Literary Criticism and the Casey Anthony Trial

Ever asked yourself why Borders is bankrupt? No, I haven’t either, because I know why it’s bankrupt: their supplier, the American publishing industry, is intellectually and morally bankrupt. American publishers have been shoving garbage down America’s throats for decades and gifting their friends with 6- and 7-figure book deals while paying only pennies to serious professional writers.

You don’t agree?

Casey Anthony prosecutor Jeff Ashton has announced a book deal with William Morrow for a 256-page hardcover titled Imperfect Justice: Prosecuting Casey Anthony. It will go on sale before Christmas so we can all give copies to our friends and relatives. (What a nice gift to find under the Christmas tree!)

Sidebar: I suspect William Morrow is hoping for a holiday hit, but the year-end holidays aren’t the top holiday for book sales. That’s Mother’s Day (I kid you not). Hmm. Casey Anthony on Mother’s Day.

Since Ashton and his publisher have already decided on a list price and know the total number of pages, that tells us he finished the manuscript weeks ago.  The verdict in the trial was announced only 8 weeks ago on July 5. Assuming Ashton spent six weeks full-time on the manuscript and that the average 300-page book is about 60,000 words, then Ashton cranked out about 1,429 words per day with no breaks.

On a good day, I can write 2,000 words, but I spend a horrific amount of time on revisions after the manuscript is done. Anyone who reads this blog knows that I can’t whip out 500 good words in a morning. But, of course, maybe Ashton is some kind of “savant” and, of course, I’m no Jane Austen.

Why Ashton and Not Baez?

Jeff Ashton will go down in history—if at all—as a loser. The only reason William Morrow gave him a contract is for the cache of Casey Anthony’s name. Ashton is feeding at the same trough as all the other exploiters of the death of Caylee Anthony.

The person they ought to have offered a book deal was the lawyer who pulled off one of the greatest coups in legal history, Jose Baez (who appears to be in talks with agents now). I might read a book by winner Baez; clearly he’s taking his time to do it right. He also understands that anything he says or writes now, during the appeals, can only hurt his client. (I wonder if Ashton gave any thought to how his book might affect the appeal of the lying charges.)

Linda Drane Burdick could probably write a good tell-all behind-the-scenes book, too, about how Ashton flubbed it. Early on in the trial, media commentators said, “This is really her case, not Ashton’s.” Then, as the trial progressed, it became obvious that Ashton loved the limelight too much to sit in the background while she handled “her case” quite competently. Instead, Ashton relegated Ms. Drane Burdick to the role of arguing the law before Judge Perry while the jury was out of the courtroom.

Ashton lost the case. He made a mess of the forensic evidence. The jury knew this.

Sidebar: One of my favorite moments in the trial was when Jose Baez cross-examined forensic entomologist Dr. Neal Haskell and nagged him into making the incredibly stupid claim that “There’s a difference between garbage and trash.” I’m sure everyone on the jury thought as I did that the scientist must think we’re all incredibly stupid to try that one on us. But Jeff Ashton believed it and repeated the testimony during his closing.

Even so, a Jose Baez book could not have saved Borders. Not even a book by the infamous evil-doer herself could have done that. By the time any of us first heard of Casey Anthony, Borders was doomed, because American publishers publish very little worth reading.

Jury Duty in Ancient Athens

American juries are “juries of one’s peers.” We rather arrogantly assume ours is the most advanced, democratic form of jury and that the modern jury system is the best justice system history has produced. At least I certainly thought so until I visited the Agora Museum in Athens, Greece, housed on the site of the Stoa where Socrates, Plato, and the other great Greek philosophers gathered to discuss concepts such as justice. Now I think we might learn a few things from the ancient Greeks.  Athens-Jury-Duty Every citizen of Athens was eligible for jury duty. Juries could be comprised of the entire citizenry of around 5,000 men or as few as eleven (it was always an odd number, though).

The marble slab to the left is the ancient jury-selection machine, which is now on display in the Agora Museum (I took the photo in Sept. 2009).

What looks like marks on the marble slab are actually thin slots carved into the stone. Each row of eleven slots was used to select jurors.

When called to jury duty, each man presented himself at a room in the Stoa where the presiding magistrate’s offices were housed along with the jury-selection machine. There the citizen inserted a small, thin, lead ribbon with his name written on it (the rectangular objects in the lower left) into a slot in the jury-selection machine.

A funnel containing a number of white and black marbles was then inserted into a hole in the upper-left corner of the tablet. The marbles drained from the funnel into the hole and then down the left side. At the beginning of each row of ID tags was a window through which the resulting column of marbles could be seen. Where a white marble came to rest indicated a row of selected jurors. A black marble indicated a row of dismissed jurors.

The discs in the lower right of the picture were used as verdict ballots. There were two types of ballots: the guilty ballot had a small, solid knob in the center; the not-guilty ballot had a small, hollow knob in the center. Jurors carried one of each with them into the trial, which took place in a nearby theater, such as the Theater of Dionysus at the base of the Acropolis. They held the discs in their hands with thumbs and fingers covering the knobs. At the end of the trial, jurors dropped one of the ballots secretly into a verdict box. All verdicts were by a simple majority.

Athenian v American Juries

Initially you may think there is little difference between an Athenian jury and a jury of peers in the Anglo/American tradition, but in fact there are radical differences.

