(A later revision of this paper appeared as:
J. Thomas. 1983. "Justice as Interaction: Loose Coupling and Mediations in the
Adversary Process." Symbolic Interaction, 6(Fall): 243-260.)
Justice as Interaction:
Loose Coupling and Mediations in the Adversary Process
Jim Thomas
Department of Sociology
Northern Illinois University
DeKalb, IL 60115
(11 November, 1982)
Parts of this paper were previously presented at the 1980 annual meetings
of the North Central Sociological Association and Society for the Study of
Social Problems. William Yoels and three anonymous reviewers of Symbolic
Interaction provided useful comments for which I am grateful. This project
was supported in part by NIU Faculty Research Stipends (1982, 1980) and
LEAA Grant #79-NI-AX-0013.
JUSTICE AS INTERACTION:
LOOSE COUPLING AND MEDIATIONS IN THE ADVERSARY PROCESS
Among the guiding metaphors of judicial adversary proceedings, that of
due process is the most salient.¶ Ideologically, organizationally, and
behaviorally, this metaphor provides general goals which shape and justify
courtroom procedures. Judge Jerome Frank's work over a half-century ago
(Frank, 1970) and later (Frank, 1949; Frank and Frank, 1957) pioneered the
concept of the "basic myth of law," which challenged the belief in the
attainability of precise and certain legal procedures and outcomes. It may
be, however, that the formal goals of due process and the practices
available to attain them are in fact contradictory. As Wolf (1981) has
argued in a subtly brilliant work, judicial practices may in fact be
incompatible with scientific and discursive norms conventionally employed
in inquiry. This suggests that forms of interaction in courtrooms (as law
students quickly learn from texts on criminal proceedings) contribute
dramatically to these contradictory norms. Such interaction reflects a
type of mediating activity that decouples the metaphor of due process from
the organizational and ideological structures which this metaphor supports.
Recent Research Issues
Although it is clear that courtroom activity does not always serve the
ends of justice, it is not always clear whether such activities are
anomalies, penetration of external factors, or whether in fact these
actually typify the trial process. That is, there may exist a
contradiction between the due process goal on one hand, and the methods by
which this ideological goal is implemented in courtroom practices on the
other.
There has been considerable literature examining factors which
penetrate and shape the judicial processes. These include discretionary
behaviors of police agents (e.g., Skolnick, 1975; Manning, 1977a, 1980; Van
Maanen, 1978; Punch, 1978; Piliavin and Briar, 1964), the extra-legal bases
of the enactment and implementation of legislation (e.g., Roby, 1969;
Friedman 1975), the role of lawyers in adversary proceedings (Hosticka,
1979; Lizotte, 1978), or prosecutorial or judicial discretion (e.g., Hagan,
1974, 1975; Burke and Turk, 1975; Eckhardt, 1968; Galanter, 1974; Jankovic,
1978; Cole, 1970; Stanko, 1981, 1982; Uhlman and Walker, 1980). Some
researchers have examined how legal processes reflect a multiplicity of
social factors (e.g., Hopkins, 1975; Schwartz and Miller, 1965; Schwartz
and Skolnick, 1962). Still others have examined the practice of justice in
the U.S. as an outcome of normative social practices rather than a
reflection of ideals or transcendent norms (Mileski, 1971; Balbus, 1977;
Barak, 1980; Sudnow, 1965; Wolf, 1981). Some studies have suggested that
the adversary process may possess a symbolic character such that actions
and decisions may reflect subjective and discretionary meanings rather than
formal ideals (e.g., Blumberg, 1967; Scheff, 1968; Balbus, 1977; Thomas,
1980a). Others have suggested that legal proceedings may be read as a form
of "social language" (Danet, 1980; Meisenhelder, 1981; Hogan and Henley,,
1979) or as an ideology (Sumner, 1979).
Recent interactionist-informed organizational theorists have
emphasized the importance of symbolic activity in constructing
organizational reality (e.g., March and Olsen, 1976; Manning, 1977b, 1979a;
Maines, 1977, 1982a, 1982b; Weick, 1969, 1976; Brown, 1978; Thomas, 1980b;
Silverman, 1971; Clegg, 1975, 1979). In this view, human activity is
understood to reflect systems of coordinated and controlled activities that
are guided and integrated by the myth-generating and ceremonial functions
of institutional products, services, techniques, policies and programs
(e.g., Meyer and Rowan, 1977; Kamens, 1977). Organizational activities
thus reflect creative responses to solutions, problems, and choice
opportunities (e.g., March and Olsen, 1976: 26-27), and therefore contain
dramatic possibilities for mediating organizational structure.
Organizational mediations are those policies or behaviors which reflect
attempts to resolve what Antonio (1979) has identified as the
contradictions occuring in the clash between formal and substantive
rationality. One useful concept for displaying how mediations occur in
judicial systems is that of loose coupling.
Loose Coupling and the Judicial Process
Loose coupling is a metaphor that allows for identification of
contradictions between and within structural and interactional
organizational processes (Weick, 1980; Manning, 1979a, 1980; Thomas, 1980).
