CROSS-EXAMINATION HANDBOOK--PERSUASION, STRATEGIES, AND TECHNIQUES

The most successful book I ever had a hand in writing has to be Cross-Examination Handbook. It has done so well that our publisher wants us to keep it up-to-date with a second edition. The publisher asked, and we responded. We (my co-authors and I) have just finished writing the second edition, which takes note of recent case law and statutory law, and discusses some of the high-profile cases tried since the first edition.

In keeping with the custom of almost all trial advocacy books which deal with cross-examination, the first edition of our book contained the story of the Almanac Trial and Lincoln’s dramatic cross examination of Charles Allen.

When we were writing the first edition of Cross-Examination Handbook, I pointed out to my co-authors that there was some question about the accuracy of the story. I based my belief on the fact that I had read several variations of the story of Lincoln's dramatic cross-examination, and no two were exactly alike. Now, I know that no to witnesses ever tell the exact same story in exactly the same words. The part of the story, however, which differed from variation to variation was a part which should have been verbatim the same in each account—the transcript of the questions Lincoln asked on cross-examination. I also strongly suspected that any transcript of the cross would be fabricated. Court reporters don't type up transcripts of cases where the defendant is found not guilty.

Despite my misgivings, we decided to keep the story of Lincoln's cross in the first edition of Cross-Examination Handbook, but the issue helped to inspire me to investigate the issue and write Lincoln’s Most Famous Case.

I hadn't been researching long before I discovered that the story we told was one of three versions of Lincoln's performance in the trial. Version One, the story we told in Cross-Examination Handbook, actually finds its origin in The Graysons, a historical novel written by Edward Eggleston in the 1880's. Eggleston's book had Lincoln save an innocent man with a brilliant cross, but it was very different from Lincoln's actual cross. The other two versions originated as campaign rhetoric in Lincoln’s first run for the presidency. Version Two hardly mentions the cross, but portrays Lincoln as the consummate orator who exposes Allan’s perjury by using an almanac during final argument. Version Three paints Lincoln as a shyster who used a fake almanac to discredit a truthful witness. Given Lincoln’s great fame as the author of the Gettysburg Address, Version Two would seem to have the most prior probability. But Version Three, the shyster story, had such verisimilitude that one of Lincoln’s close friends, Ward Hill Lamon, incuded it in his Life of Lincoln.

My book, Lincoln’s Most Famous Case, presents a Version Four, which I believe to be the most accurate version. Instead of basing the story on a novel or campaign rhetoric, I based my reconstructed Version Four on a careful reading of the surviving letters and statements of the men and women who were actually involved in the trial itself. I determined that although Version One was inaccurate, it taught basically the lesson about trial advocacy and cross-examination as Version Four. The fourth version just wasn't as dramatic as the first.

Trying to figure out what happened in that long-ago case proved to be, at least for me, an engaging detective story. I discovered all sorts of interesting facts about Lincoln and about how cases were tried in antebellum Illinois, and I was able to correct a number of other misconceptions about the trial. If you like history and you like puzzles, you should like Lincoln’s Most Famous Case. I was well satisfied with the end product, but still I was not happy with the version of the story we told in Cross-Examination Handbook. It was inaccurate and needed to be corrected. 

I therefore was glad to learn that the publisher wanted to print a second edition of Cross-Examination Handbook. The request showed that we had done a good job writing the first edition, and it gave us an opportunity to correct the inaccuracies in our story of Lincoln’s cross. 

The second edition is at the printer’s as I write, and it comes out some time in 2015.

CONGRESSMAN LINCOLN ON SECESSION

Although I don’t plan to do any more writing about Abraham Lincoln in the foreseeable future, I continue to be fascinated by the man. My interest in Lincoln has prompted me to amass a large and growing library on the man. Because many of the books which interest me are out of print, I buy them used. The other day I got in some old books about Lincoln and as I was going through them, some newspaper clippings fell out.  I didn’t pay much attention to them at the time, so I don’t know which of the books they came from. Yesterday I got around to studying the clippings. The articles gave no indication of when they were published or by whom, but they appear to be very old. Upon examination, decided that the clippings had been cut from some American Socialist newspaper printed shortly before World War II, and they seem to have been published in an effort to paint Lincoln as a proto-Socialist who would have approved of a violent Socialist overthrow of capitalism in America.

One of the articles purported to be a reprint of a speech Congressman Lincoln made before the House of Representatives in 1848 condemning the War with Mexico. It’s not unusual that a President of the United States would condemn the war—in his autobiography Ulysses S. Grant, who served in the war with distinction, said it was one of the greatest injustices a stronger country could visit upon a weaker. What was unusual about the speech was something Lincoln supposedly said about disaffected citizens rising up and throwing off their government.  The remarks were so contrary to Lincoln’s position during the Civil War that I hardly credited the words as coming out of the future President’s mouth. I went to the Collected Works of Abraham Lincoln to verify that Lincoln actually spoke those words, and found that the article quoted him correctly. Here’s what he said:

Any people anywhere, being inclined and having the power, have the right to rise up, and shake off the existing government, and form a new one that suits them better. This is a most valuable—a most sacred right—a right, which we hope and believe, is to liberate the world. Nor is this right confined to cases in which the whole people of an existing government, may choose to exercise it. Any portion of such people that can, may revolutionize, and make their own, of so much of the territory as they inhabit. More than this, a majority of any portion of such people may revolutionize, putting down a minority, intermingled with, or near about them, who may oppose their movement. Such minority, was precisely the case, of the Tories of our own revolution. It is a quality of revolutions not to go by old lines, or old laws; but to break up both, and make new ones.

Collected Works of Abraham Lincoln, Volume 1, pp. 438, 439 (AnnArbor, Michigan: University of Michigan Digital Library Production Services, 2001)

Lincoln apparently had changed his mind by the time the Southern states began the process of trying to “rise up, and shake off the existing government, and form a new one that suit[ed] them better.” If he hadn't changed his mind, there might not be a United States today.

