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12 - Art of Cross-Examination by Francis Wellman · Art of Cross-Examination

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  Speaker 1: Chapter twelve of the Art of cross Examination by Francis Wellman.
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  Speaker 1: This LibriVox recording is in the public domain. Chapter twelve,
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  Speaker 1: the cross examination of Doctor Blank in the carlyle W
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  Speaker 1: Harris case. The records of the criminal courts in this
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  Speaker 1: country contain few cases that have excited so much human
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  Speaker 1: interest among all classes of the community as the prosecution
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  Speaker 1: and conviction of carlyle W Harris. Even to this day,
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  Speaker 1: ten years after the trial, there is a widespread belief
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  Speaker 1: among men, perhaps more especially among women, who did not
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  Speaker 1: attend the trial but simply listened to the current gossip
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  Speaker 1: of the day and followed the newspaper accounts of the
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  Speaker 1: court proceedings, that Harris was innocent of the crime for
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  Speaker 1: the commission of which his life was forfeited to the state.
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  Speaker 1: It is proposed in this chapter to discuss some of
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  Speaker 1: the facts that led up to the testimony of one
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  Speaker 1: of the most distinguished toxicologists in the country who was
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  Speaker 1: called for the defense on the crucial point in the case,
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  Speaker 1: and to give extracts from his cross examination his failure
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  Speaker 1: to withstand, which was the turning point in the entire trial.
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  Speaker 1: He returned to his home in Philadelphia after he left
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  Speaker 1: the witness stand and openly declared in public when asked
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  Speaker 1: to describe his experiences in New York, that he had
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  Speaker 1: quote gone to New York only to make a fool
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  Speaker 1: of himself and return home again. It is also proposed
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  Speaker 1: to give some of the inside history of the case,
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  Speaker 1: facts that never came out at the trial, not because
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  Speaker 1: they were unknown at the time to the district attorney
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  Speaker 1: nor unsusceptible of proof, but because the strict rules of
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  Speaker 1: evidence in such cases, often, as it seems to the writer,
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  Speaker 1: withhold from the ears of the jury certain facts, the
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  Speaker 1: mere recital of which seems to conclude the question of guilt.
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  Speaker 1: For example, the rule forbidding the presentation to the jury
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  Speaker 1: of anything that was said by the victim of a homicide,
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  Speaker 1: even to witnesses surrounding the death bed, unless the victim,
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  Speaker 1: in expressed terms, makes known his own belief that he
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  Speaker 1: cannot live and that he has abandoned all hope or
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  Speaker 1: expectation of recovery, before he tells the tale of the
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  Speaker 1: manner in which he was slain or the causes that
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  Speaker 1: led up to it. Has allowed many a guilty prisoner,
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  Speaker 1: if not to escape entirely at least to avoid the
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  Speaker 1: full penalty for the crime he had undoubtedly committed. Carlyle
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  Speaker 1: Harris was a gentleman's son with all the advantages of educationation,
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  Speaker 1: and breeding. In his twenty second year, and just after
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  Speaker 1: graduating with honors from the College of Physicians and Surgeons
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  Speaker 1: in New York City, he was indicted and tried for
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  Speaker 1: the murder of Miss Helen Potts, a young, pretty, intelligent,
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  Speaker 1: and talented schoolgirl in attendance at Miss Day's Ladies Boarding
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  Speaker 1: School on Fortieth Street, New York City. Harris had made
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  Speaker 1: the acquaintance of Miss Potts in the summer of eighteen
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  Speaker 1: eighty nine, and all during the winter paid marked attention
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  Speaker 1: to her. The following spring, while visiting her uncle, who
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  Speaker 1: was a doctor, she was delivered of a four month
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  Speaker 1: child and was obliged to confess to her mother that
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  Speaker 1: she was secretly married to Harris under assumed names, and
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  Speaker 1: that her student husband had himself performed an abortion upon her.
