By Robert B. Mendillo and Michael Mendillo
The Daily Record Newswire
Four hundred years ago, Galileo Galilei wrote a book that laid the foundation for modern science — and also for his becoming a hero in the eyes of American judges.
In 1610, Galileo’s “Sidereus Nuncius” (“Starry Messenger”) revealed that the moon had mountains and depressions and that four moons orbited Jupiter. That was pretty good for a telescope not much better than a pair of today’s inexpensive binoculars — and very good indeed for a professor who easily could have spent his nights in Padua indoors with fine Italian food and wine.
Although there are cases mentioning stars, e.g., Uttecht v. Brown, 551 U.S. 1, 19 (2007) (defense counsel “thanked his lucky stars” when the prosecutor bumped a pro-death penalty juror), and messengers, e.g., City Council of Boston v. Mayor of Boston, 383 Mass. 716, 719 (1981) (mayor may remove “messengers connected with his office” without a hearing or cause), there are apparently no written opinions referring to starry messengers or to “Sidereus Nuncius” (an original edition of which can be seen at Harvard’s Houghton Library).
Yet, judges have cited Galileo’s 1633 trial before the Inquisition in their writings about four key areas of law: expert witnesses, the fairness of trials, the First Amendment and judicial recusals.
Galileo’s trial was not a direct consequence of “Sidereus Nuncius,” but rather to his publication 22 years later of “Dialogue on the Two Great World Systems” (1632).
It should be noted first that judges have erred in writing that Galileo was convicted of heresy. Galileo was tried on suspicion of heresy and found guilty of being vehemently suspected of heresy. That distinction literally saved Galileo’s life.
Galileo became persona non grata with the Catholic Church because, following Aristotle’s teachings, church dogma proclaimed that all heavenly bodies were perfect crystalline spheres moving in circular orbits around the Earth.
The rough and pock-mocked moon reported in “Sidereus Nuncius” violated that ideal, as did the observations that the new Jovian moons went around Jupiter and not the Earth.
What else might be “wrong” with Catholic Church teachings was a topic to be avoided. After all, did not Joshua’s biblical text state that the sun had been stopped to prolong a day of battle, clearly implying that the sun moved, not the Earth? Who was allowed to interpret scripture became a critical concern. The church did not want Galileo or his followers to get involved in that.
So, in 1616, after too many public discussions of his findings in “Sidereus Nuncius,” he was ordered not “to hold or defend” the Copernican sun-centered system. At least that is what his signed order from Cardinal Belarmine said. The papacy’s version of that order (un-signed and un-witnessed) said that “to hold or defend or teach in any way whatsoever” was forbidden.
Galileo’s trial in 1633 thus concerned teaching. Explaining the Copernican system, as he clearly did in the “Dialogue,” was teaching, so his trial was for disobeying the 1616 order.
Galileo was charged with vehement suspicion of heresy, to wit: “occasionally utter[ing] propositions that offend ... listeners,” or being one of “those who keep, write, read or give others to read books [that are] forbidden,” Finocchiaro, M., “The Galileo Affair” at 14-15 (1989) (quoting from “a standard Inquisition manual of the time”).
Not being charged with heresy, Galileo did not face burning at the stake, as did Giordano Bruno. In 1600, Bruno, who refused to recant his view that Copernicus was right and Aristotle was wrong, was declared “an impertinent, pertinacious, and obstinate heretic” and set ablaze in Rome’s Campo dei Fiori. See Rowland, I., “Giordano Bruno: Philosopher/Heretic” at 288 (2008) (quoting the official sentence).
Galileo was “only” sentenced and declared “vehemently suspected of heresy, namely of having held and believed a doctrine which is false and contrary to the divine and Holy Scripture: that the sun is the center of the world and does not move from east to west, and the earth moves and is not the center of the world ... .” See Finocchiaro, supra at 291 (quoting the official sentence).
