An excerpt from

The Trial in American Life

Robert A. Ferguson

Chapter One

Where Courtrooms and Communities Meet

THE MONKEY TRIAL

The most famous confrontation in an American courtroom took place in 1925. Clarence Darrow, the renowned lawyer of his day, and William Jennings Bryan, the leading orator and three times the Democratic Party’s candidate for president, squared off as opposing counsel over the teaching of evolution in the public schools of Tennessee. For the defense, Darrow declared: “I am going to argue [the case] as if it were serious, and as if it were a death struggle between two civilizations. . . . [B]igotry and ignorance are ever active. Here we find today as brazen and as bold an attempt to destroy learning as was ever made in the Middle Ages.” Bryan responded in kind. “Talk about putting Daniel in the lion’s den!” he complained for the state of Tennessee. “How dared those scientists put man in a little ring like that with lions and tigers and everything that is bad?” The impudence of science had patriotic implications for Bryan. Evolution wanted to teach Tennesseans that they had come “not even from American monkeys, but from Old World monkeys.” The audiences attracted to a high-profile trial encourage this kind of rhetorical excess. Playing to the gallery is standard entertainment in such an event, but the clashes between Darrow and Bryan, both outside counsel brought in to spike interest in the trial, would turn most bitter in the moment that everyone remembers. Darrow surprised everyone by convincing Bryan to appear as an expert witness on the Bible and then using Bryan’s literal interpretation of Scripture to make him look foolish on the stand. If the serpent of Genesis was actually “compelled to crawl upon its belly” for tempting Eve, ran a typical question to the nodding Bryan, “[h]ave you any idea how the snake went before that time?” “Do you know whether he walked on his tail or not?” “Up to 4,143 years ago, every human being on earth spoke the same language?” Darrow asked, referring Bryan to the Tower of Babel. “Yes, sir,” Bryan had to respond. These are the comments that everyone recalls, and yet none of the exchanges between the two leading players had anything to do with the trial as a legal matter.

In its misdirection, hyperbole, and fascination, State of Tennessee v. John T. Scopes epitomizes problems that arise in a high-profile trial. Fought out across eleven days, Scopes familiarized Americans with “the never-ending story,” the media’s need for “new news” and fresh excitement every day. The trial produced more words in print than any comparable event to that point in the country’s history, and yet all of the attention led mostly to confusion and turmoil. Both sides would misconstrue the effect of their actions and come to regret what happened in Dayton. John Washington Butler, the sponsor of the anti-evolution act, committed the first mistake, one Americans make with some frequency. He assumed that law would eliminate the problem. “When the bill passed,” he observed, “I naturally thought we wouldn’t hear any more about evolution in Tennessee.” Instead Scopes would put the subject on every tongue and in a particular way. The extremes of advocacy and news coverage transformed an inchoate discrepancy between science and theology into a raging national debate and a permanent standoff fueled by anger, self-righteousness, and humor.

Everyone miscalculated in Scopes. The Butler Act made it unlawful for anyone in an institution funded by the state “to teach any theory that denies the story of the Divine Creation of Man as taught in the Bible, and to teach that man has descended from a lower order of animals.” Lawyers for the American Civil Liberties Union decided that this language violated freedom of speech and arranged for a test case to prove it through town leaders in Dayton, who cooperated to make money and put their town on the map. John T. Scopes, a twenty-four-year-old high school biology teacher in Dayton, agreed to become the nominal defendant because he shared the view of the ACLU. “Restrictive legislation on academic freedom is forever a thing of the past,” he would claim long after his trial. Inherit the Wind, a play written about the trial thirty years later, would do much to solidify this line of interpretation. When asked today, most people will tell you how Darrow confused his opponent Bryan on the witness stand over interpretations of the Bible and routed the opponents of evolution in the process. Nothing, however, could be further from the truth.

The anti-evolutionists won their case in Dayton. After days of strenuous debate, the jury took all of eight minutes to agree with Bryan and find Scopes guilty of breaking the law. Darrow’s famous confrontation with Bryan was expunged from the court record as soon as it was completed. His supposedly withering examination of Bryan had no legal significance, and the Butler Act that convicted Scopes would prevail in Tennessee for another forty years, spawning a whole series of additional anti-evolution laws in other states. Publishers still skirt the subject of evolution in biology textbooks to “avoid offense to a scientifically illiterate segment of the adult population.” What the ACLU “won” from Scopes was a virulent division between science and religion. Even Dayton achieved far less than it wanted. Its place on the map of public opinion would be secured but as one of ridicule. H. L. Mencken, the pundit of his era, ended his own coverage of the trial by describing Dayton as once an obscure but happy town but now “a universal joke.”

Tennessee suffered from both ends. Its citizens felt threatened but ashamed of the image the “monkey trial” gave the world. State senator Butler conveyed the threat when he wrote, “Darwin dope shall not rob our children of future hope.” Embarrassed, the Tennessee Supreme Court countered by suppressing the whole affair on appeal through a false technicality and the claim that “nothing is to be gained by prolonging the life of this bizarre case” The court confirmed the constitutionality of the Butler Act but rejected the verdict because the jury, not the judge, should have assessed the fine of $100. It then induced Tennessee’s attorney general to enter a nolle prosequi ( “no longer prosecuting”) to prevent further appeal from Scopes. Effective politically by checkmating all sides, this decision made no legal sense. The Butler Act mandated a fine of “not less than One Hundred ($100.00) Dollars,” and everyone had agreed not to raise on appeal the question of who should impose the fine. Judge John T. Raulston did only what the law demanded of him at trial. His superiors, the justices of the Tennessee Supreme Court, turned against him to end the case as quickly and quietly as possible.