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  Speaker 1: Harris was sent for He acknowledged the truth of his
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  Speaker 1: wife's statements, but refuse to make the marriage public. From
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  Speaker 1: this time on till the day of her daughter's death,
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  Speaker 1: the wretched mother made every effort to induce Harris to
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  Speaker 1: acknowledge his wife publicly. She finally wrote him on the
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  Speaker 1: twentieth of January eighteen ninety one, quote, you must go
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  Speaker 1: on the eighth of February, the anniversary of your secret marriage,
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  Speaker 1: before a minister of the Gospel, and there have a
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  Speaker 1: Christian marriage performed. No other course than this will any
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  Speaker 1: longer be satisfactory to me or keep me quiet Unquote.
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  Speaker 1: That very day Harris ordered at an apothecary store six capsules,
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  Speaker 1: each containing four and a half grains of quinine and
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  Speaker 1: one sixth of a grain of morphine, and had the
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  Speaker 1: box marked C W H Student one. Before retiring, Miss
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  Speaker 1: Potts had been complaining of sick headaches, and Harris gave
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  Speaker 1: her four of these capsules as an ostensible remedy. He
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  Speaker 1: then wrote to missus Potts that he would agree to
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  Speaker 1: her terms quote unless some other way could be found
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  Speaker 1: of satisfying her scruples, and went hurriedly to Old Point Comfort.
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  Speaker 1: Upon hearing from his wife that the capsules made her
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  Speaker 1: worse instead of better, he still persuaded her to continue
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  Speaker 1: taking them. On the day of her death, she complained
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  Speaker 1: to her mother about the medicine. Carlyle had given her,
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  Speaker 1: and threatened to throw the box with the remaining capsule
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  Speaker 1: out of the window. Her mother persuaded her to try
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  Speaker 1: this last one, which she promised to do. Miss Potts
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  Speaker 1: slept in a room with three classmates, who, on this
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  Speaker 1: particular night had gone to a symphony concert. Upon their return,
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  Speaker 1: they found Helen asleep, but woke her up and learned
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  Speaker 1: from her that she had been having such beautiful dreams.
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  Speaker 1: She quote had been dreaming of Karl quote. Then she
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  Speaker 1: complained of feeling numb and becoming frightened, begged the girls
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  Speaker 1: not to let her go to sleep. She repeated that
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  Speaker 1: she had taken the medicine Harris had given her, and
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  Speaker 1: asked them if they thought it possible that he would
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  Speaker 1: have given her anything to harm her. She soon fell
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  Speaker 1: into a profound coma, breathing only twice to the minute.
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  Speaker 1: The doctors worked over her for eleven hours without restoring
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  Speaker 1: her to consciousness when she stopped breathing entirely. The autopsy
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  Speaker 1: fifty six days afterward, disclosed an apparently healthy body, and
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  Speaker 1: the chemical analysis of the contents of the stomach disclosed
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  Speaker 1: the presence of morphine but not of quinine, though the
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  Speaker 1: capsules as originally compounded by the druggist, contained twenty seven
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  Speaker 1: times as much quinine as morphine. This astounding discovery led
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  Speaker 1: to the theory of the prosecution that Harris had emptied
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  Speaker 1: the contents of one of the capsules, had substituted morphine
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  Speaker 1: in sufficient quantities to kill in place of the four
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  Speaker 1: and a half grains of quinine. To the eye powdered
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  Speaker 1: quinine and morphine are identical, and had placed this fatal
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  Speaker 1: capsule in the box with the other three harmless ones,
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  Speaker 1: one to be taken each night. He had then fled
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  Speaker 1: from the city, not knowing which day would brand him
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  Speaker 1: a murderer. Immediately after his wife's death, Harris went to
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  Speaker 1: one of his medical friends and said, quote, I only
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  Speaker 1: gave her four capsules of the six I had made up.
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  Speaker 1: The two I kept out will show that they are
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  Speaker 1: perfectly harmless. No jury can convict me with those in
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  Speaker 1: my possession. They can be analyzed and proved to be harmless.
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  Speaker 1: They were analyzed, and it was proved that the prescription
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  Speaker 1: had been correctly compounded. But oftentimes the means a criminal
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  Speaker 1: uses in order to conceal his deed are the very
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  Speaker 1: means that providence employs to reveal the sin that lies
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  Speaker 1: hidden in his soul. Harris failed to foresee that it
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  Speaker 1: was the preservation of these capsules that would really convict him.
