DYING DECLARATIONS

In order to spare anyone embarrassment, I will not identify the parties involved in the story I am about to tell. I was not involved in the case, but I did hear the story from one of the principal participants. It seems that many years ago in a small North Florida county, a man received a fatal gunshot wound in a bar fight. Officers responded to the scene, took the shooter into custody, and took full statements from the witnesses. They took especial care in their investigation because they had received word from the local hospital that the victim would not survive the night. At the conclusion of the investigation, they learned that the victim was conscious and still clinging to life.

The chief investigating officer, my informant, decided that although he had a good case against the defendant, it would be even better if he had evidence of a dying declaration from the victim. He asked the sheriff to accompany him to the hospital to take a statement from the victim. He reasoned that if sheriff were the one who testified to the dying declaration in court, it could enhance his standing in the eyes of the electorate and stand him in good stead in the upcoming elections.

Upon arriving at the hospital, my informant and the sheriff rehearsed the requisites of a dying declaration: (1) The victim must be aware he is about to die. (2) He must have no hope of recovery. (3) The statement must concern the circumstances of his killing. (4) He must subsequently die. When they went into the victim’s room, the sheriff identified himself and gave the reason for his visit. The questioning went something like this:

Q: You understand that you have been fatally wounded?

A: Yes, sir.

Q: You understand that you are going to die?

A: Yes, sir.

Q: You understand that you have no hope of recovery?

A: Yes, sir.

Q: Can you tell us who shot you?

A: Yes, sir.

Q: Who shot you?

[Victim lifts himself up on his elbows].

A: You did!

[Victim collapses back to his bed and dies].

After a moment of silence, the sheriff said “I think I’m going to forget that we had this conversation.”

We had a dying declaration in another case that I worked on as a young assistant public defender. It was a bar fight much like the one in the previous case, but the deceased never made it to the hospital. When shot, he ran out of the bar and disappeared. One of the officers who arrived on the scene went looking for him and found him lying on the doorstep of a house down the street from the bar. The officer testified that, as he leaned over the deceased to try to render aid, the deceased told him “It’s getting dark! I’m dying! [Dirk Dastardly] shot me!” My colleague and I thought that testimony just a little too convenient, but the lady who lived in the house testified that she also heard the statement. Our client got sentenced to life imprisonment.

What does all this have to do with Abraham Lincoln? He actually won a case once by using a dying declaration. A young man named Peachy Harrison got into a fight with another young man, and the fight culminated in Harrison plunging a knife into his victim. The victim did not immediately die. As he languished on his deathbed, Harrison’s grandfather came to visit him. We met Harrison’s grandfather in a previous post—Peter Cartwright, the backwoods preacher, a political enemy of Abraham Lincoln.

Cartwright may not have liked Lincoln’s politics, but he did like Lincoln’s skill as a lawyer. Lincoln was retained to defend Peachy. At the trial, Lincoln called Cartwright to the stand and asked Cartwright what the deceased had said when Cartwright visited him on his deathbed. The prosecution vehemently objected. Lincoln vehemently argued for the admission of the statement. At that time there was only one case in all of Illinois law dealing with the issue of dying declarations. That case was Starkey v. People, 17 Ill. 17 (1855), which recognized the admissibility of dying declarations. Lincoln was able to persuade the judge to allow Cartwright to testify about what the victim told him.

According to Cartwright, the victim had repented of his sins and wanted to enter heaven without feeling guilt for Peachy’s misfortunes. He said the fight was all his fault, and that he completely forgave Peachy for inflicting the fatal injury. The jury acquitted. A full account of the case just might have the makings of another book.

A RETIRED PROSECUTOR'S RANDOM THOUGHTS: WHEN ALL ELSE FAILS, READ THE DIRECTIONS

A RETIRED PROSECUTOR'S RANDOM THOUGHTS: WHEN ALL ELSE FAILS, READ THE DIRECTIONS: I blogged a while back that I had sent the final manuscript of my latest book off to the publisher. I thought I had finished and could move ...

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.

 

INVESTIGATING MOONLIGHT MURDERS REVISITED

I recently posted a description of a long-ago murder case where we had an issue with moonlight and almanacs. My adversary in that trial and I remembered the incident very differently. For a full account of our differing recollections, go to my August 28, 2013 post. In that post I gave the account of both our recollections and said I would go back, read the trial transcript, and post a report on who was right. I have now done so. He was right.

