Star Spangled Scandal

by Chris DeRose

  “I am not, sir.”

  “That I submit constitutes a disqualification.” Ould “astonished and shocked everyone in attendance” with that statement. The District of Columbia applied Maryland law in cases originating in the part of the city that once belonged to Maryland. This had been meant as a placeholder until a code could be adopted, but every attempt brought about a fight over slavery, so many of the old Maryland rules remained in force. And under Maryland law at the time of DC’s founding, there was a substantial property requirement to serve on a jury.12

  As the New York Journal of Commerce put it, “It is gratifying to the really good citizens of Washington that public opinion in New York condemns Mr. Sickles for his recent act . . . that portion of the public excepted which hangs about the bar rooms and gambling houses, and which naturally regards little excitement.” The prosecution’s insistence on the property requirement was targeted at the latter.

  The lawyers were searching for unbiased jurors in a case that had involved many members of a close-knit town. John Scrivener was written off for having had a conversation with an eyewitness. He would not be the last. Some potential jurors who made it through the gauntlet were struck by a peremptory challenge from one side or another; those challenges required no cause or explanation.

  Rezin Arnold, a Washington County farmer, had not formed or expressed an opinion, had no bias or prejudice in favor of Sickles or against, had no objection to capital punishment, and was worth more than $800. He became the first member of the jury.13

  Abraham Butler had formed and expressed opinions from rumor and conversation with others, was friends with some of the witnesses in the case but believed he could render a fair verdict. He added, however, that “every person who committed willful murder ought to be hung.”

  Carlisle fought admirably to seat him as a juror, but to no avail. The next three were similarly dismissed. Bennett Sewall had no opinion or prejudice but was “worth less than nothing,” which turned out to be worth a laugh in the courtroom and disqualification.

  George Kirk claimed a relationship to Sickles that would prevent him from reaching a fair and impartial verdict. When pressed, he said that he too was “a married man.”

  James Fullalove, Reuben Worthington, and Richard Simmons all had their minds made up. With that, the clerk announced that the panel had been exhausted.

  Judge Crawford ordered the marshal to bring seventy-five prospective jurors, known as talesmen, into court the following morning. After all the anticipation and fanfare, the first day of the trial had ended after two hours with little to show for it. Five jurors were sworn. Four were challenged. Four were too poor. And twenty-one had already reached a decision.14

  Before the judge could adjourn, Stanton rose to draw his attention to “a point of very great importance.” The placement of the prisoner’s box made it impossible to confer with Sickles. Judge Crawford replied that the box had always occupied that space but that it would be moved closer to the lawyers’ table. Magruder argued that Sickles’s life was at stake and that even Aaron Burr had been allowed to sit at the table with his lawyers at his trial for treason.

  The judge said that he had never heard of a case where the prisoner in a murder trial could leave the box—neither in the United States nor in England, where the practice originated. While he was not disposed to deviate from this rule, he agreed to move the box near the counsel table so that Sickles could confer with his lawyers. Sickles was led by the marshals back to the jail, followed by a massive crowd.15

  For now, Sickles was back in his cell. He had “A pile of books” on the windowsill. On his desk was a photograph of Laura and a drawing she had made for him, on which she had written: “Dear good, loving, kind papa.” Sickles received letters from all over the country and passed the time sending replies. There always seemed to be visitors in his cell.16

  Reverend Haley, ever-present and available for a quote, told reporters that he had bought Sickles Lady of the Lake to read. “My business is to keep his courage and his spirits up under the first terrible collapse from excitement. When he reads, when he becomes calm, then I will speak to him of religion.”

  Stuart, who had been observing his demeanor, thought that Sickles “is engaged in a continuous struggle with himself. His head and his heart are [in] a violent war. Thus far his head has triumphed,” but he was “prey to sorrowful reflection.”17

  DAY TWO—Tuesday, April 5, 1859

  An immense crowd in Philadelphia took to the streets to prevent the capture of a runaway slave named Daniel Webster. The Republicans swept elections in the state of Connecticut, furthering a political realignment where the North and South were controlled by separate parties. But on April 5, the headlines focused on the failed attempt to find a jury in the Sickles case.18

  The crier opened the court at 10:20 a.m.: “Oyez, oyez, oyez . . . ”. Somehow, more people than yesterday had managed to squeeze into the courtroom.

  Joseph Kelly, eleven years old, lived with his parents on 4th Street, between the jail and courthouse. Next door was a public school, with a sign labelled “School” on the front and “the S turned the wrong way.”

  He remembered a “Tall, soldierly figure, immaculately dressed, marching with head erect, glancing neither to left nor right, and as he went by our house on the opposite side of the street I had a good view of him each day. There was always a rabble crowing and running in the street but nothing could disturb the stern serenity of the man who was on trial for his life.”19

  Sickles was brought into the courtroom and placed in the prisoner’s box, now located behind his lawyers and facing the judge. Stanton reviewed the list of potential jurors with Sickles.20

  Twenty-one of the first twenty-two had made up their minds. The other was struck for being younger than twenty. William Harper had formed impressions from the newspaper that he didn’t think added up to opinions. Close enough.

