When Law Fails

Making Sense of Miscarriages of Justice

Austin Sarat, Charles J. Ogletree, Jr.

• Publisher: NYU Press
• Year: 2009
• ISBN:
  9780814762257
• Topic: Derecho
• Subtopic: Ley contra la discriminación

Since 1989, there have been over 200 post-conviction DNA exonerations in the United States. On the surface, the release of innocent people from prison could be seen as a victory for the criminal justice system: the wrong person went to jail, but the mistake was fixed and the accused set free. A closer look at miscarriages of justice, however, reveals that such errors are not aberrations but deeply revealing, common features of our legal system.

The ten original essays in When Law Fails view wrongful convictions not as random mistakes but as organic outcomes of a misshaped larger system that is rife with faulty eyewitness identifications, false confessions, biased juries, and racial discrimination. Distinguished legal thinkers Charles J. Ogletree, Jr., and Austin Sarat have assembled a stellar group of contributors who try to make sense of justice gone wrong and to answer urgent questions. Are miscarriages of justice systemic or symptomatic, or are they mostly idiosyncratic? What are the broader implications of justice gone awry for the ways we think about law? Are there ways of reconceptualizing legal missteps that are particularly useful or illuminating? These instructive essays both address the questions and point the way toward further discussion.

When Law Fails reveals the dramatic consequences as well as the daily realities of breakdowns in the law's ability to deliver justice swiftly and fairly, and calls on us to look beyond headline-grabbing exonerations to see how failure is embedded in the legal system itself. Once we are able to recognize miscarriages of justice we will be able to begin to fix our broken legal system.

Contributors: Douglas A. Berman, Markus D. Dubber, Mary L. Dudziak, Patricia Ewick, Daniel Givelber, Linda Ross Meyer, Charles J. Ogletree, Jr., Austin Sarat, Jonathan Simon, and Robert Weisberg.

Part I

On the Meaning and Significance of Miscarriages of Justice

Chapter 1

The Case of “Death for a Dollar Ninety-Five”

Miscarriages of Justice and Constructions of
American Identity

Mary L. Dudziak

One July night in Alabama in 1957, a story began that would capture, for a moment, the attention of the world. That it involved a man, a woman, and a small amount of money, all could agree. The man was black, the woman was white, the criminal charge was robbery. The penalty was death. About the remaining details, there were different stories, but one thing was clear: at stake in the case was not just the life of Jimmy Wilson but the meaning of America.

This is a story about a case long forgotten. It was, as it turns out, the point of the case for Jimmy Wilson to be forgotten, so that America might emerge unsullied.

Jimmy Wilson is not the first disappearance to be noted in American legal history, of course. Others have written about the ways that human beings disappear in law. Cases come to stand for principles and legal concepts, but the human whose life story gave rise to a legal dispute fades from the page. The detachment of legal idea from life story has often been described as an absence that affects our understanding of the true meaning of law and justice. John T. Noonan, Jr., has suggested that “neglect of persons… led to the worst sins for which American lawyers were accountable.”¹ The absence of the person has also been described as imposing a false or incomplete narrative. Kendall Thomas has written that the absence of the person in legal history leaves an “ordered image that the historical narrative of constitutional progress imposes on an unruly past.” Angelo Herndon, an unjustly imprisoned African American labor organizer, was not forgotten by legal history, but Thomas describes the “dissection” and “dismemberment” of this human being’s encounters with the law, with episodes fitting into different doctrinal categories, obscuring the whole.²

But the erasure of the person from the law is more than a hole, an absence, an incompleteness. It also aids in the forward-looking construction of ideas about the nature of American justice.³ When legal principle is detached from human person, American justice is measured through the march of principle. Ambiguities and injustice in the individual case do not get in the way of the story. The nation can be identified with certain legal ideas, with the idea of a rule of law itself. The messiness of life stories does not disrupt this construction of national self-identity.

The Jimmy Wilson case illustrates this. The case captured attention at home and abroad, feeding a global debate about the nature of American democracy. This helps us to see the way narratives of justice and the rule of law aid conceptions of American identity.⁴ It is not simply the law but the nation that is constructed when we form legal narratives. When the image of American justice is fractured, resolutions of miscarriages of justice often serve to repair a breach in American identity, making America whole again. What happens to the person at the center of the story is, at best, secondary. In fact, for America to be whole, Jimmy Wilson needed to disappear. In this way, forgetting Jimmy Wilson did not simply leave a void in our understanding, as Noonan might suggest but, instead, aided the formation of a particular national narrative. In this case, for the story to turn out right, the nation is restored, and the person is forgotten.

Death for a Dollar Ninety-Five

The case of “Death for a Dollar Ninety-Five” began in Marion, about 80 miles northwest from Montgomery, Alabama, the state capital. Montgomery “remained one of the most rigidly segregated cities of the South,” in the 1950s, historian Patricia Sullivan has written. The urban South had been energized by World War II, and the city’s population had increased by nearly 50 percent during the 1940s. Though many new migrants were white, Montgomery remained 37 percent African American in 1951, but “only 3.7 percent of eligible black voters were registered.”⁵ Alabama was also home to the city of Tuskegee, the site of the legendary Tuskegee Institute and the location of a notorious 1960 voting rights case, when the city redrew its boundaries to exclude nearly all African Americans from the city limits to ensure that they could not vote in city elections.⁶ Events in Birmingham and elsewhere in the state would move the conscience of the nation and the world in the 1960s.⁷ But in 1950s Alabama, Jim Crow’s hold remained firm: nearly all elected officials, judges, police officers, and jurors were white.⁸

Alabama was in the news in the 1950s, ground zero in what was still a fledgling civil rights movement. Martin Luther King, Jr., was a new, 26-year-old pastor at the Dexter Avenue Baptist Church when the Montgomery bus boycott catapulted him to civil rights leadership in 1956. The year-long struggle by the African American community against segregation in Montgomery captured the attention of the nation and the world.⁹ But the full impact of this effort, and the course of the movement, could not be known in 1957 when Jimmy Wilson found himself in a jail cell. That the nation was on the cusp of change held out promise for an African American defendant in Alabama, but also trouble.

