CONTEMPT of COURT MARK S. CURRIDEN Vinson & Elkins LLP 214.220.7879 [email protected] State Bar of Texas 27 ANNUAL LITIGA

CONTEMPT OF COURT

MARK S. CURRIDEN Vinson & Elkins LLP 214.220.7879 [email protected]

State Bar of Texas 27th ANNUAL LITIGATION UPDATE INSTITUTE January 20-21, 2011 San Antonio

CHAPTER 18

Lawyers Enter Keyword Search Entire Site  Go Home > Mark S. Curriden News, Publications, Events

Practices Mark S. Curriden Rankings

Offices Biography Careers Mark was educated and trained as a lawyer but never practiced law. Instead, Mark S. Curriden About V&E Mark chose a life of journalism, book writing and lecturing. The specialty

topics about which he writes and lectures include legal history, trends at the Director of Communications Supreme Court of the United States, the American jury system, and Vinson & Elkins LLP relationships between lawyers and journalists. He directs all of Vinson & Tel +1.214.220.7879 Elkins' external communications dealing with the news media and he Mobile +1.214.232.6783 conducts internal and external Continuing Legal Education programs on how to deal with the Fax +1.214.999.7879 news media. [email protected]

Mark received his J.D. from Woodrow Wilson Law School in Atlanta. After clerking for a federal judge, he joined the Atlanta Constitution in 1988 as their legal writer covering the Georgia Supreme Court and the 11th U.S. Circuit Court of Appeals. During his seven years at the AJC, Mark covered the trials of Manuel Noriega, Exxon Valdez spill, several death penalty trials, and witnessed two executions. Two of his articles led to wrongly convicted death row inmates being set free.

In 1996, Mark became the national legal writer for The Dallas Morning News. During his six years with the DMN, he covered major high stakes litigation involving the tobacco companies, HMOs, pharmaceutical companies, as well as more than 20 case before the Supreme Court of the United States. His articles about the Texas tobacco case led to a federal grand jury investigation that concluded with the indictment and conviction of the state's attorney general. In 2000, he authored a highly-acclaimed 16-part series on the role of the American jury in resolving disputes in our nation's history. As a result of his work on that project, Mark frequently speaks to lawyer and judicial organizations across the nation about the jury system. In April 2004, he was appointed to serve on the American Bar Association's Blue Ribbon Panel on the future of the American jury system.

Mark has also written regularly for the American Bar Association Journal, the Student Lawyer, Of Counsel, and other national legal and business publications.

In 2000, Farrar Straus & Giroux published his award- winning and national best-selling book, Contempt of Court: A Turn-of-the-Century Lynching That Launched 100 Years of Federalism. The book, which received overwhelmingly positive reviews from the New York Times, American Lawyer, Atlanta Constitution, and other major publications, delves into a case that, despite being buried and long-forgotten in legal history, played a significant role in the develop of the law in the United States. Contempt of Court focuses on the case of Ed Johnson, a young black man falsely accused of raping a white woman, railroaded through the criminal justice system in Chattanooga, Tennessee. After Johnson is convicted and sentenced to death, two African-American lawyers heroically appeal his conviction to the Supreme Court of the United States. They were the first black lawyers to take a case to the high court. The justices grant Johnson their first ever stay of an execution in a state criminal case and appear likely to reverse his conviction. The next day, an angry mob, aided by the Tennessee sheriff and his deputies, lynch Johnson on the county bridge in downtown Chattanooga. The Supreme Court orders an investigation, which leads to criminal contempt charges being filed in the Supreme Court against the sheriff, deputies and leaders of the lynch mob. Mark's presentation of this remarkable and historic case has been approved for one-hour of CLE ethics. He has lectured on the case to numerous federal and state judicial organizations, state and local bar associations, law firms and law schools.

Education and Professional Background

Tennessee Temple University, B.A. History, 1985

Woodrow Wilson Law School, J.D., 1988

Activities and Affiliations

Member: Torts Trials and Insurance Practice Section, American Bar Association; Standing Committee on Public Education, American Bar Association; TIPS' Merging Issues Committee; TIPS Publications Committee; Center for American and http://www.velaw.com/admin/staff.aspx?id=9960 1/10/2011 International Law; Society of Professional Journalists; Criminal Justice Journalists Association

