Sekhri on the Third Degree in India

Abhinav Sekhri, an advocate at the Delhi High Court (with an LLM from HLS), has posted From “Bully Boys'” to “Willing Servants”: Police, the Third Degree, and Indian Courts: 1861-1961:

This paper examines the development of India's statutory and constitutional rules to forestall improper police practices designed to compel self-incrimination. Focusing on the period between 1861 1961, it describes how the judiciary consistently limited the potential of this legal framework to police the police. This was due to the choice of interpreting the rules as a means to ensure reliability of evidence, rather than as safeguards for defendants against police abuses. These widely-held judicial attitudes in colonial courts influenced the interpretation of independent India's constitutional ban against compelled self-incrimination as well. This paper attempts to explain why the Supreme Court chose to adopt a restrictive view of that protection, contesting its legal sufficiency but suggesting that, perhaps, that choice was forced upon a nascent Court which had to pick its battles.

Seo on Democratic Policing before the Due Process Revolution

Sarah Seo, University of Iowa College of Law, has posted Democratic Policing Before the Due Process Revolution, which is forthcoming in the Yale Law Journal.

In 1952, Jerome Hall gave a series of lectures on “Police and Law in a Democratic Society.” Applying the methodologies of intellectual and cultural histories, this Essay traces how Hall’s concept of democratic policing shifted from self-rule, to the rule of law, and finally to due process as he struggled to account for twentieth-century police forces that were not, in important ways, governed by the people or constrained entirely by law. That is, Hall modified his ideas of democracy to accommodate the police, rather than the other way around, with the police having to change in accordance with democratic principles. By placing the lectures within the context of the Cold War, the Essay argues that due process was not just a legal norm, but also a cultural value that rationalized discretionary policing at a time when it smacked of totalitarianism and, at the same time, served to distinguish two competing systems of government that both relied on discretionary authority. The Essay concludes by exploring how Hall’s explication of due process, which was representative of midcentury understandings, necessarily revises prevailing interpretations of due process as a restraint on police discretion, thus bringing new light to the Warren Court’s due process revolution.

Ingram on Federal Prosecutors and Neutrality, 1793

Scott Ingram, High Point University, has posted Representing the United States Government: Reconceiving the Federal Prosecutor's Role Through a Historical Lens, which appeared in the Notre Dame Journal of Law, Ethics and Public Policy 31 (2017): 293-338

For nearly 100 years courts and legal scholars have held prosecutors to the “justice” standard, meaning that the prosecutor’s first duty is to ensure that justice is done. With this command, prosecutors have increased their discretion. The modern prosecutor’s power is unrivaled in the criminal justice system. Judges and defense attorneys have ceded some of their power to prosecutors. The prosecutor’s power has led a host of commentators to critique prosecutorial use of power for a variety of reasons. Rather than add to this voluminous literature by defending or critiquing prosecutorial power, this Article challenges the underlying assumption of prosecutorial power: that prosecutors pursue justice. It argues that prosecutors should be freed from the “justice” standard and, instead, at least on the federal level, be responsive only to clearly articulated executive policy.

To demonstrate how prosecutors would function in a system where they are not required to do justice, this article examines criminal enforcement of the federal government’s neutrality policy in 1793. This was the new government’s first organized foray into criminal prosecution. President George Washington and his administration proceeded based on national interest and expected their attorneys, the United States District Attorneys, to adhere and enforce the national policy. The Article begins by establishing that federal prosecutors represent the government and not the people’s interests. It then defines how the people are represented in a republican government with a particular focus on how members of Washington’s administration interpreted the concept of representation. It then describes how Washington and his administration enforced neutrality through criminal prosecution. Against this backdrop, the final section argues that our modern federal prosecutorial problems can be resolved if we reconceive the federal prosecutor’s function as a policy enforcer rather than a quasi-judicial figure.