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  Speaker 1: Miss Potts had taken all that he had given her,
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  Speaker 1: and no one could ever have been certain that it
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  Speaker 1: was not the druggist's awful mistake. Had not these retained
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  Speaker 1: capsules been analyzed. When Harris emptied one capsule and re
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  Speaker 1: loaded it with morphine, he had himself become the druggist.
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  Speaker 1: It was contended that Harris never intended to recognize Helen
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  Speaker 1: Potts as his wife. He married her in secret. It
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  Speaker 1: appeared at the trial as it were from his own lips,
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  Speaker 1: through the medium of conversation with a friend quote. Because
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  Speaker 1: he could not accomplish her ruin in any other way,
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  Speaker 1: he brought her to New York, was married to her
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  Speaker 1: before an alderman under assumed names, and then, having accomplished
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  Speaker 1: his purpose, burned the evidence of their marriage the false certificate. Finally,
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  Speaker 1: when the day was set upon which he must acknowledge
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  Speaker 1: her as his wife, he planned her death. The late
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  Speaker 1: Recorder Frederick Smythe presided at the trial with great dignity
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  Speaker 1: and fairness. The prisoner was ably represented by John A. Taylor,
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  Speaker 1: Esquire and William Travers Jerome, Esquire, the present District Attorney
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  Speaker 1: of New York. Mister Jerome's cross examination of Professor Whitthause,
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  Speaker 1: the leading chemist for the prosecution, was an extremely able
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  Speaker 1: piece of work, and during its eight hours, disclosed an
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  Speaker 1: amount of technical information and research such as is seldom
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  Speaker 1: seen in our courts. Had it not been for the
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  Speaker 1: witness's impregnable position, he certainly would have succumbed before the attack.
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  Speaker 1: The length and technicality of the examination render its use
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  Speaker 1: impracticable in this connection, but it is recommended to all
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  Speaker 1: students of cross examination who find themselves confronted with the
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  Speaker 1: task of examination in so remote a branch of the
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  Speaker 1: advocate's equipment as a knowledge of chemistry. The defense consisted
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  Speaker 1: entirely of medical testimony directed toward creating a doubt as
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  Speaker 1: to our theory that morphine was the cause of death.
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  Speaker 1: Their cross examination of our witnesses was suggestive of death
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  Speaker 1: from natural causes, from heart disease, a brain tumor, apoplexy, epilepsy, euremia.
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  Speaker 1: In fact, the multiplicity of their defenses was a great
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  Speaker 1: weakness Gradually they were forced to abandon all but two
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  Speaker 1: possible causes of death, that by morphine poisoning and that
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  Speaker 1: by euremic poisoning. This narrowed the issue down to the
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  Speaker 1: question was it a large dose of morphine that caused
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  Speaker 1: death or was it a latent kidney disease that was
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  Speaker 1: superinduced and brought to light in the form of euremic
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  Speaker 1: coma by small doses of morphine, such as the one
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  Speaker 1: sixth of a grain admittently contained in the capsule's Harris admitted.
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  Speaker 1: In one case, Harris was guilty. In the other, he
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  Speaker 1: was innocent. Helen Potts died in a profound coma. Was
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  Speaker 1: it the coma of morphine or that of kidney disease.
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  Speaker 1: Many of the leading authorities in this city had given
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  Speaker 1: their convictions in favor of the morphine theory. In reply
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  Speaker 1: to those, the defense was able to call a number
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  Speaker 1: of young doctors who have since made famous names for themselves,
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  Speaker 1: but who at the time were almost useless as witnesses
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  Speaker 1: with the jury because of their comparative inexperience. Mister Jerome had, however,
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  Speaker 1: secured the services of one physician who, of all the
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  Speaker 1: others in the country had perhaps apparently best qualified himself
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  Speaker 1: by his writings and thirty years of hospital experience to
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  Speaker 1: speak authoritatively upon the subject. Its direct testimony was to
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  Speaker 1: the effect that, basing his opinion partly upon wide reading
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  Speaker 1: of the literature of the subject and what seemed to
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  Speaker 1: him to be the general consensus of professional opinion about it,
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  Speaker 1: and very largely on his own experience, no living doctor
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  Speaker 1: can distinguish the coma of morphine from that of kidney disease.