“I Speak for the White Race,” was the headline in a weekly column in the leading local newspaper by a local judge in March 1957. Judge Walter B. Jones cut to the heart of the issue, as he saw it:

I speak for the White Race, my race, because today it is being unjustly assailed all over the world. It is being subjected to assaults here by radical newspapers and magazines, Communists and the Federal Judiciary. Columnists and photographers have been sent to the South to take back to the people of the North untrue and slanted tales about the South.… Their real and final goal is the intermarriage and mongrelization of the American People.

His race would “never submit,” Jones insisted. “The white race shall forever remain white.”¹⁰

Linking equality with miscegenation had been a central theme for some time. Virginia Durr wrote that, for the White Citizens Councils that had “flowered all over the Black Belt” after Brown v. Board of Education, “their slogan is that ‘the end of segregation will mean unlocking the bedroom doors of our white women to Negro men.’”¹¹ Other Southern leaders would famously stand at the schoolhouse door, drawing a line there for white supremacy.¹² Alabama state judges drew the line where they could, in the cases in their courtrooms.

It was in this context that Jimmy Wilson walked into Estelle Baker’s bedroom one night. The Montgomery Advertiser reported the story on August 2: “A 53-year-old Negro is charged with burglary, robbery and robbery with intent to ravish of an elderly widow last Saturday night” The widow, Mrs. E. B. Baker, “said the robber ordered her to give him money, and was given a few dollars from her purse. He was not satisfied with the amount, she said, and choked and threatened her until he was frightened away by a noise from a nearby home.”¹³

This was not, however, an encounter between strangers. Baker testified at trial that Jimmy Wilson had worked for her in her yard. On the evening of July 27, he arrived at her home, “and said he had come to do some work. She replied that it was too late.”¹⁴ Wilson asked for some water, and Baker told him to go outside, to the back of the house, and get water there, as he had before. Wilson went outside and then entered the house again through the back door: “She asked him what he wanted and he said he wanted her money. She said she had none and he said, ‘Yes, you have too.’ She went to her wardrobe and got her purse and he told her to ‘pour it out on the bed.’” Baker said that she poured about $3.95 onto the bed, and that he took most of it. Then, she said, “He threw me on the bed, pulled off my stepins, and attempted to rape me, that is what he did.”¹⁵ Baker testified that Wilson threatened to kill her if she moved. Then, “a light flashed outside.… He jumped up and told her he would kill her if she opened her mouth and then ran out the door.” Two days later, Baker picked Wilson out of a five-man lineup at the Perry County Jailhouse. At trial, however, when asked if she saw him in the courtroom, “she said that she did not know and she then stated that she did not want to see him.”¹⁶

Wilson’s court-appointed lawyer was State Representative Judson C. Locke. He moved unsuccessfully for a mistrial when Baker testified about the alleged assault, arguing that it “infuriates the mind of the jury.” But he did not crossexamine Baker or any other witness. He did not call Wilson to testify in his own defense and did not call any other defense witnesses. “Wilson was actually being tried for touching a white woman,” a University of Alabama law professor later told a reporter. “His lawyer still could have attempted a defence. It doesn’t sound as if he did anything but appear in court.¹⁷ The entire trial took four and one-half hours. The all-white jury took less than an hour to convict Wilson of the only crime he was charged with at trial: robbery.¹⁸

Only three people had ever been sentenced to death before in Alabama for robbery, all African American men. Wilson became the fourth. The Alabama Supreme Court heard his appeal. Wilson’s lawyer argued that it was impermissible to admit evidence of the alleged attempt to “ravish” Baker since it happened after the offense of robbery had been committed. The court upheld the conviction, finding the evidence part of the context of the crime and finding that the trial as a whole did not result in unfairness.¹⁹

Even seeing the events of that night from the perspective of Baker’s testimony, how could a jury sentence Wilson to death? Virginia Durr thought of it this way, writing to a friend as her husband, Clifford Durr, assisted Fred Gray in Jimmy Wilson’s defense:

This is the FOURTH death sentence this summer. One was electrocuted, he was a fifteen-year-old boy accused of rape. The second was commuted, he was a seventeen-year-old boy accused of rape. In neither instance were the women harmed in any way and both stories were terribly phony. The third was commuted, that was simply murder so no wild emotion over that, and murder of a policeman, and now the Wilson case which is on the face of it a robbery case but in reality is a rape case or attempted rape. I sometimes feel we southern white women are some kind of obscene goddesses that they make these burnt offerings to. “Burn the Nigger, burn the Nigger” is what you hear when one of them comes up and there is something so awful and horrible about it, especially when no white man ever gets the death penalty for rape in any case and of course when it occurs with a Negro woman they never even believe it is rape. A little thirteen-year-old Negro girl who was babysitting got raped by the man of the house when he took her home and the proof was positive and she was terribly torn and harmed and yet nothing was ever done to the white man.²⁰

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