Leander Shaw, Jr. Dies at 85

Leander Shaw, Jr., the first African-American Chief Justice of the Florida Supreme Court, died Monday, December 14, 2015 following an extended illness. Shaw’s legal career in Florida spanned over 40 years, including stints as a public defender, prosecutor, appeals court judge, and law professor in addition to his time on the state’s highest bench.

Florida Supreme Court Justice Leander Shaw, Jr. (circa 1985)

Florida Supreme Court Justice Leander Shaw, Jr. (circa 1985)

Justice Shaw was born in Salem, Virginia in 1930 and educated at West Virginia State College and Howard University in Washington, D.C. He received his law degree in 1957 and moved to Tallahassee to accept a position as professor of law at Florida A&M University. Shaw took the Florida Bar exam in the old DuPont Plaza Hotel in Miami in 1960, but because of his race was not permitted to stay there. According to Florida Supreme Court officials, when Shaw was admitted to the Bar that year he became one of only about 25 black attorneys practicing in the state at the time.

The DuPont Plaza Center and Hotel in Miami, where Justice Shaw took the Florida Bar Exam in 1960 but could not stay as a guest (photo 1962).

The DuPont Plaza Center and Hotel in Miami, where Justice Shaw took the Florida Bar Exam in 1960 but could not stay as a guest (photo 1962).

Shaw moved to Jacksonville and began practicing as a private attorney. His office was located in the old Masonic Lodge at the corner of Broad and West Duval streets downtown. As a young African-American attorney practicing when Jim Crow was only just beginning to loosen its grip on Southern society, “Lawyer Shaw” found himself dispensing lots of pro bono advice. One of Shaw’s friends, Ray Barney, noted that Shaw was one of very few black attorneys available in Jacksonville at the time, yet he was always willing to help everyday members of the community understand the legal system and their rights. In 1990, Barney told Florida Magazine that Shaw “probably would have made a lot more money if he’d paid less attention to regular folks. But I always thought he was more like a pastor in a church than a lawyer.”

An early postcard of the Masonic Temple in downtown Jacksonville at the corner of Broad and Duval streets where Justice Shaw had his law offices during his earlier days as a young attorney in private practice (postcard circa 1915).

An early postcard of the Masonic Temple in downtown Jacksonville at the corner of Broad and Duval streets where Justice Shaw had his law offices during his earlier days as a young attorney in private practice (postcard circa 1915).

Shaw’s commitment to the public became more official when he was recruited as an assistant public defender for Duval County. In 1969 he became head of the Capital Crimes Division of the State Attorney’s staff and an adviser to the grand jury. In 1974, Governor Reubin Askew appointed Shaw to the Florida Industrial Relations Commission, where he served until Governor Bob Graham appointed him to the First District Court of Appeals in 1979.

Governor Graham appointed Leander Shaw as a Justice to the Florida Supreme Court in 1983, making him the second African-American to serve in that capacity. The first, Joseph Hatchett, had resigned his post a few years before to become a federal appeals court judge. Shaw served his term as Chief Justice from 1990 to 1992. He retired from the bench in 2003, but leaves behind a strong legacy of public service and dedication to the law.

Justice Leander Shaw, Jr. (left) shaking hands with 11th U.S. Circuit Court of Appeals judge Joseph Hatchett at a ceremony in Tallahassee. Hatchett was Florida's first African-American Supreme Court justice prior to becoming a federal judge (photo 1990).

Justice Leander Shaw, Jr. (left) shaking hands with 11th U.S. Circuit Court of Appeals judge Joseph Hatchett at a ceremony in Tallahassee. Hatchett was Florida’s first African-American Supreme Court justice prior to becoming a federal judge (photo 1990).

State of Florida vs. Luke, a Slave (1853)

This series highlights antebellum cases from the files of the Florida Supreme Court and its predecessor, the Florida Territorial Court of Appeals.

Many antebellum cases before Florida’s Territorial Court of Appeals and Supreme Court involved individuals who left little evidence of their lives in the historical record. This is especially true for cases involving African-American slaves.

In 1853, the Florida Supreme Court considered the case of State of Florida vs. Luke, a slave. Luke stood accused of committing a crime at the behest of his master, Abraham Dupont. Following his master’s orders, Luke killed mules belonging to Joseph M. Hernandez, a planter and Florida militia commander during the Second Seminole War (1835-42). The animals, according to Dupont, had ravaged crops on his land. Adam, a slave and head driver for Hernandez, discovered the mules dead along the road that connected the two plantations with St. Augustine, and traced the source of the deed to Luke.

Page from the Florida Supreme Court case State of Florida vs. Luke, a Slave (1853)

The Circuit Court located in St. Johns County had, in 1851, found Luke guilty of “malicious destruction of property” under Florida’s penal code of 1832. Another issue of note from this case was that Dupont had allowed Luke to carry a firearm, as evidenced by his shooting of the mules. Florida law was unclear about this point. In practice, masters strictly prohibited slaves from keeping firearms, except in cases such as Luke’s where the weapon had a specific purpose.

The lawyer for the defense, McQueen McIntosh, challenged the Circuit Court decision on the grounds that slaves were not afforded protection under the penal code as revised in 1832. The 1832 law outlined separate punishments for blacks and whites who committed the same offense. The debate then turned to whether the 1832 law adequately covered the questions raised by the crimes committed by Luke, or if he should be tried under an earlier law of 1828, specifically, in accordance with the slave codes reserved for bondsmen. In essence, the case boiled down to whether or not Luke was capable of exerting free will, or if he had to kill the mules because he was ordered to do so by his master. If he had no choice in the matter, should his master instead be charged with the crime?

