by Alan Hirsch
There is, of course, nothing unusual about prosecutors doing exactly what Cussen did during the charging process: scouring the criminal code for all relevant charges that might plausibly be applied to wrongful behavior. What is extremely unusual is to acknowledge that they have done so, all the more so to admit that they have done so because of insecurity about the more straightforward charges.
Not surprisingly, in rebuttal Hutchinson jumped on his adversary’s admission. He noted the observation of a famed jurist that “nothing is a crime in this country unless it is expressly forbidden by law.” Adapting the common law to changed circumstances may be fine in civil cases, but in the criminal law it is anathema—an ex post facto law, or punishment of behavior deemed criminal only after the fact. Ex post facto laws are not forbidden in Great Britain (unlike the United States, where the Constitution expressly prohibits them) but have always been frowned upon.
Here, Hutchinson maintained, the government was frustrated that (because of the loophole in the Larceny Act that seemed to allow theft-as-borrowing) the defendant’s actions did not constitute a crime on the books. Accordingly, the prosecution’s thought process, as revealed by Cussen’s own confession, was (in Hutchinson’s characterization) as follows: “Here is something which requires condemnation and, therefore, if the larceny count does not succeed I must see to it that there is something that covers it.” Though not in so many words, Hutchinson essentially accused Cussen of creating an ex post facto law of his own.
Having heard the competing positions at some length, Judge Aarvold decided the matter with striking brevity. He declared the issue one “I would very much prefer to reserve for the decision of a higher court” but one he simply could not avoid deciding. Therefore, though “the evidence shows an irritating and frustrating act . . . I can only rule that the facts adduced in evidence so far cannot amount in my opinion to a public nuisance.” Accordingly, “I shall direct the jury that a verdict of not guilty must be returned on Count Five.”
As noted, Hutchinson also urged Judge Aarvold to direct a verdict in Bunton’s favor with respect to counts three and four—the two charges of uttering a menace. Here, his argument was much more brief: The letter of March 21, 1965, to the editor of the Daily Mirror did not constitute a threat or menace for two reasons. First, the prosecution had not called (and did not plan to) the editor as a witness, so there was no evidence that he was menaced. Second, what possible threat could there have been to him and his newspaper? If the Mirror failed to agree to exhibit the painting and raise money for his charity, Bunton would not return it . . . but so what? The newspaper did not own the painting, so it could hardly be menaced by its nonreturn. Similarly, the letter to Lord Robbins on May 20, 1963 (which Bunton denied writing but for the purposes of this motion the defense had to assume he had written), involved no direct threats to Robbins and there was no evidence that he felt threatened.
Here, counsel for the crown had the stronger argument. Whether Robbins or the editor of the Mirror felt threatened was irrelevant: For legal purposes, the question was whether the author of the letters intended his missives as a threat. Just read the letters, Cussen urged the court, and their intent is unmistakable: If you do not comply with my demands, I will not return the painting. The fact that the Daily Mirror did not own the painting was also irrelevant, since case law established that a threat affecting a third party can constitute an unlawful menace.
Judge Aarvold agreed. Indeed, he did not seem to regard this issue as a close call, rejecting the defense motion with a single conclusory sentence: “I need say no more than that in my opinion there is evidence which calls for the jury on each of these counts.”
It is doubtful that Hutchinson expected to prevail in his efforts to get these two counts dismissed (he spent less than ten minutes addressing them), but it is understandable why he felt the need to try. With respect to the two letters, Bunton’s lawyers faced a tricky balancing act. Their handwritten notes in the case file include items like the following: “Could a simple man have done this alone? If not, [we] can establish doubt as to whether Bunton did this alone, it might go some way towards establishing his non-responsibility for the 2 threatening letters.”
