WITH JUSTICE FOR SOME. Lise Pearlman
The lawyers could do nothing with Parden’s other lead. Two black residents in the neighborhood of the assault had told Parden that they had seen a white man washing off blackface on the street about 7 p.m. that fateful night. Burnt cork and greasepaint were then commonly used by whites in minstrel shows, and it would have been a smart move for a white rapist on a dark night to wear such makeup to reduce the chances of being caught. But the two potential defense witnesses realized the sheriff would never believe them; they refused to come forward.
The tabloids meanwhile kept the ire of impatient community avengers at fever pitch awaiting the trial’s start. As a precaution, heavily armed guards brought Johnson back from Nashville in secrecy to the Chattanooga jail. When proceedings began on Tuesday morning, February 6, Judge McReynolds filled the courtroom with lawyers and newsmen strongly favoring the prosecutor; he refused admittance to Ed Johnson’s parents and his pastor. McReynolds designated an all-white list of names for the jury panel, though such skewed practice was illegal. Two men who had qualms about the death penalty were dismissed. The defense excused others who admitted that they already believed Johnson guilty. When addressing the jury panel, Shepherd stood next to his slump-shouldered client and told them, “I ask but one thing of you. I ask that you treat this man throughout this trial and during your deliberations as you would a white man. He deserves no less. The law requires no less.”17
During the three-day trial, the whole gallery openly cheered District Attorney Matt Whittaker and razzed the defense team at will without any reprimand from the judge. Johnson remained listless as both Hixson and Taylor identified him. Sheriff Shipp and his deputies testified that Johnson had told three inconsistent versions of his alibi when they were grilling him at the jail. It was almost dark when Johnson took the stand on his own behalf, but he suddenly perked up and explained to the jury his whole day Tuesday, January 23, in animated detail. Johnson reeled off the names of nine witnesses who saw him at the saloon. The judge kept the trial going late that night and reconvened early the next morning for another full day.
Aside from the alibi witnesses, the most compelling defense witness was an elderly black building supervisor of a nearby white church. His name was Harvey McConnell. McConnell accused Hixson of framing Johnson for the reward money. He testified that on Wednesday, January 24 – the day after the rape – Hixson approached him to ask for a physical description of the roofer Hixson had seen recently working at the church and for the roofer’s name.
The defense argued that it was not based on Hixson’s own observations Tuesday night but McConnell’s description of Johnson that Hixson then went to the sheriff to collect his reward. Other defense witnesses testified that it was so dark Tuesday night before six p.m. that a pedestrian could not identify the race of a passerby at five feet, let alone the features of the stranger Hixson had claimed to have seen twirling a leather strap Tuesday night. Hixson took the stand and denied ever speaking to McConnell and reaffirmed his identification of Johnson.
On Thursday, Nevada Taylor retook the stand but was less sure now then she had been before: “I will not swear that he is the man, but I believe he is the Negro who assaulted me.”18 A juror then yelled, “If I could get at him, I’d tear his heart out right now.”19 Shepherd demanded a mistrial, which should have been declared, but Judge McReynolds had no such intention. After three hours of impassioned oral argument on both sides, it was after 5 p.m. when Judge McReynolds instructed the jury and nearly six when he ordered them to begin immediate deliberations.
It was almost midnight when the exhausted jury came back to the courtroom. Much to the judge and sheriff’s shock, the jury announced a deadlock. Even under intense pressure from the prosecutor to “send that black brute to the gallows,” four jurors held out for acquittal. McReynolds ordered them to get some rest and return Friday morning. What happened next would only come out in a later federal investigation. “Long after everyone else had left the courthouse, McReynolds, prosecutor Whittaker, and Sheriff Shipp shared a bottle of whiskey in the judge’s chambers. They all agreed that a ‘not guilty’ verdict could not be tolerated, nor could a mistrial – the city could not afford, financially or socially, a second trial.”20 How they followed up on that conspiratorial session never came to light.
Within an hour of when the jurors arrived Friday morning, they surprisingly announced they had reached agreement. Guards brought Ed Johnson into court handcuffed and in leg irons as a crowd quickly gathered to hear the jury verdict of guilty. Death was mandatory since the jury included no recommendation of leniency. Shepherd announced he would seek a new trial the next day, but his co-counsel Thomas disagreed and asked McReynolds to appoint three more attorneys to help resolve the defense team’s impasse on what to do next.
McReynolds then met again with District Attorney Whittaker – yet another breach of the judge’s required neutrality – and let the prosecutor name two of the three defense consultants. Not surprisingly, the new lawyers joined forces with Thomas to try to pressure Shepherd and Cameron to forego requesting a new trial or appeal even though both men were convinced that the four jurors who changed their minds so quickly had been tampered with. The advisors told the defense team they had now completed all of their ethical responsibilities to Johnson and any further legal action would simply cause a few months’ delay of the inevitable hanging. Thomas feared worse: that any further defense of Johnson’s innocence might just incite the lynch mob to kill all of them and the sheriff would no longer get in the mob’s way.
By the time the attorneys conferred with Ed Johnson in the jail Friday afternoon, they convinced the poor man he had only two choices, both ugly: to forego any further proceedings and die with relative dignity at the hands of the county hangman or to assert his rights and be lynched and mutilated by a rabid mob. With Shepherd now grudgingly silenced, Thomas talked Johnson into waiving his rights and throwing himself on the court’s mercy. McReynolds showed none. He praised the jury as among the finest he had ever observed and announced his personal endorsement of their verdict that the defendant was the guilty party. McReynolds sentenced Johnson to be hanged on March 13 – fulfilling his pretrial promise.
On Saturday, February 10, Skinbone Johnson arrived at Hutchins’ and Parden’s law firm desperate for help. He told Parden that his son did not want to die for a crime he had not committed and had only waived his appeal under duress. Styles Hutchins overheard their conversation and convinced Parden this was an historic occasion that cried out for their help. Money was not an issue; the two were used to poor black clients not being able to repay them with anything but gratitude and a home-cooked meal. Parden already believed Johnson was innocent and the trial a mockery of justice. He came to Shepherd’s home on Sunday and enlisted the remorseful older lawyer’s aid.
Ed Johnson’s chances of regaining his freedom were slim to none in the Tennessee Supreme Court and not much better under federal law. The Bill of Rights guaranteed the right to trial by jury and the right not to be deprived of life, liberty or property without due process of law, but those constitutional rights had been interpreted to apply only in federal courts. After the Civil War, the country enacted the Fourteenth Amendment declaring that “no state” shall “deprive any person of life, liberty, or property, without due process of law.” But the Supreme Court had not yet determined whether that controversial Amendment was intended to enforce the Bill of Rights in state criminal trials.
The next five weeks would involve a race against the hangman’s noose through four courts, including the highest in the land. On Monday morning, Parden and Hutchins surprised Judge McReynolds with a hastily prepared motion for a new trial. The judge told them to come back on Tuesday when the prosecutor would be available. The next morning Judge McReynolds denied the motion for a new trial as untimely, telling Parden that the three-day deadline had actually run on Monday. When Parden then requested a certified record to permit review by the Tennessee Supreme Court, McReynolds sneaked off on a week’s unplanned vacation to stymie that process. Parden persisted anyway.
On March 3, the Tennessee Supreme Court unanimously rejected the plea to delay Ed Johnson’s execution. Four days later, Parden raced to the federal district court in Knoxville to challenge the trial. He cited a United States Supreme Court case on Sixth Amendment guarantees for a fair trial and pointed out the skewed handling of seventeen rape cases in the county over the past six