Digging up Dead Lawyers

                          Digging Up Dead Lawyers

                           by E. J. Wagner

Long dead lawyers won’t sue. They are unlikely to make you look foolish on a witness stand. They won’t object if you poke through their papers. And the papers of long-dead lawyers often contain intriguing details about historic crimes—clues often left out of the official records. It’s just such seductive traces that challenge me.

Which is why I am here with Bill, (who is not only my husband, but also my tech support, research colleague, and cheerleader), tramping through an ancient cemetery in Salem, Massachusetts. We are looking for the tomb of Joseph White. The victim of a notorious murder in 1830, which made legal history, he is said by some historians to lie cozily near to the graves of his assailants. Several witnesses in the case, as well as their legal advisors, are believed to rest here too—it seems very “en famille.”

It is unusually hot for May, and the bugs swarm hungrily. The cemetery is gated and locked on three sides—the one side left open leads to a steep hill covered with loose stones and weeds. As we climb, an insect slides down my bra and stings. I smack at it, lose my balance and fall hard, skinning a knee.. Bill, is, as usual, absolutely determined, and grabbing my hand pulls me up the path. “I’ll bet it’s over there,” he says, pointing at a great slab of grey stone in the distance”.

I’m a crime historian, which means that I research, write about, and present to audiences, old criminal cases. In my passion for accuracy, I plow through antique legal documents, medical books, and law treatises. I dig up dead lawyers (metaphorically, of course) and their extensive notes (literally). As that  consummate attorney, Aaron Burr, wisely observed, “What is written, remains.” It’s all happy grist for my mill.

In the course of research I often find myself in very odd and sometimes disconcerting places, and I’ve learned to equip myself with the proper tools. Some helpful points.

Old cemeteries, sometimes in the dead of winter, can be icy. I advise sturdy boots with treads, warm coat and hat and scarf . Gloves, too—preferably those flexible enough to write in.

Autopsy rooms, (bring change of clothes and cologne for trip home as latex gloves and aprons do nothing to prevent odor from clinging)

Rare book rooms of libraries and historical societies, (always wear clothes with pockets for tissues. Bring antihistamine, as violently sneezing on ancient primary documents is frowned upon. Carry many sharp pencils as pens are not allowed, and be prepared to check your other things (the curators and librarians could teach the TSA a thing or two about security). Take a laptop. A magnifying glass (Shades of Sherlock!) can be very useful when you’re trying to decipher faded writing smaller than a paramecium’s navel.

Old abandoned mines—very cold, may be contaminated—bring warm sweater, scarf, surgical mask)

Courtrooms: check rules before you go. Old Bailey, in London, for instance won’t allow bags, so wear clothes with pockets for your stuff)

Books and dictionaries on criminal law and medicine, are necessary aides, if you want to write about criminal history.

Now it is only a matter finding just  the right case. For me, it starts insidiously, like a summer cold. I’ll wander into a second hand book store, promising myself that this time I will do nothing but browse. Maybe buy some light reading. I pet the resident cat, note the atmospheric dust coating the stock. I saunter past poetry . . . art appreciation . . . self improvement . . .

And then I find I’ve arrived in the section on criminal law. The shelves here groan with moldering trial transcripts and collections of crime reports from long discontinued newspapers. There are boxes of letters- the writing faded, cramped. They lean against journals composed centuries ago and cluttered with clippings and mementos. The journals are jammed against the battered memoirs of ancient jurists, of old time detectives, and sometimes, those of the murdered or their killers. All of it the detritus of long ago trials and treachery. And I know that if I allow myself to linger, (as inevitably I will), I’ll discover, on these shelves, in these boxes, accounts of cases that will take over my life—It’s just a matter of choosing one to focus on.

My interest is usually sparked by a forensic anomaly, a missing fact, an odd pathology report, an obviously inadequate cross-examination in a capital case.

For instance:

Consider the well known English case of George Joseph Smith, accused in 1915, of serially drowning his wives in their baths. (He then callously compounded the heinous crimes after the fact, by playing “Nearer My God to Thee” on the harmonium.)

Smith is described by historians of his day as simple-minded. But his method of drowning grown women in small bathtubs by sudden vigorous submersion was only established by the eminent pathologist, Sir Bernard Spilsbury, after lengthy and dangerous experiments performed on an unusually dedicated nurse.

How did Smith know it would work? How did a “simple-minded” man discover the trick? There must have been earlier, similar and sinister efforts not yet known. It makes me wonder about the life spans of his childhood friends, his siblings. Did he have his pet animals, I wonder? Smith was born in Bethnal Green, I discover, and spent time in a reformatory at the age of nine—what techniques did he acquire there?

I could search for the local newspapers published in the years right after his release—if the blitz didn’t destroy them they could be found.

Mr. Marshall Hall was Smith’s defense attorney—did he leave a memoir? Letters? Could I locate them?

Or what about the case of Jeannie Donald, convicted in 1934 Scotland of the murder of a neighbor’s child; largely on the evidence of Sydney Smith, the pathologist. He testified that the asphyxiated victim’s intestines were infected by a rare bacteria, matched by that in the apartment of the accused. At cross examination the defense counsel never explored exactly how rare this bacteria was, or even precisely what it was. There were no questions about the possible presence of the bacteria in other apartments in the tenement building where the crime took place.

Why were these questions not asked? Why was Mr. D. P. Blades, KC, so restrained? Did Blades leave journals? Can I find them? And so it goes . . .

But it’s the Salem Murder I finally choose to write about for Smithsonian Magazine, and that is what has brought Bill and me to the cemetery in Salem. The case is one which formed the basis  of the felony murder rule now accepted in many states. The victim was well-known, very rich, and lauded in fulsome terms by the prosecutor, Daniel Webster. But I have reason to believe the victim was a slave trader. Can I find hard evidence of this? I believe Edgar Allen Poe wrote the “Tell Tale Heart” based on this crime—can I prove that? I believe Daniel Webster unethically mislead the court in this matter-can I establish this? I want to see the murder scene, the burial site..

Bill pulls me across the hot overgrown cemetery to where the grey slab bears the name “Joseph White.” Have we found the correct tomb? Alas, the date is all wrong—it was inscribed years before White’s death. Could it be that of his father? But his father lived, not in Salem, but on the Isles of Shoals—I can see another trip to the White papers in my future.

When we arrive home, five hours later, after a long ferry ride, I make the unhappy discovery of a moribund biting insect in my bra. It traveled all the way from the cemetery with us. I make a note to add insecticide and calamine lotion to the paraphernalia I carry as a I dig up old crimes of forensic interest.

The End

This article first appeared in Mystery Readers Journal, Volume 28, Number 3 Fall 2012

Legal Mysteries II

E.J. Wagner as usual pursuing verity.

E. J. Wagner is the author of Edgar®-winning The Science of Sherlock Holmes. Her work has appeared in the New York Times, The Lancet, Ellery Queens Mystery Magazine, and Smithsonian magazine. Her web site is at http://www.ejwagner-crimehistorian.com/ and her blog is at http://ejdissectingroom.wordpress.com/. She is working on a novel about the Salem murder. Her article about the case can be seen at HYPERLINK “http://www.smithsonianmag.com/history-archaeology/A-Murder-in-Salem.html” http://www.smithsonianmag.com/history-archaeology/A-Murder-in-Salem.html