Tennessee v. Scopes supplies a cautionary tale about all high-profile trials. Controversy in such a case tends to be dangerously open-ended. Legal consequences had nothing to do with the tumult aroused in Scopes; the defendant faced a misdemeanor charge with a $100 fine that others would pay. Neither the law nor punishment but ways of life were on trial in Dayton, and it is usually a mistake to try to solve this kind of problem in a courtroom. Advocacy inflames nonlegal issues as the defining expressions of Scopes, “a circus in the courtroom” and “monkey trial,” indicated at the time. The references of Bryan to lions and tigers in a ring, one of many allusions at trial to circus and animal imagery, enabled a voracious press to sell copy and make “circus” the pejorative term of reference for any trial where officialdom is overwhelmed and made to look foolish by outside influence. Scopes demonstrates how legal language can explode into “monkey business” just beyond the court’s control. An arresting phrase in a high-profile trial can give language an unforeseen life of its own.

Dayton also reveals the dynamic nature of conflict. Permanent controversies have a way of changing while staying the same. Even Mencken would prove to be half wrong about Scopes in the end. The monkey trial survives today not as a source of shame and scorn but as an important tourist attraction in Dayton, fulfilling the financial hopes that the town leaders of 1925 sought. The legal profession of Tennessee, which tried to make Scopes go away, now learns its trade under representations of the event. Two huge murals of scenes from the trial hang in the Vanderbilt University Law School in downtown Dayton. Even so, and well beyond threat or shame, “the controversy over evolutionary teaching is as lively today as ever.” Eighty years after Scopes, in the summer of 2005, both the Roman Catholic Church and the president of the United States would call for modern creationism, “intelligent design,” to be taught against scientific theories of evolution in high school biology classes.

When ideas tear a community apart, the pattern of controversy can return with astounding speed and force. The issues here—religion against science, rejection of change, fear over biological self-examination, divergent definitions of humanity itself—can reappear at any moment. A widely reported and vigorous legal rejection of the teaching of “intelligent design” in the high school biology classes of Dover, Pennsylvania, in 2005 has not stopped continuing challenges to the teaching of evolution in forty-one of the fifty states. The next major Scopes trial may even now be on the way over evolution or, in a new wrinkle, over the availability of genetic manipulation.

High-profile trials like Scopes teach that the law is not a linear progression toward explanation anywhere near as much as it is a circulating mode of consensus on a variety of levels. Yes, the legal process in a courtroom moves from uncertainty toward decision, from simple description to expert procedure, from conflict to a solution articulated by a professional elite, and, often enough, from politics to the courtroom, but the requirements of understanding and acceptance extend in many directions at once, and they neither begin nor end in judgment. Most controversial trials furnish a simple proof of the reciprocities involved. Anyone who studies courtroom events learns that it is almost impossible to secure a verdict at trial against the settled convictions of a surrounding community.

The pressure on courtrooms grows especially serious when the legal stakes are higher and the defendants unpopular as they were in the trial of Nicola Sacco and Bartolomeo Vanzetti for felony murder in 1921. Whatever regrets Americans have today over the conviction and execution of Sacco and Vanzetti in Massachusetts in 1927 on flimsy evidence, questionable procedures, and a flawed appeal process, these inclinations were not in vogue when it counted. Most Americans and an overwhelming percentage of the legal profession were heavily in favor of conviction and execution in the 1920s. The names of Sacco and Vanzetti would be cleared of “stigma and disgrace,” and alternative blame would be assigned to “prejudice against foreigners” and general communal “intolerance, fear, and hatred” only when Massachusetts governor Michael Dukakis signed a special statement to that effect in 1977. Half a century too late, the Dukakis proclamation acknowledged tacit truths: the cost of apparent injustice is high, and it has a long half-life in a republic of laws.

We must come to a better comprehension of how misunderstandings, false excitement, and confusion arise out of such trials. Clarification of the problems may not solve them, but it can at least keep the issues that alarm a community in proper focus. It can reduce the spread of conflict, keep peripheral anxieties in check, and reduce the distorting power of celebrityhood. Even more ambitiously, clarification can allow the law to grow through a trial instead of fixing it to a moment through communal lines of force that threaten to overwhelm an answer in court. Courtrooms are supposed to educate communities as well as decide for them, but for that to happen effectively the legal profession as well as citizens and the media that inform them must grasp the nature of dynamic interaction in a high-profile trial. Language of importance comes from both directions in such moments, and the larger task must be to bring those languages closer together.

TELLING THE TRUTH IN COURT

The first source of misunderstanding emanating from courtrooms is also the most shocking. The greatest experts on trial performance, those officially involved or informed, can be the worst guides in explaining the communal context of a trial, even though their authority gives them a platform for such commentary. It is an old truth but worth repeating: “The members of the bar are peculiarly unrepresentative of the public.” Professionalism gets in the way of larger communication. Lawyers have the task of informing and protecting their clients, and judges certify that these tasks are performed precisely. Both are sworn to uphold procedures that guarantee fairness and protect the process from bias, but they acknowledge fewer obligations where the desires of citizens to be informed are concerned.

All professions endorse a degree of separate knowledge with credentialism, special terminology, and protective autonomy, but nowhere have these tendencies been more rampant than in the law, and nowhere is a countervailing understanding more important. The authority of experts does not suffice in the explanation of a high-profile trial. As one critic writes, “Specialized knowledge can give neither structure nor direction to the conception of a general culture.” Lawyers also compound the problem by sliding between professional and general commentary without noting the difference, and that temptation is greatest in a high-profile trial. When Clarence Darrow finds conflict over the teaching of evolution “a death struggle between two civilizations” in Scopes, he thrills a huge appreciative audience beyond the courtroom, but the same words distort the legal issue, insult the locality that will decide the case, and forget the client that Darrow is supposed to serve.

