ArchivesNinety-five years ago this month, justices of the U. S. Supreme Court met on
a Sunday morning in the home of Chief Justice Melville Fuller to debate the
fate of Ed Johnson, a black man convicted and sentenced to die for the rape of a
young Chattanooga woman. The justices met at the request of Justice John
Marshall Harlan, who had become convinced that Johnson was innocent and
denied due process in a state trial that had featured a juror lunging at the
defendant while shouting, “If I could get at hime, I’d tear his heart out.” After
discussing the case for an hour, the Court voted–for the first time in its
history–to stay an execution in a state criminal case.
Word of the Supreme Court’s action did not go over well in Chattanooga.
That night a mob stormed the Hamilton County Jail. The mob removed Johnson,
paraded him through the dark streets of Chattanooga, then hanged him from the Walnut
Street Bridge. All the while, local law enforcement did almost nothing to
protect its prisoner.
The tragic lynching of Ed Johnson moved an enraged Supreme Court, for the
only time in its history, to conduct a criminal trial: the trial of Sheriff
Joseph Shipp (and others) on the charge of criminal contempt. Read now about this
unprecedented and remarkable trial:
Douglas Linder
University of Missouri-Kansas City School of Law
linderd@umkc.edu
March, 2001
* * *
Only once in its history has the United States
Supreme Court conducted a criminal trial. The trial, taking place
in both Tennessee and the District of Columbia in 1907 and 1908, resulted
in the conviction of a sheriff, a deputy sheriff, and four members of a
Chattanooga lynch mob. Outraged justices ordered the trial on criminal
contempt charges after an almost certainly innocent black man, having been
convicted of raping a white woman, was lynched less than a day after word
reached Chattanooga that his scheduled execution had been stayed by the
U. S. Supreme Court.
The trial of Joseph F. Shipp et al. is a story
of tragedy and heroism that had been all but forgotten until Mark Curriden,
a Dallas reporter, and Leroy Phillips, Jr., a Chattanooga attorney, published
their 1999 book,Contempt
of Court: The Turn-of-the-Century Lynching that Launched a Hundred Years
of Federalism. Now, with the success of Contempt of Court–and
a movie based on the book in the planning process—, it appears
that the Shipp trial may assume its rightful place as one of the famous
trials in American history.
INVESTIGATION OF THE RAPE OF NEVADA TAYLOR
The Shipp trial has its roots in a rape that
took place on a dark January evening in 1906 the St. Elmo district of Chattanooga.
A blond and beautiful twenty-one-year old named Nevada Taylor left her
bookkeeping job in downtown Chattanooga about 6:00 p. m. on Monday, January
23. She boarded an electric trolley for the twenty-minute ride to
the station near the base of Lookout Mountain. Stepping off the trolley
at the station near 35th street, Taylor began the short walk to her home,
a cottage in Forest Hills Cemetery where her father was the groundskeeper.
As she approached the cemetery gate, she felt her throat grabbed from behind
and a voice say, “If you scream, I will kill you.” The attack–which
left Taylor unconscious–lasted only ten minutes.
Taylor regained consciousness, walked the one
hundred yards to her home, and told her father of the attack. Taylor’s
father called Sheriff
Shipp, who gathered bloodhounds and deputies, then rushed off in a
horse-drawn carriage to Taylor’s home. As Shipp consoled William
Taylor, a doctor arrived to examined his daughter. After completing
his investigation, the doctor reported the heartbreaking news: Nevada had
been raped.
Shipp asked Taylor what she could remember
of the attack. She couldn’t recall much, but told the Sheriff was
a little below average height, had muscular arms, and wore a black outfit
and a hat, and had “a soft, kind voice.” Shipp asked, “Was the man
white or Negro?” Taylor answered that she wasn’t sure–she hadn’t
gotten a good look at him–, then said she thought he was black.
The pressure to make an arrest was intense.
Shipp publicly announced an award of $50 for information leading to the
arrest and conviction of Taylor’s attacker. Taylor’s employer added
$50 more, then the Governor put of another $200. With additional
contributions from St. Elmo are residents the reward pot grew to $375–a
very substantial sum in 1906.
