“Mr. Lincoln, cross-examination?” the judge said.
“No, Your Honor.”
“Do you have any further witnesses?”
“No,” Lincoln said. “The defense rests, while reserving the usual post-trial motions and the right of Mrs. Foster to make a personal statement.”
“Very well, then,” the judge said. “We shall have closing argument. Mr. Lizar, are you ready?”
“Yes, Your Honor.”
The judge addressed the jury. “Gentlemen, we will now have closing argument, in which the lawyers will sum up the evidence and tell you why they believe you should find the defendant either guilty or innocent. After they are done, the defendant will make an unsworn statement. I will explain that procedure later. And then I will instruct you on the law you are to apply.”
Lizar rose from his table. “Your Honor, I request that Mrs. Foster go first with her statement. Then I will know, in my closing, what I am up against.”
“Her statement is unsworn, Mr. Lizar, so you aren’t up against anything, the way I see it. Your motion is denied. You said you were ready, so let’s not keep the jury waiting.”
55
Lizar stood directly in front of the jury. “Gentlemen, the evidence is quite clear here. Mrs. Foster stands accused of violating the Compromise of 1850 by feloniously assisting the fugitive Lucy Battelle, who was bound to service in Kentucky, to escape after she was recaptured.
“The government, as the judge will tell you, has the burden of proving beyond a reasonable doubt that Mrs. Foster committed that criminal act. I put to you that there is really no doubt at all here.
“To convict Mrs. Foster, we must prove two things—first, that Mrs. Foster spoke words intended to interfere with Lucy Battelle being moved to a carriage so that she might be returned to her owner. Second, that Mrs. Foster’s words caused a riot to happen that prevented that return.
“You might think it logical to start with the first—the words Mrs. Foster spoke. But I think it is in fact more logical and more useful for you to start with the second question. What happened in the square?
“You heard Mr. Culp testify that, earlier in the evening, a large, hostile crowd had gathered, but that it had dispersed, and that it had not attacked anyone or anything. You then heard him testify that much later, a smaller crowd gathered, seemingly out of nowhere, and that it overturned the carriage to which the marshal was attempting to move Lucy Battelle. That allowed her to escape and apparently also injured Mr. Goshorn, Lucy’s legal owner. As we all know, he later died of his injuries.”
Lincoln leapt to his feet. “Your Honor, I have rarely interrupted another man’s closing argument, but I must object, and strenuously. Whatever we all might know or not know, there is no evidence in this trial that anything at all happened to Mr. Goshorn. And even if it did, Mrs. Foster is not on trial here for anything other than what she is charged with in the indictment.”
“Mr. Lincoln is right, Mr. Lizar,” the judge said. “There has been no evidence adduced here about what happened—if anything—to Mr. Goshorn. Nor does it matter to this trial.”
He looked at the jury. “Gentlemen, you are to completely disregard what Mr. Lizar has just said about Mr. Goshorn. The charge against Mrs. Foster, while it may be referred to as a felony, is much, much less serious than anything involving a death, and Mrs. Foster is charged with no such thing.”
Lincoln saw that Lizar had hung his head and was doing his best to look abashed. But Lincoln had no doubt that Lizar was happy. He had managed to remind the jury that, even though the judge had told the jury to ignore Goshorn’s death, the riot wasn’t just about the return of an enslaved black girl. It was also about the murder of a white man. As the saying went, you can’t unring the bell once someone’s heard it sound.
Lizar resumed. “As I was saying, the evidence is that a crowd came suddenly out of nowhere, overturned the carriage and allowed Lucy Battelle to escape again from her lawful owner.
“Now, when did that happen? Mr. Artemis, by his own testimony, a journalist who says he is careful about time, has told you that he rushed back to the square immediately after hearing what must have been the start of the riot. And that he consulted his watch. He has told you that it was 9:15 p.m.
“Now ask yourself, please, what happened just before that? We know from Reverend Hale’s testimony and that of several other witnesses, that right before that, Mrs. Foster finished her lecture. And what time was that? According to Reverend Hale she finished at precisely 9:00 p.m.
“I put it to you that even if we did not know anything about what Mrs. Foster had said in her lecture, it would be at least suspicious that not long before the start of the riot, a radical abolitionist lecturer had just finished her lecture in a church only blocks away—a church filled nearly to capacity with people presumably angry about slavery.”
Lincoln considered objecting again since there was no evidence about the nature of the audience, but it was probably true, so he let it go.
“We would be suspicious that she said something to that crowd that caused them to go over to the square and riot.”
Lincoln had been watching the jury closely. They seemed rapt on what Lizar was saying. As Lizar finished saying “We would be suspicious,” several of the jurors were nodding in apparent agreement.
“But we don’t have to be satisfied with mere suspicion,” Lizar said. “Because we know what Mrs. Foster said. We have had three witnesses to tell us that. First, Mr. Wilbur Jenkins. He told you quite clearly that right at the end of her lecture, Mrs. Foster, right after talking about Lucy Battelle, told the audience, ‘Go out and do something about that.’ He may have repeated it in a slightly country way, but he remembered it, and he testified to it.”
