Better and Worse Worsts

On 16 October 1859, a white anti-slavery agitator called John Brown led 21 followers in a raid on the federal arsenal at Harpers Ferry, Virginia. A previous expedition against a Kansas slave-owning settlement had ended in five deaths, but Brown had far grander hopes for his new enterprise – to start an insurrection across the South. The plan was as optimistic as its execution was incompetent. His would-be guerrillas were carrying 950 sharpened pikes but no provisions, and Harpers Ferry lay in a region where whites outnumbered slaves by nearly seven to one. When Brown surrendered after 36 hours, ten of the 17 dead came from his own party – and not a single person, captive or free, had been won over to his suicidal scheme.

A capital trial ensued, and events in court changed the crime’s significance for ever. The 59-year-old Brown (not the same one whose body lay a’mouldering in the grave) dismissed attempts by his own lawyers to plead insanity – a ‘miserable artifice’ – and chose instead to welcome the ‘public murder’ that awaited him; his legal defence was neither plausible nor consistent, but it laid the ground for his martyrdom. Over six days, he delivered it from a stretcher, ostentatiously racked by pain, and inveighed against the brutality that was about to tear America apart. Brown’s words were telegraphed across the United States, and an engraving of his face – framed between his bushy hair and a bird’s nest of a beard – gazed reproachfully from newspapers throughout the north. Before the raid on Harpers Ferry, he had seemed no more than a crackpot or a zealot to the few people who knew him. But as millions of Americans learned of the man who was ready to die for the abolitionist cause, many began to wonder if he might be the prophet that he resembled.

Executions had been the primary spectacle of criminal justice in the Western world for hundreds of years, but during the quarter century before 1859 more than a dozen northern states enacted laws to conceal their hangings behind prison walls. The courtroom drama was replacing the gallows ritual in the public imagination – and the 26 sentences Brown spoke after the white jury found him guilty secured his place in national legend. Ralph Waldo Emerson later ranked his speech alongside the Gettysburg Address as one of the finest in American history. Had he battled in defence of the rich and powerful, he said, he would have been not punished but rewarded. But his struggle was for the poor, and the logic of slavery demanded that he die. It was a price he was willing to pay. ‘If it is deemed necessary that I should forfeit my life for the furtherance of the ends of justice, and mingle my blood further with the blood of . . . millions in this slave country whose rights are disregarded by wicked, cruel and unjust enactments, I say let it be done.’

Brown’s prosecution, ‘the first modern courtroom event’, is one of five cases that Robert Ferguson examines in The Trial in American Life. As Ferguson points out, America’s courtroom dramas have always done more than transform the reputation of the person at their centre:

They also satisfy revenge, purge communal resentments, assign limits to deviance, identify acceptable otherness, give victims a say, rationalise change, place controls on the unknown and publicise power. At still another level, they publicise 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.

The other four case studies are the treason trial of Aaron Burr in 1807, the shooting of President Lincoln in 1865, Chicago’s Haymarket riot of 1886 and the conspiracy trial of the Rosenbergs in 1951. ‘Each,’ he writes, ‘involved a perceived threat to its community, each received extensive coverage, each disturbed the nation enough to shape ideological formations for years to come, and through these ideological formations, each is still with us in some significant way.’ Ferguson is particularly concerned to show that popular perceptions of a trial are affected by literary and media reports. Or, as he puts it, ‘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’.

It is a shame that a book about eloquence and drama has been written in prose that is mostly devoid of either. Ferguson’s preliminary disquisitions on such matters as liminality and narrativity are grim, but in later chapters he combines cultural sensitivity with legal understanding to a degree that few historians or lawyers could match. He shows the way novelists from Hawthorne to Doctorow have drawn inspiration from the heroes, villains and plots of the trial process. He shows that Mary Surratt – executed for complicity in the plot to assassinate Lincoln – faced particular hostility because she was a woman, and that this misogyny was mirrored by a common media caricature of the defeated Confederacy as a female monstrosity. But do Ferguson’s five case studies produce an analysis greater than the sum of their parts?