Loose coupling refers to decisions, behaviors, policies, and the like,
which are made in what Weick has described as the grey area between
organizational interdependence and individual autonomy. Loose coupling
implies a lack of connections, or slippage, between organizational niches
and the behaviors that are intended to bind organizational goals to
organizational practices. The concept is useful to illustrate the degree
to which individual discretion occurs, for example, in interpreting,
enacting, negotiating, modifying, or simply ignoring explicit
organizational policies. As a cognitive mapping device, it allows the
researcher to examine the structural connection between individual and
organizational behavior while preserving the phenomenological linkage
between behaviors and organizational environment. It also allows, as Yoels
(1982) has suggested, elaboration of Mead's distinction between the "I" and
the "me," and facilitates also Goffman's distinction between "roles" and
"role performance" (Goffman, 1972a) and framing activities (Goffman, 1974)
as processes by which social life is always and everywhere an ongoing
dialectic between freedom and constraint.
Recent research has suggested how the concept of loose coupling might
be developed. Hagan, Hewitt, and Alwin, for example, have convincingly
argued that the criminal justice system has become decoupled from the
transcendent rules (e.g., due process procedures) and the formal
organizational procedures meant to guide it. In this decoupling, the
ideological sources of law remain intact while the mechanisms for
maintaining an increasingly tension-laden system are recreated and
perpetuated. The consequence of this is the suppression of the social and
structural contradictions between courts and society and within courts
themselves. In a study of prison interaction between guards and prison
residents, Thomas (1982) has identified how rigid administrative policies
are neutralized by negotiations that dramatically decouple prison control
policies from their goals. He concludes that one ironic outcome of rigid
policies may be that informal implementation radically severs the locus of
power from those upon whom power is exercised. In developing the concept
to examine the ceremonial features of bureacracy, Meyer and Rowan (1977:
343) have observed that in loosely coupled formal organizations, structural
elements are not tightly linked to one another and to their related
activities. Rules are often violated, decisions may go unimplemented, or,
when rules are implemented, the outcomes may be uncertain and evaluation
and inspection systems are often subverted or neutralized. As a
consequence, rules provide little coordination. In courtroom situations,
rules remain ambiguous, creating the context of organizational action, and
function primarily as resources for organizing and rationalizing courtroom
behaviors.
Heydebrand (1977) has suggested that courts are networks of organized
activity reflecting divers spheres of directed activity (such as judicial
control or information exchange) by judges, lawyers, spectators,
defendants, and other litigants (and even researchers). This array of
participating groups reflects highly differentiated loci (and foci) of
task-oriented activity guided by sometimes compatible, but often
conflicting and antithetical, interpretations, preferences, and strategies.
By definition, many participants are seeking incompatible outcomes
(prosecutors seek guilt, defendants pursue exoneration, reporters seek a
story, and researchers desire data). This creates a mosaic of
differentiated practices which must be accommodated in the judicial forum.
This accommodation creates competition over the ability of the participants
to control their preferred view of the course of events and definitions of
the world (Hosticka, 1979), and to obtain specific outcomes by use of
strategems neither formally sanctioned nor provided for in official
procedures.
This paper discusses discretionary behavior within courtroom settings
to display ways in which such behavior mediates the primary organizational
goal of due process.
The Chicago Eight Trial: A Comparative Analysis
One of the most dramatic and highly visible examples of how the
decoupling process operates occurs in the "Chicago Eight" conspiracy trial
which ran from 26 September, 1969, to 18 February, 1970. Following the
civil disturbances of the 1968 Democratic Convention in Chicago, eight
persons (Rennie Davis, David Dellinger, John Froines, Tom Hayden, Abbie
Hoffman, Jerry Rubin, Lee Weiner and Bobby Seale) were indicted and tried
on charges of conspiring to cross state lines for the purpose of inciting
riot. The subsequent trial was highly publicized, as much for the excesses
of presiding Federal judge Julius Hoffman as for the activities of the
other participants, including the media and spectators. The trial has been
described variously as a travesty of justice, proof that the system works,
superb theater, a mockery of the criminal justice system, and now in this
essay, as an archetypical example of loose coupling.
This paper will examine those features the trial shares with other
trials--albeit in an exaggerated form--in order to illuminate those cracks
and crevices where loose coupling occurs. The Chicago Eight trial seems
appropriate for several reasons. First, it was a dramatic, highly
publicized trial, displaying a variety of interesting--even entertaining
features. Second, its visibility provides a more-or-less shared stock of
knowledge upon which readers may draw without additional reading. Finally,
its appearance of atypicallity is especially useful for displaying those
interactional features that even the most extreme trials share with others.
