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History Modern History

The Great Trials of World

History and the Lessons
They Teach Us
Course Guidebook
Professor Douglas O. Linder
University of Missouri–Kansas City School of Law
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 Douglas O. Linder, J.D.
Elmer Powell Peer Professor of Law
University of Missouri–Kansas City School of Law

D
ouglas O. Linder is the Elmer Powell Peer Professor of Law at the
University of Missouri–Kansas City School of Law. He graduated
summa cum laude from Gustavus Adolphus College and from
Stanford Law School. Professor Linder has taught as a visiting professor at the
University of Iowa and Indiana University School of Law.

Professor Linder has published extensively in legal journals and books on

such topics as great trials, legal history, constitutional law, and the legal
profession. He has served as a consultant on numerous documentary film
projects and theater projects involving historic trials. In addition, Professor

i
Linder has published reviews of movies and books focused on historic
trials and has lectured or participated in panel discussions considering the
significance of various historic trials across the country, both at university
campuses and professional gatherings.

In addition to being named a UKC Trustees Fellow, Professor Linder has

received his law school’s highest teaching award (twice) and its highest
publishing award (three times). For more than two decades, he has taught
a seminar in famous trials using his own materials published on a website
of his creation, the Famous Trials website. The website hosts the largest and
most varied collection of original writings, images, and primary documents
relating to 75 famous trials. It is the most-visited trial-related site on the
Internet and has been the subject of a review in The New York Times.

Professor Linder is the coauthor of two books, The Good Lawyer: Seeking
Quality in the Practice of Law and The Happy Lawyer: Making a Good Life in
the Law. In addition, he has appeared in televised documentaries about great
trials produced by HISTORY, AMC, PBS, Court TV, Discovery Networks,
and A&E in addition to documentaries produced by Canadian and
European production companies. He has appeared in televised interviews
about great trials on CBS, CNN, Fox News, and other cable networks. ■

ii The Great Trials of World History and the Lessons They Teach Us
 Table of Contents
INTRODUCTION
Professor Biography . . . i
Course Scope . . . 1

LECTURE GUIDES
LECTURE 1
The Trial of Socrates . . . 3
LECTURE 2
The Trial of Gaius Verres . . . 13
LECTURE 3
Three Medieval Trials . . . 21
LECTURE 4
The Trial of Sir Thomas More . . . 30
LECTURE 5
The Trial of Giordano Bruno . . . 40
LECTURE 6
The Salem Witchcraft Trials . . . 48

iii
 LECTURE 7
The Boston Massacre Trials . . . 57
LECTURE 8
The Aaron Burr Conspiracy Trial . . . 67
LECTURE 9
The Amistad Trials . . . 77
LECTURE 10
The Dakota Conflict Trials . . . 86
LECTURE 11
The Lincoln Assassination Conspiracy Trial . . . 96
LECTURE 12
The Trial of Louis Riel . . . 107
LECTURE 13
The Three Trials of Oscar Wilde . . . 116
LECTURE 14
The Trial of Sheriff Joseph Shipp . . . 126
LECTURE 15
The Leopold and Loeb Trial . . . 137
LECTURE 16
The Scopes Monkey Trial . . . 147
LECTURE 17
The Trials of the “Scottsboro Boys” . . . 156
LECTURE 18
The Nuremberg Trials . . . 165
LECTURE 19
The Alger Hiss Trial . . . 175
LECTURE 20
The Rivonia (Nelson Mandela) Trial . . . 186

iv The Great Trials of World History and the Lessons They Teach Us
 LECTURE 21
The Mississippi Burning Trial . . . 196
LECTURE 22
The Trial of the Chicago Eight . . . 205
LECTURE 23
The McMartin Preschool Abuse Trial . . . 216
LECTURE 24
The O. J. Simpson Trial . . . 226

SUPPLEMENTAL MATERIAL
Bibliography . . . 237
Image Credits . . . 244

Table of Contents v
vi The Great Trials of World History and the Lessons They Teach Us
 SCOPE

The Great Trials of

World History
And the Lessons They Teach Us

G reat trials are windows into history. The multiple perspectives

on events offered by witnesses and attorneys, the richness
and specificity of testimony, and the central focus on truth-
finding all combine to make trials unique and valuable tools for historical
understanding.

In this course, we will examine 24 of the greatest trials in history, from

Socrates to Simpson. We will travel to the People’s Court in Athens, St.
Peter’s Square in Rome, a meetinghouse in Salem Village, the Old Bailey
in London, and the Palace of Justice in Pretoria, South Africa. We will be
introduced to famous lawyers such as Cicero, John Quincy Adams, Justice
Robert Jackson, William Kuntsler, and Clarence Darrow.

Our explorations will be as diverse as our trials. We will examine the sources
and patterns of moral hysteria as we consider how webs of circumstance
could bring 19 convicted witches to the gallows in Salem or prompt
prosecutors to file more than 200 charges of child abuse against seven
teachers at a California day care center. We will consider the causes and
nature of evil as we discuss the trial of major Nazi leaders in Nuremberg or
Klan murders of civil rights workers in Mississippi. We will see how national
leaders manage prosecutions of citizens who lead secessionist movements

1
or seek to carve out new empires—people such as Canada’s Louis Riel or
Aaron Burr in the United States. We will note how great trials can alter the
course of history—how the trial of Alger Hiss could, years later, produce
the presidencies of Richard Nixon and Ronald Reagan; how the trial of Sir
Thomas More might change the religious and political life of Europe.

We will be witness to amazing spectacles in the courtroom. We will see

Clarence Darrow examine William Jennings Bryan on the meaning of
Genesis. We will listen to Oscar Wilde wax eloquent on the witness stand
about “the love that dare not speak its name.” We will behold the gruesome
spectacle of a sitting pope putting a dead predecessor on trial. We will
observe as alleged participants in John Wilkes Booth’s assassination plot
against President Lincoln are dragged into a military courtroom in canvas
hoods and iron manacles, and as Bobby Seale is gagged and bound to a
chair in the Chicago Eight trial. We will witness heroism as lawyers such
as John Adams in the Boston Massacre trial and Judge James Horton in the
Scottsboro Boys trial risk their careers to see justice done. We will watch
defendants stand before the nine justices of the United States Supreme Court
after being convicted in the only criminal trial in the Court’s long history.

Throughout our tour, we will ask of these trials: “Was justice done?” Trials
are designed to separate the innocent from the guilty, but they sometimes do
both less and more than that. Fallible jurors might free the guilty or convict
the innocent. Flawed procedures sometimes obscure the truth. Prosecutors
might withhold exculpatory evidence or undervalue its significance. Things
can go wrong in trials. We will try to understand why and imagine what can
be done to improve trial results.

The course as a whole will be both far-reaching and kaleidoscopic, revealing

how societies across the globe and throughout history have used trials
to resolve key issues and decide the fates of evildoers, abusers of power,
champions of free speech, and innocent people caught in the wrong place
at the wrong time. We will end our tour of great trials with thoughts
about how famous trials can educate, entertain, and still resolve important
questions of guilt and innocence—and thus come to a better understanding
of what makes a trial a great trial. ■

2 The Great Trials of World History and the Lessons They Teach Us
 LECTURE 1

The Trial of Socrates

T
he year is 399 B.C. Here, in the Athenian Agora, the civic
center of the great Greek city, 500 citizens—most of them
probably farmers—sit on wooden benches. They are separated
from the crowd of spectators by a barrier. One of those spectators
is a 27-year-old named Plato. He has come to watch the trial of his
70-year-old teacher, Socrates. The 500 men inside the barrier are his
jurors. Before the sun sets, they will sentence Socrates to death.

3
Background
ØØ As a young boy, Socrates saw the rise of Pericles and the dawn of
the Golden Age of Greece. Pericles—perhaps history’s first liberal
politician—helped bring about a fundamental power shift. For the first
time, the masses, and not just the property-owning aristocrats, enjoyed
liberty. Pericles created the people’s courts, used the public treasury to
promote the arts, and pushed ahead with an unprecedented building
program designed not only to demonstrate the glory that was Greece,
but also to ensure full employment.

ØØ Despite growing to adulthood in this bastion of liberalism and

democracy, Socrates developed a set of beliefs that put him at odds
with most of his fellow Athenians. Socrates was not a democrat or
an egalitarian. To him, the people should not be self-governing; they
were like a herd of sheep that needed the direction of a wise shepherd.
He told anyone who would listen that they were fuzzy thinkers, knew
nothing, and worried about trivial things rather than what really
mattered. Striking at the heart of Athenian democracy, he criticized the
right of every citizen to speak in the Athenian assembly.

ØØ Writing in the 3rd century A.D., historian Diogenes Laertius reported

that Socrates “discussed moral questions in the workshops and
the marketplace.” His unpopular views, expressed with an air of
condescension, often provoked his listeners to anger. Laertius wrote
that “men set upon him with their fists or tore his hair out,” but that
Socrates “bore all this ill-usage patiently.”

ØØ The standing of Socrates among his fellow citizens undoubtedly

fell further during two periods in which Athenian democracy was
temporarily overthrown by the Spartans and their allies. The prime
movers in both antidemocratic movements, the first in 411–410 B.C.
and the second in 404–403 B.C., were former pupils of Socrates,
Alcibiades and Critias.

4 The Great Trials of World History and the Lessons They Teach Us
ØØ Athenians considered the teachings of Socrates—especially his disdain
for the established constitution—partially responsible for the death and
suffering during those two awful periods. Thugs with daggers and whips
roamed the streets, murdering opponents. Many of Athens’s leading
citizens went into exile, where they organized a resistance movement. It
is no coincidence that Anytus, the likely instigator of the prosecution of
Socrates, was among the exiles.

ØØ Socrates, unbowed by the revolts and their aftermaths, resumed

his teachings. Once again, it appears, he began attracting a band
of youthful followers. The final straw may well have been another
antidemocratic uprising—this one unsuccessful—in 401. Athenians
finally had had enough of their know-it-all busybody. It was time to
send a message that the city would do whatever it took to defend its
precious democracy.

The Trial Preliminaries

ØØ In ancient Athens, any citizen could initiate criminal proceedings
against anyone else. There was no public prosecutor. Accusers were not
required to pay any court costs. To discourage frivolous suits, Athenian
law imposed heavy fines on any citizen accusers who were unable to
win the votes of one-fifth of jurors.

ØØ The first accuser of Socrates was a poet named Meletus, who most
likely had been offended by Socrates’s attacks on poets such as himself.
Meletus was also very religious, and he likely had a gripe with Socrates’s
irreverence.

ØØ The plea that Meletus handed over to the magistrate charged Socrates
with impiety and corrupting the youth. The impiety charge stemmed
from Socrates’s repeated suggestion that the gods of the Athenians were
not his gods. Socrates had said that he could not imagine gods doing
the quarrelsome and vindictive things that the poets claimed they did.

Lecture 1—The Trial of Socrates 5

ØØ It’s possible that Anytus and Lycon, the second and third accusers of
Socrates, were also present and added their voices to the charges. Lycon
was an orator, but we know little about his motivation for accusing
Socrates. Anytus, on the other hand, was a well-known politician,
highly influential, and the driving force behind the prosecution. Anytus
had a number of reasons to be upset with Socrates, including Socrates’s
(likely sexual) relationship with Anytus’s son and the philosopher’s
antidemocratic political message.

ØØ The formal document charging Socrates survived until at least the 3rd
century A.D. Diogenes Laertius, writing at that time, offered a verbatim
report of the now-lost document:

This indictment and affidavit is sworn by Meletus  … against

Socrates  …  : Socrates is guilty of refusing to recognize the gods
recognized by the state, and of introducing new divinities. He
is also guilty of corrupting the youth. The penalty demanded is
death.

The Trial
ØØ Most of what we know about the trial of Socrates comes from Plato’s
writings. Plato was hardly an unbiased observer, however. The same can
be said about Xenophon, author of the only other surviving account of
the trial and also a disciple of Socrates.

ØØ A month or two after Meletus delivered his summons, the day of the
trial arrived. It would take place over a nine- to ten-hour period. There
were 500 jurors—501 by some accounts—all over the minimum age of
30. With a jury that size, Athenians knew any attempt to fix a jury was
doomed. Each juror was paid three obols for his service—a sum so meager
that volunteers for the jury skewed disproportionately old and poor.

ØØ The trial began with a herald reading the formal charges against
Socrates. Then Meletus, Anytus, and Lycon were given a total of three

6 The Great Trials of World History and the Lessons They Teach Us
Plato

Lecture 1—The Trial of Socrates 7

 hours to address the jury. No record of their arguments against Socrates
survives, but we can make educated guesses about what was said based
on accounts of what Socrates said in his defense.

ØØ It’s safe to assume that Socrates was not a model of piety. He failed
to attend state-sponsored religious festivals, such as those honoring
Athena or Dionysus. He stirred resentment by arguing against the
ritualistic view of religion shared by most Athenians. And he criticized
the commonly held belief that the gods sometimes behave immorally
or whimsically. Nevertheless, historian I. F. Stone contends that most
Athenians would have shrugged off the impiety charge. Stone writes,
“Athenians were accustomed to hearing the gods treated disrespectfully
in both the comic and tragic theatre.”

ØØ Supporting this conclusion is the earliest surviving reference to the trial

of Socrates that does not come from one of his disciples. In 345 B.C.,
the orator Aechines told a jury: “Men of Athens, you executed Socrates,
the sophist, because he was clearly responsible for the education of
Critias, one of the thirty anti-democratic leaders.”

The Apology
ØØ After the prosecution rested, Socrates rose to deliver his “apology”—a
word that comes from the Greek apologia, meaning “defense.” Plato’s
account, the Apology, is far from a word-for-word record of what
Socrates said. For all we know, the defense case might even have
included speeches by Socrates’s supporters, not just Socrates.

ØØ The accounts of Plato and Xenophon agree on a key point: In both

accounts, Socrates gives a defiant, decidedly unapologetic speech.
A speech so defiant he has to silence a jeering crowd several times to
continue. Socrates all but invites condemnation and death. He insists
that by asking his awkward questions, he has performed a valuable
service—and that he has no intention of stopping.

8 The Great Trials of World History and the Lessons They Teach Us
ØØ Athenian law allowed the defendant to cross-examine his accuser,
and Plato has Socrates using his trademark Socratic method to make
Meletus look like a fool. Meletus says that Socrates corrupts the young,
but he has a hard time explaining why Socrates would want to do this.
Socrates argues that if he did in fact corrupt the young, it was done out
of ignorance. No man of any intelligence would intentionally choose to
corrupt the people he has to live with.

ØØ Plato’s Socrates provocatively tells his jury that he is a hero. He reminds

them of his exemplary service in three battles and tells them that, as a
philosopher, he has fought for decades to save the souls of Athenians.
If Plato’s account is accurate, the jury knew that the only way to stop
Socrates from lecturing about the moral weaknesses of Athenians was
to kill him.

ØØ In Plato’s account, Socrates also addresses the question of his association

with Critias, suggesting that if Critias really understood his words,
really grasped what he said about virtue, he never would have gone on
the bloody rampage that he did.

ØØ After perhaps a three-hour defense, Socrates finally sat down. It was

time for the jurors to render their decision: 280 jurors found Socrates
guilty and 220 jurors voted for acquittal. A close vote, but enough for
conviction under Athenian law.

The Penalty Phase of the Trial

ØØ After the conviction was announced, the trial entered its penalty phase.
Each side, the accusers and the defendant, had to propose a punishment.
After listening to arguments, the jurors would choose which of the two
punishments to adopt.

ØØ The accusers of Socrates proposed death. Socrates could have countered

with a proposal for exile—a punishment that probably would have
satisfied both the accusers and the jury. He could have made the sort

Lecture 1—The Trial of Socrates 9

 of plea for mercy that was typically made to Athenian juries. Socrates,
however, merely reminded the jury that he had a family. He contended
that the unmanly practice of pleading for clemency disgraced the justice
system of Athens.

ØØ Even more surprising, perhaps, Socrates audaciously proposed to the

jury that he be rewarded, not punished. According to Plato, Socrates
asks the jury for free meals for life in a public dining hall in the center
of Athens, an honor given to Olympic victors. Surely, Socrates says, he
has performed a service greater than that of any Olympic athlete.

ØØ Faced with a demand to come up with a genuine punishment, Socrates

suggested a fine of one mina of silver—about one-fifth of his modest
net worth, according to Xenophon. Plato and other supporters of
Socrates upped the offer to 30 minae by agreeing to come up with silver
of their own—too little, too late.

ØØ In the final vote, a larger majority of jurors favored a punishment of

death than had voted for conviction in the first place: 360 jurors voted
for death, 140 for the fine. Under Athenian law, execution would
be accomplished by drinking a cup of poisoned hemlock. As court
officials finished their work, Socrates offered a few memorable words,
including the prediction that history would come to see his conviction
as “shameful for Athens.”

Death and Aftermath

ØØ Socrates spent his final days in a cell. According to Plato, a man named
Crito bribed a juror and made plans to smuggle Socrates out of prison,
but Socrates refused to participate in an escape plan. When the time of
execution arrived, Socrates bathed to spare his survivors the trouble of
washing his body and said goodbye to his wife and three children.

ØØ Near sunset, Socrates took the cup of hemlock from the executioner
and drank it in one gulp. He walked for a bit before lying down on a

10 The Great Trials of World History and the Lessons They Teach Us
 Socrates drinking
the cup of hemlock

bed as the paralysis set in. As the paralysis moved toward his heart, he
told his friends in the cell not to weep. His last words were: “I owe a
cock to Asclepius, don’t forget to pay it.”

ØØ The conviction and execution of Socrates is best seen as a deliberate

choice made by the famous philosopher himself. If the accounts of
Plato and Xenophon are accurate, Socrates sought not to persuade
jurors, but rather to lecture them. The trial of Socrates thus became the
most interesting suicide the world has ever seen.

ØØ Had he wanted to, Socrates could have won an acquittal. The closeness
of the vote shows that there was nothing inevitable about his sentence.
But Socrates was uncompromising. He showed no hint of respect for
Athens or her institutions in his defense. For Socrates, being a good
person came first; being a good citizen was a poor second.

Lecture 1—The Trial of Socrates 11

ØØ Socrates knew how to die. The manner in which he chose to die
enhanced his reputation among his associates and made him the first
great martyr for the cause of free speech, a sort of secular saint. As
I. F. Stone observed, just as Jesus needed the cross to fulfill his mission,
Socrates needed hemlock to fulfill his.

Suggested Reading
Brickhouse and Smith, Socrates on Trial.
Colaiaco, Socrates against Athens.
Stone, The Trial of Socrates.

Questions to Consider
1. Why did the accusers of Socrates step forward when they did, when
Socrates was nearing the end of his life?
2. If the Athenian jury had acquitted Socrates, how might that have
changed what we know about Socrates and how we remember him?
3. Did Socrates want the jury to convict him so that he might be
remembered as a martyr?

12 The Great Trials of World History and the Lessons They Teach Us
 LECTURE 2

The Trial of Gaius

Verres

I
t’s the last day of January, 70 B.C. Sailing into a port on the western
edge of Sicily is a ship carrying a young Roman prosecutor, Marcus
Tullius Cicero. For the next 50 days, Cicero will travel the width
and breadth of the island, gathering a mountain of incriminating
evidence against Sicily’s former provincial governor, Gaius Verres. He
will then return to Rome to build his case.

13
Background
ØØ What we know about the Gaius Verres trial comes to us exclusively from
Cicero’s seven trial orations. No records of the speeches by Verres’s defense
attorney survive. Nor do we have from Verres himself any explanation for
his behavior. It’s altogether possible that Cicero exaggerated the extent of
Verres’s abuses. Nevertheless, the evidence presented leaves little doubt
that Verres was a despised and unscrupulous official.

ØØ Gaius Verres was born around 114 B.C. to a father of senatorial rank.
We have hints from Cicero that Verres, like most young aristocrats of
his time, led the easy life of a voluptuary. By his twenties, Verres had
developed a lust for women and fine art that would remain an obsession
during his governing years.

ØØ For the next decade or so, Verres moved from one official post to
another. Each promotion, it seems, offered a greater opportunity to
embezzle, ravish, plunder, or collect bribes. At age 41, Verres became
provincial governor of Sicily, the most important province in the
Roman Republic. Sicily housed a key naval base, produced abundant
crops, and held vast riches, including thousands of valuable statues and
other artistic treasures.

ØØ Over the next three years, Verres violated the public trust in almost
every way imaginable. He brought ruin to Sicily’s farmers, heartache
to its priests, devastation to its navy, humiliation to the many women
he violated, and death to those who stood in his way. When his term
as provincial governor finally came to an end, the victims of Sicily
demanded justice.

Pretrial Proceedings
ØØ Roman law allowed citizens of the provinces to bring an action against
officials for extortion. Convicted officials could be banished and ordered
to pay up to 250 percent of the amount proven to have been extorted.

14 The Great Trials of World History and the Lessons They Teach Us
Marcus Tullius Cicero

Lecture 2—The Trial of Gaius Verres 15

 Wronged citizens, however, faced an obstacle—namely, that the courts
were controlled by Rome’s corrupt senatorial oligarchy. Juries were drawn
exclusively from the same rank as provincial governors, and anyone who
wanted a favorable verdict was expected to pay a bribe to get it.

ØØ None of this boded well for the Sicilians. But they knew who they
wanted to prosecute Verres. They wanted Cicero, who had earned a
reputation for fairness when he served as quaestor in Sicily’s western
district five years earlier.

ØØ The case intrigued the 36-year-old Cicero for two reasons. First, it
would allow him to match his oratorical skills against Verres’s defense
attorney, Quintus Hortensius Hortalus, who was the acknowledged
“king of the courts.” Second, the case would give Cicero, a product
of the Roman middle class, a chance to attack the corruption of a
tottering aristocratic oligarchy. Cicero was an honorable man—honest,
incorruptible, a man whose greatest desire was to save the republic.

ØØ Hortensius attempted to block Cicero’s appointment and to arrange

for a straw-man prosecutor named Quintus Caecilius, a corrupt former
associate of Verres. If Hortensius could get Caecilius appointed, he’d
have the case in the bag. The prosecutor would simply throw the case.

ØØ Cicero made a powerful case as to why he, and not Caecilius, should be
chosen. Cicero’s argument is recorded in the first of the seven Verrine
Orations, titled Divinatio in Caecilium. In this speech, Cicero argues that
the vast majority of Sicilians prefer him to Caecilius. He points out that
many Sicilians have made it clear that if Cicero is not their prosecutor,
they will not bother to appear as witnesses. Besides, Cicero points out,
his opponent for the job has a conflict of interest, lacks the skills to be an
effective prosecutor, and doesn’t understand the case as well as he does.

ØØ Cicero’s most compelling argument is that it is in the jurors’ own

interest to appoint him as prosecutor. The Roman public is fed up with
corruption and abuse of office. Senatorial power is now hanging by a
thread. If Verres is acquitted with the help of a straw-man prosecutor,

16 The Great Trials of World History and the Lessons They Teach Us
 Cicero argues, all hell might break loose. It is time for senators to show
that they can police the worst of their own. The jury does the right
thing, and Cicero is appointed prosecutor.

ØØ The 25-man jury of senators chosen by lot was a good one, frustrating
another defense strategy: bribing Verres’s way to an acquittal. In his
orations, Cicero wryly notes that Verres’s victims in Sicily might have
been better off if Verres didn’t foresee the need to plunder vast sums for
his jury-bribing fund.

The Trial
ØØ In August, the case of Gaius Verres was called. Cicero abandoned the
usual course of a long opening argument, instead delivered a short but
damning speech against Verres, which in the Verrine Orations is called
the Actio Prima. Cicero tells the jury: “We will make Verres’s guilt so

Lecture 2—The Trial of Gaius Verres 17

 plain to you by witnesses, by private documents, and by public records”
that no long speeches on my part will be necessary.

ØØ In his Actio Prima, Cicero reminds the senatorial jurors that the Roman
Republic is facing a crisis in public confidence, a crisis that threatens
their prerogatives as senators. Only by doing the right thing in this case
can public confidence in the Senate be restored. Cicero also complains
about the defense’s strategy of delay, which he says will force him to let
the victims speak for themselves; there won’t be time for Cicero to add
his own explanations to prove Verres’s guilt. The jurors will hear the
facts, and nothing but the facts.

ØØ Cicero ends his oration with a formal statement of the indictment:

“I declare that Gaius Verres has not only committed many arbitrary
acts, many cruel ones against Roman citizens and the provincials,
many wicked acts against gods and men, but in particular he has taken
away forty million sesterces out of Sicily contrary to the laws.” Cicero
demands that Verres, if convicted, pay a fine of 100 million sesterces,
the maximum allowed by law.

ØØ Over the next nine days, Sicilian after Sicilian takes the stand.
Collectively, they leave little doubt about the extent of the Verres’s
corruption. We don’t know the exact words any witness spoke, but we
do have Cicero’s five carefully edited orations. Called the Actio Secunda,
they lay out the evidence Cicero has amassed against Verres. Intended
less for the Verres jury than for the Roman public, these orations send
a message that Rome will no longer tolerate men who govern through
extortion and corruption.

ØØ Cicero’s orations do not lay out the crimes of Verres in chronological

order. Rather, the evidence is grouped by subject matter. Each oration,
or book, addresses a specific set of crimes. Book 1 describes the alleged
crimes of Verres before he took office in Sicily. Book 2 speaks to his
abuse of his judicial prerogatives. In Book 3, Cicero tells the story of
Verres’s plunder of Sicilian farmers. Book 4 describes his illegal seizure
of private and public works of art. Finally, in Book 5, Cicero addresses

18 The Great Trials of World History and the Lessons They Teach Us
 Verres’s use of unauthorized punishments and his mismanagement of
Sicily’s naval forces.

Trial Conclusion
ØØ As the witness’s stories mounted, Hortensius began to realize that the
evidence against his client was so damning that nothing could be done
to save him. His objections to testimony became less and less frequent.

ØØ Verres himself could only endure three days of the spectacle. He first
claimed illness and stopped attending court. Then he accepted the
inevitable and fled Rome before a verdict was reached.

ØØ The jury found Verres guilty in absentia and ordered him to pay
a fine—probably a substantial one, but there exists no record of the
exact amount.

ØØ Verres remained in exile in Massilia (modern-day Marseilles) for the

last 27 years of his life. In 43 B.C., Mark Antony demanded that
Verres return a set of plundered Corinthian vases that he had managed
to take with him. When Verres refused to comply, Antony had him
summarily executed.

ØØ As for Cicero, with the jury verdict, he claimed victory over the
great Hortensius. In the eyes of many Romans, he became a hero, a
rising star. His final five orations stand as the most important source
for our understanding of the abuse of provincials in the dying days
of the Roman Republic. Not only are the orations the largest single
publication of Cicero’s illustrious career, they might be the largest single
publication of the 1st century B.C.

ØØ Publication of Cicero’s orations was an enormous undertaking, with

each copy having to be laboriously copied by hand. The fact that the
immense effort of publication was undertaken tells us that Cicero
believed the Verres trial to be vitally important. First, he saw the trial

Lecture 2—The Trial of Gaius Verres 19

 as a means of educating the Roman public about the corruption and
rot in the system. Second, he sought to capitalize on the success he
achieved in the trial. The trial cemented Cicero’s reputation as the best
advocate of his time, and he went on to play increasingly important
roles in Roman politics.

ØØ The Verres trial, ultimately, was not just about Verres. As historian
Frank H. Cowles observed, “Verres had been only a type. He had stood
for the whole corrupt system. It was for more than the condemnation
of one man that the orator had striven.” The outcome of the great trial
was the death knell of the power of the senatorial oligarchy.

Suggested Reading
Cowles, “Gaius Verres.”
Everitt, Cicero.
Greenwood, Cicero.

Questions to Consider
1. When so many corrupt government officials escaped punishment, why
did the Verres trial turn out differently?
2. What qualities did Cicero demonstrate in his prosecution of Verres that
made him effective and helped propel him into increasingly important
roles in Roman political life?
3. Verres’s catalogue of crimes is a long one, and includes massive theft of
art, manipulation of Sicily’s justice system, and taxing farmers into ruin.
Of all his crimes, which was most likely to be seen as the most serious
by Sicilians and by the senators who made up his jury?

20 The Great Trials of World History and the Lessons They Teach Us
 LECTURE 3

Three Medieval
Trials

M
edieval trials seem very curious to the modern mind.
Covering a period of roughly 500 years, this lecture will
examine three of these great and gruesome proceedings.
The goal is to make sense—if sense can be made—of the unusual
means for resolving conflicts and punishing bad actors in the
Middle Ages.

21
The Cadaver Synod of 897
ØØ The mid to late 800s was a bad time for popes. Because of Rome’s
weakened condition, popes in the late 800s depended on the support
of secular leaders to hold office and to achieve goals. It was a time of
political factions; a pope had to be aligned with the right faction to
accomplish much of anything.

ØØ In this turbulent time, Bishop Formosus of Portus, a western suburb of

Rome, was making a name for himself in Catholic circles. In the 860s,
the Pope called on Formosus to manage important Church matters
in Bulgaria, France, and Trent. Each time, he received high marks for
his work, so much so that people began mentioning Formosus as a
candidate for pope when the next vacancy opened up.

ØØ But when an opening occurred in 872, the papacy went to a rival, Pope
John VIII. When Formosus found himself on the wrong side of the
issue of who should be crowned the new emperor, he fled Rome. Pope
John VIII convened a synod and charged Formosus with a laundry list
of crimes under Church law. Among the charges were deserting his
diocese without permission, opposing the crowning of the emperor,
and “conspiring with certain iniquitous men and women for the
destruction of the papal see.” Formosus was convicted, defrocked, and
excommunicated.

ØØ Surprisingly, this was not the end of Formosus’s papal ambitions.

Six years later, the excommunication was lifted. In return, Formosus
promised never to return to Rome or execute priestly duties. In 882,
however, Pope John VIII was clobbered over the head with a hammer,
becoming the first pope to be assassinated. Newly installed Pope
Marinus released Formosus from his oath and restored him to his
old diocese. Three more popes came and went until at last, in 891,
Formosus became the first former excommunicant to be elected Pope.

ØØ Pope Formosus was soon faced with a host of thorny problems. The
most important concerned the messy politics of the Church and the

22 The Great Trials of World History and the Lessons They Teach Us
 Holy Roman Empire. The previous pope had made a commitment to
crown as emperor the very young Guy Spoleto III. But Formosus had
his own idea as to who should be emperor.

ØØ Formosus persuaded one Arnulf of Carinthia to invade Italy and liberate

it from the control of Emperor Spoleto. Arnulf crossed the Aps and seized
the city of Rome by force in February 896. A day later, in St. Peter’s
Basilica, Pope Formosus crowned Arnulf as the new emperor. Although
Spoleto died suddenly and was no longer in the picture, nothing about
what the Pope had done sat well with his influential relatives.

ØØ Two months later, Pope Formosus died of a stroke, and for eight months
his corpse rested peacefully in its vault at St. Peter’s. The following year,
Arnulf suffered a stroke and left Rome. Spoleto’s relatives were once
again riding high, and they hadn’t forgotten what Formosus had done

St. Peter’s Basilica

Lecture 3—Three Medieval Trials 23

 to them. They didn’t intend to let a little thing like his death get in the
way of revenge. They put pressure on the new Pope, Stephen VI, to put
Formosus on trial for a list of alleged crimes.

ØØ Pope Stephen VI called a meeting of bishops and cardinals, the

notorious Cadaver Synod. At this meeting, it was decided to remove
the rotting corpse of Pope Formosus from its vault. Church aides
removed the shroud from the corpse, dressed it in pontifical vestments,
put a crown on its skull, and propped what was left of Formosus up on
a throne in the Basilica of St. John Lateran.

ØØ The Pope himself acted as prosecutor. He appointed an 18-year-

old deacon to serve as counsel for Formosus. What happened next is
described by E. R. Chamberlain in his entertaining book The Bad Popes:
“The council wisely kept silent while Stephen raved and screamed his
insults” at the corpse.

ØØ The charges against Formosus included performing the functions of a

bishop after he promised not to, assuming the papacy, and conspiring
against a previous pope. Apparently, dead Pope Formosus had no good
answers for these charges. The Pope proposed that Formosus be found
guilty, and the bishops present didn’t see any reason to disagree.

ØØ As punishment, the three fingers of the corpse that Formosus once used
for blessings were hacked off. The papal crown was removed, the papal
garments stripped off, and the body unceremoniously tossed into the
Tiber River.

ØØ The aftermath of the trial had many twists and turns. Monks
sympathetic to Formosus fetched the corpse from the river, and rumors
began to circulate that the corpse was performing miracles on the banks
of the Tiber. Moreover, bishops appointed by Formosus and still loyal
to him staged a Vatican coup. A mob tossed Stephen VI into a dungeon,
where he was strangled.

24 The Great Trials of World History and the Lessons They Teach Us
ØØ The decrees of the Cadaver Synod were first annulled and then
reinstated by different popes. Formosus’s corpse was returned to its
vault and then exhumed and tossed into the Tiber again. Eventually,
however, Formosus’s bones found their way back to St. Peter’s, where he
was laid to rest for a third time.

ØØ The Cadaver Synod succeeded in dampening enthusiasm for trying

corpses. In 898, in fact, Pope John IX issued a decree prohibiting future
trials of the dead. Even so, Pope Formosus was not the last person to
show up dead for his trial. Over the next 500 years, scores of other
cadavers had their unwanted days in court.

ØØ Trials of the dead can be explained in part by the medieval belief

that death is not the end, that people move on to their rewards and
punishments in the next world. Trials of the dead can also be attributed
to laws that allowed the confiscation of property of persons convicted—
dead or alive—of serious crimes.

The Trial of Emma

ØØ During the Middle Ages, there were two techniques, each semi-rational
at best, that came into use to determine guilt or innocence. The earliest
to develop was trial by oath, in which a person accused of a crime
attempted to round up people willing to swear to his or her innocence.
The number of oath-takers required to prove innocence varied with the
seriousness of the charge and one’s place in society. These trials were not
fact-based inquiries; the oaths were the evidence.

ØØ Objections to trials by oath eventually led to another form of trial

process: trial by ordeal. Bearing almost no resemblance to modern trials,
trials by ordeal were proceedings designed to attract God’s attention
and have Him make the call. If a defendant was truly innocent, the
thinking went, God would step in and perform a miracle to save the
defendant from a grievous wrong.

Lecture 3—Three Medieval Trials 25

ØØ In a trial by ordeal, the defendant was subjected to a challenge, usually
an unpleasant one causing serious injury. A typical ordeal might involve
walking over hot irons or retrieving a stone from boiling water. The
defendant was found innocent if the injury sufficiently healed within a
specific time—3 days was typical—and guilty if the injury still festered.

ØØ No contemporaneous records exist for the trial by ordeal of Emma

of Normandy. The earliest surviving record comes from the Annals of
Winchester, written in about 1200. As with any account written more
than a century after the fact, it is best to assume the story as we have it
contains a mixture of fact and fiction.

ØØ According to the Annals, the Archbishop of Canterbury persuaded King

Edward the Confessor to charge his own mother, Emma of Normandy,
with adultery. The charge claimed that Emma had engaged in sexual
relations with Bishop Elfwine of Winchester. Emma insisted she was
innocent, and she was willing undergo the ordeal of hot iron to prove it.

ØØ On the day of the trial, nine red-hot ploughshares were laid across the
pavement in a church. Emma entered and entreated God to save her.
Led by the hand by bishops, she began to walk. Miraculously, according
to chroniclers, Emma passed the test with flying colors. Her feet were
examined, or so the report goes, and they were found to be uninjured.
The onlookers proclaimed a miracle. Emma was innocent of the charge
and free to go, with all her confiscated property restored.

ØØ There is reason to take this account with a grain of salt. Perhaps the
ploughshares were not as hot as the archbishop ordered. Perhaps Emma’s
feet were toasted, but less so than expected. Perhaps the ordeal never
even occurred at all. Separating fact from fiction can be difficult in a
period without much record keeping. It is beyond question, however,
that the ordeal of the hot iron was one of the more common forms of
ordeal during this time period.

26 The Great Trials of World History and the Lessons They Teach Us
Trial by Combat
ØØ Trial by combat is a variation of trial by ordeal that still captures our
imagination today. The last great example of trial by combat took place
in 1386 at an abbey north of Paris, where royalty, dukes, and thousands
of ordinary Parisians gathered to watch the bloody spectacle. The two
combatants: Jean de Carrouges and Jacques Le Gris. Once close friends,
the two had become bitter rivals after a series of land disputes. This
time, however, there was much more than land at stake.

ØØ In 1384, Carrouges and Le Gris had agreed to bury the hatchet.

Carrouges even introduced Le Gris to his beautiful wife Marguerite—a
big mistake. Two years later, while Carrouges was on the road, Le Gris
visited Carrouges’s chateau. According to one version of the story, Le
Gris propositioned Marguerite, offering her a large sum of money if she
would have sex with him and keep mum about it. When Marguerite
refused, Le Gris raped her.

ØØ When Carrouges returned, he decided to press charges of rape against

Le Gris. But he faced two major problems: First, Marguerite was the
only witness, and Le Gris would surely deny the rape. Second, the judge
for the case would be Count Pierre, a friend and supporter of Le Gris.
Carrouges and Marguerite didn’t even bother to attend the proceeding.
The Count acquitted Le Gris of all charges and accused Marguerite of
“dreaming” the attack.

ØØ Guessing that a traditional appeal would fail, Carrouges proposed that

the rape charge be settled through trial by combat. Trials by combat had
once been a common means of resolving disputes in France. By 1386,
however, they had become very rare. Carrouges probably expected his
idea to be rejected, but the French court approved.

ØØ In a judicial duel, it was assumed that God would watch over the
combatants and direct the outcome. Whichever man survived would
be vindicated in the eyes of God and the law. And it wasn’t just the lives
of the two men that hung in the balance. If Carrouges died, that could

Lecture 3—Three Medieval Trials 27

 only mean that Marguerite’s rape accusation was baseless and that she
had committed perjury, a capital offense. If her husband lost the duel,
Marguerite would be immediately burned at the stake.

ØØ Let’s set the scene on the day of the duel: Thousands of spectators gather
at dawn, flocking to a jousting arena at an abbey in the north Paris
suburbs. The King is there, accompanied by an impressive collection of
dukes. Marguerite, dressed in black, sits in a carriage overlooking the
field. After a brief ceremony, it is time for the duel to begin.

