by Rich Cohen
The courtroom was filled with family members of the victims, except for Captain Burr’s wife, who’d suffered a mental breakdown and been hospitalized. There were reporters too, dozens of them, and curiosity seekers. They listened to the prosecutor but watched the accused, who sat calmly at the defense table, his hands folded before him, head down. The newspapers paid close attention to his demeanor, describing it as reserved, detached. Onlookers wanted to know how the bad man was taking it—would he give in, crack, confess? They wanted him to break but also to stay in character. Once a man put on that mask, he should keep it on till he dies.
Dwight ended not with the murders or the thefts but with luck—the great good luck that the police had in catching this man, who should have been home free the moment he reached Staten Island. The prosecutor asked the jury to consider where such luck might come from and what it might mean. “It seems strange in this center of swarming thousands, at such a time of day as the prisoner escaped from that sloop, he could not have hidden himself. It seems as though there was but one eye to watch, and one instinct to follow and observe him.”
But whose eye was that?
Hicks thought he had sunk the ship and buried the bodies in five fathoms of water, but the eye had been watching. Hicks thought he’d changed the money and gotten away, but there was the eye. Was it the eye of Hart Weed, the police captain? Or of George Nevins, the detective? No, said the prosecutor, these men were merely mechanisms. The eye stood above and beyond all, unblinking as the killer fled across the country. The eye had brought the chase to Albert Hicks and seen that he was carried back here, where it watched still, to see that the jury ended the story with justice.
What could the defense attorney say after that?
Sayles spoke of jurisdiction (the robbery did not occur on the high seas but in New York Harbor) and coincidence (the prosecutor’s entire case was circumstantial), then sat and waited for the trial to begin.
Selah Howell was the first witness called on the first day. He’d been co-owner of the E. A. Johnson, a businessman and shipbuilder; he’d designed the sloop. He said he’d visited Captain Burr at the Spring Street pier the night before it sailed. He talked to the captain on deck, then had dinner with the captain and his first mate, Hicks. Burr sat on one side, Hicks on the other. Hicks did not say much, but no doubt, said Howell, he was the man now at the defense table.
Hicks glared. Howell held the glare as he described the current condition of the ship. The E. A. Johnson had been returned to him after spending six days at the Fulton Fish Market pier. Howell had it towed to Islip, Long Island, for cleaning and repairs. The bowsprit was rebuilt, the decks stripped, the walls scrubbed and painted. Looking into a hidden compartment, Howell found items missed by the pirate and the police: a black valise with clothes, a knife, and a manifest dated March 15, 1860, that listed the names and particulars of the crew:
GEO. H. BURR, master, Islip, L.I., aged 39 years, height 5 feet 6 3/4 inches.
WM. JOHNSON, first hand, New-York, aged 42 years, height 6 feet 1 inch, wages $19 per month, advance $8.
OLIVER WATTS, seaman, Islip, L.I., aged 23 years, height 5 feet 7 inches, wages $18.
SMITH WATTS, cook and hand, Islip, L.I., aged 19 years, height 5 feet 11 inches, wages $16.
Only Johnson had not put his signature beside his name; he left an X.
An affidavit supplied by Ben Nickerson, captain of the J. R. Mather, the ship that spoiled Hicks’s getaway, was read to the jury and into the court record. Nickerson, who’d been waylaid by weather—he missed the entire trial—described the collision in exact detail. He said it took him by complete surprise, the ghost sloop appearing as if from nowhere: the splintering wood, a sickening sound for a seafaring man, the rope and rigging raining down. Nickerson gave this gear to Captain Weed, who later identified it as belonging to the E. A. Johnson. A beam from the wreckage fit the bowsprit of the Johnson like a puzzle piece. Nickerson saw no lights on the other ship, but he did spot a man at the rail, or thought he did, a dark figure in a long coat. Nickerson called to the man but got no answer. He was there for just a moment, then was gone.
