A Modern Wizard

by Rodrigues Ottolengui

  CHAPTER XI.

  TERMINATION OF THE GREAT CASE.

  The District Attorney himself arose to speak for the commonwealth."May it please your Honor and gentlemen of the jury," he began, "youhave just heard an able argument in behalf of the prisoner. Counselhas told you truly, that in this free Republic, which has become therefuge and asylum for the oppressed of all nations, the liberty of oneman is as sacred as the rights of the whole people. He has also usedthe well-worn argument that the prisoner should have your sympathy,because of the weakness of his position. By this is meant, that theState; having wealth, can engage prosecuting officers of ability,whilst the prisoner, thrown upon his private resources, may becompelled to intrust his cause to the care of inferior counsel. But,gentlemen, you must see at a glance that our learned opponent hasweakened his own argument by the unusual display of ability which hehas exhibited in this case. Surely in his hands the cause of theprisoner is eminently safe! The commonwealth, with all its resources,cannot summon greater legal ability to its aid. Therefore you mayrelieve your minds of any idea of pity for the prisoner, and omittingall thought of him personally, decide this case entirely on theevidence.

  "But if you find it difficult to disregard the fact that here is aman, whose liberty or life is at stake, then I bid you remember, thatwhilst it is true that his rights are equal to those of the State,they are no greater. The commonwealth must have equal place, in yourjudgment, with the prisoner.

  "As the prosecuting attorney I stand in a somewhat peculiar position.In ordinary lawsuits, opposing counsel are retained by the varioussides, and are arrayed against each other solely. Under suchcircumstances the able arguments of Mr. Bliss would hold sway. I amalluding now to his attack upon expert witnesses. Let us suppose thata suit is brought to overthrow a will, the plaintiff arguing that thesignature has been forged. Experts in chirography are called by bothsides. It is manifest, as Mr. Bliss has said, that the opinions ofexperts will be sought by the contending counsel, and at the trial wewould have those favoring the theory, forgery, testifying to thateffect, whilst the others would support the genuineness of thesignature. Undoubtedly, also, had either of these gentlemen expresseda different opinion prior to the trial, he would have been found uponthe opposite side. Or, in plainer words, the men are hired to testify,because, previous to the trial, they hold an opinion favorable to theside which pays them. Thus, as has been shown to you at some length,eminent jurists now accord but cautious credence to expert testimony,because of the bias which must attend paid advocacy. But, gentlemen ofthe jury, as logical as all this is, when applied to a civil suit, itbecomes but the most specious reasoning when introduced into acriminal case, such as this.

  "We are often led astray by arguments, which contain analogies whichare but apparently analogous. In this case there is a flaw at the veryroot of the argument, and therefore the very flower and fruit of thewhole beautiful array of words must wilt and fail.

  "This flaw is easily pointed out. In the civil case, as I have said,and as you know, opposing counsel defend but the side that pays them.In a criminal case it is entirely different. The District Attorney isengaged, not for a special case, against a special prisoner, but bythe whole community, for the protection of all the people. Now theprisoner is himself one of these, and his rights are ever in the mindsof the very men who prepare the arguments against him. Let us glancefor a moment at the _modus operandi_. Suspicion is aroused against aman. If sufficiently grave, the first bits of evidence attainable arepresented to the Grand Jury, and perhaps they find an indictment. Thisgives the State authority to hold the prisoner by arrest, until suchtime when he may be tried. But, gentlemen of the jury, are allindicted men tried? Not at all. The District Attorney notinfrequently, in the course of preparing a case, finds that an errorhas been made: that the man is the victim of circumstances: in shortthat he is innocent. What occurs then? Does he act the part of thehired lawyer and proceed, merely that he may collect a fee? Not atall. He protects the rights of the prisoner, as one of the people, andby due process of law the man is released from custody, free from evena stain upon his character.

