The Devil's Advocates

Greatest Closing Arguments in Criminal Law

Michael S Lief, H. Mitchell Caldwell

• Publisher: Scribner
• Year: 2007
• Print ISBN: 9780743246699
• eBook ISBN: 9781416571865
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

From the authors of the acclaimed Ladies and Gentlemen of the Jury, and featuring some of the most important cases in criminal law, The Devil's Advocates is the final volume of a must-have trilogy of the best closing arguments in American legal history. Criminal law is considered by many to be the most exciting of the legal specialties, and here the authors turn to the type of dramatic crimes and trials that have so captivated the public -- becoming fodder for countless television shows and legal thrillers. But the eight cases in this collection have also set historical precedents and illuminated underlying principles of the American criminal justice system. Future president John Adams makes clear that even the most despised and vilified criminal is entitled to a legal defense in the argument he delivers on behalf of the British soldiers who shot and killed five Americans during the Boston Massacre. The always-controversial temporary-insanity defense makes its debut within sight of the White House when, in front of horrified onlookers, a prominent congressman guns down the district attorney over an extramarital affair. Clarence Darrow provides a ringing defense of a black family charged with using deadly force to defend themselves from a violent mob -- an argument that refines the concept of self-defense and its applicability to all races. The treason trial of Aaron Burr, accused of plotting to "steal" the western territories of the United States and form a new country with himself as its head, offers a fascinating glimpse into a rare type of prosecution, as well as a look at one of the most interesting traitors in the nation's history. Perhaps the best-known case in the book is that of Ernesto Miranda, the accused rapist whose trial led to the Supreme Court decision requiring police to advise suspects of their rights to remain silent and to have an attorney present -- their Miranda rights. Each of the eight cases presented here is given legal and cultural context, including a brief historical introduction, a biographical sketch of the attorneys involved, highlights of trial testimony, analysis of the closing arguments, and a summary of the trial's impact on its participants and our country. In clear, jargon-free prose, Michael S Lief and H. Mitchell Caldwell make these pivotal cases come to vibrant life for every reader.

CHAPTER ONE

When Mob Rule Trumps Rule of Law

The U.S. Supreme Court steps in when local authorities don’t act to prevent lynchings

If the life of one whom the law has taken into its custody is at the mercy of the mob, the administration of justice becomes a mockery.

—U.S. Supreme Court chief justice Melville Fuller

Atticus Finch, attorney at law, sits in a chair propped against the front door of the jail in Maycomb, Alabama, reading a newspaper by the light of a makeshift lamp. The mob approaches…angry men looking for Southern justice. Finch calmly folds his newspaper and drops it in his lap; he seems to be expecting them. “He in there, Mr. Finch?” one man asks. And so the exchange begins, the angry white mob ready to storm the jail and lynch his client, a black man accused of raping a white girl. Finch stands his ground and eventually disperses the angry crowd. The accused will survive the night and will make it to his trial.

This scene in Harper Lee’s classic novel, To Kill a Mockingbird, presented a rosier outcome than was often found in the American South of the late nineteenth and early twentieth centuries. The rule of law, so often taken for granted by modern Americans, took a backseat to lynch law, the rule of the mob, to whom guilt or innocence were of little consequence. There was no sanctuary in the criminal justice system, no Atticus Finch to stand guard through the night. Many lawyers, police officers, and public officials often stepped aside in the face of vigilante justice, giving their tacit—if not outright—stamp of approval to the “law” of the mob.

Perhaps the most abhorrent aspect of this conduct was the failure to protect the accused by those elected to do so. Like Atticus Finch, the sheriff or police chief must provide sanctuary whereby an accused can safely await his trial, his due process. When those to whom we entrust the public safety abdicate their role of public protector, the system has failed at its most fundamental level.