LINCOLN ON THE CIRCUIT

For my entire career as a trial lawyer, I practiced in the Third Judicial Circuit, which covers seven counties in North Central Florida. When the circuits were created in Florida, the state was a sparsely populated frontier-like state which was as wild and woolly as any state in the West of the 1800’s.  For a description of old-time Florida, you can’t do better than to read Patrick  D. Smith's novel A Land Remembered, which describes the free-range cattle industry in early Florida. (My ancestors on my mother’s side free-ranged cattle from Newberry and Olustee down into central Florida.) In such primitive conditions, with so few people scattered over such a large area, it was easier for courts to come to the people rather than for people to come to the court. Each county in a circuit had a fall and spring term of court which lasted one to two weeks. The terms were staggered so that the circuit judge could ride from one county to another in a circuit. Local legend has it that in the Third Circuit, Judge Hal Adams was still riding a mule from county to county as late as the 1950’s.

When I started practicing back in the 1970’s Florida still had terms of court, but there was too much business to hold court as was done in the old days. We held unofficial terms of court every seven weeks. Each week we would hold court in a different county, and on the eighth week we would go back to the first county on the list. This modified form of circuit riding was breaking down under the weight of growing population and had completely disappeared by the 1980’s. But it was fun while it lasted. Every week you were in a different county, and you tried cases one after another for a week. Sometimes you would try as many as four felony jury trials in one day. This gave me and my young colleagues a baptism of fire where you learned quickly or perished. I wouldn’t wish such an introduction to the practice of law on my worst enemy today.   

Can you imagine my surprise (and my pleasure) to discover that Abraham Lincoln’s trial practice was very similar to what I experienced in the 1970’s? He practiced in the Eighth Circuit of Illinois, which at one time encompassed 14 counties. The lawyers of the circuit would ride from county to county with the circuit judge for each term of court and would spend a week or two trying cases one right after another until it was time to go to the next county. They didn’t have cars, and the roads were not good, so when a lawyer embarked on his circuit, he wouldn’t return home until all the business was done in every court he visited. Lincoln was one of the few lawyers who visited every county in the circuit during both fall and spring terms, which meant that he was gone from home for approximately six months of every year.

The lawyers formed a brotherhood which, like Shakespeare’s lawyers, would “strive mightily [in court], but eat and drink as friends.” (The Taming of the Shrew, 1.2.280). Something else the lawyers did mightily was complain about conditions on the circuit—muddy roads, barely passable fords, bedbug infested hotels where they slept two or more to a bed, and food which was near-indigestible were just a few of the hardships faced by Illinois’s aspiring antebellum trial lawyers. Lincoln never complained. He even worked a reference to his being bitten by bedbugs (or maybe it was lice) into his cross-examination of a medical expert in a murder trial.

At the end of a long day in court, Circuit Judge David Davis would sometimes hold an “orgmathorical” court in his hotel room. Lawyers were charged with outlandish offenses and tried before the “orgmathorical” court, and when they were convicted Judge Davis would order that they pay a fine. Even Lincoln himself did not escape being tried before the orgmathorical court. Lincoln was notorious for charging modest fees for his services, and this tendency got the better of his colleagues. They brought him before the orgmathorical court on a charge of ruining their practice by charging such small fees. He was duly convicted and Judge Davis passed sentence. We have no record of whether Lincoln paid the fine, but we can be sure that he harbored no animosity for the conviction. He later appointed Judge Davis to the Supreme Court.

The orgmathorical court once tried a genuine wrongdoer. A man slipped into the women’s sleeping quarters and hid himself under one of the beds. The two ladies who were to occupy the bed that night discovered him and raised an outcry. The lawyers sprang to the rescue and captured the miscreant. Having captured the wrongdoer, they discussed what should be done with him and decided to try him before the orgmathorical court. Despite the fact that Lincoln served as his defense attorney the orgmathorical jury found him guilty, and Judge Davis ordered that he be taken into the back yard and whipped by the women whom he had offended.

Lincoln’s partner, William H. Herndon, would later write that Lincoln was never happier than when he was on the circuit trying cases. If I could avoid the bedbugs, the awful food, and the need for sleeping two to a bed, I think I would have enjoyed riding the Eighth Circuit with Lincoln and Davis.

ABRAHAM LINCOLN, PRACTICAL JOKER

It is said that Lincoln was never happier than when he was riding from one county to another on the Eighth Judicial Circuit of Illinois, trying whatever cases were brought to him and exasperating his colleagues with the small fees he charged. Lincoln loved a good joke and was quick to entertain his fellow lawyers with stories and practical jokes.

Ward Hill Lamon, whom Lincoln often associated to try cases on the circuit, was sometimes the brunt of the joke. Lamon went on to serve as a U.S. Marshal and as Lincoln's bodyguard during his presidency. Lamon was a huge, powerful man who knew how to handle himself in a scuffle, and had he not been off duty on the evening of Lincoln's assassination, things might have turned out quite differently. Lamon "wrote" a biography of his friend Lincoln, but he had the misfortune to hire a ghostwriter who was no fan of the slain president. Lamon's Life of Abraham Lincoln was a failure, and he was roundly criticized for the unkind things the ghostwriter said about Lincoln. In an effort to atone for his ghostwriter's skewering of Lincoln, Lamon wrote several more pieces of literature about Lincoln. Even after his death, his daughter published a book of Lamon's reminiscences about Lincoln.