  "Now let us for a moment suppose that the charge is one of murder; ofmurder by poisoning, let us say. The first step is to place themedical investigation of the facts into the hands of eminent experts.Here we find that the very resources of the commonwealth become theprisoner's greatest safeguard. The State having abundance of money,places this investigation into the care of the very ablest men to beobtained. It is not at all true, that these experts are retainedbecause of their known opinions. When they are retained, they have noopinions whatever, because they are engaged to pursue aninvestigation, and their opinions are non-existent until after theconclusion of their analyses. Now, gentlemen, imagine that thecommonwealth's counsel would be base enough to dispense with an expertwitness, because his testimony would be detrimental to the hypothesisof the prosecution, would such a course be possible? Not at all. Inthe first place, the autopsy and the chemical analyses have been madeupon the tissues of the body of the deceased. In the course of thiswork these tissues are rendered useless for any further analyses.Therefore, the only investigation possible is the original one, andthe only expert opinions obtainable are those of the men, who, as Ihave shown, are engaged long before they have any opinion to express.If these men were omitted from the case then no experts could becalled to replace them; but what would be worse, these very witnesses,discarded by the prosecution, would immediately be retained by thedefence. For, as Mr. Bliss has candidly admitted, the defence onlyengages experts whose opinions are known to be favorable. That is thedifference between the paid experts of the defence, and those engagedby the prosecution. The one is an advocate for a fee, whilst the otheris merely an independent outsider, who relates the medical facts whichhe has found upon examination of the body of the deceased, and thenexplains the scientific deductions which he makes from these facts.The witness of the defence is biased; the witness of the prosecutionis not. No, gentlemen of the jury, when the experts for theprosecution form opinions which oppose the idea of a crime, theDistrict Attorney has but one course which he can pursue. He mustprotect the prisoner, as it is his sworn duty to do, and obtain hisrelease.

  "But _per contra_, when these eminent medical men discover, within thetissues of the deceased, plain evidences of the fact that a crime hasbeen consummated, it then becomes the duty of the District Attorney toprosecute the accused, and to produce, before a jury of hiscountrymen, the evidence which these gentlemen of science havediscovered. And this class of evidence is not only valuable, andpertinent, but it is indispensable. Without the assistance of experts,it would be almost impossible to convict a man of murder, by the useof poison. The pistol, the knife, and other weapons, all leave woundsdiscernible by the eyes of all. But poison works insidiously, and isunseen. As deadly as the bullet, it operates not only without noise,but in skilful hands the death may simulate that caused by knowndiseases, so that even eminent physicians might sign a burial permit,as did Dr. Fisher in this case, without a suspicion of the presence ofthe poison. But suspicion having been aroused, by the aid of scienceit is now possible to search microscopically into the tissues of thevictim, and find every trace of poison if one has been used. And if,gentlemen, able men of science, prominent in their specialties, andhonored by their professional brethren as well as by the community inwhich they dwell, make an impartial investigation of this nature, andreport to you that they have found poison actually present, and inquantities which would have proved fatal, I submit it to yourintelligence, gentlemen, is not that expert testimony of the mostimportant character? Can we assail such evidence with the cry of bias,merely because it comes within the general category of experttestimony? Certainly not. You will therefore forget entirely theanathema which Mr. Bliss has delivered against experts, for thoughtrue enough against the class, it does not apply in this instance.

  "Before dismissing this phase of the subject, I must say a few wordsin defence of Professor Orton. Mr. Bliss poin
ted out to you that whenan expert is replying to direct examination he answers readily,whereas, when answering the cross-examining lawyer, he is morecautious. This is true; but, gentlemen, what does that signify? Simplythat having told the truth, the witness is compelled to defend himselfagainst the traps that will be set for him by the opposite side. Heknows in advance that he will be assailed by hypothetical andambiguous questions, worded to confuse him, and to mystify the jury.Under these circumstances, therefore, he must necessarily think well,before replying. He is in a court of law, under oath, and hisprofessional reputation is at stake. If he were not cautious in hisreplies he would be worthless as a witness. He is justified, too, inparrying questions which he knows are introduced merely to disguisethe truth, or to lead the minds of the jury into wrong channels. Mr.Bliss has made much, or thinks that he has made much, of the answerswhich Professor Orton gave. By specious reasoning he tries to provethat Professor Orton believed that this woman died of an accumulationof morphine, caused by a diseased condition of the kidneys. Mr. Blisstells us that he rests his case upon the evidence of our witnesses,and largely upon this admission from Professor Orton. Now, as a matterof fact, what Professor Orton did say cannot help the prisoner. Headmitted that other men have held the opinion that diseased kidneysmay cause an accumulation of morphine. But, gentlemen, how does thateffect this case? This very witness, upon whom Mr. Bliss is willing torely, tells us that whatever the possibilities might be in othercases, it is his positive belief that this particular woman did notdie as claimed by the defence. He found poison in the stomach inconsiderable quantities, whereas, where death occurs by a slowaccumulation, the drug would have passed beyond that organ, and nonewould have been found there. So that we see, that what might be, andwhat perhaps has been in the past, has no bearing on this case eveninferentially, because the same expert who says it is possible inother cases, tells us plainly that it did not occur in this instance.

