I know, I know. The title suggests, in German at least, that Law School is broken. Well it is, but it's also done for the year! I am released on Friday, free to wend my way for the summer months and hope that they allow me to stay on for the following semesters. No, scratch that. I wouldn't use the word hope there. Some other verb that connotes only negative things.
It's odd. Now that I've got a day behind me, it doesn't feel like I've really finished with the FIRST YEAR. But I have, and that's that. Now I'll have some time to read, write, and try to rekindle some semblance of a social life. I can finally sit down and relax, without worrying that something else needs to get done. I AM FREE!
In other news and at the request of some who'd like to see what I've been "wasting my time" with, I've been working on a history/legal/perspective paper on our current treatment of suspected terrorists. I think it's interesting, and worth making people think about, especially in light of Jack Bauer's recent shenanagans and tomfooleries with the militants of our fictional world. This paper, however, does not start where you might think. It begins in Salem, Mass., circa 1692, and will end in the mid 2000s. I think I'm going to post bits of it in a series, and would love to hear what people think. Eventually, I'd like to get it published, but it needs more polishing and a bit more of current analysis, so if anyone has any hints, critiques, or suggestions, please throw them my way. Here's the first bit:
How America Has Dealt Legally With Societal Threats From Salem to 9/11
THE BEGINNINGS at SALEM Salem. The name itself brings to mind injustice, zealotry, deceit and hysteria, thanks largely in part to Hollywood, Arthur Miller, and the imposition of modern ideals onto its most infamous progeny: the Witch Trials. But that surface understanding does a disservice to the real significance of Salem. With the proper cultural context and a bit of legal analysis, Salem’s lessons become more than just a tragic chapter in American history and lore: Salem becomes a chilling foreshadow of modern America, a warning we cannot afford to gloss over or ignore.
By understanding the cultural backdrop of Salem, its social norms, its rules of law, its religious fervor, one can quickly come to understand why the Witch Trials happened, and more importantly, why they were stopped.
The most modernly relevant aspect of the Trials, perhaps, was their adherence to legal procedure. That the events at Salem were a tragedy and an abuse of the law cannot be contested. But it bears noting that the Witch Trials were carefully scrutinized under the common law of the period, with the utmost judicial and executive oversight. As Boston Globe writer and law librarian Kevin O’Kelly wrote: “What happened in Salem at the end of the seventeenth century was first and foremost a series of trials, events taking place in a society that acknowledged the rule of law, that followed prescribed legal procedures.”
The once sleepy village of Salem grew into an adolescent town in the 1660s, steadily inching towards bourgeoisie status in colonial Massachusetts. No longer content to subsist merely on farming and fishing, many of the town’s residents looked towards mercantilism, commerce and international trade in order to increase both their economic status and social standing. This new social hierarchy within the town itself lent Salem the structure necessary for the Witch Trials to begin, and what proved to be their downfall: class.
At some point in late 1691, a strange illness swept through Salem, affecting its young women with severe fits. While some modern authors attribute the illness to hysteria, agricultural poisoning, or even a rare form of encephalitis lethargica, author Martha M. Young offers one of the most intriguing arguments: guilt. According to Young, “During the winter of 1691-92, several adolescent girls conducted experiments in fortunetelling. These forays into the occult focused on what sort of men the girls' future husbands would be. The sorority gathered in the kitchen of Salem Village's minister, Reverend Samuel Parris, and listened to the tales of Parris's West Indian slave, Tituba, who was well acquainted with obeah, a voodoo-like religion practiced by transplanted Africans in the Caribbean.” While innocent when viewed in a modern light, these “forays into the occult” constituted, in no uncertain terms to the Puritans of Salem, the practice of witchcraft. But it was not until the village physician failed to determine the illness’ cause that witchcraft was mentioned as a potential cause.
Once this happened, Young contends, “the case moved from the realm of medicine to that of law. Witchcraft was indeed a crime contrary to the laws of God, England, and Massachusetts.” Because the crime of witchcraft held with it the threat of capital punishment for those found guilty, any type of accusation should have been treated carefully and with a healthy dose of skepticism—especially when children were involved. At first reticent to indicate any individuals as responsible for their sickness, in February 1692, some of the local girls were coerced by prominent men in the village into naming the witches who tormented them, leading to the issuance of arrest warrants for Sarah Good, Sarah Osborne, and the slave, Tituba.
