28

Who were the Scottsboro Boys? They were nineblack unemployed youths who made a mostunfortunate decision to hobo a train that left

Chattanooga for Memphis and passed through Scottsboroand Huntsville, Ala., along the way. They were called“boys” because their ages ranged from 13 (Roy Wright andEugene Williams) to 19 (Charlie Weems). The authoritiescharged all nine of them with death penalty offenses forallegedly gang raping two hobo white women. A jury con-victed the youths simply because of their race at a timewhen no jury composed of all white males in a deepSouthern state would reject a white woman’s uncorrobo-rated and unquestionably false testimony against a personof color no matter how unjust and absurd — even whilethe whole world watched.

Olen Montgomery, age 18, was completely blind inone eye and nearly blind in the other. He could only getaround by placing his hand on someone’s shoulder andbeing led from one place to another. The so-called rapeoccurred in a gondola car, and Olen Montgomery wasriding on an oil tanker car at the end of the train andknew nothing about any rape occurring until he wasarrested for it. Willie Robinson had untreated gonorrheaand syphilis. His private parts were covered with sores

and swollen to the extent that he walked with a cane andwas impotent. Sex for him would have been extremelypainful and he would most assuredly have infected anypartner (neither of the “victims” contracted venereal dis-ease). Robinson had an IQ of 64 and a mental age ofnine. He had not been in the gondola car at all on the daythe alleged rape occurred.

Fateful Day in 1931

On a cool March day in 1931, a slow-moving freighttrain left Chattanooga headed west toward Huntsville.Just as the train left Stevenson, Ala., two bleeding whitehobos ran to the stationmaster. They complained that a“bunch of Negroes” had beaten them up and thrownthem from the train without provocation. The truth wasthat the two transients had told all the black people in thegondola car to either jump off the train or find anothercar to ride in because they did not want to “ride with nig-gers.” The fight was short; it was two against seven.

The stationmaster telephoned Sheriff M.L. Wann,and he in turn called a deputy to stop the train at PaintRock station. His instructions to the deputy were to“capture every Negro on the train and bring them toScottsboro,” which was the county seat of JacksonCounty. The Jackson County deputy did as he was told.There were nine black youths aboard, and to everyone’ssurprise, also on board were two white females wearingmen’s overalls and caps.

In 1931, riding a train in Alabama without a ticket orthe money to purchase one constituted the crime ofvagrancy and customarily resulted in a fine of $30 or 30days on the county work crew. To avoid the vagrancy

B Y J O H N E D MO N D M AY S A N D R I C H A R D S . J A F F E

History Corrected — The Scottsboro Boys Are Officially Innocent

© Library of Congress, NAACP

WWW. N A C D L . O R G T H E C H A M P I O N

arrest, Ruby Bates claimed that she andher friend, Victoria Price, had been rapedby the nine black youths.

The deputy who stopped the trainwas there to investigate a simple misde-meanor assault. Upon hearing the rapeallegation, the police took the two femalesto a doctor in Scottsboro and took thenine youths to the county jail. As word ofthe accusation spread, a mob formed out-side the jail. The Alabama National Guardwas called out to protect the prisoners.

In the Courts

An all-white grand jury, which hadmet the week before, reconvened andindictments for rape, a capital crime atthe time, were returned against all nine.The trial in Scottsboro was a travesty. Thecourt appointed a local attorney who wasexperiencing senility, Milo Moody, alongwith an “advisor,” Stephen R. Roddy fromChattanooga. Roddy’s practice consistedprimarily of writing title opinions. AdaWright of Chattanooga, the mother oftwo of the boys, Andrew and Roy Wright,had paid him a small fee to assist theirAlabama attorney.

The grand jury returned the nineindictments on a Tuesday morning andJudge Alfred E. Hawkins set the trials forthe following Monday. The court appoint-ed counsel on the date set for trial. On thatday lawyer Roddy was reported to bedrunk (“he couldn’t even walk straight”).1

The court gave the two lawyers less thanhalf an hour to confer with their nineclients in a capital case before starting thevoir dire. The drunken Roddy agreed thatall nine defendants could be tried at thesame time even though Alabama law atthat time permitted each co-defendant, onmotion, the absolute right to a separatetrial if he requested one. When questionedby the trial judge, Roddy said he wantedno severances. District Attorney H.C.Bailey told the court he wanted three trials— one for 13-year-old Charley Weems,one for Clarence Norris and Roy Wright,and one for the other six.

The trials resulted in nine guilty ver-dicts. As to Roy Wright, who was only 13,the jury voted seven for death and five forlife imprisonment even though the prose-cution asked for life imprisonment forWright. Thus, there was a mistrial as toWright. The other eight transients weresentenced to die. These were the first deathsentences for Judge Hawkins as a jurist,and he cried as he pronounced them. TheAlabama Appellate Court affirmed theconvictions and death sentences.