Therein lay a central dilemma for the defense. The idea that a large, nonathletic fifty-seven-year-old man could have pulled off the physically demanding theft seemed improbable. And, exactly as the defense team’s notes suggest, if Bunton had accomplices, why assume that he (rather than they) had written the ransom notes? And if the defense could establish doubt about his authorship of those letters, that could knock out two of the charges. The problem was that Bunton himself insisted that he had no accomplices. If defense counsel raised doubts on that score, they were effectively calling their own client a liar. For that matter, Bunton directly admitted authorship of one of the two letters in question—the one to the Daily Mirror. The defense was at war with itself: It could make a strong case that Bunton hadn’t written these letters but only by discrediting the defendant. Faced with that dilemma, it emphasized that, whether or not he had written them, none of them constituted a legal “threat” or “menace.” But Judge Aarvold rejected this argument.
Following Judge Aarvold’s ruling throwing out the public nuisance charge but allowing the two charges of uttering a threat to be decided by the jury, the case went forward with the four remaining charges: stealing the painting, stealing the frame, and writing the two allegedly threatening letters.
In support of those charges, the government introduced forty formal exhibits, including the painting, a plan of the National Gallery, the various ransom notes and other letters allegedly written by Bunton, the written statement he had handed the police when he turned himself in, and assorted physical items, such as the material used to secure the painting and the left luggage ticket given to him when he returned it. The government also called a raft of witnesses, twenty-three in all, a few of whom were particularly important.
These included the scientific experts. Detective Superintendent Harold Squires of New Scotland Yard’s fingerprint department had conducted fingerprint analysis on more than fifty documents (mostly letters sent by people claiming to be the thief) and compared any discernible prints to Bunton’s. He would testify that he found Bunton’s fingerprints on one important and contested letter. Roland Alfred Page, a senior forensic science officer in Cardiff, had compared Bunton’s handwriting samples with various letters and testified that in his expert opinion, Bunton had written several of the ransom notes.
Michael Vincent Levey, assistant keeper at the gallery, clarified, lest there be any doubt, that on August 21, 1961, “No one had permission to remove the portrait from the gallery.” He verified that the returned painting was the original Goya and estimated the value of the missing frame at £100. Under cross-examination, Levey acknowledged, “I don’t think I can clearly describe the frame,” but he quickly added, “I recollect it was a gold frame—a fairly plain—gold in color with no other color. I do not recollect the frame in detail.” He also conceded that “very little damage has been suffered by the portrait in the period it has been away from the Gallery since August 1961.”
The various detectives who had interrogated Bunton after he turned himself in—Officers Andrews, Weisner, Johnson, and Walker—all testified about the encounters, somewhat redundantly. They were cross-examined, Johnson at some length, but the thrust of their accounts survived intact.
Taken together, the prosecution’s various witnesses and exhibits convincingly established Bunton’s involvement in taking the Goya and writing various ransom letters and other letters related to the theft.
But the prosecution presentation was not flawless. Major problems emerged with respect to the May 20, 1963, letter to Lord Robbins, one that formed the basis for an independent charge. Scotland Yard’s forensics testing had found no observable fingerprints on the letter to Robbins but had identified Bunton’s fingerprints on the one to Lord Rothermere written the same day and undoubtedly by the
same person (since the one to Robbins referenced Rothermere and they bore consecutive registration numbers from the Darlington post office). The government expert, Scotland Yard’s Harold Squires, testified with certainty that Bunton’s fingerprints were on the letter to Rothermere, patiently explaining the science of fingerprinting and the basis of his conclusion. Squires, a fingerprint analyst for thirty-four years, was a respected authority in the field, but defense counsel Hutchinson shredded him on cross-examination—partly for reasons outside the witness’s control.
On direct examination, prosecutor Cussen asked Squires to explain the science of fingerprinting “not in great detail” and may have been displeased when the witness launched a lengthy response. Squires started by observing how “the hands are covered with a thick type of skin in ridge formation, and these ridges are studded by sweat pores” and then grew increasingly technical. But the biggest problem wasn’t the esoteric nature of Squires’s testimony. He did explain, comprehensibly enough, that whereas eight points of similarity between fingerprints suffice to establish a match, he had identified sixteen points of similarity between prints found on the letter and envelope sent to Rothermere and the fingerprint sample provided by Kempton Bunton.
