Welcome to the Banana Republic

Have you seen Woody Allen’s Bananas? It’s about a banana republic where the new “dear leader” declares the banana to be the national fruit, that underwear shall be worn on the outside instead of under clothes, and that he must be saluted with a gesture that defies description. It’s a dictatorship.


But not even Woody Allen could have imagined that America would one day have a President who declares that “if I had a son he would look like” a young man who unfortunately became embroiled in a fist fight and was subsequently killed. And even in a banana republic, the Attorney General would never bother to criticize a jury verdict and consider turning a state criminal court matter into a federal civil rights case.


For an administration that is so concerned about the rights of “undocumented” Hispanics in this country, it strikes me as bizarre that it has now virtually labeled George Zimmerman as “Public Enemy No. 1.”


The federal government has no right to interfere in state courts, no matter what anyone thinks about a verdict.


The  jury system must be respected. It is the foundation of liberty in a civil society. Without a jury of your peers, you—not merely one man in Florida who happens to be of mixed ethnicity and possibly even mixed race—can be punished for exercising your rights under the Constitution of the United States and under the laws of the state in which you live.


(Jury verdicts are always right: even in the first O. J. Simpson trial. I will write another time about why the jury’s verdict in the Zimmerman case was not only right it was courageous, but for now I think we should all meditate on the meaning of what the federal government is proposing to do.)


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Be careful what you wish for, and what you wish will never happen

I’ve written several times that the only two chairs in a courtroom worse than a juror’s are the defendant’s and the witnesses’. I could wish nothing worse for my enemies than being forced to testify in front of a judge. I would never wish my enemies to be charged with a crime for fear that crime would be strangling me. Now I’m faced with the possibility of having to testify in a hearing, and the thought of it has sent me into a complete panic.

I suppose I’m not even supposed to talk about the issue that may require my testimony, so I’ll just say I’ve found proof of life after death in probate court.

Why am I so afraid of swearing an oath and testifying? I’m told that a lawyer would never understand that. I’m told that most people wouldn’t mind a bit. I’m told that most people think a reluctance to testify indicates a person has something to hide. Well, I have nothing to hide. I don’t feel I need to lie about anything. That isn’t the source of my anxiety.

Fear of Telling the Truth?

The belief behind the idea is that guilty people fear telling the truth, so they lie. But it’s also possible to fear making a mistake and inadvertently lying or even to fear that when you tell the truth you may not be believed.

I would never agree to take a lie detector test, for that reason, and that doesn’t make me guilty of anything. Even the law recognizes that lie detectors are not reliable determiners of veracity. Lie detector results aren’t allowed in court. But if a situation arose in which the cops felt it was a good idea to strap me into a lie detector, the situation would have to be dire, and as a consequence I would no doubt be as distraught as I am right now. That distress would undoubtedly register with the lie detector. The lines would jump up and down like crazy, even when they asked me my name.

Ken Alder’s The Lie Detectors is a fascinating, novelistic account of the invention and promotion of the lie detector among law enforcement. Alder concludes that “The lie detector and its progeny have been repeatedly denounced by respectable science—but since when has that stopped millions of Americans from believing in something, especially when the public media breathlessly extol its successes?”

Fear of Swearing an Oath

I wouldn’t like to be told to raise my right hand and swear to tell the truth, the whole truth, and nothing but the truth—whether it was “so help me, God” or not. I’m a word-monger and a literalist. I take words very seriously. I could swear to tell the truth, but only as I know it; since I’m not omniscient I would have some trouble with the simple oath to “tell the truth.” I could not swear with an easy conscience to tell “the whole truth,” not only because I lack omniscience but also because I know the whole truth is very complicated and it would take me a very long time to tell the whole truth as I know it and I doubt that any judge would sit idly by while I rambled on and on (as I am now). And I would feel uneasy about telling “nothing but the truth,” since I might inadvertently tell something untrue or half true.

