by Bill James
In my view, whenever a jury is sheltered from the facts, there is a risk of injustice resulting. Denying Levi Weeks’ jury access to the true facts of the case enabled Weeks’ extremely clever lawyers to create a kind of shadow play, in which the real issues of the case were minimized and ants were projected as monsters. The O. J. Simpson verdict came about not because O.J.’s jury was stupid, but because O.J.’s jurors had been living for months in a meticulously constructed bubble in which they were denied facts about the case that were available to everybody else in the country. This, in the same way, enabled O.J.’s lawyers to create a kind of shadow play in which they conjured a monster out of the racist history of a detective who should have been off the stage in an hour. The mechanics of it were different in 1994 than in 1800, but the principle is the same: blocking out the sunlight increases the ability of the lawyers to play with the shadows.
And, as in the O. J. Simpson case, the prosecution asserted things that it had no real need to assert, and found itself trying to prove things that never happened. While I have little doubt that Levi Weeks murdered Elma Sands, I am not convinced that the horse and sleigh had anything to do with it. The time frame on the horse and sleigh is very short and not exactly right. The murderous errand does not require a horse or sleigh, since the distance was less than a mile and Elma would willingly have gone there with Levi on foot. A witness who scanned the area after the screams saw a man standing at the well, but no horse or sleigh. If we assume that the horse and sleigh is all a mistake, the prosecution loses almost half of its witnesses—for no real reason, since the murder does not require the participation of the horse.
Burr and Hamilton were joined again in the century’s next great crime story, of course, the duel of 1804. Brockholst Livingston, the third lawyer in the case, also killed a man in a duel—before ascending to the Supreme Court. I’m thinking if you did that now, it might be an issue in the confirmation hearings.
In 1836 a New York city prostitute named Helen Jewett was murdered in a brothel owned by John R. Livingston, a cousin of Brockholst Livingston, and an old politician himself. The story of Helen Jewett’s murder is discussed at length in the addendum to the paperback edition of this book, which begins on page 445, which I presume is at the back of the book.
In the summer of 1841 Mary Rogers was a 19-year-old girl who worked at John Anderson’s cigar store at 321 Broadway in New York City. Mary’s mother ran a small boarding house on Nassau Street. Her father had long since departed on some seafaring adventure from which he had not returned. Mary was engaged to a man who lived at the boarding house and worked as a cork cutter.
The population of New York City by 1841 was up to 300,000, five times that of 40 years earlier. The fastest-growing profession was publishing. The penny press—the daily newspaper, available for a penny and thus available to almost anyone—was made possible by an 1836 invention, if one can call stapling together a printing press and a steam engine an invention. There were dozens of newspapers, closer in spirit to blogs than to modern newspapers. Nassau Street was Publishers’ Row, the center of the business. Anderson’s cigar store, near Nassau Street, was a place where men hung around, especially newspaper men.
About 10 AM on Sunday, July 25, Mary knocked on the door of her fiancé’s room. Daniel Payne was getting dressed, but she spoke to him through the door, telling him that she was going to visit her aunt for the day—which was apparently a lie—and that she would return on the Broadway stagecoach at 6:00 that evening, which was probably supposed to be the truth. He said that he would meet her where the stagecoach stopped on Ann Street.
It rained hard that afternoon, however, and Payne, figuring that Mary would stay at her aunt’s, did not go to meet the returning stage. Her mother, as well, failed to raise an alarm when Mary did not come home that night, a fact from which some people inferred, probably incorrectly, that Mary didn’t always come home at night. In any case no one reported Mary missing until Monday night, when Mr. Payne learned that his intended had never arrived at her aunt’s house. Her body was found floating in the Hudson River on Thursday, July 29, near the entrance to Sybil’s Cave in Hoboken. She had been sexually assaulted, apparently bound and gagged at the time, and then choked to death and thrown into the water.