It took three days for the Shipp to make an
arrest. An investigation of the crime scene shortly after the rape
turned up a black leather strap that perfectly matched red streaks around
Taylor’s neck. On Thursday, Will Hixon, a man who worked at a medicine
company near the cemetery reported that he had seen a black man “twirling
a leather strap around his finger” shortly before 6 p.m. on the evening
of the rape. Hixon called Shipp later to say that he had just seen
that same black man walking north toward town with a tall black man.
Finding the tall black man alone, Shipp learned that his companion–and
now prime suspect–was a drifter and sometimes carpenter named Ed Johnson.
Within hours, Shipp spotted Johnson riding on the back of an ice wagon.
Johnson was handcuffed, brought to jail, and identified by Hixon as the
man he had seen with the strap by St. Elmo station.
Word of Johnson’s arrest spread quickly. That
evening a large crowd–many carrying guns–gathered in front of the Hamilton
County Jail. Bullets were fired into the sky. Nevada Taylor’s
younger brother adds fuel to the fire in a brief speech he delivers to
the mob: “The time for justice and punishment has come. We
want the Negro. He must be punished for what he did to my sister.”
Soon one member of the mob stepped forward to tell Captain George Brown,
second in command at the jail, that he would allow five minutes for someone
to turn over the keys or he would lead a violent assault on the jail.
No keys were delivered. Leaders of the mob grabbed a steel post and began
ramming it against the front door. Others in the mob took over the
electric plant, throwing the jail into darkness. Men stole sledgehammers
from a nearby blacksmith shop and started working on hinges of the heavy
door.
The jail sustained heavy damage from the attack,
but there was to be no lynching of Ed Johnson–at least not yet.
Deputies and members of Troop B of the National Guard–ordered to the scene
by Governor Cox–arrived at the jail. A group of deputies succeeded
in grabbing away the sledgehammers. Minutes later, Judge
Samuel McReynolds showed up. “The jury is in, Judge, we find
him guilty and sentence him to hang by the neck until dead,” one man in
the crowd announces. McReynolds replied, “Go home.” Then the
judge told the crowd that the man they were looking for was not in the
jail, that he had been sent to Knoxville a few hours earlier. (In
fact, Johnson had been sent to Nashville.) McReynolds offered to
let five men from the disbelieving crowd inspect the jail: “See for yourself
he is not there.” After a cell-by-cell search, the five chosen men told
the crowd that the judge was right: Johnson was gone.
Nevada Taylor traveled to Nashville the
next day and identified–though none too certainly–Johnson as her attacker.
That same day, Judge McReynolds convened a grand jury. McReynolds
told the grand jurors that “Such outrages as this must have the immediate
attention of the law.” The Johnson case was on a fast track. Hamilton
County District Attorney Matt Whitaker persuaded the grand jury to return
an indictment in less than two hours. The next morning, Judge McReynolds
appointed three local attorneys to represent Johnson in his upcoming trial:
Lewis
Shepperd (Chattanooga’s most prominent defense attorney), W.
G. M. Thomas, and Robert Cameron. McReynolds told the lawyers that
the Johnson trial could begin in less than a week. For many in Chattanooga,
even that was too long to wait. Some vented their frustrations by
threatening Johnson’s lawyers.
W. G. M. Thomas awoke one evening to the sound
of rocks crashing through his windows.
ED JOHNSON TRIAL AND APPEALS
The Johnson trial opened on Tuesday, February
6. The first prosecution witness was Nevada Taylor. Taylor
described the attack and identified the leather strap used by her assailant.
Prosecutor Whitaker then asked Taylor if the man who attacked her was present
in the courtroom. “I believe he is the man,” said Taylor, pointing
to Ed Johnson. After testimony was given by the doctor who examined
Taylor, Whitaker called Will
Hixon to the stand. Hixon told jurors that he “saw the defendant
with a strap in his hand…near the scene of the crime.” Hixon claimed
Johnson’s face was illuminated by two electric cars passing Cemetery Station:
“I saw his face well and could not be mistaken in it.” Sheriff Shipp
testified next, recounting his investigation and the events leading to
Johnson’s arrest. Shipp testified that at the sheriff’s office in
Nashville, Johnson “raised his voice to a higher pitch” in attempt to prevent
Taylor from identifying her as the attacker. Two of Shipp’s deputies
were called for brief testimony, then Whitaker announced, “The state rests.”
