The trial excerpts

Reed witness who claimed Vanzetti yelled at him shortly after crime Ruth C. Johnson garage owner's wife who thought she saw Sacco and Vanzetti on night of arrest.

Defense Witnesses. Harry Kurlansky one of several witnesses called to attack credibility of prosecution eyewitnesses James E. Burns ballistics expert Angelo Guidobone witness who said he bought cod from Vanzetti on day of crime Nicola Sacco Bartolomeo Vanzetti. Frederick H. Moore Defense Jeremiah J. McAnarney Defense Frederick G. Effective politically by checkmating all sides, this decision made no legal sense. Judge John T. Raulston did only what the law demanded of him at trial.

His superiors, the justices of the Tennessee Supreme Court, turned against him to end the case as quickly and quietly as possible. Tennessee v. Scopes supplies a cautionary tale about all high-profile trials. Controversy in such a case tends to be dangerously open-ended. Neither the law nor punishment but ways of life were on trial in Dayton, and it is usually a mistake to try to solve this kind of problem in a courtroom.

An arresting phrase in a high-profile trial can give language an unforeseen life of its own. Dayton also reveals the dynamic nature of conflict. Permanent controversies have a way of changing while staying the same. Even Mencken would prove to be half wrong about Scopes in the end. The monkey trial survives today not as a source of shame and scorn but as an important tourist attraction in Dayton, fulfilling the financial hopes that the town leaders of sought.

The legal profession of Tennessee, which tried to make Scopes go away, now learns its trade under representations of the event. Two huge murals of scenes from the trial hang in the Vanderbilt University Law School in downtown Dayton.

When ideas tear a community apart, the pattern of controversy can return with astounding speed and force. The issues here—religion against science, rejection of change, fear over biological self-examination, divergent definitions of humanity itself—can reappear at any moment.

The next major Scopes trial may even now be on the way over evolution or, in a new wrinkle, over the availability of genetic manipulation. High-profile trials like Scopes teach that the law is not a linear progression toward explanation anywhere near as much as it is a circulating mode of consensus on a variety of levels.

Yes, the legal process in a courtroom moves from uncertainty toward decision, from simple description to expert procedure, from conflict to a solution articulated by a professional elite, and, often enough, from politics to the courtroom, but the requirements of understanding and acceptance extend in many directions at once, and they neither begin nor end in judgment.

Most controversial trials furnish a simple proof of the reciprocities involved. Anyone who studies courtroom events learns that it is almost impossible to secure a verdict at trial against the settled convictions of a surrounding community. The pressure on courtrooms grows especially serious when the legal stakes are higher and the defendants unpopular as they were in the trial of Nicola Sacco and Bartolomeo Vanzetti for felony murder in Whatever regrets Americans have today over the conviction and execution of Sacco and Vanzetti in Massachusetts in on flimsy evidence, questionable procedures, and a flawed appeal process, these inclinations were not in vogue when it counted.

Most Americans and an overwhelming percentage of the legal profession were heavily in favor of conviction and execution in the s. Half a century too late, the Dukakis proclamation acknowledged tacit truths: the cost of apparent injustice is high, and it has a long half-life in a republic of laws.

We must come to a better comprehension of how misunderstandings, false excitement, and confusion arise out of such trials. Clarification of the problems may not solve them, but it can at least keep the issues that alarm a community in proper focus. It can reduce the spread of conflict, keep peripheral anxieties in check, and reduce the distorting power of celebrityhood. Even more ambitiously, clarification can allow the law to grow through a trial instead of fixing it to a moment through communal lines of force that threaten to overwhelm an answer in court.

Courtrooms are supposed to educate communities as well as decide for them, but for that to happen effectively the legal profession as well as citizens and the media that inform them must grasp the nature of dynamic interaction in a high-profile trial. Language of importance comes from both directions in such moments, and the larger task must be to bring those languages closer together.

The first source of misunderstanding emanating from courtrooms is also the most shocking. The greatest experts on trial performance, those officially involved or informed, can be the worst guides in explaining the communal context of a trial, even though their authority gives them a platform for such commentary.

Lawyers have the task of informing and protecting their clients, and judges certify that these tasks are performed precisely. Both are sworn to uphold procedures that guarantee fairness and protect the process from bias, but they acknowledge fewer obligations where the desires of citizens to be informed are concerned.

All professions endorse a degree of separate knowledge with credentialism, special terminology, and protective autonomy, but nowhere have these tendencies been more rampant than in the law, and nowhere is a countervailing understanding more important.

The authority of experts does not suffice in the explanation of a high-profile trial. The internal legal standards that protect in court are not meant to inform the public, and often enough they do not. Procedural precision, formal language, and the control of precedent are all tenets for insuring justice in court, and no one would want to be without them, but these tenets are also stratagems for restricting debate and were never designed as engines of general explanation.

