Law and Medicine in Revolutionary America by Myrsiades Linda;

Law and Medicine in Revolutionary America by Myrsiades Linda;

Author:Myrsiades, Linda; [Myrsiades, Linda]
Language: eng
Format: epub
Publisher: Lehigh University Press
Published: 2012-02-10T16:00:00+00:00


Sangrado v. The Cloven Foot: The Trial

Rush v. Cobbett was called for trial on December 13, 1799, before the Pennsylvania Supreme Court, with Justice Edward Shippen leading a three-judge panel that included himself, Jasper Yeates, and Thomas Smith. Six lawyers alternately argued the two sides of the case. Plaintiff’s counsel opened (Joseph Hopkinson) and closed (Jared Ingersol); the defense argued in the second position (William Rawle) and the third position (Robert Goodloe Harper); the plaintiff (Moses Levy) returned as the fourth speaker and the defense (Edward Tilghman) as the fifth speaker in order. This mixed order of presentation reflected an earlier form of court proceeding, the altercation trial,1 in which the efforts of the judge, the victim, and the accused were poorly separated, indeed overlapped. As John H. Langbein puts it, the altercation trial was a form of spontaneous bickering—reminiscent, for our purposes, of the chaos in the supreme court that Cobbett reported in the Yrujo case—“a formless or wandering quality that resembles ordinary discourse, a conversation of sorts, lacking [a] crisp division into prosecution and defense cases.”2 Vestiges of an altercation trial were joined to the “combat effect” of a developing adversarial system which dominated the proceedings. Rivalry among counsel to gain the ear of the jury and partisanship in both the prosecution and defense cases thus competed to distort the facts and undermine witnesses to win an argument.3 In such a scenario, even if some considered that the altercation format focused more fully on the truth of an accusation than the newer adversarial system, a truth defense based on the facts of the case would have been difficult to mount and even more difficult to argue successfully, and the jury’s mettle would have been tested in trying to separate defense and prosecution arguments.

The trial opened a full two years and two months after charges were filed, a delay that Cobbett attributed to McKean’s continuing interference in the case and his desire to stack the jury. Cobbett contended that “the base and corrupt Judge contrived the means of postponing the cause seven times . . . till, at last, he found one [jury] from which he was sure of a verdict.”4 Another construction would put Rush’s counsel at the center of the delay, for the plaintiff had some hope of using a struck jury to ensure a favorable hearing.5 It was in the interest of Rush’s team to cooperate in the delays in the hope that postponing the trial would have the added benefit of keeping Cobbett on good behavior, a hope that was soon dashed as Cobbett continued to publish attacks against Rush and McKean. It was not altogether clear that a struck jury might not have helped Cobbett too. Indeed, in retrospect in March 1800 he suggested that “The necessary steps were also taken to insure a special jury, who, it was thought by my lawyers and my friends, would be a sufficient protection against the intrigues of the plaintiff and the tyranny of the Court.”6 Each


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