Ozie Powell, Willie
Roberson, Andy Wright, and Olen Montgomery v. Alabama; Haywood
Patterson v. Same; Charley Weems and Clarence Norris v. Same
SUPREME COURT OF THE
UNITED STATES
October 10, 1932, Argued November 7, 1932, Decided
JUDGES: Hughes, Van Devanter, McReynolds, Brandeis,
Sutherland, Butler, Stone, Roberts, Cardozo
OPINION: MR. JUSTICE SUTHERLAND delivered the
opinion of the Court.
These cases were argued together and submitted for
decision as one case.
The petitioners, hereinafter referred to as
defendants, are negroes charged with the crime of rape, committed upon the
persons of two white girls. The crime is said to have been committed on March
25, 1931. The indictment was returned in a state court of first instance on March
31, and the record recites that on the same day the defendants were arraigned
and entered pleas of not guilty. There is a further recital to the effect that
upon the arraignment they were represented by counsel. But no counsel had been
employed, and aside from a statement made by the trial judge several days later
during a colloquy immediately preceding the trial, the record does not disclose
when, or under what circumstances, an appointment of counsel was made, or who
was appointed. During the colloquy referred to, the trial judge, in response to
a question, said that he had appointed all the members of the bar for the
purpose of arraigning the defendants and then of course anticipated that the
members of the bar would continue to help the defendants if no counsel
appeared. Upon the argument here both sides accepted that as a correct
statement of the facts concerning the matter.
There was a severance upon the request of the
state, and the defendants were tried in three several groups, as indicated above.
As each of the three cases was called for trial, each defendant was arraigned,
and, having the indictment read to him, entered a plea of not guilty. Whether
the original arraignment and pleas were regarded as ineffective is not shown.
Each of the three trials was completed within a single day. Under the Alabama
statute the punishment for rape is to be fixed by the jury, and in its
discretion may be from ten years imprisonment to death. The juries found
defendants guilty and imposed the death penalty upon all. The trial court
overruled motions for new trials and sentenced the defendants in accordance
with the verdicts. The judgments were affirmed by the state supreme court.
Chief Justice Anderson thought the defendants had not been accorded a fair
trial and strongly dissented . . .
In this court the judgments are assailed upon the
grounds that the defendants, and each of them, were denied due process of law
and the equal protection of the laws, in contravention of the Fourteenth
Amendment, specifically as follows: (1) they were not given a fair, impartial
and deliberate trial; (2) they were denied the right of counsel, with the
accustomed incidents of consultation and opportunity of preparation for
trial; and (3) they were tried before juries from which qualified members of
their own race were systematically excluded. These questions were properly
raised and saved in the courts below.
The only one of the assignments which we shall
consider is the second, in respect of the denial of counsel; and it becomes
unnecessary to discuss the facts of the case or the circumstances surrounding
the prosecution except in so far as they reflect light upon that question.
The record shows that on the day when the offense
is said to have been committed, these defendants, together with a number of
other negroes, were upon a freight train on its way through Alabama. On the
same train were seven white boys and the two white girls. A fight took place
between the negroes and the white boys, in the course of which the white boys,
with the exception of one named Gilley, were thrown off the train. A message
was sent ahead, reporting the fight and asking that every negro be gotten off
the train. The participants in the fight, and the two girls, were in an open
gondola car. The two girls testified that each of them was assaulted by six
different negroes in turn, and they identified the seven defendants as having
been among the number. None of the white boys was called to testify, with the
exception of Gilley, who was called in rebuttal.
Before the train reached Scottsboro, Alabama, a
sheriff ’s posse seized the defendants and two other negroes. Both girls and
the negroes then were taken to Scottsboro, the county seat. Word of their
coming and of the alleged assault had preceded them, and they were met at
Scottsboro by a large crowd. It does not sufficiently appear that the
defendants were seriously threatened with, or that they were actually in danger
of, mob violence; but it does appear that the attitude of the community was one
of great hostility. The sheriff thought it necessary to call for the militia to
assist in safeguarding the prisoners. Chief Justice Anderson pointed out in his
opinion that every step taken from the arrest and arraignment to the sentence
was accompanied by the military. Soldiers took the defendants to Gadsden for
safekeeping, brought them back to Scottsboro for arraignment, returned them to
Gadsden for safekeeping while awaiting trial, escorted them to Scottsboro for
trial a few days later, and guarded the court house and grounds at every stage
of the proceedings. It is perfectly apparent that the proceedings, from
beginning to end, took place in an atmosphere of tense, hostile and excited
public sentiment. During the entire time, the defendants were closely confined
or were under military guard. The record does not disclose their ages, except
that one of them was nineteen; but the record clearly indicates that most, if
not all, of them were youthful, and they are constantly referred to as “the
boys.” They were ignorant and illiterate. All of them were residents of other
states, where alone members of their families or friends resided.
