Treason Trial of Aaron Burr (4th Essay)
Bill Long 10/18/07
Conclusion--Acquittal, Sort of
In order to understand the jury's semi-ambiguous verdict, handed down September 1, 1807, which read, in full:
"We of the jury say that Aaron Burr is not proved to be guilty under this indictment [my comment: are they suggesting that another indictment might help?] by any evidence submitted to us. We therefore find him to be not guilty..."
we must go back and review the flow of events from March 30, 1807, when Burr first appeared before Marshall and District Court Judge Cyrus Griffin (clearly the junior partner in all of this) and the date of the jury's decision five months later. Five things are important to notice, even though everything in these five months really came down to Justice Marshall's definition of "levying war" in Art III, Sec. 3 of the US Constitution in his August 30 opinion. Even as I try to put everything under these five "heads," however, I am aware of how cursory my survey is. There is no discussion here, for example, of the "Cipher Letter" or of the precise language of the indictment, as well as many other subjects. What follows, here, is a summary of the most important features of that trial.
I. Marshall Throws Out the Treason Charge
In the first hearing on March 30, the Government argued that Burr should be bound over for trial on two charges: treason, defined constitutionally (Art. III, Sec. 3) and violation of the Neutrality Act of 1794 (called a "high misdemeanor" at the time). Because the prosecution only was able to get a few affidavits at such short notice, Marshall decided on April 1 that there wasn't probable cause to charge Burr with treason. That didn't end it for him; subsequent evidence introduced to the grand jury might convince the grand jury to indict him for treason.
Thomas Jefferson, as could be expected, hit the ceiling when he heard Marshall's decision. Naturally, he took it as a direct slap in the face, which he was coming to expect from his strong-willed and strong-minded distant cousin. Even though no one was sure exactly what Burr's treason consisted in (was it warring against the United States? Desiring to separate the Western states/territories from the East? Simply attacking Spanish Florida or Texas?), the supporters of Jefferson and the prosecution were convinced that Marshall had erred badly.
II. The Grand Jury Indictment
The grand jury, which is the indicting body in American criminal law, went into session on April 22. It receives ex parte testimony (i.e., not subject to cross-examination) in deciding whether there is enough evidence to bring an indictment. While they were in session, Burr and his attorneys were arguing with Marshall and opposing counsel regarding letters that President Jefferson may have written to the Army and Navy to intercept Burr as well as other communications which the President made to try to secure Burr's conviction. Burr and his counsel wanted Jefferson to be deposed; they wanted the Court to issue a subpoena duces tecum (i.e., bring your documents and get here!) to the President. Jefferson responded, through the prosecution lawyers, with the first defense of executive privilege we have on record. After a lot of to-ing and fro-ing Marshall decided that Jefferson had to give up papers--though Jefferson ignored Marshall's decision.
The bigger action, however, was in the secret deliberations of the grand jury. Because they had more time to consider charges than Marshall had at the end of March, they could carefully and slowly call and listen to witnesses. The star witness in the case showed up on about June 15--General James Wilkinson. Though we will never know precisely what he said to the grand jury, they considered his testimony, along with others, to suffice to indict Burr for treason, as well as a violation of the 1794 Neutrality Act, on June 24. Here is a copy of the indictments. The former Vice-President of the USA would be bound over for trial on the most serious charge with which a person could be charged.
III. The Trial of Burr
His trial began on Monday, August 3, 1807. Voir dire (i.e., jury selection) lasted a full two weeks, and then the trial lasted but four days before Burr himself made a motion which stopped the proceedings. Note the "flow" of such a high-stakes trial. Most of the time is spent picking the jury. The reason is obvious; the defense has to try to eliminate all from the jury who expressed or even had a prejudice about their client. But issues get rather technical here, and I won't go into the nature of the challenges or the decisions made by Marshall in certain cases.
Suffice it to say that Marshall made a series of rulings during the testimony of the witnesses which required the prosecution to show that Burr had committed, or had ordered the commission, of the act of treason within the district now trying Burr. The only place where Burr's actions touched the district was on Blennerhassett's Island in the Ohio River just off the Virginia (present-day West Virginia) shore. Thus, all attention was riveted on the events of the nights of Dec. 9-10, 1806, when the Ohio militia raided his estate after first capturing 11 boats ordered by Burr but still sitting undelivered in nearby Marietta.
The legal question was simply this: did the acts of the Burr supporters on Blennerhassett Island those nights (Burr was long gone) constitute "levying war" by Burr against the United States? When Burr moved to have the Court make a legal determination of what "levying war" was on August 20, everyone knew that the important point had been reached. Depending on how broadly Marshall defined "levying war," the jury would simply return a verdict of guilty or not-guilty.
The final essay explores this issue.
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