The following article engages critically with issues of racism and racial terror and includes descriptions of violent and traumatic events. This content has the potential to be difficult and/or acutely affect our readers. Throughout this article, racial slurs used in historical primary sources were redacted or replaced. The Law Review and the author acknowledge that the usage of racial slurs by a non-Black author, regardless of the academic nature of the work, is inappropriate.
Introduction
Lawyers concerned with justice must confront the social environment in which their legal decisions are made. This was never clearer than in the case of those tasked with defending Black men accused of capital crimes in the lynching-era South. There, formal law stood in tension with what some have termed underlaw: the belief that the benefits of law and the social contract belong only to some, namely white “persons,” and that those benefits depend on the subordination of others, particularly Black “subpersons.” Under this concept, Black racial subjugation stands not in opposition to America’s law, social contract, or ideals but as their necessary foundation. As formal law began to step away from explicit racial subordination by the early twentieth century, the requirements of law and the demands of underlaw diverged. Fearful that law would no longer ensure Black racial subjugation, whites often resorted to public acts of torture and murder as a means of reinforcing the “subpersonhood” and subjugation of Black persons. Even where formal legal proceedings took place, underlaw often infected the process.
When Black men stood accused of crimes against whites, attorneys and other legal actors stepped into the tension between law and underlaw. This article explores that tension and the responses of legal actors through the story of John Henry Sloan, a Black man accused of murdering a white youth in Colquitt County, Georgia, in 1935. Part I defines underlaw and its historical relationship to lynching. Part II recounts the story of John Henry Sloan and explores the effects of underlaw on his community, the legal proceedings leading to his eventual execution, and the legal actors involved. Part III discusses the difficulty of fully assessing the effects of underlaw when extrajudicial violence gives way to proceedings having the appearance of legitimacy under law. Part IV examines the backlash against the Black Lives Matter movement as a contemporary manifestation of underlaw.
From the United States’ earliest days and throughout its history, the distinction between “persons” and “subpersons” has been racial.5 Initially, the law explicitly distinguished between white persons and Black “subpersons,” and freedoms, rights, and protections were bestowed or withheld on the basis of race.6 Law and underlaw were in harmony, and there was little need to go outside the formal system of law to reinforce the white supremacy upon which the social contract was seen to depend. The end of slavery moved formal law toward a color-blind social contract and an understanding that freedom could be had without exploitation. However, this did not eliminate white communities’ belief that the benefits they enjoyed depended on racial subjugation, or their strongly-felt need for a racially-defined subordinate class.7 Although Jim Crow laws would enshrine Black “subpersonhood” in civil law for decades to come,8 criminal law in Georgia had dropped explicit racial distinctions by the 1930s. Even this limited legal color-blindness unsettled those who had always enjoyed the benefits of the racialized social contract. Many held fast to the conviction that their security and well-being—even their very identities9—depended on the subjugation and exploitation of nonwhite “subpersons.”10 As the law moved away from this notion, those unwilling to divorce the social contract from racial subordination became uneasy about the law’s ability to secure their rights, and they increasingly utilized other methods of reinforcing white supremacy.11
Lynchings, particularly gruesome public spectacle lynchings, served the underlaw of white supremacy by stripping their victims of their literal and figurative humanity.12 By employing burning and other forms of torture, lynchers sought to deny their victims any semblance of personhood, to emphasize their “subhuman” status, and to drive the message of subjugation home “in the most graphic way possible.”13 Lynching marked Black bodies as belonging to a uniquely subordinate class, outside the protection of formal law, subject to savage and dehumanizing treatment at the hands of the dominating white class.14 The fact that perpetrators and white communities considered this treatment to be consistent with—or even required by—the law is evident in the tendency of lynch mobs to imbue the grisly proceedings with the trappings of fairness and due process.15 Contemporary accounts often emphasized the calm, orderly, and dispassionate manner in which the mob carried out its task.16
By 1935, Georgia’s criminal law required color-blind equality and a state monopoly on lethal violence. Under this law, a person could not be put to death without due process—a dispassionate formal proceeding subject to laws written in the light of day by men who had ostensibly given form to humanity’s best impulses.17 A Black criminal defendant sentenced to death under this system would die, but he would die by electrocution in a state penitentiary, away from the public eye. Early-twentieth-century white communities where underlaw held sway struggled with the question of whether these formal legal proceedings were sufficient to meet the underlaw’s demand for Black subjugation. Communities often acquiesced to law only when reasonably assured that that law would guarantee the death of Black defendants.18 Yet underlaw often demanded more than death. Even where the law guaranteed a Black defendant’s death, a community’s commitment to the law could be swept away in the face of underlaw’s demand for a more violent, public exhibition.
In 1935, John Henry Sloan was accused of killing a white youth in Colquitt County, Georgia. The white community’s response demonstrates the power of underlaw, the interaction between law and underlaw, and the effect of underlaw on the legal proceedings that followed.
A. Prologue: The Lynching of John Henry Williams
With the county embroiled in violence, Colquitt County Superior Court Judge W.E. Thomas convened an extraordinary session of the grand jury to investigate the charge against Williams, promising a trial immediately after the almost-certain indictment.26 The mob, in turn, assured that it would not interfere when Williams was returned for trial to the courthouse in Moultrie, the seat of Colquitt County.27 The grand jury indicted Williams, and he was tried the next day.28 Judge Thomas appointed local attorney William Alonzo Covington to defend the accused.29 After deliberating for less than five minutes, the jury declared John Henry Williams guilty of assault and murder, and Judge Thomas sentenced him to be hanged three weeks later.30
Meanwhile, a crowd of about 500 gathered outside the courthouse, and about 20 officials stood ready at the courthouse doors to keep order.31 Despite this law enforcement presence, when Sheriff Beard escorted Williams from the courthouse, the mob surged forward, “overpower[ing]” him and the other officers.32 They seized Williams and placed him into a car, and within five minutes, 100 cars or more were streaming from the Moultrie courthouse toward the Autreyville swamp where the young girl’s body had been found.33 There, before a semi-circle of 500 people, Williams allegedly confessed to the murder and assault in an “unconcerned, unemotional manner.”34 The mob then chained Williams to a tree trunk and surrounded him with gasoline-soaked wood.35 Newspapers reported that Williams calmly smoked a cigarette as the fire was lit but cried aloud as the flames rose.36 Spectators claimed he sang the hymn “Nearer My God to Thee” as he died.37
According to reports, the crowd stood about quietly as Williams’s body burned and dispersed without further excitement when he was dead.38 The lynching was “orderly,” one newspaper account reported, with “no noise nor excitement.”39 There was “[n]ot a drop or a smell of whiskey,” or a “single gun . . . in evidence.”40 Hundreds returned to the scene to view Williams’s remains over the next several days.41 No attempt was made to apprehend or punish the persons responsible.42
Colquitt County’s response to John Henry Williams revealed the tension between law and underlaw and the community’s uneasiness with the law’s outcomes. Initially, the community demonstrated some commitment to the law. When suspicion landed on Williams for the assault and murder of a white girl, the mob acquiesced to a trial. However, this commitment was fragile and ultimately did not withstand the community’s fear that the law would fail to uphold the system of racial subordination. Although the law guaranteed Williams’s death, the underlaw of racial subordination demanded not only his death but the annihilation of his personhood. For that, Colquitt County’s white residents concluded, a lynching was required. Yet even in the most brutal moments of Williams’s lynching, the Colquitt County mob, like many such mobs, paid a distorted homage to the law. Williams’s lynchers allegedly extracted a confession from him before burning him, and newspaper accounts emphasized the calm, orderly, dispassionate manner in which the mob carried out its task, a gruesome approximation of the atmosphere of a courthouse.
Fifteen years later, a young intellectually disabled Black man was accused of murdering a white youth, and Colquitt County once again stepped into the tension between law and underlaw, with the life of a Black man hanging in the balance.
i. October 15, 1935: The Killing of Ottis43 Gay
That same night, three young white couples went out driving along the same road that Sloan had traveled earlier.48 They were Ottis Howell Gay, his fiancée Mary Smith, Mary’s two cousins Ouida and Janie Smith, and the girls’ dates, Ottis’s brother, Wallace, and Rossie Lysle.49 After grabbing some Coca-Colas and cruising around in the car for some time, the couples parked the car on the side of Thigpen Trail and separated.50 Ottis Gay and Mary Smith walked up the road, away from the others, and sat on an embankment to discuss their upcoming wedding.51 According to Smith, a Black man approached them while they were talking, pointed a shotgun at them, and pulled the trigger.52 The others, hearing the shot, ran toward the sound.53 As they did so, they saw a Black man with something in his hand running past them in the opposite direction.54 Wallace Gay asked the man to stop, but the man said nothing and kept running.55 The others ran on and discovered Ottis and Mary “shot all up.”56 They rushed them to a nearby house and from there headed to the hospital. Ottis Gay died in Janie Smith’s arms as they carried him to town.57 None of the white youths identified the shooter.58
A farmer who lived nearby heard the gunshot and the women’s screams, and he rushed to the scene.59 He found no one there but saw car tracks and “blood-signs” leading from the location of the shooting to the car.60 He also found a shotgun shell by the side of the road, which he gave to a Colquitt County deputy sheriff.61 Soon after, Colquitt County Sheriff Tom Beard arrived on the scene. He observed the blood on the ground and then went to the nearby home of Monroe Jackson.62 As Sheriff Beard knew, there was a young Black man working for and living with Jackson—John Henry Sloan.63 Sheriff Beard learned that Sloan had borrowed a shotgun from a neighbor that morning and had returned the gun and a single shell shortly after eleven o’clock that night.64 He organized a manhunt for Sloan.65
Sheriff Beard was notified of Brinson’s death, and he made arrangements for a coroner’s inquest that afternoon.71 However, the witnesses to the killing were unwilling or unable to identify Brinson’s killers, and the coroner’s jury returned a verdict that he had “come to his death ‘through parties unknown to this body.’”72 With this, the community ended its efforts to bring to justice those responsible for Brinson’s death.
With the mob held at bay for the time being, Judge W.E. Thomas of the Colquitt County Superior Court convened a grand jury, which quickly indicted Sloan.78 Judge Thomas set Sloan’s trial to take place in Moultrie on November 14, 1935, less than three weeks later.79 He appointed William Alonzo Covington to represent the defendant, as he had fifteen years earlier with John Henry Williams.80 Covington, Judge Thomas, and the other legal actors charged with the task of upholding the law and ensuring justice would once again have to navigate the relationship between law and underlaw in Colquitt County.