Awards: Association of Trial Lawyers of America's Amicus Award, 2001; American Judicature Society's Toni House Award, 2001; State Bar of Texas's Gavel Award, 2000 -2001; American Board of Trial Advocates Journalist of the Year, 2000; American Bar Association Silver Gavel Award, 2000; Dallas Bar Association's Philbin Award, 1997- 2001; Tennessee Bar Association's Gavel Award, 1996; National Association of Criminal Defense Lawyer's Champion of Justice Award, 1996; Chicago Bar Association's Headliner Award, 1995; State Bar of Georgia's Gavel Award, 1991, 1993

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http://www.velaw.com/admin/staff.aspx?id=9960 1/10/2011 Contempt of Court Chapter 18

TABLE OF CONTENTS

CONTEMPT OF COURT: A LESSON IN LEGAL HISTORY ...... 1

CONTEMPT OF COURT & THE ABA MODEL RULES ...... 3

CONTEMPT OF COURT: THE TURN-OF-THE-CENTURY LYNCHING THAT LAUNCHED 100 YEARS OF FEDERALISM IN THE U.S. COURTS ...... 7

Contempt of Court Chapter 18

Lawyers Enter Keyword Search Entire Site  Go Home > Contempt of Court: A Lesson in Legal History News, Publications, Events

Practices Contempt of Court: A Lesson in Legal History Rankings

Offices Exactly a century ago, the case of a young black man from Chattanooga, Careers Tennessee, dramatically changed the state and federal court systems as Presented by About V&E we know them today. Indeed, it redefined the practice of law. The Mark Curriden, J.D., amazing story of Ed Johnson and his two lawyers was buried in dusty old V&E Director of Communications law books. But, thanks to Mark Curriden’s book, Contempt of Court: The and author of Contempt of Court: Turn-of-the-Century Lynching that Launched a Hundred Years of A Turn of the Century Lynching Federalism, and continuing legal education program, the events of 1906, That Launched 100 Years of 1907 and 1908 come alive. The CLE presentation is repeatedly referred Federalism. to by lawyers and judges as one of the best CLE ethics programs they have ever heard. The Wall Street Journal, in 2005, described Contempt

of Court as one of the five most important books ever on the American CLE Program Description criminal justice system.

CLE Credit The story begins in January 1906, when Ed Johnson was falsely accused of raping a white woman. The 19-year-old African-American, who had no prior criminal record and who worked two Upcoming Programs jobs, faced two lynching attempts as he awaited trial. The trial judge refused to allow his court- appointed lawyers to file motions to protect their client’s rights pre-trial. Only white men were Texas Bar Journal Article called to serve on the jury. One of the jurors tried to attack the defendant in the middle of the trial, Related Articles yelling out across the courtroom, “If I could get at him right now, I would tear his heart out.

Mark Curriden in the ABA Based solely on the word of a paid informant, the jury found Johnson guilty. The judge sentenced Journal him to death, and his own lawyers convinced Johnson, who could not read or write, to waive his right to appeal his conviction and accept the sentence. "I didn't do what they say I did, but I know Posthumous Petition to Dismiss I'm going to pay for another man's sin," Johnson told the judge in open court. Court Order Reversing Two days later, a pair of courageous African-American lawyers, Noah Parden and Stiles Conviction a Century Later Hutchins, stepped forward to challenge his conviction, filing the first ever federal habeas petition Presentation Reviews in a state criminal case. In a historic filing that is, to this very day, the roadmap followed by

federal habeas petitions, those lawyers argued that Johnson's Fourteenth Amendment rights Mark Curriden's Biography under the due process and equal protection clauses had been denied. They argued that their

client had been railroaded, that his lawyers had abandoned him and that he had not received a fair trial. To everyone's surprise, the lawyers convinced the U.S. Supreme Court to issue its first ever stay of an execution in a state criminal case. Unfortunately, it was not to be. Mere days Mark Curriden, J.D. before the justices were scheduled to hear oral arguments, a lynch mob, led by the Chattanooga Director of Communications sheriff and his deputies, snatched the defendant from his jail cell and took him out to the county Vinson & Elkins LLP Tel 214.220.7879 bridge. Prior to his hanging, the deputy confronted Johnson saying that he was going to die, so Mobile 214.232.6783 he may as well confess. Ed Johnson replied solely with this, "God bless you all. I am innocent." Fax 214.999.7879 The lynch mob, now more infuriated, hung Ed Johnson. After it was over, a deputy sheriff pinned [email protected] a note into Johnson's chest, which read: "To Justice Harlan and the Supreme Court, Here's your Negro now. Try to save him."

