How a Florida murder and an unlikely justice created a ‘criminal procedure revolution’

Episode Notes

Transcript

Lee Rawles:

Welcome to the Modern Law Library. I’m the A BA Journal’s Lee Rawles, and today I’m here with another A b ABA Journal alum Richard Brust, author of the new book, chambers v Florida and the Criminal Justice Revolution. Richard, thanks so much for joining us.

Richard Brust:

Well, thank you, Lee. It’s a pleasure to be back in touch with you after all these years, and it’s a pleasure to do something for the A BA.

Lee Rawles:

Just right off the bat, as I mentioned, you’re an A B ABA Journal alum. When I first started at the magazine, Richard was there and working with us. I know that our listeners enjoy hearing about interesting career paths. So before we get into the meat of the book, can you tell us a little bit about yourself?

Richard Brust:

Sure. I dunno how much time you have, but I’ve had rather a bit of an odyssey here. I began as a reporter, worked on several newspapers, and somewhere in about the late 1980s, I was assigned to do a story on a Supreme Court case. I knew absolutely nothing, so I went to the nearest law library and started digging through some Supreme Court books, read the books, wrote the story, and I won an award and I was really excited. I wanted to do some more legal affairs writing, so I went to law school at Temple University in Philadelphia. After graduating, I worked at a local Philadelphia legal newspaper and then moved to the A b ABA Journal in 1997. I stayed there until 2015 where I went to graduate school at the University of Florida to get a PhD in history and to direct my interest towards legal history, and that’s how my book got started.

Lee Rawles:

And so legal history, you are trying to elevate a case, chambers v Florida that has been a bit overlooked. So how did you find this case?

Richard Brust:

The simple answer to that actually is that my advisor suggested that I look at it as a possibility for a paper. I found it so interesting that I decided to make my entire dissertation about it, and it was a fascinating case to read. It was very broadly written, it was all encompassing. It included a whole lot of interesting topics and ideas for several reasons. This case was overlooked in terms of in-depth writing. It came out of the 1920s and thirties of several Supreme Court cases that had to do with African-American migrant workers back in those days in the Great Depression, mostly hobos who were picked up and tied to various crimes over the years. The Scottsboro case is the premier case out of that, and these cases have gotten a lot of writing. Scottsboro was one of them. Brown versus Mississippi Moore versus Dempsey. All of these cases were fairly famous because they came from famous events. Chambers versus Florida was basically an ordinary, by ordinary, I mean ordinary at the time of white officers oppressing African-American migrant workers who were accused in a murder.

Lee Rawles:

And so this murder took place. May 13th, 1933, Robert Darcy, a white man was murdered. Can you take us back to what we actually know about that event and then what happened in the days right after?

Richard Brust:

Sure. The event happened on a Saturday night in May in Pompano, Florida, which is now known as Pompano Beach. It’s right on the Atlantic Ocean. And back in those days it was sort of a backwater farming town. Many people from Florida moved down there because, I’m sorry, many people from Georgia, I meant to say, moved down there because South Florida was be of a thriving area in terms of farming. Mr. Darcy moved down there and opened up a fish market. He came home one night, he packed up his wallet, closed the door to his fish market and walked home with about $75 in his pocket. He was assaulted and beaten in a side street in Pompano. He limped to his front door and he collapsed there and he died early Sunday morning. What happened after that was the police and sheriff in the area made a roundup of all kinds of African-American men.

There were about 20 or so that were brought to the Fort Lauderdale courthouse and four of them were portioned out as being the defendants in this case. And they were thrown into the jail, three of them in Broward County Jail, one of them in the Pompano Jail. And for a series of about one week or so, they were beaten and told to testify to exactly what they did. In this case, what happened was a lot of what they basically agreed to say they were told to say, which is to say that they were coerced into making confessions.

Lee Rawles:

And indeed, you talk about them. At least one person wrote out his confession and it seems like the sheriff just tore it up. It was like, Nope, no good. I need you to say different things.