Kamali & Green on England's Adoption of Trial by Jury

Elizabeth Papp Kamali, Harvard Law School, and Thomas A. Green, University of Michigan Law School, have posted The Assumptions Underlying England's Adoption of Trial by Jury for Crime, which appears in Law and Society in Later Medieval England and Ireland: Essays in Honour of Paul Brand, ed. Travis Baker (New York: Routledge, 2018), 51-81.

Within a few years of Lateran IV’s prohibition of priestly involvement in trial by ordeal, England moved definitively toward a criminal justice system based on trial by jury. This paper will explore the underlying assumptions of king, council and justices at the time of the criminal trial jury’s introduction (c. 1220) as to the jury’s precise function within a prosecutory system that countenanced only capital sanctions for those convicted of felony. Unearthing these assumptions will require careful consideration of earlier ordeal procedure and other kinds of juries in the late twelfth and early thirteenth centuries, most notably juries of presentment, coroners’ inquests, and juries tasked with responding to writs de odio et atia. It will also require situating trial by jury within the broader context of felony adjudication with its manifold escape valves, including benefit of clergy, sanctuary, abjuration and pardons. The paper will rely on a re-examination of primary source materials and engagement with the existing secondary literature to grapple with the broad questions of what constituted serious criminal wrongdoing, what jurors were expected to know and do in adjudicating felony cases, and the extent to which jurors’ verdicts were based on knowledge or belief in the guilt of an individual, as opposed to such factors as reputation, rumor or expected recidivism. With regard to the issue of jury independence, the paper will query whether juries engaged in unilateral nullification of the law, or whether verdicts that appear to be contrary to the law reflect instead a consensus of judge and jury. Related to this is the macro-level question of what constituted the law, including the related matters of how jurors were to know the law and respond to it. As a think piece, this paper will test several hypotheses regarding problems fundamental to the history of English criminal law, some of which may prove unresolvable.

Mayeux on the Federal Courts and Criminal Justice

Sara Mayeux, Vanderbilt University Law School, has posted The Federal Courts and Criminal Justice, which is forthcoming in Approaches to Federal Judicial History, ed. Clara Altman, Gautham Rao & Winston Bowman (Federal Judicial Center):

Mass incarceration has long constituted not only a sociological fact and a moral disaster in the United States, but also a major sector of the public and private economy; a significant component of ideologies of race, gender, and sexuality; and a distorting influence upon electoral processes and deliberative democracy. What role has the federal judiciary played in this complex history? This short historiographical essay provides a brief and necessarily selective introduction to exemplary scholarship addressing the relationship between the federal courts and criminal justice in U.S. history, and seeks to encourage historians of the carceral state—even or especially those who do not define themselves primarily as legal historians—to join the conversation. The essay is structured around three of the most significant ways in which the federal judiciary has historically made and enforced criminal justice policy: by adjudicating federal criminal prosecutions; by reviewing state-court convictions, via federal habeas jurisdiction; and by reforming state prisons and local jails, via constitutional conditions-of-confinement litigation. This essay was prepared at the invitation of the Federal Judicial History Office for a forthcoming volume.

Freedman's "Making Habeas Work"

Eric M. Freedman, the Siggi B. Wilzig Distinguished Professor of Constitutional Rights at the Maurice A. Deane School of Law at Hofstra University, has published Making Habeas Work: A Legal History, with NYU Press.

Habeas corpus, the storied Great Writ of Liberty, is a judicial order that requires government officials to produce a prisoner in court, persuade an independent judge of the correctness of their claimed factual and legal justifications for the individual’s imprisonment, or else release the captive. Frequently the officials resist being called to account.  Much of the history of the rule of law, including the history being made today, has emerged from the resulting clashes.

This book, heavily based on primary sources from the colonial and early national periods and significant original research in the New Hampshire State Archives, enriches our understanding of the past and draws lessons for the present.

Using dozens of previously unknown examples, Professor Freedman shows how the writ of habeas corpus has been just one part of an intricate machinery for securing freedom under law, and explores the lessons this history holds for some of today’s most pressing problems including terrorism, the Guantanamo Bay detentions, immigration, Brexit, and domestic violence.