First, Athenian citizenship was strictly regulated: only men born in the Athens polis were entitled to citizenship. You could not become a naturalized citizen if you were born elsewhere, even if you lived in Athens most of your life and were rich as Croesus. Women were not citizens.

Second, there were no other qualifications for serving on a jury. There was no voir dire. No one could be excluded from a jury for any reason other than random chance. A juror could even be an injured party, such as the son of a man who was murdered. In fact, it was assumed that as a citizen you would be knowledgeable and have a stake in the outcome of every trial. Athenians were not concerned about prejudice: if a defendant happened to have made enemies, as far as the ancients were concerned he deserved to be punished.

But perhaps most importantly no citizen was anything but a peer of the accused, so the idea of a jury of one’s peers being a legal right was of no consequence. For there to be peers in a society, there must also be citizens who are not peers. In other words, “a jury of one’s peers” implies a hierarchy. In American justice this hierarchy is two-layered: at the top of the heap is the state and under that is the citizen-juror and defendant. In other words, American justice recognizes that the state has far greater power than any individual, so a just jury is one made up of individual citizens, not of government officials.

In ancient Athens, the state did not have as much power as a modern state. Athenian democracy was direct, not representative. Every citizen voted on everything. There were no Senators, as there were in Rome, for example. Every year, three magistrates (called “archons”) were elected by votes of the complete citizenry. And every year, at least one politician was voted not only out of office but out of the polis by ostracism. There were no judges and no prosecutors for the state. There was no police force. There were no career government bureaucrats. A defendant had no one to fear but the jury.

Rule of Law, Not of Judges

In Athens trials were not presided over by judges. This, too, was an aspect of their direct, radical democracy – and it is one that has great appeal for me.

Instead, the magistrate (or “archon”) responsible for the justice system took depositions and evidence from all parties involved in a dispute, including murders. He determined whether or not there was adequate evidence of a crime or of the identity of the perpetrator. Then he sealed all the evidence in a jar (an amphora, for example) or several jars for safe keeping until the trial. (I imagine these jars were well-guarded in the archon’s office.)

The accused then hired two or three types of representatives (who were not lawyers): possibly a sycophant (aka, a briber), a rhetor (a writer), and an orator. The victim hired only a rhetor and an orator.

Sidebar: Since I’m particularly interested in courtroom rhetoric, I find the role of rhetor fascinating. I might even write a story about an ancient rhetor, come to think of it.

The sycophant was a go-between. He offered the injured party compensation to withdraw the complaint, rather the way a civil litigator offers to pay damages to the plaintiff in a lawsuit.

The rhetors wrote arguments for the parties. The orators delivered the rhetors’ speeches during the trial (they were fluent speakers, rather like actors).

And, of course, the jars were opened at the trial, and the evidence for both sides was presented to the jury.

The beauty of this system is that the jury was the arbiter of the evidence. No judge excluded evidence as prejudicial to either side. No judge excluded evidence as irrelevant. The jury was entitled to know all the prejudicial evidence. And doesn’t that make sense? Isn’t any evidence of guilt prejudicial to the guilty party anyway?

Thus the character of the parties was taken into account by the jury. The jurors likely knew all the parties’ characters, because Athens was a small town in comparison to American cities. A person’s character was expected to have a direct bearing on how the jury interpreted the sworn statements of the parties.

Sidebar: What is the logic of withholding some evidence from a jury when judges always instruct juries to rely on their own judgment of the truthfulness of the witnesses and the validity of the evidence? A jury is told it can disregard all or any part of a witness’s testimony, including expert witnesses. If evidence is admitted by a judge, why should it still be questionable? On the other hand, if juries can evaluate evidence, then why should a judge exclude some evidence?

Of course, the Athenians had no CSI equivalents. Juries relied primarily on the character of the witnesses when evaluating their statements. But neither did Athenian juries have to listen to “junk science” testimony. No judge sat pompously on his bench and admitted into evidence spurious statistics and silly comparisons of hair and fiber samples as “consistent with” or “not excluded from” the defendant’s hair and clothing samples.

But That Was in Another Country, and Besides . . .

Most guilty verdicts resulted either in ostracism or death by hemlock. Athenian prisons held no one but condemned men and then only until they drank the hemlock. And no one but citizens were entitled to a trial. Women and slaves were simply killed if they acted up. Whether or not a defendant was actually guilty of a crime, the verdict always reflected the desires of the citizenry to be rid of the individual. Citizenship was a club from which you could be excluded if they took a dislike to you.

But a few aspects of the ancient system have some appeal to me:

  1. Jurors were chosen entirely at random without the filter of voir dire.
  2. While the identity of the jurors was public, their votes were completely secret.
  3. Judges did not withhold any evidence from the jury.
  4. Judges were not appointed for life or popularly elected: there were no judges, only a one-year-term archon.
  5. There were no lawyers, because the laws were well understood – requiring no interpretation during a trial.
  6. There could be no “hung juries,” because a single vote could decide the case. That meant no mistrials and no retrials at public expense. (I don’t advocate this for America, but the difficulty of reaching unanimous verdicts is certainly a modern problem.)


First gavel-to-gavel coverage?

According to the Madison, WI, Capital Times, the first-ever gavel-to-gavel TV coverage of a criminal trial was the Hoffman murder trial (1980), although Goldfarb’s TV or Not TV doesn’t refer to it. However, the newspaper article is a very interesting account of the high-profile trial of a gorgeous, young woman—the sort of criminal defendant that has since become de rigueur in tabloid news (think Casey Anthony).

