In this third installment (of four) in J. Chester Johnson’s “Evanescence: The Elaine Race Massacre,” Johnson traces the dramatic and improbable legal fall-out following the Elaine Massacre, capturing the struggles that the sharecroppers experienced with a prejudicial and arbitrary local and state legal system. We follow a small group of Arkansas African-American defendants, who more than once find themselves sentenced to execution, before having their fate decided, finally, in the U. S. Supreme Court by none other than Oliver Wendell Holmes, setting a court precedent that would set the stage for more progressive decisions.
A Moses For The Elaine Twelve
Scipio Africanus Jones, son of a black woman and a white man, worked his way from the Arkansas fields to become a lawyer before the age of twenty-six. A member of the black power elite of Little Rock early in his career, he developed a reputation for a keen and lissome legal mind and was a well-regarded attorney by both races. When a proposition came forth to end voting for African-Americans in Arkansas, Jones organized a strong state-wide group to oppose the proposition, which failed decisively. An accomplished trial lawyer, Jones regularly argued before the Arkansas Supreme Court. He waged battles for the civil rights of blacks, and numerous African-American families named their children after him. In 1901, Jones claimed before the State’s Supreme Court that his client’s criminal conviction should be overturned inasmuch as the black defendant had had the Fourteenth Amendment right to due process violated; though Jones lost the case, he would later return to a similar argument to benefit six of the sharecroppers and, more generally, invigorate the legal underpinnings of civil rights for African-Americans.
At the time the Elaine Twelve arrived at The Walls for execution, Jones and several black attorneys knew it was time to start to work on saving the convicted men–Jones being selected among his colleagues to lead the effort. They also quickly realized it would be a requisite for Jones to team up with a sympathetic and respected white lawyer–the nod went to an elderly, former Confederate soldier, Colonel George W. Murphy. Jones early on decided the initial trials in Phillips County had been manifestly unfair, and, as a first step, a motion for a new trial on the grounds that equal protection had been violated was presented to the local presiding judge, who denied the motion but stayed the executions. While Jones held the opinion that the trials had certainly been unfair, he also believed they didn’t violate the Arkansas due process standards; however, upon review of the verdicts, he detected that in the rush to judgment, the Phillips County juries in six of the cases failed to specify whether the verdict had been for first or second degree murder–this group of cases would thereafter be known as the “Ware Six.” In March, 1920, the Arkansas Supreme Court handed down its ruling that the verdicts for the Ware Six were fatally defective, and it granted new trials for those impacted; with respect to the remaining six, the so-called “Moore Six,” the Court ruled that they had received fair and impartial trials. Nevertheless, until the results of the retrials for the Ware Six occurred, new execution dates for the Moore Six would be postponed.
For the new proceedings in Phillips County, Colonel Murphy took the lead, but soon after the retrials commenced, Murphy, 79, collapsed, requiring Jones to step into the elderly attorney’s place. As the retrial progressed, Jones would succeed in altering the story the jury had heard in the first trial; black witnesses recanted stories, telling the local court that they were tortured for the testimony previously given. In addition, during the proceedings, Jones set a trap for the local presiding judge that he thought would make this retrial also appealable to the Arkansas Supreme Court. Predictably, the Ware Six were once again found guilty of murder by an all-white jury.
At the conclusion of the retrials for the Ware Six with new guilty verdicts, an execution date of July 23, 1920 was established for the twelve. But, as a result of the legal trap Jones set for the presiding judge in Phillips County during the retrials, the Arkansas Supreme Court also invalidated the second convictions of the Ware Six, and yet another new trial was ordered–the threat of imminent electrocutions again being removed. While Jones had, thus far, been able, through legal acumen and tactics, to keep proceedings astir for the Ware Six, it had not gone so well for the Moore Six. In fact, on October 11, 1920, the U. S. Supreme Court denied the petition that had rested on equal protection; coincidentally, Colonel Murphy, who worked well with Jones in defense of the Elaine Twelve, died of cardiac complications the same day of the Supreme Court decision. The replacement for Murphy went to another white attorney, Edgar McHaney, whose departure from the team some time later over money issues would create a temporary predicament for Jones.
It had been believed that until legal proceedings for the Ware Six were concluded, the Moore Six would not receive a new execution date; yet, to the defense team’s dismay and astonishment, a date of June 10, 1921 was set for the execution of the Moore Six by the new Governor, Thomas McRae, who replaced Brough. The leaders and plutocrats of Phillips County had changed their strategy–to apply pressure to sever the timing for the execution of the Moore Six from that of the Ware Six. After the Arkansas Supreme Court set aside the second trial for the Ware Six, Jones had asked the local presiding judge for a change in venue from Phillips County, but the judge decided that he would not rule on this request for the Ware Six until after the June 10 execution date for the Moore Six.
Coffins had already been ordered. The promise to the lynch mob by the County fathers nearly two years previously would now be kept, but the Moore Six continued to believe in Scipio Jones.
Over the last several months, lynchings and mob violence against African-Americans had been widespread throughout the nation. In Arkansas alone during the first months of 1921, there had been in late January the burning alive of a black in Nodena; in March, lynchings of blacks in both Hope and Monticello; and in early May, the lynching of another African-American in McGehee.