Fortunately for the sake of justice, the story doesn't end there. The Supreme Court ordered President Roosevelt to conduct an investigation, which uncovered evidence of a conspiracy between the sheriff, his deputies and members of the lynch mob to kill Ed Johnson. What followed was a historic case in which the Supreme Court justices ordered the arrest of the sheriff, his deputies and members of the lynch mob on charges of contempt of the Supreme Court of the United States – the only such case of its type in U.S. history.

Why is this case from 100 years ago so important?

Numerous reasons. It exemplifies why we became lawyers. The story shows in vivid detail why attorneys, as advocates for the poor and downtrodden, are best positioned to take the steps necessary to uphold the rule of law. Through the eyes and actions of the lawyers in this case, attorneys are able to see what it is like to represent a client who is the curse of society. It also shows how lawyers should use the law and the courts for the protection of individual rights even when the court itself is part of the problem. This case is a gut-check for lawyers about why they entered the legal profession to begin with. It also goes to the heart of the need for protection of the rule of law and the need for a strong independent judiciary whose decisions are not impacted

1 Contempt of Court Chapter 18 by political concerns.

The true impact of this CLE presentation is that Mark doesn't preach the ethics. Instead, the lawyers learn and see and experience the educational program through hearing the true story. The ethics and challenges and dedication and inspiration of Parden and Hutchins, as showcased within the story, serve as a tremendous lesson that every lawyer and judge should know. Those aren't marketing or promotional words, but comments from Georgia Supreme Court Chief Justice Leah Sears when she introduced Mark at a program a year ago.

Each year, Mark presents his CLE numerous times. In 2006, he presented more than 20 times to several different organizations including the American Bar Association’s Conference for the Minority Lawyer, the Georgia Appellate Court Judges Conference, the Federal Judicial Conference in San Antonio, Bar Associations, Law Schools, non-profit organizations and at V&E’s offices in Houston, Dallas and Washington D.C.

Very few CLE programs, especially those on ethics, inspire the lawyers to be better lawyers. This one does.

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Contempt of Court & the ABA Model Rules

[ CLE Ethics ]

On August 27, 1908, the American Bar Association Preamble and Scope: adopted the original Canons of Ethics. Two days [2] As a representative of clients, a lawyer later, at an oral argument in U.S. v. Shipp, performs various functions. As advisor, a Supreme Court Justice Oliver Wendell Holmes lawyer provides a client with an informed publicly commented that it was a shame that the understanding of the client’s legal rights ABA’s actions came too late to help Ed Johnson. and obligations and explains their practical Nine decades later, Delaware Supreme Court implications. As advocate, a lawyer zealously Chief Justice Norman Veasey, who chaired the asserts the client’s position under the rules of ABA’s Ethics 2000 Commission, stated that the adversary system. Noah Parden embodied a lawyer’s responsibility to his/her client. Across the country, judges – state (Pages 70-71) – The first lawyer appointed and federal, trial and appellate – have commented by Judge McReynolds to represent Johnson, that there is no better example of how lawyers Robert T. Cameron, tells the newspaper that should and should not behave than the century he didn’t want to represent Ed Johnson, that he old case of Ed Johnson. Jurist, such as the was being forced to represent Johnson by the Hon. Roger Gregory, Patrick Higginbotham, and judge, that he hoped his clients wouldn’t hold his Judith Kaye, have stated that Parden and his involvement in the case against him (he made this partner, Styles Hutchins, and how they handled statement after one of his best paying clients fired this case, should be the role model for all lawyers. him), and that he hadn’t made up his mind yet on the guilt of his client. These judges say the Johnson/Shipp case is a clear reminder of why we became lawyers (Pages 71-72) – In a letter to the newspaper, and how lawyers, in the words of the Preamble Johnson’s second lawyer, W.G.M. Thomas, of the ABA’s Model Rules of Professional writes that he didn’t want to represent Johnson Conduct, have a “special responsibility for the either, that he is doing so to obey the orders of quality of justice.” A good example occurs early the judge, that he is working to ascertain the guilt in the case (pages 60-61) when the trial judge, or innocence of Johnson, and that if Johnson is Samuel McReynolds, chooses and appoints two guilty, then he should die. lawyers because he knows they do not have the skills to win the case. The judge gets the approval (Page 63) – Attorneys Cameron and Thomas of the district attorney, Matt Whitaker, before do not object when the judge tells them that the making the appointment official. case will go to trial in seven days. Nor did they object when the judge told them that they wouldn’t have to do much work because Johnson’s guilt was certain.

