Crime and Punishment in American History - Lawrence M. Friedman [252]
But as the years passed, there was a subtle, unconscious change in attitude. The legal culture in America in the late twentieth century was, as we have argued, strongly influenced by a form of expressive individualism. This meant, among other things, a commitment to shapes of pluralism beyond anything earlier periods had been willing to recognize. A jury of one’s “peers,” then, in the view of many people—and some judges—had to be a jury of peers—of people like the defendant, rather than the results of a lottery, randomly pulled from the general community; least of all a “blue ribbon” panel, a panel of elites.
Already, in the nineteenth century, the Supreme Court told the states they could not exclude blacks from the jury.dp Now, in the late twentieth century, came attacks on other kinds of exclusion, and demands for new forms of inclusion.dq Modem pluralism involves, among other things, a rejection of the idea that there is a single moral norm, a single hierarchy of values, a single standard—just as there is no longer a single race, religion, sex, or group that can claim official status (actual dominance is another story). Hence it is not surprising to hear demands for a jury that is “representative” in some deeper sense than the law has required. In a few cases, defendants have attacked juries because not enough young people, or poor people, or blue-collar workers, or the like, were among the jurors. A jury must represent a “fair” cross section of the community; isn’t that the law?
Most of these challenges have failed, but it is significant that they were made at all. In People v. Pinnell (1975), a group of defendants, indicted for very serious crimes, argued that the grand jury that indicted them was “improperly chosen.”48 The pool from which these jurors was picked, they argued, was not a good cross section; there was no “fair” sample of the “group” to which defendants said they belonged: black, Latin American, “blue collar working class and ... young.” The Court turned down the claim, but only because the selectors had made “substantial efforts to secure larger numbers of both youth and labor groups,” and because the Court found no evidence of race discrimination.dr
The Big Show: Major Trials and Their Discontents
Who were the men and women who passed up plea bargaining and went to trial? All kinds; but, as before, among them were defendants in a few great show trials—cases that stood out from the thousands of instances of aggravated assault, burglary, arson, rape, and manslaughter. Statistically, these trials were insignificant; but they made a deep impression on the public mind, they sold tons of newsprint, and occasionally they shaped the course of the law.
There was a sensation of sorts, probably, in every city, in every year. A few cases were super-sensations. In 1907, for example, there was the trial of Harry K. Thaw, charged with the murder of Stanford White the year before.50 White came from an old, distinguished family; he mingled with the rich and famous of New York; he was a leading architect of the firm McKim, Mead and White. Thaw was the somewhat degenerate offspring of an old and extremely wealthy family. He had married a ravishing young beauty, Evelyn Nesbit Thaw, one of the famous “Floradora girls” of the Broadway stage. Harry Thaw shot White to death in front of thousands of horrified spectators in Madison Square Garden. As the journalist Irvin S. Cobb, who covered the trial, put it, this was
the most spectacular criminal case ... that ever sucked dry the descriptive reservoirs of the American press. You see, it had in it wealth, degeneracy, rich old wasters; delectable young chorus girls and adolescent artists’ models; the behind-the-scenes of Theaterdom and the Underworld, and the Great White Way ... the abnormal pastimes and weird orgies of overly aesthetic artists and jaded debauchees.