An Unspeakable Crime

by Theresa Lorella

  But even worse than the sin of adultery, than the betrayal of trust, is the fact that Richard Randolph and Nancy, his young but knowing cohort, not only hid her pregnancy, but caused the death of their child before that baby even had a chance to live.

  Why, sirs, is it clear that the death of Nancy’s baby was murder and not a planned termination as her sister-in-law seemed to imply? Because as I said a moment ago, only a fool would plan the end of an unknown pregnancy at the property of another person. Nor was it an accident—if we are to believe Mrs. Randolph, Nancy knew exactly what would occur if she used gum guaiacum that night at Glentivar, even if she was only having colic pains. It was no termination, and it was not the accidental use of an agent that brought on labor.

  No, gentleman, what happened that night at Glentivar is that Nancy unexpectedly went into labor. She was young and may not have even known how far along she was or that babies have a tendency to come when they want. Not knowing what to do—or perhaps not immediately knowing that what she was experiencing was labor—Nancy excused herself on the excuse of her colicky stomach acting up. We cannot know at what point she realized that this was no stomachache, nor can we know at what point she brought in her partner in this crime and the one to come. But at some point Richard became aware of the situation and effectively barricaded Nancy into a room all by herself.

  I can be compassionate and image the terror that the young woman must have felt, alone in a room in someone else’s home, knowing she had to do everything in her power to birth a baby on her own, alerting no one else in the household. For that terror alone Richard Randolph should be found guilty. But Nancy was not an innocent victim. The only person who perhaps deserves our sympathy is Judith Randolph. We do not know how much she knew, but to be made to listen to this gruesome tableau of betrayal and horror was likely a terror for that woman that she will never forget.

  After some time of toiling by herself, we know that Richard went back up to the room where he had left Nancy alone for several hours. We know at some point a birth occurred as the mysterious pains and muffled sounds ended. When they did, Richard was heard descending the stairs and leaving the house, only to return a few minutes later.

  Gentlemen, a person who miscarries need not hide it. While the secret of a pregnancy would be out, there would be no child and a lost pregnancy is no crime. While people may gossip, telling family members about a sad circumstance is likely to result in a closely held family secret. Yet Richard and Nancy Randolph very much wanted to make sure that no one at Glentivar knew what had happened that night. For on that night Richard and Nancy Randolph killed a baby.

  Gentlemen of the jury, we all know the Randolphs. They are a large and influential family and there are many fine members of that sprawling clan. The one who sits before you today is an adulterer and a baby murderer. We ask that you find him guilty of the crimes charged if for no other reason than for justice for the poor innocent babe its own parents took whose life. Thank you, gentlemen.

  ******

  Henry once again considered himself lucky that he didn’t have to present Richard’s closing argument. Neither he nor Marshall had expected a well-planned, well-thought out argument by the prosecution. Smith had been so angry by the end of testimony that Henry and Marshall had figured he would stand up and froth at the mouth for, stomp his foot, point at Richard, and ask the justices to rule in his favor. Jones, though, had done a fine job with the evidence he had to work with from the last few days. True, Henry thought, he hadn’t closed up the gaps that allowed for reasonable doubt, but he pointed out some theoretical holes that allowed for a mental image of Richard’s guilt to surface. Well done, indeed.

  But had he done enough to minimize the reasonable doubt argument? Henry was biased, of course, but he did not think Jones had enough to work with to be successful. He still had no body to present to the court after all. But juries—even those made up of justices—were not necessarily experts in legal theory. In fact, juries were essentially the opposite of legal experts; juries were members of the public, a panel of peers. That meant that legal theory may not be a great approach. Good old fashion emotion sometimes did the trick, and Jones’ argument provided plenty of fodder for anti-Richard emotion.

  This observation gave Henry reason to practice his deep breathing. The justices before him comprised Richard’s peers, other scions of Virginia society. While they controlled the county, there was a valid argument that they were as inbred, entitled, and self-centered as every single member of the Randolph family. That was likely unfair to one or two of the men sitting before him, but probably not more than that. The distinguished justices of the jury may be certifiable idiots. And idiots usually prefer emotion to legal reason, Henry determined grimly.

  He tried to scan the faces of the justices to discern their thoughts. A few were looking down, studying their shoes or their hangnails. Bored, no doubt. That was probably a good thing. Those men didn’t necessarily even care if Richard was innocent or guilty, just that they could leave for the day. Then there were the men who were studying Richard intently, trying to determine whether the man before them could do the things of which they accused him. And Henry knew that even if the justices imagined his client killing a baby that was ultimately harmful for Richard.

  Henry considered creating a distraction to give the justices something else to think about, but he wasn’t feeling terribly inclined to make a fool of himself that morning. In fact, Henry wasn’t feeling terribly inclined to do much of anything. If he were honest with himself, he would have to admit that he was slowing down. He wasn’t certain he had ever loved the courtroom, but there had been a time when he had the energy to go day after day. One year, early in his practice, Henry believed he had argued at least one thousand cases that year alone. The thought of so doing at this point in his career was enough to make Henry want to go home, get into bed, and never get up again. It was likely time to consider retirement.

