AMERICAN JUSTICE ON TRIAL. Lise Pearlman

of her relationship with Cleaver, Huey Newton had come to trust Axelrod as a close friend. She hosted many Panther gatherings at her San Francisco home. Newton posed in the wicker chair in Axelrod’s living room for the now-iconic photo used to adorn the new, ten-cent newsletter the Black Panthers began publishing in the spring of 1967.

      When Cleaver contacted Axelrod with news of Newton’s arrest early on the morning of October 28, Axelrod knew there was no time to waste. She called her friend Charles Garry, a prominent leftist lawyer in his late fifties who specialized in defending murder cases. Axelrod had previously collaborated with Garry on Lawyers Guild cases. Both lawyers had long been on the FBI’s list of subversives. Coincidentally, Garry’s friend Dr. Carlton Goodlett, publisher of the African-American newspaper The San Francisco Sun Reporter, happened to be hosting that same week legendary black civil rights activist William Patterson. When Patterson heard of the shooting incident, he immediately asked to meet Huey Newton’s family.

      Patterson was president of the American Communist Party and already had close ties to East Bay civil rights lawyer Bob Treuhaft and his wife Decca Mitford. Both were stalwarts of the “Old Left” — activists for social change in the 1930s and 1940s who also included rough-edged trial lawyer Charles “Charlie” Garry and his scholarly law partner Barney Dreyfus. At 76, Patterson was nearly a generation older than most of his Bay Area leftist colleagues; what was left of his receding hair had turned white. They had all met through Bay Area Communist Party educational programs in the ’40s. Since then, the Oakland firm of Treuhaft & Edises and the San Francisco firm of Garry, Dreyfus & McTernan had become the only two prominent white law firms in the Bay Area that represented black working class clientele. Patterson wanted to offer Huey Newton help from the American Communist Party. He had not seen a politically-charged case with such enormous potential for almost two decades. As a young lawyer he worked for International Labor Defense (ILD), the legal arm of the Communist Party, which placed Patterson on the appellate defense team for some of the most famous political prosecutions of the 20th century.

      Patterson’s first opportunity involved the widely-publicized appeals in the mid-1920s following the death sentences of anarchist immigrants Nicola Sacco and Bartolomeo Vanzetti on charges they participated in a bold 1920 payroll robbery-murder in the Boston suburb of South Braintree, Massachusetts. Upper-class judge Webster Thayer had both men caged during the trial. They were tried before a hand-picked jury that excluded any Italian-Americans, the most disfavored minority group in the area at that time. The judge openly ridiculed the defendants’ radical political views. The evidence of guilt was hotly-contested: the prosecution put on a number of eyewitnesses; the defense countered with numerous alibi witnesses. At the end, Judge Thayer instructed the jury to do its patriotic duty — indicating the pair deserved execution simply for dodging the draft during World War I, which had nothing to do with the charges against them.

      Years of appeals followed, most of which came for hearing before the same biased judge. Hundreds of demonstrators came to the prison to protest their execution; Patterson was among more than 150 whom the police arrested. Sacco and Vanzetti were viewed in many countries as martyrs of the working class; their deaths triggered attacks on American embassies and other violent anti-American incidents around the globe. The heavy-handed behavior of the prosecutor and judge toward these two dissidents acquired its own derogatory name — “Thayerism.” It severely damaged the reputation of the United States’ justice system for many years to come. Growing political opposition to Thayerism also helped usher in major reforms. Patterson believed that, live or die, Huey Newton could ignite similar anger around the world, if enough people viewed his cause as a race and class fight for justice.

