The Witch No. 1 by J.E. Baker. Source: Library of Congress
Published: January 29, 2016
In April 1836, a 19-year-old clerk named Richard Robinson was accused of murdering Helen Jewett, a high-end prostitute at a New York brothel. The city erupted into a frenzy. Tabloids proclaimed the lurid details of the case, moralists wrote pamphlets condemning “dens of infamy,” and newspapers printed word-for-word transcripts of the trial proceedings. But as in many highly-publicized trials today, the media circus was about something bigger—anxieties over class, wealth, and morality in America.
On this episode of BackStory, the Guys will explore our fascination with courtroom drama. What makes for a compelling case and why have some landmark proceedings received little attention? We’ll consider why so many Americans followed the trial of a young clerk accused of murdering a New York City prostitute in 1836, and why we’re still talking about Sacco and Vanzetti nearly a century after they were sentenced to death. From public hanging in Puritan Massachusetts, to the murder trial of Black Panther leader Huey Newton in the late 1960’s, the Guys will reveal the deep-seated issues beneath American trial-watching.
Brian talks to historian Patricia Cline Cohen, from the University of California, Santa Barbara, about the trial of Richard Robinson. Robinson was accused of the 1836 murder of Helen Jewett, a prostitute whose bed was set aflame after she was killed in it.
eJoseph A. Rice, Ph.D., Dr. Rice is President of Jury Research Institute, a national trial and jury research firm. Dr. Rice provides particular expertise in research design and statistical analysis related to jury selection and juror behavior, the evaluation and testing of case themes, witnesses and evidence in order to provide clients with an objective and realistic assessment of potential liability and damages. Through the use of focus groups, mock trials and surveys, Dr. Rice has been able to assist litigants in critical decisions related to discovery, settlement and trial strategy.
eDaniel Cohen, Daniel Cohen is an associate professor of history at Case Western Reserve University. He is the author of “'Hero Strong' And Other Stories: Tales of Girlhood Ambition, Female Masculinity, and Women’s Worldly Achievement in Antebellum America," "The Female Marine and Related Works: Narratives of Cross-Dressing and Urban Vice in America’s Early Republic" and "Pillars of Salt, Monuments of Grace: New England Crime Literature and the Origins of American Popular Culture, 1674-1860."
ePatricia Cline Cohen, Ph.D., Patricia Cline Cohen is a research professor of history at the University of California, Santa Barbara. She is the author of "The Murder of Helen Jewett: The Life and Death of a Prostitute in Nineteenth-Century New York."
eRisa L. Goluboff, Ph.D., Risa Goluboff is dean elect of University of Virginia's Law School. She studies American constitutional and civil rights law, and especially their development in the twentieth century. In addition to numerous shorter works, Goluboff is the author of two books. Her first book, The Lost Promise of Civil Rights (Harvard, 2007), won the 2010 Order of the Coif Biennial Book Award and the 2008 James Willard Hurst Prize. Her second book, Vagrant Nation: Police Power, Constitutional Change, and the Making of the 1960s (Oxford, 2016) was supported by a 2009 John Simon Guggenheim Foundation Fellowship in Constitutional Studies and a 2012 Frederick Burkhardt Residential Fellowship from the American Council of Learned Societies. Goluboff is also co-editor (with Myriam Gilles) of Civil Rights Stories (Foundation Press, 2008).
eMary Anne Trasciatti, Ph.D., Mary Anne Trasciatti is an associate Professor in the Department of Rhetoric at Hofstra University. She is drawn to the discipline of rhetoric for its power to generate knowledge and create community as well as its usefulness as a resource for social advocacy. She teaches a variety of undergraduate and graduate courses, including history of rhetoric, persuasion, public address, women’s studies, and labor studies. Her current scholarly, creative, and activist work comprises three ventures: 1) A book about the free speech work of labor organizer Elizabeth Gurley Flynn that illuminates how early twentieth-century radicals created and used public space to advocate for economic justice; 2) An oral history project to record, preserve, and represent stories about Superstorm Sandy as narrated by residents of the barrier island coastal community of Long Beach, NY; and 3) A campaign to remember the 146 victims (mostly young Italian and Jewish immigrant women and girls) of the 1911 Triangle Shirtwaist Factory Fire in New York City and the resulting movement for workers’ rights and safety with a permanent public art memorial.
eElizabeth Williams, Elizabeth Williams' artwork has been published on the front pages of The New York Times, The Wall Street Journal, USA Today, The New York Post and Newsday. She has worked for numerous news organizations on both coasts, including CBS, NBC and ABC News, Associated Press, CNBC and Bloomberg News, drawing trials of the famous and infamous including: The Times Square Bomber, Bernard Madoff, Martha Stewart, John Gotti, Robert Chambers, John Gotti and John DeLorean. . Her work has been exhibited in juried shows at the Society of Illustrators in N.Y. and L.A., The New York City Police Museum, John Jay School of Criminal Justice, N.Y., New Jersey’s William Brennan Courthouse and Conejo Art Museum, CA. She is co-author of "The Illustrated Courtroom: 50 Years of Court Art."
eYohuru Williams, Ph.D., Yohuru Williams is a professor of history at Fairfield University. He is the author of Black Politics/White Power: Civil Rights Black Power and Black Panthers in New Haven (Blackwell, 2006) and Teaching U.S. History Beyond the Textbook (Corwin, 2008). He is the editor of A Constant Struggle: African-American History from 1865 to the Present, Documents and Essays (Kendall Hunt, 2002), and the co-editor of In Search of the Black Panther Party: New Perspectives on a Revolutionary Movement (Duke University, 2006), and Liberated Territory: Toward a Local History of the Black Panther Party (Duke University, 2009). He also served as general editor for the Association for the Study of African American Life and History's 2002 and 2003 Black History Month publications, The Color Line Revisited (Tapestry Press, 2002) and The Souls of Black Folks: Centennial Reflections (Africa World Press, 2003). Dr. Williams also served as an adviser on the popular civil rights reader Putting the Movement Back into Teaching Civil Rights.
eDonna Murch, Ph.D., Donna Murch is an associate professor of history at Rutgers University. Her teaching and research specializations are historical studies of mass incarceration/war on drugs, Black Power and Civil Rights, California, social movements, and postwar U.S. cities. She is currently completing a new trade press book entitled Crack in Los Angeles: Policing the Crisis and the War on Drugs, which explores the militarization of law enforcement, the social history of drug consumption and sale, and the political economy of mass incarceration in late twentieth century California. She is the author of "Living for the City: Migration, Education, and the Rise of the Black Panther Party in Oakland."
