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Flashbacks: "Sacco and Vanzetti" (August 23, 2002)
Articles by Felix Frankfurter, Katherine Anne Porter, and the lawyer W. G. Thompson offer a look back at the controversial trial and execution of Nicola Sacco and Bartolomeo Vanzetti.

Flashbacks: "Nuremberg Revisited" (November 1995)
Two articles from 1946 consider the precedent set at Nuremberg fifty years ago.

Flashbacks: "The Trial System on Trial" (October 1995)
A collection of Atlantic articles assesses America's trial system as a vehicle for administering justice.



Flashbacks
 
Drama in the Court!

March 24, 2004
 
his spring has proved to be an especially fertile period for scandalous trials. High-profile courtroom dramas of celebrity misdeeds—criminal proceedings against Martha Stewart and Kobe Bryant, and the back and forth leading up to the scheduled Michael Jackson trial—have provided a veritable feast for the celebrity voyeur. But as we indulge in sordid tales of the rich and famous gone felonious, we often neglect to consider the influence of prodigious media melodrama and the insidious role that public opinion plays in the all-too-real proceedings of the trials in question. Over the years, a number of Atlantic articles have scrutinized the courtroom sagas of various high-profile trials and analyzed what's at stake when cases play out in the public eye.

In "A Miscarriage of Justice" (January/February 2003) Robert F. Kennedy Jr. argued that the media's relentless and, in his view, skewed coverage of the trial of his cousin Michael Skakel led to Skakel's wrongful conviction for the murder of Martha Moxley. In the fall of 1975, the killing of fifteen-year-old Martha Moxley, a neighbor of the Skakel family, had confounded local Greenwich, Connecticut, police. The Skakel family had cooperated fully with the murder investigation, which did not produce hard evidence linking any of the Skakels to the crime. Circumstantial evidence seemed to point to the Skakel children's tutor, Ken Littleton, as a suspect. The police, however, seemed intent on charging Michael's older brother Tom Skakel for the crime, because he had been romantically involved with Martha at the time and was the last person known to have seen her alive. The state attorney's office refused to sign Tom's arrest warrant without probable cause, and the murder languished as an unsolved mystery for the next fifteen years.

Kennedy charged that renewed interest in the Moxley case on the part of the media was responsible for pressuring Greenwich police to resume their investigation into the murder. In particular, he cited the influence of Dominick Dunne, a vigilante journalist with a longtime fetish for celebrity scandal. Dunne had dramatized the events of the Moxley murder and police investigation in his popular novel A Season in Purgatory (1998), which was later made into a television miniseries. Dunne traveled the media circuit, preaching that the local police had been cowed by Skakel family influence into neglecting to investigate the crime properly. As Kennedy wrote:
At the time, Dunne was sure that Tom Skakel had killed Martha, and never lost an opportunity to point that out during an extensive national press tour for his novel, which included appearances on programs such as Hard Copy and the CBS Evening News With Connie Chung, and also interviews with Jay Leno and Joan Rivers. I and other Skakel family members watched in horror as Dunne publicly accused Tommy of having committed the crime. "I was convinced that [Tom] had done it," he later explained in Vanity Fair, "and had said so on television."
Dunne recruited Mark Fuhrman, the infamous Los Angeles police detective involved in the O. J. Simpson trial, to intensify the pressure on the Connecticut police. Fuhrman published Murder in Greenwich, which Kennedy described as a "283-page diatribe against the Greenwich police." Though previous investigations into the murder had focused predominantly on Tom Skakel and Ken Littleton, Fuhrman implicated Michael Skakel as the killer, despite a corroborated alibi placing him elsewhere at the time of Martha's death. Though the book offered no new evidence pertaining to the crime, it sparked swift action by the authorities:
On July 10, 1998, one month after its publication, Connecticut authorities convened a one-man grand jury consisting of Judge George Thim. The state's attorney Jonathan Benedict took over the Moxley case and began a multimillion-dollar effort to convict Michael Skakel.
Kennedy noted that Murder in Greenwich's influence extended beyond Michael Skakel's indictment; the theory Fuhrman set forth in his book actually became the centerpiece of the state's case against Skakel:
According to Fuhrman, members of Benedict's staff told him that they planned to use Murder in Greenwich as the blueprint for the prosecution. In fact, the state followed the book practically line by line.
Once criminal proceedings against Michael Skakel began, the media circus intensified. Dominick Dunne, Kennedy asserted, was the ringleader:
He branded Michael with a new first name, "Kennedy cousin," and drove the national press into a Lord of the Flies frenzy to lynch the fat kid. Unfortunately, the national press corps, seduced by a celebrity trial, rarely questioned Dunne's mischaracterizations.
The abundant coverage of Michael Skakel and the Moxley murder by the tabloids and cable news outlets became a magnet for Skakel's classmates from the boarding school where he had spent two miserably unhappy years as a teenager. Kennedy argued that they were eager to get a piece of the media spotlight by disparaging their classmate's reputation. The prosecution called seven of Skakel's former classmates to the witness stand, despite the fact that their testimony was dubious:
These witnesses have so little credence that it's hardly worth describing them. In many cases they had changed or retracted their stories before the trial began, but were called to testify nonetheless. And the jury believed them. In each case the witness did not initially go to the police but bragged about the story to an acquaintance or to the media, who then notified the police. How likely is it that Michael Skakel, who endured years of torture at [school] during which he refused to admit any guilt, would suddenly "confess" to these crackpots but never to any person he knew or trusted?
By the time summations were made in the Skakel trial, sensationalized media interpretations of the case were not only flooding the airwaves outside the courthouse, but had found a place inside the courtroom as well. The prosecutor, Jonathan Benedict, utilized an elaborate multimedia presentation in his closing argument to convince the jury of Skakel's culpability:
During the last ten minutes Benedict unveiled a dramatic and sophisticated multimedia display that some legal analysts have since criticized as deceptive and prejudicial. The display superimposed Michael's statements, out of context, on gruesome pictures of Martha's slain body.… As the prosecution played the audiotape, Michael's words appeared on a giant screen, turning red and exploding in size. Each time Michael said the word "panic," the display flashed a crime-scene photo of Martha's body.
Under these conditions, Kennedy maintained, Skakel's conviction for the murder of Martha Moxley was all but preordained. The facts of the case and the quest for the truth had been hampered, he argued, by a media barrage amounting almost to a witch-hunt.

