Ian Burney, a former Ransom Center fellow, was recently awarded a fellowship from the Guggenheim Foundation. Below, Burney shares how his work here formed the basis for his forthcoming Guggenheim fellowship as well as his being named a 2019 fellow at the National Humanities Center (NHC). While at the Ransom Center, Burney’s work was supported by the Erle Stanley Gardner Endowment for Mystery Studies.
Austin Downey: What brought you to the Ransom Center to consult the Erle Stanley Gardner archive? Did you find what you expected?
I went to the Gardner archive to investigate his work on the ‘Court of Last Resort,’ which was a group of free-lance scientists, lawyers, detectives and journalists that Gardner formed in the mid-1940s to investigate possible cases of wrongful convictions. My preliminary research idea was that Gardner’s Court might serve as a useful historical comparator to the contemporary ‘innocence movement,’ which began in the US in the late 20th century and since has grown into a worldwide phenomenon – just think about the number of ‘true crime’ documentaries based on cases of alleged wrongful convictions that are on our various screens today.
I first came across Gardner’s ‘Court’ while doing work on the infamous murder case involving the Cleveland surgeon Sam Sheppard. In 1953 Sheppard was convicted of murdering his wife Marilyn, but the case was re-tried in 1966 and he was acquitted. One of the key reasons that the case went to a second trial was the way that Gardner and his ‘Court of Last Resort’ kept Sheppard’s claims to innocence in the spotlight and insisted that they be given permission to administer a polygraph test to Sheppard to clear up any doubts about his conviction.
The manner in which the Court made its claims – especially its emphasis on the polygraph – and the primary media outlet that it used to publicize them – the popular men’s pulp magazine The Argosy – fascinated me, and led me think that this episode in Cold War innocence might be an interesting story to tell, both in its own right and as a historical mirror to our present day interest in forensically delivered innocence.
But before getting down to work on the Gardner archive at the Ransom Center, I didn’t know whether this would be a single journal article or something bigger. It soon became clear that there was a book in this. The archive contains hundreds of boxes of primarily documentary material, which sheds light on Gardner as a man, a legal crusader, a deft publicist, and virtual patron saint of the polygraph industry. Working there was an archive-user’s dream. The Ransom staff were amazingly supportive both in guiding me around the resources and in locating and producing a vast quantity of files. And the files were so rich – virtually every box contained something that surprised and excited me. In three decades of research I have not had an archival treasure hunt anywhere near as rich as this one!
How does Gardner’s pursuit of innocence differ from today’s innocence movements, scientifically, legally, politically and culturally?
While working on the Gardner papers I noticed some striking structural similarities between the scientific and media frameworks of innocence today and of the 1950s: e.g. legal reformist ideal, mass media advocacy, and the promise of technical revelation. But there were also some key differences, two of which struck me as most significant. First, whereas today’s innocence movement is scientifically grounded in DNA typing, Gardner’s was based on the polygraph. Second, whereas today’s most prominently-publicized profile of the wrongfully convicted is an African-American man who had spent decades incarcerated as the result of racial biases within the criminal justice system, Gardner’s was a white ‘rugged individualist’ caught out by the social and gender politics of Cold War America.
I left Austin convinced that the material I gathered could form the basis of a book that could historicize what we know, and think we know, about innocence past and present. As of now, scholarly work on the innocence movement has lacked any such sustained historical reflection. Instead, it typically folds history into a presentist account focused on the defining feature of modern innocence – its access to DNA typing. According to these accounts, prior exposés of wrongful conviction like Gardner’s focused on one-off ‘wrong man’ cases of factual error (which themselves could be subject to skeptical challenge) rather than structural criminal justice flaws. It was DNA that enabled reformists to shift the terrain of discussion and action away from legal judgment towards scientific certainty, replacing, in the words of Innocence Project co-founder Barry Scheck, ‘speculation, supposition, and subjectivity with hard science.’
My book will argue that Gardner’s project in important respects belies this characterization of pre-DNA innocence campaigns as radically discontinuous to the present. But in fashioning an historical mirror to modern innocence it will also is also take note of profound differences, rooted in the political, legal, cultural and scientific context of Cold War America. This influence is evident, for example, in his strategy for engaging the public in the cause of wrongful conviction. In contrast to ‘foreign’ jurisdictions, Gardner insisted, the exceptional nature of American liberty meant that ‘no officially organized tribunal ever could be the real court of last resort. The real court of last resort … [is] the people themselves.’
With this in mind Gardner’s chosen outlet for disseminating information about his Court – one of post-war America’s best-selling pulp magazines – is telling. The Argosy Magazine is an exemplary instance of what generations of historians since Richard Hofstadter’s canonical 1964 essay on the ‘Paranoid Style’ have identified as the fractured state of Cold War masculinity. Subtitled ‘The Complete Man’s Magazine,’ the Argosy presented its white, middle American male readership with a composite image of a desired but vulnerable self, forged from stories celebrating frontier individuality and outdoor virility, denouncing the emasculating tyrannies of suburban domesticity and white collar managerialism, exhorting heads of household to meet the norms of consumerist well-being, and warning reader-patriots about lurking external and internal threats to American liberties.
Will your research change our understanding of Erle Stanley Gardner?