A photo story about the courtroom sketches of Elizabeth Williams.
Trial By Jury/Making A New Case/Let’s Go See A Hanging
PETER: This is BackStory. I’m Peter Onuf.
MALE REPORTER 1: you’re looking for your next big binge, you might want to check out the Netflix original docuseries Making a Murderer.
FEMALE REPORTER 1: It quickly became a phenomenon. It has more than 200,000 people–
PETER: Those are the hosts of NBC’S Today show earlier this month noting public pleas to pardon the subjects of a new crime documentary. But Americans using the court of public opinion to relitigate trials is nothing new. In the 1920s, two men convicted of murder published prison letters to garner worldwide sympathy.
FEMALE SPEAKER: That they could write so eloquently was considered by many people to be further evidence that they couldn’t possibly have done this. How could they be killers? They write such great letters.
PETER: From unrepentant pirates of Puritan New England to crimes of passion in the 1830s, we’ve got a history of trial watching today on BackStory. Major funding for BackStory is provided by The [INAUDIBLE] Khan Foundation, The National Endowment for the Humanities, The Joseph and Robert Cornell Memorial Foundation, and The Arthur Vining Davis Foundations.
MALE SPEAKER 1: From The Virginia Foundation for the Humanities, this is BackStory. We’re the American History Guys.
BRIAN: Welcome to the show. I’m Brian Balogh, and I’m here with my buddy, Peter Onuf.
PETER: Hey Brian.
BRIAN: And my friend Ed Ayers is here with us.
ED: Hey gentleman. We’re going to start today with a guy named Joe Rice, and he has a very particular set of skills.
JOE RICE: I’m a clinical psychologist by training, and I have worked for the last 27 years as a jury consultant.
ED: Rice spends a lot of time analyzing American attitudes toward crime and punishment, especially our fascination with trials.
JOE RICE: We have this interest in looking at conflict and evaluating human conduct, and making a determination about whether that conduct is reasonable or not reasonable, criminal or not criminal.
ED: As a consultant, Rice helps select juries. Now, you might think jury duty is something most people try to avoid. But Rice is focused on the jurors who want to get picked. And sometimes that can be a problem, especially if those potential jurors have strong opinions about the issues at hand.
Rice worked on a few cases that had been in the news before the trial started. One was the OJ Simpson civil case, which happened after his criminal trial had been broadcast gavel to gavel on live television for months.
JOE RICE: The OJ case was particularly challenging because it was such a polarizing event. And I’ve worked on cases that have, kind of, come out of the 2008 crash of the housing market. But like the OJ case, people have strong feelings about what caused the crash of 2008.
ED: In those cases, months of press coverage had hardened public opinion. So potential jurors may have prejudged the case, or maybe they want to feel like they’re inside a real-life episode of CSI. Or maybe they want to make money.
JOE RICE: It’s an opportunity to be on a headline case, and thinking about, gee, maybe I could write a book when this is over. Or an opportunity to have influence on the outcome of a cast.
ED: But for a jury to function, the people sitting in the box need to be unbiased. So Rice helps the defense or the prosecution strike those people from juries. He says that for the American legal system to operate properly–
A juror, once accepted onto a trial and swearing an oath, is saying that they will accept only the evidence put forth under the rules of the court as their deciding factor in the case. Once we get the trial started, then it has to operate under the rules of the game.
ED: For example, jurors can’t know about a defendant’s prior criminal record.
JOE RICE: They don’t get to hear that in a trial. I mean, the trial is about, in a criminal case, whether you did this crime on this day. Did you commit a burglary on this day? Is the evidence there to support that?
ED: Now, Rice has found that most jurors are very conscientious. They play by the rules. But he admits that all these legal procedures can be confusing and unsatisfying. Jurors might find that a defendant isn’t guilty beyond a reasonable doubt, but they don’t necessarily hear the full story.
JOE RICE: And so many times they’re frustrated by the types of evidence that is withheld. That a trial under the rules is somewhat limiting. That’s an uncomfortable place for many jurors. They want the result of a trial and the result of a deliberation to be about the truth and justice. There’s a desire to see– I want to know the rest of the story.
ED: In the past year, many Americans have been turning to the media for the rest of the story.
MALE REPORTER 2: People waking up this morning with Serial on their mind. We’re not talking about Lucky Charms, we’re talking about the murder mystery that took place back in 1999.
MALE REPORTER 3: This weekend, a new weekly documentary series, Jinx: The Life and Deaths of Robert Durst debuts on HBO.
MALE REPORTER 4: It’s the latest binge-watching obsession on Netflix. The 10-part documentary follows the case of Steven Avery.
The podcast Serial, HBO’s The Jinx, and the Netflix series Making a Murderer have captured the public’s attention by effectively reopening and retrying old cases. Rice says these programs are popular because they’re not constrained by the rules of procedure in a trial.
JOE RICE: The system deserve to have checks and balances, just like any other system. And it plays into the jury and our community’s desire at the end of the day to know the truth. And that’s part of the frustrations of being a juror is you may walk out of there not really knowing what the truth is. So to the extent that these outlets provide an opportunity to explore, it allows jurors to get answers to questions that may never have been fully answered before.
ED: Rice reminds us that this fascination with trials didn’t start with binge-watching Netflix.
JOE RICE: I mean, if you look back in media, there’s always been a court kind of TV show. We’ve always been fascinated with– it started with, I guess, Divorce Court in the ’50s and ’60s, and, you know, Judge Judy, et cetera. It’s drama.
