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Bigotry, Jury Failures, and the Supreme Court's Feeble Response

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Bigotry, Jury Failures, and the Supreme Court's Feeble Response Buffalo Law Review Volume 55 Number 3 Article 9 12-1-2007 Bigotry, Jury Failures, and the Supreme Court's Feeble Response George C. Thomas III Rutgers University, Newark Follow this and additional works at: https://digitalcommons.law.buffalo.edu/buffalolawreview Part of the Civil Rights and Discrimination Commons Recommended Citation George C. Thomas III, Bigotry, Jury Failures, and the Supreme Court's Feeble Response, 55 Buff. L. Rev. 947 (2007). Available at: https://digitalcommons.law.buffalo.edu/buffalolawreview/vol55/iss3/9 This Essay is brought to you for free and open access by the Law Journals at Digital Commons @ University at Buffalo School of Law. It has been accepted for inclusion in Buffalo Law Review by an authorized editor of Digital Commons @ University at Buffalo School of Law. For more information, please contact [email protected]. Bigotry, Jury Failures, and the Supreme Court's Feeble Response GEORGE C. THOMAS IIIt INTRODUCTION Early in the twentieth century, the United States Supreme Court faced five examples of fundamental failures in the criminal jury process.' In one case, the Court did nothing. In four cases, the Court attempted to intervene to save defendants who were probably innocent. In three of those cases, the Court provided relief, though ultimately defendants in each case served years in prison despite the Court's intervention. In one case, a lynch mob murdered the defendant after the Court had begun its intervention and before it could hear the case. When we examine these cases, four questions naturally arise. First, how could jurors convict on such weak evidence in capital cases? Were the jurors evil or corrupt, or was a more complex phenomenon at work? Second, why didn't the state courts provide remedies for these probably-innocent defendants? Third, why didn't the Supreme Court do more? Its intervention in one case was a weak response that did nothing to protect defendants from jury bigotry in future cases. In a second case, the intervention provided a partial remedy to the worst kind of abuses, but really only sent a message to the authorities to be more discreet when forcing black suspects to confess. The fourth question is the most important in a DNA era: Why has the Court still done t Distinguished Professor of Law and Judge Alexander P. Waugh Distinguished Scholar, Rutgers University, Newark. 1. Michael Klarman has written eloquently about four of these cases. Michael J. Klarman, The Racial Origins of Modern Criminal Procedure, 99 MICH. L. REV. 48 (2000). His interest was in seeing the connections between these cases and the criminal procedure doctrine that the Court would develop. My interest is asking the difficult question of why the Court has not done more to protect against jury failures. 947 948 BUFFALO LAW REVIEW [Vol. 55 almost nothing to remedy failures in criminal jury decision- making? We know that hundreds-if not thousands-of failures occur each year, and still the Court sits on its hands. This Essay will conclude that the time has finally come for the Court to face the problem of jury failures. The various procedural rights, such as the right to counsel, that the Court has provided criminal defendants do little to address the fundamental problem that juries make mistakes. What is needed, and what this Essay will recommend, is a mechanism that will screen out convictions where the risk of innocence is too great to allow the conviction to stand. I. ED JOHNSON In 1906, Nevada Taylor was twenty-one years old, blonde, and beautiful. 2 She lived with her father, brothers, and sister in a cottage in the Chattanooga, Tennessee Forest Hills Cemetery, where her father was the groundskeeper. 3 Towering over the cemetery was Lookout Mountain. At 6:00 P.M. on January 23, she was on her way home from work as a bookkeeper. 4 It was barely above freezing, and she took a shortcut to the cemetery. A man came up from behind her and "hurled her over the fence into the marble yard" of the cemetery.5 He put a leather strap around her neck and raped her on the cold ground.6 She later said that she "believed" he was black. When the newspapers reported the "brutal crime" committed by a "[n]egro fiend," 7 the city erupted in racist fury. Two days later, with two black suspects under arrest, a mob of perhaps 1,500 men gathered ominously around the county jail, "[f]ierce in its determination to wreak 2. MARK CURRIDEN & LEROY PHILLIPS, JR., CONTEMPT OF COURT: THE TURN- OF-THE-CENTURY LYNCHING THAT LAUNCHED 100 YEARS OF FEDERALISM 24 (1999). 