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Stanford Law ReviewStories in Fiction and in Fact: Susan Glaspell's "A Jury of Her Peers" and the 1901 Murder Trialof Margaret HossackAuthor(s): Patricia L. BryanSource: Stanford Law Review, Vol. 49, No. 6 (Jul., 1997), pp. 1293-1363Published by: Stanford Law ReviewStable URL: http://www.jstor.org/stable/1229348Accessed: 02-11-2015 22:08 UTCREFERENCESLinked references are available on JSTOR for this article:http://www.jstor.org/stable/1229348?seq 1&cid pdf-reference#references tab contentsYou may need to log in to JSTOR to access the linked references.Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at s.jspJSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of contentin a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship.For more information about JSTOR, please contact support@jstor.org.Stanford Law Review is collaborating with JSTOR to digitize, preserve and extend access to Stanford Law Review.http://www.jstor.orgThis content downloaded from 64.106.42.43 on Mon, 02 Nov 2015 22:08:32 UTCAll use subject to JSTOR Terms and Conditions

ARTICLESStories in Fiction and in Fact:Susan Glaspell's A Jury of Her Peersand the 1901 MurderTrial ofMargaretHossacktPatriciaL. Bryan*In this article, Professor Bryan discusses the classic short story A Jury ofHer Peers and the questions it raises about the stories told and accepted underthe law. Relying on historical documents and contemporaneous newspaperreports, Professor Bryan describes the actual case that inspired Susan Glaspellto write her work of fiction: the 1901 trial of Margaret Hossack, who wasconvicted of murdering her husband with an axe while he lay asleep in bed.During the trial, neighbors testified that Margaret Hossack had been abusedduring her marriage and had sought their help on numerous occasions. Thatevidence was heavily relied on by the prosecution in arguing that MargaretHossack had a motive for the crime. The story of Margaret Hossack, bothduring the trial and thereafter, leads us to ask the question suggested by SusanGlaspell: whether justice will be denied until we recognize the biases andassumptions that shape the narratives told in the courtroom.t Copyright1997,PatriciaL. Bryan.* Professorof Law,Universityof NorthCarolinaatChapelHill. I wantto thankmy friendsandcolleaguesat the Universityof NorthCarolinaSchoolof Law,especiallyWalterBennett,JackBoger,Lissa Broome,ElizabethGibson,andRich Rosen,who readearlydraftsof this articleand rth,JudithWegner,andLarryZelenakreadthearticleat laterstagesandalsogavemeKleinman,usefulcomments.I uableto me. My heartfeltthanksgoes to ,andEricGordon.I amdeeplygratefulto Wolffortheirvaluableeditorialcomments,as wellas theirunfailingencouragementandfaithin thisproject.Finally,I appreciate the help of the staff membersin the WarrenCountyandMadisonCountyCourthousesandtheI havehad withthe descendantsconversationsof MargaretHossack,who sharedwithme whattheyknewof her story. Thisarticlewas supported,in part,by a grantfromthe LawCenterFoundation.1293This content downloaded from 64.106.42.43 on Mon, 02 Nov 2015 22:08:32 UTCAll use subject to JSTOR Terms and Conditions

1294STANFORD LAW REVIEW[Vol. 49:1293INTRODUCTIONSusan Glaspell's short story A Jury of Her Peers,1 written in 1917, occupiesan important place in the emerging canon of the study of law and literature.Although it was often included in anthologies during the forty years followingits initial publication,2 the story has enjoyed a surge of popularity since feminist scholars rediscovered it in the early 1970s.3 During the last twenty years,A Jury of Her Peers and the play Trifles,4 from which Glaspell adapted thestory, have frequently been republished in collections of works by female authors depicting women's experiences.5 Many essays of literary criticism, mostof them written from feminist perspectives, have discussed both the story andthe play.6 Referred to as a "feminist