Geyer began by relating the details of an interview that he had conducted with the prisoner in the cell room of City Hall on November 20, 1894—the day Holmes had been returned to Philadelphia following his arrest in Boston. After interrogating Holmes about Pitezel’s death, Geyer had asked him “what became of the children.” Holmes had proceeded to spin his now-familiar tall tale about turning them over to Minnie Williams.
At that point in Geyer’s testimony, Graham turned toward the bench. “I propose, may it please the Court, to go on and prove the finding of the remains of these children.”
Rotan leapt to his feet. “I insist that this is a matter which should not be discussed before the jury.”
At the judge’s direction, the bailiffs escorted the jury members from the room. As soon as they were out of earshot, Graham addressed the judge again:
“My offer is to prove the investigation concerning the whereabouts of the three children, and the finding of the body of Howard Pitezel in the house at Irvington in the suburbs of Indianapolis, and the finding of the body of Nellie and that of Alice at number 16 St. Vincent Street in the city of Toronto.”
Graham took a step toward the bench, his thumbs hooked in his vest pockets. “It seems to me—and I have given the matter a great deal of earnest thought—that these things are so ultimately connected with the occurrence at 1316 Callowhill Street that they constitute part of one and the same transaction. I am perfectly aware that the rule is—and it is a wise rule, too—that a man cannot be convicted of one offense by proving he committed another. But a line of authorities in Pennsylvania clearly indicate that the commission of other crimes may be proved for certain purposes. To make one criminal act a part of another, it must be shown that a connection between them must have existed in the mind of the actor.
“Surely,” Graham asserted after an instant’s pause, “there can be no greater or more pointed illustration of this proposition than this very case. Especially does this seem to be the case when we recall the fact that one of these children, whose bodies were found in the house in Toronto, was Alice Pitezel, the little girl who came on here and identified the dead body of the man as her father.”
Graham’s tone became more impassioned as he continued. “Holmes, if he had committed no crime, would have had no motive for the removal of that child. But having murdered her father, whom she identified, it became a part of his purpose to remove one of the elements that would menace him all the days of his life. He starts the wife, Mrs. Pitezel, with himself in flight, after taking the children from her, and moves her to various places. These are acts which he did in flight. Every act the man does in flight for the purpose of screening and protecting himself is evidence, since it grows out of the original crime, even if it be the commission of a new crime. He succeeds in getting rid of the three children in flight—a part of the continuous transaction.
“I submit these acts of his are connected together, spinning out of the same motive, resulting from the same thought. Indeed, we offer this evidence in support of the theory that this man intended to murder, not only the three children and the father, but also every member of that family.”
As he brought his argument to a close, Graham introduced a pronounced note of deference into his voice, as though to communicate his utmost faith in Judge Arnold’s sagacity. “I do not think I have anything further to add, but I earnestly urge what I have said upon Your Honor’s attention. I believe this evidence to be admissible. I think I have clearly come within the scope of the general rule, and this evidence ought to go to the jury as part of the case.”
With the audience sitting in rapt silence, Graham returned to his seat, while Rotan stood to present his reply.
“May it please this honorable Court,” he began. “My associate and I recognize that now we have come to the most important part of the case, for it seems to me the outcome, to a very great extent, depends upon the admissibility of this particular evidence. As the district attorney has said, it is a well-known principle that when a man is on trial for the commission of a certain crime, evidence that he has committed another crime is inadmissible. From time to time, certain exceptions have grown up, but I have failed to find, in all the cases I have looked up, where the rule could be so broadened in scope to meet the proposed offer of evidence with respect to the alleged deaths of the three children in its application to the alleged death of the father.”
Rotan quickly glanced at some notes he was clutching in one hand. “Justice Agnew, in Shafner versus Commonwealth, says that there must be a oneness of purpose, a sameness of purpose, and that if a number of deaths are caused apparently by an act of a defendant, it is necessary that the purpose must have been formed prior to the killing of any one of the deceased.
