Friday, May 29, 2015

LINCOLN AND MOTIONS FOR CHANGE OF VENUE

Edgar Lee Masters gained immortality by writing a series of poems entitled Spoon River Anthology, but he gained infamy in his lifetime by writing a biography, Lincoln the Man, in which he criticized almost everything Lincoln said or did. His account of Lincoln’s performance in the Almanac Trial is no exception. Masters claimed Lincoln was a second rate hack of a lawyer who didn’t have enough legal skill to properly move for and obtain a change of venue. Since the defense moved for and obtained a change of venue in the Almanac Trial, somebody other than Lincoln must have filed the paperwork and argued the motion.

Masters was correct in saying that somebody other than Lincoln moved for and obtained the change of venue. The attorney who got the change of venue was Caleb Dillworth, a young and inexperienced attorney who charged small fees—small enough for the financially strapped Hannah Armstrong to be able to hire him to defend her son.  This was not because Lincoln couldn’t write a motion for change of venue, it was because Lincoln did not enter the case until after the venue was changed.

As a matter of fact, Lincoln got more changes of venue in his 23 year legal career than I had in my 32 year career. It seems that a change of venue was easier to come by in antebellum Illinois than it is today. Apparently all you had to do was have your client file an affidavit alleging that that sentiment of the people in the county was so against you that you feared you couldn’t get a fair trial. There are a few more hoops to jump through today.  Here is an affidavit for change of venue in Lincoln’s own handwriting:
 
In Lincoln's day lawyers often wrote their pleadings on whatever paper was available while they were sitting in court waiting on their cases to be called. This affidavit for change of venue was quite likely written in just such a fashion. It was filed in a murder case, People of Illinois v. John Bantzhouse, and judging from the near illegible signature Bantzhouse was either scared to death or illiterate. If he was frightened, he had no need to be. Lincoln no only won the motion for change of venue, he eventually got the case dismissed.

Wednesday, May 20, 2015

LINCOLN'S FIRST MURDER CASE: THE COURT RECORD

Thinking that it might be interesting to read the actual court record of one of Lincoln's murder trials, I chose to reproduce the record of the first murder case he ever tried. Lincoln served as the junior member of the defense team in the trial, but his oratorical skill was so well-respected that the defense team chose him to give the final argument.

The case was prosecuted by Stephen A. Douglas, and it took four days to select a jury. Douglas prosecuted the case through jury selection and the taking of the evidence but withdrew from the case before giving the final argument, and another prosecutor was appointed. You can't tell from the record whether the new prosecutor had been in court for the taking of testimony, but he must have heard the evidence. Otherwise he would not have had any idea what to say during final arguments. Douglas's ill-timed withdrawal from the case may have contributed more to the defendant's acquittal than Lincoln's argument did.

I have modernized some spelling and punctuation and have cut out some (but not all) of the redundant language. "Talesmen" means potential jurors.

DAY ONE
Tuesday, October 9, 1838
Jury selection begins

People of the State of Illinois, Plaintiff, against Henry B. Truett, Defendant} Indictment for Murder.

At the calling of this cause the sheriff was commanded to bring the prisoner into court which was done accordingly. Whereupon on motion of the states attorney it is ordered by the court that the clerk amend the order of the last term of this court so as to show that the list of the jury and a copy of the indictment was furnished the prisoner previous to his arraignment which amendment was done accordingly. And the following list of jurors having been furnished the prisoner as the regular jurors summoned for the first week of this term to wit: [Names of 22 talesmen listed.]

Out of which was selected George W. Tinsley, Nicholas Moore, and Alexander Frist who was sworn as the law directs. And the panel being exhausted the sheriff was commanded to summon twenty talesmen to complete the panel and thereupon the Sheriff returned into court the following list as talesmen to wit: [Names of 20 talesmen listed.]

And the parties failing to select a juror out of the above panel the sheriff was a second time commanded to summon twenty more talesmen to complete the panel which was done accordingly. …

Out of which was selected William McNair and Phillip Clark as Jurors in this cause. Whereupon sworn to well and truly try the issues joined.

And the panel a third time being exhausted the sheriff was commanded to summon twenty more talesmen to complete the jury aforesaid. [Which was done accordingly …].

And the parties failing to select a juror out of the above panel the sheriff was a further time commanded to summon twenty more talesmen to complete the jury which was done accordingly. …

Out of which was selected Elijah Bowen as a juror in this cause who being sworn to well and truly try the issues joined.

And the panel a fifth time being exhausted the sheriff was commanded to summon twenty more talesmen to complete the jury aforesaid. [Which was done accordingly …].

And the parties failing to select a juror out of the above panel, the sheriff was a sixth time commanded to summon twenty more talesmen to complete the jury and returned said list into court by nine o’clock tomorrow. And the six jurymen chosen selected and sworn in this cause was placed in charge of an officer with instructions to keep them separate and apart from all other persons until 9 o’clock tomorrow morning at which time he was instructed to bring them into court. And thereupon the said prisoner was remanded to jail.

DAY TWO
Wednesday, October 10, 1838
Jury selection continues

At this day the sheriff was again commanded to bring the prisoner into court which was done accordingly and thereupon agreeable to an order of yesterday the sheriff returned into court [20 additional talesmen.]

Out of which was chosen James I. Mills and Levi Cantrill who being sworn to well and truly try the issues joined. And the panel being a sixth time exhausted the sheriff was commanded a seventh time to summon twenty more talesmen and return them into court immediately.

Whereupon the sheriff returned [20 additional talesmen.]