Lincoln had to admire the way Lizar had gone about that. He wasn’t going to apologize for the weaknesses of his own witness. He’d leave that to Lincoln if he wanted to do it.
“There was also Mr. George Putnam, Jr. Another credible witness who was there and heard Mrs. Foster say exactly the same thing—‘Go out and do something about it.’ And that something was the transfer of Lucy Battelle back to her owner. The fact that Mr. Putnam may have been hostile to Mrs. Foster doesn’t change the very precise nature of his recall, particularly when supported by the recall of two other credible witnesses.”
Lincoln noted that Lizar had done what Lincoln himself sometimes did—bring up something negative about his own witness so that the opposing lawyer wouldn’t be the first to bring it up and accuse Lincoln of having hidden a bad fact. He looked again at the jury and was pleased to see that a couple of them, who had been paying rapt attention a minute ago, were starting to nod off. Lizar taking too long.
“And there was, finally, Mr. Herbert Winkler, an upstanding citizen of this state. He also heard clearly what Mrs. Foster said, ‘Go out and do something about it.’ And he was able to say with great precision what he understood Mrs. Foster to be asking of her audience.” Lizar looked down at a piece of paper in his hand. “He said, ‘I understood her to be urging the audience to go and interfere with the return of the slave girl to her owner.’
“Gentlemen, the evidence shows that Mrs. Foster knew exactly what was about to happen in the square with Lucy Battelle. She told her audience to go and do something about it and they did.
“And through riot they did exactly as she intended—prevented the return of Lucy to her proper owner and allowed her instead to escape.
“Mrs. Foster’s actions in so doing obviously feloniously violated Section 7 of the Compromise of 1850, which forbids anyone to assist a person bound to service from escaping if they are in the custody of the United States marshal.
“The United States asks you to bring in a verdict of guilty as charged. Justice requires no less. The government thanks you, as I do, for your time spent as jurors in this matter.”
“Mr. Lincoln, we will n
ow hear from the defense,” the judge said.
56
Lincoln had always believed that if you were representing a defendant it was important to make your argument brief and uncomplicated, so that it would seem a simple task to acquit. With that in mind, he began.
“Gentlemen, I will not keep you long. I am in favor of short and sweet.
“As for the timing of the events in the square, I suppose you could imagine that a speech blocks away somehow caused the events the government complains of—the rescue of an enslaved girl in this free state of Illinois. But the simple explanation of things is usually the best. And here we have a much simpler one.
“Earlier that evening, as Mr. Culp testified, the United States marshal found the mob in the square so threatening that he took the enslaved girl back into the courthouse. Most of the crowd then dispersed.
“But there’s the rub—the word most. Because, as Mr. Culp also said, some people remained. And so, when the government tried again to move the girl, it is logical to assume those who remained quickly notified others, and the mob reformed, with the result that we know.
“If you then ask what caused the riot the government complains of, the answer is simple—the government!
“The fact that, at the same time that the government tried a second time to move the enslaved girl, Mrs. Foster was finishing up a speech somewhere else is no more than a coincidence. Like most coincidences in our lives, it has no meaning.
“If you conclude, as I urge you to, that the government’s actions were the cause of the riot, you need not, I suppose, worry overly about what Mrs. Foster did or did not say over at the Second Presbyterian Church.
“But if you do examine that evidence I am confident you will find no credible testimony to suggest that Mrs. Foster urged anyone to go and do anything other than, perhaps, contribute to the collection plate.
“With regard to the three witnesses the government dragged in to try to remember to the contrary, you can no doubt judge their reliability for yourselves, without the need for my assistance. We all heard what they said, and we all heard them, one by one, admit their bias.
“I would also remind you that in judging the credibility of a witness, you may judge not only a man’s words, but the way in which he spoke them, including his pauses and stumbles as he purported to remember. I am speaking of course, of Mr. Winkler.
“I would also call to your attention that there was but one witness who testified on behalf of Mrs. Foster—Father Hale. Now I didn’t ask him if Mrs. Foster had urged people to ‘go out and do something’ about Lucy Battelle. It was Mr. Lizar who, in effect, asked him about that. Father Hale swore under oath that Mrs. Foster did not say that.
“Well, who to believe? I ask you to consider which of the four was most likely to take seriously the phrase ‘So help me God’ in the oath they all swore.”
Lincoln paused, and then said, as if he’d had a second thought, “Oh, and there is one more thing. The government presented not a single witness who said he heard Mrs. Foster speak and then went over to the square. Not one.
“You would have thought, out of all the people who were in the church and all the people who were in the square, the government, with all its resources, could have found at least one such person. After all, they went all the way to Chicago to find one of their other witnesses. Couldn’t they have found just one person who went from church to square? The fact that they didn’t speaks for itself about what or who caused the riot in the square.
“Far from proving beyond a reasonable doubt that Mrs. Foster assisted a slave to escape, the government has proved not a single thing that supports the charge. I urge you to find Mrs. Foster not guilty.
“Thank you for you kind attention today.”
“Mr. Lizar, do you wish a rebuttal?” the judge said.
“Yes, Your Honor. I certainly do.”
“Please proceed.”
