LINCOLN FOR THE PROSECUTION

When Abraham Lincoln's good friend, Ward Hill Lamon, got himself elected State's Attorney for the Eighth Judicial Circuit, Lincoln would often help Lamon prosecute cases. One of Lamon's first murder cases looked on the surface like an open and shut case, but it had complications. Lamon called on Lincoln to help with the prosecution, and Lincoln wound up almost single-handedly trying the case.

On the other side Lincoln faced another good friend, Leonard Swett, a lanky man who looked so much like Lincoln that people often confused the two. Swett was an excellent criminal defense attorney, probably the best trial lawyer in Illinois, and he came to court fully prepared to defend his client to the nth degree. To get an idea of the uphill battle Swett confronted, let's look at a newspaper article that ran almost immediately after the murder occurred:

“Murder,” DeWitt Courier, October 19, 1855, People v. Wyant, LPAL doc. 133014.

One of the most cold-blooded murders we ever heard of, was perpetrated in this place about 2 o’clock P.M. on Friday last. The victim’s name was Anson Rusk; the name of the murderer is Isaac Wyant. Last June a difficulty arose between Rusk and Wyant, and the latter attacked the other with a large knife. Rusk tried to avoid a collision with Wyant, but to no purpose; and as a means of saving his own life, he drew a pistol and shot the latter in the arm. Wyant’s arm had to be amputated, and he swore he would have revenge, and since that time he has narrowly watched for such an opportunity. A short time before the murder, he said he was going to Indiana; but instead of that, he came to this place, for the purpose of watching the movements of Rusk, as it is supposed. Last Friday Rusk came to town, and Wyant saw him; the latter dogged the footsteps of the other from place to place, and finally into the courthouse. Rusk entered the office of the county Clerk and was standing behind the stove with his arms folded, when Wyant opened the door and commenced firing an Allen revolver at him. The first ball struck Rusk in the side, the second in the shoulder, and the third ball entered his arm. Wyant then stood over the fallen man, put the pistol to his head and fired the fourth shot, the ball passing entirely through the head, and from the orifice it made oozed the brains. Rusk lived near an hour after, but never spoke, we believe. His murderer, Wyant, tried to make his escape, but was secured a short distance from the court house and conveyed [back into the] building. Shortly after he was taken to prison and securely ironed. It is thought nothing will save him from hanging, as a responsible witness was in the clerk’s office at the time of the murder. We understand that the wife of Rusk, who was enceinte at the time of his murder, and her child, which was prematurely born, are not expected to live from one minute to another, and perhaps may be dead now. If they die Wyant will be a triple murderer, and consequently, he should suffer the severest penalty of the law. Circuit court is now in session, but it is thought his trial will not take place this term. Some think there will be a change of venue.

The doctors who amputated Wyant's arm had used chloroform, and it was widely believed at that time that chloroform could induce insanity. [EdwardWilliam Murphy, Chloroform: ItsProperties and Safety in Childbirth (London: Walton and Maberly, 1855), 66.] Swett lined up an impressive array of doctors to come in and testify that the use of the chloroform had induced insanity in Wyant, and Wyant was legally insane when he shot and killed Rusk. Swett also offered the testimony of numerous relatives of Wyant, all of whom testified to Wyant's bizarre behavior after he lost his arm. The case was tried on change of venue to McLean County, and the results of the trial are reported in the following news article:

“The Trialof Wyant,” Daily Pantagraph, April 6,1857, People v. Wyant, LPAL doc. 131644.

The trial of Isaac Wyant for the murder of Ason Rusk occupied the attention of the Circuit Court during nearly the whole of last week. Great interest in the progress and result of the trial was manifested by the people, and the Court House was constantly thronged. The case being one of great importance, we design to give a very full abstract of the evidence, which we shall begin publishing in a day or two, we purposely abstained from doing so during the trial. The following is a very brief summary of the trial:

The case was taken up on Tuesday afternoon, 31st ult. The counsel for the State were Ward H. Lamon, Stte’s Attorney, Hon. A. Lincoln, C.H. Moore, Esq., of Clinton, and Harvey Hogg, Esq., of this place. For the deense, Mesrs. Swett & Orme. The regular panel of jurors was exhausted before completing the jury, ten jurors only having been obtained, of whom two were afterwards objected to and discharged, in accordance with an agreement of counsel reserving that privilege. A tales or supplementary panel having been summoned, the jury was completed and sworn as follows:

James Adams, Wolford Wyatt, Samuel White, E.V. Augustus, Denton Young, J.L. Brittan, David Shough, John T. Hill, James Huff, W.C. Wardlow, J.S. Barber, Joseph Shough.

The Jury were accommodated at the Pike House in charge of officers during the trial.

