With the arrest of Ahmad Khan Rahami, Donald Trump was quick to lament that Rahami would get medical care and due process. His assertion was that our nation had gone soft and was not willing to deal with terrorism harshly enough. In prior elections, it would be shocking for a Presidential candidate to express being upset that a US citizen would be getting Constitutional due process, but it is clear that nothing Trump says or does matters much to his supporters. But this last policy position should matter, especially since so many of them propound to be strict Constitutionalists and believe that the Founding Fathers’ vision should guide us to this day.
So I did some research online and found two interesting trial records of two separate trials we held in piracy cases from the 19th Century. Throughout the 19th Century, piracy was one of the largest threats to the American economy and safety on the high seas. Many of the pirates were Muslims coming from the Barbary Coast and many were from Spain, ravaging the Caribbean and US shores. We fought two wars against the Barbary pirates in the 1800s and formed the US Navy, the US Coast Guard and the Marines in large part to combat piracy. So I thought it would be interesting to see what the trials of these early terrorists looked like. It ends up the Library of Congress has dozens and dozens of trial transcripts of pirate trials from that era. Here’s a quick summary of two I found:
Us v. Pedro Gilbert et al In 1834, in Washington DC, twelve men were charged with piracy on the high seas. Their boat, The Panda had waylaid The Mexican an American merchant ship laden with goods and currency heading to Rio De Janeiro from Salem Massachusetts. They not only beat the crew and stabbed the captain, but they locked all of them in the hold and set the ship on fire leaving them all to die. But the crew were able to get out, extinguish the fire, and sail on. The Mexican was then able to get back to port and crew members were able to tell their tale in court after The Panda was caught by a British ship and its Captain, named Ruiz, and the crew brought to the US for trial in Federal Court in Washington DC. The record reveals that the court took great pains to treat the pirates fairly. Understanding the community’s feeling about piracy, the court brought in 150 jurors (all men of course) to make sure that twelve could be sworn to hear the matter fairly. Three different interpreters were brought in to make sure the accused could understand what was being said in their native languages. Two prominent criminal defense lawyers were appointed to represent the men and they pulled out no stops. They made a motion for a separate trial for each defendant, which was denied. They successfully demanded that articles about the case and about piracy be cut out of the daily newspapers given to the jury. They moved that the jury should not be allowed to drink alcohol, but because the DC water was of such poor quality, the judge allowed them to do so in moderation. The government paid for the defense to call two experts to say that it would be nearly impossible for the two ships to have met at the latitude and longitude that the Captain of The Mexican had claimed they met at. They called character witnesses on behalf of the first mate, Bernardo DeSoto, who had single-handedly saved the lives of over 70 people from a burning ship earlier in the year. The defense was allowed to sum up for over eight hours over a period of two days using words that ring true today:
The lives of twelve men are in your hands. By your verdict will it be determined, whether the individuals who now sit before you, in the fullness of life and strength, continue to exist, or whether they shall taste the bitterness of death. These men are accused of the crime of Piracy, and are consequently viewed with horror as robbers and murderers. Let me entreat you to lay aside all prepossessions of this kind, and not suppose, because the prisoners are accused, that they are guilty. I venture, however, to say that the men before you differ only in the color of their skins, from the most respectable crew that ever sailed out of the port of Boston
The emotional appeal failed to save all of them as five were acquitted and seven, including DeSoto were found guilty. The jury sent out a special note asking for mercy on behalf of DeSoto, but the judge condemned all the guilty to death by hanging saying it is now my painful duty to pronounce the sentence of the law upon each of you, for the crime whereof you severally stand convicted that you, and each of you be severally hung by the neck until you be severally dead.
Condemned Captain Ruiz’s wife began a campaign to seek a pardon for him and for DeSoto in light of DeSoto’s prior bravery and the minor role he played in The Mexican case. She received a private audience with President Andrew Jackson where she begged for a pardon. While he was deciding what to do, Jackson received a letter from the most prominent and successful actor in the country, Junius Brutus Booth. The letter stated:
To His Excellency, General Andrew Jackson, President of the United States, Washington City,
You damn’d old Scoundrel if you don’t sign the pardon of your fellow men now under sentence of Death, De Ruiz and De Soto, I will cut your throat whilst you are sleeping. I wrote to you repeated Cautions so look out or damn you. I’ll have you burnt at the Stake in the City of Washington.
It was one of the first recorded assassination threats in the Nation’s history. Jackson did not take it seriously but pardoned DeSoto nevertheless. Captain Ruiz was hanged a few days after his crew. Booth’s son John Wilkes Booth would go on to assassinate Abraham Lincoln.
US v. Josef Perez This case arose in 1822 and involved the piracy of the merchant ship called The Bee. The trial was held in the Southern District of New York in 1823. Perez allegedly boarded the vessel with his crew, imprisoned the captain and crew and took several barrels of rice, crackers and flour; sixteen boxes of codfish and twenty-four gold watches. Perez denied it was him and stated that he was the wrong man – misidentified by a member of the crew who had spotted him months later on a different boat. Once again, a translator was provided and two lawyers assigned since the defendant “established himself incapable of acquiring counsel in the usual manner.” The full transcript of the trial is available for free on the Library of Congress website HERE and it is fascinating – well at least to me as a trial lawyer and a trial junkie. Witnesses had identified Perez by a long scar on his left hand; but some witnesses put the scar on his right hand. Perez had scars on both hands. Through cross-examination on this issue, the witnesses were forced to admit that they could not be morally certain that Perez was the pirate that sacked The Bee. The lawyer, while arguing innocence, also argued that because the crime had occurred in an inlet of a bay in Havana Cuba, the crime did not occur “on the high seas.” It was that element that made it piracy and therefore a capital crime. Perez mounted an alibi defense as well trying to establish that he was on a different boat at a different time. At the end of the case, Perez’s lawyer also made a lengthy and impassioned speech to the jury recounting a recent case in Vermont where a man had been tried and convicted of murder only to have the alleged victim walk into town very much alive on the day before the defendant’s scheduled execution. He then adding words that would fit well for a jury hearing a terrorism case in the same courthouse today:
[I rest] on a jury of Americans, who in the midst of a general horror of the crime of piracy, and themselves feeling that horror in the strongest degree, could nevertheless exert so much strength of mind as to divest themselves of prejudice – to separate the crime from the person accused of it – and judge with a dignified impartiality his guilt or innocence.
The jury was deadlocked after several hours 6-6 and after receiving several charges from the court to keep deliberating, finally announced themselves hopelessly deadlocked 7-5 in favor of acquittal. The jury was disbanded and Perez held for several months until the US attorney’s office decided not to re-try him.
What we learn from those cases is that at the infancy of our country, at a time when piracy was the scourge of the world, we held our values more dear than our passions. We were able to fairly and impartially try the accused under our rule of law; affording them attorneys;providing translators and experts; and being guided by the principle, as the US Attorney Robert Tillotson said in his summation in the Perez case that if the jury condemns or acquits the defendant, as long as they have done so following the law and the evidence, they have performed their duty as Americans. We need to make sure that nearly 200 years later, we are not too far removed from those guiding principles and from the wisdom and understanding those men showed when they crafted our Constitution. Nothing could be more patriotic than making sure Rahami and any others who area accused in these most recent attacks gets competent counsel and a fair trial. We need to show the terrorists that no matter what, America will not be cowed into giving up the core founding principles of our nation.
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