The problem was less a matter of substance than process. Squires testified how the letter to Rothermere was given chemical treatment (which makes invisible prints visible), brought to a forensic laboratory, analyzed, photographed, and taken back to West End Police Station, where it somehow . . . disappeared. The photographs survived, but the missing letter gave Hutchinson an opening on cross-examination that he wasted little time in exploiting. After a few perfunctory questions, he said to Squires: “You appreciate, do you not, that Mr. Bunton and those of us who appear for him have never been able to see this document, ever. You appreciate that?”
After Squires assented, the alert Judge Aarvold interjected that “whether Mr. Bunton has been able to see [the original letter] is perhaps still in issue.” But the point had been made. And Hutchinson was not satisfied to allege negligence; he subtly implied corruption. He drew from Squires that, of the fifty-three documents Squires had examined, evidence of Bunton’s fingerprints was identified on only this one letter—the single letter to disappear. Rather convenient? Hutchinson made his implication sufficiently clear that at one point the angry Squires protested, “The fingerprint department of Scotland Yard is one that has built up over many, many years a reputation of the highest integrity.”
Hutchinson stressed the fact that the fifty-two items that had been examined and failed to yield a fingerprint match for Bunton included several letters that Bunton acknowledged writing. He seemed to be calling into question the competence of Squires and his department as well as their integrity. At other times, he not-so-subtly implied that fingerprint analysis in general was a junk science, prompting the witness to proclaim that his methodology “is accepted throughout the world and in all the courts of this country” and that it supplied, in this case as in others, “proof beyond all reasonable doubt.”
Such protests by the witness may have played into the defense’s hands, evincing an off-putting arrogance that Hutchinson sought to highlight. When he asked, “You would not hold out the view that your opinion should always be accepted without any question?” Squires actually replied, “With regard to fingerprints, yes, sir.” At another point, when Hutchinson provoked Squires by saying, “It is extremely difficult to ask you questions because you stand there and say you cannot understand,” the witness cut in to say, “No, sir, I understand it all.”
While we cannot be sure how Squires’s cocksureness played with the jury, it clearly failed to intimidate his inquisitor. Hutchinson argued with Squires as much as questioning him, at one point declaring him “completely wrong” and at another noting, “You keep saying that, Mr. Squires, but to the ordinary person’s eyes that just is not so.”
At times Hutchinson elicited what seemed like damning admissions, as when he identified an apparent “fork” in a fingerprint that Squires had not so identified. “Is that an optical illusion?” he asked, and the flustered witness replied, “It must be.” On other occasions, he deliberately dragged Squires into the weeds, where the discussion could only leave jurors befuddled—if they remained awake. At one point, as he probed the finer points of a certain print, he elicited this mind-numbing analysis from the witness: “I was looking at the two lines which form the ridges of the fork. Now I realize you are talking about the dark ridge which goes slightly to the left at 11 O Clock, or the dark mark that is not a ridge at all. It is something foreign in between the two.”
Something foreign indeed—that is surely how the jurors, by the end, regarded the entire process of fingerprint analysis. At turns riveting and deadly dull, the interplay between Hutchinson and Squires muddied the waters sufficiently that jurors were unlikely to trust that Kempton Bunton’s fingerprints were indeed on the missing letter to Rothermere. The charge that Bunton “uttered a menace” in his May 20 letter to Robbins obviously could not stand unless Bunton wrote those letters. Accordingly, by the time Squires descended the witness stand, that charge seemed shaky at best.
The other charges remained on firmer ground. The defense could not dispute most of the government’s narrative because it came from Bunton himself. He was largely locked into the fundamentals of his account of the theft and its aftermath, as he had already given versions of it several times, including under oath (during his depositions). While his multiple accounts differed in many particulars, they converged in his acknowledgment that he had taken the painting and written most of the ransom notes. Accordingly, the defense did not aggressively cross-examine most of the government witnesses who corroborated (or, in the case of the officers who had interrogated him, passed along) Bunton’s own accounts of events. As Bunton accurately if acerbically remarked in his memoirs, “Witnesses for the prosecution were brought hundreds of miles to personally give evidence which was not to be disputed by the defense.”