  The court ran out of talesmen before 1:00 p.m. Three new jurors had been selected that day, for a total of eight out of 104 prospects.21

  Deputy Marshal Phillips said that the jury pool in the city had been exhausted and that they would have to go out to the county. Crawford admonished the jurors not to discuss the case and permitted them to return home.22

  The correspondent of the London Daily News expressed his surprise that having an opinion was cause for challenge. “[N]one but the most stupid and ignorant . . . who never read the newspapers, shall try him.”23

  DAY THREE—Wednesday, April 6, 1859

  The Star, Tribune, and Post reported that, for the past “eight or ten days,” the sympathies toward Sickles had dissipated. “The feeling was now strongly against him.”24

  In court that morning, Sickles nearly broke down crying when a friend came by to greet him. He turned his head away.25

  One by one, the potential jurors came through: dry goods merchants, tailors, shoe dealers, plumbers, butter dealers, pump makers, well diggers, a druggist, and a hatter.

  The first twelve talesmen were dismissed. Jesse Wilson said that he could render an impartial verdict but preferred not to sit on the jury. He found himself accepted and sworn. After a long list of biased talesman, and two who opposed the death penalty, Charles Kiltberger had the opposite problem, promising to hang Sickles “high as hell” if guilty.

  Another “manifested a strong prejudice against Mr. Sickles.” He was dismissed and walked through the crowd trying to exit the courtroom. He came near a man who stood up and approached him. “I heard you just now,” he said, “say something harsh of the prisoner. But let me ask you if you had lost your wife, or had your daughter sacrificed, would you have been able to control your feelings and be governed by your reason?”

  “I don’t know. But who is asking me this question?”

  “I am the father of Teresa Sickles.”

  The talesman was affected by this. He apologized for what he had said and admitted he may have done the same.26

  Da
niel Clark said that if approving of Sickles’s action made him impartial, then he was impartial. He was dismissed to laughter.

  As the third day of jury selection dragged on, there came some excitement that nearly brought the trial to a halt. Judge Crawford had large wooden panels on either side of him, apparently to protect against a draft of cold air. Without warning, one of these fell, landing just behind him. If he had been reclining in any way, he might have been killed. Stuart called them a threat to “the integrity of the judicial pericranium.”27

  Judge Crawford had been spared to rule on another fight over a potential juror’s property. The man was worth more than eight hundred dollars, but his property was outside the District. Did it matter? The court ruled that it did not.

  After three days and nearly two hundred potential jurors, they had found “the twelfth dispassionate man” in Washington. The jury would consist of four grocers, two farmers, a merchant, a furniture maker, a tinner, a coachmaker, a shoemaker, and a cabinet maker. The jury was “generally regarded as a good one,” “composed of some of the most respectable men in the District of Columbia.” New Yorkers Brady and Graham were not easily impressed but felt that they had never seen such a “fine collection of jurors.”

  Of the 180 potential jurors who had been called, many had their opinions, but less than a dozen expressed support for Sickles’s acquittal.28

  Judge Crawford sequestered the jury in the National Hotel. Since it was nearing the end of the day, he offered to delay swearing in the final juror. If he was not sworn, they could all return home for one last evening.

  “Gentlemen of the jury, what is your desire about this?”

  “We desire to be discharged,” one of them, speaking for all of them, shouted to laughter. Stanton objected. He wanted the jury sworn and sequestered.

  Overruled.29

  Crawford was seated on the bench when one of the jurors approached him. “Can I say a word to you?” he asked.

  “Not about this case.”

  The juror kept talking. “I answered the question put to me, but since I have been sworn, and been in the jury box, I have been reflecting on this thing. I am not quite satisfied with myself.”

  A reporter described him as under “extreme mental excitement.” The judge refused to listen. “I cannot relieve you,” he said. The juror turned and directed his attention to Chevalier Wikoff, who was walking out of the courtroom. Wikoff reminded him not to discuss the case.30

  The Sickles trial would give birth to breaking news. As the New York Herald pointed out, “The improvement in telegraph operations is so marked, the popular demand for early news so urgent . . . that in a short time we shall probably give all the news outside of the city in the shape of telegraphic reports; and our correspondents, instead of dropping their communications into the Post Office, will deposit them with the telegraph operators, and we shall have their contents before the ink wherewith they were written is dry. It is fast coming to this, and it will be a great triumph for telegraphing, as well as a great boon to newspaper readers.”31

  Chapter Thirty

  A Carnival of Blood

  * * *

  “The trial of Mr. Sickles will doubtless elicit the finest criminal pleading ever heard within the walls of the City Hall.”

  —Daily Union

  DAY FOUR—Thursday, April 7, 1859

  Philip Barton Key had vexed him in life. Now he haunted him in death. As his deputy, Robert Ould had picked up slack and stepped in as US Attorney during his sundry absences. Or, as Stuart wrote less politely, Key was “indolent and unread to a degree almost beyond belief” and had “committed the conduct of nearly all of official business to Mr. Ould.” Now Key was gone for good, and Ould was once again in his chair—this time in the most watched trial in history.