BRIAN: So today we’re exploring that drama within an hour on the history of American trial watching. We’ll take you to 19th-century courtrooms filled with sordid tales of sex and murder, and explore how a high-profile murder trial vaulted the Black Panther Party onto the national stage. We’ll also talk to a courtroom sketch artist, who tries to capture the drama of high-profile trials with a few artful strokes.
ED: But first, let’s travel to colonial New England. Now, trial watching didn’t exactly exist back then. Most trials were closed to the public. Instead, citizens gathered to watch criminal executions. It was actually encouraged.
DAN COHEN: Public hangings were almost certainly the preeminent spectator events in early America.
ED: This is historian Dan Cohen.
DAN COHEN: Thousands of people would attend gallows. In some cases, the crowds at executions would exceed the entire populations of the towns in which they were held.
ED: Cohen says these executions served as warnings to the general public, but they also served another purpose. While today’s public might look to the trial and media for crimes and narrative, executions in the 17th and early 18th century were storytelling venues, and those stories were mostly written by Puritan clergy.
DAN COHEN: Puritan ministers were the preeminent cultural arbiters throughout New England and especially in Puritan Massachusetts during the colonial period. And they weren’t very surprised about crime at all. They expected it because of natural depravity. All human beings were prone towards sin, and in fact, all human beings would become egregious criminals were it not for God’s restraining grace. So when someone became a serious criminal, such as a murderer or a robber or a rapist, they weren’t very surprised. It was to be expected given human nature.
ED: How did criminals understand what they had done? Did they accept this narrative?
DAN COHEN: Well, some did and some didn’t. Some of the pirates who were executed during the early 18th century in Massachusetts were defiant, but many other condemned criminals actually did. They were intensely proselytized while in jail awaiting execution by entire teams of local ministers. And some of them, in fact, were born again in jail awaiting execution. And so by the time they were executed, they were actually presented to the broader community as spiritual models assumed to be heading to heaven.
ED: And you might even say that crime is a good, or at least a useful, thing in the context of Puritan community life. Yet what is entertaining about the actual event of a hanging particularly when those being hung will give last statements? They have last words to offer.
DAN COHEN: Well, the last words of the criminals at the gallows could be entertaining if, in fact, they had achieved salvation. That could be very dramatic for them to express their remorse, and to express their confidence that they would soon be joining God in heaven. On the other hand, those condemned criminals who were defiant could also be quite entertaining.
ED: Right, exactly.
DAN COHEN: So, for example, pirates might warn ship captains not to mistreat their men so as to provoke their sailors to become pirates. So if the context of a public execution of a person facing death is intrinsically dramatic, ministers actually published the sermons that they delivered either on the day of the execution or on the Sunday prior to the execution. The statements of condemned criminals were attached, and in some cases, the criminals really hijacked the publications emerging as the heroes or the heroines of the story.
ED: Dan, do you have a particular example of how the criminal hijacks or takes over his or her own narrative? Because sometimes, of course, we’re talking about women.
DAN COHEN: Well, in one case in 1701, Esther Rogers was a young woman who was executed for killing her own illegitimate newborn infant. And she was an exemplary case of a criminal who was proselytized in jail while awaiting execution and was even being proselytized as she walked to the gallows. And in order to test whether her faith and her conversion was real, the ministers actually berated her as she walked toward the gallows, confronted her with her crimes, and asked how she could face eternity in light of her crimes. And she actually wheeled around, looked them in the eye, and told them that she had been forgiven by Christ and, you know, expected to meet him in heaven.
So somebody who in life had been a humble servant, who would never have looked a minister in the eye, was by virtue of the process of conversion able to gain a measure of self-confidence and self-respect, and actually face down the clergy, and do so on their own terms. Though I should add there were members of the community who didn’t necessarily approve of this reality show, since, after all, it involved potentially turning a condemned criminal into a cultural hero.
ED: I wonder if you could suggest ways in which that dominant Puritan culture gives way in the 18th and 19th centuries. Why did clergymen lose their monopoly, their control, their authority over the interpretation of crime?
DAN COHEN: Well, that happened partly because execution sermons, they could be profitable for the printers who produced them. And so once crime publications became profitable commodities, printers began to edit them themselves. And once the ministers had been cut out, printers would publish the statements of condemned criminals, even if the condemned criminals were defiant. Even if they hadn’t been born again. Even if they claimed that they were, in fact, the victims of unjust convictions. And so by the Revolutionary period and by the late 18th century, some of the most popular and frequently reprinted criminal narratives involved cases where the condemned men or women claimed that they were victims of miscarriages of justice, that they were not, in fact, guilty of the crimes for which they were being executed.
PETER: Dan Cohen is a historian at Case Western University. He’s the author of Pillars of Salt, Monuments of Grace: New England Crime Literature and the Origins of American Popular Culture. If you head to our website, you can hear more from Dan Cohen. He’ll tell you all about how 19th-century lawyer politicians picked up on the legacy of Puritan ministers in the courtroom. Just head to backstoryradio.org. Earlier we heard from Joseph Rice, the President of the Jury Research institute.
The Burning Bed/Trial of the Century? Not So Much
ED: We’re going to turn now to a case filled with murder, sex, and intrigue, one that dominated headlines in its day. But the trial wasn’t just tabloid fanfare. It also put the industrial revolution on trial.
BRIAN: Our story begins with a murder on April 10th, 1836 in New York City. A high-class prostitute named Helen Jewett was found dead in a brothel.
PATRICIA CLINE COHEN: Somebody had set her bed on fire, and her charred corpse was in the bed.
BRIAN: This is historian Patricia Cline Cohen.
PATRICIA CLINE COHEN: When the fire department looked closely at the bed, it was clear that the corpse was not just burned, but had been murdered brutally by ax blows to the skull.
BRIAN: Cline Cohen says that 22-year-old Jewett was a former servant from Maine.
PATRICIA CLINE COHEN: She was, by all reports, beautiful and accomplished, and put her clients through literary paces. She exchanged letters with them, reading poetry with them and suggesting to them how wonderful she found their friendship and their love.