Hoboken at this time was a kind of pastoral retreat for New Yorkers and those from other nearby cities, with a river walk and a large park known as the Elysian Fields. Inside the Elysian Fields was a cave, Sybil’s Cave, leading to a spring from an underground aquifer. Sybil’s Cave was so delicately constructed that many people assumed it to be a natural opening, although in fact it had been dug out to reach the water in 1822. The proprietor of the cave sold unfiltered spring water to the beachgoers for a penny a glass. It was located between Eighth and Ninth streets on what is now Frank Sinatra Drive. It was covered over by industry, finally filled in and obliterated in 1937.
The death of the Beautiful Cigar Girl consumed the interest of the New York public as few stories ever have. Hordes of people flocked to Sybil’s Cave, a new crowd every day. Every newspaper wrote about it in every edition. When facts were in short supply speculation filled in nicely. In the wake of her tragedy, some newspapers would present Mary as a modest, respectable young girl, while others would present her as a bit of a tease. In all likelihood neither side knew what they were talking about, but it does seem clear that the cigar store employed her for the same reason that Hooters hires Hooters’ girls: she brought in the boys.
The investigation pulled up empty hooks for several days. Some of her clothes were missing, and her parasol. For days no one could be found who had seen Miss Rogers alive after she left her boarding house. Finally a New Jersey stage driver stepped forward with information. He had seen someone who fit Mary’s description arrive in New Jersey by ferry, accompanied by a tall, well-dressed man over 30 years of age, dark complexioned. She had accompanied him to Nick Moore’s House, a roadhouse on the Jersey shore.
Nick Moore’s House was run by Fredericka Loss. Well, yes, said Mrs. Loss, there WAS a young woman like that who stopped here on the 25th of July, accompanied by three men. But Mrs. Loss had seen the body when it was taken from the water—she had been summoned by authorities, as were many others, to see if she could identify the body—and she could not say whether it was the same woman. She had thought at the time that it was not.
Several days later, however, Mrs. Loss changed her story under police questioning. It was Mary Rogers who had come to her house, she admitted, accompanied not by three men but by one, the tall, dark stranger. They drank a glass of lemonade and then were on their way, toward the Elysian Fields. Shortly after they left, her house was visited by a group of several ruffians, who also had a drink and left in the same direction, along the same path. Not too much later she had heard a woman scream, but she didn’t think it was anything unusual at the time.
The police investigation now centered on identifying the mystery stranger. What had become of him? Mrs. Loss popped back into the story in September. One of her sons, she said, had found Mary’s missing clothes and her parasol in the field behind their house. She turned these over to the police, who didn’t have a clue what to do with them. (In fact, the word “clue,” in its current meaning, had not yet entered the English language.) The primary police strategy appears to have been to focus on Mary’s suitors and ex-suitors, and arrest them and charge them one after another, hoping some evidence would turn up. It never did. This continued until the police gave up on it, which appears to have happened in a matter of months, rather than years, as the New York police were not at that time organized to sustain a long-term investigation.
Three things happened later which gave the story legs. On October 8, 1841, Daniel Payne (to whom Mary had been engaged) went over to Sybil’s Cave, and committed suicide with a lethal amount of laudanum. He had been living a dissolute life since the tragedy, drinking heavily. He left a suicide note, but it contained no new information about Mary’s death.
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nbsp; Second, in November, 1841, Edgar Allan Poe published a story about the case, a fictionalized version of it called “The Mystery of Marie Roget,” which moved the case to Paris and proposed a solution. Poe, living in New York City at the time of the Helen Jewett murder, had been fascinated with that story and the interest that it generated. When the Mary Rogers story exploded five years later he was living in Philadelphia, but he published his fictionalization as a way of pushing himself into the market. The story is considered a cornerstone of the detective story genre, and is still widely read today. Poe’s imitators and rivals followed by issuing a number of other fictionalized versions of the tragedy. The detective story genre, then in its infancy, grew in substantial measure out of these Mary Rogers stories—although we should also point out that, many years before, there had been fictionalized versions of the story of Levi Weeks and Elma Sands. One of Helen Jewett’s favorite novels was Kenilworth, by Sir Walter Scott—which is a fictionalization of a famous crime that occurred in 1560.