Exploring landmark cases of the past - like that of John Peter Zenger - from new angles and expanding the definition of habeas corpus from a formal one to a functional one, Making Habeas Work brings to light the stories of many people previously overlooked (like the free black woman Zipporah, defendant in “the case of the headless baby”) because their cases did not bear the label “habeas corpus.”

The resulting insights lead to forward-thinking recommendations for strengthening the rule of law to insure that it endures into the future.

Here are some endorsements:

“Eric M. Freedman is one of the most important legal thinkers in the area of habeas corpus, and this book reaffirms that status. Keeping one foot in the present and the other firmly planted in the past, Freedman shows how, without the perspective of history, modern jurisprudence can and does go wrong. A compelling reformulation of our understanding of habeas based on extensive historical research.”
 —Austin Sarat, William Nelson Cromwell Professor Of Jurisprudence & Political Science, Amherst College

“This impressive work of scholarship by one of the leading national experts on habeas corpus draws deeply on history to expand and enrich the modern understanding of the writ. The book is an invaluable resource for legal scholars, the judiciary, and the practicing bar. Its insights will almost certainly surprise  readers, just as they have surprised and informed us notwithstanding our long immersion in the topic.”
—Randy Hertz and James S. Liebman, co-authors, Federal Habeas Corpus Practice and Procedure (LexisNexis 7th ed. & annual supplements)

“Professor Eric Freedman has written a wonderful book explaining the historical and contemporary importance of habeas corpus in protecting liberty.  The book is original in its research and also in its analysis, as Professor Freedman explains the role of habeas corpus in a system of checks and balances.  This clearly written, thorough examination of habeas corpus is an important contribution to the literature of constitutional law, criminal procedure, and federal jurisdiction.”
—Erwin Chemerinsky, Dean and Jesse H. Choper Distinguished Professor, University of California, Berkeley Law School

Oliver's "Prohibition Era and Policing"

Wesley M. Oliver, Professor of Law at Duquesne University, has published The Prohibition Era and Policing: A Legacy of Misregulation with Vanderbilt University Press.

Legal precedents created during Prohibition have lingered, leaving search-and-seizure law much better defined than limits on police use of force, interrogation practices, or eyewitness identification protocols. An unlawful trunk search is thus guarded against more thoroughly than an unnecessary shooting or a wrongful conviction.

Intrusive searches for alcohol during Prohibition destroyed middle-class Americans’ faith in police and ushered in a new basis for controlling police conduct. State courts in the 1920s began to exclude perfectly reliable evidence obtained in an illegal search. Then, as Prohibition drew to a close, a presidential commission awakened the public to torture in interrogation rooms, prompting courts to exclude coerced confessions irrespective of whether the technique had produced a reliable statement.

Prohibition’s scheme lingered long past the Roaring ‘20s. Racial tensions and police brutality were bigger concerns in the 1960s than illegal searches, yet when the Supreme Court imposed limits on officers’ conduct in 1961, searches alone were regulated. Interrogation law during the 1960s, fundamentally reshaped by the Miranda ruling, ensured that suspects who invoked their rights would not be subject to coercive tactics, but did nothing to ensure reliable confessions by those who were questioned. Explicitly recognizing that its decisions excluding evidence had not been well-received, the Court in the 1970s refused to exclude identifications merely because they were made in suggestive lineups. Perhaps a larger project awaits—refocusing our rules of criminal procedure on those concerns from which Prohibition distracted us: conviction accuracy and the use of force by police.