BRIAN: The authorities soon arrested a man named Richard Robinson. Robinson was a young merchant clerk from a respectable family, who had been seen at the brothel that night. Robinson’s murder trial turned into as much of a media storm as you could find in the 19th century.
PATRICIA CLINE COHEN: It wasn’t, certainly, the first lurid murder case ever, but it was the first one that occurred in a moment of great change in the news media, when there were three relatively new papers in New York City, papers that were called then the penny press. And the fact that there were three of them meant that they were competing with each other. They were rival newspapers. And these three papers, The Herald, The Sun, and The Transcript fell all over themselves trying to outdo the others in sales.
BRIAN: Going into the trial, what were some of the newspapers saying about who did it? Were they prejudging this trial?
PATRICIA CLINE COHEN: Absolutely. So, for example, the New York Herald came out with the extraordinary idea that the brothel Madam had committed the crime, and they wanted to clear Robinson of all involvement in it. Other papers thought that was ludicrous and said so. Other papers looked at the evidence and thought the circumstantial evidence was overpowering, and it was hard to understand how a nice young man from a good family, who seemed to be of high character, could possibly have done this.
BRIAN: So take us into the trial.
PATRICIA CLINE COHEN: The trial opened with 6,000 people, it was said, trying to get into the courtroom. Something like 1,000 people were admitted to the courtroom in the first day, and the second day there was mostly testimony from the women of the house. These were the people– the Madam who had led them in, the witnesses who saw him go up stairs, the person who saw him in Helen Jewett’s room at 11. These were all good pieces of evidence placing him at the scene of the crime.
BRIAN: How long did the trial last, and what did the jury ultimately decide?
PATRICIA CLINE COHEN: Well, the trial went on for 5 days, and the judge gave an hour-long speech in which he basically said, when polluted women put their hands on the Bible and swear to tell the truth, you can’t accept their word as true unless it’s corroborated by a law-abiding, good, respectable citizen.
BRIAN: And just to be clear, the law-abiding, good citizens were men who visited prostitutes regularly.
PATRICIA CLINE COHEN: Yes, and there was a lot of debate after the trial from angry people about why these men weren’t just as polluted as the women they were visiting, and why anyone should take their word. And so what the judge was saying at the very end of the trial, and I should say that it was just about midnight on the last day of the trial now, and the judge is giving his verdict about how prostitute’s words can’t be accepted, it was pretty much a directed verdict. And the jury was commissioned to leave the room and go to the jury room, and somewhere between 8 and 15 minutes later, the jury came out with an acquittal.
BRIAN: A 5-day trial.
PATRICIA CLINE COHEN: 5-day trial.
BRIAN: And 8- to 12-minute decision.
PATRICIA CLINE COHEN: Yeah.
BRIAN: Well, we don’t want a lack of closure, so can you tell me who the murderer was?
PATRICIA CLINE COHEN: There’s no doubt in my mind that Robinson was the murderer. I’m persuaded by the overpowering circumstantial evidence.
BRIAN: What happened when the verdict was read?
PATRICIA CLINE COHEN: Cheering broke out in the room. Robinson heaved a sigh of relief, and fell into the arms of his father, who had sat with him throughout the trial, and his brilliant attorney, who had given the 3-hour speech in his defense. So it was very much a partisan crowd there.
BRIAN: How did the public react to this?
PATRICIA CLINE COHEN: I think the public was stunned. There weren’t demonstrations, as far as I know. There were people who gathered in Thomas Street, where the scene of the murder had taken place. And it was vacant at this point. And people claimed to see candles moving in upstairs rooms, maybe up the ghost of Helen Jewett come back in despair about the verdict in the case.
BRIAN: Patricia, getting away from the details of the trial, many trials often stand for something bigger when they gain the kind of notoriety that we’re talking about here. Do you think there are a set of issues that can be understood better through the lens of this trial?
PATRICIA CLINE COHEN: Yes, definitely. And I think that’s what really attracted me to write about it. This is a moment in the 1830s when many young people, both males and females, are leaving their villages and towns up in New England, west of New York, to go to places like Boston and New York to gain a foothold in the new commercializing economy. And Robinson is a perfect exemplar of that. At the age of 14, he had left a small village in Connecticut.
So he and thousands like him were now in New York, unsupervised, making their own way in the world, not accountable to adults, for the most part, at least in their off work hours, and liable to get in trouble. And similarly, many young women were coming to the city to look for jobs in domestic service and seamstressing and that sort of thing, and numbers of them wound up in the realm of prostitution.
I think what this trial really shows is that there were a lot of unresolved anxieties. People were worried about a new commercial order that siphoned their young men and women, at an adolescent age, away from home, and put them in unprotected situations in the big cities. These anxieties made this trial a kind of touchstone for people who were groping to understand what could be done better about this. They weren’t wrong in their fears. That’s clear.
BRIAN: Patricia Cline Cohen is a historian at the University of California Santa Barbara. She’s the author of The Murder of Helen Jewett: The Life and Death of a Prostitute in Nineteenth-Century New York.
Peter, Ed, I’ve got a simple question for you. If the case of Helen Jewett and other big-name trials in the 19th century were so darn important, how come I’ve never heard of them?
ED: I mean, beyond the obvious answer, Brian?
ED: No, don’t go there.
BRIAN: It may be a little too geeky, but Marbury v. Madison, Dred Scott, these are the trials that I’ve heard of.
ED: Yeah, that’s really important. The obvious answer, Brian, is that you need to know more legal history. But there’s also a bigger answer that we might point toward. It’s that a lot of the trials that are most flamboyant, and even important in their time in different ways, turn out not to be where important law is made. How convenient is it, then, that we have the Dean Elect of the University of Virginia’s law school, Risa Goluboff, with us here in the studio today to help us understand this very question.
PETER: Hey Risa, welcome to the show.
RISA GOLUBOFF: Thanks.
BRIAN: Welcome,2 Risa.
