by Alan Hirsch
The government, for its part, could conceivably have asked for a mistrial based on crucial and late-arriving information and could have initiated a complete investigation into the possibility that it was prosecuting the wrong Bunton. But, as Hugh Courts observes, that was unlikely: “The only possible road to follow is to have closed the trial; to have dismissed the jury; then to convene a new trial; collect a new jury; require the police to dismiss from their minds all the trails that they had followed and to pursue an entirely new case against another person, who might not have been the thief.” He doubts that the prosecution seriously considered this option.
Human nature, and experience with the justice system, supports Courts’s conjecture. As a parallel in the United States, consider that DNA testing has led to the exoneration of several hundred people convicted of crimes. Typically, the wrongly convicted remain incarcerated unless and until the prosecution agrees to their release (or until a judge orders it over the prosecutor’s objections). In a staggering number of cases, prosecutors have refused to relent—insisting that the DNA evidence is inexplicably unreliable or that the person may have been an accomplice even if not the primary culprit. They cannot admit to themselves or the public that they got the wrong guy. Moreover, in this case, even in Pamela Smith’s account, Bunton was guilty—not of having taken the painting himself but as an accomplice after the fact.
Given all the circumstances, it is understandable that neither side wanted Pamela Smith to derail the trial. While she brought forward potentially important new information, she (a) did not wish to testify; (b) was offering double hearsay; (c) gave an account that was manifestly false in some respects; and (d) came forward with the trial well under way. And, even if she was right, the person on trial was guilty of some offense.
After the weekend break, the hullabaloo passed and the trial proceeded as if Pamela Smith did not exist. Her information amounted to a rather large dog that had failed to bark—or better, a dog that had barked but was ignored. Even so, Smith’s intervention may have been relevant to the outcome of Bunton’s trial by virtue of her influence on the judge.
Chapter 15: KEMPTON BUNTON TAKES THE STAND
The principal dispute at trial concerned Kempton Bunton’s motives. The defense argued that Bunton, motivated solely by his devotion to a charitable cause, always intended to return the painting—and therefore that his action did not amount to a crime under British law. The prosecution insisted that Bunton’s adopted cause concealed a power complex, that he enjoyed toying with police and would have done so indefinitely but for running out of steam and will.
The defense argument rested entirely on the testimony of the defendant himself. Criminal defense attorneys say that the most difficult decision they face is whether to recommend that their client take the witness stand (the decision ultimately rests with the defendant) or to take advantage of his privilege against self-incrimination. On the one hand, even innocent defendants will likely suffer from anxiety and can be made to look bad by a trained prosecutor. Moreover, if he can convince the judge to allow it, the prosecutor will bring out unsavory aspects of the defendant’s background about which the jury would otherwise not be aware. On the other hand, juries want to hear from the defendant. And while the Anglo-American rule prohibits a jury from drawing an “adverse inference” from a defendant’s choice not to testify, it is doubtful that jurors will honor the admonition to ignore the fact that the defendant is unwilling to give his side of the story and subject himself to questioning. A judge’s instruction cannot easily overcome the powerful intuition that the innocent have nothing to hide. Consciously or unconsciously, jurors look askance at the defendant who declines to testify.
While in many cases these competing considerations create a conundrum for the defense, there was never any doubt that Kempton Bunton would take the witness stand. For one thing, without his testimony the government case regarding theft was close to airtight: The notion that Bunton intended to return the painting no matter what was counterintuitive and appeared to be contradicted by his ransom notes. But Bunton’s desire to take the witness stand transcended tactical considerations. After spending four years desperately trying to advance a cause, how could he resist a national audience? Closely related, a major consideration that normally cuts against a defendant testifying had no force in this case. If Bunton took the stand, the prosecution would be able to cross-examine him about his criminal record. But the defense wanted the jury to know about his refusal to pay the BBC licensing fee. That established his motive for the theft and thus indirectly supported the notion that he intended to return the painting. He was a man on a mission, not your ordinary thief out for criminal gain.
Almost immediately after Bunton lumbered to the witness stand, any doubt about the defense strategy dissolved. Defense attorney Hutchinson began with what has always been standard practice, asking the defendant to state his name and address. Under normal circumstances, he would have followed that formality with several more background questions, slowly leading up to the events related to the charged offense. But Hutchinson wanted to make a quick impression on jurors while their attention was fresh. His third and fourth questions went to the heart of the matter:
“Mr. Bunton, did you ever intend to steal this picture in the sense of permanently depriving the Gallery of it?”
“No, sir.”
“Did you ever intend and make any menaces, demand any money by menaces from anybody?”
“No, sir.”