Consider only the most prominent principle just noted, stare decisis, the control of precedent. Stare decisis et non quieta movere, to give the complete expression, conveys more than the rule of precedent. Although the aspirations of the law in court are easily conveyed, actual litigation is much harder to comprehend and easily misunderstood. Left unsaid are the illusive nature of truth and barriers to the desire for it.

Courtroom performers must answer to a well-known rubric. Either way, truth is a variable in advocacy, and it must be fashioned to be believed.

The form of story in court must be simple because common people must believe it. The law demands belief in the telling. A trial recounts a past event to reach a decision about the future. Every good story uses remembered life to reveal the meaning of real life, but at trial this dynamic follows the narrow concern that attorneys bring to real life.

A litigator does not seek knowledge except as it regards the fate of the accused. Storytelling thus becomes a uniquely cutthroat business in court.

It reduces everything said to one overwhelming concern: guilty or not guilty as charged. Nothing else really matters at trial. This all-or-nothing approach leads to a devastating conclusion.

Most stories told in a courtroom are true only in an instrumental sense. The priorities on truth telling notwithstanding, a story succeeds only when it is well told, and the best story requires imagination as well as the truth. Lawyers look for a version of the truth that jurors will accept, and they learn that a credible story will be one familiar to the listener through convention or experience. This compulsive search for familiar ground leads away from the intricacy of the law and, often enough, away from the problem at hand.

The construct of guilt against innocence rewards corresponding simplifications in court, even though the more complicated truth may fall somewhere in between or in another dimension of understanding altogether. Rape trials afford similarly harsh alternatives. Advocacy rewards narrative predispositions over the facts in a case.

Even a judicial opinion will manipulate the facts in the record to craft a better story for a given result. The presumed balance in descriptions of advocacy can also be misleading.

The separate functions of prosecuting attorney and defense counsel require different tactics in storytelling. Telling such a story requires art. A prima facie case must be effective enough for a court to believe that it will prevail against all others unless contradicted by evidence not noted by the prosecution.

This initial burden of proof is qualified, but it grows as a trial proceeds. Two legal maxims control the asymmetrical challenge in prosecutorial storytelling: lex appetit perfectum and omnis indemnatus pro innoxis legibus habetur.

The prosecution must adjust every narrative inclination to this imbalance. It labors against an in-built favoritism for the defense. The first strategy of the defense in response is naturally one of evasion. The defense tells no story until it has to. Did the police tamper with the evidence, as claimed in the trial of O. Law students used to imbibe this lesson through the example of an early legal hero. An admission of pettifoggery to outsiders, this anecdote never fails to rouse cynical pride when quoted within the profession.

Prosecutors have to be hedgehogs, and their one account had better be a good one. For if the multiplication in story lines by defense counsel strains probabilities, juries are receptive to alternatives that make sense to them.

Boredom presents yet another hurdle in communal understanding of accounts in a courtroom. Stories at trial appear hopelessly repetitious to a nonprofessional observer and are more monotonous than an audience would tolerate in any other setting.

A trial develops through endless retellings. The indictment gives the story as an assertion more than conjecture but less than proven fact. Factual renditions supporting the assertion, or denying it, come next in the opening statements of opposing counsel.

These statements are supposed to be non-argumentative and confined to the facts to be proven. Nonetheless, they reiterate opposing versions of what happened in excruciating detail. Then, in another telling, true argument over the facts unfolds in the presentation of evidence, objections, examinations, and cross-examinations.

Procedural compulsions make each side retell the incidents not once but many times. The need to prove events through the oral testimony of witnesses—witnesses who can describe only what they did and saw themselves—brings each storyteller back and forth over the same ground more than once. Closing arguments and the judicial opinion repeat what has gone before, though mercifully in more concise form.

One of the many difficulties for a community is the relevance of such redundancy, and in their impatience, observers extrapolate beyond what has been said in court. Lawyers are given great license to repeat themselves because the law assumes that reiteration contributes to a truth beyond rhetoric. By granting maximum leeway, a courtroom encourages acquiescence in judgment.

It creates a zone where procedural correctness and final decision making meet and protect each other. Accuracy on both levels provides a double check, a second chance to rectify error. Repetition in this sense is not just time spent. The illusive and instrumental nature of truth in advocacy, the oversimplifications and melodrama in argument, and the imbalances, repetitions, and proliferations in storytelling distract and annoy the nonprofessional observer. Properly understood, however, and taken together, these legal devices are tools of communal explanation.

The thoroughness of storytelling at trial also means that trials are interesting for what is not said in them. When a lawyer fails to make use of an available story, we have another sign of the times.

The arcane nature of trial performance does not undercut the importance of law as a central mode of explanation, but it does suggest the need for stronger connections between legal explanation and communal reception when trials and particularly high-profile trials are so readily subject to public misconception.

Misunderstandings when people are already angry are dangerous, and the sensationalism in legal argument can give error a lasting imprint. In Scopes we have seen that a high-profile trial can cause more harm than good. To summarize the problem in a sentence, the rule of law is too important to be left to lawyers and their explanations.

