1. Upon an appeal from an order of the District Court dismissing
a petition for habeas corpus upon demurrer, the allegations of fact
pleaded in the petition and admitted by the demurrer must be
accepted as true. P.
261 U. S.
87.
2. A trial for murder in a state court in which the accused are
hurried to conviction under mob domination without regard for their
rights is without due process of law and absolutely void. P.
261 U. S.
90.
3. In the absence of sufficient corrective process afforded by
the state courts, when persons held under a death sentence and
alleging facts showing that their conviction resulted from such a
trial, apply to the Federal District Court for habeas corpus, that
court must find whether the facts so alleged are true, and whether
they can be explained so far as to leave the state proceedings
undisturbed. P.
261 U. S.
91.
Reversed.
APPEAL from an order of the District Court dismissing a petition
for habeas corpus upon demurrer.
Page 261 U. S. 87
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is an appeal from an order of the District Court for the
Eastern District of Arkansas dismissing a writ of habeas corpus
upon demurrer, the presiding judge certifying that there was
probable cause for allowing the appeal. There were two cases
originally, but, by agreement, they were consolidated into one. The
appellants are five negroes who were convicted of murder in the
first degree and sentenced to death by the Court of the State of
Arkansas. The ground of the petition for the writ is that the
proceedings in the State Court, although a trial in form, were only
a form, and that the appellants were hurried to conviction under
the pressure of a mob without any regard for their rights and
without according to them due process of law.
The case stated by the petition is as follows, and it will be
understood that, while we put it in narrative form, we are not
affirming the facts to be as stated, but only what we must take
them to be, as they are admitted by the demurrer. On the night of
September 30, 1919, a number of colored people assembled in their
church were attacked and fired upon by a body of white men, and in
the disturbance that followed, a white man was killed. The report
of the killing caused great excitement, and was followed by the
hunting down and shooting of many negroes and also by the killing
on October 1 of one Clinton Lee, a white man, for whose murder the
petitioners were indicted. They seem to have been arrested with
many others on the same day. The petitioners say that Lee must have
been killed by other whites, but that we leave on one side, as what
we have to deal with is not the petitioners' innocence
Page 261 U. S. 88
or guilt, but solely the question whether their constitutional
rights have been preserved. They say that their meeting was to
employ counsel for protection against extortions practiced upon
them by the landowners, and that the landowners tried to prevent
their effort, but that again we pass by as not directly bearing
upon the trial. It should be mentioned, however, that O. S.
Bratton, a son of the counsel who is said to have been contemplated
and who took part in the argument here, arriving for consultation
on October 1, is said to have barely escaped being mobbed; that he
was arrested and confined during the month on a charge of murder,
and, on October 31, was indicted for barratry, but later in the day
was told that he would be discharged, but that he must leave
secretly by a closed automobile to take the train at West Helena.,
four miles away, to avoid being mobbed. It is alleged that the
judge of the Court in which the petitioners were tried facilitated
the departure and went with Bratton to see him safely off.
A Committee of Seven was appointed by the Governor in regard to
what the committee called the "insurrection" in the county. The
newspapers daily published inflammatory articles. On the 7th, a
statement by one of the committee was made public to the effect
that the present trouble was
"a deliberately planned insurrection of the negroes against the
whites, directed by an organization known as the 'Progressive
Farmers' and Household Union of America' established for the
purpose of banding negroes together for the killing of white
people."
According to the statement, the organization was started by a
swindler to get money from the blacks.