The internal legal standards that protect in court are not meant to inform the public, and often enough they do not. Procedural precision, formal language, and the control of precedent are all tenets for insuring justice in court, and no one would want to be without them, but these tenets are also stratagems for restricting debate and were never designed as engines of general explanation. Consider only the most prominent principle just noted, stare decisis, the control of precedent. Stare decisis et non quieta movere, to give the complete expression, conveys more than the rule of precedent. The full phrase means “to adhere to precedent and not unsettle things that are established.” Legal thought depends on what will not be discussed in court as much as it does on the words that control decision, a spirit of efficiency that takes much for granted. Just as “not unsettling things that are established” brings certainty to the decision-making process, so it can miss the more general concerns of a community. There are losses as well as gains in this manner of proceeding, “another way of saying that law has flourished on the corpse of philosophy in America.”

Although the aspirations of the law in court are easily conveyed, actual litigation is much harder to comprehend and easily misunderstood. Here is the American Bar Association’s summary of what should take place in a courtroom:

The best way to get to the truth is to allow all the competing parties to present their views to an impartial third party as adversaries, or opponents, under rules that permit the evidence to be presented fairly and in an orderly fashion.

Left unsaid are the illusive nature of truth and barriers to the desire for it. At least one of “the competing parties” at trial will not welcome the answer that is found, and the search for truth is always a self-interested enterprise in court.

Courtroom performers must answer to a well-known rubric. They are to “tell the truth, the whole truth, and nothing but the truth.” But “what is truth?” The question can be asked with the offhand cynicism of a Roman procurator, Pontius Pilate, in the trial of Jesus, or it can be raised with the precision, relativism, and penetration of a modern philosopher. Either way, truth is a variable in advocacy, and it must be fashioned to be believed. In one of the leading tactics at trial, “the best way to get to the truth” is through the most believable story told in court. “Despite the maze of legal jargon, lawyers’ mysterious tactics, and obscure court procedures, any criminal case can be reduced to the simple form of story.” This modern adage is accurate as far as it goes, but how much truth is lost in the reduction?

The form of story in court must be simple because common people must believe it. The law demands belief in the telling. A trial recounts a past event to reach a decision about the future. It moves between “remembered life” (the past dispute or crime under investigation) and “real life” (what should happen to the accused). Every good story uses remembered life to reveal the meaning of real life, but at trial this dynamic follows the narrow concern that attorneys bring to real life. A litigator does not seek knowledge except as it regards the fate of the accused. Storytelling thus becomes a uniquely cutthroat business in court. Conflicting versions of the “remembered life” (the imputed crime) fight to control the decision to be reached. In fiction and even in history, different versions of a story can coexist, each creating a unique space for itself, but an advocate’s story claims a definitive truth and must compete with rival narratives for the same discursive space. A courtroom account flattens the “narrative desire” or search for meaning in a story. It reduces everything said to one overwhelming concern: guilty or not guilty as charged. Nothing else really matters at trial.

This all-or-nothing approach leads to a devastating conclusion. Most stories told in a courtroom are true only in an instrumental sense. The priorities on truth telling notwithstanding, a story succeeds only when it is well told, and the best story requires imagination as well as the truth. Lawyers look for a version of the truth that jurors will accept, and they learn that a credible story will be one familiar to the listener through convention or experience. This compulsive search for familiar ground leads away from the intricacy of the law and, often enough, away from the problem at hand.

Textbooks on advocacy put the matter this way: “Focus on the people, not the problem”; “your storytelling must emphasize the parties and witnesses and the events they were part of, not the legal issues involved.” In the $253.5 million award against the drug company Merck in 2005 over the painkiller Vioxx, which may or may not have killed the patient, the plaintiff lawyer’s “folksy” story, channeled through the bereaved widow and her daughter, shaped jury preferences in an otherwise uncertain case. The treatment of mere facts through the cold and insensitive expertise of Merck’s lawyers alienated at least some jury members.

The construct of guilt against innocence rewards corresponding simplifications in court, even though the more complicated truth may fall somewhere in between or in another dimension of understanding altogether. In the 1976 trial of Patricia Hearst for bank robbery as a member of the Symbionese Liberation Army, two months after she had been kidnapped by the SLA, the contrast offered to the jury was “common criminal” and “spoiled brat” by the prosecution versus “brainwashed heiress” and “prisoner of war” by the defense. Rape trials afford similarly harsh alternatives. The imputed victim becomes a “virgin” destroyed by the experience or a “vamp” who provoked the accused, depending on whether the prosecution or the defense is to be believed. These stereotypes flourish even though a victim’s sexual experience should have no bearing on whether or not a crime has taken place. Advocacy rewards narrative predispositions over the facts in a case. Even a judicial opinion will manipulate the facts in the record to craft a better story for a given result.

The presumed balance in descriptions of advocacy can also be misleading. If the law thinks that “the best way to get to the truth is to allow all the competing parties to present their views to an impartial third party,” the neutrality of the claim misses a fundamental disparity in the manner that stories must be told in court. The separate functions of prosecuting attorney and defense counsel require different tactics in storytelling. The prosecution’s indictment or initial story must contain every permutation of the relevant offense to guard against a nonsuit or declaratory judgment in favor of the defense, and this need explains the numbing repetition found in a formal complaint. The prosecution must cover every technicality even as it overcomes them with a story that will convince “beyond a reasonable doubt.”

Telling such a story requires art. The indictment must carry “a moral certainty” of the charge, a handicap for any storyteller. A prima facie case must be effective enough for a court to believe that it will prevail against all others unless contradicted by evidence not noted by the prosecution. This initial burden of proof is qualified, but it grows as a trial proceeds. In narrative terms, the chain in the prosecution’s story line—the integrity and connection of a beginning, middle, and end—must be strong enough to survive interruption, contradiction, alternative explanation, and every irregularity. Two legal maxims control the asymmetrical challenge in prosecutorial storytelling: lex appetit perfectum and omnis indemnatus pro innoxis legibus habetur. The first, “the law covets perfection,” warns that mistakes in an accusation will not be tolerated. The second, “innocent until proven guilty,” protects the accused from anything less than ironclad proof. The prosecution must adjust every narrative inclination to this imbalance. It labors against an in-built favoritism for the defense. As the second maxim is sometimes put, “The law is tender of the accused.”