Then, on October 24, 1842, Fredericka Loss was accidentally shot by one of her sons. She lived for two weeks, and gave a deathbed confession, one final effort to clean up her story. Her third and final version of the tragic day was that Miss Rogers had come to Nick Moore’s tavern on July 25 in “company with a young physician who undertook to procure for her a premature delivery.” Miss Rogers had died during the procedure, and, after a hurried consultation, it was decided that one of Mrs. Loss’ sons would take her body out into the river and tie a stone to it, sinking it so that it would never be found.
The scandalous and unsolved death of Miss Rogers became a pivot point of cultural and political debate, making Miss Rogers a central figure in the history of New York in the mid-19th century. The New York police force was re-organized top to bottom in 1845, substantially due to shortcomings which were exposed to public scrutiny during the Rogers investigation.
Moralists and social reformers, preachers and poets and politicians all stood upon the Rogers affair to broadcast their platforms. In the years 1843–1845 (and since, in many quarters), the botched-abortion theory became the most commonly accepted explanation for Mary’s death. Abortion was not illegal in New York in 1841. Killing someone in a botched abortion was illegal, but abortion itself was not. It became illegal in 1845, in large part because of the death of Mary Rogers.
The importance of the Mary Rogers’ murder in the early history of abortion legislation has turned her story into a kind of obscure feminist battleground where people use phrases like “the misogynist politics of antebellum journalism.” The irony is that there is not the slightest reason to believe that Mary Rogers was ever pregnant. Mrs. Loss’ story is nonsense. The New Jersey coroner who performed an autopsy on Miss Rogers, Dr. Richard Cook, reported very specifically that a piece of lace was tied around her neck, that there were ligature marks on her wrists, that there were evident marks of manual strangulation, that there were extensive abrasions and contusions on her back where she had been held down and raped, and further, that there was no indication she had ever been pregnant, and that he believed she had been a chaste woman until the mortal assault.
Dr. Cook overstated what he could have known, which caused people to pay no attention to him, even when he was talking about things that he very probably did know. The coroner’s statement that the marks from the fingers of the person who choked her to death could be clearly seen around her neck may have seemed far-fetched to 19th century readers, but readers of modern crime books will know that this certainly does happen, and in fact, it almost always happens when a person is choked to death. The story of her being abused post-mortem and thrown into the river to cover up what really happened is physiologically impossible. Strangling a dead person doesn’t leave bruises; the dead don’t bruise. In order to believe that she died in a botched abortion, you have to totally discount the coroner’s examination, not on one point but on many points. Having thrown that aside, one must then give credence to a story told years later, which has few earmarks of the truth, and which was the third account given by Mrs. Loss.
There are at least six competing explanations:
1. That she was murdered by her fiancé, Daniel Payne, who discovered her duplicity,
2. That she was murdered by the dark stranger who was never identified,
3. That she was murdered by some rejected suitor,
4. That she was murdered by some unknown assailant or assailants,
5. That she was murdered by one of the roving gangs of thugs which were then active in New York,
6. That she committed suicide by jumping into the water (this explanation being inexplicably popular among a segment of the contemporary public).
Mr. Payne’s behavior is in certain respects peculiar. It is odd that, by his own story, he agreed to meet his fiancée at a time and place, and then failed to notice that she wasn’t there. It is odd that he degenerated so completely in the following months. Grief is a powerful corrosive on the soul, but guilt is an even more powerful agent. His melodramatic suicide would be more common for a guilty lover than an innocent one.
Adding these facts together, they fall far short of a credible indictment of Mr. Payne. He was extensively interviewed by police, who failed to find anything to tie him to the crime. There is no reason to believe that he was a man of such ill character as to commit an atrocious crime against a woman he loved. While men do, of course, sometimes murder those with whom they are involved, this crime very little resembles most of those crimes. It just does not seem probable that Mr. Payne was anything but a collateral victim of Mary Rogers’ murder.
