"As I have told you, speaking generally, this sort of evasion under cross-examination is a peculiarity common to nearly all experts, so that in singling out Professor Orton as an example, I do so with no intention of attacking his honesty of purpose. He was simply defending himself, and upholding the side which pays him for his advocacy. But I choose this testimony because if we analyze it I think we will find more, much more than appears at a glance; and I can at the same time show you how all expert testimony should be received. I will exemplify the amount of caution to be displayed in accepting what a skilled witness tells. I will show you principally, that what the expert testifies under cross-examination is more likely to be true, than what he tells the friendly lawyer on his own side.
"Now, when I asked Professor Orton whether Bright's disease would act as a cause to facilitate the accumulation of morphine in the system, he answered, 'I have never seen such a case.' That, gentlemen, is the set of words which I beg of you to analyze. Why did the Professor use just this language? For, mark you, it is a well-studied answer. Let us suppose that this eminent toxicologist had made an exhaustive series of experiments, which had proved, beyond all cavil, that the commonly accepted idea among physicians is wrong, and that Bright's disease will not effect an accumulation of morphine. How gladly would he have said 'No' to my question! How positively would he have asserted that Bright's disease would not have the effect which we claim! Therefore, that he does not use any such dogmatic denial shows logically and conclusively that he has no such knowledge. He does not know, beyond all doubt, that Bright's disease will not modify the action of this poison. But we can see more in this answer. Suppose that, lacking absolute knowledge, he had still a firm conviction. He would then most probably have said, 'It is my opinion that Bright's disease does not modify the drug's action.' But, gentlemen, he had not even a conviction of this kind. On the contrary, he must either have known, or else have leaned towards the belief that such an accumulation is possible, otherwise he would not have said just what he did say: 'I have not seen such a case.' 'I have not seen such a case'! Why, the very words suggest that such a case has existed. More – that the Professor had heard of such cases, and believed in them. Perhaps he hoped that this evasive answer would be accepted as final. In that case, gentlemen, it might have served, in your minds, as well as a negative reply. But, gentlemen, a lawyer's mind is necessarily trained to the quick appreciation of situations like this. As soon as he had said that he had never seen such a case, I was prompted by intuition to ask if he had not heard of them. Then the fat was in the fire, and we had an admission, however reluctantly given, that he had heard of them, and from competent authority. But the very attempt on the part of this witness to parry the question, and evade a full and truthful reply, carries a conviction with it, that he recognized immediately the importance of our claim, and the possibility that it is a true explanation of the sad death of this young wife. He saw at once that all the damning evidences of the presence of poison, are explainable by this simple hypothesis, that Bright's disease might cause otherwise proper doses of morphine to accumulate until a lethal dose be present, and then act to destroy life. He therefore attempted to belittle the hypothesis. He could not refute it; he scarcely dared to deny it as a possibility, and therefore he essayed evasion.
"Thus we may deduce more from the reluctant admission of an expert, than from their glibly-told tales which have been rehearsed in the office of the District Attorney. So that, after all, expert testimony is valuable – most valuable – if we but consider it with caution, and analyze it, until bereft of bias and prejudice, the grain of truth stands out, as truth ever will, conspicuous midst the mass of extraneous matter surrounding it, much of which is introduced for the express purpose of befogging your minds, and leading you away from the facts.
"Thus, gentlemen, upon closer examination we find that just as their circumstantial evidence was faulty, so the prosecution's experts prove a boomerang. For it is upon their evidence that we mainly rely for acquittal. Dr. McDougal, the Coroner's physician, examined the kidneys at the autopsy, and freely expressed the opinion that Bright's disease had been present. Of course he denied that this disease had caused death, but there we have the opinion of an advocate. Next we have Professor Orton, who, as I have shown, practically testifies that Bright's disease may cause morphine to accumulate in the system until a poisonous dose has resulted. Is not that enough, gentlemen, to satisfy you that, if this girl died of morphine, she died a natural death, and was not murdered? At least, does it not raise a doubt in your minds, which must be credited to Dr. Medjora, and which would deter you from sending him to the hangman? I am so positive that it must, that I will close this appeal, without calling your attention to the evidence, which has been abundant, and which indicates that death was not the result of poisoning at all, but of diphtheria, as indeed was certified in the burial permit. I could go over all the evidence in greater detail, but I am so strongly impressed with the innocence of our client, and so firmly confident that you are as capable as I am of reaching a proper conclusion in considering the evidence, that I will not take up more of your time, but leave our cause now in your care, satisfied that, regardless of the able rhetorical ability of the gentleman on the other side, you will be guided by Providence, and your own hearts, to aid the cause of justice and release Dr. Medjora from his present trying situation. And as you deal justly with him now, so may you receive your reward in the life hereafter."
