Conan Doyle for the Defense

by Margalit Fox

  But by the Enlightenment, the perception of crime and criminals had changed. Crime was now seen as a misguided ethical choice, which allowed for the possibility, after removal from society and sufficient contemplation, of rehabilitation.*3 For citizens of the era, though, the essential question on encountering a stranger remained the same as ever: “Who are you, with whom I have to deal?,” as the philosopher Jeremy Bentham put it in the early 1800s.

  Because Enlightenment sensibilities deemed the mutilation and mob justice of a prior age inhumane, the state now began keeping meticulous dossiers on criminals. The main function of these records was to identify recidivists. A check of the files in a police department or prison could reveal whether a suspect had been convicted before, much as the brands had done in earlier times. But the system had a fundamental flaw: it was utterly useless if a suspect had changed his name, and this fact bedeviled law officers for decades.

  In the 1870s, Alphonse Bertillon, a civilian employee of the French police, sought a better way to identify repeat offenders. Exploiting the relatively new medium of photography, he created what we now call the mug shot: full-face and profile images of a convict, affixed to a card. To this card, he added copious data about the convict’s bodily dimensions. At a police station or prison, a newly arrived convict would be rigorously measured and the results compared against the sets of measurements already on file. A match, Bertillon argued, would prove identity even if the convict was using an alias.

  The system, known as bertillonage, was widely adopted by police departments in Britain and the United States. But while it did identify some recidivists, it was unwieldy, requiring intensive training to administer. By definition, it did not work with juvenile offenders, who were likely to have grown between measurements. And its very nature meant that it could be used only after the fact, when the suspect was already well in hand.

  Lombroso’s “scientific criminology” was designed to circumvent these problems. Anchored firmly in Victorian prejudice, it was a diagnostic approach that unapologetically trained the lens of the majority culture onto the Other. But even more than its underlying bias, the great hazard of Lombroso’s method was this: under the system, criminal identity was no longer read but was instead constructed.

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  BEFORE VICTORIAN TIMES, preemptive identification was simpler. When stranger met stranger, a set of well-known class signifiers—accent, attire, bearing, coiffure—reliably broadcast to each whether the other could be trusted or should be given a wide berth. No matter that these signifiers could not actually identify criminals: they successfully identified the Other, and that, for bourgeois citizens, was more than good enough. In the view of the seventeenth- and eighteenth-century upper crust, it was far better to have a warning system that overgenerated rather than undergenerated, and simply to throw all the lower-class babies out with the criminal bathwater.

  But with the coming of modernity, time-honored signifiers began to blur. As foreigners thronged their cities, Victorians, who could unerringly tell Cockney from the Queen’s English, found their ear for dialect of little avail. Even more worrisome, almost anyone seeking upward mobility—or illicit gain—could manipulate the old signals, adopting particular accents or modes of dress to counterfeit class identity.

  For the Victorian bourgeoisie, a modern identification system was needed, and if the old signifiers had broken down, they would simply invent new ones. It is here that Lombroso’s “scientific criminology” enters the fray. If public order depends on social control, its guiding principle went, then it is vital to be able to recognize whom one needs to control. And so Lombroso set out to produce a field guide to the common criminal.

  Where criminalistics, rooted in real science, would focus on the crime scene, criminology focused on the criminal. Like many intellectual enterprises of the period, it was inspired by Darwinian theory, which coursed through the age like an electric charge. But in the hands of Lombroso and his fellows, criminology proved to be Darwinism of the darkest kind.

  To these criminal anthropologists, criminality was inborn—an innate predisposition that no amount of reform could undo. What was required, they argued, was a way to identify habitual criminals (along with those men and women, guilty of no crime, who possessed inherited criminal tendencies) through a set of anatomical signifiers. These signs were broad enough that they could be read from afar, like the topmost line of an eye chart.