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[ CLE Ethics ]

(Pages 122-127, 162-163) – Defense attorney (Pages 5-19, 150-187) – Parden was very Thomas goes behind his co-counsel’s back to the mindful of the deficiencies in the administration judge and prosecutor, seeking the appointment of of justice and the need for protection of the rule three additional lawyers to advise the defense on of law, as required above. It was this interest whether to provide an appeal. Thomas and these and commitment that led Parden and Hutchins three new lawyers advise Johnson to waive his to file this extraordinary, historic federal habeas rights to appeal and accept the death sentence. petition at a time when such petitions were considered frivolous, and raising constitutional [6] As a public citizen, a lawyer should seek objections on issues that would resonate for the improvement of the law, access to the legal next century. This entire story is the struggle over system, the administration of justice and the this paragraph. quality of service rendered by the legal profession. As a member of a learned [7] Many of a lawyer’s professional profession, a lawyer should cultivate responsibilities are prescribed in the knowledge of the law beyond its use for Rules of Professional Conduct, as well as clients, employ that knowledge in reform of substantive and procedural law. However, a the law and work to strengthen legal education. lawyer is also guided by personal conscience In addition, a lawyer should further the public’s and the approbation of professional peers. understanding of and confidence in the rule A lawyer should strive to attain the highest of law and the justice system because legal level of skill, to improve the law and the legal institutions in a constitutional democracy profession and to exemplify the legal depend on popular participation and support profession’s ideals of public service. to maintain their authority. A lawyer should be mindful of deficiencies in the administration [9] In the nature of law practice, however, of justice and of the fact that the poor, and conflicting responsibilities are encountered. sometimes persons who are not poor, cannot Virtually all difficult ethical problems arise from afford adequate legal assistance. Therefore, all conflict between a lawyer’s responsibilities to lawyers should devote professional time and clients, to the legal system and to the lawyer’s resources and use civic influence to ensure own interest in remaining an ethical person equal access to our system of justice for all while earning a satisfactory living. The Rules of those who because of economic or social Professional Conduct often prescribe terms for barriers cannot afford or secure adequate resolving such conflicts. Within the framework legal counsel. A lawyer should aid the legal of these Rules, however, many difficult issues profession in pursuing these objectives of professional discretion can arise. Such and should help the bar regulate itself in issues must be resolved through the exercise the public interest. of sensitive professional and moral judgment guided by the basic principles underlying the (Pages 5-19, 173, 220) – Parden wrote about Rules. These principles include the lawyer’s the case at length in Chattanooga’s black-owned obligation zealously to protect and pursue a newspaper, The Blade, in an effort to better client’s legitimate interests, within the bounds educate the public about the court system. He also of the law, while maintaining a professional, spoke at churches and community functions. courteous and civil attitude toward all persons We know as much as we do about this case involved in the legal system. because of Parden’s extensive writings.

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[ CLE Ethics ]