What followed next was an outbreak of hysteria, replete with paranoid accusations, false testimony, torture, and execution, all under the umbrella and protection of the common law. Estimates place the number of accused witches at over 150—more than 20% of the population; 20 Salem residents were executed for the practice of witchcraft; of those residents imprisoned, three died while incarcerated, and a fourth, five-year-old Dorcas Good, went insane after seven-plus months in captivity.
As to the legal proceedings for those who stood accused, O’Kelly notes, “However different the world of the Salem Witch Trials may seem to us now, they had one important characteristic in common with the legal world of today: then, as now, legal matters took an excruciatingly long time to resolve.” One explanation for the agonizing amount of time it took to try, convict, and mete out punishments, was that in early 1692, Massachusetts was embroiled in a state of “legal limbo” having recently deposed one governor and only under the control of an interim government. The temporary magistrates postponed actual trials until a new governor could be appointed by the ruling monarchs in England, William and Mary. Finally, on May 14, 1692, nearly three months after the initial accusations were raised, the “newly appointed governor, Sir William Phips, arrived in Boston with a legal charter in hand.” One of his first orders of business would be to hear the cases of more than 60 Salem residents waiting for trial. To do so, Governor Phips ordered a Court of Oyer y Terminer (“to hear and determine”), consisting of six members of his advisory council and Lieutenant Governor William Stoughton.
LEGAL PROCEDURE of the TRIALS Preeminent in Salem’s collective mind, beyond bringing the witches to justice, was to ensure a fair and accurate trial for the accused. “The Salem residents relied on official procedures, such as indictments and public trials, and employed the best expert advice available at the time.” They relied upon the law, the executive power of the colony, and upon the “best expert advice” available in the form of both their religious and judiciary leaders. Wishing to appeal to both divinity and reason, the Trials at Salem followed the usual prescription of procedure used in English Common Law Witch Trials. Included in this procedure was the requirement of evidence in order to convict. Young notes some of the forms of empirical evidence used at the Trials:
Other empirical forms of witchcraft evidence introduced against at least eight of the alleged tches included the “trials by test,” the most prominent of which were the recitation of the Lord's Prayer and the “laying on of hands.” The former test rested on the presumption that a witch was unable to say the “Our Father” without some mistake because it was disloyal to her master the Devil, and because she was more accustomed to saying it backwards at the sacrilegious Witch's Sabbath. But, “anyone might make a mistake reciting the Lord's Prayer, particularly if the floor was covered with screaming, convulsive girls.” Poor John Willard, for instance, could not say it correctly after five consecutive tries. Other forms of the “trials by test” included inspecting the accused’s body for the “Witch’s Mark,” (usually a mole or tumor-like growth on the skin through which the Witch’s familiar was supposed to suckle) and an especially cruel test which involved tying an accused witch’s feet together, and throwing her into a body of water—if the accused floated, she was a witch and subject to execution; if she sank, she was thankfully innocent, but unfortunately dead. One of the most terrifying aspects of the Salem Witch Trials was not the “empirical” evidence gathered by the tribunal, but rather the initial admissibility of “spectral evidence”—evidence that could not be substantiated beyond testimonial from those “afflicted” by the witches, yet was believed by the Puritans to be valid. With nothing more than a mere accusation from a neighbor, any member of the Salem community could be arrested and brought before the tribunal to be examined. In an effort to ensure that accusation based on spectral evidence was not the sole grounds for conviction, however, the common practice of the day was to examine the accused before their accusers.
While under examination, the accused were presented before those victims they had supposedly harmed. If the accusers experienced “severe fits” while in the presence of the “witch,” that person was indicted on the spot. “Thus,” writes Young, “the indictment was not based on the original complaint, but instead cited the witchcraft performed at the examination.” Furthermore, writes Young, “If the accused witch bit her lip, the [accuser] would scream out that they had been bitten; if she pinched her fingers together, they would claim that they had been pinched.” However vindicated the Puritans may have felt by this “empirical” evidence presented at the pre-trial examination, no accused person examined by the Salem Court of Oyer y Terminer was ever acquitted—“to be examined as a witch essentially meant to be hanged as one.”