Strange Fruit

The phrase lynch law was coined during the American Revolution, when Colonel Charles Lynch and his men dispensed their own brand of summary justice to loyalists accused of plotting against the colonists. Lynch law gained its horrific racist association in the post–Civil War South, where the defeat of the Confederacy and the emancipation of the slaves shocked Southern society. The Fourteenth and Fifteenth Amendments to the U.S. Constitution conferred new rights upon the former slaves: citizenship and the right to vote. At the same time, in an effort to reunite the country, Reconstruction imposed and maintained a strong (and deeply resented) Northern presence in the South. Although this represented great progress for the freed slaves, it came at a high price: the challenge to white supremacy incited many to threats and violence as a means of protecting their social status. With the end of Reconstruction in the late 1870s came both a growing Northern indifference to the plight of Southern blacks and a renewed Southern determination to keep Northerners and blacks from interfering in their social and political affairs.

It is in this environment that lynch law flourished. From the 1870s on, mob violence—lynchings—became a primary means of asserting white dominance and reaffirming blacks’ inferior station in the old (and new) Southern hierarchy. Lynch mobs were generally composed of rural Southerners, men whose status was most directly threatened by the progress and newfound prosperity of free blacks.

Although lynching is most often associated with death by hanging, the actual process was far more violent and sadistic, often including torture, dismemberment, burning, and even castration. All this took place not under the cover of darkness, the participants hiding their identities, but in full view, often as a community affair. Adults cheered and children played, while blacks were beaten, whipped, covered in coal tar, and set aflame. It was not uncommon for pieces of the corpse to be distributed as souvenirs. Many lynchings were documented in photographs—some sold as postcards—broken victims surrounded by hundreds of gleeful faces, hands raised in celebration, grins from ear to ear; men, women, and children rejoicing in the torture and execution of another human being.

Between 1882, when reliable statistics were first collected by the Tuskegee Institute (a school founded in the late 1880s in Tuskegee, Alabama, to educate newly freed slaves), and 1968, when lynching had for the most part ended, a reported 4,743 men, women, and children died at the hands of lynch mobs. Of those victims, 3,446 were black. These numbers are almost certainly understated, as they represent only reported lynchings; many, especially in small and isolated communities, went unreported.

And with rare exception, the lynch mob went about its business with impunity, without fear of legal repercussions. Indeed, many Southern officials condoned the lynchings, incorporating racial hatred successfully into their political platforms. The strong influence of public opinion on local courts made indictment of mob participants nearly impossible. If the lynchers were, by some anomaly, indicted, convicted, and sentenced, a pardon would usually follow. The key figures in the judicial process—judges, jurors, and lawyers—were all white and often sympathetic to the lynch mob.

The prospects for a black defendant were grim: the law offered little or no protection; there was no guarantee of due process, no guarantee one would live to see a trial, and no guarantee that the trial’s outcome would prevail even if a trial was held. Mob rule supplanted rule of law. So it was until 1906, when in Hamilton County, Tennessee, a man was lynched in open defiance of the U.S. Supreme Court. In the words of Supreme Court chief justice Melville Fuller, “If the life of one whom the law has taken into its custody is at the mercy of the mob, the administration of justice becomes a mockery.” And that, the Supreme Court decided, could and would not be allowed.

The Crime

January 23, 1906, 6 p.m., Nevada Taylor, an attractive, twenty-one-year-old white woman, left the W. W. Brooks grocery store, where she worked as a bookkeeper, and boarded one of Chattanooga’s new electric trolleys. At six thirty, Taylor stepped off the trolley near Thirty-fifth Street in the shadow of Lookout Mountain and started her short walk home. The night was unusually dark. She heard footsteps behind her, and before she could turn to see who was there, something was wrapped around her throat. Choking, she tried to cry out for help. “If you scream, I’ll kill you,” the attacker warned. After ten minutes, it was over; violated and choked unconscious, she was less than a hundred yards from the safety of her home. A few minutes later, at six forty-five, Taylor regained consciousness. Alone in the dark, she stumbled home, where she told her father and siblings what had happened. The sheriff and the family doctor were summoned, and the physician confirmed her worst fears—she had been raped.

Within the hour, Sheriff Joseph Franklin Shipp assembled a group of his best men and a couple of bloodhounds. The posse combed the scene of the crime, searching the area for the attacker, witnesses, and any evidence.