ØØ The horses square up at the proper distance. The marshal signals. The
two men charge at each other. On the first pass, their lances strike, but
no harm is done. On the second pass, they strike each other on their
armored headpieces. They wheel around and charge at each other a
third time, striking each other’s shields and shattering both lances. In
round four, they slash at each other with axes until Le Gris manages to
drive his through the neck of Carrouges’s horse, beheading it. Carrouges
jumps off his horse, charges at Le Gris, and disembowels Le Gris’s horse.

28 The Great Trials of World History and the Lessons They Teach Us
ØØ Unhorsed, the two combatants pull out their swords and begin to
battle on foot. Le Gris gains the advantage after he manages to stab his
rival in his right thigh. But Carrouges isn’t finished yet. He wrestles Le
Gris to the ground and tries to stab him, but the armor is too tough
for Carrouges’s sword. So he tears Le Gris’s faceplate off, takes out his
dagger, and drives it through Le Gris’s neck, killing him.

ØØ His victory secured, Carrouges is bandaged up by his pages and walks

over to the King, where he kneels and accepts his prize of 1,000 francs.
Carrouges and Marguerite then ride from the jousting field to Notre-
Dame Cathedral to thank God for securing them justice.

Suggested Reading
Bartlett, Trial by Fire and Water.
Jager, The Last Duel.
Llewellyn, Rome in the Dark Ages.

Questions to Consider
1. Medieval trials were a step backward in fairness and rationality from
those seen in ancient Greece and ancient Rome. Why this regression?
2. As strange as trials by ordeal seem to the modern mind, what
advantages might they have had over other forms of dispensing justice?
3. What advantages did high status have for persons accused of crimes in
the Middle Ages?

Lecture 3—Three Medieval Trials 29

 LECTURE 4

The Trial of Sir

Thomas More

I
t’s July 1, 1535. Sir Thomas More, weakened by more than a year
spent as a prisoner in the Tower of London, is about to go on trial.
A former friend and trusted advisor of King Henry VIII, Sir Thomas
is charged with treason, a capital offense. Few people in history have
faced their trials and deaths as squarely, calmly, and with as much
integrity as More, and his story is both important and instructive.

30
Background: Henry Finds Leviticus
ØØ In 1509, the new 18-year-old King of England, Henry VIII, married a
young Spanish princess, Catherine of Aragon. The marriage came with
the blessing of Pope Julius II, in the form of a dispensation from an
injunction found in the Bible. The dispensation was deemed necessary
because Catherine had been briefly married to Henry’s older brother,
Arthur. This raised the question of whether Henry’s marriage violated
Leviticus 20:21: “If a man shall take his brother’s wife, it is an unclean
thing.” In granting the dispensation, the Pope noted that Arthur was ill
throughout the six-month-long marriage until his death, and that the
marriage—according to Catherine—was never consummated.

ØØ Seventeen years passed with no questions raised about the Pope’s

dispensation. In 1526, however, King Henry’s affection turned from
Catherine to the beautiful Anne Boleyn. And suddenly, reviewing
Leviticus, Henry began to question the lawfulness of his marriage
to Catherine. The King was also disappointed that his marriage to
Catherine had failed to produce a healthy son. It was Henry’s twin
concerns for his sex life and his bloodline—and not any genuine
spiritual zeal—that set in motion a religious conflict that would change
the face of England.

ØØ By June 1527, Henry was sufficiently convinced that his 1509 marriage
violated the command of Leviticus that he informed his wife that they
had been unlawfully married for 18 years. Faced with having her dignity
as a married woman stripped and her daughter labeled illegitimate,
Catherine did not take the news well.

ØØ The King raised the issue of his marriage with his lord councilor,
Thomas More, at Hampton Court. More suggested to Henry a
different interpretation of Leviticus. Displeased, the King ordered More
to “commune further” with royal advisers and to read a report that
made the case for annulment. But their differences remained.

Lecture 4—The Trial of Sir Thomas More 31

 Sir Thomas More

32 The Great Trials of World History and the Lessons They Teach Us
ØØ Ultimately, the disagreement was over the matter of papal supremacy.
The King argued that Leviticus made his marriage a crime in God’s
eyes, and that no pope had the power to waive the Biblical injunction.
More, on the other hand, accepted papal supremacy as a matter of faith
and viewed the Pope’s 1509 dispensation as conclusive.

The King Takes On the Church

ØØ In 1530, Henry VIII mounted a full-court press to get his marriage
annulled. He recruited a scholar to write a treatise demonstrating the
unlawfulness of his marriage. He pressured the faculties of England’s
universities to issue declarations supporting annulment. He gathered
lords and prelates to write letters to Pope Clement pushing his cause.
He then issued a proclamation that prevented enforcement of any papal
ruling inconsistent with his own view of his marriage’s lawfulness.

ØØ This was a direct attack on Vatican authority, and it did not sit
well with Thomas More, who expressed his disagreement with his
King’s proclamation. Thomas Cromwell, a member of the King’s
inner circle, pushed the King’s view that the law of the realm should
trump ecclesiastical law. Cromwell was cunning, cynical, intelligent,
ambitious, and resourceful—a worthy nemesis for More.

ØØ In 1531, an impatient King Henry summoned the clergy of England

to Westminster. He demanded that the convocation issue a statement
recognizing him as “the sole protector and supreme head of the English
Church and clergy.” After a heated debate—and insertion of the phrase
“so far as the law of Christ allows” into the draft—the bishops agreed to
issue the statement.

ØØ Catherine refused to drop her opposition to annulment, and Henry

and Catherine separated. By late the following year, Anne Boleyn was
pregnant. In early 1533, Henry and Anne Boleyn secretly married.

Lecture 4—The Trial of Sir Thomas More 33

ØØ While the King and Anne Boleyn shared a bed, Henry’s advisers stepped
up pressure on Rome and domestic opponents of his annulment.
Thomas Cromwell presented a bill to Parliament that denied payments
to Rome, transferred powers of the Church to Parliament, and limited
the authority of the Church—and Thomas More, who had since been
named Lord Chancellor—to arrest and punish heretics.

ØØ More could not stomach the assault on his authority to pursue heretics.
But the last straw was the decision of the English clergy to submit to
Henry’s demand and accept that all ecclesiastical law required royal
consent. In effect, the clergy agreed to make Henry the head of the
Church of England. On May 16, 1532, the day after the clergy’s action,
More submitted his resignation.

ØØ The following year, Parliament officially declared Henry’s marriage to

Catherine to have been invalid, and proclaimed Anne Boleyn “Queene
at Greenewych.” Thomas More, still serving as a king’s councilor, did
not attend Anne’s coronation. It was at this moment, says biographer
Peter Ackroyd, “that Henry hardened his heart” against More. The King
decided to remove More’s stubborn opposition one way or another.

The Arrest and Imprisonment of Thomas More

ØØ Thomas Cromwell began an investigation into More’s activities, meeting
informally with More in February 1534. More denied participation
in any conspiracy against the King. A month later, in letters to both
Henry  VIII and Cromwell, he reaffirmed his loyalty to the King and
expressed his desire to further Henry’s interests. On the matter of
Henry’s marriage, however, More adhered to a policy of silence.

ØØ Meanwhile, Parliament enacted numerous bills proposed by Cromwell

on the King’s behalf. One such bill, the Act of Succession, declared
Henry’s marriage to Catherine void and established a line of succession
through the children of Queen Anne. The Act also specified various
new offenses to be treasonous, such as “derogating” the royal family.

34 The Great Trials of World History and the Lessons They Teach Us
 Most significantly for More, the Act required all of the King’s subjects
to take an oath promising to maintain “the whole effects and contents
of the present Act.”

ØØ On April 12, 1534, More was handed a summons to appear at

Lambeth Palace to take the oath of succession. When he arrived the
following day, More asked to see the texts of both the oath and the Act
of Succession. After reading the documents, he told the commissioners
that while he would deny nothing contained in the oath, his conscience
would not allow him to take it.

ØØ Indecisive as to how to handle More’s refusal, the commissioners

sent More out of the room to wait while they discussed the matter.
Summoned back, More again refused to take the oath—even after much
cajoling and threats of imprisonment. He also refused to elaborate on
his reasons. The frustrated commissioners turned More over to the
custody of the Abbot of Westminster, and More spent the remainder of
year imprisoned in the Tower of London.

The Trial and Execution of Thomas More

ØØ In November 1534, new bills that spelled trouble for More were
introduced in Parliament. The Act of Supremacy declared Henry to be
the supreme head of the Church of England. The Treason Act made it a
capital offense to “maliciously wish, will, or desire, by words or writing”
to deny to members of the royal family their “dignity, title, or name of
their royal estates.”

ØØ After enactment of the new laws, Thomas Cromwell and four other
advisers to the King interviewed Thomas More at the Tower of London.
The men told More that Henry demanded to know his opinion of the
Act of Supremacy. More balked, saying that he didn’t like to “meddle”
in such affairs. “The King might yet be merciful,” More was told,
if he would just acknowledge his consent to the Act. But More was

Lecture 4—The Trial of Sir Thomas More 35

 King Henry VIII

36 The Great Trials of World History and the Lessons They Teach Us
 unmoved. His whole concern now, he said, was to live the best possible
Christian life.

ØØ In May 1535, King Henry’s determination to crush his remaining

opposition hardened. More faced intense questioning in a third
interrogation before Cromwell and other councilors. Asked once again
to give an oath—this time affirming Henry’s supremacy as the head of
the Church of England—More maintained his resolute silence.

ØØ Trying a new tack, Cromwell sent Solicitor-General Richard Rich to

More’s cell with instructions to remove his books and writing materials.
While Rich and More visited briefly in the Tower, a discussion about
the King’s role might—or more likely might not—have taken place.
The question of what really happened would become a key focus in
More’s later trial.

ØØ Shortly after Rich’s visit, More faced official investigators again in what
amounted to a preliminary hearing to determine whether he violated
the Treason Act. Two days later, the commission approved a four-count
indictment. More would go on trial for his life.

ØØ On July 1, 1535, Sir Thomas More makes his way slowly into
Westminster Hall for his trial. Although a jury of 12 men will have
the final say, More understands that a verdict of guilty is inevitable.
Were the jury to declare More innocent, they might face imprisonment
themselves.

ØØ The attorney general opens the proceedings by reading the indictment,

which consists of four charges. The Duke of Norfolk offers More a final
chance to escape with his life. More replies that he appreciates the offer,
but “I beseech Almighty God that I may continue in the mind I am in,
through his grace, unto death.”

ØØ On the charge of opposing Henry’s marriage, More freely admits that

he had, “according to the dictates of my conscience,” told the King his
true opinion. To do otherwise, he says, would have “basely flattered”

Lecture 4—The Trial of Sir Thomas More 37

 his Majesty and made him “a wicked subject” and “a traitor to God.”
Giving the King an honest answer when asked for it can hardly be
treasonous, More contends.

ØØ The second charge against More is that he did not recognize the King
as the supreme head of the Church when questioned on the matter.
More argues that “no law in the world can punish any man for his
silence.” When told that his silence was “an evident sign of the malice
of his heart,” More quotes a legal maxim that held that “he that holds
his peace, gives consent.” In response to a question from the King’s
attorney, More says: “I assure you that I have not hitherto disclosed and
opened my conscience and mind to any person living in all the world.”

ØØ The third charge against More is that, while in the Tower, he wrote
letters to a Bishop Fisher inciting him to violate the Treason Act.
The letters in question, which officials claim Fisher burned, cannot
be produced. More insists that the letters counseled no violations of
law. The letters, he says, merely told Fisher that he had followed his
conscience when questioned on the matter of Henry’s supremacy of
the Church. More says he advised Fisher to “satisfy his own mind”—
whatever position that took him to.

ØØ The fourth charge, which More calls “the principal crime objected
against me,” concerns his conversation with Richard Rich a few days
earlier. The indictment alleges that More, responding to a hypothetical
question posed by Rich, told his visitor that the Parliament had no
more power to enact the Act of Supremacy than it did to pass a law
declaring God not to be God.

ØØ The court calls Solicitor General Rich to testify. Rich gives his account
of the conversation, confirming the charge laid out in the indictment.
More emphatically rejects Rich’s testimony. More says that if Rich’s
version were in fact true “then I pray I may never see God’s face.” More’s
striking statement, given his intense and sincere religiosity, leaves little
room to doubt that Rich was flat-out lying.

38 The Great Trials of World History and the Lessons They Teach Us
ØØ The 12-man jury deliberates for “scarcely a quarter of an hour” before
returning with its verdict: guilty. More, finally with nothing more to lose
and free to speak his mind, tells the court his indictment is grounded on
a law “repugnant to God.” At last, the sentence is pronounced: More is
to be drawn and quartered. In recognition of More’s years of service, the
King commutes his sentence from disembowelment to simple beheading.

ØØ More was executed by beheading on July 6, 1535. Lest anyone suppose

that traitors would be tolerated by English courts, More’s head was
boiled, impaled on a pole, and positioned on London Bridge.

Suggested Reading
Ackroyd, The Life of Thomas More.
Monti, The King’s Good Servant but God’s First.
Wegemer and Smith, A Thomas More Source Book.

Questions to Consider
1. No one can deny that Sir Thomas More was a man of principle. Is that
quality something we should unreservedly admire?
2. The validity of Henry VIII’s marriage to Anne Boleyn was widely
accepted by the time of More’s trial. Why did Henry find it necessary to
prosecute his once trusted friend?
3. How might the history of Europe have been different if Henry had
accepted More’s advice and remained married to Catherine?

Lecture 4—The Trial of Sir Thomas More 39

 LECTURE 5

The Trial of
Giordano Bruno

T
he year is 1600. Giordano Bruno, one of the most original
minds of the 16th century, rides into Rome’s Campo de’ Fiori
on a mule. Gagged with a leather bridle to prevent him from
shouting heresies, Bruno is stripped naked and tied to a stake atop
a pile of firewood. A priest holds a crucifix up to Bruno’s face. Bruno
turns his head away. The pyre is lit by an official, and the flames soon
rise to consume the heretic.

40
The Life and Thought of Giordano Bruno
ØØ In 1562, at the age of 14, Giordano Bruno left his childhood home near
Nola, Italy. His destination was Naples, 30 miles to the west. Bruno was
a precocious boy, and it is easy to imagine the attraction that Naples,
then the fifth-largest city in the world, would have held for him. Little is
known about his first few years in Naples, but Bruno spent a great deal
of time reading, studying, training his memory, and thinking.

ØØ At 17, Bruno entered the monastery of San Domenico Maggiore. It

was here that Bruno delved into the philosophies of Scholasticism and
Neoplatonism. Scholastic philosophy was still popular at the time, having
dominated teaching for almost 500 years. The philosophy built on the
ideas of Aristotle as reconsidered by St. Thomas Aquinas. A contending
philosophy, Neoplatonism, was entering a period of revival. Bruno took
pieces of each of the two traditions and wove his own philosophy.

ØØ Bruno’s nonconformist thinking concerned officials at the monastery.

He removed from his room pictures of the Virgin Mary and all other
religious decorations, save for a single crucifix. He also read and made
margin notes in a book banned at the monastery, Erasmus’s “Paraphrases
of the New Testament.”

ØØ In the privacy of his own head, Bruno was having even more scandalous
thoughts: He was experiencing doubts that Jesus was the Son of God
incarnate in human flesh, a central teaching of the Catholic Church.

ØØ Nonetheless, it was clear to all at the monastery that Bruno was

a brilliant student, and his indiscretions and idiosyncrasies were
tolerated. Bruno experimented with “artificial memory” techniques first
developed in Ancient Greece and Rome, earning a reputation as a man
who possessed an unbelievable memory. In 1569, monastery officials
sent him to Rome to perform feats of memory before Pope Pius V.

ØØ By age 24, Bruno had become a priest and gained admission as a formal
student in theology at the college attached to San Domenico Maggiore.

Lecture 5—The Trial of Giordano Bruno 41

 Monastery of San
Domenico Maggiore

Once again, Bruno couldn’t help but get into trouble. Three years into
his training, Bruno was informed that he was under investigation by
the Inquisition. According to biographer Ingrid Rowland, the primary
charge was likely Bruno’s defense of certain early Christian heretics who
had questioned Christ’s divinity.

ØØ After learning of the proceedings against him, Bruno headed to a

convent in Rome. After a brief stay there, he shed the garments of a friar
and hit the road. He trekked north to Genoa, then on to the seaside
village of Noli, where he landed a job teaching grammar to children.
For the next 15 years, Bruno traveled throughout Europe, never staying
more than three years in any one city. Wherever he went, he wrote and
sought jobs teaching philosophy.

ØØ One of the cities he visited was Geneva, the intellectual and spiritual
center of Calvinism. Here Bruno converted to Protestantism and
enrolled at the University of Geneva as “Phillipus Brunus Nolanus,

42 The Great Trials of World History and the Lessons They Teach Us
 professor of sacred theology.” But Bruno was Bruno, and he had a
knack for getting into trouble. While at the university, he couldn’t
resist publishing a broadsheet attacking the philosophical ideas of a
senior professor. For this he was arrested, spent more than two weeks
in jail, and was released only when he agreed to apologize on his knees
to the senior professor.

ØØ Bruno’s future in Geneva seemed bleak, so he hit the road once more.
In Paris, he published a book about memorization techniques called
On the Shadows of Ideas. Intrigued by the techniques, King Henri III
made Bruno his private tutor, as well as professor and royal reader. His
job was to instruct the King and members of his court in the art of
memorization, logic, and metaphysics. Bruno might have happily spent
the rest of his days in Paris, but he heard rumors that the Inquisition
was coming to France and knew it was time to move on.

ØØ Bruno moved to England. At Oxford, he developed ideas about the

universe that marked him as an original thinker of the first order. For
example, he married the controversial Copernican model of the solar
system with a version of Platonic theology to produce a view of the
universe that was entirely new.

ØØ After leaving Oxford for London, Bruno expanded on his original views.
He published a dialogue, The Ash Wednesday Supper, which suggests
that the universe is far larger than Copernicus imagined. Bruno saw a
universe with millions of inhabited planets circling millions of suns. In
subsequent dialogues, he argued that once people become aware of the
fact that they live in a vast, inhabited, and infinitely old universe, their
lives would be transformed for the better.

ØØ It is almost impossible to overstate how mind-blowing these ideas

must have seemed at the time. And Bruno’s wild thoughts were not
confined to the vastness of the universe. He was also thinking and
writing about things almost infinitely small. Bruno promoted an
atomic theory which posited that every physical thing is made up of

Lecture 5—The Trial of Giordano Bruno 43

 identical particles (in Bruno’s terminology, “seeds”) in which God, and
his informing love, reside.

ØØ By the late 16th century, Bruno had developed a new philosophy and
a new set of religious beliefs outside the scope of previous Western
thought. It was a philosophy that brought together ideas about the
unimaginably large and the unimaginably small, unified by a belief in
an omnipresent, loving God. Even though his ideas owed relatively little
to empirical observation or mathematics, Bruno’s natural philosophy
comes closer to our modern understanding of the cosmos than any
other thinker of the 16th or 17th centuries.

ØØ In 1585, Bruno’s patron, the French ambassador, was recalled to Paris.

Bruno had no choice but to follow. But Paris was not the Paris that
Bruno used to know—the city was on the verge of a religious war. After
just a year, Bruno fled to Germany. In Frankfurt, he published his last
two works developing his unique philosophy. The works marked the
end of a prolific publishing career—30 books over two decades.

A Bad Move
ØØ While Bruno was still in Frankfurt, a wealthy Venetian gentleman,
Giovanni Mocenigo, invited him to come to Venice. Mocenigo had
read several of Bruno’s writings and was so intrigued that he asked the
philosopher to stay in his residence and tutor him. In what ultimately
proved to be a fatal decision, Bruno accepted the offer.

ØØ In 1592, Bruno moved to Venice and took up residence in Mocenigo’s

home. Things went well at first, but soon Mocenigo began to suspect
Bruno of holding heretical beliefs. He also suspected that Bruno was
withholding some of his most effective memory tricks and becoming
a bit too friendly with his wife. Mocenigo disclosed his concerns about
Bruno to his father confessor, who urged Mocenigo to denounce Bruno
to The Holy Office.

44 The Great Trials of World History and the Lessons They Teach Us
ØØ Bruno sensed that all was not well between him and his host and
announced that he had decided to leave Venice and return to Germany.
That swung Mocenigo into action. Bruno later described what
happened next: Mocenigo ordered “five or six” servants to “lift me out
of my bed and carry me to the attic” of his palazzo. Locked in the attic,
Bruno was told by Mocenigo that unless he revealed his best secrets
for memorizing words, “something unpleasant would happen.” Bruno
replied, “I have taught you enough and more than I was obliged to, and
I do not deserve to be treated like this.”

ØØ The next day, Mocenigo reported Bruno to civil authorities. The

authorities, in turn, delivered him to the Inquisition.

ØØ Bruno was interrogated in jail and deposed six times by three judges.
He admitted to having doubts about some tenets of Catholicism, but
denied holding or advocating heretical positions. He made one unwise
admission, however, telling his inquisitors that he had always “harbored
doubts” about whether Jesus was the Son of God. This was likely the
inquisitors’ excuse for keeping him in jail even after he retracted and
renounced all the beliefs attributed to him by Mocenigo.

ØØ While in his cell in Venice, awaiting a decision by Venetian authorities

on a request by Rome for his extradition to that city, Bruno got into a
heated religious argument with fellow prisoners, both of whom were
friars. The argument concerned a statement that the Bible reports Jesus
made on the cross: “Father, let this cup pass me by.” Bruno argued that
the statement proved that Jesus was mortal. The friars begged to differ.

Bruno’s Trial in Rome

ØØ It took months for a decision to be made regarding Bruno’s extradition
to Rome. In February 1593, Venetian authorities loaded Bruno on a
ship bound for the prisons of the Roman Inquisition. For the final
seven years of his life, Bruno lived in a private cell located just south of
St. Peter’s Square.

Lecture 5—The Trial of Giordano Bruno 45

ØØ During this time, a former cellmate of Bruno’s in Venice, Friar
Celestino, came forward with a list of 13 of Bruno’s statements and
actions in prison which the friar believed were heretical. One of the
friar’s charges concerned Bruno’s cosmology. The friar reported that
Bruno believed “that there are many worlds, and all the stars are
worlds, and he thinks that anyone who believes that this is the only
world is extremely ignorant.” He also charged Bruno with making
light of Biblical stories. The friar said Bruno claimed that “Moses only
pretended to talk to God on Mount Sinai, and that the law he gave to
the Hebrew people was made up by himself.” He also reported Bruno’s
future and disreputable intentions. According to the friar, “Bruno
wanted to return to Germany or England among the heretics where he
could live in his own way … and plant his new and infinite heresies.”

ØØ The friar’s shocking charges prompted Church officials in Rome to

launch a search for all of Bruno’s former cellmates. Their interrogations,
for the most part, confirmed the friar’s allegations.

ØØ Roman inquisitors examined the

transcripts from the proceeding
against Bruno in Venice. They
noted in the transcripts the large
number of references to Bruno’s
early writings. Over a strikingly
long period of time, roughly
the next six years, officials
struggled to prepare a complete
list of Bruno’s writings and to
track down surviving copies in
whatever parts of Europe they
might be found.

ØØ It took some time for the

Inquisition to decide to burn
Bruno at the stake. Church
officials had to weigh the Moses

46 The Great Trials of World History and the Lessons They Teach Us
 political risk of offending some of Bruno’s powerful friends around
Europe. Bruno had shared his knowledge and ideas for years,
sometimes with kings, ambassadors, and dukes, so Rome had reason to
worry that his execution might have political repercussions. Execution
also represented a failure of sorts. The Roman Inquisition set as its
goal serving Christ through admonition and persuasion, not through
punishment.

ØØ On February 8, 1600, Church officials performed “a solemn

degradation,” a ceremony in which Bruno was stripped of his symbols
of the priesthood, shaved, dressed in the clothes of a layman, and turned
over to a bailiff for imprisonment. For the next eight days, various friars
made appeals to Bruno to repent, before the end came in Campo de’
Fiori on February 17, 1600.

Suggested Reading
Bruno, The Expulsion of the Triumphant Beast.
Gatti, Essays on Giordano Bruno.
Rowland, Giordano Bruno.

Questions to Consider
1. Bruno was a man who held many unconventional ideas. Which of his
ideas seemed most repugnant and dangerous to his prosecutors?
2. Why was the Catholic Church of the 15th century so anxious to root
out heresies that seem harmless today?
3. Were Bruno’s ideas or his personality more responsible for his fate?

Lecture 5—The Trial of Giordano Bruno 47

 LECTURE 6

The Salem
Witchcraft Trials

I
t’s the brutally cold January of 1692 in Salem Village,
Massachusetts, and things are not well in the home of Reverend
Samuel Parris. Parris’s nine-year-old daughter, Betty, and her
11-year-old cousin, Abigail Williams, are diving under furniture,
barking like dogs, contorting in pain, and babbling nonsensically.
Other girls soon begin acting in strange but similar ways, leading to
accusations of witchcraft. Before long, more than 140 people stand
accused. Dozens will languish in jail for months, and some will die
there. Many others will be executed.

48
Early Accusations
ØØ When his daughter and niece began acting strangely, Reverend Samuel
Parris turned to William Griggs, a local physician, and John Hale,
another minister. Hale and Griggs agreed on the source of the problem:
witchcraft. The widespread belief that witches targeted children made
the diagnosis easy. Hale, Griggs, and almost everyone else in Salem
believed not only that Satan was real, but that he acted in the world,
sowing disease and bad fortune.

ØØ Twelve-year-old Ann Putnam and Elizabeth Hubbard, the 16-year-old

niece of Dr. Griggs, were also choking, shuddering, and contorting.
Thomas Putnam pressed his daughter, asking her who was to blame
for her behavior. She supplied three names. And then it began. With
the prominent Putnam family supporting the hunt for witches, officials
had to pay attention.

ØØ On February 29, Thomas Putnam and three friends rode from Salem
Village to Salem Town to formally charge three women with witchcraft.
Acting on the complaint, the constable arrested Sarah Good, Sarah
Osborne, and Tituba, an Indian slave working in Reverend Parris’s
parsonage. All three were ordered to appear the next morning before
two justices of the peace.

ØØ The pews of the village meetinghouse were crowded with curious

farmers. Two justices of the peace sat at a table in front of the pulpit.
Justice of the Peace John Hathorne wasted no time getting down
to business. “Sarah Good,” he asked, “what evil spirit do you have
familiarity with?” “None,” she answered. But Hathorne had already
made up his mind about her guilt. He asked her young accusers to
rise. When Good denied attacking the girls, each began twisting and
contorting as if electricity were pulsing through their bodies. Hathorne
drew what seemed to be the obvious conclusion. “Sarah Good, do you
not see what you have done? Tell us the truth! Why do you torment
these children?” This became the pattern for many of the examinations
to follow.

Lecture 6—The Salem Witchcraft Trials 49

ØØ The day after their examinations, both Good and Osborne were
undressed and closely inspected all over by the wife of a Salem
innkeeper. Moles and birth marks were considered witch-marks—signs
from the Devil that the marked person was now under his command.

Tituba Confesses
ØØ It’s possible the whole matter might have ended with admonishments
were it not for the performance of Tituba, the accused Indian slave.
At first, Tituba denied any guilt. But then, sensing that she might
become a scapegoat, Tituba confessed, but deflected most of the blame
to others. She claimed that she was approached by a tall man from
Boston—Satan—who asked her to sign his book and do his work.

ØØ Yes, Tituba declared, she was a witch. In fact, she and four other witches,
including Good and Osborne, had flown through the air on their poles.
But she was a reluctant witch. When Good and Osborne ordered her to
kill Thomas Putnam’s son, she tried to run to Reverend Parris for counsel,
but the Devil blocked her path. And when Tituba resisted Sarah Good’s
demand that she torture girls in the Parris home, she was struck deaf.

ØØ You can imagine how jaw-dropping these revelations must have

seemed. Tituba’s confession transformed her into a central figure in
the expanding prosecutions. Her confession also served to silence
most skeptics. The authorities were on the right track. Witch-hunting
became an obsession.

The Expanding Circle of Accusations

ØØ The afflicted girls soon made new accusations, reporting that the
spectral forms of four additional women had attacked them. During a
March church service, Ann Putnam shouted, “Look where Goodwife
Cloyce sits on the beam suckling her yellow bird between her fingers!”
Ann’s mother joined the chorus of accusers.

50 The Great Trials of World History and the Lessons They Teach Us
ØØ Dorothy Good, the four-year-old daughter of accused witch Sarah
Good, became the first child to be accused of witchcraft. Three girls
claimed to have been bitten by Dorothy’s specter. The little girl was
arrested and kept in jail for eight months. She watched her mother get
carried off to the gallows, cried her heart out, and went insane.

ØØ Meanwhile, the number of girls afflicted continued to grow, rising to

seven. Historian Peter Hoffer sees the girls as a band of attention-seekers.
In his words, the girls “turned themselves from a circle of friends into a
gang of juvenile delinquents.” The accusing girls developed increasingly
polished performances for ever larger audiences, and their damning
testimony was widely accepted.

ØØ Stuck in jail, suspects learned that confessions could be a way to avoid

the gallows. Confessing witches became witnesses, not defendants.
Women like Deliverance Hobbs stepped forward to tell magistrates that

Lecture 6—The Salem Witchcraft Trials 51

 she pinched girls at the Devil’s command, went joyriding on poles, and
attended a gathering of witches in an open field near Salem.

ØØ The hysteria soon spread beyond Salem Village to dozens of nearby

Massachusetts towns and villages. In all, more than 140 people were
accused. The colony was teetering on the brink of chaos. Governor
William Phips, returning from England, knew that fast action was
needed. He created a special, nine-judge court to take up the witchcraft
cases. A quorum of five judges sat for each trial session.

ØØ Chief Justice William Stoughton and his fellow judges agreed to

accept confessions as credible. On other questions, the court looked to
ministers for guidance. They decided to permit as evidence something
called the “touching test,” in which an accused witch was asked to
touch the afflicted person. If her touch caused the afflicted person’s
contortions to stop, she must be a witch. The judges also green-lighted
physical examinations to search for witch-marks. Most importantly,
they accepted—even encouraged—spectral evidence, testimony that
the defendant’s specter had attacked or threatened someone even while
the defendant maintained a physical presence elsewhere.

ØØ Evidence that would be excluded from modern courtrooms—hearsay,

gossip, stories, unsupported assertions, and surmises—was admitted.
Accused witches had no legal counsel, could not call witnesses to testify
on their behalf, and had no formal avenues of appeal. Defendants
could, however, speak for themselves. They could produce evidence,
and they could cross-examine their accusers.

The Trials
ØØ The court convened for the first time on June 2, 1692, in Salem
Town. The first accused witch to come to trial was a woman named
Bridget Bishop. Bishop was 60 years old and owned a tavern where
patrons drank cider ale and played shuffleboard, even on the Sabbath.
She feuded with her neighbors and paid her bills slowly, if at all. In

52 The Great Trials of World History and the Lessons They Teach Us
 other words, Bishop was a societal outlier—a prime candidate for an
accusation of witchcraft.

ØØ Thomas Newton, the special prosecutor, likely selected Bishop for his
first prosecution because he believed a stronger case could be made
against her than any of the other accused witches. During the trial,
a field hand testified that he saw Bishop’s specter steal eggs and then
transform into a cat. Confessed witch Deliverance Hobbs testified that
Bishop was one of them. And a villager named Samuel Grey told the
court that Bishop visited his bed at night and tormented him.

ØØ Meanwhile, a jury of matrons assigned to examine Bishop’s body

reported that they found an “excrescence of flesh”—a place where her
familiar might have sucked. Several girls testified that Bishop’s specter
afflicted them. Other villagers claimed that Bishop was responsible for
various miseries they had suffered.

ØØ By modern standards, much of the evidence brought against Bishop

was laughable. In 1692, however, it was taken quite seriously. It is no
surprise that Bishop’s jury returned a verdict of guilty. But not everyone
who participated in the trial was satisfied. One of the judges was so
aghast at the conduct of the trial that he resigned from the court. Chief
Justice Stoughton had no such reservations. On June 10, 1692, Bishop
was carted to Gallows Hill and hanged—the first victim of the Salem
witchcraft trials.

ØØ Not all defendants were as disreputable as Bridget Bishop. Rebecca

Nurse was a pious, respected woman. Yet Nurse’s specter, according to
Ann Putnam and Abigail Williams, had attacked them in March. Ann
Putnam’s mother testified that Nurse demanded she sign the Devil’s
book, an action widely believed to be a necessary first step in joining
the Devil’s forces.

ØØ Nurse was one of three Towne sisters, all of whom were accused by the
Putnams of witchcraft. It is probably not a coincidence that the Towne

Lecture 6—The Salem Witchcraft Trials 53

 family had a long-standing quarrel with the Putnam family. The Nurse
trial shows how the trials increasingly became a way to settle old scores.

ØØ The Nurse jury, for the first time in the Salem trials, returned a verdict
of not guilty. This verdict greatly displeased Chief Justice Stoughton.
He told the jury to go back and consider again a statement of Nurse’s
that might be considered an admission of guilt—but was more likely
the result of confusion about the question. The jury did as it was told
and, after two more sets of deliberations, came back with a verdict of
guilty. On July 19, 1692, Nurse rode with four other convicted witches
in a cart to Gallows Hill.

ØØ Persons who scoffed at accusations of witchcraft risked becoming

targets of accusations themselves. The most notable witchcraft
skeptic to face charges was John Proctor, who some might know
as a central figure in Arthur Miller’s The Crucible. Proctor was an
opinionated tavern owner who openly denounced the witch hunt. His
denunciation led to an accusation of witchcraft against him by Ann
Putnam and others.

ØØ Proctor fought back as best he could. He accused confessed witches

of lying and demanded that his trial be moved to Boston. The effort
proved futile, and Proctor was hanged. His pregnant wife, also
convicted of witchcraft, was spared, as it was believed that an innocent
unborn child should not be killed for the sins of its mother.

The End of the Hysteria

ØØ By early autumn, Salem’s lust for blood had ebbed. When accusations of
witchcraft were made against the powerful and connected—people like
the wife of Governor Phips—they pushed back. Reverend John Hale
became a skeptic: “It cannot be imagined that in a place of so much
knowledge, so many in so small compass of land should abominably
leap into the Devil’s lap at once.”

54 The Great Trials of World History and the Lessons They Teach Us
ØØ The educated elite of the colony began working to end the witch-
hunting. Increase Mather published Cases of Conscience, which has been
called “America’s first tract on evidence.” In the work, Mather argued
that it “were better that ten suspected witches should escape than one
innocent person should be condemned.”

ØØ Samuel Willard, a highly regarded Boston minister, circulated a piece

called Some Miscellany Observations on Our Present Debates Respecting
Witchcrafts. Willard suggested that the Devil might create the specter
of an innocent person. In fact, wasn’t that just the sort of devious trick
the Devil might try? Mather’s and Willard’s works caught the attention
of Governor Phips, who ordered the Salem court to exclude spectral
evidence and touching tests and insisted on proof of guilt by clear and
convincing evidence in future cases.

ØØ With spectral evidence excluded, almost all subsequent witchcraft trials

ended in acquittals. In May of 1693, Governor Phips released from
prison all remaining accused or convicted witches. Salem’s nightmare
was over.

ØØ A period of atonement followed the release of the surviving accused

witches. Samuel Sewall, one of the judges, issued a public confession of
guilt and an apology. Jurors came forward to say that they were “sadly
deluded and mistaken” in their judgments. Even Reverend Samuel
Parris conceded errors of judgment.

ØØ Governor Phips blamed the entire affair on Chief Justice William

Stoughton. Stoughton, for his part, refused to apologize or explain
himself. He attacked Phips for interfering just when he was about to
“clear the land” of witches.

Lecture 6—The Salem Witchcraft Trials 55

Suggested Reading
Boyer and Nissenbaum, Salem Possessed.
Hoffer, The Salem Witchcraft Cases.
Mather, Memorable Providences Relating to Witchcraft and Possessions.
Norton, In the Devil’s Snare: The Salem Witchcraft Crisis of 1692.
Schiff, The Witches.

Questions to Consider
1. For there to be witchcraft trials, there first has to be a belief that
witches are real and acting in the world. Why was belief in witches so
widespread in Salem in 1692?
2. If the rules of criminal procedure that are in use today were in use in
Salem, would there have been any convictions for witchcraft?
3. What do the Salem trials tell us about the causes and life cycle of mass
hysteria?

56 The Great Trials of World History and the Lessons They Teach Us
 LECTURE 7

The Boston
Massacre Trials

I
t’s a cold March morning in 1770, and the city of Boston is on
edge. The night before, five Bostonians were shot to death
by British soldiers in a massacre near the Customs House. A
34-year-old Boston attorney agrees to defend the soldiers and
their captain, a decision that he knows will put his reputation, his
practice, and his family at risk. The young lawyer is John Adams,
future drafter of the Declaration of Independence and second
president of the United States.

57
The Massacre
ØØ In the snowy winter of 1770, many residents of Boston had a gripe.
They were deeply resentful of the presence of British military in their
city. Regiments of regulars had been quartered in Boston for nearly a
year and a half after responding to a call by the governor to restore order
and respect for British law. Trouble had arisen in 1768 when Boston
importers refused to pay the custom duties required under British law.

ØØ Bostonians had a variety of complaints about the British soldiers. Some

resented the fact that the soldiers competed for jobs, often taking part-
time work during their off-duty hours for lower wages than natives
were willing to accept. Seamen in Boston saw the soldiers as enforcers
of the detested impressment laws that authorized soldiers to seize men
and force them to serve in the British navy.

ØØ Clashes between soldiers and civilians were on the rise in 1770. On

March 2, a fistfight broke out between soldiers and employees of John
Gray’s Ropewalk, a cable-making company. Tempers flared when one of
the employees insulted a soldier, and the encounter ended in a brawl.

ØØ Three days later, on March 5, things turned from bad to worse. The
problems began in the evening with a simple dispute over whether a
British officer paid a bill to a local wigmaker. The officer was walking
down King Street when Edward Garrick, the wigmaker’s apprentice,
called out to him: “There goes the fellow who hath not paid my master
for dressing his hair.” The officer with the new hair, Captain John
Goldfinch, passed on without acknowledging Garrick. But Garrick
persisted. He told three passersby that Goldfinch owed him money. A
British soldier named Hugh White, who was standing sentry that night
outside the Customs House, overheard Garrick’s remarks. White told
the apprentice, “He is a gentleman, and if he owes you anything he will
pay for it.” Garrick answered, “There is no such thing as a gentleman in
the regiment.” The remark got the sentry’s hackles up. He left his post
and confronted Garrick. There was a brief, heated exchange of words
before White struck Garrick with his musket, knocking him down.