Shortly after the arrest of the petitioners, a mob marched to
the jail for the purpose of lynching them, but were prevented by
the presence of United States troops and the promise of some of the
Committee of Seven and other leading officials that, if the mob
would refrain, as
Page 261 U. S. 89
the petition puts it, they would execute those found guilty in
the form of law. The Committee's own statement was that the reason
that the people refrained from mob violence was "that this
Committee gave our citizens their solemn promise that the law would
be carried out." According to affidavits of two white men and the
colored witnesses on whose testimony the petitioners were
convicted, produced by the petitioners since the last decision of
the Supreme Court hereafter mentioned, the Committee made good
their promise by calling colored witnesses and having them whipped
and tortured until they would say what was wanted, among them being
the two relied on to prove the petitioners' guilt. However this may
be, a grand jury of white men was organized on October 27 with one
of the Committee of Seven and, it is alleged, with many of a posse
organized to fight the blacks upon it, and, on the morning of the
29th, the indictment was returned. On November 3, the petitioners
were brought into Court, informed that a certain lawyer was
appointed their counsel, and were placed on trial before a white
jury -- blacks being systematically excluded from both grand and
petit juries. The Court and neighborhood were thronged with an
adverse crowd that threatened the most dangerous consequences to
anyone interfering with the desired result. The counsel did not
venture to demand delay or a change of venue, to challenge a
juryman or to ask for separate trials. He had had no preliminary
consultation with the accused, called no witnesses for the defence,
although they could have been produced, and did not put the
defendants on the stand. The trial lasted about three-quarters of
an hour, and in less than five minutes, the jury brought in a
verdict of guilty of murder in the first degree. According to the
allegations and affidavits, there never was a chance for the
petitioners to be acquitted; no juryman could have voted for an
acquittal and continued to live in Phillips County, and if
Page 261 U. S. 90
any prisoner by any chance had been acquitted by a jury, he
could not have escaped the mob.
The averments as to the prejudice by which the trial was
environed have some corroboration in appeals to the Governor, about
a year later, earnestly urging him not to interfere with the
execution of the petitioners. One came from five members of the
Committee of Seven, and stated, in addition to what has been quoted
heretofore, that "all our citizens are of the opinion that the law
should take its course." Another, from a part of the American
Legion, protests against a contemplated commutation of the sentence
of four of the petitioners and repeats that a
"solemn promise was given by the leading citizens of the
community that, if the guilty parties were not lynched, and let the
law take its course, that justice would be done and the majesty of
the law upheld."
A meeting of the Helena Rotary Club, attended by members
representing, as it said, seventy-five of the leading industrial
and commercial enterprises of Helena, passed a resolution approving
and supporting the action of the American Legion post. The Lions
Club of Helena, at a meeting attended by members said to represent
sixty of the leading industrial and commercial enterprises of the
city, passed a resolution to the same effect. In May of the same
year, a trial of six other negroes was coming on, and it was
represented to the Governor by the white citizens and officials of
Phillips County that, in all probability, those negroes would be
lynched. It is alleged that, in order to appease the mob spirit and
in a measure secure the safety of the six, the Governor fixed the
date for the execution of the petitioners at June 10, 1921, but
that the execution was stayed by proceedings in Court; we presume
the proceedings before the Chancellor to which we shall advert.
In
Frank v. Mangum, 237 U. S. 309,
237 U. S. 335,
it was recognized, of course, that if, in fact, a trial is
dominated by a
Page 261 U. S. 91
mob so that there is an actual interference with the course of
justice, there is a departure from due process of law, and
that,
"if the State, supplying no corrective process, carries into
execution a judgment of death or imprisonment based upon a verdict
thus produced by mob domination, the State deprives the accused of
his life or liberty without due process of law."
We assume in accordance with that case that the corrective
process supplied by the State may be so adequate that interference
by habeas corpus ought not to be allowed. It certainly is true that
mere mistakes of law in the course of a trial are not to be
corrected in that way. But if the case is that the whole proceeding
is a mask -- that counsel, jury and judge were swept to the fatal
end by an irresistible wave of public passion, and that the State
Courts failed to correct the wrong; neither perfection in the
machinery for correction nor the possibility that the trial court
and counsel saw no other way of avoiding an immediate outbreak of
the mob can prevent this Court from securing to the petitioners
their constitutional rights.
In this case, a motion for a new trial on the ground alleged in
this petition was overruled, and, upon exceptions and appeal to the
Supreme Court, the judgment was affirmed. The Supreme Court said
that the complaint of discrimination against petitioners by the
exclusion of colored men from the jury came too late, and, by way
of answer to the objection that no fair trial could be had in the
circumstances, stated that it could not say "that this must
necessarily have been the case"; that eminent counsel was appointed
to defend the petitioners, that the trial was had according to law,
the jury correctly charged, and the testimony legally sufficient.
