Part 22 (2/2)

CHAPTER XI.

TERMINATION OF THE GREAT CASE.

The District Attorney himself arose to speak for the commonwealth.

”May it please your Honor and gentlemen of the jury,” he began, ”you have just heard an able argument in behalf of the prisoner. Counsel has told you truly, that in this free Republic, which has become the refuge and asylum for the oppressed of all nations, the liberty of one man is as sacred as the rights of the whole people. He has also used the well-worn argument that the prisoner should have your sympathy, because of the weakness of his position. By this is meant, that the State; having wealth, can engage prosecuting officers of ability, whilst the prisoner, thrown upon his private resources, may be compelled to intrust his cause to the care of inferior counsel. But, gentlemen, you must see at a glance that our learned opponent has weakened his own argument by the unusual display of ability which he has exhibited in this case. Surely in his hands the cause of the prisoner is eminently safe! The commonwealth, with all its resources, cannot summon greater legal ability to its aid. Therefore you may relieve your minds of any idea of pity for the prisoner, and omitting all thought of him personally, decide this case entirely on the evidence.

”But if you find it difficult to disregard the fact that here is a man, whose liberty or life is at stake, then I bid you remember, that whilst it is true that his rights are equal to those of the State, they are no greater. The commonwealth must have equal place, in your judgment, with the prisoner.

”As the prosecuting attorney I stand in a somewhat peculiar position.

In ordinary lawsuits, opposing counsel are retained by the various sides, and are arrayed against each other solely. Under such circ.u.mstances the able arguments of Mr. Bliss would hold sway. I am alluding now to his attack upon expert witnesses. Let us suppose that a suit is brought to overthrow a will, the plaintiff arguing that the signature has been forged. Experts in chirography are called by both sides. It is manifest, as Mr. Bliss has said, that the opinions of experts will be sought by the contending counsel, and at the trial we would have those favoring the theory, forgery, testifying to that effect, whilst the others would support the genuineness of the signature. Undoubtedly, also, had either of these gentlemen expressed a different opinion prior to the trial, he would have been found upon the opposite side. Or, in plainer words, the men are hired to testify, because, previous to the trial, they hold an opinion favorable to the side which pays them. Thus, as has been shown to you at some length, eminent jurists now accord but cautious credence to expert testimony, because of the bias which must attend paid advocacy. But, gentlemen of the jury, as logical as all this is, when applied to a civil suit, it becomes but the most specious reasoning when introduced into a criminal case, such as this.

”We are often led astray by arguments, which contain a.n.a.logies which are but apparently a.n.a.logous. In this case there is a flaw at the very root of the argument, and therefore the very flower and fruit of the whole beautiful array of words must wilt and fail.

”This flaw is easily pointed out. In the civil case, as I have said, and as you know, opposing counsel defend but the side that pays them.

In a criminal case it is entirely different. The District Attorney is engaged, not for a special case, against a special prisoner, but by the whole community, for the protection of all the people. Now the prisoner is himself one of these, and his rights are ever in the minds of the very men who prepare the arguments against him. Let us glance for a moment at the _modus operandi_. Suspicion is aroused against a man. If sufficiently grave, the first bits of evidence attainable are presented to the Grand Jury, and perhaps they find an indictment. This gives the State authority to hold the prisoner by arrest, until such time when he may be tried. But, gentlemen of the jury, are all indicted men tried? Not at all. The District Attorney not infrequently, in the course of preparing a case, finds that an error has been made: that the man is the victim of circ.u.mstances: in short that he is innocent. What occurs then? Does he act the part of the hired lawyer and proceed, merely that he may collect a fee? Not at all. He protects the rights of the prisoner, as one of the people, and by due process of law the man is released from custody, free from even a stain upon his character.

”Now let us for a moment suppose that the charge is one of murder; of murder by poisoning, let us say. The first step is to place the medical investigation of the facts into the hands of eminent experts.

Here we find that the very resources of the commonwealth become the prisoner's greatest safeguard. The State having abundance of money, places this investigation into the care of the very ablest men to be obtained. It is not at all true, that these experts are retained because of their known opinions. When they are retained, they have no opinions whatever, because they are engaged to pursue an investigation, and their opinions are non-existent until after the conclusion of their a.n.a.lyses. Now, gentlemen, imagine that the commonwealth's counsel would be base enough to dispense with an expert witness, because his testimony would be detrimental to the hypothesis of the prosecution, would such a course be possible? Not at all. In the first place, the autopsy and the chemical a.n.a.lyses have been made upon the tissues of the body of the deceased. In the course of this work these tissues are rendered useless for any further a.n.a.lyses.