The first witness for the defense was
Ed Johnson. Speaking in “a strange voice,” grasping the arms
of the witness chair with his hands, Johnson strongly denied having attacked
Nevada Taylor. Johnson said he spent the evening of January 23 working
as a pool room porter at the Last Chance Saloon, arriving around 4:30 and
staying until about 10:00. Thirteen witnesses followed Johnson to
the stand, each swearing that he had seen Johnson at the Last Chance around
the time he was allegedly in a cemetery raping Nevada Taylor. Then
the defense moved on to an attack on the credibility of Will Hixon.
Harvey McConnell, described by papers as a respected “old-time Negro,”
testified that two days after the rape, Hixon had asked him about a black
man doing some roofing work at a church in St. Elmo. McConnell
said Hixon asked him the man’s name. When McConnell told him the
man was Ed Johnson, Hixon asked him for a physical description of Johnson.
Lewis Shepherd then called his co-counsel,
W. G. M. Thomas, to the stand to recount a
meeting he arranged between Hixon and McConnell. According to Thomas,
when McConnell “repeated the same story we heard here today” to Hixon,
Hixon “hung his head very low” and uttered no word of denial.
The most dramatic event of the Johnson trial
occurred on its third and last day. At the request of jurors, Nevada
Taylor was recalled to the stand. Juror J. L. Wrenn stood and asked
Taylor, “Miss Taylor, can you state positively that this Negro is the one
who assaulted you?” Taylor answered, “I will not swear he is the man, but
I believe he is the Negro who assaulted me.” Wrenn, still not satisfied,
asked again: “In God’s name, Miss Taylor, tell us positively–is that the
guilty Negro? Can you say it? Can you swear it?” With tears
streaming down her face and in a quivering voice, Taylor replied, “Listen
to me. I would not take the life of an innocent man. But before
God, I believe this is the guilty Negro.” At that point another juror
rose and lunged in the direction of Johnson. As he was restrained
by fellow jurors, he shouted out, “If I could get at him, I’d tear his
heart out right now.”
The jury deliberated the fate of Ed Johnson
for over six hours. The jury was split: eight favoring conviction
and four favoring acquittal. After a night home with their families,
the minority suddenly gave in. At 9:25 a.m. the next morning, the
jury’s foreman announced, “On the single count of rape, we, the jury, find
the defendant, Ed Johnson, guilty.” Then, after a recess, came
a surprising announcement from defense attorney W.
G. M. Thomas: the defense would “acquiesce in the action of the jury.”
Johnson’s defense attorneys had split two to
one against appealing his conviction. Thomas and Cameron concluded
that an appeal would be futile and invite a raid on the jail that might
not only result in Johnson’s death, but those of other inmates as well.
Shepherd, the only experienced criminal lawyer of the three, disagreed,
but was outvoted. Thomas told Johnson his choice was to accept the
verdict and die in an orderly way at an appointed time or to die at the
hands of a lynch mob. Johnson reportedly told Thomas, “I will tell
the judge I am ready to die. But I will also say that I am not the
guilty man.” Judge McReynolds sentenced Johnson to be “hung by the
neck until dead” on March 13, 1906.
Hours after Johnson heard his sentence pronounced,
Ed’s father (known as “Skinbone” Johnson) visited the law office of Chattanooga’s
most highly respected African Attorney, Noah
Parden. Skinbone Johnson told Parden that his son did not want
to die. He wanted to appeal. Parden was reluctant to take the
case. Although Johnson may well have been innocent and denied a fair
trial, convincing the Tennessee Supreme Court to grant a new trial in an
emotionally charged case such as this would be next to impossible.
Parden’s law partner, Styles Hutchins, thought differently, however.
It was a lawyer’s job to do justice, he argued. They decided to take
the case. Sunday morning, Parden paid a visit to the home of Lewis
Shepherd and recruited him to continue the fight for justice for Ed Johnson.
On Monday, February 12, Parden and Hutchins
visited Judge McReynolds in his courtroom to inform him of their intention
to appeal Ed Johnson’s conviction. They told them that they had a motion
ready. McReynolds, stunned by this development and fearing the consequences
of a delay in Johnson’s execution, told the two attorneys to return the
next day to formally file their motion. Return the next day Parden
and Hutchins did, only to be told by the judge that they were one day late:
the time limit for filing a motion for a new trial was three days–this
was the fourth. Parden and Hutchins left the courtroom feeling they
had been tricked.
