From Victim to Suspect

Stephen Sedley

  • The Trial: A History from Socrates to O.J. Simpson by Sadakat Kadri
    HarperCollins, 474 pp, £25.00, April 2005, ISBN 0 00 711121 5

A modern criminal trial can be exceedingly inconvenient. The more fairly conducted it is, the less certain the outcome. The accuser can end up all but in the dock; the accused may walk away from a true bill. Churchill, well aware of this, wanted the Nazi leaders, when they were finally captured, to be taken out and shot. Roosevelt initially agreed. It was Stalin, who had found that trials could be exceedingly satisfactory in both procedure and outcome, who compelled first Roosevelt and then Churchill to take part in setting up the Nuremberg tribunal. Justice Robert Jackson, the US prosecutor, was in consequence able to describe the trial as ‘one of the most significant tributes that power has ever paid to reason’, and the British prosecutor, Sir Hartley Shawcross, to say without blushing: ‘There are those who would perhaps say that these wretched men should have been dealt with summarily without trial . . . But that was not the view of the British government.’

There was and is little doubt about the guilt of the accused at Nuremberg. But in the Western societies which Sadakat Kadri surveys, the time is past when the forensic conclusion was foregone and the trial – of Socrates for inculcating unofficial ideas in the young; of the white men arraigned before an all-white Mississippi jury for the abduction and murder of 14-year-old Emmett Till; of Sir Walter Raleigh for an imaginary treason – simply a public enunciation and endorsement of it. That at least is what we hope, though we are not permitted by Kadri to forget the English miscarriages of justice of the 1970s, which produced the sardonic maxim ‘Innocent until proved Irish’. Here, however, it is at least reasonable to think that the procedures introduced in 1984 for excluding all but tape-recorded police interviews conducted in the presence of a solicitor now make the faking and violent extraction of written confessions a remote possibility. And it is the confession, the ipsissima verba, the mea maxima culpa of the culprit himself or herself to which the trial process has always accorded an almost religious significance.

This at least was true in the era of the trial. Kadri glances bleakly at the incipient era of the non-trial, when individuals are detained on unspecified suspicions, held indefinitely in isolation, interrogated or simply humiliated by methods frequently indistinguishable from torture; tried – if they are tried at all – according to no known law by tribunals lacking most of the attributes of a court; and kept at all costs away from independent courts able to try them on real evidence and to order their release if they are not convicted. The distinguished South African jurist Richard Goldstone, no friend of terrorism, pointed out at the time that the Security Council’s post-9/11 resolution calling on all member states to legislate along the lines of the Patriot Act of 2001, which permits everything from indefinite executive detention to the requisitioning of public libraries’ lending records, was a tyrant’s dream. The courts of this country have since sought to reassert a measure of jurisdiction over foreign nationals detained indefinitely without charge or trial, as the courts of the US have begun to do over individuals condemned to detention without trial by the simple expedient of labelling them unlawful combatants, a category unknown to international law.

Outside the stockade, however, the trial remains very much part of the present, and Kadri’s book is a sinewy and knowledgable account of some of its historic extremes. It is not the anthology of celebrated cases that any competent researcher can assemble; nor a disquisition on the trial process, which, if it is not to be merely abstract, tends to be illustrated by frustratingly incomplete gobbets from the record; nor a weighty collation of transcripts; nor social history squinted at through the prism of the accusatory process. It is a book that manages to have the virtues of all these and the vices of none of them. In prose which succeeds in being both journalistic and literate, with only occasional lurches into flippancy, Kadri – a historian and lawyer – embeds his well-researched narratives of landmark trials in Europe and North America in a reflective account of the criminal trial process which, if in itself neither especially innovative nor profound, gives purpose and coherence to the story.

The outcomes of trials, by contrast, offer little that is coherent. People find themselves accused out of the blue and acquitted or convicted seemingly at random. Socrates, who had the good fortune to be memorialised by his pupil Plato, meets his fate halfway, refusing to apologise, challenging the jury to convict him, refusing Crito’s offer to help him escape after his conviction, and electing to drink poison in his own time. Saint-Méard, whom Kadri uses as an exemplar of the hand of chance in the trial process, finds himself acquitted by the sanguinary Maillard’s Revolutionary tribunal as arbitrarily and as inexplicably as the others dragged before it were sentenced to instant execution.

But to say incoherent is not always to say inexplicable. William Calley, known to his commanding officer (evidently an early aficionado of Catch-22) as Lieutenant Shithead, finally faced a court martial for the massacre by his platoon in 1968 of the population of the Vietnamese village of My Lai. He was convicted and given a life sentence but President Nixon ensured that Calley served a total of three days before being first bailed and then, when his appeal was dismissed, paroled. The court martial had generated, among much else, ‘a bilious dirge’ called the ‘Battle Hymn of Lt Calley’ (which sold vigorously) and a ‘Rally for Calley’, where a minister of God reminded the crowd that Calley’s was not the first crucifixion to take place at Easter. Not for the first or the last time, entirely explicable populist politics were able to render justice incoherent.

