Book Excerpt: 'America on Trial'

May 20, 2004 -- In America On Trial , defense attorney Alan Dershowitz looks at some of the most significant trials in our nation's history, from the Salem witch trials to the O.J. Simpson case.

Here is an excerpt:

The Salem Witchcraft Trials

Date: 1692 Location: Salem, Massachusetts Defendants: Approximately twenty-five in 1692, but several hundred men and women were arrested and imprisoned on charges of witchcraft between 1648 and 1706Charge: WitchcraftVerdict: GuiltySentence: Thirteen women and six men hanged; one man pressed to death with heavy stones; at least four others imprisoned (two dogs were also executed as suspected accomplices)

Although the Inquisition never reached the colonies — Catholics were a tiny minority among the colonists — the Salem witchcraft trials bore some striking resemblances, writ small, to what had roiled the Continent two centuries earlier. They paralleled, in some ways but not in others, the trial of Joan of Arc in 1431. The pre-Enlightenment church was a dominant influence in the Bay Colony during the seventeenth century, but other influences were also at play against the women who were accused — primarily by other women — of the capital crime of witchcraft.

As is typical with most episodes of legal persecution, a small kernel of truth may have provided an early explanation, if not justification, for the concerns that led to the prosecutions. In a society that believed in the power of the devil and in the phenomenon of witchcraft, it should not be surprising that some young girls may well have experimented with magic spells and other aspects of the occult. Nor should it be surprising that some of the girls may have experienced the functional equivalent of psychosomatic symptoms of being bewitched — symptoms that were manifested by convulsions, fits, screeching, and pain. A doctor, summoned by the minister, diagnosed affliction by the devil, and before long dozens of "witches" were arrested and prosecuted. Informers named names, including those of a former minister and several young children. Nineteen people were hanged, others imprisoned. Several of the condemned were of Native American heritage. This, too, should not be surprising, since warfare between the Puritans and Indians was wreaking havoc among the Northern settlements. In a recent account of the trials, a distinguished historian found that "the key affected accusers in the Salem crisis were frontier refugees whose families had been wiped out in the wars. These young women said they saw the devil in the shape of an Indian."22 The Puritans needed a scapegoat to explain why "God's chosen people" were being slaughtered by the Indians. They decided that "their Indian enemies had the Devil on their side."23

In reading accounts of the witchcraft trials of three centuries ago, a modern-day lawyer's mind naturally turns to the roles played by the seventeenth-century lawyers, prosecutors, judges, and defense attorneys — and how they used the forms of the law to perpetrate such injustice. One courtroom observer criticized the magistrates' contributions to the increasing hysteria in Salem: "The chief Judge is very zealous in these proceedings, and says, he is very clear to all that hath as yet been acted by this Court, and, as far as ever I could perceive, is very impatient in hearing any thing that looks the other way."24 (I've certainly encountered judges like that!) Indeed, on several occasions, the Salem magistrates dispensed even with any pretense of impartiality. During one trial in May 1692, the accused said that she felt faint, and she asked the court if she might lean against her husband. "She had strength enough to torment those persons," the magistrate replied, "and she should have strength enough to stand."25 In his play and motion picture The Crucible, Arthur Miller apparently intended his audience to think about the McCarthy prosecutions of contemporary "witches" and those who refused to testify against them. The Crucible certainly made me think, as a young man interested in the law, about the relationship between legal procedures and justice. The descriptions of the legal proceedings by which citizens charged with witchcraft were tried make numerous references to justices, judges, and magistrates. There are prosecutors as well, though the roles of magistrate and prosecutor often seem to be merged. The Salem magistrates viewed themselves as inquisitors eliciting confessions and repentance, rather than interpreters of a body of law.26 Deodat Lawson, a courtroom observer, recounted an episode from the proceedings against Martha Corey: "On Monday the 21st of March, the Magistrates of Salem appointed to come to Examination of Goodow C. And about twelve of the Clock, they went into the Meeting-House, which was thronged with Spectators …The Worshipful Mr. Hathorne [the magistrate] asked her, Why she Afflicted those Children? She said, she did not Afflict them. He asked her, who did then? She said, 'I do not know.'"27

