Chapter One: The Legal Lynching of John Downer
"Well, personally and frankly I think the boy with her screwed her."
In 1932 this blunt assessment brought a Macon, Georgia, federal courtroom to a stunned silence. Marion Williamson, a captain in the Georgia National Guard and a Decatur attorney, sat in the witness chair. He had spoken the unspeakable truth, and he had spoken it under oath. It would, as it turned out, make no difference. A white woman had accused a black man of rape, and he would die for it. Nothing could save John Downer from the electric chair, not even the best efforts of Elbert Tuttle, a highly regarded Atlanta lawyer who took up Downer's cause.
Like Marion Williamson, Tuttle had become involved in the case a year earlier. On May 19, 1931, John Downer and an acquaintance had been arrested and taken to the Elberton jail, located on the second floor of the sheriff's home. News of the rape accusation circulated, and by 3:00 p.m. a mob several hundred strong had gathered. In Atlanta, Governor Lamartine Hardman issued a proclamation putting Elberton under martial law. Homer C. Parker, the adjutant general of the Georgia National Guard, ordered two Elberton units to duty and sent two Atlanta officers — Captain Williamson and the regimental commander, Col. Gerald P. O'Keefe — to assist. By the time they arrived, members of the mob were hammering away at the lock on Downer's cell. The soldiers managed to clear the jail, but they were not able to secure the sheriff's home downstairs, far less the grounds. General Parker dispatched Tuttle, a captain in the National Guard, to take tear gas grenades to the beleaguered troops.
Tuttle called his closest friend, Leckie Mattox, also a captain in the National Guard and his cousin by marriage. The two men decided that Mattox would wear civilian clothes so that he could blend into the mob. They raced toward Elberton, arriving just after sundown and just in time to hear a burst of machine-gun fire from the jail. The mob had ignored the machine-gun positions set up to secure the second-floor jail and crowded into the yard and the sheriff's home. They had taken up two cries: "They won't shoot" and "They only have blanks." The last line of defense was a machine gun at the top of the stairs manned by Captain Williamson and Colonel O'Keefe. Just as Tuttle drove up, the mob began sallies up the stairs. O'Keefe fired several rounds of his pistol, calling out to the crowd, "These aren't blanks." When that had no effect, he ordered machine-gun fire; at least one man was struck. Almost simultaneously, Tuttle and Mattox lobbed several canisters of tear gas. Suddenly attacked from two sides, the crowd was shaken. Tuttle made his way inside, where he and Maj. Andrew Drake, the local commander, managed to move the mob out of the sheriff's house.
Over the next hour the crowd continued to swell. Tuttle found the fire chief and had a hose brought to disperse the crowd, but the mob quickly gained control of it and directed it at the jail, breaking the windows and drenching the prisoners and their guards. They didn't mind; the water quenched the tear gas that had drifted upstairs. The mob began to threaten to blow up the jail if the two suspects weren't turned over to them. Dynamite used in quarrying was readily available. Emissaries from the crowd warned Colonel O'Keefe of the plan, some saying the only thing preventing it was that soldiers from Elberton were inside the jail. Circulating in the crowd outside, Leckie Mattox was increasingly convinced the threat was real. As he later testified, he began "talking to groups of men ... as if I were one of the Elbert County people; and the gist of my remarks was that we did not want to blow up a bunch of our Elbert County boys in there just to get a couple of negroes."
The threats continued. Finally, a man O'Keefe believed to be the superintendent of a quarry told O'Keefe that the crowd had the dynamite and that they would detonate a warning blast that would give the soldiers five minutes to clear the jail. Two companies from Monroe, Georgia, arrived, assembled in formation, and marched to the jail, but the show of force had little effect; moments later a small explosion shook the jail. Inside, Tuttle and the other officers devised a plan. Two guardsmen gave up their uniforms to the prisoners, who were then placed in the middle of the units of guardsmen. All of the lights not already broken were extinguished, and under cover of darkness the prisoners were taken out of the jail. Each prisoner was put on the floor of a car parked outside, both cars surrounded by groups of soldiers trying to look as if they were simply lounging. Near midnight more troops arrived, and the prisoners were moved from the cars to the troop buses. The National Guard units drove off, leaving behind a mob that had at its peak numbered 2,000, in a town of only 4,600.