Lizar walked toward the jury and said, “I, too, will try to be short and sweet, but also willing to look at the detailed evidence.
“We all have our biases. But biases are not necessarily disabling. Most of us, when charged with a solemn legal duty, can put our biases aside.
“Each of the government’s witnesses took an oath to tell the truth. Let’s look at them.”
“First, Mr. Jenkins, who said he heard Mrs. Foster say, ‘Go out and do something about it,’ referring to the recaptured slave. And yes, he is hard of hearing, and yes, he apparently is not someone who wishes to contribute to the abolitionist cause.
“If he were the only witness, perhaps there would be reason to doubt him. But he was not. There were two more who said the same thing.
“Next came Mr. Putnam. And yes, Mr. Lincoln might consider him biased, but remember what Mr. Putnam said under oath—that not only did Mrs. Foster say, ‘Go out and do something about it,’ but that he, Mr. Putnam, clearly understood her to mean, ‘Go seize the slave girl from lawful authority.’
“Please don’t forget that Mr. Putnam also saw a crowd rush out of the church when Mrs. Foster finished speaking. And he heard a man say, ‘Let’s go.’ Mr. Lincoln didn’t mention either of those things.
“There was also, of course, Mr. Winkler. He, too, heard Mrs. Foster say, ‘Go do something about it.’” He paused. “And there was not a single indication of any bias on his part. None. Indeed, it is just the opposite. He has actually caused his father to free slaves.
“Please also remember that all three of these witnesses support each other on the key point. Are we to believe that two of them are so biased that they lied under oath, and that the third one, Mr. Winkler, where no bias at all was shown, simply forgot what he heard?
“Finally, while we are on the subject of bias, the only witness the defense put forward was Reverend Hale.”
Here it comes, Lincoln thought.
“If you want to talk about bias, Reverend Hale is the picture of bias. He is not only an abolitionist, but he invited Mrs. Foster, a known radical abolitionist, to come to his church to lecture. And he had his parishioners put up posters to advertise Mrs. Foster’s lecture. So he could fill the hall.
“Now I ask you to consider, why is the testimony of the government’s three witnesses to be compared negatively to the bias of Reverend Hale? Why is he to be judged more truthful than all three of them?”
Lincoln wondered if Lizar was actually going to accuse Hale of lying. Perhaps he would find a less direct way.
“Far be it from me to accuse a man of the cloth of lying,” Lizar said. “But perhaps, in his zeal for his cause, the good reverend, without meaning to, misremembered what Mrs. Foster said.”
Nicely done, Lincoln thought.
“Now let’s talk about coincidence,” Lizar said. “If you believe that the three men who testified about what they heard Mrs. Foster say—‘go out and do something about it’—testified accurately, then what happened in the square was no coincidence. It was cause and effect. If you believe it was just a coincidence, I have some gold-laden land in California I want to sell you.
“The United States of America asks you to return a verdict of guilty.”
Lincoln admired Lizar’s effort. The case was going to be closer than he had hoped. Abby’s statement would be key.
“Mr. Lincoln, I believe you said Mrs. Foster would like to make a statement,” the judge said.
“Yes, she does.”
“May we approach the bench, Your Honor?” Lizar said.
The judge sighed. “Yes.”
57
“What is it now, Mr. Lizar?”
“Your Honor, instead of making an unsworn statement, the government has no objection to Mrs. Foster being sworn so that I can cross-examine her after her direct testimony.”
Lincoln said nothing. He preferred the law the way it was, at least for this case, but didn’t want to appear afraid to have
Abby cross-examined.
The judge seemed exasperated. “Mr. Lizar, the law in this state and, I believe, all states, is that criminal defendants may make an unsworn statement but may not be sworn and cross-examined.”
“But, Your Honor, many legislatures are even now considering changing the law.”
“So I have heard. But considering changing is not the same as changing. And the reasons that have been given over the centuries why defendants may not be sworn seem persuasive. For one thing, defendants may lie to protect themselves, cheapening the oath. For another, if they are permitted to testify and choose not to, the jury might conclude that they refused because they are guilty.”
“What is wrong with that inference?” Lizar said.
Lincoln answered. “It erodes their Fifth Amendment right not to be a witness against themselves.”
“Thank you, Mr. Lincoln, for your Constitutional erudition,” the judge said. “But whatever the arguments, until the Illinois legislature changes the law—and in federal courts we still follow state law on these things—I’m not at liberty to let Mrs. Foster be sworn and cross-examined.”
“Thank you, Your Honor,” Lizar said.
“Please return to your tables, gentlemen,” the judge said. “I will then explain the procedure to the jurors.”
The judge then addressed the jury. “Gentlemen, our law, for sound reasons, does not permit a criminal defendant to be sworn and testify, even if she were to want to do so. We do permit a defendant to make an unsworn statement—not under oath—to the jury. Mrs. Foster wishes to make such a statement.”
He looked at Abby. “Mrs. Foster, you may proceed, but please do so while standing at your table so that the jury will not misunderstand and think you are a sworn witness. Also, you may tell your story, but you may not directly attack the testimony of those who have testified under oath. Do you understand?”
The Day Lincoln Lost Page 29
