Читать книгу The Trial: A History from Socrates to O. J. Simpson - Sadakat Kadri - Страница 5

In August 1792, as the French Revolution hurtled towards its years of Terror, Paris was seized by panic. Armies from Prussia and Austria were marching on the capital to restore King Louis XVI to the throne, and radicals had responded by slaughtering several hundred of his Swiss guards and placing the royal household under arrest. To the sound of boots and drums and bells, the capital mobilized, aware that the commander of the invading forces had sworn vengeance on every Parisian if the king’s person was violated. When the Germans reached Verdun, just a hundred miles east, the possibility of a bloodbath became imminent. As fear mounted, the pamphleteers and propagandists of the Revolution identified a threat even closer to home than the Prussians: the thousand or so royalists and clerics who were being held in the municipal jails. ‘You have traitors in your bosom,’ warned Danton. ‘Without them the fight would have been soon over.’ ‘The prisons are full of conspirators,’ thundered the Orateur du peuple. ‘The first battle we shall fight will be inside the walls of Paris.’ The prescription of Marat was most precise of all. ‘The people’s duty,’ he wrote, was to ‘run [the traitors] through with a sword’.

It soon became clear that many Parisians were inclined to agree. As a train of cabs carrying some twenty captive priests inched its way through the seething capital on 2 September, one of the passengers, deluded or desperate, lashed out with a stick. It was a bad move. The man struck by his assault leapt onto the carriage step, thrust a sabre three times through its open door, and raised the glistening blade to the roaring crowd. The passengers in the cab were cut to pieces and at the convoy’s destination, a prison called the Abbaye, a mob broke down the doors and turned pikes and bayonets onto those who had survived. The murders set off a holocaust. Some twelve hundred prisoners were killed over the next four days and nights, despatched inside prisons that echoed with their screams and stacked high on streets and bridges that ran with their blood. It was the deadliest single atrocity in a Revolution that never lacked for violence – but it was distinguished by more than its scale. Almost as soon as it had begun, the Parisian authorities sent an urgent instruction to those carrying it out. The people’s enemies were not to be killed so quickly, it warned. They had to be tried first.

One of those who faced the revolutionary music was army officer François Jourgniac de Saint-Méard, who was taken from his cell in the Abbaye during the early hours of 4 September and led into a darkened chamber. About a dozen men were present. Some stood around in bloody shirts and aprons, machetes hanging from their waists; others dozed on the sidelines. Behind a bench at the far end, his gaunt features illuminated by the smoky flames of two torches, was the tall, dark, and tubercular figure of Stanislas Maillard, a 29-year-old veteran of the storming of the Bastille who had assumed the status of tribunal president. Saint-Méard was detained behind crossed sabres as a soused sansculotte handed up a reference for the 70-year-old man whose trial was reaching its conclusion. Maillard waved it aside. ‘They are useless, these appeals for traitors,’ he grumbled. ‘My hands are washed of it; take [him] away.’ As the old man was dragged to the back of the room, he struggled furiously with his captors. ‘It is frightful!’ he protested. ‘Your judgment is murder!’ Maillard scribbled into his files as the doors were opened onto the street. Men and women outside, skulking like dogs around an abattoir, suddenly galvanized into a pack. It swallowed its prey with a great roar. Maillard continued to leaf through his papers. ‘Another!’ he called.

Saint-Méard’s guards tugged him to the centre of the room. Shadows leapt as defendant and judges peered at each other across a table littered with pipes, inkstands, and half-drained bottles of liquor. Why had he been arrested, demanded Maillard. Saint-Méard replied that he was thought, wrongly, to have edited a royalist newspaper. A single lie, snapped another voice, would mean instant death. If he was innocent, why had he been charged?

