Synopsis
The chapters in this book are of two types: those that explore trials raising issues of partisanship, responsibility, dissent, representation, and legitimacy, and those that take an intensive look at one trial.
The latter chapters are an attempt to tell the story of a specific trial in detail. Although in the general chapters certain trials will be focused upon, they will be used as illustrations of the issues analyzed. Three trials— the SWAPO trial in 1976, Karlton Armstrong’s in 1973, and the Wounded Knee trial in 1974—will provide in-depth accounts that go beyond serving as examples.A partisan trial is a spurious legal proceeding but an authentic political event. Its one agenda is political, and its one purpose is expediency. The Inquisition, the Gunpowder Plot trials, the Dreyfus trial, and the trials in Hitler’s Germany, Stalin’s Soviet Union, and in apartheid South Africa provide examples in chapter 2 of how useful to those in power a show trial can be. In 1976 six members of the South West Africa People’s Organization (SWAPO) were tried under South Africa’s Terrorism Act following the assassination of Chief Elifas, a hereditary chief in Namibia. A detailed examination of this trial provides, in chapter 3, a case study of a partisan trial.
TABLE 1.1 Types of Political Trials
| Trials Involvin | Political Trials g within the Rule of Law | Partisan Trials |
| PUBLIC RESPONSIBILITY | Issue: the Public RealmwQuestions: What is private? What is the nature of public responsibility? Corruption cases: For an offical, where is the line drawn between private life and public duty? Examples: Francis Bacon (1621) Judge Otto Kerner (1973) Watergate (1973) Insanity cases: Where is the line between actions of public responsibility and those for which a person cannot be held responsible? Examples: Daniel McNaughton (1843) Charles Guiteau (1881) Dan White (1979) John Hinckley (1982) | Issue: Power and Expediency Question: Is this political revenge? Corruption cases Examples: Anne Boleyn (1536) Marcus Garvey (1925) Insanity cases Examples: Soviet psychiatric prisoners |
| DISSENT | Issue: Rightness of Policy, Methods of Dissent Questions: Is the policy immoral? Is the dissent appropriate? Examples: John Lilburne (1649) John Zenger (1734) Catonsville 9 (1968) Karl Armstrong (1973) | Issue: Power and Expediency Question: Is the trial designed to eliminate opposition? Examples: Socrates (399 BC) Thomas More (1532) Alfred Dreyfus (1894) Stalin Trials (1936-38) |
| NATIONALISTS | Issue: Representation Questions: Does the government represent all? Does the nationalist group represent a distinct people? Examples: Robert Emmet (1803) Panther 21 (1970) Wounded Knee (1974) | Issue: Power and Expediency Question: Is the trial designed to further the domination over an ethnic group? Examples: Jesus (30 AD) Joan of Arc (1431) Spanish Inquisition (1478) Sacco & Vanzetti (1921) Nelson Mandela (1962) SWAPO (Aaron Mushimba, 1976) |
| REGIMES | Issue: Legitimacy Questions: Was the former government legitimate? Is the court? Examples: Mary, Queen of Scots (1586) Pres. Andrew Johnson (1868) Nuremberg (1945) | Issue: Power and Expediency Question: Is this victor's justice? Examples: Charles I (1649) Louis XVI (1792) Iranian Tribunal (1980) |
Certain trials raise the question: What is the nature of public responsibility? Where the trial involves possible corruption or other scandal, the issue requires that we draw the line between private life and public duty.
Lord Chancellor Francis Bacon, tried in 1621 for taking bribes, provides the classic example, and the Watergate cases furnish recent examples. Insanity cases, especially those of assassins, raise another problem with responsibility: the difficulty of judging when a person can and cannot be held responsible. The John Hinckley and Dan White cases, as well as the trial of Charles Guiteau, who assassinated President Garfield, and the important case of Daniel McNaughton, will provide examples. This is the topic for chapter 4.In chapter 5 the question of conscience and the law is raised. The trial of Socrates is the classic of this type, and the 1649 trial of John Lilburne demonstrates the wide diversity of issues such trials might touch. Other examples include the trials of Thomas More, Roger Williams, Anne Hutchinson, John Peter Zenger, the Boston 5, the D.C. 9, and the Berrigans. Because conscience is the focus in trials of dissenters, a frequent controversy involves jury nullification. When dissenters act out of frustration instead of conscience, as illustrated in chapter 6 with the trials of Fritz Adler (who assassinated the Austrian prime minister) and Karl Armstrong (who bombed the Army Math Computer Center at the University of Wisconsin), the argument about the immorality of the policy and the rightness of the act is undermined.
The nature of representation, the relationship of the part to the whole, arises when nationalists are tried. In chapter 7 the trial of Jesus is presented as a classic example, but other clear-cut nationalist trials include those of Joan of Arc, the Spanish Inquisition, Martin Luther, Irish nationalists, Gandhi, the Black Panthers, and Angela Davis. A detailed examination of such a trial is the topic of chapter 8, which is about the trial of Dennis Banks and Russell Means for the Wounded Knee takeover. The most difficult of all trials to rein in with the rule of law are those of regimes, the topic in chapter 9, because they undertake the most fundamental question of both law and politics: legitimacy. Such trials as those of Charles I, Louis XVI, and the Nazi leaders at Nuremberg. They take law back to its origins in the rejection of self-help and confront politics with the test of its limits in the rule of law.
The conclusion, chapter 10, will present a jurisprudence of political trials. Given the political questions that arise in political trials, what is law? Most of the dilemmas involved in political trials can be contained in the phrase law and order. Political trials alone will not resolve the dilemmas. But through certain political trials we may develop a sounder understanding of law, politics, and history. Political trials, by challenging us with basic tensions of politics, indirectly change both politics and law indirectly and continually.