RISA GOLUBOFF: Thank you.
ED: Well, why is there this disconnect between what people at the time thought was interesting and what we now know to be important?
RISA GOLUBOFF: Well, I do think that there were trials that were the spectacles of the time. They were the television and the internet all rolled into one. They were the big cases that people were focused on. They identified with people, they were passionate and full of drama, but the trial is not the same thing as the creation of legal doctrine, right? The creation of legal doctrine happens way down the legal process. After you have a trial, then you have the appeal, and the case gets distilled into questions of import and of constitutional law. And sometimes sex and celebrity lead to those kinds of questions, but often times, it’s a very different kind of case. You know, the Dred Scott trial was run of the mill, a slave suing his master. That wasn’t a–
BRIAN: Boring, everyday stuff.
RISA GOLUBOFF: Everyday stuff. And it only becomes famous because of the law that gets made at the Supreme Court level.
PETER: So Risa, it sounds like this is an ongoing situation, that is, there’s an obsession with criminal law, particularly when it has sensational human elements that we can relate to. Is this a constant over the course of American history? Or do you think the people understand the law differently because of the way they experience it vicariously through celebrity trials today.
RISA GOLUBOFF: I think there is both continuity and change. Isn’t that the–
PETER: We like to say that on this show.
RISA GOLUBOFF: The cop-out answer, right?
RISA GOLUBOFF: There is both, right? But I definitely think that the law has changed and legal processes have changed. Juries aren’t nearly as important as they used to be, especially in criminal cases, which is what we often think about. Very few criminal defendants actually have jury trials these days.
ED: They all do on television, Risa. I’m confused.
RISA GOLUBOFF: They all do on television because it’s still the case that the jury trials are the spectacles. But over time, and especially in the 1960s, the Warren Court, the great liberal court, Supreme Court of the 1960s, the court responsible for Brown v Board of Education and lots of civil rights cases, was also responsible for transforming the way criminal justice procedures worked. It was called the criminal procedure revolution of the Warren Court.
And what the Warren Court did was say criminal defendants need to have more rights, and they can’t be coerced to confess, and you can’t arrest them unless you have probable cause. And, you know, it’s not OK for us to arrest people we think are guilty. We have to make sure that criminal defendants got more of their rights protected. But one of the consequences of that was fewer defendants actually invoking their rights and having a trial with all the bells and whistles, and instead plea bargaining and pleading guilty, which leads to the vast majority of our criminal law today is not through trials. Most people don’t get a trial at all.
PETER: And it is a trial that engages the people. It’s the democratic element of law, and the law is less democratic in that sense, would you say?
RISA GOLUBOFF: I think that’s true. On the other hand, I would hate to say the law before the Warren Court criminal procedure revolution was more democratic, you know, when you had defendants being railroaded, and coerced confessions, and trials like the Scottsboro trials of the 1930s when, you know, nine young African-American men are sentenced to death for raping two white women, for a crime they really didn’t commit. And they had trials that lasted a day. So it’s hard to say that was better.
PETER: Well, but it might be more democratic because that’s community sentiment in its ugliest and rawest. We tend to think that democracy is a good thing. Maybe we have mixed feelings about democracy.
BRIAN: Peter, don’t worry about democracy because we have Judge Judy.
ED: Risa, Brian’s kidding, but is it possible that we do love these TV shows that, sort of, demonstrate what law is supposed to look like–
RISA GOLUBOFF: Yes.
PETER: It’s nostalgia.
ED: –as a compensation for that?
RISA GOLUBOFF: Well, I don’t know if it’s a compensation for that. I would be a little more earnest and I would say–
BRIAN: I was earnest. What makes you think I was kidding?
RISA GOLUBOFF: I would say people want to know about the law. People have consciousness about the law. They think about it, they know it affects their lives, they know it affects real people’s lives, and they want to be part of legal processes.
BRIAN: I think that’s how we get the rise of true crime series like Serial.
ED: It’s also true of the most highly rated TV shows. They’re all about criminal and legal procedures–
BRIAN: That’s exactly right.
RISA GOLUBOFF: Yes.
ED: –and lawyers. So you have a strange bifurcation, it seems to me, where, back in Peter’s time, law really was made in public for the public. Today it’s made behind doors by arbitrators, but we’re just as fascinated now as we were back in the 17th century.
RISA GOLUBOFF: The spectacle has changed.
ED: Risa Goluboff joined us for that conversation. She’s the Dean Elect at the University of Virginia School of Law.
Peanut Butter Jelly Time/Sketchy Characters
PETER: On April 15th, 1920, two men robbed a shoe factory in South Braintree, Massachusetts. A paymaster and guard were murdered and the culprits fled in a getaway car. Soon after, police arrested Nicola Sacco and Bartolomeo Vanzetti, two anarchist Italian immigrants, and charged them with a crime. Authorities didn’t have much of a case. The ballistics evidence was inconclusive, the stolen money was never found, and Sacco and Vanzetti had strong alibis and witnesses on their side. And though Sacco and Vanzetti were anarchists, they weren’t exactly high-level masterminds, according to Hofstra University Professor Mary Ann Trasciatti.
MARY ANN TRASCIATTI: I mean, one of them is a shoemaker, right? One of them peddles fish. They don’t have a lot of resources. They aren’t very well educated. They don’t have power. And they had no idea what they were being arrested for.
PETER: Even so, the two were sentenced to death in 1921 after a jury found them both guilty of first degree murder.
BRIAN: Trasciatti says the crime, trial, and sentencing weren’t so surprising given the political climate at the time. A red scare gripped the nation. The communist revolution in Russia had made radicalism seem like a real threat. And police were rounding up anarchists in conjunction with a wave of bombings in the United States. So Sacco and Vanzetti were just another pair of anarchist criminals.
MARY ANN TRASCIATTI: It’s reported on next to an advertisement for golf supplies several pages back in the New York Times.
BRIAN: But in a matter of months, they became worldwide celebrities with a long legacy. Even today, Americans might encounter Sacco and Vanzetti’s names from history textbooks and pop culture references on TV shows like Family Guy.
