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Wall Street Journal

 

Justice Served, Sometimes

September 08, 2005

By Walter Olson

By 1880 the criminal trial as an institution had become standardized around the West to the point that readers on many continents found little that was unfamiliar in Dostoevsky's account of the murder proceedings against Dmitri Karamazov. The lawyers popping up with objections, the witness box and table of evidentiary exhibits, the sensation-seekers filling the gallery -- all were as common to the courthouses of San Francisco or Paris as to those of late-czarist Russia. Go back a few centuries to premodern Europe, though, and the forms of justice can seem to our eyes indescribably strange: trial by ordeal, by combat or by compurgation (the collecting of oaths from supporters) and so forth.

And yet the march of progress is not always quite so apparent. We may smile at the premodern practice of putting a pig or haystack on trial for having caused harm to a human being, yet our contemporary law abounds in forfeiture and pure-food cases with headings like United States v. 900 Cases of Peaches (1975) and United States v. One 1967 Pontiac Bonneville Convertible (1973).

Sadakat Kadri, a criminal defense lawyer who has studied and practiced in both Britain and the U.S., now gives us "The Trial" (Random House, 459 pages, $29.95), a colorful work of popular history that ranges across the centuries from the familiar (Scopes, Nuremberg, O.J.) to the obscure: e.g., Sir Edward Coke's 1603 prosecution of Sir Walter Raleigh for treason and Clarence Darrow's 1926 defense of Henry Sweet, a 22-year-old black student in Detroit charged with shooting a member of a white mob besieging his brother's house.

Mr. Kadri's aim is to assemble a history of the criminal trial that is driven by "stories rather than theories." Such an approach allows him to indulge a penchant for the grotesque, the extreme and the ribald without quite losing sight of the bigger picture -- the difficulty of reconciling the cause of truth-finding with the imperatives of ritual and drama.

The continuities between past and present are many. Battles over jury selection, so typical today in big trials, propel the plot of Burnt Njal, a medieval Icelandic saga involving arson-murder and bloody retribution. The tendentious interpretation of ambiguous marks on witnesses' bodies -- a hideous aspect of the witch hysteria of the 16th and 17th centuries -- reappears in the child-abuse prosecutions of our own era. Denunciation boxes, into which citizens dropped accusing notes in Inquisition times, popped up in police stations across Russia in the 1930s. Hype-fraught celebrity trials? They date back pretty much forever and serve useful purposes, such as calling attention to social problems that would never stir public debate if left abstract.

Mr. Kadri practices in London as a member of Doughty Street Chambers, a group of barristers known as champions of liberal-left thinking on civil liberties; in the U.S., he has spent some time working for the American Civil Liberties Union. His ACLU-ish views -- suspicious of police and the military, eager to expand our notions of due process -- are much in evidence on topics ranging from juvenile justice to international criminal tribunals. Still, his storytelling skill and feel for human detail make this book pleasurable and instructive no matter what the reader's own views may be.

Some incidents and remarks are especially memorable. On the dodgy uses of piety in the Dark Ages, Mr. Kadri notes: "Swearing falsely on a saint's relics was ordinarily a one-way ticket to hell, but if the reliquary was empty -- because, for example, the testifier had secretly removed its contents -- a person could swear that black was white with no ill effects at all." Regarding the emotionally manipulative style of some courtroom champions, Mr. Kadri finds plenty of precedent. He quotes the 1897 Tennessee Supreme Court, which said that "tears have always been considered legitimate arguments before a jury. Indeed, if counsel has them at his command, it may be seriously questioned whether it is not his professional duty to shed them whenever proper occasion arises."

As for glittering but empty turns of courtroom rhetoric, Johnnie Cochran was just building on a tradition that goes back to Shakespeare's time. "Elizabethan schoolboys," Mr. Kadri writes, "were commonly taught adoxography, the art of eruditely praising worthless things....The first English treatise on the subject appeared in 1593 and contained essays celebrating deformity, ugliness, poverty, blindness, drunkenness, sterility, and stupidity. Its preface claimed that it would be particularly useful to lawyers."

The Enlightenment and later reforms de-emphasized the ritual aspects of the justice process in favor of stronger fact-finding, yet trials, Mr. Kadri notes, "have always performed a function that goes far beyond that of establishing who did what to whom." True enough, but he goes on to craft a flawed if flashy epigram: "To judge trials in terms of their efficiency makes not much more sense than it would to assess a wedding or a funeral by its accuracy."

Is accuracy really so easily deprecated as all that? It's hard to imagine a more fundamental objection to a wedding or a funeral -- or to a criminal charge -- than: Hey, you've got the wrong guy!

Original Source: http://online.wsj.com/article_email/SB112612976198834474-INjgYNklaR4nZuubIGGca2Bm4.html

 

 
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