In Recollections of Abraham Lincoln, 1847-1865 Lamon recalls a joke that Lincoln played on him while he (Lamon) was trying a case to a jury. We ought to be able to place great stock in the story because it came from Lamon himself and it tells of a rather embarrassing incident. We will let Lamon tell the story in his own words:

Mr. Lincoln was from the beginning of his circuit-riding the light and life of the court. The most trivial circumstance furnished a back-ground for his wit. The following incident, which illustrates his love of a joke, occurred in the early days of our acquaintance. I, being at the time on the infant side of twenty-one, took particular pleasure in athletic sports. One day when we were attending the circuit court which met at Bloomington, Illinois, I was wrestling near the court house with someone who had challenged me to a trial, and in the scuffle made a large rent in the rear of my trousers. Before I had time to make any change, I was called into court to take up a case. The evidence was finished. I, being the Prosecuting Attorney at the time, got up to address the jury. Having on a somewhat short coat, my misfortune was rather apparent. One of the lawyers, for a joke, started a subscription paper which was passed from one member of the bar to another as they sat by a long table fronting the bench, to buy a pair of pantaloons for Lamon, — "he being," the paper said, "a poor but worthy young man." Several put down their names with some ludicrous subscription, and finally the paper was laid by some one in front of Mr. Lincoln, he being engaged in writing at the time. He quietly glanced over the paper, and, immediately taking up his pen, wrote after his name, "I can contribute nothing to the end in view."

It seems that Lamon was a good enough story teller to have been able to dispense with a ghostwriter for his Life of Lincoln. We can be sure he came to regret not having written the book himself.

THE TRAILOR MURDER CASE

In addition to being a successful trial lawyer, Lincoln had a gift for writing. Duff Armstrong wasn't the only person he defended on a murder charge. Although he never talked about the Armstrong case, he once wrote an account of one of his early murder cases, a mysterious affair which never had a satisfactory resolution. He wrote the article anonymously for publication in a newspaper called the Quincy Whig. The paper published Lincoln's story with this preface:

 

``The following narrative has been handed us for publication by a member of the bar. There is no doubt of the truth of every fact stated; and the whole affair is of so extraordinary a character as to entitle it to publication, and commend it to the attention of those at present engaged in discussing reforms in criminal jurisprudence, and the abolition of capital punishment. ED. WHIG.''

It is hoped that Lincoln earned some money from the publication of his story. His clients never paid him for representing them and he wound up filing an unsuccessful lawsuit to recover his fee.

Here, then, in his own words, is the story of what he called a

 

REMARKABLE CASE OF ARREST FOR MURDER. 

In the year 1841,   there resided, at different points in the State of Illinois, three brothers by the name of Trailor. Their Christian names were William, Henry and Archibald. Archibald resided at Springfield, then as now the Seat of Government of the State. He was a sober, retiring and industrious man, of about thirty years of age; a carpenter by trade, and a bachelor, boarding with his partner in business---a Mr. Myers. Henry, a year or two older, was a man of like retiring and industrious habits; had a family and resided with it on a farm at Clary's Grove, about twenty miles distant from Springfield in a North-westerly direction. William, still older, and with similar habits, resided on a farm in Warren county, distant from Springfield something more than a hundred miles in the same North-westerly direction. He was a widower, with several children. In the neighborhood of William's residence, there was, and had been for several years, a man by the name of Fisher, who was somewhat above the age of fifty; had no family, and no settled home; but who boarded and lodged a while here, and a while there, with the persons for whom he did little jobs of work. His habits were remarkably economical, so that an impression got about that he had accumulated a considerable amount of money.

In the latter part of May in the year mentioned, William formed the purpose of visiting his brothers at Clary's Grove, and Springfield; and Fisher, at the time having his temporary residence at his house, resolved to accompany him. They set out together in a buggy with a single horse. On Sunday Evening they reached Henry's residence, and staid overnight. On Monday Morning, being the first Monday of June, they started on to Springfield, Henry accompanying them on horseback. They reached town about noon, met Archibald, went with him to his boarding house, and there took up their lodgings for the time they should remain. After dinner, the three Trailors and Fisher left the boarding house in company, for the avowed purpose of spending the evening together in looking about the town. At supper, the Trailors had all returned, but Fisher was missing, and some inquiry was made about him. After supper, the Trailors went out professedly in search of him. One by one they returned, the last coming in after late tea time, and each stating that he had been unable to discover anything of Fisher. The next day, both before and after breakfast, they went professedly in search again, and returned at noon, still unsuccessful.

Dinner again being had, William and Henry expressed a determination to give up the search and start for their homes. This was remonstrated against by some of the boarders about the house, on the ground that Fisher was somewhere in the vicinity, and would be left without any conveyance, as he and William had come in the same buggy. The remonstrance was disregarded, and they departed for their homes respectively. Up to this time, the knowledge of Fisher's mysterious disappearance, had spread very little beyond the few boarders at Myers', and excited no considerable interest.

After the lapse of three or four days, Henry returned to Springfield, for the ostensible purpose of making further search for Fisher. Procuring some of the boarders, he, together with them and Archibald, spent another day in ineffectual search, when it was again abandoned, and he returned home. No general interest was yet excited.

On the Friday, week after Fisher's disappearance, the Postmaster at Springfield received a letter from the Postmaster nearest William's residence in Warren county, stating that William had returned home without Fisher, and was saying, rather boastfully, that Fisher was dead, and had willed him his money, and that he had got about fifteen hundred dollars by it. The letter further stated that William's story and conduct seemed strange; and desired the Postmaster at Springfield to ascertain and write what was the truth in the matter. The Postmaster at Springfield made the letter public, and at once, excitement became universal and intense.

