Sunday, June 14, 2015


Back in the 1950’s cartoonist Virgil Partch drew a character named Big George. Big George appeared in a syndicated comic strip and also in the pages of True: The Man’s Magazine. My fondest memory of Big George is a cartoon which depicts him standing arms akimbo and loudly announcing “I’m a big enough man to admit when I’m wrong, and I’ll do so if I ever am.”

I learned just the other day I learned that I might have been wrong about something I said in Lincoln’s Most Famous Case. I said that there was no speedy trial statute in antebellum Illinois. Then the other day I ran across a reference to the case of People v. Bantzhouse, which said Lincoln had gotten a murder case dismissed for violation the defendant’s right to a speedy trial. Strangely, the author did not cite a source for this proposition. I consulted a number of books on Lincoln and found many of them making the same claim—that Lincoln got Bantzhouse’s case dismissed for violation of the speedy trial rule. None of them cited a source for the claim.

Determined to find out the authority for the claim, I looked to the Bantzhouse file on the Law Practice of Abraham Lincoln website and found nothing in the record saying why the case was dismissed. I next scoured the antebellum Illinois Statutes on criminal law and court procedure and could find no support for the claim. I finally found the source in Union General John A. McClernand and the Politics of Command by Christopher C. Meyers. McClernand had been an Illinois lawyer before the Civil War, and he had been Lincoln’s co-counsel in the case.  The citation I found was to a master’s thesis written by John Lupton, who is now the ‎Executive Director of the Illinois Supreme Court Historic Preservation Commission. I corresponded with Lupton, and he pointed me in the direction of the Illinois law on habeas corpus, which provided:

If any person shall be committed for a criminal, or supposed criminal matter, and not admitted to bail, and shall not be tried on or before the second term of the court having jurisdiction of the offence, the prisoner shall be set at liberty by the court, unless the delay shall happen on the application of the prisoner. If such court; at the second term, shall be satisfied that due exertions have been made to procure the evidence for, and on behalf of the people, and that there are reasonable grounds to believe that such evidence may be procured at the third term, they shall have power to continue such case till the third term. If any such prisoner shall have been admitted to bail for a crime other than a capital one, the court may continue the trial of said cause to a third term, if it shall appear by oath or affirmation that the witnesses for the people of the state are absent, such witnesses being mentioned by name, and the court shewn wherein their testimony is material.

Gale’s Illinois Statutes, 1839, pp. 835-836. What this statute seems to be saying (I could find no cases interpreting it) is that a defendant can be held in jail without trial for up to a year. (Terms of court lasted six months). If at the end of the year the prosecution can convince the judge that the absent witnesses are likely to be procured by the next term, the defendant can be held another six months. Since the provision is in the habeas corpus statute and not in the criminal procedure statute, it seems to me that the proper way to raise this issue is by filing a petition for writ of habeas corpus, not by moving to dismiss the indictment.

So I was wrong. There was a sort of speedy trial statute in antebellum Illinois, but the defendant could avail himself of it only if he had not taken some action which delayed the trial of the case.

It does not appear in the record of the case that Bantzhouse was released on the authority of this statute, but in the absence of other evidence as to why the case was dismissed, the speedy trial rule is the best explanation available. There is, however, evidence of another reason, but you have to look close to find it and you have to know something about common law pleading to realize what you’re looking at.

A contemporary news article said the indictment was dismissed for “informality.” This term (“informality”) has gone out of use in modern pleading, and many modern lawyers might miss its significance. An “informal” indictment is one which is so poorly drafted that it doesn’t properly charge a crime. I read the Bantzhouse indictment and it looks to me to be the most poorly drafted antebellum indictment I have ever read.

Usually there would be no problem when an indictment was dismissed for informality. The state’s attorney would just march back into the grand jury room and get another indictment. That wasn’t possible in the Bantzhouse case because the venue had been changed to another county. Bantzhouse had to be indicted in the county where the crime occurred, and that county was far away. Of course the prosecutor could have gotten another indictment the next time they were holding court in the original county, and the prosecutor tried to do this very thing. The problem was that Bantzhouse had departed for parts unknown.

Some of the biographers who subscribe to the speedy trial interpretation also say that Lincoln engaged in some sneaky maneuvering to hoodwink an inexperienced state’s attorney. By their interpretation Lincoln timed the motion for change of venue so that if the motion were granted, it would extend the trial beyond two terms and run afoul of the speedy trial statute. I don’t think this interpretation can stand up because if Lincoln caused the delay, then his client couldn’t profit by it. It’d be like killing your parents and then asking for mercy because you were an orphan.

My “informality” interpretation opens Lincoln up for even greater criticism. The indictment was defective before the venue was changed. If Lincoln had moved to dismiss the indictment before moving for a change of venue, the state’s attorney would have had an opportunity to re-indict Bantzhouse in the county where the crime occurred. So it looks like Lincoln could have realized the indictment was defective and concocted a plan to get a change of venue, and then move to dismiss after he’d made it impossible for the state’s attorney to immediately re-indict.

There’s not enough evidence to accuse Lincoln of engaging in any kind of chicanery. We don’t really know why the indictment was dismissed, and we don’t know whether Lincoln inspected the indictment thoroughly before getting the change of venue. I’m in favor of giving Lincoln the benefit of the doubt and not accusing him of any kind of sharp practice. I say this because I once got accused of such shenanigans when I was completely innocent.

I was a young lawyer just out of law school and I was defending a man on a cattle rustling charge. It wasn’t until both sides had rested and we were in the instructions conference that we realized the legislature had repealed the cattle rustling statute. The judge thought I knew it all along and was trying to my client off by waiting until after the trial to point out that the statute was repealed, getting the case dismissed, and then moving to dismiss any refiled charge of grand larceny on grounds of former jeopardy. In one way of looking at the situation, it was flattering to have the judge think I was that smart. In another way of looking at it, I was offended that he thought I was sneaky enough to engineer such a situation. In reality I was neither that smart nor that sneaky.

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