"And what does the LORD require of you But to do justice, to love kindness, and to walk humbly with your God"
-- Micah 6:8

"The duty of the prosecutor is to seek justice, not merely to convict."
-- American Bar Association Standard 3-1.2(c)

"There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia."
--Pope Benedict XVI, June 2004

Monday, May 14, 2012

Legal Drama

I watched a movie last night that shared the fate of many historically-based movies, i.e., it did not do well in the theaters. "The Conspirator" tells the story of the trial by military tribunal of Mary Surratt, a Catholic woman from Maryland who was educated by the Sisters of Charity at the St. Mary's parish school in Alexandria, Va.   


Arrested without charge, she was accused of aiding the conspiracy that assassinated Lincoln and rapidly tried in a military court despite her civilian status. During this trial she was deprived of the right to testify on her own behalf and was afforded no right to an appeal.  As the Daily Beast review summarized it:
The nation had never executed a woman, and until Surratt heads to the gallows, Aiken [the protagonist Union army veteran-turned-defense-attorney] thought he could save her. But the heavily bearded Civil War generals who acted as judge and jury never had any intention of sparing her. And even though Aiken succeeds in getting her a writ of habeas corpus, insuring a new trial by her peers, President Andrew Johnson, Lincoln’s successor, overturns it, and she dies along with the other conspirators.
“What is happening to Mary Surratt is an abomination. You have predetermined her fate,” Aiken tells Secretary of War Edwin Stanton (Kevin Kline). “Fine words for rallying a nation,” Stanton replies, “not for governing and keeping a nation together. Someone must be held accountable.”
While the frequent disregard for the rule of law and the Constitution practiced by federal authorities during the War Between the States is fairly well known, this particular example of essentially post-war extra-Constitutional tyranny is not so well known.  Ex-parte Miligan later ruled, too late for Mrs. Surratt, that these kind of military trials for civilians are unconstitutional when civilian courts are open, as they were in D.C. in 1865.
The film, and the incident it describes, immediately reminded me of another great war-related legal drama, "Breaker Morant."  This movie depicts the generally true story of Harry "Breaker" Morant, an Anglo-Australian drover, horseman, poet, soldier and convicted war criminal whose skill with horses earned him the nickname "The Breaker." The bulk of his published work appeard in The Bulletin magazine.


While serving in the Boer War in South Africa, Morant likely summarily executed several Boer prisoners in retaliation for the killing of one of his comrades in the elite Bushveldt Carbineers, an irregular unit tasked with countering the guerilla tactics being used by the Boers.


The movie, one of the best courtroom dramas in my opinion, recounts the machinations of the British command to ensure that Morant and his comrades in the Bushveldt Carabineers were executed in order to conceal the fact that the British commander in South Africa, Lord Kitchener, had himself issued a "take no prisoners" order, and to appease the Germans with whom the English were hoping to reach a peace settlement.


The case is still very much in the Australian consciousness, especially in light of a recent discovery that appears to prove that British commander did in fact issue a "take no prisoners" order, which would undermine the entire basis of the Morant prosecution;  the English, unsurprisingly, are unmoved by the new evidence:
  
Both "Breaker Morant" and "The Conspirator" feature despised defendants being tried in the chaos of wartime, by governments who had little interest in providing fair trials, but great self-interests in convicting the accused for supposed greater policy or political reasons.  In both situations, the defense is waged by inexperienced counsel, who come to appreciate if not the innocence of their clients, the injustice of their military trials.  

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