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Supreme Court Justice Puts Hamlet on Trial

March 29, 2007 at 5:45 PM EDT
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COURTROOM ANNOUNCER: In the matter of the Crown v. Prince Hamlet…

JEFFREY BROWN: It was a trial 400 years in the making. The courtroom was actually a stage at Washington’s Kennedy Center. The defendant was a fictional character: Hamlet, prince of Denmark, he of “to be or not to be.”

The judge was real, but Anthony Kennedy usually hears cases as a justice on the Supreme Court. Justice Kennedy first had the idea for “The Trial of Hamlet” some 13 years ago.

JUSTICE ANTHONY KENNEDY, U.S. Supreme Court: Prosecution here; defense here.

JEFFREY BROWN: Recently, he approached Michael Kahn, head of the Shakespeare Theater here, about staging it as part of a six-month celebration of the bard now underway in Washington, using real-life lawyers, expert witnesses, and a jury of adults, college and high school students.

At the Supreme Court a few hours before the event, I had a chance to ask Justice Kennedy: Why try Hamlet?

JUSTICE ANTHONY KENNEDY: It seemed to be, number one, an excellent way to get young people interested in Shakespeare and to understand the value of our literary heritage.

Then, too, there are some similarities between the law and literature. We in the law seek to find order in a disordered reality; we seek to find rationality in a world that seems chaotic. And the artist does the same thing, and Hamlet’s trying to do the same thing. So there’s a parallel.

Hamlet's madness is central issue

Michael Kahn
The Shakespeare Theater Company
This issue of whether Hamlet is mad or not mad is the central issue of the play. It's bedeviled every director, every actor who's ever done the play. It's actually the biggest decision you have to make.

JEFFREY BROWN: A quick recap of the rotten state of Denmark, with Laurence Olivier's help.

Hamlet's father, the king, has just died. Hamlet returns from the university to find that his mother has quickly married his uncle, who is now king. The ghost of Hamlet's father appears to him, tells him that his uncle had actually murdered his father.

And then -- well, the rest is the most famous ambivalence in the history of literature. As Hamlet wonders, Should I seek revenge and kill my uncle? Should I forego revenge and kill myself? Do I believe that ghost, whoever he was?

In the end, Hamlet kills Polonius, his father's and now his uncle's chief adviser, and most everyone involved ends up dead, Hamlet included. This is a tragedy, after all.

The question lurking over everything: Is Hamlet mad as a hatter or, as Polonius says at one point, "Is there reason in it?" That is, is he only faking madness?

Director Michael Kahn.

MICHAEL KAHN, The Shakespeare Theatre Company: This issue of whether Hamlet is mad or not mad is the central issue of the play. It's bedeviled every director, every actor who's ever done the play. It's actually the biggest decision you have to make.

And if you decide he's mad, then, of course, that's why he does everything. If you decide he's not mad, then you ask, "Why is he feigning madness?"

And so every interpretation of the play, really every moment of the play with Hamlet in it, is based upon what this group of people are going to be debating.

Bringing Hamlet back to life

Justice Anthony Kennedy
U.S. Supreme Court
It's one of the most -- still one of the most difficult areas of the law for juries to decide, when an accused should or should not stand trial when his or her mental condition is an issue.

JEFFREY BROWN: At the staged "Trial of Hamlet," the very specific legal issue was whether Hamlet was mentally competent when he killed Polonius and could be held criminally responsible.

That very kind of legal issue is still with us today.

JUSTICE ANTHONY KENNEDY: It happens all the time. And it's one of the most -- still one of the most difficult areas of the law for juries to decide, when an accused should or should not stand trial when his or her mental condition is an issue.

JEFFREY BROWN: Hamlet, of course, in the play dies.

JUSTICE ANTHONY KENNEDY: Yes.

JEFFREY BROWN: You have brought him back to life.

JUSTICE ANTHONY KENNEDY: Yes.

JEFFREY BROWN: How did you do that?

JUSTICE ANTHONY KENNEDY: Well, I was originally going to rewrite the last scene of the play...

JEFFREY BROWN: You were going to rewrite the play?

JUSTICE ANTHONY KENNEDY: Yes, but I thought better...

JEFFREY BROWN: You're a Supreme Court justice, but you're not Shakespeare.

JUSTICE ANTHONY KENNEDY: Yes, but I thought that would be slightly presumptuous.