“Now, may it please Your Honor, applying that reasoning to this case, it will be necessary for Your Honor to believe, in order to admit this evidence, that Holmes had intended to take the life of every person who has died so far, and not only that—according to the argument of the district attorney—but also the life of Mrs. Pitezel and the life of the remaining child, Dessie. He could not have a motive for taking the lives of those who are dead without taking the lives of those who are living. It would break the connection.”
Rotan paused for a moment, as though to let his point sink in. “Is it fair to assume that there is any evidence he intended to take the life of Mrs. Pitezel? Is there any evidence in the case to justify the assumption that he intended to take the life of Dessie?”
Rotan shook his head gravely. “My associate and I submit that there is nowhere evidence to indicate that Holmes had in mind any of these deaths. We therefore feel, from all the circumstances of the case, that Your Honor must not admit any evidence of this kind. It is the hinging part of the case, and we feel, as I say, that Your Honor should not admit it.”
Though his oratorical skills were no match for Graham’s, Rotan had argued effectively. Even before he was finished, however, Judge Arnold seemed to have reached a decision.
“The Commonwealth’s argument,” he declared as Rotan returned to his seat, “that the prisoner killed Alice Pitezel for the purpose of destroying her as a witness has nothing to support it. She was not a witness to the offense. Had she been a witness to her father’s murder and then was killed, that, of course, would be evidence that could go in. But there is nothing of the kind here. All the little girl did was to identify her father a week or two after he was killed.
“To say that the murder of the girl at a subsequent time is competent in this trial—that would make an imaginary connection between the two acts. This prisoner is now on trial for the killing of Benjamin F. Pitezel in the city of Philadelphia, and that is the only case to be tried here. Evidence of his subsequent killing of these children elsewhere will not be admitted.”
Leaning forward on his folded arms, Arnold directed his final words at Graham. “If he is not found guilty of the one murder for which he is indicted, he may be sent to Canada or Indiana. But he cannot be tried for these extraneous offenses now.”
Arnold’s ruling meant that nearly three dozen witnesses—from Detroit, Indianapolis, Toronto, Vermont, and elsewhere—had made the trip to Philadelphia for nothing. Excluded, too, was a boxful of gruesome evidence—including the charred bones of Howard Pitezel—that Graham was prepared to display.
The decision was a blow to the prosecution and a disappointment to the crowd. Rotan and Shoemaker, on the other hand, were visibly elated. They had scored a substantial victory—the first they could legitimately claim.
Indeed it seemed to infuse Holmes and his lawyers with a heady sense of confidence and prompted them to make a tactical move that would provide the final sensation of the trial.
50
Whereas the law is passionless, passion must ever sway the heart of man.
—Aristotle, Politics
When Holmes entered the crowded courtroom at the start of Friday’s session, he seemed surprisingly relaxed—almost chipper. “His
step was firm and springy,” observed the Inquirer’s man. “His eyes looked bright and confident. He walked as though he had passed a restful night.”
There were, according to the reporter, only two apparent reasons for Holmes’s buoyant mood: “Either his breakdown of the day before had relieved the tension on his sadly-taxed nerves, or the victory that his lawyers had gained had given him renewed strength.”
Whatever the case, he seemed to have recovered all his old arrogance. He cast a defiant look around the courtroom as he climbed into his wire pen.
The prosecution devoted the morning to tying up a few loose ends. Both Carrie Pitezel and the coroner’s physician Dr. William Mattern were briefly recalled to the stand—the former to identify her deceased husband’s shirt cuffs, the latter to confirm that involuntary fecal discharge can occur only “at or immediately before death,” not “after rigor mortis sets in.”
As soon as Dr. Mattern stepped down from the stand, Graham rested the Commonwealth’s case. By then it was time for lunch.
