JUSTICE FOR ANGELO HERNDON JUSTICE FOR ANGELO HERNDONWhere justice is denied, where poverty is enforced, where ignorance prevails and where any one class is made to feel that society is an organized conspiracy to oppress, rob and degrade them, neither person nor property will be safe.
—Frederick Douglass, speech on the twenty-fourth anniversary of Emancipation, 1886, Washington, D.C.
On January 16, 1933, two months before Haywood Patterson’s second trial, nineteen-year-old Angelo Herndon stood before Judge Lee B. Wyatt in Atlanta’s Fulton County Courthouse to answer charges of inciting insurrection. This was a capital offense in Georgia.1 Herndon’s attorney, Ben Davis Jr., who was black, had been recruited by the ILD’s William Patterson. Davis was a recent Harvard Law School graduate and the son of “Big Ben” Davis, editor of the Atlanta Independent. John H. Greer, his associate and also black, maintained a small Atlanta practice. Like Leibowitz, neither of them was a communist. Unlike Leibowitz, they were young and inexperienced.
For nine months Herndon had been organizing unemployed workers in Atlanta and demanding rent relief on their behalf. He’d led demonstrations and protests throughout the city, and while his brashness had endeared him to his constituency, he’d been targeted by the local authorities.
On June 30, 1932, the Fulton County Emergency Relief Center ran out of funds. Herndon subsequently led an integrated hunger march of nearly a thousand people to the courthouse to demand that it be reopened. On July 11, he was arrested and charged with inciting insurrection. Under an 1861 Georgia slave statute, advocating unity between blacks and whites for any reason was punishable by death. Herndon was taken to the overcrowded Fulton Tower Prison, where he remained for six months awaiting trial. He and his fellow prisoners were often compelled to sleep on top of each other for lack of floor space. In August, when an elderly prisoner died there, his body was left for three days in a hot airless holding cell with six other prisoners.2 In December, Herndon’s attorney Ben Davis finally got him released on bail.
Herndon’s trial began on January 16, 1933, with County Judge Lee B. Wyatt presiding and the tall, lanky Assistant State Solicitor John H. Hudson, a National Guard colonel and Methodist minister, prosecuting. Herndon later reflected that Hudson represented “not only the majesty of the law, but the might of the army, and the sanctity of the church.”3
Tension between the black defense team on one hand and Solicitor Hudson and Judge Wyatt on the other was palpable. When Davis moved for dismissal, citing the defense that the ILD used in the Scottsboro appeals—that Negroes were excluded from jury service in Georgia—his motion was denied. When he questioned the validity of the anti-insurrection statue used to charge Herndon, Hudson objected and was sustained.
Assistant prosecutor L. Walter Le Craw read the indictment to the jury: “Pamphlets found in [Herndon’s] possession indicated that the [Communist] party urged confiscation of the land of southern capitalists for the benefit of Negro tenant farmers, replacement of artificial state boundaries with a unified Black Belt, and self-determination for the Negro majority including the right to secession.”4
When the jurors appeared confused, Hudson clarified: “Blacks and whites should unite for the purpose of setting up a Nigger Soviet Republic in the Black Belt,” he said bluntly.5 Davis’s objection was overruled.
The defense called several Emory University professors to testify that the literature found in Herndon’s room and placed into evidence was not insurrectionary. In his cross-examination, Prosecutor Hudson questioned the professors’ patriotism and dismissed the university as “a hotbed of iniquity” Davis countered that the KKK, not the Communist Party, was insurrectionary.6
Taking the stand, Angelo Herndon explained that the unemployed councils in Atlanta “organized both black and white workers together on the same basis of common problems and interests,” and he urged both races to put “this question of the white skin and the black skin behind them because both are starving and the capitalist class will continue to prey on this tune of racial discrimination . . . in order to keep the negro and white divided.”7
A more experienced defense attorney might have attempted to limit Herndon’s rhetoric, but Davis allowed him to continue. “Workers,” Herndon maintained, “have built up this country and are therefore entitled to some of the things that they have produced.”8
A broad-shouldered former college all-American football player, Davis patiently informed the jury that membership in the Communist Party was not illegal. Unfortunately, he failed to press the issue of the unconstitutionality of the Georgia statute, and that would become a problem later on.
The trial dragged on for three days, with Davis’s and Greer’s motions being overruled continuously. Most of the defense evidence submitted was dismissed as irrelevant and/or immaterial. Hudson and Le Craw’s objections, on the other hand, were uniformly sustained.