I came across this long-forgotten case when searching for information about the effects of pretrial publicity, a topic that seems to have fallen by the wayside since the O.J. Simpson murder-trial circus. In his case, while pretrial publicity was enormous, we seem only to remember the televised trial itself. (You might also remember that the trial was broadcast on radio, too, so we wouldn’t miss a word while commuting to work.)

Apparently, a Madison reporter named Karl Harter wrote a true-crime account of the Hoffman murders and trial: Winter of Frozen Dreams, which might make interesting reading (though now out of print, it rates five stars on Amazon). The book was recently fictionalized and made into a movie of the same name—not well reviewed. The trailer rather says it all: I can’t figure out why the actress (Thora Birch) who plays Barbara Hoffman appears to be wearing a wig.

The trial verdict is interesting. Of the two murders charged, Hoffman was only convicted of one, presumably because of “reasonable doubt” about the way the second victim died. I suspect the jury was confused by the prosecution’s presentation.

Hoffman was accused of poisoning a man named Berge with cyanide and then asking a man named Davies to help her dispose of the body. Davies went to the police, but before the trial he was found dead in his bathtub, himself the victim of cyanide. However, he left behind letters recanting his testimony against Hoffman. The jury found her guilty of the first murder (Berge) but not the second (Davies).

Does this make sense? They must have felt that Davies’ death was suicide and his “deathbed” recantation of his accusations was false; therefore his accusations must have been true. But who commits suicide with cyanide? Besides, Hoffman was a biochemistry student at the UW-Madison—a student of chemicals like cyanide.

Trooper Higbee Trial: Accident Reconstruction

In the trial of Trooper Robert Higbee for vehicular homicide today a NJ State Trooper is testifying about his reconstruction of the accident. In his recitation of credentials he included a course he took at Northwestern University (of which I am an alum) in crash reconstruction. This reminded me that the nation’s first crime lab was established at Northwestern to investigate the St. Valentine’s Day Massacre. It was that lab that invented the technique of matching bullets to guns by the markings.

This connection to the St. Valentine’s Day Massacre is interesting—and not irrelevant. If you recall, the Capone Gang wiped out the Bugs Moran Gang in 1929 by disguising themselves as Chicago cops, then lined their rivals up against a wall in a garage and shot them with “tommy guns,” the automatic weapons of the day. In the aftermath a number of police officers were charged with corruption.

Police corruption, such as Chicago was plagued with during the Prohibition Era, is what citizens expect the state to investigate and prosecute—not, in my humble opinion, police lapses in judgment. If you read the NJ statute on vehicular homicide (link above) in lawyer Kenneth Vercammen’s Criminal-Jury blog, you will see that the only element of the law at issue in the Trooper Higbee case is “recklessness”:

  • “A person acts recklessly when (he/she) consciously disregards a substantial and unjustifiable risk that death will result from (his/her) conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the defendant’s conduct and the circumstances known to (him/her), disregard of the risk involves a gross deviation from the standard of conduct that a reasonable person would observe in the defendant’s situation.”

As always, it’s the words that matter. I hope the Higbee jury can read and that Judge Raymond Batten doesn’t rewrite the statute in his instructions to the jury—the way the judge did in the case for which I served as a juror.

Politics of Exegesis

19th century Russian author Fyodor Dostoyevsky’s novel, The Brothers Karamazov, includes what the author calls “a prose poem” entitled “The Grand Inquisitor.” In the story Christ returns to life and is recognized by everyone, including a Catholic Inquisitor who arrests Him and instructs Him that He cannot say anything lest He contradict the Church’s teachings. The Inquisitor’s arguments are devilishly clever and based on careful exegesis of the New Testament.

As I was rereading “The Grand Inquisitor” recently I couldn’t help but imagine a similar story in which James Madison suddenly reappears in the public gallery of the U.S. Supreme Court. Chief Justice Roberts recognizes him sitting there, and, rather than risk that Madison might speak, he has him arrested. Later the Chief Justice instructs Madison not to say anything about the way the Court has interpreted the Bill of Rights over the years.

Whether conservative “strict constructionist” or liberal believer in a “living document,” none of the Justices would really want to hear what the Founding Fathers and “original framers” of the Constitution have to say about American law today.

Exegesis of the Bill of Rights

Having minutely studied texts all my life (like a Jesuit monk or a poor Dickensian law clerk)—my eyesight failing until I can barely make out a character on a page—I know only too well that exegesis is a ridiculous endeavor. The older a text becomes, the more difficult it is for a contemporary reader to understand. In fact, as soon as a text is old enough to require exegesis some aspect of it is already irretrievably lost. An honest exegete can only strive to reconstruct its meaning. The next generation of exegetes is inevitably influenced by its predecessors’ misinterpretations—and errors cascade. (Noto bene: I am not espousing deconstructionism or Post-modernism.)

The 18th century Bill of Rights is relatively new in terms of textual criticism. We textual critics generally ponder shards of papyrus, not a massive elephant-folio-sized parchment under glass in the U.S. National Archives. The Constitution is written in English that’s less than 300 years old—such English is called “Modern” even though few contemporary English-speakers understand the vocabulary in the way James Madison did, let alone the grammar and syntax. And we have Madison and Hamilton’s contemporaneous Federalist Papers to help us understand what they intended the Constitution’s clauses and amendments to mean.