  "And now, before speaking of the actual evidence in this case, let mesay a few words in regard to circumstantial evidence. It has beencommon practice for counsel defending criminal cases to inveighagainst circumstantial evidence, until a suspicion has been engenderedin the public mind, that it is of dubious value. Indeed, the people,knowing a little law, and understanding that all reasonable doubt mustbe accorded to the prisoner, and, further, having imbibed the ideathat all circumstantial evidence contains a doubt, have come almost tofeel that a conviction obtained by such means is a miscarriage ofjustice.

  "This is entirely erroneous. All evidence is divided arbitrarily intotwo great classes, direct and circumstantial. I do not here allude todocumentary evidence, which is somewhere between the two, the validityof the document being necessarily proved by one or the other. Thisclassification, as I say, is arbitrary, for he would indeed be a wiseman who could tell us exactly where direct evidence ceases to bedirect, or where circumstantial evidence becomes solelycircumstantial. The two are so interdependent, that it is only byextreme examples that we can dissociate them. All direct evidence mustbe sustained by circumstances, whilst all circumstantial evidence isdependent upon direct facts.

  "Let me give you an example of each, that this may be more clear toyour minds. Let us suppose that several boys go to a pool of water toswim. One of these is seen by his companions to dive into the water,and he does not arise. His death is reported, and the authorities,later, drag the pool and find a body. This is called direct evidence.The boy was seen to drown, you are told, and your judgment concedesthe fact readily. But is the proposition proved, even though you havethese several witnesses to the actual drowning? Let us see. The bodyis taken to the morgue, and the keeper there, an expert in suchmatters, makes the startling assertion that instead of a few hours, orlet us say a day, the body must have been immersed for several days.This is circumstantial evidence. The keeper has no positive knowledgethat this particular body has been under water so long. Still he hasseen thousands of bodies, and none has presented such an appearanceafter so short an interval. How shall we judge between suchconflicting evidence? On the one side we have direct evidence which ismost positive. On the other we have circumstantial evidence which isequally so. Is the original hypothesis proven? Does not thecircumstantial evidence raise a doubt? Certainly. Now let us takeanother step. The witnesses to the drowning are called again, and viewthe body, and now among ten of them, we find one who hesitates in hisidentification. At once we find another circumstance wanting insubstantiation of the original claim. Now we see, that all that wasreally proved was, that a boy was drowned, and not at all that it wasthis particular boy who was found. But is this even proved? How can itbe, in the absence of the drowned body? Now suppose that, at the lasthour, the original boy turns up alive, and reports that he had beenwashed ashore down the stream and subsequently recovered. We find thatour direct evidence, with numerous witnesses to the actual fact, wasentirely misleading after all, because we had jumped to a conclusion,without duly considering the attendant circumstances of the case. Soit is always. This is no case manufactured to point an argument. Thereis no such thing as positive proof, which does not depend uponcircumstances. The old example may be cited briefly again. If you seeone man shoot at another and see the other fall and die, can you saywithout further knowledge, that one killed the other? If you do, youmay find later that the pistol carried only a blank cartridge, andthat the man died of fright.

  "It is equally true of circumstantial evidence, that without somedirect fact upon which it depends it is worthless. As an example ofthis, I may as well save your time by introducing the case at issue.If we could show you that the prisoner desired the death of this girl;that he profited by her death; that he had a secret in connection withher child which he can keep from the world better, now that she isdead; that she died under circumstances which made the attendingphysician suspect morphine poisoning; that as soon as the suspicionwas announced, the prisoner mysteriously disappeared, and remained inhiding for several days; that he had the opportunity to administer thepoison; that he understood the working of the drug; and othercircumstances of a similar nature, the argument would be entirelycircumstantial. All this might be true and the man might be innocent.But, selecting from this array of suspicious facts, the one whichindicates morphine as the drug employed, and then add to it the factthat expert chemists actually find morphine in the tissues of thebody, and you see, gentlemen, that at once this single bit of directevidence gives substantial form to the whole. The circumstantial isstrengthened by the direct, just as the direct is made important bythe circumstantial. The mere finding of poison in a body, thoughdirect evidence as to the cause of death, neither convicts theassassin, nor even positively indicates that a murder has beencommitted. The poison might have reached the victim by accident. Butconsider the attendant circumstances, and then we see that a definiteconclusion is inevitable. It is from the circumstantial evidence onlythat we can reach the true meaning of what the direct testimonyteaches.