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 circumstances 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 analogies which are but apparently analogous. 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 circumstances: 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 analyses. 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 analyses 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 analyses. 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 class of evidence is not only valuable, and pertinent, but it is indispensable. Without the assistance 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 quantities which would have proved fatal, I submit it to your intelligence, gentlemen, is not that expert testimony of the most important character? Can we assail 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 class, 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 assailed by hypothetical and ambiguous questions, worded to confuse him, and to mystify the jury. Under these circumstances, 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 accumulation 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 accumulation 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 quantities, whereas, where death occurs by a slow accumulation, the drug would have passed 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 circumstantial evidence. It has been common practice for counsel defending criminal cases to inveigh against circumstantial 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 circumstantial 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 classes, direct and circumstantial. I do not here allude to documentary evidence, which is somewhere between the two, the validity of the document being necessarily proved by one or the other. This classification, 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 circumstantial evidence becomes solely circumstantial. The two are so interdependent, that it is only by extreme examples that we can dissociate them. All direct evidence must be sustained by circumstances, whilst all circumstantial 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 assertion that instead of a few hours, or let us say a day, the body must have been immersed for several days. This is circumstantial 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 circumstantial evidence which is equally so. Is the original hypothesis proven? Does not the circumstantial 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 circumstance 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 ashore 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 circumstances 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 circumstances. 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 circumstantial 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 circumstances 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 circumstances of a similar nature, the argument would be entirely circumstantial. 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 circumstantial is strengthened by the direct, just as the direct is made important by the circumstantial. The mere finding of poison in a body, though direct evidence as to the cause of death, neither convicts the assassin, nor even positively indicates that a murder has been committed. The poison might have reached the victim by accident. But consider the attendant circumstances, and then we see that a definite conclusion is inevitable. It is from the circumstantial evidence only that we can reach the true meaning of what the direct testimony teaches.
"So we come at last to find that evidence is evidence, and that all evidence is important, and may prove convincing. This is true, without regard to the technical classification. Leave classification to the lawyers, gentlemen. You have but to weigh all that has been offered to you as relevant, and bearing upon the issue. Be assured, the Recorder would not have admitted any extraneous matter. You are not to cast aside anything that you have heard, merely because Mr. Bliss tells you that it is delusive. It is not delusive. On the contrary, all is very clear, as I shall now demonstrate to you.
"I will take up the chain of evidence much in the same order as did Mr. Bliss. First, then, we have Dr. Meredith. Mr. Bliss hints to you that he is a prejudiced witness, but whilst I might argue that a man must be more than a villain to falsely accuse another of murder, I need go into no defence of this witness, because it has been freely admitted that his testimony is true. Mr. Bliss argues that all that can be deduced from what Dr. Meredith tells us, is that morphine was present in quantity sufficient to show toxic symptoms. Now that is all that we care to claim from this witness. He recognized morphine poisoning prior to death, but Mr. Bliss attempts to belittle the value of this by the hypothesis that the drug was self-administered. He calls your attention to the statements of the prisoner to this effect, and tells you to believe him. On this subject I will speak again in a moment. The principal thing at this point is, do they ask us to believe that the girl died from diphtheria, or did she die of poison, regardless of how she received it? They do not choose between these two queries, but ask you to say either that she died of diphtheria, or, if of poison, that it was self-administered. It rests with you, gentlemen, then, to decide this weighty point. As to diphtheria, we have the report of the experts against it. Dr. Meredith declared, even before her death, that she was dying from poison. The autopsy showed that the cause of death was poison. The chemical analysis shows morphine in a poisonous dose, which is declared to be more than three grains. True, Dr. Fisher, a witness who was forced upon the prosecution, declares that diphtheria caused the death, but this is in contradiction to the opinion of all the others, and though honestly offered, no doubt, may be accounted for by the natural desire to substantiate the statement made in the death certificate. But this same witness tells us later that exactly three and a half grains of morphine is missing from his medicine-case, the one from which the defence admits that the morphine was taken. We find also that the defence seem to lay more stress upon explaining the death by morphine, than upon any effort to prove that diphtheria killed this girl.