The Investigation

Sheriff Shipp was a much admired Civil War veteran, whom everyone called Captain. Born and raised in Jasper County, Georgia, Shipp enlisted in the Confederate Army in 1862 and, during his three years as a soldier, was wounded on three separate occasions. Mustered out as a captain in 1865, Shipp returned to his parents’ home in Georgia, where he worked for several years in his father’s cotton gin business. It was there he met and married his wife, Lily, and began a family that would eventually include seven children. In 1874, the Shipps moved to Chattanooga to build and operate a water-pump manufacturing plant. The business proved a huge success and Shipp quickly became one of the wealthiest men in the city. In 1904, he was elected to a two-year term as Hamilton County sheriff. Described by local newspapers as “a natural born leader” and a “tender and devoted husband and a loving father,” he was an astute politician, an active community leader, and a “take charge kind of fellow.” He fired all the deputies who had campaigned against him and replaced them with loyal supporters.

Late in his first term as sheriff, the Chattanooga Times wrote that the city was in the midst of a “negro crime wave.” For Shipp, facing reelection, the assault on Nevada Taylor couldn’t have come at a worse time. On December 26, the Times ran the front-page headline: “Desperadoes Run Rampant in Chattanooga; Negro Thugs Reach Climax of Boldness.”

Shipp felt pressured to crack down on the “negro thugs,” and the attack on Nevada Taylor—only two months short of the election—brought public passions to a fever pitch. Shipp needed a quick and satisfactory resolution to the Taylor rape.

Unfortunately, the victim was able to provide only the most general description of her attacker: he was about her height, or maybe a little taller; he wore black clothes and had a hat; his arms were muscular; and he had a “soft, kind voice.” Although she thought the man was a Negro, she was unsure, as she never got a good look at him.

The investigation was at a standstill. Although every person in the area of the attack had been questioned, no witnesses had been found. Everyone pointed out how incredibly dark it had been the night of the rape. Bloodhounds followed the scent left by the rapist on the victim’s clothes, but lost the trail at the streetcar tracks. The only piece of evidence recovered was a leather strap, twenty-five inches long and a little less than an inch wide, with a split in one end and a narrow edge at the other. When the narrow end was inserted into the split, it produced a makeshift noose. Shipp showed the strap to Nevada Taylor, but she was unable to say whether it was the restraint used by her attacker. However, a comparison of the strap width to the red marks on Taylor’s neck confirmed that it most likely was used on her. Unfortunately, the sheriff had no idea to whom the strap belonged.

The Reward

Sheriff Shipp was desperate. With every passing hour, the likelihood of finding credible evidence or witnesses decreased. The local newspapers published detailed accounts of the crime and the struggling investigation, adding to the public outcry. Shipp announced a $50 reward to anyone providing information leading to the arrest and conviction of the assailant. By that evening, thanks to generous contributions from community members, the total reward stood at $375—more than many citizens...

Table of contents

• Cover
• Colophon
• Also by Michael S Lief and H. Mitchell Caldwell
• Title Page
• Copyright
• Dedication
• Acknowledgments
• Contents
• Introduction: The Closing Argument Chronicles
• Chapter One: When Mob Rule Trumps Rule of Law: The U.S. Supreme Court steps in when local authorities don’t act to prevent lynchings
• Chapter Two: When the Constable Blunders: The fruit of the poisonous tree sets the guilty free
• Chapter Three: Rules of Engagement: Randy Weaver and the Ruby Ridge killings
• Chapter Four: Defending the Despised: Founding Father fights to save British troops from the gallows after the Boston Massacre
• Chapter Five: “You Have the Right to Remain Silent”: The rapist and the chief justice redefine the use of confessions and police interrogations
• Chapter Six: The Black Doctor and the White Mob: Clarence Darrow puts racism on trial and proves the home is every American’s castle
• Chapter Seven: The Trial of the (Nineteenth) Century: The killer congressman, the philandering district attorney, and the first use of the temporary insanity defense
• Chapter Eight: Genius, Scoundrel, Traitor: Revolutionary War hero, former vice president Aaron Burr faces the hangman and lays the groundwork for treason prosecutions
• Index