But if the government was overly fastidious about establishing undisputed facts, the defense erred in the opposite direction, raising frivolous issues—apparently on the theory that if you throw enough mud against the wall, some will stick. When the first prosecution witness, National Gallery employee Michael Levey, identified the portrait (brought into court in a wooden box), on cross-examination Hutchinson suggested that the painting might be inauthentic—that is, not a legitimate Goya. Levey acknowledged a brief brouhaha over its authenticity earlier that year, sparked by Sir Gerald Kelly, former president of the Royal Academy. Hutchinson asked whether Kelly had called the gallery’s alleged Goya “slick, incompetent and vulgar.” Levey could not vouch for those exact words but agreed that Kelly had indeed disparaged the painting.
Prosecutor Cussen rose and objected, demanding to know the relevance of this line of questioning. Hutchinson replied that surely it was significant whether Bunton had taken “an old bit of canvas with a piece of paint slapped on it . . . [or] a painting worth £140,000.” Those with a sense of history heard echoes of the historic slander suit brought by artist James McNeill Whistler against leading critic John Ruskin for writing, apropos of a Whistler exhibit, that he “never expected a coxcomb to ask 200 guineas for flinging a pot of paint in the public’s face.”
Judge Aarvold sustained Cussen’s objection, because “whether it was a genuine picture or rubbish, I think it would still be a picture of interest.” For that reason, he added (incoherently) to Hutchinson, “If you are going to prove during this trial that the picture is a fake, I shall be interested. But I doubt whether I shall allow it.” To clean up whatever little mess Hutchinson may have stirred up, Cussen used redirect examination to ask Levey whether he personally ever doubted the authenticity of the painting. Levey said he did not.
Like many a stubborn and effective defense attorney, Hutchinson insisted on pursuing this questionable angle. When the next day the prosecution called Lord Robbins to testify, primarily about his receipt of t
he May 20, 1963, ransom note, Hutchinson again used cross-examination to insinuate that The Portrait of the Duke might be inauthentic.
A distinguished-looking sixty-seven-year-old gentleman, Robbins was somewhat of a celebrity—an accomplished economist who had also authored the influential Robbins Report on higher education, commissioned by the government and published just two years prior to the trial. Robbins combed back his thick white hair, leaving his prominent forehead exposed. Confident and outspoken, he had a commanding presence and figured to be a compelling witness.
Prosecutor Cussen wasted no time with niceties. After just a few questions to establish Robbins’s connection to the National Gallery, he turned to the letter sent to him on May 20, 1963, which Cussen read aloud. This was the short typed letter that began by assuring Robbins that “I have the missing painting of the Duke of Wellington—you may have it back at £5,000—this can be arranged providing you work quietly” and that suggested that Lord Rothermere (who was sent a long letter that same day) of the Daily Mail serve as intermediary. Robbins confirmed receipt of the letter and explained that he had immediately contacted the police and turned the letter over to them. And that was that for his direct testimony. Although the prosecution charged Bunton with “uttering a menace” by way of this letter to Robbins, Cussen chose to let the letter speak for itself rather than ask Robbins about it. He questioned Robbins for just five minutes before turning him over for cross-examination.
Hutchinson began cross-examination by attempting to cast doubt on the notion that Bunton had even written the letter in question. Noting that other letters (the various Com ransom notes) included labels and other physical information to identify the painting, whereas the letter to Robbins had not, Hutchinson proposed that the latter “did not appear to you to have any connection, on the face of it, with the other letters.” But Robbins emphatically rejected that suggestion: “Oh no, I wouldn’t say that, sir.” Robbins explained that while the letter to him lacked “the same objective hallmark of authenticity” as the other letters, he felt certain that it came from the same hand. He observed that it “had the same dottiness of broad style, the rather wild idea of some intermediary who should negotiate a ransom . . . . It is the same sort of, what shall I say, ideology.” Robbins went so far as to say that “it didn’t occur to me to doubt that it came from the same author.”