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On any given day, a defender will walk into a courthouse in Minot (North Dakota), Pawhuska (Oklahoma), Caribou (Maine) or Wartburg (Tennessee), and face what will be, at best, indifference and, at worst, hostility. Most of these people are not known to us. They have no media presence, and they do not seek such. They show up daily to defend what is left of the Bill of Rights and the “American Experiment.”
As we know, it is not just individuals we defend when we stand in the courtroom. Directly or impliedly, we also defend the principle of an independent judiciary, which is increasingly battered by the winds of politics. Many judges are keenly aware of public perception. The fear of political fallout has been added to the traditional sentencing factors of retribution, rehabilitation, and deterrence. This is especially true for judges subject to election or reelection by the public at large. Thus, defenders must take on the additional burden of emboldening judges to act as independent arbiters of the law, which they have sworn an oath to do.
This is often a daunting task for an individual defender, especially a sole practitioner or public defender in a smaller jurisdiction. The inherent conflict — between the state and the individual and the occasionally necessary tension between the judge and defender — is more intimate. Advocates have a choice: stand as a bulwark against the forces that would seek to erase the rights and humanity of our clients or stand by and watch such erasure with a mighty shrug. Standing as a fortress takes incredible courage and commitment. This grit and this fearlessness are nothing new. The history of the criminal legal system is filled with examples of defenders who risked their careers, reputations, and personal safety to stand up for their clients and, ultimately, for us all.
Although many may remember the case of John Peter Zenger as the foundation for the concept of freedom of the press and its enshrinement within the First Amendment, few know of the extraordinary sacrifice of Zenger’s defense counsel. James Alexander, his first lawyer, was held in contempt and disbarred for challenging the legitimacy of the appointment of Judge James DeLancy, handpicked by the colonial governor who had brought the charges against Zenger. Andrew Hamilton, Zenger’s second lawyer, would take the case on, arguing successfully for jury nullification despite Judge DeLancy’s best efforts to thwart the defense. Hamilton took this case on a pro bono basis.
In 1906, police in Chattanooga, Tennessee, arrested a young Black man named Ed Johnson for the rape of a white woman named Nevada Taylor. Ms. Taylor was not able to identify her assailant other than to say that he was Black and had carried a “leather strap” that had been used to wrap around her neck during the assault. Joseph Shipp, the sheriff of Hamilton County, arrested Johnson two days after the assault. The probable cause for Johnson’s arrest was that he was Black, someone reported having seen him near the streetcar stop where the assault took place, and it was thought he was in possession of a leather strap. Johnson’s trial began 12 days later. The result? A conviction and sentence of death.
Johnson’s court-appointed counsel chose not to appeal, citing a concern that such an appeal might enrage the public and result in an attempt to lynch Johnson. Noah Parden and Styles Hutchins, two Black lawyers in Chattanooga, undertook Johnson’s appeal. After receiving unfavorable rulings from the Tennessee Supreme Court and the U.S. Circuit Court in Knoxville, Parden and Styles managed to get a 10-day stay of execution from the governor. Parden used this stay to travel to Washington, D.C., where he met with Associate Justice John Marshall Harlan. Justice Harlan issued a stay of execution, anticipating a forthcoming appeal from defense counsel. The same day Justice Harlan issued the stay, and after the Chattanooga evening paper published news of it, a mob, with the complicity of Sheriff Shipp, broke into the city jail, dragged Johnson to the Walnut Street bridge, and lynched him.{1} 1 Ed Johnson’s last words: “I was not there. I am now going to die, and I have no fear at all. God bless you all. I am innocent.”
In the aftermath of the lynching, Sheriff Shipp became a defendant in the only criminal trial held at the U.S. Supreme Court. He was found to be in criminal contempt for his part in the murder of Ed Johnson.{2} 2 United States v. Shipp, 203 U.S. 563 (1906).
But what of Noah Parden and Styles Hutchins? For their efforts, the legal community in Chattanooga ostracized them, and Sheriff Shipp’s supporters repeatedly threatened them. As a result, they left their homes and practices in Chattanooga and started anew elsewhere.
These cases are only a small sampling of defenders who have borne the brunt of public hostility, judicial timorousness, and institutional venality to remind authority that it must remain true to the principles upon which such authority is based. But, as Edward R. Murrow reminded us during his commentary on the McCarthy Hearings, “[W]e are not descended from fearful men — not from men who feared to write, to speak, to associate and to defend causes that were, for the moment, unpopular.”{3} 3 Commentary of Edward R. Murrow, March 9, 1954.
In closing, I borrow the dedication from a Czech film about the Stalinist show trials of the 1950s: “To all the unknown heroes who have fought against injustice.”{4} 4 Ve Stínu (In the Shadow) (Falcon CZ 2012).
Thank you for all you have done, for all you do, and for all you will do.
About the Author
Christopher A. Wellborn is a founding member and past president of the South Carolina Association of Criminal Defense Lawyers. He practices in state and federal courts, representing clients facing all types of misdemeanor and felony charges, including drug charges, traffic offenses, white collar crimes, and juvenile offenses. Wellborn is sought after nationwide for his experience with unwarranted charges of shaken baby syndrome and child abuse.
Christopher A. Wellborn (NACDL Life Member)
Christopher Wellborn PA
Rock Hill, South Carolina
803-366-1065
cawlaw@comporium.net
www.wellbornlawfirm.com