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  Speaker 1: And as the theory of the criminal law is that
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  Speaker 1: if the death can be equally as well attributed to
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  Speaker 1: natural causes as to the use of poison, the jury
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  Speaker 1: would be bound to give the prisoner the benefit of
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  Speaker 1: the doubt and acquit him. It was the turning point
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  Speaker 1: in the trial. If any of the jurors credited this testimony.
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  Speaker 1: The witness gave the reasons for his opinion in a
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  Speaker 1: very quiet, conscientious, and impressive manner, there certainly could be
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  Speaker 1: no conviction in the case, nothing better than a disagreement
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  Speaker 1: of the jury. It was certain Harris had given the capsules,
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  Speaker 1: but unless his wife had died of morphine poisoning, he
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  Speaker 1: was innocent of her death. The cross examination that follows
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  Speaker 1: is much abbreviated and given partly from memory. It was
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  Speaker 1: apparent that the witness would withstand any amount of technical
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  Speaker 1: examination and easily get the better of the cross examiner
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  Speaker 1: if such matters were gone into. He had made a
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  Speaker 1: profound impression. The court had listened to him with breathless interest.
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  Speaker 1: He must be dealt with gently, and, if possible, led
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  Speaker 1: into self contradictions where he was least prepared for them.
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  Speaker 1: The cross examiner sparred for an opening, with the determination
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  Speaker 1: to strike quickly and to sit down if he got
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  Speaker 1: in one telling blow. The first one misname a little,
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  Speaker 1: but the second brought a peal of laughter from the
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  Speaker 1: jury and the audience, and the witness retired in great confusion.
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  Speaker 1: Even the lawyers for the defense seemed to lose heart,
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  Speaker 1: and although two hours before time of adjournment, begged the
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  Speaker 1: course for a recess till the following day. Counsel, quietly,
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  Speaker 1: do you wish the jury to understand, doctor, that miss
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  Speaker 1: Helen Potts did not die of morphine poisoning? Witness? I
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  Speaker 1: do not swear to that counsel what did she die of? Witness?
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  Speaker 1: I don't swear what she died of? Counsel, I understood
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  Speaker 1: you to say that, in your opinion, the symptoms of
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  Speaker 1: morphine could not be sworn to with positiveness. Is that correct,
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  Speaker 1: Witness I don't think they can with positiveness. Counsel. Do
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  Speaker 1: you wish to go out to the world as saying
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  Speaker 1: that you have never diagnosed a case of morphine poisoning,
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  Speaker 1: excepting when you had an autopsy to exclude kidney disease?
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  Speaker 1: Witness I do not. I have not said so. Counsel.
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  Speaker 1: Then you have diagnosed a case on the symptoms alone,
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  Speaker 1: yes or no? I want a categorical answer, Witness sparring.
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  Speaker 1: I would refuse to answer that question categorically. The word
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  Speaker 1: diagnosed is used with two different meanings. One has to
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  Speaker 1: make what is known as a working diagnosis when he
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  Speaker 1: is called to a case, not a positive diagnosis. Council,
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  Speaker 1: when was your last case of opium or morphine poisoning?
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  Speaker 1: Witness I can't remember which was the last? Counsel seeing
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  Speaker 1: an opening, I don't want the name of the patient.
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  Speaker 1: Give me the date approximately that is the year. But
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  Speaker 1: under oath, Witness, I think the last was some years ago. Counsel.
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  Speaker 1: How many years ago? Witness hesitating it maybe eight or
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  Speaker 1: ten years ago, Counsel. Was it a case of death
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  Speaker 1: from morphine poisoning? Witness? Yes, Sir, Counsel. Was there an autopsy?
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  Speaker 1: Witness No, Sir, Counsel, How did you know it was
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  Speaker 1: a death from morphine? If, as you said before, such
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  Speaker 1: symptoms cannot be distinguished? Witness, I found out from a
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  Speaker 1: druggist that the woman had taken seven grains of morphine. Counsel,
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  Speaker 1: you made no diagnosis at all until you heard from
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  Speaker 1: the druggist. Witness. I began to give artificial respiration, Counsel,
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  Speaker 1: but that is just what you would do in a
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  Speaker 1: case of morphine poisoningness hesitating, Yes, Sir, I made, of course,
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  Speaker 1: a working diagnosis. Council. Do you remember the case you
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  Speaker 1: had before that? Witness? I remember another case, Counsel. When
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  Speaker 1: was that? Witness? It was a still longer time ago.
