Mathers shook his head. “I agree with the first part, not the second.”
“Not with psychosis?”
“Not with psychosis,” Mathers confirmed. As for the phrase “constitutional psychopath,” Mathers explained that it was a vague and ill-defined catchall, used to describe “a person who does not lack in intelligence but whose willpower is defective and who is likely to act very often, in fact most often, with his own ends in view, with not a great deal of regard for other people.” Such individuals were “likely to have unstable feelings” but could not be considered insane.
“But you admit that this man is not normal,” Stitt persisted.
“What do you mean by normal?”
“Well, you agree that he is a constitutional psychopath.”
Mathers shrugged. “Yes—and there are thousands of them walking around the streets of Winnipeg today.”
48
†
R. C. Graham
My learned friend made a stirring appeal for the tempering of justice with mercy, but that is far outside your province…. Mercy is no part of a jury’s deliberations.
Except for the sobs of Lillian Fabian, who had wept throughout much of Mathers’ testimony, there was absolute silence in the overpacked courtroom as the psychiatrist stepped from the witness stand. Moments later, James Stitt rose from the defense table and approached the jury box to deliver his final summation.
His speech lasted just twenty-five minutes. Looking earnestly from one juror to the next, he began by reminding them of their obligation—as the upholders of “British justice”—to rid their minds of prejudice and render a verdict purely on the basis of the evidence.
“What is the evidence?” he asked, raising his hands for a moment, then letting them drop to his sides. “It is entirely circumstantial. Circumstantial evidence may look strong. But remember this—that any chain of evidence is no stronger than its weakest link.”
Stitt then proceeded to discuss the ostensible “weak links” in the evidentiary chain. But his argument only underscored the weakness of the defense, since he could come up with little more than Sam Waldman’s poor eyesight and a minor discrepancy between Jake Garber’s and Mrs. Hill’s sense of chronology.
As if to acknowledge the flimsiness of this approach, Stitt quickly switched to another tack. In a voice charged with emotion, he beseeched the jury not to condemn a man who was so clearly insane.
“Can you say, after looking at the evidence, that the accused has any moral responsibility whatsoever?” he entreated. “Does he know the difference between right and wrong? The man’s whole life has been a life of aberration, the life of a man whose mind is disordered.
“Gentlemen,” he said, with an incredulous shake of his head. “It is rather extraordinary that you have to determine upon the guilt or otherwise of a man who has escaped from a lunatic asylum. The evidence is that the man has escaped. It is all there in the documentary evidence! It was agreed to by the Crown. He has been in an asylum twice, and he has escaped several times. There is no doubt that this man has a mind diseased and that he was irresponsible.”
As Stitt continued, be seemed to concede that, based on the evidence, Nelson was undoubtedly the perpetrator. But the very nature of the crime—brutal strangulation followed by postmortem rape—was flagrant proof of insanity. “If you find him guilty, you must find that he is a maniac,” he exclaimed. “It could not be done by a man with an ordered mind. It is absolutely impossible.”
He paused, as though to bring his emotions in check. When he resumed again, his voice was tinged with sorrow.
“Gentlemen,” he said softly. “Some of you have sons. Some of you have little boys around the farm or around the home. If your little boy was struck by a streetcar and suffered concussion of the brain and grew up in your home abnormal, unfit, without any responsibility whatsoever, what kind of justice would you expect to be meted out to your son?”
Bringing his summation to a close, Stitt made a heartfelt appeal to the jurors’ sense of Christian mercy and national pride, striking the first notes of genuine eloquence that had been heard at the trial.
“I do not know the justice that can be rendered without the element of mercy,” he proclaimed. “There is no man or woman under heaven who does not need to pray for mercy. What was the whole spirit of our civilization in the war that we have just gone through? It was against the ruthless exercise of power. It was to show that there was something in life besides power. That there was a spiritual element and that man does not live by bread alone but by the finer things of thought and being.