It was a different story in the U.S.Supreme Court. In the landmark case of

Powell v. Alabama,2 the Supreme Courtheld it to be ineffective assistance ofcounsel and a denial of due process for atrial court to put a capital defendant ontrial with counsel who had only 30 min-utes to interview his client and preparebefore striking a jury. Later in a subse-quent appeal to the Supreme Court inNorris v. Alabama,3 the Court deemed it aviolation of the Fourteenth Amendmentto have a “gentlemen’s agreement” amongthe Jury Commissioners of Alabama thatno blacks be considered for grand jury orpetit jury service. These commissionersin each county compiled the jury rollsfrom which potential jurors were chosenand the Jackson County Grand Juryreturning the nine indictments was allwhite. Neither Jackson County nor anyother Alabama county had ever had ablack grand or petit juror.

After the Court decided Powell v.Alabama, the youths filed a motion forchange of venue. Judge Hawkins deter-mined that the case should be moved tothe town of Decatur in Morgan Countyas opposed to Birmingham, where thedefendants wanted it to go. The case wasassigned to Judge James Edwin Horton.

The year was 1933, and Judge Hortonwas nearing the end of his second term ascircuit judge. He was the son and grand-son of Confederate veterans. A product ofthe Old South, he nonetheless possessed astrong sense of justice and a firm beliefthat all persons must be equal before thelaw. Judge Horton’s life ambition was tobe an appellate justice. When the case wasassigned to Horton, Gov. Bibb Graves sentan assistant to see him with a promise thatif he handled the Scottsboro cases “withthe least embarrassment to the state ofAlabama,” the governor would appointhim to a place on the Supreme Court soonto be vacated by a justice who had a seri-ous heart condition.

Famed New York lawyer SamLeibowitz and Joseph Brodsky representedthe Scottsboro Boys in Decatur. The evi-dence at trial overwhelmingly proved thatthey were innocent. Ruby Bates recantedher previous testimony in Scottsboro.Bates testified that she was never rapedand that she and Victoria Price made upthe whole story to keep from being arrest-ed for vagrancy. The gondola car wherethe supposed rape occurred had been usedto haul crushed gravel. While VictoriaPrice testified she was forced down, helddown and raped, there was not a scratchon her from the sharp edges of the gravelremaining in the gondola.

Lester Carter, one of the hobosthrown from the train, testified that he hadsex with Ruby Bates the night before in the

hobo jungle in Chattanooga. He furthertestified that several feet away, VictoriaPrice had sex with Price’s boyfriend, JackTiller. The semen found inside VictoriaPrice was small in quantity and the spermwere dead. A physician in Scottsboroexamined Victoria and Ruth immediatelyafter the rape accusation. The medical tes-timony supported the defense, not theprosecution, in that the doctors foundnothing consistent with forcible inter-course and certainly not by nine differentpeople. In fact, Victoria Price testified thatshe was never in a hobo jungle inChattanooga but stayed at a ladies’ board-ing house owned by Callie Brochie. SamLeibowitz proved that no such personlived in Chattanooga and that there was nosuch boarding house there. Leibowitzestablished that Callie Brochie was a fic-tional character who owned a boardinghouse in a Saturday Evening Post series. Inhis closing argument, Morgan CountySolicitor Wade Wright repeatedly insultedSam Leibowitz for his Jewish faith.Because Sam Leibowitz bought LesterCarter a suit, tie and shoes to wear tocourt, the solicitor made the followingargument in his closing:

Lester Carter sold his Alabamabirthright for a suitcase full ofNew York Jew ready mades.4

Judge Horton never realized hisdream of an appellate judgeship. Instead,he chose conscience and justice over poli-tics and ambition. In a rare and singularact of courage, after the jury convictedHaywood Patterson and sentenced him todie, Judge Horton granted SamLeibowitz’s motion for a new trial, forPatterson based on the “verdict of the jurybeing against the great weight of the evi-dence.” His ruling ended his politicalcareer forever and he was overwhelminglydefeated for re-election in 1934.

After Judge Horton granted themotion for new trial, the case went toJudge William Callahan of the samecircuit. Judge Callahan proved to bethe antithesis of Judge Horton byresorting to heavy-handed tactics andbraised rulings. In the new trial ofHaywood Patterson, due to a numberof complications the tenacious legalgiant Sam Leibowitz was forced to rel-egate his role as lead attorney to that ofan advisor to newly appointedHuntsville attorney Clarence Watts.Watts did his best, but just as in the1950s classic To Kill a Mockingbird,powerful societal codes trumped anysemblance of justice. In his closingargument he said these words:

WWW. N A C D L . O R G M A R C H 2 0 1 4

THE SCOTTSBORO BOYS

29

Gentlemen of the jury, the hard-est thing in life is to do what youknow is right when everyonearound you is urging you to dowhat you know is wrong.5

Guilty verdicts and death penaltiesfollowed for the defendants.