Covington chose to accept the task of defending Sloan and to take it on alone, a choice that may have been a function of his circumstances, his beliefs, or both. For one, Covington may not have anticipated much harm to his career or reputation. By 1935, Covington was sixty-six years old and had enjoyed decades of professional, political, and social success in Colquitt County and across South Georgia.86 Within four years of arriving in Moultrie as a newly-minted attorney, he had been appointed the first judge of the Moultrie City Court, a role in which he was described as “uncommonly able.”87 He resigned his judgeship in 1904 to campaign for a seat in the state legislature, where he eventually served four terms.88 He was elected to two non-consecutive terms as mayor of Moultrie in 1919 and 1921, and although unsuccessful, he ran for seats in both the United States Senate and House and was at least once put forth as a potential candidate for governor.89
As a lawyer and a legislator, Covington believed in the law’s ability to bring about justice. He spent years in the Georgia legislature fighting for laws to address what he saw as the greatest concerns of the time—intoxicating liquors, convict leasing, child labor, and women’s suffrage.90 He advocated for changes to the law to address lynching.91 He spent decades defending clients in courts of law.92 At the same time, he recognized that law could be an imperfect tool and even a means of perpetuating injustice.93 As for Covington’s view of the Colquitt County community, he saw them as “the most law-abiding in the world” (as long as they remained sober) and believed lynching was the act of a small, contemptible minority of the population.94
Covington evidently believed the white residents of Colquitt County would permit the law to take its course. Perhaps this reflected Covington’s deep confidence in the community he loved, bolstered by a white attorney’s blindness to how deep and strong the currents of the underlaw ran.98 It is also possible Covington saw a prompt local trial as the only way to forestall the continued violence endangering his client.99 For a white Southern community, the promise of a speedy trial for a Black defendant often formed a negotiation of sorts between the law and the underlaw: the mob would agree to abandon lynching efforts if the law guaranteed the defendant’s execution.100 But the truce was tenuous; any indication that the accused’s death was uncertain or would be delayed could result in reignited violence. Perhaps Covington sensed that Colquitt County’s commitment to the law was fragile in this way—that it would hold only insofar as the law promised to deliver Sloan’s death. He may have realized Sloan was almost certainly doomed and, by ensuring a swift trial, sought only to increase his client’s chances of a comparatively sterile death in the electric chair over a grislier end.
Covington and Judge Thomas had to weigh these concerns—along with their memory of what had happened to John Henry Williams—and decide whether they trusted Colquitt County to follow through with a fair trial and to accept the outcome. Ultimately, the “serious and alarming” threat of disorder led the men to appeal to the governor for National Guard protection at Sloan’s trial.106 Governor Talmadge granted the request and sent two companies of the Georgia National Guard under the command of Adjutant General Lindley Camp to avert possible mob violence against Sloan.107
The prosecution also called the other four white youths who had been with Ottis Gay and Mary Smith on the night of October 15. They all corroborated the story that they had taken a car ride that night and that Ottis Gay and Mary Smith were sitting alone, out of sight of the others, when they were shot.118 They testified that they had heard a shot and “saw a Ne[∗∗∗] run past them,” but none saw the shooting or were able to identify the man who ran past.119 Sloan’s neighbor testified that Sloan had borrowed a shotgun and two shells from him that morning and returned the gun and a single shell shortly after eleven o’clock that night.120 Sloan’s employer Monroe Jackson testified that Sloan had borrowed shells from him as well and had returned late that night for his clothes.121
As a criminal defendant, Sloan was prohibited by law from testifying under oath.122 In an unsworn statement given on the stand, he stuttered, “I didn’t aim to hit nobody with the shot[.]”123 He stated that some white men in an automobile had chased him on the same road earlier on the day of the murder, so when he encountered two persons sitting by the road later that evening and heard one of them say, “There goes a Ne[∗∗∗],” he feared for his life.124 He said he shot because he was “afraid they were going to do something to [him.]”125 After firing the shot, he said he returned the gun to his neighbor, got his clothes, and went to a party with a companion.126 He then went to Cairo, Georgia, to visit his sick mother, and from there to Havana, Florida, where he was apprehended.127
Whatever Covington’s motivation, even absent the exacerbating factor of racial animus, a mental incapacity defense was unlikely to succeed. Under the Georgia Code of 1933, so-called “idiots” (as well as “lunatics” and “persons insane”) were deemed to be of unsound mind, and consequently, these persons could not be found guilty of any crime or misdemeanor.130 All others, including so-called “morons,” were presumed to be of sound mind.131 Rebutting the presumption required a defendant to show by a preponderance of the evidence that he lacked the ability to distinguish right from wrong.132 By introducing testimony that Sloan had the mind of a child, it appears Covington may have been attempting to prove this.133
However, whether Covington sought to prove that Sloan was categorically of unsound mind by virtue of being a “moron,” or that as an individual, he lacked the capacity to distinguish between right and wrong, he stood little chance of succeeding. Just a few years earlier, a Georgia jury had convicted and sentenced to death an eighteen-year-old white man, despite testimony from a University of Georgia psychology professor that he had a “mental age” of no more than nine or ten.134 In another case where “[t]he evidence amply authorized a finding that [the defendant] was an idiot (and a dangerous one at that),” a jury nonetheless found he had sufficient ability to distinguish right from wrong and convicted him.135 Two years after Sloan’s trial, a Georgia jury convicted a white man of burglary despite a physician’s testimony that, although the defendant could distinguish right from wrong, he lacked the mental stability to keep from doing the wrong thing.136 In fact, juries nationwide consistently rejected defendants’ efforts to show a lack of criminal responsibility with evidence of low IQ or young “mental age.”137
The prosecution’s witnesses also may have weighed in on Sloan’s intellectual capacity. Sloan’s employer testified later that Sloan “had as much sense as the average Ne[∗∗∗] farmer” and could differentiate right and wrong.144 Sheriff Beard, who had spoken to Sloan on several occasions after his arrest, concluded that Sloan was “short mentally” and “not . . . a normal Ne[∗∗∗],” but had enough sense to tell right from wrong in a circumstance of surprise and fright.145
As these witnesses’ testimony shows, to win an acquittal for Sloan on the basis of his diminished intellectual capacity, Covington would have had to overcome not only a law that failed to give special solicitude to the intellectually disabled but a widespread assumption that “low mentality” was simply normal for Black people. The comments of the trial witnesses reveal that, when assessing Sloan’s abilities, they compared him not to themselves, to their social peers, or to a universal standard of intelligence, but to a lower “Ne[∗∗∗]” standard. Sloan may have possessed limited mental abilities, they reasoned, but he was at most a small step below any other Black man in the community, and other Black men certainly understood enough not to shoot a white man. Not only this, but to conclude that a man “a little below the average mentality of a Ne[∗∗∗]” lacked the capacity to be held criminally responsible would come perilously close to saying that Colquitt County’s thousands of other Black residents, over a quarter of the population, were similarly incapacitated.146 In a world where Blackness and criminality were inexorably linked in the minds of whites, this conclusion was inconceivable.147
In focusing on Sloan’s mental capacity, Covington may have sought to convince the jury that Sloan was not of sound mind and could not be held criminally liable. It is more likely that he understood his community, and his hopes reached no further than a recommendation of mercy. A murder conviction carried a death sentence, but a jury could recommend mercy, in which case the defendant would be sentenced to life imprisonment.148 The recommendation was at the discretion of the jury, and any evidence introduced during the guilt or innocence phase of the trial could potentially influence sentencing. By introducing evidence of Sloan’s limited mental capabilities, Covington’s strategy may have been to convince the jury to conclude that it was unjust to execute a man with the mind of a child. Here, however, Covington fought a losing battle. The men deciding Sloan’s sentence were also the men that heard Mary Smith’s tearful account of her young fiancé’s death, a testimony unlikely to incline their hearts toward mercy. Furthermore, the demands of the underlaw—the need to make an example of Sloan and drive home the message of white supremacy—might have easily overwhelmed any mercy the jury felt toward him as an individual, especially with a lynch mob gathering in the courthouse square.
Inside the courthouse, Sloan’s case went to the all-white jury at about one o’clock in the afternoon, and the jury deliberated for nearly two hours.154 Perhaps Covington felt hopeful about what was an unusually long deliberation for a Black defendant in a capital case—after all, Williams’s jury had been out for only five minutes.155 However, any such hopes were ill-placed; the jury returned a verdict of guilty without a recommendation of mercy.156 Judge Thomas sentenced Sloan to die by electric chair three weeks later, on December 10.157 Sloan allegedly “exhibited no emotion . . . when the verdict was read and sentence pronounced.”158
Sloan was taken from the courthouse in manacles, and the crowd surged toward the lines of guardsmen shouting, “Get him!”159 As the guardsmen struggled to bring Sloan to a waiting convoy of vehicles, a melee broke out.160 Guardsmen used fists, rifle butts, and tear gas to subdue the mob as they attacked with sticks and stones.161 Several persons were beaten by gun butts and another cut by a bayonet.162 Sloan was eventually brought through the fray unharmed and rushed by motor convoy to the Bibb County jail in Macon.163
Judge Thomas’s actions demonstrated that he was willing to bend the legal apparatus to the breaking point, maintaining a veneer of legal legitimacy while in reality sacrificing Sloan’s rights (and his life) to the demands of the lynch mob. As his words to Covington the week after the trial show, Judge Thomas believed that delivering Sloan’s death was the only way to avoid violence and maintain the community’s confidence in the law and the courts; a tacit recognition that the only way law was permitted to operate at all in Colquitt County was in subjugation to the underlaw.
Strozier, for his part, believed attorneys still had a role to play. In assessing the case, Strozier demonstrated his understanding of the relationship of law and underlaw: “I think it is a crime against civilization to execute this man under these circumstances,” Strozier wrote. “It isn’t a thing in the world but a lynching under form of law to try a weak-minded Ne[∗∗∗] under the protection of the military in order that a court may kill him instead of a mob.”178 Believing that Southern judges must be made to understand that convicting a man under such circumstances was unacceptable, Strozier was unwilling to let Sloan’s conviction go unchallenged.179 He encouraged Covington to continue with the case with his and Parks’s help.180
After an all-night session weighing their options, the three attorneys decided to file a writ of habeas corpus in the United States District Court for the Middle District of Georgia.181 By doing so, Strozier said, he hoped to send a message that “the courts of the United States would not countenance a trial where the army is necessary to keep a mob from lynching the defendant.”182 “[T]he time is coming when that sort of thing is going to stop,” Strozier declared.183 He had little hope that that day would come in time for Sloan, however. “[T]he sickening thing about the whole matter,” he said, “is that after everything is done, the Ne[∗∗∗] will finally be executed.”184
i. John Downer
On May 26, 1931, a Georgia jury sentenced John Downer, a Black man, to death for raping a white woman.185 In the days before the trial, a mob of 1,500 had stormed the jail where Downer was kept, undeterred by National Guard troops guarding the building with a machine gun. They fired shots into the building, smashed windows, threw dynamite, and threatened to blow up the structure.186 Downer escaped and survived to stand trial only with the assistance of the National Guard, who disguised him in one of their uniforms.187 During Downer’s trial, a large unruly crowd gathered outside the courthouse, and two hundred National Guardsmen were required to keep order.188 Downer’s habeas petition averred that an atmosphere of mob violence had continued from the time the crime was committed until after the trial and that it would have been impossible to hold the trial without the National Guardsmen present.189 It also alleged that the fear of mob violence prevented Downer’s counsel from moving for a continuance, for a change of venue, or for a new trial.190
Judge Deaver initially denied Downer’s petition for a writ of habeas corpus.191 On appeal, the Fifth Circuit reversed, holding that the petition sufficiently alleged that the threat of violence surrounding the trial had reduced the proceedings to a sham.192 Relying on the United States Supreme Court’s decisions in Frank v. Mangum and Moore v. Dempsey, the Fifth Circuit held that if the trial truly had been held under the conditions alleged, the proceedings had been reduced to “the form of a court under the domination of a mob,” depriving Downer of his constitutional right to due process.193 The Fifth Circuit remanded the case for a hearing to determine whether the allegations in the petition were true, holding that the writ should issue if they were.194
Judge Deaver heard Downer’s petition again on remand. After hearing witnesses’ testimony, he found that there could be “scarcely . . . any doubt that the petitioner was denied due process of law in violation of the Fourteenth Amendment of the Constitution.”195 Judge Deaver’s opinion acknowledged that no serious violence had taken place on the day of trial but gave credence to witnesses who testified that a lynching would have occurred had it not been for the National Guard.196 In accordance with the Fifth Circuit’s instruction, Judge Deaver granted the writ.