The first strategy of the defense in response is naturally one of evasion. The defense tells no story until it has to. Its follow-up, the defense’s second strategy, relies on the most bizarre trait in the entire adversarial system. To break down the prosecution’s story, the defense foists a proliferation of story lines to create “a reasonable doubt.” If credible to a willing jury, almost any alternative explanation of events can succeed. Did the police tamper with the evidence, as claimed in the trial of O.J. Simpson? Law students used to imbibe this lesson through the example of an early legal hero. Theophilus Parsons, “first giant of the law in Massachusetts,” put the premise this way:

A plaintiff brings an action against a neighbor for borrowing and breaking the iron pot in which he cooked his dinner. The defendant says he never borrowed any pot; and that he used it carefully; also, that the pot was broken and useless when he borrowed it; also, that he borrowed the pot of somebody not the plaintiff; also, that the pot in question was the defendant’s own pot; also that the plaintiff never owned any pot, iron or other; also that the defendant never had any pot whatever.

An admission of pettifoggery to outsiders, this anecdote never fails to rouse cynical pride when quoted within the profession. Here, in cameo form, is the lawyer’s instinctive appreciation of the power in storytelling. If any combination of stories from the defense’s arsenal succeeds in creating a reasonable doubt, the defendant must be found not guilty. This prospect makes “counternarratives” standard fare in a courtroom. The classical adage of Archlochus explains the situation nicely: “The fox knows many tricks, the hedgehog one—a good one.” Defense attorneys are foxes in the system; they have many tricks or stories to tell. Prosecutors have to be hedgehogs, and their one account had better be a good one. For if the multiplication in story lines by defense counsel strains probabilities, juries are receptive to alternatives that make sense to them.

Boredom presents yet another hurdle in communal understanding of accounts in a courtroom. Stories at trial appear hopelessly repetitious to a nonprofessional observer and are more monotonous than an audience would tolerate in any other setting. A trial develops through endless retellings. The indictment gives the story as an assertion (more than conjecture but less than proven fact). Factual renditions supporting the assertion, or denying it, come next in the opening statements of opposing counsel. These statements are supposed to be non-argumentative and confined to the facts to be proven. Nonetheless, they reiterate opposing versions of what happened in excruciating detail. Then, in another telling, true argument over the facts unfolds in the presentation of evidence, objections, examinations, and cross-examinations. Procedural compulsions make each side retell the incidents not once but many times. The need to prove events through the oral testimony of witnesses—witnesses who can describe only what they did and saw themselves—brings each storyteller back and forth over the same ground more than once. Closing arguments and the judicial opinion repeat what has gone before, though mercifully in more concise form.

One of the many difficulties for a community is the relevance of such redundancy, and in their impatience, observers extrapolate beyond what has been said in court. Lawyers are given great license to repeat themselves because the law assumes that reiteration contributes to a truth beyond rhetoric. By granting maximum leeway, a courtroom encourages acquiescence in judgment. It creates a zone where procedural correctness and final decision making meet and protect each other. Accuracy on both levels provides a double check, a second chance to rectify error. Repetition in this sense is not just time spent. By thoroughly considering “all possible descriptions to which one might plausibly conform one’s judgments,” a court achieves what John Rawls has termed “reflective equilibrium,” the stance required for changing a held point of view when change is desirable. In more dramatic terms, “the perfect narrative” emerges “through the layers of a variety of retellings.” Repetition encourages “getting it right” for “getting it behind us.”

Obviously, “the best way to get to the truth” in court is highly specialized. The illusive and instrumental nature of truth in advocacy, the oversimplifications and melodrama in argument, and the imbalances, repetitions, and proliferations in storytelling distract and annoy the nonprofessional observer. Properly understood, however, and taken together, these legal devices are tools of communal explanation. If the accounts at trial amount to self-serving constructions in competition with each other, the final story, the one that “wins” at trial, says something about the community that is willing to receive it.

The thoroughness of storytelling at trial also means that trials are interesting for what is not said in them. When a lawyer fails to make use of an available story, we have another sign of the times. In the Scopes trial of 1925, no one on either side bothered to raise the overtly racist explanation of evolution in the high school textbook at issue, George William Hunter’s A Civic Biology. Hunter’s “scientific text” describes an elaborate “evolution” in “The Races of Man” through five ascending categories from “the Ethiopian or negro type,” up to “the highest type of all, the Caucasians, represented by the civilized white inhabitants of Europe and America.” Presented as science, can anyone imagine such a comment going unnoticed in an American courtroom today?

These criticisms of “legal truth” and the failures of a community to appreciate them must be understood in context. The arcane nature of trial performance does not undercut the importance of law as a central mode of explanation, but it does suggest the need for stronger connections between legal explanation and communal reception when trials and particularly high-profile trials are so readily subject to public misconception. Misunderstandings when people are already angry are dangerous, and the sensationalism in legal argument can give error a lasting imprint. In Scopes we have seen that a high-profile trial can cause more harm than good. To summarize the problem in a sentence, the rule of law is too important to be left to lawyers and their explanations.

For while the law endures in its own right and has its own purposes and spheres, a communal rule of law survives only where the structure of regulations (the law) exists in relation to the disposition of cultural forces (social norms). A public trial is the place where regulations and norms visibly meet, and the more attention a trial draws, the greater the need for a meaningful connection. At the same time, we have seen that many sources of misunderstanding seem intrinsic to a given situation. Nor is that all. What is to be done with a community, or a prominent section of it, that willfully misunderstands with its own purposes in mind?

