by Noel Behn
At no time during his cross-examination did Reilly challenge the witness’s identification of a voice that two years and nine months earlier had spoken at most four words from a distance of over two hundred feet. Lindbergh left the stand virtually uncontested by the defense lawyer.
On cross-examining Elsie Mary Whateley, the Lindberghs’ former cook and housekeeper, Reilly attempted to establish that her late husband, Ollie, knew Jafsie Condon and was extremely friendly, if not intimate, with Violet Sharpe. Elsie Mary, who had wept openly when the defense attorney had pressed Lindbergh for details on the death of his son, repulsed Reilly’s assault on her dead husband with forced calm and poise, and she prevailed. The Bull of Brooklyn fared somewhat better when he cross-examined Betty Gow and probed her relationship with Henry (“Red”) Johnsen, one of the few people who had known the Lindberghs were still at the estate on Tuesday, March 1. His bellowing suggestions that on the day of the kidnapping Johnsen had called her not from Englewood but from Hopewell and that the motive of the call was to see if the coast was clear created a furor in the courtroom and ultimately led nowhere.
Reilly did get Gow to say that the family dog, a chronic barker that was usually given the run of the house, had been kept in the Whateleys’ apartment the night of the kidnapping and was not heard to bark. Reilly also established that between the Lindbergh house and Mrs. Morrow’s home in Englewood there were another four or five sleeping suits similar to the one the child was wearing the night he disappeared. Reilly’s suggestion that in April, a month after the infant disappeared, Gow and Whateley had intentionally dropped the infant’s thumb guard next to the driveway, which had been thoroughly searched by investigators, was vehemently denied by Gow.
Death House and his associate defense attorneys—C. Lloyd Fisher, Egbert Rosecrans, and Frederick A. Pope—were the most effective in negating testimony from New Jersey state troopers, many of whom seemed to have let various investigatory details go undone. Their carping at statements by troopers Bornmann and Kelly, as well as by wood expert Arthur Koehler, frustrated the prosecution’s efforts to have the ladder entered as evidence. Wilentz, though enraged by this, continued to pursue the extortion phase of his prosecution by calling to the stand a tried-and-true witness who had picked Hauptmann out of a police lineup in Greenwich Village and identified him for the Bronx County grand jury: taxi driver Joseph Perrone. Wiping clean his glasses, he told Wilentz and the Hunterdon County court that Bruno Richard Hauptmann was the man who paid him a dollar to deliver a ransom message to Condon. When instructed to point Hauptmann out, Perrone confidently strode from his chair and placed a hand on the German’s shoulder, announcing, “This is the man.”
“Liar,” Hauptmann said quietly.7
Though the defense attorney’s continual and booming objections during direct questioning unnerved the cab driver, Perrone managed to survive Reilly’s boisterous cross-examination.
By dawn on Wednesday, January 9, an estimated one thousand people were lined up in the drizzle, hoping to hear Jafsie Condon’s testimony. Condon was one of the great crowd pleasers of the Lindbergh case and one of the most outrageous publicity seekers. Jafsie still never missed an opportunity to speak and still rarely told the same tale twice. Many waiting in line, as well as in the gallery, didn’t care what he said. They adored Jafsie almost as much as they despised the accused.
Dave Wilentz had not wanted to use Condon as a witness. The attorney general had been frustrated and angered by the old man’s failure to identify Hauptmann in the police lineup in New York City back in September. At one point he even threatened to have Jafsie arrested. Wilentz had avoided calling on Condon to testify before the Hunterdon County grand jury as well as at the Bronx extradition hearing. But Jafsie had made headlines by managing to interview Hauptmann alone. He had also dropped hints to reporters that he was ready to say he had given the ransom money to the prisoner but would not definitely confirm this to Wilentz. Whatever the pressures or reasoning, Wilentz relented. From all reports he was uneasy. If ever a witness was potential lion meat for Death House Reilly, it was Jafsie Condon—and the media were playing it to the fullest.
Called to the stand by Wilentz, Jafsie wasted no time in rattling off his many credits and contradicting himself. He was also about to provide one of the most memorable moments in modern trial history. Wilentz asked to whom he had given the wooden box containing the ransom money, and Jafsie answered, “John.”
