(2) Scottsboro Boys (3) Trial Scene
Without Fear or Favor:
Judge James Edwin Horton and the Trial of the "Scottsboro Boys"
By Douglas O. Linder
This essay will appear in a forthcoming issue of the UMKC Law Review. The entire issue will be devoted to articles about some of America's most famous trials. Persons interested in receiving a copy of the issue should call or write the UMKC Law Review. The phone number of the Law Review is 816-235-1656.
The Tennessee River flows westward from Chattanooga, arcs through the eight northernmost counties of Alabama, then reenters Tennessee. In the early 1930's it was a free-flowing river, cutting south through the plateaus and Appalachian foothills of Jackson and Marshall counties before turning toward the cotton and cattle country of northwest Alabama. On its way out of the state, the Tennessee plunged 140 feet in thirty miles near Muscle Shoals, making navigation farther downriver impossible.
In the Alabama towns that dot the broad valley of the Tennessee--Stevenson, Paint Rock, Scottsboro, Decatur, Athens-- Depression Era drama unfolded. The case of "The Scottsboro Boys" launched and ended careers, wasted lives, divided America's left, created sectional strife, and fueled a fledgling civil rights movement. It also produced one southern hero: an obscure Alabama circuit judge was turned into one of the nation's most praised jurists.
Time, like the Tennessee, flows on. The heroism of Judge James Horton and the "Scottsboro Boys" trial that brought him fame have receded from public memory. The central characters of the legal battle are all dead. The two women whose accusation of rape against nine black teenagers started it all died in the early 1980's. The last of the nine "Scottsboro Boys" died in 1989. Only a few bit players--an International Labor Defense law clerk here, a national guardsman who transported defendants to the courthouse there--are left. Remodelers, developers, urban renewers, highway builders, and national franchisers have erased or buried most of the sets upon which the drama was staged. Accumulating events have shrunk the case to footnote status in history texts. The story of Judge Horton and the Scottsboro Boys should not be allowed to just fade away.
James Edwin Horton in 1857 settled on the Elk River, a tributary of the Tennessee angling southwest through Limestone County. Until the start of the Civil War, Horton operated a cotton and cattle farm with the help of several slaves. Serving as an aide-de-camp to General S. Donelson in the war, Horton met and wed the General's daughter, Emily, niece of former President Andrew Jackson. In 1878, James Edwin and Emily had a son, James Edwin Horton, Jr.1
On an evening fifty-five years later, Circuit Judge James Horton, Jr. was having dinner with his family in his antebellum home in central Athens, Limestone's county seat. Dinners in the Horton household were an opportunity to discuss events of the day. In early March of 1933, there were plenty of events to discuss. Would FDR succeed in reopening the banks? How would the repeal of Prohibition be implemented? What should be made of this new Nazi party that was shaking up Germany? Closer to home, there were rumors about plans to build dams on the Tennessee River. Then, of course, there was a decision due any day from Judge Hawkins in Scottsboro, fifty miles to the east of Athens, on the defense's motion for a change of venue in the case involving nine black teens charged with the gang rape of two white women. The case was back in Alabama for retrials after the United States Supreme Court ruled that the Scottsboro Boys' constitutional right to a competent defense had been denied in their trials two years earlier. 2
The ringing of their party line phone interrupted the Horton family dinner. The judge excused himself from the table. When he returned a few minutes later, he looked grim. The retrial of the Scottsboro Boys had been transferred to Decatur in neighboring Morgan County. He was to be the presiding judge.3
Paint Rock is a small town nestled in high foothills along the Chattanooga to Memphis line of the Southern Railroad. A posse of fifty men, armed with shotguns, rifles, and pistols, nervously lined both sides of the tracks near the Paint Rock station on March 25, 1931. It was a sunny day with a temperature of about sixty and a brisk wind. The men had gathered quickly, responding to the urgent calls of Deputy Sheriff Charlie Latham. Latham had orders from his boss, Sheriff M. L. Wann, to "capture every Negro on the train and bring them to Scottsboro." Wann told Latham, "I'm giving you authority to deputize every man you an find.” The cause of the excitement was a telephone call from the stationmaster in Stevenson, thirty-eight miles up the line, who reported that a group of white boys told him they had been thrown off the train by a "bunch of Negroes" and they wanted to "press charges against 'em." About two o'clock in the afternoon the sound of the slow-moving freight train that had pulled out of Chattanooga's railroad yards at 10:20 that morning could be heard from beyond a curve a quarter mile up the track. Members of the posse rushed on board the forty-two-car freight before it had pulled to a stop. Within ten minutes they had rounded up nine raggedly dressed black boys and, unexpectedly, two white women in overalls, Victoria Price and Ruby Bates. Climbing off a gondola car, the women first ran in the direction of the engine then, when approached by a crowd of men, turned and ran in the opposite direction only to be stopped by another part of the posse. The older of the women, Victoria Price, appeared on the verge of fainting, so Deputy Lantham instructed two men to take the women to the shade of a nearby sweet gum tree while he tied the nine boys together with a plow line to ready them for transport to Scottsboro on a flatbed truck. Twenty minutes after the train pulled into Paint Rock, Station Agent W. H. Hill asked Ruby Bates whether any of the Negroes had bothered them. Bates responded with the charge that would change forever the lives of the nine blacks. She told Hill that they had been raped.4
In the Scottsboro jail, the nine black youths found out that they faced more than just assault charges. A guard took them out of their cell and lined them up against a wall. The sheriff brought in Price and Bates. When he asked them to point to the boys that "had them," Price identified six as her attackers. Bates remained silent. A guard said, "If those six had Miss Price, it stands to reason that the other three had Miss Bates." The boys protested that they hadn?t even seen the two women until they reached Paint Rock. When one of the youths, Clarence Norris, called Price a liar, he was struck by a guard with a bayonet. The hand that Norris put up to shield his face was cut to the bone. “Nigger,” the guard yelled, “you damn well know how to talk about white women.” 5
As news of the mass arrest spread through Scottsboro and nearby towns, several hundred tobacco-chewing "crackers," mostly poor white farmers, gathered in the evening outside the decrepit two-story jail where the defendants were being held. Mob leaders threatened to break through the barricaded door if the sheriff refused to let them at the nine boys. Olen Montgomery, fifteen-years-old and nearly blind, cried as he listened to the threatening voices outside his cell window. One voice yelled, "Let these niggers out! If you don't, were coming in after them!" Another voice asked loudly, "Got enough rope, Hank?"Two deputies, ready to give they crowd what they wanted, manacled the boys and started to lead them towards the door of the jail when Sheriff Wann stopped them. Around four o'clock in the morning gunfire was heard around Scottsboro. The shooters were national guardsmen, called to the scene by Governor Benjamin Miller at the request of Sheriff Wann. They were firing to let the crowd know there would be no lynching that night.6
Sensational accounts of the alleged rape ran in local papers. On the day of the arrests, the Jackson County Sentinel, published in Scottsboro, went to press with a headline that read: "All Negroes Positively Identified by Girls and One White Boy Who Was Held Prisoner with Pistol and Knives While Nine Black Fiends Committed Revolting Crime." Sentinel editor P. W. Campbell reported that the two girls were in "a terrible condition mentally and physically after their unspeakable experience at the hands of the black brutes.” 7
Rapid-fire trials, beginning just twelve days after the arrests, gave locals little reason to think their initial view concerning the defendants' guilt was wrong. For three consecutive days, to four different juries, Victoria Price and Ruby Bates told the tale of their horror aboard the Chattanooga to Memphis freight: of knives held to their throats, of their legs being pinned down, of their clothes being torn off, of repeated penetration. “[They told us] they were going to take us north and make us their women or kill us," Price testified to the hushed courtroom. Dr. R. R. Bridges, a Scottsboro physician who examined the women shortly after the attack said he "found their vaginas were loaded with male sperm." A farmer who had been working in a hayloft above the train tracks testified that he "saw a bunch of negroes take charge of the two girls." On cross-examination, the farmer assured the jury "I saw 'em do plenty." Perhaps the most incriminating evidence came from the defendants themselves. Thirteen-year-old Roy Wright, called by the defense, said "I saw all of them have intercourse; I saw that with my own eyes." Haywood Patterson, nineteen, saw "all but three of those Negroes"--all but his three friends--"ravish that girl." Clarence Norris claimed he was innocent, but as for the others: "They all raped her, every one of them." The case against the Scottsboro Boys seemed to be, as a Scottsboro editor predicted, "so conclusive as to be almost perfect.” 8
Few people bothered to speculate if the evidence might have looked different had the defendants been given better representation than the half-hearted defense provided by their attorneys, Stephen Roddy and Milo Moody. Roddy was an out-of-state real estate attorney who, on the first day of trial, "was so stewed he could scarcely walk straight," while sixty-nine-year-old Moody was a "doddering, extremely unreliable, senile individual" who was "losing whatever ability he once had." It didn't help that Roddy and Moody had less than a half-hour to interview their clients before the trials began. The defense attorneys offered no cross-examination of the state's medical evidence, made nothing of differences between the accounts of Price and Bates, and presented no closing argument.9
Four juries, trying the defendants two or three at a time, quickly concluded that the Scottsboro Boys were guilty. The verdict of the first jury was announced to the shouts and cheers of a crowd of fifteen hundred gathered on the courthouse lawn as the second trial was in progress. On the night of the first day's trials, a brass band on the courthouse square played--loud enough for the boys to hear from behind the flat, checkerboard style bars of the jail windows--"There'll Be a Hot Time in the Old Town Tonight." Only in one of the four juries was there real disagreement. Eleven men on the jury trying thirteen-year-old Roy Wright voted for death, while one held out for life in prison on account of the boy's tender age.10
The announcement that Judge James Horton would preside at the retrial of the Scottsboro Boys was received favorably. The Limestone Democrat, published in Horton's hometown of Athens, praised his "unusually equable nature, great legal ability and fairness." Horton would give the "foreign defense" no reason to complain, wrote the paper's editor. The lead prosecutor, Alabama Attorney General Thomas Knight, also expressed pleasure with the choice, telling the press that Horton would "make an excellent judge.”11
There was little in Judge Horton's background to give Knight cause for concern. As a state representative and senator for ten years, Horton had devoted himself to election reform and road construction, not contentious social issues. As one observer noted, Horton was not "very notably social-minded," and was "liberal only in the sense of putting the rules of the game above the desire to win." He held many of the beliefs one would expect of a large landowner, politician, and planter in a small town in rural South. He accepted, as did the vast majority of white Alabamans in 1933, the rightness of segregation. He used the word "nigger"--though never as a description of blacks generally, but rather as a label for those blacks, who if their skin color was white, might be called "poor white trash.”12
Judge Horton lived with his wife Anna, his nineteen-year-old stepson, and his two young sons in a six-room home built in 1849 by the great-great uncle of his wife. The white two-story home at 200 Hobbs Street, with its black-shuttered small-paned windows and colonnaded porches, stood at the end of a walkway lined with twelve mountain cedars. During the Civil War, it was the home of occupying Union officers. On a closet door in a corner room was an inscription--still visible today--left by the Yankees: "Three cheers for Lincoln--Nov. 7, 1864.” 13