"I think, then, that, with no injustice to the accused, you may adopt the pet theory of the defence, and conclude that this girl died of morphine poisoning. But, gentlemen, I shall now even admit more than that. Let us grant that a diseased kidney will cause accumulation of morphine, and that this girl had such a disease. More than that, let us admit that she had taken a considerable quantity of morphine prior to her illness, and that a large portion of it was held secreted in some part of her body. Now, what is the situation on that last evening of her life? She has been ill for several days with diphtheria, but she is recovering. She is so far convalescent that the senior physician deems it unnecessary for him to see her again that night. She also has slight kidney trouble, and she has some morphine stored up in her system; an amount, however, which has been tolerated throughout the attack of diphtheria, when vitality was at its lowest ebb, but which has neither acted fatally, nor even affected her so that symptoms of its presence attracted the attention of the doctors.
"Gentlemen of the jury, now follow me closely if you please. We can often bring witnesses to a murder where a weapon is used, but rare indeed is it that the poisoner is actually seen at his deadly work. But, by a singular act of Providence, that is what happened here. The prisoner arrived at that house that night, and dismissed the trained nurse. Observe that this occurs precisely upon the night when the patient has been declared to be convalescent. Here, then, is this man, a physician himself, alone in the presence of a weak woman. Does not this surely indicate to you that he had the opportunity to commit the foul deed? Supposing that he wished to rid himself of this girl, how gladly would he have awaited for her death by natural causes? How willingly have seen the dread diphtheria remove her from his path, and save his soul from the stain of crime? But no! It was not to be! On this night, his skilled eye saw what the other doctors had seen. The girl would recover! If she was to die, it must be by his hand. Now how should he accomplish it? By what means rid himself of the girl, and be safe from the hangman himself. Here the diabolical working of a scientific mind reveals itself. As he has told us he well knew her condition. He knew that she had kidney disease. He knew that she had been taking morphine, and readily guessed that some of the deadly drug was still stored up in her system. If he administered morphine to this poor woman, infatuated alike with the drug and with him, she would not offer the slightest remonstrance. No cry would escape her lips as the deadly needle punctured her fair flesh. Loving him and trusting him, she would yield to his suggestion, and so go into the last sleep. But what of the after effects? He certainly would think of that? Why, certainly! The girl would die of coma, and the attending physicians, if summoned in time, would say that she died of anæmia caused by diphtheria. Or, even if suspicion were aroused, it might be claimed afterwards, just, gentlemen, as it has been claimed, that the drug was self-administered, and was not enough in itself to have proven fatal. He knew that the autopsy would substantiate his claim of kidney trouble, and that the toxicologists would admit the effect upon morphine. But more than all, being himself something of an expert in all branches of medical science, and especially in chemistry, he could almost to a nicety gauge the quantity of the drug which would be required, which of itself might not prove fatal to a morphinehabitué, but which would compass her death when added to what was already in her system. Chance seemed to favor his horrible design, for Dr. Fisher had left his syringe and a supply of the drug. See this fiend, this scientific wife murderer, measure out and prepare the lethal dose! See him pierce the yielding flesh and inject the deadly drug, and then, lo! Providence brings upon the scene a witness to the deed! The nurse returns unexpectedly and sees, gentlemen, mark my words, actually sees this man in the act of using the hypodermic syringe!
"What can he do? He knows that it would be hazardous to deny the testimony of this trained nurse. Therefore he admits what she tells us, and then ingeniously invents the explanation that he was removing the syringe, but had not made the injection. But I submit it to you, gentlemen, is that a probable tale? If this girl had time to prepare the drug, to fill the syringe, to pierce her flesh, to inject the drug, would she not have been able to remove it herself? Does it take ten minutes to withdraw a needle? Or five minutes, or one minute? Or one second, gentlemen? Can you even compute the brief moment of time in which the withdrawal could have been effected? Mr. Bliss told you that the testimony of the accused must be final on this point. That until he is convicted of crime his word is as acceptable as that of any other witness. This may be a presumption of law, gentlemen, but it is a still greater presumption on the part of counsel to ask such intelligent men as you are, to believe that a murderer, or even an innocent man, would not perjure himself to save his life! Such things are told in romance, but we know that in actual life the most scrupulous of us all, will lie unhesitatingly if life itself be the stake.