Elbert Tuttle left Elberton shaken by what he had seen. A man in whom a sense of fairness was bred in the bone, he was particularly appalled by the recognition that the mob would have murdered both men, despite the fact that, even taking the accusation at face value, only one could be guilty. He was glad to have played his part in preventing such a miscarriage of justice, glad to be able to deliver the accused from the destructive chaos of the mob to the orderly processes of the court. His sense of relief, like John Downer's deliverance, would prove to be short lived. The next morning, Tuesday, May 20, the local superior court judge convened a grand jury, which promptly indicted Downer for rape. Six days later, on Monday, May 26, trial commenced. The judge opened the proceedings that morning by appointing counsel to represent Downer. Because no local attorney wanted the job, the judge appointed three lawyers in an attempt to diffuse the stigma of representing Downer.
Tuttle, a seasoned litigator himself, was back in the courtroom commanding the national guardsmen assigned to keep order. As a technical matter, Downer's attorneys could have moved for a change of venue; they did not. Nor did they seek a continuance so that they could investigate and prepare their case; they asked only for time to interview their client and to subpoena his witnesses, who would testify that he had been home in bed at the time of the alleged attack. Between 10:30 and 11:00 a.m., without ever having left the courthouse, they announced they were ready. Tuttle watched with dismay, but he was not surprised; he understood all too well the pressures on Downer's counsel. "As was the case in most of those racially inflamed cases, the lawyer was almost forced to agree to an immediate trial, because every day the mob would be threatening to lynch the defendant. But of course it is true that he could have moved for a change of venue. ... I don't want to pass judgment on the lawyer, but he would never have another client in that county if he moved for a change of venue and postponed the trial for another 3 or 4 months."
The alleged victim took the stand and told her story. She had been parked in an isolated area with her boyfriend when a black man waving a pistol forced her out of the car and raped her. After reporting the rape, she had been taken home and sedated. That afternoon, when John Downer was brought to her window, she sat up in bed and identified the black man in the grip of two white sheriffs as her assailant. She was able to recognize him, she explained, by his size, color, and thick lips. Many of the guardsmen assigned to the trial suspected she had made up the story of a marauding black man because she was desperate to cover up the bleeding caused by intercourse with her boyfriend. It may have been simply coincidence that Birth of a Nation, D. W. Griffith's movie version of a book about the Klan in which "blacks were depicted as ignorant barbarians, lusting after fair young white maidens," had played in Elberton the Thursday before the alleged attack and had been trumpeted in the local newspaper with four-inch banner headlines.
By late afternoon, the trial was all but over. The attorneys made their closing arguments; the judge charged the jury. Now the matter was in the jury's hands — but not for long. In a scant six minutes, the twelve white men who had been sworn in as jurors that morning delivered their verdict: guilty, with no recommendation of mercy. Guilty, and sentenced to die. Elbert Tuttle was appalled — not surprised, but appalled. He was so appalled that he would take up Downer's cause and enlist other prominent Atlanta attorneys in it. At first he enjoyed a modicum of success. A federal court, agreeing with Tuttle that the trial had been a sham, ordered a new trial. Former Georgia Superior Court judge Henry C. Hammond agreed to represent Downer at the new trial. A motion for change of venue was granted, but the trial was merely moved to adjacent Oglethorpe County. When the second trial began, twelve white men, selected from a panel of forty-eight white men, sat in the jury box. It was four years before the Supreme Court, deciding an appeal by Clarence Norris, one of the Scottsboro boys, would overturn his conviction, ruling that proof that Negroes had been continuously and totally excluded from juries created a prima facie case of unconstitutional discrimination that the state had failed to rebut. It would be decades before the promise of the ruling in that case — Norris v. Alabama — would be realized.
The state relied on two pieces of evidence: the alleged victim's identification of Downer and footprints that allegedly led from the scene to his home. Downer regularly walked past that point on his way home from work at a nearby farm. Assuming the tracks existed, they were not necessarily damning, but Downer had been terrified when confronted with this fact against him. According to Downer, when two sheriffs and two other white men had taken him "down the branch" to make him talk, he had claimed to have loaned the shoes to a friend. He reiterated that story in his unsworn statement at the first trial. At the second trial, he recanted:
I didn't loan Isaac McCauley my shoes. I had them shoes on myself. And the reason I told the officers that, they was working on me so, and the crowd was around me, and I didn't have a chance to get to where none of my white people was. ... I had never seen Isaac McCauley that night at all. I had never seen him but I told the officers that so the crowd wouldn't kill me. ... So far as this crime, I don't know anything about it gentlemen, that is the truth. I always worked around white people; I had all the respect for them I could. I never had the first thing against me that I know of. ... That is all I know about it, gentlemen. I am innocent of that crime.
