On the Laps of Gods

Reviewed by Margaret Russell

By Robert Whitaker
Crown, 400 pages,
$24.95, hardcover

The ongoing importance of Guantanamo detainees? habeas corpus rights and the U.S. Supreme Court?s ruling last June on the issue (Boumediene v. Bush, 128 S. Ct 2229 (2008)) provide good reasons to read this compelling book, which centers on a historical account of Moore v. Dempsey (261 U.S. 86 (1923)), a pivotal habeas case of the early twentieth century. Moore, which recognized the defendants? Fourteenth Amendment rights to use the federal habeas writ to challenge their state criminal trials, was a landmark case for two reasons: It restored federal habeas and Fourteenth Amendment rights after their evisceration by the post-Reconstruction Court; and it denounced the sham trials of black sharecroppers arising from the 1919 Elaine Massacre.

The infamous clash near the town of Elaine, Arkansas, began on September 30, 1919, during a period of lynchings and other racial violence so bloody that writer James Weldon Johnson dubbed it ?The Red Summer of 1919.? Driven by antilabor and antisocialist fervor as well as racism, a group of white vigilantes opened fire at a meeting of black sharecroppers in order to stop them from organizing a union; a white sheriff was killed. The white community reacted by accusing the black sharecroppers of conspiring to kill all white planters. The following day a bloodbath ensued. Federal troops intervened and in the process killed several black people. Robert Whitaker reports that 4 whites and more than 100 blacks were killed in that wave of violence, but he says that the number of blacks murdered was perhaps two or three times what was officially reported. The white community blamed blacks alone for the riots, and more than 300 blacks were jailed. The events proved to be a massacre of the law as well.

Whitaker, a distinguished journalist, skillfully delves into the themes of racial hatred and the capacity of law (and lawyers) to either reinforce or rectify systemic injustice. The book unfolds around three distinct narratives: the massacre in historical context; the ensuing twelve capital cases, culminating in the Moore Supreme Court challenge; and the story of Scipio Africanus Jones, the pioneering black Arkansas attorney (and former slave) who eventually won freedom for a dozen sharecroppers convicted of capital murder. Through several petitions and litigation, Jones represented all of the condemned men. In Moore v. Dempsey, a petition Jones filed on behalf of Frank Moore and four other condemned farmers, Jones sought release from incarceration by E. H. Dempsey, the keeper of the Arkansas State Penitentiary.

The first half of the book chronicles events leading up to the prosecutions. Whitaker describes the massacre as part of a broad pattern of racial crimes and federal refusals to stop them. He cites President Woodrow Wilson and Attorney General Mitchell Palmer?s standard reply to pleas for intervention: ?The law, as laid down by the Supreme Court of the United States, is to the effect that lynching is a crime which can be dealt with only by the State authorities and over which the Federal Government has no jurisdiction.? The Court?s decisions in U.S. v. Cruikshank (1875) and U.S. v. Harris (1883), which denied federal jurisdiction over white mob violence, had resulted in the refusal to enforce Fourteenth Amendment protections for blacks for an entire generation. Thus, the habeas petitions of the Elaine Massacre defendants served as a critical turning point in constitutional law.

The remainder of the book focuses on the Moore case and its legacy. Whitaker gives a harrowing description of the prosecutions built from the torture-induced testimony of the prisoners. The initial trials took place at breakneck speed, with no defense witnesses or challenges to the all-white juries. The first and longest trial lasted just 84 minutes, with a conviction returned in 8 minutes. Whitaker writes that subsequent juries ?raced the clock ? until the last jury made it back in two minutes, which perhaps still stands today as some sort of national record for the fastest verdict ever in a capital case.?

After losing all state appeals, Scipio Jones crafted a careful route to the U.S. Supreme Court. Before the high court, Jones retooled habeas arguments that had been rejected by the Court eight years earlier in the famous Leo Frank case, and Jones won a surprising victory from a mostly conservative Court. In his recounting, Whitaker devotes nuanced attention to the history of habeas corpus, the Moore arguments, the dynamics of the Taft Court, and the defendants? ultimate triumph, as expressed in Oliver Wendell Holmes?s eloquent majority opinion.

In sum, all these fascinating and multilayered narratives are almost too rich for one book. At times, I wondered if the author had originally contemplated a longer or multivolume project. However, as Whitaker convincingly explains, knowing the story behind Moore is essential to understanding why it ?remade the nation? and ?guided the revolution in due process law that unfolded, step by step, over the next forty-five years.?

As the Guantanamo cases demonstrate, the need for such protections continues.

Margaret Russell is a professor at Santa Clara University School of Law. She is the editor of the forthcoming book The First Amendment: Freedoms of Assembly and Petition (Prometheus Books, 2009).

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