Here are two endorsements that matter:

“Wesley Oliver’s The Prohibition Era and Policing places him firmly within the wonderful new body of historical work that shows us how Prohibition continues to shape American law, governance, and society. Oliver does what historians do best—demonstrate how our present circumstances are profoundly shaped by our past, and how we might imagine a better future. Oliver believes that Americans deserve a more effective and more accountable criminal justice system, and uses history to help us see our present system as both contingent and changeable.”
    —Kenneth W. Mack, Lawrence D. Biele Professor of Law and Affiliate Professor of History, Harvard Law School

“Wes Oliver tells a fascinating story of criminal procedure in the early twentieth century, and he makes a novel, compelling argument for the centrality of the Prohibition Era in understanding the way the United States currently regulates the police. This is an important and provocative book.”
    —David Alan Sklansky, Stanley Morrison Professor of Law, Stanford University

Schrader Reviews Harring's "Policing a Class Society"

Stuart Schrader, a Fellow in Crime and Punishment at the Charles Warren Center for Studies in American History at Harvard University, has published a three-part review of Sidney L. Harring's Policing a Class Society: The Experience of American Cities, 1865–1915, 2nd ed. (Chicago: Haymarket Books, 2017) , in Legal Form: A Forum for Marxist Analysis of Law.  The posts are here, here, and here.  H/t: Patrick O'Donnell.

Howlin on a 19th-Century Irish Murder Trial

Niamh Howlin, Sutherland School of Law, University College Dublin, Maamtrasna: The Trial of Myles Joyce in 1882

At Maamtrasna, County Galway, five members of the Joyce family were brutally killed in August 1882. The initial victims were John Joyce his mother, Margaret Joyce, his wife, Bridget Joyce, his daughter, Margaret Joyce (also known as Peggy). John’s son, Michael Joyce, died of his injuries the following day. The sole survivor of the attack was Patsy Joyce, John’s youngest son, aged around nine or ten years.

Myles Joyce was convicted in November 1882 of murdering his cousin, Margaret Joyce. He was one of ten men arrested. Two of these men, Anthony Philbin and Thomas Casey, later testified against the others. Five pleaded guilty and received prison sentences; these were Michael Casey, Martin Joyce (Myles’s brother), Patrick Joyce (another brother of Myles), Tom Joyce (Patrick’s son) and John Casey. Three men, Myles Joyce, Patrick Joyce and Patrick Casey were tried, convicted and hanged. Given the number of victims, accused persons and accusers, and the remote, tight-knit nature of the area, it is unsurprising that there were various relationships between the main protagonists. They were neighbours, cousins, brothers, fathers and sons, many of whom shared the same names and surnames.

Myles Joyce’s death sentence was executed at Galway Gaol in December 1882. Right up until the point of death Myles protested his innocence, and is now widely accepted as having been innocent of the offence. Two other men who were hanged alongside Myles, (Patrick Joyce and Patrick Casey), claimed responsibility for the murders before they were executed. Both emphasised Myles Joyce’s innocence. The question for this paper is whether the circumstances Myles’s conviction were inconsistent with the legal standards of the period.

Meyn on the Drafting of the Federal Rules of Criminal Procedure

Ion Meyn, University of Wisconsin Law School, has posted Why Civil and Criminal Procedure Are So Different: A Forgotten History, which appears in the Fordham Law Review 86 (2017): 697-736:

Much has been written about the origins of civil procedure. Yet little is known about the origins of criminal procedure, even though it governs how millions of cases in federal and state courts are litigated each year. This Article’s examination of criminal procedure’s origin story questions the prevailing notion that civil and criminal procedure require different treatment. The Article’s starting point is the first draft of the Federal Rules of Criminal Procedure — confidential in 1941 and since forgotten. The draft reveals that reformers of criminal procedure turned to the new rules of civil procedure for guidance. The contents of this draft shed light on an extraordinary moment: reformers initially proposed that all litigation in the United States, civil and criminal, be governed by a unified procedural code. The implementation of this original vision of a unified code would have had dramatic implications for how criminal law is practiced and perceived today. The advisory committee’s final product in 1944, however, set criminal litigation on a very different course. Transcripts of the committee’s initial meetings reveal that the final code of criminal procedure emerged from the clash of ideas presented by two committee members, James Robinson and Alexander Holtzoff.  Holtzoff’s traditional views would ultimately persuade other members, cleaving criminal procedure from civil procedure.

