The Scottsboro Boys Revisited

Today's Opinion Journal features an editorial by John Steele Gordon that reminds us of another famous case of wrongful prosecution on the basis of race and class:

On March 25, 1931, a group of nine young black men got into a fight with a group of whites while riding a freight train near Paint Rock, Ala. All but one of the whites were forced to jump off the train. But when it reached Paint Rock, the blacks were arrested. Two white women, dressed in boys clothing, were found on the train as well, Victoria Price, 21, and Ruby Bates, 17. Unemployed mill workers, they both had worked as prostitutes in Huntsville. Apparently to avoid getting into trouble themselves, they told a tale of having been brutally gang raped by the nine blacks.

The blacks were taken to the jail in Scottsboro, the county seat. Because the circumstances of the women's story--black men attacking and raping white women--fit the prevailing racial paradigm of the local white population, guilt was assumed and the governor was forced to call out the National Guard to prevent a lynch mob from hanging the men on the spot. The nine were indicted on March 30 and, by the end of April, all had been tried, convicted and sentenced to death (except for the one who was 13 years old, who was sentenced to life in prison).

A year later, the Alabama Supreme Court upheld the convictions of those on death row, except for one who was determined to be a juvenile. By this time, however, the "Scottsboro Boys" had become a national and even international story, with rallies taking place in many cities in the North. Thousands of letters poured into the Alabama courts and the governor's office demanding justice.

The International Labor Defense, the legal arm of the Communist Party USA, provided competent legal help, and the convictions were overturned by the U.S. Supreme Court because the defendants had not received adequate counsel. Samuel Leibowitz, a highly successful New York trial lawyer (he would later serve on the state's highest court) was hired to defend the accused in a second trial, held in Decatur, Ala. This turned out to be a tactical error, as Leibowitz was perceived by the local jury pool--all of them white, of course--as an outsider, a Jew and a communist (which he was not). Even though Ruby Bates repudiated her earlier testimony and said no rape had taken place, the accused were again convicted, this time the jury believing that Ruby Bates had been bribed to perjure herself.

Again the sentences were overturned, and in 1937--six years after the case began--four of the defendants had the charges dropped. One pleaded guilty to having assaulted the sheriff (and was sentenced to 20 years) and the other four were found guilty, once again, of rape. Eventually, as Jim Crow began to yield to the civil rights movement, they were paroled or pardoned, except for one who had escaped from prison and fled to Michigan. When he was caught in the 1950s, the governor of Michigan refused to allow his extradition to Alabama....

Here is where the real difference between the Scottsboro boys and the Duke boys kicked in: not race but money. The Scottsboro boys were destitute and spent years in jail, while the Duke boys were all from families who could afford first-class legal talent. Their lawyers quickly began blowing hole after hole in the case and releasing the facts to the media until it was obvious that a miscarriage of justice had occurred. The three Duke boys were guilty only of being white and affluent.

But former defense attorney David Feige writes in Monday's Slate that prosecutorial misconduct is common but rarely punished.

Now that justice has prevailed in the Duke rape case, with the nice innocent boys exonerated and the prosecutor who hounded them disbarred, it is tempting to chalk the whole incident up to an unusual and terrible mistake—a zany allegation taken too seriously by a run-amok prosecutor. It would be pretty to think that Nifong's humbling suggests that our system of justice works well, harshly punishing the few rogue prosecutors who subvert the legal process. But this is simply not true.

Prosecutors almost never face public censure or disbarment for their actions. In fact, it took a perfect storm of powerful defendants, a rapt public, and demonstrable factual innocence to produce the outcome that ended Mr. Nifong's career. And because only a handful of prosecutors will ever face the sort of adversaries Nifong did or come close to the sort of scrutiny the former DA endured, the Duke fiasco will make little difference in how criminal law is practiced in courthouses around the country. Regardless of Nifong's sanction, the drama leaves prosecutorial misconduct commonplace, unseen, uncorrected, and unpunished.

One could say the same for all the myopic lemmings with pitchforks of the Fourth Estate, talk radio, university campuses, and the political blogosphere, not to mention the sorry political class worldwide.