  The courtroom was hot, smelled, and was somehow more crowded than any previous day by people willing to stand for five hours. The jury walked down Pennsylvania Avenue in a double file line, led by two bailiffs, “attracting as much attention as a military company without music.”1

  John Graham complained that his correspondence with Sickles had been tampered with at the post office. Letters had been opened in transit or never reached their destination. He could complain all he wanted. Postal workers were not immune from Sickles mania.2

  Judge Crawford told the court about the juror who had talked to him after yesterday’s adjournment. “I think it right to mention this publicly in case counsel may think proper to move about it.” The problem was that Crawford did not remember who it was. “So little impression did the man’s appearance make on me, that I cannot recognize him now.”3

  William Moore identified himself as the unmemorable juror. “I was impressed with the responsibility that rested on me, and felt a kind of shrinking from the duty” by his attempts to leave.

  “I hope you were,” Crawford said.

  “It made me feel unpleasant, but this morning I can say to the court that I feel perfectly satisfied on my own mind.”

  “Very well,” Crawford said. “I am glad to hear it.”

  The twelve jurors were called by name and answered. The Clerk asked Sickles to stand up in his box. “Daniel E. Sickles, look on the jurors while the indictment is being read.”4

  The clerk read the findings of the Grand Jury before the court: “. . . Daniel E. Sickles, in his right hand, then and there had and held, then and there feloniously, willfully and of his malice aforethought, did discharge and shoot off, to, against and upon the said Philip Barton Key . . . did strike and wound him . . . the said Philip Barton Key, then and there instantly died . . . [Sickles] of his malice aforethought, did kill and murder, against the form of the statute in such case made and provided, and against the peace and government of the United States.”

  When the clerk finished reading, he asked Sickles: “Are you guilty or not guilty?”

  Sickles looked the jury “full in the face.” “Not guilty,” he said, “in a clear, firm tone.”5

  Ould began his opening statement. He was a “fine, square built, athletic man,” “one of the finest looking men in the District,” with small gray eyes, a broad forehead, and straight black hair. He looked “like a friend to be honorably trusted” and was known for his “ability, vigor, and legal experience.”6

  “May it please your honor and gentlemen of the jury,” Ould began, “the indictment which has just been read to you charges Daniel E. Sickles, the prisoner at the bar, with the willful murder of Philip Barton Key.

  “In the soft gush of that Sabbath sunlight, at an hour midway between morning and evening did he commit this act . . . when the church bells were lingering in the air, the deceased all unconscious of the tremendous woe [ahead].”

  Sickles “had come to that carnival of blood fully prepared,” a “walking magazine,” with different kinds of guns, a “temporary armory” beneath his “convenient overcoat on an inconveniently warm day.” The defenseless Key plead for his life, which “might have moved other men” but “fell upon ears of stone” in this instance.

  “[F]rom the first act in this tragedy down to its full fruition . . . through each and every successive scene of horror not only [was] the deceased unarmed, but that the prisoner at the bar knew such was the fact; that he must have known it when the first shot was fired at the corner; that he must surely have known it when, subsequently, the exclamations of the deceased were ringing in the air; and that, if possible, more certainly still he must have known it when he stood bravely over his victim, revolver in hand, seeking to scatter the brains of one who had already been mortally wounded in three vital parts, and whose eyes were being covered with the film of death.”

  This was murder, “no matter what may have been the antecedent provocations in the case . . . four or five shots were fired, or attempted to be fired,” punctuated by “[e]arnest, perhaps frantic entreaties such as a man would make for his life,” for “the little ones that he had lef
t clustering around his hearthstone.

  “Murder, gentlemen of the jury, as you will find the definition accepted by almost all the civilized world, is the unlawful killing of a human being with malice aforethought.”

  This law has “come down to us consecrated by time . . . springing like an arch . . . over the vast chasm which separates the remote past from the present.

  “Whenever those principles are perverted, whenever they are warped for the purpose of shielding a criminal, whether he be humble or powerful, a blow is struck at both humanity and justice. The jury that sends its deliverance to the offender, whose stains are not washed off by the evidence of the trial, is itself morally derelict to the high obligations which humanity alone imposes on it.

  “Innovation, even in its widest moments, has never yet suggested the propriety of allowing revenge, as either a justification or even a palliation of the crime of murder. Human society could exist upon no such basis.

  “The common law has the most sacred regard for human rights. So sacred that even the rankest criminal who has assumed unto himself the functions of judge, jury, and executioner, is himself given by that law the privileges of a fair and impartial trial. It gives today, to Daniel E. Sickles, the prisoner at the bar, not only what he denied his victim—an impartial jury, and an upright judge—but, until he is proven guilty, clothes him in the spotless robes of innocence.

  “[P]roclaim to the four quarters of the now listening world that there is virtue yet left in a jury, no matter how high the position or lofty the pretensions of the offender.”

  Ould had spoken for around forty minutes with the judge, jury, and audience listening with “breathless attention.” The Post called it “eloquent and effective.” The Star thought it “was one of the most masterly legal efforts ever listened to in this District. Clear, concise, temperate, and conclusive, it carried conviction to the minds of all who heard it.”