As Parden and Hutchins prepared an appeal to
the Tennessee Supreme Court, they began to understand what they were up
against. No one, it seemed, wanted to employ lawyers who had stirred
up the anger of a judge and the white legal establishment. Moreover,
officials did what they could to complicate their efforts. Officials
at the court claimed to have difficulty in locating the case file.
The court stenographer, for the first time, insisted that money for the
trial transcript be paid in full before delivery.
On March 3, 1906, the Tennessee Supreme Court,
without a dissenting vote, turned down Johnson’s request for a new trial.
Writing for the Court, Chief Justice W. D. Beard wrote, “We have given
the technical record a most scrutinizing inspection to see if serious errors
were there to be discovered, but have been unable to find any.” Sheriff
Shipp ordered his deputies to began stretching the inch thick rope that
would be used to hang Johnson on March 13.
But Noah Parden had not given up. He
would take the battle to save Ed Johnson to the federal courts. On March
7, Parden took the train to Knoxville to file a petition for a writ of
habeas corpus in federal district court. District Judge Charles Clark
set March 10th as the date for a hearing on the petition.
In 1906, there was little reason to expect
relief in the federal courts. Federal judges could not reconsider
the evidence presented in state trials. They could only act when
the federal constitutional rights of the defendant had been violated.
Moreover, the Supreme Court had narrowly interpreted the Fourteenth Amendment’s
due process clause. The protections of the Bill of Rights–to an
impartial jury, to effective counsel, right against self-incrimination,
and all of its other guarantees–had not yet been found by the Court to
be applicable in state trials. As of 1906, there existed not one
case in which the federal courts had reversed a state court conviction
on the basis of the due process clause. (One conviction, in 1886,
was reversed on an equal protection claim.)
Parden argued before Judge Clark that Johnson’s
trial was riddled with constitutional violations. He contended that
Judge McReynold’s refusal to delay or move the trial–in view of the attempted
lynching and other threats–was a denial of due process. He said
the same thing about the juror’s “tear his heart out” lunge at Johnson.
He argued that Hamilton County’s systematic exclusion of black jurors violated
the equal protection clause. Finally, Parden suggested that Johnson
had been abandoned by his court appointed attorneys after trial.
“Like a lamb being led to the slaughter, he was dumb,” Parden said.
Witnesses were called to substantiate the various defense claims.
W. G. M. Thomas was called to testify that he based his decision not to
appeal on reports that more than two dozen men had said an appeal would
lead to a lynching: “It was said a dilatory movement would wind up lynching
the judge, lawyers, and everyone else.”
After listening to arguments and witnesses
on both sides for eight hours, Judge Clark announced that he would issue
his decision later that evening. Shortly before 1:00 a.m., the judge
returned to his courtroom. Judge Clark agreed that there might have
been serious flaws in Johnson’s trial, but he ruled that the Sixth Amendment’s
guarantee of a fair trial did not apply in state court trials. He
rejected Johnson’s equal protection claim as well. In a small victory
for the defense, however, Clark postponed Johnson’s hanging for ten days
(later reduced, in a concession to angered state officials, to seven days)
to allow time for his decision to be appealed to the United States Supreme
Court.
In the early morning hours of March 15, an
unidentified person sets fire to the wood frame law office of Parden and
Hutchins. The blaze is extinguished without major damage. Later
that afternoon, Parden left Chattanooga by train for Washington, where
he will make his final plea to save Ed Johnson’s life.
On the morning of March 17, Parden and a Washington
lawyer named Emanuel Hewlett entered the waiting room of the Supreme Court
in the Old Senate Chamber. The wait seemed interminable. Parden
began to despair:
As the day expired, I prepared my
soul for failure. Then I convinced myself this effort required nothing
short of a miracle. It was late in the evening and I had all but
given up. I folded my hands and asked God for guidance on how to
tell Ed Johnson’s family that I had failed.
