THE CASE OF THE WOMAN IN THE WELL

The first sensational murder trial in 19^th century America occurred between March 31 and April 1, 1800 in New York City. The newspapers of the time were all over this case and it is said to be the first trial ever transcribed in this country. It was a sensation, partly because the defense included a “dream team” starring Aaron Burr and Alexander Hamilton as co-counsel.

Near the corner of Spring Street and Greene Street in the SoHo section of lower New York, there once was an abandoned well that was owned by the Manhattan Company, a private banking concern that was formed in 1799. Its investors included prominent New Yorkers Burr and Hamilton.

On January 2, 1800, a body was found floating in the icy water at the bottom of the well. When it was removed, it lay on the snowy ground for a long time before it was identified by a young man who knew her “intimately.” He was a 24 year-old man named Levi Weeks.  

Levi was the brother of Ezra Weeks, who was a well-known builder in the city, an employee

of the Manhattan Company. Ezra had built Hamilton’s residence and, later, Gracie Mansion, the New York mayor’s official residence.

The dead woman was named Gulielma (Elma) Sands. She had been missing since December 22, when she had left the boardinghouse where she lived. Levi Weeks also lived in the house. Catherine Sands, Elma’s cousin, later claimed that Elma told her that she and Levi were to be secretly married the night she disappeared. The sources are conflicting as to whether Elma was pregnant.

The coroner’s examination was apparently conducted as an afterthought: the body had been removed from the well, had lain on a board for some time, and had been moved several times until taken to the boardinghouse in a coffin. There, a doctor observed some marks on her neck, and concluded that she had been killed by “violent pressure upon the neck” before the body was dropped into the well.

Levi Weeks was arrested and the newspapers began their assault. What was the motive?

One reported that Weeks had been “seduced by the instigation of the Devil.”

Aaron Burr, (b. 1756) had fought in the Revolution, became a New York legislator, then a candidate for President, losing to Adams, Jefferson, and Pinckney. (In November, 1800, he would be elected Vice-President to Jefferson.) Burr had formed the Bank of the Manhattan Company in 1799. (It would later become Chase Manhattan Bank, now JPMorgan-Chase.)

Burr was also a practicing lawyer in the city. He was willing, at the urging of his employee Ezra Weeks, to defend Levi without fee. This was not a selfless act because the reputation of the Manhattan Company was at stake as the microscope of publicity focused on its well and its other waterworks. (The waterworks were eventually sold to the city for an exorbitant profit.)

Burr enlisted one of the other investors in the company, the lawyer Alexander Hamilton (b.1755). Hamilton had been Washington’s chief of staff in the Revolutionary War, and had been the first Secretary of the Treasury. He had fallen from power and grace after a notorious sex scandal involving an adulterous affair. He had paid hush money to the woman’s husband in return for love letters Hamilton had written. The letters were exposed by Hamilton’s political enemies (including Jefferson), and Hamilton (not the Bill Clinton of his day) admitted the affair. However, he denied the claim that he had paid the blackmail from embezzled funds. Thus, he thought he preserved his honor — if not his career. 

Although Hamilton and Burr were often rivals in ambition, going back to the Revolutionary War, and continued their competition in politics (Hamilton was a Federalist; Burr a Democratic Republican), they had ties to each other in the close knit New York society of their time. Thus, it was not unusual for them to be sometimes on the same side of an issue and this was one.

The trial was held in Federal Hall at 26 Wall Street (now the site of the U.S. Customs House). The judge presiding was John Lansing (b.1754), chief justice of the New York State Supreme Court. In the War, Lansing had served under General Phillip Schuyler, who later became Hamilton’s father-in-law. Lansing was one of the three New York representatives at the Constitutional Convention in 1787. He opposed its ratification as an Anti-Federalist, but was appointed to the bench to enforce it nonetheless.

The prosecutor was the assistant attorney general, colorfully named Cadwallader D. Colden (b. 1769), who had ben educated in the law in London. His grandfather, the first Cadwallader, was Irish. He was a physician, botanist, and, after emigrating, became acting colonial governor of New York. He died in 1776, still a committed loyalist. Grandson “D.” was an ambitious prosecutor, who would later become District Attorney, fight in the War of 1812, push for the abolition of slavery in New York (grandpa had owned at least three) and became the 54^th mayor of New York City.

The local press reported that hundreds if not thousands came to the courthouse to view the trial, some hanging from trees to catch a glimpse of the evil prisoner. Many shouted,  “Crucify him!” when Weeks was dragged from his miserable cell into the courthouse.

