The Duke of Wellington, Kidnapped!

by Alan Hirsch

  “You may think the law is stupid about this,” he acknowledged, “but the law is the law.” Like it or not, “if someone goes into your house and takes your television set because he wants to watch a football match and then keeps it, it is extremely irritating and annoying but it is not stealing.”

  Even on its own terms, the analogy was strained. Bunton’s act was more like someone taking your television set and watching football for four years while sending you ransom notes offering to return the set if you met his extravagant demands.

  On Tuesday, November 16, Judge Aarvold gave highly unusual final instructions to the jurors before sending them out to deliberate. Although the jury finds facts, and thus determines innocence or guilt in a criminal case, a judge’s instructions on the law provide the context for the jury’s decision and can influence the outcome enormously. For this reason, alleged impropriety of a judge’s instructions is often cited (sometimes successfully) as a basis for overturning a verdict on appeal.

  In this case, Judge Aarvold’s interpretation of the Larceny Act (specifically his belief that Bunton could not be convicted if he had not intended to keep the painting) virtually dictated the jury’s verdict on the main larceny charge. Aarvold had every right to make that determination—it involved a question of legal interpretation clearly lying within the province of the Court rather than the jury. Moreover, as a matter of plain English, his interpretation was correct. But in the course of his instructions, he did something that transgressed the normal authority of a judge.

  First, Aarvold did what judges and lawyers call marshaling the facts—summarizing the evidence that each side had presented and what it purported to show. This too is an unobjectionable and time-honored judicial function, which for the most part the judge performed ably—except that in the course of describing the evidence, Aarvold not so subtly injected his own opinion of it. After recapping the government’s theory (not disputed by the defense) about how the thief had entered the National Gallery, Aarvold pivoted:

  It was a reasonably simple way in you may think, but how would he get out carrying a picture of this size? You have seen a copy of the frame leaning against the dock, so it was you may think quite an athletic feat.

  The defendant tells you that he managed to get in and he managed to get out. You have seen him, you know his age, and you have also heard him say that he was suffering from a bad attack of influenza at the time. But somehow he managed to achieve that remarkable athletic feat, as you may well think it was. So far as we know there was only one person involved in this, and the defendant tells you he was there doing it himself with no one else helping him at all. As I say, you may think it was a remarkable athletic feat by the defendant.

  In the course of this brief description, Judge Aarvold managed to refer to the criminal’s “athletic feat” three times, twice adding the adjective remarkable. The jurors had only to look across the courtroom to see that the hefty defendant was probably incapable of even a nonremarkable athletic feat, but Judge Aarvold went out of his way to focus attention on this issue and to remind them of Bunton’s claim to being ill at the time of the theft. Significantly, the government and the defense, which shared the assumption that Bunton was the culprit, had barely mentioned any of this. The judge effectively made his own closing argument.

  To be sure, Aarvold qualified his overbearing instruction. Instead of overtly telling the jury his opinion, he repeatedly added “you may think”—as if he were just giving the jury one among several options. Aarvold wished to eat his cake and have it too: to influence the jury but in a way that would survive a Court of Appeals review. He didn’t stop with his repeated invocations of the “remarkable athletic feat” in question. There were other aspects of Bunton’s story that he regarded with skepticism—to put it mildly.

  The method, when you look at the plan, you may well feel must have required some very, very careful reconnaissance. The defendant tells you that all he did was to look out of the window of the gents’ lavatory, and from that window he could make up his mind as to how to get in. It looks as if it was perhaps a remarkable piece of intuition on his part when you see the actual route an intruder must have taken. He would have to go through the Chemistry department, through another building and into the courtyard, none of which it would appear to be possible to see according to the plan at any rate, from that window.

  Well, it may have been a casual reconnaissance, or it may have been that he carried out a much more careful reconnaissance than he would have you know about. It may be it was just an amazing piece of good fortune, but that appears to have been the method by which that picture was taken out of the National Gallery.