BARNABY: Stop pushing. Save your roughneck tactics for Sacco and Vanzetti.
MARY ANN TRASCIATTI: We always say, Sacco and Vanzetti. It’s like peanut butter, jelly. Sacco, Vanzetti.
BRIAN: So how did that happen?
MARY ANN TRASCIATTI: How did these two regular guys become so important.
PETER: In a word, propaganda. While waiting on a series of legal appeals over the next few years, Sacco and Vanzetti’s lawyers also set out to try the case in the court of public opinion. Their first lawyer, a man named Fred Moore, was the architect of this strategy.
MARY ANN TRASCIATTI: And so he decided he was just going to call it out and make it about discrimination, prejudice against them as Italians, but more so against them as radicals. He said at one point that a black man charged with rape in the South had about as much chance of getting a fair trial as Italians charged with murder in Massachusetts.
PETER: Moore, backed by a grassroots team of anarchists, lawyers, and labor organizers, made the case to the public using a sophisticated, multi-layered PR machine. A new type of cheap, two-tone printing made it easy for papers to print and distribute clear photographs. The first step was to use that technology to get the public to see Sacco and Vanzetti, to show that the two certainly didn’t look like murderers.
MARY ANN TRASCIATTI: Vanzetti had this kind of droopy moustache. He looked like a guy, you know, you’d hand him your baby if you had to run into the store and pick something up. Sacco was this dashingly handsome man not unlike Rudolph Valentino. I mean, this is, like, perfect, right? And those images, then, were circulated throughout the world. And they became truly iconic figures that way.
PETER: Step two, ensure that the public heard about Sacco and Vanzetti in their own words. The two men wrote scores of letters from prison that were splashed across newspapers. People as far away as New Zealand clamored to read their heartfelt pleas.
NICOLA SACCO: Dear Bartolo, here I am, always in this narrow, sad cell, walking up and down, up and down.
BARTOLOMEO VANZETTI: In a word, we feel lost. Therefore, we decided to write this letter to you to express our gratitude and admiration–
NICOLA SACCO: For there, between these turbulent clouds, a luminous path run always toward the truth.
BARTOLOMEO VANZETTI: So let us fight to the last. If we will fall, thousands will rise, determined, implacable, daring of these supreme audacities. Let us fight.
MARY ANN TRASCIATTI: And it’s really interesting. I’ve always found this fascinating. That they could write so eloquently was considered by many people to be further evidence that they couldn’t possibly have done this. How could they be killers? They write such great letters.
PETER: The defense committee’s third step was to put international pressure on the judge, helping that the court of public opinion would sway the court of law. Anarchists, communists, and other labor rights activists held mass rallies in Mexico, Venezuela, Argentina, Uruguay, and Morocco. When sympathisers bombed US embassies and consulates in Portugal, Brazil, Switzerland, and France, those governments were forced to deal with the fallout all because two workers in New England wanted a retrial.
BRIAN: By 1927, Americans could no longer ignore the international outcry. Harvard Law professor and future Supreme Court Justice Felix Frankfurter analyzed the trial in an article for The Atlantic Monthly. He found the evidence against Sacco and Vanzetti inconclusive, and his readers sent a flood of telegrams to the governor of Massachusetts begging for a pardon.
MARY ANN TRASCIATTI: They are so deeply troubled by what they think is happening to the justice system in the US, to the very idea of justice in the US. So some of the protests are nominally about Sacco and Vanzetti, but they’re really about a kind of deep disillusionment that the dream is becoming, rapidly becoming, or has become, a nightmare.
BRIAN: But in the end, the press, the propaganda, the protests, and the bombs were not enough. 7 years, five appeals, and a massive global movement later, Sacco and Vanzetti were executed at midnight on August 22nd, 1927.
MARY ANN TRASCIATTI: They were electrocuted. There was a watch in Union Square that night, and people swore that the lights dimmed at just past midnight, and that it was because, you know, all the electricity had been transferred up to Boston for the executions.
BRIAN: Sacco and Vanzetti lost their trial and their lives, but they were largely acquitted in the court of public opinion. Pop culture references from a Woody Guthrie song–
WOODY GUTHRIE (SINGING): Say, there, did you hear the news? Sacco worked at trimming shoes. Vanzetti was a peddling man, pushed his fish cart with his hands. Two good men a long time gone.
BRIAN: –to dinner time conversations on The Sopranos–
TONY SOPRANO: And I won’t tell you about Sacco and Vanzetti, either.
CARMELA SOPRANO: They were two innocent men who got the chair because they were Italian.
BRIAN: –speak to their legacy as martyrs.
MARY ANN TRASCIATTI: We are still looking for the smoking gun, right? That one piece of evidence that will tell us that they were, one of them or both of them, was in fact guilty or innocent. So there’s still, I mean, to use a really awful pun or metaphor, here the jury’s still out. And yet we killed them.
BRIAN: Marry Ann Trasciatti helped us tell that story. She’s a professor of speech communication, rhetoric, and performance studies at Hofstra University.
We’re going to turn now to someone who gives Americans a glimpse of trials when TV cameras and photography aren’t allowed in high-profile courtrooms. Elizabeth Williams is a courtroom sketch artist. Her work has landed on the front pages of The New York Times and The Wall Street Journal. Williams has sketched everyone, from mafia boss John Gotti and the Times Square bomber, to Martha Stewart and Ponzi schemer Bernard Madoff. I asked Williams which trial was her favorite to draw.
ELIZABETH WILLIAMS: When Bernard Madoff was originally arrested and arraigned, he became like America’s number one villain. So we’re drawing all these scenes, and the victims are talking, and he makes his statement. And he’s standing up, and the judge says to him, Mr. Madoff, don’t even sit. The presumption of innocence is now gone. I am going to remand you.
And within, like, 2 seconds, these marshals, like, descend upon him and put handcuffs on him, and I’m sitting there in the jury box watching this whole thing take place, and I’m thinking to myself, oh my god, the one thing people in America want to see. They want to see this guy go to prison. They want to see this guy go to jail.