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  Speaker 1: I don't know the date, Council, how many years ago
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  Speaker 1: on your oath? Witness fifteen probably, Council any others Witness yes,
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  Speaker 1: one other council when Witness twenty years ago? Council. Are
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  Speaker 1: these three cases all you can remember in your experience? Witness, yes, Sir, Counsel,
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  Speaker 1: chancing it were more than one of them deaths from morphine.
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  Speaker 1: Witness no, sir, only one. Council, looking at the jury
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  Speaker 1: somewhat triumphantly. Then it all comes down to this. You
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  Speaker 1: have had the experience of one case of morphine poisoning
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  Speaker 1: in the last twenty years. Witness in a low voice, Yes, sir,
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  Speaker 1: one that I can remember. Counsel excitedly, and are you
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  Speaker 1: willing to come here from Philadelphia and state that the
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  Speaker 1: New York doctors who have already testified against you, and
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  Speaker 1: who swore they had had seventy five similar cases in
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  Speaker 1: their own practice, are mistaken in their diagnoses and conclusions. Witness,
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  Speaker 1: embarrassed and in a low tone, Yes, sir, I am counsel.
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  Speaker 1: You never heard of Helen Potts till a year after
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  Speaker 1: her death, did you, Witness, No, sir, counsel, you heard
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  Speaker 1: these New York physicians say that they attended her and
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  Speaker 1: observed her symptoms for a life an hour's before death. Witness, Yes, sir, counsel.
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  Speaker 1: Are you willing to go on record with your one
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  Speaker 1: experience in twenty years as coming here and saying that
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  Speaker 1: you do not believe our doctors can tell morphine poisoning
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  Speaker 1: when they see it, Witness sheepishly. Yes, sir, counsel, you
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  Speaker 1: have stated, have you not, that the symptoms of morphine
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  Speaker 1: poisoning cannot be told with positiveness? Witness? Yes, Sir, Counsel
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  Speaker 1: you said you base that opinion upon your own experience,
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  Speaker 1: and now it turns out you have seen but one
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  Speaker 1: case in twenty years. Witness. I also base it upon
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  Speaker 1: my reading. Counsel, becoming almost contemptuous in manner? Is your
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  Speaker 1: reading confined to your own book? Witness excitedly, No, sir,
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  Speaker 1: I say no, Counsel, calmly. But I presume you embodied
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  Speaker 1: in your own book the results of your reading. Did
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  Speaker 1: you not, witness a little apprehensively, I tried to, sir.
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  Speaker 1: It must be explained here that the attending physicians had
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  Speaker 1: said that the pupils of the eyes of Helen Potts
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  Speaker 1: were contracted to a pin point, so much so as
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  Speaker 1: to be practically unrecognizable and symmetrically contracted, that this symptom
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  Speaker 1: was the one invariably present in coma from morphine poisoning,
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  Speaker 1: and distinguished it from all other forms of death, Whereas
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  Speaker 1: in the coma of kidney disease, one pupil would be
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  Speaker 1: dilated and the other contracted, they would be unsymmetrical. Council, continuing,
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  Speaker 1: allow me to read to you from your own book
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  Speaker 1: on page one sixty six, where you say, reading, I
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  Speaker 1: have thought that inequality of the pupils, that is, where
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  Speaker 1: they are not symmetrically contracted, is proof that the case
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  Speaker 1: is not one of narcotism or morphine poisoning. But Professor
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  Speaker 1: Taylor has recorded a case of morphine poisoning in which
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  Speaker 1: it the unsymmetrical contraction of the pupils occurred. Do I
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  Speaker 1: read that as you intended it? Witness, Yes, sir Council.
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  Speaker 1: So until you heard of the case that Professor Taylor reported,
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  Speaker 1: you had always supposed symmetrical contraction of the pupils of
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  Speaker 1: the eyes to be the distinguishing symptom of morphine poisoning.
