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Fair or foul?
Legal eagles get to the bottom of Macbeth’s madness



"Fair is foul and foul is fair," gurgle the three witches in the ominous opening scene of Shakespeare’s Macbeth, as if they had a premonition about the state of 21st-century American jurisprudence. In the Bard’s Scottish tragedy, Macbeth and his ferocious Lady descend a path of murderous madness. But was Macbeth a maniac?

This summer, the Commonwealth Shakespeare Company, which since 1996 has been bringing the Bard to the public for a series of free outdoor performances, stages the play for the masses. But before the CSC folks bring Macbeth to the Common, they’ll be taking him to court. Well, sort of. In conjunction with the Federalist Society — yes, the conservative/libertarian law-policy group — the CSC is presenting "Macbeth and the Insanity Defense," a semi-staged reading of the play featuring a rare Beacon Hill bi-partisan effort: the cast includes Lieutenant Governor Kerry Healey (Lady Macduff), Mass Appeals Court justice David Mills (Macbeth), and Federal District Court judge Nancy Gertner (Lady Macbeth), plus spot roles by House Speaker Thomas Finneran, Middlesex DA Martha Coakley, Mass Supreme Court justice Robert Cordy, and attorneys Harvey Silverglate, Jay Carney, and Leonard Lewin. The performance, next Thursday at the Shubert Theatre, will be followed by a panel discussion led by noted criminal-law expert and BU prof Randy E. Barnett.

It’s not the first time the CSC and the Federalists have used Shakespeare to discuss modern-day legal questions. Last year, as part of their ongoing collaborative "Shakespeare and the Law" series, a prescient program used Henry V to discuss international rules of warfare and to contrast the ideas of justified and unjustified military action. In looking at Macbeth through a legal lens, they’ll be examining several particularly contentious issues: whether the defendant was, from a modern perspective, insane; whether his actions fit the definition of premeditation or were the product of a "heat-obsessed brain"; and whether, as the crucial legal distinction has it, he lost the capacity of distinguishing right from wrong — that is, whether he might have a chance of acquittal.

Barnett, who admits to being a little rusty on his iambic pentameter, makes do with a succinct couplet: "If you’re competent to do the crime, you’re competent to do the time." And he’s vocal on his views about the mental-health system’s inability to diagnose or cure the insane. "The mental health system is not great at helping people who don’t want help. [Shakespeare suggests the same. "Canst thou not minister to a mind diseased?" demands Macbeth of his Lady’s physician. "Therein," replies the doc, "the patient must minister to himself."] Being deranged is a strong argument why someone should be segregated from the general public. And this program should highlight that dilemma, the dilemma between protecting the community and the refusal to punish people."

Shakespeare, says Wang Center resident director and CSC artistic director Steven Maler, was aware of the seductiveness of power and violence, of (in the Bard’s words) the "black and deep desires" present in all of us. "Evil exists," says Maler, who is directing the staged reading. "An underbelly of the world exists. It’s part of human nature." And, he says, the line dividing those who act upon their black desires from those who don’t is thin. "Clearly there are people in the world who do not have the capacity to evaluate what they’re doing." But as for Macbeth, Maler believes he is "capable of analyzing what he’s doing."

It may be that Macbeth is of better use for his celebrity value than for his potential as a test case. "Lawyers in their hearts are actors," says Maler. "There’s a certain theatricality to being Tom Finneran or Harvey Silverglate, and they bring that with them to the performance." If nothing else, Barnett concludes, "it’ll be fun to see lawyers talking Shakespeare talk."

"Macbeth and the Insanity Defense" takes place next Thursday, May 22, at 4 p.m. at the Shubert Theatre, 265 Tremont Street in the Theater District. Admission is free; call (617) 482-9393.

Issue Date: May 16 - 22, 2003
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