Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his [defense]. 

Article 11, Universal Declaration of Human Rights[1]

The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law….”

Coffin v. United States[2]

[Phil, I read your last blog on witch hunts and enjoyed it quite a bit. It was colorful and incisive as usual. I think what you said was that in the old days a witch hunt could be started by any person who denounced a neighbor by filing charges with a local court, with supporting evidence. If the evidence made the case, then the accused [witch] was in trouble. If the evidence wasn’t good enough, then the accuser might be in trouble unless he had acted simply to protect the Faith or for the common good. In that case he wouldn’t be penalized “even if he fail[ed] in his proof.”[3] Or, if there were rumors of witchcraft all over the place, but no one was willing to denounce individuals, a local tribunal might simply open an inquiry [an “inquisition”] on its own motion and start dragging people in to question them.

So that brings me to the next question. Presumably even 500 years ago people accused of a crime were thought innocent until proved guilty. So how did the witch hunters prove someone was a witch? How could they do that when, as we know today, it’s simply not possible to affect weather, crops or livestock with a curse, or make people sick with a dirty look, or have sex with a demon? [4]]

That last is another very good question from our leader, G. Sallust. Perhaps one day I’ll ask the questions and he’ll answer them. But not today; the answer to his question – how to prove witchcraft – lies deep in the Malleus Maleficarum[5], a book I’ve read and he hasn’t. Not that I’m glad to have read it. It gives me nightmares, sometimes. But apparently people study it in our Journalism schools and treat it as a good example, if not a paradigm of how to report on politics. So, too bad for us, the Hammer may be as relevant to current events as today’s newspaper. Do any of you read newspapers?

The ancient witch hunters needed three things to try a witch: (i) the accused’s reputation; it had to be bad; (ii) ‘indications’ of sorcerous deeds; and (iii) adverse witness statements.[6] That sounds clear enough, I suppose, but the devil was in the details, especially where sorcery was involved. Also witch hunters wouldn’t have brought someone to trial unless they thought she [or he] was guilty. Anyway, that’s what I’m told.

Reputation as Evidence

If the accused had a bad reputation, the witch hunters assumed it was because she [or he] had committed sorcery at some place and time. “[S]orceresses are immediately branded with a bad reputation because of crimes in some village or city.”[7] A bad reputation was, in fact, evidence of sorcery. Where there’s smoke there’s fire! Or was it, “probably a liar?” I forget.

Indications of the Deed

This was the easy part. The investigators looked for sick children, diseased farm animals, barren fields, and so forth.[8] Such events were plentiful [it was the 15th Century] and easy to verify. The trick was to connect them to the accused. For this investigators needed either a confession or statements from witnesses.

Witnesses

Three witnesses were required.[9] However, they didn’t have to be witnesses to the same event. One could have said, ‘she looked at my child, and he fell sick’’ another that ‘she looked at my farm animals, and they died, and the third that ‘she waved at my fields, and they became barren.’[10] It was enough that they all agreed about the ‘essence of the deed’ – i.e., that there was sorcery.

Of course that was their opinion, unsupported by today’s science. Illness and crop failures are common when people have poor sanitation, over cultivate their land, starve periodically, and basically don’t understand how disease works. But witnesses didn’t know such things in the 15th Century, and it didn’t matter. The only important thing, apparently, was that they believed sorcery was at work and said so. How did they know that? Don’t worry; they just knew it when they saw it.

Guilty or Innocent?

So there you have it. If the witch hunters did their job properly, there was no real need for a trial. All that had to be proved would have been proved.” A trial would only validate the accused’s guilt, preferably with a confession.[11] I’m not a lawyer, but frankly I don’t see a “presumption of innocence” working anywhere in this business.

Guilt was established by the investigation. If the witch confessed as well, she would be turned over to the civil authorities and burned. If she didn’t confess, it would be just for the civil authorities to imprison her until she was ‘worn down by the misery of prison’[12] and confessed. Then she could be executed. In either case, the whole thing would be ‘summary, straightforward, and informal,’ which the hunters thought was a good thing.[13]

And, by the way, it didn’t really matter if she denied all guilt. The witch hunters thought witches successfully resisted confessing only because the devil helped them. That’s why, once a witch was arrested, the authorities were told to: search her house for ‘devices of sorcery’; lock up her ‘maids and companions,’ because undoubtedly they knew secrets; and keep her out of the house, because otherwise she might pick up magical devices that would help her keep silent.[14] Nobody wanted her to find her magical confession-repeller, because that might complicate the investigation!

Witch Hunts Today

So let’s summarize for a bit. In the 15th Century if a woman didn’t get along with the neighbors, normal illnesses, etc. attacked some of the local children, farm animals or fields, and three people blamed the woman, that was enough to prove witchcraft. You know, I used to think that it would be wonderful to live in a small town, but I’m beginning to understand the drawbacks, especially if the locals are superstitious. But that’s not our current issue, is it? What G. Sallust asked was: “Do our peerless media behave exactly the same way when they report on politics?” I’m thinking the answer is “yes,” at least where President Trump is concerned.

