Bath's Monkey Trial
Rob Price

In 1925, the state of Tennessee prosecuted John Scopes, a public school teacher, for teaching the theory of evolution in one of his high school classes. The trial of Scopes, which featured a cross examination of prosecutor William Jennings Bryant by defense attorney Clarence Darrow, has gone down in history as one of the most dramatic trials in the history of American jurisprudence.

The trial in Bath last week of five individuals charged with occupying the local office of Congressman Randy Kuhl (technically each was charged with third-degree criminal trespass) perhaps was not as dramatic as the Scopes trial. But the parts of the trial I was able to watch involved some of the most interesting moments I have ever spent in a courtroom.

As in the Scopes trial, the basic facts of the case weren't in dispute. The five defendants admitted they had refused to leave Kuhl's office when the office manager wanted to lock up at the end of the day. However, they disputed the criminality of their actions, arguing they had trespassed only in the moral spirit of opposing the war in Iraq - an immoral war, they insisted on arguing before the six-member jury.

Scopes' own lawyers - Darrow principally - adopted a similar strategy. Scopes was guilty only of being a responsible teacher. As Darrow said, "We have the purpose of preventing bigots and ignoramuses from controlling the education of the United States."

Darrow, of course, was wrong from a legal perspective. Scopes' defense lawyers were not responsible for protecting the educational integrity of the Tennessee public school system. They did, however, seize the moment in an effort to underscore the foolishness of the Tennessee law that had outlawed the teaching of evolution.

Likewise, the Bath Five - not as snappy a title as The Chicago Seven - were legally inaccurate in thinking they could justify their occupation of Kuhl's office by arguing the war in Iraq is immoral. The fact was, they refused to leave the office when asked. And the jury of six was sensible in returning a verdict of guilty.

Basically, what the Bath Five did was commit an act of civil disobedience, for which they received a good deal of publicity. But as I understand civil disobedience, the person who commits such an act needs to be willing to accept the legal consequences. By definition, civil disobedience involves breaking the law as a matter of moral conscience. When you break the law, you pay the consequences.

The question for the Bath Five is, what will be the legal consequences of their conviction? Travis Barry, the assistant district attorney who handled the prosecution, indicated after the trial he would proposes some time in jail. Personally, I'd prefer something less drastic, something along the lines of a slap on the wrist. How about a $100 fine? Why should the taxpayers of Steuben County assume the considerable expense of jailing five people basically for demonstrating against a war many of us find immoral?

This brings me to a larger point. In 1925, the guilty verdict against John Scopes was eventually overturned on a technicality. The local prosecution sensibly decided to drop the charges, and the whole matter disappeared into history. A Tennessee taxpayer would have been tempted to ask why the charges were prosecuted in the first place.

Likewise, was there any way a full blown trial could have been avoided in the case of the Bath Five? Here is one scenario: The manager of Kuhl's office could have used a little creativity in handling the admittedly illegal occupation. He or she could have excused the rest of the office staff, called home for a sleeping bag and food and prepared themselves for a night at the office. Is this part of the job description of Kuhl's office manager? Certainly not. But life throws us curve balls sometimes, and you have to think on your feet.

And what about Congressman Kuhl? Put a different way, what would Amo Houghton have done? According to one of the demonstrators, who claimed to have occupied Houghton's office when Amo was a congressman, Houghton handled the situation by inviting the occupiers to his home for cookies and lemonade.

I'm not saying a similar invitation from Kuhl would have diffused the confrontation at his office. But there is a lot of space between calling the cops and providing lemonade and cookies in which to operate. A little creativity could have avoided a lot of trouble.