He had begun to reply when a priest was suddenly hauled into the room. A stupefied Saint-Méard watched as the cleric was bombarded with a flurry of questions, sentenced to death, and then pulled away, pleading for mercy. The judges invited him to continue. How could they be sure that documents he had handed up were not forgeries? Saint-Méard suggested, very hopefully, that they should adjourn his case while they checked – only to be interrupted again. A jailer, pale with fear, burst into the room to report that a prisoner was clambering up the chimney. Maillard warned grimly that if he made good his getaway, the turnkey would pay with his life. Everyone’s attention switched to the new drama, as pistols were fired up the flue and a heap of straw was lit in the fireplace. Only when the would-be fugitive dropped into the hearth – where, stunned and ablaze, he was beaten to death – did the trial resume. You have told us many times what you were not, noted one of the judges, but what is it that you are? Saint-Méard desperately replied that he was a patriot and explained that, far from plotting against the Revolution, he had considered it too timid. The claim, addressed to men who were diligently murdering in said Revolution’s name, was an audacious one. None of his judges looked convinced. Most appeared unmoved. Some seemed asleep. But their inscrutability masked one final surprise.

‘I am for granting him his liberty,’ declared Maillard. His fellow judges expressed their agreement, with joy rather than reluctance, and an astonished Saint-Méard was embraced by his jailers. And as he was escorted into the street between the torches of an honour guard, the mob that had just torn a man limb from limb parted to let him through, with cries of ‘Vive la nation!’

Saint-Méard’s experience was far from unique. Around one in seven of those at the Abbaye were spared, and the acquittals were repeatedly greeted with jubilation or tears from judges, guards, and citizenry alike. Historians have typically characterized the trials as shams but, understandable as that is, it raises an obvious question – who was being fooled? Saint-Méard struggled to believe that the proceedings were something more exalted and succeeded to the extent that his life was saved. His judges were partners as much as adversaries, from the moment that they asked him to explain his arrest to the point when they freed him. Far from deliberately performing the preamble to a murder, everyone was longing to enact a dream of liberty, equality, and fraternity. And the delusions created their own reality.

The law has become so closely associated with reasoned deliberation that it is sometimes hard to think of criminal trials as anything other than inquiries – but they have always performed a function that goes far beyond that of establishing who did what to whom. The first judges were priests, whose punishments were as sacrificial as they were penal, and the law has ever since asserted the power most proper to gods: the ability to rebalance a cosmos knocked out of kilter. Since the days of ancient Athens, there is no wrong that it has not somewhere claimed to right – even when no human defendant has been available to carry blame. In the courts of early modern Europe, creatures from beetles to bulls were regularly prosecuted, defended, and condemned at public expense. English juries for several centuries returned homicide verdicts against mischievous objects from haystacks to locomotives. Lawyers discovered new categories of criminal, from traitors to werewolves, whenever popular passion or private fear required. The long arm of the legal process even reached into the grave: for well over half a millennium, the bodies of dead criminals were brought into court to be accused by witnesses, defended by advocates and, if convicted, punished by the public executioner.

The cowls have metamorphosed into gowns and the incantations have turned to jargon, but ancient impulses still quiver around every courtroom. Rational concerns and logical argument typify any given case, but the terror of infanticide and Devil worship that once sent witches to their deaths was resurrected, in the form of satanic sexual abuse allegations, during the 1980s. Animals and corpses are no longer put on trial, but the urge to punish defendants regardless of their mental state lives on in prosecutions of children and the mentally ill. Perhaps the best example of the continuing faith in legal omnipotence comes from a case that never quite happened. In the spring of 1949, the first president of the Israeli Supreme Court, Moshe Smoira, received dozens of petitions from Christian clerics around the world. His country was less than a year old and had just fought off five Arab armies committed to its destruction, but the writers had few doubts about the urgency of their appeal – and none at all concerning the legitimacy of the Jewish state. Would he please, they asked, reopen the proceedings of the Sanhedrin and overturn the conviction of Jesus Christ?

