Herndon v. Lowry: 1937

From the beginning, the Herndon case was both a legal challenge and a political symbol. His cause was taken up by the International Labor Defense, a Communist-led organization that specialized in defending leftists. The ILD secured two young black Atlanta attorneys, Benjamin J. Davis, Jr., and John H. Geer, as his counsel. They agreed to present a broad political defense that would concentrate on the absence of blacks from Georgia juries, the unequal treatment of black defendants, and the unconstitutionality of the insurrection statute.

The young defendant shared the political view of his case and was eager to become a martyr for his cause. When his time to speak came, he delivered an impassioned 20-minute attack on the "capitalistic class" for fostering racial segregation in the South. His lawyers, Davis and Geer, were more circumspect. They brought up the matter of the exclusion of blacks from Georgia juries at the beginning of trial, but Judge Lee B. Wyatt dismissed that argument. They contended that the Communist Party was legal and that Communist doctrines were available in Georgia libraries. But they failed to raise the issue of constitutionality except in a brief motion at the beginning of the trial—a mistake that was to be costly for Herndon. In his summation, annoyed by the contempt of the judge and the all-white jury, Davis became more political; he charged the prosecution with waving "the bloody flag of racial prejudice" and declared the indictment "a blot on American civilization." Unimpressed, the jury found Herndon guilty of insurrection, recommended mercy, and set his sentence at 18-20 years.