Therefore, the only investigation possible is the original one, and the only expert opinions obtainable are those of the men, who, as I have shown, are engaged long before they have any opinion to express.

If these men were omitted from the case then no experts could be called to replace them; but what would be worse, these very witnesses, discarded by the prosecution, would immediately be retained by the defence. For, as Mr. Bliss has candidly admitted, the defence only engages experts whose opinions are known to be favorable. That is the difference between the paid experts of the defence, and those engaged by the prosecution. The one is an advocate for a fee, whilst the other is merely an independent outsider, who relates the medical facts which he has found upon examination of the body of the deceased, and then explains the scientific deductions which he makes from these facts.

The witness of the defence is biased; the witness of the prosecution is not. No, gentlemen of the jury, when the experts for the prosecution form opinions which oppose the idea of a crime, the District Attorney has but one course which he can pursue. He must protect the prisoner, as it is his sworn duty to do, and obtain his release.

”But _per contra_, when these eminent medical men discover, within the tissues of the deceased, plain evidences of the fact that a crime has been consummated, it then becomes the duty of the District Attorney to prosecute the accused, and to produce, before a jury of his countrymen, the evidence which these gentlemen of science have discovered. And this cla.s.s of evidence is not only valuable, and pertinent, but it is indispensable. Without the a.s.sistance of experts, it would be almost impossible to convict a man of murder, by the use of poison. The pistol, the knife, and other weapons, all leave wounds discernible by the eyes of all. But poison works insidiously, and is unseen. As deadly as the bullet, it operates not only without noise, but in skilful hands the death may simulate that caused by known diseases, so that even eminent physicians might sign a burial permit, as did Dr. Fisher in this case, without a suspicion of the presence of the poison. But suspicion having been aroused, by the aid of science it is now possible to search microscopically into the tissues of the victim, and find every trace of poison if one has been used. And if, gentlemen, able men of science, prominent in their specialties, and honored by their professional brethren as well as by the community in which they dwell, make an impartial investigation of this nature, and report to you that they have found poison actually present, and in quant.i.ties which would have proved fatal, I submit it to your intelligence, gentlemen, is not that expert testimony of the most important character? Can we a.s.sail such evidence with the cry of bias, merely because it comes within the general category of expert testimony? Certainly not. You will therefore forget entirely the anathema which Mr. Bliss has delivered against experts, for though true enough against the cla.s.s, it does not apply in this instance.

”Before dismissing this phase of the subject, I must say a few words in defence of Professor Orton. Mr. Bliss pointed out to you that when an expert is replying to direct examination he answers readily, whereas, when answering the cross-examining lawyer, he is more cautious. This is true; but, gentlemen, what does that signify? Simply that having told the truth, the witness is compelled to defend himself against the traps that will be set for him by the opposite side. He knows in advance that he will be a.s.sailed by hypothetical and ambiguous questions, worded to confuse him, and to mystify the jury.

Under these circ.u.mstances, therefore, he must necessarily think well, before replying. He is in a court of law, under oath, and his professional reputation is at stake. If he were not cautious in his replies he would be worthless as a witness. He is justified, too, in parrying questions which he knows are introduced merely to disguise the truth, or to lead the minds of the jury into wrong channels. Mr.

Bliss has made much, or thinks that he has made much, of the answers which Professor Orton gave. By specious reasoning he tries to prove that Professor Orton believed that this woman died of an acc.u.mulation of morphine, caused by a diseased condition of the kidneys. Mr. Bliss tells us that he rests his case upon the evidence of our witnesses, and largely upon this admission from Professor Orton. Now, as a matter of fact, what Professor Orton did say cannot help the prisoner. He admitted that other men have held the opinion that diseased kidneys may cause an acc.u.mulation of morphine. But, gentlemen, how does that effect this case? This very witness, upon whom Mr. Bliss is willing to rely, tells us that whatever the possibilities might be in other cases, it is his positive belief that this particular woman did not die as claimed by the defence. He found poison in the stomach in considerable quant.i.ties, whereas, where death occurs by a slow acc.u.mulation, the drug would have pa.s.sed beyond that organ, and none would have been found there. So that we see, that what might be, and what perhaps has been in the past, has no bearing on this case even inferentially, because the same expert who says it is possible in other cases, tells us plainly that it did not occur in this instance.