Richard Brust:

It was really interesting that, and glad you brought that up, because they were beaten and psychologically tortured for about a week. They were brought to in front of the district attorney, and they were each told to say what they were told they should say, and one of them gave his, as you said, Lee, one of them gave his testimony as to what exactly happened. The district attorney didn’t like it. He just tore it up and said, give me something I can use. So the idea of coercing these people took on many levels to tell a certain kind of case and a certain kind of confession

Lee Rawles:

And really lost in this. And I thought about this as I was reading the book. We never do find out who murdered Robert Darcy. If it was any of these men, and it does not appear to be Ben. Everything was so cloudy. There’s just no way going backwards to give justice to that man.

Richard Brust:

And that’s the problem. And the key point of this case and this book is that if you are coercing a confession, if you’re forcing people to say something, you really don’t know exactly what happened. And in the sense that the case after over or so years was finally kicked out, there is no sense that anyone really knows exactly what happened. The idea behind this case is that once you start to coerce a confession, you lose your sense of exactly how the event took place. And yes, these four guys may have been in it to other guys, may have been added to it. We never know. And that essentially is the problem of this whole case.

Lee Rawles:

So up to this point, this seems to be a story that is told over and over again, not just in the American South, but particularly in the American South where a white person is injured, killed, et cetera, and they round up black suspects to either take the fall or just answer for this crime. What makes this particular case notable in history is that the Supreme Court of the United States ended up hearing it and in the book, there’s a long, long path that this case goes towards, which is interesting because the very first trial that took place was over in a month and it really did have an impact at the Supreme Court level. So for listeners, if you pick up Chambers v Florida and the Criminal Justice Revolution, the first half of the book gives you a lot of historical background, and then the second half looks more in depth at the Supreme Court. The lawyers behind these rulings and the communities, the legal communities that produce them, the NAACP is huge. The Jacksonville legal community I’m sure we’ll get to talking about, but that’s why this case became elevated is that it made it to the Supreme Court. So who wrote the opinion for this case and why is it notable?

Richard Brust:

Before I get to that, I know we talked to the Jacksonville legal community, but mention should be made of the lawyer, African-American lawyer from Jacksonville who carried this case for 10 years and continued to push it about four times before the Florida Supreme Court. And then finally they rejected it and it went to the US Supreme Court on that simul d McGill, and I’m sure we’ll get to him momentarily. The case was written in the US Supreme Court. It was written by Justice Hugo Black, who is a fascinating character and a fascinating justice, and one would think knowing about him or his background, the immediate response would be there’s no way that the Chief Justice would select Hugo Black to write this opinion. He was a Democrat. He was the first nominee from Franklin d Roosevelt when he took over, began his Supreme Court appointments in 1937, and he was a member of the Ku Klux Klan.

He was from Alabama. He voted against consistently against many pieces of legislation that would’ve helped African-Americans in the South, and yet Chief Justice Charles and Hughes elected him to write this case. And there’s a very interesting reason for it, and that is that when Hugo Black progressed throughout his career, he was the district attorney for the county around Montgomery or Birmingham, Alabama. And there were a series of cases in a nearby town, a steelmaking town called Bessemer, in which police would continually take African-Americans and force them into making confessions through the same sorts of tactics that they coerced the forced suspects in this case. And Hugo Black prosecuted this case. He wrote a fantastically wonderful little indictment of the police and the town’s councilmen who were involved in this, and it sort of made his fame in his early careers as a prosecutor. Not too many people know that about him, but I think it was very, very important to see that the Chamber’s case came out of this background that Hugo Black had.

Lee Rawles:

Well, we’re going to take a quick break to hear from our advertisers when we return. We’re going to get deeper into the case and the lawyers behind it. Welcome back to the Modern Law Library. I’m Lee Rawles here with Richard Rust, author of Chambers v Florida and the Criminal Justice Revolution. So we haven’t touched on the subtitle of your book, but you promise us a criminal justice revolution in the 1920s and thirties. What was this major shift that happened? I actually familiar with this before reading your book, how important this time period was in getting the Supreme Court involved in criminal justice cases, so take it away before this time period and some of the cases like Chambers v Florida, what did the Supreme Court feel was its role in state criminal cases

Richard Brust:

For a long, long time. The United States Supreme Court basically, and all federal courts basically took themselves out of local criminal process. They felt it was up to the sheriff, it was up to the police, let them deal with it. Once it gets to the court, we’ll appropriate it as we will. And nine times out of 10, what usually happened is what almost happened in this case is that the African-American defendants were convicted given the death penalty and either hanged or sent to the electric chair. What began to take place in the 1920s and thirties was the realization on the part of a lot of the Supreme Court members, and they were all white wealthy lawyers, that a lot of African-Americans were being hauled into these court, into backwater sheriff’s offices into these police officers and beaten into submission until they finally gave their confession. It happened so often that these white prominent chief justices felt they couldn’t avoid having to start to look into these cases.