Hon A. Lincoln opened the case for the prosecution, and a clear prima facie case having been made out by the witnesses, the State’s evidence closed the same evening. Mr. Swett opened for the defense the next morning in a long and powerful speech.

The murder was committed in the County Clerk’s office at Clinton DeWitt County, in October, 1855, in broad daylight, and in the presence of several people, Wyant shooting Rusk no less than four times with a revolver.

There had been bad blood between Wyant and Rusk for some months previous, and in June the two had a fight, in which Rusk shot Wyant in the arm. The arm had to be amputated, and chloroform was administered during the operation. The evidence for the defense was that Wyant was ever after morbidly fearful that Rusk would kill him, and that he complained greatly of his head, and manifested many signs of being unsettled in his intellect.

The fact of the killing was not controverted, the defense resting on the ground of insanity. Several medical witnesses were examined on this point, among the Dr. McFarland of the State Lunatic Asylum, Drs. Roe, Spencer, and Parke of this place, and others.

After speeches from Messrs. Hogg and Lincoln for the prosecution, and Messrs. Orme and Swett for the defense, the case went to the jury at about six o’clock on Saturday evening 4th inst. Somewhat after midnight the jury agreed, and the Court being called together, a verdict of acquittal was rendered, coupled with a recommendation for the prisoner’s confinement in a lunatic asylum. The prisoner remains in custody.

To my largely uneducated eye, it appears that Wyant was not suffering from chloroform induced insanity, but from post traumatic stress disorder and a bloodthirsty desire for revenge. Of course, PTSD had not yet been discovered and mental health was so young a field that the term "psychiatry" hadn't been invented yet.

This was one of the earliest cases in the history of American jurisprudence where the defense of insanity actually resulted in an acquittal. Not long after the trial, a good friend of Lincoln's asked him to defend a young man named Robert Sloo on a charge of murder. The case looked to be an open and shut one, and Sloo's only hope was a plea of not guilty by reason of insanity. Lincoln asked Swett to go and defend Sloo in his place. Swett objected, saying "I am unknown to the parties and they  would not be satisfied with the change." Lincoln replied, "If I can get you to go, it is not fair to that young man and his family that I should go."

Swett went, and he won another seemingly impossible acquittal. This acquittal was so spectacular that it was written up in the American Journal of Insanity, the forerunner of the American Journal of Psychiatry. ["The Trial of Robert C. Sloo for the Murder of John E. Hall," American Journal of Insanity, Volume 15 (Utica: New York State Lunatic Asylum, 1859), 33-68].

Swett put his law practice on hold to campaign for Lincoln's election as president, and worked in an unofficial capacity in support of the war effort on behalf of the Union. After the Civil War he relocated to Chicago, where he prospered as a trial attorney, winning several more murder cases on pleas of not guilty by reason of insanity.

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.

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.

WHEN LINCOLN TOOK A SIP OF WHISKEY

Abraham Lincoln had a reputation as a teetotaler, and so many of his Illinois friends attested to his abstaining from alcohol that we must accept his reputation as founded in fact.  But there was one time at least when he took a drink.

When he was a youth in his twenties, living in Sangamon County, Illinois, Lincoln helped a friend escape a gambling debt by offering the creditor double or nothing on a wager that he could lift a barrel of whiskey and drink from the bung hole. An empty whiskey barrel weighs around 110 pounds. A full barrel contains 40 gallons. Assuming whiskey weighs about the same as water (8 pounds to the gallon), that means Lincoln would be lifting and drinking from a tankard which could weigh no less than 110 pounds and no more than 430 pounds. Some of the friends Lincoln made after he left Sangamon County could hardly believe that he performed such a feat. One of the unbelievers was a man who practiced law with him and later served as a bodyguard for Lincoln when he was president--Ward Hill Lamon. Lamon, a big strong man himself, could hardly believe Lincoln capable of such a feat. He probably thought that Lincoln's admirers claimed he could lift the barrel and drink from it as you or I would drink from a soda can. Such a feat would require superhuman strength

Of course, Lincoln didn’t lift and drink the whiskey in such a manner. According to those who witnessed the feat, he squatted, grabbed the barrel by its chimes, and hoisted it onto his knees, much as a World’s Strongest Man competitor begins to lift an Atlas Stone. The chimes of a whiskey barrel are the rims found at the top and bottom of a whiskey barrel.

 

Whiskey Barrels. The chimes are readily visible at the tops of the barrels

With the barrel resting on his knees, Lincoln was able to hoist it into a tilting position so that whiskey could pour out of the bung hole (located in the side) and into his mouth. The part of this story that I find hardest to believe is the claim that after he filled his mouth with whiskey, he spit it out. Teetotaler or not, he deserved a drink after such a display of strength.