Salome – guilty or innocent? Tribunes ruling at Shakespeare Theatre

When Salomé, having won her era’s version of Dancing with the Stars, selected as her prize an all-expenses trip to the afterlife for poor John the Baptist, was she engaged in a criminal conspiracy with her mother and stepfather? Or was she exercising her right to petition the King — who happened to be her stepfather — to perform an act well within his royal authority, to wit: executing a local rabble-rouser?

Well, a little of neither, ruled a three-judge panel of Roman Tribunes headed by Supreme Court Justice Elena Kagan, last Monday night at the Trial of Salomé at Shakespeare Theatre. But the consultation between Salomé and her mother Herodias did not rise to the level of a criminal agreement, and besides, going after what Justice Kagan called “a fifteen-year-old dancing girl” while leaving Herod Antipas off the hook — that was just plain wrong.

You’ve read the record — or perhaps seen it Farber’s Salomé performed at Shakespeare Theatre last month — but just in case, I’ll summarize. Herod, having married Herodias while her first husband, Herod’s brother, was still alive, violated Jewish law, and John gave him what for for it. John’s accusations so discombobulated Herod that he threw the Baptist into a cistern, and kept him there in irons.

So next Herod throws a huge soiree, and, well in his cups, urges Salomé to perform the dance for which she had become so well known. (Justice Kagan urged both counsel to reproduce the dance, so as to enhance the Court’s understanding of the circumstances.) When Salomé, unlike the two attorneys, complied, Herod was so taken with her performance that he promised to give her anything she wanted. After consultation with her mother, she replied “bring me the head of John the Baptist” on a platter. You know the rest of the story.

Salomé’s bold — some might say outrageous — argument came courtesy of her attorney, Deborah B. Baum of Pillsbury, LLP. Baum actually forwarded three arguments. In addition to characterizing Salomé as a lawful petitioner, Baum argued that Herod’s decision to chop off John’s head was made in his official capacity, and a conspiracy to get an official to act in his official capacity is a legal absurdity. She also claimed that since the alleged conspirators had different motives, there could be no agreement among them and thus no conspiracy.

As good as Baum was in Court, her brief was even better (Rebecca Carr Rizzo and John Chamberlain were on the brief.) Of particular delight: the brief’s meticulous description of other brazenly vicious murders which were done under color of state authority (see footnote 4).

However, Baum’s argument that Herod was acting under color of authority came under heavy weather even before she could articulate it. “Do you mean to tell me that any petty tyrant, even one with bad hair, could insult and ridicule his opponents, and claim it was done under official authority?” trumpeted DC District Court Judge Amy Berman Jackson, who doubles as a legal commentator on TV. Baum had no good answer.

But Jackson was just as tough on prosecution counsel Carol Elder Bruce of K&L Gates LLP. One prosecution argument was that the conspiracy took place as soon as Salomé and her mother agreed that Salomé’s response to Herod’s invitation would be to ask for John’s head. Jackson was having none of it. After first ascertaining that Salomé and Herodias were Jewish, Jackson found and concluded that Salomé was simply obeying her mother because the consequences of disobeying a Jewish mother were too horrible to contemplate. “She (Salomé) would be in therapy for years,” Judge Jackson explained. “And Herodcare only covers you to age twenty-six.”

Bruce also had a hard time convincing DC Circuit Court of Appeals Judge Cornelia T.L. Pillard that Salomé and her mother had entered into a criminal agreement. Pillard, herself the mother of teenagers, asked that if there had been an agreement, “where was the slamming of doors?” a necessary prerequisite to reaching an agreement with teenagers.

The argument took an unanticipated turn when Bruce (Richard James Mitchell on the brief) challenged the case’s original source material, the King James Bible. For a while, Salomé v. The People of Rome became The King James Bible v. The New International Bible, as Baum and Bruce argued whether Salomé asked for John’s head “by and by” (King James) or immediately (New International), and whether Herod was a King (King James) or a Tetrarch, subject to the authority of Rome (New International). The Court did not resolve this dispute.

The argument, however, did prompt Justice Kagan to reflect on one of her favorite scriptural passages, which reveals King Herod to be “perplexed” by John the Baptist, though he loved listening to him. “It’s how I am with many of my colleagues,” Kagan revealed.

The Tribunes retired to deliberate, and we were treated to an interview between moderator Lisa Blatt (Arnold & Porter, LLP) and Irish Ambassador Anne Anderson. In keeping with the theme of the evening, which appeared to be the empowerment of women in law and government, Anderson told us that she initially chose not to train as a barrister (in Ireland and England, trial lawyers are barristers; other legal work is done by solicitors) because there were no women barristers. Before Ireland joined the European Union in 1973, women civil servants had to resign when they got married. When she received her first diplomatic posting she was considered so unusual that the government didn’t know how to handle her housing allowance. And she was the first woman, from any country, to be appointed ambassador to the European Union. It was remarkable to consider that this woman, who was the same age as many people in the audience, was a pioneer in so many fields.

The Tribunes returned, and delivered their verdict: for Salomé. The jury, which was the four hundred or so folks in the audience, as measured by the relative abundance of red chips (for Salomé) and blue chips (for the prosecution) collected by ushers in the end and measured by weight on an on-stage scale, came down the same way. Although it seemed from my vantage point that the scales of justice were already weighted for Salomé (at rest, they seemed tilted her way), there was no question that the jury was squarely in Salomé’s corner. Even my companion for the evening, a ferocious litigator with a well-honed taste for blood, voted for her.

And so Salomé lives free to dance another day — or would have, except that she has been dead for roughly nineteen hundred and forty years.

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Trial of Salomé was held December 7, 2015 at The Lansburgh Theatre in Washington, DC. Presented by Bard Association of Shakespeare Theatre Company.