The American Jury Trial

From The Implosion Conspiracy (1973) by Louis Nizer:

"Guilt or innocence used to be determined by trial by ordeal.  The accused would plunge his arm into boiling water to pick up a stone.  Then bandages would be applied by a Catholic priest, who attended for three days.  When unwrapped in his presence, if there was no scalding, he was innocent.  Another ordeal was walking over nine rods of hot plowshares.  Freedom depended on whether the accused's soles were not burnt.  The theory that God would intervene in each case to do justice was finally abandoned by the Catholic Church and outlawed by Henry III in England in 1219.

There followed trial by combat.  For centuries, duels with various weapons determined that the victor was righteous.  To overcome the possibility that God might not always choose to play his part against the iniquitous, disputants were permitted to select representatives for combat.

The present jury trial, developed under Anglo-Saxon law, nurtured by Judeo-Christian ethics, was the result of a slow and painful evolutionary process.

Why twelve jurors? That number has a mystical tradition. There were twelve gods in mythical history, twelve tribes of Israel and twelve disciples. Whatever the number, the multiplicity of lay judgments is intended to establish an approximate cross-section of opinion, which tends to cancel out prejudices or undue sympathies.

Fear of tyrants, or even of the power of benevolent governments, is responsible for the extraordinary obstacles we place in the path of the prosecutor.  The law has constructed a protective fence around the accused citizen. . . . Even if the jury believed they were guilty, it could not find them so, unless they believed them guilty 'beyond a reasonable doubt!' Thus, preponderance of evidence, which is all that is required in a civil case, is not enough.  The scales must not just tip, they must tip decisively.

Even if that severe test is met, the jury must be unanimous. If one juror is unconvinced, there can be no verdict of guilty.

The fact that they were indicted must not be considered by the jury as any indication of guilt, and the judge so instructed the jury.

The defendants need not take the stand to defend themselves. If they did not, the jury might not draw any inference against them for failing to do so.  The burden to establish their guilt rested entirely on the government and was not shared. . . . All litigants, including the government, stood equally before the law - so the jury was instructed.

There are many more protective devices for a defendant.  A jury of his peers, which means fellow citizens, who will apply their common experiences in life, decide his fate.  The judge is excluded from fact-finding.  He tells the jury so.  His function is to rule only on questions of law. The jurors are the sole judges of the facts.

Then there are rules of evidence, designed to weed out irrelevancies; hearsay (what someone else told the witness, when that someone is not available for cross-examination to test his veracity, and for the jury to observe him); conclusions rather than a statement of facts on which they are based, which prevent the jury from drawing its own conclusions; and hundreds of other precautionary rules which fill volumes marked EVIDENCE. . . .

Ceremonial tradition is as much a part of the judiciary as of royalty.  In England, judges wear white curly wigs, which frame the most nondescript faces with wisdom.  In France, lawyers wear black robes, with red or purple stripes to distinguish them from austere judicial robes.  In the United States, formality has been gradually crowded out by the notion that democracy is equalization rather than equal opportunity for un-equals.  The requirement that lawyers wear frock coats and striped pants when appearing before the Supreme Court of the United States or Appellate Courts has yielded to plain black or blue suits.  Even judges sometimes leave their black gowns in the robing room.

So judges have denuded themselves of adornments, which some might well use to look impressive, and warrant the appellation 'Your Honor' or 'Your Lordship.'

Nevertheless, no matter who the judge is, there is that moment of quickened anticipation when a brightly badged attendant emerges from the judge's chambers . . . and calls out "Everyone, please rise."

. . . The law is rarely prescribed in terms which permit precise application. Interpretation equivalent to translation is required. What is "due process" . . . what does the definition of "negligence" mean when it is defined as conduct contrary to how a reasonable man would act under the circumstances? How would a reasonable man act when his automobile confronts a problem at an intersection, at a certain hour, in certain light, and with variable counterforces in flow?