From his residence, Judge Horton had only a one block walk down Marion Street to his office on the second floor of the Limestone County Courthouse. Since 1922, he had served as circuit judge for the eighth district, comprising four counties in north central Alabama. He performed his job with characteristic diligence, beginning court promptly at 8:30 A. M., and keeping the court in session until at least 5:30, and often into the early evening. His courtroom demeanor was relaxed and casual. He wrote better than he spoke. His thoughts often seemed to run ahead of his words, forcing him to back up to set things right. Attorneys who tried cases before Judge Horton respected him. He was, above all, fair.14
Those who knew Judge Horton described his mother as the most important person in his life. The two were unusually close. With no formal schooling until the age of eight or nine and being a rather sickly child, Horton depended to a great extent upon his mother's nurturing. He valued what she valued: being decent, doing one's duty, respecting truth.15
It was with those values very much in mind that Horton approached the upcoming retrial of the Scottsboro Boys. He resolved--despite his belief that the defendants were most likely guilty--to do everything he could to present a trial that would do the South proud. Horton knew that the two years since the first trials had done little to reduce the level of emotions surrounding the case. Although he had never done so before, Horton decided to carry a loaded pistol in his car as he travelled the fifteen miles to Decature each day of the trial. It was wise to be ready for anything.16
The Decatur Daily welcomed the arrival of attorneys and the national press. An editorial urged townsfolk to "Let the world see Decatur and Morgan County as they really are, a fine little city, a splendid county and a citizenship without peer." Samuel Liebowitz, the prominent New York criminal lawyer hired by the Communist Party to lead the defense, arrived in the town of 18,000 on the south bank of the Tennessee to announce himself particularly impressed "with the city's wide, clean streets." Eastern reporters, surprised by the balmy early spring weather, inquired as to where they might purchase lightweight suits. Some trial visitors squeezed in a round of golf at the Valley Country Club. Others were pleased to discover that they could equip themselves "for a fishing jaunt for the sum total of forty cents.” 17
Despite Liebowitz's professed belief that should he prove the rape allegations of Price and Bates false there would not be "a red-blooded, upstanding citizen below the Mason-Dixon Line who will not pray with their heart and soul" for acquittal, he could not have been happy with decision to move the trial to Decatur. The defense had asked for a change of venue to Birmingham, but instead was sent to a rural community fifty miles from the birthplace of the Ku Klux Klan and in a county contiguous to the home county of the two accusers. With its once-busy silk mills, railroad shops, and tire factory, Decatur had drawn many young men from the farmlands surrounding towns such as Scottsboro. Residents expressed to visiting reporters a willingness to give the Scottsboro Boys a fair trial, but at the same time warned they didn't care to hear any "arguments about race equality or the right of Negroes to serve on juries.” The Scottsboro Boys had one additional reason to be concerned about the choice of Decatur. They would be housed during the trial fifty feet from the courthouse in the unsanitary Morgan County jail, a crumbling brick structure which two years earlier had been condemned as unfit for inhabitation by white prisoners. Liebowitz called the facility “hardly fit for pigs.” 18
On Monday, March 27, 1933, the trial of Haywood Patterson, the first of the Scottsboro Boys to be retried, opened in the Morgan County Courthouse. Two prominent statues greeted visitors to the two-story yellow-brick building. One was a blindfolded Lady Justice, standing on a limestone pedestal and holding high her balanced scales. The other was a towering white stone monument featuring a sculpture of a young confederate soldier and the inscription below: "Lest We Forget--This Monument is erected to the memory of those who offered their lives for a just cause, the defense of states rights.”19
A capacity crowd of 425, including one hundred blacks in the section reserved for Negroes, filled the spacious second-floor courtroom. Soldiers with fixed bayonets guarded the stairs. About 200 people pressed together at a barrier near the door of the courtroom, craning to get a glimpse of attorneys or the hundred or so reporters filling their assigned seats at the press tables. In the downstairs corridors, crowds milled restlessly among the big brass cuspidors sitting on mats encircled with tobacco juice. Hundreds of others lounged on the courthouse lawn under budding trees, talking and enjoying the warm, partly cloudy day. Black youths amused themselves by performing gymnastic stunts in an adjacent cowpasture. Plainclothes members of a thirty-man contingent of the National Guard sent to Decatur circulated among the crowd, looking and listening for signs of plotted violence. Shortly before 2 P. M., a patrol wagon followed and preceded by two carloads of deputy sheriffs armed with automatic shotguns arrived at the courthouse. The nine Scottsboro Boys, each handcuffed and eight of the nine wearing the blue denim overalls and jumpers that were the uniforms of Negro prisoners, were led into the courtroom. The ninth boy, thirteen-year-old Roy Wright—having escaped conviction in the first trials—did not wear prison denims and instead, according to a reporter for the Birmingham News, was “dressed up like a Georgia gigolo.” Deputies unshackled the boys, then positioned them in chairs lined up along the wall behind their attorneys. A national guardsmen flanked each end of their row of chairs.20
As spectators sipped on soda water and the defendants chatted among themselves, Judge Horton called court to order. He settled back in his chair behind the high bench as defense attorney Samuel Liebowitz, called by some "the next Clarence Darrow" because of his remarkable record of seventy-seven acquittals in seventy-eight trials, gave a speech expressing faith in the "God fearing people of Decatur and Morgan County." With diplomacy out of the way, the heavyset, oval-headed, balding, thirty-seven-year-old lawyer from New York asked that the indictment against his clients be quashed because of the systematic exclusion of Negroes from county grand jury rolls. "Prove it,' Attorney General Thomas Knight challenged. Liebowitz's first witness, J. S. Benson, editor of a Scottsboro weekly called The Progressive Age, fidgeted uncomfortably as he admitted that he had not seen or heard of Negro sitting as a juror. "Never heard of one--never noticed one," said Benson, smiling apologetically at the prosecution table. When asked why he thought blacks were unfit to serve as jurors, Benson replied, "They'll all steal." For the rest of the afternoon and the next morning, witnesses ranging from jury commissioners to seemingly well-qualified middle-aged black citizens were called to demonstrate what everyone already knew: that no black in recent history had served on a Jackson county jury. More than once Judge Horton had to intervene as duelling attorneys accused each other of bullying witnesses or argued over such questions as whether a fifty-five-year-old black plasterer, John Sandford, could be addressed as "John.” 21
Liebowitz knew that Judge Horton would deny his motion. No trial court judge was likely to ignore Alabama Supreme Court decisions upholding the lawfulness of the state's jury-selection system. The defense attorney was laying the groundwork for appeal, should a jury make one necessary. Thus it was with good humor that Liebowitz heard Horton announce after the noon recess on the second day of trial, so abruptly that many in the press row missed it, "the motion is denied.” 22
Horton called the case: State of Alabama versus Haywood Patterson. Patterson, who had listened apathetically to the arguments about the indictments, stood at the calling of his name. He looked first at his lawyers, then to the judge. He said nothing. His eyes continue to roll from Liebowitz to Horton as the judge asked the defense how it pleaded. “We plead not guilty to the charge,” Liebowitz announced. Towering Sheriff Bud Davis carried into the courtroom a black tin box containing the name of potential jurors. The Sheriff shook the box vigorously and he and the judge began to draw names. Liebowitz rose to make to make his next motion.23
Liebowitz argued that the Morgan County jury venire suffered from the same constitutional defect as the grand jury that issued the indictments: blacks were again systematically excluded. With jury commissioner Arthur Tidwell on the stand, Liebowitz demanded production of the county jury roll. Judge Horton, over the State’s objections, ordered that the roll be produced. Sheriff Davis, stooping under the weight of his burden, brought a huge loose-leaf volume to the front of the courtroom. "Now isn't it a fact that all the names written in the book are the names of white citizens?" Liebowitz asked. "I don't know," replied Tidwell, darting a puzzled look at the prosecutor, then the judge. "Do you mean for that to be an honest answer?" shouted Liebowitz. Color rising in his cheeks, Tidwell responded, "Do you mean to say I would swear falsely?" "I don't mean to say anything, I'm asking you a question," snapped the defense attorney. Judge Horton's calm voice stilled the brewing storm, but not before spectators had drawn their own harsh conclusions about the propriety of Liebowitz's questioning. Raymond Daniell, covering the trial for the New York Times noted the "hard, unsympathetic lines" of "row upon row of rough-faced, unshaven countrymen in blue denim overalls and cowhide boots as they chewed their tobacco meditatively" and listened to a New York attorney challenge the veracity of their county officials. Leaving court for the day, Liebowitz declined an offer of a lift from Captain Burleson, commander of the National Guard forces on duty for the trial. When he reached his temporary residence at the Cornellian Court, he found five guardsmen patrolling in front of the building with fixed bayonets. Whispered threats against his life had been overheard. By the end of the day, the New York defense attorney would have in his possession half a dozen threatening letters, warning him against further attacks on the customs of Alabama and suggesting, in the strongest possible terms, that he overstayed his welcome. The trials of the Scottsboro Boys stood in danger of becoming not a forum for determining their guilt or innocence, but a referendum on the tactics of their attorneys.24
The tension in the courtroom was obvious the next day until Judge Horton announced “I am going to deny the motion of the defense." Without sounds or murmurs, but with relieved expressions, spectators relaxed in their seats as members of the all-white, all-male venire filed into the courtroom and took places inside the railed enclosure where defendant and counsel sat. The mood changed again when Judge Horton, speaking slowly and solemnly, took the unusual step of addressing potential jurors before the selection process began. It struck observers as a heartfelt call to duty:
I have been judge of your court for a number of years and I feel I can say, with a degree of gratification, to the jurors of this county that so far as I have been able to see, all the jurors who have ever sat before me have tried each case as far as they were able according to the law and the evidence, and to render a true verdict in every case. I have every confidence this jury will do the same.
I have seen jurors with wet eyes and I have heard foremen read verdicts with a voice that quavered***Never have I known of a juror who flinched at performing his duty, wherever it may lie.
So far as the law is concerned, it knows neither native nor alien, Jew or Gentile, black or white. This case is no different than any other. We have only to do our duty without fear or favor.
It would be a blot on the men and women of this country, a blot on all of you, if you were to let any act of yours mar the course of justice. I trust you will not show by discourtesy or violence anything but a proper regard for law and order. Your fellow-citizens would bow their heads in shame if any any act of yours were to interrupt the course of justice.
If any of you are tempted, remember that they would consider it a disgrace and a shame upon the fair name of this and the other counties of this State to have anything happen here to reflect upon the administration of justice in our courts. I expect from you proper restraint and a fair decision according to the law and the evidence. We must be true to ourselves, and if we be true to ourselves we can't be false to any man.