“I trust it shall never be said that in this case a Canadian jury found a lunatic responsible and sent him to doom without a full consideration of that fact. It would be a terrible thing to tell the people of the United States of America that, because of publicity and vengeance, we held a lunatic responsible and placed him on the gallows. As I speak, I have visions of people with disordered minds. Some of them pluck my gown, and they say, ‘Mercy!’ Others howl in their maniacal way. Others can say nothing. They have only got staring eyes.”
Stitt paused for an instant before offering a final, humble appeal that was meant to convey the awesome responsibility that rested on all their shoulders, his own no less than the jury’s.
“I may not be sufficient advocate for this man,” he said. “” I may not have demonstrated to you in the way the case should have been demonstrated. It may not have been brought home to you in the way it should have been done. But I have tried to do my duty. I have tried to handle the case as a member of an honorable profession.
“I want you to remember that principle of everlasting mercy in our law. If I am not a sufficiently great advocate to put this before you, then I ask you to remember the words of the greatest of all advocates, uttered nearly two thousand years ago: ‘Father, forgive them, for they know not what they do.’”
Nelson, who had looked supremely bored throughout his attorney’s oration, perked up a bit at Stitt’s closing words. He straightened up in his seat and nodded vigorously, as though in emphatic agreement with the implied comparison between himself and the crucified Christ.
As soon as Stitt returned to the defense table, his opponent rose and strode towards the jury box. Though Graham began with a disclaimer—insisting that his speech would be devoid of eloquence—his thirty-minute summation was every bit as forceful as Stitt’s.
“It is not the part of the Crown counsel to be too strong an advocate,” he began, addressing the jury in a measured, solemn voice. “It is not the part of the Crown counsel to indulge in oratory or flights of beautiful language in order to influence your verdict. It is the part of the Crown counsel to put before you cold-bloodedly, carefully, and scrupulously the evidence placed before you, for and against the accused.”
He paused for an instant, gesturing towards the defense table. “My learned friend, Mr. Stitt, in opening his magnificent address, used those words, ‘The chain of circumstantial evidence is no stronger than its weakest link.’” Here, Graham rested a hand on the railing and swept his gaze around the jury box. “I must ask you to wipe that part out of your minds. Circumstantial evidence is not a chain. It is a rope, not as strong as its weakest strand only, but having the strength of all its strands combined.
“I outlined to you in my opening address the story of this crime,” he continued, “and all the movements of the accused from two days before the crime to the moment of his arrest. That leaves little to say to you, except to point out how clearly, how thoroughly, the evidence given here in the last three days is borne out and amplified by the story, weaving it all together.
“That has been done in such a way,” he declared, “that every strand has been spun and bound and twisted with its fellow strands into a cord that is almost perfect.”
Graham had only spoken for a few minutes, but he had already performed a clever rhetorical feat. By shifting metaphors—from a chain to a rope—he had evoked an image not only of the
ligatures Nelson had used on his victims but of the punishment that justice demanded.
Graham had no trouble showing that the “weak links” Stitt had cited were trivialities, “little discrepancies” that did nothing to undermine the enormous mountain of evidence against the accused. He reminded the jurors, first, that there was direct evidence linking Nelson to the crime: William Haberman’s sworn testimony that he had seen Nelson lurking around the Patterson home on the day of the murder.
Beyond that, the evidence against Nelson was admittedly circumstantial. But such evidence, Graham insisted, must be carefully considered. When it leads to your irresistible belief that the accused is guilty, it must be followed, because circumstances very often speak more plainly than words.”
In this case, as he proceeded to demonstrate, the circumstantial evidence offered irrefutable proof that “the accused, within an hour or more of the commission of the crime, was in possession of shoes and personal articles” taken from the Patterson home. “Are you to be asked to assume,” he said, allowing a note of sarcasm to enter his voice, “that he merely stole the articles, and somebody else killed Mrs. Patterson?”
