Powell v. State , 224 Ala. 540 ( 1932 )

While the Constitution guarantees to the accused a speedy trial, it is of greater importance that it should be by a fair and impartial jury, ex vi termini, a jury free from bias or prejudice, and, above all, from coercion and intimidation.

Whether or not these defendants should have been granted a change of venue may be questionable, for, as was stated by the sheriff, when a witness, they could probably get as fair a trial in Jackson as any nearby county, and there is no reason why this was not true. None of the defendants or the injured girls resided in Jackson county, and the prejudice aroused, if any existed, was due largely to the nature of the crime and which was of such a revolting character as to arouse any Caucasian county or community, but the indictment was found and the trial had within a few days after the alleged commission of the offense and when the entire atmosphere was at fever heat.

Every step that was taken from the arrest and arraignment to the sentence was accompanied by the military. Soldiers removed the defendants to Gadsden for safe-keeping, soldiers escorted them back to Scottsboro for arraignment, soldiers escorted them back to Gadsden for safe-keeping while awaiting trial, soldiers returned them to Scottsboro for trial a few days thereafter, and soldiers guarded the courthouse and grounds during every step in the trial, and, after trial and sentence, again removed them to Gadsden. Whether this was essential to protect the prisoners from violence, or because the officials were over apprehensive as to the condition of the public mind, matters little, as this fact alone was enough to have a coercive influence on the jury.

Under the statute, the defendants being unable to employ counsel, it was the duty of the trial judge to appoint counsel, not exceeding two. Section 5567 of the Code of 1923. The court did not name or designate particular counsel, but appointed the entire Scottsboro bar, thus extending and enlarging the responsibility, and, in a sense, enabling each one to rely upon others. Not only this, and notwithstanding the appointment of the entire bar, we find one of the leading, if not the leading, firm subsequently appearing throughout for the state and actively participating in the trial of the cases. This is not intended as a criticism of said firm as the senior member stated to the trial court that when the Chattanooga lawyer, Roddy, appeared upon the scene in behalf of the defendants, he then accepted employment to prosecute, and the trial court accepted the explanation. This Chattanooga lawyer, however, declined to appear as employed counsel and only did so as an amicus curiæ. Again, these defendants were confined in jail in another county during most of the time from the arrest to the trial, and local counsel had little opportunity to confer with them and prepare their defense. They were nonresidents and had little time or opportunity to get in touch with their families and friends who were scattered throughout two other states, and time has demonstrated that they could or would have been represented by able counsel had a better opportunity been given by a reasonable delay in the trial of the cases judging from the number and activity of counsel that appeared immediately or shortly after their conviction.

Another pertinent suggestion, and which is not intended as a harsh criticism of the local counsel that did attempt to represent the defendants throughout the trial, as we can appreciate the position of a lawyer appointed to defend an indigent defendant whom he may feel is guilty and as against whom public sentiment is at fever heat, the record indicates that the appearance was rather pro forma than zealous and active and which is indicated by a declination on the part of counsel to argue the case, notwithstanding the solicitor insisted upon the right to open and close, and the state did, in fact, have the benefit of two arguments and the defendants none. We, of course, realize that a defendant can sometimes gain an advantage by agreeing to submit a case without argument, as the state has the opening and closing, but, where there is no agreement and the solicitor or prosecutor makes two arguments and the counsel for defendant makes none, it is bound to make an unfavorable impression on the jury.

It also appears that, when the jury returned the verdict in the first case tried, the courthouse was not only crowded, but there was great applause and demonstration of approval, and this was bound to have some influence over those to try the succeeding cases.

There is still another point that would indicate that the juries that tried these cases were coerced by public feeling or sentiment or actuated through passion or prejudice. The punishment for the offense for which these defendants were tried, and which is to be fixed by the jury, runs from ten years in the penitentiary to death, and the jury, as to each of the eight defendants, went the extreme, notwithstanding there may have been some facts, such as difference in age, leadership, etc., that would render the conduct of some less culpable than others, yet we find no discrimination whatsoever in the fixation of the punishment.

As to whether or not these defendants are guilty is not a question of first importance, the real one being, Did they get a fair and impartial trial as contemplated by the bill of rights? The accused being entitled to a trial by an impartial jury is deprived of this right when the jury is overawed or coerced by outside influence, pressure, or conduct. According to the state's theory, the crime was brutal and harrowing and calculated to arouse the indignation of every one and even stir the blood of the cooler and law-abiding citizen.

" 'But the law should prevail, without any reference to the magnitude or brutality of the offense charged. No matter how revolting the accusation, how clear the proof, or how degraded, or even brutal, the offender, the Constitution, the law, the very genius of Anglo-American liberty, demand a fair and impartial trial. If guilty, let him suffer such penalty as an impartial jury, unawed by outside pressure, may under the law inflict upon him. He is a human being and is entitled to this. Let not an outraged public, or one which deems itself outraged, stain its own hands — stamp on its soul the sin of a great crime — on the false plea that it is but the avenger of the innocent.' " Seay v. State, 207 Ala. 453, 93 So. 403, 405.

It may be that neither of the foregoing reasons, if standing alone should reverse these cases, but, when considered in connection with each other, they must collectively impress the judicial mind with the conclusion that these defendants did not get that fair and impartial trial that is required and contemplated by our Constitution. Therefore, in justice to the defendants and to the fair name of the state of Alabama, as well as the county of Jackson, these cases should be retried after some months of cooling time have elapsed and by their vigilant employed counsel.

I think that the trial court erred in refusing to grant a new trial in each of these cases and therefore feel constrained to dissent from the affirmance of same.