The Chicago Eight trial is ideal for symbolizing the conflicts,
contradictions, and tensions between the sometimes cooperative, usually
competing, but most-often self-interest guided actions of participants as
well as the ceremonial strategies and rituals of the court. The
participants in this trial manipulate, through behaviors appropriate for
their tasks, those formal and other procedural legal rules which present a
fabricated, stage-managed public front while attempting to conceal the
back-stage contradictions, maneuverings, and intents from jury, judge and
public (Goffman, 1972b; Manning, 1977a, 1980). It is precisely its
apparent atypicality that makes this trial an excellent illustration of
loose coupling. Its transformation by participants from a conventional
"criminal trial" into a "political" trial occurred not because of unusual
organizational procedures, for this trial was intended to proceed as would
any jury trial. It was instead transformed into a political "circus" and
media event by the behaviors of the participants and the meanings they
imputed to the setting. By comparing the Chicago Eight trial with
less-dramatic trials in conventional settings, it becomes easier to display
how this trial was not atypical, but in fact typifies the slippage that can
occur in any adversary proceeding. The trials used here occurred in DeKalb
County (Illinois) Circuit Court, Sycamore in 1980-81. Trials were chosen
(a) for which court transcripts were available, and (b) at which I was
present throughout as an observer. Despite differences in visibility,
drama, and ambiance, comparison of these proceedings with the Chicago Eight
trial illustrates how the adversary process--despite its formal ideology
and procedural framework--is embedded in situational activity that reflects
a loosely-coupled system in what is often considered to be an exceptionally
formal setting.
No attempt will be made here to analyze the trials themselves, or to
draw legal or procedural conclusions from the case. The intent instead is
to examine the ways in which this trial reflects highly visible constituent
elements of adversary proceedings in general. It is especially along the
dimensions of control and communication that the loose coupling between
justice practices and their organizational and ideological premises become
most evident.
Control
The opportunity to struggle for control in an adversary proceeding may
take several forms. Although the court organizational structure, operative
rules and tacit policies limit the legitimate extent of this struggle,
there nonetheless occurs considerable strategic and discretionary
flexibility as the key participants, primarily the judge, lawyers,
witnesses and litigants all interact to secure for themselves an
advantageous position. Several issues at stake in this strugggle are
especially important, especially the symbolic defense of ceremony and
ritual which underlies due process, and the construction of an edifice of
"truth" upon which one's case is defended and the opponent's opposed.
These issues usually take the form of struggle for control over decorum
(i.e., those courtroom practices that are grounded on the legitimizing
myths and ceremonial rituals of due process, judicial dignity and "correct"
procedure), and courtroom strategy (i.e., ability to manipulate the flow,
tempo, or definitions of trial, or the mechanisms employed to assure that
one's own concept of procedure will prevail). The tactics of intimidation,
disruption, humiliation, or force are among those with considerable
dramatic potential, as the Chicago Eight trial indicates.
The recognition that court transcripts may at some later date provide
the only record of "reality" offers an opportunity and motivation for a
preliminary contest between some participants. Even before the trial
began, Judge Hoffman and two defense attorneys engaged in preliminary
jockeying to establish (or perhaps prevent) a symbolic "pecking order."
The Court: And how do you plead, Mr. Rubin?
Mr. Kunstler: Just for the record. . .
The Court: Everything we do is for the record, Mr. Kunstler.
Mr. Kunstler: Of course, your honor.
The Court: That is why the government pays a high salary for an
official reporter.
Mr. Kunstler: Yes your Honor. . .
The Court: You see this lady. She is a very competent reporter.
Anything you say or I say, or anybody says, is for the record. You
have my assurance.
Mr. Kunstler: Your Honor, I was not trying to put the court in terror,
as you know.
The Court: Perhaps even way out in New York you have found that I
don't frighten very easily.
Mr. Kunstler: Maybe that works for both sides.
Mr. Garry: I do, your Honor.
The Court: What did you say?
Mr. Garry: I get frightened.
The Court: Well, we will try to put you at ease.
Mr. Garry: Thank you, Your Honor [Transcripts: A82-83].
The court clerk, as creator of the trial's "official record," becomes
a medium for initial jockeying for control as well as the focus of assuring
that recorded "trial reality" is acceptable, as the following exchange in a
highly technical medical malpractice suit in DeKalb County Circuit Court
would indicate:
[The defense attorney, calling his first witness in an attempt to
refute a highly qualified medical researcher, attempts to assure the
testimony of his own expert witness be recorded "exactly" in the event
of eventual appeal, and addresses the issue of competence of the court
recorder].
Plaintiff's Lawyer: I am sure this lady is very good, but I have never
seen her before, and I don't know if she has taken medical depositions
or not. I would think that you [the witness] might want to read the
deposition to be sure she takes it down correctly, and I don't mean to
impugn her, but I have never seen her before.
Defense Lawyer: I appreciate your situation. I can say for the
record, she takes medical depositions continuously, but I think under
these circumstances, being that [the plaintiff's lawyer] is from out
of town, and [the witness] doesn't have any acquaintance, that it be
well if he read the deposition. [Transcripts, Sisler v. Fisher, 1979: 3].
Such interpersonal baiting and conflict in the Chicago trial
contributed not only to setting the initial tone, but also increased the
hostility betwen the participants, which became a prominent feature in the
struggle for control between judge and defendants. In the second example,
although the latent conflict situation is largely defused by the
acquiesance of the defense attorney, the potential for turning
communicative interaction into a struggle for control remains. It was the
interactional strategies rather than differing structural characteristics
or procedural opportunities that shaped the trial.