Ferguson’s book covers several legal topics that Britain is currently in the process of importing from the US, from victim impact statements and minimum sentences to plea bargaining. And at a time when no British politician’s reflections on criminal justice seem complete without a mention of Megan’s Law, zero tolerance or homeland security, Ferguson’s description of the American way of condemnation may offer some useful pointers to this country’s future.

When it comes to the ‘war on terror’, however, Ferguson is reticent. The subject is given less than a page, and though he allows that prosecuting terrorists is important, he makes the puzzling claim that neither the public nor the media can be expected to take much interest in their trials. ‘Fascination over a lurid personal crime,’ he writes, ‘now trumps offences of far greater legal significance [such as] foreign terrorism.’ Coverage of these cases is indeed rare, but for reasons that have nothing to do with a lack of popular curiosity, and Ferguson blithely ignores every high-profile prosecution launched since 11 September 2001, from John Walker Lindh and Richard Reid to Zacharias Moussaoui and José Padilla. This is particularly mystifying given Ferguson’s pronouncements elsewhere. He asserts in his introduction that ‘we learn from the past in order to guard us from ourselves,’ and his case studies – which ‘resonate anew and take on extra meaning in a nation that currently thinks of itself as under attack’ – are repeatedly said to have contemporary relevance. It is a pleasant surprise not then to be bludgeoned by direct analogies; but it soon becomes apparent that Ferguson will not be drawing any parallels at all.

He argues persuasively that media trivialisation is distorting popular ideas about justice in the United States, but goes on to cite several scholars of ‘techmatic culture’ to argue that the law’s entire approach towards trial reporting is wrong. Whereas US courts have cast the issues in terms of a conflict between the right to a fair trial and that of free speech, Ferguson asserts that both rest on the same basic value: ‘protection of the free use and reception of words in public life’. They can therefore be reconciled, by ensuring that high-profile trials are presented to the public in as unmediated a way as possible. That could be done by embargoing video images until they have been screened live on the public service C-SPAN cable channel. ‘As difficult as it may seem, a pause in court proceedings should be accompanied by either a pause in television delivery or a replay of what has gone before . . . Silence, it should be remembered, is also a time for reflection.’

The ludicrousness of that proposal – perhaps better characterised as a thought experiment – points to the most unsatisfactory aspect of Ferguson’s analysis. Suggesting that the echo chamber be replaced by the televisual equivalent of a thousand transcripts is not merely fantastic. It also threatens to obscure the challenges facing the country’s judicial traditions more comprehensively than a sensational soundbite ever could. As Ferguson recognises, the processing of criminal allegations in the US is typified not by trials, but by their avoidance: more than 95 per cent of all charges, thanks to the sticks and carrots of plea bargaining, are not contested. Raw footage could perhaps teach a few diligent viewers that trials are duller than they think; but in contemporary America, where the right to a judicial hearing has become more circumscribed than at any time in living memory, it would only distract further from the more serious legal dangers.

The Trial in American Life uses sociological and literary debate to transcend controversy rather than to engage with it. Ferguson certainly recognises that a transparent trial is no guarantee of justice. He shows that judicial trappings have repeatedly cloaked paranoia, prejudice and expediency with ostensible rationality: in the military tribunal that sped a landlady to her death for giving lodgings to Lincoln’s assassins, for example, or in the hate-tainted jury boxes that validated the executions of America’s most notorious anarchists and atomic spies. But he barely acknowledges the political basis for trials that has always been paramount in US constitutional theory: namely, their function as a check on the power of the executive. And he consequently displays no interest in an aspect of the relationship between judicial publicity and fairness that many would regard as crucial: the Bush administration’s attempts simultaneously to exploit and eviscerate the safeguards of the courtroom.

Lawyers from the Defense and Justice Departments have eagerly promoted spectacular reckonings whenever they’ve been concerned to show that American justice will not tolerate the besmirching of its ideals. The perpetrators of torture at Abu Ghraib and unauthorised homicide elsewhere in Iraq have, for example, been given their days in court. But the notion that all wrongdoers might merit equal treatment has been ridiculed from the outset. The official view was pithily put by the then attorney-general, John Ashcroft, in a CNN interview on 20 November 2001: ‘Can you imagine the spectacle of capturing a soldier-terrorist in Afghanistan, bringing them back with a publicly paid for, high-profile, flamboyant defence lawyer on television making it the Osama Network, sending signals to terrorists around the country? That’s not really what our judicial system is about.’