Even so, the meaning of the Bill of Rights is elusive.

Why is it that literate human beings spend so much time studying the words of seminal texts like the Bill of Rights? Why don’t we simply write our own “position papers” each generation instead of arguing over the meaning of ancient texts? Why is it that elaborate bureaucracies always grow around important texts, like barnacles on a ship’s hull?

The answer to the last question is obvious: lesser minds can sometimes recognize the greatness of a text and realize that like parasitical barnacles they can thrive off its greatness. Once that happens, of course, the original text is obscured by the layers of calcification.

But the answer to why we cherish ancient texts is difficult.

In the case of the Bill of Rights, I think part of the answer is that it was intended as a break with the past, not a continuation. (Perhaps the same is true of the New Testament.)

When a text represents a complete break with past tradition (if that’s really possible), then its adherents cannot point to precedents when justification is needed. Instead, the text has to be worded so that all its meaning is present in the text itself. When interpretation is required, interpreters can only refer to “internal evidence.” Under such circumstances, literate human beings quickly turn to close reading of the text (exegesis).

Inevitably, then, a time comes when the seminal text is overburdened with exegesis. Its original meaning is lost to anyone unfamiliar with the language in which it’s written—it becomes like runic inscriptions on a mountain crest. Exegetical camps evolve. Big-Egg-Endians fight with Little-Egg-Endians. Strict Constructionists take out their magnifying glasses to study the National Archives. Living Document-ists grab off their bookshelves a text on international law or the Geneva Conventions.

So, what prevents us from developing a new, seminal document under these circumstances? One incredibly important fact: Neither side wants to break with our past now. There are no alternative theories of government at this time that are superior to the U.S. Constitution.

My Solution

I have a suggestion. However, I’ve lived long enough to know that it’s highly unlikely to happen.

What if the U.S. Supreme Court decided to set aside legal precedents and instead chose to exclusively examine the seminal documents? (This isn’t the same as strict constructionism as I understand it. Even a strict constructionist refers to legal precedent. Most Supreme Court decisions either uphold or overturn a lower court’s ruling based on other precedents.)

The Justices would have to agree upon what the seminal documents are, of course: the Constitution, the Bill of Rights (and subsequent Amendments), the Federalist Papers, the Declaration of Independence, and possibly a handful of others.

Then, they would have to look carefully at British Common Law—and this would not be easy, because Common Law is fundamentally exegetical. The Brits have no constitution at all. However, it seems to me that the Founding Fathers have already done most of the work for the Supremes. The Founding Fathers expressly included in the Bill of Rights certain Common Law rights that were novel or controversial in the 18th century and neglected to mention certain rights that were so long-established that they didn’t bear repeating (general property and inheritance rights).

Not every issue that comes before the Supreme Court could be examined in this way. Abortion, for example, is a very modern issue, because of modern medicine. The right to privacy is also a new concern, because in the 18th century both isolation and physical barriers between individuals were common. (The Fourth Amendment’s “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated” is a specific property right and a habeas corpus right, not a privacy right.)

Reasonable Doubt

However, I believe that some issues (such as the issue of “reasonable doubt”) could be clarified and simplified—and revitalized—by a new exegesis of the original documents. As I have written elsewhere, the phrase “reasonable doubt” is a devilishly clever ruse to make it easier for juries to convict defendants, not a shield from false conviction.

Right to a public trial: What if the Constitution doesn’t mean “in public”?

Watching Trooper Robert Higbee’s trial for vehicular homicide today on CNN’s TruTV I became annoyed at the over-frequent, too-long commercial breaks—and it suddenly occurred to me: if I were on public trial I wouldn’t want the public to be forced to watch commercials as the quid pro quo for observing my ordeal.

Yet, in Trooper Higbee’s case over the past few days, this humble, non-lawyer viewer has watched public-service announcements involving traffic safety, as well as auto insurance commercials, not to mention tort lawyers soliciting clients and fast-food ads. Does this seem right from Trooper Higbee’s perspective?

  • Don’t get me wrong: I’m all for capitalism and for the media making a buck. It’s the American way. Money doesn’t grow on trees . . . . After all, I’m trying to sell my books right now (see Sidebar for “The Evil that Men Do” and “Chalk Ghost”). I understand that CNN’s TruTV isn’t publicly funded CSPAN. TruTV must sell advertising time in order to continue to operate and to make a profit. Commerce isn’t the issue I’m concerned about.

What I’m interested in is the issue of cameras in the courtroom.

Stay with Me

I’ve just begun reading Ronald L. Goldfarb’s TV or Not TV: Television, Justice, and the Courts (New York University Press, 1998). Fascinating read! Loaded with historical justice—my kind of book. This afternoon I hit Chapter 2, “The Free Press, the Fair and Public Trial: A Constitutional Conundrum.”

  • I’m a mystery writer. I don’t like giving away the ending. I want you to be patient and follow my logic to its conclusion. But, I’m going do to the unthinkable: spoil it.

I’m beginning to wonder if the Sixth Amendment “right to a public trial” means what we seem to think it means today: maybe in the 18th century it didn’t mean a defendant has the right to be tried in view of the public but to be tried at public expense. (This conclusion emerges not only from Goldfarb’s fascinating history of the Sixth Amendment but also from my understanding  of the evolution of the word “public.”)