Since then, differences in civil and criminal litigation have become entrenched and normalized. Yet, at the time the Federal Rules of Criminal Procedure were drafted, a unified code was not just a plausible alternative but the only proposal. The draft’s challenge to the prevailing notion that civil and criminal wrongs inherently require different procedural treatment is a critical contribution to the growing debate over whether the absence of discovery in criminal procedure is justified in light of discovery tools afforded by civil procedure. The first draft of criminal procedure, which called for uniform rules to govern proceedings in all civil and criminal courtrooms, suggests the possibility that current resistance to unification is, to a significant degree, historically contingent.

Surrency Prize to Adler

At the recently concluded Annual Meeting of the ASLH, the Society's Surrency Prize for 2017 was awarded to Jeffrey S. Adler, University of Florida, for “The Greatest Thrill I Get is When I Hear a Criminal Say, ‘Yes, I Did It’: Race and the Third Degree in New Orleans, 1920-1945," Law and History Review 34 (Number 1, 2016): 1-44.   The citation reads:

Adler draws on a rich array of sources, including coroner reports and other archival materials, to correct our understanding of the history of police interrogation practices, specifically the use of the “third-degree” interrogations designed to secure confessions. Even as law enforcement professionalized and foreswore coerced confessions, police chiefs continued to defend the practice as a crime fighting tool. In a local study of New Orleans, Adler shows how the use of third-degree interrogation practice shifted from whites accused of crimes to blacks, and came to play a role in enforcing Jim Crow.

This outstanding article contributes to a wide range of conversations: the birth of modern due process; evolving professional conceptions of policing; law enforcement and race; and the relation of professional and popular justice. Importantly, Adler’s argument suggests how racial hierarchy can change in form without necessarily improving the welfare or standing of minorities. As public authorities increasingly repudiate lynching, these forces of popular justice were then channeled into the enforcement of the criminal law.

The Surrency Prize Committee was chaired by Kenneth F. Ledford, Case Western Reserve University.  Its other members were Shaunnagh Dorsett, University of Technology, Sydney; Malick W. Ghachem, Massachusetts Institute of Technology; Maribel Morey, Clemson University; and Reva Siegel, Yale University.

Weekend Roundup

• Recently posted in the Washington Post’s “Made By History” series is Victoria Saker Woeste’s The anti-Semitic origins of the war on "fake news."  It recounts “How Henry Ford tried to discredit the media in order to spread anti-Jewish propaganda.”  

• A scholars' brief on "the History and Original Meaning of the Fourth Amendment as Amici Curiae in Support of Petitioner in Carpenter v. United States" is now up on SSRN.

• The Faculty Lounge has an announcement of a new project at Southern Methodist University, Women’s Rights in America: From Early Stirrings to Third Wave Feminism.

• Congratulations to Sarah Staszak, whose No Day in Court: Access to Justice and the Politics of Retrenchment (Oxford University Press, 2015) has recently won the J. David Greenstone Book Award from the American Political Science Association for best book published in the past two years in politics and history. 

• Of possible interest to legal historians of Asia: two back-to-back conferences on comparative law in Asia at the National University of Singapore, Sept.27-28, 2018. The deadline for registration is Sept.12. Details here.

• A follow-up to our recent post on teaching non-US and global legal history through film: Bram Fischer (2017) is about lawyers and the anti-apartheid struggle in South Africa. Trailer here (H/t: Rohit De). 

• The Constitutional Sources Project (ConSource) is co-hosting an art exhibit on the Bill of Rights at Cooper Union in New York City during Constitution Week (September 18-23). The exhibit is free and open to the public.

• Congratulations to Steven Brown, Auburn University, for wining the Hughes-Gossett Senior Prize for the best article in the Journal of Supreme Court History.  More. 

• Jeremi Suri, the Mack Brown Distinguished Chair for Leadership in Global Affairs at the University of Texas at Austin, delivers The Impossible Presidency: The Rise and Fall of America’s Highest Office, the 2017 William Roger Louis lecture, before the National History Center and the Woodrow Wilson Center’s History and Public Policy Program on Monday, September 11, 2017, 4:00pm-5:30pm, in the Wilson Center’s 6th Floor Moynihan Boardroom.