However guilty defendants, upon due inquiry, might
prove to have been, they were, until convicted, presumed to be innocent. It was
the duty of the court having their cases in charge to see that they were denied
no necessary incident of a fair trial. With any error of the state court
involving alleged contravention of the state statutes or constitution we, of
course, have nothing to do. The sole inquiry which we are permitted to make is
whether the federal Constitution was contravened and as to that, we confine
ourselves, as already suggested, to the inquiry whether the defendants were in
substance denied the right of counsel, and if so, whether such denial infringes
the due process clause of the Fourteenth Amendment.
First. The record shows that immediately upon the
return of the indictment defendants were arraigned and pleaded not guilty.
Apparently they were not asked whether they had, or were able to employ,
counsel, or wished to have counsel appointed; or whether they had friends or
relatives who might assist in that regard if communicated with. That it would
not have been an idle ceremony to have given the defendants reasonable opportunity
to communicate with their families and endeavor to obtain counsel is
demonstrated by the fact that, very soon after conviction, able counsel
appeared in their behalf. This was pointed out by Chief Justice Anderson in the
course of his dissenting opinion. “They were nonresidents,”
he said, “and had little time or opportunity to get in touch with their
families and friends who were scattered throughout two other states, and time
has demonstrated that they could or would have been represented by able counsel
had a better opportunity been given by a reasonable delay in the trial of the
cases, judging from the number and activity of counsel that appeared
immediately or shortly after their conviction.”
It is hardly necessary to say that, the right to counsel
being conceded, a defendant should be afforded a fair opportunity to secure
counsel of his own choice. Not only was that not done here, but such
designation of counsel as was attempted was either so indefinite or so close
upon the trial as to amount to a denial of effective and substantial aid in
that regard. This will be amply demonstrated by a brief review of the record .
. .
The United States by statute and every state in the
Union by express provision of law, or by the determination of its courts, make
it the duty of the trial judge, where the accused is unable to employ counsel,
to appoint counsel for him. In most states the rule applies broadly to all
criminal prosecutions, in others it is limited to the more serious crimes, and
in a very limited number, to capital cases. A rule adopted with such unanimous
accord reflects, if it does not establish, the inherent right to have counsel
appointed, at least in cases like the present, and lends convincing support to
the conclusion we have reached as to the fundamental nature of that right.
The judgments must be reversed and the causes
remanded for further proceedings not inconsistent with this opinion.
Judgments reversed.
Norris v. Alabama
Supreme Court of the United States
February 15, 18, 1935, Argued April 1, 1935,
Decided
CERTIORARI TO THE SUPREME COURT OF ALABAMA.
COUNSEL: Mr. Samuel S. Leibowitz for petitioner.
Mr. Thomas E. Knight, Jr., Attorney General of
Alabama, with whom Mr. Thomas Seay Lawson, Assistant Attorney General, was on
the brief, for respondent.
JUDGES: Hughes, Van Devanter, Brandeis, Sutherland,
Butler, Stone, Roberts, Cardozo; McReynolds did not hear the argument and took
no part in the consideration and decision of this case.
OPINION BY: HUGHES
OPINION: MR. CHIEF JUSTICE HUGHES delivered the
opinion of the Court.
Petitioner, Clarence Norris, is one of nine negro
boys who were indicted in March, 1931, in Jackson County, Alabama, for the
crime of rape. On being brought to trial in that county, eight were convicted.
The Supreme Court of Alabama reversed the conviction of one of these and
affirmed that of seven, including Norris. This Court reversed the judgments of
conviction upon the ground that the defendants had been denied due process of
law in that the trial court had failed in the light of the circumstances
disclosed, and of the inability of the defendants at that time to obtain
counsel, to make an effective appointment of counsel to aid them in preparing
and presenting their defense.
