Wednesday, March 13, 2013

Memory Trails – A Phone Call Remembered

A recent news story of an injured child led me back through forgotten memory trails to a moment in the year 1969, the last of my brother’s life.

 Jeff Sharlet, 1965

It was a Monday afternoon in mid-June. I was then a young professor at a college in the Northeast. It was the end of the term, and I was at home grading final papers. I had tickets to fly to Florida the next day where my brother, Jeff Sharlet, an ex-Vietnam GI, was seriously ill. He was founding editor of the influential underground antiwar paper Vietnam GI. My father had assured me Jeff’s condition was stable. I had appointments to meet with his doctors in coming days. They had some new treatment ideas.

Working at the dining room table, I hoped to hand in the grades before I flew south. It was a soft late spring day, and I had opened the windows. The birds in the trees were in concert as I read. The phone rang. Could be something important. I was greeted by a law professor calling from Boston; he said his name was Hiller Zobel. A legal historian at Boston College Law School, Professor Zobel was researching early American history.

A decade earlier that was to have been my own career path. Finishing my B.A. at Brandeis University near Boston, I was invited to write a Senior Honors Thesis, and offered a rare research opportunity. Brandeis then had two of the country’s leading constitutional scholars, Leonard Levy and John Roche. Both were keenly interested in a particular federal criminal case from the 1790s, United States v. Smith. In the only readily accessible source published in the 1890s, the case was cited to 1792 and regarded as the first one to reflect the existence of a federal common law in the new republic.

Professor Levy, Brandeis University

Professors Levy and Roche were skeptical of the claim, and possible confirmation of their doubts lay close at hand. The case had been heard in the new federal district court sitting in Boston, and the case files were held in a US government storage facility in Dorchester, not far from Brandeis. The two scholars offered to serve as my joint thesis advisers. Their idea was that I write my thesis on the early jurisprudence of the New England federal circuit and research their particular concerns in the process. They even arranged to pay me for the work. I soon repaired to the New England Federal Records Center empowered with a letter from the clerk of the Federal District Court in Boston.

    Professor Roche and Senator Kennedy,     
 Brandeis University,1958

The archive was an old warehouse in a rundown part of town. The director set me up in a dank basement room with a small table, a chair, and a few book shelves – all illuminated by a single naked bulb hanging from the ceiling. He brought me the first of many boxes, each covered by a thick coat of dust. I dove in and journeyed back to 1790s New England.

The first case argued was a criminal assault under US jurisdiction. It involved two citizens of France, one a royalist, the other a republican. Walking along Charles Street toward the Boston Commons, the republican charged that the royalist, calling him a Jacobin, struck him about the head and shoulders with a heavy walking stick.

I was to spend many months in those spartan surroundings with a fascinating array of characters brought before the courts. An early revenue case involved Captain Saunders of the schooner Sally and his First Mate Hardy Ropes. Then there was Ichabod Darrow, the forger of federal certificates; Naïve Smith, the counterfeiter; the master of a bark charged with murder on the high seas; and mutineers on the brigantine Betsy, among others.

A brigantine

For those convicted, sentences varied – Smith got an hour in the pillory (a standard form of punishment at English Common Law), a heavy fine, and three years in prison, while the mutineers were hanged.

Capt Saunders was charged with a plain vanilla customs violation, but Darrow faced the death penalty, a draconian penalty of the day for forgery. However, he had the good fortune to have as his court-appointed attorney William Bradford – a distinguished member of the Supreme Court Bar as well as a scion of one of the first families of Plymouth Plantation. Bradford won for him an acquittal. James DeWolfe, a ship’s master, was also fortunate, but in a different way. Indicted in  absentia for murder for having beaten and thrown overboard while at sea “an unknown Negress,” the marshal of the court could not locate him, and DeWolfe was never brought to justice.

Although Naïve Smith received the second most severe punishment of the decade, he managed to escape the Suffolk County gaol and never completed his sentence. However, typical of the courtroom dramas before the New England federal bench, was the case of three mutineers charged not only with mutiny on the high seas, but murder as well. In a statement to the court replete with unlettered spelling, the captain of the Betsy, which had been enroute from Spain to Boston in December 1793, described the start of the mutiny:

          between the howers of fore and five o’clock in the
          morning … [while] I was asleep in bead, I was
          awakened from my sleep by a stab in my right
          breast by a knife … with witch Augustus Polaske,
          one of my salors stabd me.

The miscreants went on to murder a member of the crew before they were taken prisoner by a well-armed British privateer. The Betsy was claimed as a prize and the mutineers returned to Boston to stand trial.

Judge Lowell of the Federal District Court, Boston

Having found the original record of the Smith Case, I reported to my mentors that it had been miscited in the casebook of a hundred years later. In fact, the case had been decided in 1797, not in 1792. Thus, the case lost the distinction of being the first of a common law crime in the new republic, although one of the court’s rulings in the proceedings constituted the first “unequivocal statement of the existence of a federal common law” – a notable moment in US legal history.

My two advisers were exultant. Brandeis awarded me Honors in American Civilization, and several years later Professor Levy, who went on to win the Pulitzer Prize for History, gave me a generous footnote in the Preface to his Legacy of Suppression (1963).

Hiller Zobel was calling about my thesis that June afternoon in ’69. He had seen Levy’s footnote and – curiosity aroused – had driven over to the Brandeis Library and read my study, written nearly a decade earlier. Since it was based largely on original sources not heretofore published, Zobel was impressed. He asked if I planned to publish the work.

Although flattered by the idea, I explained I was then a specialist on Soviet jurisprudence, light years from the Early Republic. I added, however, that since he thought my undergraduate work publishable, I would be glad to give him co-authorship if he’d like to help me see it to press. He took the offer under advisement and we rang off amicably. Smiling to myself, I momentarily remembered with pleasure writing up those storied cases of the past. But immediate work beckoned, and I returned to grading.

How, the reader may ask, did a 21st century story of a severely injured baby, presumably by shaking, lead me back to thoughts of the early 1790s when the Chief Justice of the Supreme Court, John Jay, rode stagecoach to Boston to sit federal circuit court. Twenty-eight years after that spring afternoon in 1969, I had completely forgotten Professor Zobel’s call. In the meantime he had moved on from academe to the Massachusetts state bench. In 1997 a criminal proceeding, the Woodward Case, nearly as widely followed as the O. J. Simpson trial, came before Judge Zobel.

Louise Woodward, a young English girl working as a nanny in a suburb of Boston, was charged in the death of a baby in her care. The infant had suffered a fractured skull and fatal brain damage. A jury found Woodward guilty of second degree murder, but a week later on appeal, in a rare judicial move, Judge Zobel defied the jury – and absent rage or malice – reduced the charge to involuntary manslaughter and sentenced the young woman to time served. Given his distinctive name, I recognized it was the same Hiller Zobel who had rung me up that fateful day nearly three decades before.

About an hour after Professor Zobel’s call, the phone had rung again. I went back to the foyer to answer it. It was my father. Without preliminaries and in a voice strangled by emotion, he managed just two words, “Jeff’s gone.

Staggered, I put down the phone and could only think, there I sat grading student papers as my kid brother lay dying. A stranger’s phone call remembered as a dark tunnel back to the saddest time of my life.*

*See last paragraph,






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