Six months earlier, when he had read the London Times legal expert’s opinion that whoever had stolen the painting had not committed theft (because he intended to return it), Bunton immediately grasped that this would in fact be his defense. Now his lawyers wanted this idea lodged in jurors’ minds before they got in the weeds of the case. Having planted it, Hutchinson resumed the usual tack of establishing background, asking a dozen questions about Bunton’s personal life, everything from his age to his place of birth to his father’s occupation. He sought to establish sympathy for his client in a clever way that would hook up with Bunton’s lifelong crusade. He elicited that Bunton’s father had come back from World War I “a complete invalid” and was thereafter “a one hundred per cent pensioner,” whom teenage Kempton “pushed around in his chair.”
Such background questions tend to put a witness at ease, but here that effort failed. The stress of at long last testifying, or perhaps recalling his father’s condition, may have unnerved Bunton. Whatever the cause, he became confused when Hutchinson asked him about the car accident that had ended his career as a driver.
“Did you have an accident at some time?”
“I had an accident in 1942, sir.”
“In 1942?”
“Forty-two.”
“Was there some reason why you have not been able to follow your occupation of driving in the sixties?”
“Yes, a taxi accident in 1942 when a bus practically overturned us.”
“Do you mean 1942?”
“Forty-two, yes.”
“That was 20 years ago.”
“No, 1962.”
In his memoirs, Bunton claims that the accident occurred on Christmas Eve 1961. Six days off is inconsequential. But in his memoirs he also claims that his car almost collided with a truck (not a bus). His trial testimony that he was unable to drive after an accident seemed to suggest that he had suffered an injury. In reality, he was physically unscathed but the near miss had left him feeling too skittish to get behind a wheel.
Details aside, it was unclear why Hutchinson asked about the incident/accident. While it theoretically could have been used to cast doubt about Bunton’s ability to pull off the theft of The Duke, the defense did not deny that he had done so. The discussion about the incident established only that Bunton was an unreliable witness (confusing even his own attorney when he got the date wrong by two decades), which presumably would not help when it came to more consequential matters. But perhaps Bunton’s lawyers were doing what lawye
rs often do, trying to play on the jury’s sympathies. Even an irrelevant accident, at least one that caused the defendant to give up his occupation, could help in that regard.
So might the fact that in general Bunton came across more as an amiable bumbler than a hard-core criminal. At various points, his responses to Hutchinson’s questions were inadvertently humorous. When Hutchinson asked about the identity of the “Committee of 5” proposed in some of his ransom notes, Bunton replied: “They would be selected. Not by me, but by some responsible person.” He also delightfully mixed metaphors, at one point explaining that “I often threw red herrings about and I tried to put the police on to some gang instead of a lone wolf.”
The 1942 or ‘61 or ‘62 accident out of the way, Hutchinson turned to the all-important issue of motivation, questioning Bunton at some length about his cause célèbre—television licenses for the elderly. He asked no fewer than twenty-one questions about Bunton’s objections to the BBC licensing fee and the criminal penalties he suffered as a result of his civil disobedience. He then seemed to transition, asking, “Did you read about the paying of £140,000 for a picture?” When Bunton answered in the affirmative, Hutchinson connected the dots.
“What was it that you felt about it?”
“That the government could afford such money, yet they couldn’t afford to let the old age pensioners have television.”
Hutchinson then elicited from Bunton the latter’s now familiar calculation that the £140,000, properly invested, would subsidize forty television licenses weekly forevermore. That established, he asked Bunton to describe briefly (“not going into detail”) his plan to steal the painting and his execution of that plan, including taking The Duke 450 miles north to Newcastle. After Bunton complied, Hutchinson raised a potentially crucial issue.
“What happened to the frame?”
“The frame was too large to take north, and I left it in a lumber cupboard in the second lodgings [in London].”
“Did the frame appear to you to have any great value?”
“It certainly did not, sir.”
Hutchinson asked whether Bunton, after deciding to return the painting, made an effort to locate his old lodgings in order to recover and return the frame as well.
“I certainly looked for it, but all the streets seemed to be a maze to me.”
Bunton also explained that, during preliminary proceedings in Magistrates’ Court, he had publicly (but unsuccessfully) appealed to his old landlady to return the frame. Hutchinson followed up with what the defense hoped would be the decisive series of questions.
“Now Mr. Bunton, when you took this picture away from the National Gallery, what did you intend to do, what was your intention?”
“I intended to try and get a collection up to the sum of £140,000 for the reason that has been already stated, and if it failed, I would just return the picture.”
“Did you want to get the picture for yourself?”
“I didn’t want it.”
“Did you want to harm the picture?”
“Certainly not.”
“Did that apply equally to the frame as well?”
“Well, I never gave the frame much thought.”
“When you took the picture and the frame at that time, did you have any intention when you took it of depriving the National Gallery of either the frame or the picture?”
“Just temporarily.”
Hutchinson turned to the other crucial issue: the ransom notes. Bunton acknowledged writing Com 1 a week after the theft and sending it to Reuters to attract, in his words, “maximum publicity.” In that context, Hutchinson returned to the all-important issue of motivation. Apropos of the ransom demand of £140,000 in Com 1, he asked, “Did you want any of this money for yourself?”