As for the issue of Nelson’s sanity, Graham was insistent that the defense had merely provided “evidence of eccentricity and evidence of insane jealousy. Nothing more. Unless you can say with a clear conscience that the evidence shows that this man has crossed the borderland to the region where the mind does not function, you cannot find him insane.”
Responding point-by-point to Stitt’s summation, Graham brought his own speech to a close by addressing the issue of mercy. “My learned friend made a stirring appeal for the tempering of justice with mercy,” Stitt said gravely. “But that is far outside your province. You have no power to consider mercy. To find a verdict of guilty or not guilty according to the evidence, that is all you have to do. Mercy is no part of a jury’s deliberation. Mercy is for the executive power.
“That,” he concluded, “is a serious and cruel task to fall upon the shoulders of twelve men whose hearts are kind. But it is a duty that they must perform without fear, without favor, without affection, without thought of what the other person may possibly lose.”
When Graham walked slowly back to the prosecution table, it was already after 4:00 P.M., too late for Judge Dysart to deliver his charge. After commending all the participants in the trial, including the counsel, for their citizenship, Dysart adjourned court until the following morning, Saturday, November 5, assuring the jurors that their wearying task was nearly at an end.
“In the morning,” he said, “I will give you the facts as briefly as I can, as I see them; and I will state the law to you. I will not be very long.”
By eleven o’clock the next morning, according to the judge’s estimate, the fate of Earle Leonard Nelson would be in the jury’s hands.
49
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Isaiah 3:11
Woe unto the wicked! it shall be ill with him: for the reward of his hands shall be given him.
As crowded as it had been since the start of the trial, the courtroom was even more packed on Saturday morning, November 5. By one estimate, nearly 300 people had somehow managed to squeeze inside the room. Hundreds more milled in the corridors, while a buzzing mob, numbering at least 1,000, jammed the streets around the building.
Two regular members of the audience, however, were conspicuously absent when the trial reconvened at 10:00 A.M., Lillian Fabian and Mary Fuller. Knowing full well what the outcome would be, they could not bring themselves to attend. They passed an agonized morning locked in their hotel room, offering each other whatever comfort they could.
In spite of his promise to keep his charge brief, Judge Andrew Dysart spoke for over an hour. The papers would tout his summing up as a model of impartiality. Some observers, however, formed a different opinion.
Dysart began with a step-by-step recap of the evidence, placing particular emphasis on the articles removed from the Patterson house—the old whipcord suit, the victim’s gold wedding ring, the $70 in $10 bills—that had later turned up in Nelson’s possession.
“Now, if those things were believed,” Dysart summed up, “the accused is the man who was there, and being there, in the absence of all other evidence, the woman being found dead after his departure, the only reasonable inference is that he is the man who murdered her.”
Having made it clear that the defendant’s guilt could hardly be doubted, the judge proceeded to address the question of sanity. It was here, according to at least one commentator, that Dysart’s remarks “bore most heavily to the side of the prosecution.”
After reviewing the facts supplied by Nelson’s wife and aunt—their detailed history of Nelson’s erratic behavior—Dysart saw fit to inform the jury that the two women were obviously biased in favor of the accused. They “came here, I have no doubt, with fidelity, loyalty, to help out one who was near them.” Their testimony “must therefore be viewed as the evidence of persons who are very, very closely associated with him and who are fond of him, and it must be weighed in that light. It is not scientific evidence.”
Furthermore, while there was documented proof that Nelson had been confined to an insane asylum, the crucial fact—according to Dysart—was that he had been discharged in 1925. “He returned to the wife and aunt, or to one of them—I have forgotten which—about a year ago. They did not have him recommitted. A man may be insane for a period at some time in his life and get over it. I think the evidence would warrant you in coming to that conclusion. So that the real point is whether or not on the tenth of June, the accused—if he is the man who killed Emily Patterson—that he understood that by strangling her, he was committing an act that would cause her death, that he knew the nature and quality of the act, and that he knew that his act was wrong.”
