Contempt of Court:

Purpose of the CLE Program

This case and story from a century ago exemplifies why lawyers as advocates for the poor and downtrodden are best positioned to take the steps necessary to uphold the rule of law.  Through the eyes and actions of the lawyers in this case, attorneys are able to see what it is like to represent a client who is the curse of society.  And it also shows how lawyers should use the law and the courts for the protection of individual rights even when the courts itself are part of the problem.  This case is a gut-check for lawyers about why they entered the legal profession.

Course Outline

00:00 - 00:20: The background and facts of the case, including the role of the news media (ABA MRPC Rule 3.6 - Pretrial Publicity) in inflaming the public and the role of courts in handling a highly racially sensitized criminal prosecution. This section also addresses the appointment of counsel, which in this case involved unqualified and incompetent lawyers (ABA MRPC 1.1). The court appointed lawyers begged the judge to not appoint them and stated repeatedly that they were not qualified, but the judge told them they didn't have to do any work on the case. (ABA MRPC 8.4).

00:20 - 00:30: The description of the trial, which was a complete shame. The defendant's lawyers wrote an open letter to the newspaper on the eve of jury selection saying they also thought their client was guilty and they did very little investigation. (ABA MRPC 1.1, 1.2, 3.4, 3.5 and 3.6.

00:30 - 00:40: The judge tells trial counsel to convince their client to waive his right to appeal and accept the death sentence, which they do. But the only African-American lawyers practicing in Tennessee and North Georgia step forward to file a surprise appeal. (ABA MRPC Rules 1.1, 8.4, 2.1, 3.4 and 3.6).

00:40 - 00:50: The appellate lawyers, facing death threats (their homes were burned by an angry lynch mob) filed the first ever federal habeas petition in a state criminal case (ABA MRPC 3.1), making constitutional claims that had never before been pursued or successful. In doing so, these two lawyers made legal history.

00:50 - 01:00: The conclusion and analysis: The black lawyers who handled the appeal were the model for all lawyers. They are exactly the legal counsel that the ABA MRPC describe in the Preamble when it says lawyers are an "advocate, a lawyer zealously asserts the client's position under the rules of the adversary system." The trial counsel, prosecutors and trial judge were the opposite of what is ethical or professional. Because of this case, the Chief Justice of the United States in 1908 asked the American Bar Association to study establishing a set of guidelines that would later be called the Canon of Ethics.

Handout Materials:

Contempt of Court & the ABA Model Rule.pdf

Outline of the Ethics/Professionalism Issues.pdf

Mark's Bio:

For more information about Mark's CLE's, please contact Mark Curriden at 214.232.6783 or

Key Points in the CLE Presentation & Supporting Materials

(1) The book involves the first black lawyers to practice law in the South, who took over the case from white lawyers who abandoned their black client in the face of violent threats from the public.

(2) The book involves the first federal habeas petition filed in a state criminal case in the U.S.

(3) The book involves the first African-American attorneys to take a case to the U.S. Supreme Court.  They risked their lives and careers in defense of a client.  In doing, the lawyers showed incredibly bravery and an amazing understanding of constitutional rights and the need for zealous advocacy.

(4) The book details the first time the Supreme Court intervened in a state criminal matter and issued its first ever stay of an execution in a death penalty case.

(5) The book takes an inside look at lynchings in America and the impact of lynchings on the U.S. justice system, and the role of lawyers.

(6) The book tells how the Supreme Court for the first and only time in history ordered the arrest of parties before it, charged them with criminal contempt of the Supreme Court and a historical criminal trial before the Court with the justices sitting as jurors.

(7) The book details how the Supreme Court took these extraordinary steps after determining that lynchings were undermining the rule of law in this country.

(8) The book shows how the justices, by taking these significant measures in this case, opened the door for the federal courts to intervene in future state court matters.

(9) This amazing case and the story behind it had been buried in history prior to the publication of the book.

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