To be continued . . . .

Trooper Higbee Trial: Jurors Who Know Something or Someone

TruTV InSession’s Jean Casarez has just reported that the judge in the Higbee trial is questioning jurors who have stepped forward to say they know some of the witnesses or other parties involved in the case and that one juror is a surveyor who says he can see things in the crime-scene photos that others may not.

The issue of jurors’ “experience” and “common sense” is a particular interest of this former juror. For some time, I’ve been researching the traditional admonition of judges to the jury to use their special qualities and abilities. Furthermore, I have a particular interest in the phrase “jury of peers” in the history of the English language and the jury system.

So—as I wait expectantly for the judge’s resolution of the renewed jury voir dire—I’m going to polish up my notes on the topic of what jurors traditionally are expected to know and what they are not.

To be continued . . . .

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When the Government Accuses Its Own: Trooper Higbee and Others

NJ State Trooper Robert Higbee is on trial for negligent homicide resulting from performance of his law-enforcement duties. It seems to me this is just another in a long string of such questionable prosecutions. (Believing firmly in the principle of the presumption of innocence as I do, the State of New Jersey is going to have to prove its case “beyond a reasonable doubt” before I will think otherwise.)

Americans are rightly wary of the power of government officials (especially police) to abuse their office. But isn’t it interesting that it’s never the “higher ups” who are charged and tried? It’s always the underlings who were “just following orders” who go to jail.

Consider these cases:

  • Several Bush White House lawyers are currently in jeopardy for recommending illegal interrogation techniques. But the techniques were approved of—and perhaps even urged—by Pres. Bush’s National Security Council. (BTW: In this article I do not intend to express any opinion as to whether or not “water-boarding” is torture.)
  • In 1989, Oliver North was convicted of various crimes related to his involvement in the Reagan-era “Iran-Contra Scandal.” North was a member of Pres. Reagan’s National Security Council. (BTW: In this article I do not intend to express any opinion about the Iran-Contra Scandal.)
  • In 1971, Lt. William Calley was convicted for the Mi Lai Massacre. His commanding officers were all acquitted, including Capt. Ernest Medina and Maj. Gen. Samuel Koster. (BTW: I will express the opinion that the Mi Lai Massacre was undoubtedly a low point in American history. I opposed the War in Viet Nam at the time and in retrospect still do in many, many ways—although I now know that American involvement in Southeast Asia prevented the region from becoming Communist, exactly as Pres. John F. Kennedy predicted it would.)

“Just Following Orders”

Since WW II and the Holocaust, when Nazi soldiers and police claimed innocence of mass murder because they were “just following orders,” Americans have rightly looked upon such a defense with disgust.

Unfortunately, it seems that we can’t distinguish between that specious excuse and the more difficult issue of government agents and officials performing their duties as they understand them even when this results in unanticipated “collateral damage” (another obnoxious term).

“Just following orders” is a phony excuse when the acts committed violate basic standards of human decency. People who swear an oath to do a duty have an obligation to resist orders that violate essential morality. You cannot claim you are innocent because you were following orders, when the orders are obviously evil.

But let’s not misunderstand the issued in the Trooper Higbee case: no one is accusing this police officer of an officially sanctioned atrocity. Trooper Higbee is not being accused of an abuse of his power. He did not, for example, beat up a suspect.

Fulfilling Duties

A sad fact of legitimate national defense and law enforcement is that the use of force often leads to injury and death of innocent bystanders. When a law officer obeys the policies of his superiors, this is not the same thing as using an excuse of “following orders.”

  • (In Trooper Higbee’s case I’m told his error was not slowing down at a stop sign in the performance of his duties. This seems like a minor infraction of police policies, not a criminal violation of the law. In other words, it sounds as if the prosecution’s claim is that failure to tap the brakes is negligent homicide. But would it have made any difference what speed the patrol car was going when it entered the intersection? How slow would he have had to be traveling in order to stop in time to avoid striking the two young victims? Is there a policy about how slow is slow enough?)

Why is it, then, that people who swear to do a duty, are given orders that seem reasonable, and then follow those orders are always the ones to be blamed when things go awry?

OK. Dumb question. We all know what’s up.

Nothing New

Well, guess what? One of the events that led to the American Revolution was just such an incident: the Boston Massacre Trial. And one of our country’s Founding Fathers went to the aid of the underlings who were supposed to “take the fall” for the real authorities.

The Boston Massacre

The very name “Boston Massacre” conjures up images of British repression of brave American patriots. However, the name was purposefully coined by Samuel Adams in order to inflame colonists against the British regime. It wasn’t really a ‘massacre.’ It was case in which a military guard unit fired into a crowd of violent rioters to prevent them from overrunning a port authority.

What was the Boston Massacre really? In March 1770, rioters attacked the Boston port authority, known as “the Custom House.” Captain Thomas Preston ordered his soldiers to protect the sentry there. Rocks were thrown at them. Some of the soldiers (who weren’t wearing helmets or body armor and were greatly outnumbered) thought they heard an order to “Fire!” They fired on the crowd. Five of the rioters died of gunshot wounds. In less than two weeks, Preston and eight soldiers were indicted.