Notwithstanding this faith in the citizens of Georgia, Judge Deaver dedicated a substantial portion of his opinion to extolling the virtues of law.200 In doing so, he pushed against the idea that the protection of life, liberty, and property required racial subjugation and warned that depriving certain persons of rights would instead erode the rights of all. He concluded by saying:
The Constitution says that no person shall be deprived of life, liberty, or property without due process of law. It contains no provisos, limitations, or exceptions. It does not say that no person shall be deprived of life, liberty or property without due process of law, except when a mob will not permit the courts to afford due process, or unless courts, by dispensing with due process, can prevent a lynching, or provided due process can be had without any harmful attendant circumstances. . . . There is more involved in this case than the life of one lowly citizen. The people of this country have declared that no person shall be deprived of life, liberty, or property without due process of law, and the loyal, law abiding citizens expect that provision to stand as a protection to each one of them. If it may be ignored in one case, it may be ignored in any other case; and, when it becomes ineffective through disregard or evasion, one of the most important rights of the people is destroyed.201
Judge Deaver’s decision in Downer’s case and his understanding of the forces at play in situations like Sloan’s likely gave Sloan’s attorneys confidence that filing the writ in Deaver’s court would lead to a favorable outcome for their client.
i. Habeas Hearing
Judge Deaver presided over a two-day hearing that revealed the underlaw’s possible influence over the jury in Sloan’s trial.207 One citizen testified that he saw jurors looking out the windows of the jury room at the “dense throng” on the square.208 J.L. Baxter, a Moultrie lumberman who had been the last of five jurors to hold out for a life sentence, testified to his belief that it was “more expedient for one Ne[∗∗∗] to die than for 20 or 25 white people to be killed by the troops.”209 Baxter also believed that the guardsmen at Sloan’s trial had prevented a lynching and that Judge Thomas had been scared.210 His testimony suggests that at least one juror understood that the mob’s demand for Sloan’s life would not yield to a law that allowed a Black man to live at the risk of white lives. It also suggests that the jury ultimately capitulated to underlaw, regardless of what it believed about the law.
Others disavowed any improper influence over the trial proceedings. Several jurors testified that there had been no great atmosphere of tension at the trial.211 Although they had seen the crowd outside the courthouse, they heard nothing and claimed they had arrived at their verdict without fear or outside influence.212 Adjutant General Lindley Camp and other guardsmen testified that the atmosphere had been “serious but not necessarily dangerous,” and Sheriff Beard doubted that calling in the National Guard had been necessary at all.213 He guessed that he and a squad of special deputies might have been able to keep order.214 He said there was no great amount of disorder, and what there was had been caused by a handful of men who had been drinking.215 On cross-examination, Sheriff Beard was asked about John Henry Williams’s lynching fifteen years earlier.216 He stated his belief that Sloan’s case was different; unlike what occurred with Williams, there had been no organized plan to lynch Sloan, he claimed.217 He asserted Sloan was taken to Albany after his arrest “merely as a precautionary measure.”218
On the stand at the hearing, Covington spoke vigorously in Sloan’s defense for more than two hours.219 He argued that Sloan had not had a fair trial or opportunity to seek review of the case and concluded with a “diatribe against Georgia justice.”220 Surviving excerpts of this speech provide a glimpse into his perception of the case. He proclaimed:
In all the years of this state’s existence there never has been a rich man to have his neck broken on the gallows or burn in the electric chair. I am opposed to capital punishment because it is undemocratic. In practice it applies only to the poor whites and ne[⋆⋆⋆es]. Any man in Georgia worth as much as $30.00 can escape the electric chair.221
Newspaper accounts report that during these proceedings, Sloan “dozed peacefully in [the] corner of the courtroom,” surrounded by sheriff’s deputies.222
On March 24, 1936, without previous publicity, Sloan was re-tried before Judge B.C. Gardner of the Dougherty Superior Court in Albany.234 Covington once again represented Sloan.235 The sole Black man in the jury venire asked to be excused, a request that was “readily granted.”236 The testimony appears to have been largely the same as in the first trial, although there are indications that Mary Smith’s account took on new details. Earlier, some accounts reported that she had claimed that no words were exchanged between herself, Ottis Gay, and the shooter.237 Now, she testified that the gunman had used profanity and announced, “I will kill you both.”238 After he shot, she said, the shooter told them, “if he had not killed us, he would kill us.”239
Sheriff Beard testified to some of the events surrounding Sloan’s arrest and his alleged confession—information missing in accounts of the first trial.240 He testified that once officials had located Sloan in Havana and brought him back to Georgia, he “had a talk with him as to his connection with the shooting.”241 According to Sheriff Beard, Sloan first said that another man had borrowed the gun from him and said he was going to shoot somebody.242 Sloan told Beard he tried to get the other man not to do it.243 Beard testified that he told Sloan that the story “did not connect up well” and asked if it was really the truth.244 He reckoned that this prodding “laid the foundation” for Sloan to tell the truth.245 Beard further testified that Sloan then told him that he was going along the road and “all at once he saw somebody sitting side the road.” Sloan said that he heard this person say, “[t]here goes a Ne[∗∗∗]; let’s do something to him.”246 According to Beard, Sloan claimed he then “throwed up and shot,” reloaded the gun and ran on down the road.247 Sheriff Beard testified that Sloan’s statement was made “freely and voluntarily,” with no threat or “offer of reward.”248 On cross-examination, he could not recall whether he had mentioned Sloan’s initial statement about another man shooting Gay at the first trial.249 He also testified that Sloan was “short mentally” but that he had the sense to tell “right from wrong.”250
The defense again argued that Sloan had “the mentality of a 12-year-old.”251 For this argument, they relied again on testimony by doctors who had examined Sloan in the weeks prior to his first trial.252 Sloan gave largely the same account of the events that he gave at the first trial.253 After deliberating a mere twenty-eight minutes, the Dougherty County jury convicted Sloan of first-degree murder and sentenced him to die less than six weeks later, on May 1, 1936.254
Sloan’s attorneys continued to seek justice for Sloan, relying on increasingly technical legal arguments. They moved for a retrial on the basis of statements Solicitor General Lilly made during closing arguments.257 Lilly allegedly told the jury that if they recommended mercy, Sloan would “spend the remainder of his life in the penitentiary unless he is pardoned.”258 This remark, the motion argued, was highly prejudicial and “held out to the jury that the thing to do was to kill this man before some governor turns him out.”259 The motion contended that this comment was sufficient to destroy Sloan’s chances of a recommendation of mercy from the jury.260 Whether intentionally or not, the prosecutor’s statement seemed designed to appeal to underlaw; a reminder that death was the only acceptable outcome for Sloan and that any possible obstacle to that outcome must be avoided. The court denied the motion, and Sloan was again sentenced to be executed.261 Sloan appealed, and the Georgia Supreme Court upheld the trial court’s denial of the motion.262
The Georgia Prison Commission and Governor Talmadge rejected Sloan’s petitions for clemency, and by mid-December, his attorneys had run out of options.270 The day before Sloan’s scheduled execution, the prison announced that the execution might have to be delayed due to the electrician’s illness.271 The Prison Commission consequently put out a request for a qualified electrician.272 “For preparing the condemned for the chair, fixing the electrodes on his body and seeing that everything is in readiness for the three switches . . . to be pulled,” the request said, “the electrician receives $75.”273 People from all over the country wrote to volunteer for the job.274
On December 31, 1936, Sloan arrived in the execution chamber at the Milledgeville State Prison.275 He was weak and tired; “prison officials claimed he had been ‘starving himself for weeks.’”276 In a death chamber statement, Sloan allegedly admitted to killing Ottis Gay but again claimed he acted in self-defense.277 After receiving two electric shocks, John Henry Sloan died.278 He is buried in the Georgia State Penitentiary Cemetery.279
This question cannot be answered with certainty. There are no reports of violence or threats thereof in Dougherty County during the weeks or months preceding Sloan’s trial there. No mob gathered outside the courthouse, and the National Guard was not present. On the other hand, although Sloan’s trial was held in Dougherty County at least in part because Black persons were on the jury roll in that county, the judge and attorneys readily agreed to excuse the single Black venireman, leaving Sloan once again to face an all-white jury. One can only speculate about the Black venireman’s reasons for stepping away and whether the trial’s outcome would have differed if he had been seated on the jury. As in the first trial, the prosecution’s case rested on Sloan’s confession, witnesses’ testimony that the shooter was a Black man, and testimony that Sloan had borrowed a shotgun earlier in the day. If Covington’s suspicions that “the lynching element” deterred Colquitt County residents from testifying for Sloan in the first trial, this remained true in the second: no new witnesses stepped forward for Sloan. Perhaps an impartial jury would have sentenced an intellectually disabled white man to death on this evidence, perhaps not. It took the Dougherty County jury less than thirty minutes to determine it was sufficient to condemn John Henry Sloan, despite the serious questions raised about his mental capacity. A judge today likely would have granted a new trial on the basis of Solicitor General Lilly’s prejudicial remarks to the jury, but would Sloan’s trial have ended differently absent those remarks? Perhaps the greatest unknowable question is the extent to which the underlaw’s demands permeated the minds of the legal actors in Sloan’s Dougherty County trial and subsequent proceedings; demands not overtly displayed in an angry mob or shouts of “lynch him!,” yet still bending the machinery of the law inexorably toward John Henry Sloan’s death.
