Star Spangled Scandal

by Chris DeRose

  “What was said on that occasion?” Stanton asked.

  Objection!

  Stanton “proposed to show that the lock was taken off for the purpose of destroying evidence.”

  Ould withdrew his objection.

  Stanton “wanted to know whether it was the persons engaged in the prosecution who tried to destroy this evidence.”

  Carlisle demanded to know whether Stanton made insinuations that it was him.

  “None in the world. God forbid I should believe you would do it.”

  The Judge intervened. This “is an exceedingly grave case, and must be conducted with a great deal more regard to dignity and order and decorum than has been observed hitherto. I cannot permit this.”

  “I ask the witness what I asked him before,” Stanton said.

  “But it must be done in an orderly manner,” said the Judge.

  Stanton returned his attention to the witness. “What was said about this lock at the lock and who said it?”

  John Gray directed its removal, Jacob Wagner said.

  “Were the other persons present at the time?”

  “No, sir.”

  “What time was it?”

  “About eleven o’clock.”

  “How long were you engaged in taking it off?”

  “Ten minutes.”

  “What door?”

  “The front door.”

  “Was there another lock put on that door?”

  “There was.”

  Chapter Thirty-Eight

  An Intense and Sudden Excitement

  John Seeley was a painter who lived near the Gray house. “I witnessed the taking off the lock. Saw opening of the back door and heard the order given to take the lock off the front door, because, as I thought, the key had been lost. Mr. Charles Lee Jones and Mr. Pendleton were present. One of them directed the locksmith to remove the lock off the front door.

  Louis Poole was next. He was also a neighbor. He was present when the lock was taken off. “Mr. Pendleton ordered the old lock to be taken from the door and replaced by a new one.”

  Woodward, the coroner, was recalled as a witness. “Had you in your possession, at any time, any papers, cards, memorandums, or anything of that kind belonging to Mr. Key?”

  “No. Last Monday in court, a gentleman asked me if I was aware that Dr. Miller had taken some papers out of Mr. Key’s pocket. That was the first I heard of it.”

  The next witness was Reverend C. H. A. Bulkley of Westminster, Connecticut. “I have known Mr. Sickles since 1838. We were associated together in the New York University.”

  “Do you know the liability of Mr. Sickles to intense and sudden excitement?” Brady asked.

  “Yes, sir.”

  Carlisle objected. Proof of excitability is inadmissible unless going to the extent of insanity.

  Brady explained: “Some men are lunatics for a few days, some for years, and some are incurably insane. The physiological and psychological constitution of a man, as bearing on a tendency to insanity, is a fair matter of evidence.”

  Carlisle withdrew his objection.

  “State what you know of the tendency of Mr. Sickles’s mind to become disordered on being subject to great emotion.”

  It was 1840, observed Bulkley. Professor Da Ponte the younger, Sickles’s mentor and friend, had died suddenly. As his body was lowered into an open grave, Sickles “broke out into a spasm of passionate grief and most frantic energy. He raved, and tore up and down the graveyard shrieking, and I might even say yelling, so much so that it was impossible for us who were his friends to mollify him in any measure by words. We were obliged to take hold of him, and by friendly force restrain him, and thus ultimately we took him out of the cemetery, the demonstration that he made might be called one of frantic grief.”

  “Is the statement now made by you one that was sought by the prisoner’s counsel, or are you here in consequence of a voluntary communication from you?”

  “It has not been solicited at all.” Bulkley continued, “I suppose we would have called ourselves young men then. I cannot say how long this frantic grief lasted. Somewhere between five and ten minutes. I saw no trace of it the day following.” This grief “was the most remarkable one I ever saw. I have been in the ministry for several years, and have never seen anything like it. We were apprehensive of some further violence to himself, and that his mind would entirely give way.”

  Major Hopkins took the stand. He worked as a coachman for Colonel Freeman, on H Street between Fifteenth and Sixteenth Streets. The week of the shooting, he saw Key walk back and forth “five or six times. Mrs. Sickles came out and joined him on the corner of H Street and Madison Place. I saw them go up Fifteenth Street and lost sight of them on the steps of John Gray’s house.”

  Carlisle cross-examined. “As a matter of curiosity, is Major your Christian name or title?”

  “My name.”

  “That explains why the Major drives the Colonel’s carriage. Do you know Mrs. Sickles well? What’s her size?”

  “She is not very large nor very small, but of middle height, light hair, a little stout. I cannot say how tall she is.”

  “How tall are you?”

  “About five feet seven inches.”

  “Is she as tall as you?”

  “I guess not.”

  “Is she five feet two?”

  “I can’t say, I never measured her.” The marshals had to quiet the “excessive laughter.”

  “I saw her with her veil up,” he continued, “and distinctly recognized her. She had on a black dress and dark cloak, bordered with red and white.”

  Carlisle put the witness on the defensive as to his exact vantage point and what could be observed from there and then excused him.

  Nancy Brown was the next witness. For years, she had been the conduit of all information in the neighborhood north of Lafayette Square. Now, it was her turn to take center stage in the biggest story in the country. Nancy claimed not to hear the oath. She moved close to the clerk and had him repeat it. Nancy lived two doors down from No. 383, she testified. Her husband is the president’s gardener and she recognized Mr. Key. “I saw him on the Wednesday before he was shot.”