When I was sworn in as a juror, the clerk recited a very bizarre oath, which I must say I swore to “with mental reservations,” in the old sense of the word.  It had something to do with the “eyes of the all-seeing God.” I said, “I do,” when I didn’t have a clue what she meant by that, and I was literally sweating the whole time. A lie detector would have jumped off its chart.

Historically, “mental reservations” were the “out” used by Christians to avoid punishment for refusing to swear an oath. Mental reservations were a way of crossing your fingers while you hand was raised to swear an oath. By holding mental reservations, the Deity would understand that you intended to tell the truth or perform an honorable act (such as taking a high office) but that you did not necessarily mean the words of the oath literally.

In time, the authorities caught on and added to every oath the words “without mental reservation.” That precipitated a crisis of faith for some people. Many Protestants did not believe in oaths of any kind. The swearing of an oath was an act of faith for Catholics and some Protestants but a denial of faith for others. It’s rather like the controversy now over whether or not to lay one’s hand on the Bible (or Koran) when taking the oath of office.

So, I’m not the only person who starts shaking when asked to raise her right hand and swear. And I’m not the only person who would flunk a lie detector test even if all I was asked was my name or who would refuse to take one in the first place.

Honestly, if I’m called to testify I’ll have to take Valium to get through the experience.

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Guest Blog: Historical Mystery Writer, Mary Reed

Juries aren’t universally involved in settling court cases but many aspects of the trial experience are, and one of them is the matter of witnesses.



bookImageSmall_mini In the Byzantine Empire, which we explore in our historical mystery series, oral wills were legal provided certain requirements were met, most importantly a set number of witnesses. It was this that caught our attention and formed the basis of the plot for Five For Silver, published by Poisoned Pen Press in 2004. Set during the 542 CE Justinianic plague, our protagonist John’s investigations begin after his servant Peter relates a vision of an angel, who revealed Peter’s old military friend Gregory had been murdered — as indeed proved to be the case.


In order to find the culprit John begins to trace Gregory’s movements, discovering that not long before Gregory died he had been among those who witnessed an oral will made by wealthy shipping merchant Nereus on his deathbed. The necessary seven witnesses had been hastily gathered together by Archdeacon Palamos, who was visiting Nereus to offer spiritual comfort. Due to the unusual circumstances, the assembled men form a remarkably motley band. In addition to the archdeacon himself, there was Gregory, who was there to see Nereus on a matter of business, and the courtier Crinagoras, who had escorted Gregory through the plague-ridden streets. There was also Aristotle, a purveyor of somewhat suspect oracular devices who had brought another prophetic artifact he was hoping to sell to Nereus. Nereus’ house steward was also chosen as a witness, but since he was ill his place was taken by another of Nereus’ servants, Cador. There was also a holy fool who happened to be passing by the house at the time so he and Byzos, the driver of the cart he was riding in, were also conscripted as witnesses. Despite the solemnity of the occasion, the holy fool insisted in dancing with the archdeacon although this was not the strangest event that occurred in the course of John’s quest, which was exacerbated by the plague’s frightful death toll. For it was entirely possible any or all of the remaining six witnesses sought might have fled the city or be dead themselves.


One of the most far reaching legacies of sixth century emperor Justinian I, ruler of the Eastern Roman Empire, namely was his codification of Roman law. The resulting Corpus Iurus Civilis, or Body of Civil Law, included the Codex Justinianus (529), a compilation of then current law; the Pandects (533), the writings of generations of Roman jurists; and the Institutes (535), which included extracts from the previous two works and were intended as a kind of text book. Title X of Justinian’s Institutes was devoted to wills and inheritance. Among other matters relating to this topic, it provided guidance on dealing with persons incapable of making a will, disinheritance, heirs, voided wills, legacies, and codicils. J. B. Moyle’s 1913 translation of the Institutes states that to be valid, a will had to be executed at one time in the presence of seven witnesses who must sign their names and affix their seals to the document. They could, however, all use the same seal or one belonging to someone else. Persons barred from acting as witnesses included women, slaves, those who were deaf and dumb, and lunatics. Furthermore, a will could not be witnessed by an heir and certain relatives of the heir. The Institutes stated it did not matter on which substance a will was written, and it was also legal to make an oral will by declaration before seven witnesses. Moyle translates this important passage as follows:



  • When, however, one wishes to make a will binding by the civil law, but not in writing, he may summon seven witnesses, and in their presence orally declare his wishes; this, it should be observed, being a form of will which has been declared by constitutions to be perfectly valid by civil law.

This type of will is known as a nuncupative will, from the Latin meaning roughly name-to-take. Title XI of the Institutes provides for oral wills executed by soldiers, exempting them from the usual requirements under which wills were normally made “in consideration of their extreme ignorance of law”. However, these oral wills must have been made while the soldiers were on active service. In other circumstances they could not make a will in this fashion.


The notion of oral wills has persisted for centuries. During the two World Wars British soldiers about to be sent to the fighting lines or who were already there could write their wills using forms provided by the various service branches or use a form in their pay books, assuming they had not already made a will in civilian life. According to he National Archives of Scotland, the commonest kind was the unwitnessed will written on the soldiers’ pay book forms. A nuncupativewill was accepted if none of these documents were available, and in such cases the War Office accepted statements from fellow soldiers, the deceased’s family, and friends as to what the testator had said were his wishes. The Scottish archive has examples of the paperwork associated with this type of will, a sample of which can be viewed at http://www.nas.gov.uk/guides/soldiersWillsExample4.asp . Letters in which the soldier stated his wishes as regards his property were also considered nuncupative, but were more commonly seen in the First World War than the second.


Justinian’s codification played an important role in the development of civil law in many European nations, beginning in the late eleventh century. From there the civil law spread to the colonies of continental countries. Here in the US Louisiana’s legal system includes elements of civil law based upon Justinian’s code through its status as a former French territory. Not all US states accept oral wills although some permit them in special circumstances. However, generally speaking they must have been made on a person’s deathbed or by members of the military or marine services while serving in an armed conflict. In addition, a specified number of witnesses are required and the testator’s wishes must have been written down within a set time after they were made, with application for probate filed within a certain period after death. In some cases there are limitations on bequests made in this fashion, such as a stated amount for the total value of personal property. States that have or had statutes allowing for oral wills include New York, Ohio, Missouri, Oklahoma, and Washington State. The ability to make this type of will is recorded before the founding of the United States. Two examples of colonial oral wills dating from the 1750s are briefly noted on the Fredericksburg Genealogy Regional Society’s website at:



http://www.fredericksburggenealogy.org/Newsletters/2004%20%20FRGS%20nl/FRGS_2004Fall_RTF.rtf


In both these cases, legacies were confirmed on oath by two witnesses.



—MR–

THE BIO NOTES:

The husband and wife team of Mary Reed and Eric Mayer published several short John the Eunuch detections in mystery anthologies and in Ellery Queen Mystery Magazine prior to their first full length novel, One For Sorrow (1999). Their protagonist’s adventures continued in Two For Joy (2000), a Glyph Award winner in the Best Mystery category. Two For Joy also gained an Honorable Mention in the Glyph Best Book Award list and in addition was a finalist for the IPPY Best Mystery Award. Three For A Letter (2001), Four For A Boy (2003), and Five For Silver (2004) followed. The latter two novels were nominees for the Bruce Alexander History Mystery Award. Five For Silver won the 2005 Glyph Award for Best Book Series. In June 2003 the American Library Association’s Booklist Magazine named the John the Eunuch novels as one of its four Best Little Known Series. Six For Gold appeared in 2005 and Seven For A Secret in 2008. They are currently writing the as yet untitled next novel in the series. Their website can be viewed at http://home.epix.net/~maywrite/