Contrary to some misconceptions, the judge cannot find the law by looking it up in a book.  He must look it up in himself.  What he finds there has been implanted in his daily experiences from childhood on.  His interpretive judgment is based on stimuli resulting from his religious, economic and social background.  His relationship with his parents, his sisters and brothers and friends; his illnesses; his sexual experiences and growth; the toughness he acquires from collisions in the competitive world, and the shield he builds to prevent it from encroaching on the soft core essential to his ideals; everything he reads; every person  he meets and every conversation he has; every admiration and hate he develops; every defeat and every triumph, often in trivial matters, which affect his psyche, not his worldly stance; these and infinitely more leave their marks inside him. Every man is a conglomerate enterprise, and his values and judgments derive from a mysterious jumble of life's acquisitions."

Louis Nizer (1902 - 1994) was a noted trial lawyer.  His book "The Implosion Conspiracy," published in 1973, was about the trial of Julius and Ethel Rosenberg for conspiracy to commit espionage which took place in 1951. 

LORD DENNING

This morning I finished reading Lord Denning: A Life (1993) by Iris Freeman.  This biography of English Judge Alfred Thompson "Tom" Denning (1899-1999) is a survey of the life and career of the most famous British Judge of the 20th Century.

When I began reading this book, about all I knew about Lord Denning was that he had served as "Master of the Rolls," which is a senior appellate judge position in England, and that he was noted as the most influential English judge of the twentieth century.

Denning is best described as the Earl Warren of the English Common Law on civil cases.  Denning always sought to do what he thought was substantial justice, and he never let a statute or a precedent to the contrary get in his way.

From a humble lower middle class family, Denning and his brothers and sister strove to achieve.  One of Denning's brothers finished his army career as a General and another as an Admiral in the Royal Navy.  One brother was killed in the First World War and another died from TB contracted while serving in the Navy.  While still a teenager, Denning served as a combat engineer in the Royal Army on the Western Front in 1918.  After the war he earned a degree in mathematics from Magdalen College, Oxford.  After teaching mathematics for a while and finding it boring, Denning turned to the law.  Denning was admitted to Lincoln's Inn in 1921.  After a pupillage in a barristers chambers, and passage of final bar examinations, Denning was called to the Bar in June, 1923.

Denning became a successful and much sought after barrister.  Denning's personal life was marked by tragedy.  For years Denning had pursued Mary Harvey, the daughter of an Anglican clergyman.  Mary had consistently rebuffed Denning's advances until 1930 when she finally agreed to marry him.  Six months before their wedding, Mary was diagnosed with the tuberculosis which would eventually kill her.  Mary and Tom had one son, Robert, born in 1938.  Mary died in 1941.  Denning later married a widow, Joan Stewart.  Joan and Tom remained married until Joan's death in 1992.

In March 1944 Denning was appointed a High Court Judge of the Probate, Admiralty and Divorce Division.  In 1945 Denning was transferred to the King's Bench Division.  While a judge of the King's Bench Division, Denning first came to public prominence when he was appointed to hear appeals of service men and women who claimed to have become disabled due to their war time service and who had been denied disability benefits.   Up to that time, the burden of proof was upon the claimant to prove that his disability was service related.  Denning ruled that the burden of proof fell upon the government to prove that the claimants injuries were not related to war service.  This ruling made Denning a hero to the British press and public.

One of Denning's most famous cases is Central London Property Trust Ltd. v. High Trees House Ltd.
The facts are as follows:  (from Wikipedia):  "In 1937, High Trees House Ltd leased a block of flats in Clapham, London for a rate of 2500 pounds a year from Central London Property Trust Ltd.  Due to the conditions during the beginning of World War II occupancy rates were drastically lower than normal.  In January 1940, to ameliorate the situation, the parties made an agreement in writing to reduce the rent by half.  However, neither party stipulated the period for which this reduced rental was to apply.  Over the next five years, High Trees paid the reduced rate while the flats began to fill, and by 1945, the flats were back at full occupancy.  Central London sued for payment of the full rental costs from June 1945 onwards."  Based on the doctrine of promissory estoppel, Denning ruled that if a party reasonably leads another to believe that he will not enforce his full legal rights that he may be estopped from doing so later.