Gov. Hutchinson of Massachusetts sent word to England for advice, which—when it came—was CYA for King George. To placate the colonists (who were British citizens and taxpayers), Hutchinson put the soldiers on trial for manslaughter in civilian (not military) court, even though they claimed to have been following orders.

Sidebar: The fact that the soldiers weren’t tried by a courts martial is very telling. They were accused of not following orders. Similarly, if Trooper Higbee’s error was in not following orders to slow down at stop signs during a pursuit, then it seems to me he should be subject to suspension or termination, not imprisonment for negligent homicide.

In fact, the British soldiers were performing their duty to protect the port. After all, that’s why the military was stationed in Boston.

Captain Preston was acquitted, because no could “prove” he yelled “Fire!” (Apparently the soldiers’ word for it wasn’t proof.) He went back to England, leaving the rank-and-file soldiers to face trial alone—without his support.

Six soldiers were acquitted, because no one could prove they had fired their weapons or had struck anyone. Two soldiers were convicted.

This was a clear case of soldiers doing their duty, whether or not they received an order to fire on the crowd. It’s absurd to imagine that their captain would have ordered them to guard a sentry post against a violent crowd by just standing there. They would have been derelict in their duty if they had let the Custom House be stormed. (If they simply panicked, then that would have been the captain’s failure to maintain discipline, wouldn’t it?)

The government’s intent in the Boston Massacre Trial was to put the blame for the deaths as far down in the chain of command as they possibly could. As far as King George was concerned, the rioters deserved what they got, but he had to dampen the anger of wealthy colonists who paid taxes into his treasury. That meant he couldn’t ignore the incident. Someone’s head had to roll.

Reasonable Doubt

John Adams, who defended the soldiers, understood exactly what the British government was up to. He wasn’t fooled by the trial judge’s admonition to the jury that they should acquit if they had any “reasonable doubt” about what happened at the Custom House. Adams knew it was his way of winking at the jury of angry colonists and assuring them it was OK to convict the soldiers (even if they suspected they were under orders), because any reasonable person could see that the soldiers had fired guns at “unarmed” civilians.

This was the British judge’s way of saying that “just following orders” is not an excuse.

No, I Don’t Approve of Police Violence

Please take the time to read this article carefully before you comment angrily on my stupidity. Like you, I hate it when people in positions of power torture and kill people.  I even hate it when soldiers and cops make negligent mistakes that result in innocents being injured and killed—everyone with a gun must behave responsibly. But mistakes aren’t the same thing as crimes. Negligence must be egregious before it becomes a crime.

What I’m saying is that people in authority ought not to be given a pass when the people who work for them make a mistake. The people who make the policies should pay the price when their policies are flawed, stupid, or evil.

And—most certainly—the justice system isn’t being just when it puts soldiers, police, and other official agents on trial so that their bosses can throw up their hands and say, “Hey, don’t look at me. I didn’t do it.” It’s those incompetent bosses we need to get rid of.

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Double Jeopardy: Déjà vu all over again

Recent mistrials followed by retrials (Sean Fitzpatrick, Phil Spector, and soon-to-be Raynella Dossett-Leath) reminded me that the 5th Amendment to the Constitution prohibits “double jeopardy.” Why isn’t a retrial following a hung jury a violation of the defendant’s Constitutional rights?

In fact, I just so happen to be proofing my first novel for publication (Verdict Déjà vu) in which a 1950s-era hung jury causes the judge and prosecutor to question whether they should seek a retrial. I could have sworn that in the old days (my childhood) hung juries often resulted in judges dismissing charges. And, of course, there’s the odd reversal of Sam Sheppard’s conviction by the U.S. Supreme Court—which for some reason permitted a retrial. Even more recently, I can recall trials that resulted in verdicts that judges overturned, thus preventing the opportunity for retrials (Dog-Mauling Murder and the Nanny Murder).

  • Sidebar: Sean Fitzpatrick was convicted the second time around. I suspect this was inevitable: it’s hard to imagine a jury pool that would not have heard that 11 of 12 jurors in the first trial found no cause for reasonable doubt. For in-depth information about the Fitzpatrick case, I suggest you take a trip to the Juror Thirteen Website.

Let’s consider for a moment the Raynella Dossett-Leath case in particular: how can the defense possibly do a better job the second time around or the prosecution do a worse job? (I’m not suggesting that the defense was perfect, that is, not to be improved upon, nor that the prosecution was so poor that they could do no worse.) It seems as if the first trial is being treated as nothing but a dress-rehearsal for the second. Time can only help the prosecution: they can shore up their evidence, call on more-expert experts to vouch for their forensics, and correct the mistakes they made in the first trial, which produced reasonable doubts in the mind of at least one juror. The defense, however, is unlikely to be able to find more exculpatory evidence with the passage of time. As it is, the prosecution has already destroyed or lost blood evidence. (BTW: Why did the prosecution claim that the defendant destroyed evidence when she had her husband’s body cremated?) The defendant has to pay for a second defense. Furthermore, everyone in the future jury pool knows the defendant was not acquitted.

I wish that CNN was broadcasting the second Phil Spector trial for this reason. I’m very curious about how the parties have changed their arguments and evidence this time around. In the Spector case, the prosecution has had its case changed by the tragic circumstance that one of the prior-bad-act witnesses died suddenly. The defense is unable (I assume) to use most of its first-choice forensic experts because of what happened during the first trial.