3. Id. at 25. 4. Id.; see also Awful Crime at St. Elmo, CHATTANOOGA DAILY TIMES, Jan. 24, 1906, at 8, available at http://www.law.umkc.edu/faculty/projects/ftrials/shipp/ newselmo.html. 5. Brutal Crime of Negro Fiend, CHATTANOOGA NEWS, Jan. 24, 1906, at 5. 6. Id. 7. Id. 2007] JURY FAIL URES 949 vengeance upon some negro, and not caring to any great extent what one . s"8The two black suspects were saved from lynching by the quick thinking of a criminal court judge who had earlier that day ordered the sheriff to take the prisoners to Nashville. Before that truth could be confirmed by a small group of the lynch mob, the county jail was badly damaged by bullets and hammers. 9 Lacking any concrete evidence against either suspect, the sheriff took Miss Taylor to Nashville to visit the jail where the suspects were being held. There, for about fifteen minutes, she observed the men, heard their voices, and saw them walk around the room.10 When the sheriff asked her if either man was the guilty party, Taylor said that Ed Johnson was like the attacker as she remembered him- that "it is [her] best knowledge and belief' that he was the man who had raped her.1' But, as the headline in the next day's ChattanoogaTimes newspaper conceded, this was not a completely positive identification.12 The details of the trial of Ed Johnson will appear in my forthcoming book. 13 For my purposes here, it suffices to note that the only credible evidence against Johnson was the testimony of Nevada Taylor, and she refused to swear that he was the man who raped her. 14 Instead, she would only say, as she had said in Nashville, that "[t]o the best of my knowledge and belief, he is the same man."'15 The same judge who had the suspects spirited out of 8. Law and Order Victorious Over Overwhelming Odds, CHATTANOOGA DAILY TIMES, Jan. 26, 1906, at 1, available at http://www.law.umkc.edu/faculty/ projects/ftrials/shipp/newslawandorder.html. 9. CURRIDEN & PHILLIPS, supra note 2, at 50-51. 10. Wheels of Justice Turn Fast in St. Elmo Assault Case, CHATTANOOGA SUNDAY TIMES, Jan. 28, 1906, at 10. 11. Id. 12. Id. (utilizing, as a subheading to the article, the phrase "Almost Positive Identification"). 13. GEORGE C. THOMAS III, THE SUPREME COURT ON TRIAL: HOW THE AMERICAN JUSTICE SYSTEM SACRIFICES INNOCENT DEFENDANTS (forthcoming 2008). 14. See Ed Johnson Jury Stands 8 to 4 for Conviction: Unable to Reach Agreement After Several Hours Spent in Deliberation, CHATTANOOGA DAILY TIMES, Feb. 9, 1906, at 5, available at http://www.law.umkc.edu/faculty/ projects/ftrials/shipp/news8to4.html [hereinafter Ed Johnson Jury]. 15. Id. 950 BUFFALO LAW REVIEW [Vol. 55 town appointed three capable, white defense lawyers, who staged a vigorous defense that included seventeen witnesses. These witnesses detailed every minute of how Johnson spent the afternoon when Taylor was raped. 16 If the defense witnesses were telling the truth, Johnson could not have been the rapist. At the conclusion of the trial, one of the jurors exclaimed: "I can't stand it any longer. I can't stand it."'17 After the jury was excused, the judge agreed to recall Taylor to the stand for another identification of the defendant. The same juror who had exclaimed earlier now leaned forward in the jury box "with tears streaming down his face .. and in a voice trembling with emotion, he cried: 'In God's name, Miss Taylor, tell us positively-is that the guilty negro? Can you say it-can you swear it?' ' 18 She would say only, "before God, I believe this is the guilty negro."'19 As she left the witness stand, "[e]vidences of weeping were heard on every side. '20 The initial jury deliberations produced a vote of 8-4 for conviction. At midnight, after four hours of deliberation, the judge permitted the jurors to go home for the evening. 2 1 The next morning the vote was 12-0 for conviction. 22 The headlines in the Chattanooga News for February 9, 1906 said all that needs to be said about the atmosphere in which Ed Johnson was tried and convicted: "The Jury Finds Ed Johnson Guilty; He Will Hang for His Fiendish Crime: Given the Full Benefit of Law, a Human Brute is Convicted. Announcement Calmly Received in Court Room." 23 Black lawyers represented Johnson vigorously on 16. See Law Taking its Course in the Case of Ed Johnson, CHATTANOOGA DAILY TIMES, Feb. 7, 1906, at 5. 17. Ed Johnson Jury, supra note 14. 18. Id. 19. Id. 20. Id. 21. Id. 22. Ed Johnson Sentenced to Die on March 13, CHATTANOOGA DAILY TIMES, Feb. 10, 1906, at 5, available at http://www.law.umkc.edu/faculty/projects/ ftrials/shipp/newsejsenteneced.html. 23. The Jury Finds Ed Johnson Guilty; He Will Hang for His Fiendish Crime, CHATTANOOGA NEWS, Feb.
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