The Temple of Promissory Estoppel, the High Trees Apartment Building

In October, 1948 Denning became a Lord Justice of Appeal or a "law lord" in the House of Lords.  Despite being the highest court of the United Kingdom, at that time the House of Lords were bound by their own precedents and could not overrule a previous case.  Denning struggled all his career against this rule.  Although Parliament finally granted the House of Lords the right to overrule their own precedents, to Denning's great chagrin the Court of Appeal was never given this right.

In 1962, Denning realized a life long career goal and returned to the Court of Appeal as Master of the Rolls.  The Court of Appeal sits in panels of three.  Denning was famous for being the dissenter.  Freeman recounts how Denning would turn to one of his colleagues and say
     DENNING:  "We are going to allow the appeal, aren't we?"
     1ST Lord Justice:   "No, Tom. We're not."
     DENNING:  "Very, well."
Then Denning would turn to the third judge and say:  "We're going to allow the appeal, aren't we?"
     2nd Lord Justice:  "No, Tom.  We're not."
     DENNING:  "Very well, then.  Both of you will have to dissent."

Although Denning is just about universally revered for standing up for the little man against the government and corporations, Denning is responsible for limiting the right of jury trial in personal injury cases in Britain.  Denning held that "the judge ought not, in a personal injury case, to order trial by jury save in exceptional circumstances.  Even when the issue of liability is one fit to be tried by a jury, nevertheless he might think it fit to order the damages to be assessed by a judge alone."

There is much in the legal landscape surrounding Lord Denning's career that is familiar to the American lawyer.  However, there is also a lot that is, quite frankly, alien.  The Supremacy of Parliament means that no act of parliament can be overturned or questioned in the courts.  The highest courts in the land are bound by their previous decisions even if they are now convinced that those decisions are wrong.  The idea that an appeals court can, on its own initiative, restrict the right of a Plaintiff to have their case decided by a jury strikes the American as almost tyrannical.

Denning became best known by the public for his investigation and report on the Profumo Scandal.  John Profumo was the Secretary of State for War in the British cabinet.  Stephen Ward was a doctor who specialized in acting as a pimp for the rich and famous.  Ward procured a call girl, Christine Keeler, for Profumo.  At the same time, Keeler was sleeping with the naval attache for the Soviet Embassy, Yevgeni Ivanov.  In 1963, the lid blew off the scandal and Profumo's affair with Keeler was publicly exposed.  The Prime Minister, Harold Macmillon, asked Lord Denning to inquire into whether there was any breach of national security.  Denning's 70,000 word report caused a sensation.  Although Denning concluded that was no breach of national security, the report gave all the juicy details and became a best seller.  The Daily Telegraph said that it was "the raciest and most readable Blue Book ever published."

Lord Denning on the day the Profumo report was released.

During his long career, Denning and his second wife, Joan, traveled all over the world giving speeches and lectures on the law.  Denning was much in demand as a speaker and lecturer.  Denning was also considered a hero to many law students in Britain and the Commonwealth Countries.  Even now, you can buy T-shirts which say "Lord Denning is My Homeboy."

Even though advancing in years, Denning refused to retire.  After turning eighty, like many old men, Denning began to have what can only be described as "diaherrhea of the mouth."  In a book titled What Next in the Law published in 1982, Denning suggested that blacks were unfit to serve on juries because they and other immigrant groups had different moral standards than white Englishmen.  The controversy caused by these remarks caused Denning to finally resign at age 83.

Even in retirement, Denning remained controversial.  In 1990 in an interview with author A.N. Wilson which was published in The Spectator, Denning said that the Guildford Four, suspected IRA terrorists whose convictions were overturned, should have been hanged.  "They'd probably have hanged the right men.  Just not proved against them, that's all."