• A reminder that the Law Library of Congress will commemorate Constitution Day with a talk by Michael J. Klarman, Harvard Law School, on The Framers’ Coup: The Making of the United States Constitution (Oxford University Press, 2016), on Tuesday, September 12, 2017, from 1:00 p.m. to 2:00 p.m. in Room LJ-119, located on the first floor of the Thomas Jefferson Building, 10 First St. S.E., Washington, DC.

• Until just recently we missed quite a symposium on Native American Law in the Modern Era in the Albany Government Law Review 10:1.  Contributions include  Indian Title: Unraveling the Racial Context of Property Rights, or How to Stop Engaging in Conquest, by Joseph William Singer; Indians, Race, and Criminal Jurisdiction in Indian Country, by Alex Tallchief Skibine; Anishinaabe law and "The Round House,” by Matthew L.M. Fletcher; The Doctrine of Christian Discovery: Its Fundamental Importance in United States Indian Law and the Need for its Repudiation and Removal, by Joseph J. Heath, Esq.; and The Anglocentric Supremacy of the Marshall Court, by Neyooxet Greymorning.

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers. 

Chin and Ormonde on Infamous Misdemeanors and the Grand Jury Clause

Gabriel "Jack" Chin and John Ormonde, respectively, a professor and student at the University of California, Davis School of Law, have posted Infamous Misdemeanors and the Grand Jury Clause, which is forthcoming in volume 102 of the Minnesota Law Review:

Under an overlooked body of constitutional law, many more federal offenses must be prosecuted by grand jury indictment than is now the practice. Current rules provide that felonies must be prosecuted by grand jury indictment, but misdemeanor charges may be based on a prosecutor’s information, or even a “ticket” issued by a law enforcement officer. However, serious consequences fall on people convicted of federal misdemeanors, including deportation, sex offender or other criminal registration, ineligibility for public benefits, and loss of civil rights. In the late 19th and early 20th century, the Supreme Court held in a series of cases, never overruled, that to charge an infamous misdemeanor required a grand jury indictment. The Court held that infamous offenses were ones potentially resulting in stigmatizing punishments degrading the offender’s status, indicating that the person is less than a full member of the community. These include corporal punishment, incarceration in a prison or penitentiary (as opposed to a jail), loss of civil rights or imposition of civil disabilities, and convictions implying moral turpitude. Many federal misdemeanors carry these consequences. And federal misdemeanors are much more likely to be dismissed without trial than felonies. More thoughtful evaluation of misdemeanor cases before charge would often terminate cases which wind up being dismissed after charge. As a result, thousands of Americans would avoid the stigma of a criminal record where it is unwarranted. This is what the framers of the Constitution intended.

A Remembrance of Clinton Bamberger

Earlier we noted my Georgetown Law colleague Wallace Mlyniec’s appreciation of Clinton Bamberger, who, among other things, directed "the Office of Economic Opportunity’s legal services program before the creation of the Legal Services Corporation."  Here is another, written by Brendan Kearney, formerly a journalist in Baltimore and currently a student in my legal history seminar this semester.

Punishment and Its Discontents: A Graduate Student Conference

[We have the following announcement.]

Punishment and Its Discontents, a Graduate Student Conference, at the Nicholas D. Chabraja Center for Historical Studies, Northwestern University, May 19, 2017.  Deadline, Wednesday, February 1, 2017

Mass incarceration, state surveillance, militarized policing, even punitive parenting
movements – all are aspects of the contemporary American carceral state and
representative of the punitive turn in U.S. culture and politics. Punishment, however, is
neither unique to the U.S. nor this moment, and its development has not gone
unchallenged. This conference will explore the myriad social, political, cultural, and
economic implications of punishment, evaluating its role in broader developments from
inscribing gender ideologies to empowering the rise of neoliberalism. It seeks to bring
together a diverse group of scholars exploring the history of punishment and its
discontents at a number of levels, from global applications of punitive power to personal
stories of experiencing punishment or resisting it.