A. Evidence of Underlaw in the Modern Criminal Justice System
Racial disparities persist in the criminal justice system, despite the system’s formal color-blindness.284 Black Americans are more likely than white Americans to be arrested and convicted and more likely to experience lengthy prison sentences and harsh incarceration.285 Black Americans make up 13.4% of the population but 22% of fatal police shootings and 35% of executions.286 When death sentences are examined, 47% of persons found to have been wrongfully convicted are Black. The disparate application of the death penalty is particularly clear when the race of victims is accounted for: between 1977 and 2019, 295 Black defendants were executed for murders involving a white victim.287 Only 21 white defendants were executed for murders involving a Black victim.288
i. Black Lives Matter
BLM’s protests and demonstrations against systemic police violence against Black persons have sparked a “Blue Lives Matter” counter-movement.294 On one level, Blue Lives Matter “supports police officers and the dangers that they experience every day in the conduct of their work.”295 On another level, it represents “a more antagonistic response to police critics” and “a pushback against the imagined breach of white racial order.”296
The meaning behind the “Thin Blue Line,” the symbol most commonly associated with the Blue Lives Matter counter-movement, particularly demonstrates currents of underlaw running through the counter-movement.297 The “Thin Blue Line” represents the idea that police are the dividing line between order and chaos, between law and savagery: the primary force that secures liberty, security, and law.298 The “Thin Blue Line” characterizes those who conflict with police as “not merely transgressors of positive law,” but as inhuman beasts and enemies of humanity.299 It casts police as both the arbiters of who is human and who is not and as the protectors of the human from the inhuman.300 Often, this line between human and inhuman is seen as fundamentally racial, and the dehumanization of the populations with whom police engage helps justify “exterminating violence against racialized subjects” in the name of preserving humanity.301
The prominence of the “Thin Blue Line” imagery within the Blue Lives Matter counter-movement betrays an ideology rooted in underlaw: the belief that law, order, and the very survival of society require the brutal subjugation of a racialized class of “subhumans.” In this modern manifestation of underlaw, police—the embodiment of the law on the streets—ensure that the demands of underlaw are met.302 BLM’s challenge to that system calls into question the law’s ability to meet those demands, giving rise to strong opposition.
Trump again took aim at the BLM movement in remarks at the White House Conference on American History on Constitution Day, September 17, 2020.310 Alluding to the ongoing protests, he characterized protestors as “left-wing mobs” who had “launched a vicious and violent assault on law enforcement—the universal symbol of the rule of law in America.”311 These protestors would “burn down the principles enshrined in our founding documents, including the bedrock principle of equal justice under law,” he claimed.312 He went on to decry the New York Times’ 1619 Project and critical race theory313 as hateful lies, toxic propaganda, and ideological poison aimed at “repression of traditional faith, culture, and values.”314 Again, he warned that such thinking would destroy America. Trump concluded by announcing the creation of the National Garden of American Heroes, “a vast outdoor park that will feature the statues of the greatest Americans who have ever lived.”315 One such statue, Trump declared, would be of Caesar Rodney, a signer of the Declaration of Independence and slave owner whose statue had been removed from a public square in Wilmington, Delaware, amidst controversy over his legacy.316 Trump promised to restore this “very brave man, who was so horribly treated[, to] the place of honor he deserves.”317
With BLM widely understood as a movement challenging acts of police brutality against Black Americans, the President’s strident condemnation of that movement implies that to challenge such action is to challenge the foundations of American law, values, and society. It is worth noting that, while many of those who condemn BLM purport to oppose only the alleged violence committed by the movement—the riots, looting, and arson318—Trump’s statements are largely devoid of reference to any such violence. They focus instead on the threat posed by BLM’s ideology, challenging not merely the means by which BLM seeks to convey its message but the very ends the movement hopes to achieve. These statements betray an adherence to the ideology of underlaw: that the racially-disparate criminal justice system challenged by BLM, particularly acts of police violence against Black persons, is not a failure of American law to live up to American ideals; it is the embodiment of America’s true values.
The views expressed by Trump and Blue Lives Matter are not fringe views. They are views supported by millions of voters, by those who make law, enforce law, and practice law. President Trump’s Twitter attacks threatening “law and order” measures against BLM activists have been echoed by devoted supporters, and over 70 million Americans voted to re-elect him in November 2020.319 The National Fraternal Order of Police, the largest police union in the United States, proclaims on its Facebook page: “We are the #ThinBlueLine—the only thing standing between Order and Anarchy. We protect the prey from the predators, the good from the bad.”320 Legislators in four states have passed “Blue Lives Matter” laws, calling for police to be included as protected victim categories in hate crime statutes.321 In June 2020, Missouri attorneys Mark and Patricia McCloskey achieved notoriety when they pointed guns at BLM protestors marching through their well-to-do St. Louis neighborhood.322 The couple received the support of then-President Trump and were ultimately rewarded with an opportunity to speak at the 2020 Republican National Convention.323 They used the opportunity to paint BLM protestors as violent revolutionaries who would bring anarchy and chaos into American communities. Mark McCloskey concluded the couple’s remarks with a warning that “if you stand up for yourself and for the values our country was founded on, the mob . . . will try to destroy you.”324 The ideology of underlaw has not been purged from American society; its influence remains, reaching far and wide and to the highest levels of government. We ignore it at our peril.
* Brigitte Meyer is an associate attorney at Siana Law in Chester County, Pennsylvania, where she focuses her practice on municipal and land use law. Special thanks to Professor Margaret Burnham and the Civil Rights and Restorative Justice Clinic at Northeastern University School of Law for inspiring and supporting this project. Heartfelt appreciation to Professor Rose Zoltek-Jick, Elliott Hibbler, Katie Sandson, Melvin Kelley, Lauren Hawkes, Thera McAvoy, and Jessica Faunce for their invaluable aid. Thank you to Emma Coreno, Somer Brown, and other Law Review editors for their superb work.
1 See, e.g., Timothy V. Kaufman-Osborn, Capital Punishment as Legal Lynching?, in From Lynch Mobs to the Killing State: Race and the Death Penalty in America 21, 33 (Charles J. Ogletree, Jr. & Austin Sarat eds., 2006).
2 See Charles W. Mills, The Racial Contract 53–57 (1997).
3 See Exec. Order No. 13950, 85 Fed. Reg. 60,683, 60,683–89 (Sept. 22, 2020); see also David Cole, No Equal Justice, 1 Conn. Pub. Int. L.J. 19, 24 (2001).
4 See Daniel Kato, Liberalized Lynching: Building a New Racialized State 13–14 (2015); Mills, supra note 2, at 53–57. Historically, “subpersonhood” has been conceived of as a rational or cognitive inferiority intrinsically linked to some characteristic such as gender, ethnicity, culture, or religion. Because, under this conception, “subpersons” lack the defining “human” characteristic of rationality, they cannot be fully human and cannot enjoy the rights and liberties attendant to personhood. Mills, supra note 2, at 56, 59. See also Barack Obama, A Promised Land 398 (2020) (“[T]he basis of our nation’s social order had never been simply about consent . . . it was also about centuries of state-sponsored violence by whites against Black and [B]rown people . . . .”).
5 Kaufman-Osborn, supra note 1, at 24; see also Mills, supra note 2, at 53–55, 57–58. So-called subpersons are seen as “humanoid entities who, because of racial phenotype/genealogy/culture are not fully human and therefore have a different and inferior schedule of rights and liberties applying to them. In other words, it is possible to get away with doing things to subpersons that one could not do to persons, because they do not have the same rights as persons.” Mills, supra note 2, at 56.
6 See A. Leon Higginbotham, Jr. & Anne F. Jacobs, The Law Only as an Enemy: The Legitimization of Racial Powerlessness Through the Colonial and Antebellum Criminal Laws of Virginia, 70 N.C. L. Rev. 969, 975 (1992). For example, the Naturalization Act of 1790 made only “free white person[s]” eligible to become naturalized American citizens. Naturalization Act of 1790, ch. 3, 1 Stat. 103 (repealed 1795). In its infamous Dred Scott decision, the United States Supreme Court declared that Black persons had “no rights which the white man was bound to respect.” Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 407 (1857), superseded by constitutional amendment, U.S. Const. amend. XIV.
7 See Manfred Berg, Popular Justice: A History of Lynching in America 92–93, 96 (2011).
8 See, e.g., Ga. Code Ann. §§ 18-206, 18-208, 18-201 (1933) (requiring racial segregation on passenger trains and authorizing railroad employees to eject passengers who refused to remain in assigned cars); Ga. Code Ann. § 35-225 (1933) (requiring racial segregation in hospitals); Ga. Code Ann. §§ 53-9902, 53-9903 (1933) (anti-miscegenation laws); Kato, supra note 4, at 7; Leslie V. Tischauser, Jim Crow Laws xi–xii (2012).
9 The link between Black racial subjugation and white identity can be seen in William Faulkner’s short story Dry September. In this fictional account, five white men sit in a barber shop in an unnamed Southern town and discuss rumors that a Black man has sexually assaulted a local white woman. When a white barber, a lifelong resident of the town, expresses doubt about the rumors and attempts to dissuade the others from lynching the Black man, the others immediately question his whiteness and his Southern-ness. See generally William Faulkner, Dry September (1931), reprinted in These Thirteen (Random House 2012) (1931).
10 See Tischauser, supra note 8, at xi–xii.
11 Kaufman-Osborn, supra note 1, at 26; see also Berg, supra note 7, at 92–93; Anne S. Emanuel, Lynching and the Law in Georgia Circa 1931: A Chapter in the Legal Career of Judge Elbert Tuttle, 5 Wm. & Mary Bill of Rts. J., 215, 218 (1996) (“[L]ynchings were not simply the spontaneous venting of a thirst for retribution. Instead, lynchings were a brutal method of social control that was sanctioned by much of society.”).
12 Kaufman-Osborn, supra note 1, at 33.
13 Id. at 30; Sherrilyn A. Ifill, Creating a Truth and Reconciliation Commission for Lynching, 21 Law & Ineq. 263, 282 (2003).
14 See Kaufman-Osborn, supra note 1, at 33. Although white persons were also lynched, they were rarely killed in spectacle lynchings, and almost never subjected to the kind of torture or mutilation that characterized lynchings of Black persons. Id. at 29.
15 See Berg, supra note 7, at 93–94; Jeffrey L. Kirchmeier, Imprisoned by the Past: Warren McCleskey and the American Death Penalty 135 (2015); Margaret Vandiver, Lethal Punishment: Lynchings and Legal Executions in the South 10–11 (2005).
16 See, e.g, Ne[∗∗∗] Murderer Burned to Death Near Scene of His Crime at Autreyville, Thomasville Times-Enter. (Thomasville, Ga.), June 18, 1921, at 1.
17 See Kaufman–Osborn, supra note 1, at 32.
18 This tension can be seen in early-twentieth-century debates surrounding abolition of the death penalty. Colorado abolished the death penalty in 1897 and reinstated it in 1901. John F. Galliher et al., Abolition and Reinstatement of Capital Punishment During the Progressive Era and Early 20th Century, 83 J. Crim. L. & Criminology 538, 541, 560 (1992). When lynchings occurred during the intervening years, the Rocky Mountain Daily News editorialized that the legislature “might as well face the fact that in the absence of capital punishment, under the law it is inflicted through the angry mob violence . . . . To prevent the recurrence of such horrors the death penalty should be restored in [Colorado.]” Id. at 560–61. “A jury may be relied upon to fix the penalty at death,” the editorial continued, “and the certainty that it will do so will stop the blackening of [the state’s] name with lynchings.” Id.
19 Colquitt Grand Jury Is Called, Thomasville Times-Enter. (Thomasville, Ga.), June 16, 1921, at 7.
20 Id.
21 Id.
22 Id.
23 Id.
24 Id.
25 Id.
26 Id.; Ne[∗∗∗] Murderer Burned to Death Near Scene of His Crime at Autreyville, supra note 16.
27 Colquitt Grand Jury Is Called, supra note 19.
28 Id.
29 Ne[∗∗∗] Murderer Burned to Death Near Scene of His Crime at Autreyville, supra note 16.
30 Id.
31 Id.; Georgia Lynch Hounds Raise Savage Record: Two Southern States Stage Human Sacrifices in One Week, Chi. Defender, June 25, 1921, at 1.