Out of which was selected Mack Faye, Thomas Robinson, & George Fagan. Who duly swore to well and truly try the issues joined.

And the panel being a seventh time exhausted the sheriff was commanded to summon four talesmen from the bystanders which was done accordingly. …

Which panel was exhausted without being able to obtain a juror. The sheriff was a second time commanded to summon four more from the bystanders which was done accordingly. …

Which panel was exhausted without being able to obtain a juror the sheriff was a third time commanded to summon four more from the bystanders which was done accordingly. …

Which panel was exhausted without being able to obtain a juror the sheriff was a fourth time commanded to summon four more from the bystanders which was done accordingly. …

Which panel was exhausted without being able to obtain a juror the sheriff was a fifth time commanded to summon four more from the bystanders which was done accordingly. …

Which panel was exhausted without being able to obtain a juror the sheriff was a sixth time commanded to summon four more from the bystanders which was done accordingly. …

Which panel was exhausted without being able to obtain a juror the sheriff was a seventh time commanded to summon four more talesmen to attend at 8 o’clock tomorrow morning. And the eleven jurors sworn were placed in charge of an officer and restricted as on yesterday and thereupon the prisoner was remanded to jail.

DAY THREE
Thursday, October 11, 1838
Jury selection concludes,
Testimony begins

At this day the Sheriff was again commanded to bring the prisoner into court which was done accordingly and thereupon the sheriff returned the following list of talesmen agreeable to an order of yesterday to wit: James Bagly; James Black, William Peak, & Robert Bagly.

Which panel being exhausted without being able to obtain a juror the sheriff was an eighth time commanded to summon four more from the bystanders which was done accordingly. …

Which panel being exhausted without being able to obtain a juror the sheriff was a ninth time commanded to summon four more from the bystanders which was done accordingly. …

Which panel being again exhausted without being able to obtain a juror the sheriff was a ninth [actually 10th] time commanded to summon four more from the bystanders which was done accordingly. …

Which panel was exhausted without being able to obtain a juror the sheriff was a tenth [actually 11th] time commanded to summon four more from the bystanders which was done accordingly. …

Which panel was exhausted without being able to obtain a juror the sheriff was an eleventh [actually 12th] time commanded to summon four more from the bystanders which was done accordingly. …

Which panel was exhausted without being able to obtain a juror the sheriff was a twelfth [actually 13th] time commanded to summon four more from the bystanders which was done accordingly. …

Out of which was chosen Samuel H. Stephens who being sworn to well and truly try the issues joined, and thereupon the names of the jurors selected and sworn as aforesaid to wit: George W. Tinsley, Phillip Clark, Wm McGraw, Nicholas Moore, George Fagan, Levi Cantrill, James I. Mills, Alexander Trent, Thomas Robinson, Elijah Bowen, Mack Faye, Samuel H. Stephens Was called and answered to their names and thereupon the parties proceeded with the evidence in this case and after doing the same the jury was placed in charge of an officer who was instructed as in yesterday and also to return them into court by 8 o’clock tomorrow morning and thereupon the prisoner was remanded to jail.

DAY FOUR
Friday, October 12, 1838
Douglas withdraws,
New prosecutor appointed

The sheriff this day returned the jury empaneled and sworn in this cause into court agreeably to an order of yesterday. And thereupon the sheriff was commanded to bring the prisoner into court which was done accordingly.

And on motion of Stephen A Douglass who was appointed a prosecuting attorney pro tem for the cause D.M. Woodson produced his commission as prosecuting attorney for the first judicial circuit in and for the State of Illinois and having taken the oath as required by law entered upon the discharge of his duties as such and thereupon Stephen A Douglass was discharged as prosecuting attorney pro tem as aforesaid.

And not being able to close the argument in this cause by agreement of the parties the jury was placed in charge of an officer and the officer being instructed as on yesterday and to return them into court by tomorrow 8 o'clock.

Ordered that court adjourn till 8 o’clock tomorrow. ...

DAY FIVE
Saturday, October 13, 1838
Final arguments,
Jury verdict

This day the prisoner was again brought into court and thereupon the jury empanelled and sworn in this cause was returned into court agreeably to an order of yesterday and after closing arguments the jury retired to consider of their verdict and after mature deliberation returned the following verdict into court to wit:

We the jury find the defendant not guilty as charged in the indictment.

It is therefore ordered by the court that the said defendant be discharged and that he go hence without day. ...

 

Sunday, February 1, 2015

FAIRS AND FESTIVALS

There are some upcoming events which are relevant to my book Lincoln’s Most Famous Case.

The first is the Olustee Festival, which will be held Friday, February 13-15 in Lake City, Florida. I will be the featured author at the festival and will be talking about Lincoln and the Almanac Trial.
 
The second is the Amelia Island Book Festival, which will be February 19-21 in Amelia Island. I will be signing copies of my books at the Festival’s book fair on February 21.  
The final event is the Venice Book Fair and Writer’s Festival on March 28. I will also be signing copies of my books at this event. This is the only event for which I have a flyer:

 
The two book fairs bring together an eclectic mix of writers who will have their works on display. Anyone who enjoys reading should like both these events.

Saturday, January 17, 2015

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

A while back I mentioned that the update to our book on cross-examination had been finished and sent to the publisher. Its relevance to this blog is, of course, the fact that it is the only trial manual in existence which contains an accurate account of Abraham Lincoln's famous cross-examination in the Almanac Trial.

The book is now in print. You can check it out at the Amazon site or the Wolters Kluwer site.

Saturday, September 27, 2014

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.

Friday, September 26, 2014

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.


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.

Sunday, August 10, 2014

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.