  “Where did you see him?” Brady asked.

  “Going into a house on Fifteenth street, the next but one to where I live.”

  Carlisle attempted to cut off the testimony. “They were sliding along in the direction of giving evidence of adultery.” Did your Honor mean to admit evidence of adultery between Key and the prisoner’s wife? If so, the state “would have evidence to offer on the same subject.” Nancy Brown’s moment of fame, it seemed, would have to wait.

  “I will say a few words, politely, I hope, in response to the prosecution.” Brady said. The evidence is offered “to prove an adulterous intercourse and connection carried on between Mr. Key and Mrs. Sickles by a standing agreement between them, dating further back than the hiring of this house on Fifteenth Street. “When a man and a woman go habitually to a house for the purpose of adultery, they are living in adultery all the time, and it was not necessary for the husband to wait for the disgusting exhibition of his own dishonor to slay the gorged and satiated and brutal adulterer.”

  After testimony on the handkerchief, “no one could look on any part of this case without seeing this tainted banner floating in the atmosphere. They had shown that with that banner in his hand, and with the key of that house of prostitution in his pocket, the deceased was hovering around the house of Mr. Sickles when the outraged husband met and slew him.” The deceased was killed in the act, Brady said.

  “As I understand this proposition,” the judge said, “it brings up the question of admission of proof of adulterous intercourse.”

  The court took a brief recess. When they resumed, Carlisle objected to any evidence of adultery, warning of dire consequences arising from a dangerous new precedent. Rest on the ancient roads of the law, Carlisle said, rather than “new and devious paths.” He cited legal treatises
on homicide: “If time had elapsed for passion to subside, the killing is murder.” Evidence of the affair is irrelevant. If he had caught them in the act, he could make a case for the lesser charge of manslaughter. But he did not.

  Carlisle cited the case of Queen against Fisher, where a father murdered a man who had corrupted his son. The court ruled “that there would be exceedingly wild work taking place in the world if every man were allowed to be the judge of his own wrongs.” Only “an instant provocation” could justify manslaughter.

  Fisher was convicted of manslaughter, Brady replied.

  “That is true.” But the facts showed a scuffle that proceeded the killing, giving the jury what it needed to spare the father his life. “As a humble member of this community, as one who expected his bones to rest on this soil, and the bones of his children, and his children’s children to rest in the same hallowed soil,” he would regret living to see the day “that such a doctrine should be proclaimed by the authority of the jury box.”

  Carlisle then moved on to the case of Jarboe. There, “the deceased had drawn from his person a loaded weapon, which fell at his feet.” That is not the case here. “If a woman leaves her husband’s house and goes to live with her paramour in open adultery, might the injured husband at any time he thought proper go and slay that adulterer?” The handkerchief, the key, the house, what did it prove? “Did that knowledge justify murder? Why, not at all.”

  “I beg your pardon,” Brady said. “Nobody has stated that in my hearing. The proposition is that just before Mr. Sickles left his house that Sunday, he had discovered these facts and had also witnessed the waving of the flag.”

  “It was only competent to inquire into the question of insanity itself,” Carlisle said, “not into the cause of that insanity.”

  There was an argument over whether Sickles could have sought legal recourse. Adultery is a misdemeanor, Carlisle said, and some have been punished for it.

  Magruder asked, “under the statute of Maryland, the punishment for that crime was not a fine of a hundred pounds of tobacco?”

  Carlisle didn’t know.

  “Then the only satisfaction an injured husband could have would be a chew of tobacco.” There was laughter in the court.

  Carlisle said that he would conduct the case in truth, justice, and that if he departed from his duty, he trusted his life would not be spared.

  Brady said, “Certainly we don’t want Mr. Carlisle to die.”

  “We are growing so fond of each other, sir,” Carlisle replied, “that I am afraid it will prevent us from doing our duty.”

  Phillips joined the fray. “The evidence we propose to offer is on four points: justification [that a man is justified in killing the lover of his wife], provocation [that the crime should be no worse than manslaughter], insanity, and explaining the defendant’s words at the time of the homicide (“You have defiled my bed!”), which had been introduced by the prosecution’s witnesses.1

  The hour of adjournment arrived.

  DAY TWELVE—Saturday, April 16, 1859

  Phillips resumed his argument to introduce evidence of the affair. If the evidence is admissible for any reason, he said, then it must be admitted. The indictment accuses Sickles of murder, not just a killing. Murder requires malice. Malice can be rebutted by showing that the killing was in passion. “As the law declares adultery to be the greatest of all provocations,” it would be absurd to allow evidence of their friendship while excluding evidence of the affair. He was not urging the invention of new law but the application of existing law to new facts. “What were the rules of evidence made for, but the elucidation of the truth?

  “It is said by my learned friend that malice may be presumed out of the act of killing. Granted. But this is only a presumption, and like other presumptions, may be rebutted by evidence showing the fast friendship of the parties, which would exclude malice. It may be shown that the killing rose from passion excited by just provocation.”