Throughout his life, Denning was a devout Christian and a devoted member of the Church of England.  Occasionally, he let his conservative Christian beliefs dictate his judgment on cases.  Being morally opposed to divorce, Denning sometimes let his prejudices show.  In an infamous example, Denning once ruled that custody of a child should be given to the father because if custody were given to the mother there would be no hope of reconciliation.  In 1977 Denning told the Christian Lawyer's Fellowship "Without religion there can be no morality, and without morality there can be no law."

After a long and full life and career which spanned almost the whole of the twentieth century, Lord Denning finally died at age 100 on March 5, 1999.

I enjoyed reading this book, which was published seven years before Lord Denning's death.  Lord Denning's life and career has drama, romance, and intellectual stimulation.  Five out five gavels.



 

THE BATTLE FOR THE BLACK BALLOT

Poll taxes, literacy tests, and other tricks for years were used by Southern States to disenfranchise black voters.  Starting near the turn of the century in the late 1890s states began to create all white party primaries.  Since there was no alternative to the Democratic Party nominee in the general election in most of the South, for all practical purposes, the Democratic Party Primary was the election.

Like many other Southern States, the Texas Democratic Party limited participation in its primary to white voters.  This little book, The Battle for the Black Ballot: Smith v. Allwright and the Defeat of the Texas All-White Primary, details the legal battle to abolish the all white primary.

Thurgood Marshall

Led by Thurgood Marshall, NAACP lawyers convinced the Supreme Court of the United States in 1944 that the all white Texas Democratic Primary stripped blacks of any meaningful right to vote.  This was a long hard road.  The book details the legal history which led up the decision and the litigation which followed the decision as Southern States continued to resist.  This is excellent reading.  Five out of five gavels.

LEADING CASES IN THE COMMON LAW

Professor Brian Simpson (1931 - 2011) taught at the University of Michigan Law School from 1987 until his retirement in 2009.    A British citizen and a graduate of Oxford University, the Guardian said this about Simpson in 2011 its obituary following Simpson's death on January 10, 2011:

"Although his academic career was latterly spent mostly in the U.S., he remained a British liberal to his core and never became an American citizen.  He tended to spend the winter and spring in Ann Arbor, Michigan, but for the summer and autumn he was often at the then Public Record Office, now the National Archives, in Kew, west London.  He was elected a fellow of the British Academy in 1983, a fellow of the American Academy of Arts and Science in 1993, was visiting professor of legal science at Cambridge Universtiy 1993-94, and in 2001 was appointed an honorary Q.C."

The book under consideration, Leading Cases in the Common Law (1995) posits the thesis that there is no "science of law" and that leading cases must be studied in their historical and cultural context to really understand the rationale for the decisions. 

This is fascinating reading.  Starting with Wolfe v. Shelley (1581), which produced "The Rule in Shelley's Case" that generations of law students have been tortured with, Professor Simpson seeks to find the story behind the story.  Shelley's case did not really have anything to do with some philosophical rule regarding wills and deeds and had everything to do with Queen Elizabeth I and her government wanting to disinherit a wealthy Catholic recusant son in favor of the deceased's Protestant grandson who had the Queen's favor.  Of no real significance at the time, it only became "a leading case" because one of the winning lawyers, Edward Coke, reported the case in the series of case reports which he published.

Professor Simpson goes through and tells "the story behind the story" on a number of famous common law cases, beginning with Wolfe v. Shelley (1581) and ending with Carlill v. Carbolic Smoke Ball Company (1893) which generations of law students have been tortured with to understand the acceptance of unilateral contracts.

This is fascinating reading.  Every Anglo-American lawyer interested in the history of the Common Law should read this book.  Five out of Five gavels.

Alfred William Brian Simpson, Q.C. (1931 - 2011)

Professor A.W. Brian Simpson's last Michigan Law School class

A DEATH AT CROOKED CREEK

In Mutual Life Insurance Company v. Hillmon, 145 U.S. 285 (1892), the Supreme Court created an entirely new exception to the hearsay rule.  The rule that a statement of future intention by the declarant is not hearsay did not exist in the law of evidence prior to the Hillmon case.