When the court reconvened at two P.M., the room was jammed to overflowing. Those who couldn’t find seats—men and women alike—occupied every inch of standing room, jostling for a clear view of the stand. They had come to watch the defense mount its case. According to rumor, Holmes was slated to appear as the star witness, perhaps that very afternoon.
Ten minutes went by, but the defense table and prisoner’s dock remained empty. The crowd grew as restless as a theatrical audience waiting for a late curtain to rise. Finally, at 2:12 P.M., Holmes was taken to his place, followed a few minutes later by Rotan and Shoemaker. The former, looking flushed and nervous, offered a quick apology to the judge, who accepted it with a curt nod.
Three more tense minutes passed while Holmes’s lawyers held a hushed conversation. Then Rotan stood and addressed the judge:
“May it please this honorable Court, the Commonwealth has all its evidence in, and we feel sure that the Commonwealth has failed to make out its case. It is incumbent upon the Commonwealth in all criminal cases, wherever tried, that they must prove that case beyond a reasonable doubt. We feel from the evidence that has been put in here that there exists that reasonable doubt.
“The Commonwealth has proved the fact that these men were intimate and that they came here for the purpose of carrying out an insurance fraud. But the medical testimony does not show that this man was killed by somebody else. It raises a doubt. It shows that it may possibly have been a suicide. We feel that the Commonwealth has not made out what is known as corpus delicti. They have proved that a man’s body was found there, but they have not proved beyond a reasonable doubt that anybody killed him.”
Rotan’s voice had seemed a little shaky at the start, but he ended firmly. “That reasonable doubt the defense is entitled to, and we ask, may it please this honorable Court, that you give the jury binding instructions.”
Rotan, in short, was asking the judge to direct a verdict of acquittal.
Before Judge Arnold could reply, Graham spoke up. “It is so ridiculous,” he exclaimed, “that I will not argue it.”
Judge Arnold seemed to concur: “I decline to make any such ruling. The jury must find a verdict for itself. I will not express any opinion.”
After another hurried conference with Shoemaker, Rotan returned to his place and again addressed the judge:
“Your Honor, we have now reached the stage where it is incumbent upon the defense to decide what the defense shall be. As I said to the Court before, we feel we have not had enough time to properly prepare our defense, and we ask Your Honor to give us an hour or two in order that we may decide upon the outline of our defense. We have worked very hard in regard to other matters, and on account of the peculiar features of the case we ask the Court for a little time.”
Making a small, exasperated sound, Judge Arnold agreed to a half-hour recess. As Holmes and his lawyers made their way from the room, a murmur went up from the crowd, which seemed to sense that something unanticipated, even extraordinary, was about to take place.
They were right.
Forty-five minutes later, well past Judge Arnold’s allotted time, Holmes and his attorneys returned. As Shoemaker sat down at the defense table and Holmes took his place in the dock, Rotan approached the bench. And dropped a bombshell.
“May it please this honorable Court, Mr. Shoemaker and myself have just had a consultation with the defendant in reference to the defense. We feel that—owing to our inability to bring in a number of important witnesses from other places—it is advisable for us to close the case now, putting in no testimony whatsoever.
“We do this, Your Honor, also from the fact that we feel that the Commonwealth has failed utterly to make out its case.”
It was the final and perhaps most astonishing turn in this unprecedented trial—“the last grand play,” as one newspaper put it, “in a daring game which had for its stake a human life.” The defense had decided to call no witnesses on Holmes’s behalf. It would submit its case on final argument alone.
When Rotan’s meaning became clear to the crowd, they sent up a groan of disappointment—the sort of sound heard in Broadway houses when the management announces that, because of illness, the lead role will be played by an anonymous understudy instead of the legendary star. Judge Arnold banged for order, then adjourned the court until ten the next morning, when final arguments would be heard.
