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A profile in courage: Samuel Leibowitz

Samuel Leibowitz was one of the great New York criminal defense attorneys of the 1920s and 30s. In 1941, he became a judge on the Criminal Court of New York. Throughout his career, Leibowitz successfully tried scores of criminal cases. He was always thoroughly prepared, and excelled in the courtroom.

He once commented: “The trial lawyer who knows his law and is willing to work his head off to prepare his facts, and is able to interpret these facts in a pleasing and forceful manner, is the one who makes the best record.” See, “Courtroom,” Quentin Reynolds, at 65.

The greatest challenge in Leibowitz’s career was his representation of the “Scottsboro Boys,” in which he risked his life to defend nine Black defendants falsely accused of rape. The entire matter — lasting six years from accusation to end — leaves a pathetic mark on our legal system.

On March 25, 1931, nine Black youths ages 13-19 became involved in a tussle with numerous white youths on a freight train in Alabama. Two young white women on the train then falsely accused the Black boys of gang rape. The accusation was denied, but they were arrested and incarcerated in Scottsboro, Alabama, to await trial.

Tried separately by jury, each was found guilty within several days and sentenced to death. As each conviction was announced, bands played and crowds cheered. The Alabama Supreme Court affirmed the rulings in March 1932.

In November 1932, the U.S. Supreme Court ruled, in Powell v. Alabama, that the Scottsboro defendants had been denied the right to competent counsel, a violation of due process under the 14th Amendment. The second set of trials commenced in March 1933.

Called to enter his appearance as lead defense counsel was Samuel Leibowitz, who had read about the first cases and, like many, was incensed at the shameful injustice. See, “The Defender,” Robert Leibowitz, at 187. He had accepted the assignment pro bono, fully expecting a deluge of forthcoming bigotry.

Leibowitz’s first motion was to quash the indictments on the basis that no Black citizens had ever been on the jury rolls, including serving on a grand jury. He showed the court actual jury rolls, which reflected a total absence of Black citizens. The jury commissioner in court stated that he “didn’t know a Negro fit for jury duty.” (“Courtroom,” at 256.)

Throughout the proceedings, Leibowitz faced mobs screaming racial and religious epithets, including calls for his own lynching. He cross-examined effectively, but to no avail. He called as a defense witness Ruby Bates, one of the two women who claimed rape. She testified that she had lied about being raped. (Id. at 264) The Birmingham Press wrote: “In the center of the enclosure in front of the judge’s bench, Samuel Leibowitz, trigger brained and eloquent, fights a shrewd, earnest battle for the Negroes’ lives….” (“The Defender” at 200.)

But the verdict was guilty, and Harry Patterson was sentenced to death. Subsequently, the court granted Leibowitz’s motion for a new trial on the basis of insufficient evidence to support the verdict. A third set of trials commenced in November 1934. Leibowitz requested to inspect the jury rolls and, to his surprise, saw the names of Black citizens. He argued that the names were forged. (“Courtroom,” at 272.)

During the Patterson trial, the judge favored the prosecutor, who exclaimed to the jury, “If you let this here n—– go, it won’t be safe for your mother, wife, or sweetheart to walk the streets of the south.” (Id. at 275) The verdict was guilty, and was affirmed by the Alabama Supreme Court.

Leibowitz then represented Clarence Norris before the U.S. Supreme Court. There, he argued the entire Alabama jury system was fraudulently prepared with forged names of Black citizens. Amazingly, during oral argument, Chief Justice Charles Evans Hughes interrupted Leibowitz, asking if he could prove forgery. “I can, your honor. I have the jury rolls here with me.” (Id. at 283) Again, the justices took time to examine the jury rolls during the argument.

Leibowitz prevailed. In January 1935, the Supreme Court again overturned the guilty verdicts, ruling in Norris v. Alabama that the systematic exclusion of Blacks on Jackson County jury rolls denied fair trials to the defendants.

The remaining trials resumed on July 13, 1937, with three resulting in convictions. Prosecutors dismissed the charges against the remaining four defendants. Of those imprisoned, one later escaped, and the others were eventually paroled.

In the tradition of Alexander Hamilton, who defended John Peter Zenger, John Adams in the Boston massacre case, and others, including Thurgood Marshall, Samuel Leibowitz remains best known for his courage in striving for justice for his clients. His dedication and skill are testaments to the trial lawyer’s role as a palladium of justice.

Paul Mark Sandler, trial lawyer and author, can be reached at pms@shapirosher.com.