John Hillmon

Hillmon involved a Kansas cowboy, John Hillmon, who left his new bride in the late 1870s to pursue establishing his own cattle ranch.  Before leaving his home in Lawrence, Kansas, Hillmon purchased $25,000 worth of life insurance from three different insurance companies.  ($25,000 was the equivalent of approximately $500,000 in current dollars.)  On the Kansas prairie, at a place called Crooked Creek, Hillmon was allegedly accidentally shot by his business partner.

Frederick Adolph Walters

Agents and attorneys of the insurance companies almost immediately sprang into action.  Although a coroner's inquest was held in Medicine Lodge, Kansas and determined that the dead man was John Hillmon and that he had died by accidental death, the insurance men had the body exhumed and brought to Lawrence where another inquest was held.  (It was later revealed that the county attorney, the coroner and the jurors had been paid by the insurance companies). This time, the coroner's jury found that the body was of an unknown individual who had been killed through foul play.

The corpse.  Is it John Hillmon or Hillmon's victim.

Sallie Hillmon, John's widow, filed suit in U.S. District Court against the insurance companies for breach of contract.  The insurance companies maintained that the corpse was actually the body of Frederick Adolph Walters, a cigar maker who had drifted to Kansas from Ft. Madison, Iowa.  Alvina Kasten, Walters fiancee had received a letter from Walters in which he told her that he was in Wichita and had been hired by a man named Hillmon to herd sheep because Hillmon had "promised me more wages than I could make at anything else."  Walters had disappeared and never been heard from again.  The insurance companies alleged that Walters had been killed by Hillmon and then passed off as Hillmon's body to collect the insurance proceeds.

Professor Marianne "Mimi" Wesson

The case eventually resulted in six trials, two resulting in verdicts for the Plaintiff which were both reversed by the Supreme Court, and four hung juries.

Professor Wesson and friend.

This very interesting book was written by University of Colorado law professor Marianne "Mimi" Wesson.  Professor Wesson is also the author of a series of mystery novels.  Where the historical record is silent, Professor Wesson has filled in the gaps with fictional accounts of what may have happened.

The book also recounts the efforts of Professor Wesson to identify the body of the man who was killed at Crooked Creek and solve the mystery.  Gaining permission to exhume the body, DNA samples were obtained from the nearest living relatives of Hillmon and Walters.  Unfortunately, water had seeped into the grave and only bone fragments remained from which no usable DNA could be extracted.  However, an expert compared photographs of the living Hillmon and Walters with photographs of the corpse and concluded that although the body might be someone other than Hillmon,  it was definitely not Frederick Walters as contended by the insurance companies in the six trials.

Professor Wesson at the grave of John Hillmon

Professor Wesson concludes that the U.S. Supreme Court created an entirely new rule of evidence just because they didn't like the jury's verdict and wanted an excuse to overturn the case.  The rule has been heavily criticized in other cases.  Why does a statement of intention have more reliability than any other hearsay statement?  As one reviewer of this book has said, should the statement "I intend to do my homework tonight," really  be admissible as evidence to prove that I did my homework but the dog ate it?

A Death at Crooked Creek is a really good read.  Five out of five gavels.

HISTORY OF AMERICAN LAW

Magnificent.  That's the best description I can give of Professor Lawrence Friedman's masterpiece.   If there is anything that Lawrence Friedman hasn't read about American legal history, I'd be surprised. From the first colonial settlements until the early years of the twenty first century, this book covers it all.

It would seem like this topic should be boring, but this is an engaging and engrossing book.  To a large extent the history of the American people is a history of their laws and legal systems.  Even the chapters about legal education and lawyers are not boring.

Why is all this important? "The law, said Justice Holmes, is a magic mirror, wherein we see reflected not only our own lives but also the lives of those who went before us.  Thus, a history of American law reflects the nation's history in all its manifold aspects.  Every important development in American life has had its impact on the law, from the founding of the Republic to the internal stresses of the society two centuries later."  Bernard Schwartz, The Law in America: A History (1974).

Five out of five gavels.