On June 8, 1921, two days before the date fixed for their
execution; a petition for habeas corp?s was presented to the
Chancellor, and he issued the writ and an injunction against the
execution of the petitioners; but the Supreme Court of the
State
Page 261 U. S. 92
held that the Chancellor had no jurisdiction under the state
law, whatever might be the law of the United States. The present
petition perhaps was suggested by the language of the Court: "What
the result would be of an application to a Federal Court, we need
not inquire." It was presented to the District Court on September
21. We shall not say more concerning the corrective process
afforded to the petitioners than that it does not seem to us
sufficient to allow a Judge of the United States to escape the duty
of examining the facts for himself when, if true as alleged, they
make the trial absolutely void. We have confined the statement to
facts admitted by the demurrer. We will not say that they cannot be
met, but it appears to us unavoidable that the District Judge
should find whether the facts alleged are true and whether they can
be explained so far as to leave the state proceedings
undisturbed.
Order reverse. The case to stand for hearing before the
District Court.
Mr. Justice McREYNOLDS, dissenting.
We are asked to overrule the judgment of the District Court
discharging a writ of habeas corpus by means of which five negroes
sought to escape electrocution for the murder of Clinton Lee. §
753, Rev.Stats. [
Footnote 1]
They were convicted and sentenced in the Circuit Court of Phillips
County, Arkansas, two years before the writ issued. The petition
for the writ was supported by affidavits of these five ignorant men
whose lives were at stake, the
ex parte affidavits of
three other negroes who had pleaded guilty
Page 261 U. S. 93
and were then confined in the penitentiary under sentences for
the same murder, and the affidavits of two white men -- low
villains according to their own admissions. It should be remembered
that to narrate the allegations of the petition is but to repeat
statements from these sources. Considering all the circumstances --
the course of the cause in the state courts and upon application
here for certiorari, etc. -- the District Court held the alleged
facts insufficient
prima facie to show nullity of the
original judgment.
The matter is one of gravity. If every man convicted of crime in
a state court may thereafter resort to the federal court and by
swearing, as advised, that certain allegations of fact tending to
impeach his trial are "true to the best of his knowledge and
belief," thereby obtain as of right further review, another way has
been added to a list already unfortunately long to prevent prompt
punishment. The delays incident to enforcement of our criminal laws
have become a national scandal and give serious alarm to those who
observe. Wrongly to decide the present cause probably will produce
very unfortunate consequences.
In
Frank v. Mangum, 237 U. S. 309,
237 U. S. 325,
237 U. S. 326,
237 U. S. 327,
237 U. S. 329,
237 U. S. 335,
after great consideration, a majority of this Court approved the
doctrine which should be applied here. The doctrine is right and
wholesome. I cannot agree now to put it aside and substitute the
views expressed by the minority of the Court in that cause.
Much of the opinion in the
Frank case might be repeated
here if emphasis were necessary. It will suffice
Page 261 U. S. 94
to quote a few paragraphs; but fully to understand, the whole
should be read.
"In dealing with these contentions, we should have in mind the
nature and extent of the duty that is imposed upon a Federal court
on application for the writ of habeas corpus under § 753, Rev.Stat.
Under the terms of that section, in order to entitle the present
appellant to the relief sought, it must appear that he is held in
custody in violation of the Constitution of the United States.
Rogers v. Peck, 199 U. S. 425,
199 U. S.
434. Moreover, if he is held in custody by reason of his
conviction upon a criminal charge before a court having plenary
jurisdiction over the subject matter or offense, the place where it
was committed, and the person of the prisoner, it results from the
nature of the writ itself that he cannot have relief on habeas
corpus. Mere errors in point of law, however serious, committed by
a criminal court in the exercise of its jurisdiction over a case
properly subject to its cognizance, cannot be reviewed by habeas
corpus. That writ cannot be employed as a substitute for the writ
of error."
"As to the 'due process of law' that is required by the
Fourteenth Amendment, it is perfectly well settled that a criminal
prosecution in the courts of a State, based upon a law not in
itself repugnant to the Federal Constitution and conducted
according to the settled course of judicial proceedings as
established by the law of the State, so long as it includes notice,
and a hearing, or an opportunity to be heard, before a court of
competent jurisdiction, according to established modes of
procedure, is 'due process' in the constitutional sense."
"It is, therefore, conceded by counsel for appellant that, in
the present case, we may not review irregularities or erroneous
rulings upon the trial, however serious, and that the writ of
habeas corpus will lie only in case the judgment under which the
prisoner is detained is shown to be absolutely
Page 261 U. S. 95
void for want of jurisdiction in the court that pronounced it,
either because such jurisdiction was absent at the beginning or
because it was lost in the course of the proceedings."