HEARING THE TRUTH IN COURT

An inbred suspicion of law itself informs the first level of communal dissociation at trial. “Law is born from despair of human nature,” explains José Ortega y Gasset. “Out of mutual distrust of their own humanity people are careful to interpose between each other for the purposes of commerce and intercourse something deliberately inhuman: the law.” Although most people do not articulate this thought in its pessimism, they intuit it. Law provides the neutral restraints that are necessary for individuals in coping with each other. Only utopian communities based on wish fulfillment are without this drab umbrella of restriction, and although those who study the law sometimes call it beautiful, the subject is distasteful to those who merely obey or pay the consequences of disobedience. The related fear of what the law might do to a person in its presumed indifference to individuality encourages many observers to instinctively question what happens when someone steps into the dock.

This inherent, even healthy, skepticism deepens into something more intense when people differ passionately over the stakes involved, as they often do in a high-profile trial. One of the sadder comments on human nature would seem to be that “nothing can be proved untrue to everyone’s satisfaction.” No amount of evidence will convince some people that the Holocaust took place or that Lee Harvey Oswald acted alone in killing John F. Kennedy. There are always individuals who identify strongly with the other side of an issue. Belief trumps reason and explanation when people invest heavily in one side of a conflict. A high-profile trial is peculiarly susceptible to these kinds of narrow investment. The lines of force are so clear and the arguments made on both sides are so ingrained that they stimulate opposite trains of thought in habitual reaction to each other. Continuing debate over the teaching of evolution proves the point, but so do many other trials of note.

A last basic trait in human nature may be more important than all of the rest in clouding perception of a high-profile trial. Although we would like to believe otherwise, a courtroom appeals at once to the best and the worst in us. A painful recognition is at stake in this realization. The virtuous citizen who extols legal remedies is also the voyeur who enjoys the tragedy, the guilt, and the pain of others as a casual observer at trial. The poet William Blake spoke the truth when he claimed, “Cruelty has a human heart.” There is something in our makeup that enjoys the sight of others in trouble, that causes us to speculate about our superiority to those who have been targeted, that relishes in the punishment of someone else, and that gives low pleasure while others twist under the threat of sanction.

Voyeurism is not just a factor; it is a central motivation in the way people regard a controversial trial. Moreover, this unpleasant but very natural propensity gets in the way of comprehension. Self-righteousness, vicarious excitement, sentimental identification, and intrusive curiosity are besetting flaws in courtroom observation. To appreciate the point, one need only think of a few relatively harmless parallels: sports fans watch an automobile race in anticipation of a crash (always included on highlight films), and the first expectation in an observed ski race or skating exhibition is the possibility of a spill.

Against malice, willful misconstruction, and emotional fixation, there is no defense except for the law to disagree with each manifestation in clear and measured tones. The legal process does so by insisting on our better selves, an aspiration that is essential to achieve even a modicum of justice. “The wickedness of men,” notes Montesquieu in The Spirit of the Laws, “makes it necessary to suppose them better than they are.” To measure the unacceptable deviance of others honestly and fairly is one of the most trying tasks in human endeavor. Trial procedures appeal to the sense of duty in performers, and they succeed most of the time, but the law has no comparable hold over the mere observer of a trial beyond the requirement of minimal decorum when in court.

Even attentive people can be confused by the variety of purposes at work in a courtroom. We tend to forget that trials perform many different functions at once. Most conspicuously, they resolve conflict, protect the innocent, punish the guilty, compensate for injury, and declare the law. But they also satisfy revenge, purge communal resentments, assign limits to deviance, identify acceptable otherness, give victims a say, rationalize change, place controls on the unknown, and publicize power. At still another level, they publicize the available answers to a problem and guard the status quo ante by seeking to return a community to its place before the disruption of crime.

These many functions compete with each other and complicate perception. Caught within them, though without an explicit role to play, is the participant observer, symbol of the public in a public trial. This freely involved figure enters a courtroom as a passive witness (present and watching) but also as a secret sharer (through personal identification and projection). The mere observer must abide by courtroom etiquette at all times under the threat of sanctions that apply to any other person in the presence of a presiding judge, but the participant within the observer remains otherwise free of constraints and can identify with any number of objectives and roles. The result is an inverse relationship. Participant observers exemplify and strengthen public decorum through the passivity of their presence, but their interest in a case carries them beyond what is being said and done in court.

The sharp restrictions on courtroom officers, consigned to carefully defined roles, unleashes speculation in the participant observer over what is happening. Eager for what has been repressed in official behavior, the typical interested person enters a compensatory zone of alternative explanation. The restraint, regularity, gravity, measured pace, and tedium of courtroom procedures inspire hyperbole, spontaneity, humor, speculation, and transgressive behavior just beyond its boundaries. Rare in 1925 is the outside commentator who does not joke about monkeys and exaggerate misbehavior in coverage of the Scopes trial.

High-profile trials like Scopes fluctuate between acceptance of hierarchical impositions and a very different leveling spirit of speculation (what anthropologists call “communitas”). An official differentiation of forms exists side by side with a spontaneous communion of individuals in unstructured exchange. The natural tension in these positions is part of the pleasure in observing a trial, but when the differentiation itself collapses, as it did in Dayton, you have “a circus in the courtroom.”

High-profile trials are exciting by definition. Few who follow a trial remain indifferent to its appeal or the free-ranging commentary around it, and the patterns that control that appeal are yet another source of confusion. Courtroom procedures are deliberately rote in their hope of avoiding unfair surprise, but they possess a peculiar allure in the familiarity of their forms. “Many purely formal patterns,” the critic Kenneth Burke observes, “can readily awaken an attitude of collaborative expectancy in us.”