  The judge had only begun to express his doubts about whether Bunton had accurately described the theft. He proceeded to muse about how fortunate Bunton must have been to find guards off duty and to be seen by no one, and how bizarre it was that Bunton had gratuitously lied (by his own account) to the police in claiming to have disposed of the frame in the Thames. Further, Judge Aarvold expressed incredulity that “off he went to Newcastle with the painting.” Aarvold instructed the jury: “Again, you will ask yourselves, do you really accept that? Do you believe that? Do you think that would be the sort of risk he would be prepared to take at that stage?”

  Having expressed major doubts about every aspect of Bunton’s story, the judge explicitly told the jury that the various incredible claims “may cast considerable doubt as to his reliability as a witness.” Then, perhaps saying what he thought the Court of Appeals would need to hear if it was to forgive all his editorializing, he added the following—ostensibly for the jury’s benefit: “That is a matter entirely for you.”

  And so it was, in the sense that jurors could do as they pleased without fear of reversal, much less reprisal. Still, the judge had in no uncertain terms communicated his own view of the evidence, a professional jurist’s impermissible intervention likely to influence the lay decision makers who necessarily looked to him for guidance.

  Aarvold’s summation, unusual in many respects, was perhaps unique in one, reflecting the surreal nature of this trial. Though the judge had all but told the jury that he believed the defendant to be a massive liar, one could interpret his doubts as suggesting the defendant’s innocence. Indeed, Aarvold was disagreeing with both the defense and the prosecution. The two sides differed about Bunton’s motives, but they each claimed that he had seized the painting in the manner he described. Since Aarvold found Bunton’s story absurd, he felt the need to enlighten the jury. And lest he leave any doubt that he did not believe Bunton’s account of the theft, when Aarvold turned his attention to the ransom notes, he emphasized that Bunton used the term culprits, seeing fit to add, “Culprits is in the plural there.”

  Judge Aarvold marched through the various ransom notes, and here he at first maintained neutrality. He repeatedly told the jury that “it is for you” to determine Bunton’s mind-set, and with respect to that issue he seemed sincere. And on the question of whether Bunton had written the May 20 letter to Lord Robbins, the judge marshaled the evidence fairly. On the one hand, he noted, an expert had testified that Bunton’s fingerprints were on the pendant letter to Lord Rothermere. On the other hand, he observed, there were various discrepancies between those two letters and the ones Bunton had indisputably written.

  With respect to the technical and scientific process of fingerprint analysis, the judge observed, “Luckily, you and I do not have to understand or go into” these details. However, apropos of the original letter to Rothermere having disappeared, he said, “Somehow [it has] disappeared, and it is a matter for you to take into account. It means that the defense has not been able to study and scrutinize the original document and you must make all due allowance for that.”

  The judge parsed the letters to help focus the jury’s decision as to what they said about Bunton’s plan: Was he in fact threatening damage to the painting? Did he in fact plan to return it no matter what? In language that surely pleased t
he defense, Judge Aarvold informed the jury that to find Bunton guilty of uttering a threat, it must find “a very definite threat.”

  With respect to the March 21 letter to the Mirror in particular, the basis for count four of the indictment, Judge Aarvold again offered an analysis that infuriated the government and delighted the defense. While declaring the matter “entirely for the jury to decide,” he noted that “you may well come to the conclusion that [the letter] was really only part of the negotiations with the editor of the Daily Mirror in clarifying the ‘sporting offer’ they made. If you think that might be so, then you acquit on count four straight away.” Oddly, the judge gratuitously gave his imprimatur to a kidnapper engaging in “negotiations.”

  Having offered thinly concealed opinions about many of the factual issues, Aarvold turned to his legitimate task of instructing jurors on the law and the scope of their determination. He emphasized that if the jury found that Bunton had intended to return the painting and frame, it must acquit on the charges of theft.

  So instructed, the jury retired to deliberate at 12:10 P.M.