"But it would be clearly erroneous to confine the inquiry to the
proceedings and judgment of the trial court. The laws of the State
of Georgia (as will appear from decisions elsewhere cited), provide
for an appeal in criminal cases to the Supreme Court of that State
upon divers grounds, including such as those upon which it is here
asserted that the trial court was lacking in jurisdiction."
"It follows as a logical consequence that where, as here, a
criminal prosecution has proceeded through all the courts of the
State, including the appellate as well as the trial court, the
result of the appellate review cannot be ignored when afterwards
the prisoner applies for his release on the ground of a deprivation
of Federal rights sufficient to oust the State of its jurisdiction
to proceed to judgment and execution against him. This is not a
mere matter of comity, as seems to be supposed. The rule stands
upon a much higher plane, for it arises out of the very nature and
ground of the inquiry into the proceedings of the state tribunals,
and touches closely upon the relations between the state and the
Federal governments. As was declared by this court in
Ex parte
Royall, 117 U. S. 241,
117 U. S.
252 -- applying in a habeas corpus case what was said in
Covell v. Heyman, 111 U. S. 176,
111 U. S.
182, a case of conflict of jurisdiction: --"
"The forbearance which courts of coordinate jurisdiction,
administered under a single system, exercise towards each other,
whereby conflicts are avoided, by avoiding interference with the
process of each other, is a principle of comity, with perhaps no
higher sanction than the utility which comes from concord; but
between state courts and those of the United States, it is
something more. It is a principle of right and of law,
Page 261 U. S. 96
and, therefore, of necessity."
"
And see In re Tyler, Petitioner, 149 U. S.
164,
149 U. S. 186. . . ."
"We, of course, agree that, if a trial is, in fact, dominated by
a mob, so that the jury is intimidated and the trial judge yields,
and so that there is an actual interference with the course of
justice, there is, in that court, a departure from due process of
law in the proper sense of that term. And if the State, supplying
no corrective process, carries into execution a judgment of death
or imprisonment based upon a verdict thus produced by mob
domination, the State deprives the accused of his life or liberty
without due process of law."
"But the State may supply such corrective process as to it seems
proper. Georgia has adopted the familiar procedure of a motion for
a new trial followed by an appeal to its Supreme Court, not
confined to the mere record of conviction but going at large, and
upon evidence adduced outside of that record, into the question
whether the processes of justice have been interfered with in the
trial court. Repeated instances are reported of verdicts and
judgments set aside and new trials granted for disorder or mob
violence interfering with the prisoner's right to a fair trial.
Myers v. State, 97 Georgia 76(5), 99;
Collier v.
State, 115 Georgia 803."
Let us consider with some detail what was presented to the court
below.
There was the complete record of the cause in the state courts
-- trial and Supreme -- showing no irregularity. After indictment,
the defendants were arraigned for trial and eminent counsel
appointed to defend them. He cross-examined the witnesses, made
exceptions, and evidently was careful to preserve a full and
complete transcript of the proceedings. The trial was unusually
short, but there is nothing in the record to indicate that it was
illegally hastened. November 3, 1919, the jury returned a verdict
of "guilty;" November 11th the defendants were sentenced
Page 261 U. S. 97
to be executed on December 27th; December 20th new counsel
chosen by them or their friends moved for a new trial and supported
the motion by affidavits of defendants and two other negroes who
declared they testified falsely because of torture. This motion
questioned the validity of the conviction upon the very grounds now
advanced -- torture, prejudice, mob domination, failure of counsel
to protect interests, etc. It is thus summarized by counsel for
appellants --
"The grounds urged in the motion were the state of public
feeling against the defendants, the fact that the defendants and
witnesses were frequently subjected to torture for the purpose of
extracting from them admissions of guilt and to make them testify
against the defendants; that they were given no opportunity to
consult with their friends and seek assistance, or informed of the
charge against them until after their indictment; that they were
carried from jail to the courtroom without having been permitted to
see or talk with an attorney or any other person in regard to their
defense; that the court appointed counsel for the defendants
without consulting them, or giving them an opportunity to employ
their own counsel; that the state of public feeling was such that
they could not have a fair jury; that the trial proceeded without
their consulting with their counsel or any witnesses, or being
given an opportunity to obtain witnesses; that they were never in
court before and were entirely ignorant of what they could do to
defend themselves; that the trial from beginning to end occupied
three-fourths of an hour and the verdict was returned in from three
to six minutes. Four of the defendants say that they never had a
copy of the indictment served upon them, one had it only
forty-eight hours before the trial."
"Another ground was that, under the practice which prevailed in
the State, only white men were summoned
Page 261 U. S. 98
to sit on the grand jury or the jury, and that, by this
discrimination, the defendants were deprived of their rights under
the Constitution of the United States; that they had no notice or
knowledge of what steps they should take to raise this point before
the trial; that the verdict is contrary to the law and
evidence."
"To this motion are attached two affidavits, one of Alf Banks,
Jr., and another of William Wordlaw who testified to the fact that
they were whipped, placed in the electric chair and strangled by
something put in their noses to make them testify. These defendants
did not suffer from what was done to these witnesses, as they did
not testify at their trial, but their affidavits confirm the
testimony of the others as to the treatment to which the Negroes in
confinement were exposed."
A new trial having been denied, an appeal was granted to the
State Supreme Court and sixty days allowed for preparing bill of
exceptions; March 22, 1920, this appeal was argued orally and by
briefs; March 29th the court announced its opinion, reviewed the
proceedings and affirmed the judgment.
Hicks v. State, 143
Ark. 158. A petition for rehearing was presented April 19th and
overruled April 26th.
A petition for certiorari filed in this Court May 24, 1920, with
the record of proceedings in the state courts, set forth in detail
the very grounds of complaint now before us. It was presented
October 5th, denied October 11th, 1920.
April 29, 1921, the Governor directed execution of the
defendants on June 10th. June 8th, the Chancery Court of Pulaski
County granted them a writ of habeas corpus; on June 20th, the
State Supreme Court held that the Chancery Court lacked
jurisdiction and prohibited further proceedings.
State v.
Martineau, 149 Ark. 237. August 4th, a justice of this Court
denied writ of error. Thereupon, the Governor fixed September 23rd
for execution.
Page 261 U. S. 99
On September 21st, the present habeas corpus proceeding began,
and since then, the matter has been in the courts.
It appears that, during September, 1919, bloody conflicts took
place between whites and blacks in Phillips County, Arkansas --
"The Elaine Riot." Many negroes and some whites were killed. A
committee of seven prominent white men was chosen to direct
operations in putting down the so-called insurrection and conduct
investigation with a view of discovering and punishing the guilty.
This committee published a statement, certainly not intemperate,
about October 7th, wherein they stated the "ignorance and
superstition of a race of children" was played upon for gain by a
black swindler, and told of an organization to attack the whites.
It urged all persons, white or black, in possession of information
which might assist in discovering those responsible for the
insurrection, to confer with it upon the understanding that such
action would be for the public safety, and informant's identity
carefully safeguarded. I find nothing in this statement which
counsels lawlessness or indicates more than an honest effort by
upstanding men to meet the grave situation.
It is true that, in October, 1920, almost a year after the trial
here under consideration, the American Legion post at Helena --
approximately three hundred ex service white men -- made protest to
the Governor against commutation of the sentences. It is copied in
the margin as printed in the record. [
Footnote 2] The Helena Rotary Club, November 10,
Page 261 U. S. 100
1920, expressed emphatic approval of this protest, and the Lions
Club took like action. These resolutions are not violent, and
certainly do not establish the theory that defendants' conviction
in November, 1919 -- a year before was an empty form and utterly
void; nor, as the
Page 261 U. S. 101
petition recklessly alleges, do they
"further and conclusively show the existence of the mob spirit
prevailing among all the white people of Phillips County at the
time petitioners and the other defendants were put through the form
of trials and show that the only reason the mob stayed its hand,
the only reason they were not lynched, was that the leading
citizens of the community made a solemn promise to the mob that
they should be executed in the form of law."
The Supreme Court of the State twice reversed the conviction of
other negroes charged with committing murder during the disorders
of September, 1919. The first opinion came down on the very day
upon which the judgment against petitioners was affirmed, and held
the verdict so defective that no judgment could be entered upon it.
The second directed a reversal because the trial court had refused
to hear evidence on the motion to set aside the regular panel of
the petit jury.
Banks v. State, 143 Ark. 154;
Ware v.
State, 146 Ark. 321. The Supreme Court, as well as the trial
court, considered the claims of petitioners set forth by trusted
counsel in the motion for a new trial. This Court denied a petition
for certiorari wherein the facts and circumstances now relied upon
were set out with great detail. Years have passed since they were
convicted of an atrocious crime. Certainly they have not been
rushed towards the death chair; on the contrary, there has been
long delay, and some impatience over the result is not unnatural.
The recent execution of assassins in England within thirty days of
the crime, affords a striking contrast.
With all those things before him, I am unable to say that the
District Judge, acquainted with local conditions, erred when he
held the petition for the writ of habeas corpus insufficient. His
duty was to consider the whole case and decide whether there
appeared to be substantial reason for further proceedings.
Page 261 U. S. 102
Under the disclosed circumstances, I cannot agree that the
solemn adjudications by courts of a great State, which this Court
has refused to review, can be successfully impeached by the mere
ex parte affidavits made upon information and belief of
ignorant convicts joined by two white men -- confessedly atrocious
criminals. The fact that petitioners are poor an ignorant and black
naturally arouses sympathy; but that does not release us from
enforcing principles which are essential to the orderly operation
of our federal system.
I am authorized to say that MR. JUSTICE SUTHERLAND concurs in
this dissent.
[
Footnote 1]
"The writ of habeas corpus shall in no case extend to a prisoner
in jail, unless where he is in custody under or by color of the
authority of the United States, or is committed for trial before
some court thereof; or is in custody for an act done or omitted in
pursuance of a law of the United States, or of an order, process,
or decree of a court or judge thereof; or is in custody in
violation of the Constitution or of a law or treaty of the United
States; or, being a subject or citizen of a foreign state, and
domiciled therein, is in custody for an act done or omitted under
any alleged right, title, authority, privilege, protection, or
exemption claimed under the commission, or order, or sanction of
any foreign state, or under color thereof, the validity and effect
whereof depend upon the law of nations; or unless it is necessary
to bring the prisoner into court to testify."
[
Footnote 2]
"
RESOLUTION"
"It has been brought to the attention of the Richard L. Kitchens
Post No. 31, American Legion, Helena, Arkansas, that the Governor
is contemplating commuting the sentence of four of the negroes who
are now under death sentences for their participation in the Elaine
Riot, to lesser sentences, and we, the members of this Post feel
that any action toward this end by the Governor would do more harm
in the community and breed lawlessness, as well as disregard for
constituted authority, as at the time of this race riot the members
of this Post were called upon to go to Hoop Spur and Elaine to
protect life and property, and in compliance with this request,
there were two American Legion members killed and one seriously
injured, besides the other nonmembers who also perished, and when
the guilty negroes were apprehended, a solemn promise was given by
the leading citizens of the community that, if these guilty parties
were not lynched, and let the law take its course, that justice
would be done and the majesty of the law upheld."
"The twelve negroes now under sentence of death, but whose
sentences are suspended -- account of court procedure, and six of
these negro cases have -- taken to the Supreme Court of the United
States, which court declined to review. The other six cases, whose
original trials were reversed and new trials given them, were
convicted, and their cases were appealed to the Supreme Court of
the State and attorneys of their own selection were permitted to
handle their cases."
"Now therefore be it resolved by this Post assembled on this the
19th day of October, 1920, that we most earnestly protest against
the commutation of any of the sentences of these twelve negroes
convicted of murder in the Elaine riot of October, 1919, their
having received a fair trial and -- proven guilty, and the leniency
of the court was shown in the balance of the cases tried, these
being the ring leaders and guilty murderers, and that law and order
will be vindicated and a solemn promise kept."
"Be it further resolved that a committee of four be appointed by
the Post Commander. This Committee is hereby empowered to represent
this Post at a conference, or several conferences, with the
Governor of Arkansas and to take such steps as they may deem
necessary to carry out the wishes of this resolution and leaving
nothing undone to have these sentences carried out. This committee
to report in full to the next meeting of this Post."
"Passed unanimously 8:30 P.M. October 19, 1920, basement of the
Episcopal Church, Helena, Arkansas."