The patterns in trial procedures offer a regularity, a rhythm, and a progression that guarantee shared reception. But the collaborative expectancy encouraged by the familiar march of procedures also invites loose prognostication as part of the appeal in observation. The procedures of the moment turn into the cultural capital of outside commentary. Accepting the tiresomeness of courtroom decorum is the price paid for a delicious anticipation beyond its confines. It is the ticket of admission to a collective excitement, a dynamic that shapes communal involvement in powerful ways.

The most effective way to grasp the dangers in these affinities is to think of a trial as a communal ritual. To be more precise, trials operate as contests that become rituals with the major technical distinction that these terms imply. In Claude Lévi-Strauss’s formulation, contests have “a disjunctive effect; they end in the establishment of a difference between individual players or teams.” The essence of difference in contest is the separation of winners from losers, an inescapable by-product of every courtroom decision. “Ritual, on the other hand, is the exact inverse; it conjoins, for it brings about a union (one might even say communion in this context) or in any case an organic relation between two initially separated groups.” Where contest divides observers in the excitement it produces, ritual mollifies and placates through mutual acceptance of the result that follows from contest.

The contest in a trial decides punishment and exoneration. It satisfies the search for revenge, exculpation, expiation, and compensation—all dear to the adversarial process through direct advocacy. The natural analogue in contemporary society is to the athletic contest. The question asked with greatest frequency in the ongoing coverage of a noteworthy trial is an automatic one: “Who is winning?” Ritual, on the other hand, invokes a less dramatic stance with a more subtle ideal of participation in mind. The concepts of judgment, closure, publication, and the status quo ante play themselves out in the consensual procedures of a trial. Contest is the time-bound special event reaching toward a result; ritual is the resolution and recognition of a decision reached. The ideal trial moves from contest toward ritual in communal acceptance of the result achieved in court.

Unfortunately, trials that capture the imagination tend to divide sharply along the axes of contest and ritual and often remain at the level of contest. When a group overly identifies with a defendant, victim, or the behavior under examination, it views a trial as a contest in which its own fortunes are engaged. This level of identification runs counter to the holistic pattern natural to the rest of a community, and the discrepancy between citizens sets off waves of social tension that lack easy resolution.

Tennessee v. Scopes became a permanent contest when fundamentalist Christians felt threatened by the scientific rationalism behind the teaching of evolution in schoolrooms, and they could not bear the presumed superiority of other segments of the population in their condescending assumption that scientific advance would automatically win out. The trial of O.J. Simpson, a celebrated black man accused of murdering his white ex-wife in 1994, had similar dimensions when minorities in America thought of Simpson as a scapegoat and themselves as victims of the limits that the dominant culture had assigned them against the ideals of equality and integration. When prolonged, the tensions in contest lead to permanent disjuncture. Those who care passionately denounce less committed observers; those denounced charge their accusers with bias. Mutual accusation in this situation grows dangerous; it rekindles the threat to community that a trial is supposed to subsume.

Extremes in courtroom contest and ritual can help us to understand why the two elements must balance in a successful trial. Contest yields to ritual through acceptance of the decorum in procedural fairness, but if a community is genuinely and deeply divided over a trial, the rhythms of contest prevent the more subtle and less absorbing elements of consensus from working themselves out. The sharp regional conflicts that emerged during the trials of Aaron Burr and John Brown, pitting East against West in 1807 and North against South in 1859, provide cases in point in chapters 3 and 4. Burr’s not guilty verdict and Brown’s contrasting guilt at trial represented unacceptable solutions for conspicuous sections of the country and kept a consensus in law from emerging.

Notably, a trial can also devolve into empty ritual when a community feels so vulnerable that it is willing to eliminate the element of contest in a rush to judgment. The murder of a leading farmer in Kansas and his family, Herbert Clutter with his wife and two of their children, became an overnight sensation in 1959 and a national bestseller when Truman Capote’s account, In Cold Blood, appeared in 1965. The murders—without warning, at night, of a family, in their own home, by men who had never met their victims and who traveled hundreds of miles to their destination, all with the specific design of committing murder with burglary in mind—touched off a permanent nightmare of invasion and death in middle-class America. “The next time they go slaughtering it may be your family,” the prosecutor at trial warned the Clutter jury. So addressed, the jury took barely forty minutes to convict and recommend the death penalty for the two accused killers.

Courtroom ritual that lacks contest loses sight of the individuals at trial and becomes a communal quest for its own meaning. The decision in a matter of minutes to execute the Clutter killers extracted revenge. In the words of an observer counting the two killers against their four victims, “an eye for an eye. And even so we’re two pair short.” Trial rituals operate as a response to broken meaning. By formalizing an upsetting event and measuring it, they bring an insecure community back together again, but the price of renewed security can be high if the element of contest is not given its due. In chapter 6, we will examine the Haymarket Riot trial, where lack of regard for the elements in conflict led to failures in explanation of the crime and to faulty identification of its presumed perpetrators.

If the relation between contest and ritual in a courtroom can be hard to gauge, the desired momentum is not. Contest in the courtroom fastens on oral advocacy as its logical symbol, the conflict between lawyers. As the modality that resolves conflict, ritual benefits from a crucial shift in trial procedure. Oral exchange, the scene of argument, gradually accedes to the binding power of conclusive written statements. The speaking witness is replaced by the printed record. Fact-finding (the jury debating with itself) submits to the more elevated certainty of a judicial decision drafted in the separate sanctity of a judicial chamber, read from the bench, and then printed. Through transference, the successive stages of courtroom performance become textual confirmations of what has been done.