Springfield, at that time had a population of about 3500, with a city organization. The Attorney General of the State resided there. A purpose was forthwith formed to ferret out the mystery, in putting which into execution, the Mayor of the city, and the Attorney General took the lead. To make search for, and, if possible, find the body of the man supposed to be murdered, was resolved on as the first step. In pursuance of this, men were formed into large parties, and marched abreast, in all directions, so as to let no inch of ground in the vicinity, remain unsearched. Examinations were made of cellars, wells, and pits of all descriptions, where it was thought possible the body might be concealed. All the fresh, or tolerably fresh graves at the grave-yard were pried into, and dead horses and dead dogs were disinterred, where, in some instances, they had been buried by their partial masters.

This search, as has appeared, commenced on Friday. It continued until Saturday afternoon without success, when it was determined to dispatch officers to arrest William and Henry at their residences respectively. The officers started on Sunday Morning, meanwhile, the search for the body was continued, and rumors got afloat of the Trailors having passed, at different times and places, several gold pieces, which were readily supposed to have belonged to Fisher. On Monday, the officers sent for Henry, having arrested him, arrived with him. The Mayor and Attorney General took charge of him, and set their wits to work to elicit a discovery from him. He denied, and denied, and persisted in denying.

They still plied him in every conceivable way, till Wednesday, when, protesting his own innocence, he stated that his brothers, William and Archibald had murdered Fisher; that they had killed him, without his (Henry's) knowledge at the time, and made a temporary concealment of his body; that immediately preceding his and William's departure from Springfield for home, on Tuesday, the day after Fisher's disappearance, William and Archibald communicated the fact to him, and engaged his assistance in making a permanent concealment of the body; that at the time he and William left professedly for home, they did not take the road directly, but meandering their way through the streets, entered the woods at the North West of the city, two or three hundred yards to the right of where the road where they should have travelled entered them; that penetrating the woods some few hundred yards, they halted and Archibald came a somewhat different route, on foot, and joined them; that William and Archibald then stationed him (Henry) on an old and disused road that ran nearby, as a sentinel, to give warning of the approach of any intruder; that William and Archibald then removed the buggy to the edge of a dense brush thicket, about forty yards distant from his (Henry's) position, where, leaving the buggy, they entered the thicket, and in a few minutes returned with the body and placed it in the buggy; that from his station, he could and did distinctly see that the object placed in the buggy was a dead man, of the general appearance and size of Fisher; that William and Archibald then moved off with the buggy in the direction of Hickox's mill pond, and after an absence of half an hour returned, saying they had put him in a safe place; that Archibald then left for town, and he and William found their way to the road, and made for their homes.

At this disclosure, all lingering credulity was broken down, and excitement rose to an almost inconceivable height. Up to this time, the well-known character of Archibald had repelled and put down all suspicions as to him. Till then, those who were ready to swear that a murder had been committed, were almost as confident that Archibald had had no part in it. But now, he was seized and thrown into jail; and, indeed, his personal security rendered it by no means objectionable to him.

And now came the search for the brush thicket, and the search of the mill pond. The thicket was found, and the buggy tracks at the point indicated. At a point within the thicket the signs of a struggle were discovered, and a trail from thence to the buggy track was traced. In attempting to follow the track of the buggy from the thicket, it was found to proceed in the direction of the mill pond, but could not be traced all the way. At the pond, however, it was found that a buggy had been backed down to, and partially into the water's edge. Search was now to be made in the pond; and it was made in every imaginable way. Hundreds and hundreds were engaged in raking, fishing, and draining. After much fruitless effort in this way, on Thursday Morning, the mill dam was cut down, and the water of the pond partially drawn off, and the same processes of search again gone through with.

About noon of this day, the officer sent for William, returned having him in custody; and a man calling himself Dr. Gilmore, came in company with them. It seems that the officer arrested William at his own house early in the day on Tuesday, and started to Springfield with him; that after dark awhile, they reached Lewiston in Fulton county, where they stopped for the night; that late in the night this Dr. Gilmore arrived, stating that Fisher was alive at his house; and that he had followed on to give the information, so that William might be released without further trouble; that the officer, distrusting Dr. Gilmore, refused to release William, but brought him on to Springfield, and the Dr. accompanied them.

On reaching Springfield, the Dr. re-asserted that Fisher was alive, and at his house. At this the multitude for a time, were utterly confounded. Gilmore's story was communicated to Henry Trailor, who, without faltering, reaffirmed his own story about Fisher's murder. Henry's adherence to his own story was communicated to the crowd, and at once the idea started, and became nearly, if not quite universal that Gilmore was a confederate of the Trailors, and had invented the tale he was telling, to secure their release and escape. Excitement was again at its zenith.

About 3 o'clock the same evening, Myers, Archibald's partner, started with a two horse carriage, for the purpose of ascertaining whether Fisher was alive, as stated by Gilmore, and if so, of bringing him back to Springfield with him. On Friday a legal examination was gone into before two Justices, on the charge of murder against William and Archibald. Henry was introduced as a witness by the prosecution, and on oath, re-affirmed his statements, as heretofore detailed; and, at the end of which, he bore a thorough and rigid cross-examination without faltering or exposure.

The prosecution also proved by a respectable lady, that on the Monday evening of Fisher's disappearance, she saw Archibald whom she well knew, and another man whom she did not then know, but whom she believed at the time of testifying to be William, (then present;) and still another, answering the description of Fisher, all enter the timber at the North West of town, (the point indicated by Henry,) and after one or two hours, saw William and Archibald return without Fisher.

Several other witnesses testified, that on Tuesday, at the time William and Henry professedly gave up the search for Fisher's body and started for home, they did not take the road directly, but did go into the woods as stated by Henry. By others also, it was proved, that since Fisher's disappearance, William and Archibald had passed rather an unusual number of gold pieces. The statements heretofore made about the thicket, the signs of a struggle, the buggy tracks, &c., were fully proven by numerous witnesses. At this the prosecution rested.