The struggle for control may involve not only lawyers, but witnesses
or defendants as well. For example, after suggesting the judge was a
"racist, a fascist and a pig," Rennie Davis is addressed by the judge:
The Court: I will ask you to sit down.
Mr. Davis: I have not completed my response.
The Court: I will ask you to sit down. I didn't ask you to get up here
and further insult me.
Mr. Davis: I have a right. I have a right to talk about my intentions
on each of these 23 [contempt] incidences.
The Court: You have no right to make insulting remarks in your
remarks. That has been the trouble with this whole trial.
Mr. Davis: The trouble with the whole trial, Judge Hoffman,
The Court: I will ask you to sit down, Mr. Davis.
Mr. Davis: . . .each and every time we attempt to make clear. . .
The Court: Put that man in a chair.
Mr. Davis: It is a fundamental right for a defendant to speak before
he is sentenced.
The Court: It is not a fundamental right for any man to stand up and
insult the trial judge. I won't take it.
Mr. Weinglass: Your Honor. . .
The Court: I have stood it for nearly five months, but I won't take it
again.
Mr. Weinglass: Your Honor, he has a right.
The Court: He has no right to do that.
Mr. Weinglass: He has the right to place the allegations against him
[in] factual context, and that is what he is doing. [Clark and Kalven,
1970: 89-90]
Davis was sentenced during the trial to a total of nearly 40 months
for what the judge perceived as contemptuous conduct during the trial. The
point here is that occasionally the struggle for control can result in
breakdown of conventional guidelines of interaction and necessitate ad hoc
implementation of judicial or litigant behavior and discourse in which the
fundamental relationships and antagonisms between participants become
momentarily manifest. Such a breakdown can lead to the judge him/herself
becoming an accused participant:
Specification 12 [against Davis]: On January 23, while the defendant
Davis was on the stand as a witness on direct testimony, the Judge was
required to make an evidentiary ruling. After the Court had
considered a document and ruled that it could not come into evidence,
Davis accused the Court of having ruled without reading the document.
The Court: I shall not take it in. In the presence of the jury I will
sustain the objection of the Government.
Mr. Weinglass: Your Honor has read the document?
The Court: I have looked it over.
The Witness [Davis]: You never read it. I was watching you. You read
two pages.
The Court: Mr. Marshall, will you instruct that witness on the stand
that he is not to address me. You, Mr. Marshall, you are closest to
him.
The Marshall: Face this way.
The Witness: I will look at the Judge.
The Court: Do you have what the witness said, Miss Reporter?
The Reporter: Yes.
Mr. Weinglass: I didn't hear that.
The Witness: I said he didn't read the document. I watched him. He
never looked at it.
The Court: He said "You never read it," looking at me.
The Witness: I meant the Judge did not read the document. [Clark and
Kalven, 1970: 81-82]
The incident of Bobby Seale being bound and gagged in a chair in the
presence of the jury is an extreme example of how a trial judge can attempt
to re-exert control over proceeding through ad hoc measures, which in this
case led to a breakdown in protocol and control:
Specification 14 [against Seale]: On October 30, 1969, at the opening
of the morning session the court ordered the marshall to adjust the
restraint on defendant Seal after he had complained of discomfort.
Thereupon the following occurred in open court. . .
The Court: If the marshall has concluded that he needs assistance, of
course, I will excuse you, ladies and gentlemen of the jury, with my
usual order.
(The followng proceedings were had in open court, out of the presence
of the jury:)
Mr. Kunstler: Your Honor, are we going to stop this medieval torture
that is going on in this courtroom? I think this is a disgrace.
Mr. Rubin: This guy is putting his elbow in Bobby's mouth and it
wasn't necessary at all.
Mr. Kunstler: This is no longer a court of order, your honor; this is
a medieval torture chamber. It is a disgrace. They are assaulting the
other defendants also.
Mr. Rubin: Don't hit me in my balls, mother fucker.
Mr. Seale: This mother fucker is tight and it is stopping my blood.
Mr. Kunstler: Your Honor, this is an unholy disgrace to the law that
is going on in this courtroom and I as an American lawyer feel a
disgrace.
Mr. Foran: Created by Mr.Kunstler.
Mr. Kunstler: Created by nothing other than what you have done to this
man.
Mr. Hoffman: You come down here and watch it, Judge.
Mr. Foran: May the record show that the outbursts are the defendant Rubin.
Mr. Seale: You fascist dogs, you rotten, low-life son-of-bitch.
[Clark and Kelvan, 1970: 26-27]
The resulting turmoil by the participants and especially the
spectators resulted in chaos which forced recess of the morning session.
The opportunity for disruptive strategies or for imposition of force or
violence by the participants creates a situation which reveals the
fragility of judicial proceedings intended to maintain the front of the due
process metaphor. Three final examples will display the types of slippage
between ideal and practice which may allow the control of the proceedings
to shift back and forth between participants:
Specification 15 [against Davis]: On January 23, the witness Davis
falsely accused the judge of sleeping during the proceedings.
A. [Sic]: You are making me memorize them.
The Court: What did he say?
The Witness: I am sorry. I thought you had gone to sleep. I am sorry.