 

Have the media relentlessly focused on his private life, and allegations about it? Yes. Do they talk and talk and talk about what they think of him, his business practices and how he may or may not treat others? Yes. Do they routinely portray him as unstable and not to be trusted? Yes. Do they routinely ignore his popularity in troublesome places like the Middle East, and his ability to turn out its leadership when he goes there? Oh, yes! So quite obviously his reputation is a prime target.

Does Mr. Trump have a lot of accusers? Oh yes, and many of them – seemingly the most authoritative – are anonymous. They pretty much act like 15th Century witnesses who are afraid of the person they denounce, and ask the inquisitor for protection; only in this case it’s the media that shields the witness, not some judge. So there are witnesses against Trump out there, timid ones, but quite likely more than three.

But the ancient witch hunters demanded some independent, physical evidence of witchcraft before they would prosecute. You know, the ‘indications’ of the deed – sick children, barren fields, bad weather, that kind of thing. Most of these events are now known to have natural explanations. So do we have a disaster right now; one bordering on the supernatural[15]; that these many secret witnesses might connect to Trump?

So far there doesn’t seem to be anything like that. The stock market is up; employment is rising; there aren’t any new wars or plagues; and ISIS, although still active and deadly, is in retreat. And that, I would say, is the fatal flaw.  The media are hunting witches when times are good, or at least improving.

Conclusion

So, not to put too fine a point on it, if we brought in auditors from the 15th Century to look at the campaign against Trump, most likely they wouldn’t like it. There’s an essential element missing in the proof: i.e., no current disaster of near supernatural proportions to fire up the populace. Also, there’s a fussy legality that might disturb the process. Today an accused person is presumed innocent until proved guilty.

And, as we discussed last time, there are other disturbing factors in play. These days lawyers are available to an accused, for example, and the courts aren’t permitted to torture him [or her]. Given all that no doubt the inquisitors of the 15th Century would withhold their seal of approval. What else could responsible and moral hunters do?

So for now to the media: Good try, and better luck next time!

[1] The text of Article 11 of the Universal Declaration of Human Rights is available as a pdf download directly from the United Nations, at http://www.un.org/en/universal-declaration-human-rights/index.html Want to know more about the Universal Declaration? Check out the Wikipedia entry at https://en.wikipedia.org/wiki/Universal_Declaration_of_Human_Rights

[2] See Coffin v. United States, 156 U.S. 432, 453 (1895), available from Justia at https://supreme.justia.com/cases/federal/us/156/432/case.html. For you non-lawyers, the Justia version of a Supreme Court case is not “official,” and can’t be cited as such in a legal brief, etc. But it works just fine for a blog. Also the Court is talking about a presumption of innocence, not an absolute rule. “This presumption is in the nature of evidence in his favor [i.e. in favor of the accused], and a knowledge of it should be communicated to the jury. Accordingly, it is the duty of the judge in all jurisdictions, when requested, and in some when not requested, to explain it to the jury in his charge. The usual formula in which this doctrine is expressed is that every man is presumed to be innocent until his guilt is proved beyond a reasonable doubt. The accused is entitled, if he so requests it … to have this rule of law expounded to the jury in this or in some equivalent form of expression.” See id.at p. 459, citing an article in Criminal Law Magazine from January, 1888.

[3] See Christopher S. Mackay (translator], The Hammer of Witches, A Complete Translation of the Malleus Maleficarum (Cambridge 2006, 2009) (hereafter cited as Hammer at p. __). See Hammer at p. 504. As noted last time, the book was written by two [apparently crazed] Dominican friars, Jacobus Sprenger and Henricus Institoris. See Hammer at Introduction, p.2 – 3.

[4] G. Sallust, by phone, June 22, 2017. Again, this was what was on my voicemail, sanitized a bit for language. You’ll have to take my word for it. I still don’t save voicemails.

[5] See n. 3.

[6] See Hammer, Part III at p. 202A, 202B (p. 521 of the text.)

[7] Id.

[8] See Hammer, Part III at p. 202A, 202B (p. 521 of the text.)

[9] See Hammer, Part III at p. 197A (p. 508 of the text.) The authors thought that two ought to be enough, but chose the larger number in the name of ‘legal fairness.’

[10] See generally See Hammer, Part III at p. 202B, 202C (p. 521, 522 of the text.)

[11] Once in jail, an accused might never get out. Some commentators argued that so long as the accused had an impaired reputation, there were indications of witchcraft, and three witnesses against her, she was ‘manifestly caught’ and should go to prison.  (See Hammer, Part III at p. 203A (p. 524 of the text)) The Malleus took a more liberal position. It let the judge decide to imprison or not to imprison based on the strength of the case and ‘on the basis of local procedure and upholding custom.’ But, and this is important, if released the accused witch had to produce sureties to guarantee that she would appear again in court if summoned.” (See Hammer, Part III at p. 203B (p. 524 of the text))

[12] See Hammer, Part III at p. 202C, 202D (p. 522. 523 of the text.)

[13] See Hammer, Part III at p. 202D, (p. 523 of the text.)

[14] See Hammer, Part III at p. 203C (p. 525 of the text.)

[15] Perhaps an economic disaster? Recessions always seem kind of supernatural to me.