Next to testify was Daniel Simmons, the wholesaler who’d given Captain Burr the money to buy the oysters. He’d handed over the silver and gold coins in the same bag Hicks had later been seen carrying across Staten Island. Simmons said he’d first noticed Hicks working on the deck of the E. A. Johnson at the Spring Street pier, then again at Gravesend Bay. “His whiskers had been full and red,” said Simmons. “They’re darker now.” Simmons was one of the first men to walk through the Johnson after it was towed into the Fulton Fish Market pier. Asked to describe the scene, he said, “There was as much blood as if a bullock had been killed. On the rail was a cut, as though a man had clinched hold there and been cut off.”
* * *
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That first day of the trial was devastating for the defense, but Hicks did not seem to notice. His mood was ebullient when he left the courthouse. He walked beside Captain Rynders, who, in his neat blue uniform and black boots, was surrounded by deputies in the way of a politician or celebrity. It meant something to be in the marshal’s company. His voice rang above the din.
Hicks hardly spoke. If he did, it was about unimportant things, “trifling topics,” according to the Post. “He said he feared the plaster of Paris [that P. T. Barnum would use] in taking a cast of his features for Barnum’s museum would make him appear pale. Today he thought the audience [in court had] looked like a parcel of fools and in response to some applications made him in regard his name, declared that he would tell nothing without being well paid for it.”
The trial would continue for six days—a week of courthouse time. In those six days, the waste was made plain to the jury: three stolen lives, the money they’d never make, trips untaken, children unborn. As it said in the Talmud, “Whoever destroys a soul, it is considered as if he destroyed an entire world.” The crimes and the night of the crimes, black water beneath a black sky, the ax blade and severed fingers, the moon rising above a jagged coast—the chain of evidence, each clue, each twisted link, led back to the bad man, whose history was mysterious, whose purpose was cold and inexplicable. Together the twenty-seven witnesses would create a mosaic, each painting his or her own little picture, and each little picture contributing to a terrible design.
The newspapers described all of them, but a few stood out:
Reuben Keymer, who’d seen Hicks at Gravesend Bay before the Johnson set out on its last voyage. He’d looked at Hicks, met his eye, turned away. “I was afraid he would run afoul of me.” Later, “I watched the sloop going out,” Keymer said. “She went southwest to clear Coney Island, then took a southerly course. I saw her three miles out to the east of Sandy Hook.”
Samuel Stevens, captain of the Ceres, the tug that pushed the wounded sloop across the harbor. He’d reached the Johnson at six-thirty A.M., boarded her, walked the decks, and gone down to the cabin, which “appeared as if someone had been slaughtered.”
Hart Weed, captain of the second precinct. He’d been shocked by what he’d seen on the sloop. The cabin looked as if someone had tried to wash it down. He found a broom and a bucket. He found bore holes near the floor and the auger that made those holes.
Theodore Burdett of Harbor Patrol, who found the missing yawl on Staten Island, in the tall grass near the beach.
Abram Egbert, who worked at Vanderbilt’s ferry terminal on Staten Island. He’d seen Hicks coming up Richmond Road with a bag on his shoulder.
Francis McCaffrey, the cabin boy on the Southfield who’d been “brooming” the hallway when Hicks called him into the ladies’ cabin at seven A.M. “He asked if I was a good judge of this country’s money.” McCaffrey described what Hicks had been wearing, the monkey coat and the Kossuth hat. The prosecutor told Hicks to put on the coat so McCaffrey could be sure it was t
he same man. Judge Smalley told Hicks he was under no obligation, but Hicks did so anyway, pulling the coat on with languid ease. McCaffrey stared at him for a moment, then said, “That’s the boy”—a remark that caused everyone in the courtroom to laugh, even the accused.
William Drumm, the sixteen-year-old urchin who’d carried Hicks’s bag from South Ferry to the corner of Greenwich and Cedar streets. Drumm had asked for fifty cents. Hicks gave him three shillings, saying, “Now get, or I’ll kick you.”
Each witness offered a different view of the same character: a harried sailor on the lam, manic, with a wild look in his eyes, tired but elated, pumped full of air, stingy, generous, wanting to buy a drink for the house, explaining the cause of his good fortune again and again but each time in a different way.
