Evidence and the Archive

Ethics, Aesthetics and Emotion

Katherine Biber, Trish Luker

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781315455556
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This collection explores the stakes, risks and opportunities invoked in opening and exploring law's archive and re-examining law's evidence. It draws together work exploring how evidence is used or mis-used during the legal process, and re-used after the law's work has concluded by engaging with ethical, aesthetic or emotional dimensions of using law's evidence. Within socio-legal discourse, the move towards 'open justice' has emerged concurrently with a much broader cultural sensibility, one that has been called the "archival turn" (Ann Laura Stoler), the "archival impulse" (Hal Foster) and "archive fever" (Jacques Derrida). Whilst these terms do not describe exactly the same phenomena, they collectively acknowledge the process by which we create a fetish of the stored document. The archive facilitates our material confrontation with history, historicity, order, linearity, time and bureaucracy. For lawyers, artists, journalists, publishers, curators and scholars, the document in the archive has the attributes of authenticity, contemporaneity, and the unique tangibility of a real moment captured in material form. These attributes form the basis for the strict interpretive limits imposed by the rules of evidence and procedure. These rules do not contain the other attributes of the archival document, those that make it irresistible as the basis for creative work: beauty, violence, surprise, shame, volume, and the promise that it contains a tantalising secret. This book was previously published as a special issue of Australian Feminist Law Journal.

AFFECTING EVIDENCE: EDITH THOMPSON’S EPISTOLARY ARCHIVE

Rosanne Kennedy

Abstract. In December 1922, London was enthralled by a sensational murder trial at the Old Bailey. The 28-year-old woman at the centre of the scandal, Edith Thompson, came to notoriety when her lover, 20-year-old Freddy Bywaters, a merchant seaman, murdered her husband, Percy Thompson, when the couple was returning home from the theatre late one evening. When 62 of her letters were found on his ship, he confessed, but insisted that she had no part in the crime. In her letters, she claimed that she put ‘something into Percy’s tea’ and put ‘big pieces’ of light bulb in his porridge, and there were ambiguous passages about ‘taking risks’ and their future together. Thompson’s letters were entered into the trial as evidence of incitement and conspiracy. Their melodramatic structure and rhetoric made it difficult to extract stable meaning. It was, however, precisely the melodramatic attributes and intimate details of her letters — with their expressions of psychic pain, longing, desire, frustration, boredom, and the material details of private lives — that made them irresistible to the public and the media. In the first part of this paper, I examine the discourses that were used to interpret the letters in the trial, and render their author culturally intelligible. In the second part, I analyse the affective mediation of the case — including the trial, the verdict, the executions, and the controversy about the death penalty — in the media, and the role of the media in producing public feelings. I argue that the concept of melodrama, understood not as a genre but as a mode which names heightened emotion, acted like a contagion, spreading affect from the letters to the courtroom and the media. What conclusions can we draw — about law and affect, evidence and intimacy, public archives and private lives — from this case that are relevant for feminist critical legal scholarship today?

Ordinary affects are public feelings that begin and end in broad circulation, but they’re also the stuff that seemingly intimate lives are made of.

Kathleen Stewart, Ordinary Affects, 2007

1.0 INTRODUCTION

In December 1922, London was enthralled by a sensational murder trial at the Old Bailey. The 28-year-old woman at the centre of the scandal, Edith Thompson, was widely portrayed in the media as a ‘dangerous fantasist’ who was so addicted to melodrama that she would ‘risk everything’ to live out her dreams.¹ Thompson came to notoriety when her lover, 20-year-old Freddy Bywaters, a merchant seaman who was frequently away at sea, murdered her husband, Percy, when the couple were returning home from the theatre late one evening. When 62 of her letters were found on his ship, he confessed, but insisted that she had no part in the crime. In her letters, she complained about her husband and said she refused to ‘giv[e] him what he wanted’.² She claimed that she put ‘something into Percy’s tea’ and put ‘big pieces’ of light bulb in his porridge, and there were ambiguous passages about ‘taking risks’ and their future together.³ She discussed popular romance novels, and enclosed newspaper clippings, some of which were about poisoning cases and mysterious deaths. On this slender evidence, the Crown charged the pair with murder, alleging that Thompson ‘aided and abetted’ the crime, either through incitement or conspiracy.⁴ The letters were enough to implicate her, but they contained many obscure passages and were open to a range of interpretations. They would prove, over time, to be highly controversial as evidence but aesthetically productive, providing the basis for novels, plays, and films. At the end of a five-day trial, the jury returned a guilty verdict, and Bywaters and Thompson were sentenced to death. Despite an extensive newspaper petition to reprieve Bywaters, and the public’s qualms about executing a woman, the couple were hanged less than a month after the verdict. Edith Thompson was the first woman to be executed in Britain in fifteen years, shocking a public that mistakenly believed that the hanging of women was a thing of the past, unfitting in a modern society.