Standing with upraised hands, eighty-four farmers, artisans, and tradesmen swore to administer justice without fear or favor, then shuffled back to their seats in the crowded courtroom to await their questioning. A few hours later at 7 P. M. on Friday, as March made its lamb-like exit from Northern Alabama, the chosen twelve were led off to their temporary home in the Lyons Hotel.25
There was much to do and talk about over the weekend before Monday’s opening statements. Members of the sequestered jury tried to gain the unanimous support necessary for a Saturday fishing trip, knowing that their Sunday schedule included two church services. Local reporters commented on the new type of electric flash being used by eastern photographers covering the trial, marveling that it was "scarcely more noticeable than an electric spark, completely odorless and very nearly noiseless." A New York reporter, taken with southern brunswick stew, was observed making inquiries as to what local eateries might offer the exotic concoction. Townspeople favoring a more physical form of combat than that provided by the trial discussed next week's big event at Decatur's Martin Arena: a wrestling match featuring "The Horrendous Hoosier" and the great local favorite, T. R. Zan, the Ape Man. At the Princess Theater, Decaturans could catch a double-feature consisting of "The King's Vacation" and Laurel and Hardy's latest comedy, "Their First Mistake." Meanwhile, as guards continued to patrol outside his building, Samuel Liebowitz plotted cross-examination of the prosecution's crucial first witness, Victoria Price.26
Attorney General Thomas Knight complained to a friend that his troubles with Judge Horton began the moment the defense "told him he looked like Abraham Lincoln." Everyone, it seemed, began making the comparison. The New York Times described him as "Lincolnesque." The defendant, Haywood Patterson, said that the judge "looked like pictures of Abe Lincoln." Newspaper readers such as Mrs. George Beatty in Stamford, Connecticut also made the connection. In a letter to the judge, Beatty wrote, "Lincoln freed the slaves, your picture resembles Lincoln so I know you must have a kind heart." In fact, although both men were tall, lanky, and rawboned, the resemblance was not perfect. Horton, at six-foot-two, was shorter than the former President, beardless, and occasionally wore horn-rimmed glasses.27
It was clear from the first day of the trial that Horton shared the attitudes of liberal or moderate white Alabamans on issues of race. When two black reporters approached Horton to thank him for his help in arranging seats for them in the press row, Horton greeted them warmly and, "after a slight hesitation, extended his hand." Local witnesses to the small gesture were noted to have exhibited discomfort.28
Horton revealed his determination to protect the rights of the accused in his strong response to an incident that occurred the second day of trial. He interrupted testimony to bring into court three youths who had been distributing a pamphlet called "The Inside Story of the Infamous Scottsboro Trials," a hate-filled attack on the character of the nine blacks written by a Huntsville reporter. Although he did not punish the boys, Horton said he "will confiscate these pamphlets, and if anybody else sells them, whether he be young, or old, the Court will deal with them as it sees fit." Another indication of Horton's desire for an impartial trial came early in the Liebowitz's questioning of prospective jurors. One member of the venire, postmaster Fred Morgan, stood up, waved his arms, and complained, "Us jurors in Morgan County are not accustomed to taking the charge from the defendant's attorney and we don't like it." Surprised and peering over the top of his glasses, the judge said sternly, "There is nothing improper about any of this. Please take your seat again.” 29
In 1933 in Alabama, a "moderate" on race was a person who believed that segregation was right, but that it must be enforced with decency and fairness. Typical of those holding that view was H. F. Reese of Selma, who wrote Horton to suggest that "control of the government by the white people carries with it a great responsibility, that the inferior race shall have the protection of the courts in respect to their lives, liberty, and property." Horton, who also believed in the rightness of segregation, agreed that whites had a great responsibility to afford blacks the protection of the courts. If there was any doubt about that after the first week of the Scottsboro Boys trial, there was none whatsoever by the end of the second week. 30
The largest crowd of the trial was on hand on Monday, April 2, for the start of the prosecution's case. The defendant, Haywood Patterson, shuffled into court grinning broadly and wearing smoked glasses. Blacks in the audience, mostly dressed "in their Sunday best," nudged each other as the wooly-haired, ebony-skinned Patterson passed by. The smoke-filled courtroom contained only two women, one a writer for The New Republic and the other a sister of one of the three defense attorneys. All eyes in the crowd turned to Victoria Price when she entered the courtroom wearing a plain black dress and a blue straw hat. She looked older than her twenty-seven years, though she claimed to be four years younger. She had a hard, bitter face.31
Price crossed and uncrossed her legs and fingered a string of glass beads around her neck as she answered questions about events aboard the Southern Railroad freight on the early afternoon of March 25, 1931. The direct examination lasted only sixteen minutes. Much of the vivid detail provided in the trials in Scottsboro two years earlier was gone. Prosecutors simply covered the bases necessary to prove their case while limiting the number of contradictions Liebowitz would be able to expose when he began his cross. “Was the defendant one of those who ravished you?” Solicitor H. G. Bailey asked. Thrusting her finger at Patterson, Price answered, “Yes, absolutely he was.” She described the Negro youths leaping into the gravel-filled gondola car where she and Bates sat. She stated that penetration had occurred. The only dramatic flair in the brief direct examination came when Bailey pulled a torn pair of cotton panties from his briefcase and asked, "Are these the step-ins you had on that occasion?" Liebowitz leaped to his feet objecting, "This is the first time in two years such step-ins have ever been shown in a court of justice.' A grinning Attorney General Knight replied, 'Well, they are here now" and tossed them into the lap of a surprised juror. When the courtroom exploded with laughter, Horton gaveled for quiet. "The Court has the right to clear the courtroom," the judge sternly announced, "and if necessary to keep order, the Court will not hesitate to do it.” 32
In preparation for his cross examination of Victoria Price, Samuel Liebowitz had the Lionel Corporation produce a thirty-two foot long scale model of the freight train that made the run from Chattanooga to Paint Rock. The model, nicknamed "the Scottsboro Special" by the defense, stretched along a table in front of the witness stand. Liebowitz asked Price whether the train in front of her looked like the one she rode on two years earlier. "That is not the train I was on," she snapped. "It was bigger, lots bigger, that is a toy.”33
For over two hours, Liebowitz and Price duelled. Price frequently spat out her answers, eyes flashing and lips drawn tight. She was evasive, sarcastic, visibly fighting at times to control her temper. She would often respond to questions with "I won't say" or "I can't remember." To other questions she disliked, she would say dismissively, "That's some of Ruby's dope." Once, when Liebowitz pointed out a contradiction in her testimony, an exasperated Price said: “One thing I will never forget is that one setting there raped me," pointing at Patterson.34
How old was she? "I can't be positive." Was her back bleeding from being pressed against the rough gravel? "I couldn't say." Was she crying? "To the best of my judgment, I was crying." Were her private parts torn? "I don't know whether I was; I felt like I was." How many stories did the Chattanooga boarding house, in which she claimed to have stayed, have? "I never did pay any attention to that." Liebowitz would later call Price one of the toughest witnesses he had ever cross-examined.35
Called back to the stand by the prosecution, Price ended her day in court with a never-before-made inflammatory charge. She said, "One of them pulled out his private parts and says, 'when I put this in you and pull it out, you will have a negro baby.'" Raymond Daniell, reporting in the New York Times, described Price as giving her final testimony "without a flutter of an eyelash and in a voice that carried to the furthest corner of the courtroom." Liebowitz, shaking with anger, stared at Price. Sarcastically, the defense attorney asked,"You are not embarrassed before this huge crowd when you utter these words?" "In four different trials in Scottsboro," Liebowitz inquired, "did you ever say anything like that?”36
There were two very different reactions to Price's day on the stand. Some reporters, such as Mary Heaton Vorse of The New Republic, were struck by Price's "appalling hardness." Vorse saw Price as "full of hate and venom," while Liebowitz's questioning was "gentle" and "satirical." She marveled at the defense attorney's mastery of the facts of Price's tawdry life--her sexual encounters, her police records, her mispent days. "He seems to know as much as God," Vorse wrote. She described the proceeding as "more like a dissection of a life than a cross-questioning.”37
Most in the audience, however, could not forgive Liebowitz for what he, with his patient scalpel, revealed about Victoria Price. Yes, Victoria Price was not the model of Southern womanhood. Yes, Victoria Price may be a hobo, a drunk, a prostitute, a liar, "but we don't want a Jewish lawyer from New York, especially one hired by the Communist Party, treating our women-- even our poor, white trash--like this." One spectator in the audience was overheard whispering to another, "It'll be a wonder if he ever leaves town alive." An editorial in the Sylacauga News may have spoke for many local residents: "One possessed of that old Southern chivalry cannot read the trial now in progress in Decatur and publish an opinion and keep within the law. Liebowitz's brutal cross-examination makes one feel like reaching for his gun while his blood boils to the nth degree.”38
For Judge Horton, the testimony of Victoria Price meant the beginning of doubts about his assumption that the Scottsboro Boys were probably guilty. Price, he concluded, was a woman of low character--the type of woman who very well might make false accusations for ulterior purposes such as avoiding a vagrancy charge. Her testimony, he thought, was evasive and contradictory. Moreover, the story seemed implausible: a gang rape on a sunny day in a gondola car filled with chert to within a foot-and-a-half of the top as the train travels through Fackler, Hollywood, Scottsboro, Larkinsville, Lin Rock and Woodville, slowing up at several of those places. Then, just as the train pulls into Paint Rock, the rapists cease and the overalls are drawn up and fastened just as the posse sight them. The semen in her vagina, he thought, might easily be that of Jack Tiller, with whom she most likely had sex in the Huntsville railroad yards the day before the alleged attack. It wasn't a perfect case.39
From among the dozens of letters that poured into his office, there was evidence that other Alabamans, especially women, suspected that the Scottsboro Boys might be innocent. Writing from Florence, Alabama, Mrs. Jim Weakley told the judge:
"I can't believe those negroes are guilty. It is impossible for a woman to be attacked nine times and survive the ordeal. I am a woman myself and put myself in their places. God will bless you and yours if you do not sentence them to death. Please do not show this letter to anyone. It is written to you alone--a judge! hoping that I may help someone."40
Judge Horton saw Victoria Price as "a woman of the underworld," a world of ten-cents-an- hour jobs, hobo jungles, booze, rough language, and casual sex wherever one could find it.
Price worked, the five or six days a month when work was available in 1931, in Margaret Mill, the oldest and least profitable of the seven cotton mills in Huntsville. She earned $1.20 a day as a spinner. She supplemented her meager income working as a prostitute. Huntsville Deputy Sheriff Walter Sanders didn't bother Price, though he knew her trade, because she "just took men quiet-like" and "didn't go rarin' and cuttin' up in public." Millworkers "just about have to be" prostitutes, a social worker explained, because "nobody could live on the wages they make. I'm beginning to forget how decent people behave, I've been messing around with venereal disease and starvation and unemployment so long.”41
Segregation did not extend to the very bottom of the South's economic ladder. Price lived with her mother in an unpainted shack in the worst section of Huntsville. Many of her neighbors were black. She played with blacks as a child, got drunk with them as a teenager, and slept with them as an adult. It was often said that whites who worked in the mills were "as bad as the niggers.”