Few observers of a trial hold out for long against procedures that press so relentlessly toward an answer. From arrest warrant to indictment to arraignment to pleadings, on to jury selection, the listing of witnesses, opening statements, presentation of evidence, examinations, cross-examinations, rebuttals, final motions, closing arguments, charges to the jury, jury deliberations, verdict, and judgment—the protracted form of decision making is connected and predictable. The observer need not agree with every stage, strategy, or direction in order to share in “collaborative expectancy.” Everyone in the end wants a decision. To borrow Shakespeare’s evocation of process from Sonnet 60, “In sequent toil all forwards do contend.” Contention in the courtroom feeds an ideal of sequence, a forward motion in which participation curbs anger, redundancy establishes pattern, order answers conflict, and advocacy succumbs to decision. Through procedure, the messiness of fact and disagreement give way to the accommodations that ritual is designed to encourage.

The problem in a high-profile trial is to get from contest to ritual. Ritual can be a synchronization of disparate forms, a complementarity of rules and persons, an answer to indeterminacy, a celebration of regulation and explanation, and each possibility brings its own impetus to consensual decision making. Less apparent are the earned congruities that come from trial decorum. Ritual permits the hopeless bustle of officialdom to appear solemn rather than ridiculous in the attention that it lavishes on a relatively silent and often dysfunctional or petty defendant. Ritual harmonizes. It brings the complexities of the law into line with the simpler stories told to juries. It provides a calming influence, allaying the anger that accompanies every probe of serious crime.

Ritual is especially useful in diagnosing the mixed emotions that a community directs toward an accused person. In theories of ritual, “liminality” supplies a zone for gauging deviance; it is the rhetorical space where questionable behavior awaits examination and where fascination and abhorrence meet. Ritual at trial works to aid the deviant individual by holding the gaze of the community to the liminal state and by allowing the arrangement of both a positive and a negative “legal mask” to serve either end result. Innocent citizen or guilty criminal: these categories are states of mind to be held in suspension by procedure until a decision can be reached in court, and as binaries, they prepare a community to work through conflict in collaborative expectancy. Placed together, they furnish indicators of what a community will allow itself to think.

Many of the distortions in the Scopes trial came down to a failure in liminality. The defendant was a cipher rather than a focal point for the resolution of the deviance addressed. So attention fixed instead on the warring attorneys, and “war” was indeed the metaphor of choice in media coverage. Newspapers gave front-page coverage to “battle” and “bombardment” themes with continuous reference to “attacks,” “fortifications,” “salvos,” and “the long-range guns of science and theology.” Nothing was held in suspension while combat imagery sparked communal discord. “Free thinkers” were arrested in Dayton, threats filled the air, and a pro-evolutionist pastor was forced to resign.

Neither side in Dayton or the country at large could free itself from the corrosion of mere contest. Fundamentalists believed that ridicule of their position was blasphemy; progressive intellectuals believed just as strongly that “the simple case for light against darkness” made everyone on the other side a moron. As H. L. Mencken would exclaim for the defenders of light, “Tennessee needs only fifteen minutes of free speech to become civilized.” Claims of free speech and its absence are really about unending argument. Where contest refuses to yield to the pull of ritual, there is the measure of such an event.

THE CONTINUUM OF PUBLICATION AT TRIAL

As the Scopes trial reveals, misplaced communal agitation owes much to the vehicles of information. We attend trials and we listen to them, but more often than not we read about them. The most difficult meaning of “public” in public trial comes through publication and the publicity that attends it, with all of the tangled implications that these related terms imply. The two hundred reporters who descended on Dayton in 1925, each straining for an original story, made the Scopes trial the event it became, but their capacity to have such influence depended on words first written down in court.

Courtrooms are compulsive generators of texts. Everything said is part of an official transcript, and when a trial begins to become controversial, a host of additional writings and media presentations exploit the available record for their own quickly published versions of the event. So much is written that actual reading becomes a selective process fraught with conscious and unconscious choices. In effect, the presentations around a high-profile trial form a continuum of publication, and the synergy between texts is an ignored resource in understanding what happened.

This continuum of publication is where legal and nonlegal narratives meet and compete over a trial, and it extends from the original indictment, to the trial transcript, to the judicial decision, to the court report, and then on to such unofficial texts as newspaper reports, television and Internet coverage, journal articles, historical accounts, and fictional projections. This overabundance naturally favors the nonlegal narrative. No one questions the primacies of a legal transcript and judicial decision in describing the legal import of a case, but how many citizens read judicial decisions or a trial transcript? Nonlegal narratives accordingly flourish in ways that control communal perceptions, and much depends on how closely those narratives adhere to the official one in a high-profile trial.

Three recent concepts in literary criticism help to make the continuum of publication a useful analytical tool. First, law is now recognized as a form of literature subject to the same kind of critical inquiry as other writings. The standard building blocks in close reading—theme, form, style, tone, symbol, rhetoric, narrative, and point of view—apply as easily to a legal work as to an essay or novel. As long as the separate authority of the legal text is acknowledged, use of these critical tools reveals the power of legal language in new ways. Second, current genre theory allows better analysis of the conformities and goals in writing. Genre pinpoints the receiving audience. It identifies “the schematic imprint” and “the conceptual promise” that attracts a willing reader. Third, the relatively new concept of intertextuality allows the relation of texts to be more than a comparison. Intertextuality argues that distinct texts share the same discursive space in a culture through the sum of knowledge available to them, an idea that opens into the interactive nature of writings around a trial.

These ideas help us to approach a dangerous anomaly in a high-profile trial. Legal texts in a courtroom are always vulnerable to refraction and displacement by more transparent nonlegal narratives of the same trial, and they are especially vulnerable through the intrusions of modern technology. Consider the plea of Los Angeles County Superior Court Judge Lance A. Ito in 1994. “Please, please, please,” Judge Ito begged his jurors in the trial of O.J. Simpson, “I know it’s against human nature, but don’t let yourselves be polluted by the information in the media.” Alas, it is against human nature to resist the nonlegal narratives in a case, and those narratives contribute willy-nilly to conceptions of the rule of law by reaching more readers than their legal counterparts.

