Justice on Trial:
The Phillips County Riot Cases
By Harrison Bennett
When the violence that occurred in Phillips County, Arkansas, in the fall of 1919, subsided, the formal processes of the law were set in motion against African-Americans who had allegedly been prepared to foment an "insurrection" against the whites of the area. But the machinery of the law would be commandeered by a community intent upon working other forms of violence: sentences of death against those who had escaped the lynch mobs and repudiation of the notion that equal protection under the law was to be realized in Phillips County. The litigation would culminate, however, in a ruling by the U.S. Supreme Court that would actually undermine the capacity of a local community to permanently deprive or deny the rights of those who might be prosecuted in its courts. The authority of the federal courts to review state court deliberations for constitutional errors would be fundamentally changed as a result of the Phillips County cases, making any future effort to utilize courts of law as vehicles for channeling the rage of a mob much less likely to succeed. Though a small recompense for those terrorized and murdered during the Elaine Riot, this legacy ensures that their suffering was not entirely in vain.
In late October and early November of 1919, a Phillips County grand jury, which included no blacks, returned indictments against 122 blacks (including 73 charges of murder) for their alleged participation in what local authorities had identified as an "insurrection" against the white communities and institutions of the area. The trial that would culminate in a landmark constitutional ruling by the U.S. Supreme Court began on November 2, 1919, and concerned a charge against Frank Hicks of first degree murder against Clinton Lee, with Frank Moore, Ed Hicks, J. E. Knox, Paul Hall, and Ed Coleman charged as accessories. Blacks had been excluded from the petit jury which heard the cases. The accused were not permitted to engage in pre-trial consultation which their lawyers, who chose to neither subpoena witnesses on their behalf or place their clients on the stand. In addition, "an adverse crowd threatened the most dangerous consequences to anyone interfering with the desired result," which was clearly the death of the defendants.
The jury convicted Frank Hicks of first-degree murder after a mere eight minutes of deliberation. Moore, Ed Hicks, Hall, and Coleman were convicted of murder in the first degree as accessories, following only seven minutes of deliberation. The principal evidence produced against them was the testimony of two black witnesses, Walter Ward and John Jefferson, who stated that they were present when Frank Hicks, in the company of other black men, fired at Clinton Lee, as well as the testimony of Helena municipal court judge J. Graham Burke, who claimed that Ed Hicks, Knox, and Coleman confessed they were among this company. Altogether, twelve men were convicted of first degree murder and sentenced to die by electrocution. Arkansas media accounts contrasted the stateís reaction to the "insurrection" to that which followed similar incidents in Washington, D. C. and Chicago with some pride, arguing that, "Through it all, the lawÖwas in control." The men were promptly scheduled to die on December 27, 1919 and January 2, 1920.
Motions for new trials were filed on December 18, 1919, by Colonel George W. Murphy, a former Confederate soldier and Arkansas attorney general, retained by the National Association for the Advancement of Colored People (NAACP), and Scipio Africanus Jones, a former slave who was retained by an Arkansas-based defense committee, on behalf of all twelve defendants who had been sentenced to death, arguing that their opportunity for fair trials had been precluded by the mob atmosphere and adverse publicity that accompanied the proceedings that condemned them. They were also, according to the motion, denied due process of law, in violation of the Fourteenth Amendment to the U.S. Constitution, because they had been given neither an opportunity to prepare a defense with their counsel or adequate notice of the charges levied against them. They were also denied the equal protection of the law (also a Fourteenth Amendment claim), it was argued, because blacks had been excluded from the grand and petit juries which decided their fates.
When the Circuit Court of Phillips County rejected their claims, Murphy and Jones appealed to the Arkansas Supreme Court, which reversed the convictions of Ed Ware, Will Wordlow, Albert Giles, Joe Fox, Alf Banks Jr., and John Martin (henceforth Ware et al) due to a defect in the wording of the jury verdict, and affirmed the convictions of Frank Moore, Ed Hicks, J. E. Knox, Ed Coleman, and Paul Hall (henceforth Moore et al), because their constitutional claim had been forfeit when they failed to raise it at trial. The cases of the Arkansas defendants would henceforth proceed along two separate courses. The case of the Ware et al defendantís was remanded to the Phillips County Circuit Court for retrial, and they were promptly convicted for a second time. This conviction would also be over turned by the state supreme court, however, because the discrimination against prospective black jurors which characterized the second trial was, argued the justices, contrary to the Fourteenth Amendment and the Civil Rights Act of 1875. The Ware et al defendants would eventually win their freedom, ironically, because of the apathy of state authorities respecting the prosecution of their third trial. Their case had not been acted upon for over two years by April 1923, and Arkansas law provided that a defendant was entitled to discharge if the state failed to bring his/her case to trial after two terms of court. Accordingly, Scipio Jones requested, and received an order of release from the Arkansas Supreme Court on June 25, 1923.