Almost as an afterthought Wilentz queried, “Who is John?”
A dramatic pause ensued. Then Condon raised a bent finger toward the defendant and said, in resounding and accentuated syllables, “John is Br-uno Rich-ard Haupt-mann!”8 Hand raised and fingers pointed, he repeated it twice more.
Reilly’s cross-examination of Condon was being anticipated by many newsmen as the trial’s penultimate confrontation. Other reporters were touting it as the Battle of the Windbags. Several of the prosecuting attorneys feared Reilly might very well discredit the eccentric Condon. When Death House and Jafsie finally locked horns, it was all Jafsie. Not only did the agile-tongued former principal counter almost every thrust the defense attorney tried, he usually put the courtroom in stitches doing it.
Associate defense attorney C. Lloyd Fisher acquitted himself far better than Reilly. The prosecution, in a bid to enter into evidence documents written by Hauptmann at the New York Police Department’s Second Precinct the night of his apprehension, called on four law officers to testify and produce exhibits. The specimens were allowed as evidence, but not before Fisher, on cross-examination, got one officer’s admission that Hauptmann had been interrogated fifteen straight hours prior to the samples’ being taken, and not before he made another officer reveal that he had dictated what Hauptmann was to write. When Wilentz called Internal Revenue Service agent Frank J. Wilson to the stand, Fisher blocked the prosecution from entering into evidence the $14,600 found in Hauptmann’s garage. Wilentz scored points by getting Wilson to agree that since Hauptmann’s indictment not one dollar in ransom money had turned up. Fisher rallied during cross-examination when Wilson confirmed that the Treasury Department had carefully investigated the $2,980 of ransom money deposited at the Fed Bank in New York by J. J. Faulkner and that the handwriting on the deposit slip was not that of Hauptmann.
Wilentz called on his battery of handwriting experts—which helped to run up costs in what would become the most high priced trial in New Jersey’s history, an estimated $130,000, as opposed to the $50,000 spent on the entire Hall-Mills murders, the most expensive New Jersey trial to date. Albert S. Osborn and his son, Albert D. Osborn, who would put in expense bills for $12,000 and $9,655 respectively, again gave testimony that Hauptmann had written the ransom letters. Their opinions were reinforced by a battery of additional authorities, whose expenses, when added to those of the Osborns, brought the prosecution’s total outlay for handwriting testimony up to $46,661.15, or better than a third of the hearing’s total expenditures.
Coroner Walter Swayze recounted seeing the body in the woods and removing it to the county morgue, where it was identified by Betty Gow and Colonel Lindbergh. He admitted signing the death certificate, which over strenuous defense objections was entered in evidence. On being cross-examined by Reilly, he conceded that he was an undertaker, not a physician, and that he had signed the death certificate on information furnished to him by someone else.
Dr. Charles H. Mitchell, the Mercer County physician, perjured himself by testifying under oath that he had performed the autopsy on the body while Swayze looked on. It was just the opposite: Swayze had performed it with Mitchell looking on. Mitchell told the court that the child died of a fractured skull. Because he had found traces of a blood clot along the fracture line, it was his professional opinion that death had occurred either instantaneously or within a very few minutes following the blow—thereby implying that the child had been killed during the kidnapping and reinforcing the prosecution’s contention that the murder had been perpetrated wh
ile the victim was still in Hunterdon County.
For a time it appeared that Death House Reilly was finally on track. During cross-examination he pounded away at Mitchell’s examination of the corpse as well as at his general competence. Mitchell asserted that the child could not have died from what appeared to be a bullet hole in the skull—a possibility he was on record for having suggested to the press at the time of the autopsy. When asked if any other doctor assisted him, the county physician answered in the negative, even though Dr. Philip Van Ingen was there observing the autopsy being performed by Swayze. Mitchell insisted he had allowed, no one to see the body but couldn’t explain how the Movietone News people had managed to take pictures of the operation. He knew at the time that the autopsy was important but still saw no need to have called in a forensic specialist, which he was not. The reason he hadn’t taken a photograph of the blood clot that had allowed him to estimate the time of death was that he felt his memory was as good as any picture. The doctor bridled when Reilly suggested that if he had died before a suspect was arrested, no one could have testified to the autopsy from a medical viewpoint. Reilly returned to Mitchell’s conclusion about the cause of death: Indications of a blood clot and evidence of a cracked skull had led the physician to believe the child died of a blow to the head. Then Reilly dismissed the witness.