In some respects my research confirms what we already knew about Gardner. He was a man of extraordinary energy and dedication not only in his literary work but also as a champion of what he saw as good causes, both individual and institutional. His archives reflect the public nature of this work, but also gives insight into its personal side. Some of this is admirable: for example, he maintained often decades’-long correspondence with many of his Court’s ‘clients’ in which he expressed a sincere interest in their lives and well-being post-incarceration – often referring to himself as their ‘Uncle Erle.’
But the archives also reveal a more complex (and at times unpleasantly blinkered) picture of Gardner’s determination to do good. His was a politico-legal crusade grounded in the rugged individualism of the US frontier, designed to attract and defend a vision of American masculinity threatened by internal and external sources of subversion, and promoting the exemplary technology of Cold War paranoia – the polygraph – as the means to achieve a restitution of individual and collective liberties.
To take one example: Gardner embraced liberalizing reform as a core principle, but his pursuit of this ideal was in practice the constrained by the politics, broadly speaking, of his particular historical moment. He saw public opinion as the life-blood of the Court of Last Resort, but advocated a ‘cautious’ approach to its cultivation: ‘Public opinion must be molded,’ he argued, ‘but it must be an enlightened public opinion based on facts, otherwise we would be charged, and justly charged, with the tactics of the rabble rousers.’ For him, this resulted in his refusal to engage with potentially contentious cases, including those involving race. Gardner’s reply to a Louisiana attorney’s request for intervention on behalf of his client illustrates this starkly: ‘We hesitate to conduct any investigation in this case because of certain factors,’ Gardner wrote. ‘The man is a Negro in the “Deep South,” and we have found that in many of these cases persons with communistic backgrounds try to stir up trouble simply in an attempt to destroy our form of government [and] to inflame racial prejudices.’ Instead, the Court’s public campaigns overwhelmingly focused on cases featuring rugged individuals, often frontiersmen, who were ensnared by the very forces of emasculation (e.g. suburban domesticity, white collar managerialism) that were staples of Argosy reportage.
How does your research make clear the relationship between the state and developments in technology throughout American history?
Gardner’s faith in what was then called ‘scientific interrogation,’ and in particular to the divinatory powers attributed the polygraph, was another perfect fit both with his vision of American justice and with the underlying anxieties that his vision reflected. Though in its 1923 Frye ruling the US Supreme Court excluded polygraph evidence from formal trial proceedings, the polygraph’s extrajudicial use increased dramatically in subsequent years, such that by the 1950s millions of men and women were subjected to tests to confirm their status as trustworthy employees, citizens and spouses. Criminal investigators availed themselves of the promise of unmediated access to guilt and innocence in pre-trial interrogations. These were ostensibly voluntary, though refusal to submit would itself raise suspicions about a suspect’s protestations of innocence.
As such, the polygraph was the instrumental embodiment of Cold War inquisitorialism, and in many respects Gardner was its patron saint. Before consulting the Gardner papers, I had no idea of the extent to which Gardner championed not just the instrument itself but also the polygraph industry. One specific aspect of this relationship is particularly interesting in terms of technology/state dynamics. When polygraph industry came under threat from union inspired state legislative efforts to curb the use of polygraph tests by employers, worried polygraphers turned to its ‘Uncle Erle’ for help. Ultimately, his advice was simple: change your image, from being persecutors of deceivers to liberators of the wrongfully accused. That is, turn your technology to the pursuit of innocence.
This ingenious advice reflects a broader truth that people in the modern DNA driven innocence movement are beginning to recognize – that present use of a technology does not dictate its future use. In the early decades of today’s innocence movement DNA testing was hailed as a technology of liberation, one with something profound to say about the case for abolishing capital punishment. But defenders of capital punishment soon fashioned an alternative use for the technology, best exemplified in the then Massachusetts Governor Mitt Romney’s call for a ‘guilty project.’ In Romney’s scenario, DNA typing could make capital punishment more efficient (and therefore more secure and more publicly palatable), by presenting itself as a scientific alternative to what he saw as endless rounds of legal and procedural challenges lodged on behalf of death row inmates. Instead of decades of argument over individual rights and due process, a few simple lab tests would ensure that justice had been, and would be done.
You have just been named as a 2019 Guggenheim Fellow, and 2019 fellow at the National Humanities Center in North Carolina. Did your research here support your applications to these competitions? What, generally, do you think is the value of archival research in the humanities?
I was so convinced of the value of the material I found at the Ransom Center that over the next two months I developed a grant proposal, ‘A History of Innocence: Erle Stanley Gardner, the Court of Last Resort, and the Pursuit of Wrongful Conviction in Cold War America.’ Without the time and resources made possible to me by my Ransom Fellowship I could not have developed the fresh ideas and insight needed to put together a compelling application. That’s what time in the archives does for a humanities scholar: the archive gives you a structure of constraints based on the limits of what you find, but also of imaginative possibilities opened up by encounters with material that surprises, challenges, and inspires creative responses on the part of the reader.
I’m of course delighted to have been awarded NHC and Guggenheim fellowships. I’ll be taking up residence at the NHC in September of this year, and will start my Guggenheim fellowship the following year. With these sources of support, I aim to make serious progress on my book – and to come back to the Ransom Center for another go at the inexhaustibly rich Gardner archive!