For people like Victoria Price, the neat, well-mannered South had nothing to offer. In her dreary world, casual sex and riding freights were appealing escapes from the drudgery and dreariness of daily life.42
Judge Horton believed that when women of the underworld came before the court "it is the duty of the jury to consider that fact. Not that the law would trample them down.” Horton could imagine what another Scottsboro judge apparently could not: that a white woman might voluntarily have sex with a black man.43
When James Horton left Athens in his late teens, it was to enroll in medical studies at Vanderbilt. His father wanted him to be a doctor, and Horton was anxious to please. A year later, however, he decided his true interests lay elsewhere and he transferred to Cumberland University in Lebanon, Tennessee, where he began his study of law that would lead to his degree in 1897. His early exposure to medical studies, however, had given him an understanding of how critical medical evidence could be to evaluating the veracity of a rape charge. No aspect of the case, it turned out, was more important to his final view of the case.44
Dr. R. R. Bridges was one of two Scottsboro physicians who examined Price and Bates less than two hours after their alleged attack. Bridges testified that he found "lots" of "male germs" in the vaginas of Victoria Price and Ruby Bates, but that the spermatozoa were "non-motile." As Judge Horton leaned forward across his high bench to hear the elderly doctor's testimony, Dr. Bridges said he "couldn't swear" to the exact time of the intercourse. Bridges said that it was very unusual not to find motile semen two hours after a multiple rape. He testified that on the afternoon of the alleged attack, the womens' pulses were normal and they appeared calm. He said that he saw no blood. Price, he noted, "seemed a bit cross with us and didn't want to cooperate." When he examined the women again the next morning, their pulses were elevated and they were 'crying and nervous and hysterical." Alabama papers, with few if any exceptions, deemed the doctor's testimony unprintable.45
The next scheduled prosecution witness was Dr. Marvin Lynch, the second Scottsboro doctor who had examined Price and Bates. Attorney General Knight asked to confer privately with Judge Horton. Knight told Horton he wished to excuse Lynch from testifying because his statement would only be a repetition of what Dr. Bridges had already said. Horton agreed. When the attorneys returned to the courtroom, Lynch asked the judge if they could talk--very privately. The two moved into a restroom and, with a bailiff guarding the door, they talked. Lynch told the judge that his testimony would not have been repetitive--that he was convinced the women were lying. Horton, stunned, asked, "My God, Doctor, is this whole thing a horrible mistake?" Lynch replied that he had told the women they had not been raped "and they just laughed at me.' Horton told the young doctor that he must do his duty and testify. "Judge, God knows I want to, but I can't." Lynch was only four years out of medical school with a new and still growing practice in Scottsboro. "If I testified for those boys I'd never be able to go back to Jackson County." Horton withdrew his demand that Lynch testify. He did not want to ruin the career of a young man who acted courageously in coming forward at all. The state's case was looking weak. He thought that the jury would do the right thing anyway. Horton's doubts had turned to a near certain belief that the Scottsboro Boys stood wrongly accused.46
Concern shifted from protection of the Scottsboro Boys to protection of their chief defender, Samuel Liebowitz. The first line of defense against lawbreakers was a fire engine with a high-pressure hose. If that failed to discourage violence, tear gas was next. As a last resort, shotgun rifles and even machine guns would be used. Captain Joe Burleson, commander of the National Guard troops stationed in Decatur, promised Horton that the defendants and their attorneys would be protected "so long as we have a piece of ammunition or a man alive.”47
A drawbridge was all that was necessary to discourage the first serious threat. Burleson learned through informants that a carload of people was coming to Decatur from Huntsville and Scottsboro to "take care of Liebowitz." To get to town, they would have to cross over a drawbridge on the Tennessee River. Burleson ordered the bridge held in the open position. "When they realized that we were doing this to keep them out, they left and we never heard any more from them," Burleson later recalled.48
On the night after Liebowitz’s tough cross-examination of Price, another potential threat to Liebowitz surfaced. A meeting in a Decatur lodge hall, attended by about two hundred persons--including one undercover officer--, was called to "protest the manner in which Mr. Liebowitz had examined the state's witnesses." Several people in the audience frankly advocated violence.49
The next day, one of the Scottsboro Boys was on the witness stand when Judge Horton began a whispered consultation with Burleson and Knight. Burleson told Horton of the potential threat of mob violence against Liebowitz or his clients. One possible strategy, according to Burleson's informant, was to start trouble at Liebowitz's apartment to draw guards away from Decatur's ricketty jail. Horton ordered the proceedings to a halt at 10:30 and sent the jury out of the courtroom. For the first time since the trial began, the judge raised his normally soft voice. "This Court wishes to make an announcement," Horton began.50
Any man on the outside who has not heard the testimony, and who would try the case from rumor, without hearing it, has no right to say whether or not they are guilty or innocent, and whether or not this jury should turn them loose or not turn them loose.
His voice quivering with emotion, he then delivered his warning in phrases that shot from his mouth like the bullets he promised to lynchers:
I want it to be known that these prisoners are under the protection of this court***This court intends to protect these prisoners, and any other persons engaged in this trial. Any man or group of men that attempts to take charge outside of the law, are not only disobedient to the law, but are citizens unworthy of the protection of the State of Alabama, and unworthy of the citizenship which they enjoy. I say this much, that the man who would engage in anything that would cause the death of any of these prisoners is not only a murderer, but a cowardly murderer, and a man whom we should look down upon with all the contempt in our being***The soldiers here and the Sheriffs here are expected to defend with their lives these prisoners, if they must do it. Listen gentlemen, you have the authority of this court, and this court is speaking with authority. The man who attempts it may expect that his own life be forfeited, or the guards that guard them must forfeit their lives.
I am speaking with feeling, and I know it, because I am feeling it. I absolutely have no patience with mob spirit, and that spirit that would charge the guilt or innocence of any being without knowing of their guilt or innocence. Your very civilization depends upon the carrying out of your laws in an orderly manner. I am here listening to this case trying to sift the truth or not the truth of it, and I am going to strengthen that guard if necessary, and I am going to let everyone know--and I believe these boys understand--that you have got to kill them before you get these prisoners. That is understood, and they have told me they would, and they will do it.
So far as I am concerned I believe I am as gentle as any man in the world; I don't believe I would harm anyone wrongfully, but when it comes to a question of right and wrong, when it comes to the very civilization, men no matter how quiet they are, or how peaceful they are, there comes a time when they must take a stand either right or wrong. Now, gentlemen I want that understood, and if there is any meeting in this town where such matters are discussed, where such thoughts are brought forward, the men that attend such a meeting should be ashamed of themselves; they are unworthy citizens of your town, and the good people of this town look down on them.
Now gentlemen I have spoken straight words. I have spoken harsh words. But every word is true, and I hope we will have no more of any such conduct. Let the jury return.
Immediately after Horton’s warning, National Guard details doubled both inside the courtroom and out. At the end of the days proceedings, Horton walked through his nearly empty courtroom, stopping to shake hands with a Negro friend. A reporter asked the judge what prompted his warning. Horton replied, “I have some private information on things—I can’t discuss it.” Haywood Patterson years later recalled, "Judge Horton, he headed off a massacre in Decatur that day." Others believed that the rumors that prompted the warning were without foundation. A Decatur reporter joked of “phantom mobs.” What is clear is that after the warning there was no violence.51
Anti-semites and white racists were not the only security concern. Threatening and worrisome letters had been sent to Horton by defense partisans. From Savannah came a scrawled note reading, "Now that you have heard the truth you had better turn those negroes loose or you won't be so healthy. We will kill you." From Chicago came a letter warning of dire consequences should there be a conviction, "When these Boys are dead within six months your state will lose 500 lives. All of them shall be of your race. The white race only. Please watch my words.” 52
The great mystery during the trial and the days preceeding was the whereabouts of nineteen-year-old Ruby Bates. She had been missing from her Huntsville home since February. The defense and prosecution traded charges and countercharges about her disappearance.
Over four days of testimony, the defense had presented dozens of witnesses including five of the nine Scottsboro Boys. Haywood Patterson had stood up well as Knight--for over an hour--shouted, shook his finger at, and ran back and forth in front of, the defendant. Reminding the jury of Patterson’s conviction in the 1931, Knight asked, “You were tried at Scottsboro?” Patterson shot back: “I was framed at Scottsboro.” Flushed with anger, Knight demanded to know “who told you to say that?” “I told myself to say it,” replied Patterson. 53
Shortly after noon on Thursday, April 6, the defense rested its case "with reservations.' Samuel Liebowitz had barely taken his seat when he was handed a message. Liebowitz approached the bench and a whispered conversation ensued. Horton announced to the visibly excited courtroom that there would be a short recess. Less than ten minutes later, Liebowitz called Ruby Bates to the witness stand. The crowd gasped. Consternation was apparent in the faces of prosecutors. Judge Horton left the bench and stood in the railed enclosure. Everyone turned and looked as a bayonet-carrying guard opened the back doors of the courtroom. Through the doors came a trim, girlish figure with a dark complexion, in stylish clothes, eyes downcast. 54
From an anteroom Victoria Price, panting with anger and excitement, emerged to be identified by the surprise defense witness. For several minutes the two women, whose lives over the past two years had taken very different turns, stood glaring at each other. Attorney General Knight moved between Price and Bates. He cautioned the State's main witness to "keep your temper." Price was led from the courtroom by a guard. Outside, she would ask anyone who would listen: 'Can you imagine her a-lying so?” 55
Asked by Liebowitz whether she or Price had been raped aboard the Chattanooga to Memphis freight, Bates replied, "No sir.” Why did she lie? “I told it just like Victoria did because she said we might have to stay in jail if we did not frame up a story after crossing a state line with men." Bates added that Price said she “didn’t care if all the Negroes in Alabama were put in jail.” Did she have intercourse in the Huntsville railroad yards with a hobo named Lester Carter two nights before the alleged attack, Liebowitz asked. "I certainly did,' Bates answered. At the same time was Victoria Price having intercourse with Jack Tiller? 'Yes sir.' Did she spend the night before the attack in a Chattanooga boarding house, as Price had claimed? "No sir." Where did she spend the night, Liebowitz asked. "I think it is called Hobo Swamp." Bates said she had been in New York in the weeks before the trial, where she visited the Reverand Harry Emerson Fosdick. Fosdick, she testified, had urged her to return to Alabama and tell the truth about the Scottsboro Boys.56
After Liebowitz finished his fifteen-minute direct examination, Knight walked toward the witness stand. He stared at Bates, who sat with downcast eyes. The first thing Attorney General wanted to know was where Bates got her stylish coat. Next he asked about her hat. Then he asked about her shoes. "Who was the beneficent donor?" he asked sarcastically. Knight's interest in Bates' dress was obvious. He hoped jurors would conclude that her new story was bought with defense money. Knight asked Bates whether he had told her, prior to the first trials, that he did "not want to burn any persons that wasn't guilty" and that he "would punish anyone" who made Bates "swear falsely." "Yes sir," Bates answered.57
Spectators openly laughed at the courtroom performance of Ruby Bates. Liebowitz complained about "the snickering and laughing," about "rooters for the blood of this Negro." Horton sternly warned spectators that anyone who could not control himself would be removed from the courtroom.58
Judge Horton watched Bates testify from a chair below the bench where he sat for most of the trial. He wanted to look the witness in the eyes as she spoke. What he saw did not impress him. He thought "her effort to bring in some distinguished divines was mere stage-play." Her falsities were "obvious." Her testimony was worthy of "little credit." Bates "was the pupil and follower" of Price, "the teacher and leader." All Bates' testimony did was add slight new confirmation to what Horton already knew.59
In the era before television, trials were a more important source of entertainment than they are today. Oratory was a more valued art. The crowd in the Morgan County courtroom eagerly anticipated the closing arguments in the Scottsboro Boys trial.