As Justice Hawthorne vigorously pursued a confession, Corey was confronted with the live testimony of some ten "afflicted persons," including three young girls. With the interaction among Corey and her accusers, the proceedings grew chaotic. Lawson "observed several times, that if she did but bite her Under lip in the time of Examination the persons afflicted were bitten on their armes and wrists and produced the Marks before the Magistrates, Ministers and others."28 One accuser "complained of grievous torment in her Bowels as if they were torn out," and hit Corey on the head with a shoe.29 Corey still did not confess, but she was convicted and hanged, along with six other persons, in September 1692.There are few references to defense attorneys, certainly not in the way we have come to know them over the past two centuries. It is clear that the principal legal officers in these notorious proceedings are the "honorable" and "distinguished" judges who conducted the trials, rendered the verdicts (sometimes with the assistance of a special jury), and imposed the death sentences.

As I read about the judges, I could not help wondering how our own Supreme Court and lower courts would react if a hysteria comparable to the witch trials were to occur today. I also could not help wondering whether the presence of a vigorous defense bar would not have made, and would not now make, a difference in the processes and outcomes of the cases.

There is, of course, some relevant history to look to for guidance. The Salem travesty was neither the first nor the last of its kind. The Spanish Inquisition employed the forms of the law and the legitimation of judges. Even in Hitler's Germany and Stalin's Soviet Union, "good" and "decent" judges went along to get along. During the McCarthy period in our nation, many judges willingly participated in the Red-baiting and career-destroying paranoia of the time; and during the Jim Crow era in the South, most of the judges perpetuated a system of apartheid that not only kept the races separate but also imposed a double standard of justice on blacks and whites. Although some of these ignoble judges believed in the "justice" of the cause they were serving, most were motivated by simple opportunism, careerism, and a need to please those in power. Today's "witches" may be those suspected of complicity with terrorism, especially if they are not citizens. Terrorism, unlike witchcraft, poses real dangers to vulnerable citizens, but what must be recalled is that in seventeenth-century Salem, many good people honestly believed that witches posed a real danger. Too many of today's judges are prepared to ignore — or manipulate — the law to assure that no one they release becomes the next Mohammed Atta or Osama bin Laden.

It is possible, of course, that, even without the complicity of the judiciary, people would have hanged witches, burned heretics, gassed Jews, shot "cosmopolitans," imprisoned fellow travelers, subjected blacks to apartheid, and denied due process to Muslims suspected of terrorism. Nevertheless, that the imprimatur of the judges legitimized entirely illegitimate undertakings becomes clear in reading these accounts of the witchcraft trials and seeing how the trials relied on the forms of the law. (It also becomes clear when one reads, as every judge should, the record of the Nuremberg trials of Nazi judges.)

Throughout history, some judges have had the courage to stand up to the abuse of the legal system. A few paid with their lives, others with their careers. In some instances, most notably McCarthyism, dissenting judges had an impact on slowing down and finally halting the evil. (During the McCarthy period, as distinguished from the others, vigorous defense attorneys also played an important role in vindicating the rights of the accused.) Even so, too few judges have risked going against powerful and popular tyrants. When I look at our current judiciary, especially the Supreme Court, I see some judges in the mold of those who went along with the excesses of tyrants. Oh, sure, today's judges would find some contemporary rationale for their unwillingness to intercede on behalf of the victims of tyranny: judicial restraint, executive and legislative prerogative, separation of powers, original intent, national security, and many other catchphrases can be selectively invoked to justify inaction. Nevertheless, the real reason why the Rehnquists, Scalias, and Thomases of today's judiciary would not intercede is that they are statists rather than true conservatives: Conservatives believe in limited governmental power over individuals; statists believe in virtually unlimited governmental power and limited individual rights (except, in some instances, when it comes to property rights or the right to bear arms).

