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Wednesday, June 27, 2018


Abraham Lincoln is the closest thing we have to an American saint. His martyrdom sealed that. His speeches—at Gettysburg, at his two inaugurals, the proclamation emancipating slaves in the rebel states, and in his debates with Douglas—define American aspirational values better than any document since the Declaration of Independence.

Yet, what makes him attractive is that, although his face is carved in granite on Mount Rushmore and in his monumental memorial in Washington D.C., Abe Lincoln still seems quite human rather than unapproachable and larger than life.

For me, a big part of my sense of Lincoln’s humanity is the fact that we shared a common profession. We were both practicing lawyers. Not only lawyers but members of a special branch of the profession: trial lawyers who spent many years taking seriously the task of trying cases before judges and juries.

I knew that for twenty years—from about age twenty-seven—he rode the circuit in his state, traveling with a band of lawyers and judges to the various outlying villages where they would take cases and adjudicate disputes. It was how he learned his trade, enjoyed the camaraderie of colleagues, honed his skills at argument, oratory, and gained a deep understanding of the frailties of human nature.

I was happy to learn that he also represented clients in criminal cases, both serious and petty. Having watched John Ford’s 1939 classic film, “Abe Lincoln In Illinois,” starring Henry Fonda, I learned that he defended in a murder case, one involving eyewitness identification.

Not trusting the accuracy of movies, I read about this case in legal essays. Duff Armstrong was accused of killing a man one night after an argument at a fair. Lincoln made headlines by persuading the judge to take notice of the Farmer’s Almanac, which proved that the moon had set long before the stabbing, so that the eyewitness who claimed to identify Lincoln’s client as the culprit by moonlight was lying.

I later found out about another of his clients, Melissa Goings. She was an elderly woman who killed her abusive husband and was prosecuted for murder. Knowing the history of the couple, the townspeople of their village so sympathized with Melissa that they raised her bail money. When a new judge harshly threatened to revoke bail and remand the old woman to custody pending trial, she fled. The judge asked Lincoln what he knew of this. Lincoln said he had asked to interview her. She was placed in a room on the first floor of the courthouse. Lincoln emerged to get her some water and when he returned she had gone.

As the story goes, the judge questioned Lincoln about the interview and he supposedly told the judge that she had asked him for a drink of water and he merely remarked in passing that the water in Tennessee was clear and sweet. Legal historians speculate that the local prosecutor was not anxious to try the woman either, and so might have winked at Lincoln’s solution to the case. The warrant for her arrest was never served.

These cases became part of the Lincoln legend, the folksy wit and sharp legal mind that we find so heroic.

But what I found later was that in fact, he tried twenty-seven murder cases over the course of his career, and that he lost some of them—in fact, one murder case he lost led to his client’s execution. I was hooked. The parallel to my own experiences gave me an almost eerie sense of familiarity, and (it seems ridiculous to write the words) almost a feeling of brotherhood with the man.

I spent almost twenty years as a public defender and the rest of my forty-four year career in private criminal defense practice. My legal community was just as close knit as was Lincoln’s, with friendships tied to mutual respect, among lawyers who defended, or prosecuted, or were elevated to the judiciary.

In my time, I tried many murder cases including some in which the death penalty was sought. Just as soldiers of one era may feel a kinship with those of any other time, I suspected that Lincoln’s experiences might be something like those I lived through.

So that is why I was anxious to read a new book, titled Lincoln's Last Trial: The Murder Case That Propelled Him to the Presidency, authored by Dan Abrams and David Fisher.

Like those in my experience, the killing was a commonplace sort of act, not the kind that murder mysteries and thrillers are made of. There was no whodunit, no issue as to cause of death, no car chases, no brilliant forensics. Two friends quarreled over a minor domestic issue and it escalated into threats, a confrontation, a fight, and, eventually, a stabbing.

In that sense, the case was closer to those I knew of than those in fictional dramas. Although it contained no esoteric features, the case still involved elements that demanded the skills of a seasoned advocate. For one thing, the defendant claimed self-defense, although he brought a knife to a fistfight and fatally stabbed a man who was unarmed.

But the victim was bigger and stronger than the defendant, who was smaller and weaker. The victim had told others that he intended to beat the defendant, to “stomp him.” But did the defendant know of this intent? Was that why the defendant carried the knife, or did he intend to kill his antagonist no matter what?  

This is one of the most complicated and difficult defenses to present. The law in 1859 was similar to today: you may use only the force reasonably necessary to defend yourself from the perceived threat. You may use deadly force only if you are in reasonable fear of great bodily harm or death. You must back away from the danger if you can (unless in your own home), but can defend yourself if you must.

The law is strict and precise, yet subtle in its implications. The lawyer must understand and be able to communicate the most complex of human feelings: fear, anger, malice, self-survival.

In 1859, the task of the defense lawyer was made far more difficult by a quirk in the existing law. The prevailing rule of evidence precluded the defendant from testifying for himself.

When I first read this, I was shocked. The defendant’s testimony is usually essential to presenting self-defense. But experienced lawyers know that it is far more complex than that.

For one thing, most defendants make poor witnesses. One slip of the lip, one false note, and the entire case is lost, no matter how weak the prosecution’s case, no matter how much reasonable doubt you have sown through careful cross-examination of other witnesses.

During jury selection, I usually asked the following series of questions:

1. Do you think it is fair to make up your mind before you hear both sides of the story?

2. Will you follow the judge’s instruction that every witness, whether called by the prosecution or the defense, must be treated the same or would you disregard witnesses because they testify for the defense?