Wade Wright, the paunchy, double-chinned Solicitor of Morgan County, closed first. "Show them," Wright thundered, pointing at Liebowitz and his co-counsel Joseph Brodsky, "that Alabama justice cannot be bought and sold with Jew money from New York." Murmers of approval were heard in the courtroom. Liebowitz leaped to his feet to ask for a mistrial. "Conviction now, after what he has said, will not be worth a pinch of snuff," he claimed. Attorney General Thomas Knight, looking nervous and embarrassed, fidgeted in his chair. Horton ruled that "the statement regarding Jew money from New York was improper and unjustified," but denied the defense motion. The judge asked the jury to "disregard it and put it out of your minds.” 60
What does it mean to inflame a jury? It means to arouse the passions of the jury and cause them to base their decision on something other than the evidence. Wright's speech inflamed. It brought out feelings that Judge Horton had tried to bury. They swept out of the courtroom and into the countryside. Fiery crosses burned that night in Huntsville and Scottsboro.61
Sectionalism and anti-Semitism sold well in 1933. Many trial-watchers around the country saw Alabama as the repository of "real American values." James Buchanan wrote Judge Horton from Brooklyn urging him to "uphold the dignity of the South, as you people down there are the only Americans left as far as I can see." Buchanan told Horton to 'watch this Sam Liebowitz and watch him good.' Another writer to Horton called Alabama America's 'last best hope' and wondered whether 'at some future date our government will set aside a slice of the U. S. for the real early Americans like they do for the Indians and then we will all be happy again." A 'Republican Yankee' from Seaford, Delaware, urged Horton to take direct action: "Chase that dam Jew Communist Liebowitz out of your state." "One Who Knows" wrote Horton to ask, "Why is it necessary to call out the state militia to guard a couple of nitwits like Klein and his partner?” 62
"All New Yorkers do not have horns," Liebowitz told the jury in his summation. "As for the Jew money," he went on, "when the hour of our country's need came there was no question of Jew or gentile, of black or white--all, all together braved the smoke and flame of Flanders Fields." Liebowitz denounced Wright's "appeal to prejudice, to sectionalism, to bigotry." What is he saying, he asked the jury, but "We can lick this Jew from New York! Stick it to him! We?re among home folk!" The defense attorney disclaimed concern for his own safety. "Mobs mean nothing to me. Let them hang me; I don't care. Life is only an incident in the Creator's scheme of things, but if I can contribute my little bit to see that justice is served, then my mission is fulfilled.” 63
Oh yes, the Scottsboro Boys. Liebowitz asked the jury to "give even this poor scrap of colored humanity a fair, square deal." His husky voice was strong as he began reviewing the discrepancies in the State's case. He pled for acquittal based "on the thousand doubts in this case." Wearying, he stopped for drinks of water. The first trials in Scottsboro were "judicial lynchings, and insult to God himself." He seemed near exhaustion. Price's story was the "foul, contemptible outrageous lie of an abandoned, brazen woman." Finally, after four hours of argument, Liebowitz, his face flushed, closed with The Lord's Prayer. "Thy will be done on earth, as it is in Heaven.” 64
The final summation fell to Alabama's thirty-four-year-old Attorney General, Thomas Knight. "I'm no murderer," the short, wiry Knight assured the jury. Referring to the defendant Patterson as "that thing," Knight told the jury that if they vote to acquit, they should "put a garland of roses around his neck, give him a supper and send him to New York City." Knight shouted, "I do not want a verdict based on racial prejudice or religious creed--I want a verdict on the merits of this case." On that evidence, he told the jury, "there can be but one verdict?death in the electric chair for raping Victoria Price.” 65
Judge Horton looked grave and tired as he delivered his charge to the jury in a quiet, solemn voice.
Take the evidence, sift it out and find the truths and untruths and render your verdict. It will not be easy to keep your minds solely on the evidence. Much prejudice has crept into it. It has come not only from far away, but from here at home as well.
I know the juries of this county. I have been with them--have been before them. They are sensible, reasonable, intelligent men. They do not go off on side issues, nor do they let petty prejudices enter into the trial of the case.
You are not trying whether or not the defendant is white or black-- you are not trying that question; you are trying whether or not this defendant forcibly ravished a woman.
You are not trying lawyers, you are not trying State lines. You are here at home as jurors--a jury of citizens under oath sitting in the jury box taking the evidence and considering it, leaving out any outside influences.
Things may vex you. I might say that the court may have been vexed about a great many things. It may have been evident to you that a great many telegrams came in here to me since I have been here. But, gentlemen, they do not affect me whatever or the great principle which the court desires to see done, and that is to see justice done in this case.
Of course, gentlemen, we all love our land; that is a natural sentiment of all people*** It is a natural feeling and it is a fine thing for a man to do to love his native country. I might say that a great many of us, and I together with you, a great many of our forebears came here with the earliest settlers, and I happen to be descended from one who was among the first that came down to this country. On both sides, as far back as I know, my people have always been a Southern people, and I have no desire to live anywhere else. I am getting old, and it is my home, my native land, and I want to see righteousness done and justice done, and we are going to uphold that name.
A great many of our parents no doubt were in the war between the States. My father and my sixty-one-year-old grandfather, every relative over fifteen, were in the Southern army. I am not saying that to be boasting or anything that way, but to show that I as well as you have no desire in any way to do anything that would not reflect credit on the South, and whatever I say, and whatever I do, remember, it is for justice and right and that they may prevail.
We are a white race and a Negro race here together--we are here to live together--our interests are together. The world at this time and in many lands is showing intolerance and hate. It seems sometimes that love has almost deserted the human bosom. It seems that only hate has taken its place. It is only for a time gentlemen, because it is the great things in life, God's great principles, matters of eternal right, that alone live. Wrong dies and truth forever lasts, and we should have faith in that. 66
A reporter noted that Horton’s talk seemed to have “a soothing effect” on an embittered courtroom. At 1:20 on Saturday afternoon, April 8, 1933, the jury retired to begin their deliberations in a small antechamber that had served as the defense witness room during the trial. The courtroom was empty except for lawyers and reporters. The peddlers of fruit and candy that had sold to crowds in the corridors were gone. The telegraph messenger boys that had brought soft drinks to journalists were gone. Outside on the tree-shaded lawns, a handful of people, blacks and whites, sprawled in the sun.67
In the Decatur railroad station the Morgan County detective, a man of about fifty dressed in overalls, told a reporter that Liebowitz was "the best investigator the Decatur courtroom ever saw." He acknowledged that the defense attorney had presented a strong case. "But," the man went on, "he's up against an awful hard jury." When asked what he meant by a hard jury the man replied, "there's some hard convictors among them." The detective, with an air of quiet assurance, said, "They'll bring in guilty with the death penalty." When asked what verdict he would have given, the man said, gently, "I'd 'a had to give the one they're goin' to bring in.” 68
At 10:00 on a Sunday morning when most of the churches in Decatur were holding Palm Sunday services, Judge Horton received word that a verdict had been reached. The trial cast began reassembling in the courtroom. Two rifles of trailing guardsmen dug into the back of Haywood Patterson as he was led to his seat at the defense table. Patterson's face was expressionless as he puffed on a cigarette. Samuel Liebowitz paced nervously around the courtroom. Attorney General Knight sat at the prosecution table, his facial muscles twitching. Sounds of laughter coming from the jury room. The laughter seemed to encourage to Patterson and his attorneys: What jury could sentence a man to death and laugh about it? The only black man in the half-empty courtroom, a county janitor, stood silently spinning his cap around in his hands. Judge Horton entered the courtroom and took his seat on the bench. "Let the jury come in," he said. The twelve jurors emerged from the jury room and gathered in front of the bench. "Have you agreed upon a verdict?" The jury foreman, a draftsman named Eugene Bailey answered, "We have, your Honor." "Well, let me have it then," said the judge. Bailey took two steps forward and handed to Horton a piece of paper upon which had been written in large pencilled letters: "We find the defendant guilty as charged and fix the punishment at death in the electric chair." Patterson listened to the verdict with head bowed, showing emotion for the first time.69
Moments after their deliberations began, the jury had voted unanimously to convict. All but one of the jurors wanted to send Patterson to the chair. Jury foreman Eugene Bailey had held out for eleven hours for life imprisonment.70
The verdict stunned Liebowitz. The defense attorney approached the bench. He grasped Horton’s hand and said, “I am taking back to New York with me a picture of one of the finest jurists I have ever met. But I am sorry that I cannot say as much for a jury which has decided this case against the weight of the evidence.”71
The next day in Harlem, addressing a crowd of 4,000 blacks, Liebowitz offered a harsher explanation of the guilty verdict. He told the frenzied crowd, "If you ever saw those creatures, those bigots whose mouths are slits in their faces, whose eyes popped out at you like frogs, whose chins dripped tobacco juice, bewhiskered and filthy, you would not ask me how they could do it.”72
After the verdict, telegrams and letters of praise for his handling of the case poured into the chambers of Judge Horton. Many, surprisingly, came from Alabama. Ira Berkowitz, an attorney from Birmingham, wrote, "Your conduct of the Patterson case and your inspiring charge to the jury thrills every Alabaman with pride." Albert Rosenthal, another Birmingham attorney, congratulated the judge for showing the world that "justice lives in Alabama, not only in the law books, but in the heart of an able jurist." Patti Jacobs of Birmingham wrote, "I am thankful that Alabama can remain proud of one thing in connection with these distressing cases, namely the judge who presided over the trial in Decatur." Some of the letters came from the judge’s friends. G. R. Bridgeforth of Athens wrote, "Your noble charge to the jury will be read by millions. It stirs every emotion of your friends who know you always stood for truth and justice." Martha Rivers Adams of Lynchburg, Virginia offered her very personal congratulations: "Your maintenance of the traditional spirit of the South is so in accord with your family's tradition that I gloried in it when I read all about it--every word appeared here--and I wondered if you are camera shy that I could never find in rotogravures any picture to compare with the one in my mind's eye of the handsome Jim Ed that I knew thirty years ago. Congratulations on your fine stand!”73
A letter even came from the Birmingham Chapter of the Ku Klux Klan, "commending and endorsing the actions of Judge Horton" for conducting the trial "fairly and to the best of his ability." The Klan may have figured that rulings favorable to the defense and words about equality were merely a means of insulating the certain guilty verdict from appellate attack. 74
The jury’s verdict disappointed, but did not surprise, Judge Horton. He knew jurors were under a tremendous amount of pressure.75
Horton was both disappointed and surprised, however, by Samuel Liebowitz's caustic, image-filled criticism of the Decatur jury. Attorney General Knight read Liebowitz's intemperate remarks to the press in Decatur on Easter Sunday, the day before the scheduled start of the trial of Charles Weems, the next in line of the nine Scottsboro Boys to face a Decatur jury. The Alabama press responded with angry and unanimous criticism of Liebowitz. The Montgomery Advertiser called the defense attorney "the voice of bigotry.” 76
When Judge Horton convened court on Monday morning, the first business was to set a date for Patterson's execution, as the judge was required to do under Alabama law. Horton asked Patterson if he had anything to say. Patterson, standing below Horton's high bench, replied, "I ain't got no fair trial. I ain't seen no women on that train.”77
The courtroom quieted, expecting Horton to draw the venire, marking the beginning of the Weems trial. Instead, Horton began reading in his quiet, authoritative manner a four-page typewritten statement:
Gentlemen, there has been set for trial this morning the case of State vs. Charlie Weems. This is the second of what are known as the "Scottsboro cases." Something over a week ago the case of State vs. Haywood Patterson was tried by a jury of this county. The nature of these cases, being a case where a Negro is accused of the rape of a white women, is such as would naturally excite resentment, and it is always difficult, even under the most favorable circumstances to obtain a fair and impartial verdict....
On account of certain influences, many of which to this court appear sinister, actuated by a desire to foment strife between the races in the South, it has been difficult to try what are known as the Scottsboro cases upon the real facts. I am not now passing judgment upon the verdict in the case already tried. I know the Court had great difficulty in preventing extraneous influences having some effect on the jury. With these influences still existing, with the public mind still disturbed, with thousands of true and patriotic citizens desiring that justice be done, and that the South appear in its true light, there has come to my attention a statement published, which to my mind makes it impossible at the present time to fulfill the high purpose of a court of justice….
I do not know whether the leading counsel for the defendant made the statement imputed to him. I am not saying that he did, but so far as it might influence this trial it could make little difference whether he actually made it or not. The effect will be the same. The published statement was uncalled for. It was addressed to a panel of highly intelligent jurors, and men who wished to do what was right in the case. But the statement itself must of necessity make impossible any just and impartial verdict to be arrived at this time. The accused Negro must be the victim of this statement. His leading attorney would be a millstone around his neck….
