Tuesday, September 8, 2015

The Play's The Thing Wherein to Catch the Conscience of the King

Nettlesome thickets often appear in law school final exams. I know. I took the exams as a student. I wrote the questions as a professor. As in life, so in law school exam questions, finding a single correct answer is not so much the goal as it is to illuminate the reasoning of the examinee, and to measure the capacity of the examinee to apply logic and law to not quite so familiar patterns of fact.

I am not asking you to write out responses to the following set of questions. I am only asking you to think about what your answers would be to them.

Question One: Judge, Jury, and Executioner

A jury of the defendant's peers sits through the trial. Prior to retiring to deliberate, the judge provides instructions to the jury. Well, the judge provide an instruction to the jury. “Gentlemen of the jury,” he intones with gravity, “on the evidence presented, I instruct you that the only possible verdict you may enter is a finding that the defendant is guilty as charged.”

What do you do? If you are a member of the jury, you have been “instructed” by the judge to enter a guilty verdict. Does it matter that, at the penultimate moment, just before Hizzoner gave the instruction, you were contemplating the evidence, and wondering on what possible basis the prosecutor had ever decided to bring this matter to trial? Do you follow the judge’s instruction?

Question Two: Useless Eaters

You work as an orderly in the Hadamar Hospital in Germany. It is 1940. Your duties consist principally of accomplishing non-medical tasks, often under supervision of nursing staff. These tasks cover the range of activities from pushing stretchers and wheelchairs, changing bedpans and linens, and other activities typical of a hospital setting. At a staff meeting, the chief administrator announces that a new initiative offers the Hospital an opportunity to gain prominence and patronage with the new Reich and its leadership. While recognizing that some may have not fully considered why the initiative serves the greater good, and thus could be met with some resistance, he considers whole-hearted and willing participation in the initiative an important sign of commitment to the Hospital.

On further explanation, it turns out that Hadamar will lead an initiative of providing merciful terminations of life for children and adults that are diagnosed with mental diseases and defects. Among the children that will be euthanized are, ultimately, thousands that have Trisomy Disorder, or “Down’s Syndrome.” Among adults to be euthanized are hundreds of schizophrenics. You are assigned the task of transporting euthanasia “candidates” from arriving transport vehicles to a special wing of Hadamar where patients will be rendered lifeless by the administration of poisonous gas or lethal injections.

What do you do? Do you follow the order to transport children and adults to the Hadamar euthanasia wing? Do you roll the stretchers and wheelchairs as though you were simply taking patients for x-rays, or to sit in a sun room?

Question Three: Property with Feet

The Supreme Court has ruled. The laws and constitutions of so-called Free Soil States, purported of such character as to manumit to a condition of permanent liberty even those slaves temporarily passing across Free State soil in the company of their master, violate the Constitution. The Constitution itself required that slaves be returned to their masters on demand:
No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.
As Sheriff of Aroostook County, Maine, you came into knowledge that a farmer on the northwestern side of the county, near to Quebec, had taken in a few unexpected “guests.” These “guests” were all African by race, and from condition and appearance, had been at some time held as slaves. Slavery, you earnestly thought, was a detestable practice that demeaned the human character of the slave and the slaveholder. For your part, you held the farmer and his family in some esteem because of your secret knowledge of their role in providing an “underground” method of transporting escaped slaves to secure liberty in Canada.

As you are sitting at your desk, a distinguished gentleman enters the combined Sheriff’s Office and jail. He asks for you by name. Once you identify yourself as the Sheriff of Aroostook County, he presents you with a certified copy of a judgment, rendered by a South Carolina Court, indicating that certain described persons are the position of a man, named in the judgment. The attorney is the personal representative of the man. He, relying on the general duty stated in the US Constitution, Article IV, and in the more specific duty imposed by the Fugitive Slave Act of 1850, demands that you render aid in the recovery of his client’s property.

Do you comply with the legal duty to assist in the return of the fugitive slaves? Do you tell the attorney that the slaves are residing at a farm on the northwest side of the county, almost certainly waiting for weather that will allow their passage into Canada and freedom? What do you do?