Trials in those days were not dragged out. Three months from arrest to trial, and the trial lasted only two days. But the days were very long: one went to at least four in the morning.

Colden sunk his teeth into the lurid details of the case, which he termed a crime of passion. A witness described the “warm courtship” between Weeks and Sands. When they were together, others in the boardinghouse heard sounds of “rustling beds, such as might be occasioned by a man and wife.” Another called it a “very intimate situation.”

A witness claimed to have been in the vicinity of the well on the night Ms. Sands disappeared, and to have heard a woman’s shriek “in distress” which was then “muffled.” There were sled tracks in the snow, allegedly from Weeks’ sleigh. The “several spots pretty much in a row around her neck” were proof of strangulation. A witness claimed that when Weeks was first told about a body in a well, he had blurted, “Is it the Manhattan well?”

The prosecutor acknowledged that the case was based on circumstantial evidence, but quoted a law treatise: “Circumstantial evidence is all that can be expected, and indeed all that is necessary to substantiate such a charge.” It was enough to convince the gallery, the mob waiting in the streets, and the press.

But then came the defense. Hamilton tried to undermine the credibility of witnesses in his cross-examination. He presented scientific evidence of the thickness of the walls in boardinghouse to attack the witnesses who claimed to have heard incriminating sounds coming from other rooms.

But Burr turned out to be the star of the “dream team,” the Johnny Cochran of the case. Although Burr was not a criminal law specialist, he had a great deal at stake in the outcome and one source ascribes his brilliance in this case to his feeling that his client, like he, was an underdog, victimized by an insensitive society.

Burr attacked the Cadwallader’s ambition: “Extraordinary means have been adopted to enflame the public against the prisoner,” he said. “Why has the body been exposed for days in the streets in a manner most indecent and shocking? Such dreadful scenes speak powerfully to the passions: They petrify our mind with horror — congeal the blood in our veins.” The mood in the courtroom began to shift away from lynching and toward a more balanced view if not great sympathy for the man on trial for his life.

The prosecutor had drawn an ugly picture of a love match gone dreadfully awry. The only problem, Burr argued calmly, was that it lacked any evidence to prove it. What was the proof that there had ever, in truth, been a courtship at all? The whispers of gossips. What evidence was there of a proposal of marriage? Of a rejection? Of any motive to kill the poor lady?

Burr cited the corollary to the legal rule that permitted circumstantial evidence. Like the pillars of a building, every part must hold up, or else “the whole must tumble down.”

Burr then detailed the gaps in the supposed incriminatory facts. First, the medical testimony of strangling was deficient because by the time the body had been examined by a physician, it had been “well manhandled.” When it had been seen at first, no such “marks” had been observed by anyone. Second, no one saw Weeks out in his sleigh the night of the crime. The tracks in the snow could have been made by any sleigh. Third, those who “heard” the sounds suggestive of sexual relations did not see the parties. They could not swear that Levi Weeks was the man.

Burr had the essential traits of a fine defense lawyer. He was a skilled counterpuncher, adept at poking enough holes in his opponent’s arguments that the structure of his case collapsed.

He called a blacksmith named Joseph Watkins who asserted that a man named Elias Ring, though married to another, had “loud, rambunctious” sex with Elma. Watkins could hear them through the wall and recognized Ring’s voice, and in fact, had told his wife what he had heard.

Watkins also told another boarder, a man named Croucher, about it. Croucher had tried to protect his friend Ring by blaming it on Weeks. At this point, the prosecutor was outraged. He objected: Where is this alleged person, Croucher?

The trial had gone on until late in the night. Hamilton then rose, picked up a candle, and pushed his way into the crowd of murmuring spectators. He held the candle up to a man’s face, the light giving it an eerie aspect. “Is this the man, Croucher?” Yes, the witness said, that is he.

Cadwallader tried to rebut but his arguments fell limp after that. It was four in the morning by the time the exhausted court gratefully heard Hamilton say that no summation by the defense was needed. The jury took five minutes to reach a not guilty verdict.

The verdict was unpopular. Levi Weeks was encouraged to leave town. He moved to Nachez, Mississippi, married and thrived as an architect. His mansion survived the Civil War, and is listed as a national historical landmark.

In 1804, Jefferson dropped Burr from the ticket. Burr then ran for governor of New York and lost. He blamed his loss on slanders by his opponents, including Alexander Hamilton, who had called Burr “a dangerous man, who ought not be trusted with the reins of government.” Burr demanded that Hamilton disavow the remarks. Hamilton dithered, denied, and then refused on his honor (which had already suffered in scandal, making him sensitive to another slap). Burr felt dishonored too. On July 11 in Weehauken they fought their famous duel and Hamilton didn’t win.