These questions proved too complex for the court to fully consider and the case was vacated on procedural grounds. The judge found that in order to perpetuate the institution of slavery and the superiority of whites over blacks, Luke could not be charged under the 1832 law. The case also brought forward issues involved with the interpretation of the 1828 slave codes, but the court declined to engage the myriad problems arising from the 1828 and 1832 laws as they related to slaves.

This case demonstrated the powerlessness of the enslaved in the antebellum legal system in Florida. As made clear in the case of Luke, white jurists would rather forgive his crimes than allow a slave to stand trial on equal footing with white men.

Justus R. Fortune vs. City of Tallahassee (1850)

This series highlights antebellum cases from the files of the Florida Supreme Court and its predecessor, the Florida Territorial Court of Appeals.

In 1850, the Florida Supreme Court considered the case City of Tallahassee v. Justus R. Fortune. The case came to the state’s highest court on appeal from Leon County. It centered on the responsibility of an incorporated body, in this case the City of Tallahassee, for maintaining a public road within its boundaries.

Page from Florida Supreme Court case Fortune v. City of Tallahassee (1850)

Justus R. Fortune was a resident of Tallahassee. According to the case file, he operated a tin shop along a city-maintained road and owned at least one horse. On October 3, 1848, Fortune lent his horse to George W. Hutchins, who borrowed the animal for an unspecified purpose.

When Hutchins finished his business and returned the horse, he hitched it to a post near Fortune’s tin shop in the customary fashion. At some point, the horse broke loose from the hitching post and escaped. A thorough search of the surrounding area failed to recover the animal.

The next day, Fortune discovered the horse, badly injured, at the bottom of a ditch that crossed the city road adjacent to his property. The horse later died. He blamed the City of Tallahassee for failing to maintain the regularly-traveled public thoroughfare, as evidenced by the “nuisance” ditch, which had resulted in the death of his horse. Fortune sought to recover $125 from the city as compensation for his loss.

Fortune’s case against the city rested on language contained within Tallahassee’s Act of Incorporation. According to the Act, the city had both the power and the responsibility to “prevent and remove nuisances” within its corporate limits. In this case, the section of road in question existed firmly within city limits, and therefore, Tallahassee officials had the responsibility to provide for its maintenance.

Fortune’s legal representation cited various U.S. court cases from other states and English Common Law as precedent for upholding the principal that the City of Tallahassee bore responsibility for maintaining the road and answering for accidents such as that which befell Fortune’s horse. The court agreed: “…that the City of Tallahassee was guilty of a nonfeasance in permitting the nuisance mentioned…to remain…”

The only brief point of contention was whether Fortune had taken all necessary and deliberate care to protect his property. Could he be to blame for not better securing his horse? Whether Hutchins could be charged with negligence did not become an issue.

The court found that: “…if a person should go headlong with his beast upon a nuisance, which (with ordinary care) he might have avoided, he ought not to have damages for his loss in consequence of his own recklessness.” The court determined that citizens daily hitched their horses and other animals throughout the town along public roads. Sometimes these animals escaped. But, these escapes were certainly accidental occurrences, instead of widespread negligence.

This case established important precedent in Florida law, following English Common Law and decisions made by courts in other states. Overtime, the responsibility (and liability) of incorporated settlements to maintain public property within their boundaries extended far beyond roads to include all types of infrastructure, and even persons employed by cities and towns on official business. Cases like Fortune form the legal basis for the rights of citizens to make cities and towns responsible for maintaining public works and other manifestations of taxpayer-funded infrastructure within corporate limits.

Gideon v. Wainwright

March 18, 2013, marks the 50th anniversary of the U.S. Supreme Court’s landmark decision Gideon v. Wainwright. The decision confirmed the right of the individual to counsel, even in cases not involving capital offenses. U.S. Attorney General and Senator Robert Kennedy described the case as having changed the course of American legal history.

Petition for Writ of Habeas Corpus submitted by Clarence Earl Gideon

Petition for Writ of Habeas Corpus submitted by Clarence Earl Gideon

The case began when an obscure inmate in a Florida prison, Clarence Earl Gideon, picked up a pencil and began writing his own lawsuit against the Secretary of the Florida Department of Corrections. Before the case was heard by the U.S. Supreme Court, however, the Florida Supreme Court heard the appeal of the original conviction. Clarence Earl Gideon was convicted of robbery after the judge in a circuit court refused his request for counsel and he was forced to defend himself. He was convicted and sentenced to five years in prison. The Florida Supreme Court confirmed the circuit court ruling, denying Gideon’s appeal for a writ of habeas corpus, which would have freed him on the grounds that he had been imprisoned illegally.

In 1963, the Supreme Court unanimously overturned the ruling of the Florida court, thereby establishing the principle that state courts were required to provide defendants in criminal cases with legal counsel. The case was retried (this time with representation for Gideon) five months after the Supreme Court decision. Gideon was acquitted.

View Gideon’s historic petition for writ of habeas corpus on Florida Memory.

Florida State Prison mug shots of Clarence Earl Gideon: Raiford, Florida (1961)

Florida State Prison mug shots of Clarence Earl Gideon: Raiford, Florida (1961)

Portrait of Clarence Earl Gideon (1961?)