  In his magnum opus, Criminal Man, published in Italian in 1876, Lombroso wrote of having spied the link between physiognomy and criminal character in the 1860s, when he performed an autopsy on a known malefactor. “This was not merely an idea, but a revelation,” he wrote. Whipping himself into a lather of gothic melodrama, he continued:

  At the sight of that skull, I seemed to see all of a sudden, lighted up as a vast plain under a flaming sky, the problem of the nature of the criminal—an atavistic being who reproduces in his person the ferocious instincts of primitive humanity and the inferior animals. Thus were explained anatomically the enormous jaws, high cheek-bones, prominent superciliary arches, solitary lines in the palms, extreme size of the orbits, handle-shaped or sessile ears found in criminals, savages, and apes, insensibility to pain, extremely acute sight, tattooing, excessive idleness, love of orgies, and the irresistible craving for evil for its own sake, the desire not only to extinguish life in the victim, but to mutilate the corpse, tear its flesh, and drink its blood.

  Lombroso’s work did not appear in English until 1911, but Victorian Britons knew it from secondary sources. Among them were the writings of Havelock Ellis, the English physician and eugenicist, who had helped popularize the term “criminology” in the 1890s. Even more influential for British criminology of the day was the work of Francis Galton, an ardent eugenicist and a cousin of Charles Darwin. Seeking to ensure the purity of the British gene pool, Galton experimented with composite photography: he superimposed criminals’ faces atop one another, producing what he hoped would be an image of the ur-criminal, with features common to the entire criminal class. Once identified, members of that class could be kept from breeding.

  Galton’s work, like Lombroso’s, overtly married criminal anthropology to the eugenic program, a common coupling then. A fringe benefit of their systems was that once classifications of criminal features were drawn up, they could be extended to any unwanted group, be it Gypsies, Jews, or other immigrants. This—a social enterprise that the criminologist Paul Knepper would call “the racialization of crime”—the Victorians enthusiastically set out to enact.

  Excluding immigrants was easy, as bans could be legislated. In the United States, the first major law restricting immigration, the Chinese Exclusion Act, was passed by Congress in 1882 and signed into law by President Chester A. Arthur. In Britain, Parliament passed the Aliens Act in 1905. The act denied entry to “undesirable immigrants,” a conveniently elastic term understood as code for Eastern European Jews. It is striking to note the conflation of foreignness with criminality, a contrivance used to justify identifying, marginalizing, and punishing the convenient Other. Today we call it “profiling.”

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  THE FIRST TRULY CRIMINALISTIC approach to identification began in the late 1800s with the work of Hans Gross. An Austrian jurist who was fascinated by the application of the new science to the solution of crime, he published his monumental work, Handbuch für Untersuchungsrichter, Polizeibeamte, Gendarmen, in 1893.

  Gross’s work represented a significant advance over the dark anthropology of Galton and Lombroso.*4 To their subjective, racialized approach, he brought the rigor of scientific method: instead of reading imagined signs off the criminal’s body, investigators would read them from the locus of the crime. His handbook ranged over such subjects as “What to Do at the Scene of Offence,” “Search for Hidden Objects,” “Construction and Use of Weapons,” “Reproductio
n of Footprints,” and “How to Register and Describe Traces of Blood.” But it did not see English translation for more than a decade, appearing only in 1906 under the title Criminal Investigation: A Practical Handbook for Magistrates, Police Officers and Lawyers.

  In 1908, when detectives confronted the Gilchrist murder, the old criminological methods of Galton and Lombroso and the nascent criminalistic ones born of the scientific revolution existed side by side. This was their forensic watershed, and to their credit, they did try the new methods. But in the Gilchrist case these methods were still so primitive that they proved either immaterial or unworkable. As a result, Slater was consigned to the mercy of criminology, which neatly constructed guilt where none had existed before.

  It is not clear whether Glasgow detectives knew Gross’s work, which had appeared in English just two years earlier. They were familiar with fingerprinting, introduced in Britain at the turn of the twentieth century.*5 Dusting Miss Gilchrist’s flat for prints, they found a suspicious one, on the workbox in the spare bedroom. But the best fingerprint technology in the world is only as good as the database against which a print can be compared, and the department’s files, barely a decade old, yielded no matches.

