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When we talk about the performative aspects of law we could be thinking of things that are obvious and well documented (e.g., at a trial all the lawyers and witnesses are in some sense “acting”) to things that are hidden (often in plain sight) and rarely considered (e.g., legal spaces such as the Signet library brim with semiotic significance). Then, too, we could be thinking of things pitched at an even higher level of theoretical abstraction (e.g., legal texts - like dramatic texts - are largely inchoate; they must be performed to make any actual or causal difference in the world). I think all these facets are worth close examination, but here I want to restrict my focus to just one: the lawyer’s performance as narrator in closing arguments. As a running example, I shall use the summation by famous American lawyer, orator and senator Daniel Webster in Commonwealth v Knapp (1830) in which Webster deploys a framed narrative to serve as an exemplary narrative. Both those terms call for elaboration, so let me briefly detour before getting to Webster’s argument itself.
In a trial there is an inevitable tension between story and discourse, which is to say between what “really” happened in the past and the presentation of what happened in the specious present of the trial (see Patrick Colm Hogan, Cognitive Science, Literature and the Arts (New York: Routlege 2003). In a
classic murder scenario, Frank is hard up for money, while his aging uncle sits on an unused fortune. If the uncle dies, Frank will inherit. So Frank hires
a “hit man” to do the uncle in. The hit man breaks into the uncle’s home through a garden window, and stabs the uncle while he sleeps. But the hit man unwittingly leaves footprints in the garden, footprints that bear the markings of an unusual shoe, which the police quickly trace back to the hit man, who - once arrested - confesses and implicates Frank in exchange for leniency. That is the story - what really happened, set out in more or less chronological and causal fashion. At trial, though, jurors will hear a jumble of evidence taken out of sequence. For example, the first witness may be the coroner, testifying that the uncle died of stab wounds. A casino manager may then testify that Frank had a gambling problem and that he owed thousands of dollars in gambling debts. Then the owner of a shoe store may testify about the rare shoes and how someone who looked like the hit man bought shoes with the unusual sole. The hit man may then testify that Frank hired him to kill the uncle. But each of these witnesses will be subject to cross examination, and other witnesses may say contradictory things. From this discourse, the jury must construct a narrative that will justify (to them) the
verdict that they render. How close that reconstructed narrative resembles the real narrative is, of course, another matter. What we are concerned with
here is how a lawyer can take trial discourse and (re)perform it in a way that guides the jury to one narrative version or another.
The features of the Knapp story are similar to - but quite a bit more complicated than - those of the hypothetical I just discussed. The case still has some popular appeal, although current media versions of the story diverge from more authoritative sources (e.g., www.murderpedia.org). John Francis Knapp (Frank) and Joseph Jenkins Knapp (Joseph) were brothers. They had a wealthy uncle, Captain Joseph White, who was 82 years old at the time. At the risk of oversimplification, the brothers believed that they could have their uncle killed, steal his will, and then inherit sooner and in a greater amount than if he were to die with a will in place and of natural causes. (As it turned out they were wrong about Massachusetts inheritance laws, and they destroyed a will that had been superseded.) In any event, they hired a hit man, Richard Crowninshield (perhaps along with his brother, George), to murder Captain White. One night, Richard Crowninshield broke into Captain White’s house through a window that Joseph had unlocked, crept to his bedroom, and then clubbed and stabbed him as he slept. Frank and/ or Joseph Knapp waited in the street outside and helped Crowninshield escape and hide one of the murder weapons. For a couple of months, the case remained unsolved. But then a (jailed) informant came forward and told of a plot to rob Captain White that he had overheard in a tavern. On the strength of this report, the Crowninshield brothers and two others were arrested. Although Richard did
not inform on the Knapps, he had told at least one of his criminal associates about the murder and its participants. One of them, John Palmer, seized on
what he saw as an opportunity for profit and sent a blackmail letter to the boys’ father, who passed it on to the authorities, who in turn arrested the Knapp brothers. After this, Joseph Knapp confessed and Richard Crowninshield hung himself in his jail cell. After Crowninshield’s suicide,the case presented prosecutorial difficulties under the Massachusetts law of the time. This was so because an accessory could only be convicted after a principal had been convicted. Thus, one of the Knapps would have to be tried as a principal, which could only be accomplished by showing that he procured the murder and was “present” at its commission. As a further complicating factor, the case against Frank was largely circumstantial. Frank was tried first, initially to a hung jury. The second trial, which is our object of study, resulted in Frank’s conviction and ultimate execution. Later, Joseph was tried and convicted; George Crowninshield was acquitted.
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