Courts Without Reporters

Bendiner sweet innocence.jpg

Smithsonian American Art Museum, Washington, DC/Art Resource

Alfred Bendiner: Sweet Innocence, 1936

My Bard College students were half joking when they asked if it was intentional or purely coincidental that the readings I’d assigned for last week’s class on “The Elements of Style” were both essays about trials, courts, and the legal system. I’d handed out the reading list several weeks ago, so it seemed odd—a little too perfect—that we were taking up these themes exactly when demonstrations were erupting nationwide over the grand jury decisions not to indict the officer who shot Michael Brown and the one who choked Eric Garner. I said, “It’s a coincidence.” Which was partly true.

For some time, I’d wanted to teach these two texts, both of which I’d long admired: the opening twenty-five pages of Rebecca West’s Greenhouse with Cyclamens I (1946), an excerpt from the first section of her lengthy report on the Nuremberg trials; and William Finnegan’s 1994 account of a trial in Manhattan in which he sat on the jury. Both had appeared in The New Yorker. It was partly a coincidence that we were reading them when so much national attention was focused on the Brown and Garner cases. On the other hand, it was also true that the killing of Michael Brown in Ferguson and the pending legal outcome of the case against the police officer who shot him had been very much on my mind since the incident occurred in August.

The debate and the lack of consensus on how and why Garner, and then Brown, were killed had—it seemed to me—been echoed and exacerbated by the unclear and confusing language that has surrounded these cases. First, Missouri governor Jay Nixon called for a “vigorous prosecution” in response to Brown’s murder, then “clarified” his remarks to explain that he was not suggesting that police office Darren Wilson be prosecuted. “Forcible restraint” has come to be the grotesquely inaccurate euphemism for “chokehold”—an action that is in fact banned in the NYPD—and one wonders how many Americans (including, perhaps, some of those who sit on grand juries) understand the all-important distinction between an indictment and a trial.

Who can say how the unconscious works, even in the compilation of a reading list?

In Greenhouse with Cyclamens I, West’s writing is characteristically eloquent, surprising, and precise. The essay begins with a view of Nuremberg from the air, and after noting the stupefying boredom that has set in among the participants and observers after eleven months of the trial, West gives us a stunning description of the defendants—the only ones in the courtroom who wanted the process to last forever:

Hess was noticeable because he was so plainly mad: so plainly mad that it seemed shameful that he should be tried. His skin was ashen and he had that odd faculty, peculiar to lunatics, of falling into strained positions which no normal person could maintain for more than a few minutes, and staying fixed in contortion for hours. He had the classless air characteristic of asylum inmates; evidently his distracted personality had torn up all clues to his past….

The Finnegan piece is more sparely written, but the narrative is as full of twists and reverses as a story by Heinrich von Kleist. Entitled “Doubt,” it describes the trial of a young man named Martin Kaplan who (along with other youths) was accused of mugging and severely beating two young men in the Astor Place subway station. As a member of the jury, Finnegan had at first assumed that Kaplan was innocent, but only one other juror agreed, and (mostly because the defense case turned on a somewhat dubious alibi) he was persuaded to vote to convict—though not without some residual doubt.

Kaplan goes to jail, but Finnegan remains curious enough to go back and interview the witnesses, who, as it happens, are not at all what he had come to believe, during the trial. He discovers enough withheld evidence to make him—and the reader—rethink the case, the verdict, and the laws that exist to protect the defendant:

I got a transcript of Kaplan’s trial—at six hundred eighty pages, it was three inches thick—and, unexpectedly, the picture congealed some more. Much of the expurgation of the story that the jury heard had occurred, I discovered, in open court, during the “colloquies” that took place while we were banished to the jury room.…The gist of the colloquies revolved around a powerful irony, which, I now realized, had suffused the entire trial. The great care taken to exclude certain matters from evidence had but one purpose: to protect the rights of the accused. Everyone, starting with the judge, had been intent on providing Martin Kaplan a fair trial. And yet the net effect had been to weaken his case. At least, I found that his alibi, once the judicial veils were removed, and Kaplan and his world were shown in far more detail (however sordid), was only getting stronger.

Finnegan’s story makes us reconsider our assumptions and snap judgments, and to confront the implications of “a reasonable doubt.”