58 The Great Trials of World History and the Lessons They Teach Us
ØØ A small crowd was attracted by the ruckus. People gathered around the
lone guard and began to taunt him. “Bloody lobster back! Lousy rascal!
Lobster son of a bitch!” The crowd grew to about 50. Some young men
threw pieces of ice at White, causing him to retreat from his sentry
box to the Customs House steps and load his gun. He waved the gun
around and frantically knocked on the Customs House door. Desperate
and fearful, White yelled, “Turn out, Main Guard!”

ØØ Meanwhile, a few blocks north, another confrontation between

civilians and redcoats broke out. Under a barrage of snowballs, a group
of soldiers hustled into its barracks. A third mob, this one about 200
strong and carrying clubs, gathered in Dock Square. A tall man with a
white wig and a red coat did his best to rile up the crowd. Trouble was
erupting all over the city. “Let’s away to the Main Guard!” someone

Lecture 7—The Boston Massacre Trials 59

 shouted. The crowd streamed down an alley toward King Street.
Someone pulled the fire bell rope at the Brick Meeting House, bringing
dozens more residents out into the streets.

ØØ In front of the Main Guard, the officer for the day, Captain Thomas
Preston, paced back and forth for nearly 30 minutes. He couldn’t
decide what to do. If he did nothing, White might be killed by the
mob. But trying to rescue White carried its own risks, as the soldiers
were vastly outnumbered. Moreover, Preston knew that the law forbade
the military from firing on civilians without the order of a magistrate.
Finally, Preston made his decision. “Turn out, damn your bloods, turn
out!” he barked.

ØØ Seven soldiers hurried out, some without even putting on coats. Preston
and the other men, in columns of two, moved across King Street with
muskets and fixed bayonets. They pushed on through the crowd
of 50 to 100 civilians near the Customs House, finally reaching the
beleaguered sentry. Preston ordered White to fall into line and started
to march the men back to the Main Guard. But the mob blocked them.
Hemmed in, the soldiers lined up in a semicircle facing the crowd,
facing flying chunks of coal, snowballs, and oyster shells.

ØØ Captain Preston shouted for the crowd to disperse, but it continued

to press in. A large mixed-race man named Crispus Attucks stepped
forward, wielding a club. Attucks grabbed a soldier’s bayonet and
knocked him to the ground. The soldier, named Hugh Montgomery,
rose and shouted, “Damn you, fire!” In spurts, not in volleys, soldiers
fired six leaden balls into the crowd.

ØØ As several soldiers loaded their weapons and prepared to fire again,

Captain Preston yelled, “Stop firing! Do not fire!” The Boston Massacre
was over. Four men had been killed, including Crispus Attucks; another
victim would die 10 days later from his injuries.

60 The Great Trials of World History and the Lessons They Teach Us
Arrests and Imprisonment
ØØ When word of the shootings reached Acting Governor Thomas
Hutchinson, he rushed to King Street. There he found an angry crowd
and a shaken Captain Preston. After speaking with Preston and several
members of the Council at the Town House, Hutchinson stepped out
onto a balcony overlooking the scene of the massacre. He called on the
crowd to be calm. “Let the law have its course. I will live and die by
the law.”

ØØ After midnight, the sheriff obtained a warrant for the arrest of Captain
Preston. Preston was taken to the Town House and interrogated by two
justices. At three o’clock in the morning, the justices concluded they
had “evidence sufficient to commit him.” Preston was escorted to a jail,
where he would remain for the next seven months.

ØØ A few hours later, Boston merchant James Forrest secured John Adams
to represent the British captain and his soldiers. Forrest assured Adams,
“As God almighty is my judge, I believe him an innocent man.” Adams
replied as a good lawyer might: “That must be ascertained by his trial.
And if he thinks he cannot have a fair trial of that issue without my
assistance, without hesitation he shall have it.”

ØØ One week after the massacre, at the request of the attorney general, a
grand jury handed down murder indictments against Captain Preston
and eight soldiers. Around the same time, Preston gave a deposition
offering his version of the events of March 5th. Preston also pleaded his
case in the press; his writings appeared in the Boston Gazette.

ØØ Unfortunately for Preston, a letter sent to London and intended solely

for a British audience also found its way into Boston papers. In his
London letter, Preston complained about Bostonians who “have ever
used all means in their power to weaken the regiments and to bring
them into contempt, by promoting and aiding desertions, and by
grossly and falsely promulgating untruths concerning them.” He wrote
that “malcontents” were maliciously “using every method to fish out

Lecture 7—The Boston Massacre Trials 61

 evidence to prove [the March 5 shooting] was a concerted scheme to
murder the inhabitants.”

ØØ As Preston and the indicted soldiers languished in jail, Boston

residents—including such notable figures as Samuel Adams and John
Hancock—pressed demands on Acting Governor Hutchinson for
the “instant removal” of all British troops from Boston. Hutchinson
initially balked at the demand, but finally gave in to overwhelming
public pressure. Boston’s two regiments left the city and moved to
Castle William in Boston Harbor.

The Trials
ØØ Authorities decided to try Captain Preston separately from the eight
soldiers. The soldiers objected to this arrangement, fearing that Preston
would deny that he had ordered them to fire. If Preston was tried first,
the soldiers’ best defense—that they were only following orders—might
be compromised. The soldiers’ request for a joint trial was denied by
the court without explanation.

ØØ Captain Preston came to trial first. Adams chose to keep the trial
focused on King Street, believing that the evidence concerning the
events of March 5 would be sufficient to acquit. Adams worried that
a political attack on citizen efforts to expel British troops might spark
a public reaction that could hurt his case. Even worse, radicals might
lynch Preston or terrorize jurors into voting for conviction.

ØØ The central issue in Preston’s trial was whether he gave the order to
fire on the civilians. Preston’s steadfast denial was supported by three
defense witnesses. Four witnesses for the prosecution, however, swore
to the contrary.

ØØ The 12-man jury was sequestered throughout the six-day trial. When
it came time to deliberate, the jurors concluded that the testimony
of Captain Preston and other defense witnesses was enough to raise

62 The Great Trials of World History and the Lessons They Teach Us
John Adams

Lecture 7—The Boston Massacre Trials 63

 reasonable doubts as to whether Preston had given the order to fire.
After a few hours’ deliberation, they acquitted Preston on all charges.

ØØ Given the loyalist leanings of one or more of the jurors, conviction—

requiring a unanimous verdict—was never a real possibility. One juror
reportedly confided before the trial that he would never convict Preston
“if he sat to all eternity.” The captain was, the juror said, “as innocent as
the Child unborn.”

ØØ In the soldiers’ trial, several witnesses testified about the events

leading up to the massacre. Witnesses described the military-civilian
confrontation at Gray’s Ropewalk on March 2, as well as the other
events of March 5.

ØØ The prosecution’s most damning testimony came from Samuel

Hemmingway, who told jurors about a conversation involving
Private Matthew Killroy. Killroy was the soldier identified by another
prosecution witness as the shooter of John Gray, one of the five men
killed in the massacre. Hemmingway testified that Killroy said he “would
never miss an opportunity, when he had one, to fire on the inhabitants,
and that he had wanted to have an opportunity ever since he landed.”

ØØ John Adams presented testimony to support the theory that the soldiers
fired in self-defense. One defense witness, James Bailey, testified that the
soldiers were being pelted by large chunks of ice and other dangerous
objects. He also told jurors that he saw Crispus Attucks knock down
Private Montgomery with “a large cord-wood stick.” Adams asked the
jury to put themselves in the soldiers’ shoes. Would “it have been a
prudent resolution in them, or in any body in their situation, to have
stood still, to see if the [the mob] would knock their brains out?”

ØØ After presenting more than 40 witnesses, John Adams summed up for

the defense. His eloquent speech blended law and politics. He told the
jury that this was a case of self-defense, and he asked them to consider
what any soldier would do under confusing and life-threatening

64 The Great Trials of World History and the Lessons They Teach Us
 conditions: “Do you expect that he should act like a stoic philosopher,
lost in apathy?”

ØØ After deliberating for less than three hours, the jury acquitted six of
the soldiers on all charges. Hugh Montgomery and Matthew Killroy—
the only two soldiers proven to have fired—were found guilty of
manslaughter.

ØØ On December 14, Montgomery and Killroy returned to court for

sentencing. The court asked if there was any reason why the sentence
should not be passed. The two men responded by invoking “the benefit
of clergy.” This was a plea available in this type of case that shifted their
punishment from imprisonment to the branding of their thumbs. As
John Adams looked on, the two soldiers held out their right thumbs for
the sheriff to brand.

ØØ Captain Preston returned to England, receiving modest compensation

and a 200-pound annual pension for his troubles. He gloated over what
he called “the complete victory obtained over the knaves and foolish
villains of Boston.”

ØØ The initial reaction of most Bostonians to John Adams’s defense of

the soldiers was hostile. In the year following the trials, Adams’s law
practice suffered financially. Adams, however, found the verdicts deeply
satisfying.

ØØ Given the conflicting evidence presented to the jury, the verdict reached
was the correct one. That is not to say, however, that the soldiers acted
appropriately. The 96 depositions taken in the Preston trial clearly show
that before the massacre, many British soldiers were acting like bullies
and looking for trouble.

ØØ After the trials, a veneer of normalcy returned to Boston. But beneath

the surface, in the hearts and minds of many citizens, resentment ran
deep. The Revolution was coming.

Lecture 7—The Boston Massacre Trials 65

Suggested Reading
Allison, The Boston Massacre.
Emmons, Transcript of the Trial of the Soldiers.
Zobel, The Boston Massacre.

Questions to Consider
1. Who bore more responsibility for the Boston Massacre, the mob that
surrounded the British soldiers or the soldiers themselves?
2. When key events happen quickly and eyewitnesses offer conflicting
accounts, will the presumption of innocence always save a defendant?
Why did it here?
3. How have interpretations of the Boston Massacre changed over time?
What interpretation seems to prevail today?

66 The Great Trials of World History and the Lessons They Teach Us
 LECTURE 8

The Aaron Burr

Conspiracy Trial

O
n December 10, 1806, confederates of Aaron Burr gathered
on Blennerhassett Island in West Virginia. Four boats loaded
with guns, ammunition, meat, and other provisions bob just
offshore. Eleven additional boats are expected to arrive, whereupon
the flotilla will set off down the Ohio River to establish a new empire
in the Southwest. Unbeknownst to Burr’s confederates, however,
their plot has already been uncovered, and the events of December
10 will soon become the central focus in Burr’s trial for treason.

67
The Burr Conspiracy
ØØ The early 19th century was an unstable time, both in Europe and in
America. Spain and France were allied in a war against Great Britain,
and President Thomas Jefferson was determined to maintain a policy of
neutrality. Jefferson fully intended to enforce the Neutrality Act of 1794,
which made it a crime for any citizen to undertake a military expedition
against any country with which the United States was at peace.

ØØ In 1804, Aaron Burr, still the sitting vice president of the United
States, ran for governor of New York—and lost. During the campaign,
Alexander Hamilton called Burr “despicable” and “dangerous,” someone
who would “dismember the Union” if given the chance. Outraged,
Burr challenged Hamilton to a duel that resulted in Hamilton’s death
and the end of Burr’s political aspirations in the East.

ØØ Burr began to imagine a new empire in the Southwest, with himself as

emperor. He would lead a military expedition into Texas and Mexico,
where the local population, resentful of Spanish rule, would welcome
him with open arms. Inspired, Burr began reaching out to people who
could help his military adventure succeed, including General James
Wilkinson, the top general in the United States Army, and Anthony
Merry, the British Minister to the United States.

ØØ By the spring of 1805, Burr had resigned the vice presidency. He

traveled to Pittsburgh, where he hoped to find General Wilkinson,
who by then had become governor of the just-organized Louisiana
Territory. Wilkinson wasn’t in Pittsburgh, however, so Burr left a letter
for him and set off down the Ohio River. Burr traveled in a specially
prepared boat, complete with a dining room, kitchen, fireplace, and
two bedrooms. He called it his ark.

ØØ In early May, Burr’s ark reached Blennerhassett Island, where the

island’s owner invited him to dinner. The conversation between the
two men lasted long into the evening—and forever linked Harman
Blennerhassett and his island with the Burr conspiracy.

68 The Great Trials of World History and the Lessons They Teach Us
 Thomas Jefferson

ØØ Continuing down the Ohio River, Burr caught up with General

Wilkinson at Fort Massac in what would become Illinois. The two
discussed strategy for possible military action in Louisiana. Wilkinson
provided Burr with a letter of introduction to his friends in New
Orleans, Burr’s ultimate destination.

ØØ When he arrived in New Orleans, Burr set out to gauge public

opinion concerning Mexico. He also spoke with people about business
opportunities that a Mexican insurrection might open up. Burr’s
principal contact in New Orleans was a wealthy merchant and political
leader named Daniel Clark. Clark promised $50,000 in support of
Burr’s projects and agreed to travel to Mexico to gather information
on the strength of Spanish fortresses and the attitudes of the people
toward Spanish control.

Lecture 8—The Aaron Burr Conspiracy Trial 69

ØØ Burr left New Orleans in July on a four-month tour that included
a meeting with General Wilkinson in St. Louis. According to
Wilkinson, it was during this meeting that he first began to suspect
that Burr had treasonous intentions. Burr’s plan, he concluded,
was not only to spark an insurrection in Mexico, but also to create
a new western empire extending from the Alleghenies to Mexico.
Wilkinson later wrote that Burr complained about “the imbecility of
the Government” and said that “the people of the western country
were ready for revolt.”

ØØ In the winter of 1805–1806, Burr met with various disaffected

military leaders and urged them to join in his western adventure. In
Pennsylvania, hoping to enlist the support of Colonel George Morgan,
Burr made the serious mistake of misgauging Morgan’s interest in his
plans. Morgan found Burr’s notion of using military force to carve out
a new western nation shocking—so shocking, in fact, that he wrote a
letter to President Jefferson summarizing his conversation with Burr.
The letter roused Jefferson into action.

ØØ By the end of August, Burr was back on Blennerhassett Island busying

himself with final preparations. He contracted to purchase 15 boats
capable of carrying 500 men. He ordered huge quantities of pork, corn
meal, flour, and whiskey. And he bought a 300,000-acre tract of land
on the Washita River, which he planned to use as a recruiting tool.
Volunteers for the expedition, Burr promised, would each get a share of
his Washita tract.

ØØ In the fall, Burr wrote a letter in cipher to General Wilkinson. “I have

at length obtained funds,” the coded letter began, “and have actually
commenced.” Burr revealed that he had secured naval protection from
England and was heading west, “never to return.” He assured Wilkinson
of success: “I guarantee the result with my life and honor, the honor
and fortune of hundreds, the best blood of our country.  …The gods
invite us to glory and fortune.”

70 The Great Trials of World History and the Lessons They Teach Us
The Conspiracy Foiled
ØØ An agent was appointed by President Jefferson to investigate the Burr
plot. In the Ohio capital of Chillicothe, the agent convinced the governor
to seize the boats Burr had ordered for his expedition. The state militia
then descended upon Blennerhassett Island on December 10, 1806.

ØØ In Tennessee, Burr learned that his boats had been seized and that
Jefferson was onto his plot. Addressing some of his volunteers, Burr
said that he had hoped to describe their specific objective, but because
of changed circumstances, he would have to postpone doing so.
Instead, he said, the flotilla would head down the Mississippi, where
Burr expected military backing.

ØØ The military support Burr expected was to come from General

Wilkinson. Wilkinson, however, had become Burr’s hunter rather than
his supporter. After receiving the ciphered letter from Burr advising of his
plans, Wilkinson rushed troops into the Mississippi Valley and ordered
soldiers in New Orleans to be on alert for an attack from Burr’s forces.

ØØ President Jefferson, meanwhile, signed a proclamation stating that

“sundry persons … are conspiring … to … set on foot … a military
expedition  … against the dominions of Spain.” Jefferson ordered all
officials to assist in “searching out and bringing to … punishment all
persons engaged or concerned in such enterprise.”

ØØ When Burr learned that Wilkinson had abandoned the conspiracy,

he was beside himself. He denounced Wilkinson, complaining that
the general’s “perfidious conduct” had “completely frustrated” his
“projects.” Burr also recognized that it was time to begin putting an
innocent spin on his actions. He wrote a public letter declaring his
intentions to be honorable: “If the alarm which has been excited  …
should not be appeased by this declaration, I invite my fellow citizens
to visit me at this place, and to receive from me, in person, such further
explanations as may be necessary to their satisfaction.”

Lecture 8—The Aaron Burr Conspiracy Trial 71

ØØ A detachment of 30 men caught up with Burr on the west bank of
the Mississippi, across the river from Natchez. Burr was handed a letter
from the governor of the Mississippi Territory demanding his surrender.

Arrest and Arraignment

ØØ Two different western grand juries refused to indict Burr. One went
so far as to condemn his arrest, saying that it had given cause to “the
enemies of our glorious Constitution to rejoice.” Burr jumped bail,
disguised himself as a boatman, and disappeared into wild pine forests
east of the Mississippi.

ØØ Federal marshals finally captured Burr on the Tombigbee River, in

present-day Alabama. Burr was then brought to the Republican
stronghold of Virginia, where the Jefferson administration knew their
best shot at an indictment lay.

ØØ On March 30, 1807, in a small room in the Eagle Tavern in Richmond,

Virginia, Chief Justice John Marshall prepared to hear arguments on
whether to commit Burr for trial on a charge of treason. The penalty for
treason was death. Representing the United States was District Attorney
George Hay, the son-in-law of future president James Monroe. The real
force behind the prosecution, however, was President Thomas Jefferson.

ØØ To be charged with treason under the United States Constitution, a

defendant must have committed an overt act of war. It was on this
issue—whether Burr had committed an overt act—that the prosecution
would rise or fall. Could it be proven that Burr took actions that
amounted to levying war?

ØØ Chief Justice Marshall was not convinced that there was sufficient
evidence of an overt act, and he dismissed the treason charge. Marshall
wrote, “War can only be levied by the employment of actual force. …
An invisible army is not an instrument of war.” Marshall concluded,

72 The Great Trials of World History and the Lessons They Teach Us
 however, that there was probable
cause to commit Burr for trial for
violating the Neutrality Act.

ØØ Marshall’s refusal to allow

prosecution on the treason charge
enraged President Jefferson, who
took it as a personal mission to
secure Burr’s conviction. Jefferson
ordered circulars to be distributed
asking “every good citizen to step
forward, and communicate to
the government any information
he may possess.” He dispatched a
deputy marshal to take depositions
near Blennerhassett Island. Never
before or since has a president of
the United States taken such a Chief Justice John Marshall
personal interest in a criminal case.

ØØ Despite Marshall’s ruling, Jefferson and the prosecution hoped that

a grand jury indictment for treason might put the charge back on
the table. The prosecution presented the grand jury with a parade of
witnesses against Burr, including Andrew Jackson, whom Burr once
counted as a supporter. But the witness everyone was waiting to hear,
General James Wilkinson, was still making his way from New Orleans
to Virginia, his exact whereabouts unknown.

ØØ On June 15, General Wilkinson, whom the defense described as

“the alpha and omega of the present prosecution,” finally arrived in
Richmond to appear before the grand jury. Wilkinson’s dramatic
testimony convinced the grand jury to report an indictment against
Burr for treason and high misdemeanor. Burr pleaded not guilty.

Lecture 8—The Aaron Burr Conspiracy Trial 73

Trial and Aftermath
ØØ The prosecution’s case against Burr opened on August 3, 1807. Burr had
certain advantages from the outset, including good legal representation.
An accomplished lawyer himself, Burr led his own defense. The case
had been assigned to a judge favorable to Burr. Burr also had the
constitutional protections afforded to a criminal defendant, including
the presumption of innocence and the requirement of guilt beyond a
reasonable doubt.

ØØ In his opening statement, District Attorney Hay told the jury that the
evidence would show that Burr had a “treasonable design” and that
he assembled men for the purpose of furthering his treasonous aim.
Hay argued that what happened at Blennerhassett Island amounted
to an overt act. “Men were actually enlisted, boats were built on the
waters of the Ohio, provisions purchased to an enormous amount, and
ammunition provided … as if some hostile expedition were afoot.”

ØØ Prosecutors laid out what they saw as Burr’s grand scheme of conquest
through their first few witnesses. General William Easton testified that
Burr revealed to him his plan to create a western empire, with New
Orleans as its capital and Burr as “its chief.” Prosecutors then turned
their attention to what happened on Blennerhassett Island.

ØØ On August 20, Burr interrupted the prosecution’s case. He asked the

court to halt the testimony, arguing that the evidence “utterly failed to
prove any overt act of war had been committed.” Moreover, he said, he
was shown to have been more than 100 miles away when the alleged
overt act took place.

ØØ Eleven days of argument on Burr’s motion followed. For the

prosecution, William Wirt argued that Burr was to everyone else in the
conspiracy “as the sun to the planets that surround it. Did he not bind
them in their respective orbits and give them their light, their heat,
and their motion?” Wirt described Burr as holding a match, ready to

74 The Great Trials of World History and the Lessons They Teach Us
 “produce an explosion to shake the continent.” It all was to begin on
idyllic Blennerhassett Island.

ØØ Chief Justice Marshall’s opinion punched a huge hole in the

prosecution’s case. Marshall ruled that as a matter of law, Burr could
not be found to have committed treason based on the events at
Blennerhassett Island. A verdict of guilty, Marshall wrote, would have
required an “actual use of force.” Moreover, Burr would have to have
been “connected to that use of force.”

ØØ With those words, the game was effectively won for Burr. John Marshall
had demanded that the prosecution show what they could not show.
The government had little choice but to rest its case.

ØØ On September 1, 1807, the case went to the jury. Predictably, Burr was
acquitted; Marshall’s narrow view of what constituted an overt act had
left the jury no choice. A few weeks later, the jury found Burr not guilty
of violating the Neutrality Act. Burr was a free man—almost. Marshall
ordered Burr to appear in Chillicothe, Ohio, to defend himself against
another charge of violating the Neutrality Act. Burr posted bail, but
skipped town before the trial.

ØØ President Jefferson fumed over Marshall’s ruling: “It now appears we

have no law but the will of the judge.” He considered proposing a
constitutional amendment limiting the power of the judiciary. He even
considered asking Congress to impeach Marshall.

ØØ Despite his acquittal, Burr was disgraced. He lived another 29 years,

but was never again a significant player in American public life. Even
today, it is hard to say whether Burr should have been found guilty of
treason. As biographer Buckner Melton notes, “Too many people told
too many different stories, and too many people had things to hide.”

Lecture 8—The Aaron Burr Conspiracy Trial 75

Suggested Reading
Burr, Reports of the Trials of Colonel Aaron Burr.
Melton, Aaron Burr.
Stewart, American Emperor.

Questions to Consider
1. The Constitution spells out the requirements for a treason conviction,
requiring testimony from two witnesses to the same overt act of levying
war or giving aid to enemies. How did that high prosecution burden
save Burr from conviction on the treason charge?
2. It is possible to see Burr’s plans as either patriotic or treasonous,
depending on whose account you believe and how you weigh the facts.
How do you see it?
3. John Marshall and Thomas Jefferson had very different visions of
America’s future. Can those differences completely account for their
hatred of each other?

76 The Great Trials of World History and the Lessons They Teach Us
 LECTURE 9

The Amistad Trials

T
he year is 1839. Just off the north coast of Cuba, a schooner
called the Amistad sails in the early morning darkness. On
board are the ship’s crew, two Cuban plantation owners, and
53 Africans bound for the slave markets of Havana. Remarkably, a
would-be slaved named Cinque manages to free himself and his
fellow captives, sparking a mutiny that leaves the ship’s captain, three
crew members, and one African dead. Six weeks later, the Amistad
will be seized and brought to Connecticut, where the mutineers will
face criminal charges in a controversial trial that will command the
attention of presidents, monarchs, ambassadors, and the Supreme
Court of the United States.

77
The Criminal Trial
ØØ The Cuban plantation owners onboard the Amistad considered
themselves victims of a crime. Three days after the Amistad’s discovery,
they filed criminal charges of murder and piracy against the Africans.

ØØ A hearing on the criminal charges was held in Connecticut before

Judge Andrew Judson. The purpose of the hearing was to determine if
there was a basis for going forward with a criminal trial. Three witnesses
testified, including the Amistad’s first mate and one of the Cuban
plantation owners. None of them had sympathy for the Africans. After
hearing their testimony, Judge Judson ordered the Africans to stand
trial for the crimes of murder and piracy. Until then, they were to be
housed in the county jail in New Haven.

ØØ The arrival of the Africans in New Haven sparked excitement.

Thousands of curious people visited the jail each day and paid one
shilling (about 12 cents) to take a look at them.

ØØ New England abolitionists saw the arrival of the Africans more as an

opportunity than a curiosity. Abolitionist leader Lewis Tappan, a key
figure in the Amistad trial, described the capture of the Africans as
“a providential occurrence” that could touch “the heart of the nation
through the power of sympathy.” Here was a chance to expose the
inhumanity of slavery—and abolitionists meant to take advantage of it.

ØØ Tappan and other abolitionists formed a defense committee and

hired Roger Baldwin to represent the Africans. Although the Africans
understood scarcely a word of English—and Baldwin knew not a word
of Mende, the language spoken by many of the slaves—Baldwin was
able to communicate with his clients with the help of a Yale professor of
linguistics and an African interpreter.

ØØ Through his interpreters, Baldwin learned that the Africans had come
from six different tribes and spoke several different languages. They
had only been in Cuba a short time before their sale in a Havana slave

78 The Great Trials of World History and the Lessons They Teach Us
 market. They, along with more than 300 other Africans, made the two-
month Middle Passage to Cuba on a slave ship.

ØØ The fact that the slaves had only recently come from Africa was hugely
important to the case. An 1817 treaty between Great Britain and Spain
prohibited new African slave traffic, declaring free all Africans newly
imported into Spanish ports, including those in Spanish possessions
such as Cuba. Only slaves imported before 1817 or born to slaves in
Spanish possessions could be bought and sold.

Lecture 9—The Amistad Trials 79

ØØ The documents that were issued in the Havana slave market declared
that all the Amistad slaves either were born in Cuba or were longtime
residents of Cuba. If true, that made them lawful slaves. But the
documents were patently fraudulent; the simple fact that the slaves could
barely understand a word of Spanish made the fraud plain. Emphasizing
the reality of this fraud became the core of Baldwin’s defense strategy.

ØØ The Cubans, the Spanish, and the U.S. government took a different
position. Their argument, stripped down, was that the judiciary had
no business examining the question of fraud. They argued that courts
should not look any further than the documents themselves. The
documents indicated that each African was a legal slave and listed
Spanish names for each of them, and that should be good enough.

ØØ The United States, through its attorneys, argued that the court had to
accept the documents at face value as a way of showing respect to a
foreign government—or at least as a way of showing respect for the
President of the United States, who was concerned about keeping good
relations with Spain and other countries.

ØØ In September, the Africans were taken to Hartford, where two federal

judges and a grand jury were waiting for them. Lawyers, reporters, and
interested visitors filled every hotel room in town. People picnicked in
the courthouse yard, and vendors hawked engravings of the Amistad.

ØØ Inside the courthouse, the grand jury had the job of considering
whether or not to indict the Africans. If they did, a criminal trial
would follow. A civil proceeding considering whether the Africans were
property proceeded simultaneously in a different room.

ØØ The grand jury found that the killings and the mutiny did not take
place within the territorial waters of the United States. The circuit
court thus lacked jurisdiction to hear any criminal charges. The crimes,
if there were any, were committed against Spanish citizens on a Spanish
boat in Spanish waters, and jurisdiction to hear a criminal case could
only rest in Spain or her possessions.

80 The Great Trials of World History and the Lessons They Teach Us
The Civil Trial
ØØ Despite ruling that the Africans could not be charged criminally in the
United States, the circuit court judge refused to order their immediate
release. He was convinced that the district court had the right to keep
the Africans in custody until it could decide whether anyone held a
property right in them as slaves.

ØØ In the civil trial, committee lawyers argued before Judge Judson that
the Africans were no one’s property and were therefore entitled to their
freedom. In support of this argument, a parade of abolitionist witnesses
offered evidence of the Africans’ non-Cuban origins. Cinque, testifying
through an interpreter, described how he had been kidnapped in Africa
five months earlier and manacled hand and foot during the long voyage
across the Atlantic.

ØØ Lawyers for the Cubans insisted that the Africans were slaves lawfully
purchased in a nation where slaveholding was legal. The Africans, they
said, should be returned to the Cubans as property.

Lecture 9—The Amistad Trials 81

ØØ The lawyer for Lieutenant Gedney, the commander of the ship whose
crew boarded and seized the Amistad, argued that his client was entitled
to receive salvage—that is, a percentage of the value of the Amistad and
its cargo, including the fair market value of the slaves.

ØØ U.S. District Attorney William Holabird contended that the Africans

should be placed under the control of President Martin Van Buren. Van
Buren, anticipating a favorable ruling, issued a secret and controversial
order to the U.S. marshal in Connecticut: The minute the judge
announced a decision granting custody to the president, the marshal
was to rush the Africans onto a waiting ship called the Grampus, which
would set sail for Cuba before the Africans’ lawyers could file an appeal.
Returning the Africans to Cuba was a sacrifice Van Buren was willing to
make to maintain good relations with Spain.

ØØ Two days later, Judge Judson announced his decision. He began with
the salvage claims, ruling that Lieutenant Gedney had rendered a
valuable service in seizing the Amistad and preventing the likely loss of
its remaining cargo. He awarded the lieutenant one-third of the value
of the ship and its nonhuman cargo. The ship and its cargo—subject to
the salvage lien—would be restored to the Spanish government.

ØØ But Judson ruled that there could be no salvage right in the Africans.
They were no one’s property. The Africans “were born free” and by law
were still free. They would not be returned to Cuba to stand trial as
accused murderers and pirates. They had been kidnapped in violation
of international law. They had every right to mutiny and attempt to
win back their liberty. The judge ordered that they be transported back
to Africa, not Cuba.

The Supreme Court

ØØ The Van Buren administration appealed the ruling all the way to the
United States Supreme Court, where five of the nine justices were

82 The Great Trials of World History and the Lessons They Teach Us
 slaveholders or former slaveholders. On February 22, 1841, arguments
began in the Supreme Court’s crowded chamber in the U.S. Capitol.

ØØ Attorney General Henry Gilpin, arguing for the government, told the
Court that it should not “go behind” the Amistad’s papers and make
inquiry as to their accuracy. They should instead accept them on their
face in order to show proper respect for another sovereign nation. The
Africans, Gilpin argued, should be returned to Cuba.

ØØ Roger Baldwin argued next for the Africans, declaring that the Court
could and should look to see if the Cuban paperwork was fraudulent.
If the Court finds fraud, Baldwin argued, then treaties should govern.
The Africans should be declared free—free to go home to Africa, if they
preferred, or to stay in the United States. This was the argument that
had persuaded the lower courts. Baldwin hoped it would convince the
justices as well.

ØØ The lawyer everyone was waiting to hear was John Quincy Adams,
the 74-year-old former president, who had agreed to speak on behalf
of the Africans. Justice Joseph Story later called Adams’s argument
“extraordinary for its power, for its bitter sarcasm, and for its dealing
with topics far beyond the record and points of discussion.” It was at
times eloquent. It was at times a harangue. And at times it resembled a
lecture on political science.

ØØ Two weeks later, the Supreme Court announced its decision. The
would-be slaves of the Amistad were “kidnapped Africans, who by
the laws of Spain itself were entitled to their freedom.” They were not
criminals. The “ultimate right of human beings in extreme cases is …
to apply force against ruinous injustice.” The Africans could stay in the
United States or they could return to Africa—it was up to them.

ØØ For the most part, abolitionists hoped the Africans would choose
to stay in the United States, where they would continue to remind
people of the evil of slavery. Lewis Tappan initially moved the Africans
to Farmington, Connecticut, where, for the next eight months, they

Lecture 9—The Amistad Trials 83

 received six hours of instruction per day and tended a garden of corn,
potatoes, beets and onions. They also traveled around New England as
a sort of pro-abolition vaudeville team.

ØØ Eventually, however, Tappan knew it was time to send the Africans home.
He appealed for clergymen willing to accompany the Africans to their
homeland and start a Christian mission there. Two months later, he had
several volunteer missionaries and the money necessary to charter and
provision a ship. On December 4, 1841, the Africans and missionaries
set out from Staten Island on their journey across the Atlantic.

ØØ Except for one justice on the Supreme Court, every judge who
considered the Amistad case sided with the Africans. Many of these
judges were supporters of slavery, but the fate of slavery in the United
States was not at stake in
this case. The lawyers for the
Africans—with the exception of
John Quincy Adams—avoided
directly attacking the institution
of slavery. And in fact, the
importation of new slaves into
the United States had been illegal
for more than three decades
when the Amistad arrived in
Long Island. Justice, natural
human sympathies, and the law
all pushed in the same direction
in the Amistad case, and that was
enough for the justices.

ØØ Fifteen years after deciding the

Amistad case, the Supreme Court
announced its infamous Dred
Scott decision, denying Congress
John Quincy Adams
the power to prohibit slavery in
the territories and concluding

84 The Great Trials of World History and the Lessons They Teach Us
 that slaves and former slaves could not even be “citizens” within the
meaning of our Constitution. But the trials and the Amistad decision
did serve to educate the public. In the end, the Amistad case helped
turn public opinion, at least in the North, against slavery.

Suggested Reading
Jones, The Mutiny on the Amistad.
Owens, Slave Mutiny.
Rediker, The Amistad Rebellion.

Questions to Consider
1. Should the Africans of the Amistad bear any criminal responsibility for
the mutiny or killings aboard the schooner?
2. Why was the Van Buren administration so inclined to side with Spain
and the argument that the Africans should be returned to Cuba?
3. The Africans of the Amistad won a big victory in the Supreme Court.
How much does that tell us about the attitudes of the justices toward
the larger question of slavery?

Lecture 9—The Amistad Trials 85

 LECTURE 10

The Dakota Conflict

Trials

I
n the mid-18th century, the Sioux nation consisted of seven tribes,
25,000 strong, stretching from the Big Woods of Minnesota to the
Rocky Mountains. On December 26, 1862, in Mankato, Minnesota,
38 Sioux were hanged, making it the largest mass execution in the
history of the United States. This event marked the end of the Dakota
Conflict of 1862. It also marked the end of a strange legal process,
one unlike any used in the United States before or since.

86
A Brief History of the Dakota Conflict
ØØ Unsurprisingly, many people have never heard of the Dakota Conflict.
The conflict occurred in 1862—a year in which most of the nation
had something else on its collective mind. Without the Civil War, the
Dakota Conflict might not have happened—or, if it did, it might have
ended quickly. The Dakota noted that many white men of fighting
age had left nearby settlements to join the Union army. When fighting
erupted in southwestern Minnesota, many of the soldiers that could
have quickly ended the conflict were mostly off fighting another war.

ØØ Treaties signed by the Dakota in 1851 and 1858 ceded most of present-
day southern Minnesota and a small part of South Dakota to the
United States. The Dakota, as you might expect, got the raw end of the
deal. In exchange for their fertile and wooded land, the Dakota received
the promise of annuity payments for 50 years plus reservations on land
along the Minnesota River.

ØØ The treaties created resentment in Dakota communities. First and

foremost, they had been squeezed into a small fraction of their former
lands. The settlers, with their agricultural practices, soon degraded
habitats in traditional hunting grounds. In addition, the treaties
undermined Dakota culture. Annuity payments reduced the once
proud Indians to the status of dependents. They also diminished the
power of chieftains, because payments went to individuals rather than
through the tribal structure.

ØØ The treaties led to a corrupt system of Indian agents and traders.

Licensed traders sold goods to Indians with markups as high as 400
percent. Dakota cheated by traders could do nothing about it. Worse,
some Dakota believed rumors that the federal government, facing the
huge costs of the Civil War, was flat broke. They worried they wouldn’t
get their annuity payments at all.

ØØ In August 1862, with annuity payments running late, representatives

of the starving Dakota met with traders at an Indian agency along the

Lecture 10—The Dakota Conflict Trials 87

 Minnesota River. The Dakota representatives pleaded with the traders
to distribute provisions in agency warehouses on credit, but the traders
resisted.

ØØ On August 17, a keg containing

$71,000 in gold coins arrived
by stage at nearby Fort Ridgely.
Officials planned to distribute
the coins to the Dakota the next
day. It turned out that they were
one day too late.

ØØ The day the coins reached Fort

Ridgely, four young Dakota men,
hungry and looking for food,
were on a hunting excursion near
a settler’s homestead. The hunt
took a sickening turn after the
men decided to attack. When it was over, three white men, one white
woman, and a 15-year-old white girl lay dead.

ØØ The four men returned to camp that night. Their tale caused feverish
debate. The book Through Dakota Eyes includes Chief Big Eagle’s
account of what happened when the men visited the home of Chief
Little Crow: “[Little Crow] sat up in bed and listened to their story. He
said war was now declared. Blood had been shed, the payment would
be stopped, and whites would take dreadful vengeance because women
had been killed.”

ØØ Big Eagle reported that he and others “talked for peace, but nobody
would listen to us, and soon the cry was ‘Kill the whites!’ … A council
was held and war was declared. Parties formed and dashed away in the
darkness to kill settlers.”

ØØ In the first bloody phase of the conflict, under the loose direction of
Little Crow, the Dakota massacred farm families. At Milford, Dakota

88 The Great Trials of World History and the Lessons They Teach Us
 warriors killed 53 settlers, including 20 children. Similar indiscriminate
killing of whites occurred elsewhere. In all, an estimated 250 whites—
the majority of whom were women and children—died in the first
three days of fighting.

ØØ By any measure, these killings by Dakota warriors can correctly be

called massacres. Nevertheless, what the Dakota did to white Minnesota
settlers was no different from what they had often done to their hated
enemies, the Ojibwa, who occupied the forested lands to their north
and east. When Dakota went to war, they considered anyone on the
other side fair game. Some Dakota chose to take women and children
captive, rather than killing them, but such decisions turned on the
whims of individual warriors.

