigation to determine who should be prosecuted.  The “investigation” consisted of beatings and whippings while the prisoners were held down, spread-eagled on the concrete.  “As the whipping went on, one of the deputy sheriffs would bend down near the prisoner’s head and stuff a ‘strangling drug’ – most likely a cloth dipped in formaldehyde – into his nose, as this would cause him to think he was being suffocated.”

This brutal behavior took place in an era when the federal authorities and the federal courts were essentially indifferent to the repression of blacks in the South.  The Fourteenth Amendment, which had been added to the US Constitution in the period after the Civil War, was supposed to assure that no State would “deprive any person of life, liberty, or property, without due process of law” or “deny to any person within its jurisdiction the equal protection of the laws."

However, as Whitaker points out, the Supreme Court beginning in the 1870’s issued a series of decisions which took the force out of this Amendment.  In the Slaughterhouse cases, a slim 5-4 majority held that the protection of nearly all civil rights had to remain with the states.  The court stated that to “transfer the security and protection [of these rights] from the States to the Federal government’ would “radically change the whole theory of the relations of the State and Federal governments to each other and of both those governments to the people.”  As Whitaker notes, if only one Justice from the majority had voted differently, the next hundred years of American history might have been different.  But the Slaughterhouse cases were now precedent, and in the next twenty years the Supreme Court “tore down the entire edifice of Reconstruction law, brick by brick.”  In United States v. Cruikshank, the Court held that the federal government did not have legal authority to prosecute the leaders of a white mob in Louisiana that had murdered more than fifty black men.  In Reese v. United States, the Court ruled that although the states could not exclude voters on account of race, they could set up standards for voters.  As Whitaker explains, this “opened the door to the use of poll taxes and literacy tests to disenfranchise blacks.”  Then in United States v. Harris, the Court held that the federal government could not prosecute white vigilantes who had burst into a Tennessee jail, seized four black men awaiting trial, and beat them.  By this decision, Whitaker notes, the Court had “given its blessings to lynch mobs who would substitute the hangman’s noose for a jury trial.”

On top of everything else, there were a series of decisions which held that the guarantees in the Bill of Rights did not apply to proceedings in state court.  In 1908, in Twining v. New Jersey, the Court specifically stated that the “Fourteenth Amendment did not forbid the States to abridge the personal rights enumerated in the first eight Amendments.”

So this was the context in which attorney Jones had to convince the Supreme Court to overturn the convictions of the six black defendants.  Jones, who had been born as a slave, was considered a skillful advocate in Little Rock, but as the custom of the times dictated, whenever he went to court he had to be accompanied by a white attorney.  By 1919, he had argued before the Arkansas Supreme Court seventeen times.  After conviction of the six defendants, he appealed the case to Arkansas’ highest court, but it rejected the appeal, finding that the defendants had received a “fair and impartial trial.”  His habeas corpus petition to federal court was also rejected.  The judge noted the he was disturbed by the set of facts before him, but that he was forced to rely on the determination by the State Supreme Court that the proceedings had been fair.

The appeal to the United States Supreme Court looked far from promising.  There were only two Justices who seemed as if they might possibly be receptive to the arguments made by Jones.  One Louis Brandeis, had gained a reputation as a lawyer willing to work on behalf of labor, and against railroad interests.  The other, Oliver Wendell Holmes, Jr., was viewed by some as a “noisy dissenter.”  When Holmes was working on an interesting case he liked to tell friends that he was working on “burning themes.”  The Chief Justice of the Court, William Taft, certainly seemed like an unlikely vote.  Taft was interested primarily in the property rights of the wealthy and was an avid proponent of the laissez-faire judicial philosophy.  He had told Yale law students in 1905 that the Fifth Amendment right not to incriminate oneself was of “doubtful utility.”

When this important case was submitted to the Supreme Court, an NAACP official wrote that it would now “lie on the laps of the Gods.”

The guarantee of a fair trial is at the cornerstone of our legal system.  In focusing on the events which occurred in Helena, Arkansas, Robert Whitaker has done a miraculous job in showing us what a society looks like when the guarantee is not enforced.  Whitaker, through his superb research, has brought to light that significant moment in American history when the Supreme Court first ruled that the right to a fair trial had to be applied to state court proceedings.  This is an original and an important work.