Criminal Justice Section  

   Criminal Justice Magazine

Criminal Justice Magazine
Fall 2000
Volume 15, Issue 3

Book Reviews

Arthur L. Burnett, Sr., and Paul Giannelli

Contempt of Court

By Mark Curriden and Leroy Phillips, Jr.; Faber and Faber, Inc., 1999; 394 pp.; $30.

Reviewed by Arthur L. Burnett, Sr.

Contempt of Court: The Turn-of-the-Century LynchingThat Launched a Hundred Years of Federalism is far more than just a dramatic narrative of justice gone awry when a black man was convicted on flimsy evidence—evidence based on the word of the white female rape victim that he "looked like" the perpetrator, though she was uncertain; and of an eyewitness, who, for a cash reward, identified the defendant as the man with a black leather strap he had seen lurking in the area near the time of the offense. Hapless Ed Johnson was convicted and sentenced to death, despite a dozen defense witnesses who provided a solid alibi for him at the time of the offense. The case was tried in 1906 in Chattanooga, Tennessee. Its outcome was the product of blatant racism and prejudice, political considerations of state officials seeking reelection, and a judiciary manipulating the system to prevent two African American lawyers from effectively prosecuting an appeal on behalf of the defendant. This book is powerfully incisive in narrating the story of the fate and injustice that befell Ed Johnson merely because he was black. It also portrays the courage and bravery of the two black lawyers who dared to put their lives at stake in pursuing appeals on his behalf all the way to the United States Supreme Court.

But the book is far more than this. It is about the seminal case for the growth of federalism over the past nearly 100 years. When the Supreme Court intervened in this state criminal matter, the first in which it had done so, a column in the Chattanooga News stated: "The federal government’s interference in this matter is unwarranted, offensive and a challenge to the very sovereignty of our state. The federal government and Supreme Court have no business interfering with a local criminal case."

It must be remembered that in 1906 the Supreme Court had not interpreted the Equal Protection Clause of the Fourteenth Amendment as incorporating the substance of the Bill of Rights. Just imagine if every county, city, or state official could simply ignore the orders and rulings of the United States Supreme Court. In what type of nation would we live today? This case went to the very integrity and authority of the U.S. Supreme Court, deciding whether its rulings would be a sword and shield for protecting individual rights and ensuring justice, or only exhortatory pronouncements on paper.

The actions taken by the Supreme Court in the cases known as Tennessee v. Johnson and United States v. Shipp were necessary to preserve the integrity and honor of the Supreme Court itself. They were also needed in order to educate state officials and all citizens of this nation to the power and influence of the Supreme Court as the ultimate authority in interpreting the law under the Constitution. Justice Holmes, in his written opinion in the Shipp case, cogently stated that the Supreme Court had the sole discretion to decide when it has jurisdiction in a state or federal matter. "The power and dignity of the Court are paramount. The Court is pre-eminent."

Following the issuance of a stay of execution by Justice John Marshall Harlan, who concluded that there was sufficient evidence that Johnson’s rights to a fair trial had been violated, a mob entered the jail, broke into Johnson’s cell, and took him to a nearby bridge—where they lynched him. The Supreme Court justices, incensed that the Court’s authority had been impugned by state officials and members of the lynch mob, ordered the U.S. attorney general to bring criminal contempt of court charges against the sheriff, his deputies, and those members of the lynch mob who could be identified. In its preliminary ruling, the Supreme Court declared that it alone had jurisdiction to decide whether the case was properly before it. Prior to that time no judicial precedent had established the authority of the High Court to intervene in state criminal matters. For the first and only time in the nation’s history, the Supreme Court designated a special master to take evidence to be submitted for Court review. It conducted the trial in this manner, with the justices acting as jurors in determining whether those charged were guilty of contempt of the U.S. Supreme Court. On May 24, 1909, in a five-to-three decision, they found the sheriff, a deputy, and four others guilty of contempt. In November of the same year, the Court meted out 90- and 60-day sentences. Many thought the sentences too lenient considering the defendants had allowed or participated in the murder of a person whose case was pending the Court’s review.

This case was also the first in which African American lawyers served as the lead counsel for a defendant in a case before the U.S. Supreme Court. In return, Noah Walter Parden and Styles L. Hutchins were subjected to threats to their lives and vandalism and arson to their homes and offices, along with other sorts of intimidation. Although little known to today’s lawyers and law students, their role in the evolving constitutional law and respect for individual and civil rights has been aptly recognized by one of the greatest civil rights lawyers and judges of the twentieth century. The late Justice Thurgood Marshall in 1991 stated: "Very few people understand the import of the Shipp trial. Its significance has never been fully explained. Shipp was perhaps the first instance in which the Court demonstrated that the 14th Amendment and the equal protection clause have any substantive meaning to people of the African American race. The Shipp case served as a foundation for the many cases which were to come."

Following the decision in Shipp in May 1909, Parden stated: "The very rule of law upon which this country was founded and on which the future of the nation rests has been enforced with the might of our highest tribunal. We are at a time when many of our people have abandoned the respect for the rule of law due to the racial hatred deep in their hearts and souls, and nothing less than our civilized society is at stake."

The cases of Tennessee v. Johnson and United States v. Shipp, though not well known, played a significant role in the preservation of the rule of law in this country. The Supreme Court’s actions in these cases laid the foundation for future rulings that expanded individual rights in criminal cases. This legal precedent paved the way for the Supreme Court, years later, to find that many provisions of the Bill of Rights applied to the states in criminal cases.