ighty years before, public opinion played a crucial role in what came to be known as one of the trials of the century. In 1921 Sacco and Vanzetti, Italian immigrants who were notorious leftist political radicals, were charged with two murders that took place during an armed robbery of a shoe factory in South Braintree, Massachusetts. Their trials attracted international public attention, in part due to the prevailing xenophobic and anti-communist atmosphere of post-World War I America.

In "The Case of Sacco and Vanzetti" (March 1927), the Supreme Court justice Felix Frankfurter carefully analyzed the events of the Sacco-Vanzetti proceedings and argued, based on his thorough scrutiny of testimony and public record that the district attorney and presiding judge had been blatantly biased against the defendants and had stoked popular contempt of communist activists to color the jury against Sacco and Vanzetti.

According to Frankfurter, the testimony of the case cast more than sufficient doubt on the theory that Sacco and Vanzetti were involved in the South Braintree murders. Both men had corroborated alibis for their whereabouts at the time of the armed robbery. The prosecution's numerous eyewitnesses contradicted each other on crucial crime-scene details. Though they all claimed to have seen Sacco and Vanzetti at the crime scene, Frankfurter pointed out that their identifications were highly suspect:
All the identifying witnesses were speaking from casual observation of men they had never seen before, men of foreign race, under circumstances of unusual confusion. Thus, one witness, Cole, "thought at the first glance that the man was a Portuguese fellow named Tony that he knew." Afterward he was sure it was Vanzetti. Nor can we abstain from comment on the methods pursued by the police in eliciting subsequent identification. The recognized procedure is to line up the suspect with others, and so far as possible with individuals of the same race and class, so as not to provoke identification through accentuation. In defiance of these necessary safeguards, Sacco and Vanzetti after their arrest were shown singly to persons brought there for the purposes of identification, not as part of a "parade." Moreover, Sacco and Vanzetti were not even allowed to be their natural selves; they were compelled to simulate the behavior of the Braintree bandits. Under such conditions identification of foreigners is a farce.
Frankfurter contended that Sacco and Vanzetti were as much on trial for their political beliefs as they were for murder. When the men testified that their lies and suspicious behavior following their arrests were merely an effort to conceal their radical political views, the district attorney grilled them about their draft dodging and their collection of socialist literature.