Wilentz supporters would later contend that because Reilly hadn’t followed through on Dr. Mitchell’s shaky medical conclusions, the prosecution was able to anticipate that the defense might be trying to establish that the baby in the woods wasn’t the Lindbergh child. Hauptmann advocates would insist that the state police had eavesdropped on Death House and his associates. Doubts as to the tiny body’s identity were indeed part of the defense strategy, or so Lloyd Fisher thought when earlier in his cross-examination he got truck driver Orville Wilson to testify that the dead infant was found in Mercer County and that the adjoining land was owned by St. Michael’s Orphanage.
Dave Wilentz, to counter any thoughts that the corpse belonged to one of the children of St. Michael’s Orphanage, called to the stand Elmira Dormer, the woman in charge of St. Michael’s, who testified that in the months of February and March 1932 no children were missing from the institution. Wilentz offered to produce the ledgers Dormer had brought along, should the defense have any dispute as to the attendance. They didn’t, and Wilentz made doubly sure by asking, “There is no claim that the child in the woods came from the orphanage?” Reilly, in a surprise reversal, declared that the defense had never doubted that the tiny body was that of the Lindbergh baby, thereby enraging Lloyd Fisher, who leapt to his feet and before striding from the chamber, shouted at Death House, “You are conceding Hauptmann to the electric chair.”9
Among those prosecution witnesses testifying to the trail of ten-dollar gold certificates that resulted in Hauptmann’s apprehension and to the subsequent discovery of ransom money in his garage were gas station employees John Lyons and Walter Lyle, DI agents William F. Seery and Thomas H. Sisk, Trooper John Wallace, and New York police officers James J. Petrosino and Maurice W. Tobin. Inspector Henry Bruckman of the NYPD gave direct testimony that Hauptmann had confessed to having written Condon’s phone number on an exposed board in his unlighted closet—and during cross-examination he admitted that the closet was unlighted and conceded that to read the number, you would have to have your back up against the closet wall.
Edward F. Morton, the Reliance Property Management timekeeper who had failed to appear as James Fawcett’s first defense witness in Hauptmann’s extradition hearing because the proper documents had not been available to him, now testified in behalf of the prosecution—and presented evidence that Hauptmann had not begun work at the Majestic Apartments until March 21, 1932. Cecile Barr identified Hauptmann as the man who had paid for a movie ticket with a folded five-dollar ransom bill on November 26, 1933, the night of his birthday. Her testimony was particularly critical to the prosecution, which counted on it to negate the defense claim that Hauptmann didn’t discover Fisch’s money-filled shoe box until August of 1934.
The second phase of Wilentz’s strategy, placing Hauptmann near the scene of the crime, was left not only to Millard Whited but to a pair of additional witnesses for the prosecution: seventy-four-year-old Amandus Hochmuth, who lived near Sorrel Hill and was almost blind with cataracts, and Charles Rossiter, a salesman for the Perfect Foods Company. All three expected a share of the reward money, something that would not be all that easy for them to collect.
A series of recalls set the stage of Wilentz’s final witness, Arthur Koehler, the wood expert from Madison, Wisconsin, who was being heralded in the press. Koehler claimed to have traced an almost imperceptible blemish on one of the rails in the ladder, rail 16, to a defective knife in a plane at the J. J. Dorn Company lumber mill in McCormick, South Carolina, and, subsequently, to have tracked a shipment of one-by-four-inch Southern-pine boards from the Dorn mill north to the National Lumber and Millwork Company in the Bronx, where Hauptmann was known to have worked as well as to have purchased lumber. Aided by charts, diagrams, and photographs, Koehler testified that as the result of a careful study of rail 16 in the ladder and the remainder of the missing board in Hauptmann’s attic, “I have come to the conclusion that those two pieces [of wood] at one time were one piece. That they have been cut in two.”10 One reason for his reaching this conclusion was that four nail holes in rail 16 fit perfectly into the nail holes in a remaining joist in the attic floor.