  Henry looked over at Marshall, who had been going through his notes and furiously adjusting and scribbling since Jones had begun speaking. All eyes were on him, expecting him to address the court at any moment. Henry found it amusing that his colleague seemed completely unconcerned that he needed time to finish his thoughts before proceeding. It was even more amusing that nobody seemed to interrupt him to ask when he would be ready. John Marshall commanded a courtroom, even when sitting at counsel’s table.

  Richard looked from Marshall to Henry and, seeing that Marshall was not to be bothered, settled on Henry. Richard gave him the slightest shrug, which Henry took to mean, what is going on? Pleased that Richard had been wise enough to keep his mouth shut while under close observation, Henry decided he would acknowledge the silent question with an answer, equally silent. Henry subtly jerked his head, no, as in “don’t say a word.” He then lifted his chin towards Marshall, willing Richard to understand, “This is why you have him here.” Whether or not he understood, Richard looked over to Marshall, unabashedly reviewing his papers and he turned back to the front of the room, looking at the painting of Washington that figured prominently above the justices’ box. Richard sat back and watched along with everyone else.

  After what seemed a lifetime of anticipation, John Marshall stood up and addressed the chief justice, who seemed to be patiently waiting for the announcement. “I am ready, your honor,” Marshall announced.

  CHAPTER TWENTY-TWO

  The Defense’s Closing Argument

  GENTLEMEN OF THE JURY, Justice Carrington, people of Cumberland County. We are here today to determine whether the man sitting at this table should die. He is accused of crimes that carry the penalty of death. Certainly, if you have no choice but to find him guilty of the crimes accused, he may deserve such a fate. If you think—no, if you truly believe with no trace of doubt—that this man is guilty, you should not consider the punishment, only whether you can, in good conscience, find him guilty.

  Before we look at the facts presented let us remember what is being as
ked of each of us today. The Commonwealth has the responsibility—the sole burden—to prove that Richard Randolph is guilty. Richard has no responsibility to prove he is innocent. He is innocent until the prosecution can prove otherwise. And they must prove his guilt to you beyond any reasonable doubt.

  Now, I would not stand up before you and ask you to consider any ridiculous options—I won’t ask you to believe the sky opened and time stopped. But that is not the level of doubt you must consider. You must weigh the testimony of each witness and determine if they have proven guilt. If there is even a reasonable hint of a viable alternate, the prosecution has not done their job.

  And so, let us not speak in emotional language or hyperbole. Let us explore what we have heard here in this court—for we can only make our determination of guilt based on the evidence supplied here in this room. If you heard something from a friend or family member, or if you read something in the paper, that is not evidence. And so, the evidence, gentleman.

  We heard from Mr. and Mrs. Randolph Harrison. They were the hosts of Richard and Nancy Randolph. They never left their home while the Randolphs were staying there; they all were in a building of five living rooms the entire night in question. Mr. Harrison let us know his walls are sturdy, but not soundproof. You can hear things through the floors and walls of Glentivar. Of course, you can—that is the case in most homes. And the Harrisons heard a few sounds that evening: They heard Nancy groan a bit. They also heard someone go down and then up the stairs.

  Both of the Harrisons confirmed that Nancy had complained of stomach pains that evening and that is the excuse Richard and Judith Randolph gave when Nancy did not appear for dinner. A good solid groan or two would certainly be in line with a person suffering from a serious stomach ailment—particularly one that had plagued a person for several months. Now, contrast that with the sounds that are typically present when a woman gives birth to a child. There are screams, there are shouts, there is moaning and crying. Even a woman of great resolve will often break under the physical strain of childbirth and begin screaming. Yet at Glentivar, with people just feet away, all that was heard was a handful of groans.

  And there are no eyewitnesses presented to this court who can confirm any of the suspicions about what occurred that night at Glentivar. Mr. and Mrs. Harrison—two reasonably intelligent persons who would likely know the sounds of a child being born above their heads—did not feel the need to go up and investigate. That said, yes, Mrs. Harrison, being a gracious hostess, went up and asked after Nancy, but only because, she said, she was worried about Nancy’s stomach. When she was upstairs, Mrs. Harrison tells us she could see nothing at all, let alone anything related to a childbirth. Mr. Harrison never went upstairs and the person who did go and look could report nothing to this jury. Neither Harrison saw who went up and down the stairs—it could have been Richard, it could have been Judith, it could have been Nancy, it could have been one of the house staff.