  "So we come at last to find that evidence is evidence, and that allevidence is important, and may prove convincing. This is true, withoutregard to the technical classification. Leave classification to thelawyers, gentlemen. You have but to weigh all that has been offered toyou as relevant, and bearing upon the issue. Be assured, the Recorderwould not have admitted any extraneous matter. You are not to castaside anything that you have heard, merely because Mr. Bliss tells youthat it is delusive. It is not delusive. On the contrary, all is veryclear, as I shall now demonstrate to you.

  "I will take up the chain of evidence much in the same order as didMr. Bliss. First, then, we have Dr. Meredith. Mr. Bliss hints to youthat he is a prejudiced witness, but whilst I might argue that a manmust be more than a villain to falsely accuse another of murder, Ineed go into no defence of this witness, because it has been freelyadmitted that his testimony is true. Mr. Bliss argues that all thatcan be deduced from what Dr. Meredith tells us, is that morphine waspresent in quantity sufficient to show toxic symptoms. Now that is allthat we care to claim from t
his witness. He recognized morphinepoisoning prior to death, but Mr. Bliss attempts to belittle the valueof this by the hypothesis that the drug was self-administered. Hecalls your attention to the statements of the prisoner to this effect,and tells you to believe him. On this subject I will speak again in amoment. The principal thing at this point is, do they ask us tobelieve that the girl died from diphtheria, or did she die of poison,regardless of how she received it? They do not choose between thesetwo queries, but ask you to say either that she died of diphtheria,or, if of poison, that it was self-administered. It rests with you,gentlemen, then, to decide this weighty point. As to diphtheria, wehave the report of the experts against it. Dr. Meredith declared, evenbefore her death, that she was dying from poison. The autopsy showedthat the cause of death was poison. The chemical analysis showsmorphine in a poisonous dose, which is declared to be more than threegrains. True, Dr. Fisher, a witness who was forced upon theprosecution, declares that diphtheria caused the death, but this is incontradiction to the opinion of all the others, and though honestlyoffered, no doubt, may be accounted for by the natural desire tosubstantiate the statement made in the death certificate. But thissame witness tells us later that exactly three and a half grains ofmorphine is missing from his medicine-case, the one from which thedefence admits that the morphine was taken. We find also that thedefence seem to lay more stress upon explaining the death by morphine,than upon any effort to prove that diphtheria killed this girl.

  "I think, then, that, with no injustice to the accused, you may adoptthe pet theory of the defence, and conclude that this girl died ofmorphine poisoning. But, gentlemen, I shall now even admit more thanthat. Let us grant that a diseased kidney will cause accumulation ofmorphine, and that this girl had such a disease. More than that, letus admit that she had taken a considerable quantity of morphine priorto her illness, and that a large portion of it was held secreted insome part of her body. Now, what is the situation on that last eveningof her life? She has been ill for several days with diphtheria, butshe is recovering. She is so far convalescent that the seniorphysician deems it unnecessary for him to see her again that night.She also has slight kidney trouble, and she has some morphine storedup in her system; an amount, however, which has been toleratedthroughout the attack of diphtheria, when vitality was at its lowestebb, but which has neither acted fatally, nor even affected her sothat symptoms of its presence attracted the attention of the doctors.