On the last day, Solicitor Hudson summarized the state’s case against Herndon. “Gentlemen of the jury,” he said, “you have heard the defendant lay down his defy to the State of Georgia. He is a confirmed revolutionist, with an unbreakable soul. But we accept his challenge. Gentlemen, when you go into the box, I expect you to arrive at a verdict that will automatically send this damnable anarchistic Bolsheviki to his death by electrocution, and God will be satisfied that justice has been done and the daughters of the state officials can walk the streets safely. Stamp this thing out now with a conviction.”9
In his 1937 autobiography, Let Me Live, Herndon recalled that, “as I listened to [Hudson], it struck me with full force that he had made a sensational impression upon both judge and jury. It became very clear to me why that was so. He spoke their language. He interlarded his lynch frenzy with goodly sprinklings from Holy Writ. Blood and piety, these are the two principle ingredients of boasted Southern civilization. Murder is perfumed with the altar incense of religion to hide its rotten stench.”10
In his summation, Ben Davis pointed to the irony of a justice system that would condemn a peaceful interracial protest as insurrectionary while refusing to prosecute lynchers. The judge glared at him as he continued:
The Rev. Hudson says Herndon is stirring up racial hatred by advocating the doctrines of workers organizations, but I ask since when did it become racial strife for Negro and white workers to organize together for the betterment of their conditions? Is it not because young Herndon sat before you today and told you in the words of a man and not those of a cringing coward that he would never give up his principle of fighting for the workers and Negroes, that he sits framed? Gentlemen, this very case is a blot upon American civilization which boasts of liberty, democracy, freedom of speech and press.11
On January 18, 1933, the all-white, all-male jury found Herndon guilty but recommended mercy. He was sentenced to from eighteen to twenty years at hard labor. Davis and Greer immediately filed an appeal to the Georgia State Supreme Court.
On May 23, 1934, the state’s high court affirmed Herndon’s conviction without hearing the case. The justices reasoned that, while his integrated hunger march never actually became violent, it had the potential to do so. And why? Because the literature describing the “Black Belt Self Determination Theory” found in his room described a mission they believed to be unachievable without the use of violence. The only good news was that their refusal to hear the case cleared the way for an appeal to the U.S. Supreme Court.
Clyde Johnson, a white twenty-three-year-old National Student Union organizer working in nearby Rome, Georgia, was dispatched to Atlanta to replace Herndon as coordinator of the unemployed worker movement. In July, Nat Ross also sent Hosea Hudson.
On July 4, 1934, ILD reps Donald Burke and Alice Burke took a replica of a Georgia “convict cage” to a number of northern, western, and border-state cities. They embarked on a ten-thousand-mile tour to publicize the Herndon case and to focus attention on the barbaric practices of southern prisons. This ominous-looking black van, outfitted with bunks, bars, and chains, was identical to vans used to transport convicts to and from worksites. Prisoners worked ten-hour shifts on road construction and maintenance projects chained together in groups of five with eight feet of space between them. No toilet facilities were provided, nor was there any shelter from the boiling sun.
The Burkes displayed this cage in major U.S. cities to demonstrate the fate that awaited Herndon. It drew huge crowds, and many people signed petitions demanding that Georgia governor Eugene Talmadge release the prisoner. In nearly every city, however, the rolling exhibit encountered problems with local police, most seriously in Denver and Chicago.12
In September, the Provisional Committee to Defend Angelo Herndon was organized in Atlanta to assist Ben Davis and to raise funds for Herndon’s defense. This alliance of community organizations, black clergy and professionals, students, and white liberals was underwritten by the ACLU.
Herndon’s trial became a turning point in Ben Davis’s life. During trial preparations when he’d discussed Marxist theory with his client, the young attorney realized that he had more in common with Herndon than he’d imagined. After Herndon’s conviction, Davis joined the party. Later, he reflected on that decision: “Credit for recruiting me goes not to the communists but to the savage white supremacy assaults of trial Judge Lee B. Wyatt. . . . It required only a moment to join [the party], but my whole lifetime as an American Negro prepared me for that moment.13
In 1935, after receiving numerous death threats, Davis moved to New York City and organized for the party’s Harlem branch. He also edited the Negro Liberator and later the Daily Worker. Herndon, freed on bail pending appeal, also moved to New York City. The NAACP offered to underwrite his appeal, but Herndon chose to stay with his ILD team, now led by Whitney North Seymour, a New York appeal litigation specialist and a former assistant solicitor general with the Justice Department. Seymour’s petition to the U.S. Supreme Court maintained that Georgia’s insurrection statute violated the Fourteenth Amendment. Disappointingly, the justices ruled that they had no jurisdiction over the case because Davis had not raised that constitutional issue earlier. Herndon was ordered back to prison on October 28, 1935.