JEFFREY BROWN: The justice, however, wasn't above committing a journalistic sin. He wrote a fake news story in which Hamlet survives the poisoning that was originally thought to have killed him. And with that, the trial could go on.

Using Hamlet's words in either case

Abbe Lowell
Attorney
We are, in fact, using the same words, which is both the genius of Shakespeare and the genius of the dilemma of Hamlet.

CATHERINE CRIER, Court TV Anchor: What would you call a person who exhibits the following behaviors: delusions, hallucinations that command murderous conduct?

JEFFREY BROWN: Former Texas state judge and Court TV anchor Catherine Crier opened the defense case.

CATHERINE CRIER: You would call that person mentally ill.

JEFFREY BROWN: Crier and co-counsel, Washington trial lawyer Abbe Lowell, used Hamlet's own words and actions to build their case.

ABBE LOWELL, Attorney: But he does think himself on a mission from God, doesn't he?

JEFFREY BROWN: But then so did the prosecution, attorneys Cristina Arguedas and Miles Ehrlich.

MILES EHRLICH, Attorney: He says to his mother, "For this same lord, I do repent. But heaven hath pleased it so to punish me with this, and this with me."

What's unique about this is that, at least in my work as a lawyer, so much of it comes down to analyzing, working with language. Usually, we don't have such a rich source to draw from. Depositions and even trial transcripts, as you can imagine, aren't always that exciting.

JEFFREY BROWN: It's nothing like Shakespeare, huh?

MILES EHRLICH: Not Shakespeare.

JEFFREY BROWN: You're reading the same words.

ABBE LOWELL: We are, in fact, using the same words, which is both the genius of Shakespeare and the genius of the dilemma of Hamlet. I mean, the same words that I am sure that the expert that the prosecution is going to call is going to be the words that our expert calls, and therein lies both the challenge and the adventure here.

JEFFREY LIEBERMAN, Columbia University: I viewed it, from a clinical perspective, in the cold light of everyday reality, albeit of the 17th century.

(LAUGHTER)

JEFFREY BROWN: The expert witness for the defense, Columbia University psychiatry professor Jeffrey Lieberman, explained that Hamlet's words and actions, including that extreme ambivalence, proved this was one deeply and clinically depressed prince.

JEFFREY LIEBERMAN: It is called schizoaffective disorder, bipolar type.

MILES EHRLICH: Which of those lines do you believe to be the product of a psychotic mind?

JEFFREY LIEBERMAN: The lines that he says are a description of his ambivalence, which is that "to be or not to be."

We all have degrees of ambivalence. Justice Kennedy described the legal profession as having a particular proclivity to this, but it's something we can overcome. This is something we can overcome.

JEFFREY BROWN: The prosecution's expert, Harvard professor Alan Stone, was just as sure that Hamlet was faking his madness and refused to be shaken by the cross-examination from defense attorney Lowell.

ABBE LOWELL: In fact, you've testified about delusions. So isn't that one of the symptoms?

ALAN STONE, Harvard Professor: That is one of the symptoms that Hamlet doesn't have.

Understanding the legal process

Justice Anthony Kennedy
U.S. Supreme Court
If the jury is divided, the enigma remains in us and with us. And I hope what the audience will take away is that there's richness in our literature, there's a richness in our heritage, there's a richness in our law.

JEFFREY BROWN: The two sides summed up their cases in closing arguments. The jury was sent to deliberate, only to return, perhaps much like the prince himself, of two minds.

JUSTICE ANTHONY KENNEDY: "We, the members of the jury, in the above entitled cause, are not unanimous."

JEFFREY BROWN: Six for sanity, six for madness.

JUSTICE ANTHONY KENNEDY: ... another 400 years.

JEFFREY BROWN: Earlier that evening, I had asked Justice Kennedy how staging something like this helps us understand the legal process.

JUSTICE ANTHONY KENNEDY: It shows you how difficult these questions are. If you can't make up your mind about Hamlet, and he's a fictional person, what about a real person?

If the jury is divided, the enigma remains in us and with us. And I hope what the audience will take away is that there's richness in our literature, there's a richness in our heritage, there's a richness in our law.

Humans are fallible. We tend to err. But law and literature both show us ways in which we can progress and mend our ways.

The verdict of the jury leaves us no choice but to remand you to the pages of our literary heritage.

JEFFREY BROWN: And that, in the end, seems the most appropriate sentence of all.