For while the law endures in its own right and has its own purposes and spheres, a communal rule of law survives only where the structure of regulations the law exists in relation to the disposition of cultural forces social norms. A public trial is the place where regulations and norms visibly meet, and the more attention a trial draws, the greater the need for a meaningful connection.

At the same time, we have seen that many sources of misunderstanding seem intrinsic to a given situation. Nor is that all. What is to be done with a community, or a prominent section of it, that willfully misunderstands with its own purposes in mind? An inbred suspicion of law itself informs the first level of communal dissociation at trial. Law provides the neutral restraints that are necessary for individuals in coping with each other.

Only utopian communities based on wish fulfillment are without this drab umbrella of restriction, and although those who study the law sometimes call it beautiful, the subject is distasteful to those who merely obey or pay the consequences of disobedience.

The related fear of what the law might do to a person in its presumed indifference to individuality encourages many observers to instinctively question what happens when someone steps into the dock. This inherent, even healthy, skepticism deepens into something more intense when people differ passionately over the stakes involved, as they often do in a high-profile trial. There are always individuals who identify strongly with the other side of an issue. Belief trumps reason and explanation when people invest heavily in one side of a conflict.

A high-profile trial is peculiarly susceptible to these kinds of narrow investment. The lines of force are so clear and the arguments made on both sides are so ingrained that they stimulate opposite trains of thought in habitual reaction to each other. Continuing debate over the teaching of evolution proves the point, but so do many other trials of note. A last basic trait in human nature may be more important than all of the rest in clouding perception of a high-profile trial.

Although we would like to believe otherwise, a courtroom appeals at once to the best and the worst in us.

A painful recognition is at stake in this realization. The virtuous citizen who extols legal remedies is also the voyeur who enjoys the tragedy, the guilt, and the pain of others as a casual observer at trial.

Voyeurism is not just a factor; it is a central motivation in the way people regard a controversial trial. Moreover, this unpleasant but very natural propensity gets in the way of comprehension. Self-righteousness, vicarious excitement, sentimental identification, and intrusive curiosity are besetting flaws in courtroom observation.

To appreciate the point, one need only think of a few relatively harmless parallels: sports fans watch an automobile race in anticipation of a crash always included on highlight films , and the first expectation in an observed ski race or skating exhibition is the possibility of a spill. Against malice, willful misconstruction, and emotional fixation, there is no defense except for the law to disagree with each manifestation in clear and measured tones.

The legal process does so by insisting on our better selves, an aspiration that is essential to achieve even a modicum of justice. Trial procedures appeal to the sense of duty in performers, and they succeed most of the time, but the law has no comparable hold over the mere observer of a trial beyond the requirement of minimal decorum when in court.

Even attentive people can be confused by the variety of purposes at work in a courtroom. We tend to forget that trials perform many different functions at once. Most conspicuously, they resolve conflict, protect the innocent, punish the guilty, compensate for injury, and declare the law. But they also satisfy revenge, purge communal resentments, assign limits to deviance, identify acceptable otherness, give victims a say, rationalize change, place controls on the unknown, and publicize power.

At still another level, they publicize the available answers to a problem and guard the status quo ante by seeking to return a community to its place before the disruption of crime. These many functions compete with each other and complicate perception. Caught within them, though without an explicit role to play, is the participant observer, symbol of the public in a public trial.

This freely involved figure enters a courtroom as a passive witness present and watching but also as a secret sharer through personal identification and projection. The mere observer must abide by courtroom etiquette at all times under the threat of sanctions that apply to any other person in the presence of a presiding judge, but the participant within the observer remains otherwise free of constraints and can identify with any number of objectives and roles. The result is an inverse relationship.

Participant observers exemplify and strengthen public decorum through the passivity of their presence, but their interest in a case carries them beyond what is being said and done in court.

The sharp restrictions on courtroom officers, consigned to carefully defined roles, unleashes speculation in the participant observer over what is happening. Eager for what has been repressed in official behavior, the typical interested person enters a compensatory zone of alternative explanation. The restraint, regularity, gravity, measured pace, and tedium of courtroom procedures inspire hyperbole, spontaneity, humor, speculation, and transgressive behavior just beyond its boundaries.

Rare in is the outside commentator who does not joke about monkeys and exaggerate misbehavior in coverage of the Scopes trial. An official differentiation of forms exists side by side with a spontaneous communion of individuals in unstructured exchange.

High-profile trials are exciting by definition. Few who follow a trial remain indifferent to its appeal or the free-ranging commentary around it, and the patterns that control that appeal are yet another source of confusion.

Courtroom procedures are deliberately rote in their hope of avoiding unfair surprise, but they possess a peculiar allure in the familiarity of their forms. The patterns in trial procedures offer a regularity, a rhythm, and a progression that guarantee shared reception.