Dr. Gilmore was then introduced by the defendants. He stated that he resided in Warren county about seven miles distant from William's residence; that on the morning of William's arrest, he was out from home and heard of the arrest, and of its being on a charge of the murder of Fisher; that on returning to his own house, he found Fisher there; that Fisher was in very feeble health, and could give no rational account as to where he had been during his absence; that he (Gilmore) then started in pursuit of the officer as before stated, and that he should have taken Fisher with him only that the state of his health did not permit. Gilmore also stated that he had known Fisher for several years, and that he had understood he was subject to temporary derangement of mind, owing to an injury about his head received in early life.

There was about Dr. Gilmore so much of the air and manner of truth, that his statement prevailed in the minds of the audience and of the court, and the Trailors were discharged; although they attempted no explanation of the circumstances proven by the other witnesses. On the next Monday, Myers arrived in Springfield, bringing with him the now famed Fisher, in full life and proper person. Thus ended this strange affair; and while it is readily conceived that a writer of novels could bring a story to a more perfect climax, it may well be doubted, whether a stranger affair ever really occurred.

Much of the matter remains in mystery to this day. The going into the woods with Fisher, and returning without him, by the Trailors; their going into the woods at the same place the next day, after they professed to have given up the search; the signs of a struggle in the thicket, the buggy tracks at the edge of it; and the location of the thicket and the signs about it, corresponding precisely with Henry's story, are circumstances that have never been explained.

William and Archibald have both died since---William in less than a year, and Archibald in about two years after the supposed murder. Henry is still living, but never speaks of the subject. It is not the object of the writer of this, to enter into the many curious speculations that might be indulged upon the facts of this narrative; yet he can scarcely forbear a remark upon what would, almost certainly have been the fate of William and Archibald, had Fisher not been found alive. It seems he had wandered away in mental derangement, and, had he died in this condition, and his body been found in the vicinity, it is difficult to conceive what could have saved the Trailors from the consequence of having murdered him. Or, if he had died, and his body never found, the case against them, would have been quite as bad, for, although it is a principle of law that a conviction for murder shall not be had, unless the body of the deceased be discovered, it is to be remembered, that Henry testified he saw Fisher's dead body.

Lincoln, Abraham. The Collected Works of Abraham Lincoln. Volume1. Roy Baisler, ed. New Brunswick, NJ: 1953, 371-376

HOW A WAGON HAMMER WAS USED

I got an inquiry from a worker at the Hammer Museum in Haines, Alaska, saying that they had a number of wagon hammers in their collection, but she was a little fuzzy about how a wagon hammer was used. I directed her to a website which had an illustration showing how the wagon hammer connected the doubletree to the wagon's tongue. Anyone else who might be interested can find the web page HERE.

Although it could certainly be used to drive a nail, a wagon hammer wasn't really a hammer. It was a fastening pin which had a hammer shaped head. It worked like this:

The hammer head was on the pin to keep it from falling out. Over time the wagon hammer evolved into a wrench like configuration. In that incarnation the wagon wrench was a dual purpose implement. Its primary purpose was to fasten the doubletree to the tongue, but it was also used to tighten nuts on the wagon assembly. And if Nelson Watkins, a witness at the Almanac Trial, can be believed, it made a pretty good murder weapon, too.

LINCOLN AS A TRIAL LAWYER

Today many trial lawyers quake in their boots at the prospect of actually having to try a case to a jury. I have seen a lot of so-called trial lawyers go for years without ever getting before a jury. Abraham Lincoln was not such a lawyer. Let’s follow him through a manslaughter case that he tried in 1845 to see what I mean.

On February 25, 1845, James Dorman went to Ellen Cox’s home and tried to break in. Cox, who was pregnant, resisted his attempt and he finally left without getting into her house. Cox became ill as a result of her struggle with Dorman, sickened, and finally died on March 2, 1845. Unfortunately, we know almost nothing else about the facts of this case.

On March 26, 1845, James McDougall, the Attorney General for the state of Illinois, indicted Dorman for manslaughter. On the very day of Dorman’s indictment, Abraham Lincoln appeared for him and moved for a change of venue. After hearing argument on the motion, the judge granted it and changed venue to Menard County.

Nowadays that would be about all you would expect of a lawyer for a day in court, but Lincoln was not afraid of work. Immediately after getting the change of venue for his client, Lincoln tried a larceny case, People v. Sherwood Owens. The jury found Owens not guilty, and Lincoln received a $25 fee. The day had grown long by this time, and the trial of another of Lincoln’s cases was put off until the next day. On March 27, Lincoln defended Ivy White on another charge of larceny, and the jury again acquitted. He got a $30 fee for this case.

On June 11, 1845, James Dorman’s manslaughter case came on for trial before the Menard County Circuit Court, and Lincoln was again able to achieve a jury verdict of not guilty. Lincoln earned $500 for his successful defense of Dorman.

As soon as the Dorman case was over, Lincoln began the trial of a civil case. James Busher had accused Robert Scott of stealing $1.30 worth of tools and the case had been dismissed. Scott sued Busher for malicious prosecution, and Lincoln defended Busher.

While Lincoln was busy trying Scott v. Busher, the state’s attorney was indicting another client of Lincoln’s, Marvin Pond, for the crime of harboring a fugitive slave. While the jury was out deliberating on its verdict in the Busher case, the state’s attorney arraigned Pond, and Lincoln entered a plea of not guilty on his behalf. When the jury returned with its verdict in the Busher case, Lincoln’s string of wins was snapped. They found Busher guilty and awarded Scott $275 in damages.

Lincoln later achieved some success in his defense of Busher. He moved for and obtained a new trial, and the case settled. Lincoln earned $20. The Pond case finally came up for trial in November of 1845, and Lincoln again obtained a jury verdict of not guilty. He charged Pond $5 attorney’s fees.

As you can see, Lincoln was not afraid to try a case, and he tried cases in rapid succession. He also seems to have had a great deal of success in persuading juries to acquit his clients. Anyone charged with a crime in Illinois should have been glad to have Lincoln take his case.