Lee Rawles:

It’s interesting, Richard, you and I have both worked for the American Bar Association and you bring up in here one of the kind of key reports that was finding all these evidence of this law, litness within the law was put out by the A BA in 1930, and I’ll note that in 1930, no black lawyers were allowed to be members of the A BA, and yet they were looking at this like, well, clearly this shocks the conscience. So even people who held these racist beliefs saw, oh, we can’t, this is to an extent that we cannot ignore it.

Richard Brust:

Exactly. And what was going along at the same time was this realization along with the White Supreme Court justices was the realization by the legal community that these third degree sessions, which meant forcing defendants into making their confessions. These third degree sessions that took place in sheriff’s offices were beginning to cloud what was basically the idea of a due process. The A BA had a very, very interesting study that they put out in 1930. In 1931, there was a national study of this called the Wickersham Commission, which I get to in the book, but basically it was an overview of prohibition and the problem with prohibition, one of the huge problems was that it motivated police and sheriffs to do the kinds of things that they don’t usually do. That is to follow various rumrunners, to put in various things that they had to do to arrest them. It was beyond their training and it produced an abundance of horrifying cases that came forth. And the Worker Champ Commission basically said in one of the studies that they put out that this is contrary to what the Constitution allows so alongside of what the justices perceived, so did the legal community sense that these third degree sessions were violating people’s due process rights

Lee Rawles:

And a word that we haven’t spoken yet, but that certainly hung over everything that happened in this book is lynching Sheriffs, as you mentioned, sometimes would physically coerce these prisoners by beatings, drownings, all sorts of things like that. But also they had this additional tool, which was the public mob. And the sheriff in this instance, sheriff Walter Clark repeatedly told these men, Hey, I’m still the only thing standing between you and a lynch mob, and if you don’t do what I say, I’ll turn you over to them essentially. And so there was this other tool that they had that was so dark and frightening,

Richard Brust:

And he in fact took several of them out. There was a lynching that I get to in the book that took place in Fort Lauderdale of an African-American man who basically was running away from his wife. He encountered a white woman. They assumed that the worst happened with him and the white woman, and they took him back and they lynched him. But the possibility of releasing these African-Americans to the mob scared them to death as normally it would. And it was something that these sheriffs kind of held in abeyance to make sure that these African-Americans obeyed themselves. And several times during the session when they were investigated in the Sheriff’s office, they were told several times that we could just let you loose and wait until the mob gets to you so you better pay attention. So this was one thing that they held over their heads literally.

Lee Rawles:

So let’s get to the lawyers who were involved now. I found it was interesting, I mentioned that the very first trial of these four men took place within a month of the murders and the way they got their lawyers for that first trial is shocking to the conscience a bit. Can you talk about Albert b Griffiths and the other attorney who were basically appointed on the street to represent these four men?

Richard Brust:

The judge was kind of walking down the street one day, it was the day right before their hearing, and he decided that he needed two lawyers. So he stopped Albert b Griffiths in front of his office in Fort Lauderdale and asked him if he could come by the next morning and represent two of these four defendants. And he went to another lawyer named WC Mather and asked him if he would represent the other two. The first time the lawyers saw their clients was that morning at the arraignment,

Lee Rawles:

And these are two white men, two white attorneys.

Richard Brust:

They were white lawyers who did a whole lot of different things in Fort Lauderdale, but they didn’t have a whole lot of experience in criminal law. So this was the first bit of representation that these four defendants had. Albert Griffiths tried his best, I suppose, to make sure that his client, who was Isel Chambers would get a fair trial. Now, the other thing to mention too is that Isel Chambers was the only one of the four that pleaded not guilty. So he set the trial in motion and it worked out the way you said it did is that they were convicted and within a period of days sent to the death penalty and then sent to Rayford State Prison in Florida, which is where the electric chair was.