”And now, before speaking of the actual evidence in this case, let me say a few words in regard to circ.u.mstantial evidence. It has been common practice for counsel defending criminal cases to inveigh against circ.u.mstantial evidence, until a suspicion has been engendered in the public mind, that it is of dubious value. Indeed, the people, knowing a little law, and understanding that all reasonable doubt must be accorded to the prisoner, and, further, having imbibed the idea that all circ.u.mstantial evidence contains a doubt, have come almost to feel that a conviction obtained by such means is a miscarriage of justice.

”This is entirely erroneous. All evidence is divided arbitrarily into two great cla.s.ses, direct and circ.u.mstantial. I do not here allude to doc.u.mentary evidence, which is somewhere between the two, the validity of the doc.u.ment being necessarily proved by one or the other. This cla.s.sification, as I say, is arbitrary, for he would indeed be a wise man who could tell us exactly where direct evidence ceases to be direct, or where circ.u.mstantial evidence becomes solely circ.u.mstantial. The two are so interdependent, that it is only by extreme examples that we can dissociate them. All direct evidence must be sustained by circ.u.mstances, whilst all circ.u.mstantial evidence is dependent upon direct facts.

”Let me give you an example of each, that this may be more clear to your minds. Let us suppose that several boys go to a pool of water to swim. One of these is seen by his companions to dive into the water, and he does not arise. His death is reported, and the authorities, later, drag the pool and find a body. This is called direct evidence.

The boy was seen to drown, you are told, and your judgment concedes the fact readily. But is the proposition proved, even though you have these several witnesses to the actual drowning? Let us see. The body is taken to the morgue, and the keeper there, an expert in such matters, makes the startling a.s.sertion that instead of a few hours, or let us say a day, the body must have been immersed for several days.

This is circ.u.mstantial evidence. The keeper has no positive knowledge that this particular body has been under water so long. Still he has seen thousands of bodies, and none has presented such an appearance after so short an interval. How shall we judge between such conflicting evidence? On the one side we have direct evidence which is most positive. On the other we have circ.u.mstantial evidence which is equally so. Is the original hypothesis proven? Does not the circ.u.mstantial evidence raise a doubt? Certainly. Now let us take another step. The witnesses to the drowning are called again, and view the body, and now among ten of them, we find one who hesitates in his identification. At once we find another circ.u.mstance wanting in substantiation of the original claim. Now we see, that all that was really proved was, that a boy was drowned, and not at all that it was this particular boy who was found. But is this even proved? How can it be, in the absence of the drowned body? Now suppose that, at the last hour, the original boy turns up alive, and reports that he had been washed ash.o.r.e down the stream and subsequently recovered. We find that our direct evidence, with numerous witnesses to the actual fact, was entirely misleading after all, because we had jumped to a conclusion, without duly considering the attendant circ.u.mstances of the case. So it is always. This is no case manufactured to point an argument. There is no such thing as positive proof, which does not depend upon circ.u.mstances. The old example may be cited briefly again. If you see one man shoot at another and see the other fall and die, can you say without further knowledge, that one killed the other? If you do, you may find later that the pistol carried only a blank cartridge, and that the man died of fright.

”It is equally true of circ.u.mstantial evidence, that without some direct fact upon which it depends it is worthless. As an example of this, I may as well save your time by introducing the case at issue.

If we could show you that the prisoner desired the death of this girl; that he profited by her death; that he had a secret in connection with her child which he can keep from the world better, now that she is dead; that she died under circ.u.mstances which made the attending physician suspect morphine poisoning; that as soon as the suspicion was announced, the prisoner mysteriously disappeared, and remained in hiding for several days; that he had the opportunity to administer the poison; that he understood the working of the drug; and other circ.u.mstances of a similar nature, the argument would be entirely circ.u.mstantial. All this might be true and the man might be innocent.

But, selecting from this array of suspicious facts, the one which indicates morphine as the drug employed, and then add to it the fact that expert chemists actually find morphine in the tissues of the body, and you see, gentlemen, that at once this single bit of direct evidence gives substantial form to the whole. The circ.u.mstantial is strengthened by the direct, just as the direct is made important by the circ.u.mstantial. The mere finding of poison in a body, though direct evidence as to the cause of death, neither convicts the a.s.sa.s.sin, nor even positively indicates that a murder has been committed. The poison might have reached the victim by accident. But consider the attendant circ.u.mstances, and then we see that a definite conclusion is inevitable. It is from the circ.u.mstantial evidence only that we can reach the true meaning of what the direct testimony teaches.

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