Thursday, December 16, 2010

Mark Currides and Leroy Phillips, Jr., Contempt of Court (1999)

This is a story about injustice. A true story. And if there was ever a story that seems to support Richard Wrangham's vision of male-dominated societal violence in Demonic Males (see July 1, 2010 post), this could be it. But human violence in this story --- here, a racially-motivated lynching at the beginning of the 20th century --- is not explained by competition for scarce food resources, nor does it appear to be explained by territorial expansion of a group. This is a type of violence that is arguably unique to humans ---the ugly side of our humanity.

This is a story about a crime --- an assault and the rape of a white woman in Chattanooga, Tennessee. No one disputed that nor did anyone assert a justification for this crime. This is also the story of another crime: the unproven accusation that a black man committed the crime and the emotions of a community that would allow any black man, regardless whether he could have committed the crime, to pay the penalty for the first crime. When the accused tried to seek justice through the legal system to the full extent allowed by law, and to which any white man would have been entitled, the criminal justice system conspired to thwart his realization of justice. Before a court --- in this case, the United States Supreme Court --- had its final say, a mob of racial bigots, with the acquiescence of those assigned to protect the accused's rights, grabbed him from his jail, hung him from a bridge over the Tennessee River, and riddled his body with bullets.

I first heard this story last year at a legal ethics program of the Virginia Bar, where the author, Mark Currides, presented the story in order to illustrate a nestful of questions about judicial and attorney ethics issues. The American Bar Association had recently published an article about Currides' book, as it was the 100-year anniversary of the Supreme Court's decision in United States v. Shipp , the only case involving an actual trial at the Supreme Court. The story of the accused's lawyers is a phenomenal one in the history of American jurisprudence --- both those who were assigned to represent the accused at his criminal trial, and those who took over to pursue his appeals, when the accused was persuaded by his own trial attorneys (and the judge) not to pursue an appeal after a jury had rendererd a guilty verdict at the trial that would surely result in his execution.

Supreme Court Justice John Marshall Harlan persuaded five fellow justices of the Supreme Court to allow the accused an appeal under the Habeas Court Act --- something virtually unheard of in 1906, because it involved federal oversight of a State court proceeding. Harlan was almost unique in his sensitivity to racial justice at that time in history; he dissented in the case of Plessy v Ferguson, which upheld the concept of separate but equal facilities for the different races, in which he penned the statement, "Our constitution is color-blind, and neither knows nor tolerates classes among citizens." But cases like this, which fortunately are exceptional and now, few, render the artistic depiction of Lady Justice, with blindfold, a wounded representation. Injustice is certainly blind too. It took decades before Justice Harlan's view of "our constitution" was accepted. But the Shipp case was a turning point. Racial lynchings began to decline dramatically after Shipp, when state judicial officers and law enforcement began to realize that the federal government could second-guess their actions and the local community could no longer protect them. And by the time of the school desegregation cases of the 1950s, the federal government was no longer relying on state and local police to protect those who were pursuing their federal rights (as happened in Chattanooga in 1906), but federal troops were sent to protect them.

There is a final contemplative thought to be considered after a reading a book like this: justice often moves at an incremental pace, often too slow in hindsight. Phrases like "with all deliberate speed," which Chief Justice Warren penned in the Supreme Court's Brown v. Board of Education remedy opinion, seem to recognize this fact. Contempt of Court is a story sandwiched in between many other stories that document the slow pace of securing racial justice over two centuries in time: for example, covering the period preceding Shipp, Judge Leon Higginbotham's history of the colonial origins of slavery in the United States, In the Matter of Color, Race and the American Legal Process: The Colonial Period (1978) and John Quincy Adams' decade-long, yet failed effort from 1835-1845 to get Congress to reconsider the slavery issue before the civil war as reported in William Lee Miller's Arguing About Slavery: John Quincy Adams and The Great Battle in the United States Congress (1998), and after Shipp, Richard Kluger's reporting on the judicial battles over racial desegregation in Simple Justice: The History of Brown v. Board of Education and Black America's Struggle for Racial Equality (1976). While one of the virtues of a democracy is that its incremental decision-making process makes it possible to gather the consent of the governed and reaffirm the legitimacy of the governing body so that violent conflict is not necessary to resolve critical and disputed issues. But at this stage in our democracy, we should recongize that there are some issues in need of resolution that can't wait as long as democracy may take to respond. Racial inequality and its attendant injustice is one of them, and conflict, including physical conflict, has been resorted to resolve the conflict. It is here that some fundamental principles of justice can help us identify those issues that cry out for impartial resolution at a faster pace, which is the subject of the next book to come of the bookshelf.

No comments:

Post a Comment