The Court: Oh, no. I am listening very carefully. I just wanted you to
repeat. I wanted to be sure I heard what you said. [Clark and Kalven,
1970: 82]
Specification 18 [against Davis]: On February 2, after an extended
speech by Mr. Kunstler, there was an outburst of applause in the
courtroom. Mr. Davis participated in that applause and admitted
having done so. It is reported in the record as follows:
The Court: Everyone of those applauders. . .
Voices: Right on. Right on.
The Court: Out with those applauders.
Mr. Davis: I applauded too, your Honor. Throw me out. [Clark and
Kalven, 1970:83]
On October 22, in the afternoon session, Kunstler requested from the
court that a birthday cake be presented to Bobby Seale. The cake was
purchased by the other defendants for Seale's thirty third birthday and
brought into the courtroom so that he might eat it later. Judge Hoffman
immediately objected.
The Court: I won't even let anybody bring me a birthday cake. I don't
have food in my chambers. I don't have beverages. This is a court
house and we conduct trials here. I am sorry.
Mr. Kunstler: The cake is not to eat here, Your Honor.
Your application will be denied. Will you bring in the jury please,
Mr. Marshall?
Mr. Schultz: If the court please, can we wait until the defendants
appear?
The Court: The Defendants are not here? [Transcripts: 3639]
Upon entering the court, Rennie Davis called out in mock tragedy: "They
arrested your cake, Bobby. They arrested it." This comment resulted in a
two-day contempt citation.
These examples of the problematic nature of courtroom control display
just a few of the divers ways it can break down, and help us identify the
source of that breakdown as grounded, in part, within the interaction of
participants as they construct a meaningful social and organizational
reality. Although court protocol and related rules formally and informally
suggest the obligations expected from and by participants, they cannot
mechanistically determine how participants will interpret and apply those
rules. Nor can formal or tacit rules of themselves assert authority or
re-establish control over proceedings when it breaks down. This is done
only through the human activity of participants as they interact within
organizational parameters by selecting legitimate or illegitimate
strategies from available options. Control, then, is a continuously
problematic element, and there is always the possibilty that it may require
resolution in ways not sanctioned by formal goals or even prior practices.
Control, although provided for in the organizational procedures of the
judicial process, is not itself an organizational feature of that process,
but rather an anticipated outcome that occurs only through the intractional
work of participants. It is because of this problematic nature that
struggle for control contributes to the loosely coupled nature of the
judicial system by requiring constant maintenance and negotiation.
Communication
The representation, exchange and manipulation of such symbols as
language, styles of discourse, or knowledge are widely variable and
unequally distributed among participants. This results in often profound
discrepancies between the ideological ideal, which holds that persons are
"equal before the law," and the practice, in which "equality" is contingent
upon, among other things, participants' stock of knowledge, and upon their
ability and success in bringing to bear their symbolic repertoire on
particular objectives. The ability to elicit strategic testimony, select,
guide and pre-inform witnesses, use informants efficaciously, or even to
fabricate evidence are a few examples of how symbolic resurces can be
employed and manipulated. Selecting a single category of trial
communication, that of testimony, the slippage between the metaphor of
justice and the expediency of practice becomes clearer. The purpose of
testimony, that is, of the sworn attestation of fact, is varied. Courtroom
procedures and the conventional ideology of justice convey an image of the
trial as a mechanism from which an approximation of "what really happended"
will emerge from careful examination of all communication. In practice,
however, communication displays its dramatic potential as a means for
neutralizing "truth" through tactics of challenging competency,
credibility, or relevance of opposing witnesses, by challenging the
credibility of charges, or by reinforcing or challenging the legitimacy of
the criminal justice system itself. Communication perpetuates at the
symbolic level far more than a picture of "reality." Communication
procedures tend to reinforce the ideology of due process, and also convey
dramatic meanings which legitimize the credibilty and competency of
participants, and perhaps only incidentally bear upon the culpability or
exoneration of those charged. Also at stake in the meanings conveyed is
the symbolic maintenance of the credibility and legitimacy of the state as
the sanctioning agency. It is especially in the realm of communication
that the manipulation of symbols by defendants and witnesses may be
reframed into a political event, some might say in spite of, but probably
more accurately precisely because of the structure of adversary
proceedings. There are several types of communication which help display
both its particularisitc and contingent nature.
1. Testimony. Testimony is not always directed to the "officially"
defined issues. It can also reflect attempts to introduce unsanctioned
issues. The defense in the trial of the Chicago Eight continually raised
the themes of racism, militarism, Vietnam, and other social issues in an
attempt to symbolically redirect the definition of the meanings of the
proceedings, to politicize them. This in turn presented difficulties for a
judge bound by formal rules which may or may not be appropriate guidelines
for handling problematic and delicate courtroom situations. This is
illustrated by an exchange between Judge Hoffman and David Dellinger:
The Court: I do not share your view. Mr. Dellinger, do you care to say
anything?
Defendant Dellinger: Yes.
The Court: Not a legal argument.
Defendant Dellinger: No. I want to make a statement in the context. . .
The Court: Only in respect to punishment. I will hear you.
Mr. Dellinger: Yes. I think it all relates--and I hope you will do me
the courtesy not to interrupt me while I am talking.