The Aftermath

No one was executed. HaywoodPatterson, ultimately convicted in four tri-als, went to prison. In 1948 he escaped andhoboed a train to Detroit. The governor ofMichigan refused his extradition back toAlabama. He died in 1950 in Michiganwhile serving a sentence for manslaughter.After six and one-half years of confine-ment, the state moved to dismiss thecharges against the blind OlenMontgomery, the crippled WilliamRobinson, Roy Wright, and EugeneWilliams. The charges were not dismissedupon insufficient evidence, but solely onthe basis of the defendants having served asufficient amount of time behind bars.Charlie Weems made parole in 1943. Hehad contracted tuberculosis and wouldsoon die in Atlanta, Ga. The state paroledAndy Wright in 1943. He also had tuber-culosis and would be returned to Kilby

Prison several more times for minorfelonies (thefts and assaults). Roy Wrightmade parole and died by his own hand in1959 after killing his wife. Ozie Powell hadstabbed a Morgan County deputy whileawaiting a new trial. The rape chargesagainst him were dismissed in return forhis plea to a 20-year sentence for assaultfrom Judge Callahan. He made parole in1944. Clarence Norris remained under adeath sentence that was commuted byGov. Graves. Paroled in 1943, he returnedto prison on a parole violation and in 1946was paroled again. In 1974 he learned thathe was wanted in Alabama for a paroleviolation. He was living in Queens. Thegovernor at the time, George Wallace,signed a pardon for Clarence Norris in1975. When he died in 1989, Norris wasthe last living “Scottsboro Boy.”

It is not often one can actually witnesshistory corrected. Yet this is precisely whathappened on April 19, 2013, in Scottsboro,Ala., when Gov. Robert Bentley signed twopieces of legislation into law. The AlabamaLegislature passed a resolution recom-mending a posthumous pardon for all thedefendants against whom charges werenot dismissed. Legislators also passed aresolution declaring all nine ScottsboroBoys to be innocent. Even the pardongiven Clarence Norris by Gov. Wallace didnot declare him innocent. The two actsunanimously passed both houses of theAlabama Legislature, all Republicans andall Democrats voting in the affirmative. Atthe side of Gov. Bentley, with tears in hiseyes, stood Clarence Norris Jr., witnessingthe complete exoneration of his father.

Seven months later, on November21, 2013, the Alabama Board of Pardonsand Paroles granted posthumouspardons to Charles Weems, Andy Wright,and Haywood Patterson. They were thefinal three defendants to have convictionsfrom the case on their records.6

So much time has passed since theearly 1930s, and all the Scottsboro Boysare dead. The pardons and exonerationsnever helped them while they were alive,yet it is never too late to do the right thing.Equal justice before the law cannot be adream. Advocates involved in the criminaljustice system must make it a reality. It isnever too late to right a wrong — especial-ly one in the name of justice. History hasbeen corrected. The Scottsboro Boys areall, each and every one, innocent.

The authors are honored to haveparticipated in this long overdue fightfor justice.

Notes1. DAN T. CARTER, SCOTTSBORO: A TRAGEDY OF

THE AMERICAN SOUTH 22 (1969).

2. 287 U.S. 45 (1932).3. 294 U.S. 587 (1935).4. In 1933 the closing arguments of

attorneys were never transcribed inAlabama. See DAN T. CARTER, SCOTTSBORO: ATRAGEDY OF THE AMERICAN SOUTH 235 n.99(1969). We therefore look to quotes fromthe press. See N.Y. TIMES, April 7, 1933, at 3.See ROBERT LEIBOWITZ, THE DEFENDER: THE LIFE OFSAMUEL S. LEIBOWITZ 242 (1981).

5. At that time closing arguments werenot transcribed. Dan T. Carter, supra note 4.See the bronze plague on the second floorof the Madison County Courthouse dedicat-ed to Clarence Watts, a member of that Bar.

6. Colleen Jenkins, Alabama PardonsScottsboro Boys After 82 Years, Nov. 21, 2013,available at http://www.nbcnews.com/news/investigations/alabama-pardons-scottsboro-boys-after-82-years-v21563495(last visited Feb. 20, 2014). n

WWW. N A C D L . O R G T H E C H A M P I O N30

THE SCOTTSBORO BOYS

About the AuthorsJohn Edmond Mays has represented

defendants in morethan 20 capital mur-der trials. He is boardcertified in criminaltrial advocacy by theNational Board ofTrial Advocacy, andhe is a Life Memberof NACDL.

John Edmond Mays445 E. Moulton St. Suite 203Decatur, AL 35601256-355-7527

johnemays@yahoo.com

Richard S. Jaffe is certified as an NBTA Criminal TrialSpecialist. He is listed in SuperLawyers as one ofthe top 50 lawyersin Alabama. Jaffeserved three termson the NACDLBoard of Directors.

He is a fellow of the American College ofTrial Lawyers (ACTL) and author of Questfor Justice: Defending the Damned.

Richard S. JaffeJaffe & Drennan, P.C. 2320 Arlington Avenue South Birmingham, AL 35205205-930-9800Fax 205-930-9809

rjaffe@rjaffelaw.com

E-MAIL

E-MAIL

McAdoo Gordon &Associates, P.C.202-293-0534

www.mcadoolaw.com

SecurityClearanceLawyers