ØØ The attacks sent panicked settlers fleeing eastward. Whole counties

on the frontier depopulated. Whites held on only in the barricaded
fortifications of Fort Ridgely and in the town of New Ulm, and both
the fort and the town were under siege. The Dakota attack on New
Ulm left most of the town’s buildings in ashes. Refugees numbering
1,200—mostly women, children, and wounded men—set off for
Mankato, 30 miles away.

ØØ Governor Alexander Ramsey appointed Colonel Henry Sibley to

lead the state militia into battle. Squads of mounted and armed men
streamed toward the scene of the conflict. More tragedy ensued.
Dakota warriors attacked a group of volunteers gathering up the bodies
of murdered settlers along roadsides and in homes. Twenty men from
the burial party died in the attack.

ØØ In the next phase of the conflict, President Lincoln federalized the state
militia and put the troops under the command of General John Pope.
Pope, fresh from his crushing defeat in the Second Battle of Bull Run,
never got closer to the fighting than St. Paul’s International Hotel.
There he busied himself sending telegrams to Washington. He asked
for additional troops and urged the extermination of what he called
“wild beasts” and “maniacs” 100 miles to his west.

Lecture 10—The Dakota Conflict Trials 89

ØØ Divisions among the Dakota increased, with chiefs in the northern
region opposing the fighting. Chiefs Red Iron and Standing Buffalo
even threatened to fire upon any of Little Crow’s warriors who entered
their territory. Most of the 7,000 Dakota in Minnesota opposed the
war from the beginning and took no part in it.

ØØ On September 23, the Dakota suffered heavy casualties in the Battle

of Wood Lake. Dakota opposed to the war seized control of whites
held captive by the warring Indians. The friendlies, as whites called
them, released 269 prisoners to the control of Colonel Sibley. Penned
in to the north and south, facing severe food shortages and declining
morale, most Dakota warriors chose to surrender. The six-week conflict
was over, having cost the lives of between 450 and 800 whites and an
undetermined number of Dakota.

The Trials
ØØ After the conflict was over, there was debate about what to do with
the Dakota prisoners. Most settlers and soldiers urged annihilation.
Colonel Sibley, however, had another idea. On September 28, 1862,
he appointed a five-member military commission to “try summarily”
Dakota and mixed-bloods for “murder and other outrages.” Whether
Sibley had authority to appoint such a commission is questionable, but
he seems to have acted with good intentions. Without quick trials by a
commission, the prisoners would almost certainly have been victims of
vigilante justice.

ØØ To understand the final outcome of the trials, we need to distinguish

between two types of violence. Some Dakota participated in massacres
(and, in some instances, rapes). Other Dakota participated only in
battles, such as the siege of Fort Ridgely or the two assaults on New
Ulm. Generally, we do not think of warriors or soldiers who participate
only in battlefield actions as murderers. The indiscriminate killing of
civilians, however, is considered a war crime and is punishable under
the law.

90 The Great Trials of World History and the Lessons They Teach Us
ØØ The trials—392 in all—came in three batches. In the first batch of 29
trials, most prisoners received death sentences, but six received acquittals.
The commission was not simply a conviction mill; it insisted on at least
some credible evidence of guilt before convicting. Nevertheless, the bar
for conviction was low. The last batch of 253 trials took place over 10
days, which amounts to more than 25 trials per day. Soldiers escorted
the defendants into court in manacled pairs, eight at a time.

ØØ The trials moved so quickly because, for the commission, mere

participation in a battle justified a death sentence. In approximately
two-thirds of the cases, prisoners admitted firing shots, most likely not
understanding that their admissions could cost them their lives. In all
such cases, the commission proceeded to a guilty verdict in a matter of
minutes.

ØØ In the end, the commission sentenced 303 defendants “to be hanged by

the neck until dead.” Twenty defendants received prison terms of one to
five years. The remainder were found not guilty.

Lecture 10—The Dakota Conflict Trials 91

Were the Trials Fair?
ØØ The trials following the Dakota Conflict were one of a kind. The usual
protections of criminal procedure that defendants in civilian courts
enjoy did not apply here. The Dakota had no defense lawyers, no one
in their corner who could cross-examine prosecution witnesses, and
no one to track down alibi witnesses. The commission could convict
defendants even when a member or two entertained reasonable doubts.
Convictions sometimes turned on the testimony of a single witness—a
witness who might not even have been present when the alleged crime
occurred.

ØØ The commission, moreover, was not the most impartial of juries. The
military members of the commission might have been men of integrity,
but they were still military men. Some of the defendants had recently
attacked troops under their supervision—troops whose lives they had
sought to protect.

ØØ It is also questionable whether the commission should have treated the

defendants as common criminals. Numerous historians have argued
that military officials should have instead treated the Dakota as the
legitimate belligerents of a sovereign power. Of course, only a minority
of Dakota fought in the conflict, and some of what the belligerent
Dakota did was a far cry from normal warfare.

ØØ The defendants were not the only people for whom the trials were
unfair. These were homicide trials without sheriffs, detectives, or
coroners. Trials in which witnesses rarely mentioned the names, ages
and apparent causes of death of victims. One could argue that the
Dakota trials were unfair to the victims, who were not identified and
were not even enumerated.

92 The Great Trials of World History and the Lessons They Teach Us
Lincoln’s Decision and the Execution
ØØ When the trial record arrived, General Pope wasted no time approving
all sentences. Ultimately, the decision as to which of the condemned
prisoners would live and which would die rested with one man:
Abraham Lincoln, the President of the United States. General Pope told
anyone who would listen that he was sure the president would swiftly
approve all sentences.

ØØ Lincoln, however, had other ideas. The president sent a telegram to

General Pope asking that he “forward as soon as possible the full and
complete record of their convictions.” As the Civil War raged, Lincoln
pondered the fate of the 303 Dakota.

Lecture 10—The Dakota Conflict Trials 93

ØØ Aware of rumors that many of the convicted men had raped white
women, Lincoln ordered two White House lawyers, George
Whiting and Francis Ruggles, to make “a careful examination” of the
transcripts and identify those “proved guilty of violating females.” The
aides found exactly two convicted rapists among the 303 condemned
defendants.

ØØ Knowing that a decision to permit the execution of only two men

would almost certainly lead to a mass lynching of the prisoners,
Lincoln gave his lawyers a second order. This time, Lincoln said,
screen for those “convicted of rape or murder”—as distinguished from
those convicted only for participation in battles. This second review
produced 40 names. Two men were later reprieved, and the number of
men condemned fell to 38.

ØØ On a sunny December morning in Mankato, the 38 condemned were

hanged in front of an estimated 5,000 spectators. Chief Little Crow was
not among those executed, having fled to present-day North Dakota.
The following year, however, Little Crow returned to Minnesota and
was killed by a settler.

ØØ The execution marked the end of a chapter, not the end of the story.
In April of 1863, Congress enacted a law providing for the forcible
removal of all Sioux from Minnesota. A military expedition took
fighting into the Dakota Territory. It wasn’t until 1890, at Wounded
Knee, South Dakota, that a generation of warfare finally came to an
end.

Suggested Reading
Anderson and Woolworth, Through Dakota Eyes.
Carley, The Sioux Uprising of 1862.
Folwell, A History of Minnesota.

94 The Great Trials of World History and the Lessons They Teach Us
Questions to Consider
1. The Dakota Conflict trials were speedy affairs, without the usual
protections afforded in criminal trials, with a jury of military officers.
Was there a better way to handle these prosecutions?
2. Should the Dakota warriors who participated in battles have faced trial
at all? Would it have been better to consider them enemy combatants
and release them after the hostilities ended?
3. What does President Lincoln’s decision to overrule over 260 death
sentences imposed by the military commission say about his character?

Lecture 10—The Dakota Conflict Trials 95

 LECTURE 11

The Lincoln
Assassination
Conspiracy Trial

I
t’s April 14, 1865. At Ford’s Theatre in Washington DC, President
Abraham Lincoln and his wife are taking in a performance of
Our American Cousin. At 10:15 pm, John Wilkes Booth enters
the presidential box and fires a bullet into Lincoln’s brain. His task
accomplished, Booth leaps from the mezzanine, lands on the stage,
and rushes toward the theater’s back door. Stagehand Edman
Spangler opens the door for the Booth, who mounts a waiting horse
and disappears into the darkness.

96
The Conspirators
ØØ Most students of American history are familiar with the assassination
of President Lincoln by John Wilkes Booth. What many people do
not know is that Booth wasn’t the only one with assassination on
his mind that evening. The same night, a man named Lewis Powell
entered the home of Secretary of State William Seward and stabbed
the secretary several times. A fellow conspirator, David Herold, had
already fled the scene.

ØØ Another conspirator, George Atzerodt, was assigned the task of

assassinating Vice President Andrew Johnson. Atzerodt rented a room
at the Kirkwood House, where the Vice President was staying, and
asked a desk clerk about Johnson’s whereabouts. In his possession
were a loaded revolver, a bowie knife, and three handkerchiefs. To
Booth’s dismay, however, Atzerodt couldn’t bring himself to do the
job.

ØØ Conspirator Michael O’Loughlen was also a disappointment to Booth.

O’Loughlen’s mission, government prosecutors later alleged, was to
assassinate General Ulysses Grant. But the evidence suggests at most
that O’Loughlen had scouted out the home of Secretary of War Edwin
Stanton.

ØØ Mary Surratt, the owner of a boarding house in Washington, was also

busy on April 14. In a buggy rented for her by Booth, Surratt traveled
to a Maryland tavern to deliver a package for Booth to retrieve after
shooting the president.

ØØ At midnight, John Wilkes Booth and David Herold arrived at the

tavern visited hours before by Mary Surratt. They then head toward
the farm of Dr. Samuel Mudd. At some point during the night—
whether in leaping from Lincoln’s box or in a fall from his horse—
Booth fractured his leg. Mudd treats the leg and constructs for Booth a
pair of crude crutches.

Lecture 11—The Lincoln Assassination Conspiracy Trial 97

Investigation and Arrests
ØØ Hours after the president was shot, investigators began to focus on
Mary Surratt’s boarding house, where Booth was known to have stayed
during his visits to Washington. The investigators roused Surratt from
her bed around 4:00 am on April 15 and questioned her regarding
Booth’s whereabouts. After the investigators left, Surratt reportedly
said to her daughter, “Anna, come what will, I am resigned. I think J.
Wilkes Booth was only an instrument in the hands of the Almighty to
punish this proud and licentious people.”

ØØ Two days later, a team of investigators returned to the Surratt home

around 11:00 pm. While they interviewed Mary Surratt, a man
knocked at the door. It was Lewis Powell, the man who had assaulted
Secretary of State Seward with a knife. Powell was carrying a pick-axe.
Asked by investigators what he was doing there, Powell claimed that he
had been hired to dig a gutter.

ØØ Mary Surratt refused to back up Powell’s story. She told investigators,

“Before God, sir, I do not know this man, and have never seen him, and
I did not hire him to dig a gutter for me.” While in the Surratt home,
investigators uncovered various pieces of incriminating evidence. They
found, for example, a picture of John Wilkes Booth hidden behind
another picture on a mantelpiece.

ØØ Surratt and Powell were taken into custody. William Bell, a servant
of Secretary’s Seward, identified Powell as the man who had stabbed
the secretary. The same day, stagehand Edman Spangler was arrested
following reports to investigators that Spangler had aided Booth’s
escape from Ford’s Theatre.

ØØ Samuel Arnold was arrested in Virginia after he was determined to

have been the author of an incriminating letter found inside a trunk in
Booth’s hotel room. In his letter to Booth, Arnold wrote, “You know
full well that the [government] suspicions something is going on there;
therefore the undertaking is becoming more complicated.”

98 The Great Trials of World History and the Lessons They Teach Us
Ford’s Theatre

Lecture 11—The Lincoln Assassination Conspiracy Trial 99

ØØ In custody, Arnold identified seven individuals he met the previous
month when the plan was to kidnap the president, not to kill him.
This original plan, likely backed by the Confederate government in
Richmond, was to kidnap Lincoln and take him behind Confederate
lines to Richmond. The idea was to release Lincoln only when the Union
agreed to release captured Confederate soldiers. The plan fell through,
however, when Lincoln changed plans on the day the plot was to be
executed. Arnold’s tip led to the arrest of O’Laughlen and Atzerodt.

ØØ When first interviewed by investigators, Dr. Samuel Mudd said that

the man whose leg he had fixed “was a stranger to him.” When a search
of Mudd’s home revealed a riding boot with Booth’s name on it, the
doctor claimed not to have noticed the writing. He also claimed not
to recognize a photo of Booth. But investigators knew from talking to
Mudd’s neighbors that Mudd and Booth had been seen together the
previous November, and they arrested Mudd.

ØØ On April 26, 12 days after the assassination, investigators closed in on

their main prey. Booth and Herold were hiding in a barn in Virginia.
The suspects were told that the barn would be set on fire if they didn’t
come out. Booth tried to bargain, but failed. Pine boughs were placed
against the barn. David Herold stepped out of the barn and was
apprehended. With the fire raging around him, Booth appeared at the
door of the barn carrying a carbine. A shot rang out, and Booth fell. He
died two hours later.

The Military Commission

ØØ Secretary of War Edwin Stanton favored a quick military trial for the
eight alleged conspirators. Edward Bates, Lincoln’s former Attorney
General, disagreed. He favored trial in a civilian court. Bates argued
that the use of a military trial would be unconstitutional. Bates said, “If
the offenders are done to death by that tribunal, however truly guilty,
they will pass for martyrs with half the world.”

100 The Great Trials of World History and the Lessons They Teach Us
 Edward Bates

ØØ President Johnson asked his own Attorney General, James Speed, to

prepare an opinion on the legality of a military trial. Speed concluded
that use of a military court was lawful and proper. He reasoned that
the attack on the commander in chief came before the full cessation of
the Confederate rebellion and that the assassination should therefore
be considered a war crime. As an act of war, Speed said, the conspiracy
should be tried before the Department of War. Johnson agreed.

ØØ Testimony before a nine-person military commission began on May

12, just three days after the prisoners were first informed of the charges
against them and asked if they would like to have legal counsel. Apart

Lecture 11—The Lincoln Assassination Conspiracy Trial 101

 from the distressingly short time to prepare for trial, the defendants had
other things stacked against them. Under the rules of the commission,
they could be convicted by a simple majority vote, and a two-thirds
majority could impose the death sentence. And while their lawyers
could call witnesses on their behalf, the defendants themselves were not
allowed to testify.

ØØ The trial took seven weeks, during which time the commission heard
from 371 witnesses. Over the course of it all, spectators lucky enough
to get admission passes moved freely in and out of the courtroom—a
surprisingly nonchalant atmosphere for such an important trial.

Prosecution and Defense

ØØ The prosecution presented evidence of not just one plot against Lincoln
and other leaders, but two. The first plot was the abandoned plot to
kidnap Lincoln. By April of 1865, the prosecution alleged, Booth had
given up on kidnapping Lincoln and had begun planning to kill him.

ØØ The primary argument of defendants Arnold and O’Laughlen was that

while they were on board for a while with the kidnapping plot, they
did nothing to further the assassination plot. The problem with this
argument was that the military tribunal did not look kindly on people
who had supported—even for a while—a plot to kidnap the president.
In addition, a prosecution witness placed O’Laughlen at Secretary
Stanton’s home the night before the assassination.

ØØ The eight defendants played different roles in the assassination

conspiracy, and the evidence of guilt was different for each of them. The
guilt of Lewis Powell, David Herold, and George Atzerodt was clear
almost beyond question. There was no conceivable way any of the three
could be acquitted. The death sentence was a foregone conclusion.

ØØ Ford’s Theatre stagehand Edman Spangler played only a bit part in the
plot. Unfortunately for him, the prosecutors had several witnesses who

102 The Great Trials of World History and the Lessons They Teach Us
 made his willing participation seem likely. Spangler’s defense attorney,
Thomas Ewing, argued that while the prosecution evidence might
suggest that Spangler agreed to assist Booth, it failed to prove that
Spangler was aware of Booth’s guilty purposes.

ØØ The case against Dr. Samuel Mudd was circumstantial and highly
controversial. The prosecution showed through the testimony of several
witnesses that Mudd and Booth enjoyed a much closer relationship
than the doctor would admit. Then, of course, there were Mudd’s
denials and lies to investigators. And three witnesses, including two
of Mudd’s own slaves, testified that Mudd was a hard-core racist who
wished the president dead.

ØØ Defense attorney Thomas Ewing argued that Mudd had only one
prior encounter with Booth, and that all other alleged meetings were
fabrications of prosecution witnesses. Ewing contended that it was no
crime to fix a broken leg, even if it was the leg of a presidential assassin.
The prosecution, Ewing argued, had failed to prove that Mudd actually
furthered the conspiracy in any way. Prosecutors responded by noting that
Mudd had pointed out to Herold and Booth the route they should take
upon leaving his farm. That, said prosecutors, furthered the conspiracy.

ØØ No defendant’s case was more contested and debated than that of Mary
Surratt. President Johnson called her the keeper of “the nest that hatched
the egg.” Without question, Booth and other conspirators had been
frequent visitors at Surratt’s boarding house. But evidence of association
with conspirators is not by itself enough to sustain a conviction.
Prosecutors needed to show that Surratt took specific actions that
furthered the conspiracy. It is clear that she lied to investigators, but
lying is not enough for a conviction.

ØØ The most incriminating evidence against Surratt came from two

witnesses, Louis Weichmann and John Lloyd. Weichmann, a boarder in
Surratt’s home, described a buggy trip with Surratt on the afternoon of
the assassination to Surratt’s tavern in Maryland. The tavern was part of
a farmhouse where Mary had previously lived with her husband John.

Lecture 11—The Lincoln Assassination Conspiracy Trial 103

 John died in 1862, and Mary rented out the tavern when she opened
her boarding house in 1864.

ØØ The most damning evidence against Surratt came from John Lloyd
himself. He testified that Herold, Atzerodt, and Mary’s son, John
Surratt, Jr., had dropped off two carbines and ammunition at his tavern
weeks before the assassination. Lloyd testified that three days before the
assassination, Mary Surratt told him that “the shooting irons” left by
the men would be needed soon. On the day of the assassination, Surratt
again brought up the subject, according to Lloyd:

When I got home … I found Mrs. Surratt there. … She told me to

have those shooting-irons ready that night. There would be some
parties who would call for them. She gave me something wrapped
in a piece of paper, which I took upstairs, and found to be a field-
glass. She told me to get two bottles of whisky ready, and that these
things were to be called for that night.

ØØ Surratt’s attorney, Frederick Aiken, argued that Lloyd’s evidence

should be disbelieved because Lloyd admitted to drinking heavily on
the afternoon of the assassination. Moreover, said Aiken, Lloyd was
motivated to “exculpate himself by placing blame” on Mary Surratt.
Finally, Aiken argued, there was no direct evidence that Surratt knew
that Booth planned to assassinate the president. Aiken suggested that
Surratt may have unintentionally aided Booth’s escape, but that nothing
she did showed an intent to further a murder.

Sentences and Executions

ØØ After a day of deliberations, the commission reached its verdict. Seven of
the prisoners were found guilty of at least one of the conspiracy charges.
Ned Spangler was guilty only of aiding and abetting Booth’s escape. He
was sentenced to six years in prison. Arnold, Mudd, and O’Laughlen
were sentenced to “hard labor for life.” Powell, Atzerodt, Herold, and
Surratt were sentenced “to be hanged by the neck until dead.”

104 The Great Trials of World History and the Lessons They Teach Us
ØØ The commission sent its recommendations to President Johnson for his
review. Five of the nine commission members recommended that the
president reduce Mary Surratt’s punishment to life in prison because of
“her sex and age.” Johnson approved all of the sentences, including the
death sentence for Surratt. On July 6, the four condemned prisoners
were told they would hang the next day.

ØØ Surratt’s lawyers mounted a frantic effort to save their client’s life. They
hurriedly prepared a petition for habeas corpus arguing that the tribunal
that tried Surratt was unconstitutional. The morning of the scheduled
execution, Surratt’s attorneys succeeded in convincing a federal district
court judge to issue the requested writ. But the victory was short-lived.
President Johnson quashed the effort to save Surratt, issuing an executive
order suspending the writ of habeas corpus “in cases such as this.”

ØØ At 1:30 pm on July 7, the condemned prisoners were executed. Mary

Surratt, whom no one had expected to be among the condemned,
became the first woman ever executed by the United States.

ØØ The surviving prisoners were taken to a prison at Fort Jefferson, in

Florida’s Dry Tortugas. Two years later, a yellow fever epidemic swept
the prison and claimed the life of O’Laughlen. On March 1, 1869, the
last full day of President Johnson’s term, Mudd, Arnold, and Spangler
received pardons.

Fort Jefferson

Lecture 11—The Lincoln Assassination Conspiracy Trial 105

 Suggested Reading
Chamlee, Lincoln’s Assassins.
Kauffman, American Brutus.
Steers, Blood on the Moon.
Tidwell, Come Retribution.

Questions to Consider
1. Why did the United States choose to try the eight alleged conspirators
before a military tribunal rather than in civilian courts?
2. Two of the eight defendants seem to have supported the initial plan to
kidnap President Lincoln, but played no significant role in the April 14
conspiracy. Was it fair to try these two defendants together with other
defendants for whom there was far more evidence of guilt?
3. How fair can one expect decisions to be when a case involving a
Confederate conspiracy is tried before Union officers?

106 The Great Trials of World History and the Lessons They Teach Us
 LECTURE 12

The Trial of
Louis Riel

I
n the 1800s, Louis Riel became the charismatic leader of the Metis,
the mixed-race descendants of unions between Europeans and
Cree, Ojibwa, and other indigenous peoples. In the 1885 North-
West Rebellion, Riel led Metis settlers along the South Saskatchewan
River in an uprising against Canadian forces. The rebellion was
quickly put down, but the conflict—and subsequent trial of Riel—
revealed tensions that distinguish Canada to this day.

107
Louis Riel
ØØ Riel was born in 1844 into a devout Catholic family in St. Boniface,
a settlement on the Red River, in present-day Winnipeg. Although of
seven-eighths white ancestry—his father was of Franco-Ojibwa descent
and his mother was white—Riel considered himself a Metis. He left
home at age 14 to travel to Montreal and study for the priesthood. A
serious and gifted student, Riel struck his masters as deeply faithful and
scholarly, but somber and a bit odd.

ØØ Ten years later, when his widowed mother begged him to return home,
Riel left Montreal. On his way back, Riel stayed for several months in
St. Paul, where he heard stories from Metis traders of growing unrest in
the settlements north of the border, along the Red River.

ØØ At the time, the Hudson’s Bay Company was preparing to sell a

massive swath of its land to Canada, a swath that included present-day
Manitoba and Saskatchewan. When a Canadian survey team arrived,
local residents grew concerned about what the land transfer might
mean for their independent lifestyle.

ØØ Riel, now back at his mother’s small cottage, took up the Metis cause
and persuaded the surveyors to abandon their mission. He then rallied
both French-speaking and English-speaking Metis, stressing their
common grievances with the Canadian government, and urged the
creation of a local army.

ØØ Riel’s ragtag army soon seized a fort on the Red River owned by the
Hudson’s Bay Company. The fort, named Fort Garry, fell without
bloodshed. Next, Riel formed a provisional government with himself as
the president. His efforts found support among the Metis in the region,
but many white Canadians were outraged.

ØØ A group of whites began plotting to retake Fort Garry, but were arrested
by Riel’s government before they could put their plan into action. One
of those arrested was Thomas Scott, a hotheaded migrant from Ontario

108 The Great Trials of World History and the Lessons They Teach Us
 and an unrepentant racist. After his arrest, Scott taunted his captors
so relentlessly that the decision was made—and approved by Riel—to
court-martial Scott. He was convicted and executed by firing squad.

ØØ Scott’s killing became the central and defining event of the Metis
resistance along the Red River. All hope of compromise went out the
window, and the Canadian prime minister sent forces west to regain
control of the region.

ØØ Riel’s provisional army proved no match for the Canadian troops, and
Riel fled just hours before the troops reached Fort Garry. In June of
1870, an agreement was reached. Under the agreement, a new province
to be called Manitoba would be established and would have substantial
local autonomy. The agreement guaranteed settlers the right to retain
their land, and it set aside an additional 1.4 million acres within the
province for future Metis possession. Notably, however, the agreement
did not include amnesty for Riel.

ØØ In 1873, despite an outstanding warrant for his arrest, Riel won

election to the Parliament of Canada. When he showed up in Ottawa
to claim his seat, his fellow members voted immediately to expel him.
In 1874, while in hiding in Montreal, Riel again won the Manitoba
seat in Parliament. After another expulsion, the voters of Manitoba
elected Riel to Parliament a third time.

ØØ Tired of dealing with the sticky political mess caused by Riel’s

popularity in Manitoba, legislators voted in 1875 to grant amnesty
for all participants in the uprising. In Riel’s case, however, the amnesty
came with a condition: Riel had to agree to a five-year banishment
from Canada.

Prophet of the New World

ØØ Riel’s banishment led to a turning point in his life. Shortly after visiting
with President Grant in Washington DC, Riel experienced a vision. In

Lecture 12—The Trial of Louis Riel 109

 it, God anointed him as his “prophet of the new world.” No longer did
Riel see himself as an exiled and failed political leader. He was now the
voice for a people favored by God, the Metis.

ØØ Riel’s vision raised questions about his mental health, and so did many
of his actions. He told people that he was the biblical King David.
He developed a propensity for ripping his clothes off. To those who
asked about his nudism, Riel told them the body was beautiful, citing
Adam’s and Eve’s nudity in the Garden of Eden. Friends observed Riel

King David

110 The Great Trials of World History and the Lessons They Teach Us
 crying and shouting in public. He gave $1,000 to a blind beggar. He
interrupted a mass to contradict a priest.

ØØ Just one year into his five-year banishment, concerned friends secretly
took Riel to Quebec, where his uncle placed him in a mental institution
under an assumed name. His mental condition continued to deteriorate.

ØØ Manitoba, meanwhile, was undergoing a rapid evolution. The

province was becoming more English and less French. It was becoming
increasingly dependent on rail and steamboats. And its hunting and
fur-trading economy was giving way to farming. Metis intent upon
preserving their traditional lifestyle looked west to Saskatchewan, and
several thousand Metis migrated to lands along the Saskatchewan River.

ØØ Eventually, Riel’s health improved enough to allow his discharge from the
asylum. After traveling throughout Manitoba and the northern United
States, Riel settled in Montana in late 1879. By the spring of 1883, he
was married with two children and had become an American citizen.

ØØ Back in Saskatchewan, things were not going well for the Metis.
Canadian government surveyors were redrawing plots on land the
Metis had settled. In the summer of 1884, the Metis sent a delegation
to Montana to convince Riel to return to Canada and take up their
cause once more.

ØØ Riel accepted the call, packed up, and headed north to the small river
town of Batoche. There he busied himself drafting a petition of grievances
for both white and Metis residents. He sent the petition to Ottawa, but
the government made only minor concessions that did nothing to reduce
the agitation. By March of 1885, Riel was convinced that the time had
again come to take up arms against the Canadian government.

ØØ Violence soon erupted in what would later be called the North-West

Rebellion. When word of the rebellion reached Ottawa, the Canadian
prime minister sent 2,000 troops west over the incomplete rail lines of

Lecture 12—The Trial of Louis Riel 111

 the Canadian Pacific. The troops traveled by foot and sleigh from one
segment of the railroad to another.

ØØ The climactic battle between the badly outnumbered rebels and

Canadian troops occurred on May 9 near the rebel-held town
of Batoche. Knowing the rebels were pinned down and low on
ammunition, Major-General Frederick Middleton was content to let
the fighting drag on for several days. When it became apparent that the
rebels’ ammunition was nearly gone, Middleton’s troops charged.

ØØ Many rebels, including Riel, fled into the woods north of Batoche. Three
days later, however, Riel came to understand that his cause was hopeless.
Believing that a public trial might draw attention to the struggle of the
Metis people, he surrendered. In the eight weeks before his trial, Riel
occupied himself by writing religious poetry, letters to relatives and
friends, and notes about his religious and political movement.

The Trial
ØØ Riel was charged with “wickedly, maliciously, and traitorously” making
“war against our lady the Queen” and “maliciously and traitorously”
attempting “by force and arms [to] subvert and destroy the constitution
and government of this realm.” He pleaded not guilty.

ØØ Impressive teams of lawyers were assembled for both sides. A 60-year-

old Toronto barrister named Christopher Robinson led the prosecution
for the Crown. The defense was led by a 35-year-old Quebec criminal
attorney, Francois-Xavier Lemieux, who later became chief justice of
Quebec. Ably assisting Lemieux was Charles Fitzpatrick, who later in
his career served as chief justice of Canada.

ØØ Given their client’s central role in the rebellion, defense lawyers had
little choice but to argue that Riel was not guilty by reason of insanity.
There was plenty of evidence showing Riel to be a psychologically
troubled megalomaniac, but the defense also needed to prove that Riel’s

112 The Great Trials of World History and the Lessons They Teach Us
 condition was such that he could not appreciate the wrongfulness of his
illegal conduct.

ØØ On July 28, 1885, the trial opened in a makeshift courtroom created in

the rented offices of a Regina land company. The prosecution put on the
stand a series of government witnesses who described the leading role
Riel had played in the rebellion. The defense did little to try contradict
this testimony. Instead, defense lawyers limited cross-examination to
questions designed to elicit admissions that Riel was behaving strangely.

ØØ The prosecution’s star witness was Charles Nolin, cousin of Riel and
formerly one of his closest associates. Nolin testified that Riel hoped
to sow the seeds that would eventually break Canada into a number
of separate countries, each governed by a distinct ethnic group.
During Nolin’s testimony, Riel became agitated and leaped to his feet,
demanding the opportunity to cross-examine Nolin himself.

ØØ Riel’s attorney, Charles Fitzpatrick, begged the court not to allow Riel to
question the witness. Fitzpatrick feared that a skillful cross-examination
by his client would undermine the insanity defense. An argument
between Riel and Fitzpatrick ended only when the judge explained to
Riel that asserting his right to cross-examine could mean the effective
loss of his lawyers’ services for all aspects of the case.

ØØ For the defense, Father Alexis Andre and Father Vital Fourmond testified
about Riel’s peculiar visions and religious beliefs. Both men told the jury
that they thought Riel was mad. Questions to the priests concerning the
reasons for Metis dissatisfaction with Ottawa were met with objections
from the government. The government successfully argued that Metis
complaints, however justified, could not excuse armed action.

ØØ The defense ended its case by calling two expert medical witnesses. One
was Dr. Francois Roy, superintendent of the asylum where Riel had
spent nearly two years as an inmate. Roy testified that Riel suffered from
megalomania and was clearly of unsound mind. The second medical
witness was Dr. Daniel Clarke, superintendent of a respected asylum

Lecture 12—The Trial of Louis Riel 113

 and future president of the American Psychiatric Association. Dr. Clarke
told the jury that he believed Riel had been insane ever since 1865, when
he wrote a letter suggesting that he was not really Louis Riel, but a Jew.

ØØ Testimony ended with the calling of rebuttal witnesses by the

prosecution, each of whom recounted conversations with Riel that
convinced them that he was not insane. The prosecution and defense
then delivered a series of eloquent closing arguments.

ØØ The jury of six men deliberated Riel’s fate for one hour before filing
back into the courtroom. The foreman, Francis Cosgrove, was crying
when he announced the verdict: “Guilty,” Cosgrove said. He then
added, “Your Honor, I have been asked by my brother jurors to
recommend the prisoner to the mercy of the Crown.”

ØØ The judge, however, was not in a merciful mood. He declared that Riel
had “let loose the floodgates of rapine and bloodshed.” He found “no
excuse whatever” for Riel’s treason and sentenced him to “be hanged
by the neck ‘til you are dead.” Defense lawyers appealed the case to the
Manitoba Court of Queen’s Bench, but the appeal was unanimously
rejected on every ground.

ØØ The execution of Louis Riel elevated him to the status of martyr in much
of Quebec. Mass rallies took place in Montreal. Throughout the province,
people hung black drapes and displayed other signs of mourning.

ØØ Riel’s execution was also a turning point in Canadian politics.

Opposition to the execution helped break the Conservative hold on
French Canada. Riel’s concerns and his passions helped define the
course of Canadian history.

ØØ After his death, Riel remained a large figure in the Canadian imagination.
For many decades, French Canadians largely saw him as a hero; English
Canadians saw him as a villain. Over time, Riel’s actual role in history
gave way to a symbolic role that continues to this day. As Canadian

114 The Great Trials of World History and the Lessons They Teach Us
 historian Shannon Bower notes, various groups in Canada now “seek to
animate their struggles through the transcendent spirit of Louis Riel.”

Suggested Reading
Brown, Louis Riel.
Flanagan, Louis ‘David’ Riel.
Howard, Strange Empire.

Questions to Consider
1. Is Louis Riel better viewed as a traitor or a freedom fighter?
2. Riel suffered from delusions and had serious psychological problems.
Should the evidence of his insanity have been sufficient to justify an
acquittal?
3. How did Riel’s actions and passions help define the course of Canadian
history and politics?

Lecture 12—The Trial of Louis Riel 115

 LECTURE 13

The Three Trials of

Oscar Wilde

T
he year is 1891, and Oscar Wilde is at the height of his talents.
Searching for “a new sensation,” the 38-year-old Irish author
spends his evenings chasing after men half his age. Ironically,
it is a more respectable relationship—one with 22-year-old poet Lord
Alfred Douglas—that will bring Wilde’s illicit encounters to light in a
series of trials that will captivate England and much of the literary world.

116
Douglas and Wilde
ØØ Wilde’s relationship with Douglas first caused him problems when
Douglas gave an old suit to a down-and-out friend named Alfred
Wood. Wood discovered in a pocket of the suit letters written by Wilde
to Douglas—letters than could fairly be described as love letters. Wood
extorted 35 pounds from Wilde for return of most of the compromising
letters. Two other blackmailers were paid smaller amounts of money to
return the remaining letters.

ØØ Wilde’s bigger problem was Alfred Douglas’s father, John Douglas,

Marquess of Queensberry. Queensberry was an arrogant, ill-tempered,
eccentric, and perhaps even mentally unbalanced Scottish nobleman.
His major claim to fame was his development and promotion of rules
for amateur boxing called the Queensberry rules.

ØØ Queensberry was suspicious and concerned about his son’s relationship

with Wilde. He became convinced that Wilde was a homosexual and
demanded that his son stop seeing him. Said Queensberry in a letter
to his son: “Your intimacy with this man Wilde must either cease or I
will disown you and stop all money supplies. I am not going to try and
analyze this intimacy, and I make no charge; but to my mind to pose as
a thing is as bad as to be it.” Douglas offered a tart reply to his father in
a telegram: “What a funny little man you are.”

ØØ Queensberry took increasingly desperate measures to end the

relationship. He threatened restaurant and hotel managers with
beatings if they allowed Wilde and his son together on their premises.
In June of 1894, he showed up without warning at Wilde’s house in
Chelsea, bringing a prizefighter with him. After an intense argument,
Wilde ordered Queensberry to leave his house and never come back.
Wilde quipped, “I do not know what the Queensberry rules are, but
the Oscar Wilde rule is to shoot on sight.”

ØØ On February 14, 1895, Wilde’s new play, The Importance of Being

Earnest, opened at the St. James Theatre in London. Wilde learned

Lecture 13—The Three Trials of Oscar Wilde 117

 through the grapevine that Queensberry intended to disrupt the
performance and harangue the audience about Wilde’s decadent
lifestyle. To thwart the plan, Wilde arranged to have the theater
surrounded by police. Blocked from entering the theater, a frustrated
Queensberry prowled about outside for three hours.

ØØ Four days later, Queensberry paid a visit to the Albemarle Club, where
both Wilde and his wife were members. He left a card with a porter,
instructing him to give it to Wilde when he arrived. On the card,
Queensberry had written the following: “To Oscar Wilde posing as a
sodomite.”

ØØ When Wilde showed up at the club two weeks later, the porter handed
him the card with Queensberry’s offensive message. That night, Wilde
scribbled a note to Douglas, asking that he come see him. “I don’t see
anything now but a criminal prosecution,” Wilde wrote. “My whole life
seems ruined by this man.”

ØØ The next day, Wilde and Douglas visited a solicitor, Travers Humphreys,
to discuss the possibility of a prosecution for libel against Queensberry.
Humphreys asked Wilde directly whether there was any truth to
Queensberry’s allegation that he was a sodomite. Wilde lied, claiming
that the allegation was false.

ØØ After Wilde’s assurance that Queensberry’s charge was baseless,

Humphreys applied for a warrant for Queensberry’s arrest. Police
arrested Queensberry, and he was charged with criminal libel.

ØØ Travers Humphreys asked Edward Clarke, a towering figure in the

London bar, to prosecute Wilde’s case. Before accepting the case,
Clarke said to Wilde, “I can only accept this brief, Mr. Wilde, if you
assure me on your honor as an English gentleman that there is not and
never has been any foundation for the charges that are made against
you.” Wilde lied again, answering that the charges were “absolutely false
and groundless.”

118 The Great Trials of World History and the Lessons They Teach Us
Oscar Wilde

Lecture 13—The Three Trials of Oscar Wilde 119

ØØ A week before the trial, several
close friends of Wilde advised
him to drop his libel suit. George
Bernard Shaw and Frank Harris,
two well-known friends from
the literary world, pleaded
with Wilde over lunch. They
suggested that he flee England
and continue his writing
abroad. Wilde rejected the idea
and left the restaurant. His
friends remained at the table,
likely stunned by Wilde’s poor
judgment.

Queensberry on Trial
ØØ In April 1895, the prosecution of George Bernard Shaw
Queensberry began. Sir Edward
Clarke delivered the prosecution’s
opening statement. Attempting
to take some of the sting out of a key piece of evidence Queensberry
planned to introduce, Clarke read one of Wilde’s letters to Douglas.
Clarke admitted that the letter “might appear extravagant to those in
the habit of writing commercial correspondence,” but reminded the
jury that Wilde was a poet. The letter, Clarke said, should therefore
be read as “the expression of true poetic feeling, and with no relation
whatever to the hateful and repulsive suggestions” of the defense.