Much the same was true of Bernhard Goetz, a gun freak who in 1984 drew a handgun on four black youths making a nuisance of themselves on the New York subway, wounding them all and almost killing one of them. A mixed-race jury, after a trial which, like O.J.Simpson’s (and unlike Calley’s), saw a theatrical but extremely astute defence attorney run rings round a straight-laced prosecutor, convicted him only of carrying an unlicensed firearm. Goetz, when arrested, had told the police with alarming candour how he had reacted to his belief that the boys were going to attack him: ‘I decided that I was going to kill them after all, murder them after all.’ It may be that, as Kadri says, such an account – ‘mean, hateful, desperate and afraid’ – transcends the categories of the criminal law, but only in the sense that a jury may acquit in the teeth of it.

Calley’s undoing, albeit temporary, was probably that he was tried by fellow soldiers. Behind Goetz’s acquittal lay not only a national gun culture but a popular terror of feral youths, fed by the appearance in the witness box of the very ones he had shot. For some reason, however, Calley and Goetz have not lodged in our memory in the way O.J.Simpson has. Simpson’s principal accuser was a police officer who, having denied any racial prejudice, turned out to have a well-attested record of prejudice of the nastiest kind. It was he who had conveniently found the second bloodstained glove; but it was the prosecutor who, pulling a version of the old trick of getting the accused to hold the murder weapon in front of the jury, asked Simpson to put it on. Its sensational failure to fit is almost certainly what provoked Simpson’s acquittal; but I do not accept – and Kadri to his credit doesn’t argue – that the decision to acquit was just another example of the gullibility of American juries. A British jury would very likely have done the same.

What has sanctified and ring-fenced the jury’s verdict, on both sides of the Atlantic, from that day to this was the preparedness of Edward Bushel and his fellow jurors in 1670 to go to jail rather than obey the judge and convict the Quakers Penn and Mead of creating a tumultuous assembly by preaching in Gracechurch Street. Kadri recounts the extraordinary refusal of a disinterested jury of London property-owners to be browbeaten into returning a verdict against their conscience; and, in spite of recurrent criticism, I think that the right of a jury to do this continues to be better than its alternatives. Not only does the participation of 12 ordinary people bring a genuine element of democracy into the courtroom; as a trial judge I was repeatedly struck by the capacity of juries to assimilate on one hearing concepts of law which students were still wrestling with after three years’ study. What made the difference was that, for the jury, the issue was alive and immediate. While I can recall verdicts which – for what my view was worth – I thought were wrong, there is no reason to think that a judge sitting alone would make fewer errors; and I can recall other cases where juries conscientiously took unpalatable decisions which judges might have balked at.

Arguably the greatest cases, which combine all that literature, drama and real life can offer, are those (and they are not that many) in which a skilled and dedicated advocate, by sheer persuasive force, has turned an apparently hopeless case round. Among these, and well recounted by Kadri, is Clarence Darrow’s defence of Henry Sweet, a student whose brother Ossian had in 1925 moved with his family into one of Detroit’s all-white suburbs. The Sweets were black, and local reaction had left them in no doubt that their lives were in danger. The family armed itself against the expected mob attack. When it came, one of the mob, Leon Breiner, was shot dead and Henry, the only one of the family who had admitted firing his weapon, was indicted for his murder. Darrow had not long emerged from the Scopes trial, another foregone conclusion case, in which a Tennessee jury, having watched Darrow make a monkey of the prosecutor and chief prosecution witness, the fundamentalist politician William Jennings Bryan, took nine minutes to convict the hapless schoolteacher in the dock of denying the biblical account of creation. Now approaching 70, Darrow took on the retrial of Sweet after a first jury had failed to agree. His closing speech, eight hours long, started with a calculated challenge to the all-white jury: ‘I want to put this square to you, gentlemen. I haven’t any doubt but that every one of you is prejudiced against coloured people. You will overcome it, I believe, in the trial of this case. But they tell me there is no race prejudice, and it is plain nonsense, and nothing else.’

The prosecutor had made the mistake of calling Henry Sweet a coward.

Who are the cowards in this case? . . . Eleven people with black skins? Eleven people, gentlemen, whose ancestors did not come to America because they wanted to, but were brought here in slave ships, to toil for nothing, for the whites . . . He has been food for the flames and the ropes and the knives and the guns and hate of the white, regardless of law and liberty and the common sentiments of justice that should move men. Were they cowards? No, gentlemen. They went in and faced a mob seeking to tear them to bits.

It turned out later that the one juror whose poker face had caused Darrow real concern had settled himself down in the jury room with a book and a cigar and had told the others not to disturb him until they were ready to acquit.