Legal and nonlegal narratives inevitably compete in the different aims they fulfill even as they respond to equally compelling social needs. In generic terms, legal decisions are authoritative with all of the in-built strategies that command requires: they are monologic in voice, declarative in tone, attentive to “the logic” of a situation, interested in a prearranged conclusion, emphatic in their reading of the world, and steeped in a language of affirmation. In contrast, nonlegal narratives on the same subject are loosely discursive, multivoiced, inquisitive productions. As judicial language satisfies a craving for order and demonstrates competency in a final decision, so nonlegal narratives open a trial to every implication in search of the largest audience. A legal narrative declares itself; nonlegal narratives question those declarations. The contrasts are striking but also necessary. People will always require more than official writings to understand what they want to know about a trial.

Of course, the need for nonlegal narratives only begins to explain why those narratives intrude so readily on legal understandings. Why is the legal text so vulnerable to qualification and manipulation by an outside text about it? In part, nonlegal narratives respond transgressively to the propriety, restraint, expertise, and self-sufficiency found in legal narratives. Generic impulses in writing are always subject to challenge, and legal forms are interesting when this happens to them precisely because the law is so attached to pattern. To a writer who makes transgressive use of another text, the form of it is a leading mark, and the forms of the law are readily apparent and vulnerable.

The most vulnerable legal text of all lies at the very center of the continuum of publication, and it is the court transcript. Seemingly formless, controlling but also controlled, the transcript is literally “a helpless narrative.” It slavishly records verbatim what has been said at trial to duplicate as closely as possible the official experience in court. It is discursive space completely filled. The total record of language used under extraordinary pressure, a transcript holds the thought of all legal performers as they challenge each other, but because it is virtually unreadable in its aggregate massive nature, it is mined and excerpted by everyone with ulterior motives. Transcripts welcome intrusion by courtroom performer and reporter alike; they function thereby as the perfect intertext.

The cannibalism of a legal transcript for other uses is made easier by the fact that nonlegal narratives are invariably embedded in it. Trials, particularly high-profile trials, unfold through narratives that strain for heightened effect. Lawyers will try any combination of themes in their need to win. Innocent and guilty, yes; but these categories are rarely sufficient for the enmeshed advocate who quickly converts them into right and wrong, good and evil, harmless and dangerous, saved and damned, chaste and polluted, admired and ignored, loved and hated, worthy and unworthy.

These additional binaries in adversarial rhetoric conjure up whole streams of nonlegal narratives within advocacy, whether as sermon, sentimental fable, cautionary tale, mystery story, melodrama, gothic legend, romance, or adventure yarn. The winning story in a controversial trial almost always has an extralegal dimension familiar to a community, and the greater the familiarity, the more its form attracts nonlegal narrators into the continuum of publication in search of new variations on its success. Indeed, nonlegal narratives can occasionally challenge legal texts successfully. Restless under the restrictions that the law demands, the nonlegal narrator writes in revision and as a medium of social change.

The first instance of this phenomenon in America is among the best. On October 8, 1692, a Boston merchant named Thomas Brattle wrote in alarm over the execution of witches in Salem, Massachusetts. Two hundred people had been accused of witchcraft over a matter of months, twenty-nine had been found guilty by the Salem Court of Oyer and Terminer, and nineteen had been executed. When Brattle decided to reject demonology as a reliable source of evidence, it pushed him to interpret disaster in terms other than the presiding convention of divine retribution, and the effort made him the first pious New Englander to think that way in public. His “free-and-easy” letter began as a loose satire on the false solemnities of his day, but writing against the law made it more. Brattle’s protest turned belief into scrutiny, cosmic design into human mistake, sin into legal error.

A discrepancy of this kind between legal and nonlegal narratives is symptomatic. It indicates that a completed trial is still “at work” in social understanding. Thus, where a community decides to focus within a continuum of publication around a controversial trial is an important variable in interpretation of the culture. Despite its inaccuracies and its claim to be fiction, Inherit the Wind became the text that controls much of contemporary thought about Tennessee v. John T. Scopes, and it could do so because it dramatizes the way that many Americans, though by no means all, would prefer to solve that controversy. The story that survives after trial, the story with the longest half-life in cultural memory, marks the boundary between conflict and consensus.

The permeable nature of this boundary leaves us, however, with a vast problem to solve. If misunderstandings are endemic between courtrooms and their communities—if the gaps between contest and ritual, between speaker and listener, between truth and advocacy, between one legal purpose and another, and between legal and nonlegal narratives are so wide—what can be done about them? How can one expect general understanding to emerge from a courtroom filled with legal intricacies and conflict? To answer, we must take these difficulties inside the courtroom and ask the questions in a more pointed way. What, realistically speaking, can people hope to know about what happens in the parts of the legal process that are available to them?

Copyright notice: Excerpt from pages 5-28 of The Trial in American Life by Robert A. Ferguson, published by the University of Chicago Press. ©2007 by The University of Chicago. All rights reserved. This text may be used and shared in accordance with the fair-use provisions of U.S. copyright law, and it may be archived and redistributed in electronic form, provided that this entire notice, including copyright information, is carried and provided that the University of Chicago Press is notified and no fee is charged for access. Archiving, redistribution, or republication of this text on other terms, in any medium, requires the consent of the University of Chicago Press. (Footnotes and other references included in the book may have been removed from this online version of the text.)

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Robert A. Ferguson
The Trial in American Life
©2007, 414 pages, 21 halftones
Cloth $29.00 ISBN: 978-0-226-24325-2 (ISBN-10: 0-226-24325-7)

For information on purchasing the book—from bookstores or here online—please go to the webpage for The Trial in American Life.

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