The Day Lincoln Lost

by Charles Rosenberg

  He looked to Lincoln like a man who’d complete his outfit with a tall silk hat and, sure enough, when Lincoln looked, the man had left behind just such a hat on the chair he’d been occupying in the audience.

  Once Winkler was sworn, Lizar asked, “Mr. Winkler, what is your occupation?”

  “I’m a banker. Specifically, I’m the majority shareholder of Winkler Bank.”

  “Is that here in Springfield?”

  “No, it’s in Chicago, but I hope I will soon be able to open a similar bank here.” He smiled out at the audience, displaying a mouthful of perfect white teeth. Lincoln noticed that Winkler was looking out at the audience, probably imagining each and every one as a potential depositor or borrower. But he was not looking at the jury. Perhaps he thought they looked too poor to do either.

  “Do you recall where you were on August 24 of this year, Mr. Winkler?” Lizar asked.

  “Yes, I was here in Springfield. I had arrived the day before.”

  “Why were you here, sir?”

  “To talk to potential investors in the bank I plan to open here.”

  “Do you recall what you did on the evening of August 24?”

  “Yes. I attended an abolition lecture given by Abby Kelley Foster.”

  “Do you see her here in the courtroom?”

  Lincoln had half a mind to object. It was not as if Abby was an accused robber whose identity was at issue. But he decided not to interrupt Lizar’s attempt at theatrics. He hoped it would just irritate the jury.

  “Yes,” Winkler said. “She’s right there, sitting next to Mr. Lincoln.” He pointed at her.

  Abby, instead of sitting stiffly as some people on trial might have done, acknowledged Winkler with a nod of her head, then turned slightly to the jury and nodded at them, too, as if acknowledging her celebrity and taking pride in it. Lincoln thought it was a perfect reaction.

  “Did you attend Mrs. Foster’s lecture?”

  “Yes, the entire thing. From start to finish.”

  From start to finish? That was not a phrase that fell naturally from a man’s lips. The witness had obviously been rehearsed and, unlike Lizar’s earlier witnesses, had learned his lines. It worried Lincoln.

  “Where were you seated, Mr. Winkler?”

  “About halfway back.”

  “Were you able to hear what Mrs. Foster said?”

  “Oh, yes. Very clearly. I didn’t miss a word. Even though she is a woman, she has obviously learned to make herself heard in a big room.”

  “Do you recall what she said?”

  “Yes. First she talked about the election and said that if you were an abolitionist, there was no point in voting, and even if you were going to vote, she did not recommend voting for Mr. Lincoln.”

  Lizar looked over at Lincoln, as if to direct the jury’s attention to him. Lincoln just shrugged—he hoped in a way that said to the jury, “Doesn’t matter a lick to me.”

  “Did Mrs. Foster say anything else, Mr. Winkler?”

  “Well, she said many things, mostly about the terrible condition of the slaves and the horrible unjustness of it all.”

  Lincoln thought that the witness had begun to drone on a bit, and he noticed that Judge Garrett’s head was nodding—perhaps too big a lunch? If he were Lizar, he’d get to the point before he lost the jury, too.

  “What else do you recall that Mrs. Foster had to say?” Lizar asked.

  “Well, she even quoted the Declaration of Independence—the part about all men being created equal.”

  A woman in the audience suddenly shouted, “What about women? Aren’t they equal, too?”

  The judge snapped his head back up. “Madam, if you shout out again, I will have the marshal remove you from the courtroom and hold you in contempt. Mr. Lizar, please continue.”

  Lizar finally got to the point. “Mr. Winkler, did Mrs. Foster mention anything about what was going on in the courthouse square that evening?”

  It was technically a leading question, but Lincoln let it go. He knew that Abby had in fact mentioned something about it to her audience.

  “Yes. She said there was a young slave girl who had escaped but been caught, and that she was about to be returned to her master.”

  “Did she say anything else about that?”

  “Yes. At the very end, Mrs. Foster shouted out, ‘Go out and do something about it.’”