So, what’s the answer? Why isn’t a retrial after a mistrial caused by a hung jury considered by the law to be double jeopardy?

It seems that the U.S. Supreme Court has defined double jeopardy such that a hung jury is an exception to the rule that a mistrial prevents a retrial: . Apparently, as I understand it, if the mistrial is the result of “manifest necessity” then no retrial is permitted. “Manifest necessity,” though, has had to be defined through more than a century of case law. The judge also has some discretion in deciding whether or not to retry the case: 

Apparently, the U.S. Supreme Court has relied not only on the wording of the U.S. Constitution to define double jeopardy, but also on English Common Law, which gives legislators the right to say what is fair. The English jurist Blackstone is often relied upon to define common-law terms. This strikes me as very odd. Foolish me: I thought the Founding Fathers revolted against British law and then wrote a Constitution and Bill of Rights to specify exactly how they wanted to design American citizens’ rights.

Yet again, this humble native-English speaker is amazed by the way lawyers torture the language (cruelly and unusually). Surely, John Adams understood the presumption of innocence and the state’s burden of proof much differently than modern lawyers do (as my previous post on his defense in the Boston Massacre Trial explains). Surely Adams would have been appalled at the thought of a hung jury resulting in anything but a dismissal of the charges, especially in a murder case. He was one of the writers of the Constitution, as you know. Here is what he, the other Founding Fathers, and specifically James Madison (author of the Bill of Rights) had to say about “double jeopardy”:

  • No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

(NB: The “takings clause” is part of the discussion of criminal activity. I wonder if it means that a defendant’s property cannot be seized for use in a public trial without compensation, and, if so, if any defendant has ever been paid for the clothes, guns, bullets, computers, etc., which were seized and used against them in a trial. [Irony intended].)

The Boston Massacre: What was “reasonable doubt” in 1770?

Caveat: I am neither a lawyer nor a legal historian, but rather a scholar of English literature and language. That said, I am about to claim that legal historians are wrong when they claim “the standard of proof” originated with the Boston Massacre trial of British soldiers in 1770.

This is patently incorrect. As previous posts have noted, the phrase “reasonable doubt” and its close cousins were used in trials before the Boston Massacre Trial, including in the Old Bailey as early as 1743.

“Reasonable doubt” derives from the long tradition of English common law, not from the United States’ Constitution.

Furthermore, the phrase was not used often in American trials until well into the 20th century. The U.S. Supreme Court’s In Re Winship (1970) decision established the phrase as the standard of proof when it erroneously claimed the phrase “beyond a reasonable doubt” was “crystallized” by 1798. (The decision cites McCormick’s Evidence [1954] as its “proof” of this, but McCormick himself cites no sources or evidence.)

I admit I may be misunderstanding the phrase “standard of proof,” though. I associate the phrase with “burden of proof,” because in common English a “standard” is a high benchmark, such as the heavy burden to be born by the prosecution in a trial. Lawyers may mean something entirely different by “standard.” Lawyers’ standards may be much lower than mine. I would not be surprised if this were so. 

When referring to the “standard of proof” as “beyond a reasonable doubt,” lawyers may mean that the Boston Massacre Trial is an example of the idea that defendants should be convicted on less-than-convincing proof. If that is what lawyers mean, then we are in partial agreement about the Boston Massacre Trial.

This is key: I am convinced that the phrase “beyond a reasonable doubt” as a standard of proof in American criminal trials runs contrary to the spirit of the American Constitution and Bill of Rights.

Historical Reminder: What was the Boston Massacre Trial?

In March 1770—if you’ve forgotten—America was a colony of Great Britain, ruled by British-appointed governors under the laws of Great Britain and policed, for the most part, by British military. Boston was a British port governed essentially under British maritime law. American colonists were growing increasingly frustrated by British regulations and taxation of their sea trade. Boston began to break out in riotous protests.

On March 5, a number of soldiers gathered to disperse a crowd. Something went wrong. One of the soldiers unexpectedly fired on the crowd. In the end, 5 people died. The acting governor of Massachusetts, Thomas Hutchinson, rushed to the scene. He claimed he had not authorized the use of force, and the officers of the guard also claimed they had not issued orders to fire.

The incident put the British authorities in a difficult situation: on the one hand, they had to maintain order and enforce the port authority; on the other, they had to placate the colonists who were outraged at “the massacre.” So, they did what all governments do in such situations: they blamed the soldiers. But, instead of subjecting the soldiers to courts martial under maritime law, they decided to make a spectacle of the case and to try them for murder under English common law. Captain Thomas Preston was prosecuted and acquitted. He immediately went home to England where he wrote a widely read account of the situation. The privates involved were tried separately. Two were ultimately convicted of manslaughter.

  • (I’ve looked into maritime law of the period, and I’m beginning to suspect that a maritime trial might have required the prosecution to prove to a higher standard that the soldiers were operating outside their official responsibilities. This, I suspect, is another reason they were tried as civilians. On the other hand, is it possible that the Boston Massacre Trials were conducted in a quasi courts martial context and consequently were using a lower standard of proof than would normally be applied in British common law? The trials were conducted in a British colony, by a British-trained judge, and all participants, including the lawyers, witnesses, and jurors, were British subjects. British common law was the controlling authority. In addition, the defendants were British army troops who were considered to be subject to the military justice code, namely, the 1745 Acts of War. The alleged crime was committed by soldiers in the course of their guard duties at the Boston port.)