32 Ne[∗∗∗] Murderer Burned to Death Near Scene of His Crime at Autreyville, supra note 16. One newspaper account reported that no weapons were present and “no effort was made to injure the officers.” Id. This report indicates that an officer was slightly injured and his clothing torn as he attempted to fight off the crowd but does not report that Sheriff Beard resisted the mob. Id. Another account reported that “the officers gave up the man without a struggle.” Southern Mob Couldn’t Wait for Hanging: Georgians Burn John Williams While He Sings “Nearer My God to Thee,” Balt. Afro-Am., June 24, 1921, at 1.
33 Ne[∗∗∗] Murderer Burned to Death Near Scene of His Crime at Autreyville, supra note 16.
34 Id. at 1, 8.
35 Southern Mob Couldn’t Wait for Hanging: Georgians Burn John Williams While He Sings “Nearer My God to Thee,” supra note 32.
36 Ne[∗∗∗] Murderer Burned to Death, supra note 16; Southern Mob Couldn’t Wait for Hanging: Georgians Burn John Williams While He Sings “Nearer My God to Thee,” supra note 32.
37 Southern Mob Couldn’t Wait for Hanging: Georgians Burn John Williams While He Sings “Nearer My God to Thee,” supra note 32.; Ne[∗∗∗] Murderer Burned to Death Near Scene of His Crime at Autreyville, supra note 16.
38 Ne[∗∗∗] Slayer of Girl Is Burned to Death: Convicted of Murdering Lorena Wilkes, Aged 12, Black Taken from Guards, Atlanta Const., June 19, 1921, at A8; Ne[∗∗∗] Murderer Burned to Death Near Scene of His Crime at Autreyville, supra note 16.
39 Ne[∗∗∗] Murderer Burned to Death Near Scene of His Crime at Autreyville, supra note 16.
40 Id.
41 Hundreds View Remains of Body Burned at Stake, Norfolk J. & Guide (Norfolk, Va.), July 2, 1921, at 8.
42 Chief’s Hearing Friday, Atlanta Const., Jan. 12, 1922, at 3. The following year, taxpayers in Colquitt County petitioned for the removal of J.O. Stewart, chief of the Colquitt County police, on grounds including that he had participated in Williams’ lynching. Id. A grand jury was convened to investigate the accusations, but the petitioners did not go before the grand jury to present their evidence, and the grand jury declined to summons them. Colquitt Chief Is Vindicated by Grand Jury, Atlanta Const., Feb. 1, 1922, at 4.
43 Gay’s name is variously spelled “Otis” and “Ottis” in contemporaneous accounts. I have used the spelling that appears on Gay’s death certificate. Death Certificate of Ottis Gay (Oct. 15, 1935) (Ga. Dep't of Pub. Health, Registered No. 24794).
44 Fear Caused Him to Shoot, the Slayer of Otis Gay Tells Jurors (NAACP Branch Files I-G43-F4 (GA)); Brief of the Evidence at 7, Sloan v. State, 187 S.E. 670 (Ga. 1936) (No. 11468) [hereinafter Brief of the Evidence].
45 Fear Caused Him to Shoot, the Slayer of Otis Gay Tells Jurors, supra note 44.
46 Tensity at Trial Is Told by Juror, Macon News (Macon, Ga.), Jan. 28, 1936, at 1, 2; Frank Hawkins, John Henry Doesn’t Know He Is to Die for Slaying, Macon Tel. (Macon, Ga.), Nov. 18, 1935, at 10.
47 Hawkins, supra note 46.
48 Brief of the Evidence, supra note 44, at 8.
49 Id. at 8–9.
50 Id. at 8.
51 Id. at 8, 16.
52 Id. at 16.
53 Id. at 9.
54 Id. Gay testified that the moon was bright enough on that night to distinguish a Black man from a white man. Id. at 10.
55 Id. at 9.
56 Id.
57 Id. at 9, 14.
58 Id. at 7–14.
59 Id. at 14–15.
60 Id. at 15.
61 Id. at 15.
62 Id. at 17.
63 See id. at 5–6, 17. It is unclear whether Mary Smith or the other youths had identified the shooter as a Black man to Sheriff Beard when he went to Monroe Jackson’s home.
64 Fear Caused Him to Shoot, the Slayer of Otis Gay Tells Jurors, supra note 44.
65 Ne[∗∗∗] Kills White Man Near Moultrie; Slayer Is Sought, Thomasville Times-Enter. (Thomasville, Ga.), Oct. 16, 1935, at 1.
66 See Ne[∗∗∗] Sought for Death of Moultrie Man Apprehended, Thomasville Times-Enter. (Thomasville, Ga.), Oct. 29, 1935, at 1; Once Doomed Moultrie Ne[∗∗∗] Goes on Trial Again at Albany, Thomasville Times-Enter. (Thomasville, Ga.), Mar. 24, 1936, at 1.
67 Letter from W.A. Covington, to Commission on Interracial Cooperation (Mar. 27, 1936), microformed on The Commission on Interracial Cooperation Papers, 1919–1944, reel 8, file 191 (Univ. Microforms Int’l).
68 Coroner’s Jury Probes Death of Ne[∗∗∗] Shot by Colquitt Posse, Thomasville Times-Enter. (Thomasville, Ga.), Oct. 18, 1935, at 1.
69 NAACP, Lynching Record for 1935: Supplement No. 17 to Thirty Years of Lynching in the United States, 1889-1918 (on file at Yale Univ.), https://collections.library.yale.edu/catalog/2077126; Ne[∗∗∗] Is Slain by Georgia Posse, Decatur Daily (Decatur, Ga.), Oct. 17, 1935, at 1.
70 Death Certificate of Bo Brinson (Oct. 17, 1935) (Ga. Dep’t of Pub. Health, Registered No. 24802); Coroner’s Jury Probes Death of Ne[∗∗∗] Shot by Colquitt Posse, supra note 68.
71 Ne[∗∗∗] Shot to Death by Colquitt County Posse Last Night, Thomasville Times-Enter. (Thomasville, Ga.), Oct. 17, 1935, at 6. A coroner’s inquest is “[a]n inquiry by a coroner or medical examiner, sometimes with the aid of a jury, into the manner of death of a person who has died under suspicious circumstances, or who has died in prison.” Inquest, Black’s Law Dictionary (11th ed. 2019).
72 Coroner’s Jury Probes Death of Ne[∗∗∗] Shot by Colquitt Posse, supra note 68.
73 See Ne[∗∗∗] Sought for Death of Moultrie Man Apprehended, supra note 66.
74 Ne[∗∗∗] Kills White Man Near Moultrie; Slayer Is Sought, supra note 65; Ne[∗∗∗] Shot to Death by Colquitt County Posse Last Night, Thomasville Times-Enter. (Thomasville, Ga.), Oct. 17, 1935, at 6.
75 Half-Witted Killer Is Sought by Police, Macon Tel. (Macon, Ga.), Oct. 23, 1935, at 5.
76 Ne[∗∗∗] Sought for Death of Moultrie Man Apprehended, supra note 66.
77 See id.; Demented Man, Twice Saved from Mob, to Die, Pittsburgh Courier, Apr. 4, 1936, at 7.
78 Brief of the Evidence, supra note 44, at 2–4.
79 Ne[∗∗∗] Is Found Guilty Today at Moultrie, Thomasville Times-Enter. (Thomasville, Ga.), Nov 14, 1935, at 1.
80 Letter from W.A. Covington to Harry S. Strozier, Commission on Interracial Cooperation (Nov. 30, 1935), microformed on The Commission on Interracial Cooperation Papers, 1919–1944, reel 8, file 191 (Univ. Microforms Int’l).
81 See Emanuel, supra note 11, at 226 nn. 65–66, 236; see also Alex Heard, The Eyes of Willie McGee 82 (2010). Covington’s life was apparently threatened as a result of his defense of Sloan. Witnesses Tell of Sloan’s Trial, Macon Tel. (Macon, Ga.), Jan. 28, 1936, at 1–2.
82 Emanuel, supra note 11, at 236.
83 See Heard, supra note 81, at 161, 167, 178.
84 See Michael J. Klarman, Scottsboro, 93 Marq. L. Rev. 379, 383 (2009).
85 See Emanuel, supra note 11, 226–27.
86 See Death Claimed Judge Covington at Moultrie Home, Thomasville Times-Enter. (Thomasville, Ga.), June 25, 1945, at 4. Covington was born on January 19, 1869. W.A. Covington, History of Colquitt County 104, 242–43 (1937).
87 W.A. Covington, supra note 86, at 104, 243; Death Claimed Judge Covington at Moultrie Home, supra note 86, at 4; Letters of Congratulation Pour In on Bishop Candler, Atlanta Const. (Atlanta, Ga.), Sept. 15, 1903, at 6.
88 Judge W.A. Covington Resigns, Atlanta Const. (Atlanta, Ga.), Mar. 19, 1904, at 2. Covington served two terms in the Georgia legislature from 1905 to 1908, and two more in 1919–20 and 1923–24. W.A. Covington, supra note 86, at 243.
89 Elected Mayor, Atlanta Const., Oct. 6, 1921, at 4; Covington Announces to Run for Congress, Atlanta Const., Oct. 4, 1913, at 5; Governor Smith Elected Senator by Big Majority, Atlanta Const., July 13, 1911, at 1; Covington for Governor if Hoke Smith Wants Toga, Atlanta Const., Aug. 4, 1907, at B5.
90 See The Chairman Broke the Tie, Atlanta Const., July 8, 1919, at 8; Laborer Worthy of Hire; In a Sense Responsible for Wrongs He Suffers, Atlanta Const., Sept. 7, 1909, at 12; Lease System Is Condemned, Atlanta Const., July 27, 1908, at 3; Will Introduce Prohibition Bill, Atlanta Const., July 13, 1905, at 9.
91 Covington believed that giving the governor authority to remove sheriffs who refused to resist lynch mobs and to send National Guard troops on his own initiative would prevent nine-tenths of lynchings. W.A. Covington, A Way to Stop Lynchings, Atlanta Const., Mar. 14, 1918, at 8; W.A. Covington, To Stop Lynchings, Give the Governor More Power, Atlanta Const., Feb. 8, 1916, at 8.
92 See Death Claimed Judge Covington at Moultrie Home, supra note 86, at 4.
93 In a 1909 Labor Day speech, he proclaimed: “The laboring man in America has been plundered under forms of law. His burdens have been placed upon him by the assistance of government, state and national . . . I can recall to mind no demand made by organized labor in any form in Georgia not in harmony with the plainest mandates of justice.” Laborer Worthy of Hire; In a Sense Responsible for Wrongs He Suffers, supra note 90, at 12. Later that year, in a letter to the editor of the Atlanta Constitution, he denounced “government favoritism,” which created two classes of citizens, the specially-privileged and “the class that is plundered under forms of law.” New Line Up, Says Covington, Letters from People, Atlanta Const., Nov. 18, 1909, at 8.