This book quickened in 2000 in London, where I had been working for seven years as a criminal barrister. Almost a decade before, I had lived in post-revolutionary Prague and had then been struck by the extent to which many Czechoslovakians seemed to be blaming others to avoid tough questions about their own contributions to the communist era. I had vaguely wondered then if such thoughts might stretch into a book on scapegoats and soon decided that they would not. The weird dynamic of naming and shaming continued to interest me, however, as I represented villains both innocent and guilty, and by 2000 I was ready to try again. This time, I had a far clearer structure in mind. By writing a history of the criminal trial, stories rather than theories would drive the book forward.

Events elsewhere would further delineate its structure. Before Prague I had studied at Harvard and qualified for the New York Bar, and it seemed a sensible idea – or at least a pleasant one – to relocate to the United States. I reached New York in the summer of 2001. By mid August I was ensconced in a small studio with a splendid view over Manhattan’s financial district. Thus it was that on 11 September I watched from my windows as the towers of the World Trade Center burned and collapsed. Over subsequent weeks I wandered a city in mourning, personally unable to write and convinced that little was now of less significance to anything than an analysis of the criminal trial. I would spend another two and a half years in the United States and my mood would pass. But others, many of them in high places, were expressing similarly gloomy conclusions about the redundancy of the criminal process – and in their case, the trauma would have lasting effects. Over the next few months, a landscape familiar to me since law school seemed sometimes to be melting away. Several legal commentators were suggesting that the constitutional right to silence should be abolished. A Harvard law professor whom I had once respected proposed that it might be time to introduce a right to torture in its place. The administration of President George W. Bush, meanwhile, embarked on a policy of deeming entire categories of people, American and foreign, to be subject to indefinite detention without a right of access to courts, let alone a right to public trial.

Emergency powers have been invoked to combat terrible crimes since the days of heresy and witchcraft, and the fact that twenty-first-century commentators were readopting stances that inquisitors had abandoned in the eighteenth soon reassured me that a little historical perspective would not go amiss. But the aftermath of September 11 also sharpened the focus of my book. I had always anticipated that a central theme would be the conflict between reason and emotion – a tension that galvanizes any courtroom – but in the new climate a more fundamental aspect of that link came to the fore: why trials take place at all. For at the same time that hundreds of people were being accused without prosecution, official talk of justice – and even Infinite Justice – was reaching a crescendo. Governments are not the only component of a criminal justice system, but the reasons that they avoid courts increasingly came to seem at least as significant as the reasons that they resort to them. The relationship between secrecy, publicity, and transparency consequently became central to my book.

From the very outset, I chose not to conduct interviews. Contemporary topics such as capital punishment and the war on terror would have called for a range of views from participants ranging from defendants to judges. Anthropologists, sociologists and political scientists, not to mention historians and lawyers, might all have had other worthwhile things to say. Finding experts to cover every subject evenly would have been beyond my time and inclination. The book quotes from countless chronicles, pamphlets, transcripts and newspaper reports but mine is the only voice to keep the babble in line.

The task that lay ahead when I began was a daunting one. The tale I intended to trace began more or less at the dawn of time, hopped back and forth between centuries, and demanded that I address subjects as dark as child abuse and terrorism with as light a touch as possible. It was a tall order, and attempting to fulfil it gave the book a very particular structure. Rather than use a straightforwardly chronological approach, which lacked flexibility, or compile a compendium, which would have bored me let alone anyone else, I divided the work into eight thematic chapters that proceed in roughly historical order. They begin with the religious rituals of the classical and barbarian worlds and end in the trial circuses of today, and several address specific aspects of twenty-first-century justice. Each dovetails into the next and with luck, they combine to form more than the sum of their parts.