Finally the Court’s receptionist stood in the
doorway and announced, “He will see you now.” The “he” turned out
to be Justice
John Marshall Harlan, the same justice who–observing that “The Constitution
is colorblind”–dissented in Plessy vs Ferguson, the famous case
which upheld the principle of “separate but equal.” Harlan asked
Johnson’s lawyers, “Mr. Parden, Mr. Hewlett, tell me why the United States
Supreme Court should care about this case?” The two lawyers proceeded
to do so. The elderly justice nodded without giving them a word of
encouragement.
With his client’s scheduled execution less
than two days away, Noah Parden arrived back at the Chattanooga train station
to see his obviously overjoyed partner, Styles Hutchins, waving a piece
of paper in the air. It was a telegram from Washington to signed
by Justice John Harlan: “Have allowed appeal to accused in habeas corpus
case of Ed Johnson.” In the hours after his meeting with Parden,
Harlan had read the transcript of the Knoxville hearing and became convinced
Johnson’s case raised serious constitutional issues. At Harlan’s
request, a majority of justices gathered on Sunday morning at the home
of Chief Justice Fuller to his plea for intervention. After debating
the issue for an hour, the justices agreed upon their unprecedented action
of staying the execution and granting Johnson’s appeal. Harlan ordered
telegrams sent to District Judge Clark, the defense lawyers, Judge McReynolds,
District Attorney McReynolds, and Sheriff Shipp informing them of the Supreme
Court’s action.
THE LYNCHING OF ED JOHNSON
The news that the Supreme Court had stayed
Johnson’s scheduled execution did not sit well with many in Chattanooga.
About 8 p.m. on March 19 a group of men carrying guns descended on the
Hamilton
County Jail where Johnson was being held. Only a single guard,
jailer Jeremiah Gibson, guarded the prisoners. Sheriff Shipp, rejecting
a suggestion to post extra guards, had instead given his other deputies
the night off. The first members of the mob to enter the jail bloodied
a black trusty they encountered, then began their search of the jail. More
and more men poured into the jail. Confronting a large steel door, members
of the mob called for a sledgehammer and began whacking it in turns.
The door finally gave into the attack and the mob moved on to its next
obstacle. About 8:30 p.m., Ed Johnson, on the third floor,
was awakened by the cries of inmates below. Johnson looked out the
window of his cell to see the crowd of nearly two hundred men and women
in the courtyard below. The only other inmate on the floor, Ellen
Baker, said to Johnson, “You better do some prayin’.” Soon the mob
made their way up the spiral staircase to the third floor and began pounding
on the doors that still separated them from Johnson.
A second door comprised of steel bars secured
by five bolts riveted into the cement floor proved a frustrating obstacle
for the rioters. Johnson had plenty of time to pray. Ellen
Baker later described Johnson lying on his steel-framed bunk, a green wool
blanket pulled up to his chin, eyes closed, reciting the 23rd Psalm.
It was not until 10:35 that the last bolt gave way and the men made their
way to Johnson’s cell. A key taken from Gibson opened the cell door.
The men tied Johnson’s hands with rope and dragged him from the cell out
to an awaiting crowd.
Cries of “Kill him now!” and “Cut his heart
out right here!” came from the mob. The leaders of the mob debated
what they should do. Finally someone yelled, “To the county bridge!”
The call was met by great applause. For six blocks, in raucous procession,
the crowd marched to the Walnut Street Bridge that spanned the Tennessee
River. At the second span rope was looped around the frame of the
bridge. “Do you have anything to say?” a man holding a noose asked
Johnson. With the noose around his neck and blood dripping from his
mouth, Johnson remained calm. He spoke to the crowd:
I am ready to die. But I never
done it. I am going to tell the truth. I am not guilty.
I have said all the time that I did not do it and it is true. I was
not there.I know I am going to die and I have no fear
to die and I have no fear at all.I was not at St. Elmo that night. Nobody
saw me with a strap. They were mistaken and saw somebody else.
I was at the Last Chance Saloon just as I said.I am not guilty and that is all I have to say.
God bless you all. I am innocent.
For two minutes, Ed Johnson’s body “jerked with
life” as it swayed one hundred feet above the Tennessee River, then it
stopped. Johnson was pulled back up to the bridge. His head
moved. A barrage of bullets ended his life. A leader of the
mob pinned a sheet of paper to Johnson’s body. The note read: “To
Justice Harlan. Come and get your nigger now.”