Burr’s propensity for overly ambitious schemes got him into serious trouble later when he was tried for treason. The charges stemmed from a land scheme in the territory that was part of the Louisiana Purchase. President Jefferson pushed the indictment, believing the accusation that Burr was trying to stir up war with Spain or France in order to steal the land for himself.

Burr’s trials in 1807 provided still more drama for the country. Chief Justice John Marshall ignored the pressure Jefferson applied toward a conviction. He ruled that the evidence of Burr’s presence at crucial times was not proved, and a letter allegedly showing Burr’s involvement was forged. Burr was eventually acquitted of the charges although historians have debated his guilt ever since.

He lived until 1836, having fled for a time to Europe, then returned to practice law in New York. He stayed in the news by marrying a wealthy widow, who divorced him while he lay on his deathbed. Though in his 70’s, he had continued his lifelong pursuit of sexual adventures, which stopped only when he suffered a paralytic stroke.

Judge Lansing's fate was even more bizarre. One night in December 1829, when he was 75 years old, he went for a walk to mail a letter and was never seen again, dead or alive. Whether he drowned or was murdered was never discovered. 

The legal lesson:

The Weeks case turned on the often misunderstood legal issue of circumstantial evidence. Cadwallader was correct in his summary of the general rule that it is just as good as direct evidence. Even today, jurors are instructed that both are sufficient to convict.

The difference is that, unlike direct evidence (e.g., “I saw him kill her”), circumstantial evidence requires another step, an inference, to prove the fact.

The defense was also correct in warning that every fact that pointed to guilt had to be believed in order for guilt to be proved. For example, suppose the witness does not say, “I saw him kill her,” but instead testifies: “I heard a loud noise, then a thud, and saw him run from the room carrying an shiny metal object.” If the loud noise was a gunshot, and if the thud was the body falling, and if it was the defendant running away and if the shiny object was a gun, then an inference might be drawn that he had killed her.

But if any one of the necessary inferences is unproved, or if another reasonable innocent inference could be drawn from the facts, then no guilt can be found.

LAW IN THE TIME OF ZIMMERMAN

Now that the Zimmerman / Martin trial is over, I feel that I can risk a few comments about it. For reasons that will become evident in the following post, I was reluctant to contribute to the blather I heard and read while it was going on. I have written about this sort of thing before and will reprint pertinent portions of those posts which might clarify things. 

THE OJ EFFECT
Back in 1994, I watched in mixed horror and amusement as my profession became the world’s most popular spectator sport. The OJ Show dominated media and water coolers for many months.

The spectacle was labeled “The Trial Of The Century” by a hysterical media. Of course, that is nonsense, except as it provided unprecedented ratings and thus profits to the cable networks, which depend on such events to fill unending 24 hour “news” programs with talking heads and looped footage of perp walks.

Although trials have always been news, the emergence of mass media in the 20th Century made them big business and mass entertainment. Historically, trials were considered “news” because of the social significance attached. Reporting of such crimes has always been biased.

In the ancient world, the trial of Socrates for crimes against the Greek Demos was reported by his students, Plato and Xenophon. The Salem witch trials continue to fascinate historians and poets, including Arthur Miller (“The Crucible”), who saw a parallel with the McCarthy witch hunts of the 1950's. In the late 19th Century, the libel trial of Oscar Wilde and the Dreyfuss trials in France were cultural landmarks as well as scandals.

America has had its share of highly publicized socially important criminal cases. In 1770, American patriot John Adams defended the most unpopular clients imaginable: British soldiers accused of the “Boston Massacre.” He won acquittals for 6, and lesser manslaughter convictions for 2.

Clarence Darrow became America’s most famous criminal lawyer in the Scopes trial, the first trial to be broadcast on radio, and defending rich spoiled murderers Loeb & Leopold (predating the Menendez case by 70 years). Both trials involved issues that linger today: evolution vs. creationism and the death penalty. The Sacco / Vanzetti and “Scottsboro Boys” trials of the 1920's and 1930's became liberal causes focusing on social injustice. The Rodney King trials, beginning in 1991 qualify by that standard. The Nuremberg trials after World War II could lay claim for Trials Of The Century without much debate if the standard is social importance.

In all of these cases, the public’s interest was based on more than morbid curiosity. There were issues perceived to be at stake and while the coverage was often distorted, biased, untrustworthy, the issues justified the attention.

