{"id":21882,"date":"2013-12-15T22:05:48","date_gmt":"2013-12-16T03:05:48","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=21882"},"modified":"2013-12-15T22:05:48","modified_gmt":"2013-12-16T03:05:48","slug":"the-past-is-a-foreign-country-or-is-it","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2013\/12\/the-past-is-a-foreign-country-or-is-it\/","title":{"rendered":"\u201cThe Past Is a Foreign Country\u201d \u2014 Or Is It?"},"content":{"rendered":"

\"dean<\/a>I\u2019ve recently finished reading Dean Strang\u2019s fascinating new book, \u201cWorse Than the Devil: Anarchists, Clarence Darrow, and Justice in a Time of Terror<\/a>.\u201d \u00a0The book recounts the story of a once-famous (or infamous) criminal case that was tried in Milwaukee nearly a century ago. \u00a0The case arose from a short, armed skirmish between police and residents of Milwaukee\u2019s largely Italian, working-class Bay View neighborhood in September 1917. In the wake of that violence, police indiscriminately arrested dozens of Italian immigrants, ultimately resulting in the trial of eleven suspected anarchists in November 1917 on charges of assault with intent to murder.<\/p>\n

America\u2019s recent entry into the First World War had already created a public atmosphere that was hardly favorable to immigrants and political dissidents, but a terrible local tragedy may have wiped out any remaining hope that the defendants would receive a fair trial. \u00a0Just days before the jury was selected, a bomb exploded in a Milwaukee police station, killing ten \u2014 America\u2019s single greatest loss of officers in the line of duty before 9\/11. Although the Bay View defendants were not formally charged with this crime \u2014 indeed, the case was never solved and no one was ever formally charged \u2014 the bombing was widely believed to be the work of the defendants\u2019 supporters.<\/p>\n

Little wonder that all of the defendants were convicted on a dubious conspiracy theory in a trial that reeked of pro-prosecution bias from start to finish. \u00a0<\/p>\n

At this point in the story, Strang\u2019s narrative intersects with the life of one of the true giants of American legal history, as famed \u201clawyer for the damned\u201d Clarence Darrow takes the appeal. \u00a0Strang neatly situates this episode within Darrow\u2019s career, and explores the disquieting possibility that Darrow entered into a deal to falsify the trial record so as to ensure a reversal of the convictions of the Bay View defendants. \u00a0In the end, the Wisconsin Supreme Court did overturn the convictions of nine of the eleven. \u00a0The other two had their sentences commuted by the Governor.<\/p>\n

Strang, a veteran criminal-defense lawyer and adjunct faculty member at Marquette Law School, tells the story of the Bay View case with the kind of insight that can only come from an author who has paid his dues in the courtroom. \u00a0He does a remarkable job of getting inside the heads of the various lawyers and judges involved in the case, and one leaves the book feeling that one has really come to know many of them as people.<\/p>\n

This is not to say that they tend to come across as particularly admirable.<\/p>\n

Strang\u2019s picture of the criminal-justice system is hardly attractive. \u00a0From the standpoint of the defendants, with their limited understanding of the English language, the trial must have seemed a Kafka-esque nightmare. \u00a0Although the evidence against most of them was extremely flimsy \u2014 indeed, virtually non-existent as to some \u2014 no one made much of an effort to distinguish among them at trial or sentencing. \u00a0The convictions amounted to little more than guilt by association.<\/p>\n

The question that overhangs all of this is whether we do much better in the criminal-justice system today.<\/p>\n

Certainly, we have many more rules now that are intended to provide greater protection for defendants. \u00a0It is unlikely, for instance, that a single lawyer would represent ten codefendants today, as happened in the Bay View trial.<\/p>\n

Rules, however, are only effective insofar as the professionals who work in the system \u2014 police, prosecutors, defense lawyers, judges \u2014 take their purposes to heart.<\/p>\n

The real question, I think, is not whether we have better rules than we had in 1917, but whether our \u00a0criminal-justice professionals have more courage and integrity today in dealing with defendants who already stand convicted in the court of public opinion.<\/p>\n

Strang\u2019s preface reflects thoughtfully on the relevance of the Bay View story for our time. \u00a0He writes:<\/p>\n

Uncoupled from its day and its details, the book\u2019s story is a parable of the human frailty that necessarily weakens every link in any system of justice, including ours today. \u00a0In its own time, the story concerned immigrants who were real or suspected anarchists. \u00a0Thirty years later, after the next world war, it would have concerned actual and suspected communists, many of them also immigrants or the children of immigrants. \u00a0Today, it might concern actual and suspected Islamist radicals, who again often are immigrants, the children of immigrants, or watching the West (and the United States especially) from afar.<\/p>\n

So the accidental details of characters, creed, and catalyst change over time. \u00a0But the underlying flaws, even failings, of our institutions of criminal justice stubbornly resist rectification. \u00a0In a land that proposes to dispense equal justice under law, the alienated newcomer \u2014 the \u201cother,\u201d whoever he or she is in a given day \u2014 remains at real risk of an outcome that has little to do with individual justice or even fair process and much to do with assuaging public fear and venting public anger. \u00a0The prejudices, superstitions, and plain fears that animated police officers, prosecutors, judges, and juries a century ago all persist today.<\/p><\/blockquote>\n

Cross posted at Life Sentences Blog.<\/p>\n","protected":false},"excerpt":{"rendered":"

I\u2019ve recently finished reading Dean Strang\u2019s fascinating new book, \u201cWorse Than the Devil: Anarchists, Clarence Darrow, and Justice in a Time of Terror.\u201d \u00a0The book recounts the story of a once-famous (or infamous) criminal case that was tried in Milwaukee nearly a century ago. \u00a0The case arose from a short, armed skirmish between police and 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