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  Speaker 1: And it is on this that you base your statement
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  Speaker 1: that the New York doctors could not tell morphine poisoning
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  Speaker 1: positive stively when they see it. Witness Little realizing the point, yes, sir, Council,
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  Speaker 1: very loudly. Well, sir, did you investigate that case far
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  Speaker 1: enough to discover that Professor Taylor's patient had one glass eye?
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  Speaker 1: Witness in confusion, I have no memory of it, Counsel,
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  Speaker 1: that has been proved to be the case here. You
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  Speaker 1: would better go back to Philadelphia, sir. There were roars
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  Speaker 1: of laughter throughout the audience as counsel resumed his seat
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  Speaker 1: and the witness walked out of the courtroom. It is
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  Speaker 1: difficult to reproduce in print the effect made by this occurrence,
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  Speaker 1: but with the retirement of this witness, the defendant's case
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  Speaker 1: suffered a collapse from which it never recovered. It is
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  Speaker 1: interesting to note that within a year of Harris's conviction,
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  Speaker 1: doctor Buchanan was indicted and tried for a similar offense,
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  Speaker 1: wife poisoning by the use of morphine. It appeared in
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  Speaker 1: evidence at doctor Buchanan's trial that during the Harris trial
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  Speaker 1: and the examination of the medical witnesses, presumably the witness
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  Speaker 1: whose examination has been given above, Buchanan had said to
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  Speaker 1: his messmates that quote Harris was a blank fool. He
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  Speaker 1: did not know how to mix his drugs. If he
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  Speaker 1: had put a little atropine with his morphine, it would
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  Speaker 1: have dilated the pupil of at least one of his
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  Speaker 1: victim's eyes, and no doctor could have deposed to death
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  Speaker 1: by morphine. When Buchanan's case came up for trial, it
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  Speaker 1: was discovered that although morphine had been found in the stomach, blood,
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  Speaker 1: and intestines of his wife's body, the pupils of the
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  Speaker 1: eyes were not symmetrically contracted. No positive diagnosis of her
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  Speaker 1: case could be made by the attending physicians until the
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  Speaker 1: continued chemical examination of the contents of the body disclosed
• 25:07
  Speaker 1: indisputable evidence of atropine or belladonna. Buchanan had profited by
• 25:14
  Speaker 1: the disclosures in the Harris trial, but had made the
• 25:18
  Speaker 1: fatal mistake of telling his friends how it could have
• 25:21
  Speaker 1: been done in order to cheat science. It was this
• 25:25
  Speaker 1: statement of his that put the chemists on their guard
• 25:29
  Speaker 1: and resulted in Buchanan's conviction and subsequent execution. Carlyle Harris
• 25:36
  Speaker 1: maintained his innocence even after the Court of Appeals had
• 25:40
  Speaker 1: unanimously sustained his conviction, and even as he calmly took
• 25:46
  Speaker 1: his seat in the electric chair. The most famous English
• 25:50
  Speaker 1: poison case comparable to the Harris and Buchanan cases was
• 25:55
  Speaker 1: that of the celebrated William Palmer, also a physician by profession,
• 26:00
  Speaker 1: who poisoned his companion by the use of strychnine in
• 26:05
  Speaker 1: order to obtain his money and collect his racing bets.
• 26:09
  Speaker 1: The trial is referred to in detail in another chapter. Palmer,
• 26:14
  Speaker 1: like Harris and Buchanan, maintained a stoical demeanor throughout his
• 26:18
  Speaker 1: trial and confinement in jail awaiting execution. The morning of
• 26:23
  Speaker 1: his execution, he ate his eggs at breakfast as if
• 26:26
  Speaker 1: he were going on a journey. When he was led
• 26:29
  Speaker 1: to the gallows, it was demanded of him, in the
• 26:32
  Speaker 1: name of God, as was the custom in England in
• 26:35
  Speaker 1: those days, if he was innocent or guilty. He made
• 26:41
  Speaker 1: no reply. Again, the question was put William Palmer, in
• 26:46
  Speaker 1: the name of Almighty God, are you innocent or guilty?
• 26:51
  Speaker 1: Just as the white cap came over his face. He
• 26:55
  Speaker 1: murmured in a low breath guilty, and the bold bolts
• 27:00
  Speaker 1: were drawn with a crash. End of chapter twelve.