In 1955, Rebecca West published her account of a trial, which she attended, of 31 men, accused of lynching a young black man, called Willie Earle, in Greenville, South Carolina. They had removed him from a gaol, and tortured and beaten him to death. He himself had been accused of killing a white taxi-driver and was awaiting trial.
At the trial of the 31, things were said that still have the power to shock, though in those days they seemed perfectly normal, at least to locals. One of the defence attorneys said during the trial that he didn’t see why the FBI should have been involved at all in the case. ‘Why, you would have thought someone had found a new atomic bomb, but all it was was a dead nigger boy.’ Later, he said ‘Willie Earle is dead, and I wish more like him was dead.’ And this attorney, John Bolt Culbertson, was regarded as a liberal by the prevailing standards of the place and time.
One of the prosecution witnesses had been severely beaten and felt constrained to leave the town. Although the identity of the culprit of the beating was perfectly known, a warrant for his arrest was refused. The jury had been given a warning: whatever the facts of the case, they must have felt it wiser, for their own safety, to acquit.
Blatant intimidation of juries, then, is nothing new, though perhaps its direction has changed. Surely the jury in the trial of Derek Chauvin, the policeman charged with the culpable homicide of George Floyd, must have been aware of the consequences, both to them personally and to the country as a whole, if they had chosen to acquit on any of the three charges against the accused. The former house of a defence witness had been smeared with blood and a pig’s head left outside: a case of Verb. sap. if ever there were one.
This is not to say, of course, that the jury might not have come to exactly the same conclusion had they been unaware that their lives were in danger and the whole country would go up in flames if they came to any other. The questions at issue were whether George Floyd would have died but for Chauvin’s actions, could or should Chauvin have known that his actions were dangerous, and had Chauvin any legal excuse for his actions. The verdict might well have been the same without any of the intimidation.
But it is inevitable that the atmosphere in which the trial was conducted detracted from universal acceptance of the justice of the verdict. It is not difficult to find angry assertions in commentary on the internet that, thanks to the violent reaction to the case and the publicity given to it, Chauvin could not have received a fair trial anywhere in the United States. (In the circumstances, the trial was probably carried out as fairly as possible.)
Perhaps this is true: how could any panel of jurors have simply excluded from their minds all that they had heard of the case other than what they heard as evidence in court, which is what judges always tell jurors to do? But what was the alternative to a trial in these toxic circumstances: simply to have let Chauvin go and put the whole episode down to experience?
One thing that the case illustrates is just how shallow are the roots of the notion of a fair trial in the popular mind, or at least that part of the populace that is vociferous. Once a person is deemed guilty – one might almost say exceptionally guilty – of a crime that excites the peculiar disgust and reprehension of the public, the supposed perpetrator is due no presumption of innocence and is therefore fair game for public expression of outrage and hatred. Sometimes, even the prosecuting authorities feel this.
When Dominique Strauss-Kahn, the former head of the International Monetary Fund accused of a sexual assault of a chamber-maid in a New York hotel, was brought to court it was done in such a way as to humiliate him utterly in public, though he had been found guilty of nothing. This was standard procedure, apparently, and was called the perp walk, the perpetrator’s walk, allegedly instituted because of the prosecuting authority’s frustration that it was so difficult to procure verdicts of guilt from juries. The perp walk was the punishment for crimes that would never be punished by mere due process. Sentence first, verdict afterwards, has become almost the accepted way of proceeding.
No doubt the kind of publicity given to the Derek Chauvin – George Floyd case was exceptional in its intensity, but the days in this country when silence, once a person had been charged, descended on the reporting of, or commentary upon, a case, have now gone, probably never to return: first because it is impossible to police the so-called social media and suppress such reporting or commentary, and second because in any case the reason for such silence is no longer much appreciated.
The right of the public to know, or rather to express its prurience and outrage, is now of much greater import than the right of an accused to a fair trial. This is so not only in Britain, but also in France, where, for example, all the allegations against Tariq Ramadan, the Islamist charged with rape, have been aired on or in every possible medium of communication, including by lawyers sworn professional to secrecy and in open defiance of the law.
I have no sympathy for Ramadan at all; I think him both odious and dangerous; but the fact is that the publicity given not only to the charges against him, but to publish all the evidence in supposed support of those charges, without any right of defence or reply, would make an unprejudiced trial, to which he is entitled like everyone else, almost impossible. And some people, at least, might use this unfairness as a reason, or pretext, for acts of terrorism: ‘See,’ they would say, ‘when you say that you believe in the rule of law, you don’t really mean it and abandon it as soon as it is convenient to you to do so.’
In Britain, mobs have gathered outside court to howl at alleged paedophiles who have not yet been found guilty of anything. The mothers who do the execration often bring their terrified children with them, apparently unaware that the experience is probably not very good for child-development. There is agitation by some feminists and their supporters that certain categories of victims, or alleged victims, should be believed ex officio, that is to say without any need for corroborative evidence. A person is thus to be regarded as guilty if someone accuses him. And if, by any chance, he should be acquitted, his life is still ruined.
I remember a prisoner on remand who was accused of two rapes and acquitted, not merely because there was insufficient evidence against him, but because it was conclusively proved that the allegations were false. Nevertheless, he had to leave the town in which he had lived all his life, because of the glorious legal principle that there is no smoke without fire.
Like so many aspects of civilization, the belief in the right to fair trial is fragile and not deeply embedded in the human soul. Where people are utterly convinced of their own rectitude and of the wickedness of people who have different opinions from their own, the idea of a fair trial will seem to them merely irrelevant or an obstruction to ‘true’ justice. Mob rule is not far distant.