We invite submissions from all fields of history and related disciplines. Submissions may
address, but are not limited to, the following questions: How have historians defined and
theorized punishment, the carceral state, and/or the punitive turn? How has state capacity
to punish developed over time? How has political rhetoric served to justify punitive
policies? How has opposition to such policies been organized? What have been the
consequences of specific groups’ contacts with the carceral state? How has punishment
established or reified gender and racial ideologies? How have changes in punishment
policies reflected shrinking or growing state capacity in other areas? What challenges do
scholars face in studying the history of punishment?

Ethel Rosenberg as the "Government's Hostage"

Mark Denbeaux, director of the Center for Policy and Research at Seton Hall University School of Law, and four co-authors and research fellows have posted The Government's Hostage: The Conviction and Execution of Ethel Rosenberg:

Ethel and Julius Rosenberg (Wiki)

Whether or not Ethel Rosenberg was guilty of the offense for which she was tried, convicted, and executed, there is little doubt that the evidence upon which the conviction was based was threadbare. Indeed, even the government itself thought so. The government’s prosecution of Ethel relied exclusively on the testimony of David and Ruth Greenglass, Ethel’s brother and sister-in-law. A July 17, 1950 internal FBI memo declared there was not enough evidence to arrest Ethel Rosenberg. The government did not discover any new evidence against Ethel between the release of that memo and Ethel’s arrest on August 11, 1950. Furthermore, no new evidence was discovered in the time between her arrest and her indictment on January 31, 1951, shortly before her trial in March. And it was in that brief period that both the Greenglasses’ stories dramatically evolved as to the extent of Ethel’s supposed connections with the alleged conspiracy.

Her conviction and execution rested on three claims: (1) Ethel asked Ruth to convey Julius’ espionage recruitment offer to David; (2) Ethel typed up notes containing nuclear secrets in order to transmit them to the Soviets; and (3) Ethel and Julius received a mahogany table and other gifts from the Soviets as a reward for their commitment to the cause. Of the three, the only evidence present at the time Ethel was indicted was Ruth’s statement that Ethel asked Ruth to convey Julius’ recruitment offer to David. Despite giving several statements, over the course of eight months, neither Ruth nor David Greenglass mentioned Ethel typing up the notes until two weeks before trial. The indictment and pretrial documents also fail to report that Ethel received gifts from the Russians. This accusation was first introduced into the trial documents during the Greenglasses’ trial testimony.

The conclusion in the July 17, 1950 FBI memo, stating that the evidence against Ethel was insufficient to warrant prosecution, remained true throughout her arrest, prosecution, conviction, and execution.

The reason for her prosecution seems clear: Ethel was executed because she refused to cooperate with the Government to help convict her husband, Julius. Ethel was merely a pawn used for leverage in the government’s attempt to build a case against Julius Rosenberg.

New Release: Burney and Pemberton on CSI

Out this month from Johns Hopkins University Press is Murder and the Making of English CSI by Ian Burney and Neil Pemberton, both of the University of Manchester. From the press:

Crime scene investigation—or CSI—has captured the modern imagination. On television screens and in newspapers, we follow the exploits of forensic officers wearing protective suits and working behind police tape to identify and secure physical evidence for laboratory analysis. But where did this ensemble of investigative specialists and scientific techniques come from?

In Murder and the Making of English CSI, Ian Burney and Neil Pemberton tell the engrossing history of how, in the first half of the twentieth century, novel routines, regulations, and techniques—from chain-of-custody procedures to the analysis of hair, blood, and fiber—fundamentally transformed the processing of murder scenes. Focusing on two iconic English investigations—the 1924 case of Emily Kaye, who was beaten and dismembered by her lover at a lonely beachfront holiday cottage, and the 1953 investigation into John Christie’s serial murders in his dingy terraced home in London’s West End—Burney and Pemberton chart the emergence of the crime scene as a new space of forensic activity.

