I think Robert Ferguson is right in suggesting that “trials operate as contests that become rituals” and that “the ideal trial moves from contest toward ritual in communal acceptance of the result achieved in court.” Non-ideal trials suffer a deficit in one direction or the other. That is, “contest yields to ritual through acceptance of the decorum in procedural fairness, but if a community is genuinely and deeply divided over a trial, the rhythms of contest prevent the more subtle and less absorbing elements of consensus from working themselves out.”

Ferguson mentions the “all ritual” trial that Truman Capote recounts in “In Cold Blood.” Rather than just rehash Capote’s take, which in some respects is not as “non-fictional” as Capote would have us believe, let’s couple it with the recollections and first-hand observations of one of the (what could have been key) performers in that trial. The general contours of what happened were never in dispute. Two theretofore petty criminals, Dick Hickock and Perry Smith, murdered a prosperous farmer, Herb Clutter, and his resident family near Holcomb, Kansas, in 1959. The murder loomed large in my own childhood—I having grown up a handful of counties to the northwest of Holcomb—and resonated more widely after the publication of Capote’s self-styled “nonfiction novel” in 1966 and a related 1967 film starring Robert Blake. The Clutter murders, as Conrad Knickerbocker put it in a contemporary review of the novel, “echoed through the lives of all who lived nearby, rushing toward some appalling, mysterious point of psychic infinity.”

Given this context, it was not altogether surprising that the locals put the trial of Hickock and Smith on a fast track: the murders took place on Nov. 15, 1959; the two were arrested in Las Vegas on Dec. 30, 1959; and their trial began on March 22, 1960, in nearby Garden City, the county seat. Prior to trial, according to the Kansas Supreme Court in a post-trial appeal, “the defendants both filed motions requesting the court to appoint a commission to examine the defendants to determine whether their mental status was such they could legally be tried and to determine their sanity at the time of the commission of the alleged crime.” The trial court granted the motion and appointed three local, general practice physicians to examine Hickock and Smith. “Thereafter … this commission examined the defendants and filed separate reports with the court stating, in substance, that after having examined the defendants, it found each defendant was not insane, an idiot or an imbecile and that each such defendant was able to comprehend his position and to make his defense.” This finding of course only responds to one of the two questions presented: that is, it states that the defendants were fit to stand trial; it says nothing about their sanity at the time of the murders.

In 1960, Kansas followed the M’Naghten Rule, under which “the test for determining liability for commission of [a] crime is whether [the defendant] was capable of distinguishing between right and wrong at the time and with respect to the act committed.” This very narrow definition of insanity fathered equally narrow testimony from a psychiatrist, Mitchell Jones, at the trial of Hickock and Smith:

Q: Doctor, I would like to ask you if you know my client, Richard Eugene Hickock?

A: I do.

Q: Have you had occasion to examine him professionally?

A: Yes, sir …

Q: Do you have an opinion as to whether or not Richard Eugene Hickock knew right from wrong at the time of the commission of the crime?

By the Court: You may answer the question yes or no, Doctor. Limit your answer to yes or no.

A: Yes.

Q: And what is your opinion?

A: I think within the usual definitions, Mr. Hickock did know right from wrong.

And that was that, the Court allowing no elaboration. The same happened with respect to Smith, but with a pregnant wrinkle:

Q: From your conversations and examination of Perry Edward Smith, do you have an opinion as to whether he knew right from wrong at the time of the offense involved in this action?

By the Court: Answer yes or no. Do you have an opinion?

A: No.

Fifty years later, Dr. Jones sat for an “oral history” interview, largely about the case. As he recalled, he met Hickock and Smith (and Capote and Harper Lee), “just one week before the trial was started, actually.” He confirmed that at trial he “was limited to answering one question. The question had to do with the test for sanity in Kansas at that time. It was called the M’Naghten Rule.” But had he been allowed to elaborate, he would have expressed opinions that went beyond whether the defendants were “overtly psychotic.” With respect to Hickock, there was not much to say, although he would have liked to have explored a “head injury” that Hickock had suffered in a car wreck.

With respect to Smith, Jones clearly was—though somewhat circumspectly—troubled that he hadn’t the time to more thoroughly evaluate Smith or explain in court the reasons why he had not reached an opinion:

“The upshot of it was that I hadn’t, ah … (long pause) … I had not, I guess the best way to put it, was that I had not decided he was not competent. … He was able enough to conceptualize situations. He was able enough to know what the situation was, what the consequences were. Although, you know, you certainly could have made a case that there were times when he, when he flew into these rages, there was no way he could have gotten control of himself. [Was Smith paranoid-schizophrenic?] Yeah, yeah. But as an individual, you know it’s sort of, uh, he was a person with tremendous anger, tremendous anger control issues. He was a person who dreamed about things he might do, to an unrealistic, maybe almost delusional … degree.”

Capote took the testimonial lacunae that Jones could have filled as evidence that Kansas should have abandoned M’Naghten and adopted the Durham Rule, which holds that a defendant is not criminally responsible for an act if that act is the result of a mental disease or defect. Whether Hickock or Smith could have successfully maintained a defense under Durham is of course a matter of speculation, but there is a good argument that limiting the performance of an expert like Jones to one word or another cuts against fundamental principles of justice. With Neil MacCormick, “I do believe in the argumentative quality of law, and find it admirable in an open society. We should look at every side of every important question, not come down at once on the side of prejudice or apparent certainty. We must listen to every argument, and celebrate, not deplore the arguable quality that seems built into law.” Assuming a certain amount of let-everything-that-can-be-argued-be-argued enlightenment, I recently went looking to see how far Kansas had moved away from the restrictive M’Naghten Rule. What did I find? The Kansas Legislature abolished the insanity defense altogether!

Rules and rituals have immense social value, but they are only necessary—not sufficient—to a well-rounded conception of justice. As the true-life story behind “In Cold Blood” teaches, over-adherence to the rules of rituals may deliver no justice at all. Victor Turner reminds us that “when we act in everyday life, we do not merely re-act to indicative stimuli. We act in frames we have wrested from the genres of cultural performance. And when we act on the stage, whatever our stage may be, we must now—in this reflexive age of psychoanalysis and semiotics as never before—bring into the symbolic or fictitious world the urgent problems of our reality.” When that stage is the courtroom, with all its set roles, physical separations and coded decor, our performances must attend to the particular and the universal, the individual and society.

Randy D. Gordon is the managing partner of the Dallas and Fort Worth offices of Duane Morris. He is executive professor of law and history at Texas A&M University. His new book project, “The Performance of Law: Everyday Lawyering at the Intersection of Advocacy and Imagination,” from which this series is partially excerpted, was recently published by Routledge.

Reprinted with permission from © ALM Media Properties LLC. All rights reserved.