Small Towns and American Monkeys

“They prosecuted some poor sucker in these United States for teaching that man descended from the apes.”  

Bruce Springsteen summed up the Scopes Monkey Trial with this opening line of his 1988 song, Part Man, Part Monkey.  However, it turns out that The Boss employed a little literary license.  In the Scopes Monkey Trial, the State named John Thomas Scopes, a substitute science teacher and football coach, as the defendant in State of Tennessee v. John T. Scopes.  Instead of being a “poor sucker”, Scopes served as a willing player in a local scheme which also included the school board, business owners, and even the prosecutors.  This group orchestrated the showdown between Creationism and the Theory of Evolution which had been playing out on the national stage.

How did this national debate pitting Fundamentalists against Modernists culminate in a small courthouse in Dayton, Tennessee (population 1,800) in July 1925?  In the early 1920s, the Traditionalists resented the apparent changing values in society as embodied by the Modernists.  Rather than asking if society approved of their actions, the Modernists danced to Jazz, showed contempt for alcohol prohibition, and debated Freudian theories as part of their intellectual experimentation.  The response by Traditionalists grew with a wave of revivalism rooted in the Deep South.

Embodying everything wrong for the Traditionalists and everything right for the Modernists was a 1914 high school textbook authored by George Hunter.  Many school systems across the country used this textbook, “Civic Biology, Presented in Problems”.  While the textbook never mentions the words “evolution” or “Theory of Evolution”, Traditionalists deemed one chapter in the book to teach Evolution while not accepting Creationism.  “Civic Biology” unintentionally became the centerpiece in the crusade to ban teaching the Theory of Evolution.

Enter Tennessee farmer John Washington Butler.  Butler, head of the World Christian Fundamentals Association, lobbied the Tennessee Legislature to pass anti-evolution laws.  Butler claimed he heard that school children were coming home to tell their parents that the Bible was nonsense.  In March 1925, Tennessee passed the Butler Act making it unlawful “to teach any theory that denies the story of divine creation as taught by the Bible and to teach instead that man descended from a lower order of animals.”  Apparently, separation of church and state never made an appearance in this legislative debate.  Tennessee joined about a dozen other states enacting anti-evolution laws.  Despite the Act, Tennessee high schools continued to use Hunter’s Civic Biology textbook.

Response to the Butler Act arose swiftly with the American Civil Liberties Union offering to defend anyone accused of teaching Darwin’s theories.  On April 5, 1925, Dayton, Tennessee businessman George Rappleyea arranged a meeting with the county superintendent of schools and local attorney Sue Hicks at Robinson’s Drug Store in Dayton.  Rappleyea opposed the Butler Act and knew that Hicks and his fellow attorney brother were in favor of the Butler Act.  The school superintendent was caught in the middle seeking to educate students without breaking the law.

According to the owner-druggist, Rappleyea argued not merely in favor of or in opposition to the Butler Act, but also observed that Dayton, with its dwindling population and loss of businesses, could use much needed publicity a trial on the Butler Act could generate.  Rappleyea convinced the group to set up a claim under the Butler Act with: “If you win, [the Butler Act] will be enforced.  If I win, the law will be repealed.  We’re game, aren’t we?”

With agreement, or conspiracy, achieved, the group reached out for John Scopes regarding his teachings in high school science classes.  On May 25, 1925,  based on testimony of three students — three students Scopes conceded he coached in preparation —  the Grand Jury indicted John Thomas Scopes for violation of the Butler Act for teaching the Theory of Evolution.  Judge John T. Raulston immediately set trial for July 1925 and the stage was set for the Scopes Monkey Trial.

Every stage needs great actors.  Brothers Herbert and Sue Hicks initially served as prosecutors.  The Hicks brothers offered the role of Special Prosecutor to three time U.S. Presidential candidate William Jennings Bryan.  Despite not having tried a case in over thirty years, Bryan, a Fundamentalist and populist, accepted the position.  The press dubbed Bryan the “Fundamentalist Pope”.  Recognizing the high drama quickly unfolding, the defense reached out to a reluctant Clarence Darrow to represent Scopes.  Darrow, an agnostic, eventually agreed.