The Court: I won't interrupt you as long as you are respectful.
Mr. Dellinger: Well, I will talk about the facts, and the facts don't
always encourage false respect. Now I want to point out first of all
that the first two contempts cited against me concerned, one, the
moratorium action, and secondly, support of Bobby Seale, the war in
Vietnam, and racism in this country. The two issues that this country
refuses to take seriously,
The Court: I hope you will excuse me, Sir. You are not speaking
directly to what I gave you the privilege of speaking to. I ask you
to say what you want to say in respect to punishment.
Mr. Dellinger: I think this relates to the punishment.
The Court: Get to the subject of punishment and I will be glad to hear
you. I don't want you to talk politics.
Defendant Dellinger: You see, that's one of the reasons I have needed
to stand up and speak anyway, because you have tried to keep what you
call politics, which means the truth, out of this courtroom. [Clark
and Kalven, 1970: 71]
A later exchange between Rennie Davis and Judge Hoffman occurred when
the judge objected to Davis' attempt to explain that the judge's treatment
of Seale had been a significant contributing factor to his behavior:
The Court: I won't hear you about that, and if you persist in that, I
will. . .
Mr. Davis: How am I to explain to you that what happened to Bobby
Seale directly led to my feeling that I could not stand what you did
to Bobby Seale at that moment?
The Court: In the first place, what you say is not accurate.
Mr. Davis: I am reading from the record. I am reading from the court
record.
The Court: In the first place, before we ever got to the point of
discussing his lawyer, you know what he called me.
Mr. Davis: I do.
The Court: I wouldn't. . .
Mr. Davis: He called you a racist, a fascist, and a pig.
The Court: Several times.
Mr. Davis: Many times, and not enough. [Clark and Kalven, 1970: 89]
The opportunity for Davis to legitimately call the judge a "fascist
and a pig" was allowed by the judge asking, and thereby encouraging, Davis
to repeat the court testimony of Seale. This strategic recollection
allowed the political issues to be re-introduced once again into the
testimony and record. This testimony, while challenging judicial dignity,
nonetheless helped insulate Davis from another contempt citation by the
manner in which he introduced the epithets against the judge. The
transcripts indicate that this ploy was used often during the trial, and a
variety of subtle, often humorous, and usually effective strategies were
employed during defense testimony to allow discussion of political topics.
The point here is that the battle over the meaning of the issues and
the relevance of particular testimony to such meanings is a social, not a
legal construct. This issue arose also in the Dekalb malpractice suit in
which the plaintiff alledged a misdiagnosis of a potentially fatal tumor.
Testimony of the defending physician's witnesses did not disagree over the
facts of the case, but rather over the meaning of the concept
"malpractice." Under Illinois law, when persons claim expertise in a
"science" they must actually possess the skills and knowledge that any
reasonably well-qualified specialist would use in similar circumstances.
If not, then a judgement of malpractice may be rendered. Neither plaintiff
nor defendant chose to dispute "facts," but rather developed strategies to
persuade the jury that whatever the law, a "common sense" definition of
competence was at stake. In this case, strategies were not based so much
on legal expertise as much as on interactional techniques intended to
arouse (or prohibit) expression of jurors' sympathy. For example, during
his opening statement, the plaintiff's attorney seated the plaintiff's wife
with the plaintiff, even though she was not a party in the litigation.
This symbolic representation of family dramatized the consequences of the
alleged malpractice, especially in a conservative, family-oriented
community from which the jurors were drawn. The defense attorney in open
court immediately objected, which had the consequence of breaking the
defender's own momentum, reframed the focus of courtroom interaction to the
seating ecology, and thus emphasized the extra-legal issue of the "family."
The defense attorney indicated he had no choice but to oppose the seating,
knowing the consequences, because to allow the wife to remain present would
have been even less desirable. This also, some observers suggested,
created an imagery of the defense as the "bad guy" by breaking up the
couple, and it was felt that especially because the defense lawyer was from
a large northern Illinois city, this strategy by the plaintiff's lawyer was
quite successful in shifting the meaning of the trial from one of technical
competence to one of conventional community values. The plaintiff's
lawyer, as did the participants in the Chicago Eight trial, also introduced
a dramatic closing argument that the defense complained was "solely
designed to inflame, prejudice, bias, and unduly influence the jury so as
to create sympathy." Knowing (according to previous "expert" testimony)
that the misdiagnosis was probably not fatal, the attorney nonetheless made
an expertly delivered and highly dramatic closing appeal:
Defense: [All my client wants is justice.] Justice for L. S. Justice,
and I think he has the right to die knowing he had justice and his day
in court, knowing that justice includes a proper award for what he has
lost, which includes dying knowing that his family and the
grandchildren that he won't be able to care for will be taken care of
because he won't be there.
Defense: Ojbection, your honor.
Plaintiff: I will withdraw that.
These examples from seemingly disparate trials may appear "common
sense" trial strategies. The point, however, is not to identify the
existence of such strategies, but to suggest that the essential nature of
such strategies is embedded in an interactional, rather than judicial,
framework, and that justice is a game of social fabrication guided by
rule-following, but not necessarily justice-intended behaviors.