Question Four: Sneak Attackers and Desert Concentration Camps

They called your war “The Great War.” Of course, coming into the war so late, you didn’t actually see too much action, but you did shoot across a barren field from your trench to the opposing, German-occupied one. You suffered some burns to lung tissue from a mustard gas attack. Dysentery, with diarrhea and dehydration, took you out of action before you ever knowingly killed a single enemy soldier.  Now nearly a quarter century later, your lung condition keeps you from active duty service. Still, everyone can play a part in the defense of the homeland.

You serve with the San Leandro Police Department as an Auxiliary Officer. Following the attack on Pearl Harbor, a great deal of unrest and fear has afflicted your community. Auxiliary officers such as yourself play a valuable role of maintaining an obvious and open police presence that calms and reassures residents. In the Spring, 1942, an Army General assigned responsibility for administering a civilian zone that includes San Leandro and nearby San Francisco, with their harbors and shipping assets, issues an order creating a zone of exclusion. In the order, the general commands Americans of Japanese descent to register with a local agency, and to participate in their relocation away from the exclusion area.

As an auxiliary officer, you have been directed by the San Leandro Police Department to assist in this important national security program by observing, and when you observe persons of Japanese ancestry to confront them to determine their compliance with the exclusion order, and, in addition, to contact the relocation agency to provide information regarding your observations. Finally, you are directed to detain such persons for purpose of insuring their compliance with the requirements of the exclusion law.

On your regular patrol, you observe a man of apparent Japanese ancestry leaving the local Pharmacy.

What do you do? Do you detain the man? Do you question him? Do you report his whereabouts?

Thinking About Our Common Humanity

These are not “trick questions.” Each of them is based on unfortunate facts, or are derived from unfortunate facts.

William Penn was on trial. The trial judge in his case did order the jury to find him and a co-defendant guilty on all charges. When the jury failed to obey the judge’s orders, he ordered them detained without food or water for three days. Ultimately a reviewing court rejected the notion of a court ordering a jury to enter a guilty verdict.

The Hadamar Euthanasia program resulted in the deaths of about 300,000 children and adults, including Germans and Eastern Europeans. The hospital’s administrator and two chief nurses were all found guilty of crimes against humanity at the Nuremberg Hadamar Trials. They hung by their necks until dead.

The Fugitive Slave Act of 1850 did impose on government officials a mandatory duty to assist in the rendition of escaped slaves. Anthony Burns was just one such slave forcibly detained and returned under the Act.

Fred Korematsu was detained, and forcibly relocated to an American concentration camp in Topaz, Utah.

These things happened for want of conscience, or in proof of the value of conscience. The jurors in William Penn’s case established the principle that we now know as “jury nullification,” by which jurors may ignore the instructions of the trial judge and vote their conscience. The slaughter of mentally handicapped children and adults – German children and adults – happened because administrators and medical personnel seared their consciences and cooperated in the accomplishment of an evil design. Slaves that had made their way to free States were, in a number of cases, returned by government officials of northern States who complied with the requirements of the Fugitive Slave Act. Over 100,000 Japanese Americans were forcibly relocated and detained in American concentration camps.

The freedom of the individual conscience is a potent weapon of liberty, as well as the needful reservoir of it. Where an individual preserves inviolable the right of others and of themselves to dissent from government edict, liberty is not threatened, it is enlarged. Where government edict disregards conscience, worse, where it punishes conscience, liberty itself is threatened.

So today, for what it is worth, I salute Kim Davis for making a principled stand upon the liberty of her conscience. I salute her for risking incarceration at the hands of judge of suspect competence. I have the sense that, were she to answer my little quiz, she would say, no, I won’t lead Down’s Syndrome children to their deaths, I won’t find a Quaker guilty of disturbing the peace just for a bit of outdoors preaching, I won’t return slaves to their owners, and I won’t spy on and report unfairly stigmatized ethnic Americans, even after the heat of a sneak attack that killed thousands of American sailors, soldiers and Marines.

But this quiz was about you? So, then, how did you do?