Durham and Scottsboro

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Last spring, shortly after the Duke non-rape case exploded across the country, New York Times columnist Nicholas Kristoff warned readers not to jump to judgments, something that shocked the leftist readership of the paper — as well as some of the reporters, who were busily calling the Duke lacrosse players rapists. This case, Kristoff wrote, struck him more as a potential "Scottsboro Boys" situation than a bona fide rape. Indeed, the analogy fits much more than one might realize.

In this article, I revisit the Scottsboro Boys case — recognized today as one of the great travesties in American jurisprudence — and show how it has many parallels to the false charges of rape and kidnapping against Reade Seligmann, Collin Finnerty, and David Evans. Americans today might claim to be more sophisticated than the racist mobs of Scottsboro in 1931, but if what is happening in Durham is typical of our judicial system, then I think that perhaps we have gone backward in the past seven decades. As I hope to show, instead of progressing in the area of actual justice, it seems that the judicial system in the United States — and especially North Carolina — has come full circle.

The Scottsboro Case

This case began in 1931 when some unemployed blacks and whites started fighting while they rode together in a freight car on a train bound from Memphis to Chattanooga, which passed through northern Alabama. Riding the rails, as they called it, was not unusual for the "hoboes" of that time, and fights were common. The nine blacks forced all but one of the whites off the train, and when the train arrived in nearby Paint Rock, Alabama, police arrested the black hoboes.

Two women (dressed as men) were among the white drifters, Victoria Price, 21, and Ruby Bates, 17. They were unemployed textile mill workers from Huntsville, Alabama, who sometimes dabbled in prostitution, and both claimed that the blacks had raped them, something the black men denied. A mob of enraged whites tried to storm the Jackson County Jail in Scottsboro, and the governor sent national guard troops to keep order. Jackson County authorities promised a quick trial and execution. An indictment quickly followed, and after a brief trial in April, all were found guilty, with eight sentenced to death, and a 13-year-old boy sentenced to life imprisonment.

Attorneys filed appeals, which stayed the executions, and ultimately the U.S. Supreme Court in November 1932 overturned the convictions and ordered new trials. The International Labor Defense, which was the legal arm of the Communist Party, USA, secured noted criminal defense attorney Samuel Liebowitz to represent the defendants. They were tried in separate trials, and one person, Haywood Patterson, would be found guilty four times, each time sentenced to death. (He ultimately escaped and fled to Michigan, where the governor refused to have him extradited to Alabama.)

Ultimately, all of the Scottsboro Boys would be freed from prison, have charges dropped, or be pardoned altogether. Yet, it is not their fate that is most relevant to the Duke case (as tragic as it is that these young men spent one minute in jail), but rather the eerie parallels that exist between the two, which I will cover in the next section.

Similarities between the Duke and Scottsboro Cases

In both cases, the main accuser was what people today might call a "sex worker." Victoria Price was a woman with a reputation, as is the accuser in the Duke case. Price, in her testimony and in her statements to police claimed that she was raped by a number of men, but when she was given a medical examination, only a small amount of semen was found, and it was non-motile. (She had sex with a man in the Huntsville train yard a couple days before the alleged incident. No other semen was found, despite her insistence on having been gang-raped. In 1931, there was no DNA testing, although scientists were aware of DNA itself.)

The accuser in the Duke case also has claimed to being gang-raped, although the number of men she claimed had sexual intercourse with her dropped from 20 to three, as she continued to change her story. Like Price, she claimed that none of the men wore condoms, but medical exams found the DNA not of any Duke lacrosse player, but rather the DNA of another man who she said was her boyfriend.

Price’s fellow accuser, Ruby Bates, later would deny there had been a rape, saying that she made the accusation because of fear of being arrested for vagrancy. In the first trial, held at the Jackson County Courthouse in Scottsboro, Price and Bates gave conflicting testimonies, and although the defense pointed out the evidence to an all-white jury, nonetheless the convictions were swift.

In the Duke case, the partner of the accuser, Kim Pittman-Roberts, gave statements to the police that were wildly contradictory to the accuser’s claims, although Pittman-Roberts later said that she believed a rape occurred. (And later contradicted that statement, so it is clear that she has used up her credibility.)