ØØ Soon it was time for Wilde to take the stand. He got off to a bad start,
claiming to be 39 when he was actually 41. Under questioning by
Clarke, Wilde, with easy assurance, described his previous encounters
with Queensberry. Clarke concluded by asking Wilde whether there
was any truth to Queensberry’s accusations. Wilde answered, “There is
no truth whatever in any of them.”

120 The Great Trials of World History and the Lessons They Teach Us
ØØ After lunch, Edward Carson skillfully cross-examined Wilde regarding
his published works and the facts of his past relationships. In the literary
portion of the examination, Carson asked Wilde about two of his works,
The Picture of Dorian Gray and Phrases and Philosophies for Use of the Young.
Wilde passionately defended both works against Carson’s suggestion that
they were immoral and touched upon homosexual themes.

ØØ Wilde did his best to turn the proceedings into a joke, answering
questions flippantly. Always the artist, he couldn’t resist reaching for
creative, witty answers, even if they contradicted earlier ones. Though
immensely interesting reading, the literary portion of Carson’s cross-
examination was not nearly as incriminating as what came next.

ØØ When Carson began asking about Wilde’s prior relationships with

young men, Wilde became noticeably uncomfortable. Carson
produced items ranging from fine clothes to silver-mounted walking
sticks that Wilde admitted he had given to his young companions as
gifts. Suspiciously, the recipients of Wilde’s generosity were not, in
Carson’s words, “intellectual treats.” Rather, the gifts went to newspaper
peddlers, valets, and unemployed young men. In some cases, the
recipients were barely literate.

ØØ Wilde tried to explain: “I recognize no social distinctions at all of any

kind, and to me youth, the mere fact of youth, is so wonderful that I
would sooner talk to a young man for half-an-hour than be—well—
cross-examined in court.”

ØØ Soon after that confident response, Carson asked Wilde about a young
man named Walter Grainger. “Did you kiss him?” Carson asked. “Oh,
dear no!” Wilde replied. “He was a peculiarly plain boy.” Carson zeroed
in on his prey, asking whether Wilde hadn’t kissed Grainger because of
his appearance. “Why, why, why, did you add that?” Carson demanded
to know. Wilde had no good answer to the question.

ØØ In his opening speech in defense of Queensberry, Carson announced

that he intended to call to the witness box a procession of young men

Lecture 13—The Three Trials of Oscar Wilde 121

 with whom Wilde had been sexually associated. The atmosphere in
the courtroom became tense. Edward Clarke understood now that not
only was his client’s libel case lost, his client was at serious risk of being
prosecuted himself. An 1885 law criminalized acts of “gross indecency,”
which had been interpreted to apply to any form of sexual activity
between members of the same sex.

ØØ Interestingly, the 1885 law was widely seen at the time of its passage as
progressive legislation. Prior to 1885, sexual assaults on boys over the age
of 13 that fell short of rape were not crimes at all. The law was passed to
protect boys from preying adults, not to punish consenting adults.

ØØ That evening, Clarke urged Wilde to let him to withdraw the

prosecution. Wilde agreed. The next morning in court, Clarke rose
to announce the withdrawal. Queensberry, however, was looking for
more than just vindication. He directed his solicitor to send to the
Director of Public Prosecutions copies of statements by the young men
he had planned to produce as defense witnesses. Shortly after the trial
concluded, Wilde was arrested.

ØØ The damage to Wilde’s reputation was substantial. When word of

his arrest spread, Wilde’s name was removed from the ads at the St.
James Theatre, where The Importance of Being Earnest was still being
performed.

Wilde on Trial
ØØ The first criminal trial of Oscar Wilde began on April 26, 1895. Joining
Wilde as a defendant was Alfred Taylor, whose job it was to procure
young men for Wilde. Wilde faced 25 counts of gross indecency and
conspiracy to commit gross indecencies. A parade of young male
witnesses for the prosecution testified regarding their roles in helping
Wilde act out his sexual fantasies. Most expressed shame and remorse
over their actions.

122 The Great Trials of World History and the Lessons They Teach Us
ØØ On the fourth day of the trial, Wilde took the stand. His arrogance, so
prominent in the earlier trial, was gone. He answered questions quietly,
denying all allegations of indecent behavior.

ØØ Edward Clarke followed Wilde’s testimony with a powerful summation

on behalf of his client. Clarke closed by asking the jury to “gratify those
thousands of hopes that are hanging on your decision” and “clear from
this fearful imputation one of our most renowned and accomplished
men of letters of today and, in clearing him, clear society from a stain.”

ØØ The jury deliberated for more than three hours before concluding
that they could not reach a verdict on most of the charges. Wilde was
released on bail. A hung jury, unlike an acquittal, gives the prosecution
another bite at the apple. Wilde enjoyed three weeks of freedom before
the start of his second criminal trial.

ØØ Wilde’s second prosecution was headed by England’s top prosecutor,

Solicitor General Frank Lockwood. Although the trial resembled the
first in some ways, the prosecution dropped its weakest witnesses and
focused more heavily on its strongest. The evidence that Wilde engaged
in sexual acts with young men was compelling.

ØØ In his closing speech for the defense, Clarke argued that Wilde’s
“brilliant promise had been clouded” by false accusations and his “bright
reputation  … nearly quenched in the torrent of prejudice sweeping
through the press.” Clarke urged the jury to acquit Wilde so that “he
might … give in the maturity of his genius gifts to our literature.”

ØØ Lockwood, however, had the last word. He told the jury that the evidence
showed just what sort of man Wilde was. “Wilde is a man of culture
and literary tastes, and I submit that his associates should have been
his equals.” Instead, Lockwood said, Wilde chose to have relationships
“with these illiterate boys you have heard in the witness box.”

ØØ The jury found Wilde guilty on all counts of gross indecency except for
charges relating to one of the young men. When he heard the verdict

Lecture 13—The Three Trials of Oscar Wilde 123

 announced, Wilde swayed slightly and his face whitened. Some spectators
shouted “Shame!” Others present in the courtroom cheered the verdict.

ØØ Wilde served two years in prison. He came out chastened and

bankrupt, but not bitter. He told a friend that he “had gained much”
in prison and was “ashamed of having led a life unworthy of an artist.”
In a long prison letter Douglas—later published as De Profundis—
Wilde wrote, “I became a spendthrift of my genius and to waste an
eternal youth gave me a curious joy.”

Broader Impact
ØØ The Wilde trials caused public attitudes toward homosexuals to become
harsher and less tolerant. In the years before the trials, there had been a
certain sympathy for those who engaged in same-sex relationships. After
the trials, the public began to see homosexuals as more of a threat—as
predators.

ØØ The Wilde trials also caused the public to associate art with
homoeroticism and to see effeminacy as a signal for homosexuality.
After the trials, every male-male relationship of any intensity was under
a cloud, every effeminate gesture raised an eyebrow, and the arts and
homosexuality became firmly linked in the public mind.

ØØ Prior to Wilde’s trials, prosecutions for consensual homosexuality in

England were about as rare as they were in the United States at the
end of the 20th century. What offended Victorian society about Wilde’s
conduct was not so much that it involved sex with other males, but
that Wilde had sex with a large number of young male prostitutes.
Wilde was not prosecuted because he was the lover of a social equal
who happened to be male; he was prosecuted for his participation in a
somewhat indiscreet prostitution ring.

ØØ Gay men in England faced even darker days in the decades following
the trials. But social attitudes kept changing, as they always do. In 1967,

124 The Great Trials of World History and the Lessons They Teach Us
 some 70 years after the prosecution of Oscar Wilde, private consensual
acts involving adults were decriminalized in England.

Suggested Reading
Foldy, The Trials of Oscar Wilde.
Holland, The Real Trial of Oscar Wilde.
Hyde, The Trials of Oscar Wilde.

Questions to Consider
1. Why would Wilde, knowing Queensberry’s statement about his sexual
practices to be true, choose to risk everything by bringing a defamation
suit?
2. Would Wilde ever have been prosecuted if his past relationships didn’t
involve minors?
3. Did the Wilde trials lead to increased persecution and stereotyping of
homosexuals?

Lecture 13—The Three Trials of Oscar Wilde 125

 LECTURE 14

The Trial of Sheriff

Joseph Shipp

I
n March of 1909, the nine justices of the United States Supreme
Court assembled in Washington DC to do something the Court
had never done before and, to this day, has never done since:
listen to closing arguments in a criminal case. What terrible crime
might the defendants have committed to be brought before
America’s highest tribunal? The answer begins on a winter evening
three years earlier.

126
The Rape of Nevada Taylor
ØØ On January 23, 1906, a beautiful 21-year old named Nevada Taylor left
her bookkeeping job in downtown Chattanooga around 6:00 p.m. Her
home was a cottage in Forest Hills Cemetery, where her father was the
groundskeeper. As Taylor approached the cemetery gate, a man grabbed
her neck from behind, choking her. “If you scream, I will kill you,”
he said. The attack—which left Taylor raped and unconscious—lasted
only 10 minutes.

ØØ Sheriff Joseph Shipp led the investigation into the rape. He asked Taylor
what she remembered of the attack. She couldn’t recall much. Taylor
described her attacker as muscular, wearing a black outfit and a hat, and
having “a soft, kind voice.” She told the sheriff she wasn’t sure of her
attacker’s race, but thought he might have been an African American.

ØØ An investigation of the crime scene turned up a black leather strap

that matched the red streaks around Taylor’s neck. Word of the find
prompted Will Hixson, a man who worked nearby, to report that he
had seen a black man “twirling a leather strap around his finger” on the
evening of the rape. Later, Hixson called the sheriff and said that he had
just seen the suspect walking north toward town with a tall black man.
By the time Shipp arrived, the tall man was alone, but Shipp learned
that his companion was a part-time carpenter named Ed Johnson.

ØØ Within hours, Shipp spotted Johnson riding on the back of an ice

wagon. Johnson was handcuffed and jailed. Hixson identified him as
the man he had seen twirling the leather strap. Hixson also collected a
$375 reward for identifying Nevada Taylor’s attacker.

ØØ Word of Johnson’s arrest spread. That evening a large crowd—many

carrying guns—gathered in front of the Hamilton County Jail. It took
the National Guard to fend off the lynch mob. But Johnson was not in
danger—at least not that night. Anticipating problems, authorities had
moved him to a jail in Nashville.

Lecture 14—The Trial of Sheriff Joseph Shipp 127

ØØ Nevada Taylor traveled to Nashville to identify her attacker. She
hemmed and hawed, but in the end said she was fairly sure that Johnson
was the man who raped her.

ØØ Taylor’s identification put the case on a fast track. A Chattanooga judge

told grand jurors that outrages such as this “must have the immediate
attention of the law.” Two hours later, the grand jury indicted Johnson.
The judge quickly appointed three local attorneys to represent Johnson
and told them to get moving—the trial would begin in less than a week.

The Trial of Ed Johnson

ØØ The first prosecution witness in the Johnson trial was Nevada Taylor.
Taylor described the attack and identified the leather strap used by her
assailant. The prosecutor asked Taylor if the man who attacked her was
present in the courtroom. “I believe he is the man,” Taylor answered,
pointing to Ed Johnson.

ØØ When Will Hixson was called to the stand, he told jurors that he “saw
the defendant with a strap in his hand … near the scene of the crime.”
Hixson claimed that Johnson’s face was illuminated by two electric cars
passing by: “I saw his face well and could not be mistaken in it.”

ØØ Sheriff Shipp testified next, recounting his investigation and the events
leading to Johnson’s arrest. Shipp said that at the sheriff ’s office in
Nashville, Johnson “raised his voice to a higher pitch” in an attempt to
prevent Taylor from identifying his voice as that of the attacker. Two
of Shipp’s deputies offered brief testimony, and the state rested. It was
a superficial case that relied exclusively on eyewitness testimony—the
perfect recipe for a wrongful conviction.

ØØ The first witness for the defense was Ed Johnson. Johnson spoke in
what observers call “a strange voice” and grabbed the arms of his chair
with both hands. He denied having attacked Nevada Taylor. Johnson
testified that he spent the evening in question working as a poolroom

128 The Great Trials of World History and the Lessons They Teach Us
 porter at the Last Chance Saloon. He said he had arrived around 4:30
pm and stayed until approximately 10:00 pm, which would have made
it impossible for him to rape Nevada Taylor at 6:00 pm. Thirteen
witnesses followed Johnson to the stand. Each one swore that he had
seen Johnson at the saloon during the time Johnson claimed to be there.

ØØ The defense moved on to attack the credibility of Will Hixson. One

defense witness testified that two days after the rape, Will Hixson
had asked him the name of a black man doing some roofing work at
a church. When he told Hixson the roofer’s name was Ed Johnson,
Hixson asked him for a physical description—an odd thing to ask
about someone Hixson would then identify as the suspect.

Lecture 14—The Trial of Sheriff Joseph Shipp 129

ØØ The most dramatic event of the Johnson trial occurred on its third
and final day. At the request of jurors, Nevada Taylor was recalled to
the witness stand. During questioning, a juror rose and asked, “Miss
Taylor, can you state positively that this Negro is the one who assaulted
you?” Taylor answered, “I will not swear he is the man, but I believe he
is the Negro who assaulted me.”

ØØ The juror was not satisfied. He asked again: “In God’s name, Miss
Taylor, tell us positively—is that the guilty Negro? Can you say it? Can
you swear it?” Tears streamed down Taylor’s face. She answered in a
quivering voice: “Listen to me. I would not take the life of an innocent
man. But before God, I believe this is the guilty Negro.”

ØØ Upon hearing Taylor’s tearful response, a second juror rose from his
seat and lunged in the direction of Ed Johnson. The would-be assault
was thwarted by fellow jurors, who restrained him. The angry juror
shouted, “If I could get at him, I’d tear his heart out right now.”

ØØ After six hours of deliberation, the jury was split, with eight jurors voting
for conviction and four for acquittal. After a night home with their
families, the minority caved. The following morning, the jury’s foreman
announced, “On the single count of rape, we, the jury, find the defendant,
Ed Johnson, guilty.” Shockingly, Johnson’s defense attorney told the judge
that the defense would “acquiesce in the action of the jury.”

Johnson Appeals
ØØ Why would defense attorneys counsel their client to accept a wrongful
sentence of death? In Johnson’s case, two of his attorneys believed an
appeal to be futile. Moreover, they thought an appeal might lead to a
raid on the jail that would result not only in Johnson’s death, but in the
death of other inmates.

ØØ Johnson’s attorneys told him that he had a choice: He could accept the
verdict and die in an orderly way at an appointed time, or he could die

130 The Great Trials of World History and the Lessons They Teach Us
 at the hands of a lynch mob. Johnson agreed with their assessment: “I
will tell the judge I am ready to die. But I will also say that I am not the
guilty man.”

ØØ Later, however, Johnson had second thoughts. Hours after Johnson’s

death sentence was pronounced, his father visited the law office of
Chattanooga’s most highly respected African American attorney, Noah
Parden. Johnson’s father told Parden that his son did not want to die;
he wanted to appeal.

ØØ In a decision that surprised no one, the Tennessee Supreme Court

unanimously rejected Johnson’s request for a new trial. Sheriff Shipp
ordered his deputies to begin stretching the rope that would be used to
hang Johnson in 10 days. But Noah Parden did not give up. He took
the battle to save Ed Johnson to the federal courts.

Lecture 14—The Trial of Sheriff Joseph Shipp 131

ØØ There was little reason to expect relief in the federal courts. Federal
judges could not review the evidence presented in state trials; they
could only act to remedy violations of federal constitutional rights.
And because the Court had not yet broadened its interpretation of the
Fourteenth Amendment’s Due Process Clause, key safeguards identified
in the Bill of Rights—such as the right to an impartial jury, the right to
effective counsel, and the right against self-incrimination—did not yet
apply to state trials.

ØØ Parden argued before federal judge C. D. Clark that Johnson’s trial

was riddled with constitutional violations. He contended that the trial
judge’s refusal to delay or move the trial—in view of the attempted
lynching and other threats—denied Johnson due process. He said the
same thing about the juror’s “tear his heart out” lunge at Johnson. He
argued that the county’s systematic exclusion of black jurors violated
the Equal Protection Clause. Finally, Parden suggested that Johnson
had been abandoned by his court-appointed attorneys after the trial.

ØØ Judge Clark agreed that there were serious flaws in Johnson’s trial, but
ruled that the guarantee of a fair trial did not apply in state courts.
In a small victory for the defense, however, Clark postponed Johnson’s
execution for one week to allow the decision to be appealed to the
United States Supreme Court.

ØØ On the morning of March 17, Parden and a Washington attorney

named Emanuel Hewlett met with Justice John Marshall Harlan,
who, in his famous dissent in Plessy v. Ferguson, asserted that the
“Constitution is color-blind.” Harlan asked why the Supreme Court
should hear Johnson’s case. As Parden and Hewlett answered, the justice
nodded, but gave them no words of encouragement.

ØØ After the meeting, Harlan read the transcript of the Knoxville hearing
and became convinced Johnson’s case raised serious constitutional
issues. At Harlan’s request, a majority of the justices gathered at the
home of Chief Justice Melville Fuller to discuss the plea for intervention.

132 The Great Trials of World History and the Lessons They Teach Us
 After debating the issue for an hour, the justices agreed to stay Johnson’s
execution and grant the appeal.

Johnson is Lynched
ØØ The news that the Supreme Court had stayed Johnson’s execution did
not sit well with many in Chattanooga. Around 8:00 pm on March
19, a group of men carrying guns descended on the jail where Johnson
was being held. Just one guard had been assigned to the jail that night;
Sheriff Shipp had rejected a suggestion to post extra guards and had
given all but one of his deputies the night off.

Lecture 14—The Trial of Sheriff Joseph Shipp 133

ØØ The mob dragged Johnson to a bridge over the Tennessee River, tied
a noose around his neck, and tossed him over the side. After a few
minutes, Johnson’s body was pulled back onto the bridge, where mob
leaders were surprised to find his head still moving. A barrage of bullets
ended Johnson’s life once and for all.

ØØ Johnson’s last words were: “I am ready to die. But I never done it. I am
going to tell the truth. I am not guilty. I have said all the time that I
did not do it and it is true. I was not there … God bless you all. I am
innocent.” When Johnson was dead, a leader of the mob pinned a note
to his body: “To Justice Harlan. Come and get your nigger now.”

ØØ When word of Johnson’s lynching reached Washington, Justice Harlan,

accompanied by Justice Oliver Wendell Holmes, asked for a meeting
with Chief Justice Fuller. Afterward, each justice expressed his outrage
to the press. President Theodore Roosevelt called the lynching “an
affront to the highest tribunal in the land that cannot go by without the
proper action being taken.”

ØØ After meeting with Attorney General William Moody, President

Roosevelt ordered a federal investigation of the lynching that could
be used by the Supreme Court should it choose to bring criminal
contempt charges. The final report of the investigation detailed unusual
activities at the jail prior to the lynching. It also described the actions of
key players in the conspiracy, including Sheriff Shipp.

A Historic Trial
ØØ After reviewing the final report of the investigation, Attorney General
Moody met with Chief Justice Fuller and Justice Harlan. They reached
a historic and unprecedented decision to try the conspirators in the
Supreme Court for criminal contempt. Twenty-seven Chattanooga
residents were charged with conspiring to murder Ed Johnson in
violation of the Court’s stay. Included among the 27 were Sheriff Joseph
Shipp and eight of his deputies.

134 The Great Trials of World History and the Lessons They Teach Us
ØØ Defense attorneys argued that the Supreme Court had no power to try
a criminal case. The Court, in a unanimous decision written by Justice
Holmes, ruled to the contrary. The justices announced, however, that
they themselves would not be listening to any actual testimony. Instead,
they appointed James Maher, the Court’s deputy clerk, to preside over
the trial and prepare an evidentiary record for the justices to review.

ØØ In February of 1907, the trial began in Chattanooga. The courtroom

was filled to capacity—mostly by African Americans—as Maher took
his seat on the bench.

ØØ The first prosecution witness was a reporter for the Chattanooga Times
who had witnessed and written about Johnson’s lynching. The reporter
testified that “there were normally six or seven deputies on guard every
night” at the jail—except on the night of Johnson’s lynching. The
testimony of jailed inmate Ellen Baker indicated that Johnson had been
singled out by deputies before and during the mob’s attack.

ØØ A key witness for the prosecution was John Stonecipher, a Georgia man
who had spoken with leaders of the mob at a saloon just hours before
the lynching. Stonecipher testified that a man named Frank Ward
had asked him to participate in the lynching. Stonecipher refused,
adding, “I believe Sheriff Shipp would shoot the red-hot stuff out of
you.” “No,” Ward answered, “It is all agreed. There won’t be a sheriff or
deputy there.” Stonecipher also testified concerning his conversations
with several of the defendants after the lynching.

ØØ The defense based its case on friends, relatives, and coworkers, who
offered alibis or attested to the high moral character of various defendants.
Some of the defendants testified as well, including Sheriff Joseph Shipp.

ØØ More than a year passed before the trial moved to the Supreme Court,
where Shipp and five others were found guilty of criminal contempt.
Shipp was sentenced to 90 days in prison. When he returned to
Chattanooga, he was welcomed as a hero by a crowd of more than
10,000 people.

Lecture 14—The Trial of Sheriff Joseph Shipp 135

 Suggested Reading
Curriden and Phillips, Contempt of Court.
Secret Service Investigative Reports.
Transcript of Record, United States v. Shipp.

Questions to Consider
1. Is it surprising that only one criminal case has been tried before the
United States Supreme Court? What explains the fact that the Shipp
trial is one of a kind?
2. Did the Supreme Court’s decision to try the conspirators have anything
to do with the near certainty that none would be tried in Tennessee
state courts?
3. What should we make of the fact that Sheriff Shipp was greeted by a
crowd of 10,000 when he returned to Chattanooga after serving his
sentence?

136 The Great Trials of World History and the Lessons They Teach Us
 LECTURE 15

The Leopold and

Loeb Trial

O
n May 21, 1924, in the well-to-do Chicago neighborhood
of Kenwood, 14-year-old Bobby Franks was abducted and
murdered by two young men in a rented green automobile.
The killers, Nathan Leopold and Richard Loeb, had nothing against
Bobby; he was simply in the wrong place at the wrong time. In a
criminal prosecution billed as the “trial of the century,” the task of
trying to save Leopold and Loeb from the gallows fell to the nation’s
most famous defense lawyer, Clarence Darrow.

137
A Nearly Perfect Crime
ØØ The crime that captured national attention in 1924 began as a fantasy
in the mind of 18-year-old Richard Loeb. Loeb was the popular,
handsome, and privileged son of a Sears executive. Loeb was obsessed
with crime. Despite being bright enough to be the youngest graduate
ever of the University of Michigan, Loeb read mostly detective stories.
And he didn’t just read about crimes; he also planned and even
committed them. But Loeb’s crimes all had been property crimes—theft
and arson. None of them involved physical harm to another person.
For Loeb, crime was a game and he was looking for a bigger thrill. He
wanted to commit the perfect crime just to prove that it could be done.

ØØ Loeb’s somewhat reluctant partner in crime was Nathan Leopold—

brilliant, introverted, and awkward Nathan Leopold. Though only
19 years old, Leopold already held an undergraduate degree from the
University of Chicago, and in the
spring of 1924 he was enrolled at
the university’s law school. He had
also been accepted at Harvard Law
School and was to begin studies
there the following fall. Nathan’s
interests included ornithology,
philosophy, and, especially, Richard
Loeb. Leopold was gay. Loeb was
not.

ØØ Both Leopold and Loeb followed the

philosophy of Friedrich Nietzsche.
Nietzsche’s ideas, contained in
books like his Beyond Good and Evil,
exerted a powerful influence on
early 20th-century academia, where
the merits of his philosophy were
fiercely debated. Leopold and Loeb
agreed with Nietzsche’s criticism of Friedrich Nietzsche

138 The Great Trials of World History and the Lessons They Teach Us
 moral codes. To them, the legal obligations that applied to most people
did not govern those who approached “the superman”—people like
themselves.

ØØ Motives are often unclear, and so they are in the murder of Bobby
Franks. We can say, however, that Leopold’s attraction to Loeb was
his primary reason for participating in the crime. Leopold later wrote
that “Loeb’s friendship was necessary to me—terribly necessary.”
He explained that his motive, “to the extent that I had one, was to
please Dick.” For Loeb, on the other hand, crime was an escape from
the ordinary, a thrill, an interesting intellectual exercise. In return for
Leopold’s participation in his crimes, Loeb submitted to his friend’s
desire for sex.

ØØ In Loeb’s mind, murder was a necessary element in the perfect crime.

The two teenagers spent months discussing and refining a plan that
included kidnapping the child of wealthy parents. Once the child was
taken, they planned to demand a ransom. Neither Loeb nor Leopold
relished the idea of murdering their kidnap victim, but they thought
it critical to minimizing their likelihood of being identified as the
kidnappers.

ØØ Young Bobby Franks, an acquaintance of both Loeb and Leopold, was

collateral damage. After murdering Franks, they drove their rented car
to a marshland near the Indiana line. They pulled their victim’s body
from the backseat and carried it to a concrete drainage culvert. They
stripped Franks, poured hydrochloric acid over his body to make
identification more difficult, then stuffed it into the culvert.

ØØ Returning to the Loeb home, they burned Franks’s clothing in a

basement fire. Leopold got on the phone and dialed the number for
the Franks home. Bobby’s mother answered. Leopold, identifying
himself as “George Johnson,” told Mrs. Franks that her son had been
kidnapped, but was unharmed. She should expect a ransom note soon.

Lecture 15—The Leopold and Loeb Trial 139

ØØ The next morning, the Franks family received a special delivery
letter. The letter instructed them to immediately secure $10,000 in
old, unmarked bills and expect to be contacted again that afternoon.
Around three o’clock, Leopold called Jacob Franks, Bobby’s father.
Leopold informed him that a taxi cab was about to arrive at his home.
He should take the taxi and the ransom money to a specified drugstore
in South Chicago.

ØØ Franks did not get into the Yellow Cab that pulled up in front of
his home minutes later. Seconds after Leopold had hung up, Franks
received another call, this one from the police. The police broke the
news that the body of his son had been found.

ØØ Investigators at the site found a pair of horn-rimmed tortoise shell

glasses, which—with the help of a Chicago optometrist—they were
able to trace to Nathan Leopold. When they visited the Leopold
home to question Nathan, investigators were unconvinced by his
explanation that that the glasses must have slipped out of his pocket
while birdwatching.

140 The Great Trials of World History and the Lessons They Teach Us
ØØ Asked about his whereabouts on May 21, Leopold said he had spent
the day near Lincoln Park picking up girls in his car with Richard Loeb.
Loeb, questioned separately, confirmed Leopold’s alibi. State’s Attorney
Robert Crowe was skeptical; among the items picked up in a police
search of the Leopold home was a letter written by Nathan strongly
suggesting that he and Loeb had a homosexual relationship.

ØØ Still, prosecutors were on the verge of releasing the two suspects when
two additional pieces of evidence surfaced. First, law school notes
typed in the Leopold home were found to be a match with type on the
ransom note, all the way down to a malformed lowercase i. Second,
the Leopold family chauffeur, trying to exculpate Nathan, told police
that the Leopold car—the same car the boys claimed to have spent the
night driving around in with girls—never left the garage on the day of
the murder.

ØØ Loeb confessed first, then Leopold. Their confessions differed only on

the point of who did the actual killing, with each pointing an accusing
finger at the other.

Enter Clarence Darrow

ØØ The Loeb and Leopold families hired Clarence Darrow to represent
the two boys. Darrow took the case in large part because it offered
him an opportunity to attack the death penalty, which he saw as “an
abomination.”

ØØ The single biggest question Darrow faced was how to plead to the
charges of murder and kidnapping. The confessions made an acquittal
on evidentiary grounds impossible. He could encourage his clients to
plead not guilty by reason of insanity, but insanity is tough to prove—
especially with defendants as intelligent and accomplished as Leopold
and Loeb. Plus, even if the insanity plea succeeded on the murder charge,
the state could turn around and try them both again on the kidnapping
charge. In Illinois, in 1924, kidnapping was also a capital offense.

Lecture 15—The Leopold and Loeb Trial 141

ØØ So Darrow surprised almost everyone. Leopold and Loeb pled guilty
to both charges. Still, there was the matter of sentencing. With a guilty
plea, the sentencing decision fell to the trial judge. If convicted by a
jury, sentencing would have been a jury decision. That fact probably
meant more to Darrow that any other. With the public almost
unanimous in calling for death, Darrow did not want to face a jury. He
much preferred aiming his arguments at the judge, John R. Caverly,
whom Darrow believed to be both “kindly and discerning.”

ØØ Although it is popularly referred to as the “trial” of Leopold and Loeb,

the proceeding before Judge Caverly was actually a hearing in mitigation
of sentence—in this case, to determine whether the death penalty was
called for in view of the circumstances surrounding the crime. It went
on for several weeks.

ØØ The defense hoped to build its case against death around the testimony
of psychiatrists. The best psychiatric talent 1924 had to offer was sought
out by both sides to examine the defendants. Even Sigmund Freud was
asked about coming to Chicago, but his poor health ruled that out.

ØØ Defense psychiatrist William White testified that Leopold’s “pathology

began in early childhood.” Teased “relentlessly,” Leopold became
“estranged from his peers, a lonely, unhappy child  … who retreated
into an inner world where emotion counted for nothing and intellect
was all … Nathan imagined himself a slave … who saved the life of his
king [Richard Loeb] and had thereby earned the king’s gratitude.”

ØØ Another defense psychiatrist, Bernard Gluek, testified that Nathan’s

“ambition has been to become a perfect Nietzschean and to follow
Nietzsche’s philosophy all the way through.” According to Gluek,
Leopold had told him that “he was jealous of the food and drink that
Loeb took, because he could not come as close to him as did the food
and drink.” Gluek concluded that Leopold had a “definitely paranoid
personality” and was given to a “delusional way of thinking.”

142 The Great Trials of World History and the Lessons They Teach Us
ØØ As for Richard Loeb, William White described his “main outstanding
feature” as “infantilism. … He is still a little child emotionally, still talking
to his teddy bear.” Loeb, White said, “needed Nathan’s applause and
admiration in order to confirm his sense of his own self.” White called
the relationship between the two boys “a peculiarly bizarre confluence of
two personalities, each of which satisfied the needs of the other.”

ØØ Not surprisingly, prosecution psychiatrists took a different view.

William Krohn testified, “In my opinion, [Richard Loeb] was not
suffering from any mental disease, either functional or structural, on
May 21st, 1924.  … There was abundant evidence that the man was
perfectly oriented as to time, as to place, and as to his social relations.”
Leopold, too, he concluded, was free of any significant mental disease.
“There was no evidence of any organic disease of the brain. He showed
remarkably close attention, detailed attention.”

Lecture 15—The Leopold and Loeb Trial 143

Summation and Decision
ØØ On August 22, 1924, Clarence Darrow began his epic summation
for the defense. In a voice that rose and fell, Darrow argued that his
clients—the victims of youthful fantasies, genetic inheritance, surging
sexual impulses, lives of privilege, and Nietzsche’s philosophy—
should not bear responsibility for their crimes. Never before or
since has the deterministic universe, this life of “a series of infinite
chances,” as Darrow called it, been so clearly made the basis of a
criminal defense.

ØØ Darrow also attacked the death penalty with every argument he could
muster. He called it “atavistic,” saying that it “roots back to the beast
and the jungle.” He repeatedly challenged the notion of “an eye for an
eye”: “If the state in which I live is not kinder, more humane, and more
considerate than the mad act of these two boys, I am sorry I have lived
so long.”

ØØ Ultimately, Darrow pleaded for the ascendancy of kindness over

cruelty and love over hate. When he finally ended his appeal, tears were
streaming down the face of Judge Caverly and many other courtroom
spectators. According to a newspaper account, “There was scarcely any
telling where his voice finished and where silence began. It lasted for a
minute, two minutes.”

ØØ State’s Attorney Robert Crowe closed for the prosecution. Crowe was
a Yale-educated up-and-comer in Illinois politics and quite a speaker
in his own right. He heaped ridicule on Darrow’s attempt to blame the
crime on anyone and anything but the defendants: “My God, if one
of them had a harelip I suppose Darrow would want me to apologize
for having them indicted.” Crowe called the defense psychiatrists “The
Three Wise Men from the East” and accused one of them of being “in
his second childhood” and “prostituting his profession.”

ØØ But Crowe reserved his strongest language for the two defendants,
whom he referred to as “cowardly perverts,” “snakes,” “atheists,”

144 The Great Trials of World History and the Lessons They Teach Us
 “spoiled smart alecks,” and “mad dogs.” In Crowe’s view, the murder
was a premeditated crime committed by two remorseless defendants,
and the appropriate punishment was obvious. The “real defense” in
the case, according to Crowe, was “Clarence Darrow and his peculiar
philosophy of life.” It was a defense that proved too much; if Darrow
was right, no one was guilty ever.

ØØ Two weeks later, Caverly announced his decision. He explained that his
judgment could not be affected by the causes of crime and that it was
“beyond the province of this court” to “predicate ultimate responsibility
for human acts.” Nonetheless, Caverly concluded that “the consideration
of the age of the defendants” and the possible benefits to criminology
that might come from future study of the two teenagers persuaded him
that life in prison, not death, was the better punishment.

ØØ Richard Loeb and Nathan Leopold were taken to the penitentiary in

Joliet, Illinois. In 1936, Loeb was slashed and killed with a razor in a
fight with another inmate. Loeb’s attacker claimed that he was resisting
Loeb’s sexual advances. Prison officials, however, called the killing an
unprovoked attack and announced their intent to prosecute.

ØØ Leopold kept intellectually active in prison. He taught in the prison

school, mastered foreign languages, worked as an X-ray technician in
the prison hospital, and reorganized the prison library. He volunteered
to be tested with an experimental malaria vaccine, and designed a new
system of prison education.

ØØ In 1958, after 34 years of confinement, Leopold was released, his

sentence commuted by Governor Adlai Stevenson. To escape the public
eye, he immigrated to Puerto Rico, where he earned a master’s degree,
taught mathematics, worked in hospitals and church missions, and
wrote a book entitled The Birds of Puerto Rico. He died of a heart attack
in 1971. One could argue that the last years of Leopold’s life, his efforts
to make up for the crime of his youth, is the most eloquent argument
of all against the death penalty.

Lecture 15—The Leopold and Loeb Trial 145

 Suggested Reading
Baatz, For the Thrill of It.
Higdon, The Crime of the Century.
Leopold, Life plus 99 Years.

Questions to Consider
1. What implications would accepting Clarence Darrow’s deterministic
views have for our criminal justice system?
2. Does the intelligence and the privileged backgrounds of Leopold and
Loeb argue for or against a more lenient sentence?
3. Is the life lead by Nathan Leopold after sentencing a good argument
against the death penalty?

146 The Great Trials of World History and the Lessons They Teach Us
 LECTURE 16

The Scopes Monkey

Trial

I
n Dayton, Tennessee, a plaque in front of the courthouse reads:
“Here, from July 10 to 21, 1925, John Thomas Scopes, a County
High School teacher, was tried for teaching that man descended
from a lower order of animals, in violation of a lately passed state
law.” The Scopes trial—commonly known as the “Monkey Trial”—
attracted to Dayton a three-time presidential candidate, the most
famous defense attorney in America, and a flock of reporters looking
for a showdown between Southern religious revivalism and the
modernist social patterns of the 1920s.

147
Prelude to the Trial
ØØ In the 1920s, populist William
Jennings Bryan gave up running
for president. Instead, he
became a leader of a crusade
to banish Darwin’s theory of
evolution from classrooms. The
antievolution campaign kept
Bryan in the spotlight, a place
he always longed to be. For him,
the cause was a perfect fit. He
believed evolution contradicted
the teachings of Genesis and
undermined traditional values.
He also cared deeply about
equality. Bryan worried that
Darwin’s theories were being
misused by supporters of a
growing eugenics movement.
William Jennings Bryan
ØØ By 1925, Bryan and his followers
had succeeded in getting
legislation introduced in 15 states to ban the teaching of evolution in
public schools. In February, Tennessee enacted a bill introduced by state
representative John Butler making it unlawful “to teach any theory that
denies the story of divine creation as taught by the Bible and to teach
instead that man was descended from a lower order of animals.”

ØØ When the Butler Act became law, the American Civil Liberties Union
was itching for a fight. The ACLU published an ad in the Chattanooga
paper offering its services to anyone willing to challenge the new statute.

ØØ George Rappleyea, a coal company manager and town booster, saw the
ACLU’s ad and brought a copy of it to Fred Robinson’s drugstore in
Dayton. Rappleyea had nothing but contempt for the new law, but that

148 The Great Trials of World History and the Lessons They Teach Us
 was not the point he argued to other town leaders at the drugstore.
A trial over the new law, he argued, could put Dayton on the map,
potentially igniting an economic boom in a town whose population
had fallen from 3,000 to only 1,800. Rappleyea’s audience, a group
that included School Superintendent Walter White, agreed to put
Rappleyea’s plan into action.

ØØ The conspirators summoned to the drugstore John Scopes, a 24-

year old general science teacher and part-time football coach. Scopes
later described how Rappleyea put the question to him: “John, we’ve
been arguing and I said nobody could teach biology without teaching
evolution.” Scopes agreed.

ØØ Scopes said that while filling in for the school’s regular biology teacher
during an illness, he had assigned readings on evolution from William
Hunter’s Civic Biology, the state-approved textbook. “Then you’ve been
violating the law,” Rappleyea said. “Would you be willing to stand for a
test case?” Scopes said he’d be happy to.

ØØ Two local attorneys, both friends of Scopes, agreed to prosecute.

William Jennings Bryan offered to join the prosecution team, despite
not having practiced law in over 30 years. When Bryan jumped in,
Clarence Darrow volunteered to sign on for the defense. He relished the
chance to battle the man he described as “the idol of all of Morondom.”

The Trial
ØØ Nearly 1,000 people jammed the Rhea County Courthouse for the
first day of trial. Also in attendance were announcers ready to send
to listeners the first ever live radio broadcast from a trial. Judge John
Raulston, a conservative Christian who craved publicity, sat at the
bench. The judge called the court to order. He then asked a local
minister to open the proceedings with a prayer.