No court regardful of its duty to see that trials must be fair and impartial could under such baneful influences permit the trial of this case to proceed at the present time. It, therefore, becomes the unquestioned duty of this court at the present time to enter of its own motion a continuance of this case...
Those who listened closely to Judge Horton's words must have detected his displeasure with the verdict in the Patterson case. But prosecutors had little reason to worry. The jury had spoken. Although a trial judge had the power to set aside a jury verdict, it was rarely exercised--and certainly would not be in a case involving a serious offense such as rape.78
Northern Alabama was in the grip of a record heat wave when Judge Horton convened court on June 22 in the Limestone County Courthouse of his native Athens. Every seat was taken for what were anticipated to be arguments on the motion of the defense for a new trial. Attorney General Knight was there to present arguments for the State. Samuel Liebowitz remained in New York, leaving arguments for the defense to two co-counsel. Liebowitz viewed the proceeding as simply the first hurdle on their way to the Supreme Court. He believed that his motion had almost no prospect of success.80
Horton took his seat. At 10:05, without any opening remarks, the judge began reading in a low, steady voice:
Social order is based on law, and its perpetuity on its fair and impartial administration. Deliberate injustice is more fatal to the one who imposes it than to the one on whom it is imposed. The victim may die quickly and his suffering cease, but the teachings of Chrisitanity and the uniform lesson of all history illustrate without exception that that its perpetrators not only pay the penalty themselves, but their children through endless generations....
The Court will decide this motion upon the sole consideration of what is its duty under the law. The Court must be faithful in the exercise of the powers which it believes it possesses as it must be careful to abstain from the assumption of those not within its proper sphere. It has endeavored with diligence to enlighten itself with the wisdom declared in the cases adjudged by the most pure and enlightened judges who have ornamented the Courts of its own state, as well as the distinguished jurists of this country and its Mother England. It has been unstinted in the study of the facts presented in the case at bar....
The vital ground of this motion, as the Court sees it, is whether or not the verdict of the jury is contrary to the evidence. Is there sufficient credible upon which to base a verdict?
Knight listened tensely with mounting color as Horton continued reading his preciously-styled opinion. Lawyers at the defense table broke into smiles. Horton began a meticulous review of the evidence in the case that might have corroborated the charge of Victoria Price, but did not.
How can the physical condition of Price be reconciled with the gang rape she claimed to have suffered? Why did the jagged chert not bruise her back? Why did the pistol lick on her head not leave a visible wound? Why was no semen found in her pubic hair? Why was the spermatozoa in her vagina non-motile? Why was her respiration and pulse normal less than two hours after the rapes? Why was she not hysterical or crying?
When we consider, as the facts hereafter detailed will show, that this woman had slept side by side with a man the night before in Chattanooga, and had intercourse at Huntsville with Tiller on the night before she went to Chattanooga; when we further take into consideration that the semen being emitted, if her testimony were true, was covering the area surrounding her private parts, the conclusion becomes clearer and clearer that this woman was not forced into intercourse with all of these Negroes upon that train, but that her condition was clearly due to the intercourse that she had on the nights previous to this time.
How do we make sense of the glaring contradictions in the testimony of Ory Dobbins, the farmer who claimed to have witnessed the assault from his barn near Stevenson? Why did he testify that the woman he saw attacked was wearing a dress when Price was wearing overalls? Why did he say the attack occurred in a coal car when Price claims to have been raped in a gondola filled with chert?
This is the State's evidence. It corroborates Victoria Price slightly, if at all, and her evidence is so contradictory to the evidence of the doctors who examined her that it has been impossible for the Court to reconcile their evidence with hers.
Is it likely that Willie Roberson, the Scottsboro Boy shown to have been suffering at the time from painful swelling and genital sores caused by venereal disease and unable to walk without a cane, leaped into a gondola and joined a sexual assault? Is it probable that Olen Montgomery, blind in one eye and nearly so in the other, helped throw white boys off the train, then committed rape?
History, sacred and profane, and the common experience of mankind teach us that women of the character shown in this case are prone for selfish reasons to make false accusations both of rape and of insult upon the slightest provocation for ulterior purposes. These women are shown, by the great weight of the evidence, on this very day before leaving Chattanooga, to have falsely accused two Negroes of insulting them, and of almost precipitating a fight between one of the white boys they were in company with and these two Negroes. This tendency on the part of the women shows that they are predisposed to make false accusations upon any occasion whereby their selfish ends may be gained.
The Court will not pursue the evidence any further. As heretofore stated, the law declares that a defendant should not be convicted without corroboration where the testimony of the prosecutrix bears on its face indications of improbability or unreliability and particularly when it is contradicted by other evidence. The testimony of the prosecutrix in this case is not only uncorroborated, but it also bears on its face indications of improbability and is contradicted by other evidence, and in addition thereto the evidence greatly preponderates in favor of the defendant. It therefore becomes the duty of the Court under the law to grant the motion made in this case.
It is therefore ordered and adjudged by the Court that the motion be granted; that the verdict of the jury in this case and the judgment of the Court sentencing this defendant to death be set aside and that a new trial is hereby ordered.
Judge Horton put down his typewritten manuscript. He had been reading for sixty-five minutes.81
In Judge Horton's stunning decision, thousands of people around the country saw either courage or arrogance.
M. A. Andrews of Phoenix was one who saw Horton's action as arrogant. Andrews said in a letter to Horton, "I think you are playing to a grandstand of negro-loving, prejudiced people, instead of decent southern people. It is yourself you are thinking of instead of meting out justice." William Mosely of Decatur wrote that Horton had "no more backbone than an angle worm.” 82
Most letterwriters to Horton offered their praise. W. F. Reden of Sioux Falls wrote to say, "Your fearlessness of right reminds me of the stand of Joshua and Caleb when the other ten spies and the Israelites were against them." Birmingham Rabbi Morris Newfield called Horton "a second Lincoln." Ralph Harlow of Northhampton, Massachusetts told the judge, "Many thousands of your fellow countrymen took new hope and faith in America's struggle toward justice, when, in the morning papers they read of your setting aside the verdict in the Scottsboro case." John Derby of the Bronx wrote, "Try as I may, I find my ability with the English language is too poor to adequately express my sincere thanks and appreciation regarding your judgment in the Scottsboro case." A woman from Cleveland asked "How can I express in words what I feel, and what millions of other negroes and whites feel, toward the finest and bravest man in the South?" Sherman Furr of Grand Rapids wrote, "God bless you and your loved ones, Judge Horton, and don't you worry while black men, women and children, 21,000,000, pray for you.” 83
The defendant whose death sentence Horton set aside, Haywood Patterson, later recalled, "His decision made me feel good. I saw that there could be white folks in the South with the right mind.” 84
As soon as court adjourned, Attorney General Knight, in a voice trembling with anger, announced that the state had no intention of quitting: it would retry Patterson as soon as possible. The next day, Knight announced that the State would present a new witness, Orville Gilley, in the next trial. Gilley, a troubador and bum otherwise known as "Carolina Slim," was the lone white boy on the train at the time of the alleged rapes. "Slim" had returned from his wanderings. He would corroborate in every detail Price's story, Knight said. 85
Knight knew that for the prosecution to prevail Horton would have to be removed from the case. Knight had friends in high places. Alabama Senator Thomas J. Heflin wired Knight to say he shared "the keen resentment you feel over the strange and annoying action of Judge Horton." Heflin offered to assist Knight “free of charge in having Judge Horton relieved from further consideration of these cases.” 86
Others spoke out for Horton. Birmingham Age-Herald columnist John Temple Graves argued that "Far from recusing him, the decision he has made in the Scottsboro case actually requires him, as the man of all men, to go on with the case.” 87
By August, it was clear that the prosecution had won. Knight wrote to John C. Anderson, Chief Justice of the Alabama Supreme Court, asking that Horton be taken off the case. The other circuit judge for the eighth district was seventy-year-old William Callahan, a gruff, no-nonsense, virulently racist judge. Horton did not respect Callahan. If the retrials fell to Callahan, Patterson and the other Scottsboro Boys were doomed. Horton wrote to Chief Justice Anderson asking whether, if he did not retry the case, could an outside judge be assigned instead of Callahan? Anderson replied to Horton that he "did not feel disposed to send an outside judge to try these cases" because of his "doubtful" authority to do so unless Callahan joined in Horton's request. Anderson asked the question Horton felt constrained from answering, "If you feel a delicacy in trying these cases, why can't they be tried by Judge Callahan” 88
Judge Callahan was indeed no Judge Horton. With broad shoulders, silver hair and spectacles, Callahan was a Hollywood producer's vision of a southern judge. Acting more like a second prosecutor than a judge, the caustic Callahan sustained virtually every prosecution objection and overruled virtually every defense objection. Once, when Liebowitz protested a decison of Callahan's to exclude evidence allowed in the previous Decatur trial, the judge growled, "I don't care a snap what Judge Horton did or how he ruled. You're before me now and I'll do the ruling." "We got us a real man on the bench this time," a spectator in the court remarked. At the close of his instructions, Callahan failed to provide the jury with a form for acquittal until the prosecution, fearing reversible error, urged him to do so. Haywood Patterson said of Callahan, "He couldn't get me to the chair fast enough." Callahan sentenced Patterson to death without adding the usual benediction, "God have mercy on your soul." An angry Liebowitz promised to appeal the verdicts "to Hell and back.” 89
Judge Horton knew his decision was not popular. Although he had won re-election to a six-year term in 1928 without opposition, there would be opponents ready and willing to take him on in 1934. The campaign would not be pleasant. He would almost certainly lose. Horton announced that he would not seek re-election as circuit judge.91
Shortly after Christmas in 1933, a group of Athens lawyers showed up on the colonnaded porch of Horton's two-story Greek Revival residence with a petition signed by every member of the Athens bar.
It is axiomatic that a democracy cannot exist without an independent and fearless judiciary. The moment the decisions of our judges are colored or influenced by political considerations that moment free governments begin to totter and commonwealths begin to fail.
We who comprise the entire bar of Athens, Ala., your home town, and who doubtless have had the best opportunities of knowing you (some of us having practiced law with and against you before you were placed on the bench, and all of us having practiced in your court while you have been on the bench), recognize in you a judge of unimpeachable character and integrity; we know you are untrammeled by political considerations in the exercise of judicial functions; unflinching in the faithful discharge of your duties as judge, and recognizing the fact that you have the fortitude to do right, as an incorruptible judge is given the power to see what is right, we are unwilling to see you leave the bench.
We, therefore call upon you, as your friends and neighbors, to give us the privilege of putting your name before the people of the Eighth judicial circuit of Alabama for re-election as judge of our court. We further ask the privilege of commending you to the people of the circuit as a judge who has been fearless in your decisions--for your judicial acumen and for your honesty and steadfast loyalty to your own sense of duty and right.
