WITH JUSTICE FOR SOME. Lise Pearlman

charges, Sheriff Wann had provoked the Klan’s ire by threatening to kill anyone who interfered with his prisoners and calling in the National Guard to protect them. Had the Scottsboro Boys never stood trial – like so many victims of vigilante “justice” before them – there would have been no record for the Supreme Court to review to issue two landmark rulings establishing basic, now widely accepted, procedural rights for criminal defendants.

      In light of recently revived interest in the Scottsboro Boys case, a blogger detailed the suspicious circumstances surrounding the murder of Sheriff Wann and concluded that county records did not support the official story. He pressed for the murder to be reinvestigated, urging that “the truth must be revealed for justice to occur.”⁹ That assumption reflects the premise of this book as well. Getting at the truth in all the cases in this book includes evaluation of key details sometimes revealed long after the trials ended. We also benefit from the passage of time allowing us to assess the societal factors at play more clearly. Many cases where the system fell woefully short of justice have belatedly been reinvestigated. One such case involved a handyman named Ed Johnson, the victim of a kangaroo trial for rape, who was lynched while seeking to establish the right to federal review of state criminal trials for fairness (see Chapter 4). Ten years of research at the end of the 20th century by lawyer Leroy Phillips, Jr., and investigative reporter Mark Curriden convinced a Tennessee judge to conduct a posthumous retrial and clear Johnson’s name. Their efforts spawned, just last year, an eponymous memorial project in Chattanooga aimed at promoting racial harmony.

      Reviewing other early 20th century cases, we also see examples of men whose principled insistence on affording disadvantaged defendants their rights ultimately helped them achieve high office. Two such heroes profiled in this book – Judge Frank Murphy of Detroit (see Chapter 10 on the 1925–26 Sweet trials) and police officer John Burns of Oahu (see Chapter 12 on the 1932–33 Massie trials) – deserve enormous credit for helping institute major policy changes toward a more inclusive and just society.

      By revisiting several high-stakes criminal trials of the early 20th century we can gain a better understanding of the extent to which cultural bias has permeated the fabric of our culture – and a better premise from which to move forward as a nation than the whitewashed history so many of us were taught in school. In One Man’s Freedom, Washington super lawyer Edward Bennett Williams described how the individual civil liberties we so cherish in the United States evolved in our criminal courtrooms, where the government often prosecutes “the weak and friendless, the scorned and degraded, or the nonconformist and the unorthodox.”¹⁰ Cases guaranteeing civil liberties emerged because so many innocents were wrongly convicted without such protections and too often paid with their lives. Mark Curriden, who co-authored an acclaimed book on the Ed Johnson case and its impact on state criminal defendants’ constitutional rights, restates Williams’ observation more graphically: “the liberties and prerogatives we so frequently take for granted were written in blood.”¹¹

      The lack of concern for minority defendants’ rights that characterized the swift rush to judgment in so many early century trials contrasted dramatically with the handling of the most widely watched trial of the late 20th century – that of African-American football legend O. J. Simpson. When the professional athlete turned actor was charged with the stabbing deaths of Simpson’s blonde ex-wife and her Caucasian friend Ronald Goldman, Simpson had the luxury to afford a Dream Team of lawyers to defend him.

      An estimated 100 million people followed some part of the marathon reality soap opera that prompted nightly analysis on the television news by legal experts hired to explain the intricacies of constitutional law and criminal procedure. Before a riveted audience of viewers around the world, Simpson’s lawyers claimed that their client was framed by the Los Angeles Police Department with evidence that clearly would have condemned to death a defendant lacking Simpson’s celebrity status and resources. When the long-awaited verdict was announced, Simpson was acquitted by the jury of ten women and two men, nine of whom were black. All viewers had the opportunity to be exposed to the same testimony, evidence and legal arguments. Yet posttrial polls revealed that more whites disagreed with the verdict exonerating Simpson than accepted it, while the vast majority of African-Americans interviewed shortly after the verdict issued endorsed his acquittal.¹² Today, looking back, more than half of the nation’s African-Americans believe Simpson was in fact guilty of murder.¹³

      In Lessons From the Trial: The People v. O.J. Simpson, Dream Team member Prof. Gerald Uelmen noted that “The most remarkable aspect of every ‘trial of the century’ . . . has been the insight it provides into the tenor of the times in which it occurred. It is as though each of these trials was responding to some public appetite or civic need of the era in which it took place.”¹⁴ Decades, sometimes even a century, later investigative journalists and historians have unearthed far more evidence of what really happened in the events that made banner headlines in the early 20th century.

      Back then, segregation of African-Americans was reinforced by rule of law. Other disfavored minorities often received similar treatment to the descendants of slaves. Police, prosecutors and judges were almost all white men, who also largely monopolized panels of a “jury of one’s peers.” Poor men of color accused of rape and murder were often executed with little regard for fair process – with or without a trial. Yet rapists and murderers with money might walk free, never so much as arrested. Even if prosecuted, the wealthy and privileged sometimes obtained startlingly lenient punishment – as Clarence Darrow engineered for four clients in Honolulu in 1933, three of whom were caught about to dump the body of their victim in the ocean, the fourth arrested while cleaning up the site of the killing.

      Politics and power routinely trumped the requirements of due process. Details that were overlooked, underreported or purposely distorted in times past can now be placed in the more balanced perspective that FBI Director James Comey suggested. Just after the November 2016 election, documentary filmmaker Stanley Nelson made an observation similar to Comey’s. As the acclaimed African-American director received a lifetime achievement award, he observed that the biggest reason for the bitter divide we see today is because “we have failed to tell the whole American story . . . creat[ing] a fear and a longing for a past that never existed.”¹⁵ So here, in this book, is a baker’s dozen of the most famous headliners of the early 20th century for us to reexamine in the rearview mirror – trials involving charges of murder, rape, kidnapping, class warfare, fraud on the public, evolution versus Creationism, and abuse of power.

      At the same time as prosecutors in these famous trials claimed to take the moral high ground, lynching remained tacitly condoned by the federal government. State legislatures monopolized by white men authorized involuntary sterilization of thousands of the poor, minorities and other groups presumed to have inferior genes. Politicians also incited their constituents to scorn “hyphenated-Americans.” Today, despite our nation of immigrants’ history as a melting pot, some politicians still gain traction fanning contempt for “the other.” Hate crimes are again on the rise. In 2009, then FBI Director Robert Mueller and former Homeland Security Secretary Janet Napolitano informed a Senate committee that they remained as concerned about “homegrown” terrorists as those from overseas.¹⁶

      In 2015, the Southern Poverty Law Center reported that a “dramatic resurgence” of hate groups dated from President Obama’s 2008 election.¹⁷ In its spring 2017 report it sounded even greater alarm at a “wave of hate crimes and other bias-related incidents that swept the country” following the 2016 election. The SPLC report attributed the dramatic increase in hate crimes to inclusion of white nationalists in setting the White House agenda by advisors apparently “set on rolling back decades of progress.” That objective was no secret. Former Ku Klux Klan leader David Duke boasted in writing that “our people played a HUGE role in electing Trump!” [emphasis in original].¹⁸

      Millions of Trump voters disagree with the objectives of the KKK and disavow racism. Many who voted for Hillary Clinton or other candidates harbor their own prejudices, whether conscious of them or not. There are also underlying truths to the dissatisfaction