LINCOLN'S FIRST MURDER CASE

According to conventional wisdom, Abraham Lincoln was not a very good criminal defense attorney. They say he didn’t take many cases, and of those cases he “lost” a lot of murder cases. Most of his “losses” came when his client was convicted of the lesser offense of manslaughter. At that time the maximum penalty for manslaughter was eight years and the minimum penalty for murder was hanging. You decide whether he “lost” those cases where his clients escaped the gallows.

The reason Lincoln didn’t try more criminal cases is easy to determine. Most crimes are committed by those who are unable to afford a lawyer, that’s why we have a public defender system today. Lincoln practiced law to make a living, and he seldom took non-paying cases.

Based on my research, I think Lincoln was a very good criminal defense attorney, and he showed his talent early in his career. He had not been practicing law for a year when he became associated in a murder case against a politician by the name of Henry B. Truett. He was not lead counsel in the case (you wouldn’t expect a rookie to be lead counsel in a murder case), but he played a pivotal role in the defense of the case. Here’s how it happened.

If you think politics is rough in this day and age, you should have seen antebellum Illinois. Truett had just been appointed to public office and some of his enemies got together a petition to have him removed. Truett thought he knew who wrote the petition, and he wasn’t going to stand for it. When he found the offender sitting in the lobby of a hotel reading a newspaper, he left the lobby and got a handgun. He returned to the lobby, cursed the offender, and pulled his handgun. The victim picked up a chair to use as a shield and Truett shot him in the gut. The victim languished for several days before giving a dying declaration and then expiring. The only question in the public mind was “When is the hanging going to be?”

Lincoln’s senior partner and mentor, Stephen T. Logan, was lead counsel and did most of the heavy lifting, but when it came time to give the final argument, Logan asked Lincoln to deliver it. There are a lot of lawyers who swear by final argument as the most important part of the trial, and here was Logan turning that important phase of the trial over to a young lawyer who had never tried a murder case. I don’t agree that the final argument is most important part of the case, but as things stood in the Truett case, it was supremely important.

Logan would later say that Lincoln gave an excellent final argument. If you are inclined to look at the results before you judge the quality of a performance, you will have to give Lincoln an A+. The jury acquitted. The citizenry was mystified as to how a jury could possibly acquit. Truett lost his appointment, and ever after lived under a cloud of suspicion that he got away with murder.

 

Oh, by the way, Lincoln's opponent in his first murder case happened to be a lawyer by the name of Stephen A. Douglas.

 

 

 

LINCOLN'S THIRD MURDER CASE

When Lincoln was still a young lawyer he defended a man named Spencer Turner on a charge of murder in DeWitt County, Illinois. Oddly enough, Lincoln's co-counsel on that case was Stephen A. Douglas. Douglas insisted that he be paid in cash. According to legend, Turner gave Lincoln a worthless horse in payment for attorney's fees. What actually happened is a little less colorful. Lincoln took a promissory note for $200.00.

Turner was acquitted in a speedy trial. (He was indicted in April of 1840 and tried in May of 1840). When Lincoln came to collect on the promissory note, he ran into problems. Turner, who was 20 at the time of the trial, claimed that since he was a "child," he could not legally enter into a contract, therefore the promissory note was null and void and unenforceable. This did not sit well with Lincoln. He sued.

Lincoln filed a complaint against Turner in DeWitt County Circuit Court in 1841, and the suit dragged on for the next six years with numerous court hearings. Lincoln finally got a judgment against his former client in 1847 and had the sheriff levy execution on some land owned by Turner. All of which goes to show that if you were Abraham Lincoln's client, you didn't want to stiff him for his legal fees. He would be tenacious in his attempts to collect.

PUBLICATION NEARS

The printing is done on Lincoln's Most Famous Case. I received my complimentary copies today, and the books will be in the hands of the bookstores on the 30th. It was well produced, and I am quite satisfied with it. In case you're interested in the substance of the book, here is an annotated table of contents.

Chapter 1: Murder at a Whiskey Camp -- States the facts of the murder of Preston Metzker in the light most favorable to the prosecution.

Chapter 2: Lincoln the Cross-Examiner -- Retells the mythic story of how Lincoln won the Almanac Trial with a brilliant cross-examination which utterly destroyed the witness.

Chapter 3: Lincoln the Orator -- Retells the mythic story of how Lincoln snatched victory from the jaws of defeat in the Almanac Trial by shredding the prosecution case with a masterful final argument.

Chapter 4: Lincoln the Trickster -- Retells the unflattering story of how Lincoln perverted justice in the Almanac Trial by use of a forged almanac.

Of course, the rest of the book is devoted to sorting out which, if any, of these three stories is true.

Chapter 5: The Hagiography of the Trial -- Traces the telling and retelling of the story of the Almanac Trial by biographers seeking to turn Lincoln into a cardboard saint.

Chapter 6: The Historiography of the Trial -- Traces the critical analysis of the story of the Almanac Trial by more critical biographers.

Chapter 7: Lincoln and the Clary's Grove Boys -- Tells the story of how Lincoln started on his pathway to the presidency by contesting a wrestling match.

Chapter 8: The Camp Meeting -- Describes the camp meeting outside which the murder occurred and gives a thumbnail sketch of the history of camp meetings during the nineteenth century.

Chapter 9: The Prosecution -- Traces the course of the prosecution from arrest up to the commencement of the trial.

Chapter 10: The Trial Begins -- Describes how Lincoln became involved in the trial and begins to reconstruct the story of the trial itself.

Chapter 11: The Famous Cross-Examination -- Examines the story of the brilliant cross-examination in detail and decides whether it actually happened.

Chapter 12: The Misplaced Moon -- Examines the story of the forged almanac and determines how Lincoln actually used the almanac.