Lee Rawles:

Now we need to get to someone who I think of as a hero in the story, simul McGill and his colleagues in the Jacksonville legal community. Now, I didn’t really know anything about Jacksonville, Florida prior to reading this book. I found it interesting that at least at some point in time, Jacksonville was called a northern city and a southern latitude. And there was, as there were in other pockets around the country, a kind of vibrant African-American legal community in this town of lawyers who all knew each other, encouraged each other, and Simul was one of these men. So could you talk a little bit about him, why he took the case, and then how he managed to handle more than nine years of this legal wrangling? Because he was a corporate attorney, right? I mean, this wasn’t even necessarily his whole deal.

Richard Brust:

He certainly wasn’t a criminal attorney, that’s for sure. And I think this was probably, for me anyway, as the writer and researcher, this to me was probably one of the most fascinating parts of this study. Jacksonville, after the Civil War was settled by a lot of people were part of the Republican Party, which at that point was the Lincoln Party. It was in favor of African-American rights. The Democratic Party was the party of the South, and Jacksonville was settled by a lot of Republicans who really were very complacent about the fact that the African-American community in Jacksonville was able to thrive. Among the things that they did was they produced a nice middle class of people, among whom were several lawyers. Two of them were the most interesting to me. One was James Weldon Johnson, who eventually moved to New York and became a writer and speaker in the Harlem Renaissance.

And the other one was a compatriot of his named Douglas Wetmore, who was really a wild guy. Samuel d McGill began his work when he was in high school working for their law firm, and he began to get interested in law as a prospect and as a career, and he put together a thriving practice where he dealt with African-American fraternal organizations, which were very big in that period. This allowed to give him the basic substance to be able to take on these odd criminal cases that came through. And one of the cases that he was asked to take was Chambers versus Florida at that point, chambers versus state. And he was a fascinating guy. He was a steadfast lawyer. He refused to let go of this case. He took it to the Florida Supreme Court four different times. He took over the defense of it in one of the trials, and he basically kept pushing the case to its logical end. The fact that as a little sort of side point, the fact that these legal communities grew up in the United States in this period of time, the end of the 19th century, beginning of the 20th century, I’m sure there are many more places where this happened. Jacksonville probably being only one of them. But yeah, this was a really, really interesting study of how this thriving African-American legal community got together.

Lee Rawles:

We’re going to take another break to hear from our advertisers when we return. I’ll still be speaking with Richard Rust, author of Chambers v Florida and the Criminal Justice Revolution. Welcome back to the Modern Law Library. I’m your host, Lee Rawles here with Richard Rust. So Richard, we have now reached a point where I would love to talk about the actual consequences of this decision and due process. So this case seems to, from your research, just really have provided Justice Hugo Black with the opportunity to deliver an opinion that he had just been waiting to deliver and to establish his theory of what the 14th Amendment requires for due process. So take it away. What did this case do for Hugo Black and his ability to propagate this theory of due process?

Richard Brust:

Well, as I said to you earlier, the funny thing about writing this book was trying to think through how best to convey the idea of due process. And now in the recent events, I think a lot of Americans actually really do begin to understand what due process was. Hugo Black was an interesting guy in the sense that he felt that the 14th Amendment naturally brought in every other amendment in the Constitution and transferred them to the states. This was sort of a total incorporation of all of the other amendments into the states before Black made that realization. Before we wrote about that beginning in Chambers, the court would pick and choose which ones of the first 10 amendments they wanted to bring into the States. Sometimes they said, well, the First Amendment’s really important, but the Eighth Amendment having to do with punishment is not that important. They would sort of bargain their way through this. What Hugo Black basically said was, nuh, the 14th Amendment brings in every one of the other amendments and brings all of them onto each state.

Lee Rawles:

The Bill of Rights must be respected by every single state, and the United States Supreme Court gets to say whether you respected it or not,

Richard Brust:

Right? And what that eventually did was it basically brought the Supreme Court into this area of criminal law that courts, federal courts especially never really entered. And that is how the justice system, how sheriffs, how police dealt with defendants. And the reason I call this the criminal Justice revolution, it’s usually called the criminal procedure revolution, but I call this the criminal Justice revolution because in my way of thinking, what this did was sort of level the playing field between the state and its representatives of one hand and the defendants on the other hand. So rather than the state totally encompassing this, it balanced out their interests by giving the defendants certain constitutional rights that the US Constitution basically said they should have. And where this went from there was through the rest of Black’s tenure and onto the Earl Warren Court in which Black basically was one of the key writers of a lot of the cases in the Earl Warren Court.