This book focuses our attention on these issues that go to the very core of our legal system. It should remind us that we must be most careful in our current judicial decision making and legislative policies that try to restrain and limit federal judicial oversight in the area of habeas corpus and postconviction reviews of criminal convictions—especially when there is a colorable showing of innocence or when the degree of punishment may far exceed what the true facts require. In our zeal to curb federal judicial intervention in state criminal cases, or even postconviction reviews of federal convictions, we must be careful that the pendulum does not swing so far back that we undermine the progress we’ve made in protecting individual rights. We must not destroy or diminish the capacity of the federal judiciary to right wrongs and to protect individuals from injustices such as occurred in the case of Ed Johnson, who finally, this year, had his conviction posthumously set aside. We must not forget his dying lament: "God bless you all. I am an innocent man." These were the words engraved on his tombstone.

This book is a "must read" for all who cherish the Constitution, its Bill of Rights, and respect for individual rights. Every law student and lawyer, judge and legislator should read and reflect on the lessons this book teaches us, so that the balance between accountability of individuals for crimes and respect for the Bill of Rights will be truly struck, and the rights and dignity of no individual will be destroyed or wrongly denied in the process.

 

Rape and the Culture of the Courtroom

By Andrew E. Taslitz; New York: New York University Press, 1999; Paperback $18.50; Hardbound $55.00.

Reviewed by Paul Giannelli

Professor Andrew Taslitz of Howard University has written a fascinating and provocative book. Although he recognizes the reforms in rape law that have been adopted in the last decades, he believes that these reforms have "largely failed." He asserts that societal views of rape, "cultural rape narratives," stack the deck against the rape victim and that the adversary process, as now practiced, further precludes a fair telling of the victim’s story.

Taslitz relies on "storytelling theory" to establish his basic point. Jurors come into the jury box with a wealth of life experience—evidence that scholars refer to as "jury knowledge." A juror views the "admitted evidence" through the lens of this experience. Storytelling theory adds another insight. A significant body of research indicates that storytelling shapes our reasoning process. Stated differently, jury knowledge is processed in terms of stories: Is the prosecution story or the defense story more consistent with a juror’s experience? In short, which story makes more sense?

Most trial lawyers are familiar with the thesis, if not all the underlying research, which is quite extensive and well worth knowing in its own right. In those rape trials in which consent is the contested issue, the jury looks for "narrative coherence." Is the story inconsistent with the jurors’ preexisting stories drawn from their own experience? The jurors also look for "narrative fidelity"—whether relevant facts are omitted or distorted, and whether the conclusions drawn from those facts seem valid.

The major contribution of the book, in my judgment, comes next. Taslitz delves into the sources of our cultural stories about rape. He uses a wide-ranging knowledge of feminist scholarship on female stereotypes and the sociology of rape to identify these stories, which he concludes (correctly, I think) are patriarchal.

Cultural stories come from books, films, television, and news accounts. For example, in the 1960 movie Where the Boys Are three female characters remain virgins, while the fourth, played by the actress Yvette Mimieux, consents to sex and then is later the victim of a date rape. "By the end of the film . . . she is the in-shock victim of date rape, wandering through traffic aimlessly until hit by a car. The message: Mimieux brought this on herself by her overt expressions of real sexual desire." He also cites the television series Police Woman "in which rape victims were consistently young and ‘asking for it’ by engaging in professions that required at least the semblance of an overt expression of sexual desire: nude modeling, stripping, or pornographic acting. An officer on the show commented that one victim was ‘not exactly the kind of chick who’d have to have her arm twisted.’" Thomas Hardy’s Tess of the D’Urbervilles and Roman Polanski’s 1979 movie version are also used to illustrate the "rape as seduction" story line. The news media also play an important role: "Early press coverage of William Kennedy Smith’s case also portrayed the victim as wild: driving fast cars, going to parties, skipping classes, and having affairs. Her independence of mind was portrayed as sluttishness, while Smith’s sex life was largely ignored." One observer has concluded that American society’s dominant image of white women is "mother, virgin, or whore," while African American women have only the last image. Cultural images of African American males as sexually aggressive also contribute to cultural rape narratives.

Taslitz concludes: "We can reason only by stories, and absent the most careful intervention to substitute other tales, we are bound by the dominant cultural narratives. . . . The defendant’s tale simply seems more plausible than the woman’s precisely because the former matches cultural rape stories."

Taslitz next examines how defense lawyers use these stories. For example, a defense attorney in one trial argued: "There are some girls who are Lolitas. . . . Do you know Lolitas, fourteen, fifteen, and dress-up like they are eighteen and nineteen, to entice and attract?" The jury recognizes the story, either from Vladimir Nabokov’s novel or the movie versions. Other rape trials, including the Mike Tyson prosecution, are dissected.

Another theme concerns research showing differences in how men and women communicate, and how this difference works to the victim’s disadvantage in attempting to communicate her story at trial. Here, Taslitz connects a substantial body of social science research and trial practice, showing how the defense attorney in the William Kennedy Smith trial cross-examined the alleged victim to distort (according to Taslitz) her story.

Finally, Taslitz proposes a number of reform measures, including permitting victims to testify in narrative form, the use of "intermediaries" to examine rape victims at trial, and the use of experts to counter cultural stories. These proposals are controversial. Nevertheless, the book is packed with valuable insights and offers a unique, and often compelling, perspective.

  Hon. Arthur L. Burnett, Sr ., is a senior judge on the Superior Court of the District of Columbia. He is also a member of the Criminal Justice editorial board. Paul Giannelli is the Weatherhead Professor of Law, Case Western Reserve University, and a member of the Criminal Justice editorial board.

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