When Elias Smith took the stand, he told the jury about his role as a reporter in the manhunt, and about how he’d confronted the fugitive in the Providence jail: “I said, ‘Hicks, you are charged with the murder of three men.’ He said nothing. I then changed the language and said, ‘You are charged with imbruing your hands in the blood of three of your fellow men for money.’ He exhibited no particular surprise, but just shook his head, saying, ‘I don’t know nothing about it.’ ”
Detective Nevins described the arrest, Hicks hiding under the blankets, all that sweat. Searching Hicks’s rooms, he found money and Captain Burr’s watch, among other things. “I told him he was charged with passing counterfeit,” said Nevins. “He said he got the money from his brother, and afterwards that he was a speculator in the market, and got the money that way.”
Nevins talked about escorting Hicks back to New York on the train, how he read Hicks a newspaper story about the murders, how Hicks turned away, saying, “I know nothing about it.”
“You’ll be identified in New York,” Nevins told him.
“You are free to think whatever you like,” said Hicks.
The watch found on Hicks was shown to the jury. Each man studied it, then passed it along. The prosecutor called the watchmaker Samuel Conover to the stand. His shop at 182 Bowery was frequented by sailors. Examining the piece, Conover said, “I remember repairing [this] about a year ago for a person named Burr, 6th April, 1859. It was a doubled-cased silver watch. The makers’ name J. Johnson and the number was 21,310.”
Tension grew as the days went by—disgust turned to fascination, a strange electric atmosphere building toward a climax. “As this trial approaches its termination, the interest of the public seems to increase,” the Times reported on May 19, 1860. “There were not more people inside the Court-room yesterday than on the day previous, for that would have been impossible, but a great many more tried to get in than on any former occasion, and went away disappointed.”
Hicks sailed above it all, oblivious, detached. Given the circumstances, perhaps it was the best course, better than bitching and protesting, weeping or breaking down. He was living his last days like an Existentialist—enjoying the moment as long as there was a moment to enjoy, savoring the dregs as you’d savor a first sip. What was the difference, really? At the Tombs, he was allowed to bathe a few times a week. His kept his beard neatly trimmed. In court, he dressed as if for a funeral—his own—in a dark coat and black tie, a suit provided by the Masons. He sat calmly at the defense table, listening but far away, as if taking it all in from a distance.
* * *
—
The prosecution saved its most dramatic witnesses for the end of the trial, the third and fourth day. These were men and women, some intimately involved with the victims, who could connect Hicks to the crime via the most common elements of life—hair and clothes. A shudder went through the court when the prosecutor called Catherine Dickenson, Oliver Watts’s seventeen-year-old girlfriend. The jurors knew her face; they’d seen it in the daguerreotype that Hicks had been carrying when arrested. Miss Dickenson, who lived in Brooklyn, told the court she’d last seen Oliver “on the Tuesday of the week he sailed. I gave him my daguerreotype….He put it in his coat pocket.”
She said the picture had been part of a pair—one of her for him, one of him for her. She was still wearing hers in a locket around her neck. When she took it off and showed it to the court—a young man with handsome features—people in the gallery were anguished. Some cried. She opened the locket and removed the picture. Behind it were a few locks from Oliver’s head. “I cut his hair,” she explained. “I did it once a month. It grew so quickly.”
The strands were given to the jurors, who examined them next to some hair found in the blood on the deck of the sloop. This side-by-side study was about as close as you got to forensic analysis in 1860. The hair apparently came from the same person. Asked her opinion, Miss Dickerson said, “It’s indeed from Oliver. I knew every hair on his head. I knew it better than he knew it himself.”
Then Dideme Burr, the captain’s widow, was called. She’d left the hospital a few days before and insisted on testifying. She was pale and wore black. The newspapers described her attire as “deep mourning.” She identified the watch that had been found on Hicks—the tarnished timepiece her husband had carried for nine years and consulted constantly.