classic,"7 A Jury of Her Peers raises sig1. Susan Glaspell, A Jury of Her Peers, in SOCIALINSIGHTTHROUGHSHORTSTORIES62(Josephine Strode ed., Harper& Brothers 1946) (1917).2. For a listing of those anthologies, see MARY E. PAPKE, SUSAN GLASPELL:A RESEARCHANDPRODUCTION124-25 (1993).SOURCEBOOK3. See, e.g., Linda Ben-Zvi, Introductionto SUSANGLASPELL:ANDESSAYSON HERTHEATER2 (Linda Ben-Zvi ed., 1995) [hereinafterGLASPELL:FICTIONESSAYS];Elaine Hedges, Small ThingsReconsidered:Susan Glaspell's "A Jury of Her Peers," 12 WOMEN'SSTUD.89, 89 (1986).4. SUSAN GLASPELL,Trifles, in PLAYS 1 (1920). The play was first performed in 1916, although itwas not publisheduntil four years later. See PAPKE,supra note 2, at 19, 102. One of Glaspell's biographers has referredto Trifles as "one of the most popularone-act plays ever writtenin America . [andone which is] frequentlyanthologizedand used as an example of structureand craftsmanshipin texts ondramatictechnique." ARTHURE. WATERMAN,SUSANGLASPELL69 (1966).5. In 1973, A Jury of Her Peers was anthologizedin AMERICANWOMENAMERICANVOICES,(LeeR. Edwards& Arlyn Diamondeds., 1973). In that same year, Trifles was selected for the firstedition ofIMAGESOF WOMEN IN LITERATURE (Mary Anne Ferguson ed., 1973), which, in the subsequent fiveeditions, has included either Trifles or A Jury of Her Peers. See Ben-Zvi, supra note 3, at 2. For alisting of the many anthologies that have included Trifles and A Jury of Her Peers through 1993, seePAPKE,supra note 2, at 102-03, 124-25.6. Essays focusing on A Jury of Her Peers and Trifles include Karen Alkalay-Gut,Jury of HerPeers: The Importanceof Trifles, 21 STUD.INSHORT1 (1984) [hereinafterAlkalay-Gut,Jury ofFICTIONHer Peers]; KarenAlkalay-Gut,Murderand Marriage:AnotherLook at Trifles, in GLASPELL:ESSAYS,supra note 3, at 71 [hereinafterAlkalay-Gut, Murder and Marriage]; Linda Ben-Zvi, "MurderSheWrote":The Genesis of Susan Glaspell's Trifles, 44 THEATERJ. 141 (1992); JudithFetterley,ReadingAbout Reading: "A Jury of Her Peers," "The Murders in the Rue Morgue," and "The Yellow WallANDREADING:ONREADERS,ESSAYS147 (ElizabethA. Flynnpaper," in GENDERTEXTS,ANDCONTEXTS& PatrocinioP. Schweickarteds., 1986); SherriHallgren, "TheLaw Is the Law-And a Bad Stove Is aBad Stove": SubversiveJustice and Layers of Collusion in "A Jury of Her Peers," in VIOLENCE,SIANDANGER:WOMEN'SWRITING203 (Deidre Lashgaried., 1995); Hedges,AS TRANSGRESSIONLENCE,supra note 3; Annette Kolodny, A Map for Rereading: Or, Gender and the Interpretationof LiteraryTexts, 11 NEWLIT.HIST.451 (1980); Phyllis Mael, Trifles: The Path to Sisterhood, 17 LITERATURE/FILMQ. 281 (1989); Beverly A. Smith, Women'sWork-Trifles? The Skill and Insights of PlaywrightSusan Glaspell, 5 INT'LJ. WOMEN'SSTUD.172 (1982); Karen F. Stein, The Women's Worldof Glas253 (Helen KrichChinoy & Linda Walsh Jenkinseds.,INAMERICANTHEATERpell's Trifles, in WOMEN1987). For a complete listing of criticism on Susan Glaspell's work through 1993, see PAPKE,supranote 2, at 164-288. Anotherbibliographyof selected critical works on Susan Glaspell's work appearsinGLASPELL:ESSAYS, supra note 3, at 339-44.In 1981, Glaspell's story was made into an Academy Award nominatedfilm by Sally Heckel. SeeA JURYOFHERPEERS(Texture Films 1981). For a discussion of that film, see Mael, supra, at 284.Otherthan Trifles and A Jury of Her Peers, much of Susan Glaspell's work had gone out of printby the time of her death in 1948. However, her other work has also enjoyed significantrenewed popularity and scholarly attentionin recent years. See note 20 infra.7. Ben-Zvi, supra note 3, at 3; see also Hedges, supra note 3, at 90 (referringto the story as a"paradigmaticone for feminist criticism");Robin West, Invisible Victims:A Comparisonof Susan GlasSTUD.L. & LrTERApell's Juryof Her Peers and HermanMelville's Bartlebythe Scrivener,8 CARDOZOTURE 203, 231 (1996) (referringto the story as "canonicalwithin the feminist legal community").This content downloaded from 64.106.42.43 on Mon, 02 Nov 2015 22:08:32 UTCAll use subject to JSTOR Terms and Conditions