Bates later recanted and in the retrials, testified in favor of the defendants. The prosecution claimed that she had been "bought off" by communists, and for whatever reason, subsequent all-white Alabama juries routinely voted guilty, with either imprisonment or death as the sentence.

In the Duke case, all blacks who have made statements that favor the defense are derided in the Durham black community as "Uncle Toms," including the late Ed Bradley, who led the "60 Minutes" team which did a story in October debunking the whole thing. James Coleman, the well-known black Duke University law professor who had raised serious issues about the way that District Attorney Michael Nifong secured the alleged "identifications" of the accused, also is called an "Uncle Tom," as is the African-immigrant cab driver who has provided an alibi for Reade Seligmann, one of the young men facing charges. Internet posts from Durham blacks claim that the defense has bought off Pittman-Roberts, along with the employees at the Platinum Club in Durham who have told reporters information that seriously damages both the credibility of the accuser, as well as pointing out that the accuser was pole dancing and stripping at the club after the alleged "rape," even though she had told police she was too badly injured even to sit up.

The medical evidence that by law had to be made public demonstrates, according to forensics expert Kathleen Eckelt, does not indicate rape. (Eckelt periodically has used her own experience and knowledge on her website to take apart the prosecution’s case, also making her the target of hateful emails from people in Durham.)

Scottsboro, as previously noted, had its own medical evidence that clearly pointed to innocence. Judge James E. Horton, who was the trial judge in Decatur at Patterson’s second trial, recognized that no rape happened:

Horton, along with virtually every other white person in Alabama, initially assumed that the Scottsboro defendants were probably guilty, but began to have doubts after listening to Price’s contradiction-riddled testimony.  His doubts grew to a conviction that the defendants were innocent after hearing the medical testimony of one examining physician, Dr. Bridges, and meeting privately with a second, Dr. John Lynch.  Dr. Lynch, initially on the state’s witness list, was dropped at the last moment because, the prosecution said, his testimony would only be redundant.  Lynch approached Horton shortly thereafter, and the two talked in the men’s room of the Decatur courthouse, with a bailiff guarding the door.  Lynch told Horton that he was convinced the girls were lying, and when he told them that directly, they merely laughed at him.  Horton urged Lynch to testify, but did not order him to do so, respectful of the young doctor’s concern that testimony in favor of the defense would end any chance he might have to build a successful medical career in northern Alabama.

Juries in Alabama, however, were not swayed by the exculpatory evidence. They usually convened for a short time before voting guilty, with death sentences added. After Haywood was convicted in 1933 at his second trial, Horton set aside the guilty verdict and ordered a new trial, saying that the evidence presented did not warrant a conviction. Like James Coleman and others in the Duke case who dare to challenge Nifong’s claims, Horton, too, was described as a "traitor to his race" and to the State of Alabama:

In May of 1934, Horton, who had been unopposed in his previous election to the bench, faced two primary opponents.  He finished second in the primary, then ran hard in the general election, but lost 9,416 to 6,856.  No one doubted but that his defeat was attributable entirely to his decision in the Scottsboro case.  Horton retired from politics, and devoted his remaining years to private practice and his plantation.  When asked about his decision in a 1966 interview, Horton quoted what he said was a phrase often-repeated in the Horton family, “fiat justicia ruat colelum” — let justice be done though the heavens may fall. 

Likewise, if the comments one hears on the street in Durham, as well as the comments on the website set up to support the accuser, one doubts that a jury consisting of Durham citizens would care to listen to anything but the prosecutor. From the various op-eds in the Durham Herald-Sun written by Duke professors and students that declare that the Duke 3 might not be guilty of rape, but they are "still guilty" and so should be convicted, to the various attacks on the attorneys for having the gall to defend their clients, the atmosphere in Durham is pure poison, and certainly would not be conducive to a fair trial.

Comments from local people include the webmaster of the support site, who argues that there must be a trial to be held in Durham:

They say even if there are "honest" African-Americans serving on the jury who don’t want to use the case as some kind of legal payback for past injustices committed by whites, they may very well be pressured, and in the words of one outrageous, yet ignorant commentator, actually threatened not to acquit the defendants because they are white, and the alleged victim is Black.

