Moore et al v. Dempsey Appeal: 1923

Appellants: Frank Moore and 11 others
Defendant: E.H. Dempsey
Appellants Claim: That a petition for writ of habeas corpus was wrongfully dismissed
Chief Defense Lawyers: Elbert Godwin
Chief Lawyer for Appellant: U.S. Bratton, Scipio A. Jones, and Moorefield Storey
Justices: Louis D. Brandeis, Pierce Butler, Oliver Wendell Holmes, Joseph McKenna, James C. McReynolds, Edward T. Sanford, George Sutherland, William Howard Taft, and Willis Van Devanter
Place: Washington, D.C.
Date of Decision: February 19, 1923
Decision: Order dismissing writ reversed; case remanded to district court

SIGNIFICANCE: Twelve African-Americans who had been condemned to death and had nearly been lynched ultimately were freed from imprisonment because the U.S. Supreme Court, led by fabled Justice Oliver Wendell Holmes, found that a threatening mob inflamed by racial prejudice had made the trial, which lasted only 45 minutes, "absolutely void."

On the evening of September 30, 1919, a number of black people gathered in their church in the Hoop Spur neighborhood of the village of Elaine, Arkansas, near the Mississippi River and a few miles south of Helena. Their purpose in meeting was to organize so they could get legal counsel to protect them against extortion that they said was practiced on them by the landowners under the sharecropping system then prevalent in Arkansas. The meeting was attacked and fired upon by a group of white landowners. In the melee that followed, a white man was killed.

The report of the killing stirred greater excitement. Many black men were hunted down. Some were shot. By the morning of October 1, a second white man, named Clinton Lee, had been killed. Twelve black men were arrested for his murder.

A "Committee of Seven" white men was chosen to direct the operation of putting down the "insurrection" and help discover who was guilty in the two killings. Local newspapers published inflammatory articles daily. On October 7, one member of the Committee of Seven made a public statement that the trouble was "a deliberately planned insurrection of the negroes against the whites, directed by an organization known as the 'Progressive Farmers' and 'Household Union of America' established for the purpose of banding negroes together for the killing of white people."

A mob marched to the jail, ready to lynch the 12 prisoners. National Guard troops held them off. Members of the committee promised then that, if the mob would refrain, those found guilty would be executed under the law.

A grand jury was organized. It included a member of the committee and several men who had been in the posse organized to fight the blacks. It heard testimony against the defendants from two black witnesses.

In a trial that lasted 45 minutes on November 3, the courthouse neighborhood was thronged with a threatening crowd. The 12 prisoners were informed that a lawyer had been appointed their counsel. He held no preliminary consultations with them. He challenged no member of the jury, which was all white (blacks were systematically excluded from all juries). He demanded no delay or change of venue. He did not ask for separate trials for each of the accused. Although witnesses for the defense could have been produced, he called none. He did not put the defendants on the witness stand.

The jury took less than five minutes to bring in a verdict of guilty of murder in the first degree. The sentence was death for all.

Studded Straps and Strangling Drugs

The National Association for the Advancement of Colored People (NAACP) entered the case. Its appeal to the Arkansas Supreme Court for a new trial cited the riotous atmosphere in which the case was tried and the appointment of counsel at the start of the trial. It also introduced affidavits of the defendants and of the two black witnesses, who now revealed that they had been rounded up by the Committee of Seven and that, along with some of the prisoners, they had been whipped with straps studded with metal, had had "strangling drugs" forced into their nostrils, and had been made to sit in an electric chair—all until they agreed to testify against the defendants.

The appeal was denied. The NAACP then applied to the Arkansas Chancery Court for a writ of habeas corpus on behalf of Frank Moore et al. (one of the defendants by name, and the other 11) against E.H. Dempsey, keeper of the Arkansas State Penitentiary, claiming that the conditions in which the case was tried deprived the defendants of their lives without due process of law.

The chancery court issued the writ and an injunction against the execution of the prisoners, who were scheduled to die two days later. But the Arkansas Supreme Court then held that the chancellor had no jurisdiction. With the executions delayed, however, the NAACP then filed a petition for a writ of habeas corpus in the District Court of the United States for the Eastern District of Arkansas. It dismissed the writ.

"The Whole Proceeding is a Mask'

The NAACP went to the Supreme Court of the United States. It cited testimony of two white men who had been members of the sheriff's posse and who swore that Clinton Lee had been killed by members of the posse during the confusion and that the black men had nothing to do with the murder. They also testified that they had personally whipped and drugged the two black witnesses to force from them the testimony they wanted.

The state of Arkansas argued that the Supreme Court had no jurisdiction to consider the appeal because "mere errors in point of law, however serious, committed by a criminal court in the exercise of its jurisdiction over a case properly subject to its cognizance cannot be reviewed by habeas corpus." Justice Oliver Wendell Holmes, writing the opinion of the court, disagreed. "The ground of the petition for the writ," he said,

is that the proceedings in the State Court, although a trial in form, were only a form, and that the appellants were hurried to conviction under the pressure of a mob without any regard for their rights and without according to them due process of law.

According to the allegations and affidavits, "there never was a chance for the petitioners to be acquitted"; no juryman could have voted for an acquittal and continued to live in Phillips County and if any prisoner by any chance had been acquitted by a jury he could not have escaped the mob.

If the case is that the whole proceeding is a mask—that counsel, jury and judge were 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 nor 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.

It does not seem to us sufficient to allow a Judge of the United States to escape the duty of examining the facts for himself when if true as alleged they make the trial absolutely void. Order reversed. The case to stand for hearing before the District Court.

The Supreme Court's remanding ended the case. The rehearing was never held, for shortly, under order of Governor Thomas C. McRae, the prisoners were released from the Arkansas State Penitentiary.

—Bernard Ryan, Jr.