2. Informants. Paid informants especially present a particular
problem of communication for both defense and prosecution. In the Chicago
Eight trial, there were a variety of paid informants and infiltrators
testifying for the prosecution. Informant testimony may be unreliable, and
thus potentially embarrassing for the prosecution, or may provide damaging
information which could be difficult to manage for the opposition.
Informant testimony entails considerable risk for all involved. For
example, there may be a tendancy among informants and other secret agents
to fabricate, exaggerate, or otherwise selectively filter information in
ways that may create unanticipated problems for those soliciting the
information as testimony. There is also an irony in the use of informants
which calls into question the credibility and legitimacy of the judicial
system when it is discovered that there has occurred legal transgressions
by informants (or by police undercover personnel) who are ostensibly
mandated to enforce the law (e.g., Marx, 1981, 1982). There is also the
danger that an informant might be "turned" and become a "double agent"
(e.g., Marx, 1975; Masterman, 1972) thus discrediting those who originally
planned to utilize the informant's services. In the Chicago trial, there
were three accredited news personnel who testified as paid informants, one
of whom was paid $6,000 to $7,000 by the FBI in the preceeding year in
addition to $2,000 in expenses, to collect information relating to the
defendants (New York Times, 24 October). When payments or similar rewards
are discovered, it reduces the credibility not only of communication, but
also of the proceedings themselves, as occurred in the ABSCAM case.
Because informant testimony may be constructed to show the informant in the
best possible light rather than to add anything of significance to the
veracity of competing accounts, it could be exposed as complete
fabrication, and therefore not only useless, but also discrediting to the
client and to the legitimacy of the proceedings themselves (e.g., Marx,
1982).
3. Professional experts. Professional experts who are paid for
providing testimony are apt to be chosen on the basis of their client's
prior knoweldge of the "line" they will present when testifying. Rare is
the paid expert who will intentionally testify counter to the interests of
those who purchase the service. In a case unrelated to the Chicago Eight
trial, an "arson expert" in Chicago had, in the 1970s, provided
important--and at times the only--testimony in arson trials. This expert
was respected as a competent professional who often found evidence of arson
where other invetigators could not. For this reason he was sought as a
highly skilled investigator by insurance companies and others who had an
interest in "proving" arson to minimize insurance payments. In a turn of
conscience, the expert confessed that not only were his credentials
fraudulent, but that he had habitualy lied--committed perjury--to bolster
his reputation (and remuneration) as a witness. He acknowledged that on
"numerous" occasions he had fabricated evidence, distorted facts, and
otherwise presented misleading evidence, resulting in conviction of
presumably innocent persons (Chicago Tribune, 1 June, 1980: 1-1).
Although the Chicago Eight trial provided dramatic illustrations of
the manner in which expert witnesses are presented to juries, the
interactional process is applicable to other trials. In a felony burglary
case in DeKalb County Circuit court, the defendant had injured himself
sufficiently to require hospitalization, which led police to him, and the
injury was a piece of circumstantial evidence introduced in court. A young
defense attorney attempted to challenge the ability of the treating
physician--an experienced and respected local practitioner, to distinguish
between a "gash" (such as occurred at the scene of the burlary) and a "cut"
that might be sustained in a minor home accident. The ploy in this case
failed, and this evidence (and the attorney's apparently clumsy effort to
challenge it) led to the defendant's conviction. In the malpractice case,
the defendant's expert physician spent exactly eight minutes establishing
his professional credentials, about half of his total testimony time. The
importance of the "battle of experts" revolves at least as much around the
ability to present a professional front in a way that will persuade a jury
as upon the actual expertise. As a consequence, expert testimony may be
viewed, in part, as an interactional social construct.
4. Symbolic Testimony. An apparent need to add credibility to
charges often leads to testimony which may not be intended so much to
convict a defendant, but to justify the specific charges brought against
the offenders or to legitimize evidence-gathering activities of law
enforcement officers (as, for example, occurred in the recent FBI Abscam
operation (Marx, 1982)). For example, Chicago news columnist Michael
Killian testified that he overheard Jerry Rubin say in a telephone
conversation "Fine. Send them on out. We'll start the revolution now." This
was adduced by the prosecution to re-affirm the legitimacy of the charge of
conspiracy by invoking the literal image of imminent revolution. This ploy
was used by the prosecutor to link all defendants' actions to a threat of
armed political insurrection (New York Times, 25 October, 1969: 16). One
paid informant testified that the resistance group which sponsored Tom
Hayden advocated violence. When asked what kind of violence, he said that
in their private meetings, some individuals advocated chaining themselves
to posts (Chicago Sun Times, 23 October, 1969: 20). Although organized
armed insurrection and individual advocacy of passive disobedience are both
illegal, they are not analytically of the same magnitude. Both,
nonetheless, became a means of justifying conspiracy charges. Imputation
of exaggerated meaning to events in testimony contributes to the
problematic nature of courtroom interaction by potentially distorting the
incidents in ways that support a preferred view of events.