  “Did you have an understanding of what Mrs. Foster meant by that?”

  Lincoln was on his feet. “Objection! Even assuming Mrs. Foster said that, which we will dispute, and even assuming Mr. Winkler imagines he knows what she meant, it’s irrelevant. Only Mrs. Foster knows that.”

  The judge folded his hands over his midsection and squeaked his chair back and forth for a moment, seeming to think about how to rule.

  Finally, he said, “I’ll allow the question. Let’s see if Mr. Winkler even has any understanding of what Mrs. Foster—assuming she said it—might have meant.”

  Lincoln could hardly contain his joy. The judge saying “assuming she said it” was a major victory. It would suggest to the jury that the judge himself had his doubts whether Abby had in fact said anything of the kind.

  “Let me repeat the question,” Lizar said. “Mr. Winkler, did you have an understanding of what Mrs. Foster meant by that?”

  “Yes.”

  “And what was that understanding?”

  “I renew my objection,” Lincoln said.

  “Overruled.”

  “I understood her to be urging the audience to go and interfere with the return of the slave girl to her owner.”

  “Thank you, Mr. Winkler,” Lizar said and glanced up at the judge. “I have no further questions.” Whereupon he sat down, with a self-satisfied smile pasted on his face.

  The witness started to get up, but the judge said, “Please sit back down, Mr. Winkler. I suspect Mr. Lincoln may want to have at you.” He paused. “Cross, Mr. Lincoln?”

  “Yes, indeed,” Lincoln said, strode up to the witness chair and peered down at Winkler. He did not plan to treat him gently.

  52

  “Good afternoon, Mr. Winkler,” Lincoln said. “I’m Abe Lincoln, counsel for Mrs. Foster.” Lincoln had seen no benefit to using ‘Abraham.’ He wanted the jury to think of him as plain folks, just like them. Unlikely as they were to think of him that way now.

  “Good afternoon,” Winkler said.

  “Mr. Winkler, you testified that Mrs. Foster said, ‘Go out and do something about it.’ Do you recall her saying that?”

  “Yes.”

  “And you’ve got that clearly in your memory, word for word?”

  “Yes.”

  “Were you paying close attention?”

  “Yes.”

  “Both before and after she said it?”

  Winkler paused. Lincoln could tell the man was trying to figure out where this was heading.

  After a few seconds, Winkler said, “Could you repeat the question?”

  “Certainly. The question was, ‘Both before and after Mrs. Foster said, according to you, ‘Go out and do something about it,’ were you paying close attention?”

  “Yes.”

  “Well, what did she say right before that?”

  “I don’t recall exactly.”

  “What about right after that?”

  “I don’t recall exactly.”

  “Did Mrs. Foster accompany what she said by any kind of hand gestures?”

  Winkler blinked, and Lincoln could see that he was having the problem all liars have. His lie was woven of thin cloth, and he was in fear that his misrecollection of any detail that others knew and could testify to might shred the fabric of it.

  Winkler didn’t say anything for several seconds.

  “Mr. Winkler, shall I repeat the question?” Lin
coln said.

  “Uh, no. To the best of my recollection, Mrs. Foster didn’t use any hand gestures when she said it.”

  “Wouldn’t it have been logical for Mrs. Foster, if she was urging people to go to the square, to point to the church doors?”

  “Objection,” Lizar said, rising from the table. “It’s improper to ask this witness what is logical. He’s here to testify only about what he saw and heard. It’s up the jury to consider what’s logical and what’s not.”

  “Sustained,” the judge said. “Mr. Lincoln, why don’t you rephrase that?”

  “Alright, Your Honor. Mr. Winkler, did Mrs. Foster point to the church doors as she said it?”

  “No.”

  “Are you sure?”

  Instead of immediately saying he was sure, Winkler hesitated again—a fatal mistake, in Lincoln’s view. A witness in Winkler’s position needed to be firm about his memories or they’d be doubted. Finally, Winkler said, “Well, I don’t think she did.”

  Lincoln looked over at the jury. At least two of them were staring at Winkler with what Lincoln took to be distaste.