To explain why rail 16 was narrower than the missing attic board, Koehler produced a plane that had been recovered from the workbench in Hauptmann’s garage and contended that the groove marks on the ladder section left no doubt that the board had been shaved down by Hauptmann’s plane. Following many objections by the defense, the court allowed Koehler to demonstrate by clamping a piece of onionskin paper over the edge of a strip of ponderosa pine and rubbing it back and forth with a pencil. After shaving the edge with the plane from Hauptmann’s garage and applying a fresh sheet of onionskin, he made another rubbing. He placed a third onionskin page over the edge of rail 16 and again rubbed the pencil over it. The impressions on the first sheet of onionskin revealed the grain of the wood. The second and third sheets showed identical ridges made by the plane. Koehler applied the onionskin test to cleats he made in a sample piece of wood with the chisel that had been found near the abandoned ladder the night the child disappeared. They matched the pattern of the onionskin rubbing of the chiseled cleats on the actual ladder. Koehler finished off his testimony by asserting that the three-section ladder, when contracted, fit easily into Hauptmann’s car, and that whoever constructed the ladder knew a good deal about carpentry. There was no doubt that the jury, as well as the courtroom, had been intrigued by this witness.
Attorney Frederick Pope took up the defense cross-examination by challenging most everything the wood expert had said. Koehler could not be shaken.
The prosecution rested its case. It was now January 24, the seventeenth day of the trial, and defense counsel Egbert Rosecrans asked permission to make a motion for a verdict of acquittal.
Rosecrans’s action would be cited and sided with for decades to come as it was contended, among other things, that there was no evidence that the alleged crime was committed in Hunterdon County rather than in Mercer County, where the corpus delicti was found, and therefore the Hunterdon County court did not have the jurisdiction to try the case. Without such proof of venue, according to Rosecrans, the legal presumption must be that the fatal blow was struck and the death occurred in Mercer County. The defense also challenged the felony-murder statute under which the prosecution was attempting to find the defendant guilty. Rosecrans wondered aloud if burglary—in this case the stealing of the baby’s sleeping garment—even qualified as a felony. He argued that all the state had proved was that someone had entered the Lindbergh house with the intent to kidnap the child. The defense further maintained that under the very felony-murder statute to which they
were adhering, the state could not convict Hauptmann of murder until it had established that he had committed the felony that incidentally led to the murder: in this instance, burglary.
Wilentz passionately defended the court’s legality and the prosecution’s case. Justice Trenchard denied the motion for acquittal. The defense was ordered to proceed.
C. Lloyd Fisher’s opening statement on behalf of Bruno Richard Hauptmann that same day expressed confidence that he and his fellow counselors would convince the jury that their client had a complete alibi, especially for the critical dates of March 1, 1932, the night of the kidnapping; April 2, 1932, the night the ransom was paid in St. Raymond’s Cemetery; and November 26, 1934, the evening the movie-house cashier Cecile Barr received a folded five-dollar bill from the ransom loot. Pleading poverty and simultaneously taking a swipe at the money expended by the prosecution for handwriting testimony, Fisher promised to produce his own experts who would attest to Hauptmann’s not having written the ransom notes. He and his colleagues would account for every cent of Hauptmann’s money and prove that his business relationship with Isador Fisch was what the client always contended it was. They would show the jury that the witnesses Hochmuth and Whited—both of whom put Hauptmann near the Lindbergh estate at the time of the crime—were unreliable.
“‘Now, I want to come down for a minute, if I may, to the manner of the conduct of the police in this case,’” Fisher told the jury.
“I want to show you what we will prove about it. We believe that we will be able to show that no case in all history was as badly handled or as badly mangled as this case, and we refer specifically to the witness Kelly and his testimony about the ladder. Now after Kelly had played around with the ladder—and we will prove this—for days and days and days, and couldn’t find a print of any kind or description, after he had gone over the entire inside of the house and couldn’t find a print, even of the people who put the baby to bed, they called in an expert, Doctor Hudson, of New York City, and in the sight of Kelly, we will prove to you, Hudson took off some eight hundred fingerprints.”11