  Chapter 19: VERDICT

  After seventy-five minutes of deliberation, the jury sent a note to the judge, asking for clarification of the law on theft. In keeping with standard procedure, Judge Aarvold summoned the jurors into the courtroom and answered their question—which, as it happens, meant reiterating what he had already made clear but what they were understandably struggling to accept:

  “As I say, the real issue you have got to decide there is whether it has been proven that in the defendant’s mind there was the intention when he took the portrait out of the National Gallery to permanently deprive the owners of that portrait.” He continued in that vein for five minutes, before asking, “Does that help you any further, members of the jury?”

  The foreman responded: “Yes, thank you,” and the jurors resumed deliberations at 1:40 P.M. They returned with their verdict two hours later.

  The jury acquitted Kempton Bunton on three of the four charges: stealing the painting and the two “uttering a menace” charges stemming from letters to Lord Robbins and the Daily Mirror. But the jury found Bunton guilty of stealing the frame.

  After the verdict was announced, assistant prosecutor Thomas Leary informed Judge Aarvold that defense counsel Hutchinson was not present. (Somewhat oddly, the defense assented to the reading of the verdict in his absence.) Aarvold asked Leary, “Has [Hutchinson] been notified?” and the prosecutor replied, “I hope so, my Lord.”

  Leary also informed the Court that Detective Ferguson McGregor Walker, a prosecution witness, was present to answer the usual sentencing-related questions. Judge Aarvold said, “I think I better hear Mr. Walker.” Under Leary’s questioning, Walker relayed Bunton’s age, previous convictions, and current employment status (unemployed).

  Hutchinson, who returned to the courtroom during this brief interval, declined to ask questions of Walker but opted to make a very brief statement prior to sentencing, urging the Court to “take into account the fact that perhaps no one could possibly have imagined a frame would have the value this one is alleged to have had, and that on the face of it did not seem perhaps to him to be of any great value.”

  The court clerk than asked Bunton whether he wished to make a statement, and the newly minted convict replied without emotion, “Nothing at all, sir.”

  The sentencing remained for Judge Aarvold, who began somewhat informally: “Well, Kempton Bunton, the jury have accepted that at the material time you intended to return the picture, and they have accepted that you made no demands for money with menaces . . . and of course I accept the jury’s verdict on those matters.”

  Hutchinson would later recall that at the outset of the trial, Judge Aarvold had been shocked to learn that the defendant would plead not guilty; he was “absolutely furious” about the defense argument that it is legal to take and keep someone else’s property for four years. He came to accept that the perverse larceny law required such an interpretation, but now, at sentencing, he took the opportunity to offer a moral judgment. He scolded Bunton, explaining that “temporarily” depriving the National Gallery of the painting, while technically legal, was nothing to be proud of—notwithstanding the fact that he had acted to support charity: “Motives, even if they are good, cannot justify theft, and creeping into public galleries in order to extract pictures of value so you can use them for your own purposes has got to be discouraged.” But having announced the law’s need to deter such behavior, Aarvold immediately added: “Taking all those matters into account, I can only sentence you to a short term of imprisonment of three months.”

  The mismatch between the judge’s strong rhetoric and weak sentence echoed a Bob Dylan song recorded two years earlier. “The Lonesome Death of Hattie Carroll,” a ballad about a murder, climaxes with the judge’s decision at the end of the trial: “And he spoke through his cloak, most deep and distinguished / And handed out strongly, for penalty and repentance / William Zanzinger with a six-month sentence.”

  Six years later, Judge Aarvold was asked to contribute a few paragraphs to the American Bar Association Journal (under the title “A Note from the Recorder of London”). He concluded his benign remarks by declaring that the judiciary must “fulfill its function of administering justice with mercy and understanding.” Certainly the slap on the wrist he had given Kempton Bunton accorded with that sentiment.

  The next day’s Reading Eagle served up the obvious pun, titling its article on Bunton’s conviction “Defendant Can Say He Was Framed.” The London Times’s ostensibly straightforward headline better captured the oddity of the verdict. In bold letters it proclaimed, “MAN ACQUITTED OF STEALING GOYA”; then in smaller letters: “Guilty of Stealing Frame.”