The next morning, word of Johnson’s lynching
reached Washington. Although in recess, Justice Harlan and Justice
Oliver Wendell Holmes met with Chief Justice Fuller. After a closed-door
meeting, each justice expressed his outrage to the press. Justice
Harlan told a reporter for the Washington Post, “[Johnson] had the right
to a fair trial, and the mandate of the Supreme Court has for the first
time in the history of the country been openly defied by a community.”
Holmes was no less angry: “In all likelihood, this was a case of an innocent
man improperly branded a guilty brute and condemned to die from the start.”
President Theodore Roosevelt announced, “It is an affront to the highest
tribunal in the land that cannot go by without the proper action being
taken.”
In Chattanooga, the reaction to the lynching
was decidedly mixed. Dr.
Howard Jones, minister of the city’s establishment First Baptist Church,
condemned the killing of Ed Johnson in the strongest possible terms.
“Lawlessness begets lawlessness,” he told his all-white congregation.
On the other hand, J. G. Rice, editorialized in his
Chattanooga News
that “the worthless, shiftless, criminal black brute who outrages a white
woman has no more rights under the law than a serpent.”
President Roosevelt met with Attorney General
William Moody to consider the response of the federal government to the
lynching. Roosevelt decided to order a federal preliminary investigation
which, it was understood, might be used by the Supreme Court should it
choose to bring criminal contempt charges. Less than two days after
the lynching, two Secret Service agents–E. P. McAdams and Henry G. Dickey–were
on their way to Chattanooga to began collecting evidence.
The agents soon discovered that on the matter
of Johnson’s lynching most lips in Tennessee were firmly sealed.
Walking back to their hotel after an unproductive day of investigating,
McAdams and Dickey were warned to leave town and then assaulted by three
pipe-wielding men. The agents were undeterred. Eventually,
they with the assistance of people such Reverend Jones and Noah Parden,
the agents were led to witnesses who began to shed some light on the events
surrounding the lynching. (Dr. Jones paid a price for his cooperation:
the night after he talked with federal agents, Jones returned to find his
home ablaze.)
On April 20, Dickey and McAdams filed their
report on the lynching. The report detailed unusual activities at
the jail prior to the lynching, including the release of deputies and the
moving of all but one inmate from the floor occupied by Johnson.
It indicated that both Judge McReynolds and District Attorney Whitaker
knew about the attack on the jail from the moment it began and watched
events unfold from their courtroom window. The agents noted that
Sheriff Shipp did nothing to stop the lynching and–despite spending an
hour near the mob leaders–claimed, implausibly, not to be able to identify
a single conspirator.
TRIAL IN THE SUPREME COURT OF THE UNITED STATES
A month later, Attorney General Moody met with
Chief Justice Fuller and Justice Harlan. An hour of debate produced
an historic agreement: the Chattanooga conspirators would be tried by the
Court for criminal contempt. It would be the first–and, to date,
the only–criminal trial in the history of the United States Supreme Court.
The Attorney General agreed to file charges with the clerk of the Supreme
Court. The Justice Department, rather than the Court (as was at one
time discussed), would lead the prosecution.
On May 28, 1906, the Justice Department filed
papers accusing twenty-seven Chattanooga residents of conspiring to lynch
and murder Ed Johnson. Named in the papers were Sheriff Joseph Shipp
and eight of his deputies.
The defendants and their lawyers assembled
in courtroom on the second floor of the Capitol Building on October 15,
1906. After the justices of the Supreme Court took their seats on
the bench, Solicitor General Henry Hoyt announced that the federal government
was ready to proceed with the case of United States v. Shipp.
Noah Parden and Styles Hutchins watched from front-row seats as lawyers
for the accused stepped forward to enter their pleas of “Not Guilty.”