Nonetheless, American judges have routinely stated that Galileo was convicted of heresy. For example, Leblanc-Steinberg v. Fletcher, 9 F. Supp. 2d 397, 405 n. 18 (S.D.N.Y. 1998) (Galileo “was convicted by the Roman Inquisition of heresy”); State v. O’Key, 899 P. 2d 663, 678 n. 21 (Oregon 1995) (Galileo “was convicted of heresy for asserting that the earth revolves around the sun”). Despite this lack of legal precision, judges have persuasively cited Galileo in four areas.
First, for the rule that expert testimony does not have to be generally accepted in a particular field to be admissible at trial:
“[O]therwise we would have had to reject Galileo and Newton in their times.” Grady v. Frito-Lay, Inc., 839 A. 2d 1038, 1052 (Pa. 2003) (Newman, J., concurring). Accord DiPetrillo v. Dow Chemical Co., 729 A. 2d 677, 689 (R.I. 1999) (“Under the [discredited generally-accepted] test, evidence that at one time supported novel theories would be inadmissible. Such as evidence presented by Galileo that the earth revolves around the sun ... .”).
Second, in ruling on a trial’s fairness: In Marfork Coal Co. v. Callaghan, 601 S.E. 2d 55, 68 (W.Va. 2004), a company argued that it was the victim of a biased hearing officer. The court disagreed, but its chief justice’s dissent invoked Galileo:
“[I]t is clear to me that Marfork faced nothing less than a kangaroo court. ... In my opinion, this case actually belongs in the annals of bad cases with unfair judges and bad results. It goes somewhere on the list of really bad trials, a few of which follow as examples. The trial of Susan B. Anthony for being a woman and voting, where Judge Ward Hunt barred her from testifying and directed a jury to find her guilty, which of course, they did. Or the trial of Galileo for heresy for correctly teaching that the sun, not the earth, was the center of the solar system and the earth and other planets merely revolved around it.” Id. at 68.
Third, in First Amendment decisions warning against suppressing perceived “heresies” of the times: “The suppression of the dissemination of ideas is the gravest of dangers. Nothing is to be barred from communication be it called treason or heresy. ... We must be ever vigilant that the voice we silence is not that of some present-day Galileo.” Rouse Philadelphia, Inc. v. Ad Hoc ‘78, 19 Pa. D. & C 3d 627, 631 (Pa. Com. P1. 1979).
Finally, one federal judge has invoked Galileo to extract himself from a case after being reversed on appeal.
In Parness v. Lieblich, 90 F.R.D. 178 (S.D.N.Y. 1981), the judge was reversed for ruling that a board of directors had not acted in the shareholders’ best interests. On remand, the plaintiffs moved to amend their complaint to raise new issues, and the defendants moved to dismiss it on several grounds.
Observing that “[w]e have an extremely complicated situation here,” id. at 182, the judge decided that “the wisest course” was to dismiss the case and allow plaintiffs to file a brand new case.
He then added a sentence that was offered as another benefit of his ruling, but one that would make Galileo frown from his tomb inside Florence’s Basilica di Santa Croce:
“Rather than running the risk of having this Court act like Galileo after the Inquisition (muttering that no matter what the court of appeals may have said, the board of directors of Treadway has not been acting in the best interest of the shareholders), it is desirable to have the matter before a new judge, whose assessment of the Second Circuit’s factual findings will not be obscured by his own personal knowledge of the facts.” Id.
In fact, Galileo was shocked by the severity of his sentence (life imprisonment commuted to house arrest) and left the room a frail and shattered man.
That was not an image deemed suitable for the Father of Modern Science, so a myth emerged that upon leaving the court he stamped his foot and audibly muttered: “Eppur si muove” (But still it moves).
There was no public muttering at the court — Galileo was too smart and too confused for such a dangerous action — but it remains a good story for even a judge to tell.
In this 400th anniversary year of Galileo’s discoveries, Jupiter is conveniently bright and bold in the night sky. A small telescope will reveal its four moons. And they remind us of the four areas of American law where judges have observed that Galileo was and remains both a star and a messenger.
Robert M. Mendillo is litigation manager at Harmon Law Offices, and Michael Mendillo is professor of astronomy at Boston University.