      The opportunity to use the Newton defense to ask whether any black man could get a fair trial in America also reminded Patterson of the historic Scottsboro Boys’ appeals he worked on in the 1930s. Like Newton, the Scottsboro Boys faced the death penalty. In their case, it was based on false charges they gang-raped two prostitutes on a freight train passing through Alabama. The trials were about as unfair as one could imagine, which made them an ideal vehicle for holding American injustice up to international scorn. The original criminal complaint involved an inter-racial brawl that forced several white youths off the train. The white boys got the sheriff to deputize a posse to “capture every Negro on the train.”³ Some of those who had been in the fight had already fled the train by then. The deputies hauled off nine black teenagers aged 12 to 19 they found on board in five different cars, threw them all on a flatbed truck, and took them to the local jail where the terrified teenagers were held for assault with intent to commit murder.

      The sheriff’s men also hauled in two young prostitutes whom they found in a different car from any of the boys. The older one, Victoria Price, was twenty-one and made up a gang rape charge to avoid prosecution for taking an under-aged girl across state lines in violation of the federal Mann Act.⁴ The claim quickly brought a lynch mob to the jail demanding the boys be turned over for hanging. The sheriff refused. Officials only dispersed the angry crowd by calling in the National Guard to protect the prisoners with machine guns and bayonets, accompanied by the promise of quick trials “to send them to the chair.”⁵

      The trials became the star attraction at the Scottsboro County Fair. The boys were all from out of state, illiterate and not even permitted to contact their families. The nine of them had not all even met each other before they were arrested. Yet after being beaten, the first one tried swore he witnessed the others commit gang rape. That false testimony was supposed to spare his own life at the others’ expense — but the prosecutor asked for and got the death sentence for him anyway. In fact, there was no physical evidence that either of the young prostitutes had sex on the train in the time frame the gang rape was alleged to have happened. Represented by incompetent counsel, all but the youngest of the Scottsboro Boys were sentenced to die after back-to-back daylong trials before the same vengeful, all-white male jury. When the packed gallery heard the first boy’s death sentence, the spectators burst into applause. Outside, a band struck up, “There’ll be a Hot Time in the Old Town Tonight.”⁶ The trial of twelve-year-old Roy Wright was last. All but one juror voted for the death penalty even though, in view of his age, the prosecutor only asked for life imprisonment. The judge had to declare that one a mistrial.

      As eight of the teenagers endured the miseries of death row, national newspapers reported the outrageous details of their prosecution that the ACLU had gathered post-trial. The Scottsboro Boys immediately became a cause célèbre for civil rights advocates. The Communist Party saw great recruiting potential in embarrassing the American system of justice as it had done through the martyrdom of Sacco and Vanzetti just four years before. The ILD quickly signed the boys up as clients, acing out the NAACP and America’s most famous defense lawyer, Clarence Darrow. Darrow felt the ILD lawyers “cared far less for the safety and well-being of those poor Negro boys than the exploitation of their own cause.”⁷ The legal battle turned into a test of endurance. Alabama prosecutors subjected the Scottsboro Boys to more retrials than in any other criminal proceeding in American history; hard-fought appeals and multiple trials saved their lives.

      In the second trial in a different county, the ILD brought in a nationally known defense lawyer, New Yorker Samuel Leibowitz, a master of cross-examination reputed to nearly match Darrow in his prime. The younger prostitute changed her story and agreed to testify for the defense. The chief prosecutor was the son of the Alabama Supreme Court justice who had found nothing wrong with sending the Scottsboro Boys to the electric chair after the first mockery of a trial. Unhappy with all these interfering Northerners, the prosecution asked the all-white-male jury: “Is justice going to be bought and sold in Alabama with Jew money from New York?”⁸ The jurors quickly reached a guilty verdict and another death sentence. Yet in this case, Judge James Horton found the gang rape testimony of the prosecutor’s star witness simply not credible. He set aside the jury’s verdict only to lose his seat at the next election for his courageous action.

      After the prosecutor got Judge Horton removed from the case, the newly-assigned judge refused to request state troops to protect the defendants, and Alabama’s governor declined to order any. Panicked, Liebowitz cabled President Franklin Roosevelt to urge federal intervention to prevent the “extremely grave” risk of a massacre.⁹ During the retrial, this judge showed open hostility to