In sum, communication is a social construct, a fabrication designed
and implemented by human labor for instrumental intents. As a fabrication,
it is not necessarily guided by the formal judicial rules, even though it
may be constructed by following the rules. Communication as fabrication
embodies a variety of meanings and generates problematic interpretations,
ploys, reconstructions, and negotiations by courtroom participants, and may
contain as well an assortment of exaggerations, prevarications, selective
perceptions, or other characteristics which distort and thereby create an
imagery intentionally different from, or at variance with, the events which
originally transpired. Communication, then, is one means by which
decoupling of formal organizational rules from the goals they are intended
to implementcan occur. It provides the opportunity to symbolically
construct, using law and courtroom protocol as a medium, a Potemkin's
Village in which an ediface of formal rules is employed to fabricate
decisions and procedures which may be intended less to attaining justice
than to following the rules of justice.
Conclusion
This study has examined the adversary process by focusing on the
Chicago Eight trial as a typical, rather than abnormal, instance of the
adversary process. By comparing this trial with other less-dramatic
trials, it becomes easier to display how human activity mediates the formal
rules of justice which in turn decouples organizational rules from intended
outcomes. This discussion further illustrates that the structure of the
judicial systems, ostensibly mandated to seek "truth" through a reasonably
fixed set of organizational procedures, may be incompatible with the
normatively grounded practices by which "truth" is obtained (e.g., Wolf,
1981). Loose coupling helps make more intelligible the justice process as
human practice by conceiving it as a set of social relations. In these
processes, human work activity transforms by symbolic means the social
world within which formal structures, constraints and restraints may be
mediated by such symbolic dimensions as communication, control, and style.
Several further insights are suggested by this study. First, whatever
their personal motivations or beliefs, the behaviors of the participants
are not structured to promote truth, but to symbolically confer meaning,
credibility (or discredibility), significance, and control over
information, events and proceedings that favor an interest-bound,
pre-defined view of social reality. Second, the use of law by those
officially mandated to employ it may serve as an instrument for suggesting,
limiting, or shaping presentational or discursive strategies rather than
provide a basis for prudent application of juridical principles in the
interest of justice. More specifically, as Winter (1971) has suggested in
a study of juries, the conclusion of justice may ultimately be not so much
making a correct decision, but rather a matter of reaching a decision by
correctly following rules. Third, knowledge of law becomes a means of
controlling information flow, and of establishilng strategies to
selectively and strategically reveal, conceal, or distort potentially
relevant information and behavior. Fourth, participants all have potential
opportunity for mediating the process, whether as direct participants, or
as supporting actors. Finally, the behaviors of participants do not exist
in a vacuum but are shaped by cultural, political, and other influences.
Although this study has been informed primarily by an interactional
perspective, it is not intended to exclude organizational and broader
(e.g., ideological, political-economic) issues, and should in fact be seen
as an integral task for such analyses. Research displaying the deeper
structures in which behavior is embedded is an absolutely essential task
into which this type of interactional analysis must eventually be
integrated. One avenue for further reseach is examination of the sources
which influence behavior as shaped by ideologically-bound social and
cultural factors such as language, preferred views of social order, and
cultural baggage which accompanies us on our excursions into the social
world. The concept of loose coupling provides a conceptual tool by which
such factors as class-bound judicial norms or forms of state control may
slip into the judicial process in ways that reflect attempts at
controlling, rather than attaining, the justice metaphor.
Footnotes
1. Due process here refers to the basic judicial procedures
Constitutionally established by the guidelines in the Bill of Rights
(e.g., right to speedy trial, right to confront witnesses) and the
14th amendment (the "due process" clause).
2. Following Weber, rationality here refers to the identifiable rules
by which organizations function. Such rules may be formal, in that
they are explicit and "officially mandated" by the organizational
apparatus, or substantive, in that they are unofficial, yet commonly
accepted as necessary if the organization is to be effective. For
excellent discussions of this distinction in policing organizations
and prisons, see especially Manning (1977a, 1977b) and Thomas
(1982).
3. As used here, metaphor refers to an alternative model of the world.
Metaphors, as Manning (1979b) has indicated, are a means of setting
phenomena apart from other things. Metaphors allow for articulating
differences between objects and allow lso for a "re-framing," so to
speak, of objects in order to redirect cognition in ways otherwise
unavailable when assuming an objectivist epistemology (Burke, 1969).
4. "The Court" refers to Judge Hoffman throughout.
5. Citations, whereever possible, are taken from published sources to
aid those who wish to pursue reading. Otherwise material is cited
from the trial transcripts (U.S. v. Dellinger, et. al, 1969).
6. By contrast, in DeKalb County, neither the Court Clerk nor the
senior judge could recall a single contempt citation for courtroom
behavior in the past seven years.
7. For an excellent discussion of the symbolic nature of use of
information and especially its acquisition, see Feldman and March
(1981). In their view, information is subject to numerous sources
of distortion, and may not be as valuable as a resource as it is a
ritual acknowledgement of shared values. In this sense, information
becomes a ceremonial artifact useful for displaying competency and
for providing an imagery of social efficacy. For a somewhat similar
argument addressing the F.B.I.'s use of information, see Poveda
(1982).
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