  Now Lincoln intended to make it worse for the man. “Your Honor, I need to refer to a note I left in my hat. With the court’s permission, I will return to my table for a moment to fetch it.”

  “Go ahead,” the judge said. He made no remark about Lincoln’s hat-based filing system, presumably because he was aware that it was common for lawyers in Illinois to keep papers inside their stovepipe hats.

  Lincoln walked back to the table and picked up his hat from under his chair, where it had been sitting on the floor, brim down. He turned it over and extracted a small note from the inside hatband. He looked it over, and finally said, almost to himself, but loud enough for everyone to hear, “No, I don’t need to pursue that right now.”

  “Alright, Mr. Lincoln, let’s try to get this over with,” the judge said.

  Lincoln hoped that the hatband trick had had its intended effect, which was to make Winkler think that Lincoln knew things that Winkler couldn’t be sure about. In fact, the piece of paper had been a note from Mrs. Lincoln asking him to pick something up on his way home from court.

  Lincoln considered asking no further questions. He had made excellent progress in piercing the witness’s air of certainty. Trying for still more risked ruining what had already been won. But what was motivating the man to lie? It seemed unlikely he’d been bribed in such a high-profile matter. That was probably beyond even the Buchanan administration.

  Lincoln walked back up to the witness and said, “Mr. Winkler, are you an abolitionist?”

  “Objection,” Lizar said, without bothering to get up.

  “Goes to bias, Your Honor.”

  “Overruled.”

  “I am a gradual abolitionist,” Winkler said.

  “What does that mean, sir?”

  “Well, it means I hate slavery,” Winkler said. He paused. “Like you claim you yourself do, Mr. Lincoln. But I don’t know how it can easily be ended.”

  “Unless, for example, slave owners are compensated by the government for what they call their property?” Lincoln said.

  “Yes. Or something like that.”

  “Or like transporting them to Africa?”

  “Yes.”

  “All four million of them?”

  This time, Lizar stood up. “I must object, Your Honor, this is well beyond any possible relevance to this trial, which is about whether Mrs. Foster aided and abetted a riot.”

  Lincoln had to admire Lizar’s attempt, in the guise of an objection, to redirect the jury’s attention to the main thrust of his case.

  The judge cocked his head and squeaked his chair back and forth again. To Lincoln’s surprise—because the question was well beyond relevant—the judge said, “I’ll allow you a little more leeway, Mr. Lincoln. But you need to wrap this up soon.”

  Lincoln hoped one last question would show Winkler’s bias against Abby. But he tried to toss it off as a casual introduction to a new line of questioning.

  “By the way, Mr. Winkler, you’re from the South, right?”

  “Well, yes, Kentucky. Back when I was young.”

  And then Lincoln, an inveterate card player, tried to fill an inside straight. “Do you own any slaves, Mr. Winkler?”

  Winkler sat silent.

  “Do you, sir?”

  “Objection!” Lizar said.

  Lincoln couldn’t tell if Lizar was genuinely angry or just pretending.

  Lizar stood up. “Completely irrelevant!”

  “Sit down, Mr. Lizar,” the judge said. “This strikes me as highly relevant to bias against Mrs. Foster and her views. You may answer, sir.”

  “No, I don’t own any slaves,” Winkler said. “And never have. My father owned two, but I persuaded him to emancipate them without requiring them to buy their own freedom. Five years ago, I think it was.”

  And so, Lincoln thought, he had demonstrated once again the risk of asking a hostile witness a question to which he didn’t know the answer in advance. He tried to suppress a grimace and said, “Thank you, Mr. Winkler. I have no further questions.”

  “Any redirect, Mr. Lizar?”

  Lizar gave the jury a look clearly intended to be one of victory, and said, “No further questions.”

  “Alright,” the judge said. “Do you have any more witnesses, Mr. Lizar?”

  “Just one quick one.”

  “Let’s hear from that witness and then we’ll take a break.”

  Lizar then called Robbie Culp, the boy from whom Clarence had bought the drawings of the overturned carriage.