Lecture 16—The Scopes Monkey Trial 149

ØØ Clarence Darrow usually picked his juries carefully. Jury selection
in Darrow’s cases often took days. But in Dayton, a jury of 12 men,
including 10 farmers and 11 regular churchgoers, was quickly selected.
Darrow cared little who the jurors were or what they believed. For Darrow
and the defense, the Scopes case was all about getting a conviction and
taking the case to a higher court, preferably the U.S. Supreme Court. The
goal was a Supreme Court opinion declaring laws banning the teaching
of evolution unconstitutional, a violation of the First Amendment.

ØØ On the first business day of the trial, the defense submitted its motion to
quash the indictment on constitutional grounds. The day of arguments
over the law’s constitutionality ended with a speech that is classic Darrow:

If today you can take a thing like evolution and make it a crime to
teach it in the public school, tomorrow you can make it a crime to
teach it in the private schools, and the next year you can make it a
crime to teach it to the hustings or in the church. At the next session
you may ban books and the newspapers. … Today it is the public
school teachers, tomorrow the private. The next day the preachers
and the lectures, the magazines, the books, the newspapers. After
a while, your honor, it is the setting of man against man and creed
against creed until with flying banners and beating drums we are
marching backward to the glorious ages of the sixteenth century
when bigots lighted fagots to burn the men who dared to bring any
intelligence and enlightenment and culture to the human mind.

ØØ As expected, Judge Raulston rejected the defense motion to quash the

indictment. Then it was time for opening statements. Prosecution and
defense attorneys described the trial as a titanic struggle between good
and evil, between truth and ignorance. Bryan argued, “If evolution
wins, Christianity goes.” Darrow told jurors, “Scopes isn’t on trial;
civilization is on trial.”

ØØ The prosecution needed to prove only two things to win a conviction:

that Scopes actually taught the theory of evolution in school, and
that the theory he taught contradicted the story of creation as told

150 The Great Trials of World History and the Lessons They Teach Us
 in Genesis. Superintendent White led off the prosecution’s list of
witnesses. White testified that John Scopes, in Robinson’s drugstore,
had admitted teaching evolution. Darrow, with no reason to dispute
the assertion, did not cross-examine. Several of Scopes’s students were
then called by the prosecution to confirm that Scopes had taught them
about evolution. After additional testimony by drugstore owner Fred
Robinson, the prosecution rested.

ØØ The first witness for the defense was Dr. Maynard Metcalf, a zoologist
from the Johns Hopkins University and one of a team experts Darrow
had enlisted to make the case for Darwin’s theory. The prosecution
objected. Prosecutors argued that the testimony was irrelevant to
Scopes’s guilt or innocence under the statue. All that mattered under
the statute, they argued, was that Scopes taught the theory.

ØØ Before ruling on the prosecution’s objection, Judge Raulston excused

the jury and listened to some of Dr. Metcalf ’s testimony. The scientist’s
testimony provoked Bryan’s only extended speech of the trial. He
mocked Metcalf ’s exposition of the theory of evolution. Bryan
complained that Metcalf ’s testimony had man descending “not even
from American monkeys, but Old World monkeys.”

Lecture 16—The Scopes Monkey Trial 151

ØØ Attorney Dudley Malone countered for the defense. In a thundering
voice, Malone delivered an argument that even antievolution lawmaker
John Butler called “the finest speech of the century”:

There is never a duel with the truth. The truth always wins and
we are not afraid of it. The truth is no coward. The truth does not
need the law. The truth does not need the force of government. The
truth does not need Mr. Bryan. The truth is imperishable, eternal,
and immortal and needs no human agency to support it. We are
ready to tell the truth as we understand it, and we do not fear all
the truth that they can present as facts. We are ready. We are ready.
We feel we stand with progress. We feel we stand with science. We
feel we stand with intelligence. We feel we stand with fundamental
freedom in America. We are not afraid. … We ask your honor to
admit the evidence as a matter of correct law, as a matter of sound
procedure, and as a matter of justice to the defense in this case.

ØØ Judge Raulston was unmoved. The next day, he ruled the defense’s
expert testimony inadmissible. Nevertheless, the defense was permitted
to read into the record, for purpose of appellate review, excerpts from
the prepared statements of eight scientists and four experts on religion
who had been prepared to testify. The press widely reported the expert’s
statements. Darrow had succeeded in his efforts to turn the trial into a
national biology lesson.

ØØ On day seven of the trial, Judge Raulston asked the defense if it had any
more evidence to present. What followed was what The New York Times
described as “the most amazing court scene in Anglo-Saxon history.”
The defense called to the stand, to testify as an expert on the Bible,
prosecutor William Jennings Bryan.

ØØ The ostensible purpose of Bryan’s testimony was to shed light on the

question of whether the Bible might be reconciled with Darwin’s theory.
If what Scopes taught didn’t contradict the Bible, the argument went,
then he wasn’t guilty of any crime. Darrow’s real purpose, of course, was
to humiliate his rival. He knew that a battle with Bryan on the truth of

152 The Great Trials of World History and the Lessons They Teach Us
 the Bible would get the nation’s attention, and he guessed that the ego-
driven Bryan would find the challenge irresistible. He was right.

ØØ Darrow began his interrogation of Bryan with a quiet question: “You

have given considerable study to the Bible, haven’t you, Mr. Bryan?”
Bryan replied, “Yes, I have. I have studied the Bible for about fifty
years.” Thus began a series of questions designed to undermine a
literalist interpretation of the Bible. Darrow asked Bryan about a whale
swallowing Jonah, about Joshua making the sun stand still, about Noah
and the great flood, and about the temptation of Adam in the Garden of
Eden. He asked about the six-day creation story in chapter 1 of Genesis.

ØØ Bryan insisted, in answer after answer, “Everything in the Bible should

be accepted as it is given there.” Eventually, however, the self-proclaimed
Bible expert conceded that the words of the Bible should not always
be taken literally. In response to Darrow’s relentless questions as to
whether the six days of creation as described in Genesis were 24-hour
days, Bryan said “My impression is that they were periods.”

ØØ Both old warriors grew testy as the examination continued. Bryan

accused Darrow of attempting to “slur at the Bible.” He said that he
would continue to answer Darrow’s impertinent questions because
“I want the world to know that this man, who does not believe in
God, is trying to use a court in Tennessee—.” Darrow interrupted his
witness, saying that he objected to Bryan’s “fool ideas that no intelligent
Christian on earth believes.” That was enough for Judge Raulston. He
ordered the court adjourned. The next day, the judge ruled that Bryan
could not return to the stand, and that his testimony of the previous
day would be stricken.

ØØ The jury found Scopes guilty. Judge Raulston fined him $100. Scopes,
practically a forgotten man, rose to speak for the first and only time in
his trial. “Your Honor,” he said, “I feel that I have been convicted of
violating an unjust statute. I will continue in the future, as I have in the
past, to oppose this law in any way I can. Any other action would be in
violation of my ideal of academic freedom—that is, to teach the truth

Lecture 16—The Scopes Monkey Trial 153

 as guaranteed in our Constitution of personal and religious freedom. I
think the fine is unjust.”

ØØ The trial ended in Hollywood fashion. Bryan, Darrow, and the judge
each made crowd-pleasing statements. Raulston concluded with this
thought: “I have had some difficult problems to decide in this lawsuit,
and I only pray to God that I have decided them right. If I have not,
the higher courts will find the mistake. But if I failed to decide them
right, it was for the want of legal learning, and legal attainment, and
not for the want of a disposition to do everybody justice. We are glad to
have you with us.”

Aftermath and Impact

ØØ One year after the trial, the Tennessee Supreme Court reversed the
decision of the Dayton court on a technicality—not on constitutional
grounds, as Darrow had hoped. According to the court, Scopes’s fine
should have been set by the jury, not the judge. Rather than send the
case back for further action, the court dismissed the case.

ØØ Both evolutionists and antievolutionists felt that their own cause had
been advanced in Dayton. Russel Owen, writing in The New York
Times, reported, “Each side withdrew at the end of the struggle satisfied
it had unmasked the absurd pretensions of the other.”

ØØ One way to evaluate the impact of the trial is by examining newspaper

accounts of public reaction. By this measure, the evolutionists won.
They won by another measure as well: Of the 15 states with anti-
evolution legislation pending in 1925, only two states (Arkansas and
Mississippi) enacted laws restricting the teaching of Darwin’s theory.

ØØ In some respects, however, the anti-evolutionists gained. The takeaway

of textbook publishers was that the theory of evolution was controversial.
Many chose to water down their textbooks’ presentation of the theory;
references to humans as a product of evolution were often the first to go.

154 The Great Trials of World History and the Lessons They Teach Us
 Tennessee Supreme Court

ØØ The U.S. Supreme Court didn’t get around to ruling on anti-evolution

laws until 1968. In Epperson v. Arkansas, the Court held that bans on
the teaching of evolution violated the Establishment Clause of the
First Amendment.

Suggested Reading
DeCamp, The Great Monkey Trial.
Larson, Summer for the Gods.
Mencken, A Religious Orgy in Tennessee.

Questions to Consider
1. In what ways were the social forces of the 1920s well aligned to produce
a media spectacle like the Scopes trial?
2. Was it appropriate for Clarence Darrow and the defense to turn the
Scopes trial into a larger contest featuring science versus religion?
3. In what ways can both sides of the evolution question claim some
degree of victory in the Scopes trial?

Lecture 16—The Scopes Monkey Trial 155

 LECTURE 17

The Trials of the

“Scottsboro Boys”

O
n March 25, 1931, in Paint Rock, Alabama, a train bound for
Memphis, Tennessee, is stopped by an armed posse. Nine
passengers—young black men, many of whom have never
met before—are removed from the train and taken to a jail in nearby
Scottsboro. As the men are being rounded up, Ruby Bates and
Victoria Price—white passengers with no actual connection to the
events at hand—tell a posse member that the black teenagers gang-
raped them. Bates and Price’s story is completely bogus, but for the
young men soon to become the “Scottsboro Boys,” it will turn into a
decades-long legal nightmare with national consequences.

156
The First Trial
ØØ Why Ruby Bates told what everyone today understands to be a bald-
faced lie will never be known for certain. We can only speculate.
Perhaps she hoped to divert attention from her own behavior. Bates was
traveling from Tennessee with her boyfriend—a potential violation of
the Mann Act, which criminalizes the crossing of state lines for immoral
purposes. Whatever the reason, Ruby’s accusation put the black youths
in a life-threatening position.

ØØ In jail, the Scottsboro Boys were placed in a line up. Victoria Price
pointed out six of the nine who she said raped her. One of the accused
called Price a liar and was struck by a bayonet. A guard said, “If those
six had Miss Price, it stands to reason that the others had Miss Bates.”

ØØ A crowd of several hundred men surrounded the Scottsboro jail that

night. Their plans to lynch the nine youths were foiled by Alabama’s
governor, B. M. Miller, who sent dozens of National Guardsmen to
protect the suspects.

ØØ Twelve days later, the first set of trials opened. One of the defendants,
Haywood Patterson, described the scene in the courtroom as “one big
smiling white face.” Few in the crowd doubted the defendant’s guilt.

ØØ Another big problem for the defendants was poor representation. One
defense attorney was an unpaid and unprepared real estate attorney
from Tennessee who showed up for the first day of trial “so stewed he
[could] hardly walk straight.” The other defense attorney was a forgetful
and doddering lawyer who hadn’t tried a case in decades.

ØØ The Scottsboro Boys were tried rapidly over a three-day period, in

groups of two or three. The trials were a total disaster for the defense.
There was no probing cross-examination of Victoria Price or Ruby
Bates, even though their stories contradicted one another. The doctors
who examined the alleged victims were cross-examined not at all.

Lecture 17—The Trials of the “Scottsboro Boys” 157

ØØ The only witnesses called by the defense were the defendants
themselves—and they ended up accusing each other. No closing
argument was offered by defense attorneys. A local editorialist described
the state’s case as “so conclusive as to be almost perfect.”

ØØ To make matters worse, verdicts in one trial were announced to the

crowd outside the courthouse while the next trial was underway inside.
Defendants and jurors alike could hear the crowd’s roar of approval
when guilty verdicts were announced.

ØØ When the trials were over, eight of the nine Scottsboro Boys were
sentenced to death. For 12-year-old Roy Wright, 11 of the 12 jurors
voted for death, but one juror held out for life imprisonment on
account of his tender age.

ØØ The Scottsboro trials got big play in the national press. Many people
expressed shock at the swiftness of the trials and the severity of the
sentences. Still, the NAACP, the organization you might expect would
rush to the Scottsboro Boys’ defense, hesitated. If the defendants really
were guilty, the thinking went, it would be bad PR for the NAACP—at
the time a young organization trying to build support for civil rights
among moderate whites.

ØØ Into this void stepped the Communist Party, a group hated by many
Southerners, who saw the case as a great recruiting tool among Southern
blacks and Northern liberals. Through its legal arm, the International
Labor Defense (ILD), the party called the case against the young
blacks “a murderous frame-up.” With no other lifeline, each and every
defendant agreed to be represented in their appeals and subsequent
trials by the Communist Party.

ØØ The Alabama Supreme Court affirmed the convictions and death

sentences. But the United States Supreme Court, in a landmark
decision, saw things differently. In Powell v Alabama, the Supreme
Court ruled for the first time that the Fourteenth Amendment’s Due
Process Clause guaranteed defendants the right to competent counsel

158 The Great Trials of World History and the Lessons They Teach Us
 in capital cases. Whatever counsel the Scottsboro Boys got, the Court
said, it wasn’t competent. There would be new trials.

The Second Trial

ØØ The second set of trials featured a star-studded courtroom cast. The
Scottsboro Boys were represented by Samuel Liebowitz, a flamboyant
New York criminal lawyer with an astonishing record of success.
Liebowitz worked on the Scottsboro case for four years without pay.
Alabama’s attorney general, Thomas Knight, Jr., headed the prosecution
team. Judge James Horton presided.

ØØ Leibowitz first sought to quash the indictments on the ground that

African Americans had been systematically excluded from jury rolls. He
raised eyebrows by questioning the veracity of local jury commissioners.
Local people expressed shock when he insisted that prosecutor Knight
stop his practice of referring to black witnesses by their first names. For
many Alabamians, it was one thing to defend rapists—that, after all, is
part of the American justice system—but it was another, unforgivable
thing to attack their social order and way of life. Leibowitz’s motion was
denied.

ØØ The star prosecution witness was Victoria Price. Direct examination was
brief, lasting only 16 minutes. Price recounted her trip to Chattanooga,
a fight that had broken out on the train between white and black youths
(the reason the train was stopped in the first place), and the alleged
gang rape. Prosecutor Knight’s strategy was to cover the essential facts
in a condensed, unadorned way. He wanted to minimize opportunities
for defense attorneys to expose contradictions with the more detailed
story Price had told in the first trials.

ØØ Leibowitz’s cross-examination of Price was merciless. His questions

suggested his answers. She never, as she claimed, stayed at Callie
Brochie’s boardinghouse in Chattanooga. There was no boardinghouse,
no Callie Brochie. Semen that had been found in Price’s vagina came

Lecture 17—The Trials of the “Scottsboro Boys” 159

 not from rape on a train, but from an adulterous encounter with a man
named Jack Tiller two days earlier.

ØØ Dr. R. R. Bridges, the Scottsboro doctor who examined the girls

less than two hours after the alleged rapes, was the next prosecution
witness to take the stand. He turned out to be a better witness for the
defense. He confirmed that semen was found in the vaginas of the two
women, but observed that the semen contained no live sperm—even
though sperm generally survive for 12 to 48 hours after intercourse.
On cross-examination, Bridges admitted that the women were both
calm, composed, and free of bleeding and vaginal damage when he had
examined them two hours after the alleged rape.

ØØ The prosecution’s only eyewitness was Ory Dobbins, a farmer with land
along the rail line. Dobbins testified that he had seen the defendants
grab Price and Bates as they were about to leap from the train. On cross-
examination, Liebowitz asked Dobbins how he could even be sure,
given the speed of the train and his distance from it, that he had seen a
woman, and not a man. Dobbins answered, “She was wearing women’s
clothes.” It had already been admitted, however, that both Bates and
Price wore overalls on the day in question. “Are you sure it wasn’t overalls
or a coat?” Judge Horton asked. “No sir, a dress,” Dobbins replied.

160 The Great Trials of World History and the Lessons They Teach Us
ØØ Lester Carter, a traveling companion of Bates and Price who had
jumped from the train during the fight between blacks and whites, was
one of the defense’s most spectacular witnesses. In her testimony, Price
had denied having met Carter before the day of the alleged rape. Carter
testified to the contrary, saying that the night before he had begun
traveling with the girls, he had sex with Ruby Bates. Price, he said, had
done the same with her boyfriend.

ØØ The defense’s final witness was Ruby Bates, who said that she suffered
from a troubled conscience after her testimony in the first trial and had
returned to tell the truth about what happened. Bates testified that
there was no rape, that none of the defendants touched her or even
spoke to her. She said that her allegation had been made up after Price
told her “to frame up a story” to avoid morals charges.

ØØ After impassioned closing arguments from both sides, the jury left to
deliberate the fate of Haywood Patterson, the first defendant to be
tried. When they returned, the jurors pronounced Patterson guilty
and sentenced him to death. The decision on guilt had taken just five
minutes. Leibowitz was stunned.

ØØ On June 22, 1933, Judge James Horton convened court to hear a

defense motion for a new trial. Hardly anyone held out hope that the
motion would be granted. But Horton had become convinced that
Price was lying. Not only was her story full of inconsistencies, it was
not corroborated by other witnesses or the medical evidence. Horton
had also been approached privately by Dr. M. H. Lynch, who had been
listed as a prosecution witness. Lynch, whom Knight never called to
testify, told Horton that he was convinced the girls were lying, had told
them so to their faces, and that they merely laughed at him.

ØØ A well-connected politician from Montgomery visited Judge Horton

to warn him that setting aside the jury’s verdict would be political
suicide. Horton made it clear to his visitor that his reelection prospects
had nothing to do with the matter. He cited a motto that his mother
had often repeated: “Let justice be done, though the heavens may fall.”

Lecture 17—The Trials of the “Scottsboro Boys” 161

 Surprising everyone, Horton set aside the jury verdict and ordered a
new trial. He lost his judgeship in the next election.

Subsequent Trials
ØØ Judge Callahan, who presided at Haywood Patterson’s next trial, acted
more like a second prosecutor than a judge. He sustained virtually every
prosecution objection and overruled virtually every defense objection;
cut off all defense inquiry into Price’s chastity, character, or reputation;
and instructed the jury to presume that no white woman in Alabama
would ever consent to sex with a black. At the close of his instructions,
Callahan failed to provide the jury with the form for an acquittal until
the prosecution, fearing reversible error, urged him to do so.

ØØ Guilty verdicts were quickly returned by juries in the Patterson trial

and in the subsequent trial of defendant Clarence Norris. Callahan
sentenced each prisoner to death. Leibowitz promised to appeal the
verdicts “to Hell and back.”

ØØ In 1935, the United States Supreme Court heard arguments in the

Patterson and Norris cases. Leibowitz argued that the convictions
should be overturned because Alabama’s exclusion of blacks from its
jury rolls violated the Equal Protection Clause of the Constitution.
After six weeks of deliberation, the Supreme Court unanimously
held that the Alabama system of jury selection was unconstitutional.
Patterson’s and Norris’s convictions were reversed. Leibowitz hoped that
the decision would convince Alabama that the Scottsboro cases were no
longer worth their economic and political cost.

ØØ But Alabama stubbornly refused to give in. Haywood Patterson was

tried a fourth time. To the surprise of no one, a jury again convicted
Patterson of rape. What was surprising, however, was that this jury
sentenced Patterson to 75 years in prison instead of the death penalty—
the first time in the history of Alabama that a black man convicted of
raping a white woman had not been sentenced to death.

162 The Great Trials of World History and the Lessons They Teach Us
ØØ In December of 1936, while Patterson’s appeal was still pending and
the other eight prisoners awaited their next trials, Thomas Knight met
secretly with Samuel Leibowitz in New York. Knight told Leibowitz
that the cases were draining Alabama financially and politically, and
that he himself was sick of it all. He offered to drop prosecutions for
three defendants if the others accepted sentences of no more than 10
years for either rape or assault.

ØØ Leibowitz was reluctant to accept any deal that included jail time
for any of his innocent clients, but Knight had a strong bargaining
position. Guilty or not, any trial would almost certainly result in a
conviction. Leibowitz agreed to the deal. Before the compromise could
be implemented, however, Knight died suddenly. One week later, Judge
Callahan announced that the next round of trials would soon begin.

ØØ Seven of the nine Scottsboro Boys had been held in jail for over six years
without trial by the time Clarence Norris was convicted in his third
trial in July 1937. Convictions of three more Scottsboro Boys followed
in quick succession, and each was sentenced to a lengthy prison term.
Then came the big news: All charges were being dropped against the
remaining four defendants.

Lecture 17—The Trials of the “Scottsboro Boys” 163

ØØ Leibowitz led the four freed Scottsboro Boys from the jail to an
awaiting car, which quickly whisked them to the Tennessee border.
Free of Alabama, but not of the label “Scottsboro Boy” or from the
wounds inflicted by six years in prison, they went on with their separate
lives—to marriage, to alcoholism, to jobs, to fatherhood, to hope, to
disillusionment, to disease, to suicide.

ØØ The five Scottsboro Boys left in Alabama dealt with the knowledge that
their continued confinement bought the freedom of the others. They
struggled with life in hellholes of prisons. By 1950, either through paroles
or escapes, all of the Scottsboro Boys had found their way out of Alabama.
In 1976, the last surviving Scottsboro Boy, Clarence Norris, received a
full pardon from the state, signed by Governor George Wallace.

Suggested Reading
Carter, Scottsboro.
Goodman, Stories of Scottsboro.
Kinshasa, The Scottsboro Boys in Their Own Words.
Miller, Remembering Scottsboro.

Questions to Consider
1. Why did Victoria Price and Ruby Bates make false accusations of rape
against the nine Scottsboro Boys?
2. In what ways were the trials of the Scottsboro Boys also trials of their
defense attorneys?
3. What inner strength allowed Judge James Horton to set aside the jury’s
conviction of Haywood Patterson, knowing that it would likely be the
end of his judicial career? What can we do to instill that inner strength
in more people?

164 The Great Trials of World History and the Lessons They Teach Us
 LECTURE 18

The Nuremberg
Trials

N
o legal proceeding provides a better basis for understanding
the nature and causes of evil than do the 12 sets of war-crime
trials held in Nuremberg between 1945 and 1949. This lecture
will focus on the first trial, which involved 22 major war criminals and
established precedents for judges in the remaining trials.

165
Personnel and Preparations
ØØ As World War II drew to a close, the question of what to do with
captured Nazi leaders perplexed Allied leaders. Franklin Roosevelt and
Joseph Stalin supported criminal prosecutions. Winston Churchill is
reported to have favored summary execution at the beginning of the
debate, but was eventually convinced that the Nazis should be given a
trial first. In February 1945, the three Allied leaders issued a statement
calling for some sort of judicial process.

ØØ Harry Truman, who assumed the presidency after Roosevelt’s sudden

death, selected Justice Robert Jackson of the Supreme Court to be the
chief prosecutor for the United States at a war-crimes trial to be held
in Europe once the war was over. Truman wanted a respected figure,
a man of unquestioned integrity, and a first-rate public speaker to
represent the United States. Jackson was all of these things and more.

ØØ In the last days of World War II in Europe, several Nazi leaders

chose suicide over trial and punishment. Two days before Jackson’s
appointment as chief prosecutor, Adolf Hitler shot himself. Propaganda
minister Joseph Goebbels did the same. Heinrich Himmler—perhaps
the most terrifying figure in the Nazi regime—took a cyanide crystal
shortly after his capture and died 15 minutes later.

ØØ Not everyone committed suicide, however. Many important Axis

leaders who fell into Allied hands, either through surrender or
capture. Deputy Führer Rudolph Hess had been held in England
since 1941, when he parachuted into the English sky in a solo effort
to convince British leaders to make peace with the Nazi government.
Reichsmarschall Hermann Goering surrendered to Americans on May
6, 1945, and spent his first evening in captivity happily drinking and
singing with American officers.

ØØ Hans Frank, called the Jew Butcher of Cracow, was captured and
beaten by American soldiers. Karl Doenitz, Hitler’s successor as Führer,
was captured in Flensburg along with Field Marshal Wilhelm Keitel,

166 The Great Trials of World History and the Lessons They Teach Us
 Nazi Party philosopher Alfred
Rosenberg, General Alfred
Jodl, and Armaments Minister
Albert Speer.

ØØ On June 26, Robert Jackson

flew to London to meet with
delegates from the other Allied
powers. Jackson defended
the notion of prosecuting the
Nazis against objections that
a tribunal would be applying
ex post facto laws or that
it lacked jurisdiction over
German citizens. Jackson told
negotiators from the other
nations, “What we propose is
to punish acts which have been
regarded as criminal since the
time of Cain and have been so Justice Robert Jackson
written in every civilized code.”

ØØ Negotiators in London agreed to call the trying court the International

Military Tribunal (IMT). The IMT consisted of one primary and one
alternate judge from each of four nations: Britain, the Soviet Union,
France, and the United States. It used the adversarial system preferred by
the Americans and British, rather than the inquisitorial model favored
by the French. Defenses based on superior orders were prohibited.

ØØ Jackson convinced negotiators that the war crimes trials should be held
in Germany. One of the few cities with a large courthouse still standing
was Nuremberg, site of some of Hitler’s most spectacular rallies. It was
also the place where Nazi leaders had enacted the infamous Nuremberg
Laws, which stripped Jews of their property and basic rights. Jackson
liked that connection.

Lecture 18—The Nuremberg Trials 167

ØØ In August, representatives of the Allied nations signed the Charter
of the International Military Tribunal, establishing the laws and
procedures that would govern the Nuremberg trials. Six days later,
a cargo plane carrying most of the initial defendants landed in
Nuremberg. Allied military personnel took the prisoners to a secure
cell block in the city’s Palace of Justice.

ØØ With the first trial set to begin on November 20, an Allied prosecution
staff numbering in the hundreds assembled, began interviewing potential
witnesses, and started to comb through the 100,000 documents gathered
after the war to determine which they would introduce as evidence.
German lawyers, some of whom were Nazis themselves, arrived to
interview their clients and discuss defense strategies. Members of the
world press filed background features on the upcoming trial. Nearly
1,000 workers rushed to complete restoration of the Palace of Justice.

The Trial Begins

ØØ On the opening day of the trial, 21 defendants took their seats in
the dock at the rear of the courtroom. Another defendant, Martin
Bormann, was tried in absentia. Behind the defendants stood six
American sentries with their backs against the wall. The trial’s chief
judge, Sir Geoffrey Lawrence of Britain, called the proceeding to order.

ØØ The trial began with the reading of the indictments, which included four
counts. Count 1, “conspiracy to wage aggressive war,” addressed crimes
committed before the war began. Count 2, “waging an aggressive war,”
addressed the undertaking of war in violation of international treaties
and assurances. Count 3, “war crimes,” addressed more traditional
violations of the laws of war, such as the killing or mistreatment of
prisoners of war. Count 4, “crimes against humanity,” addressed crimes
committed against Jews, ethnic minorities, the physically and mentally
disabled, civilians in occupied countries, and others.

168 The Great Trials of World History and the Lessons They Teach Us
ØØ Justice Jackson delivered an eloquent opening statement for the
prosecution. Jackson told the court, “The wrongs which we seek to
condemn and punish have been so calculated, so malignant, and so
devastating that civilization cannot tolerate their being ignored because
it cannot survive their being repeated. That four great nations, flushed
with victory and stung with injury, stay the hand of vengeance and
voluntarily submit their captive enemies to the judgment of the law is
one of the most significant tributes power has ever paid to reason.”

ØØ The prosecution began its case in chief with proof that the Nazis
had waged an aggressive war. Over two weeks, the prosecution
presented documentary evidence concerning the invasions of Austria,
Czechoslovakia, Poland, Denmark, Norway, Belgium, Holland,
Luxembourg, Greece, Yugoslavia, and the Soviet Union.

ØØ Hour after hour passed as various letters and other communications

were read into the record. The press left in droves. Worried that

Lecture 18—The Nuremberg Trials 169

 excessive reliance on documentary evidence was undermining their
goal of educating the public about the horrors inflicted by the Nazi
regime, prosecutors began to rely more heavily on physical evidence
and live witnesses.

ØØ Another task of the prosecution was to prove the Nazis’ use of slave labor
and concentration camps. Some of the evidence introduced during this
part of the prosecution is difficult to stomach. For example, prosecutors
introduced samples of tanned human skin that had been removed from
concentration camp victims and preserved for Ilse Koch, the wife of the
commandant of Buchenwald, to be made into lampshades and other
household objects for her home. Prosecutors also introduced into evidence
the shrunken head of an executed Pole, used by Koch as a paperweight.

ØØ By late December, the prosecution began to introduce evidence to

establish the criminality of various Nazi organizations, including the
SS and the Gestapo. A British prosecutor, seeking to establish the
criminality of the SS, read an affidavit from Dr. Sigmund Rascher, a
professor of medicine who had performed experiments on inmates at
Dachau. In one such experiment, inmates were stripped naked and
thrown into tanks of freezing water. The inmates were then pulled out
of the tanks to see which of four methods of warming might work best.
Most went into convulsions and died.

ØØ As the trial progressed, a series of concentration camp victims testified

about their experiences. Their testimony was heartbreaking. Marie
Claude Vaillant-Couturier, a 33-year-old French woman, was taken
from France by train to Auschwitz in 1942. She described how a Nazi
orchestra played happy tunes as soldiers separated those destined for
slave labor from those who would be gassed. She also described the
horrible cries she heard one night when “the Nazis had run out of gas
and children had been hurled into the furnaces alive.”

ØØ Near the end of the prosecution case, Soviet prosecutors introduced

a film, Documentary Evidence of the Atrocities of the German Fascist
Invaders, that featured Russian narration over footage of Nazi atrocities.

170 The Great Trials of World History and the Lessons They Teach Us
 In one scene, a boy was shown being shot because he refused to give his
pet dove to an SS man. In another scene, naked women were forced
into a ditch, then made to lie down as German soldiers—smiling for
the camera—shoot them.

ØØ The most anticipated moment of the trial arrived when the defense called
Hermann Goering to the witness stand. Goering was an unrepentant
witness. He evaded no questions; he offered no apologies. He described
the concentration camps as a necessary measure to preserve order,
and suggested that the Nazi leadership principle, which concentrated
all power in the führer, was the same principle on which the Catholic
Church and the government of the Soviet Union were based.

ØØ On cross-examination, Goering at first managed to deflect most of

Jackson’s intended blows. On the third day, however, Jackson asked
about orders signed by Goering depriving Jews of the right to own
businesses, requiring Jews to surrender their gold and jewelry to the
government, and barring Jews from seeking compensation for property
damage. Goering had few opportunities to do anything more than
admit the truth of Jackson’s assertions.

ØØ It took four months for lawyers for each of the Nazi leaders to present
their evidence. Most defendants took the stand themselves, trying to
put their actions in as positive a light as possible. A number of the
defendants claimed to know nothing of the existence of concentration
camps or midnight killings. Others emphasized that they were merely
following orders. Although the IMT’s rules clearly disallowed defenses
based on superior orders, defendants raised the issue anyway in the
hope that it might affect the severity of their sentences.

ØØ Some defense evidence boomeranged and actually strengthened

the prosecution’s case. One such mistake occurred when the defense
attorney for Ernst Kaltenbrunner called Colonel Rudolf Hoess, the
former commandant of Auschwitz, to the stand. Hoess’s matter-of-fact
account of mass executions using Zyklon B gas—sometimes killing as
many as 10,000 inmates in a single day—left the courtroom stunned.

Lecture 18—The Nuremberg Trials 171

ØØ A few of the defendants used their time on the witness stand to confess
their mistakes and apologize for their actions. Wilhelm Keitel testified
that he had come to regret the military orders he gave—orders he
acknowledged were “contrary to accepted usages of war.” Hans Frank,
the Nazi governor of Poland, admitted to his role in the Holocaust. “A
thousand years will pass,” Frank said, “and still Germany’s guilt will
not have been erased.” Albert Speer was the defendant most willing to
admit fault. Speer said that it was “my unquestionable duty to assume
my share of responsibility for the disaster of the German people.”

Verdict and Aftermath

ØØ On October 1, 1946, the 21 defendants filed into the courtroom for
the last time. Sir Geoffrey Lawrence announced the verdicts. Eighteen
defendants were convicted on one or more count—including Goering,
who was found guilty on all four counts. Three defendants were found
not guilty, but they would soon be tried in German courts for alleged
violations of German law.

ØØ Sentences were announced in the afternoon for the convicted

defendants. Ten defendants, including Goering, Kaltenbrunner, and
Joachim von Ribbentrop, were sentenced to death by hanging. Three
defendants, including Rudolf Hess, received life sentences. Four others,
including Albert Speer, received sentences ranging from 10 to 20 years.
The trial had lasted 315 days.

ØØ Over the next two weeks, the condemned men talked with their lawyers
about their last-ditch appeals to the Allied Control Council, which
had the power to reduce or commute sentences. The Allied Control
Council, after three hours of debate, rejected all appeals.

ØØ On October 15, the day before the scheduled executions, Goering

committed suicide by ingesting a smuggled cyanide pill. Execution of
the remaining Nazis sentenced to death commenced few hours later, at
1:11 am. By 2:45 a.m., it was all over.

172 The Great Trials of World History and the Lessons They Teach Us
ØØ The first Nuremberg trial provided thorough documentation of Nazi
atrocities. Even now, the images and testimony that came out of
Nuremberg retain their capacity to shock. Perhaps more importantly,
the trials exposed many of the defendants for the criminals they were.
Nuremberg denied to Nazi leaders the martyrdom in the eyes of the
German public that they might otherwise have achieved. There are no
statues in Germany commemorating Nazi war heroes. Today, Germany
is a democracy with an educational system that teaches the truth about
the country’s dark past.

ØØ The trials also set a precedent for dealing with war crimes and crimes
against humanity. The IMT became a model for other tribunals,
including the Tokyo War Crimes Tribunal, which tried Japanese leaders
for war crimes in the Pacific theatre. The International Court of Justice
in The Hague is also modeled on the IMT. Finally, the trials inspired
work to prevent future atrocities, leading to measures such as a 1948
United Nations convention on genocide.

The International
Court of Justice

Lecture 18—The Nuremberg Trials 173

 Suggested Reading
Gilbert, Nuremberg Diary.
Marrus, The Nuremberg War Crimes Trial.
Persico, Nuremberg.
Taylor, The Anatomy of the Nuremberg Trials.
Tusa and Tusa, The Nuremberg Trial.

Questions to Consider
1. Was it unfair for the Allies to charge and try Nazi leaders for crimes that
were not crimes at the time their actions were taken?
2. What do the Nuremberg trials reveal about the nature of the evil on
display in World War II?
3. Did the Nuremberg trials succeed in their goal of educating the world,
including the German people, about the extent of Nazi atrocities?

174 The Great Trials of World History and the Lessons They Teach Us
 LECTURE 19

The Alger Hiss Trial

O
n August 3, 1948, Whittaker Chambers testified before
a congressional committee about his former role as a
Communist agent. His testimony set in motion events that
changed America, including the trial of Alger Hiss, a high-ranking
former State Department official, for perjury. The Hiss trial catapulted
an obscure California congressman named Richard Nixon to national
fame, set the stage for Senator Joseph McCarthy’s notorious
Communist-hunting, and marked the beginning of a conservative
intellectual and political movement that, decades later, would put
Ronald Reagan in the White House.

175
The House Un-American Activities Committee
ØØ In his 1948 testimony before the House Un-American Activities
Committee (HUAC), Whittaker Chambers claimed to have left
the Communist Party in 1938. The following year, Chambers went
to Washington DC, where he “reported to authorities what [he]
knew about the infiltration of the United States Government by
Communists.” In his 1948 testimony, Chambers said that he was
surprised that his initial report failed to produce much follow-up from
the administration.

ØØ In response to questions from committee members, Chambers

identified persons whom he had previously reported as being active in
the Communist underground. One such person was Alger Hiss. Hiss
played key roles while working in a high-level State Department post,
including the lead role in organizing the American side of the Yalta
Conference.

ØØ The committee questioned Chambers about his association with Hiss,

who by that time had left the State Department. Chambers described
their relationship as very close. At a meeting in the Hiss home,
Chambers said, he tried to convince Alger to leave the Communist
party, but Hiss refused.

ØØ Chambers’s accusation against Hiss received significant play in the media.

Hiss decided that he could not ignore the charges. In what proved to be a
monumental mistake, he sent a telegram to HUAC’s chairman, in which
he categorically denied Chambers’s charges. Hiss’s telegram read:

I DO NOT KNOW MR. CHAMBERS AND, SO FAR AS I

AM AWARE, HAVE NEVER LAID EYES ON HIM. THERE
IS NO BASIS FOR THE STATEMENTS ABOUT ME
MADE TO YOUR COMMITTEE. … I WOULD FURTHER
APPRECIATE THE OPPORTUNITY OF APPEARING
BEFORE YOUR COMMITTEE.

176 The Great Trials of World History and the Lessons They Teach Us
ØØ Chambers and Hiss could hardly have been more different, sharing
only impressive intelligence. Alger Hiss was a tall, handsome, Harvard-
trained lawyer with an impeccable pedigree. Whittaker Chambers was
a short, stocky, and rumpled Columbia dropout and confessed former
Communist from a poor and troubled Philadelphia family.

ØØ In the summer of 1948, it was Chambers’s story that rang true to

Congressman Richard Nixon. Still in his first term as an elected official,
Nixon had accepted a seat on the House Un-American Activities
Committee in 1947. At the time, HUAC was an often-ridiculed
political backwater. Soon, however, it became the most talked-about
committee in Congress.

ØØ Hiss’s wish for an opportunity to appear before the committee was

granted. Before a packed house, Hiss calmly and confidently told
committee members, “I am not and never have been a member of
the Communist Party.” Hiss’s performance impressed committee
members enough that most concluded that the investigation should
be dropped. President Truman went so far as to call the inquiry “a red
herring.”

ØØ One member of the committee, however, wanted to press on with the

investigation. Nixon found Hiss “condescending” and “insulting in
the extreme.” Hiss’s style and Ivy League pedigree didn’t sit well with
Nixon, a Whittier College graduate and the product of working-class
parents. With reluctance, the committee voted to make Nixon chair
of a subcommittee tasked with determining who was lying, Hiss or
Chambers.