  Kempton Bunton received a minimal sentence while maximizing attention to his pet cause. Many thought that he had gotten off ridiculously easy. A National Gallery publication that appeared in 1967, while the wound was still fresh, acidly observed that “to most of the world it was a shock to read that it is not against English law to climb into a public gallery at dead of night, remove a national treasure, keep it hidden for several years and meanwhile attempt to extort ransom from the public for whom it had just been acquired.” In fairness, though, the jury found that it was against English law to engage in such behavior if you did not return the frame.

  It is impossible to know what bothered National Gallery officials more: that Bunton was actually acquitted of most charges (including stealing the painting) or that he received such a light sentence for the count on which he was convicted. Perhaps the combination. But not surprisingly, Bunton’s lawyers saw the outcome differently. Hugh Courts, Bunton’s original court-appointed attorney, who ended up assisting Jeremy Hutchinson, recalls that “three months of prison we thought was harsh.” Fellow defense attorney Eric Crowther agreed, stating in his memoirs that Judge Aarvold, “normally a kindly and understanding judge,” probably would have given Bunton a suspended sentence, except that option did not exist in 1965.

  For his part, the defendant pronounced himself “intrigued by the verdict.” He also joked that prison wouldn’t be so bad, because “I’ll get free television there.” In his memoirs, he complains about the outcome of the case in only the mildest terms: “I do not argue with the result of the trial—the judge was fair—but maybe if I had been in his shoes, after the jury had said that I was guilty only on the frame charge, I would have said to myself . . . ‘he is aging, and maybe his motives were good—the jury apparently thinks so—[this is] a case for probation.’”

  Was the sentence in fact harsh? One can easily make the opposite case. Stealing a highly valued work of art, and holding on to it for four years while taunting the authorities and trying to extract a ransom, presumably merits a sentence heftier than three months in prison. But putting aside the judge’s lenient sentence, did the jury get things right? The answer requires consideration of the verdict with respect to each of the four charges.

&n
bsp; NOT GUILTY OF STEALING THE PAINTING; GUILTY OF STEALING THE FRAME

  The finding of not guilty of stealing the painting might seem absurd given that Kempton Bunton had taken the witness stand and acknowledged taking the painting, just as he had when he had turned himself in months earlier and on several occasions thereafter. His sundry confessions, however, did not constitute proof of guilt, because he did not admit to intending to deprive the gallery of the painting permanently.

  The jury presumably followed Judge Aarvold’s instruction to acquit if Bunton always intended to return the painting. That said, the determination that Bunton intended to return the painting was arguably unjustified. Several of the ransom notes implied that he would not return the painting unless his demands were met. (Then again, to acknowledge otherwise would defeat the purpose of a ransom demand. A ransom “request” seems unlikely to succeed.) Still, the judge’s instructions, involving a straightforward interpretation of the Larceny Act, gave jurors a way out. The defendant was obviously not a conventional criminal out for personal gain. To the contrary, his motives were charitable. On top of that, he was a bit . . . off. Why not seize on any plausible justification to acquit him of the principal charge?

  As in so many respects, here the case may have presented a strange twist on the normal functioning of the law. Jury nullification involves jurors disregarding the facts or law in order to produce a result they consider just. While controversial (some celebrate nullification as an indispensable democratic weapon, while others lament that it gives jurors unfettered power), it indisputably occurs—and probably always will, since jurors are not required to give reasons for their decisions and acquittals cannot be appealed. The case of Kempton Bunton might seem like a great candidate for nullification, as it involved a defendant who had seemingly committed a crime but, for idiosyncratic reasons, was not someone the jury wished to punish. However, if jurors felt that way, they did not have to nullify. The weird Larceny Act did their work for them. The notion that theft is not theft if not intended to be permanent allowed the jury to follow the instructions of the law and acquit someone who seemed clearly guilty. One might say that the Larceny Act itself nullified common sense and Bunton’s guilt.