As the trial began in July 1925, competing banners decorated the businesses and streets of Dayton, locals sold lemonade and snacks to the crowd, and two chimpanzees performed in front of the courthouse with one dressed up in a suit and hat.  Thousands of people flocked to tiny Dayton with grand support for both sides in the case.  Reporters from across the country came to Dayton with a Chicago radio station seeking to broadcast the trial live.  Before Judge Raulston could call the case, the town of Dayton already won with the influx of the visitors and their pocketbooks.

Over objection from the defense, Judge Raulston opened the highly religious-charged case with a prayer (and commenced each day following with a prayer).  Before opening statements, the defense moved to quash the indictment on state and federal constitutional grounds.  In denying the motions, Judge Raulston “clarified” that the trial would have nothing to do with the constitutionality of the Butler Act.  Further, determining whether Creationism or Evolutionism was correct would be irrelevant.  The sole issue for trial was whether John Scopes violated the Butler Act in his teachings.  The Butler Act itself would not be placed on trial.

Really?  Under the most basic concepts of due process in the United States, a defendant would not be allowed to challenge whether the subject law passed constitutional muster?  With this ruling, Judge Raulston knowingly gutted the entire defense.

So, with the Butler Act itself off-limits in terms of any legal challenges, the Scopes Monkey Trial would proceed without a hint of religion or discussion of evolution, right?  William Jennings Bryan promptly set the tone with his opening statement, bellowing that “if evolution wins, Christianity goes.”  Clarence Darrow countered: “Scopes isn’t on trial; civilization is on trial.”  If Scopes were to be convicted, it would “open the doors for a reign of bigotry equal to anything in the Middle Ages.”  It appears that the judge forgot about his ruling from mere minutes before.

The prosecution immediately moved for the court to take judicial notice of the Book of Genesis from the Holy Bible —  King James Version.  The court granted the motion.

Please note:  Taking judicial notice of anything is an extreme action.  When it is done, parties are precluded from challenging the “fact” at issue.  A court may take judicial notice of a fact that is not the subject of reasonable dispute either because a) the fact is so generally known; or b) the fact is readily determined from sources whose accuracy cannot reasonably be questioned.  When charging a jury, the judge will instruct the jury to accept the noticed fact as conclusive.

Before the first witness was ever called, Judge Raulston deemed the entire Book of Genesis to be judicially noticed.  The Biblical story of creation was deemed a fact beyond challenge in this supposed non-religious trial.  Thereafter, the prosecution’s case was rather mundane with presentation of the school superintendent and seven students each of whom testified that Scopes taught the chapter on Evolution from the Civic Biology textbook.

The defense called Dr. Maynard Metcalf, a zoologist, as its first witness.  Dr. Metcalf, an expert on biology, would explain the Theory of Evolution.  Out of the presence of the jury, Judge Raulston allowed Dr. Metcalf to testify before deciding whether the jury should hear his testimony.  The cross-examination of Dr. Metcalf by William Jennings Bryan was more a mocking speech about Evolution than an effort to question the witness.  Bryan went so far as to note that Dr. Metcalf believed man descended “not from American monkeys, but Old World monkeys.”  Oh, great.  Let’s add not so subtle Nationalism and racism to this dumpster fire of a trial.

Judge Raulston ruled the testimony of Dr. Metcalf inadmissible.  The defense presented excerpts from expert reports from five additional scientific experts and proferred the topics on which each expert would opine.  The court ruled that each expert would be inadmissible.  Asked if he had any further witnesses, Clarence Darrow told the court he had but one witness left to call:  William Jennings Bryan.

The defense called William Jennings Bryan as an expert on the Holy Bible.  Over advice from his co-counsel, Bryan accepted the request to testify.  He stated that he had studied the Bible for over fifty years and, indeed, considered himself expert on the topic.  By all accounts, what followed was Clarence Darrow eviscerating William Jennings Bryan on the stand.