And it basically brought out what was known as the criminal procedure revolution, which I call the criminal justice Revolution. And this was an expansive change in the way law and criminal law was treated. The most famous cases that come out of it that everybody knows Miranda versus Arizona, Gideon versus Wainwright, and all of these cases, or at least my argument is that all of these cases came forward because of what Hugo Black brought into the constitutional meaning of the Supreme Court and what the Supreme Court should be saying and should be thinking about these cases.

Lee Rawles:

Another thing in the book that I really appreciated was it was looking at the generational differences between legal approaches. You had Samuele McGill trying these cases in the thirties. Chambers was handed down in 1940, and then as you mentioned, the Warren Court, it became the Warren Court in 1953, and then we’re seeing the fifties and sixties. You brought up in the book the role of the NAACP and how their attitudes and the attitude of, for example, the Jacksonville attorneys who kept the Chamber’s case going for nine years in the Florida courts. There were some strategic differences that they argued about. Could you go into that a little bit? I just thought it was interesting to see this shift in strategy.

Richard Brust:

Yes. Well, the NAACP is a fascinating organization. If I can give some credit to one of these sources. I had, Patricia Sullivan has written extensively about the naacp and when they began in the early 20th century, they were mostly a fairly elite organization, African-American participants as well as white participants. And they sort of handled cases on kind of an elite basis. They sort of jump in to various and sundry criminal cases because it gave them a lot of prominence that they needed at the time. By the 1930s and 1940s, Charles Hamilton Houston kind of took over the legal arm of the naacp and he brought in a lot of his younger attorneys, and there was a generational split. The people like Samuele d McGill and several other attorneys of that generation worked the system through the state courts. They would take it one step at a time,

Lee Rawles:

And the goal just was to keep your client alive as long as possible and to just keep trying to give your clients an opportunity in front of a judge who maybe was sympathetic. And so you bring it again and again and again, and you delay, delay, delay. And this caused a lot of anger in the local communities. And indeed, you brought up the lynching of Ruben Stacey in 1935, and it was brought up by people as well. This is just a reaction to how these black lawyers are delaying justice and this is what you get.

Richard Brust:

It was a piece by piece Assembly of Criminal Justice and by extending that idea of civil rights as well, and that’s all they could do at this point in terms of what the justice system allowed African-American lawyers and African-American defendants to be able to do. They kept pushing it and pushing it and pushing it. What eventually happened with Charles Hamilton Houston and his proteges, the key one among them was Thurgood Marshall was by the 1930s and forties, they envisioned a much broader attack on criminal justice as well as civil rights cases. And this was sort of a generational split. These younger lawyers began to take over, and lawyers like McGill and a whole lot of his cohort were eventually sort of slowly pushed to the side. I do make the point in the book, and I wanted to emphasize this, that a lot of what the sort of intermediate generation of lawyers from Jacksonville and other places as well were able to do was kind of set the table for this future generation of Charles Hamilton Houston and Thurgood Marshall to be able to push this on a broad national level. And I think that’s the important thing to recognize about these lawyers, what they participated in, what they were allowed to do at the time, and what they were allowed to give to this later generation of lawyers.

Lee Rawles:

We’ve talked about civil rights and the black attorneys. I think that it’s important to note, as you certainly do in the book, and you go much more in depth than anyone who’s interested, can read more about it in Chambers v Florida and the Criminal Justice Revolution. But you make the point that a lot of the motivation for attorneys nationwide, especially white attorneys like Justice Hugo Black for example, is that they weren’t necessarily responding only to the civil rights injustices. They were looking at the American system and saying, we do not want to be the totalitarian authoritarian governments that we see on the rise abroad eventually in the fifties and sixties. This also kind of gets pulled into the, oh, we don’t want to be like the Commies, but in the thirties in particular, they were sounding an alarm and saying, one of the reasons due process is so important is that we cannot be like the authoritarians and the totalitarians we see on the rise in countries like Germany. So could you talk a little bit about that, because I certainly grew up hearing about the communism angle in the fifties and sixties. Oh, we don’t want to be like the Soviets, but I hadn’t heard as much about this period and the fears on the part of some Americans that, okay, well, we need to hash out this due process here so that we don’t become like the authoritarians and totalitarians we see abroad.