John Downer's second trial was more fair than his first. His attorney was not afraid to represent him, and there had been time for investigation, time to gather witnesses, time to allow some of the passion surrounding the first trial to subside. All of this was reflected in his attorney's small triumph; this jury stayed out longer than a mere six minutes, albeit less than an hour. The verdict and the sentence did not change. John Downer was again sentenced to die.
Downer's attorneys prepared to appeal. Henry Hammond was joined by Tuttle's brother-in-law and law partner, Bill Sutherland, and by the dean of Atlanta's black attorneys, A. T. Walden, on the brief. They argued that the court's charge to the jury had been unduly prejudicial. Not once but three times the court had pointed out that a recommendation of mercy would mean not only that Downer would not be executed but that he would not receive a life sentence either; the jury had only two choices, death or a sentence of one to twenty years. The statute carried forward a pre–Civil War scheme that embodied the twin evils of racism and sexism. Under two separate statutes, the penalty for rape of a white woman by a black man was death, and the penalty for the rape of a white woman by anyone other than a black man was two to twenty years. By 1931, when Downer was first tried, a single statute provided that the penalty for rape was either one to twenty years or death. The assumption was that a black man who raped a white woman would always be sentenced to death, in part because the only alternative was a term of years after which he would be released. On the other hand, a white man who raped a white woman would be sentenced, in all but the most brutal cases, to only to a term of years. The statute reflected no concern about the rape of a black woman; no one expected that crime to be prosecuted. The trial judge had also instructed the jury extensively on the principle of consent, even though John Downer had not raised any issue of consent. By introducing the idea that this young white woman might have consented to intercourse with a black man, Downer's attorneys argued, the court's charge was both irrelevant and inflammatory John Downer's appeal was not without merit, but it would never be heard. The notice of appeal recited that the trial judge had denied the defendant's motion for a new trial, "and now within the time allowed by law, John Downer presents this his bill of exceptions." It omitted the phrase "to which judgment the plaintiff in error then and there excepted, now excepts and assigns thereon." Downer's attorney, the respected former judge Henry C. Hammond, filed an affidavit with the court explaining that this language had been part of the bill of exceptions prepared by the attorneys and that its omission was a clerical error. Unmoved, the Georgia Supreme Court dismissed the appeal. Governor Eugene Talmadge was likewise unmoved by pleas for clemency, even those that pointed out that he had recently pardoned two young white men who were clearly guilty of rape.
On March 16, 1934, John Downer was executed. The long, futile struggle was over. Elbert Tuttle had been part of it from the very beginning to the bitter end. Experiencing the rage and racism of the mob in Elberton, he had thought there could be little worse. Later he would wonder what was worse — lynching by a lawless mob, or permitting "passion and violence ... to operate through the machinery of the law." What was more fearsome — the seething violence in the streets, or the willingness of a federal judge to attribute to "well-meaning people" the position that execution should proceed because the promise of the trial had prevented the lynching, and if the defendant were to be exonerated, a future mob would not be deterred, would take the law into its own hands? What was more horrific — the sheriff's terrifying extraction of a confession, or the Georgia Supreme Court's chilling dismissal of the appeal because a technical requirement that added nothing to the substance of the notice of appeal had been omitted by a typist?
More than a quarter of a century after John Downer's execution, Elbert Tuttle became the highest-ranking federal judge in the Deep South. On December 5, 1960, Tuttle was sworn in as chief judge of the United States Court of Appeals for the Fifth Circuit, the federal court with jurisdiction over Alabama, Georgia, Florida, Louisiana, Mississippi, and Texas. He had not forgotten John Downer.
From Elbert Parr Tuttle by Anne Emanuel. Copyright 2011 by the University of Georgia Press. Excerpted by permission of the University of Georgia Press.