Any selection of trials has to leave out scores of equally interesting ones, and it’s pointless to propose one’s own list; but there is one which might usefully have featured in the book. Kadri recounts how, at Nuremberg, Goering outfaced his accuser, Robert Jackson, answering him sarcastically from the witness box and discomfiting him quite badly. He does not relate this to the trial in which Goering had learnt the technique from the other end, the Reichstag fire trial of 1933. A week before the March 1933 elections were due, the Reichstag went up in flames. The Nazis, in power but not yet with overall control, instantly arrested all the leading Communists they could find, along with the Dutch boy Marinus van der Lubbe, whom the Nazis themselves may have used to start the fire. At the trial, conducted as it still had to be before a regular court, the Bulgarian Georgi Dimitrov sacked the lawyer assigned to him and defended himself. Goering, a minister in Hitler’s newly formed cabinet, made (like Bryan in the Scopes trial) the hubristic mistake of going into the witness box. He testified that, to his knowledge, the burning of the Reichstag was to have been the signal for a Communist uprising. Dimitrov asked Goering what plans he had made, since he had known all about it, to stop it happening; and when it became clear that he had made none, Dimitrov suggested that Goering and his colleagues had arranged the fire (as Goering, at Hitler’s birthday party in 1942, eventually boasted he had done). It ended with Goering yelling abuse and threats at Dimitrov and the court acquitting all but the wretched van der Lubbe. In addition to Goering’s piquant adoption of Dimitrov’s tactic at Nuremberg 13 years later, the trial had one other important consequence: the Nazis, having secured an absolute majority in the subsequent election, changed the law so that state trials would in future take place before a new tribunal, the People’s Court, from whose hand-picked judges there was no appeal. There would be no more inconvenient acquittals.

Stalin’s preferred way of avoiding inconvenient acquittals was the confession. In this, as Kadri elegantly shows, he was drawing on a long European and American tradition of public penitence as the goal of the criminal process, whether inquisitorial or accusatory. A public confession makes it safe to have a public trial. Torture, the medieval church’s preferred means of obtaining confessions, was eventually repudiated by the common law courts, but the importance of an admission of guilt from the accused’s own lips remained. The crude methods of the now-disbanded West Midlands Serious Crimes Squad (and not only them), writing out bogus confessions and beating up suspects until they signed them, stand in almost embarrassing contrast to the surgical psychology of the KGB, whose interrogators kept their victims in solitary confinement and simply went on and on questioning them until, disoriented and exhausted, they not only signed statements admitting every imaginable counter-revolutionary activity and thought but repeated them, word-perfect, in open court. The US ambassador, Joseph Davies, who was there, reported that to have faked the confessions in the 1936 Moscow trials would have required ‘the creative genius of Shakespeare and the genius of a Belasco in stage production’. Vyshinsky, the thin-lipped prosecutor, must have smirked as he read the decrypt.

One of the most harrowing accounts of this grim process was published in 1968 by Marian Slingova, the British widow of the Czech leader Otto Sling, accused and executed with Slansky in the last of Stalin’s show trials. The Prague Spring had given her access to the interrogators’ reports, and she herself had been put through a similar mill to try to make her inculpate him. Month after month, Sling had refused to admit to things he had not done, or made patently false admissions or cross-accusations to frustrate his interrogators. The KGB men expressed concern that he was trying to make them look incompetent, but they persevered, and after months of solitude, disorientation, protracted interrogations and enforced sleeplessness, Sling’s will finally broke. With the others, he denounced himself in open court as guilty of ideological and conspiratorial wickedness of every kind, and with the others he was shot without his interrogators having had to lay a finger on him. Without a confession there was no case; with it, there was no need for evidence. That his accusers knew it to be a litany of falsehoods mattered not at all.

The continuity of the 20th-century show trials, in this respect, with the heresy and witchcraft trials conducted by the early and medieval church, and as late as the 18th century by the secular courts, is, as Kadri suggests, instructive; and his chapters on all of them are a mine of knowledge, animated by detail. For a thousand years the strategy of witch hunters has been to identify not their suspect but their victim. The repeated scapegoating of Jews has been the most prominent but by no means the only example. If the post-Enlightenment world can claim a real advance, however hesitant, in the trial process, it is the shift from victim to suspect and the concomitant attempt to segregate suspicion from proof.

A parting question: why does a publisher that can afford to be choosy about its dust jackets wrap this serious and worthwhile contribution to legal literature in a design that trivialises the whole book? Lettering suggestive of The Secret Diary of Adrian Mole is encased in one of those full-bottomed wigs which in the opinion of Thomas Jefferson (as the book reminds us) made their wearers look like ‘rats peeping through bunches of oakum’; as they still do. If there is a point – other, of course, than Jefferson’s – I have missed it.