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State v. Scopes:
I recently finished reading Summer for the Gods, a history of the famous Scopes "monkey" trial by Prof. Edward Larson that won the Pulitzer Prize for history in 1997 (and was recently recommended by Glenn Reynolds).

  Although it's a bit dry at times, on the whole the book was fascinating: it turns out that the history of the Scopes trial is very different from the myths. As a law professor, I was particularly interested in understanding the legal side of the case. I wondered how the judicial system ended up being a forum for debating such non-legal questions as whether evolution is consistent with the Bible. The answer turns out to be pretty interesting.

  While Larson doesn't focus on the legal side of the case in particular, here is the picture I was able to put together:

  1. In 1925, Tennessee passed a state law that made it a misdemeanor punishable by a fine of up to $500 "to teach any theory that denies the story of the Divine Creation of man as taught in the Bible, and to teach instead that man had transcended from a lower order of animal." No one expected any one to be prosecuted under this law; it was designed to be symbolic. But the nascent ACLU decided to try to challenge the law to establish the right of schools and teachers to control the school curriculum. The challenge wasn't supposed to be about religion or evolution; the issue was academic freedom.

  2. The ACLU placed advertisements in local Tennessee papers looking for someone who would challenge the law. Local citizens of Dayton, Tennessee saw the advertisment, and realized that a prosecution under the law in Dayton would help the local economy by making people come to Dayton for the trial. A local prosecutor agreed to bring a prosecution if they would find a local teacher who would go along. John Scopes agreed to be the defendant for the test case. Scopes wasn't actually a biology teacher, but he had taught a biology class as a substitute teacher, and had used a state-assigned textbook that taught evolution. The "prosecution" was designed to be a friendly affair. The ACLU would get its test case to bring before the appellate courts, and Dayton's economy would benefit from all the attention brought by the trial. Scopes would face a fine in theory, but it was understood that he wouldn't actually have to pay it.

  3. The announcement that a teacher was being prosecuted for teaching evolution drew a tremendous amount of press attention, and the attention of both former Presential candidate and popular speaker William Jennings Bryan and famed defense attorney Clarence Darrow. Darrow's involvement was not exactly welcome; he was an atheist, and saw the Scopes case as an opportunity to challenge religious fundamentalism in court. He ended up wrestling control of the case from the ACLU. Whereas the ACLU wanted the case to be about academic freedom, and primarily an issue for appeal, Darrow wanted to "put religion on trial."

  4. The defense strategy in the Scopes case was two-fold. First, the defense had a statutory claim designed to permit the defense to put on expert witnesses about religion and evolution. The statute was terribly written, and as written it wasn't clear if it banned the teaching of evolution or teaching that conflicted directly with the Bible. The government argued that the law only banned teaching evolution, and thus that Scopes had clearly violated it. The defense argued that the law prohibited teaching that conflicted with the Bible, which would have let the defense put on lots of expert witnesses to testify about modern scientific theories of evolution and whether they were consistent or inconsistent with the Bible. The constitutional case was largely based on state constitutional law; this was before most of the Bill of Rights had been incorporated and applied to the states. The federal constitutional case was based on several Lochner-esque Due Process arguments, including that controlling state educational curricula exceeded the police power.

  5. The trial judge ruled that as a matter of statutory interpretation, the government was right that the statute merely prohibited the teaching of evolution. No experts were needed, and Scopes was obviously guilty. Darrow argued to the trial judge that he needed to build an appellate record anyway, in case the Tennessee Supreme Court disagreed with the trial judge's interpretation of the statute. The trial judge went along, at least at first, and allowed Darrow to offer both affidavits and live testimony (without the jury present) on the question of whether evolution was inconsistent with the bible.

  6. The confrontation between Darrow and Bryan was Darrow's idea. Darrow was permitted to put on live witnesses who were experts in the Bible, and Darrow came up with the clever idea of calling William Jennings Bryan as a Bible expert. It was basically a stunt, as Bryan was acting as one of the prosecutors and could have simply declined. But Darrow accurately predicted that Bryan would be too proud to turn down the opportunity to testify as a Bible exoert. Darrow then proceeded to grill Bryan about the meaning of the Bible for two hours. Following Bryan's testimony, the trial judge changed his mind and decided that all of the evidence offered by Darrow for the appellate record was irrelevant. He had all of that evidence (including Bryan's testimony) stricken from the record.

  7. To make sure that Bryan wouldn't get the last word, Darrow waived his closing argument. Darrow basically agreed to the court that Scopes was guilty. The jury took 9 minutes to return a verdict of guilty; most of that time was time leaving and returning to the court room.

  8. The lead lawyer at that point for Scopes, a former law professor named Neal, missed the filing deadline needed to challenge trial errors. This included the judge's evidentiary ruling that no expert witnesses were needed, which had been based on the construction of the statute. This meant that the ACLU could only challenge the constitutionality of the statute, not the evidentiary rulings. Scopes appealed to the Tennessee Supreme Court, but the Court ruled that the failure to file a Bill of Exceptions to the trial in 30 days waived any appeal on those issues. See Scopes v. State, 152 Tenn. 424, 278 S.W. 57 (Tenn. 1925).

  9. When the challenge to the constitutionality of the statute was filed, the Tennessee Supreme Court upheld the statute but vacated the conviction in a divided opinion. See Scopes v. State, 154 Tenn. 105, 289 S.W. 363 (Tenn. 1927). The conviction was vacated on a somewhat forced technicality; the jury was supposed to set the amount of the fine, but had forgotten to do so, and the judge had simply picked an amount with the consent of the parties. The Tennessee Supreme Court ruled that this was improper, such that the conviction was invalid, and strongly hinted that the government should not bring the prosecution again. Here is the end of the Court's opinion:
  Since a jury alone can impose the penalty this act requires, and as a matter of course no different penalty can be inflicted, the trial judge exceeded his jurisdiction in levying this fine, and we are without power to correct his error. The judgment must accordingly be reversed. Upchurch v. State, 153 Tenn. 198, 281 S. W. 462.
  The court is informed that the plaintiff in error is no longer in the service of the state. We see nothing to be gained by prolonging the life of this bizarre case. On the contrary, we think the peace and dignity of the state, which all criminal prosecutions are brought to redress, will be the better conserved by the entry of a nolle prosequi herein. Such a course is suggested to the Attorney General.
  This resolution was pretty sketchy, but it served a purpose. The Tennessee Supreme Court upheld the popular statute, Scopes was off the hook, and the ACLU did not have anything to appeal to the United States Supreme Court. The government took the Court's advice and did not recharge Scopes. The legal case ended as a draw.

  Anyway, that's my understanding of the case from Larson's book. If any readers have a different understanding, I hope you'll consider leaving a comment in the comment section.
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