ØØ At a meeting in New York, Nixon asked Chambers a series of

questions designed to determine if he actually knew Hiss as well as
he claimed. Chambers had most of the answers. He told Nixon and
his subcommittee about Hiss’s nicknames, habits, pets, vacations, and
mannerisms. He even gave the subcommittee a description of floor
plans and furniture in the Hiss home. On the question of whether
Hiss had any hobbies, Chambers said that both Hiss and his wife were

Lecture 19—The Alger Hiss Trial 177

 Richard Nixon

178 The Great Trials of World History and the Lessons They Teach Us
 amateur ornithologists—birdwatchers—who had once been excited to
spot a prothonotary warbler.

ØØ After the Chambers interview, Hiss was asked to face questioning from
HUAC in executive session. The committee chair, J. Parnell Thomas,
pointedly told Hiss that either Chambers had “made a study of your life
in great detail or he knows you.” Hiss was shown two photographs of
Chambers. Chairman Thomas asked Hiss whether he still maintained
that he did not recognize the man who claimed to have spent a week in
his house. Hiss answered, “I do not recognize him from that picture. …
I want to hear the man’s voice.”

ØØ A turning point in the investigation came when Richard Nixon asked,

“What hobby, if any, do you have, Mr. Hiss?” Hiss answered that his
hobbies were “tennis and amateur ornithology.” Congressman John
McDowell jumped in: “Did you ever see a prothonotary warbler?” Hiss
fell into the trap. He answered enthusiastically, “I have—right here
on the Potomac. Do you know that place?” This response convinced
previously skeptical committee members that Chambers had been
telling the truth.

ØØ On August 25, for the first time in history, television cameras were
present for a congressional hearing. The committee confronted Hiss
with a host of questions about an alleged lease of his apartment to
Chambers and the transfer to Chambers of his 1929 Ford. In the
afternoon session, Chambers called Hiss a “devoted and at the time
a rather romantic Communist” who now “represents the concealed
enemy against which we are all fighting.”

ØØ The committee concluded its investigation with a report calling Hiss’s

testimony “vague and evasive.” Chambers’s testimony was described in
the report as “forthright and emphatic.” In response, Hiss published
a 14-page letter attacking the committee for “using the great powers
and prestige of the United States Congress to help sworn traitors to
besmirch any American they may pick upon.”

Lecture 19—The Alger Hiss Trial 179

The Slander Suit
ØØ On October 8, Hiss filed an ill-advised slander suit against Chambers
based on the latter’s accusation on Meet the Press that Hiss “was a
Communist and may be now.” Hiss’s attorneys began a widespread
investigation into Chambers’s background, hoping to find something
that would destroy Chambers’s credibility. The investigation included
exploration of whether Chambers had ever been treated for mental
illness or involved in homosexual relationships.

ØØ In the middle of a deposition for the slander suit, Hiss’s attorney

requested that Chambers produce “any correspondence, either
typewritten or in handwriting from any member of the Hiss family.”
In response, Chambers retrieved an envelope containing four notes
handwritten by Alger Hiss, 65 typewritten copies of State Department
documents, and five strips of microfilm featuring photographs of State
and Navy Department documents.

ØØ With the production of this new evidence, the question of whether

Hiss knew Chambers better than he admitted, or even whether he was
a Communist, became inconsequential. The question instead became
whether Alger Hiss, high-level State Department official, was a Soviet
agent. Fortunately for Hiss, the statute of limitations for espionage at
the time was five years, and the incriminating evidence all concerned
documents passed over a decade earlier. The statute of limitations did
not help Hiss, however, on the question of whether he had committed
perjury.

The First Perjury Trial

ØØ Hiss’s trial in Manhattan for perjury began in May 1949. He faced
two counts, both stemming from testimony before a federal grand
jury. Hiss was charged with lying when he testified that he never gave
any documents to Chambers and when he claimed never to have seen
Chambers after January 1, 1937.

180 The Great Trials of World History and the Lessons They Teach Us
ØØ Chambers was the prosecution’s central witness. He testified that Hiss
had begun passing him State Department documents in early 1937.
Hiss, he said, followed the espionage procedures recommended by a
Soviet agent. He brought home files nightly and retyped them.

ØØ On cross-examination, Hiss’s defense attorney tried to highlight defects

in Chambers’s character. He asked about a play, written by Chambers as a
student at Columbia, which included what the lawyer called “an offensive
treatment of Christ.” He asked whether Chambers had ever lived in a
“dive” in New Orleans with a prostitute named “One-Eyed Annie.”
Chambers denied the accusation. He then demanded to know whether
Chambers had been “for some fourteen years an enemy and traitor of the
United States of America?” Chambers confirmed that he had been.

ØØ Chambers’s wife, Esther, followed her husband on the stand. She told
jurors of the close relationship that she and her husband had enjoyed
for several years with Alger and Priscilla Hiss. And she described specific
visits to Hiss’s apartment in Baltimore.

ØØ The prosecution next called a series of witnesses who tied Hiss to the
typewritten State Department documents introduced by the government.
One of these witnesses, a former secretary in Hiss’s State Department
office, testified that Hiss often took departmental documents home
from work. An FBI laboratory expert testified that various letters known
to have been typed by Hiss in 1936 and 1937 were typed on the same
Woodstock typewriter as the papers retrieved by Chambers.

ØØ The defense tried to persuade jurors that Hiss’s reputation was so good
that his alleged espionage activity was unthinkable, that Chambers was
mentally unstable and should not be believed, and finally that Hiss’s
Woodstock typewriter had been given to Claudia Catlett, a former
household employee, making it impossible for either Alger or Priscilla
Hiss to have retyped the State Department documents.

ØØ The defense team assembled an impressive roster of character witnesses

to appear on Hiss’s behalf. The list included two Supreme Court

Lecture 19—The Alger Hiss Trial 181

 justices, a former solicitor general, former presidential nominee John
W. Davis, and future presidential nominee Adlai Stevenson.

ØØ When Alger Hiss took the stand, he admitted writing the four handwritten
notes produced by Chambers, but denied having any connection with
the microfilm or any role in the typing of the 65 State Department
documents. He also insisted—as he had told the grand jury—that he had
not met Chambers on any occasion after January 1, 1937.

ØØ On July 6, 1949, the case went to the jury. Late the next afternoon,
the jury sent a note saying that they were unable to reach a verdict.
The presiding judge urged the jury to make one final effort to reach
a conclusion, but within hours the jury again reported themselves
hopelessly deadlocked. A mistrial was declared.

The Second Perjury Trial

ØØ The months between the first and second Hiss trials were eventful. The
Soviet Union exploded an atomic bomb. The Red Army of Mao Tse-
tung drove the forces of Chiang Kai-shek to the island of Formosa. And
perhaps most ominously for Alger Hiss, polls showed public attitudes
shifting toward harsher treatment of U.S. Communists.

ØØ In the second trial, the defense relied heavily on the testimony of its
expert psychiatrist, Dr. Carl A. Binger. On direct examination, Binger
confidently offered his thoughts about the mental state of Chambers
based almost solely on his reading of Chambers’s writings and his
observation of Chambers’s trial testimony. Binger called Chambers a
“psychopathic personality” and “a pathological liar.”

ØØ On cross-examination, prosecutors destroyed Binger’s credibility.

Skillful questioning by an attorney for the prosecution demonstrated
the absurdity of the doctor’s conclusions, which were based in large part
on traits such as Chambers’s “untidiness” and his tendency to glance at
the ceiling.

182 The Great Trials of World History and the Lessons They Teach Us
ØØ On January 20, 1950, the jury returned its verdict: guilty on both
perjury counts. Five days later, the presiding judge imposed the
maximum sentence of five years in prison. In a brief statement prior
to sentencing, Hiss expressed confidence “that in the future the full
facts of how Whittaker Chambers was able to carry out forgery by
typewriter will be disclosed.”

The Aftermath
ØØ Despite a relatively light sentence, the trial set in a motion a chain of
events that forever changed American politics. Joseph McCarthy, a
little-known senator from Wisconsin, seized on the Hiss conviction
to claim that the State Department was “thoroughly infested” with
Communists. He opened divisive hearings that plagued American
society in the 1950s. Chambers disassociated himself from McCarthy’s
crusade, describing the senator as “a raven of disaster.”

ØØ Richard Nixon’s sudden fame from his role in the Hiss case attracted
the attention of 1952 Republican presidential nominee Dwight
Eisenhower. Eisenhower selected Nixon as his running mate, a position
Nixon eventually used as a springboard to the presidency in 1968.

ØØ Even more significantly, the Hiss case fanned the anticommunist embers
that within a decade evolved into a grassroots conservative movement in
the Republican Party. In 1964, the movement produced the nomination
of Barry Goldwater. In 1980, it led to the election of Ronald Reagan.

ØØ One of the books that influenced this political transformation was

Whittaker Chambers’s own 1952 autobiography, Witness. Ronald
Reagan saw as the book as a political watershed. In fact, Reagan credited
Chambers’s autobiography with sparking his own transformation from
a New Deal Democrat to a conservative Republican.

Lecture 19—The Alger Hiss Trial 183

 Dwight D. Eisenhower

184 The Great Trials of World History and the Lessons They Teach Us
ØØ In the 46 years that Alger Hiss lived after his perjury conviction, he
never departed from his claim of innocence. But he and his supporters
found their case weakened in the mid-1990s with the release of the
Venona cables, intercepted communications sent to Moscow by Soviet
agents in the United States. The intercepted cables suggested that Hiss
was a Soviet agent who had supported the Communist cause at the
1945 Yalta Conference.

ØØ The confrontation between Chambers and Hiss initiated a polarization

of the political left and the political right. Chambers saw the world as
a battle between godless Communists and Christian anticommunists,
between darkness and light. Liberals largely rejected this division as
arrogant and overly simplistic.

Suggested Reading
Chambers, Witness.
Cooke, A Generation on Trial.
Nixon, Six Crises.
Swan, Alger Hiss, Whittaker Chambers, and the Schism in the American Soul.
Weinstein, Perjury.

Questions to Consider
1. How might the course of American history be different if Whittaker
Chambers had never accused Alger Hiss of spying for the Soviets?
2. If Alger Hiss did spy for the Soviets, why did he continue to proclaim
his innocence until his death?
3. Why did the second Hiss trial result in a guilty verdict, but not the first
trial?

Lecture 19—The Alger Hiss Trial 185

 LECTURE 20

The Rivonia
(Nelson Mandela) Trial

I
t’s June of 1961, and high officials of the African National Congress
(ANC) have gathered in Durban, South Africa to discuss whether
the ANC should continue to follow its long-standing policy of
nonviolence. Nelson Mandela is the leading voice for a change of
strategy. He is opposed by ANC president Albert Luthuli, who sees
nonviolence not only as a tactic, but as a moral principle. In the end,
Mandela’s position prevails. He is authorized to form a separate
military wing outside of the ANC’s direct control. The organization will
be called Umkhonto we Sizwe (“Spear of the Nation”), and it will soon
become central to the most celebrated trial in South Africa’s history.

186
Background
ØØ One of Mandela’s first actions in his capacity as leader of the military
wing of the ANC was to send a letter to South African newspapers.
In the letter, he warned that a new campaign of sabotage would
be launched unless the government agreed to call for a national
constitutional convention. Mandela knew full well that no such call
would be made. Spear of the Nation began planning its campaign.

ØØ The first strike occurred in December 1961, when saboteurs lit

explosives and blew up an electricity substation. Over the next 18
months, dozens more acts of sabotage followed, including attacks on
government buildings. If one believes the government’s count, militants
committed 235 separate acts of sabotage.

ØØ Mandela spent most of the early months of the campaign in an ANC

safe house, where he went by an assumed name. When he left the safe
house, he used a disguise. The road leading to the safe house began near
a bend in the road marked by a sign bearing the name “Rivonia.” For
South Africans, Rivonia became the name for both the safe house and
the trial of ANC militants that captured the world’s attention.

ØØ Mandela used his time at Rivonia to shape strategy and plan a potential
guerrilla war against the South African government. His goal, he said,
was not to establish a government ruled by blacks. Rather, it was to
turn South Africa into a multiracial democracy that abolished the
repressive laws of the apartheid regime—laws that separated black
African families, restricted their travel, imposed curfews, and denied
other basic human rights.

ØØ In February 1962, Mandela left South Africa on a mission to build

support from foreign governments. He spent six months in Addis
Ababa, Ethiopia, where he received military training. After returning
to South Africa in August, Mandela traveled to Durban to provide a
briefing on his trip. On the drive back to Rivonia, his car was pulled
over by police. Someone had tipped them off. Mandela was arrested

Lecture 20—The Rivonia (Nelson Mandela) Trial 187

Nelson Mandela

188 The Great Trials of World History and the Lessons They Teach Us
 and charged with inciting a strike and leaving the country without a
passport. It would be more than 27 years before he would enjoy another
day of freedom.

ØØ Spear of the Nation’s campaign of sabotage continued after Mandela’s

arrest, and South African law enforcement became desperate to find
the rest of the organization’s leadership. In July 1963, they found
an informant to aid in their search. During a raid on Rivonia, eight
suspects were taken into custody, including longtime ANC activist
Walter Sisulu. The police also seized a radio transmitter, a duplicating
machine, and dozens of documents—letters, pamphlets, Communist
literature, maps, and one six-page document titled “Operation
Mayibuye.”

ØØ Mandela and the other suspects captured by police became known as

the Rivonia 11. The group included seven men captured at Rivonia,
two men who were previously detained, and an attorney whose law firm
had connections with the ANC. All except Mandela were held under a
new law that allowed security officials to hold persons without charges
for 90 days if they were suspected of political crimes.

ØØ For the next three months, with no charges pending, the detainees were
denied the opportunity to consult with lawyers or see their families.
Most were held in solitary confinement. Some were tortured.

ØØ The defendants’ first opportunity to meet with defense attorneys did

not come until the night before their trial was scheduled to begin.
Nine of the defendants agreed to enter a joint defense. Attorney James
Kantor found his own lawyer because he had no connection with the
other defendants; he seemed to have been charged as a proxy for his
brother-in-law and law partner, who did work for the ANC. The other
member of the Rivonia 11 not participating in the joint defense was
Bob Hepple. Hepple was in conversation with authorities to testify
for the state in return for immunity from prosecution. Under the
circumstances, of course, Hepple needed his own lawyer and could not
be included in defense strategy sessions.

Lecture 20—The Rivonia (Nelson Mandela) Trial 189

The Trial
ØØ The Rivonia 11 were each charged with two counts of sabotage and
two counts of conspiracy. Defense attorney Bram Fischer led off the
proceedings with an attack on the sufficiency of the indictment. He
argued that the charges were too vague, and failed to provide any
indication as to which defendants carried out which alleged acts of
sabotage. Justice de Wet, the presiding judge, found Fischer’s arguments
convincing and quashed the indictment.

ØØ Every defendant except Bob Hepple was rearrested and indicted on

more specific charges. The charges against Hepple were dropped, and
it was announced that he would be the government’s first witness. The
remaining defendants were accused of sabotage, ordering munitions,
recruiting young men for guerrilla warfare, encouraging invasion by
foreign military units, and conspiring to obtain funds for revolution
from foreign states.

ØØ Nelson Mandela, the first defendant charged, pled not guilty: “My
Lord, it is not I, but the government that should be in the dock. I plead
not guilty.” The other defendants pleaded not guilty as well. Many of
them saw the trial as their first and last opportunity to explain to the
nation why they felt compelled to do what they did for the sake of
South Africa’s oppressed people.

ØØ The first prosecution witness was not Bob Hepple, as prosecutors had
promised. Hepple had fled the country. From the safety of Kenya, he
told reporters that he never had any intention of testifying against his
fellow defendants and was just looking for an escape opportunity.

ØØ The star witness for the prosecution was Bruno Mtolo, a former
Spear of the Nation saboteur. Mtolo testified that, on orders from the
organization’s high command, he had blown up a municipal office, a
power pylon, and an electricity line. He testified that Mandela gave
comrades in his regional command a pep talk before they undertook
their missions. Mtolo described the workings of bombs, grenades,

190 The Great Trials of World History and the Lessons They Teach Us
 land mines, and other weapons used by Spear of the Nation saboteurs.
Mtolo also testified that he believed the ANC and Spear of the Nation
had become instruments of the Communist Party.

ØØ The other critical piece in the prosecution case was the six-page
document confiscated in the Rivonia raid—the one labeled “Operation
Mayibuye.” The document turned out to be a plan that called for
guerrilla warfare and an invasion of South Africa by supporting foreign
military units. The prosecution contended that the plan was the actual
operating plan of Spear of the Nation. The defense, on the other hand,
contended that the document was just a draft of one possible plan of
action and had not been approved by either Spear of the Nation or the
ANC. Mandela himself testified that he considered the document to be
“entirely unrealistic in its goals and plans.”

ØØ The government produced other damning documents that were read

into the record. A document marked “Top Secret,” written in the
handwriting of one of the defendants and found at Rivonia, mentioned
possible support from the Soviet Union, China, Germany, and
Yugoslavia, among other countries. Methods of obtaining weapons,
including explosives, were outlined in detail. The defendants viewed
the evidence with indifference. They readily admitted to talking openly
about sabotage and the armed struggle for racial justice.

ØØ Many of the prosecution witnesses in the Rivonia trial were recruits who
testified only after enduring tough questioning while in detention, often
in solitary confinement. Some were physically mistreated. Knowing that
their release from detention and escape from future prosecution depended
on providing trial testimony that satisfied the demands of police and
prosecutors, the reliability of their testimony was suspect. Some witnesses
shaded the truth or lied outright to strengthen the government’s case.

ØØ For some defendants, including Nelson Mandela, the prosecution’s

evidence of guilt was very strong. For other defendants, the evidence of
guilt was less compelling, but likely to be sufficient given the political
circumstances of the trial. And for yet other defendants, including

Lecture 20—The Rivonia (Nelson Mandela) Trial 191

 James Kantor, the prosecution’s evidence ranged from weak to virtually
nonexistent.

ØØ In his opening statement for the defense, Bram Fischer admitted

that seven of the defendants were members of Spear of the Nation,
but denied that the organization’s high command made a decision to
embark on a course of guerrilla warfare. Operation Mayibuye, Fischer
said, “had not been adopted, and would not have been adopted while
there was some chance of having their objectives achieved by the
combination of mass political struggle and sabotage.” Fischer finished
his address by announcing that the defense case would “commence
with a statement from the dock by Nelson Mandela.”

ØØ Mandela’s decision to deliver a statement to open the case is interesting.

An opening statement is not subject to cross-examination, and it is
given little weight by a judge. Mandela chose to deliver a statement
rather than testify because, in his words, he “did not want to be limited”
to the question-and-answer format. He explained, in his own way, why
he and others found it necessary to undertake a campaign of sabotage
against the South African government.

ØØ The defense team agreed to the arrangement because they recognized

that the usual form of testimony would have caused Mandela’s
arguments to lose power as they “came out in a jumble of bits and
pieces.” The defense team was worried, however, because the speech
Mandela planned to deliver was unapologetic. His attorney thought the
speech might earn him the death penalty.

ØØ Mandela began his statement in a quiet, even voice. He spoke for four
hours. “I am the first accused,” Mandela said, and he proceeded to tell
the story of his life. He explained why he joined the struggle for racial
equality, and why he finally came to the conclusion that nonviolent
protest must give way to more violent approaches. Without sabotage,
Mandela said, the goal of a multiracial democracy in South Africa could
never be achieved. Mandela concluded his speech by announcing that
he was ready to make the ultimate sacrifice for his cause:

192 The Great Trials of World History and the Lessons They Teach Us
 During my lifetime I have dedicated myself to this struggle of the
African people. I have fought against white domination, and I
have fought against black domination. I have cherished the ideal
of a democratic and free society in which all persons live together
in harmony and with equal opportunities. It is an ideal which I
hope to live for and to achieve. But if needs be, it is an ideal for
which I am prepared to die.

ØØ Walter Sisulu, former secretary-general of the ANC and a member

of Spear of the Nation’s high command, was the first witness for the
defense. Sisulu testified that Operation Mayibuye was the brainchild
of Arthur Goldreich, a member of the high command and a former
member of the Israeli underground movement. Sisulu said that the
plan had not been adopted, in part because more time was needed
“to condition the masses.” He testified that he agreed sabotage was
necessary, but insisted that “the choice of targets makes the position
perfectly clear that the intention was not to injure anybody at all.”

ØØ In five days of cross-examination, prosecutors tried to link the ANC

and Spear of the Nation to the Communist Party and pushed Sisulu
to identify others who played key roles in underground organizations.
Despite warnings from the bench, Sisulu refused to name names.

ØØ In all, seven defendants took the stand. For the several defendants for
whom conviction was all but certain, their time on the stand was an
opportunity to explain to the nation why they did what they did. For
the defendants for whom conviction was in some doubt, their testimony
gave them a chance to rebut whatever weak evidence the prosecution had
presented that tied them either to the sabotage or conspiracy charges.

ØØ Before closing arguments, Justice de Wet dismissed charges against

James Kantor. He recognized that the case against Kantor was virtually
nonexistent. In all likelihood, Kantor was charged as a means of
intimidating progressive lawyers.

Lecture 20—The Rivonia (Nelson Mandela) Trial 193

Verdict and Aftermath
ØØ Three weeks later, Justice de Wet announced his verdict. Only Rusty
Bernstein was acquitted. One defendant was found guilty on just one of
the four counts. The other defendants were found guilty on all counts.
Each of the convicted defendants was sentenced to life imprisonment.

ØØ Nelson Mandela spent the next 18 years in a prison on Robben Island,

just off Cape Town. He worked in a lime quarry and was allowed one
letter and one visitor every six months. In 1982, authorities transferred
Mandela and four other Rivonia defendants to a prison in suburban
Cape Town.

ØØ The winds of change began to sweep South Africa in 1985, and the first
of the Rivonia defendants was released from prison. President P. W. Botha
offered to free Mandela if he would renounce violence. Mandela refused:
“Only free men can negotiate—a prisoner cannot enter into contracts.”

Robben Island Prison

194 The Great Trials of World History and the Lessons They Teach Us
ØØ By the late 1980s, only Mandela remained in prison, while secret
negotiations for his release continued. In February 1990, President F.
W. de Klerk made the announcement the world was waiting for: Nelson
Mandela would be freed.

ØØ The next year, Mandela was elected president of the ANC, which
won 62 percent of the vote in the April 1994 election. In May 1994,
Mandela was sworn in as the first black president of South Africa.

ØØ We can wonder how the history of South Africa might have been
different had Mandela been sentenced to death. It is hard to imagine
any leader emerging in his place with half his grace, willingness to
forgive, or power to inspire. The world would have been a poorer place
without him.

Suggested Reading
Bernstein, The World That Was Ours.
Broun, Saving Nelson Mandela.
Joffe, The State vs. Nelson Mandela.
Mandela, Long Walk to Freedom.

Questions to Consider
1. Under the circumstances of the time, was Mandela right to propose a
strategy of sabotage to advance the goals of the ANC? Should he have
been able to argue in the trial that sabotage was morally justified, given
the government’s policy of oppression?
2. Had it not been for political pressure from outside South Africa, is
it likely that many of the defendants in the Rivonia trial would have
received death sentences?
3. How might the course of South African history have been different if
Justice de Wet had imposed the death penalty on Mandela?

Lecture 20—The Rivonia (Nelson Mandela) Trial 195

 LECTURE 21

The Mississippi
Burning Trial

I
n June 1964, a group of African American parishioners leaving
Mount Zion Church in Longdale, Mississippi, are confronted by
armed members of the Ku Klux Klan. The Klansmen announce
that they are looking for Michael Schwerner, a white civil rights
activist working for the Congress of Racial Equality (CORE) in
Meridian, Mississippi. But Schwerner isn’t there. Frustrated, the
Klansmen beat the parishioners and set the church ablaze. Within
48 hours, Schwerner and two fellow activists have been murdered.
The investigation and prosecution that follow will change the Klan,
Mississippi, and the course of civil rights in America.

196
Background
ØØ Michael Schwerner was attending a training program for civil rights
volunteers in Ohio when he heard the news of the events at Mount
Zion. Anxious to learn more about the attack, Schwerner and two
fellow activists loaded into a blue Ford station wagon for the long
trip south. With Schwerner was James Chaney, a 21-year-old African
American and native Mississippian who served as Schwerner’s chief
aide, and Andrew Goodman, a Queens College student and civil rights
volunteer.

ØØ The three young men caught a few hours’ sleep after arriving in
Meridian, then drove northwest toward the scene of the church fire.
Longdale is in Neshoba County, which at the time was known as a high-
risk area for civil rights workers. Before leaving Meridian, Schwerner
told a fellow CORE worker that he, Chaney, and Goodman should
be back in the CORE office by 4:00. If they weren’t back by 4:30, she
should start making phone calls.

ØØ Neshoba County sheriff Lawrence Rainey and his deputy, Cecil Price,
were both members of the Klan. Rainey intended to thwart any
outsiders who tried to mess with Mississippi’s state-enforced policy of
segregation.

ØØ In Longdale, Schwerner, Chaney, and Goodman inspected the charred

remains of Mount Zion Church. They then visited the homes of four
members of the congregation to learn more about the incident. Their
work completed, they started back toward Meridian around 3:00. They
were driving on Highway 16, near the town of Philadelphia, when
Deputy Sheriff Price pulled them over, ostensibly for speeding.

ØØ Price arrested the three civil rights workers for suspicion of having
been involved in the church arson and brought them to the Neshoba
County jail in Philadelphia. Soon thereafter, Price met with a local
Klan recruiter, Edgar Ray Killen, to tell him the exciting news of his
catch.

Lecture 21—The Mississippi Burning Trial 197

ØØ Little of what happened over the next seven hours is known. We know
that Schwerner asked to make a phone call, but his request was denied.
We also know that a call was made to the jail at 5:20 pm. The concerned
caller was in Meridian, and asked whether anyone at the jail knew the
whereabouts of three civil rights workers. The call was answered by
Minnie Herring, the jailer’s wife, who lied. No ma’am, no civil rights
workers around here.

ØØ Finally, we know that shortly after 10:00 pm, Deputy Sheriff Price
showed up at the jail. He told the jailer, “Chaney wants to pay off—
we’ll let him pay off and release them all.” Price led the three men to
their car, and they drove out of town on Highway 19. Price got into his
patrol car and began to tail them.

ØØ Meanwhile, CORE staffers in Meridian were growing worried. Their

calls regarding the whereabouts of Schwerner, Chaney, and Goodman
had turned up nothing. At 12:30 am on June 22, a staffer called John
Doar, the Justice Department’s point man in Mississippi. Fearing the
worst, Doar alerted the FBI.

Investigation and Arrests

ØØ Shortly after receiving the call from Doar, Meridian-based FBI agent
John Proctor was on his way to Neshoba County to conduct interviews.
Proctor was an Alabama native who had cultivated relationships with
local law enforcement officers.

ØØ It was clear that the FBI could not count on any help from state
officials. Mississippi governor Paul Johnson was on record speculating
that the missing men “could be in Cuba.” He said he looked forward
to meeting with federal officials so he could show them that “there is
complete tranquility between the races” in Mississippi.

ØØ On the second day of the search, Proctor was joined by 10 more agents
and his New Orleans–based supervisor. The first big break in the

198 The Great Trials of World History and the Lessons They Teach Us
 investigation came when Proctor received a tip that a smoldering car
had been spotted in northeast Neshoba County. The car turned out
to be the burned-out blue station wagon the civil rights workers were
driving the day they disappeared.

ØØ Joseph Sullivan, the FBI’s major case inspector, soon determined that
the case “would ultimately be solved by conducting an investigation
rather than a search.” It became an extraordinarily difficult investigation.
Neshoba County residents were tight-lipped and suspicious, and they
delighted in sending agents off on wild goose chases. Some of the most
useful information Agent Proctor gathered came from children; he
stuffed candy in his pockets each day before setting out for interviews.

ØØ On August 4, 1964, a Caterpillar bulldozer began excavating an earthen

dam on a property known as the Old Jolly Farm. Deputy Sheriff Price
was on-site at the invitation of Inspector Sullivan, who had become
suspicious of the deputy. Before long, the heels of a pair of men’s boots
were spotted poking out of the clay. Proctor took photographs of the
bodies as they were uncovered.

Lecture 21—The Mississippi Burning Trial 199

ØØ The discovery of the bodies shook Klan members involved in the
conspiracy, and informants within the Klan helped break the case.
Information provided by a Klan member on the periphery of the
conspiracy enabled the FBI to focus on the conspiracy’s more central
figures. James Jordan, a Klansman who owned a Meridian speakeasy,
told investigators the whole story in exchange for $3,500 and assistance
relocating his family. He later became the government’s key witness.

ØØ Jordan told investigators that after learning of the capture from Deputy
Sheriff Price, Edgar Ray Killen began recruiting Klan members in
the area for some “butt ripping,” as he put it. Local Klan leaders met
that afternoon at a drive-in in Meridian. A second meeting, held at a
trailer park, was attended by the younger Klan members who would
participate in the actual killings.

ØØ When the civil rights workers left the jail in their station wagon,
Deputy Sheriff Price and several young Klan members sped down the
road behind them. Price caught up with the station wagon 10 miles
from the county line. James Chaney, who was driving the station
wagon, decided to make a run for it, and a high speed chase ensued.
Chaney swerved quickly onto Highway 492, but Price made the turn
as well. Seconds later, for reasons unknown, Chaney braked his car and
the three surrendered.

ØØ The three activists were put in Price’s car and driven to an unmarked
dirt turnoff called Rock Cut Road. It is not known whether they were
beaten before they were killed. Klan informants denied that they were,
but there was physical evidence to the contrary. What is known is that a
26-year-old ex-marine named Wayne Roberts was the triggerman. The
bodies were then taken to the dam at the Old Jolly Farm, which was
owned by local businessman Olen Burrage.

ØØ After the bodies were buried, Price returned to his duties in

Philadelphia. Around 12:30 am, he met with Sheriff Rainey. Given
their Klan membership and the close relationship between the two, it is

200 The Great Trials of World History and the Lessons They Teach Us
 almost unimaginable that Price did not relate, in full detail, the events
of that night.

ØØ In December 1964, 19 men were arrested by federal agents and charged

with conspiring to deprive Schwerner, Chaney, and Goodman of their
civil rights under color of state law. After a long battle over indictments,
a date for the trial was set.

The Trial
ØØ By the time jury selection commenced on October 7, 1967, new
indictments had been issued, and the list of defendants stood at 18.
The trial took place in the Meridian courtroom of Judge William Cox.

ØØ Across the street from the courthouse, Raymond Roberts, the brother
of one of the defendants, planted a large Confederate flag. The
flag brought cheers from onlookers. Federal marshals stood on the
courthouse steps, hoping to discourage anyone who might think
of climbing over the police barricades. Inside the building,
a crowd of reporters gathered outside the second-
floor courtroom as 200 potential jurors
waited for the proceedings to begin.

ØØ Seven white men and

five white women were
selected as jurors. But
selection came only after
the Justice Department
made an extraordinary
effort to ensure that no
Klan member slipped onto
the jury. Even one would
doom the government’s case.
Prosecutors also wanted a
smart, respectable jury. As

Lecture 21—The Mississippi Burning Trial 201

 expected, defense attorneys exercised peremptory challenges against
every potential black juror.

ØØ The heart of the government’s case was presented through the

testimony of three Klan informants. Wallace Miller described the
secret organization of the Meridian-area klavern and recounted his
conversations with Edgar Ray Killen concerning the Rock Cut Road
killings. Delmar Dennis incriminated Sam Bowers, the Mississippi
KKK’s founder and imperial wizard, who he said had ordered
Schwerner’s execution. James Jordan, the government’s only witness to
the actual killings, described the key events of the conspiracy, from the
meetings of Klan members in Meridian to the burial of the bodies at
the Old Jolly Farm.

ØØ The defense case consisted mostly of a series of alibi and character

witnesses. Various local residents testified as to the honesty of various
defendants. Others testified that they saw this defendant or that
defendant on the evening of June 21 at locations such as funeral homes
and hospitals.

ØØ In his closing statement, Doar told the jury that “this was a calculated,
cold-blooded plot. Three men, hardly more than boys were its victims.”
Pointing at Price, Doar said that “Price used the machinery of law,
his office, his power, his authority, his badge, his uniform, his jail, his
police car, his police gun, he used them all to take, to hold, to capture
and kill.” Doar concluded by telling jurors that what he and the other
lawyers said that day “will soon be forgotten, but what you twelve do
here today will long be remembered.”

ØØ On the morning of October 20, 1967, the jury returned with its verdict.
The verdict on its face appeared to be the result of a compromise. Seven
defendants were convicted, including Deputy Sheriff Price, Imperial
Wizard Sam Bowers, and triggerman Wayne Roberts. Another seven
defendants were acquitted, including Sheriff Lawrence Rainey and Olen
Burrage, the owner of the Old Jolly Farm. In the remaining three cases,
including that of Edgar Ray Killen, the jury was unable to reach a verdict.

202 The Great Trials of World History and the Lessons They Teach Us
ØØ The convictions were the first ever in Mississippi for the killing of a
civil rights worker. The New York Times called the verdict “a measure
of the quiet revolution that is taking place in southern attitudes.” John
Doar was satisfied with the outcome. His only regret was that the jury
didn’t reach a verdict on Edgar Ray Killen, who Doar said “was really
central to the conspiracy.”

ØØ On December 29, Judge Cox announced the convicted defendants’

sentences, which ranged from four to ten years. Judge Cox said of his
sentences, “They killed one nigger, one Jew, and a white man—I gave
them all what I thought they deserved.”

ØØ After serving four years of his six-year sentence, Cecil Price rejoined his
family in Philadelphia, Mississippi. In a 1977 interview, Price revealed
that he had recently watched and enjoyed the television show Roots. His

Lecture 21—The Mississippi Burning Trial 203

 views on integration had changed, he said. “We’ve got to accept this is
the way things are going to be and that’s it.”

ØØ Mississippi changed, too. In 2005, the state charged Edgar Ray Killen,
then 79 years old, with murder in connection with the slayings of
Chaney, Goodman, and Schwerner. Killen was convicted of the lesser
offense of manslaughter and sentenced to serve three 20-year terms,
one for each conviction. In 2016, Mississippi attorney general Jim
Hood announced that he was closing the books on the Mississippi
Burning case. The few witnesses that remained alive were either unable
or unwilling to testify.

Suggested Reading
Ball, Murder in Mississippi.
Cagin and Dray, We Are Not Afraid.
Huie, Three Lives for Mississippi.

Questions to Consider
1. What sort of person joins the KKK and participates in a murderous
conspiracy against civil rights workers?
2. What does it say about Mississippi at the time that there was no
prospect of a prosecution under state law?
3. What do the seven convictions and seven acquittals in the trial suggest
about jury deliberations in the case? How were guilty defendants likely
separated from those acquitted?

204 The Great Trials of World History and the Lessons They Teach Us
 LECTURE 22

The Trial of the

Chicago Eight

I
t’s September 24, 1969, thirteen months after the bloody riots
that marred the 1968 Democratic National Convention in
Chicago. The trial of the so-called Chicago Eight—eight radicals
accused of crossing state lines with the intent to start a riot—is set to
begin. Variously described as a “travesty of justice,” “a circus,” “an
important battle for the hearts and minds of the American people,”
and “a monumental non-event,” the Chicago Eight trial is a window
into the conflicting values of the late 1960s.

205
Background
ØØ In 1968, the bloodiest year of the Vietnam War, 17,000 Americans
died. As the death toll mounted, the war became increasingly
unpopular with the public—as did its champion, President Lyndon
Johnson. In March of 1968, however, it was still widely assumed that
Democrats would renominate Johnson when they gathered in Chicago
for their national convention.

ØØ In late March, 200 activists met to discuss whether to call for protests
at the August convention. Older, established peace groups had joined
forces to create an organization called Mobilization to End the War in
Vietnam (MOBE), which sponsored the conference. The conference
revealed deep divisions among the activists. Many MOBE leaders, such
as Tom Hayden, Rennie Davis, and David Dellinger, argued in favor of
nonviolent protests at the convention. More radical factions argued for
aggressive street action and civil disobedience.

ØØ Leaders from a newly-formed organization calling itself the Youth

International Party, or Yippies, were not impressed by what they saw
at the conference. For several months, the Yippies had been promoting
their own plan for the convention—an event they called the Festival of
Life. Yippie founders Abbie Hoffman and Jerry Rubin called for youth
to gather in Chicago.

ØØ One week after the conference, President Johnson, facing strong

opposition from within his own party, announced that he would not
seek reelection. Johnson’s decision prompted Robert Kennedy to enter
the race as an antiwar candidate. But Kennedy was shot and killed on
the night he won the California primary. The battle for the nomination
thus came down to a fight between two Minnesotans, Senator Eugene
McCarthy and Vice President Hubert Humphrey.

ØØ Chicago Mayor Richard Daley saw the Democratic National

Convention as a grand opportunity to promote his city to the world.
He resolved not to have antiwar demonstrators spoil his plans. When

206 The Great Trials of World History and the Lessons They Teach Us
President Lyndon Johnson

Lecture 22—The Trial of the Chicago Eight 207

 Yippies filed a request to sleep in city parks, they were denied by the
city administrator. Twelve thousand police officers were placed on 12-
hour shifts to keep demonstrators in line, along with 7,500 army troops
and 6,000 national guardsmen.

ØØ Hoffman and Rubin did their best to make the mayor and city officials
nervous by announcing ever wilder plans for the Festival of Life. Yippie
ideas included placing LSD in the Chicago water supply, dressing
Yippies as hotel bellboys and seducing the wives of convention delegates,
releasing greased pigs throughout the city, and picking up delegates in
fake taxis and driving them to Wisconsin. Dellinger, Hayden, Davis
and other MOBE leaders had more serious plans for convention week.
They proposed teach-ins, antiwar speeches, and antiwar protests.

Convention Week
ØØ Antiwar protestors and counterculture activists began arriving in
Chicago in August. Demonstration leaders had predicted that 100,000
protesters would show up. The actual number was closer to 10,000.

ØØ Sunday, August 25, was the date for the much-heralded Festival of Life
featuring rock music and revelry. Only one band showed up, however,
and they were reluctant to perform. Young people handed out flowers,
smoked pot, made out, and listened to poetry. Around 10:30 pm, a
police officer with a bullhorn walked through the park to remind those
gathered of the park’s 11:00 pm curfew. Some young people responded
by throwing objects at a police car. At 11:00 pm, police charged toward
those still in the park, teargassing and clubbing them. Attendees
angered by the police smashed car windows and vandalized buildings.

