Jury trials, way back

 

 

 

 

 

 

 

 

 



. . . As was usual, Raleigh had not seen the indictment before coming into court, and he now heard for the first time that he had supposedly agreed with Cobham to raise rebellion on behalf of Spain’s king and hand James’s crown to a Catholic pretender. That came as little surprise, but Coke then continued, apropos of nothing very much, with lurid accounts of the conspiracies for which the other plotters had been convicted two days before. Raleigh listened in silence for several minutes, before pointing out that their crimes had nothing to do with him. Coke did not deign to reply directly. “Like Sampson’s foxes, [the treasons] were joined in the tails though their heads were severed,” he pronounced, before stitching together several non sequiturs of his own. Treason, he explained to the jury, had its root, bud, blossom and fruit, and this was treachery so radical that it had not even been put into effect. The others had already been convicted of plotting against “the [king] and his cubs,” he pointed out, before swiveling towards Raleigh. “But to whom, Sir Walter, did you bear malice? To the royal children?” As though accosted by a drunkard with a knife, Raleigh’s reply was nervous courtesy itself. “Mr. Attorney, I pray you to whom, or to what end speak you all this? . . . What is the treason of [the others] to me?”

            

William Howe’s most remarkable talent, a skill that won him plaudits from colleagues and hoodlums alike, was an apparent ability to weep at will. Although some of his fellow Manhattan attorneys suspected that that he used an onion-scented handkerchief to get in the mood, the ducts, once opened, flowed steady as a siphon, and never were they deployed more effectively than during his summation in 1887 for a client named Edward Unger. The trial had left Unger not so much with his foot on the scaffold as his neck in the noose. He had admitted his hatred for the victim, one August Bohle. He acknowledged battering him with a hammer, dismembering his body, and shipping his limbs and trunk in a box to Baltimore. He also accepted that he had taken Bohle’s head on a trip to Brooklyn and dropped it off an East River paddleboat. It was hard to identify any doubt, let alone a reasonable one, from the evidence. But as the handkerchief hit Howe’s forehead and his eyes began to shine, an argument, if not quite a defense, swirled out of the maelstrom. Unger had three children, including two daughters who had been clinging to him throughout the trial, and – although Howe begged the jurors not to let that sight cloud their judgment – it was to their tragedy that he turned. For Edward Unger’s only crime, he insisted, had been to spare the little ones the sight of death. He was no guiltier than the girl being dandled on his knee. “It was his son that cut up his body,” he sobbed. “It was that beautiful child that used the saw; it was the elder sister that throw [sic] the head in the river.” Reminding the jurors that there were no eyewitnesses to the killing, he pleaded with them not to make up the deficiency with logic. “Did you leave your homes to hang a man upon inference or your reasoning?” he demanded. “God forbid.” The point was, in every sense, a rhetorical one. Unger was found not guilty of murder.

             The skill with which Howe could cry was exceptional, but the existence of the talent was not. At the same time that he was jerking tears from Manhattan jurors, the Tennessee Supreme Court had cause to consider the appropriateness of crying counsel in general. It did not only reject a claim that the public displays of emotion were wrong; it affirmed that they might be positively desirable things. “Tears have always been considered legitimate arguments before a jury,” it ruled in 1897. “Indeed, if counsel has them at his command, it may be seriously questioned whether it is not his professional duty to shed them whenever proper occasion arises.”

Judicial weeping remains a vibrant tradition in parts of the United States, nowadays kept alive primarily by prosecutors, and courts of appeal remain almost as sympathetic as they were in 1897. In order to overturn a conviction, the defendant must show that the prosecutor’s tears were deliberate or that they directly prejudiced the likelihood of an acquittal, and none has ever succeeded in doing so. The issue arises most often south of the Mason–Dixon line and was ruled upon most recently in January 2003, when Florida’s Supreme Court declined to grant a retrial to Dusty Ray Spencer, who complained that his prosecutor had cried while asking the jury to convict him of capital murder. Its judges noted that the court below had found that she had only “quavered” during her summation. She had in any event turned away and “composed herself” before continuing. Because Spencer had produced no proof that she had physically shed a tear there was therefore no unlawful error, and his lethal injection could proceed.

 

 

Oozing a vitriol that still hisses from the page, Coke finally homed in on his quarry. “I will then come close to you. I will prove you to be the most notorious traitor that ever came to the bar.” Raleigh replied that if the lawyer could prove anything at all, he would admit not just that he was a traitor but that he was ‘worthy to be crucified with a thousand torments.” “Nay, I will prove all,” growled Coke. “Thou art a monster; thou hast an English face, but a Spanish heart.” He continued with another sustained attack on various betrayals supposedly committed by Lord Cobham, who was awaiting his own trial in a dungeon below the court. “What is that to me?” Raleigh demanded. “If my Lord Cobham be a traitor, what is that to me?” Coke erupted with anger. “All that he did was by thy instigation thou viper, for I thou thee, thou traitor!”

 . . . and less way back