Powell v. Alabama, 287 U.S. 45.
After the remand, a motion for change of venue was
granted and the cases were transferred to Morgan County. Norris was brought to
trial in November, 1933. At the outset, a motion was made on his behalf to
quash the indictment upon the ground of the exclusion of negroes from juries in
Jackson County where the indictment was found. A motion was also made to quash
the trial venue in Morgan County upon the ground of the exclusion of negroes
from juries in that county. In relation to each county, the charge was of long
continued, systematic and arbitrary exclusion of qualified negro citizens from
service on juries, solely because of their race and color, in violation of the
Constitution of the United States. The State joined issue on this charge and
after hearing the evidence, which we shall presently review, the trial judge
denied both motions, and exception was taken. The trial then proceeded and
resulted in the conviction of Norris who was sentenced to death. On appeal, the
Supreme Court of the State considered and decided the federal question which
Norris had raised, and affirmed the judgment. We granted a writ of certiorari.
First. There is no controversy as to the
constitutional principle involved. That principle, long since declared, was not
challenged, but was expressly recognized, by the Supreme Court of the State.
Summing up precisely the effect of earlier decisions, this Court thus stated
the principle in Carter v. Texas, in relation to exclusion from
service on grand juries: “Whenever by any action of a State, whether through
its legislature, through its courts, or through its executive or administrative
officers, all persons of the African race are excluded, solely because of their
race or color, from serving as grand jurors in the criminal prosecution of a
person of the African race, the equal protection of the laws is denied to him,
contrary to the Fourteenth Amendment of the Constitution of the United States .
. . The principle is equally applicable to a similar exclusion of negroes from
service on petit juries.”
Defendant adduced evidence to support the charge of
unconstitutional discrimination in the actual administration of the statute in
Jackson County. The testimony, as the state court said, tended to show that “in
a long number of years no negro had been called for jury service in that
county.” It appeared that no negro had served on any grand or petit jury in
that county within the memory of witnesses who had lived there all their lives.
Testimony to that effect was given by men whose ages ran from fifty to
seventy-six years. Their testimony was uncontradicted. It was supported by the
testimony of officials. The clerk of the jury commission and the clerk of the
circuit court had never known of a negro serving on a grand jury in Jackson
County. The court reporter, who had not missed a session in that county in
twenty-four years, and two jury commissioners testified to the same effect. One
of the latter, who was a member of the commission which made up the jury roll
for the grand jury which found the indictment, testified that he had “never
known of a single instance where any negro sat on any grand or petit jury in
the entire history of that county.”
That testimony in itself made out a prima facie
case of the denial of the equal protection which the Constitution guarantees.
The case thus made was supplemented by direct testimony that specified negroes,
thirty or more in number, were qualified for jury service. Among these were negroes
who were members of school boards, or trustees, of colored schools, and
property owners and householders. It also appeared that negroes from that
county had been called for jury service in the federal court. Several of those
who were thus described as qualified were witnesses. While there was testimony
which cast doubt upon the qualifications of some of the negroes who had been
named, and there was also general testimony by the editor of a local newspaper
who gave his opinion as to the lack of “sound judgment” of the “good negroes”
in Jackson County, we think that the definite testimony as to the actual
qualifications of individual negroes, which was not met by any testimony
equally direct, showed that there were negroes in Jackson County qualified for jury
service . . .
We are of the opinion that the evidence required a
different result from that reached in the state court. We think that the
evidence that for a generation or longer no negro had been called for service on any jury in Jackson County, that there were
negroes qualified for jury service, that according to the practice of the jury
commission their names would normally appear on the preliminary list of male
citizens of the requisite age but that no names of negroes were placed on the
jury roll, and the testimony with respect to the lack of appropriate
consideration of the qualifications of negroes, established the discrimination
which the Constitution forbids. The motion to quash the indictment upon that
ground should have been granted . . .