Confession soon became one of the preferred evidences in the witchcraft trial, considered more empirical than spectral evidence. If an individual confessed to being a witch, why, he must have been a witch! One can only imagine what must have gone through the mind of a village resident who stood accused of witchcraft—“to lie before the tribunal and save one’s life, or lie before God and risk one’s soul.” It is a choice not to be lightly discarded by modern audiences. To the devoutly religious members of Salem, nearly all Orthodox Puritans, it would have been considerably worse to lie and risk one’s eternal soul than to lose one’s temporal life for the greater cause of truth.
Unfortunately, this presented another tragic interpretation of the law: a confession was valid, no matter its method of extrication. In her treatise, Young notes that at one point in the Trials, the tribunal resorted to torture in order to extricate a confession: “two young men would not confess any thing, until they were tied together neck and heels, when they accused their own mother.” While the magistrates insisted on “the voluntary confession of the party suspected, they saw no contradiction in allowing the use of torture where there was ‘strong and great presumcon’ [sic] of guilt.”
Though this initially smacks of injustice, inspiring the modern reader to stand and raise up the cry, later examination will show that, where “strong and great presumption of guilt” exists, even in today’s American legal system, a suspected threat can be met with tortuous treatment. For the residents of Salem, confessions also provided an opportunity to escape capital punishment by naming other witches, a practice which undoubtedly contributed to the extraordinarily high number of indictments.
 Kevin O’Kelly, The Evidence of Things Unseen: The Legal World of the Salem Witch Trials, Summer, 2006, at 16.  Peter Charles Hoffer, The Salem Witchcraft Trials: A Legal History 22 (N. E. H. Hull, University of Kansas Press, 1997).  Martha M. Young, The Salem Witch Trials 300 Years Later: How Far has the American Legal System Come? How Much Further Does it Need to Go?, 64 Tul. L. Rev. 235, 237-38 (1989) (discussing the background and socio-economic context of the Salem Witch Trials).  See Hoffer, supra note 2, at 155-56; see also e.g., Frances Hill, The Salem Witchraft Trials Reader 215-305 ( De Capo Press, 2000).  See Laurie Winn Carlson, A Fever in Salem: A New Interpretation of the New England Witch Trials 110-46 (Ivan R. Dee, 1999) (discussing and dismissing ergotism—rye poisoning).  See id. at 114-46.  See Young, supra note 3, at 237.  Id. at 236-37.  See Carol F. Karlsen, The Devil in the Shape of a Woman: Witchcraft in Colonial New England 36 (W.W. Norton & Company, Inc. 1987).  See Exodus 22:18 (King James): “Thou shalt not suffer a witch to live.” The very religious Puritans of New England would have viewed this law with as much weight as their own English common law.  Young, supra note 3, at 237. As a British colony, Massachusetts Bay followed English law.  See Hoffer supra note 2, at 42. (citing the Book of the Lawes and Liberties of 1648).  See Young, supra note 3, at 238.  See Jane Campbell Moriarty, Wonders of the Invisible World: Prosecutorial Syndrome and Profile Evidence in the Salem Witchcraft Trials, 26 Vt. L. Rev. 43, 44 (2001).  Id. at 44.  Handwritten note from William Good, Dorothy’s father submitted to “The Committee,” (Sept. 13, 1710), available at http://historical.library.cornell.edu/cgi-bin/witch/docviewer?did=129&seq=1&frames=0&view=100 (writing of his daughter’s impaired mental state).  O’Kelly, supra note 1, at 18.  Id. at 34  Id.  Young, supra note 3, at 239-40.  O’Kelly, supra note 1, at 18  See Peleg Whitman Chandler, American Criminal Trials 66 (1844) at 92  Moriarty, supra note 14, at 57.  Id.  Young, supra note 3, at 249.  Gratefully, we no longer administer these types of guilt-proving tests. However, with the well-documented unreliability of the “lie-detecting” polygraph test, one has to wonder just how far our methods of discovery have progressed in the last three hundred years.  See generally Moriarty, supra note 14, at 62; Young, supra note 3, at 243-45.  See Moriarty, supra note 14, at 62 et. al.  Young, supra note 3, at 242-43.  Id.  Id.  See Chandler, supra note 22, at 89.  Young, supra note 3, at 255.  Thankfully, though, we no longer test suspected criminals by throwing them into bodies of water