July 1997]STORIES1295nificantquestionsaboutwomen's oppressionin a society dominatedby men,genderdifferencesin perception,and the empowermentof women thatcomesfrom consciousness-raisingand female bonding.8The story also has obviousconnectionsto the law, since it concernsa woman accusedof murderingher husbandand the subsequentsearchof her homefor clues to the crime.9 The accused,MinnieWright,is alreadyin prisonforthe crimewhen the sheriff,the prosecutor,anda male neighborgo to herhometo investigatethe murder.Two women-the wives of the sheriffandthe neighbor-accompany the men. Glaspellcontraststhe way in whichthe male characters, as representativesof the law, look for dry facts with the mannerinwhichthe women,who arethereonly to gatherclothesfor the accused,are ableto piece togetherand betterunderstandwhat has happened.When the womendiscoverevidenceindicatingthatthe wife has been mistreatedby her husband,they know thatit will be used in the courtroomto help to convicther by showing that she had a motive for the murder.Empathizingwith the accusedwoman, as well as recognizingtheirown moralfailurein not coming to her aid,the womendecideto concealthe crucialevidencefromthe men. Becauseof itsrelevanceto questionsof criminalresponsibilityand moraljudgments,A Juryof Her Peers has been cited and discussedin many law review articles0landincludedin traditionallaw school courses,such as civil procedurellandcriminal law.'2 The storyis also one of the most frequentlyselectedworksin lawschool coursesthat focus on law and literature.138. See note 6 supra (citing a collection of authoritiesthat discuss the feminist themes in Glaspell'swork).9. For a discussion of the story, see text accompanyingnotes 47-88 infra.10. See, e.g., MarianaAngel, CriminalLaw and Women:Giving the Abused WomanWhoKills AJury of Her Peers Who Appreciate Trifles, 33 AM. CRIM.L. REV.229, 230-52 (1996); Marion Crain,Feminism,Labor,and Power, 65 S. CAL.L. REV.1819, 1856 n.172 (1992); RobertaK. Flowers, Does ItCost Too Much?A "Difference"Look at J.E.B. v. Alabama,64 FORDHAML. REV.491, 517-18 (1995);JoannaL. Grossman,Note, Women'sJury Service: Right of Citizenshipor Privilege of Difference?, 46STAN.L. REV. 1115, 1145-46 (1994); Nancy S. Marder,Beyond Gender: PeremptoryChallenges andthe Roles of the Jury, 73 TEX. L. REV. 1041, 1073-74 (1995); Toni M. Massaro, Peremptories orPeers?-Rethinking SixthAmendmentDoctrine, Images, and Procedures, 64 N.C. L. REV.501, 552-53(1986); Linda C. McClain, "AtomisticMan" Revisited:Liberalism,Connection,and FeministJurisprudence, 65 S. CAL.L. REV. 1171, 1264 (1992); MarthaMinow, Wordsand the Door to the Land ofChange: Law, Language, and Family Violence,43 VAND.L. REV.1665, 1692-93 (1990); Carol Sanger,Feminism and Disciplinarity: The Curl of the Petals, 27 LOY.L.A. L. REV.225, 234 (1993); CarolL.J. 59, 75-76 (1986).Weisbrod, Images of the WomanJuror, 9 HARV.WOMEN'S11. See, e.g., PROCEDURE1168 (RobertM. Cover, Owen M. Fiss & JudithResnik eds., 1988).12. See Angel, supra note 10, at 246.13. See ElizabethVilliers Gemmette,Law and Literature:Joining the Class Action, 29 VAL.U. L.REV. 665, 682-86 (1995). Gemmette surveyed American law schools to determine the number ofschools offering some form of a course in law and literatureand then put together bibliographiesofworks taughtin those courses. Eighty-fourschools (out of 199 surveyedin 1993) reportedsome type oflaw and literaturecourse, althoughthe content of those courses varied widely. A Jury of Her Peers wasassigned or recommendedfor inclusion in a law and literaturecourse by 15 respondents,whereas themost frequentlycited work, Billy Budd by HermanMelville, was mentionedby 30 respondents. See id.at 686. In additionto Billy Budd, only six works were mentionedmore frequentlythan Glaspell's shortstory, and those six works are all well-known classics: Measurefor Measure and The Merchant ofVenice by Shakespeare;The Stranger by Camus; Antigone by Sophocles; The Trial by Kafka; andOresteia by Aeschylus. See id.; see also Comment, Lessons in Law from Literature:A Look at theMovementand a Peer at Her Jury, 39 CATH.U. L. REV.557, 581 (1990) (discussing A Jury of HerThis content downloaded from 64.106.42.43 on Mon, 02 Nov 2015 22:08:32 UTCAll use subject to JSTOR Terms and Conditions