But the media’s exploitation of the public’s fascination with criminal cases also forces appeal to baser instincts. The first “Trial of The 20th Century” was the murder / sanity trial @1906 of Harry K. Thaw, a millionaire playboy of The Gilded Age, who killed famous architect Stanford White in Madison Square Garden’s theater-restaurant over Evelyn Nesbit, a showgirl who was White’s mistress before she became Thaw’s wife.

Hearst and Pulitzer sold scads of newspapers as readers soaked up the first celebrity circus of the new century in which mass media would thrive and drive the bus.

In the 1920's, silent film comic Fatty Arbuckle was prejudged guilty of rape by the press driving public opinion and his career destroyed by the Hearst chain of newspapers despite the weak evidence of his guilt that led to his eventual acquittal after 4 jury trials. Along with other scandals of the new film industry involving sex, drugs, suicides, and other public misdeeds by celebrities, this event led to the censorship of movies in the 1930's.

Film stars have always provided fodder for media churning. Errol Flynn’s trial for statutory rape, Charlie Chaplin’s paternity suit, Lana Turner’s testimony in the trial of her daughter for the killing of Lana’s lover, Johnny Stompanato, are among the many that entertained the public. In the 1950's, scandal magazines like “Confidential” thrived on borderline libels that gossiped about “Commies,” “queers,” and “dope fiends” in Hollywood.

The Lindbergh / Hauptmann trial of the early 1930's was the most talked about celebrity crime and trial of its time, unusual because the celebrity was not the suspect but the victim. Lindbergh was the most famous man in the world at the time and the kidnap / murder of his infant son and eventual trial of the accused killer accounted for more headlines than The Great Depression or the ascent of Adolph Hitler.

The Simpson trial was alarming to lawyers who labor in the legal vineyard because it threatened to turn our profession permanently into a spectator sport. We feared that televising the trial would unfairly expose the delicate deliberative process of the courtroom to the microscopic distortions that would destroy it.

While most in the legal system (meaning judges) quickly saw the danger and drew back from the practice of televising trials, Court TV thrives and lawyers seeking instant fame continue to chew up airtime as commentators willing to speculate with little information about notorious criminal cases.

That this practice is damaging was proven by the so-called Duke University lacrosse team rape case. Media talking heads, many lawyers among them, were quick to condemn the accused students, forcing their suspension, the firing of their coach, racial tensions, and a long hard fight to prove their innocence despite the presumptive guilt.

In L.A., Phil Spector has been in trial for 5 months in the latest OJ spin-off. Judge Fidler, when allowing the trial to be televised live on Court T.V., vowed that he would not become subject of a SNL skit like “The Dancing Itos.” But his risk is high. The trial included events that can be attributed to or at least were affected by the cameras. Lawyers on both sides have played up the dramatics, skirted ethics, witnesses have groped for minutes of Kato Kailen-ish fame, experts have promoted themselves, court watching pundits have speculated wildly and the judge himself has grandstanded.

No one’s reputation has benefitted. The L.A. D.A. office, which has almost as much at stake as Spector, has not inspired any more confidence in its ability to prosecute rich celebrities than it did in Menendez, Simpson or Blake trials. The jury in the first trial deadlocked — to the embarrassment of the judge — who corrected his errors and induced a more popular verdict in the sequel.

Back in the Simpson days, I envisioned a dystopic future in which lawyers would enter courtrooms covered in logos for endorsed products. (By the way, I wear Armani, Chanel, Bass, carry a Cross briefcase, use a Mont Blanc pen and have my hair styled by José.) That day hasn’t yet come, but the future is soon. 

MORBID CURIOSITY VS THE RIGHT TO KNOW:
When I tried my last capital case, some of my family expressed an ardent desire to come to court and watch my case for a while during the penalty phase.

I tried to dissuade them for several reasons. First, I don’t want to be distracted by being aware of the presence of my loved ones. I am not “performing” but would be self-conscious - kind of the way you acted differently in Little League games when your parents were there.

Another reason is more subtle and hard to express without seeming to be mean. Court watchers - the curious and lonely eccentric people who wander in and out of courtrooms every day to watch trials just out of curiosity - are considered a bit odd.

I’ve always thought that the impulse to watch one of these trials exposes some kind of character flaw, a morbid need to dwell on someone else’s misery, to artificially inject drama into your veins.

If I was related to the deceased or the defendant, I would be offended if the trial became a spectator sport. I don’t like the idea of “Court T.V.” for the same reason. Yes, it is public, but in a real way, it is private, shameful, sad. It should be solemn, serious business - not entertainment.

Whether it is good or bad for the system or the society aside, it is simply bad manners. It is unseemly, to use an old fashioned phrase.