By seven o’clock on Saturday morning, the hallway outside the big courtroom was already mobbed. Men, women—even children—pushed, tugged, and elbowed each other in their struggle to work their way close to the entrance. When the big double doors were finally opened around nine forty-five, the crowd surged forward with a roar. Many of those who managed to make their way in did so at the cost of scratched cheeks and torn clothing.
For the first time since opening day, the big upstairs gallery was made available to spectators. In less than a minute, it was filled to capacity. A few of the female spectators had come equipped with opera glasses. Perched on the edge of their balcony seats, they held the little binoculars to their eyes and leaned forward for a good look at the defendant.
It did not require such intensive scrutiny to see that Holmes—for all his show of bravado—was suffering from a bad case of nerves. Sitting in his wire pen, he tried writing something on his ever-present notepad, but his fingers shook so badly that he was forced to abandon the effort.
Shortly before ten, District Attorney Graham—whose final speech was expected to be the highlight of the session—strode into the room, trailed by a large, mostly female retinue. After showing his lady friends to their seats, he took a moment to find places for the rest of his party, whose members included former DA William B. Mann—himself a legendary orator—and such luminaries as General Louis Wagner, Major Moses Veale, and Christopher L. Flood.
Almost predictably, Holmes’s counsel supplied some last-minute melodramatics. At ten-fifteen A.M. Judge Arnold had begun to drum his fingers on the bench when Lawyer Rotan rushed in to announce that he had just received word that his partner was ill. Promising to “make as much haste as possible,” he hurried from the courtroom.
He was back in five minutes. “May it please Your Honor,” he said, breathing as raggedly as though he had returned at a jog. “I have gone over to a drugstore, where I found Mr. Shoemaker under the care of a physician, who says that he is in a complete state of nervous prostration. I know that he has been ill for the last day or two. But Mr. Shoemaker says he is willing to leave the entire matter in charge of the Court—that if the Court feels that the case should go on, he has no objection at all. I express the sentiment myself, but at the same time, of course”—here, the ruddy-faced young lawyer paused to catch his breath—“I recognize that the defendant is by law allowed the right to have two speeches.”
A brief dispute followed in which Rotan insisted on his right to make both the opening and closing statements, with the Commonwealth’s final remarks sandwiched in between. Judg
e Arnold disagreed with this interpretation, asserting that it was the prosecution’s right to present the closing argument.
Graham settled the matter with a gesture that struck the crowd as supremely generous. Standing, he gave a gracious nod in his opponent’s direction. “In view of the fact that Mr. Shoemaker is ill,” he declared, “and that Mr. Rotan is here by himself, I propose on behalf of the Commonwealth to voluntarily waive my right to close the case. I will make the opening speech to the jury and leave Mr. Rotan the closing argument.”
With that, Graham gathered up a sheaf of papers, drew himself to his full, imposing height, and stepped before the jury box.
Graham had a well-deserved reputation as a spellbinder, and his final statement—combining clear, compelling logic with passionate oratory—amply demonstrated his skills. “Gentlemen of the jury,” he began in his deep, resonant voice. “I am quite sure that it is with a feeling of relief that you see the end of this trial rapidly approaching, and that you—who have been taken from your homes, your places of business, and practically imprisoned during the whole length of the proceedings—are now to be released and permitted to return and resume your usual places and duties in society.
“I propose to ask you now to join with me in reasoning for a little while about the evidence which you have heard—the testimony in this case. I am going to ask you to give me your best attention, and your best thought, while I try to refresh your recollection and aid your reason in reaching the right conclusion from the evidence.
“The Commonwealth of Pennsylvania wants no victim. The Commonwealth of Pennsylvania does not ask for the conviction of this man—though he may be covered with the evidence of guilt in other matters—unless, in this specific case now on trial, the testimony that you have heard points indubitably to his guilt and authorizes his conviction. I ask your attention to the evidence because I propose to say to you that, after a careful perusal of it, my mind is forced to the conclusion that I must press upon you the discharge of a great, and perhaps to you, a trying duty.
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