1296STANFORDLAWREVIEW[Vol. 49:1293I firstreadA Juryof Her Peers whenI startedteachinga seminarin law andliteratureseveralyearsago. It is a popularstorywith students,one which generates a broadrange of contemporarytopics for discussion. From their lawschool classes, storiesin the press, and sometimestheirown experiences,students are awareof the prevalenceof domesticviolence. A Jury of Her Peerstypicallystimulatesdiscussionaboutthe issue of justifiablehomicideby a batteredwoman-when a single violent act againstan abusermightbe provokedand possiblyexcused. Some studentsare also familiarwith the work of feminist scholarssuch as CarolGilligan,14and they perceivethe story as anotherillustrationof the "differentvoice" in which women speak. In the seminar,wetalk aboutthe contrastsbetweenthe ways in which men and women, even today, analyzeproblemsand assign responsibility.The storyis provocativeandpowerful,and the questionsit presentsare complex.My own understandingof the story has changed over the years I havetaughtit. As I read and rereadit, I appreciateits richness-the sense thattheissues it raisesin connectionwiththe law go beyondthe obviousones relatedtojustifiablehomicide and modes of understandinguniqueto men and women.More broadly,it seems to me that A Jury of Her Peers provokesquestionsabout storytellingin the law, a topic which, in recent years, has generatedaconsiderableamountof scholarship.15To me, Glaspell'sstoryraisesquestionsPeers as an example of literaturethat can be used effectively in legal education);CarolynHeilbrun&JudithResnik, Convergences:Law, Literature,and Feminism,99 YALEL.J. 1913, 1955 (1990) (including A Jury of Her Peers on the syllabus of a gender roles seminar taught at Yale Law School in thespringof 1989). See generally GretchenH. Schoff, Women,Justice, and Judgment,4 LAWANDINEQ.J.137 (1986) (discussing the inclusion of the story in a programfor lawyers and judges sponsoredby theWisconsin Supreme Court).A Jury of Her Peers is also included in the anthology LAWIN LITERATURE:LEGALTHEMESINSHORTSTORIES124 (ElizabethVilliers Gemmetteed., 1992) and discussed in RICHARDLAWPOSNER,ANDLITERATURE:A MISUNDERSTOODRELATION112-13 (1988) (considering the difference betweenmale and female "conception[s]of justice").14. See, e.g., CAROLIN A DIFFERENTVOICE:PSYCHOLOGICALTHEORYAND WOMEN'SGILLIGAN,DEVELOPMENT(1982).15. Many scholarshave addressedthe relationshipbetween storytellingand the law, and they haveapproachedthe subject from differentperspectives and with a wide diversity of goals and methods. Abook publishedseveral years ago reflects the variousperspectivesscholarshave broughtto the field andincludes essays concerningthe role of narrativeand personalstories in legal educationand doctrine;theuse of storytelling in legal practice and the courtroom;the recognitionof the stories "told in the law,"defined as those that underlie legal doctrine and appellate decisions; and the possibility that socialchange can be effected throughalternativelegal narratives,meaning stories told by outsiders to challenge what others-often the decisionmakersand those in positions of power-accept as reality. SeeNARRATIVE AND TIHELEGAL DISCOURSE: A READER IN STORYTELLING AND THE LAW (David Ray PapkeANDTHELEGALDISCOURSE];ed., 1991) [hereinafterNARRATIVEsee also LAW'S STORIES:NARRATIVEANDRHETORICIN THELAW(Peter Brooks & Paul Gewirtz eds., 1996); e 1989, at least three symposiums have focused on the topic of storytellingand the law. Seegenerally Lawyersas Storytellers& Storytellersas