These supporters then have the nerve and gall to state plainly that they are not playing the race card.

Clearly, and most sadly, they are, and they are so blinded by their hate for the accuser and the Black community, they just can’t openly admit it.

Since I am the "outrageous, yet ignorant commentator" of whom the website director is speaking, all I can say is that I am not "blinded by…hate for the accuser and the Black community." However, after observing the atmosphere at Durham and Duke University, all I can say is that I never have seen the kind of absolute hatred poured out against innocent people by members of the Duke faculty, and local "leaders" for the "crime" of being young, white, male, and a member of the Duke University lacrosse team.

I have spoken out for people wrongfully accused, both black and white, yet I am branded a racist. Joe Cheshire, who represents David Evans, often has represented black clients pro bono and has forcefully defended blacks accused of crimes. Here is what the website set up by Durham’s "black leadership" says about him and the other attorneys:

Their bigoted and wicked defense lawyers as well as…alumni don’t understand who is really in control of the three’s… future, but those of us of great faith know who is in control of the outcome of this case. GOD is in control and He is the Sovereign Ruler of this universe and nothing happens outside of His control. What I am telling you sister is don’t be dismayed by the wicked tactics of the defense attorneys and by …alumni, because the battle is the Lord’s and He says vengeance belongs unto Him and He will repay, and it is a fearful thing to fall into the hands of the living GOD of the universe. HEBREWS 10:30:31

Others of the Duke 3 defense team have done the same for black clients, and all of them have a strong reputation for fairness and decency. Yet, after reading these diatribes against them, I would ask the simple question: Who is consumed by racial hatred? Indeed, would anyone wish to face a jury consisting of people who are influenced by the people who have written these accusations? It would seem to me that a Durham jury would no more be fair than the Alabama juries in the Scottsboro Boys case.

I don’t make such statements in the throes of racial hatred. Instead, I make them because I believe that a supposed system of "justice" that ignores truth is itself a lie, and the leaders of Durham from the mayor to the black ministers to the NAACP already have declared the three young men to be guilty.

The Prosecutors

Obviously, no high-profile trials can go on without high-profile prosecutors. I already have written reams of copy on Nifong, and have nothing more to say about him here except that he is an exceptionally dishonest and evil person who plays toward the worst instincts of the voters.

The prosecutors of the Scottsboro Boys also realized the political implications — and political benefits — of pursuing this case. Yet, the main prosecutor, Thomas E. Knight, Jr., ultimately would come to the conclusion that Victoria Price was lying, but chose to pursue the case anyway. I am convinced that Knight understood soon into the case that the charges almost certainly were false.

The medical evidence alone simply did not corroborate Price’s contradictory statements, but to go against the politics of race would demand more courage than Knight would have. (After the first convictions, Knight’s father, who sat on the Alabama Supreme Court, would vote to uphold the convictions that later were overturned by the U.S. Supreme Court.) Ultimately, Knight would admit to Liebowitz in a clandestine meeting in New York that he believed Price was lying, but still sought jail time for the defendants on other charges.

Knight’s assistant prosecutor, Wade Wright, also had the spirit of Michael Nifong. For example, Wright once exclaimed in his closing arguments to the jury during the Patterson trial, “…show them that Alabama justice can not be bought and sold with Jew money from New York.”

Nifong already has publicly stated: "There’s been a feeling in the past that Duke students are treated differently by the court system…There was a feeling that Duke students’ daddies could buy them expensive lawyers and that they knew the right people." After Nifong was able to beat a recall in the November election, supporter Harris Johnson, a former North Carolina Democratic Party official, declared that, “This goes to show that justice can’t be bought by a bunch of rich white boys from New York.”

Most important, no prosecutor in either Scottsboro or Duke ever showed a whit for principle. Knight was representing his client, the State of Alabama, which wanted a conviction, period. Nifong represents his client, the government of North Carolina, which already has a rich history of wrongful convictions. Indeed, I would say that Nifong is a most worthy successor to Knight, who was wildly popular with white Alabamians. (Nifong is wildly popular with black voters of Durham.)