3. If the defendant testifies in his own behalf, would you disregard his testimony merely because he is the defendant?

Although most prospective jurors answered that they would be “fair to both sides,” many admitted that they might discount a defendant’s testimony, believing that any defendant would lie to save himself. In fact, that was the basis of the old law preventing the accused from testifying.

I found it interesting that the same jurors often admitted they might be prejudiced against a defendant who chose to remain silent even though he had a right under the 5th Amendment to do so.

On reflection, I wonder if the old law helped the defense by removing the choice from the defendant, thus eliminating the juror’s bias about the issue.

Nonetheless, it placed a great burden on the lawyers to establish the defense without the defendant’s word. In this case, however, there were a number of witnesses present. The prosecution called some and the defense called others. As expected, the versions varied, depending on the skills of the lawyers to bring out the truth, or at least the most reasonable version of the truth.

The law makes certain presumptions which in reality may or may not be accurate. Some are carryovers from a more na├»ve age. One is the idea of the “dying declaration.” Hearsay is defined as an out of court statement that is offered to prove the matter asserted in the statement—such as “He said he saw the man commit the crime, or “She said she saw someone else commit the crime.” If the person who made the statement is not available to be examined under oath, then the witness who says he heard the statement won’t be allowed testify to it—if the issue is who committed the crime.

But there are exceptions, some of which have been recognized for centuries. If the person who made the statement was near death, and knew she was near death, and speaks about the cause of her impending death, and then dies and is therefore unavailable for later trial, then the person who heard the statement may relate it.

The reason for the exception is that, among religious people, it was a sin to die with a lie on one’s lips. People believed in an immortal soul, and confession, atonement, forgiveness, were such strong values that it was considered probable that such a statement at that time was true.

In Lincoln’s case, the victim had spoken to a minister as he lay dying. He begged for forgiveness because he felt himself responsible for his death, not the man who stabbed him. This buttressed the defense claim that the victim had sought the fight and had been stabbed in self-defense.

In one of my cases, a man emerged from a grocery store late one night, his arms full of shopping bags. He was accosted by another man who ran across the street. Without a word the man pulled a sawed off shotgun from inside of his jacket. The gun went off and the man with the bags fell, dying.

In the ambulance, he was told he was dying and was asked what happened. He said in Spanish, “Era un robo.” “It was a robbery.” The DA wanted to use the statement, because even an accidental or negligent killing during an attempted robbery equals first-degree murder.

However, the judge in my case denied the motion, agreeing with me that another condition of the dying declaration exception was not met. The statement must be one of fact, not merely opinion or belief. In my case, no words were spoken, no demands made. It was only the victim’s fear that caused him to assume that it was meant to be a robbery. (My client was guilty of manslaughter, a lesser crime.)

The oddity in Lincoln’s case was that the minister to whom the victim made the statement was the grandfather of the defendant, the man who stabbed him. This might have made the witness’s credibility doubtful, but he happened to be famously respected in the community for his honesty. The judge allowed the testimony and the prosecutor failed to raise enough doubt on the veracity of the testimony.

That raises another oddity that makes this case different from any of my experience. Almost everyone involved in the case seemed to know each other and be friends. That did not only include the lawyers on both sides and the judge, but also the witnesses, the defendant, his family, the victim and his family, and many of the jurors.

For instance, the prosecutor (Palmer) and Lincoln had been law partners. The victim (Greek Crafton) had studied law in Lincoln’s office, and Lincoln was said to have thought highly of him. The minister (Reverend Cartwright) had run for office against Lincoln and had verbally attacked Lincoln as an atheist.

Lincoln’s co-counsel was Steven Trigg Logan, a former judge with whom Lincoln had partnered early in his career. They had been co-counsels in Lincoln’s first murder trial in 1838, which was somewhat factually similar to this one.

Back then, they defended Henry Truett in the murder of Dr. Jacob Early. Another dying declaration, but in this one the victim named Truett as his killer. The motive was Truett’s anger over remarks Early had made about Truett’s appointment to a political office. The defense was, again,
self-defense—in the argument, Early had raised a heavy chair before he was shot. (The prosecutor in this case was none other than Steven Douglas.)

The authors, citing many newspaper accounts, attribute the three-hour not guilty verdict to Lincoln’s brilliant summation. Describing his style of jury argument they struck another chord for me:

“When he approached the jury box and leaned over close, he was just talking to some friends. ... People simply liked him. It was never an act; there was nothing flamboyant or showy about the man. ... [H]e reasoned with them calmly and treated them with respect and so they believed him.”
(Kindle Locations 494-496.) 

In my experience, the best lawyers value their credibility as their most important asset, especially with juries. It is something crucial to preserve from the first day to the last—beginning with jury selection and dealing with the opposition, with the judge, with witnesses, with items of evidence. In argument, speaking directly to the jury, a lawyer who has lost their trust has lost the case.

The authors make the argument that the case was important in furthering Lincoln’s political career because it was widely reported in the national press. Lincoln by then was well known (after his debates with Douglas) and was being spoken of as a possible presidential candidate. Much of his reputation was as a brilliant trial lawyer, and a loss might have tarnished that fame.

When the client was acquitted, the town of Springfield was divided over the verdict, but none who supported the victim’s family blamed Lincoln for his defense. In his argument he had shown nothing but respect for the family’s grief and had even made a point of extolling the victim’s character, while bemoaning the tragic sequence of bad decisions that the young man had made.

It was another example of the humanity that the man, Abe Lincoln, brought to the law and eventually, to our American values.