The police played out most of their energy on the secret boyfriend and rejected suitor theories, leading nowhere. The most widely accepted theory in the weeks after the crime was that she was murdered by a roving gang of thugs. There were gangs of thugs in New York at this time, sometimes organized around volunteer firehouses, there was a great deal of fear of them, and this murder was a natural outlet for that fear. Further, Dr. Cook, who performed the first autopsy on her, thought that she had been assaulted by six to eight men, and of course Mrs. Loss included a gang of thugs in one of her stories.
While the theory that she was assaulted by one of these firehouse gangs or some other group of ruffians certainly could be true, there are several problems. It is an almost invariable rule that when more than three people are involved in a crime, one of them is eventually going to talk about it. None of them ever did. Dr. Cook thought that Mary Rogers had been sexually assaulted by six to eight men, but it is not clear how he would know such a thing, after she had been dead and in the water for several days. Dr. Cook also reported, much more believably, that Mary’s hands had been bound during the assault. A group of six men assaulting a young woman would not likely tie her hands, because they would not need to.
One of Edgar Allan Poe’s early anthologists and biographers appended to the story of Marie Roget a footnote which claimed that later events proved that Poe had correctly figured out the clues and worked out the solution in broad terms. This footnote or a similar note was picked up and copied by later editors, becoming almost a part of the Marie Roget story itself; it was still there when I first read the story in the 1960s. The claim is bogus. First of all, no one knows what happened to Mary Rogers, so it is hard to see how Poe could be said to have anticipated the “real” solution. Second, Poe invented or mixed up details of the case critical to his solution of it, making it all but impossible to translate the fiction back into fact in the way that this footnote implies. And third, Poe later bought into Loss’ account of Mary’s death, and he published versions of his story in which he changed the solution—which means that Poe himself wasn’t convinced by his resolution of the case.
The most convincing solution for the Mary Rogers case was put forward by the criminologist Will Clemens in a November, 1904 article in Era magazine. Mr. Clemens returned many years later to the area where the crime had occurred, and found a number of elderly residents who
had known Mrs. Loss and her family. Every one of them believed that the murder had been committed in the roadhouse by Mrs. Loss’ sons, who had also murdered her companion. In support of this theory, consider the following facts:
1) Mrs. Loss had three sons, who were ages 20, 18 and 16 at the time of the murder.
2) These boys lived very near the scene of the crime, and, by their mother’s deathbed confession, were at or very near the scene of the crime on the day in question.
3) By way of Fredericka Loss’ deathbed confession, one of the sons acknowledged participating in the disposal of the body—a serious crime in which he had no apparent motive to participate.
4) It was one of these same sons who “found” the rest of Mary’s clothes, two months after the murder.
5) No one saw Miss Rogers and her companion alive after they entered Nick Moore’s House.
6) Mrs. Loss viewed the body and pretended not to recognize it. She later gave two false statements about the crime before the deathbed confession.
7) The deathbed confession was given to a local magistrate, Gilbert Merritt, who was summoned for the purpose. Mr. Merritt later took it upon himself to swear out an affidavit about the matter. Although he lacked any evidence on which to act against them, Mr. Merritt stated that he firmly believed that the Loss boys had murdered Mary Rogers, that they were “worthless and profligate” young men, and that the roadhouse run by Mrs. Loss was “one of the most depraved and debauched houses in New Jersey.”
If we assume that the abortion story is patently false, which I am convinced it is, this raises the question: why did Mrs. Loss tell this story? Mrs. Loss was trying to explain how this young girl went into her tavern alive and came out dead, and, when she had some time to think about it, that was what she came up with. Like her earlier statements about the case, it’s simply more disinformation. The third try was highly successful disinformation, unfortunately; one wouldn’t figure that a thing like that would work, but it did.