Within the memory of witnesses, long resident
there, no negro had ever served on a jury in that county or had been called for
such service. Some of these witnesses were over fifty years of age and had
always lived in Morgan County. Their testimony was not contradicted. A clerk of
the circuit court, who had resided in the county for thirty years, and who had
been in office for over four years, testified that during his official term
approximately 2500 persons had been called for jury service and that not one of
them was a negro; that he did not recall “ever seeing any single person of the
colored race serve on any jury in Morgan County.”
There was abundant evidence that there were a large
number of negroes in the county who were qualified for jury service. Men of
intelligence, some of whom were college graduates, testified to long lists
(said to contain nearly 200 names) of such qualified negroes, including many
business men, owners of real property and householders . . .
We think that this evidence failed to rebut the
strong prima facie case which defendant had made. That showing as to the
long-continued exclusion of negroes from jury service, and as to the many
negroes qualified for that service, could not be met by mere generalities. If,
in the presence of such testimony as defendant adduced, the mere general
assertions by officials of their performance of duty were to be accepted as an
adequate justification for the complete exclusion of negroes from jury service,
the constitutional provision—adopted with special reference to their
protection—would be but a vain and illusory requirement. The general attitude
of the jury commissioner is shown by the following extract from his testimony:
“I do not know of any negro in Morgan County over twenty- one and under sixty-five
who is generally reputed to be honest and intelligent and who is esteemed in
the community for his integrity, good character and sound judgment, who is not
an habitual drunkard, who isn’t afflicted with a permanent disease or physical
weakness which would render him unfit to discharge the duties of a juror, and
who can read English, and who has never been convicted of a crime involving
moral turpitude.” In the light of the testimony given by defendant’s witnesses,
we find it impossible to accept such a sweeping characterization of the lack of
qualifications of negroes in Morgan County. It is so sweeping, and so contrary
to the evidence as to the many qualified negroes, that it destroys the intended
effect of the commissioner’s testimony.
In Neal v.
Delaware, supra, decided over
fifty years ago, this Court observed that it was a “violent presumption,” in
which the state court had there indulged, that the uniform exclusion of negroes
from juries, during a period of many years, was solely because, in the judgment
of the officers, charged with the selection of grand and petit jurors, fairly
exercised, “the black race in Delaware were utterly disqualified by want of
intelligence, experience, or moral integrity, to sit on juries.” Such a
presumption at the present time would be no less violent with respect to the
exclusion of the negroes of Morgan County. And, upon the proof contained in the
record now before us, a conclusion that their continuous and total exclusion
from juries was because there were none possessing the requisite
qualifications, cannot be sustained.
We are concerned only with the federal question
which we have discussed, and in view of the denial of the federal right
suitably asserted, the judgment must be reversed and the cause remanded for
further proceedings not inconsistent with this opinion.
Reversed.
1. According
to the first court record, each of the boys’ trials was completed in
a. one hour.b. one day.c. three days.d. two weeks.
2. Which of
the following is not mentioned
in the court records as a reason that the trial was unfair?
a. No blacks served on the jury.b. None of the boys testified.c. The boys were denied a right to counsel.d. The boys did not contact their families.
3. What can
you conclude from the length of the boys’ trial?
a. The trial did not gain much attention from the public.b. Few attorneys were willing to represent the boys.c. The boys admitted they were guilty before the trial.d. Little care had been taken in presenting their defense.
4. According
to the court record, what happened to the white boys on the train?
a. They moved to a freight car.b. They were thrown off the train.c. They moved to a gondola car.d. They got off the train in Scottsdale.
5. The “Certiorari to the Supreme Court of Alabama” was
concerned mostly about whether
a. the boys were denied a right to counsel.b.blacks should be allowed to serve on juries.c. many blacks in the South were educated.d.the boys should be retried for their crimes.
6. What was the main reason the judgment was
reversed?
a. The boys had been denied their right to counsel.b.The trial was held out of state.c. The jury was not made up of the boys’ peers.d.The boys were not allowed to contact their families.
7. The
reversed the conviction of one of these and
affirmed that of seven, including Norris.” You can tell that in this court
record that affirmed means
a. suggested. b. upheld.
c. overturned. d. understood.
“Certiorari to the Supreme Court of Alabama” says
that “the Supreme Court of Alabama
8. Do you agree with the reversal of the judgment
against the Scottsboro boys? Why or why not?
9. How did the use of soldiers to safeguard the boys
contribute to the unfairness of the trial?
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