  And so? The prosecution would have you believe that the person who went up and down those stairs was trying to conceal a dead baby. Yet nobody—nobody at all—saw any such baby. It raises the question of how such a nasty rumor even began. But that is the nature of rumors, is it not, gentlemen? Out of a tiny kernel of truth, a huge falsehood develops. Was Nancy upstairs at Glentivar all night? Yes. Can anyone come in this court and tell us she was up there having a secret baby? No. Not even the two people in the house all night with her and Richard. How in the world can anyone presume that a person was secretly giving birth in a home full of people? The reasonable answer is simple: No person was giving birth that night. There was no secret birth, no secret muffling of human life. Nothing happened. That is the reasonable explanation, not this cockamamie rumor that Nancy and Richard colluded to end a life. While guests in someone else’s home, I remind you. Why on earth—really, think about it—why would anyone ever choose another person’s home to behave in such a way? Why would anyone on the verge of birthing a baby no one knew about travel at all? It defies logic.

  Do not get me wrong, gentlemen. If someone had come in here and said, without a doubt, we saw Nancy Randolph give birth and we then saw her and Richard Randolph kill that baby, well, we would have to consider that. But we have nothing here. Nobody saw anyone give birth. Nobody saw anyone end the life of a baby. Nobody saw any baby. Nobody even saw any evidence of birth. Did Mrs. Harrison say there was a little blood on the mattress used by Nancy? Yes. A "little bit of blood?" Well, besides the fact that she didn’t look before Nancy slept in that room to confirm there was no blood prior, when was the last time a childbirth and a murder produced a "little bit of blood?" Never.

  Richard Randolph sits before you accused of infanticide. Mr. Smith and Mr. Jones would ask you to send him to the gallows for such a crime. Yet they provided no evidence of any crime at all. Who died? Where is his or her body? With all due respect, even a small body is hard to hide.

  There is no body. There was no murder. Richard Randolph cannot be found guilty of a crime that did not happen. First the prosecution has to establish that anything at all even happened, then they can worry about who did it. But you cannot convict a person for a crime that you can’t even prove happened. The only verdict even remotely possible under the law is an acquittal on the charge of infanticide.

  And then the prosecution would like to convict Richard of improper fornication with his sister-in-law. Yet again there is not a single witness to tell you they saw Richard engage inappropriately with Nancy. Instead, we hear from a meddling aunt who stalked an undressed Nancy that she, Nancy, appeared to be pregnant. Likewise, Martha Jefferson Randolph suggested an implied pregnancy. They also told us that Nancy was known to be in love with the deceased Theodorick. We have nobody in front of us to tell us that Nancy and Richard Randolph were lovers who had conceived a child together. Rather, if there was any child conceived at all, the prosecution’s witnesses have indicated that said child would belong to the deceased Theodorick. Hardly any evidence of fornication between Nancy and the defendant.

  This lack of evidence underscores the prosecution’s entire case. They would likely retort they have circumstantial evidence—evidence that can be pieced together to create a larger picture of a crime. First, it is questionable that such evidence suffices to overcome the reasonable doubt requirement. Second, and more importantly, even the circumstantial evidence here amounts to nothing. There is no cogent, cohesive story presented. The closest they have to “eyewitnesses” didn’t see anything. The other family members say Nancy may have been pregnant. Well, I think it is fair to say that sometimes pregnancies don’t result in a healthy birth. Sometimes they are kept secret, and the child is given to family members. Sometimes a rumor of pregnancy is just that—a rumor. Perhaps a young woman gains weight and is uncomfortable about her body. Perhaps she has a health condition that produces a shape in the belly that mimics pregnancy. The possibilities are seemingly endless; there are at least several options that are more plausible than murder.

  There should be more for me to argue—I should stand before this court for hours trying desperately to convince the justices and all listeners that the evidence isn’t as compelling as the prosecution would have you believe. I apologize that I am done with my argument. There is nothing to argue, there is no real evidence to consider.

  The Commonwealth of Virginia must prove to you—prove it, gentlemen—that the men sitting before you today is a person who impregnated his young sister-in-law, and then murdered that baby one night at his cousin’s plantation. Richard does not have to do anything to disprove these theories. He gets to sit here today, as he has throughout this inquest, and listen to the supposed evidence against him. If there was anything at all compelling, he could then take the stand and clarify. But in this case, what proof did he need to worry about? There is nothing here. This isn’t even truly a case of reasonable doubt—it is only doubt.

  We all enjoy a good story or two, a gossip about our neighbors. While it can be entertaining to believe
the stories we whisper behind our hands to our friends and family, deep down we know that we are telling just that, stories. I am not naïve, gentlemen, and I know that there has been much gossip and whispering about the Randolphs. While I appreciate that the prosecution has not attempted to bring that before you, I must remind and request that we all segregate the stories our wives have told us from the evidence presented to the court over the past couple weeks.

  We, gentlemen of the jury, are officers of the court, stewards of the law. We do not convict men of heinous crimes because the town gossips tell us to do so. We follow the law; we require evidence to be presented and we require that said evidence prove guilt beyond a reasonable doubt. And here? Here we have nothing. Every circumstance may be accounted for without imparting guilt to either Richard or Nancy Randolph.

  I believe we are all intelligent men. I do not think my argument requires any further expounding. The verdict can only be not guilty. I trust that that is obvious to everyone here.