The witness had testified on direct examination that she walked out on a dock and threw the murder weapon into the lake. On cross examination my adversary asked how she could see to walk out onto the dock without falling in the water herself. She said she could see by the light of a lamppost in the distance. There was no lamppost on the lake. I went to the almanac and discovered that there was a full moon that night, and it would have been high in the sky when she was at the lake.

Thus, my almanac trial was the reverse of Lincoln's Almanac Trial. Another difference: in the Almanac Trial, the position of the moon was of central importance. In my almanac trial it was a minor issue. What was important about my witness's testimony wasn't whether there was a lamppost where she said it was. What was important was whether the murder weapon was where she said it was. Divers found it exactly where she said she threw it.

Our varying recollections about the witness's testimony are instructive on questions of memory, reminiscence, and the validity of testimony. Both my friend and I remembered the gist of the incident--disposal of a gun on a dock during the nighttime & questions about the light available at the time. What we disagreed about were the details, and in this instance the details were insignificant to the point of the witness's testimony. What was significant about the testimony was whether the gun was where she said it was, not how she could see to put it there.

Our differing recollections of the incident did not mean that either one of us were lying. Nor did they mean that the incident didn't happen. I think this tells us that we need to be very careful about evaluating the testimony of eyewitnesses, but that we should not reject the testimony out of hand simply because there is conflict in the testimony. I think the questions when dealing with conflicts in testimony are: (1) What is the important part of the testimony? (2) Do the conflicts in testimony go to the important content of the testimony, or do they go to less material matters? The less material the conflict, the less reason we have to discount the testimony.

I had this problem many times as a prosecutor. My witnesses agreed about the important details of an incident, but they were in "hopeless" conflict about the minor details. I've seen a lot of guilty parties go free because a defense attorney was able to transform minor conflicts into reasonable doubt. I took advantage of this tactic many times when I was a defense attorney, and I had it used against me many times after I became a prosecutor.

I often found myself sorely tempted to make a specific argument to the jury in defense of these witness conflicts, but I never had the nerve. I was almost certain that if I made the argument I would draw a vociferous objection from the defense attorney, and that if the judge did not declare a mistrial, the appellate court would overturn the conviction. I therefore never made the argument, but I still like it because it fully exemplifies the point I'm trying to make. Since I have no defense attorney to object and no judge to declare a mistrial, I am going to make the argument now:

Conflict in testimony does not mean that anyone is lying, and it certainly doesn't mean that what they say happened didn't happen. For instance: Matthew says the superscription on Jesus' cross read "This is Jesus the King of the Jews." (27:37, KJV).  Mark says that it read "The King of the Jews." (15:26, KJV). Luke's version is "This is the King of the Jews." (23:28, KJV). John says the superscription read "Jesus of Nazareth, the King of the Jews." (19:19, KJV). Despite the fact that we have minor conflicts in the testimony about what the superscription said, there is no reasonable doubt about the main point of their testimony--Jesus was crucified.

It is best that I never made such an argument during a trial. When attempting legitimate persuasion, you do not want to use arguments which are so emotionally charged that they will sway your audience to accept your argument for emotional rather than logical reasons. Of course, in modern culture we are daily bombarded by arguments designed to sway our decisions by emotion rather than logic.

Any time I read a news article or hear a politician speak, I try to analyze what they are saying by stripping out the emotional appeal and seeing if I can find any logic in the argument. Sadly, I usually find very little sound reasoning at the core of most arguments. And this applies to all arguers on all sides of any issue, whether they are Democrat or Republican, conservative or liberal.  It's disheartening that we cannot cut through the demagoguery and decide issues on the basis of logical analysis.

PETER CARTWRIGHT--THE BACKWOODS PREACHER

The killing which led to the prosecution of Duff Armstrong in the Almanac Trial occurred just outside a camp meeting held at a place which is sometimes called Walnut Grove. The grove, which also went by other names, was a 400 acre stand of trees along the Salt Creek in rural Illinois not far from Springfield. The camp meeting was a 19th century American phenomenon somewhat analogous to the early 20th century tent revival. It was a multi-day revival meeting, but it was held under the open sky. People came to the meeting in wagons, circled the wagons around the meeting ground, and camped for the duration of the meeting. The attendees needs were supplied by suttlers who camped on the outskirts of the camps. Some of these suttlers sold alcohol, and some of the worshippers overindulged. This led to such disturbances at the camp meeting that the Illinois legislature passed a law requiring that alcoholic beverages could not be sold within a mile of a camp meeting.