As he brought his charge to a close, Dysart homed in on the issue that makes insanity such a difficult defense. A strictly legal concept, “insanity” is commonly defined as an inability to distinguish right from wrong. In a case like Nelson’s—where there is overwhelming evidence of concealment, of a calculated effort to cover his tracks—it is hard to persuade a jury that the defendant didn’t know he had committed a crime.
“In coming to your conclusion on this question of insanity,” Dysart said, “keep in mind what I have mentioned about his change of clothing after the murder, his movements, his change of name, and all these things. And if you find that these things indicate a sense of guilt, then from that finding you may infer that he knew the act was wrong, or he would not attempt to escape the consequences of it. Read those acts, and try to discover from them whether they are the acts of an insane, irresponsible man—irresponsible in the eyes of the law—or the acts of a man who realized that he had done some wrong and was trying to elude pursuit and capture.”
At precisely 11:16 A.M. the judge completed his charge, and the jury filed into the deliberation room. They emerged less than forty minutes later. It required just one glance at their taut, ashen faces to know what decision they had reached.
“Gentlemen,” asked the clerk, “have you agreed upon your verdict? If so, who speaks for you?”
When the foreman, William Wiedman, rose and announced the anticipated verdict—“Guilty, my Lord”—a murmer of excitement rippled through the courtroom, and there was a smattering of applause.
“Oyez! Oyez! Oyez!” cried he clerk. “All manner of persons are strictly required to keep silence on pain of imprisonment while the sentence of death is passed on the prisoner.”
At Dysart’s order, Nelson rose. He stood erect, hands clasped lightly behind his back, feet slightly parted. He wore his usual expression of utter indifference.
“Prisoner,” intoned the judge, “have you anything to say why the sentence of the Court should not be passed upon you?”
“Only by reason that I am not guilty,” Nelson said casually.
“Nothing further? You have nothing further to say?”
Nelson gave a littl
e shrug. “Not that I know of.”
With that, Judge Dysart pronounced his sentence: Nelson would be taken from his “place of confinement to the place of execution” and hanged on the second Friday of January 1928—Friday the thirteenth.
It was a Winnipeg social worker named Lucille Davies who broke the news to Lillian and Mary in their hotel room. Though the two women had expected nothing less, the finality of the verdict hit them like a physical blow. As Mrs. Davies looked on, blinking back tears, Nelson’s aged wife and youthful aunt fell into each other’s arms and abandoned themselves to their grief.
Later that evening, they received permission to visit Nelson in his cell. It was an emotional meeting—at least for Lillian and Mary. They wept over Earle, stroked his hands, called him their “poor, unfortunate boy.” They were still tearfully professing their faith in his innocence when their allotted time ran out, and—with a final embrace—they bid goodbye to him forever.
Earle was as unmoved by their departure as he had been by their visit. Indeed, he seemed blithely unconcerned with everything but his food. Now that he had only two months to live, he told his guards, he fully expected a more varied menu. And he was already worried about the upcoming holiday.
Thanksgiving, he reminded his captors, was less than three weeks away. As an American citizen, he felt entitled to a turkey dinner—complete with all the trimmings.
50
AUDIENCE OF MONKEYS
IGNORES APE IN MOVIE
New York Times, November 23, 1927
Pittsburgh Scientists Find Simians in Zoo Don’t React to Picture, “The Gorilla”
On Thursday, November 17, 1927, exactly one week before Thanksgiving—the silent-movie version of Ralph Spence’s hit play The Gorilla opened at the Mark Strand Theatre in Manhattan. Directed by Alfred Santell, the film was praised by the New York Times as a delightful combination of humor and thrills—“very much as if Mack Sennett … had turned to Edgar Allan Poe’s ‘The Murders in the Rue Morgue’ and decided to adapt it to the screen in his inimitable manner.” In spite of its occasional descent into “crude horseplay and silly stunts,” wrote the reviewer, this cinematic version of The Gorilla offered moments of genuine suspense, along with some “excruciatingly funny bits that evoked roars and shrieks of laughter in the audience.”
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