Abbey Hubbard, the mother of Smith Watts, had testified earlier but was recalled, making her the last witness. When she spoke of her younger son, the tenderness and clarity of it crushed the people in the gallery. Many wept. She said Smith had only been nineteen at the time of his death, slender, with skinny arms and wrists. He did not yet shave. He was too trusting, easy prey in a cruel world. His father had run off years before—perhaps Smith thought he’d find him out there in the world. The boy had lived in Islip with his mother and the man she had married, Mr. Hubbard. She had at first refused to let Smith go to sea, but there was no holding him. She insisted on outfitting him before he left, so he would at least be warm. Over the course of several days, she made an entire wardrobe, “a blue woolen shirt…two pair of pantaloons sewn by candlelight.” The clothes were found in Hicks’s rooms in Providence. They were shown to Mrs. Hubbard, who led a kind of tour of each item. “I patched this shirt myself,” she said. “[And] this bag has the initials of my present husband, Lorenzo Hubbard. I put my son’s clothes in that morning. I knew the shirts….I cut them in the old fashion way myself. I have had no tidings of him since, only that I suppose he was murdered.”
* * *
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The prosecution closed its case on a Thursday morning. During a recess, Hicks could be seen talking to Captain Rynders, who was amid a crowd, telling jokes. Then it was time for the defense attorney, Sayles, to make his case. He called just two witnesses—Kenneth White and Edward Barnes, who lauded the prisoner’s work ethic but had nothing important to contribute. In truth, there was no good defense. Instead, Sayles tried to poke holes in the state’s case. He did not have to prove Hicks innocent, he reminded the jury, nor discover who committed the crimes. He merely had to create doubt, open a shaft for light to come in. Jurors don’t want to hang a person—that’s a stain you carry forever. The defense must merely give them a reason not to.
On the last day, Sayles tried to accomplish this in his closing argument, making several points, hoping that one would do the trick. For starters, he said, the court should not be hearing the case at all—it was a misreading of the piracy statute, which was unconstitutional and would eventually be struck down. According to that unsound law, the crime of piracy, to be heard in this court, must occur on the high seas—which it most assuredly did not, the Lower Bay being no less a part of New York City than the Bowery. We should be in a New York court, before a New York judge, Sayles explained. He “cited from numerous law-books, authorities to sustain his position,” the Times reported. “The United States Court, not being a Court of common law jurisdiction, the prisoner could not be convicted of any minor degree of the offence charged, as he could be in a Court of common law; yet, if they (the prosecution) failed to prove it wa
s committed on the high seas, it was an offence punishable by common law, and necessarily should go to the State Courts.”
Judge Smalley dismissed this argument, telling the jury it did indeed have jurisdiction, which pushed Sayles on to his second point: the accused could not receive a fair hearing in this courtroom on account of the “incredible amount of interest and press this case received before the accused even stood before a judge.” All the attention and anger of the city had been directed at this one man. Well, I’ve got a question, said Sayles. What if he didn’t do it? How can the jury, having been soaked in a great flood of publicity, not look at him as a killer before the case even began?
Judge Smalley dismissed this argument too, pushing Sayles on to his third point: the case presented by the prosecution was entirely circumstantial. The prosecutor, James Dwight, had identified and marked a man for death based on a handful of physical items that yes, might have been on the sloop—let’s accept that they were—which did not mean the sloop was where the defendant got those items, the world being filled with secondhand sailor junk. Sayles suggested the jurors take a look in the stalls of the Washington Market before they send his client to the next world. “Looks bad” does not mean “Is bad,” he explained. There was simply not enough evidence to “fasten guilt upon my client, or to show that he did not honestly come by” these items. Perhaps these crimes were committed by river pirates, whom the police told us were in action the same night. They robbed another ship in the vicinity of the E. A. Johnson, as Harbor Patrol could tell you. Maybe Oliver Watts stumbled across the Daybreak Boys or the Swamp Angels as they were raiding the Johnson, and they silenced him and the rest of the crew. Or maybe the killings were done by someone else altogether—how can we really know?