Chapter 13: Winning the Almanac Trial -- Analyzes how the acquittal was actually obtained and examines additional accusations of unethical conduct against Lincoln.

Chapter 14: Was Armstrong Guilty? -- Decides whether Lincoln freed a murderer and whether it really makes any difference to his legacy as a trial lawyer.

Appendix A: The Statements of the Major Participants -- Reproduces the letters, statements, and interviews of the key players in the trial so that the reader may make up his or her own mind about the facts of the trial.

Appendix B: Selected Documents from the Armstrong Court File -- Transcribes the more important  documents from the Almanac Trial court file and illustrates the course of the prosecution.

Appendix C: The Oral History of the Armstrongs -- Examines the statements of members of the Armstrong family and shows how the family's oral history of the trial differs from the historical record.

LINCOLN THE POET

In previous posts we’ve looked at Lincoln as a sailor, a wrestler, an inventor, and a strongman. In this post we’ll look at another aspect of his personality—poet. Anyone who ever spent much time putting words together has tried their hand at poetry, and Lincoln was no exception. In 1846 he wrote a poem which he titled “Bear Hunt.” The poem would never have been considered great literature, but by my lights it was pretty good. Unlike a lot of stuff that gets passed off as poetry, “Bear Hunt” rhymed and had a relatively consistent meter. The poem’s rhyme scheme and meter is helped if you mispronounce some of the words, but who knows, perhaps that was the way they pronounced those words in antebellum Illinois.

 Lincoln’s spelling of many words is nonstandard, but I think we can overlook that shortcoming. He was self-educated and spell check wouldn’t be available for another century and a half. Only one word should cause any real problems with interpretation—“fice.” The word has gone out of common usage since Lincoln wrote, but any of Lincoln’s contemporaries would have recognized a “fice” as a feisty mongrel dog.

 People who come from a rural background and who have done some hunting with dogs will be best able to appreciate the poem. I thoroughly enjoyed it. Perhaps you will too.

 

A wild-bear chace, didst never see?

Then hast thou lived in vain.

Thy richest bump of glorious glee,

Lies desert in thy brain.

When first my father settled here,

'Twas then the frontier line:

The panther's scream, filled night with fear

And bears preyed on the swine.

But wo[e] for Bruin's short lived fun,

When rose the squealing cry;

Now man and horse, with dog and gun,

For vengeance, at him fly.

A sound of danger strikes his ear;

He gives the breeze a snuff:

Away he bounds, with little fear,

And seeks the tangled rough.

On press his foes, and reach the ground,

Where's left his half munched meal;

The dogs, in circles, scent around,

And find his fresh made trail.

With instant cry, away they dash,

And men as fast pursue;

O'er logs they leap, through water splash,

And shout the brisk halloo.

Now to elude the eager pack,

Bear shuns the open ground;

Th[r]ough matted vines, he shapes his track

And runs it, round and round.

The tall fleet cur, with deep-mouthed voice,

Now speeds him, as the wind;

While half-grown pup, and short-legged fice,

Are yelping far behind.

And fresh recruits are dropping in

To join the merry corps:

With yelp and yell,---a mingled din---

The woods are in a roar.

And round, and round the chace now goes,

The world's alive with fun;

Nick Carter's horse, his rider throws,

And more, Hill drops his gun.

Now sorely pressed, bear glances back,

And lolls his tired tongue;

When as, to force him from his track,

An ambush on him sprung.

Across the glade he sweeps for flight,

And fully is in view.

The dogs, new-fired, by the sight,

Their cry, and speed, renew.

The foremost ones, now reach his rear,

He turns, they dash away;

And circling now, the wrathful bear,

They have him full at bay.

At top of speed, the horse-men come,

All screaming in a row.

``Whoop! Take him Tiger. Seize him Drum.''

Bang,---bang---the rifles go.

And furious now, the dogs he tears,

And crushes in his ire.

Wheels right and left, and upward rears,

With eyes of burning fire.

But leaden death is at his heart,

Vain all the strength he plies.

And, spouting blood from every part,

He reels, and sinks, and dies.

And now a dinsome clamor rose,

'Bout who should have his skin;

Who first draws blood, each hunter knows,

This prize must always win.

But who did this, and how to trace

What's true from what's a lie,

Like lawyers, in a murder case

They stoutly argufy.

Aforesaid fice, of blustering mood,

Behind, and quite forgot,

Just now emerging from the wood,

Arrives upon the spot.

With grinning teeth, and up-turned hair---

Brim full of spunk and wrath,

He growls, and seizes on dead bear,

And shakes for life and death.

And swells as if his skin would tear,

And growls and shakes again;

And swears, as plain as dog can swear,

That he has won the skin.

Conceited whelp! we laugh at thee---

Nor mind, that not a few

Of pompous, two-legged dogs there be,

Conceited quite as you.

 

A RETIRED PROSECUTOR'S RANDOM THOUGHTS: ABRAHAM LINCOLN’S MOST FAMOUS CASE—WHY HE CHARGED ...

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A RETIRED PROSECUTOR'S RANDOM THOUGHTS: RESEARCHING THE ALMANAC TRIAL: DUFF ARMSTRONG'S GR...: It was Sunday, and most places were closed, so I decided to try to find the scene of the killing which resulted in Duff Armstrong's pros...

LINCOLN'S JURY SELECTION STRATEGY

One of the enduring legends of Lincoln’s Almanac Trial (beyond his use of the almanac) is the story of how Lincoln intentionally chose a jury of young men because he figured that young male jurors could empathize with his client, the young man who stood trial for murder stemming from a drunken brawl at a whiskey camp. In Lincoln’s Most Famous Case I argue that the age of the jurors was more a product of chance than of careful planning on Lincoln’s part.

