THE TRIAL
A History, from Socrates to O.J. Simpson
By Sadakat Kadri
Random House. 459 pp. $29.95
In September 2002, Israel put the Palestinian leader Marwan Barghouti
on trial for three lethal stabbings, two car ambushes and the thwarted bombing
of a Jerusalem shopping mall. Barghouti had not been present at any of these
terrorist attacks, but he was convicted of approving them as the leader of the
al Aqsa Martyrs Brigades, an armed wing of Yasser Arafat's Fatah
movement.
Barghouti's trial was supposed to showcase both Israel's suffering and
the fairness of its justice system. But the Palestinian defendant stole the
show. He did not allow his court-appointed lawyers to argue or question
witnesses on his behalf; nor did he represent himself. When he shouted, "I am a
fighter for freedom and for peace between two peoples," the presiding judge shot
back, "Freedom fighters don't turn children into bombs and murder people" -- a
slip that suggests she had already made up her mind about his guilt. Israel had
the power to sentence Barghouti to five life terms in prison (and an additional
40 years). But it could not prevent the trial from burnishing his star. When
Arafat died last year, Barghouti's support from prison helped clinch Mahmoud
Abbas's succession.
How did Barghouti turn Israel's power against it? By refusing to
recognize Israel's right to try him. In his eclectic history of the Western
trial, Sadakat Kadri sheds light on the uncertain legitimacy of war-crimes
trials from Nuremberg to the present. "The victors are the judges," Nazi
commander Hermann Göring sneered shortly before the Allies put him on trial in
1945. "I know what's in store for me." Spiteful as he was, Göring had a point.
Some of the Nuremberg charges were written by the judges and lawyers who then
prosecuted him. Defense lawyers were barred from introducing evidence that the
Allies themselves had committed war crimes such as the ones charged, though such
comparisons mattered for deciding what lay beyond the bounds of conduct. And
though the trials were supposed to establish individual guilt, they were
permeated by denunciations of the Germans as a people. "Emergence of the truth
was an almost coincidental side effect" at Nuremberg, Kadri concludes. When the
Allies gave up on bringing former Nazis to justice in 1949, the perceived
unfairness of the verdicts led West Germany not to accept them. "The upshot was
that none of the thousands of convictions imposed by the Allied tribunals, up to
and including that of Hermann Göring," writes Kadri, "would ever be recognized
as valid by the criminal justice system of the Federal Republic of Germany."
(Göring had already thwarted his captors, swallowing a cyanide pill the night
before he was to be hanged.)
Kadri's wide historical lens allows him to show how the flaws of the
past stubbornly crop up in the present. Slobodan Milosevic has successfully used
his ongoing trial before an international tribunal at The Hague to whip up
Serbian nationalism and, like Marwan Barghouti, to amplify his own popularity,
according to Kadri. To avert a similar outcome in Iraq, American legal advisers
are urgently trying to wrap the trial of Saddam Hussein in the cloak of domestic
Iraqi law predating the Baathist regime.
Meanwhile, the "double standards that have always bedeviled the concept
of universal rights," as Kadri puts it, are alive and well in the Bush
administration's fierce opposition to subjecting U.S. citizens (especially
troops) to the jurisdiction of the International Criminal Court, established by
160 countries in 1998. Like the Roman and British empires during their heydays,
the United States claims the exclusive right to try both its soldiers and its
enemies. Yet it barely punished the officers and soldiers responsible for the My
Lai massacre during the Vietnam War -- Lt. William Calley, fingered as the
on-the-ground ringleader, spent just three days behind bars. And it's hard to
argue with Kadri's conclusion that indefinitely detaining foreign terror
suspects at Guantanamo Bay, in defiance of the Geneva Conventions, has "done
more to damage the international reputation of American justice" than anything
since the days of Jim Crow.
Kadri is a practicing criminal lawyer in England rather than a
professional historian, and he skips through thousands of years in a few hundred
pages by telling stories and teasing out themes. Some of his choices are more
original than others; the path from the witch trials of medieval Europe to the
discredited accusations of Satanic ritual abuse at a California daycare center
in 1984 is a well-worn one. And at various points, the book might have benefited
from less storytelling and more argument. But when Kadri pauses for breath long
enough to develop a line of thought, he has interesting things to
say.
In particular, he is a smart critic of the virtue of public trials.
Today's trial broadcasts are what public executions used to be, he writes --
only worse. Occasionally, a clever defendant like Barghouti or Milosevic
succeeds in turning a trial into his own platform. More often, public trials
merely skew criminal justice toward conviction. When lawyers become celebrities
outside the court, "they turn to gladiators inside it, and restrictions on the
prosecution come to seem like unfair handicaps rather than the centuries-old
methods of avoiding mistakes that they are." Kadri argues that the 1980 Supreme
Court opinion that gave the media unfettered access to criminal trials placed a
higher value on what Chief Justice Warren Burger called the public's
"fundamental, natural yearning to see justice done -- or even the urge for
retribution" than on a defendant's right to a fair trial. In the wake of the
Michael Jackson and O.J. Simpson circuses, Kadri's argument for revisiting the
balance between openness and fairness is worth hearing.
But a 1978 Supreme Court decision may have the most significant effect
on the future of American trials. By allowing prosecutors to threaten a man with
life imprisonment for writing an $88 bad check when he refused to plead guilty,
the court approved no-holds-barred plea bargaining. Today, only about 5 percent
of defendants challenge the prosecution by taking their case to a jury for
trial. When Kadri's successor historians come along in a hundred years, they may
have fewer trials to work with. ·
Emily Bazelon is a senior editor at Slate and a Soros Justice Media
Fellow.