Consider what former chief justice Warren Burger had to say in 1986 about the "crime" of private homosexual activity between consenting adults — a "crime" akin to witchcraft in many ways, including its biblical source and its lack of actual victims. In the case of Bowers v. Hardwick, Chief Justice Burger, in a concurring opinion, approvingly quoted Blackstone's characterization of "'the infamous crime against nature' as an offense of 'deeper malignity' than rape, a heinous act 'the very mention of which is a disgrace to human nature,' and 'a crime not fit to be named.'"30 The judges in Salem might also have quoted Blackstone on the evils of witchcraft (had his book, which was published a few decades later, been available to them): "The civil law punishes with death not only the sorcerers themselves, but also those who consult them; imitating in the former the express law of God, 'thou shalt not suffer a witch to live.' And our own laws [rank] this crime in the same class with heresy, and condemn both to the flames." (In June 2003, the Supreme Court reversed Bowers v. Hardwick, striking down a Texas law that prohibited private consensual sex between same-sex couples. "The petitioners are entitled to respect for their private lives," wrote Justice Anthony Kennedy for the majority. "The state cannot demean their existence or control their destiny by making their private sexual conduct a crime."31 The Court concluded that "Bowers was not correct when it was decided, and it is not correct today."32 Chief Justice Rehnquist, along with Justices Scalia and Thomas, dissented. You can read an account of the Texas sodomy case starting on page 551.)

Burger's successor, Chief Justice Rehnquist, has rendered similar decisions, nearly always siding with claims of governmental power over individual rights. This is especially true when rights have been claimed by weak and unpopular, even despised, minority groups. I can picture Rehnquist as a German judge during the 1930s and 1940s. (Indeed, when he was nominated to be an associate justice in 1971, I learned from several sources who had known him in the 1940s that as a Stanford Law School student, he had outraged Jewish classmates by imitating Adolf Hitler and goose-stepping around the campus with brown-shirted friends.) The German judges who were tried at Nuremberg included several distinguished jurists and professors with an authoritarian bent not so different from Rehnquist's. This is not to deny that Chief Justices Burger and Rehnquist have sometimes sided with unpopular individuals and against the prosecution, but the judges of Salem and Germany also occasionally acquitted persons accused of witchcraft or of violating the Nuremberg laws. Indeed, when challenged about their complicities in a system of injustice, many judges rationalized their participation by pointing to the ameliorative role they played in helping some victims of injustice. I have little confidence that most current Supreme Court and other federal and state court judges would act courageously and independently in the face of witchcraft trials today, especially if the atmosphere of the country were such that it would require personal and career risks to do so. Despite lifetime appointments, too many judges seek popularity and acceptance by the powers that be.

It seems more likely that several of our current justices and judges would become part of the problem, going out of their way to give an imprimatur to the evil at hand, as former chief justice Burger did in the homosexuality case and as numerous judges did during the McCarthy period. Nor is this an issue that falls neatly on any right-left continuum. In today's world, left-wing zealots on the bench — of which there are, thankfully, very few — also pose a danger of using the imprimatur of the law to exorcise their devils. For example, some feminist extremists regard sexual crimes-rape, pornography, and child molestation-as so heinous that even innocence should not be regarded as a valid defense!33 But the dominant contemporary danger still does come from the extreme right for two reasons: There are far more right-wing ideologues on the bench today than left-wing ideologues; and extreme right-wingers are more likely to be statists, especially during times of political right-wing domination. Former justice Robert Jackson, who took a leave from the Supreme Court to serve as our nation's chief prosecutor at the Nuremberg trials of Nazi war criminals, wrote of the role of judges and law in legitimating tyranny, "[t]he most odious of all oppressions are those which mask as justice."34 Jackson was echoing the caution of Lord Coke, expressed even before the Salem witch trials: "It is the worst oppression that is done by colour of justice." And Justice Brandeis warned us, three-quarters of a century ago, that even good intentions are no protection against zealotry: "Men [and women] born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men [and women] of zeal, well meaning but without understanding."35 We should keep the words of these great judges in mind as we recall the judges of Salem and as we assess our own Supreme Court.Most importantly, we should recall the cautionary words of Learned Hand about the limited role that judges can play in preserving our liberties: "Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no court to save it."36

This history should warn us never to abdicate to any branch of government-indeed to government at all-the job of keeping liberty alive. That is a full-time job for all citizens, especially those of us who carry the proud title of lawyer.

Excerpted from America on Trial by Alan M. Dershowitz, Copyright 2004.