(Pages 5-19, 136-187, 219, 234, 243-245) – (Pages 60-61) – The two original lawyers Parden and Hutchins were clearly led by their appointed by Judge McReynolds – Robert personal conscience, morals, and beliefs, as Cameron and W.M. Thomas – allowed themselves well as a desire to improve the law and the legal to be used by the judge. Cameron had tried only profession. These lawyers knew accepting this a handful of cases in his life, and those were case would destroy their practice, their financial no-fault divorces. He had never handled a livelihoods, and even threaten the lives of them criminal case and he certainly wasn’t qualified and their families. This was the most politically for this one. Thomas openly admitted he didn’t try and racially divisive case in decades. The homes criminal matters. and offices of these lawyers were destroyed. They had to flee Chattanooga for their lives. (Pages 70-71) – The first lawyer appointed by And their client was lynched. Through it all, Judge McReynolds to represent Johnson, these lawyers demonstrated their professionalism Robert T. Cameron, tells the newspaper that and commitment to the protection of the rule of he didn’t want to represent Ed Johnson, that he law and the defense of their client’s rights. was being forced to represent Johnson by the Throughout all of this, Parden and Hutchins judge, that he hoped his clients wouldn’t hold his developed an extraordinary legal strategy (filing involvement in the case against him (he made this the federal habeas petition, convincing the U.S. statement after one of his best paying clients fired District Court to let them question witnesses under him), and that he hadn’t made up his mind yet on oath, and then their direct appeal to the Supreme the guilt of his client. Court of the United States) that forever changed the criminal justice system in this country. (Pages 71-72) – In a letter to the newspaper, Johnson’s second lawyer, W.G.M. Thomas, As Paragraph 16 states, “The Rules do not, writes that he didn’t want to represent Johnson however, exhaust the moral and ethical either, that he is doing so to obey the orders of considerations that should inform a lawyer, the judge, that he is working to ascertain the guilt for no worthwhile human activity can be or innocence of Johnson, and that if Johnson is completely defined by legal rules. The Rules guilty, then he should die. simply provide a framework for the ethical practice of law.” (Page 63) – Attorneys Cameron and Thomas do not object when the judge tells them that the (Pages 159-160) – District Attorney Whitaker case will go to trial in seven days. Nor did they personally attacked Parden calling him a liar, object when the judge told them that they wouldn’t and stating that Parden’s claims were “made of have to do much work because Johnson’s guilt a desire to misrepresent the judiciary and made was certain. with a malignant purpose and a wicked heart.” (Pages 122-127, 162-163) – Defense attorney Client-Lawyer Relationship Thomas convinces the judge to appoint three Rule 1.1 Competence - A lawyer shall provide additional lawyers to help him convince Johnson competent representation to a client. Competent that he should waive his right to appeal. Thomas representation requires the legal knowledge, skill, claims that he has done his duty as a lawyer in thoroughness and preparation reasonably representing Johnson at the trial, but that this necessary for the representation. obligation or responsibility does not continue. Thomas admits that the lynch mob influenced his decision-making.

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[ CLE Ethics ]

(Pages 3-19, 150-187) – By contrast, Parden Rule 2.1 Advisor – In representing a client, and Hutchins put everything at stake for their a lawyer shall exercise independent client and for the protection of the rule of law. professional judgment and render candid Not only did the lynch mob not influence Parden advice. In rendering advice, a lawyer may refer and Hutchins, it made them more determined. not only to law but to other considerations They faced significant racial hatred, and even such as moral, economic, social and political some in the black community felt they should back factors, that may be relevant to the client’s away. Instead, these lawyers actually intensified situation. their efforts. The thoughtfulness and preparation Parden and Hutchins put in this case despite the See response to Rule 1.1. extraordinary circumstances, was truly historic and a model for all lawyers. Rule 3.1 Meritorious Claims and Contentions – A lawyer shall not bring or defend a Rule 1.7 Conflict of Interest: General Rule – proceeding, or assert or controvert an issue The commentary (p. 1) on this rule is particularly therein, unless there is a basis in law and interesting because it states, “Loyalty and fact for doing so that is not frivolous, independent judgment are essential elements in which includes a good faith argument for the lawyer’s relationship to a client.” As noted an extension, modification or reversal of above, Thomas and Cameron had no loyalty existing law. A lawyer for the defendant in a to their client and were far from independent, criminal proceeding, or the respondent in a as their recommendations to their client and proceeding that could result in incarceration, their actions in their representation of their may nevertheless so defend the proceeding client repeatedly demonstrated that they were as to require that every element of the case influenced by the fear of the mob and by their be established. fear of personal or financial harm that they might suffer. (Paragraph two of the commentary (Pages 3-19, 150-187, 250-270) – This is specifically states that “A lawyer may not interesting on two fronts. First, under the existing allow business or personal interests to affect law in 1906, Parden and Hutchins were clearly representation of a client.”) By contrast, Parden reaching in their federal habeas petition. And the and Johnson nearly sacrificed their careers and Attorney General of the United States was clearly their lives to defend their client. reaching when he brought the contempt case against Shipp and the others. But both were very Rule 1.9 Conflict of Interest: Former Client – A legitimate. Most argued at the time that both lawyer who has formerly represented a client in actions were frivolous and not in good faith. a matter shall not thereafter represent another These were the very reasons that Thomas person in the same or a substantially related argued post jury verdict that there should be matter in which that person’s interests are no appeal of the verdict and that his client materially adverse to the interests of the former should be hanged. client unless the former client gives informed consent, confirmed in writing. Rule 3.6 Trial Publicity (Page 79) – District Attorney Whitaker makes (Page 260) – Lewis Shepherd, who did zealously highly racist and prejudicial statements to the advocate for Johnson during the trial, suddenly newspapers that were published the morning shows up representing one of the leaders of the of the Johnson trial designed to heavily influence lynch mob in the contempt trial before the U.S. the jury pool. Supreme Court.

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