ØØ The next night, police cracked more heads and fired more tear gas
grenades, attacking 3,000 demonstrators shortly after the 11:00 pm
curfew. Abbie Hoffman was among them. He urged demonstrators “to
hold the park” and called for protesters to mess “up the pigs and the
Convention.” Tom Hayden was arrested after an officer spotted him

208 The Great Trials of World History and the Lessons They Teach Us
 letting the air out of the tires of a police car. Sometime after midnight,
Rennie Davis stood at the barricades in Lincoln Park with a megaphone
and told people to “fight the pigs.”

ØØ Tuesday was a circus in Chicago. It began with a sunrise service of

chants, prayers, and meditation in Lincoln Park, led by Allen Ginsberg.
In the Chicago Coliseum, 4,000 gathered to hear David Dellinger, folk
singer Phil Ochs, novelist William Burroughs, and a variety of other
peace movement celebrities.

ØØ Black Panther leader Bobby Seale spoke to a crowd of 2,000 in

Lincoln Park. Seale told the crowd that police violence must be met
with violence. Abbie Hoffman, having lost patience with MOBE’s
nonviolent stance, met with the Blackstone Rangers, a Chicago street
gang, to discuss the possibility of their coming to the park that night
with weapons. Shortly after 11:00 pm, the nightly police routine of
clubbing and tear-gassing was repeated in Lincoln Park.

ØØ The violence peaked on Wednesday, August 28, the day Hubert

Humphrey received the Democratic Party’s nomination for president.
Abbie Hoffman was arrested and charged with public indecency for
having written a four-letter obscenity on his forehead. Hoffman told
police that he put the word on his forehead to discourage the press
from photographing him.

ØØ In the afternoon, Dellinger, Seale, Davis, and Hayden addressed a large

crowd of demonstrators near the convention’s headquarters. Around
3:00 pm, some people in the crowd lowered an American flag from
a flagpole and attempted to raise a red flag in its place. Police moved
in to retrieve the American flag. Jerry Rubin yelled, “Kill the pigs!
Kill the cops!” In another incident, Rennie Davis was clubbed into
unconsciousness and taken to a hospital.

ØØ The clubbing and tear-gassing let up on Thursday, but protests

continued. An undercover police officer targeted two antiwar activists,
John Froines and Lee Weiner. According to the officer, Froines reported

Lecture 22—The Trial of the Chicago Eight 209

 that the demonstrators needed more ammunition to use against
police. Weiner, meanwhile, told the undercover officer of a plan to use
Molotov cocktails to create chaos in Chicago’s downtown Loop. Weiner
asked the undercover officer to get the bottles, sand, rags, and gasoline
needed to make the Molotov cocktails.

The Indictments
ØØ Prior to enactment of the 1968 Civil Rights Act, rioting and incitement
to riot was strictly a local law enforcement issue. But in response to the
increasing number of antiwar protests around the country, provisions
were included in the Civil Rights Act that made it a federal crime to
cross state lines with the intent to incite a riot.

ØØ President Johnson’s Justice Department was reluctant to use the new

provisions for a prosecution in Chicago. Attorney General Ramsey
Clark viewed what happened as primarily a police riot and was more
interested in prosecuting police officers for brutality than in prosecuting
demonstrators for rioting.

ØØ The Justice Department’s lack of interest in prosecuting protest leaders

outraged Mayor Daley. Daley convinced a close friend and federal judge
to summon a grand jury to consider possible federal charges. In March
1969, the jury returned indictments against eight demonstrators,
balanced exactly by indictments against eight police officers.

ØØ The eight indicted demonstrators were Abbie Hoffman, Jerry Rubin,

David Dellinger, Tom Hayden, Rennie Davis, John Froines, Lee
Weiner, and Bobby Seale. Though all were charged with conspiracy,
some of the defendants had never even met each other. The defendants
seemed to be chosen as representatives of various strands of the antiwar
movement: Hoffman and Rubin from the culturally focused Yippies;
Hayden, Davis, and Dellinger from MOBE; and Bobby Seale from the
Black Panther Party, an organization focused on issues of racial justice.

210 The Great Trials of World History and the Lessons They Teach Us
ØØ By the time the grand jury returned its indictments, Ramsey Clark
was in no position to object. The Nixon administration was now in
power. Nixon’s new attorney general, John Mitchell, had none of his
predecessor’s reluctance about prosecuting demonstrators and gave the
green light to prosecute.

The Trial
ØØ The defense ranks were divided on trial strategy. Some of the defendants,
such as Tom Hayden, wanted to play the trial straight and focus on

Lecture 22—The Trial of the Chicago Eight 211

 winning over jurors by exposing weaknesses in the prosecution’s case.
Others defendants, such as Jerry Rubin and Abbie Hoffman, wanted to
turn the trial into a circus. One day, Rubin and Hoffman wore judicial
robes into court. Another day, they brought a birthday cake.

ØØ In his trial account The Barnyard Epithet and Other Obscenities, J.

Anthony Lukas divided the Chicago Eight trial into five phases. The
first phase Lukas called the “Jelly Bean Phase.” This was a relatively
uneventful period, during which the defendants took a “gently
mocking” stance toward the trial.

ØØ The second phase was the “Gags and Shackles Phase.” Defendants,
perhaps worried that the trial was being seen as a joke, emphasized
political issues. Also during this phase, the plight of Black Panther
defendant Bobby Seale drew front and center. Seale’s chosen attorney
was in the hospital for gallbladder surgery, and Seale wanted the trial
delayed or, at least, wanted to be allowed to represent himself. When
Judge Julius Hoffman denied his repeated requests, Seale hurled bitter
attacks at him in increasingly angry tones. Judge Hoffman ordered
Seale bound and gagged. A week later, Seale was severed from the case
and sentenced to four years in prison for contempt. The Chicago Eight
became the Chicago Seven.

212 The Great Trials of World History and the Lessons They Teach Us
ØØ Lukas called the third phase “Government’s Day in Court.” It was a
calmer period with only nine instances of contempt. The defendants
realized that the prosecution’s case was surprisingly weak. They sensed
the opportunity for at least a hung jury and calmed down for a while to
avoid turning jurors against them.

ØØ This third phase was the heart of the government’s case. The prosecution
called to the stand three undercover agents, who described plots to
disrupt traffic, take over hotels, “sabotage” restrooms, and engage in
other “hit-and-run guerilla tactics.” The defendants’ efforts to show
that they came to Chicago with peaceable intentions were excluded by
Judge Hoffman.

ØØ Phase four of the trial was the “Sing Along with Phil and Judy Phase.”
During this period, the defense presented its witnesses. They were a
virtual who’s who of the American left. The witnesses included drug
guru Timothy Leary, poet Allen Ginsberg, author Norman Mailer, and
folk singers Phil Ochs, Arlo Guthrie, “Country Joe” McDonald, Pete
Seeger, and Judy Collins.

ØØ The defense tried to portray the defendants as committed idealists who

reacted spontaneously to police violence. The defense tried to show
that what the prosecution saw as dangerous plots, such as the supposed
Yippie conspiracy to place LSD in the Chicago water supply, were
intended as jokes. The defense also attempted to make the Vietnam
War an issue in the trial, but Judge Hoffman swatted the effort down.

ØØ The defense zeroed in on the prosecution’s theory that the defendants

were part of a conspiracy to incite a riot. Defense witnesses testified
that the alleged conspirators never once met as a group. Moreover, if
they ever had met, they wouldn’t have agreed upon anything. Defense
witness Norman Mailer made the point best when he said, “Left-
wingers are incapable of conspiracy because they’re all egomaniacs.”
Abbie Hoffman made the same point more colorfully in his testimony.
“Conspiracy?” Hoffman asked. “Hell, we couldn’t agree on lunch.”

Lecture 22—The Trial of the Chicago Eight 213

ØØ The final phase of the trial was the “Barnyard Epithet Phase.” It was a
two-week period marked by angry outbursts from the defendants and
their attorneys. The outbursts produced almost irrational overreactions
from Judge Hoffman, who issued 48 separate citations for contempt of
court.

ØØ The jury had just begun its deliberations when Judge Hoffman
sentenced each of the defendants and the two defense attorneys,
William Kunstler and Leonard Weinglass, to lengthy prison terms for
contempt of court. Kunstler, who so strongly identified with his clients
that he lost the balanced perspective a lawyer must maintain, was
sentenced to more than four years in jail. The contempt convictions
didn’t stand, however. The Seventh Circuit reversed them all, holding
that contempt convictions resulting in more than six months in prison
required jury trials and could not be imposed by a judge alone.

ØØ Jury deliberations were difficult. In the end, jurors acquitted all

defendants on the conspiracy charge, while finding guilty each of the
five defendants charged with having an intent to incite a riot while
crossing state lines. The jury acquitted Froines and Weiner on the
charge of teaching and demonstrating the use of an incendiary device.

ØØ On February 20, 1970, Judge Hoffman sentenced the men who’d

been found guilty to five years in prison. But the radicals never served
a day of their sentences. The Seventh Circuit reversed the convictions
in November 1972. The appellate court based its decision on Judge
Hoffman’s refusal to allow inquiry into the cultural biases of potential
jurors. The court also cited Judge Hoffman’s “deprecatory and often
antagonistic attitude toward the defense.”

ØØ Finally, the court noted a shocking development that arose after

appellate arguments. The FBI, with the knowledge and complicity of
Judge Hoffman and prosecutors, bugged the offices of the Chicago
defense attorneys. The Seventh Circuit said it had “little doubt but
that the wrongdoing of FBI agents would have required reversal of the
convictions on the substantive charges.”

214 The Great Trials of World History and the Lessons They Teach Us
ØØ In the other trial, the prosecution of eight Chicago police officers, all
the officers charged with violating the civil rights of demonstrators won
dismissal of charges or were acquitted. Richard Shultz explained the
verdicts: “The people who sit on juries in this city are just not ready to
convict a Chicago policeman.”

ØØ The trial of the Chicago Eight is symbolic of American divisions in the

late 1960s. A yawning chasm separated the mindset of the defendants
from the mindset of Judge Julius Hoffman. That chasm reflected the rift
that ran through American society as the Vietnam War dragged on. Police
versus protester, establishment versus radical, decorum versus defiance:
These were the polarities on display at the trial, and they reflected a nation
being pulled apart by racial, generational, and even sexual tensions.

Suggested Reading
Clavir and Spitzer, The Conspiracy Trial.
Epstein, The Great Conspiracy Trial.
Lukas, The Barnyard Epithet.
Shultz, No One Was Killed.
Wiener, Conspiracy in the Streets.

Questions to Consider
1. Was it appropriate for the government to choose defendants
representing various strands of the antiwar movement and then try
them all for conspiracy?
2. What does it mean to “cross a state line” with an “intent to incite a
riot”? What is the best proof that a defendant has the requisite intent?
3. When defense attorneys are confronted by a judge as hostile to their
case as Judge Julius Hoffman, how should they try their case?

Lecture 22—The Trial of the Chicago Eight 215

 LECTURE 23

The McMartin
Preschool Abuse Trial

I
n the summer of 1983, Judy Johnson tells police in Manhattan
Beach, California, that her two-and-a-half-year-old was molested
by Ray Buckey, a 25-year-old aide at the McMartin Preschool
and the son of the preschool’s owner. Massive news coverage of
the McMartin Preschool investigation produces indictments against
Raymond Buckey, the preschool’s founder, and the staff of the
formerly well-respected school. The prosecution is the longest and
most expensive criminal trial in American history, featuring victims,
unjustly accused defendants, traumatized children, and angry
parents—but not a single conviction.

216
Background
ØØ During the investigation of Ray Buckey, Judy Johnson made additional,
increasingly bizarre reports of misbehavior at the McMartin Preschool.
She claimed that Peggy Buckey, Ray’s mother, was involved in satanic
practices. She claimed Ray Buckey sodomized her son while the boy’s
head was in the toilet. Other teachers, she said, chopped up rabbits and
placed “some sort of star” on her son’s bottom.

ØØ Allegations of this sort should have been a red flag for police and
prosecutors, but the snowball of suspicion had already begun rolling.
Other parents began to raise new accusations and demanded a full-
scale investigation of the preschool. Bowing to this pressure, the
district attorney’s office handed over a major portion of the continuing
investigation to Kee MacFarlane, a consultant for the Children’s
Institute International (CII). CII was an agency with the mission of
identifying and treating abused children.

ØØ Police encouraged parents to send their children to CII for two-hour

interviews. Four hundred children reported for interviews. At CII, the
children were asked a series of leading questions and were encouraged
in various ways to report instances of abuse.

ØØ The interviews often followed a pattern. At first, the child denied seeing
any evidence of abuse. Eventually, however, the child came around and
gave MacFarlane and other interviewers the stories that they clearly
wanted to hear. After the interview, MacFarlane let parents know that
their child had been abused, and described the nature of the alleged
abuse. By March 1984, 384 former McMartin students were diagnosed
as having been sexually abused.

ØØ In addition to the interviews, 150 children received medical

examinations. Dr. Astrid Heger, hired by CII to conduct the
examinations, concluded that 80 percent of the children had been
molested. Her initial set of examinations revealed physical evidence
of sexual assault in only six cases, but Heger maintained that “any

Lecture 23—The McMartin Preschool Abuse Trial 217

 conclusion should validate the child’s medical history”—and parents
and children, through their interviews with her and others at CII, were
reporting abuse.

ØØ In March 1984, a grand jury indicted Ray Buckey, his mother Peggy
Buckey, his sister Peggy Ann Buckey, and Virginia McMartin, who had
founded the preschool 30 years earlier. The grand jury also indicted
three female teachers at the school, bringing the total number of those
indicted to seven. The defendants faced a total of 115 counts of child
sexual abuse. Two months later, an additional 93 counts were added.

The Preliminary Hearing

ØØ By the time the preliminary hearing began in August, prosecutor Lael
Rubin was telling the media that the seven defendants committed 397
sexual crimes, far more than the number for which they were indicted.
She said that 30 additional individuals associated with the McMartin
Preschool were under investigation.

ØØ Searches of the McMartin Preschool and the homes of the seven

defendants failed to produce much incriminating evidence. No nude
photographs of children were discovered, despite the insistence of
investigators and parents that such photographing was commonplace
at the preschool. No evidence was found of the “secret rooms” where
repeated instances of sexual abuse were said to have taken place.

ØØ The preliminary hearing opened in early 1984. It was a chaotic

proceeding featuring the seven defendants (each with his or her own
attorney) and three prosecutors. Unlike the typical preliminary hearing,
in which the prosecution tries to demonstrate cause for bringing the
defendants to trial and the defense passively observes, the defense in the
McMartin hearing mounted an affirmative defense. Defense attorneys
aggressively cross-examined a parade of prosecution witnesses that
included allegedly abused children, parents, therapists, and medical
experts. The defense effort was designed to raise questions as to how

218 The Great Trials of World History and the Lessons They Teach Us
 abuse on such a massive scale could go undetected for years. The defense
also tried to show that much of the testimony of the prosecution’s child
witnesses was flatly unbelievable.

ØØ Kee MacFarlane testified at the preliminary hearing. She said that the
abuse went undetected because children either suffered from “denial
syndrome” or were afraid that revealing McMartin’s dark secrets would
result in their own deaths or the deaths of family members. Videotapes
of the interviews showed that MacFarlane and other therapists relied
heavily on leading questions and subtle pressure to persuade children to
join the chorus of accusers.

ØØ The testimony of children at the preliminary hearing was shockingly

bizarre. Much of it was riddled with inconsistencies and contradictions.
Several children reported being photographed while performing nude

Lecture 23—The McMartin Preschool Abuse Trial 219

 somersaults. Other children testified that they played a nude version
of cowboys and Indians. Sometimes the Indians sexually assaulted the
cowboys, and sometimes it was the other way around.

ØØ Children testified that sexual assaults took place on farms, in circus

houses, in the homes of strangers, in car washes, in storerooms, and in
a secret room at McMartin accessible only by tunnel. One boy told of
watching animal sacrifices performed by McMartin teachers wearing
robes and masks. In response to a defense question, the boy added
that the kids at the ceremony were forced to drink the blood of the
sacrificed animals.

ØØ The strangeness of the preliminary hearing caused some members

of the prosecution team to express doubts about the case. A meeting
was called to discuss prosecution strategy. In the end, the district
attorney’s office decided to drop charges against all defendants except
Ray and Peggy Buckey. The case had already cost Los Angeles County
$4 million—and the trial had yet to begin.

The First Trial

ØØ A legal bombshell exploded before trial opened in the courtroom of
Judge William Pounders. Filmmakers producing a documentary on the
McMartin trial turned over copies of a taped interview with McMartin
prosecutor Glenn Stevens. In the interview, Stevens acknowledged
that children were embellishing their stories of sexual abuse and that
prosecutors had withheld potentially exculpatory information from
defense attorneys. Based on the revelations, defense attorneys moved
to have all charges against Ray and Peggy Buckey dismissed. The trial
judge scolded prosecutors, but denied the defense motion.

ØØ In many ways, the trial was a condensed version of the preliminary

hearing. The prosecution attempted to prove widespread sexual abuse
of McMartin children. The defense tried to prove that the whole show
was driven by the suggestive and overzealous interview techniques of

220 The Great Trials of World History and the Lessons They Teach Us
 the crusading therapists of CII. Despite having fewer defendants, fewer
charges, fewer attorneys, and fewer witnesses than the preliminary
hearing, the trial was still a major affair. Before it ended, the prosecution
presented 61 witnesses, including nine children, a jailhouse informant,
parents, medical specialists, and therapists.

ØØ The prosecution called several parents to the witness stand to lay a

foundation for the accounts of their children that followed. Each
parent was convinced that their child had been sexually abused. Parents
variously suggested bladder infections, nightmares, anatomically correct
artwork, and masturbation as confirmation of abuse.

ØØ The prosecution’s child witnesses repeated many of their stories from

the preliminary hearing. Jurors heard about games played in the nude
and an incident in which Ray Buckey allegedly scared the children into
silence by executing a cat with a knife. The children offered numerous
graphic accounts of sexual abuse by both defendants.

ØØ On cross-examination, the defense played videotaped interviews at CII

in which the children initially denied they were molested. The defense
then pointed out how therapists from CII coached and rewarded

Lecture 23—The McMartin Preschool Abuse Trial 221

 children in an effort to elicit the right answers. The right answer being,
of course, that they were molested.

ØØ One witness above all had the potential to make or break the prosecution’s
case. That witness was CII therapist Kee MacFarlane. MacFarlane
was on the witness stand for five weeks. On cross-examination, she
was relentlessly attacked by defense attorney Daniel Davis for her
controversial interview techniques. She was questioned about using
naked puppets and anatomically correct dolls. She was asked why she
told interviewees that other children had reported sexual abuse.

ØØ The defense produced an expert witness, a professor of psychiatry at

the University of Southern California, to further discredit MacFarlane’s
interview techniques. The professor criticized MacFarlane for presenting
children with a “script” that discouraged “spontaneous information.”
He said that MacFarlane’s methods encouraged children to supply
expected answers so they might “please mother and father” and prove
themselves “good detectives.”

ØØ Perhaps the strangest testimony came from jailhouse informant George

Freeman, Ray Buckey’s cellmate. Freeman was a nine-time felon and
confessed perjurer. He testified that Buckey admitted to him that he
sexually molested children at the McMartin School, that he shipped
pornographic materials to Denmark, and that he buried incriminating
photos of himself and the children in South Dakota. Powerful evidence,
if true—but the defense succeeded in showing Freeman had almost
zero credibility.

ØØ Media attention peaked when the defendants themselves took the

stand. When asked whether “she ever molested those children,” Peggy
adamantly denied the accusation. Ray also denied each and every
prosecution charge—including ones the defense saw as ridiculous. He
denied, for example, ever killing a horse with a baseball bat, as one child
had testified. He noted that he was not even teaching at the school
during many of the times in which he was accused of abusing children.

222 The Great Trials of World History and the Lessons They Teach Us
ØØ On November 2, 1989, after nearly 30 months of testimony, the case
went to the jury. The jury spent more than two months deliberating.
In the end, the jury acquitted on most of the 65 charges, including all
of the charges against Peggy Buckey. On 13 of the charges against Ray
Buckey, the jury announced that it was hopelessly deadlocked.

The Second Trial

ØØ Child protection groups and parents pressured prosecutors to retry
Ray Buckey. Five hundred people, including many McMartin parents,
marched through the streets of Manhattan Beach carrying signs with
messages such as “We believe the children.” One McMartin parent
called the verdict in the first trial “a crime … almost equal to the crime
that occurred outside the courtroom.” A television poll showed that 87
percent of respondents thought the Buckeys were guilty. After internal
debate, District Attorney Ira Reiner signed off on the retrial.

ØØ The second trial was a more focused proceeding, involving only eight
counts of molestation and three children. The prosecution presented
its entire case in just 13 days. One of the witnesses was a mother who,
on the stand, glared at Ray Buckey and announced, “I’m so angry at
you, I could kill you right now.” The prosecution chose not to call
CII interviewer Kee MacFarlane. Instead, MacFarlane was called as a
defense witness.

ØØ Jury deliberations after the three-month trial were described by one juror
as “excruciating.” The jury ended its deliberations deadlocked on all
eight counts. The jury leaned toward acquittal on six of the counts, split
evenly on one count, and leaned toward conviction on a final count.

ØØ Following the mistrial, District Attorney Reiner decided not to try

Buckey a third time. All charges against him were dropped. The decision
did not mean, of course, that Ray Buckey was innocent of all charges—
on that question we might say that the jury will be forever out.

Lecture 23—The McMartin Preschool Abuse Trial 223

Aftermath
ØØ The McMartin Preschool Abuse Trial was long and costly. For the
defendants, the costs of the trial included lengthy terms in jail. Ray
Buckey spent five years in jail before finally being released on bail. For
the defendants, it meant loss of homes, loss of jobs, loss of life savings,
and a stigma that might never go away.

ØØ The children were also victims. In an interview, Ray Buckey said:

“Those poor children went through hell, but I’m not the cause of their
hell and neither is my mother. The cause of their hell is the … adults
who took this case and made it what it was.” Parents suffered as well.
Many felt betrayed by the justice system. The community of Manhattan
Beach was left uneasy and polarized by the lengthy proceedings.

ØØ The effects of the McMartin trial extended beyond the state of

California. Early publicity surrounding the McMartin investigation
spawned a rash of charges against day care providers elsewhere.
Many, if not most, of these charges proved unsubstantiated. Many
day care centers closed their doors after insurance companies, fearing
molestation lawsuits, dramatically raised liability insurance rates.

ØØ The McMartin case illustrates the problems that come when police
and prosecutors leap to conclusions. Blinders get put on. Evidence that
should cause a reexamination of assumptions gets ignored.

ØØ There are also lessons for the media. The McMartin case was hounded
by journalists publishing stories slanted heavily toward the prosecution.
The journalists churned out sensational headlines day after day and
almost never seriously questioned allegations. Their actions helped turn
the McMartin trial into the expensive fiasco that it became.

ØØ Finally, there was collateral damage. In the wake of McMartin and other
trials, many day care centers around the country adopted new policies.
These policies strictly limited physical contact between teachers and
children. Daycare centers feared that touching might wrongfully be

224 The Great Trials of World History and the Lessons They Teach Us
 interpreted as abuse. Every parent knows that there are times when a child
needs a hug—and often, because of McMartin, the hugs weren’t there.

Suggested Reading
Butler et al., Anatomy of the McMartin Child Molestation Case.
Eberle and Eberle, The Abuse of Innocence.
Nathan and Snedecker, Satan’s Silence.

Questions to Consider
1. In what ways did the day care abuse trials of the 1980s and early 1990s
follow the pattern of the witchcraft trials in Salem?
2. How should interviews with child witnesses be conducted to maximize
the chance that they will provide accurate information?
3. Should whether or not a defendant has had normal sexual relations
with other adults be relevant in a trial in which the defendant is charged
with sexual molestation of children?

Lecture 23—The McMartin Preschool Abuse Trial 225

 LECTURE 24

The O. J. Simpson
Trial

A
t 10:00 am on October 3, 1995, 91 percent of Americans with
televisions were glued to their screens as a clerk for Judge
Lance Ito announced that O. J. Simpson, after 133 days of
televised testimony, had been found not guilty of murder. Reactions
to the verdict were divided largely along racial lines. This lecture
considers how the Simpson trial came to command such attention, why
the evidence was viewed differently by people of different races, and
how the trial changed the way celebrity trials are handled.

226
June 12, 1994
ØØ Just after midnight on June 12, 1994, a couple out on a walk in the
prestigious Brentwood area of Los Angeles discovered two bodies by the
front gate of a condominium. The body of Ron Goldman, a 25-year-old
male who had come to the condominium to return a pair of sunglasses,
had been stabbed repeatedly. The body of Nicole Brown Simpson, ex-
wife of former football great and media personality O. J. Simpson, had
been slashed so brutally that the neck was almost severed from the body.

ØØ On the morning after the murders, police called O. J. Simpson at a

hotel in Chicago, where Simpson was slated to speak at a convention.
He had just arrived in Chicago that morning, after taking a red-eye
flight from Los Angeles. When informed that his ex-wife had been
killed, Simpson did not ask how, when, or who might have done it.

ØØ Simpson boarded the first available flight back to Los Angeles. He

arrived at his home to find a full-scale police investigation underway.
Police tape was stretched across his front gate, and cardboard tags
marked a bloodstain trail up the driveway.

The Investigation
ØØ When Simpson first arrived at his home, Los Angeles police interviewed
him for approximately 30 minutes. They asked a number of questions
about the deep cut on his right hand. At first, Simpson claimed not to
know the source of the cut. Later on, he suggested that he had reopened
an old cut when he broke a glass in his Chicago hotel room after being
informed of Nicole’s murder. The interview as a whole was remarkably
inept. Officers did not ask obvious follow-up questions, and whole
areas of potentially fruitful inquiry were ignored. So unhelpful was this
interview that neither side introduced it into evidence at the trial.

ØØ Eventually, however, police accumulated enough evidence connecting

Simpson to the murders to seek and obtain a warrant for his arrest.

Lecture 24—The O. J. Simpson Trial 227

 Under an agreement with Robert Shapiro, Simpson's attorney, Simpson
was to turn himself in at police headquarters on the morning of June
17, the day after Nicole’s funeral. When Simpson didn’t show up, police
drove to his Brentwood home to pick him up. Simpson was not at
home.

ØØ At Simpson’s home, police officers found a letter that he had left behind.
Addressed “To whom it may concern,” it had all the markings of a
suicide letter. It ended: “Don’t feel sorry for me. I’ve had a great life, great
friends. Please think of the real O. J. and not this lost person. Thanks for
making my life special. I hope I helped yours. Peace and love, O. J.”

ØØ A few hours later, a motorist in Orange County saw Simpson riding

in a white Bronco driven by his friend, A. C. Cowlings, and notified
police. Soon, a dozen police cars, news helicopters, and some curious
members of the public were following in pursuit of the Bronco. By the
time the slow-motion chase was over, 95 million viewers had watched

228 The Great Trials of World History and the Lessons They Teach Us
 it live on television. The chase ended with Simpson’s arrest in his own
driveway. After making the arrest, police searched the Bronco and
discovered $8,750 in cash, a false beard and mustache, a loaded gun,
and a passport.

Pretrial
ØØ The first big decision the prosecution made might have been the one
that doomed their case. Prosecutors chose to file the Simpson case in
downtown Los Angeles, rather than—as was normal procedure—the
district where the crime occurred, in this case Santa Monica. This
meant that the Simpson jury would be drawn from a largely nonwhite
jury pool. A jury in Santa Monica would have been mostly white.

ØØ Implausibly, prosecutors explained their decision as an effort to reduce

their commuting time and to better accommodate the expected media
crush. More likely, the decision was a political one. Prosecutors and
city officials feared that a conviction by a white jury in Santa Monica
might spark racial protests—or even riots. Only a few years earlier,
deadly riots had broken out after a white jury acquitted LAPD officers
accused of beating motorist Rodney King. No one wanted a repeat
of that tragedy. Prosecutors probably believed that their case against
Simpson was so strong that even a racially diverse jury would have no
choice but to convict.

ØØ Prosecutors also weakened their prospects for success when they

chose not to seek the death penalty. In death penalty cases, jurors are
first death-qualified. That is, jurors who have serious qualms about
imposing the death penalty are eliminated from jury consideration.
Studies suggest that death-qualified juries are more likely to convict.
Excluded jurors are disproportionately black and female, populations
that tend to be less conviction-prone.

ØØ At his arraignment, Simpson pleaded not guilty. Lawyers and Judge

Ito then occupied themselves with months’ worth of hearings on issues

Lecture 24—The O. J. Simpson Trial 229

 such as whether to permit cameras in the courtroom and whether to
admit as evidence certain DNA test results.

The Trial Begins

ØØ What one commentator called “the Super Bowl of murder trials”
opened in January 1995. In his opening remarks, Judge Ito said that he
expected to see “some fabulous lawyering skills.”

ØØ The jury was comprised of nine African Americans, two Hispanics,

and one white—more diverse than even downtown Los Angeles jury
rolls would have predicted. There were ten female jurors and only two
males. Prosecutor Marcia Clark had ignored jury consultants who
warned her against seating African American women. She insisted that
she always did just fine with that demographic. Only two jurors were
college graduates.

ØØ Christopher Darden led off for the prosecution. In his opening

statement, he described Simpson as an abusive husband and a jealous
lover of Nicole Brown Simpson. Darden told jurors, “If he couldn’t have
her, he didn’t want anybody else to have her.” Marcia Clark followed
Darden by laying out the facts that she said would prove Simpson’s guilt.

ØØ Johnnie Cochran, in his opening statement for the defense, presented

a timeline of events that, if accurate, would have made it almost
impossible for Simpson to pull off a double murder. He also suggested
that Simpson was so crippled by arthritis that he lacked the physical
strength to do the job. Finally, Cochran told the jury that the defense
would show that the evidence against Simpson was “contaminated,
compromised, and ultimately corrupted.”

ØØ Over the next 99 days of trial, the prosecution presented 72 witnesses.

The first set of witnesses suggested that Simpson had the motive and
opportunity to kill. The second set of witnesses suggested that Simpson
used this opportunity to kill his ex-wife and Ronald Goldman.

230 The Great Trials of World History and the Lessons They Teach Us
Lecture 24—The O. J. Simpson Trial 231
ØØ Denise Brown, Nicole’s sister, recounted events in O. J.’s relationship
with Nicole that revealed Simpson’s darker, more violent side. Ron
Shipp, a friend of O. J.’s, testified that Simpson once told him that
he was having dreams of killing Nicole. With a 911 dispatcher on the
stand, the prosecution played for the jury a terrifying 911 call from
Nicole describing an ongoing assault by Simpson.

ØØ The next set of prosecution witnesses established a timeline that showed

Simpson had ample opportunity to commit murder between 10:15 and
10:40 pm. Limo driver Allan Park was one of the prosecution’s most
effective witnesses. He was articulate, personable, and a neutral observer
of events. Park testified that he arrived at the Simpson home at 10:25 pm
on the night of the murders to pick O. J. up for his flight to Chicago. He
rang the doorbell repeatedly, but no one answered. Shortly before 11:00
pm, according to Park, a shadowy figure—black, tall, about 200 pounds,
and wearing dark clothes—walked up the driveway and entered the
house. A few minutes later, Simpson emerged and told Park he overslept.

ØØ Simpson houseguest Kato Kaelin was one of the trial’s more colorful
characters. Kaelin testified that he and Simpson had returned from a
run for Big Macs and French fries at 9:36 pm. Kaelin said he didn’t
know Simpson’s whereabouts after that. Kaelin said he heard thumps
on the house wall just before 11:00 pm, the same time that limo driver
Allan Park had witnessed someone enter the house.

ØØ The final set of prosecution witnesses directly tied Simpson to the two
murders. The evidence was technical and circumstantial, consisting
primarily of the results of blood, hair, fiber, and footprint analysis from
the crime scene and Simpson’s home. Footprints found at the scene
were shown to have been made by size 12 shoes, the same size worn by
Simpson.

ØØ A blood test confirmed that Nicole’s blood matched blood found on

two black socks in O. J’s bedroom. Prosecution experts testified that
Nicole was likely the only person on the planet whose blood would
be a match. Another test indicated that blood found at the crime

232 The Great Trials of World History and the Lessons They Teach Us
 scene could have come from only one out of 170 million sources of
blood—and that O. J. Simpson fit the profile. Blood on the ring finger
of Simpson’s glove was a match for Ronald Goldman. Faced with such
evidence, the defense was left with little choice but to try to convince
jurors that the blood samples had been planted by corrupt police
officers or contaminated.

ØØ Mark Fuhrman, the LAPD officer who found a bloody glove outside
Kato Kaelin’s bedroom, turned out to be a godsend for the defense’s
corrupt-police theory. When he testified for the prosecution, Fuhrman
was an impressive witness. In his book about the trial, defense lawyer
Robert Shapiro observed: “Marcia Clark treated him like he was a
poster boy for apple pie and American values.”

ØØ On cross-examination, defense attorney F. Lee Bailey asked Fuhrman

a question that seemed to come out of the blue: In the past 10 years,
had Fuhrman ever used “the n word?” Fuhrman replied that he never

Lecture 24—The O. J. Simpson Trial 233

 had done so. A tape provided by a defense witness, however, would
later reveal that Fuhrman had used the word many times. The tape
also contained a confession by Fuhrman that he sometimes planted
evidence to help secure convictions. This shocking evidence opened the
door for the defense theory that Fuhrman took a glove from the crime
scene, rubbed it in Nicole’s blood, then took it to Simpson’s home in an
effort to frame Simpson.

ØØ Fuhrman proved to be just the first of two major prosecution disasters.

Prosecutor Christopher Darden, confident that the bloody gloves
belonged to Simpson, made a dramatic courtroom demonstration. He
asked Simpson, in full view of the jury, to try on the gloves worn by
Nicole’s killer. Simpson seemed to struggle with the gloves. “They don’t
fit,” he said. “See? They don’t fit.”

ØØ Years later, Shapiro revealed that he had tried on the gloves himself
before the demonstration and knew they wouldn’t fit his client. There
were good reasons why they didn’t—the gloves might well have shrunk
because of the blood and, as photos later revealed, Simpson liked
wearing ill-fitting gloves. In his closing argument, Johnnie Cochran
memorably summed up the meaning of the glove demonstration for
the jury: “If it doesn’t fit, you must acquit.”

ØØ Simpson was a celebrity, he was wealthy, he golfed, he lived in a mostly

white neighborhood, and he had a large number of white friends.
When the trial began, most commentators did not see the Simpson
trial as one that would turn on issues of race. As the trial developed,
however, it became apparent that the defense saw race as having a lot to
do with the case.

ØØ As successful as the defense strategy was, it was not without its own
miscalculations. Simpson’s doctor testified that O. J.—despite looking like
Tarzan—was in about as good of a condition as “Tarzan’s grandfather.” He
said that Simpson suffered from arthritis and other problems. On cross-
examination, the prosecution countered with a video taken shortly before
the murders in which Simpson engaged in demanding physical exercise.

234 The Great Trials of World History and the Lessons They Teach Us
ØØ Along with Fuhrman, forensic expert Henry Lee may have saved the
day for Simpson. Lee had solid credentials, smiled at the jury, and
provided what seemed to be a plausible justification for questioning the
prosecution’s key physical evidence. Lee suggested that shoe print evidence
indicated there was more than one assailant. And he offered a simple
conclusion about the prosecution’s DNA tests: “Something’s wrong.”

The Jury Acquits

ØØ By the time closing arguments began, the jury had been sequestered
for the better part of a year. Jurors were showing signs of strain and
exhaustion. Judge Ito was under attack by commentators for allowing
the trial to drag on and for failing to keep lawyers under control.

ØØ The jury spent just three hours deliberating the case. When Judge
Ito’s clerk announced his acquittal, Simpson sighed in relief. Cochran
pumped his fist and slapped Simpson on the back. From the audience
came the searing moans of Kim Goldman, Ron’s sister, and the cries of
Ron’s mother, Patti Goldman: “Oh my God! Oh my God!”

ØØ Polls taken after the trial found that nearly 80 percent of African
Americans approved of the jury’s decision, with only 10 percent
disagreeing with the verdict. On the other hand, a solid majority of
whites said justice was not done. The Simpson trial showed that African
Americans are, on the whole, much more likely to suspect police of
racism and misconduct than are whites. The differences seem rooted
in African Americans’ own experiences with law enforcement. It may
be for that insight, more than anything, that the Simpson trial will be
remembered.

ØØ But the trial had other profound effects. It created a greater awareness
of domestic violence issues. It provided lessons on how not to run a
criminal trial, lessons that have been applied by judges in subsequent
celebrity trials. And it reversed what had been a powerful trend toward
allowing the use of cameras in criminal courtrooms.

Lecture 24—The O. J. Simpson Trial 235

 Suggested Reading
Bugliosi, Outrage.
Clark, Without a Doubt.
Cochran, Journey to Justice.
Shapiro, Search for Justice.
Simpson, If I Did It.
Toobin, The Run of His Life.

Questions to Consider
1. What caused the Simpson trial to become such a media circus?
2. How persuasive is the defense argument that Simpson was the victim of
a police frame-up?
3. Why is it that African Americans overwhelmingly believed the jury did
the right thing in the Simpson case, while most whites believed the
opposite?

236 The Great Trials of World History and the Lessons They Teach Us
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Allison, Robert. The Boston Massacre. Beverly, MA: Commonwealth

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Anderson, Gary and Alan Woolworth. Through Dakota Eyes. St. Paul:
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Baatz, Simon. For the Thrill of It: Leopold, Loeb, and the Murder that Shocked
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Ball, Howard. Murder in Mississippi: United States v. Price and the Struggle
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Bartlett, Robert. Trial by Fire and Water: The Medieval Judicial Ordeal.
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Bernstein, Hilda. The World That Was Ours. London: Persephone Books, 2004.

Boyer, Paul and Stephen Nissenbaum. Salem Possessed. Harvard University

Press, 1976.

237
Brickhouse, Thomas and Nicholas Smith. Socrates on Trial. Princeton, NJ:
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Broun, Kenneth. Saving Nelson Mandela: The Rivonia Trial and the Fate of
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