America on Trial

In America on Trial (2004), Alan Dershowitz looks at great trials in US history from a defense lawyer's perspective. These cases open a view on some strangely revealing pages of history such as the cases of Shoeless Joe Jackson, Colonel Billy Mitchell, and Alger Hiss, but I'll just touch on a few cases that might be of particular interest to DMI readers: the Salem witchcraft trials, the Leo Frank affair, the Scopes trial, and Lawrence v. Texas.

Salem. Two things bother modern readers about the Salem witchcraft trials of 1692: first, that people might be put on trial for harming other through witchcraft; second, that "spectral evidence" was accepted as a basis for convicting the accused. Surprisingly, it was the decision to exclude "spectral evidence" that eventually freed most of the accused who hadn't been hanged yet, not a change in belief about the existence of witches. Dershowitz emphasized how judges, prosecutors, and defense attorneys have, in cases like these, "used the forms of the law to perpetrate injustice." He notes other historical periods when similar injustices were perpetrated under form of law: the Spanish Inquisition, the Jim Crow era in the South, the McCarthy period. History often repeats itself with different characters, it seems.

Leo Frank. He was a Jew in Georgia who was accused of rape in 1913 on what appears to have been the false testimony of a black maintenance worker. Frank was convicted and sentenced to death. As evidence in his favor mounted shortly after the trial, his sentence was commuted to life in prison, but before further evidence could be marshalled which might have freed him entirely, he was kidnapped from prison by a group of Georgians and lynched. No accountability for the lynchers, of course, many of whom went on to hold high public office.

The whole sordid episode shows how precarious was the status of minority (i.e., non-Protestant) religions in America, even in the 20th century, and especially in the South. In 1986, the State of Georgia finally issued an official apology. Quoting Dershowitz, here is the text of the apology: "The lynching aborted the legal process, thus foreclosing further effort to prove Frank's innocence. It resulted from the State of Georgia's failure to protect Frank. Compounding the injustice, the State then failed to prosecute any of the lynchers." Don't you hate it when that happens?

The Scopes Trial. Even now, 80 years later, this trial continues to echo through public policy dialogue on religion and science. Conveniently forgotten is how evolution was being used at the time to support a variety of shocking racial and eugenic doctrines and programs. Dershowitz notes, for example, that the very textbook used by Scopes explained how the Caucasian is the "highest type" of the five races of man. Those who commited crimes or were deemed immoral were described (by the text) as parasites, for whom eugenic remedies such as involuntary sterilization were appropriate. Thinking like this, of course, later fueled the Nazi vision of racial purity that they used to justify the Holocaust. This aspect of the case is just one example of how the accounts of the Scopes trial we read today have generally been rewritten to better serve the interests of modern commentators who sympathize with one side or the other of the science/religion question.

Lawrence v. Texas. Although Reynolds was not covered in the book, Lawrence raises some of the same issues in a much more recent case (2003). Without surveying the entire debate linking Lawrence to Reynolds, it boils down to something as simple as the view that if private, consensual homosexual relations can no longer be criminalized, it's not hard to speculate that private, consensual polygamy (for purists, "plural marriage") might likewise be deemed non-criminal at some point. In fact, since polygamy is not presently recognized as legal, those who attempt to practice polygamy are generally found guilty of some form of cohabitation, which starts to look a lot closer to Lawrence. Only time will tell how the rather broad language of the opinion affects other privacy-related issues.

Conclusions. Read the book yourself to get the full spectrum of discussion, but in the meantime here are some lessons one might draw from the four cases I chose to discuss. The details of the Salem trials highlight faults that an overreliance on the religious mindset might introduce into judicial process. The Leo Frank case shows the blunt results of extrajudicial punishment, how it picks on racial and religious minorities, and how it corrupts societies in which it becomes accepted. The Scopes trial remains great theater, but the discussion in the book suggests that the "Scopes narratives" we read are biased and edited scripts of that complex event. Finally, Lawrence is a warning shot across the bow of conventional morality, with further developments almost certain to follow.

Comments

[Nate Oman]

Dave: The legal questions in Reynolds and Lawrence were quite different. Reynolds was a challenge to a federal statute under the First Amendment on free-exercise grounds. (Also, Reynolds had another challenge under the Confrontation Clause, which is all but forgotten today.) Lawrence prsented a challenge to a state statute under the Fourteenth Amendment on substantive due process grounds. The cases were similar in that they were both about sex. Legally, things are a bit more complicated.

[Dave]

Nate, I wasn't really trying to do a full legal analysis of Lawrence or Reynolds in four sentences. And I think it is the case that Lawrence, as well as the various SSM initiatives, have led to speculation about how both might affect the legal status of polygamy.

Reynolds was brought from a territory; if a polygamy case is brought today, it is (like Lawrence) as a challenge to a state law. Reynolds brought a Free Exercise challenge, but they didn't have a right of privacy challenge to work with in 1878. Today, a polygamy challenge would likely be to a state law under a right of privacy theory. That sounds a lot more like Lawrence than you seem willing to grant.

[Nate Oman]

Dave: I completely agree that any challenge to anti-polygamy laws today is likely to be a fourteenth-amendment privacy challenge to a state law. (BTW, it is not clear to me that Lawrence -- at least Kennedy's opinion -- is a privacy case per se, but I will leave that for another day.) My point is that privacy claims raise a different set of legal and philosophical questions than did the religious freedom claims raised in Reynolds.