I won’t recapitulate the reasoning which led me to this conclusion, but I would like to discuss one more factor I didn't know about when I wrote the book. A little over a year after he litigated the Almanac Trial, Lincoln took on one final murder case. In his last murder case Lincoln stepped in to defend the grandson of one of his fiercest political adversaries, Peter Cartwright, the only man to ever defeat him in a popular vote (Douglas lost the popular vote but was elected to the Senate by the Illinois legislature).

The case was People of Illinois versus Peachy Quinn Harrison. Harrison and another young man, in addition to being political enemies, were apparently rivals for the affection of a young lady. They almost came to blows at a Fourth of July picnic, and afterward exchanged threats and counter threats. Greek Crafton threatened to “whip” Harrison, and Harrison threatened to shoot or kill Crafton if Crafton laid a hand on him.

They came to blows in a drugstore one Sunday morning in August of 1859. Crafton apparently was the aggressor, with Harrison saying he did not want to fight. Crafton grabbed Harrison, and in the ensuing scuffle Crafton suffered a severe stab wound. Harrison fled the scene and it was several days before officers could get him arrested. In the interim Greek Crafton died of his wounds. The Sangamon County Grand Jury indicted Harrison for the murder of Crafton, and the trial commenced on August 31, 1859. They believed in speedy trials in those days.

Since both men came from prominent families, it was anticipated that jury selection would be difficult. Instead of the 24 potential jurors normally summoned for a week of jury duty, they summoned 100. Jury selection took a full day, and most of the panel was examined before they could settle on twelve jurors to hear the case.

Here’s my point. The Almanac Trial involved a brawl between two young men. The Harrison case involved a brawl between two young men. It would seem that the same type of juror would be wanted for both cases. The Almanac Trial jury had an average age of 28, and the Harrison jury an average age of 40. This fact adds weight to the other considerations which led me to believe that the age of the potential jurors was not a controlling consideration in Almanac Trial

NORMAN ROCKWELL AND ABRAHAM LINCOLN

Upstairs over our garage we have a bonus room. It is long and narrow with a low ceiling, and when I first saw it, I thought that it would make an excellent library. The next few months after we moved in, I spend a lot of time in the garage making and staining bookshelves. Lane was afraid that once I got the shelves loaded with books, the garage ceiling would cave in. I assured her that I would securely fasten each bookshelf to the wall, so that its weight would be borne by both floor and wall. Over the years after my first flurry of making bookshelves, I have from time to time built more shelves and installed them in the library until there is hardly a square foot of wall space which does not contain a bookshelf loaded with books.

The book situation makes it difficult to find wall space to hang pictures. A few years back, when I started working on Lincoln's Most Famous Case, I decided that I wanted a print of the most famous artwork depicting Lincoln's most famous case. You can probably tell from the title of this post that the picture is a painting by Norman Rockwell. In the painting Lincoln stands at counsel table tall and straight in his white suit. One of his hands is made into a fist, and it rests on a law book lying on counsel table. In his other hand he holds the almanac, open to the page which he will use to destroy the testimony of the state's star witness. He stares resolutely at the witness sitting offstage in the witness stand, and he appears to be preparing to spring his trap. In the background sits his forlorn client, manacled hands clasped in prayer and head bowed. Since the painting is copyrighted, I'm not going to reproduce it here. If you'd like to see (or buy) a copy of the painting, you can see it at the Norman Rockwell Museum Store  under the title Lincoln for the Defense.

When I got the picture, I realized that there was really not a good place to hang it in the office. I put it away, still encased in the mailing tube, and eventually forgot that I had it. I didn't forget the picture, though. I wanted to use it as an illustration for Lincoln's Most Famous Case, but the royalty far exceeded my budget. The book is an academic text, not expected to hit anyone's bestseller list, and while I don't expect to get rich from the book I don't want to go broke on it, either.

The other day I stumbled across my print of the picture and determined to get it framed. If I couldn't figure out a good place for it at home, I could hang it in the office. The framer called this afternoon, and I went to inspect it. I had initially planned to simply put a cheap frame around it with no matting, but my better judgment prevailed and I had it done nicely. I think the picture turned out well.

LINCOLN'S CAMPAIGN BIOGRAPHIES

When I wrote Lincoln’s Most Famous Case, I used three campaign biographies as references--the works of Barrett, Bartlett, and Howells. I also had access to the brief autobiography Lincoln wrote for the use of his campaign biographers. I thought I had covered all the bases on campaign biographies, but I just recently discovered that I missed at least seventeen more. Amazon is taking pre-orders for a book by Thomas Horrocks titled Lincoln’s Campaign Biographies, and it says that over twenty such biographies were written.  This sent me scurrying to Google Books and the Internet Archive to try to find some of those seventeen or more campaign biographies. I succeeded in finding one—a pamphlet put out by the Chicago Tribune under the byline of John Locke Scripps. Only 32 pages long, the Tribune printed bushels of these pamphlets to be passed out by campaigners. After Lincoln’s death the pamphlet was reprinted in an annotated format at least twice, once by his daughter Grace Locke Scripps Dyche, and the second printed by Edward J. Jacob.

First Page of the Chicago Tribune Campaign Biography

Thought to be Ghost-Written by Lincoln

What is notable about this pamphlet is the contention that Lincoln actually ghost-wrote the piece. If he did, it is interesting that he never mentioned his wrestling match with Jack Armstrong or his defense of Duff Armstrong. Both of these incidents appear insignificant enough to omit from a Lincoln biography, and many biographers do indeed omit the stories. In my book I make a case for the propositions that (1) the wrestling match was a turning point in Lincoln’s life, and (2) the story of Lincoln’s Almanac Trial became a political football during his 1860 campaign for president. I pre-ordered Horrocks’ book, and I am interested to see whether and how the other campaign biographies treated these two incidents.