I mean, are there people who like to visit funerals or go to hospitals and sit in waiting rooms with families during cancer operations?

The last time family members attended one of my cases, they were most impressed with what they considered the oddity that my client (a quadruple murderer) smiled and waved a greeting to them. That they found this behavior “odd” is one reason that I am not anxious to repeat the experience. The fact is that my family and friends consider me to be even odder for living so comfortably in this kind of alien world where I am used to the idea that murderers can act and feel like people.

ZIMMERMAN / MARTIN TRIAL
One of the reasons I felt constrained to hang fire was that Florida’s law, especially as to self-defense, was described by pundits as different from California’s. The so-called “Stand Your Ground” law, it was stated, shockingly permitted gun-toting trigger happy cowboys to kill suspicious strangers, especially if they were racial minorities who wandered into areas where they “did not belong.” Our states each have widely divergent criminal statutes, consistent only to the extent that they derive from English common law and are limited by our Constitution as defined by the Supreme Court and inferior federal courts (although each federal appellate district has its own variants on many procedural as well as substantive laws). 

Yet, California has a “stand your ground law” too. It has for as long as I have been in practice (over 40 years and counting, though more slowly). It is codified in a jury instruction (CALCRIM 3470) that  reads, in part, “. . . A defendant is not required to retreat. He or she is entitled to stand his or her ground and defend himself or herself and, if reasonably necessary, to pursue an assailant until the danger of death or bdily injury . . . has passed. This is so even if safety could have been achieved by retreating. . . .” 

Others, including lawyers I know, moaned that the law in Florida is skewed to help from-the-hip shooters by shifting the burden to the prosecutor to prove the act was NOT in self-defense, rather than requiring the defendant to prove it. 

But the California jury instructions here too are similar. “The People have the burden of proving beyond a reasonable doubt that the defendant did not act in lawful self-defense. . . .”

I have a greater problem with an aspect of Florida’s procedure — the use of juries consisting of six rather than twelve people. The Constitution doesn’t demand a particular number of jurors, but twelve has been the traditional number since Magna Carta. Some have suggested that the number comes from the apostles, others some numerological mystery. 

Whatever the case, it has worked for hundreds of years and the question is why it was changed. 

The answer is clear: it is harder to gain unanimity with twelve than six. Prosecutors and judges are infuriated by juries hung up by one holdout. It forces expensive re-trials, and sometimes allows the guilty to escape punishment — by the delay, the loss of witnesses, the temptation to reduce the charges.  

The problem is that reducing the number of jurors also substantially reduces the degree of certainty of the verdict. Twelve people can be wrong, of course, and history is replete with examples (see all the DNA reversals, including some that I have reported on). But the greater number makes it more likely that a “cross-section of the community” will be approximated in the panel. 

The presence of a minority member on a jury lessens the likelihood of stereotyping, overt bias. The greater the number the more likely that balance will occur: in gender, economic status, education, world view, religion. 

TWO MODEST PROPOSALS:
Some time ago I aired two ideas which I believe are ripe for consideration now: 

ONE: I suggested televised executions as a cathartic to satisfy the bloodlust of death penalty advocates while also assisting our ailing economy by boosting ratings and giving us the ultimate “reality show.”  

TWO: In a later post, responding to the Casey Anthony sitcom which had elicited new tidal waves of reaction for and against conviction, I pitched my own reality show:

TITLE: "I, THE JURY" (with apologies to Mickey Spillane).

Simple high concept: 
(1) AIR THE ENTIRE TRIAL (2) VIEWERS VOTE. 

Don’t worry about constitutional objections. Not a problem. Our Supreme Court is far more concerned with protecting and broadening the rights under the First Amendment: religion, press, speech, even if primarily commercial speech, corporations are "people", and the Second Amendment right to own and carry weapons of mass destruction than the less important provisions of the Fifth, Sixth and Eighth Amendments (look them up, yourselves — before they disappear — I know you probably never learned about them in school). 

After all, this is the ultimate of free speech and democracy. "The public’s right to know" trumps the mere technicality of the defendant’s right to a fair trial. As the current appellate courts remind us, a criminal defendant is not entitled to a "perfect trial."

Think of the possibilities for commercial tie-ins. Product Endorsements: (1) Lawyers’ wardrobes, accessories (Mont Blanc pens, computers, smartphones ...). (2) Sales of rights for films, books, blogs. (3) Ad placements in the courtroom.

I am so sorry that my legal career is winding down on the verge of this most wonderful era of criminal law cum entertainment.