Judge Porter & The Unwinnable Case: Antebellum Justice in Mobile, AL
I came upon this fascinating true story of Benjamin Porter (or Judge Porter) in my preparation for my Boyington podcast with fabulous local author Mary Palmer. Palmer has written a new book on the Boyington case. If you are looking for a cool TRUE CRIME book and podcast interview involving Mobile Mystery, history, prostitutes, murder, injustice, botched executions, & supernatural trees, by all means purchase the book (I did) and listen to the podcast. In the podcast Mary and I tackle the guilt, innocence & tragedy of Charles RS Boyington case.
Porter has no connection to the Boyington case. However, he was law partners with Boyington’s prosecutor, James Dellet, so he was aware of the case and the tragedy at the gallows. Porter became a strong advocate speaking out against capital punishment, and one cannot help but think the Boyington affair played no small part in it.
The story I am about to share is a true one and involves antebellum justice in Mobile County and the remarkable bravery of a lawyer who had the guts to fight for his clients- two slaves Larkin & Henry.
Porter first came to Alabama from Charleston, South Carolina. He reportedly arrived in Alabama with “fifty cents in his pocket.” Porter initially practiced medicine, but a fateful criminal trial would steer his career in a different direction. In 1831, when a fellow South Carolinian was indicted for murder by authorities in Claiborne, Alabama, Porter offered his services in defense of the accused. During Porter’s closing argument on behalf of the prisoner (acquitted), another attorney present was so moved by Porter’s performance he reportedly quipped, “Throw your pill-boxes to the devil, and come into my office.” That attorney was the well-respected James Dellet, Esq. (Boyington’s prosecutor)
Porter would later come to Mobile to practice law. In one case in Mobile, Porter was assigned the task of defending “two negroes” [Larkin & Henry] who were charged with burglary- breaking into the dwelling house of another and stealing property valued at more than $20. The defendants were later found in possession of the stolen property and confessed to authorities. Their guilt was beyond all doubt. A trial would be a waste of scant public resources and a waste of the jurors’ time.
We are told that the city fever was high in anticipation of the capital case as it had been “several years” since a jury had returned a capital murder verdict. Additionally the accused were slaves.
The prosecutor urged Porter to confess the case and plead his clients guilty. Porter refused. He insisted on a trial. As Porter would later recount the events, under the laws of the State of Alabama, his clients had not committed the crime of burglary. The judge and the jury were vexed at why any attorney would engage in a hopeless defense. When Porter stood to address the jury, both the jury and judge turned their backs on him. Porter tells us the trial took all day and into the night. After breaking for the day, Porter struggled with the prospect of his clients’ certain death if convicted. Porter was not only a zealous advocate for his clients, he was a zealous advocate against capital punishment. Fearing the worst, he awoke and went into his office at midnight working until dawn, strategizing a course of action to save his clients’ necks.
Porter addressed the court the next day and reminded it that the criminal code of Alabama did not attempt to define burglary, so reliance must be had that at common law unlawfully entering a “dwelling-house, in the night time, with intent to commit a felony.” Porter then with laser like precision zeroed in on the State’s most vulnerable element. The State of Alabama criminal code defined a felony as “any offence, for which the offender, on conviction, shall be liable by law, to be punished by death, or for which imprisonment in the penitentiary is made the appropriate punishment.”
The offense for which the slaves were charged was punishable by whipping only. Clearly this offense if committed by a white was a felony. However, Porter argued that his clients were slaves and were governed by a separate and distinct punishment- whipping, neither a felony nor a penitentiary offense.
The judge had no choice but to charge the jury accordingly, and he did as Porter had urged. The judge said “he could not lay his head peacefully upon his pillow, if he charged otherwise.”
The slaves were acquitted and according to Porter “the negroes fell on my neck, and cried aloud.”
Porter had brilliantly turned antebellum slave justice on its head and gained his clients’ acquittal. Porter had accomplished the impossible-winning the unwinnable case.
This is an interesting case for many reasons and represents the highest ideals of an advocate tasked with defending an unpopular cause in support of society's most vulnerable with a hostile judge, prosecutor, and jury, when the stakes could not have been higher.
In 1840, Porter accepted an appointment as a judge in Mobile's newly created tenth circuit.
Matt Green represents persons in a wide variety of criminal and constitutional matters. He represents personal injury victims as well. Matt served as a municipal court traffic court judge in the City of Mobile and the City of Saraland for nearly a decade. Before that Matt prosecuted major felonies, traffic homicides, and violent crimes in the Baldwin County District Attorney’s Office. He teaches trial advocacy to Mobile Police Cadets and speaks to the Mobile County Court Referral Victim Impact Panel. Matt also advocates for free speech, economic liberty, and due process. He is host of a know your legal rights podcast CHANNELING ATTICUS where he talks law, history, and current events. He may be reached at 251.434.8500 or by e-mail at firstname.lastname@example.org or by Twitter @greenlawoffice
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