  Phillips then referred to Commonwealth against Bell, “where a judge held that passion arising from sufficient provocation is evidence of the absence of malice.”

  The state is arguing that seeing a wife in the act of adultery can produce sufficient provocation to lessen the sentence of murder, but “if he did not see it, then the adultery, however heinous, and under whatever state of aggravation the mind can conceive, forms not the slightest provocation in the eye of the law for the act, and the gentleman in giving his construction of the word ‘finding,’ which is the word in most of the books, interprets it to mean ‘see with his eyes the act of adultery.’

  “The knowledge of the adultery of Mrs. Sickles was the propelling power, and was part of the res gestae.” Res gestae was an ancient rule that allowed evidence that would otherwise be excluded in order to tell the complete story.

  Sickles “was the witness of his wife’s shame, and in imagination could carry himself to that period of time when on her bed she surrendered herself to the debasing lusts of Mr. Key. He became satisfied of the fact the night before; his feelings were hovering and culminating through the night; he had no sleep, this victim of grief; there was everything to drive his excitement forward to the maddening point, and every moment he heard the story of his wife’s shame and saw the infamy before him. Why deny the effect of this waving on the mind of the prisoner?

  “Now, why the eye? We have the eye, the ear, and the touch, all of them are mere messengers of the mind, in which knowledge is obtained.” He told the story of a former client, a stevedore returned from sea, who entered his home in the darkness, felt around the room for his bed, and where there was supposed to be an empty space, he “felt a man. He drew his knife—the knife of a stevedore—long and broad bladed, and stabbed him repeated blows, till he fell from the bed to the floor, dead.

  “Where then is the reason for the argument that no provocation of this kind is worth anything in a court of justice except it be presented to the eye?”

  The time for adjournment arrived before Philips got his answer.

  Chapter Thirty-Nine

  “John B. Haskin, Salad and Champagne”

  DAY THIRTEEN—Monday, April 18, 1859

  Newspapers across the country had charged ahead with turn-of-the-screw coverage of the trial. The Independent Democrat of Concord, New Hampshire begged “to be excused. We have already given the principal facts of the murder, and the alleged prosecution. If Sickles shall be acquitted or convicted, we shall give the result.” While “many, perhaps most of the papers” were “regaling their readers” with the gory details, they pledged to return to real news.1

  The New York Times and the New York Post continued their war of words. “Like the green grocer who gloried in having once been kicked by the King of France, the Evening Post of this city prefers superlative disgrace to comparative obscurity.” With “unflinching malignity . . . this obstinate little journal persists in pursuing a political opponent and a personal enemy under the cowardly pretext of a concern for public justice.”2

  The court had now heard hours of argument on whether adultery was evidence. Ould had the final word, challenging the defense to a single case where it had been admitted. If he had asked a few minutes later, there would have been a ready answer.

  Finally, Judge Crawford ruled: “I am of opinion that the evidence is admissible.”

  Stuart thought the silence that followed was “almost painful.” The trial of Daniel Sickles was soon to take a dark and unpredictable turn.3

  Nancy Brown was recalled to the stand and examined by Daniel Ratcliffe. She recognized Key as the man entering the front door of No. 383. She also claimed to know that Teresa was the woman who came in through the back. Brown had last seen them on the Wednesday before the shooting. They remained inside an hour.

  She told the story of how Key had come through her neighborhood last October, asking about the Gray house and whether it was for rent, and how she had helped him, telling who to ask to find out where John Gray was living.


  Key “came about three weeks after that, and tied his horse to my tree. I asked him whether he did not know that that was against the law?” The courtroom laughed at the neighborhood scold lecturing the US Attorney.

  “I suppose that is not evidence,” Ould said.

  “I asked him not to tie his horse there again.”

  “That’s not evidence,” Ould said. “Stop, Mrs. Brown.”

  “I was only telling you what it was. He said, ‘I won’t tie it there any more.’ He said, ‘I rented this house for a friend of mine and want to see how it is situated. He then untied his horse and went away. I never spoke to him anymore.”

  “Did you notice anything Mr. Key had with him?”

  “I noticed on that Wednesday he had on a shawl when he went in. It was on his left arm. But had none when he came out. This was on the Wednesday before he was shot. When he first came to the house, we laughed when we saw the smoke come out of the chimney. He went down to the yard and got wood to make a fire. Saw a white string tied to the upstairs shutters, so that when the wind blowed it would swing.”

  “Have you seen the shawl since?”

  “I saw the shawl, but you know there are many alike, I don’t like to swear to this one.”

  Ratcliffe asked for an officer to have the shawl brought in.

  “I don’t want to tell a lie,” Brown said. She looked at the shawl with the gray and red border. “This looks like it. He had it folded on his left arm.”

  “How was Mrs. S. dressed?”

  “She had on a little small plaid silk dress, which she wore open, and she had a black Raglan—a cloak, you know, as I call it—fringed with bugles, and a black velvet shawl with lace.”

  Brady asked the next question. “You say Mr. Key told you he hired the house for a senator or member [of congress]. Did anybody occupy it except for Mr. Key and the lady?”