  With criminalistic techniques of little help in identifying Miss Gilchrist’s killer after the fact, police were left to fall back on the two alternative means of criminal identification. One was identification during the fact, by means of eyewitness testimony. This is where the spate of neighbors’ statements, methodically solicited, about the “watcher” outside the Gilchrist home came in. It is also where the testimony of Lambie and Barrowman, manipulated to damning effect, was allowed to do its work.

  But more than anything, the police reverted to the most pernicious means of identification of all: criminology, or the fingering of the criminal before the fact. It was this method, so closely bound up with the racialization of crime, that ensured the identification, pursuit, and conviction of Oscar Slater. As it transpired, the Glasgow police had begun their identification of Slater well before Miss Gilchrist’s murder.

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  CRIMINOLOGY’S CHIEF FAILING IS that it is the bluntest of blunt instruments. Because it can’t work after the fact, it can’t identify individual culprits. It can only tag a targeted person as belonging to a particular class—ethnic, social, religious, and so on. But given the anxious preoccupations of the Victorian age, the method’s great failing was also its great strength. At a time when the salient question between strangers was no longer “Who are you?” but “To which group do you belong?” criminology worked brilliantly as a means of preemptive social control, training a spotlight on members of marginalized populations.

  In a criminalistic investigation, detection precedes identification. By reading the “infinitely little” traces at the crime scene, the investigator homes in on the culprit’s identity. That is the logical order of things.

  Victorian criminology reversed the process. Criminology sees only the big taxonomic picture—the foreigner, the gambler, the pauper, the Jew. This approach, an unsavory exercise of the diagnostic imagination, is the time-honored refuge of the bigot. By criminology’s hall-of-mirrors logic, detection now follows identification, a topsy-turvy arrangement that recalls the Queen’s biting line from Lewis Carroll’s 1865 classic, Alice’s Adventures in Wonderland: “Sentence first—verdict afterwards.”

  With criminology as their primary tool, the Glasgow police knew that they could never use it to prove Slater’s guilt. But they could use it, masterfully, to construct his guilt. And thus, by the bourgeois imperatives of the day, the apprehension of Slater was a grand success, whether he had killed Miss Gilchrist or not. For if Oscar Slater was no murderer, then he was at the very least a convenient Other writ large.

  To the police, the brooch clue was a singular stroke of luck, for it netted a man of the kind Edwardian Glasgow wanted off its streets anyway—one who, to borrow the words of the American defense lawyer Eleanor Jackson Piel, was “available and disposable.” That the clue foundered scarcely mattered, for Slater’s capture and conviction remained a fourfold coup: in one blow, the city would be rid of a foreigner, a Jew, a gambler, and a member (at least intermittently) of the lower classes. Slater might as well be hanged for a sheep as for a lamb, the prevailing sentiment seemed to run, and of course he very nearly was.

  That Slater’s guilt had been rigged from the start was confirmed in 1927, when the Scottish journalist William Park interviewed him after his release from Peterhead. “For some time before the murder the police were watching his house to get him on a charge of immoral housekeeping,” Park wrote to Conan Doyle that year. He continued:

  He saw Lieut. Douglas & other officers watching him and was quite well aware of it. Just close on his arrest he saw repeatedly his men in observation.

  I find…a statement by Gordon Henderson, club master at the Sloper Club,*6 that the police called there on Wednesday 23d Dec. asking for Oscar Slater. This was two days before McLean reported the pawnticket….

  This gives us a new theory altogether. Slater was being watched for another crime & was rolled into the Gilchrist case as a handy sort of fellow to convict….As far back as 1911 Slater disclosed this fact of the police watching & letting him [get] away from Glasgow so as to roll him into “flight from justice.”…The police admitted they were at Slater’s house two hours or so before he departed and did not arrest him….