In light of the popular distaste for everything that Sacco and Vanzetti represented, and the way that such prejudice was preyed upon by the district attorney, with no objection from the judge, Frankfurter argued that it was "no wonder" that the jury convicted the men of murder.
In 1921 the temper of the times made it the special duty of a prosecutor and a court engaged in trying two Italian radicals before a jury of native New Englanders to keep the instruments of justice free from the infection of passion or prejudice. In the case of Sacco and Vanzetti no such restraints were respected. By systematic exploitation of the defendants' alien blood, their imperfect knowledge of English, their unpopular social views, and their opposition to the war, the District Attorney invoked against them a riot of political passion and patriotic sentiment; and the trial judge connived at—one had almost written, cooperated in—the process.
hree decades earlier, John T. Morse Jr. penned "The Dreyfus and Zola Trials" (May 1898), documenting the upheaval in France caused by what is now commonly known as "the Dreyfus Affair." The controversy started in 1894, when the French government began to suspect army captain Alfred Dreyfus of compiling a bordereau—or a memorandum—referencing secret French military documents and leaking it to the Germans. Dreyfus was indicted, and when news of the story reached the French public, an uproar ensued. The furor did not center so much on the treason allegedly committed as it did on the fact that the accused man was Jewish:
For the French nation, the point of interest has been, not the treason, but the Jew. No one upon this side of the water, unless he has read the French daily newspapers most industriously, can form an idea of the savage, merciless onslaught which they have combined to make upon the unfortunate race.
The French public, caught up in a surge of "anti-Semitism and of militarism," had been eager to pin the crime on a Jew. But the prosecution of Captain Dreyfus was conducted in secret, and the full nature of the evidence against him was not known to the public. The testimony of three handwriting analysis "experts" who examined the bordereau proved inconclusive:
There was the military man, du Paty de Clam, who had no skill in the difficult science of graphology; there was M. Gebert, a person sometimes employed by the Bank of France, who expressed an opinion that the handwriting might very well be that of some other person than Dreyfus; and there was M. Bertillon, an attaché of the police service, famous for his fad concerning the study of criminals by physical measurements; he reported that if he were to set aside the hypothesis that the document might have been most carefully forged by some imitator of the handwriting of Dreyfus, he should then attribute it to Dreyfus.
Dreyfus was convicted of treason against France and sentenced to lifelong banishment on the island of Ile du Diable, off the coast of French Guyana. The controversy, however, had only just begun. In July of 1895, a new chief of intelligence services, Lieutenant Colonel Georges Picquart, began his own investigation into the evidence used to convict Dreyfus, and became convinced that another man, infantry major Ferdinand Walsin Esterhazy, was actually behind the treason. Esterhazy was widely thought to be a scoundrel capable of treachery, and his handwriting bore striking similarities to that of the bordereau. Responding to the public's clamor for answers, the French military tried Esterhazy by court-martial, though they had no intention of reconsidering the Dreyfus case:
Ministers did not mean to be at all embarrassed if they should find themselves with two traitors and only one treason! Yet the assertion was superfluous, since Esterhazy was innocenté par avance.
Indeed, in what was essentially a mere mockery of a trial, the court acquitted Esterhazy based on the evidence of a group of handwriting analysts who swore that Esterhazy could have never written the bordereau. Following the verdict Morse recounted, "the members of the court-martial congratulated him avec émotion; every one shook hands with him, and the crowd outside shrieked, 'Vive l'armée!' and 'Vive Esterhazy!'"

Outraged at this miscarriage of justice, the famed novelist Émile Zola sent a letter to the President of the Republic, making a litany of accusations about the corruption of the justice system. When the piece, headlined "J'Accuse," was published by the Parisian newspaper l'Aurore, it further stoked public hysteria, and Zola bore the brunt of the ire:
The press overwhelmed him with abuse, repudiated him as a fellow countryman, and called him auteur de pornographies and écrivain immonde, and many unsavory names. When French newspapers cried out against his coarseness, it was evident that even the French sense of humor had succumbed to the intensity of the situation, and was fairly drowned beneath the raging torrent of anti-Semitism.
Zola himself was then prosecuted by the government for libel, a trial that produced even more evidence suggesting that Esterhazy was the man behind the treason. When called to the witness stand, Esterhazy patently refused to answer any questions coming from Zola's attorneys, who posed a comprehensive series of queries nonetheless. Throughout the entire trial of Zola, the government remained silent, calling no witnesses and refusing to reveal what evidence they did or didn't have pertaining to the treason investigation. Zola was convicted of libel and sentenced to a year in prison and a small fine.

At the time Morse's article was written, the truth behind the bordereau and the treason charge remained a mystery. In August of 1898, Colonel Henry, a French army intelligence officer, admitted to forging evidence that incriminated Dreyfus. Esterhazy fled to Belgium and then England, admitting in 1899 that he had written the bordereau. Justice was finally served when Dreyfus was cleared of all charges in 1906. In this, as in so many other high-profile trials, it was hindsight that proved to be the critical factor in isolating the facts from the public outcry that so often overwhelms such cases as they unfold.

—Sanders Kleinfeld


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Sanders Kleinfeld is an editorial Web intern for The Atlantic Monthly.

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