The melodramatic style and intimate details of Thompson’s letters — with their expressions of psychic pain, longing, desire, and the titillating details of private lives — tantalised the public and the media. Even before the trial, Reynold’s Illustrated News inflamed public interest in the case, claiming that ‘it is doubtful if more astounding letters have ever been read in a court of summary jurisdiction … deep, mystifying, wild and passionate, these missives … formed perhaps the most remarkable contribution to a mystery murder in the annals of crime’.⁵ During the trial all of the London papers — even the stalwart Times — published daily reports, with headlines announcing ‘Mrs. Thompson’s Passionate Letters’; ‘Yearning Cries for Love and Freedom’; and ‘The Disclosure of a Pact’.⁶ Newspapers reported on the crowds, including ‘fashionably dressed women [who] fight for places’ in the courtroom.⁷ At the end of the case for the prosecution, 29 of Thompson’s letters and three of Bywaters’s were read in court, and lengthy extracts were published in the newspapers. Shortly after Thompson was hanged, the Sunday Express published, over successive weeks, 33 of her letters that had not been entered into evidence, together with a ‘new interpretation’ of the case by newspaper editor James Douglas, a popular criminologist and leading commentator on the trial.⁸ Inviting the pleasures of gossip, speculation, voyeurism, and judgment, the public circulation of Thompson’s letters was vital to producing the emotional intensity and affect that surrounded the case. In 1923, the trial record, together with an appendix containing all of Thompson’s and Bywaters’s extant letters, was published in the Notable British Trials series — thereby cementing the cultural notoriety of the trial, and making the letters readily available for posterity. In this article, I take this text — The Trial of Frederick Bywaters and Edith Thompson — as the basis for my analysis of Thompson’s letters and the trial.⁹

The narrative structure and iconography of the Anglo-American jury trial — with its competing theories, examination of the evidence, closing speeches, and climatic verdict — has, as Carol Clover argues, been ‘fantastically generative’ in popular culture.¹⁰ In addition, the Bywaters and Thompson trial has produced a rare thing: an intimate epistolary archive by a lower-middle-class woman, in a distinctive personal voice. This archive, together with the case as a whole, has provided the basis for numerous fictional retellings and stagings, both sympathetic and hostile to Thompson. Early novels include EM Delafield’s Messalina of the Suburbs (1923) and Dorothy Sayers The Documents in the Case (1935).¹¹ Fryn Tennyson Jesse’s A Pin to See the Peepshow (1934) remains the classic novel of the case.¹² More recently, Thompson’s letters have inspired Jill Dawson’s novel, Fred and Edie (2000), and PD James features the case in The Murder Room (2004).¹³

The case has also generated a significant body of popular, legal, and scholarly commentary and analysis.¹⁴ Much of it has focused on the meaning of the letters and establishing the ‘truth’ about Thompson’s guilt; while many regard the verdict against her as a miscarriage of justice, opinion is divided. William Twining has used the case to demonstrate the value of a microscopic analysis of evidence — ‘modified Wigmorean analysis’ — which he compares to the historical biography approach taken by René Weis, Thompson’s biographer.¹⁵ Recent work by cultural historians has produced fruitful new approaches. Drawing on a range of newspaper archives, Lucy Bland considers the case, and particularly the figure of Edith Thompson, in the fraught terrain of gendered and sexual mores in post-war Britain. She compellingly argues that Thompson’s sexual agency was threatening to social norms, and that she represented the ‘danger of the postwar sexual modern woman’.¹⁶ In a timely and innovative analysis, Matt Houlbrook draws on Thompson’s letters to explore her ‘self-fashioning’ as it develops in response to her engagement with popular fiction, as a means of reconfiguring debates about readers, escapism, and popular culture in the interwar period.¹⁷ While my analysis builds on this rich body of work, my aim is to re-examine the evidentiary and affective dimensions of Thompson’s letters in the context of the ‘affective turn’ and the legitimation of emotion as a field of critical inquiry in law and the humanities.¹⁸ The trial and its media representation invite such analysis.

2.0 AFFECTING EVIDENCE

In criminal trials, the jury is meant to ‘find facts’ based on the evidence, and the judge is meant to interpret the law. While the fact/law distinction is widely recognised, Paul Gewirtz argues that criminal trials are governed by an unarticulated inside/outside binary: ‘Law is all about human life, yet struggles to keep life at bay.’¹⁹ The process of proof, underpinned by rules of procedure, jurisdiction, and evidence, is central to law’s attempt to maintain a boundary between reason and passion, the courtroom and everyday life.²⁰ In the Bywaters and Thompson trial, the admission of love letters into evidence was a powerful vehicle through which the passions and complexities of ordinary life entered into the patriarchal space of the courtroom, and challenged the tightly policed boundaries between inside and outside, public and private, emotion and reason, truth and fiction. In his 1923 introduction to the case, Filson Young described Thompson’s correspondence as ‘the most remarkable letters that have been made public in modern times’.²¹ Contesting the judge’s claim that the case was ‘common’, he argued that the letters lift the case out of ‘the commonplace’ because they enable readers ‘to trace back … [Freddy’s] emotional history and be aware of the emotional force that ultimately swept him away on its tide’.²² Young contends, however, that the defendants came to grief because the old are sceptical...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Citation Information
• Notes on Contributors
• Introduction
• 1. Affecting Evidence: Edith Thompson’s Epistolary Archive
• 2. Unsettled Explorations of Law’s Archives: The Allure and Anxiety of Solomon Islands’ Court Records
• 3. But I Want to Speak Out:Making Art from Women’s Testimonies
• 4. Rotten Prettiness? The Forensic Aesthetic and Crime as Art
• 5. Plots and Artefacts: Courts and Criminal Evidence in the Production of True Crime Writing
• 6. On Viewing Crime Photographs: The Sleep of Reason
• 7. Archiving The Northern Territory Intervention in Law and in the Literary Counter-Imaginary
• 8. Stained Evidence: Blood, Semen and Matter on the Clothes of Kennedy, Lewinsky, and Margiela
• 9. Telling a History of Australian Women Judges Through Courts’ Ceremonial Archives
• Index