94 A Way to Stop Lynchings, supra note 91; Letters of Congratulation Pour In on Bishop Candler, supra note 87.
95 Ga. Code Ann. § 27-1201 (1933).
96 Id.
97 Demented Man, Twice Saved from Mob, to Die, supra note 77.
98 Many years before, before John Henry Williams’s lynching, Covington had declared that “[o]ur people, white and black, are the most law-abiding in the world when sober.” Letters of Congratulation Pour In on Bishop Candler, supra note 87, at 6. Even after Sloan’s trial he expressed a belief that there were “plenty of folks” in the community who deplored the idea of lynching Sloan. Letter from W.A. Covington to Harry S. Strozier, supra note 80.
99 Covington may have also feared for his own safety. At least one lynching-era attorney reported receiving death threats as a result of moving for a change of venue. Heard, supra note 81, at 82.
100 In 1919, an Arkansas town erupted into violence after a group of white men attacked and fired on a group of Black people who had gathered to discuss the extortionary practices of local landowners. Moore v. Dempsey, 261 U.S. 86, 87–88 (1923). In the aftermath, a white man was killed. Id. at 87. Several Black men were arrested for the murder, and according to these men, a governor’s committee appointed to investigate the violence kept a lynch mob at bay by promising to execute the accused. Id. at 88–89. The committee “whipped and tortured” Black witnesses into implicating the men, who were then tried and convicted of murder in a trial lasting less than one hour. Id. at 89. The convicted men alleged that “no juryman could have voted for an acquittal and continued to live in [the county], and if any prisoner by any chance had been acquitted by a jury, he could not have escaped the mob.” Id. at 89–90. When it seemed some of the defendants’ sentences might be commuted, the local American Legion appealed to the governor in anger, saying 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.” Id. at 90. The local Rotary Club and Lions Club, purportedly representing dozens of leading industrial and commercial enterprises, passed resolutions supporting the statement. Id.; see also Downer v. Dunaway, 1 F. Supp. 1001, 1002 (M.D. Ga. 1931); Emanuel, supra note 11, at 228–29.
101 Ga. Code Ann. § 86-1302 (1933).
102 For example, concerted efforts by the Georgia National Guard prevented the lynching of six Black men accused of raping and assaulting a young woman in Elberton, Georgia in 1931. Emanuel, supra note 11, at 223–26.
103 A Just Judge, N.Y. Age (N.Y.C., N.Y.), July 6, 1911, at 4.
104 After guardsmen prevented a lynching in Elberton, Georgia in 1931, local whites threatened to kill a soldier who had shot and wounded a local white man in the fracas. Emanuel, supra note 11, at 223–26.
105 Georgia judge and future United States Senator Charles Hillyer Brand proclaimed in 1911 that he “would not imperil the life of one white man to save the lives of a hundred Ne[∗∗∗] rapists.” He would never forgive himself, he said, if he called out the militia and some young soldier or white citizen were killed. A Just Judge, supra note 103, at 4.
106 George D. W. Burt, Troopers Guard Ne[∗∗∗] at Trial in Moultrie, Thomasville Times-Enter. (Thomasville, Ga.), Nov. 14, 1935, at 1. Sheriff Beard, for his part, considered the National Guard unnecessary; he believed he and a squad of deputies could keep order. This was not like what happened with John Henry Williams, he claimed—this time there was no organized plan to lynch the accused. Witnesses Tell of Sloan’s Trial, Macon Tel. (Macon, Ga.), Jan. 28, 1936, at 1.
107 Burt, supra note 106.
108 Id.
109 Soldiers Rout Mob with Gas, Wash. Post, Nov. 15, 1935, at 1; Witnesses Tell of Sloan’s Trial, supra note 106.
110 Slayer Gets Death Ballot in Moultrie, Macon Tel. (Macon, Ga.), Nov. 15, 1935, at 1.
111 Burt, supra note 106.
112 Fear Caused Him to Shoot, the Slayer of Otis Gay Tells Jurors, supra note 44.
113 Id.
114 Once Doomed Moultrie Ne[∗∗∗] Goes on Trial Again at Albany, supra note 66.
115 Fear Caused Him to Shoot, the Slayer of Otis Gay Tells Jurors, supra note 44; Burt, supra note 106. This is consistent with accounts of the police interview of Smith on October 16, the day after the shooting. Ne[∗∗∗] Kills White Man Near Moultrie; Slayer Is Sought, supra note 65.
116 George D. W. Burt, Untitled, Macon Tel. (Macon, Ga.), Nov. 15, 1935, at 8.
117 Id.
118 Fear Caused Him to Shoot, the Slayer of Otis Gay Tells Jurors, supra note 44.
119 Id.
120 Id.
121 Id.
122 “In all criminal trials, the prisoner shall have the right to make to the court and jury such statement in the case as he may deem proper in his defense. It shall not be under oath, and shall have such force only as the jury may think right to give it.” Ga. Code Ann. § 38-415 (1933).
123 Fear Caused Him to Shoot, the Slayer of Otis Gay Tells Jurors, supra note 44.
124 Guardsmen Disperse Georgia Mob, Atlanta Daily World, Nov. 15, 1935, at 6.
125 Fear Caused Him to Shoot, the Slayer of Otis Gay Tells Jurors, supra note 44.
126 Id.
127 Id.
128 Letter from W.A. Covington to Harry S. Strozier, supra note 80.
129 Id.
130 Ga. Code Ann. §§ 102-104, 26-301, 26-303 (1933). In the early twentieth century, terms like “moron” and “idiot” had quasi-scientific significance. The eugenics movement of the late nineteenth and early twentieth century had brought the advent of IQ testing and the development of an IQ-based classification of persons with intellectual disabilities. The terms “idiot,” “imbecile,” and “moron” were terms used to identify three levels of disability, with IQ-cutoff scores of 25, 50, and 75, respectively. This scale was also considered to correspond with a person’s “mental age.” “Idiots” were those with a mental age of up to two years, “imbeciles” had a mental age between three and seven, and “morons” had a mental age of eight to twelve years. At the time of Sloan’s trial, the term “idiot” had legal significance—denoting those who were totally ignorant or lacked the use of reason—but “imbecile” and “moron” did not. See Michael Clemente, A Reassessment of Common Law Protections for “Idiots,” 124 Yale L.J. 2746, 2764 (2015); Frederick Woodbridge, Physical and Mental Infancy in the Criminal Law, 87 U. Pa. L. Rev. 426, 438 (1939); see Ga. Code Ann. § 38-1610 (1933). The early-twentieth-century enthusiasm for IQ theory, craniology, phrenology, and other pseudoscientific methods of measuring intelligence was driven in part by the desire to confirm the purported nonwhite intellectual inferiority that justified racial subjugation. See Mills, supra note 2, at 60.
131 See Murray v. State, 39 S.E.2d 842, 846–47 (Ga. 1946); Summerour v. Fortson, 164 S.E. 809, 814 (Ga. 1932).
132 See Murray, 39 S.E.2d at 847; Summerour, 164 S.E. at 814.
133 See Letter from W.A. Covington to Harry S. Strozier, supra note 80. No transcript of this trial has survived, and the exact nature of the defense strategy is unclear from the available record.
134 See Summerour, 164 S.E. at 814. In affirming the trial court’s denial of a new trial, the Georgia Supreme Court held that proving a “degree of mentality [no] greater than that of a child” would not relieve a defendant of responsibility of a crime unless the defendant also proved he was unable to distinguish between good and evil. Id.
135 See Bridges v. State, 158 S.E. 358, 358 (Ga. Ct. App. 1931).
136 Johnson v. State, 189 S.E. 386, 386 (Ga. Ct. App. 1937).
137 “Following the popularization of intelligence tests early in [the twentieth century], defendants frequently sought to use the ‘mental age’ component of test results to seek exculpation based on analogy to the legal rules governing children whose chronological age compared with the defendant’s mental age. These attempts were universally unsuccessful.” James W. Ellis & Ruth A. Luckasson, Mentally Retarded Criminal Defendants, 53 Geo. Wash. L. Rev. 414, 435 (1985) (citing illustrative cases from New Jersey, Arkansas, Illinois, Massachusetts, Vermont, and Pennsylvania, decided between 1919 and 1931); see also Woodbridge, supra note 130, at 441–48.
138 Letter from W.A. Covington to Harry S. Strozier, supra note 80.
139 Id.
140 Although no detailed record of the testimony at Sloan’s first trial survives, a summary of the testimony given at his second trial is revealing on this point. There is no indication that testimony materially changed between the first and second trials.
141 Brief of the Evidence, supra note 44, at 20.
142 Id. at 21.
143 Id.
144 Id. at 5, 7.
145 Id. at 19. The solicitor general also agreed that Sloan was “not all there,” but nonetheless refused to accept a plea for a life sentence. Letter from W.A. Covington to Harry S. Strozier, supra note 80.
146 Bureau of the Census, U.S. Dep’t of Commerce, Fifteenth Decennial Census of the United States: 1930, Population, Volume III, Part 1, at 481 (1932), https://www.census.gov/library/publications/1932/dec/1930a-vol-03-population.html.
147 Whites’ unwillingness to allow Black criminal defendants to escape death through diminished capacity arguments can be seen in the case of Willie McGee, a Black man accused of raping a white woman in Laurel, Mississippi in 1945. During McGee’s trial he had been portrayed as an “imbecile,” barely able to speak. Following McGee’s conviction and death sentence, newspapers reported that McGee had attempted a violent escape from the county jail. These reports, potentially fabricated, sought to undermine the claim that McGee suffered from any mental incapacity that would stand between him and the electric chair. Heard, supra note 81, at 63–64.
148 Ga. Code Ann. § 26-1005 (1933).
149 Guardsmen Disperse Georgia Mob, supra note 124.
150 Dixie Lynch Mob Routed by Soldiers, N. Y. Amsterdam News (N.Y.C., N.Y.), Nov. 23, 1935, at 11.
151 See id.
152 Witnesses Tell of Sloan’s Trial, supra note 81.
153 Id.
154 Guardsmen Disperse Georgia Mob, supra note 124; Letter from E. Sprye, President, Albany Georgia NAACP, to Walter White (Nov. 22, 1935) (NAACP Branch Files I-G43-F4 (GA)). Although it had been established for more than fifty years that systematic exclusion of Black citizens from a jury violated a criminal defendant’s right to equal protection, six months before Sloan’s trial, the United States Supreme Court in Norris v. Alabama lowered a defendant’s burden to show that Black jurors were wrongfully excluded. Norris v. Alabama, 294 U.S. 587 (1935); Strauder v. West Virginia, 100 U.S. 303 (1880). However, even under Norris, a defendant had to prove that there were Black citizens eligible for jury service in the county, and that they were excluded from the jury rolls. Such a challenge was likely to inflame a jury (the motion in Norris’s trial provoked open death threats on his attorney) and would place at substantial risk any Black resident who dared testify to his exclusion from the rolls. Such a motion would also almost certainly fail. Black people were excluded from the jury rolls in Colquitt County, but Covington never challenged the exclusion of Black people from Sloan’s jury, perhaps for these reasons. See Emanuel, supra note 11, at 239–40.