Purveyors of alcohol set up camps a mile distance from the camp meeting, and in addition to attracting thirsty worshippers it attracted riffraff. There would be gambling, horse racing, brawling, and other scandalous behavior at the whiskey camps. The commotion at the whiskey camps would sometimes spill over into the camp meetings. The campers responded to this by either forming security teams of armed men to keep order arranging for a law enforcement presence at the meetings. It was during such a brawl at the whiskey camp outside the Salt Creek meeting grounds that Preston Metzker, the Almanac Trial victim, received his fatal injuries.

There was one revivalist who, in his youth, was not averse to leaving his pulpit to fight with those who would disturb his sermons. This preacher was Peter Cartwright, one of the most famous of the camp meeting evangelists and a bitter political enemy of Abraham Lincoln. The two men argued before Lincoln entered politics, and they opposed each other the first time Lincoln ran for office (Cartwright won the election). Afterward, Cartwright opposed Lincoln every time Lincoln ran for office. During Lincoln’s presidency, however, Cartwright defended him against criticism.

 

Signed Frontispiece of Peter Cartwright's Autobiography

 

Cartwright was a towering figure in Illinois religion and politics. When I was in Illinois searching for the scene of the camp meeting, I saw a historical marker which showed the way to Cartwright’s grave. It was down a side road from the one I was traveling, and I resolved that when I returned down that same road to Springfield where I was staying I would visit his grave. I missed the sign on the return trip and consequently didn’t see the actual grave.

Cartwright was the featured speaker at the camp meeting where Metzker got killed, and there is a small amount of evidence that Metzker and Armstrong actually attended one of Cartwright’s sermons. As I said, the evidence for this is small. It is also weak. If Metzker and Armstrong did hear Cartwright speak, it is unfortunate that they did not heed his message. You might say that their refusal to repent was one of the few failures at the camp meeting, which the organizer declared to have been very successful.

As I said earlier, Cartwright went from bitter enemy of Lincoln the politician to defender of Lincoln the president. This may be attributed to the fact that after Lincoln lost his bid for the Senate, he defended Cartwright’s grandson on a charge of murder and got him off. How Lincoln accomplished this feat is a story in itself and will be dealt with at length in a future post.

If you are interested in learning more about Peter Cartwright, you can obtain a free copy of The Autobiography of Peter Cartwright: The Backwoods Preacher at the Internet Archive.

SLINGSHOTS, SLUNGSHOTS, AND YOKES

The authors who have told the story of the Almanac Trial give conflicting accounts about the weapon used to kill the victim. Charles Carlton Coffee and Ernest Foster, two early Lincoln biographers, say it was a knife. J.W. Donovan and Francis Wellman report that it was a firearm. Ida Tarbell says it was an ox-yoke. William Barton writes that a neck yoke was used. R.M. Wanamaker says it was a slingshot. D.W. Bartlett says it was a slungshot. Carl Sandburg suggests that there was no murder at all, that the victim cracked his skull when he fell off his horse in a drunken stupor. I attempted to sort out the confusion in my book. When it comes out next year, you can judge for yourself how well I succeeded. 

We know what the authors are talking about when they mention guns and knives, but we may be confused when we read about yokes, slungshots, and slingshots. Is there any difference between an ox-yoke and a neck yoke? Here is an ox-yoke:

 

And here is a neck yoke attached to a doubletree:

 

You may decide for yourself which of these two would make the handier weapon.

When the authors speak of a slingshot, we naturally think of something like this:

 

We would be wrong to do so. In Lincoln’s day the terms slingshot and slungshot meant the same thing, and they didn’t mean the modern toy.

So what is a slungshot? It is 19th century America’s answer to the Oriental weapon that we call nunchucks. Just as nunchuks were originally used as agricultural tools before they became adapted as weapons, the slungshot was originally a maritime tool. Sailors used the slungshot for casting lines. A slungshot was a small, heavy weight attached to the end of a cord. You attach the free end of the cord to the line and sling the shot to whatever location you want the rope to go. I have improvised slungshots to throw rope over treelimbs to hang swings for my children and grandchildren. Sailors would secure the weight to the end of the cord by putting the weight inside a mariner’s knot known as the monkey paw or monkey’s fist.