In calling upon you, we speak not only for ourselves, but are happy in the knowledge that the sentiments we express are the sentiments of our own people, and your people--the people of Limestone County. 92
Horton faced two opponents in the May 1934, primary. One was former judge Osceola Kyle, defeated by Judge Callahan in 1928 and now seeking his old job back. The other was Aquilla Griffith, a well-known trial lawyer who had previously served as state legislator, state senator, and Cullman County Solicitor. Griffith entered the race because he "believed Horton's actions in the Scottsboro case would militate against him." Griffith made Scottsboro the central issue in the campaign. Horton ran hard. He mailed letters to voters, handed out flyers, ran newspaper ads, and traveled all around the four-county district. 93
Opposition to Horton was most intense in Morgan County. A friend of Horton's, then a newspaper delivery boy in Decatur, said that he walked his entire delivery route without finding a single person supporting Horton. Horton's wife, Anna, recalled taking shopping trips to Decatur with the judge. "The looks were terrible over there," she said. 94
Horton, however, remained popular among the people who knew him best. Three hundred Athens women gathered to show their support for Horton. The ministers of Athens issued a statement praising Horton's "recognized honesty" and his willingness to align himself "with the forces of right and good morals." Two-hundred-sixty Athens businessmen endorsed their judge and vouched for "his upright personal character.” 95
Birmingham columnist John Temple Graves tried to explain the surprising local support for Horton despite his unpopular decision:
Horton is their own good man, no matter how foreign the occasional company his conscience make him keep. They feel it because he himself feels it. He has little or no thought for the liberal and other groups which acclaim him from a distance. He does the right thing as he sees it, with no particular sense of the scene about him, but with an enormous sense of right-doing ancestors gone and example-bound descendants to come. His "social conscience" is vertical rather than horizontal.96Horton finished second in the three-man field, forcing a runoff with "Quill" Griffith. Horton easily carried his home county of Limestone, but trailed badly in more populous Morgan and Cullman counties.97
The time has come when I should no longer remain silent. It is no secret that my personal desire was not to enter this race, but to retire to private life. I sought every honorable way to avoid the entry. But the question passed beyond one of personalities; it became one of principle; I became no longer a person but a symbol of the integrity of our courts. In order to scale this impregnable fortress of our liberties, sacred to the heart of every Anglo-Saxon and hallowed to the blood of our sires, the arrows of falsehood have been shot and the poison of prejudice spewed.
Therefore, let us know the truth. You and I are known to each other. For over eleven years I have been a judge and before that time I was chancellor. My manner of life and my devotion to duty are known to all of you. A true man as he sits on the bench trembles with the consciousness that he sits there as the visible manifestation of the justice and mercy of the most high God. And I know you. As jurors I know your intense fervor to render justice between man and man. I have repeatedly said I have never known a jury of this district to render a dishonest verdict, A judge may err, a jury may err, for man is fallible. What you desire is the truth. You are most happy to know and serve the truth. I shall, therefore, with perfect confidence in your wisdom and your justice place before you the true facts so you may wisely decide one of the most momentous issues a free, liberty-loving and justice-loving people have ever been called on to decide. 98
Griffith decisively defeated Horton in the June run-off. The final vote tally was Griffith, 9,416, Horton, 6,856. The same day, the people of Alabama elected Thomas Knight their new lieutenant governor. 99
The United States Supreme Court for a second time saved the Scottsboro Boys from a date with the electric chair. On February 15, 1935, Samuel Liebowitz argued to the nine justices that the Scottsboro convictions obtained in Judge Callahan's court must be overturned because Alabama systematically excluded blacks from the juries of his clients. The names of blacks on the Morgan County jury rolls were forged after the venire was drawn, Liebowitz charged. Could he prove that, Chief Justice Charles Evans Hughes asked. A page came forward to the bench to deliver a jury roll and a magnifying glass to the Chief Justice. Hughes looked at the rolls, then passed it to the next seated justice, who then passed it to the next. Looks of disgust appeared on their faces. Six weeks later the Court announced its decision in Norris vs. Alabama, unanimously holding the Alabama system of jury selection unconstitutional and reversing the convictions of the Scottsboro Boys. Liebowitz said, "I am thrilled beyond words." It appeared as though a game of legal ping pong between Alabama and the Supreme Court, with young Negro lives in the balance, might be played for years. 100
The prosecution pressed on with trials, but some Alabama officials were convinced the Scottsboro cases were no longer worth their economic and political cost. The State dropped charges against four of the boys, now turned to young men, in 1937. Between 1943 and 1950, four others were pardoned. Free of Alabama, but not the label "Scottsboro Boy" or the wounds inflicted from years in prison, they went on with their separate lives: to marriage, to alcoholism, to jobs, to fatherhood, to hope, to disillusionment, to disease, to suicide. 101
For the fourth time, in 1936, an Alabama jury—in another trial before Judge Callahan—convicted Haywood Patterson for the rape of Victoria Price. The clerk read the familiar words—“We the jury find the defendant guilty—but this time there was a surprise: “…and fix his punishment at seventy-five years imprisonment.” One determined juror, a devout Methodist named John Burleson, had gone into the juryroom determined to spare Patterson’s life and had succeeded. 102
Patterson spent the next eleven years in Alabama prisons. Prison life in Alabama was never easy; some times were especially tough. Filled with sadistic and even murderous guards, plotting inmates, rampant homosexual rape, and venemous snakes, Atmore--a prison near Mobile--was the hell-hole of hell-holes. Guards whipped Patterson. They left him without food for as long as a week at a time. He was kept in solitary confinement. Surrounded by many poisonous snakes, Patterson tempted fate by draping them over his shoulders or putting them inside his shirt. The prison bookkeeper offered two other black inmates $50 each to kill Patterson, but his plan failed when the inmates instead chose to warn him. In February 1941, a prison guard did find an inmate willing to attack Patterson. The prisoner stabbed Patterson twenty times, puncturing his lungs. Deprived of normal outlets for sex, Patterson became an aggressive homosexual with his own "gal-boy." He attacked another prisoner with a switchblade for having sex with "his kid": "He didn't try to take my gal-boy away from me after that; nobody did.” 103
On July 17, 1947, Patterson told other inmates “I’m giving myself a pardon.” He paid a friend who worked in the prison laundry to bring him street clothes, which he put on under his prison garb. Shortly before sunset, Patterson gave a signal to eight other prisoners working with him on the prison farm, and he and the others dashed into a cornfield. Patterson stripped off his prison uniform and made his way to a stream, where three guard dogs attacked him. He managed to drown two of the dogs, and the third ran away. The next afternoon, he found shelter in the small home of a black family. By freight train and on foot—twice narrowly avoiding discovery—Patterson crossed the Alabama state line at West Point, Georgia. Two day later, at his sister’s house in Detroit, Haywood Patterson had the first beer of his life. 104
In Michigan, Patterson contacted Scottsboro supporters. At the urging of I.F. Stone, he told his story in a book published in 1950, The Scottsboro Boy. FBI agents arrested Patterson shortly after publication of his book, but Michigan Governor G. Mennen Williams refused extradition to Alabama. after a nationwide letter-writing campaign was mounted on Patterson's behalf. On August 24, 1952, Patterson died of cancer at age thirty-nine.105
The day after the jury gave Judge Horton its guilty verdict in the Patterson case the headline in the Decatur Daily read: "President Pleads for Development of the Tennessee Valley." The article under the headline reported that Frankin Roosevelt had asked Congress for authority to create a Tennessee Valley authority that would oversee construction and operation of huge dams that would provide jobs, electricity, and stimulate economic development in the depressed region through which the muddy river flowed. Prospects for enactment of the legislation appeared good, the article said. 106
On March 22, 1934, the citizens of Limestone County approved, with only one negative vote, plans of the Tennessee Valley Authority to construct Wilson Dam. Submerged under the waters of the newly formed lake would be thousands of acres of crops and pasture, including land near Buck Island where James Edwin Horton was born and raised. Horton, who had continued to farm the property, sold his land to the TVA. He also accepted a part-time job with TVA aiding the agency in its land acquisition in Northern Alabama. 107
With the proceeds from the sale of his land, Horton purchased 1,400 acres in Greenbrier, near Decatur. The lovely family home in the heart of Athens was painstakingly surveyed, then taken apart piece by piece and reconstructed in the farmland of Greenbrier. Some people, noting the move, voiced their suspicions that the Greenbrier farm and the home reconstruction were financed with "Jew" or "Communist" money. 108
Horton began to devote fulltime to farming. He raised cotton, corn, and soybeans. His herd of award-winning Aberdeen-Angus cattle was the largest in Alabama. Horton drove a Chevy pick-up along the fields, inspecting his crops and cattle. Every few months, it seemed, Horton would mishandle the clutch, sending the pick-up to the repair shop. "He was the least mechanical man I've ever seen," his son Don recalled. "He'd be challenged to put salt in a salt shaker." Rarely did Horton go far from the land he called "Macedon Farms." Occasionally, he would travel to Tennessee or Illinois, looking for a good bull. 109
Horton grew old. He spent afternoons playing Rook, Hearts, and dominoes with other farmers at a cotton gin near his home. He continued to enjoy his two cigars a day, one after lunch and the other after dinner. When his deteriorating eyesight made reading increasingly difficult, he spent more time watching television news and quiz shows. Once every so often, researchers or area school children would visit Macedon Farms to ask about his recollections of the Scottsboro Boys trials. In his last years, Horton often attributed his long life to the trial that ended his judicial career and returned him to the land he loved. He died in March 1973, at age ninety-five.110
Shortly after Horton's death, county officials installed a plaque on the south wall of the second-floor Limestone County courtroom in which he read his opinion setting aside the jury's verdict in the Patterson trial. In raised bronze on the plaque are inscribed words from the judge?s instructions to the jury:
So far as the law is concerned it knows neither native nor alien, Jew nor Gentile, black nor white. This case is no different from any other. We have only to do our duty without fear or favor.
In Horton's old courtroom, juries continue to make decisions affecting
the liberty of their fellow citizens. A few miles away, the Tennessee
River meanders through a series of reservoirs, draped like a great shimmering
necklace across the north of Alabama.
Judge Horton Essay: Abbreviations and Notes
BN Birmingham News
DD Decatur Daily
HF Horton Files, Records of Judge Horton, Samford University,Birmingham.
HT Huntsville Times
JCS Jackson County Sentinel
LD Limestone Democrat
LSB Clarence Norris and Sybil Washington, The Last of the Scottsboro Boys:
An Autobiography, 1979.
NYHT New York Herald Tribune
NYT New York Times
RH Hollace Ransdall, “Report on the Scottsboro, Alabama, Case.” New York,
ACLU, 1931. Mimeo. (Republished on Scottsboro Trials Web Site).
SB Haywood Patterson and Earl Conrad, Scottsboro Boy
SJ Gillian Goodrich, James Edwin Horton, Jr.: Scottsboro Judge. Masters
Thesis, University of Alabama-Birmingham, 1974.
SOS James Goodman, Stories of Scottsboro. Pantheon, 1994.
STAS Dan T. Carter, Scottsboro: Tragedy of the American South. LSU, 1969.
STWS Doug Linder, The Scottsboro Boys Trials. Website maintained at UMKC
School of Law. URL: www.umkc.edu/famoustrials
TKP Thomas Knight Papers, Alabama Department of Archives
TNR The New Republic
1 SJ, pp. 21-25.
2 Powell v. Alabama, 287 U. S. 45 (1932).
3 SJ, p. 38 (citing an interview with Horton’s stepson, Maclin Frierson, 8/23/73)
4 SB, pp. 8-14; SOS, pp. 5-15; STAS, pp. 4-5; “capture every Negro”: JCS, 3/26/31; “I’m giving you authority”: JCS, 3/26/31; “bunch of Negroes”: JCS, 3/26/31; “press charges against ‘em”: JCS, 3/26/31.
5 LSB, pp.17-22; SOS, p. 5; “had them”: SOS, p.5; “if those six”: SOS, p. 5; “Nigger, you damn well”: SOS, p5.
6 STAS, pp. 8-9; SB, pp. 7-9; “Let those niggers out!”: STAS, p.8; “Got enough rope”: SB, p.7.
7 “All Negroes Positively”: JCS, 3/26/31; “a terrible condition”: JCS, 3/26/31.