Lawyers:An InterdisciplinarySymposiumExploringthe Use of Storytellingin the Practice of Law, 18 VT. L. REV.567 (1994); Legal Storytelling,87 MICH.L. REV.2073 (1989); Pedagogy of Narrative, 40 J. LEGALEDUC.1 (1990).Articles that have discussed the relationship between storytelling and the law include KathrynAbrams,Hearing the Call of Stories, 79 CAL.L. REV.971 (1991); Jane B. Baron,Resistance to Stories,67 S. CAL.L. REV.255 (1994) [hereinafterBaron, Resistance to Stories]; Daniel A. Farber& SuzannaSherry,Telling Stories out of School: An Essay on Legal Narratives,45 STAN.L. REV.807 (1993); JaneC. Murphy,Lawyeringfor Social Change: The Power of the Narrative in Domestic Violence Law Re-This content downloaded from 64.106.42.43 on Mon, 02 Nov 2015 22:08:32 UTCAll use subject to JSTOR Terms and Conditions

July 1997]STORIES1297aboutthe storiestold and acceptedin the courtroom,how they both reflectandreinforceprevailingsocietal assumptionsand expectations. In A Jury of HerPeers, the legal perspective,representedby the men who are in chargeof theinvestigationandwho will standin judgment,is portrayedas narrowandrigid,based on preconceivednotionsaboutgenderroles that make it impossibleforthem to recognizeor understandthe experiencesof the accusedwoman. Accordingly,the story that is relevantto the men, and thereforerelevantto thelaw, ignoresor rejectsmanyof the complexelementsof the real-lifenarrative,elementswhichthe womenrecognizeas an explanationfor the crime. Readersareleft withthe overwhelmingimpressionthatthe storiesthatwouldeventuallybe told in the courtroomwould be determinedby the underlyingbiases of themen, who would both tell the storiesandinterpretthem,and thatjustice couldnot be done with such a limited and constrainedperspective.In discussingA Juryof Her Peers with my students,I explainthatthe storywas inspiredby the actualtrialof MargaretHossack,who was accusedof murderingher husbandin Iowa in 1900.16 At the time, SusanGlaspell,a nativeofDavenport,Iowa, was twenty-fouryears old and workingas a reporterfor aDes Moinesnewspaper.17 She had graduatedfromDrakeUniversitythe previous year with a degree in philosophy.l8 Glaspell was assignedto cover theL. REV.1243 (1993). See also Angel, supra note 10, at 232 n.ll (citing otherarticlesform, 21 HOFSTRAconcerning storytellingand the law).For an overview of the scholarshipon storytellingand the law, see, e.g., Jane B. Baron, The ManyPromises of Storytellingin the Law:An Essay Review of Narrativeand the Legal Discourse:A ReaderinL.J. 79 (1991) [hereinafter Baron, Many Promises ofStorytelling and the Law, 23 RUTGERSStorytelling].16. Although Glaspell herself never named the Hossack case as the source of her inspiration,several scholarshave identifiedthat case as the one on which Trifles andA Jury of Her Peers are based.See Ben-Zvi, supra note 6, at 144; Diane D'Amico, Susan Glaspell's Trifles and the Hossack MurderTrial 2 (1992) (unpublishedmanuscript,on file with the StanfordLaw Review); Linda K. Kerber,TheCase of the Broken Baseball Bat: Women and the Obligation of Jury Service 12 (1990) (unpublishedmanuscript,on file with the StanfordLaw Review).In her autobiography,Susan Glaspell describeshow she came to write Trifles, from which she lateradaptedA Jury of Her Peers. She and her husband,George Cram Cook, were living in Provincetownafter having founded the dramaticgroup the ProvincetownPlayers in 1915. When the group needed anadditionalplay, her husbandurged Glaspell (who had writtennovels and short stories but only one play,SuppressedDesires, written in 1915 in collaborationwith her husband) to write one. After initiallyprotesting,Glaspell agreed to

Susan Glaspell's short story A Jury of Her Peers,1 written in 1917, occupies an important place in the emerging canon of the study of law and literature. Although it was often included in anthologies during the forty years following

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