155 Ne[∗∗∗] Murderer Burned to Death Near Scene of His Crime at Autreyville, supra note 16. See also Emanuel, supra note 11, at 231–32.
156 Soldiers Rout Mob with Gas, supra note 109; Guardsmen Disperse Georgia Mob, supra note 124.
157 Dixie Lynch Mob Routed by Soldiers, supra note 150.
158 Guardsmen Disperse Georgia Mob, supra note 124.
159 Dixie Lynch Mob Routed by Soldiers, supra note 150.
160 Troops Save Ne[∗∗∗] from Georgia Mob, N.Y. Times, Nov. 15, 1935.
161 Id.; Dixie Lynch Mob Routed by Soldiers, supra note 150.
162 Soldiers Rout Mob with Gas, supra note 109; Guardsmen Disperse Georgia Mob, supra note 124.
163 Ga. Convict, Unaware of Death Sentence, Feels Safer in Pen., Balt. Afro-Am., Nov. 30, 1935, at 1.
164 Tensity at Trial Is Told by Juror, supra note 46. Customarily, the judge would have allowed the term of court to run until five days before the beginning of the following term, which in this case would have been in April 1936. Deaver Grants Stay for Sloan, Macon News (Macon, Ga.), Dec. 6, 1935 at 1, 8.
165 Witnesses Tell of Sloan’s Trial, supra note 81.
166 Letter from W.E. Thomas, to W.A. Covington (Nov. 25, 1935) microformed on The Commission on Interracial Cooperation Papers, 1919–1944, reel 8, file 191 (Univ. Microforms Int’l).
167 Id.
168 Witnesses Tell of Sloan’s Trial, supra note 81.
169 Ga. Convict, Unaware of Death Sentence, Feels Safer in Pen., supra note 163; Hancock Ne[∗∗∗es] Removed to City, Macon Tel. (Macon, Ga.), Nov. 20, 1935, at 9.
170 Hawkins, supra note 46.
171 Ga. Convict, Unaware of Death Sentence, Feels Safer in Pen., supra note 163.
172 Id.
173 Hawkins, supra note 46.
174 Id.
175 Ann Wells Ellis, The Commission on Interracial Cooperation, 1919-1944: Its Activities and Results 121 (1976) (Ph.D. dissertation, Georgia State University) (on file with author).
176 Letter from Harry S. Strozier, to R.B. Eleazer, Commission on Interracial Cooperation (Nov. 30, 1935) microformed on The Commission on Interracial Cooperation Papers, 1919–1944, reel 8, file 191 (Univ. Microforms Int’l) [hereinafter Strozier I].
177 Letter from W.A. Covington to Harry S. Strozier, supra note 80. Covington reported to Strozier that, at the end of Sloan’s trial, he told Judge Thomas: “The good Lord made this man; you and I have done our best for him; I now feel that it is His time to move.” Id.
178 Strozier I, supra note 176.
179 Id.
180 Id.
181 Letter from Harry S. Strozier, to R.B. Eleazer, Commission on Interracial Cooperation (Dec. 6, 1935) microformed on The Commission on Interracial Cooperation Papers, 1919–1944, reel 8, file 191) (Univ. Microforms Int’l) [hereinafter Strozier II].
182 Id. In 1923, the Supreme Court had held that allegations of mob dominance of a trial authorized a federal district court to proceed with a hearing on a habeas corpus petition. Moore v. Dempsey, 261 U.S. 86 (1923).
183 Strozier II, supra note 181.
184 Strozier I, supra note 176.
185 Downer v. Dunaway, 53 F.2d 586, 588 (5th Cir. 1931).
186 Id.
187 Id.
188 Id. at 589.
189 Id.
190 Id.
191 Downer v. Dunaway, 53 F.2d 586, 588 (5th Cir. 1931).
192 Id. at 589–91.
193 Id. at 589. The Frank Court held that:
[I]f 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.
Frank v. Mangum, 237 U.S. 309, 335 (1915). Subsequently, the Court in Moore held:
[I]f 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.
Moore v. Dempsey, 261 U.S. 86, 91 (1923).
194 Downer, 53 F.2d at 590.
195 Downer v. Dunaway, 1 F. Supp. 1001, 1003 (M.D. Ga. 1931).
196 Id.
197 Id.
198 Id.
199 Id.
200 See generally id.
201 Id. at 103.
202 Condemned Colquitt County Ne[∗∗∗] Given Stay of Execution, Thomasville Times-Enter., (Thomasville, Ga.), Dec. 6, 1935, at 4; Strozier II, supra note 181; Court Order Gives Doomed Ne[∗∗∗] Chance, Macon Tel. (Macon, Ga.), Dec. 7, 1935, at 1.
203 Court Order Gives Doomed Ne[∗∗∗] Chance, supra note 202; see Moore v. Dempsey, 261 U.S. 86, 91 (1923).
204 Deaver Grants Stay for Sloan, supra note 164.
205 Court Order Gives Doomed Ne[∗∗∗] Chance, supra note 202.
206 Id.
207 Hearing on Sloan Case Is Delayed, Macon News (Macon, Ga.), Jan. 6, 1936, at 10; Convicted to Die as Lynch Orgy Loomed, Pitt. Courier, Feb. 8, 1936, at A8.
208 Witnesses Tell of Sloan’s Trial, supra note 81.
209 Juror’s Remark at Trial of Ne[∗∗∗] Brought into Habeas Corpus Hearing, Thomasville Times-Enter. (Thomasville, Ga.), Jan 27, 1936, at 2; Ne[∗∗∗] Is Fighting for Second Trial, Macon News (Macon, Ga.), Jan 27, 1936, at 1; Trial of Ne[∗∗∗] Held as Unfair, Macon News (Macon, Ga.), Jan 29, 1936, at 6.
210 Tensity at Trial Is Told by Juror, supra note 46.
211 Id. at 2.
212 Id.; Witnesses Tell of Sloan’s Trial, supra note 81.
213 Deaver Holds Sloan’s Trial Was Unfair, Macon Tel. (Macon, Ga.), Jan. 29, 1936, at 10; Witnesses Tell of Sloan's Trial, supra note 81.
214 Witnesses Tell of Sloan's Trial, supra note 81.
215 Id.
216 Id.; Southern Mob Couldn’t Wait for Hanging, supra note 32.
217 Witnesses Tell of Sloan’s Trial, supra note 81.
218 Id.
219 Id. Covington was widely recognized as an exceptionally skilled orator. See James A. Hollomon, In the Trend of Events, Atlanta Const., July 26, 1919, at 8.
220 Juror’s Remark at Trial of Ne[∗∗∗] Brought into Habeas Corpus Hearing, supra note 209.
221 Id.
222 Ne[∗∗∗] Is Fighting for Second Trial, supra note 209.
223 Trial of Ne[∗∗∗] Held as Unfair, supra note 209; Once Doomed Moultrie Ne[∗∗∗] Goes on Trial Again at Albany, supra note 66.
224 Trial of Ne[∗∗∗] Held as Unfair, supra note 209.
225 Id.; Deaver Holds Sloan’s Trial Was Not Fair, supra note 213. Judge Deaver also held that the district court had no power to review Judge Thomas’s decision to adjourn the term of the Colquitt County Court and that the legality of the adjournment had no bearing on the case. The only important question, Judge Deaver said, was the influence created by the threatened or expected violence. Deaver Holds Sloan’s Trial Was Not Fair, supra note 213.
226 New Trial Sought for John Henry Sloan, Doomed Ne[∗∗∗], Thomasville Times-Enter. (Thomasville, Ga.), July 20, 1936, at 4.
227 Deaver Holds Sloan’s Trial Was Not Fair, supra note 213.
228 Convicted to Die as Lynch Orgy Loomed, supra note 207.
229 State Completes Plans to Try Moultrie Ne[∗∗∗] Again, Thomasville Times-Enter., Feb. 5, 1936, at 1.
230 Sloan May Face Retrial in Bibb, Macon News (Macon, Ga.), Feb. 5, 1935, at 5. See generally Norris v. Alabama, 294 U.S. 587 (1935); Klarman, supra note 84, at 407–08. In Norris v. Alabama, the Court had reversed a Black boy’s rape conviction, holding that the systematic exclusion of Black persons from the jury pool in the Alabama county where he was tried had denied him equal protection of law. Norris, 294 U.S. at 596–99.
231 Ne[∗∗∗es] Missing on Lowndes Jury, Macon News (Macon, Ga.), Feb. 24, 1936, at 12.
232 Demented Man, Twice Saved from Mob Sentenced to Die, supra note 77; Sloan Being Held in Secret Prison, Macon News (Macon, Ga.), Feb. 9, 1936, at 9.
233 New Trial Asked for John Sloan, Macon News (Macon, Ga.), July 20, 1936, at 1.
234 Sloan Is Placed on Second Trial, Macon News (Macon, Ga.), Mar. 24, 1936, at 1; Once Doomed Moultrie Ne[∗∗∗] Goes on Trial Again at Albany, supra note 66.
235 Once Doomed Moultrie Ne[∗∗∗] Goes on Trial Again at Albany, supra note 66.
236 See Demented Man Twice Saved from Mob Sentenced to Die, supra note 77; Sloan Is Placed on Second Trial, supra note 234.
237 Brief of the Evidence, supra note 44, at 16; see Ne[∗∗∗] Kills White Man Near Moultrie; Slayer Is Sought, supra note 65.
238 Brief of the Evidence, supra note 44, at 16–17.
239 Id. at 17.
240 Id. at 17–19.
241 Id. at 17–18.
242 Id. at 18.
243 Id.
244 Id.
245 Id.
246 Id.
247 Id.
248 Id.
249 Id. at 19.
250 Id.
251 Id. at 20–21.
252 Id.
253 Id. at 27.
254 Sloan Sentenced to Die on May 1, Macon News (Macon, Ga.), Mar. 25, 1936, at 7.
255 Demented Man, Twice Saved from Mob Sentenced to Die, supra note 77.
256 Id.
257 Amendment to Motion for New Trial at 34, Sloan v. State, 187 S.E. 670 (Ga. 1936) (No. 11468).
258 Id.
259 Id.
260 Id. at 35.
261 See id. at 42.
262 Sloan, 187 S.E. at 671.
263 Ne[∗∗∗] Is Saved for Third Time, Macon Tel. (Macon, Ga.), Oct. 31, 1936, at 2.
264 Id.
265 Sloan Execution Halted by Court, Macon Tel. (Macon, Ga.), Oct. 16, 1936, at 5. They brought the writ in Georgia Superior Court of the Ocmulgee Judicial Circuit because the circuit included Baldwin County, where the electric chair was located. Ne[∗∗∗] Is Saved for Third Time, supra note 263; Doomed Man Receives Stay of Execution, Atlanta Daily World, Oct. 16, 1936, at 1.
266 Doomed Man Receives Stay of Execution, supra note 265.
267 Id.; Judge Gardner Delays Sentencing Sloan as Investigation Made, Thomasville Times-Enter. (Thomasville, Ga.), Nov. 16, 1936, at 8.