Seymour, a civil libertarian, but not a communist, refused to be discouraged. He chose to continue attacking the constitutionality of the statute rather than challenge the all-white jury system.14 To that end, he served Fulton County sheriff James Lowry with a writ of habeas corpus declaring that Herndon had been illegally imprisoned. In December 1935, former governor Hugh M. Dorsey, lately appointed to the State Superior Court, unexpectedly ruled that the insurrection statute indeed violated the Fourteenth Amendment.
In January 1936, Georgia officials appealed Dorsey’s decision to the Georgia Supreme Court. Solicitor General John A. Boykin contended that “the doctrine of violence is in the mind of every communist.”15 When that court reaffirmed Herndon’s conviction, Seymour remained undaunted. The justices had provided him with a path back to the U.S. Supreme Court. In the meantime, Herndon was again freed on bail pending appeal.
The ILD subsequently arranged two coast-to-coast Free Angelo Herndon fund-raising tours. A powerful speaker with a compelling story, the young bespectacled and always dapperly dressed Herndon attracted large crowds. He often appeared on stage with the Scottsboro mothers and a very penitent Ruby Bates, and he was subsequently invited to the White House to meet with First Lady Eleanor Roosevelt.
In February 1937, in Herndon v. Lowry, the U.S. Supreme Court finally addressed the Fourteenth Amendment issue. On April 26, in a five-to-four decision, the justices struck down Georgia’s insurrection law as an “unwarranted invasion of free speech.” That ruling not only voided Herndon’s conviction, but for the first time in U.S. history, a state law had been overruled to protect Fourteenth Amendment rights. The Herndon decision extended federal protection to free speech.
After serving almost four years in prison, Angelo Herndon was freed in May 1937. When he returned to Harlem, he was elected national vice president of the Young Communist League and appointed to both CPUSA’s National Committee and the Executive Committee of the National Negro Congress’ Youth Division. Random House released his autobiography Let Me Live on January 1, 1937.
In his review for the April 1937 issue of the Communist, James Ford called it “the story not of one young man but of a whole people.”16
Herndon was also gratified when the Saturday Review called it “a significant case study in the evolution of political radicalism in America.” But Herald Tribune critic Rose C. Field upset him terribly with her comment that “it is clear that while the material is his, the writing was done by another hand.” [New York Herald Tribune, March 14, 1937] Herndon subsequently composed a three-page letter of protest to the Tribune’s editor, Stanley Walker.17
On February 26, 1938, Herndon married Joyce Chellis, a stenographer from Gadsden, Alabama, and brought her to New York City. From 1942 to 1943 he coedited the Negro Quarterly: A Review of Negro Life and Culture with novelist Ralph Ellison. They published social commentary, essays, and reviews by Langston Hughes, Sterling Brown, L. D. Reddick, Richard Wright, and Doxy Wilkerson, among others, and were partially supported by party funds.
During World War II, when Herndon took exception to CPUSA’s decision to mute its racial justice campaign, he alienated many party supporters. When he championed the Double V Campaign and came out squarely against the war, National Party Secretary Earl Browder turned on him and withdrew support for the Negro Quarterly. Herndon subsequently moved to San Francisco where he published the People’s Advocate. In 1944, the party expelled him for his continued outspoken opposition to the war.
By 1946, Herndon was in Chicago in business for himself. No longer a celebrity, he was trying to adjust to private life, something he’d never really experienced. That fall he returned to Harlem to visit his former publishing partner, Ralph Ellison. According to Ellison, “Herndon regaled [me and my] wife Fanny with his success as an insurance broker and merchandiser. He was selling furs to black women on the installment plan.”18
Two years later, Herndon was questioned by the House Committee on Un-American Activities about black radical Claudia Jones, a member of CPUSA’s National Committee charged with violating the Smith Act, which made it illegal to advocate the violent overthrow of the U.S. government. Herndon knew Jones as an internationalist and feminist from the Young Communist League, but he refused to answer any questions about her. Ultimately she was deported to England.
Herndon remained in Chicago during the McCarthy era, and for the last forty years of his life he wrote nothing, nor did he espouse any causes or advocate for any political positions. On December 9, 1997, at the age of eighty-four he died in Sweet Home, Arkansas.