Darrow asked a series of questions regarding the literal interpretation of Biblical stories and whether each such account constituted science to be taught in schools.  Was Jonah actually swallowed by a whale and survived?  Did Joshua make the sun stand still?  Was everything under the sun actually created in six days (remember that the seventh day was for rest)?  The press compared Bryan’s performance on the stand akin to a “pitiable, punch drunk warrior.”

Recognizing that Bryan failed to uphold well under Darrow’s examination, co-counsel for the prosecution objected with a demand to know the legal purpose of the defense questions.  Still on the stand, William Jennings Bryan, and not the judge, retorted that the purpose of the defense was “to cast ridicule on everybody who believes in the Bible!”  With equal force, Clarence Darrow responded: “We have the purpose of preventing bigots and ignoramuses from controlling the education of the United States!”

Judge Raulston held the testimony of William Jennings Bryan inadmissible and ordered it stricken from the record.  At that point, with no witnesses and no defense to the fact that Scopes taught from the textbook at issue, Clarence Darrow asked the judge to instruct the jury to return a verdict against his own client.  Procedurally, under Tennessee law at that time, this step precluded William Jennings Bryan from making any closing argument to the jury (and the hordes of reporters).

In 8 minutes, the jury found John Thomas Scopes guilty of violating the Butler Act.  The court assessed a $100.00 fine.  Two years later, the Tennessee Supreme Court overturned the verdict on a technicality and did not reach the constitutional issues.  The Tennessee Supreme Court refused to remand the case to the trial court noting: “Nothing is to be gained by prolonging the life of this bizarre case.”  The United States Supreme Court did not hold anti-evolution laws unconstitutional until 1968.

Five days after conclusion of the Scopes Monkey Trial, William Jennings Bryan lied down for a nap and never woke up.  

Returning to Bruce Springsteen’s song, Part Man, Part Monkey, The Boss included the line: “They could have settled that case without a fuss or a fight.”  Sorry Bruce.  Hard disagreement on that one for the Scopes Monkey Trial.  First, the trial arose from a conspiracy to push emotionally charged issues as well as economics of a small town.  Settlement would defeat the entire purpose.  The Scopes Monkey Trial had very little to do with the law or the actions of John Scopes.  The litigants were more in the court of public opinion than in a county courthouse.  

I admit that I have never been requested to serve as mediator in any case with such public scrutiny and attention as the Scopes Monkey Trial.  Settlement or resolution remained the antithesis of all stakeholders, including, apparently, the judge.

However, at times, I have mediated cases where participants claim they will not settle under any circumstances.  They want their case to be tried in a public court.  They want their story to be heard by the masses.  They want the world to know just how terribly the opposing party acted.  They declare that a victory, loss or compensation at trial is irrelevant as long as they can get out the word about the scoundrels on the other side.

We typically settle those cases.  Sometimes, those positions are presented as leverage or bargaining chips to gauge concern in an opponent.  Sometimes, those positions are more sincere, but the mediation participant learns through the mediation process that trials are lengthy, expensive and most importantly, unpredictable.  As the light of day may possibly never be shed on their story, they see the benefits of resolution through mediation.

And, sometimes, the mediation participant entrenched in the “we must go to trial” position eventually yields, but only after the mediator and other stakeholders listen to and hear their story, their pain, and their concerns.  The cathartic nature of mediation releases the deeply held frustrations and allows the party to move forward.  Someone else heard them and respected their story.

Lawyers representing clients in mediation should appreciate the dynamics at play.  The client rarely has an opportunity to be directly heard in the litigation process.  Necessarily, and correctly so, all communications are through counsel.  Even in a deposition, the ability of a client to present their story is critically limited by questions of the opposing counsel.  At trial, there may be legal or strategic reasons to carefully craft any presentation by the client.  That leaves mediation and settlement conferences as potential outlets for the client.  Use the process for the benefit of the client.

Mediation may not resolve grave societal disputes such as in those at issue in the Scopes Monkey Trial.  Good thing America has moved on and we no longer have any grand societal issues dividing us.  Or, do we need to return to Dayton for more trials?

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