So I take my paper underneath the other piece of drawing I was working on. I go– whoop! I just start drawing this thing that’s happening. And he puts, kind of, his head down, his handcuffs are on him, and they walk him in, and he’s gone. And, I mean, I don’t even think I looked at the paper, seriously.
Then after I’d finished it, one of the victims came up and she took her fingers and she kissed the part where his handcuffs were on. She said, that’s just what I wanted to see. And I said, I know. That’s why I drew it.
BRIAN: Well, let’s talk a little bit more about the process. You characterized him, and you were speaking at channeling the sentiment of the public as a villain. People wanted to see him convicted. Yet you were tasked with being unbiased, unblinking. How do you mediate between the two?
ELIZABETH WILLIAMS: Oh, well, I’ve asked that question a lot. And I’ll tell you that one of the things the reason why that’s not even an issue in my mind, quite frankly, is because to get a likeness, especially of a really well known person, is tough. And I spend much more time concerned with getting likeness, gesture, doing a good piece of artwork.
And see, here’s the other thing that’s interesting. They have to have an expression that lasts longer than a second. And sometimes when I start to draw somebody, I may do six, seven, eight, nine, preliminary drawings before I get to a place where I start to really understand that person’s face. So I’m always going for the likeness. And if their expression is consistent, then that’s what their expression’s going to be.
BRIAN: Well, how did you get started in this business in the first place.
ELIZABETH WILLIAMS: Well, I wanted to be a fashion artist, and I wanted to draw pretty ladies and beautiful clothing, and I just couldn’t make a living doing it. And so I go into the court [INAUDIBLE]
BRIAN: Well you did get to draw Martha Stewart.
ELIZABETH WILLIAMS: Well, yes, she’s very pretty, but she was a big disappointment in terms of the clothing
ELIZABETH WILLIAMS: And the shoes. Oh my god, she wore these shoes with these thick heels and this boring, boring clothing. Oh my goodness, I had my hopes up. I don’t know why. Then I was like, wait a minute. This is the woman who’s on TV in, like, a white shirt telling you how to make a flambe, so what am I thinking? You know, hello.
BRIAN: Have you ever heard from one of the people you’ve drawn?
ELIZABETH WILLIAMS: Oh, lawyers, yeah. Some of them want to buy my drawings.
BRIAN: Is that right?
ELIZABETH WILLIAMS: Especially if they win their cases. If they win their cases, sometimes they really do want to buy their– as well they should. They should.
BRIAN: Have you ever heard from an attorney who was not so happy about his or her portrait?
ELIZABETH WILLIAMS: Early on I would get these lawyers who would come up to me and complain that they thought that they should have more hair, or their nose was too big. So I don’t know. Nobody’s done that to me lately, but I used to get that once in a while, yeah.
BRIAN: That’s great. Well, Elizabeth, thanks so much for joining us on BackStory today.
ELIZABETH WILLIAMS: Well, it’s my true pleasure. Thank you very much for having me.
BRIAN: Elizabeth Williams is a veteran courtroom sketch artist and the author of The Illustrated Courtroom: 50 Years of Court Art. To see some of her sketches, go to our website, backstoryradio.org.
PETER: Our final story today begins in Oakland, California on the morning of October 28th, 1967.
MALE REPORTER 5: The shooting happened at 5:00 AM, approximately where I’m standing on 57th Street in the heart of Oakland’s Negro ghetto.
PETER: This Is local news reporting on the death of a young police officer by the name of John Frey. He had been shot and killed during a traffic stop. The suspect–
MALE REPORTER 5: Charged with murder and attempted murder is Huey Newton, 25-year-old leader of the Black Panthers for Self-Defense, an Oakland-based group that advocates arming all Negroes against what they call their white oppressors, especially police.
PETER: The Black Panthers had made a name for themselves the year before Frey’s death by trailing Oakland police on patrol, armed with guns and law books. The Panthers said their guns were to deter rampant police brutality in Oakland’s black neighborhoods. They carried law books to inform those the police stopped of their legal rights.
BRIAN: Needless to say, the tactics were controversial. And when one of the founders of the party was arrested for the murder of a white policeman, it quickly became much more than a local crime story. BackStory producer Emily Gadek tells us how the ensuing trial of Huey Newton vaulted a local organization to the national stage, and made Newton a revolutionary icon.
EMILY GADEK: Nearly 50 years after Huey Newton was arrested for the death of John Frey–
DONNA MURCH: The exact events of what happened on that night are still under dispute.
YOHURU WILLIAMS: What we know for sure is that John Frey pulled Huey Newton over for an unspecified traffic violation.
DONNA MURCH: That’s right. There was a confrontation between Huey Newton and officer Frey, and afterwards, Huey Newton is shot and officer Frey is killed.
EMILY GADEK: These are historians Donna Murch and Yohuru Williams. They say, beyond those facts, the evidence was ambiguous. Frey, Newton, and a second officer were all shot with police guns.
YOHURU WILLIAMS: The question was how did this happen? Did Newton fire on the two officers, or had something else happened?
EMILY GADEK: Either Newton had grabbed Frey’s gun and shot the officers, or the two officers had accidentally shot each other while trying to subdue Newton. Newton’s lawyer, a man named Charles Garry, knew his client faced an uphill battle given the facts of the case, especially since Newton and the Panthers had a history of confronting the police. So Garry decided–
YOHURU WILLIAMS: –to really turn the case into a cause. To really focus attention on the Panthers’ politics. To paint Huey Newton as a political prisoner and the Panthers as an organization that was being repressed because of its political views. And that, in the late 1960s, proves to be a very viable political strategy.
EMILY GADEK: The Panthers had already begun making Newton’s trial a political cause, holding protests and marches around the Bay Area with the demand–
CROWD (CHANTING): Set our warrior free. Free Huey. Black is beautiful. Free Huey.
EMILY GADEK: The goal was to see Newton exonerated. The Panthers saw him as an innocent man being persecuted by a racist system. And in the late 1960s, that was a message that resonated far beyond the streets of Oakland.