The Boston Massacre Trial

I’m not quibbling over who first invented the phrase “reasonable doubt.” I don’t really care whether it was first uttered in 1770 or 1740 or even 1970. What I do care about is what the phrase was originally designed to convey and what today American courts assume the phrase means. I care because I think the phrase daily leads to criminal convictions based merely on the preponderance of the evidence.

The Boston Massacre Trial, I’m sure, was not the source of the phrase, but it is certainly a trial that helped to formulate the phrase and its meaning as a tool for prosecution of crimes for which there is only circumstantial evidence that must be evaluated by a jury. (Yes, I know that in law circumstantial evidence is as valid as direct evidence. What I’m saying is that direct evidence has slightly more weight in a juror’s mind than does circumstantial evidence. For example, an eyewitness account by a credible eyewitness can contradict some circumstantial evidence.)

I reviewed a digital copy of the Boston Massacre Trial transcript in Northwestern University’s Law Library: “The Trial of William Weems, James Hartegan, etc. for the Murder of Crispus Attucks, etc. on Monday Evening, the 5th of March 1770, Taken in shorthand by John Hodgson, Boston, 1770.” (Excerpts of this transcript are available online Digital History if you would like to read them.)

The cast of characters:

  • Judge: Several men are named as judges. I’m not sure which of these actually spoke the words “reasonable doubt.”
  • Prosecution: Samuel Quincy and Robert Treat Paine
  • Defense: John Adams (future President), Josiah Quincy, and Robert Auchmuty

Here’s what the judge said:

“If upon the whole, ye are in any reasonable doubt of their guilt, ye must then, agreeable to the rule of law, declare them innocent … to return such an one [verdict] as that your hearts may not reproach you so long as you live.”

For the defense John Adams said:

“We are to look upon it as more beneficial, that many guilty persons should escape unpunished than one innocent person should suffer” (I believe he said he was quoting Beccaria, but I thought Blackstone said this, and online I found Franklin cited as the source). “…the best rule in doubtful cases is rather to incline to acquittal than conviction” (quoting “Lord Chief Justice Hale”).

The prosecutor was Samuel Quincy. Here’s his interesting take on the situation:

“I shall therefore rest the case as it is, and doubt not but the evidence, as it now stands, the facts, as far as we have gone against the prisoners of the bar, are fully proved and until something turns up to remove from your minds the force of that evidence you must pronounce them guilty.” (Interesting, isn’t it?)

Please note: The judge and prosecutor are the ones who refer to “doubt” and “reasonable doubt of their guilt,” not the defense.

Why did they do this? Because the judge and prosecution wanted the soldiers to be found guilty. They wanted the jurors to understand that the burden of proof was on the defense—that facts and reason were clearly on the side of the prosecution.

This, IMHO, is the real meaning of “reasonable doubt”: there is no such thing as “reasonable doubt.”  There are “reasons” and there are “doubts,” not reasonable doubts, so there can be no doubt of guilt and no reason not to convict.

Think about the argument John Adams was making: he was not arguing that the soldiers did not fire on the crowd and kill people (reasons and facts). He was arguing that there was doubt about whether or not the soldiers believed they were under orders to fire, that is, whether they were acting under the terms of their official duties. The facts were not in question, not in doubt. The only doubt was how the soldiers understood their orders. Were their orders standing orders to defend the port? The officers and governor claimed that the soldiers could only act if in the moment before the first shot was fired, someone in authority shouted “Fire!” But John Adams claimed that the soldiers knew their duty from long-standing instruction by their officers. He is asking the jury to recognize that what the soldiers believed at the time of the incident was not a fact that could ever be known: there could only be doubt that they were acting intentionally unlawfully and out of malice, not self-defense and duty.

The judge was arguing that facts are facts. The only reason to acquit would be one based on facts. Mere doubts about state-of-mind were insufficient.

Remember: This was not a trial of facts. No one claimed shots weren’t fired. No one claimed people did not die. No one claimed an officer or the governor shouted “Fire!” The only issue was whether the soldiers fired on the rioters in their official capacity or not.

Adams’ argument prevailed for all but two of the soldiers, who were convicted of manslaughter. They ultimately claimed “benefit of clergy” (that is, literacy) and were sentenced to nothing but a branding.

But today, how many defendants are condemned to death (not merely branding, which is thought to be “cruel and unusual”) because of circumstantial evidence for which there is no fact to contradict? This, it seems to me, is why Scott Peterson is on death row today. The prosecution mounted a circumstantial case which no “reasons to doubt” could overcome, because there were no facts to prove his innocence.

NOTE TO ALL STUDENTS: A recent increase in hits on this post prompts me to think that schools must be covering the Boston Massacre and the subsequent trials. If this post helps you–a student–with a report on this subject, please do me the courtesy of acknowledging this post in your paper’s reference section. You need to learn to properly cite your sources, even when you do not quote directly from them. If you simply summarize something I have written, you must cite this post. Even if you use this post as background, it is polite–if nothing else–to reference me. Here’s a suggestion for format, although your instructor may have a specific style he or she prefers you to use):

Mambretti, Catherine, Ph.D. “The Boston Massacre: What was ‘reasonable doubt’ in 1770?” (Postcard Mysteries Blog, posted March 17, 2009, retrieved [supply today’s date]).


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