I’d thought it would be fun and interesting to teach these essays in a course on literary style, as a very general lesson about how two different styles can be used to portray a similar setting: in the texts in question, courtrooms in which cases of vastly unequal magnitude were being tried. The class talked about the differences and similarities between the pieces: how both seemed highly personal, though only Finnegan’s was written in the first person and his accounr adhered much more closely to unadorned fact. We discussed the elegance of West’s beginning, her gorgeous sentences, the nerviness of starting off with an invocation of boredom, the history of the word genocide, West’s portraits of the defendants, and her novelistic account of the desultory social life revolving slowly in the orbit of the Nuremberg courtroom. We talked about how our opinion about Martin’s Kaplan’s innocence or guilt had changed along with Finnegan’s. I asked my students how they would have voted in Kaplan’s trial, had they been on the jury. A couple of them said he was innocent. They all agreed that it would have been best to declare a mistrial.

One of my students is Palestinian, from Al-Quds University, on the West Bank, where Bard has one of its collaborative international programs. She said she had never understood what a jury system was—or really that we had one—until she read the Finnegan piece; at home there were no juries, only judges. She said she’d watched the video of Eric Garner’s death and was shocked. My student was also surprised that one could see something like that on American TV. But later, when we talked about the amount of bias and unfairness that appeared to have influenced the case’s outcome, she nodded and said, “Okay. That’s just like home.”

And so, inevitably, and almost without our being aware, the discussion had shifted to Michael Brown and Eric Garner. My students are intelligent, appreciative, and attentive, but several times this semester I’ve grumbled about the limits of their knowledge: how little they knew about New England Puritanism, that only one out of fourteen had ever heard of Richard Pryor. But now I was amazed by how much they knew about these two cases. They knew about the unfortunate fate of the man who took the film of Eric Garner being choked and who has since been indicted on a weapons charge that he denies. They knew the names of the victims and the cops in question. They knew the difference between an indictment and a trial, between a grand jury and a jury.

Why should I have been surprised that my students knew that our country had a lot of problems, and furthermore, that they had a very clear and accurate idea of what these problems are? The legal system. Racism. Mass incarceration. Education. Immigration. The unhealthy influence of the banks and corporations. Wealthy campaign donors. All of these issues came up in the discussion that followed. Some had parents who had lately lost their jobs, and they didn’t need to be told about our continuing economic woes.

I said a few things that I hoped would be helpful. I pointed out that—in theory—trial by jury is a beautiful concept. If my students ever get called for jury duty, I said—and so far only one of them has—they should make an effort to educate themselves about the law. (The case in the Finnegan article turns on questions of what can and can’t be disclosed at a trial—for example, the details of a defendant’s previous criminal record and certain aspects of the character of his alibi witnesses.) We talked about the difficulty and the importance of not being distracted by the twenty-four-hour news cycle, of staying focused, of not requiring the occasional high-profile case to remind us that Eric Garner and Michael Brown will still be dead, and that thousands of other African-American men and women will continue to die for no reason, even after the evening news has moved on (or back) to Ebola. My students told me that there had been vigils on campus, and there would be a demonstration this weekend.

We talked about the importance of education, of thinking, about our common faith in the importance of knowing about our history and culture and science, of learning how to reason and to process information. Because it’s a class about language, I pointed out the power of the words that Rebecca West and William Finnegan had used to bring us into the courtroom at Nuremberg and to so fully acquaint us with Martin Kaplan’s twenty-year-old petty crime that we could sit in a room and argue its merits, as if we too were on the jury. We discussed (as we have all semester) the importance—the necessity—of clarity, of precision, the responsibility of the writer, the press, and the government to accurately inform an educated citizenry. I wondered how different things would be if a writer of West’s or Finnegan’s stature had been present, and able to tell us what exactly transpired during the grand jury deliberations in the Brown and Garner cases.


After that we fell silent. My students looked at me. The afternoon light was fading outside. I felt that they were asking: Wasn’t there something else, something I could suggest, both as their teacher and the oldest person in the room? Couldn’t I just give them a hint, just tell them how to begin fixing what was wrong with our country and our culture?

There was nothing I could tell them. I don’t know how to begin. They will have to figure it out for themselves. I want them to be optimistic, compassionate, and brave. I want them to make their voices heard. I’ve tried to teach them what language can accomplish: its ability to explicate and complicate in useful and beautiful ways. Or how easily words can do the opposite, if we forget how to read and reason and thus cannot understand what we’re being told. Meanwhile I kept thinking about the power, the simplicity, the clarity, and the (one would assume) unmistakable meaning of Eric Garner’s last words: I can’t breathe.

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