But the only option available to the Moore et al defendants was to petition for a federal writ of habeas corpus. The writ of habeas corpus ("habeas corpus" in the original Latin means "you are ordered to have the body") was an instrument by which a magistrate or court could order the appearance of a person detained by another authority for the purpose of determining the legality of his/her detention. The authors of the American Constitution appreciated the value of the writ to personal liberty, and established express limitations upon its suspension. The initial presumption that prevailed prior to the Civil War had been that the states were peculiarly competent to preserve individual liberties. Federal habeas corpus was not held to properly extend to state prisoners who asserted a federal claim if the purported violation occurred in a court of competent jurisdiction. The so-called "jurisdiction doctrine" would dominate the habeas jurisprudence of the U. S. Supreme Court from the 19th Century well into the 20th Century. The Civil War and violent Reconstruction provided the impetus for passage of the Habeas Corpus Act of 1867, which extended, for the first time, the benefits of federal habeas corpus to prisoners held in state custody. This statute would be the basis for the petition filed by counsel for Moore and his co-defendants.
The principal obstacle before them was the Courtís ruling in Frank v. Mangum, where the Court denied the habeas petition of Leo Frank, who had been tried under circumstances similar to those endured by the defendants in the Phillips Country cases. One could not claim, according to the majority in Frank, that the state denied due process to a defendant whose trial had been dominated by a mob if it supplied some form of corrective process. Justice Oliver Wendell Holmes, joined by Justice Charles Evans Hughes, dissented, reasoning succinctly that "Mob law does not become due process of law by securing the assent of a terrified jury." The decision nonetheless concerned the Moore et al defense team, because the state of Arkansas had provided the men opportunities to appeal their convictions in the state supreme court, which had concluded that "it was not necessarily the case" that their trials had been "an empty ceremony."
The Court, whose composition had changed significantly since the disposition of Frank v. Mangum, ruled in favor of the Moore et al defendants. Justice Holmes would author the opinion of the Court in Moore et al v. Dempsey, making his dissent in the Frank case the law of the land. The Court took note of the fact that: 1) the community leaders of Phillips County had effectively promised that they would secure the death of the defendants by legal process if it would desist in its attempts to lynch them; 2) testimony against the defendants apparently had been obtained by torture; and 3) "an adverse crowd (threatened) the most dangerous consequences to anyone interfering with the desired result." The Court was particularly concerned about the conduct of the proceedings themselves, including the exclusion of blacks from the juries, the lack of pre-trial consultation with counsel, their failure to request a change of venue, subpoena witnesses, or place their clients on the stand, and the disturbingly summary length of deliberations by the juries. Justice Holmes declared: "If the case is that the whole proceeding is a mask-that counsel, jury, and judge are swept to the fatal end by an irresistible wave of public passion, and that the state courts failed to correct the wrong, neither perfection in the machinery for correction or the possibility that the trial court and counsel saw no other way of avoiding an immediate outbreak of the mob can prevent this Court from securing to the petitioners their constitutional rights." The state courtís disposition of the facts of a case, where they touched upon the enforcement of a federal right, would no longer be deemed sacrosanct. Even "perfection in the machinery for correction," which satisfied the Frank majority, would not suffice if, in the final analysis, the violation of a federal constitutional right or liberty were allowed to stand. It was eventually agreed that the Moore et al defendants would plead guilty to charges of murder in the second degree, with their sentences to be retroactively counted. On November 11, 1925, their sentences were commuted by Governor T. C. Mcrae, and they were released several months thereafter.
It is difficult to overstate the importance of the Courtís ruling in Moore v. Dempsey, both as a matter of constitutional law and as a pivotal point in the history of American civil liberties. The case was one of the earliest indications that the Supreme Court might emerge as the principal defender of civil liberties in the nation. Once the Court began to formally apply the provisions of the Bill of Rights against the states, the importance of the Moore precedent would become clear. The Court had, in that case, pierced the veil that shielded the factual circumstances of a trial, conducted by the state, from federal judicial oversight. Henceforth, federal judges could, in addition to examining the form of the proceedings, actually replicate the work of the state courts of appeal by examining, and if necessary, rendering new decisions with respect to the facts.
Inferior federal courts would be enlisted in order that the meaning of the broad constitutional liberties the Court was incorporating against the states could be precisely articulated and adapted to a myriad of legal and factual circumstances. The federal writ of habeas corpus would be an indispensable instrument by which the "Due Process Revolution" would be accomplished. The supremacy and uniformity of federal law would have been far more difficult to achieve were it not for the liberal habeas regime inaugurated under Moore v. Dempsey. It is fitting that the atrocities at Elaine, prosecuted according to the conviction that African Americans should not be equal in any sense of that term, would provide the occasion for judicial action which, if only to a limited degree, would grant all Americans greater protection of their constitutional rights.