Feminists and Accusations of Rape

There is one more aspect of the Scottsboro Boys and Duke cases that needs to be examined, and that is the support that feminist groups have had for the accuser. Furthermore, after Nifong realized that the DNA tests all were negative (after he had promised a judge that the tests would reveal both who was guilty and who was innocent), he then declared that he would win a conviction "the old fashioned way," with no DNA evidence and with just a female’s accusation.

As I pointed out in an earlier article, Wendy McElroy told me that feminists “are more dismissive of DNA than you realize because it has too often contradicted the account rendered by female rape victims. Namely, DNA testing has identified and released from jail too many men who were wrongly identified by their alleged victims. This weakens the argument that you should always believe the woman.” Indeed, I have read posts by feminist supporters of the Duke accuser who say that the trial only should be the woman making her accusations, and the defendants denying it, with the jury to decide which story is more believable.

What is important is that she held that DNA was irrelevant and should not be permitted to be a factor in the case, something that Nifong’s other supporters also declare. (While it is true that DNA is not used as evidence in many rape cases, that is because the alleged rape is not reported for several days after the incident has taken place, so no credible DNA material is able to be found. In order for the DNA tests to be valid, a woman’s body must be treated as a veritable crime scene in the hours immediately following the alleged rape. By the way, that is precisely what was done in the Duke case, so one can be assured that DNA results are not tangential to this case, despite Nifong’s attempts to ignore those results.)

Thus, if feminists hold that women almost always (and some feminists like Wendy Murphy maintain that women never make false rape claims) tell the truth in rape cases, then what do we make of the claims of Victoria Peterson and Ruby Bates? Feminists often will declare that a recantation of a rape charge also is proof that a rape occurred. (We have the logical absurdity in which testimony and testimony that contradicts the original testimony both are declared equally true and valid.)

To follow that logical train, then Bates’ recantation was "proof" that she was raped, just as Bates’ earlier story also was proof of the crime. Likewise, since Victoria Price claimed to her grave that she had been raped on that train by the Scottsboro Boys, that also, according to modern feminists, constitutes “proof” of the rape.

Yet, the Scottsboro Boys case is universally recognized as a monumental travesty of justice in this country, and it is recognized as a travesty because the medical evidence, as well as contradictory stories from the accusers pointed strongly toward the defendants’ innocence. Are feminists going to go on the record to say that Knight was correct and that Horton and the defenders of the Scottsboro Boys were wrong?

After all, if the "woman always is to be believed," then we must believe Peterson and Bates (at least her original story). Thus, if modern feminists are to be consistent in their thinking, then the real travesty in the Scottsboro Boys case was not their having been imprisoned, but rather their having been freed and not put to death.

Conclusion

If we have learned anything from the Scottsboro Boys case, it is that history seems to repeat itself, but often as farce. Many of the same people who would recognize that the events in Alabama of the 1930s were a travesty of justice are now willing to do exactly what the white mobs in Scottsboro were demanding. In other words, they have learned nothing from Scottsboro except for how to devise methods to railroad other innocent people into prison.

If there is anything that can be learned from either case, it is that human beings are terribly flawed creatures who are capable of doing evil things to one another. It also demonstrates that a system of justice that is populated with people who do not care about the truth is going to be a machine of injustice. One would hope that people are capable of learning the lessons of the past, but if the Duke case is an indication of modern American jurisprudence, then we have gone backwards.

After all, there were thousands of people who supported the Scottsboro Boys. The Communist Party USA for a brief time actually stood for justice. (That same party would stand solidly behind Josef Stalin’s infamous Moscow Show Trials in a few years.) And in Alabama, there was at least one judge — one employee of the State of Alabama — who showed courage, principle, and integrity.

So far, there have been no representatives of the State of North Carolina that have legal authority and who have tried to step in and end this injustice. None. Yet, I have no doubt that the prosecutors and judges of North Carolina today think of themselves as being morally superior to the prosecutors and judges of Alabama 70 years ago. Well, so far, it is Alabama 1, North Carolina 0. That system in Alabama produced at least one honest and courageous man; the North Carolina system has produced none.

December 14, 2006

William L. Anderson, Ph.D. [send him mail], teaches economics at Frostburg State University in Maryland, and is an adjunct scholar of the Ludwig von Mises Institute.

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