  "Gentlemen of the jury, now follow me closely if you please. We canoften bring witnesses to a murder where a weapon is used, but rareindeed is it that the poisoner is actually seen at his deadly work.But, by a singular act of Providence, that is what happened here. Theprisoner arrived at that house that night, and dismissed the trainednurse. Observe that this occurs precisely upon the night when thepatient has been declared to be convalescent. Here, then, is this man,a physician himself, alone in the presence of a weak woman. Does notthis surely indicate to you that he had the opportunity to commit thefoul deed? Supposing that he wished to rid himself of this girl, howgladly would he have awaited for her death by natural causes? Howwillingly have seen the dread diphtheria remove her from his path, andsave his soul from the stain of crime? But no! It was not to be! Onthis night, his skilled eye saw what the other doctors had seen. Thegirl would recover! If she was to die, it must be by his hand. Now howshould he accomplish it? By what means rid himself of the girl, and besafe from the hangman himself. Here the diabolical working of ascientific mind reveals itself. As he has told us he well knew hercondition. He knew that she had kidney disease. He knew that she hadbeen taking morphine, and readily guessed that some of the deadly drugwas still stored up in her system. If he administered morphine to thispoor woman, infatuated alike with the drug and with him, she would notoffer the slightest remonstrance. No cry would escape her lips as thedeadly needle punctured her fair flesh. Loving him and trusting him,she would yield to his suggestion, and so go into the last sleep. Butwhat of the after effects? He certainly would think of that? Why,certainly! The girl would die of coma, and the attending physicians,if summoned in time, would say that she died of anaemia caused bydiphtheria. Or, even if suspicion were aroused, it might be claimedafterwards, just, gentlemen, as it has been claimed, that the drug wasself-administered, and was not enough in itself to have proven fatal.He knew that the autopsy would substantiate his claim of kidneytrouble, and that the toxicologists would admit the effect uponmorphine. But more than all, being himself something of an expert inall branches of medical science, and especially in chemistry, he couldalmost to a nicety gauge the quantity of the drug which would berequired, which of itself might not prove fatal to a morphine_habitue_, but which would compass her death when added to what wasalready in her system. Chance seemed to favor his horrible design, forDr. Fisher had left his syringe and a supply of the drug. See thisfiend, this scientific wife murderer, measure out and prepare thelethal dose! See him pierce the yielding flesh and inject the deadlydrug, and then, lo! Providence brings upon the scene a witness to thedeed! The nurse returns unexpectedly and sees, gentlemen, mark mywords, actually sees this man in the act of using the hypodermicsyringe!

  "What can he do? He knows that it would be hazardous to deny thetestimony of this trained nurse. Therefore he admits what she tellsus, and then ingeniously invents the explanation that he was removingthe syringe, but had not made the injection. But I submit it to you,gentlemen, is that a probable tale? If this girl had time to preparethe drug, to fill the syringe, to pierce her flesh, to inject thedrug, would she not have been able to remove it herself? Does it taketen minutes to withdraw a needle? Or five minutes, or one minute? Orone second, gentlemen? Can you even compute the brief moment of timein which the withdrawal could have been effected? Mr. Bliss told youthat the testimony of the accused must be final on this point. Thatuntil he is convicted of crime his word is as acceptable as that ofany other witness. This may be a presumption of law, gentlemen, but itis a still greater presumption on the part of counsel to ask suchintelligent men as you are, to believe that a murderer, or even aninnocent man, would not perjure himself to save his life! Such thingsare told in romance, but we know that in actual life the mostscrupulous of us all, will lie unhesitatingly if life itself be thestake.

  "Thus, gentlemen, the whole thing comes to this. It matters not howmuch morphine this woman had taken herself, prior to her illness; itmatters not how diseased were her kidneys: the cause of her death wasthat last dose of morphine, and you have to decide whether this manadministered it as the nurse tells us, or whether the weakconvalescent mixed and prepared the drug, and then injected itherself. We claim that Dr. Medjora administered that last dose, andthat by that act he committed the crime of murder. And remember this,that if you decide that he administered that morphine, your verdictmust be murder in the first degree, for having denied that he gave thedrug at all, he cannot claim now that he gave it with no intention todestroy life. Gentlemen, you are the final arbiters in this matter."

  The Recorder immediately charged the jury, but though he spoke atconsiderable length, I need scarcely give his speech here, as it waschiefly an explanation of the law. He was eminently impartial in allthat he said, and it was surprising, therefore, how many objectionsand exceptions were entered by the defence. At last the jury was sentout, and the long wait began. The hours passed slowly and still thosepresent remained in their seats, loath to risk being absent when theverdict should be announced.

  It was nearly ten o'clock at night, and the jury had been out fivehours, when word was sent in, that a verdict had been found. TheRecorder a few moments later resumed his seat, and the jury filed in.After the usual formalities, the foreman arose and announced thefollowing verdict:

  "We find the prisoner, Dr. Emanuel Medjora, not guilty."

  The words were received almost in silence by all present. Above thestillness a deep sob was heard at the farther end of the room. Thishad escaped from the tightly compressed lips of Madame Cora Corona.

  BOOK SECOND.

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