Instead, America’s foreign enemies would face trial before specially created executive tribunals, and Donald Rumsfeld was soon explaining what that was about. The judges would be chosen by Rumsfeld or a person appointed by him. Only active or retired military officers would be eligible. Evidence would be admissible regardless of its reliability, and defendants and their lawyers could be removed from the courtroom as and when the authorities decided. Rumsfeld described his rules as ‘fair’ and ‘balanced’, though a subordinate simultaneously made clear that they were ‘rules’ only in the loosest sense. ‘If we had a trial right this minute,’ Pentagon general counsel William J. Haynes II said, ‘it is conceivable that somebody could be tried and acquitted,’ but not released: ‘We may hold enemy combatants for the duration of the conflict.’ The thinking that underpinned that statement reached its logical conclusion in June 2002, when the administration asserted a right to intern any American citizen incommunicado and indefinitely, at the president’s pleasure.

Each of those particular claims was eventually struck down by the Supreme Court, but in October 2006 the last Republican-controlled Congress approved a second set of similar powers; and though their constitutionality remains uncertain, one of the new generation of military tribunals recently disposed of its first case. The defendant was the Australian David Hicks, held at Guantánamo Bay since his capture in Afghanistan in late 2001. For five years it had been said that he had aided the enemy, conspired to wage war crimes, and attempted murder, but when he appeared in court on 1 March this year, a stroke of the prosecutor’s pen reduced those allegations to a single charge of providing ‘material support’ to terrorists. At the end of the month, secret discussions between Hicks’s defence lawyer and the tribunal’s convenors produced a sudden reversal of his not guilty plea, whereupon he was given a nine-month prison term, to be served in Adelaide, and ordered not to speak to the media for a year.

President Bush and his officials have long reassured critics that their extraordinary powers were being used against only ‘the worst of the worst’. Even if the Manichaean implications of that were credible, it would be hard to understand why Hicks ultimately received the kind of sentence that a joyrider might have got elsewhere. And if there are sub-categories – better and worse worst-of-the-worsts – an obvious question arises: on what basis are prisoners to be plucked from their Cuban cages and held to public account in the first place?

In Hicks’s case, there happens to be a clear answer. His detention had become increasingly embarrassing to the Australian prime minister, John Howard, and the US administration was almost certainly acting to shore up its ally’s re-election prospects. A more general point, however, is that the tribunals’ mysteries show just how Janus-faced the process of public judgment can be. A perennial danger of the criminal trial is that its formalities will lend apparent respectability to expediency and injustice. But at the same time, notwithstanding the hypocrisy and half-truths that have come to surround the judicial war on terror, it is only because Hicks got a hearing that the allegations against him could be tested at all.

Ferguson’s conclusion at least is sound. He asserts that ‘seeing justice at work is . . . the best way to believe in its success’; the observation holds even if it may not follow that America’s most popular trials should be screened live on C-SPAN. Every prosecution is a performance of communal ideas about justice – and exploitable though the display is, the risks of a show trial are incomparably preferable to the silence of a no-trial. The US has always been institutionally committed to that view. In 1859 the New York Times reported the indictment of John Brown with an editorial that recognised the stabilising effect of open justice: ‘The world will always take it for granted that a community which produces judges, who preserve their composure, their honour, in the midst of tumultuous passions, is sound at the core.’ The nation’s core was not sound, of course, and almost 150 years after the Civil War that followed, Brown’s willingness to use lethal violence to bring about political change disturbs America more than ever. Four biographical works have appeared over the last five years, and while their authors all stress the complexities of his legacy, several reviewers have preferred to portray the raid on Harpers Ferry as a proto-9/11. Still, who could fail to agree that it was proper to let John Brown put forward his case?