December 27, 2006
A Lionel Train in the Courtroom Posted by Ellen Feldman at 01:10 PM EST The current issue of American Heritage magazine has a delightful article by David Lander on Lionel trains, as American as mom and apple pie, as Christmasy as Santa Claus himself. The piece reminded me of my intense envy of my best childhood friend, who had a brother and therefore access, if only grudgingly, to a set of spiffy Lionel rolling stock, tracks, and accessories. The third of three girls, I had no such wonderment running around my basement. I was, however, surprised to learn from the article that in 1959 the founder of the company sold his interest to a great-nephew, Roy Cohn, the notorious legal aide to the heinous Senator Joseph McCarthy. The information reminded me of another unfortunate association in Lionel lore. In 1933, the criminal attorney Samuel Leibowitz, who defended Al Capone twice and was known as the next Clarence Darrow, agreed to represent the Scottsboro boys in the second round of trials in Decatur, Alabama. (The previous November, the U.S. Supreme Court had reversed the convictions of the nine young African-American men, who had been taken off a freight train in 1931 and charged with a rape that never occurred.) Leibowitz, who had wanted to be an actor during his undergraduate days at Cornell, was a flamboyant courtroom presence. He got Vincent (Mad Dog) Coll off from a charge of killing a baby with what became known as the Eskimo Pie defense, when he gave the judge, jury, and prosecutors ice cream popsicles to eat while he unmasked the chief witness, a police stooge, who claimed to be an Eskimo Pie vendor but turned out to know absolutely nothing about his product. He used the Christian Fish defense to get off a cop killer, who said he worked in a fish store but could not identify a single fish the prosecution brought into the courtroom, by pointing out that the fish market in question was in a Jewish neighborhood and the state’s attorney had not shown the defendant a single fish that went into gefilte fish. Leibowitz won acquittals in 77 of 78 first-degree murderer cases, with one hung jury, but he did not owe his success to courtroom high jinks alone. He liked to say he was not a great lawyer, only a thorough one. He crammed ballistics information to undermine the testimony of revolver experts, and read volumes on medicine and surgery to defend a doctor on charges of alleged malpractice. He was equally thorough in his preparation of the Scottsboro defense. In addition to studying the records of the earlier trials exhaustively and exposing mistakes and falsifications in the testimony, Leibowitz, who was paying his own expenses in the case, arranged to have the Lionel company build a miniature replica of the Alabama Great Southern freight train on which the rape was alleged to have taken place. The same cars were arranged in the same order they had been in on the original train, and the details were accurate down to the brass fittings. When Leibowitz brought his miniature train into court, even the hostile Southern jury and spectators were taken with it. Who does not love a model train? Then Leibowitz began his cross-examination of Victoria Price, one of the two young women who had cried rape. He was determined to use the replica to demonstrate that the incident could not have happened as she described it. The cross examination should have been a piece of cake. Leibowitz was a skilled trial lawyer. Price was an uneducated mill worker. But she was also a canny actor who knew how to play to the crowd of Southerners, eager to believe the accusations of a white woman against a group of black men. When Leibowitz asked if the Lionel train was a fair replication of the one she was on, she answered that it was different. “In what way?” he inquired. “That is not the train I was on,” Price answered. “Of course, you were not on this miniature train. I asked you if this is a fair representation.” “Just a little bit.” The sparring continued for some time as Price feigned stupidity and Leibowitz became more frustrated. Finally, Price administered the coup de grâce. “It was bigger, lots bigger. That is a toy.” The spectators loved it. The cards were stacked against the nine young men taken off a freight train on March 25, 1931. Neither the Lionel train nor the holes Leibowitz tore in the prosecution’s case, nor demonstrations across the country and around the world, could save them. The jury brought in a verdict of guilty with a death sentence, and the case dragged on for almost five decades and continues to reverberate today. Meanwhile the Lionel train remains on view at Cornell University Law School, a handsome tribute to America’s playful ingenuity and unconscionable injustice.
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