Drawing on fascinating source material ranging from how-to investigator handbooks and detective novels to crime journalism, police case reports, and courtroom transcripts, the book shows readers how, over time, the focus of murder inquiries shifted from a primarily medical and autopsy-based interest in the victim’s body to one dominated by laboratory technicians laboring over minute trace evidence. Murder and the Making of English CSI reveals the compelling and untold story of how one of the most iconic features of our present-day forensic landscape came into being. It is a must-read for forensic scientists, historians, and true crime devotees alike.

Praise after the jump.

Plater and Crofts on Pardoning Australian Bushrangers

David Plater, University of Tasmania, Faculty of Law, and Penny Crofts, University of Technology Sydney, Faculty of Law, have posted Bushrangers, the Exercise of Mercy and the ‘Last Penalty of the Law’ in New South Wales and Tasmania 1824-1856, which appeared in the University of Tasmania Law Review 32 (2013): 295-343:

The death penalty in the 19th century in both colonial Australia and Great Britain was widely seen as necessary for punishment and deterrence. However, the prerogative of mercy served a vital role during this period in mitigating the effects of capital punishment. This article examines the exercise of the death penalty and the prerogative of mercy in colonial Australia during the period from 1824 to the grant of responsible government in 1856 with respect to bushrangers. Bushrangers despite their often celebrated and even sympathetic status in ‘popular culture’ were perceived (in official and ‘respectable’ circles at least) as more than mere colonial criminals and as posing a particular threat to the often tenuous stability and even existence of early colonial society. However, even offenders ‘beyond the pale’ such as bushrangers were not exempted from the benefit of mercy. It is argued that the prerogative was taken seriously in colonial Australia by the public, the press and notably the authorities to even the worst of capital offenders such as bushrangers. Different conceptions were expressed during the time, ranging from ideas of mercy as based on desert and equity, as something that was predictable and consistent, to ideas of mercy as an undeserved gift. These debates about the prerogative of mercy articulated different conceptions of law and order, community and justice in an embryonic, self-governing society.

Meares on Policing and Its Reform

On July 11, Tracey L. Meares, Walton Hale Hamilton Professor of Law at Yale University, delivered the 12th annual Robert H. Jackson Lecture on the Supreme Court of the United States at the Chautauqua Institution.  According to an announcement disseminated to subscribers to John Q. Barrett’s Jackson List, “Professor Meares’s lecture, entitled “Policing and Its Reform in the 21st Century,” addressed recent and historical United States events (including, beginning at 29:20, the Supreme Court’s June 20th decision in Utah v. Strieff), human experiences, academic research, psychology and communal education.”  The lecture, “preceded by brief introductions, and followed by audience questions and Meares answers,” is here.  Excerpts from “an interview that Professor Meares gave at the Robert H. Jackson Center” on July 10 are here.

Azam on Rape in Islamic Law

Sexual Violation in Islamic Law: Substance, Evidence, and Procedure by Hina Azam of the University of Texas at Austin (Cambridge 2015) is an intellectual history of the law of rape. It compares two schools of Sunni Islamic law--the Hanafi and the Malaki--and has especially interesting things to say about legal bricolage or talfiq, the combining of rules from different schools of law.  From the publisher: 

This book provides a detailed analysis of Islamic juristic writings on the topic of rape and argues that classical Islamic jurisprudence contained nuanced, substantially divergent doctrines of sexual violation as a punishable crime. The work centers on legal discourses of the first six centuries of Islam, the period during which these discourses reached their classical forms, and chronicles the juristic conflict over whether or not to provide monetary compensations to victims. Along with tracing the emergence and development of this conflict over time, Hina Azam explains evidentiary ramifications of each of the two competing positions, which are examined through debates between the Ḥanafī and Mālikī schools of law. This study examines several critical themes in Islamic law, such as the relationship between sexuality and property, the tension between divine rights and personal rights in sex crimes, and justifications of victim's rights afforded by the two competing doctrines.

(We noted her New Books Network podcast here earlier.)

 Praise includes: