Contempt of Court: The Turn-of-the-Century Lynching That Launched 100 Years of Federalism.

Contempt of Court

Mark Curriden Leroy Phillips Jr. Farrar, Straus & Giroux 19 Union Sq., W. New York, NY 10003-3304 394 pp., $30

If legal cases are stories, this one is too weird to work as fiction. It can only be a true story. It can only be U.S. legal history.

The first part of the story--the wrongful 1906 rape conviction of an African American man in the South, followed by his lynching--is unexceptional. Ed Johnson was convicted and sentenced to death in Tennessee for a rape he likely did not commit. That was far from unusual in the turn-of-the-century South.

Johnson's trial was a sham. It was little more than lynch-mob justice garbed in the tattered cloak of legalism, and the threat of actual lynching pervaded the very air of the trial. Again, far from unusual. After all, 1906 was only 41 years removed from the end of the Civil War, a war in which Tennessee fought to preserve the institution of human slavery.

As a Southerner, I can tell you that Southern memories are long: 41 years is merely the blink of an eye. When Ed Johnson was lynched, it had only been a few short decades since some Tennesseans had owned--as property and as a matter of law--other Tennesseans. There is a cord between these two forms of evil--slavery and lynching.

It is after the trial that Johnson's story becomes atypical. He had lawyers, good lawyers. Those lawyers took the case to the U.S. Supreme Court, where they won an unprecedented stay of execution from the first Justice John Harlan (the lone dissenter a few years earlier in Plessy v. Ferguson). Harlan stayed the execution less than 48 hours before Ed Johnson was scheduled to hang. His two-sentence stay telegram did not cite reasons, but Harlan later explained to his fellow justices that he had stayed the execution because the government's case against Johnson, and the trial itself, were so riddled with unfairness and fundamental error that a miscarriage of justice was possible, if not likely.

People in Chattanooga, Tennessee, were unhappy that a Supreme Court justice had derailed the Johnson execution train. The morning after the news of the stay reached Tennessee, an angry mob--without any real opposition from the local police--dragged Johnson from his jail cell, beat him, and hanged him from the Walnut Street Bridge. No member of the lynch mob was arrested or charged.

Now it was the Supreme Court's turn to be unhappy. And, for the first and only time in its history, the Court--the Lochner-era Court, one of the most conservative Supreme Courts in the nation's history--conducted a criminal trial to enforce the rule of law. It brought contempt-of-court charges against the sheriff, his deputies, and members of the lynch mob. Since I don't think a book review ought to spoil a book's ending, I won't tell you how the Johnson story ends. Read the book.

This is a compelling saga, and authors Mark Curriden, a legal affairs writer for the Dallas Morning News, and Leroy Phillips Jr., a Chattanooga trial lawyer, tell it exceptionally well. The book deals with issues of law and lawlessness and federalism, but at its heart, this is a book about people. This is legal history at its most riveting. It is in the tradition of Richard Kluger's Simple Justice: The History of Brown v. Board of Education and Black America's Struggle for Equality and Anthony Lewis's Gideon's Trumpet.

There is no known photograph of Ed Johnson, either before or after his lynching. That is sad. The authors do, however, provide two photos of typical lynchings. Similar searing images of U.S. terrorism can be found in the recent book Without Sanctuary: Lynching Photography in America edited by James Allen, which is an outstanding companion volume to Contempt of Court.

I've read powerful textual accounts of lynchings. But the photographic record of lynchings in Without Sanctuary took my visceral understanding of lynchings in the United States to a new level of horror and shame.

It wasn't just the degraded corpses of the lynched, although those were horrific enough. No, what chilled my blood were the white faces in the crowds, smiling normally into the camera. There is no sense of shame in those faces.

Contempt of Court tells a hell of a story. But it does much more than that. This is a book about memory.

By telling the story of Ed Johnson and his courageous lawyers, these authors have, in some sense, brought them back to life. That's what stories do. That's why it's important to keep telling them.

When Johnson's lawyers were seeking that last-minute--and extremely unlikely--stay from the U.S. Supreme Court, they must have felt moments of despair. Their African American client was innocent. The gallows had already been built. A stay from the Supreme Court would have been unprecedented. Then, and especially after the stay, and the lynching, the lawyers must have wondered about the point of their efforts.

This book is the point of their efforts. Johnson's lawyers--and today's death row lawyers--are litigating for the historians, in addition to litigating for the courts. This is especially important with respect to lynchings, I believe.

It is particularly important to tell--and retell--the stories of American lynchings. Like other forms of terrorism, lynchings are murders with a political message. The political message here is brutally direct: We can always get you. The law cannot protect you, and the federal judges in Washington, D.C., can't protect you. You are utterly without sanctuary.

I talked about the Johnson lynching with an African American student of mine who is writing a law school paper on lynchings. Two of her family members were mute for most of their lives. My student had long thought they were born mute. She recently learned that they were not. They became mute after witnessing a lynching as children.

My student also told me something that a former Morehouse College classmate once told her: "I'll never again live in the South, because I can't look at a tree without wondering whether a person had ever been lynched from that tree's branches."

I'll never look at a tree the same way again.

Michael Mello is a professor at Vermont Law School in South Royalton. His fourth book, The Wrong Man: A True Story of Innocence on Death Row, will be published in March.