268 Ne[∗∗∗] Is Saved for Third Time, supra note 263.
269 Judge Gardner Delays Sentencing Sloan as Investigation Made, supra note 267; Fourth Death Sentence Is Passed Upon Slayer, Macon Tel. (Macon, Ga.), Dec. 20, 1936, at 25.
270 John Henry Sloan Must Die on Last Day of This Year, Thomasville Times-Enter. (Thomasville, Ga.), Dec. 21, 1936, at 1; State Executioner Ill; Sloan Death May Be Delayed, Atlanta Daily World, Dec. 31, 1936, at 1.
271 State Executioner Ill; Sloan Death May Be Delayed, supra note 270.
272 Commission Needs an Electrician, Macon News (Macon, Ga.), Dec. 30, 1936, at 3; State Executioner Ill; Sloan Death May Be Delayed, supra note 270.
273 Commission Needs an Electrician, supra note 272.
274 John Henry Sloan Electrocuted at the State Prison, Thomasville Times-Enter. (Thomasville, Ga.), Dec. 31, 1936, at 1.
275 Id.
276 Id.
277 Id.
278 Colquitt Ne[∗∗∗] Pays for Murder, Macon Tel. (Macon, Ga.), Jan. 1, 1937, at 10.
279 John Henry Sloan (1911-1936), Find a Grave (Feb. 25, 2014), https://www.findagrave.com/memorial/125611687.
280 William I. Hair & Amy Louise Wood, Lynching and Racial Violence, in 24 The New Encyclopedia of Southern Culture 91 (Thomas C. Holt et al. eds., 2013).
281 Id.
282 See Kirchmeier, supra note 15, at 136 (“With the decline of lynching, many southern whites renounced the inhumanity of the mob, preferring instead to rely on the harsh justice of the state.”); Vandiver, supra note 15, at 13–15; Stuart Banner, The Death Penalty: An American History 229 (2003) (“The line between a lynching and an official execution could be thin . . . . Official trials and executions in the South could take place astonishingly fast, so fast as to closely resemble lynchings, when a case carried racial implications.”); Carol S. Steiker & Jordan M. Steiker, The Racial Origins of the Supreme Court’s Death Penalty Oversight, 42 Hum. Rts. 14, 14 (2016) (“One of the strongest predictors of a state’s propensity to conduct executions today is its history of lynch mob activity starting more than a century ago.”); Stephen B. Bright, Discrimination, Death and Denial: The Tolerance of Racial Discrimination in Infliction of the Death Penalty, 35 Santa Clara L. Rev. 433, 439 (1995) (“The death penalty is a direct descendant of lynching and other forms of racial violence and racial oppression in America.”).
283 “The United States in effect operates two distinct criminal justice systems: one for wealthy people and another for poor people and people of color.” The Sentencing Project, Report of the Sentencing Project to the United Nations Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia, and Related Intolerance 1 (2018), https://www.sentencingproject.org/publications/un-report-on-racial-disparities/ (click “Download PDF”). “Despite its formal adherence to the principle of colorblindness, the contemporary U.S. criminal justice system has been described as a ‘system of racial control.’ This control is not merely legal, it is political. Major expansions of the criminal justice system have their roots in campaigns to reverse the political gains made by Black Americans in the Reconstruction and Civil Rights eras.” Vanessa Williamson, Kris-Stella Trump & Katherine Levine Einstein, Black Lives Matter: Evidence That Police-Caused Deaths Predict Protest Activity, 16 Perspectives on Pols. 400, 401 (2018).
284 The Sentencing Project, supra note 283.
285 Id.; Shasta N. Inman, Racial Disparities in Criminal Justice: How Lawyers Can Help, A.B.A., https://www.americanbar.org/groups/young_lawyers/publications/after-the-bar/public-service/racial-disparities-criminal-justice-how-lawyers-can-help/ (last visited Feb. 6, 2021).
286 Inman, supra note 285.
287 Ngozi Ndulue, The Death Penalty Info. Ctr., Enduring Injustice: The Persistence of Racial Discrimination in the U.S. Death Penalty 29 (Robert Dunham ed., 2020).
288 Id.
289 Larry Buchanan et al., Q&A: What Happened in Ferguson?, N.Y. Times (Aug. 10, 2015), https://www.nytimes.com/ interactive/2014/08/13/us/ferguson-missouri-town-under-siege-after-police-shooting.html.
290 Barbara A. Biesecker, From General History to Philosophy: Black Lives Matter, Late Neoliberal Molecular Biopolitics, and Rhetoric, 50 Phil. & Rhetoric 409, 410 (2017). The popularization of the phrase “Black Lives Matter” originated with activists Alicia Garza, Patrisse Cullors, and Opal Tometi’s response to the death of Black teenager Trayvon Martin and acquittal of his killer George Zimmerman in 2013. Elizabeth Day, #BlackLivesMatter: The Birth of a New Civil Rights Movement, Guardian (July 19, 2015), https://www.theguardian.com/world/2015/jul/19/blacklivesmatter-birth-civil-rights-movement.
291 Biesecker, supra note 290, at 411, n.1.
292 Dhaval M. Dave et al., Black Lives Matter Protests, Social Distancing, and Covid-19 1 (Nat’l Bureau of Econ. Research, Working Paper No. 27408, 2020).
293 Grace Hauck et al., “A Fanciful Reality”: Trump Claims Black Lives Matter Protests Are Violent, but the Majority Are Peaceful, USA Today (Oct. 25, 2020), https://www.usatoday.com/in-depth/news/nation/2020/10/24/trump-claims-blm-protests-violent-but-majority-peaceful/3640564001/.
294 Johanna Solomon et al., Expressions of American White Ethnonationalism in Support for “Blue Lives Matter,” Geopolitics 4 (July 23, 2019), https://www.tandfonline.com/doi/abs/10.1080/14650045.2019.1642876?journalCode=fgeo20.
295 Id.
296 Id.; Yuanyuan Liu, Blue Lives Matter? An Analysis of Blue Lives Matter News Comments 7 (2019) (M.A. dissertation, North Carolina State University) (on file with North Carolina State University Libraries).
297 Solomon et al., supra note 294, at 5; Maurice Chammah & Cary Aspinwall, The Short, Fraught History of the ‘Thin Blue Line’ American Flag, Marshall Project (June 8, 2020), https://www.themarshallproject.org/2020/06/08/the-short-fraught-history-of-the-thin-blue-line-american-flag.
298 Joe DiFazio, Dividing Line: Thin Blue Line Flag Source of Division on South Shore, Enter. (Aug. 21, 2020), https://www.enterprisenews.com/story/news/crime/2020/08/21/dividing-line-thin-blue-line-flag-source-of-division-on-south-shore/42908185/ (“It simply represents the police officer’s role of separating the good from the bad while creating order from the chaos. This is what separates the world from them.”); see Tyler Wall, The Police Invention of Humanity: Notes on the “Thin Blue Line,” 16(3) Crime Media Culture 319–21, 328 (2020); The Thin Blue Line, Flags of Valor, https://www.flagsofvalor.com/blogs/news/the-thin-blue-line (last visited Dec. 6, 2020); Mission, Thin Blue Line Found., https://thinbluelinefoundation.org/read-me (last visited Dec. 6, 2020).
299 Wall, supra note 298, at 321.
300 Id. at 320, 323.
301 Id. at 323, 327–29.
302 Id. at 327 (“The law of the police really marks the point at which the state can no longer guarantee through the legal system the empirical ends that it desires at any price to attain.”) (internal quotation marks omitted).
303 Donald Trump, President of the United States, Remarks at South Dakota’s 2020 Mount Rushmore Fireworks Celebration (July 4, 2020).
304 Id.
305 Id.
306 Id.
307 Thomas Jefferson Statue Toppled in Portland, Oregon, CBS News (June 15, 2020), https://www.cbsnews.com/news/thomas-jefferson-statue-toppled-in-portland-oregon/.
308 Remarks at South Dakota’s 2020 Mount Rushmore Fireworks Celebration, supra note 303.
309 Id.
310 President Trump Remarks at White House History Conference, C-SPAN (Sept. 17, 2020), https://www.c-span.org/video/?475934-1/president-trump-announces-1776-commission-restore-patriotic-education-nations-schools.
311 Id.
312 Id.
313 The 1619 Project “aims to reframe the country’s history by placing the consequences of slavery and the contributions of Black Americans at the very center of our national narrative.” The 1619 Project, N.Y. Times Mag., https://www.nytimes.com/interactive/2019/08/14/magazine/1619-america-slavery.html (last visited Nov. 27, 2020). Critical race theory is “a collection of activists and scholars interested in studying and transforming the relationship among race, racism, and power.” Richard Delgado & Jean Stefancic, Critical Race Theory: An Introduction 3 (2d ed. 2012).
314 Ishaan Tharoor, Trump Joins Dictators and Demagogues in Touting ‘Patriotic Education,’ Wash. Post (Sept. 21, 2020), https://www.washingtonpost.com/world/2020/09/21/trump-patriotic-education-china-orban/.
315 President Trump Remarks at White House History Conference, supra note 310.
316 Jacob Owens, Wilmington Removes Columbus, Rodney Statues Amid Threats, Delaware Bus. Times (June 12, 2020), https://delawarebusinesstimes.com/news/wilmington-columbus-rodney; President Trump Remarks at White House History Conference, supra note 310.
317 President Trump Remarks at White House History Conference, supra note 310.
318 See Kevin Roberts, ‘Mostly Peaceful’ Lets Black Lives Matter Off the Hook for Real Violence, Wash. Examiner. (Sept. 24, 2020), https://www.washingtonexaminer.com/opinion/mostly-peaceful-lets-black-lives-matter-off-the-hook-for-real-violence; James S. Robbins, Opinion: Rioting Is Beginning to Turn People off to BLM and Protests While Biden Has No Solution, USA Today (Aug. 31, 2020), https://www.usatoday.com/story/opinion/2020/08/31/riots-violence-erupting-turning-many-away-blm-and-protests-column/5675343002/.
319 Brigitte L. Nacos et al., Donald Trump: Aggressive Rhetoric and Political Violence, Persp. On Terrorism, Oct. 2020, at 2, 4; Claudia Deane & John Gramlich, 2020 Election Reveals Two Broad Voting Coalitions Fundamentally at Odds, Pew Rsch. Ctr., (Nov. 6, 2020), https://www.pewresearch.org/fact-tank/2020/11/06/2020-election-reveals-two-broad-voting-coalitions-fundamentally-at-odds/.
320 National Fraternal Order of Police, We Are the Thin Blue Line, Facebook (Sept. 15, 2020), https://www.facebook.com/watch/?v=3239842919426028.
321 Gail Mason, Blue Lives Matter and Hate Crime Law, Race & Just. (forthcoming 2021) (manuscript at 2), https://journals.sagepub.com/doi/abs/10.1177/2153368720933665.
322 Jessica Lussenhop, Mark and Patricia McCloskey: What Really Went On in St. Louis That Day?, BBC News (Aug. 25, 2020), https://www.bbc.com/news/election-us-2020-53891184.
323 Id.
324 ABC News, The McCloskeys Speak at 2020 RNC, Youtube (Aug. 24, 2020), https://www.youtube.com/watch?v=UJ62o7TGQlw (last visited Dec. 5, 2020).