Legal Lore. The Treason Trial of Aaron Burr

• Author: Richard Dean
• Pages: 9-10

Published in Litigation, Volume 47, Number 3, Spring 2021. © 2021 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be

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name, withholding important information

from the target parent, and undermining

the authority of the target parent. Take

for instance the behavior of a father who

was found to have engaged in severe pa-

rental alienation. His modus operandi

included sending text messages to his

son telling him that he had “a right to be

ugly to [his mother],” that the mother was

“mentally ill” and “can’t help the way [she

was] born and created by God,” that he

had to visit his mother “because the law

forces you to go,” and that he “will never

like her. Nobody likes her. It is impossi-

ble.” McClain v. McClain, 539 S.W.3d 170,

194–95 (Tenn. Ct. App. 2017). Subjected

to such indoctrination, children may turn

on the targeted parents, vilify them, reject

them, and show no ambivalence or guilt

in treating them in a most cruel fashion.

The trauma is suffered not just by the re-

jected parent; the brainwashed children

too are robbed of “a normal childhood,

normal sibling relationships, and a normal

relationship with [the targeted parent].”

Matter of Marriage of Reichert, 2 Wash.

App. 2d 1063, at *2 (2018).

It should not come as a surprise that

courts have agreed that parental alien-

ation “is a form of emotional abuse that

should not be tolerated.” McClain, 539

S.W.3d at 200. And to remedy such abuse,

they have realized that it is necessary to

jettison the “conservative” approach of

taking baby steps and ordering traditional

psychotherapy while keeping the abused

child in the custody of the alienator. To

do so will only result in a litigious “merry-

go-round” that has neither worked in the

past, nor will “work in the future.” Courts

have increasingly taken seemingly drastic

but ultimately necessary steps of chang-

ing custody, ordering psycho-educational

counseling for the alienating parent, or-

dering a specialized reunification program

for the targeted parent and the child, to-

gether with financial sanctions, realloca-

tion of attorney fees and litigation costs,

and, in severe cases, incarceration for re-

peated violation of court orders.

This unfortunate phenomenon is by

no means unique to America. Parental

alienation has been described, discussed,

and debated in the legal and scientific

literature by numerous writers all over

the world. It is addressed in thousands

of court rulings in Canada, the United

Kingdom, Brazil, Mexico, Israel, France,

Spain, India, Australia, New Zealand, and

Hong Kong, and in the European Court

of Human Rights and other jurisdictions

around the world. This is not surprising,

given that it is an expression of human

behavior, albeit pathological, that oc-

curs worldwide with similar patterns. A

parent who violates the boundaries by

treating the child as a weapon in a di-

vorce or custody litigation undoubtedly

causes his or her child serious emotional

harm. In lamenting such sad behavior in

a case involving toxic family dysfunction,

England’s Lord Justice Wall aptly quoted

the first four lines of Philip Larkin’s poem

“This Be the Verse”:

They fuck you up, your mum and dad.

They may not mean to, but they do.

They fill you with the faults they had

And add some extra, just for you. q

LEGAL LORE

The Trea s on

Trial of Aaron

Burr

RICHARD DEAN

The author is a partner with Tucker Ellis LLP,

Cleveland.

In the treason trial of Aaron Burr, Chief

Justice John Marshall, sitting as the tri-

al judge under the judicial system at the

time, found that his hated cousin, Thomas

Jefferson, who reciprocated that hate, was

indeed under a legal obligation to produce

key papers within his possession—letters

to him from the government’s key witness

about the underlying charges. Chief

Justice Roberts cited the holdings of that

decision in his opinion rejecting the presi-

dent’s objections to subpoenas directed to

his accountants. Trump v. Vance, 140 S. Ct.

2412, 2020 U.S. LEXIS 3552 (July 9, 2020).

Beyond the holdings, there is an entertain-

ing story of legal history.

After his service as vice president, Burr

was charged with treason for leading a

small group of armed men into the south-

east United States to wage a rebellion that

would lead to several states leaving the

Union. He claimed the purpose of the

group was to be ready to attack Spanish

interests in the area if the U.S. declared

war on Spain. Major James Wilkinson,

army commander in the area, had refused

orders to attack the Spanish interests. It

was suspected at the time that he might

be a Spanish agent. Wilkinson was a Burr

confidant turned accuser who would be a

key witness against Burr at trial.

The trial was held in Richmond,

Virginia. Several thousand visitors flocked

to the area. Most were Republicans who

wanted Burr convicted because Thomas

Jefferson did. But Burr was still loved in

the western states where dueling was

not a dishonor and where many were in

favor of a war with Spain. Burr’s most

prominent supporter was none other

than Andrew Jackson, who by this time

had soured on Jefferson. Jackson came to

Richmond for the trial, maintained a very

high profile, and made many derogatory

comments about Jefferson. The trial also

brought many reporters from around the

country, including a young Washington

Irving, who later gave us “Rip Van Winkle”

and “The Legend of Sleepy Hollow”.

Far and away the ablest lawyer in-

volved in the prosecution effort was

Jefferson himself, though he never set

foot in the courtroom. He provided de-

tailed written instructions to the govern-

ment’s courtroom lawyers not only about

the strategy but also about specific evi-

dence and how to present it. It is the only

time in American history a president was