  The further we go into this terrible business we see nothing but pure manufacture of a case: deliberately operating beforehand to make a prosecution.

  In the end, then, it all came down to this: Oscar Slater arrived in Glasgow in the autumn of 1908. He was almost certainly known to the police from his previous stays. This time he was targeted on arrival and his movements observed. Then came the Gilchrist murder and, for the police, the happy coincidence of the brooch. That was all the pretext they needed to identify, pursue, and arrest Slater. When their case proved weak, police and prosecutors shored it up with dubious eyewitness statements, suborned perjury, withheld exculpatory evidence, and all the inflammatory illogic that the criminological method allows. At trial, the judge told the jury that Slater “has not the presumption of innocence in his favour…of the ordinary man”—branding him an outlaw in all but name.

  The case, a capstone to a century “virtually hypnotized by class,” as the historian Peter Gay has written, turned out to be about class in both senses of the word: it centered not only on Slater’s threadbare background but also on the set of damning, classifying labels that the majority culture had long affixed to him. It would fall to Conan Doyle to bring to the case the criminalistic approach it badly needed. It was this approach—scientific, rationalist, exquisitely abductive—that would ultimately redeem Slater, one of the most convenient “convenient Others” of his age.

  *1 A uniquely Scottish post that endures to this day, the office of procurator fiscal combines investigative and prosecutorial functions: it is somewhat akin to that of district attorney in the United States.

  *2 Because women of this era were already less than full citizens under the law, they technically could not be outlawed. But a court considering the case of a female suspect could achieve the same end by declaring her a “waived” woman—that is, a “waif”—in effect making her a piece of ownerless property.

  *3 The word “penitentiary” as a synonym for “prison,” used in this sense since the early nineteenth century, embodies the idea of a place of penance and reflection. So, too, in a more aggressive way, does “reformatory,” which entered English in the mid-eighteenth century.

  *4 Even Gross, however, was not stainless in this regard. He displayed a particular animus toward what he called “Wandering Tribes,” notably Gypsies, and his handbook recapitulates timeworn stereotypes of Gypsies as thieves, poisoners, and child-stealers.

  *5 Fingerprinting was such a
n untried technology in Victorian and Edwardian times that the entire Holmes canon contains scarcely more than half a dozen references to its forensic use, a clear indication that Conan Doyle did not accord it much weight as a diagnostic method.

  *6 A Glasgow gambling establishment.

  BOOK THREE

  GRANITE

  Chapter 9

  THE TRAP DOOR

  At 10:00 a.m. on May 3, 1909, Slater’s trial opened in Edinburgh at the High Court of Justiciary, Scotland’s highest criminal court. The presiding judge was the Hon. Lord Charles John Guthrie. On his right in the Georgian courtroom sat the jury of fifteen men, among them a warehouseman, a retired farmer, a clerk, a tinsmith, and a watchmaker. On Lord Guthrie’s left was the witness box; in front of him were the tables for the Crown counsel and the defense.*1

  The Crown’s chief prosecutor, known as the Lord Advocate, was Alexander Ure, assisted by two deputies. His table was laden with exhibits, known in Scottish law as “productions.” The Crown planned to introduce sixty-nine of them, including Miss Gilchrist’s workbox, Slater’s pawn ticket, his raincoat, the hammer, and a set of his calling cards printed with the pseudonym “A. Anderson.”

  At the defense table were Slater’s barrister, Alexander McClure; his assistant, John Mair; and the solicitor, Ewing Speirs. Behind the tables was the dock in which the defendant (who is known in Scottish courts as the “panel” or “pannell”) would sit; behind the dock was the gallery, packed with journalists and the curious public. Over the coming four-day trial, Lord Guthrie, through reflexive Victorian censure, and Ure, through malign advertence, would do more than anyone except perhaps the procurator fiscal, James Hart, to ensure Slater’s conviction. By virtue of his ineffectual representation, McClure, the defense counsel, would do almost as much.