“I could never have got any,” Bunton replied.
“Did you ever ask for any for yourself?”
“No.”
The defense faced a potential problem here. Of course Bunton did not say in the ransom notes that he wanted the money for himself. What ransomer ever bothers to say such a thing? Absent some reason to think otherwise, it is assumed that ransoms serve personal gain. Significantly, Bunton’s ransom notes did not mention any other reason (or intended beneficiary), at least not directly, for wanting the money. Hutchinson sought to defuse that problem.
“Why did you never say in these letters the actual purpose for which you wanted the money?”
“I daren’t say at that period that I wanted the money for television licenses because that would have been like signing my signature to the taking of the picture.”
“Had there been a certain amount of publicity when you took your stand about not paying the license?”
“There had been a lot of publicity.”
Establishing Bunton’s charitable intentions would not suffice for the defense. It had to show that Bunton intended to return the painting even if his ransom attempt failed. Otherwise, jurors could conclude that, when he took the painting, Bunton at least entertained the possibility of permanently depriving the gallery of it. He did in fact return the painting but only because the Daily Mirror led him to believe that he would gain some money for his cause. The notes—starting with the very word ransom—seemed to imply that only the payment of £140,000 would bring back the painting. Hutchinson struggled to overcome that potentially fatal perception.
“What did you mean by ‘It is for ransom, £140,000’?”
“Well, I could have put for collection, £140,000, just as well.”
“It has been suggested or put forward that you were implying that you would do injury of some kind to the picture if a fund was not started, or money was not forthcoming. Did you ever mean to imply that?”
“I never implied it, I never wrote it, and I never meant it.”
Adamant though he was, Bunton’s position required an unusual interpretation of his original intention and his ransom notes. He seemed to be suggesting that he had undertaken this daring theft in the hope that the government would fork over £140,000 if asked and that he would return the painting if the government refused. Quite apart from the inherent improbability of such a plan, he did not return the painting for four years, long after it became apparent that the government was ignoring his “request.” Moreover, some of the language in his letters comes close to threatening not to return The Duke unless his demands are met. For example, in Com 3 Bunton said of The Duke, “his future uncertain.” In Com 5 he noted that the art world had done nothing to meet his demands and asked, “Will they rescue the Duke?” Rescue seems an odd word if Bunton intended to return The Duke no matter what.
Yet whatever the difficulty of their position, Hutchinson and Bunton doubled down.
“It has also been suggested that you meant to say that you will never get your picture back unless you do what I tell you or what I ask you to do.”
“That was never stated in any of my letters.”
“Did you ever intend that to be your thought?”
“Absolutely not.”
Hutchinson turned to Com 3, the letter dated July 3, 1962, and addressed to the Exchange Telegraph in London. Bunton acknowledged authorship of it and explained that he called it Com 3 because Com 2, a letter to Reuters in February, had been “suppressed.” Hutchinson asked Bunton what he meant by the phrase “his future uncertain.”
“Well, just that he may be returned any time, but he may have to wait awhile.”
Hutchinson turned to the all-important letters of May 20, 1963, to Robbins and Rothermere, both of which Bunton denied writing and the former being the basis of a criminal charge. Handing Bunton those letters (the original of the one to Robbins, a copy of the one to Rothermere, the original having disappeared when it was sent for fingerprinting), he asked, “Did you have anything to do with writing these two letters?”
“Absolutely nothing.”
“Those were the letters you had written, the Com Letters?”
“Just the Com Letters.”
Noting the fourteen-month period that elapsed between Com 4 and Com 5, Hutchinson asked, “What happened during this interim period? What did you feel about having the picture and the publicity and so on?”
“I felt that I wasn’t going to get a collection, and I began to study how to return the picture.”
“Did you want to bring the matter to an end?”
“Yes, I was thoroughly sick of the whole affair.”
“Were you worried about it by this time?”
“I was worried, and disgusted at the way things had turned out.”
“You say [in Com 5] that you know now that you were in the wrong ‘but I have gone too far to retreat.’ Was that true when you wrote that?”
“Well, I know I was in the wrong, and this was my last letter. If this didn’t get a collection, that was the end.”
Hutchinson then turned to the event that in fact precipitated the end, the Daily Mirror entering the fray. He noted the newspaper’s “sporting offer” to encourage an exhibition if the painting were returned and asked Bunton whether he believed that such an exhibition would result if he returned the painting.
“I certainly did.”
In response to the offer, why did Bunton lower his demand to £30,000?
“Well, my price is coming down now, and £30,000 would mean seven licenses each and every week for evermore.”
Next came a crucial question and cheeky answer.
“What is suggested is—this is one of the charges against you—that you uttered that letter demanding money from the editor with menaces. . . . Were you trying to frighten the editor of the Daily Mirror into—”