America on Trial by Alan Dershowitz

(22. – 909.) America on Trial by Alan Dershowitz – One of America’s best lawyers and best lawyer writers Dershowitz set out in the early 2000’s to write about important trials in American history. The subtitle is “Inside the Legal Battles that Transformed Our Nation”. The cases reviewed begin in colonial times before the Revolution and continue through to the first trials involving terrorism after 9/11. This post and my next post shall form my review of the book.

Dershowitz is exceptionally skilled at narrating the facts, setting out the issues and discussing the legal principles of court cases. Never compromising analysis he makes the law understandable for all readers. It is no surprise he has been very successful as an appellate lawyer where well written arguments are the critical to winning the appeal.

The book is not a list of America’s 100 most important cases. While many of the cases will be familiar to readers others are almost obscure. Dershowitz had an idiosyncratic criterion for determining the cases “that transformed our nation”:

For me the basic criteria is passion. Did the trial reflect the passions of the time? Did it engage the passions of the people? Will contemporary readers still feel passionately about the issues, the personalties, and the verdict?

Dershowitz, personally involved with some of the great cases of the last half of the 20^th Century, does not shy away from discussing some of his cases. At the same time the book is not a compilation of his cases in which he has been a lawyer.

Among the well known cases in the book are the Salem Witchcraft trials, the Dred Scott case, the trial of Lizzie Borden, the Scopes trial, the Alger Hiss case, the Court-Martial of Lieutenant William L. Calley Jr. and the Clinton Impeachment trial.

Others are little known today though the issues remain relevant. I was struck by the Savannah trial in the midst of the American Civil War. The defendants were sailors on a Confederate raider, operating under “under letters of marque and reprisal, which authorized private ships to hunt down and attach Union shipping vessels”. After the Savannah was captured they were tried for piracy as President Lincoln stated that the Confederate government was illegitimate and had no authority to issue the letters marque and reprisal. A hung jury saved Lincoln from having to decide whether to execute the crew. Putting pressure upon him was the Confederate government’s announcement it would kill as many high ranking Northern prisoners of war as sailors executed for piracy.

In recent years American courts have wrestled with the contention of the American government that, though engaged in the war on terrorism, that members of the Taliban and Al Qaeda captured in battle in Afghanistan are not prisoners of war.

Dershowitz is not a dispassionate chronicler of the cases. He has firm opinions about the fairness of the trials and the correctness of the decisions.

When I talk to clients about going to court I avoid the use of the word fair. While Dershowitz is comfortable in stating whether he considers a trial to have been fairly conducted or a judge to be a fair jurist I dislike the word “fair” in the context of court. To me fair is too emotionally charged a word. It is hard to have an objective determination of what or who is fair. Court cases are not decided on fairness. Judges make decisions based on statute, common law precedent and the rules of evidence. Unless the facts and law are in your favour I counsel clients against going to court because they believe they will win because their position is “fair”.

Now juries in criminal cases are not bound in making decisions as judges are bound by the law. Jurors are the sole triers of fact and, in rare circumstances, can make a decision that is contrary to the law. Judges instruct jurors to follow the law as described by trial judges in their charges to juries but they cannot stop juries from deciding contrary to the law. Jury nullification cannot be advocated by lawyers but it has happened and will continue to happen. 

An example of jury nullification took place in 1735 John Peter Zenger was charged with seditious libel for publishing “a somewhat amateurish politicial magazine comprising an assortment of essays, lampoons, and other provocative items directed primarily against the governor of New York.” Though Zenger had no legal defence under the statute, even truth was not a defence, a jury found him not guilty.

(My next post will continue my review and discuss a potential new client for Dershowitz.)