Before the Court would allow evidence to be
taken in the Shipp case, it needed to resolve the troublesome question
of jurisdiction: Did the Court have the power to try Shipp and the others
for criminal contempt? The Supreme Court heard oral arguments on
the jurisdictional issue on December 4. Noah Parden and Joseph Shipp
sat directly across the aisle from each other as they listened to lawyers
for both sides present their cases. Solicitor General Henry Hoyt
argued that the Court did have jurisdiction. Hoyt contended that
Johnson’s right to be heard on his application for habeas corpus was protected
by the Constitution and that the Court acted appropriately in staying his
execution. “This proceeding is about nothing less than establishing
and protecting the rule of law,” Hoyt told the justices. Judson
Harmon, a Cincinnati lawyer representing Sheriff Shipp, countered by
arguing that none of Johnson’s federally protected rights had been violated
and that therefore the Court improperly granted its stay. Since the
stay was improperly issued, Harmon argued, no one who violated the Court’s
orders should be found in contempt. Harmon was interrupted by Justice
Holmes who asked, “But you would agree that this Court has the authority
to determine that the Sixth Amendment [with its guarantee of a fair trial]
is binding on the state courts, do you not?” The possibility that
the Court might actually be ready to apply the protections of the Bill
of Rights to state courts shocked Harmon, and he understood for the first
time how strongly incensed some of the justices must have been with
the handling of the Johnson case. On Christmas Eve, the Court, in
a unanimous decision written by Oliver Wendell Holmes, ruled that it had
the jurisdiction to try Shipp and the other accused conspirators.
The Shipp trial opened in in the United States
Custom House Chattanooga (the Court decided that witnesses could more easily
be gathered there than in Washington) on February 12, 1907. Having
neither the time nor inclination to travel to Tennessee to hear weeks of
testimony, the justices appointed James D. Maher, deputy clerk of the Supreme
Court, to preside at the trial and prepare an evidentiary record which
they could review. The courtroom was filled to capacity–mostly by
African-Americans–as Maher took his seat on the bench.
Assistant Attorney General Terry
Sanford presented the prosecution’s case. His first witness was
J.
L. Chivington, a reporter for the Chattanooga Times, who had witnessed
and written about Johnson’s lynching. Chivington testified that “there
were normally six or seven deputies on guard every night” at the jail–except
the night of March 19. Edward
Chaddick, manager of the Western Union telegram office, testified that
he had hand-delivered to Sheriff Shipp a telegram from the United States
Supreme Court on the afternoon of the lynching. Ellen
Baker provided the most riveting testimony of the trial’s first day.
Baker testified that all the other third-floor prisoners were removed to
lower floors on the afternoon of the lynching, leaving just her and Johnson
on the third-floor. Baker said that she began crying and shouting
as the mob made its way through the jail. Deputy Gibson “told me
to hush hollering, there warn’t nobody going to hurt me,” Baker added.
About the same time, a man poked his gun through the bars to her cell:
“It scared me–I quit hollering.”
A key witness for the prosecution was a John
Stonecipher, a Georgia contractor who had talked with some leaders
of the mob at a saloon just hours before the lynching. According
to Stonecipher, a man named Frank Ward said to him as he stood on a curb
waiting for a car to go home, “We want you to help us lynch that damn nigger
tonight.” Stonecipher replied with the suggestion, “I believe Sheriff Shipp
would shoot the red-hot stuff out of you.” “No,” answered Ward, “it
is all agreed. There won’t be a sheriff or deputy there.” Stonecipher
also testified concerning conversations after the lynching with defendants
Ward, Henry Padgett, Alf Handman, and Willian Mayes. According to
Stonecipher, Ward complained to him, “You are the first damn man from Georgia
ever I saw that didn’t have nerve enough to kill a nigger.” After
offering his testimony, Stonecipher received an anonymous letter from “The
Lynchers” threatening to blow up his house with dynamite.
After the government produced thirty-one witnesses
over five days, Commissioner Maher then recessed the trial until
June. When the trial resumed, Terry Sanford called to the stand a
Chattanooga justice of the peace, A.
J. Ware. Ware had been told by some black youths that a lynching
was taking place. He followed the lynch mob to the Walnut Street
Bridge. Asked by Sanford who he saw adjust the noose around Ed Johnson’s
neck, Ware replied, “Nick Nolan.” Sanford asked Ware who shot Johnson
after he was pulled back up on the bridge. “I believe it was Luther
Williams,” Ware answered. “He fired five shots into Johnson’s body.”
On Saturday, June 15, the defense began to
present its case. Friends, relatives, and co-workers took to the
stand to offer alibis or attest to the high moral character of various
of the defendants. Some of the defendants themselves also testified.