 

The potential of the slungshot for use as a weapon was speedily recognized. Landlubbers don’t know how to tie monkey’s fists, so the weight was usually put into some sort of a pouch. The cord was shortened and looped to go around the wrist, and the whole thing could fit handily in a pocket. Westerners placed the weight in a leather pouch attached to a looped leather strap something like this:

You can improvise a slungshot quite easily. Every man wears socks, and a sock can be quickly transformed into a slungshot. I’ve heard of inmates putting a bar of soap or a combination lock in a sock for use as a weapon. In the movie Death Wish, Charles Bronson improvised a slungshot from a sock and a handful of coins.

Before making a slungshot and dropping it into your pocket, you should remember that the slungshot is no toy. It is primarily a tool, but it is also a deadly weapon, and it is outlawed in many states.

AN ANCIENT PARALLEL TO THE ALMANAC TRIAL

According to the popular history of the Almanac Trial, Lincoln won an acquittal for his client by calling into question the testimony of his client’s principle accuser. The accuser said he saw the defendant kill the victim by the light of a moon high overhead. As the story goes, Lincoln then produced an almanac which proved that there was no moon at all that night. Although there is good reason to question the historical accuracy of the popular version, courtroom heroics of this type do happen on occasion.  

Possibly the earliest recorded incident of this type occurred during the Peloponnesian War. After fighting for several years, Athens and Sparta agreed upon a temporary truce. Instead of resting and regrouping for the renewal of hostilities with Sparta, the Athenians decided to invade Sicily and subjugate the city of Syracuse. They chose a brilliant but dissolute young man by the name of Alcibiades to lead the expedition. Shortly before the expedition was scheduled to set sail, a group of drunken young men desecrated almost all the statues of the god Hermes in the city. This was seen as a bad omen for the expedition unless the guilty parties were punished.

Accusers came forward to say that Alcibiades was the ringleader of the vandals, and public sentiment against him reached a fever pitch. Although Alcibiades was probably not above such a sacrilege, it is highly unlikely that he would do something to jinx the very expedition he commanded. Alcibiades wanted the charge disposed of before he sailed, while his political enemies agitated to put the trial off until after the expedition. Alcibiades lost his motion for a speedy trial, however, and set sail with the prospects of being prosecuted when he returned from the war.

In his absence, the case against him collapsed because of the poor quality of the testimony from Alcibiades’ accusers. The Greek biographer Plutarch described the situation in the following words: “And yet there was nothing sure or steadfast in the statements of the informers. One of them, indeed, was asked how he recognized the faces of the Hermae-defacers, and replied, ‘By the light of the moon.’ This vitiated the whole story, since there was no moon at all when the deed was done.”

The populace thirsted for vengeance, however, and a number of Alcibaides’s cronies wound up in jail. One of them, an orator named Andocides, was convicted of the sacrilege. The conviction rested less on shaky eyewitness testimony than on the fact that the only statue of Hermes which had not been defaced was the one standing in front of Andocides’s house. Modern lawyers would say that Andocides “flipped.” Upon his conviction he agreed to name his coconspirators in return for escaping the death penalty. Apparently he did not name Alcibiades, as no charge was ever brought against him for desecrating the statues of Hermes.

The enemies of Alcibiades, frustrated in their attempts to prosecute Alcibiades for a sacrilege he did not commit, discovered a sacrilege he had committed. They charged Alcibiades with the blasphemy, and we even have a copy of the indictment:

Thessalus, son of Cimon, of the deme Laciadae, impeaches Alcibiades, son of Cleinias, of the deme Scambonidae, for committing crime against the goddesses of Eleusis, Demeter and Cora, by mimicking the mysteries and showing them forth to his companions in his own house, wearing a robe such as the High Priest wears when he shows forth the sacred secrets to the initiates, and calling himself High Priest, . . . contrary to the laws and institutions of the Eumolpidae, Heralds, and Priests of Eleusis.

Having a charge they could prove against Alcibiades, his enemies were not content to continue the prosecution until he returned from the war. They had Alcibiades recalled from the fleet to stand trial for this second crime. Instead of returning to Athens, he defected to Sparta.  The Sicilian Expedition, deprived of its most dynamic leader, failed miserably. Those members of the expedition who managed to survive the military disaster were sold into slavery. When the war with Sparta resumed, a weakened Athens eventually suffered an even more disastrous defeat.

You can read the full story of the prosecution in Plutarch's Life of Alcibiades.