YOHURU WILLIAMS: You had the passage of the Civil Rights Act of 1964 and the Voting Rights Act of 1965, and yet you still had all this turmoil in the United States. And Huey Newton’s shooting, in some sense, came to represent that it really wasn’t legislation alone that was needed. That you needed a fundamental overhaul of American society. And that included the police.
EMILY GADEK: Free Huey also made Newton, young, intellectual, and handsome, the face of the party. It was a brilliant strategy by the Panthers, who’d been struggling in the months before Newton’s arrest.
DONNA MURCH: One of the remarkable things about the Free Huey campaign is that the Panthers were founded in 1966, and within a year of their founding, all the male leadership was either in prison, on trial, or in exile. And the success of their organizing allowed them to take something that could have been actually devastating or the end of an organization, and used it as an opportunity. And by mobilizing people and dramatizing the suffering of Huey Newton, they grew the organization to its largest point.
EMILY GADEK: When he was arrested, the Black Panther Party was a local organization. His arrest, a local news story. But his legal battle made national headlines. Black Panther chapters sprang up across the country. Hollywood celebrities like Marlon Brando and Jane Fonda attended rallies and held fundraisers for the Panthers. The communist governments of China and Cuba offered support for America’s most famous political prisoner.
DONNA MURCH: We have to remember that these are young people with relatively little money and few resources, so creating a national organization is not easy. But I’d say the coverage of the trial– this is, of course 1968, with the height of the anger about Vietnam, so they’re able to align Huey Newton with a real sense of crisis about what’s happening in the world.
EMILY GADEK: The Free Huey campaign made Newton a household name, but it didn’t exonerate him in court. He was convicted of voluntary manslaughter in 1968. That conviction was overturned on appeal. Two later attempts to prosecute him for Frey’s death ended in a hung juries. On August 5th, 1970, Newton was free.
MALE REPORTER 6: As he emerged from the Alameda County courthouse, Newton was greeted by hundreds of supporters who had been waiting for hours for a glimpse of the man who had been a rallying cry for them for 33 months.
EMILY GADEK: The Hollywood version of the story would end here. Local news footage showed Newton being hustled through an ecstatic crowd outside the courthouse, surrounded by cheering supporters. Their cause, a success. But after his release from prison, Newton struggled with his sudden fame and with substance abuse. On top of that, the party he had helped found and lead had profoundly changed while he was in prison.
DONNA MURCH: The party really started out as a small group of people in West Oakland who knew each other, many people who had been childhood friends or fellow students at Merritt College with Huey Newton. And when he gets out of prison, he finds an organization that is a national organization with international solidarity, and it’s a huge organization. And I think for Huey, there was a real sense of disorientation.
EMILY GADEK: There were personality clashes in the leadership, but also genuine philosophical disagreements. Should the Black Panthers remain involved in an armed struggle against the police? Or should they focus on new programs they had started while Newton was in prison, like free breakfast for school kids, community health clinics, and political education classes.
These divisions took their toll. So did the FBI’s extensive campaign to infiltrate and undermine the party. By the mid-1970s, Black Panther chapters outside of Oakland were disbanding. Huey Newton died in West Oakland in 1989, just a few miles from the courthouse where his famous trial took place. He was shot to death in what was apparently a drug deal gone sour.
YOHURU WILLIAMS: You do have this unity that emerges behind Huey Newton, this cult of personality that develops behind Huey Newton. And while that is beneficial in the short term in terms of increasing interest and generating funding and support for the Panthers, in the long term, that proves to be very detrimental to the party as an organization. Because after Huey Newton is free, then what? Is the question. You know, where does the party go?
EMILY GADEK: Williams says, although there’s no neat ending to Newton’s story, it’s still a powerful one, not in the least because the Panthers’ concerns still resonate today.
YOHURU WILLIAMS: If you look at the things that they were saying, their community programs, how they were trying to address issues of health care and breakfast for school children, and to patrol the police, they were saying black lives matter. You can see in the modern moment a lot of shades of those issues that are still with us in American inner cities.
PETER: BackStory’s Emily Gadek produced that piece.
BRIAN: We also heard from Yohuru Williams at Fairfield University. He’s the editor of In Search of the Black Panther Party: New Perspectives on a Revolutionary Movement. And Donna Murch at Rutger’s University who wrote Living for the City: Migration, Education and the Rise of the Black Panther Party in Oakland.
PETER: That’s going to do it for us today, but head to our website where you can try this episode in the court of public opinion. You’ll find us at backstoryradio.org. Tell us what you think about this show, and ask some questions about our upcoming shows on the history of unemployment, as well as the history of armed protest. You can also send us an email at firstname.lastname@example.org, of find us on Facebook, Tumblr, and Twitter @backstoryradio. Whatever you do, don’t be a stranger.
MALE SPEAKER 2: BackStory is p by Andrew Parsons, Brigid McCarthy, Nina Earnest, Kelly Jones, and Emily Gadek. Jamal Millner is our engineer, Diana Williams is our digital editor, And Melissa Gismondi helps with research. Special thanks this week to [? Java ?] [? Lazro ?], Jane [? Rhodes ?] and to our readers, Enrico Cesaretti and Sandro Puiatti.
BackStory is produced at The Virginia Foundation for the Humanities. Major support is provided by The [INAUDIBLE] Khan Foundation, The National Endowment for the Humanities, The Joseph and Robert Cornell Memorial Foundation, and The Arthur Vining Davis Foundations. Additional funding is provided by the Tomato Fund, cultivating fresh ideas in the arts, the humanities, and the environment. And by History Channel– history made every day.
FEMALE SPEAKER 2: Brian Balogh is Professor of History at the University of Virginia. Peter Onuf is Professor of History Emeritus at UVA, and senior research fellow at Monticello. Ed Ayers is Professor of the Humanities and President Emeritus at the University of Richmond. BackStory was created by Andrew Wyndham for The Virginia Foundation for the Humanities.
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