Richard Brust:

Sure. And one thing that certainly influenced everyone was the fact that, hey, we’re investigating and the Wickersham Commission and the A Commission are investigating how these sheriffs and police are degrading and beating up all of these suspects in the us. And gee, this is beginning to look a little bit like what’s going on over in Europe. And as I mentioned in the book, this idea of how Jim Crow was sort of a parallel almost of fascism in Europe was not some crazy wide notion of what was going on. It was brought up and emphasized by a lot of people, most specifically the African-American press, which went to great extent in the 1930s to show that yes, we empathize what’s going on to Jews over in New York, but hey, it’s not too different from what’s going on over here. And this thinking began to influence Supreme Court justices. A whole lot of other lawyers and a whole lot of Americans were paying attention to this. What eventually happened was after World War II was over, the rise of communism took over. And in my argument basically is that what the Warren Court basically did is just switch fascism for communism,

Lee Rawles:

Which is ironic considering how many communist attorneys earlier on in earlier decades were involved in civil rights cases. The Scottsboro Boys case, for example, that was where communist attorneys fighting for their rights.

Richard Brust:

Yes, and it’s important to remember too, that in the 1930s during the Great Depression, the US didn’t quite know what it was going to do to break out of this horrible mess. It was in economy, had collapsed, fear was going all over the place, and communism was one of the private and very well accepted methods of trying to fix what was going on in the United States. And the Communist Party had its own legal arm called the International Labor Defense, and they came in and handled the Scotsboro cases. Eventually, as communism became derided in the 1960s, that diminished and the naacp NAACP finally found its own way to become the prominent arm of the civil rights cases. So it’s an interesting development in how these two ideas took place.

Lee Rawles:

Well, one of the things I wanted to know as a reader was what happened to the four men who went through more than nine years of legal wrangling? And you have an answer that’s a little bit unsatisfying, we just don’t know. Could you talk a little bit about their fates, what happened to them?

Richard Brust:

We don’t know what happened to three of them. It was really hard to find out what a lot of these migrant workers did, where they came from, who their families were. They were pretty much their own society divorced from any concept of being part of a state or part of any part of the White American structure at that point. After the case was over, after they were released from jail, finally three of them went on their own way. Every effort that I made to try to find out what happened to them kind of went nowhere. We do know what happened to Eisel Chambers, the man whose name was used in this case, and that is while he was in prison. He went through a mental breakdown and he was eventually sent to a mental hospital in the panhandle of Florida, and he died there in 1954. The other three participants in this case, we unfortunately just don’t know anything about, or at least, lemme put it this way. I couldn’t find anything about them.

Lee Rawles:

Well, Richard, thank you so much for coming on to talk about their story. Do you have any, I’m going to put out there recommended reading for people who are intrigued by Chambers v Florida and the Criminal Justice Revolution, or any plans on what your next project will be.

Richard Brust:

The best suggestions I could have for continued reading is to get the book and look at my

Lee Rawles:

Very extensive bibliography,

Richard Brust:

Look at my bibliography. There are some excellent books about some of the other cases that came through at this time. The Scottsboro case has many wonderful books written about the most important ones written by Dan Carter and some of the other incidents that I touch on here as well. But it’s a fascinating study and group of resources. As for my next project, I think what I may do is go back to something I wrote my master’s, my master’s thesis on, and pull that out a little bit more. And what that had to do with was how the Civil Rights movement evolved from the labor movement in the early 1920s and thirties. I’ve done a lot of research on that, and I think I might be able to push that a little further into my next book. I will say that it’s nice to finally be able to call myself a writer and be able to dedicate myself to rioting.

Lee Rawles:

I mean, having read many of your articles over the years, I would say that you are always a writer. But it’s finally in book form and people can pick it up, chamber Sea Florida, and the Criminal Justice Revolution. Thank you again to my old friend, Richard Bru, for coming on to talk about his book. If you enjoyed this episode of The Modern Law Library, please rate, review and subscribe in your favorite podcast listening service. And if you have a book that you’d like me to check out for future episode, you can always reach me at books at ABA Journal dot com. Thank you everyone for listening.