  He proved a no-doubt disappointing witness for the government. He admitted he had been in the square for the large gathering that had seen the marshal take Lucy back into the courthouse. And he said he’d been there, too, for the gathering of the smaller, but more violent crowd that later overturned the carriage. But he wasn’t able to provide Lizar with any helpful detail about who was in the crowd.

  Worse, he didn’t know or claimed not to recall who had overturned the coach (although he watched it being overturned), who had injured Ezekiel Goshorn (although he did see him lying on the ground, bleeding), nor who had unlocked Lucy’s handcuffs and fetters (although someone “musta,” he said, because she’d “had ’em on” when they brought her out of the jail the second time).

  Nor could Culp, under continued close questioning, say exactly how Lucy had escaped or where she had gone. All he could say for sure was “that girl got herself away clean.”

  As for the origins of the new, more violent crowd, he could only say that it had arrived suddenly, “out of nowhere.”

  As a last resort, Lizar tried to get away with leading his own witness. “You saw people coming into the square from the direction of the Second Presbyterian Church, didn’t you, Mr. Culp?”

  Lincoln decided to gamble and not object. He had a sense the answer wasn’t going to hurt.

  “I don’t ’member that neither, Mister,” Culp said.

  “Didn’t a man say to you that he was in the square because Abby Kelley Foster told people to go there?”

  “I don’t ’member that neither. No, sir, not at all.”

  “I have a newspaper article I want to show you,” Lizar said.

  Lincoln practically jumped out of his chair. “Your Honor, I believe I know what newspaper article Mr. Lizar is referring to, and I object to it being shown to this witness—who did not write it. It’s hearsay and it’s completely, utterly false.”

  “Why don’t you gentlemen approach the bench?” the judge said.

  Lincoln and Lizar walked up to the bench. The judge leaned down and said, “What’s this all about? The jury is close by, so please keep your voices down.”

  “Your Honor, Mr. Culp is quoted in a newspaper article published
the day after the riot,” Lizar said. “In it, he says that the mob came from the direction of the church.”

  “Is that it, Mr. Lizar?” the judge said.

  “The article specifically quotes Mr. Culp as saying, ‘One of them guys that come to rescue the slave girl said Abby told ’em, “Go do somethin’ ’bout that poor slave girl.”’”

  “Are you trying to introduce that article into evidence?” the judge said. “That would be improper because there’s not yet any foundation for it, not to mention at least two layers of hearsay.”

  “No, Your Honor. I just want to use it to refresh Mr. Culp’s memory.”

  “Which it might or might not do,” Lincoln said. “In the meantime the jury will have heard it, which will improperly prejudice them against my client.”

  “The rule is that you can use anything to try to refresh someone’s recollection,” Lizar said. “Even a frying pan if it would serve the function.”

  Lincoln laughed. “The difference, Your Honor, is that a frying pan isn’t allowed to say what it saw and heard after it’s been used to refresh.”

  “I’m going to bar you from using that newspaper article to refresh your witness’s recollection,” the judge said.

  “In that case, Your Honor, I plan to call as a witness the man who interviewed Culp and then wrote that article. Then I will try to introduce it in evidence.”

  “What Mrs. Foster said to someone might be admissible,” Lincoln said. “But not what she allegedly said to someone who repeated it to someone else who then said it to the writer of that newspaper article. It’s inadmissible hearsay.”

  Ignoring him, Lizar continued on, “The writer’s name is Clarence Artemis. He’s been sitting in the courtroom since this trial began.” As he said it, he turned as if to point Clarence out to the judge, but where Clarence had been sitting only a few moments earlier, there was only an empty chair.

  “You’ll have to find him and subpoena him,” the judge said.

  “I suspect he might end up being a tad hard to find,” Lincoln said.

  “Will you delay the trial while the government tries to find him?” Lizar said.

  The judge looked, Lincoln thought, downright bemused and said, “Mr. Lincoln, here’s your chance. Do you know any good jokes that speak to Mr. Lizar’s question?”