Bart Justice said he spent the night of Johnson’s lynching at home in bed–and
his wife and daughter backed his claim up. Only one defendant, Luther
Williams, admitted being present at the lynching. He claimed
to have been only a spectator. Other witnesses challenged the credibility
of prosecution witnesses. Jailer Jeremiah
Gibson denied having told inmate Ellen Baker that the thought a mob
would be coming that night.
Sheriff Joseph
Shipp was the last witness called by the defense. Shipp testified:
“I never conspired with any living man, my deputies or anyone else; and
I had no knowledge, not the slightest, that there would be any effort on
my part or anybody to interfere with Johnson.” Shipp claimed to have
“run most of the way and walked rapidly the balance of the way” to the
jail as soon as he learned that a lynching was in progress. At the
jail, Shipp told the court, “I was seized from behind by several men.”
They “stood over me with a guard” as the mob leaders continued “the progress
of the work.” On cross-examination, Shipp claimed not to have recognized
any of the mob members at the jail, even though he was held there–without
blindfolds–for thirty minutes. Asked why he didn’t pull his gun
to stop the lynching, Shipp replied, “I had no adequate force, and knew
that the pulling of a gun would be useless.”
On June 29, the defense rested. In March
of 1909, the trial moved to the Supreme Court in Washington, where both
sides would have the opportunity to present closing arguments. Attorney
General Charles
Bonaparte told the Court that he believed the issues involved in the
Shipp case to be so important that he decided to deliver the final argument
himself. In his six-hour summation, Bonaparte reviewed the evidence
of the trial and made the case for a guilty verdict. Bonaparte told
the justices that “Justice is at an end when orders of the highest and
most powerful court in the land are set at naught.” Judson
Harmon presented the closing argument for Sheriff Shipp the following
day. Hudson conceded that is client did not, in retrospect, handle
the situation properly: “It is possible that Captain Shipp acted with poor
judgment on the night of the lynching. It is easy to see that he
should have guarded the jail and prepared for a mob.” But certainly,
Harmon argued, “Captain Shipp cannot be convicted of contempt by this Court
simply because, in the performance of his duties, he exercised bad judgment.”
He concluded by urging “this highest and greatest court in the world” to
find Shipp, this “truthful, law-abiding, honorable gentleman,” “Not Guilty.”
After listening to brief arguments from lawyers for the other defendants,
the Court adjourned to consider its verdict.
On Monday, May 24, 1909, the Supreme Court
met to announce its decision in the matter of United
States v. Shipp. In his quiet voice, Chief Justice Fuller
read his opinion. Fuller said that Sheriff Shipp “resented the necessary
order of this court as an alien intrusion” and believed it to be “responsible
for the lynching.” The Court concluded otherwise: “Shipp not only
made the work of the mob easy, but in effect aided and abetted it.”
Shipp was found guilty of criminal contempt. The Court also declared
jailer Jeremiah Gibson and four members of the lynch mob–Nick Nolan, William
Mayes, Henry Padgett, and Luther Williams guilty. Evidence was found
insufficient to convict Deputy Matthew Galloway and two members of the
lynch mob. Justices Holmes, Harlan, Brewer, and Day joined Chief
Justice Fuller’s decision. Three dissenting justices voted to acquit
all defendants.
On November 15, 1909, Sheriff Shipp and the
other convicted defendants stood before the nine justices of the Supreme
Court to receive their sentences. Justice Fuller announced:
You, Sheriff Joseph F. Shipp, Jeremiah
Gibson, Luther Williams, Nick Nolan, Henry Padgett, and William Mayes,
are before this court on an attachment for contempt. You have been
found guilty.Sheriff Shipp, Luther Williams, and Nick Nolan
are hereby sentenced to ninety days imprisonment. Jeremiah Gibson,
Henry Padgett, and William Mayes are hereby sentenced to sixty days.
All sentences are to be served at the United States Jail in the District
of Columbia.This Court is adjourned.
Writing in the Atlanta Independent, Noah
Parden praised the Court’s decision: “The very rule of law upon which this
country was founded and on which the future of this nation rests has been
enforced with the might of our highest tribunal.”
On January 30, 1910, after completing his three-month
sentence, Sheriff Shipp returned to Chattanooga, where he received a hero’s
welcome. As he stepped off the train from Washington, he was greeted
by a crowd of more than 10,000 people singing “Dixie.”