U. S. Supreme Court Precedent for Civil Rights: Moore v. Dempsey
Soon after the Civil War, the 14th Amendment to the Constitution was enacted by Congress. The Amendment, in addition to effectively making all former slaves citizens of the United States, stated, in part, that “nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” In addition, Congress passed a Habeas Corpus Act in 1867, which provided state prisoners access to federal courts to ensure that due process could be realized. Notwithstanding these two legal pillars, the U. S. Supreme Court had, following passage of both, undercut their intended effect through the next fifty years by determining that states alone, not the federal government, were responsible for the civil rights of their citizens.
Jones found himself with few options for the Moore Six. As an act of near desperation, in a frantic search for deus ex machina, on the afternoon of Wednesday, June 8th, less than forty hours before the scheduled executions, Jones and McHaney appeared before an Arkansas judge, who had dubious authority to hear the criminal case. Yet, upon hearing the facts for the petition that relied upon the tenets of the 14th Amendment, the judge ruled in favor of the request and stayed the execution. The State Attorney General appealed immediately to the Arkansas Supreme Court, asking that the judge’s order be annulled, but the State Supreme Court decided to hear arguments the following Monday. After the hearing, the Arkansas Supreme Court ruled, on June 20th, against the judge’s order with a determination that the execution of the Moore Six could proceed; in turn, Governor McRae set September 23, 1921 as the new electrocution date. The next step would be an appeal by Jones to the U. S. Supreme Court.
In late August, two white, former MoPac security agents, key witnesses in the first trials, now were recanting their stories and telling the truth. With affidavits from these two white MoPac security agents, combined with the affidavits of three sharecroppers who also recanted, the story of injustice in Phillips County to be told in federal district court had become much more credible and compelling. The local court in Phillips County had simply not been independent, for the Committee of Seven, deciding who would be electrocuted and sent to prison and the length of terms given, had taken over the function of the courts. A new factual topography rose for Supreme Court review. Since the State clung to a “demurrer” approach to the facts contained in the Moore Six petition, it was expressing a view that the facts, as stated in the request, did not matter, and, to that point, in late September, 1921, the federal district court ruled against the Moore Six. Jones had thirty days to burnish an appeal to the U. S. Supreme Court, but confusing the situation for Jones was that, surprisingly, the week before the federal district hearing, Jones’ co-counsel, McHaney, who had replaced Colonel Murphy, resigned over money issues with the NAACP, which had been funding a meaningful part of the sharecroppers’ defense. Nonetheless, with the true story of the Elaine Race Massacre now well-publicized and not challenged by the State, it was clear the State did not wish to return to the courtroom to try the Ware Six, so, before proceeding, the State would first simply let the U. S. Supreme Court decide on the Moore Six.
The U. S. Supreme Court would not hear the case until, at the earliest, the fall of 1922, and furthermore, someone, other than Jones, had been approved to present the case to the U. S. Supreme Court. Instead of Jones, Moorfield Storey was chosen by the NAACP; Storey, an older attorney, distinguished Boston Brahmin, former secretary to the abolitionist Senator Charles Sumner, and first president of the NAACP, had much experience arguing cases before the Supreme Court. Upon release of the record on appeal as prepared by Jones, it seemed abundantly clear to Storey that the facts for the sharecroppers should support the proposition that the Arkansas Supreme Court had affirmed torture and a farce for a trial–indeed, the State process had been a “judicial lynching.”
In addition to the preparations necessary for the Moore Six hearing in the nation’s capital, Jones had been active in pursuing freedom for the other prisoners; in October, 1922, he successfully arranged to have all, but fifteen, of the sharecroppers released from the Cummins State Farm.
In advance of Moore v. Dempsey being argued before the U. S. Supreme Court, lynchings and the burnings of blacks alive continued throughout the nation. Only a few days prior to the Supreme Court hearing, a race battle broke out in Florida with several blacks being killed and white posses hunting down African-Americans hiding in the woods–a comparatively smaller incident, but still a grim and lugubrious reminder of the Arkansas massacre.
On the day of the U. S. Supreme Court hearing, which Jones unfortunately missed–a deep, personal and professional loss–as a result of miscommunications with or misinformation from the Court clerk regarding the hearing’s date, Storey punctuated the point in his argument that if the case before them did not warrant the petition requested, then the portion of the Constitution on which the petition was based should be eliminated for it had no meaning. Importantly, the Arkansas Attorney General could not argue the facts since the State had demurred on the facts earlier in the lower court.
Oliver Wendell Holmes, the eminent Supreme Court jurist, would write the opinion for the majority in the Moore v. Dempsey case; he believed firmly the federal court had a duty to provide relief to state prisoners convicted in state proceedings that were grossly unfair. In the 6-2 decision for Moore v. Dempsey, this point received amplification in Holmes’ language:
If the case is that the whole procedure is a mask–that counsel, jury, and judge were 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 nor 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.
With this ruling, the federal government became the protector of basic rights of individual American citizens. Some believed the ruling as important as any event since the Emancipation Proclamation. In retrospect, one could have then envisioned that the days of Jim Crow were numbered. The civil rights movement in the United States, as the 20th century would know it, had begun.
Copyright © 2012 by J. Chester Johnson
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