Several ideas run through the chapters, but one simple theme could be said to link them all: the tension inherent in the criminal process between the desire to punish and the fear of making a mistake. Courts have collectively spilled at least as much blood as the people they condemned, but they have always aspired to more than violence. The oldest laws yet to be discovered, enacted by Babylon’s King Hammurabi in the eighteenth century BC, worried about injustice to the extent that false witnesses were to be punished as harshly as those who were properly convicted. And although the sword of righteousness has been in play since King Solomon, confronted with two women claiming the same child, threatened to slice it in two and wisely surmised that the impostor was the one who agreed. Justice has wielded another tool for even longer. Four and a half thousand years ago, when Hammurabi’s dynasty was unknown and Athens’ Golden Age shimmered as far in the future as it now lies buried in the past, the priests of Egypt were already venerating the goddess Ma’at, whose scales measured out justice for the dead. In the Hall of Two Truths, watched by a horrid hybrid of cat, crocodile and hippopotamus called Am-Mit, she would place the hearts of those who had just died on one pan, and drop the feather of truth onto the other. If the feather sank, the departed soul would gain entrance to the Kingdom of the Dead. But if it rose, outweighed by the heart’s burden of deceit, Am-Mit would be fed – and its owner would be abandoned to oblivion.

The balance remains the most potent image of justice in the Western world. But as it migrated into modern Europe from Egypt and Babylon, via Jews, Greeks, Romans and barbarians, the meaning of its symbolism would be decisively transformed. No story better exemplifies that than one from the career of Sir Edward Marshall Hall, a famous British barrister of the early twentieth century.

Marshall Hall was defending one Edward Lawrence, charged in 1909 with having murdered his lover with a gun. Lawrence entered the dock with one foot already on the scaffold. He had admitted to police that he had shot her, and declared that he was ‘glad’ to have done so, because she was ‘wicked’ and ‘best dead’. But by the end of the defence case, words that had seemed so damning no longer sounded worse than callous. Lawrence had claimed from the witness box that the victim died accidentally as he was pulling a gun from her. He had re-enacted the struggle three times, so convincingly that even the judge was privately persuaded of his innocence. More than twenty witnesses had told the jury about the victim’s ferocious temper and frequent threats against Lawrence. By the time that Marshall Hall came to make his final speech, a case that had seemed black and white was turning very murky – and it was to uncertainty itself that he now appealed. Standing with arms outstretched, he asked the jurors to imagine ‘a great statue of justice holding those two scales with equally honest hands’ and began methodically to go through the evidence for and against his client. First one side, and then the other, he told them – swaying all the while – might seem lower. It might be almost impossible to say which side was closer to the ground. And as the jurors watched, entranced, came the punchline.

Then in the one scale, in the prisoner’s scale, unseen by human eye, is placed that overbalancing weight, the weight of the presumption of innocence…it is your duty to remember the invisible weight of that invisible substance.

With those words, he let one arm drop with a thud to the bench. The jury acquitted after twenty minutes.

The journey from the Hall of Two Truths to the Old Bailey is a vast one. It crosses from the marbled courtrooms of Athens to the ordeal pits of Anglo-Saxon England, passing from the torture chambers of the Inquisition to the judicial theatres of Salem in the 1690s and Moscow in the 1930s. Justice and vengeance, secrecy and spectacle, and superstition and reason intertwine continually along the way, but this book’s trajectory is a straightforward one. At a time when governments appear increasingly unsure whether the criminal trial is a dispensable relic or a touchstone of liberty, it explores why the West came to regard the invisible doubt as a more reliable guide to justice than the feather of truth.

This book is concerned with only the Western legal tradition, and although it covers continental law in some detail in the first few chapters, its modern focus is on the Anglo-American jury trial and the war crimes trial. Any attempt to broaden its scope would have required either oversimplification or a work twice as long, and would probably have produced both. Whether the quality of Western justice is better or worse than that of the justice of other cultures is a question that I have happily ducked. The book’s subject is the brutality or nobility of the West’s institutions, and the extent to which those institutions have honoured or betrayed the ideals for which they claim to stand.