8 Record, 28-54; SOS, pp. 14-15; “they were going to take us”: Record, 28-29; “found their vaginas”: Record, 30; “saw a bunch of Negroes”: Record, 48-49; “saw ‘em do a plenty”: Record at 49-50; “I saw all of them”: SOS, p. 14; “all but three of those”: SOS, p. 15; “they all raped her”: SOS, p. 14; “so conclusive as to”: JCS, 4/2/31.
9 STAS, pp. 18-22; “so stewed he could”: STAS, p. 22; “doddering, extremely unreliable”: STAS, p. 18 (quoting memo of Walter White, Director of NAACP, 5/2/31, NAACP Records, Library of Congress).
10 SB, pp. 13-14; STAS, pp. 17-50.
11 SOS, p. 173-74; “unusually equable nature”: LD 3/23/33; “make an excellent judge”: SOS (quoting letter from Thomas Knight, Jr. to Marcus. W. Crenshaw, 9/20/33, TEKP.
12 SOS, p. 174; “very notably social-minded”:Graves, John Temple II, “Fiat Justicia, Ruat Coleum,” TNR, 3/30/38,
p. 218; “He used the word”: Interview with Don Horton, 6/42/99.
13 SJ, pp. 33-38; “Three cheers for Lincoln”: HT, 6/16/35.
14 SJ, pp. 37-38.
15 Interviews with Don Horton and James Ed Horton III, 6/24/99.
16 Interview with Don Horton, 6/24/99.
17 “Let the world see”: DD, 3/27/33; “with the city’s wide”: DD, 3/27/33; “for a fishing jaunt”: DD, 3/30/33.
18 SY, pp. 13-20; “a red-blooded”: SOS, p. 119; “arguments about race”: NYT, 3/18/33; “hardly fit for pigs”: DD, 4/5/33.
19 A new Morgan County Courthouse was erected on the site of the old one in 1940. The Civil War monument still stands on the courthouse grounds.
20 STATS, pp. 192-194; NYT, 3/28/33; DD, 3/27/33; “dressed up like a Georgia”: BN, 3/28/33.
21 BN, 3/28/33; NYT, 3/28/33; DD, 3/27/33; “next Clarence Darrow”: SOS, p. 101; “Prove it”: NYT, 3/28/33; “Never heard of one”: NYT, 3/28/33; “They’ll all steal”: NYT, 3/28/33.
22 SOS, pp. 120-123; “the motion is denied”: DD, 3/28/33.
23 NYT, 3/29/33; “we plead not guilty”: NYT, 3/29/33.
24 SOS, pp. 123-24; “Now isn’t it a fact”: NYT, 3/31/33; “I don’t know”: NYT, 3/31/33; “Do you mean”: NYT, 3/31/33; “I don’t mean”: NYT, 3/31/33; “hard, unsympathetic lines”: NYT, 4/16/33.
25 “I am going to deny”: SJ, pp. 49-50; “I have been your judge”: Transcript, 3-5; NYT, 4/1/33; DD, 4/1/33.
26 DD, 4/1/33; “scarcely more noticeable”: DD, 4/1/33.
27 SOS, p. 173-74; “told him he looked like”: SOS, p. 174; “Lincolnesque”: NYT, 3/28/33; “looked like pictures”: SB, p. 36; “Lincoln freed the slaves”: letter of Mrs. George Beatty to JEH, HF-SU.
28 “after a slight hesitation”: SOS, p. 175; BAA, 4/8/33.
29 Motion to Quash, 96-116; SJ, p. 44; “Us jurors in Morgan County”: NYT, 4/1/33.
30 SOS, p. 175; “control of the government”: letter of H. F. Reese to JEH, HF-SU.
31 STAS, pp. 204; BN, 4/3/33; NYT, 4/3/33.
32 Record, 39-40; STAS, pp. 204-05; NYT, 4/3/33; “Was the defendant”: BN, 4/3/33; “Yes, absolutely”: BN, 4/3/33; “Are those the step-ins”: STAS, p. 204; Record, 13-14; “this is the first time”: STAS, p. 204; “Well, they are here”: STAS, p. 204; “The Court has the right”: STAS, p. 205.
33 STAS, pp. 205-210; SOS, pp. 125-127; Transcript, 19-22; “That’s not the train”: Transcript, 21.
34 STAS, pp. 205-210; “That’s some of Ruby’s dope”: DD, 4/3/33; “One thing I will”: Transcript, 45; DD, 4/3/33.
35 SJ, pp. 54-57; Transcript, 21-104.
36 STAS, p. 212-213; “One of them pulled”: NYT 4/4/33; “without a flutter”: NYT, 4/4/33; “You are not embarrassed”: STAS, p. 212-13; Transcript, 160-61.
37 “the Scottsboro Trial,” TNR, 4/19/33, pp. 276-278; “full of hate”: TNR, 4/19/33, p. 277; “He seems to know”: TNR, 4/19/33, p. 277; “more like a dissection”: TNR, 4/19/33, p. 217.
38“It’ll be a wonder”: STAS, p. 223; “One possessed of”: STAS, p. 210 (quoting Sylalauga News, 4/7/33).
39 Interview with Don Horton and James Ed Horton III, 6/24/99; Decision on Motion for New Trial, 6/22/33 (reprinted in SB, pp. 260-68).
40 Letter from Mrs. Jim Weakley to JEH, HF-SU.
41 HR, pp. 11-21; “a woman of the underworld”: DD, 4/8/33; “just took men”: SOS, p. 43; HR, p. 21; “just about have to be”: SOS, p. 42; HR, p. 12-14.
42 HR, pp. 11-21; “as bad as niggers”: HR, p. 12-14
43“it is the duty of the jury”: DD, 4/8/33; Judge Callahan instructed Scottsboro Boys juries that “there is a very strong presumption under the law” that a white woman “will not voluntarily yield to intercourse” with a black man. SOS, p. 227.
44 SJ, p. 25.
45 SJ, pp. 58-60; Transcript, 161-188.
46 STAS, pp. 214-216 (Carter’s account is based on an interview conducted with Judge Carter on April 9, 1966).
47 STAS, pp. 223-25; “so long as we have”: STAS, p. 224.
48 Oswald, Sharon, “Scottsboro Boys Portrayal is Disputed,” TN, 4/25/76; “to take care of Liebowitz”: TN, 4/25/76; “When we realized”: TN, 4/25/76.
49 STAS, p. 224; TN, 4/25/76; “protest the manner”: STAS, p. 224.
50 NYT, 4/6/33; BN, 4/6/33; DD, 4/5/33; “This Court wishes”: Transcript, 398-401.
51 Transcript, 398-401; NYT, 4/6/33; “I have some private”: BN, 4/6/33; “Judge Horton, he”: SB, p.50; “phantom mobs”: DD, 4/8/33.
52 Letters (unsigned) to JEH, HF-SU.
53 Transcript, 453-54; SOS, pp. 129-130; STAS, pp. 126-27.
54 DD, 4/6/33; NYT, 4/7/33.
55DD, 4/6/33; NYT, 4/7/33; STAS, pp.231-32; “keep your temper”: NYT, 4/7/33; “Can you imagine”: STAS, p.232 (quoting Birmingham Post, 4/7/33).
56 Transcript, 664-691; DD, 4/6/33, NYT, 4/7/33; “I told it just like”: NYT, 4/7/33; “didn’t care if all”: DD, 4/6/33.
57 Transcript, 667-703; STAS, pp. 232-34; DD, 4/6/33; NYT, 4/7/33.
58 Transcript, 742-43; STAS, p. 234.
59 DD, 4/5/33; Decision (SB, pp. 272-277).
60 NYT, 4/8/33; DD, 4/8/33; BN, 4/8/33; “Show them that Alabama”: NYT, 4/8/33; “Conviction now”: NYT, 4/8/33.
61 TNR, 4/19/33, p. 277; SOS, p. 133.
62 Letters to JEH, HF-SU.
63 NYT, 4/8/33 and 4/9/33; DD, 4/8/33; SOS, pp. 133-34; STAS, pp. 236-237; SJ, pp. 78-79.
64 NYT, 4/9/33, DD, 4/8/33, SJ, pp. 78-79.
65 NYT, 4/9/33; DD, 4/8/33.
66 NYT, 4/9/33.
67 DD, 4/8/33; NYT, 4/9/33; BN, 4/8/33; “soothing effect”: BN, 4/8/33.
68 TNR, 4/19/33, pp. 277-78.
69 NYT, 4/10/33; BN, 4/10/33.
70 SOS, p. 145.
71 NYT, 4/10/33.
73 Letters to JEH, HF-SU.
74 Letter to JEH, 4/18/33, HF-SU.
75 Interview with Don and James Ed Horton III, 6/24/99.
76 SJ, p. 90 (quoting Montgomery Advertiser, 4/18/33).
77 STAS, p. 246, HT, 4/17/33.
78 Decision Postponing State of Alabama vs. Charlie Weems, 4/17/33, HF-SU.
79 STAS, pp. 264 (citing interview with JEH, 4/9/66).
80 SJ, pp. 95-96; DD, 6/21/33; LD, 6/22/33.
81 Opinion of Judge Horton (SB, pp. 260-278 and HF-SU).
82 Letter from MAA to JEH, 6/23/33, HF-SU; SOS, p. 201(quoting letter of WM to Birmingham-Age Herald, 10/27/33).
83 Letters to JEH, HF-SU.
84 SB, p. 48.
85 STAS, p. 270.
86 Letter from J. Thomas Heflin to TK, TEKP.
87 BAH, 6/23/33; BP, 10/21/33.
88 Letter from John Anderson to JEH, 8/9/33, HF-SU; Interview with Don and James Ed Horton III, 6/24/99; SOS, pp. 215-223.
89 Hamilton Basso, “Five Days in Decatur,” TNR, 12/20/33, pp. 161-62; SOS, pp. 214-221; NYT, 12/7/33; SB,
90 John Templeton Graves II, The Fighting South (1943), pp. 208-09.
91 SJ, pp. 37, 109; TN, 4/25/76.
92 “Athens Lawyers Petition Judge Horton,” HF-SU; SJ, pp. 109-110.
93 SJ, pp. 111-116; LD, 5/10/34.
94 SJ, p. 114; Interview with James Ed Horton III, 5/27/99.
95 “The Home Folk of Judge James E. Horton Support and Commend Him” (advertisement), HF-SU; SJ, pp.
96 NYT, 1/14/34.
97 HT, 5/2/34; SJ, p. 116.
98 “And Ye Shall Know the Truth and It Shall Set You Free” (Horton speech/advertisement in HF-SU).
99 DD, 6/13//34; SJ, pp. 116-17; STAS, p. 273.
100 294 US 587 (1934); Patterson v. Alabama, 294 US 599 (1934); “I am thrilled beyond”: SOS, p. 243.
101 STAS, pp. 330-415; SOS, pp. 254-392. See also, generally, SB and LSB.
102 SOS, pp. 257-58; NYT, 1/24/36.
103 SOS, pp. 348-352, 362-66, 376-77.
104 SOS, pp. 378-80.
105 SOS, pp 380-81.
106 DD, 4/10/33.
107 SJ, p. 118; Interview with DH and JEH III, 6/24/99.
108 SJ, pp. 118-120.
109 SJ, pp. 120-21; Interview with DH, 6/24/99.
110 NYT, 3/30/73, SJ, pp. 120-21; Interview with JEH III, 6/24/99.