The Day Lincoln Lost

by Charles Rosenberg

  “Well, yes I do,” Lincoln said. “It goes like this. What’s the best way to catch a pig that’s on the run?”

  “What the answer?” the judge said.

  “Try to be in front of it when it starts to run.”

  The judge laughed loudly and said, “Well, there’s your answer, Mr. Lizar. If you’d been at the courtroom door when Mr. Artemis started to leave, I’d delay the trial a few moments while you snared him. But since you weren’t, there will be no delay.”

  Lizar looked, Lincoln thought, a bit downcast and said only, “Alright.”

  “Do you have any more questions for this witness or any more witnesses?”

  “No.”

  “Does the government rest its case, then?”

  “Yes, sir. The government rests.”

  “Mr. Lincoln, we will take a fifteen-minute break now. You deferred your opening statement. Do you wish to make one when we return?”

  “No, we will waive it.”

  “Very well, then. How many witnesses do you think you will have for the defense case?”

  “Just one, Your Honor. And I expect that one to be quick.”

  53

  Lincoln, Herndon and Abby went to the same small room they’d used before.

  “We don’t have much time to talk,” Lincoln said. “I think I need only a single witness whose credibility is beyond doubt. And I need him to say only that he heard Abby’s entire speech—clearly—and that she never said anything even close to ‘go do something about it.’”

  “Do you have one?” Herndon asked.

  “Yes.”

  “Who?”

  “I’d like you to be surprised,” Lincoln said.

  Herndon looked over at Abby. “Lincoln likes secrets and surprises.”

  “I see,” she said. And then, “Abraham, how did you know Herbert Winkler was from the South?”

  “I wish I’d not figured it out, for obvious reasons.”

  “Yes, I could see it turned out not to be the best question. But I would still like to know how you knew.”

  “Well, Abby, Mrs. Lincoln, as everyone in the country seems to know by now, given how that’s been used against me in the campaign, grew up in Kentucky.”

  “Does she sound like that man?”

  “Not at all. But she has what sometimes seems to me like dozens of brothers and sisters, aunts and uncles, cousins, and nieces and nephews. And one or two of them, in order to do business in the North more easily, have tried to Yank-ify their accents. They sound just like Winkler.”

  Herndon looked at him. “Really? I’ve met some of Mrs. Lincoln’s relatives, and I never heard anyone who sounded like Winkler.”

  “Well, Billy, you’d be the first to admit that you and Mrs. Lincoln don’t get along so well, and she’s not often invited you to the house to meet any of her relatives. So you’ve just not met enough of them.

  “Now let’s turn to the most important thing,” Lincoln said.

  “What is that, Abraham?”

  “Closing argument. This judge is not likely to adjourn until tomorrow for that. I’m guessing he will make us give our closings today.”

  “Do you know what you’re going to say?” Herndon said.

  “I will simply point out that the government has the burden of proof here, and that it can’t possibly meet it with a man no longer of sound mind and two lying scoundrels.”

  “That sounds persuasive,” Abby said.

  “Yes, but what you say is the linchpin, Abby. You can’t testify under oath in your own defense. But you can make an unsworn statement.”

  “How do I do that?”

  “Just tell your story as best you can and be persuasive that you never said what they say you said.”

  “You’ve said the judge may not let me say certain things.”

  “I think you need not worry about that. If you step over the lines he draws he will stop you.”

  “You don’t want to rehearse, then?”

  “In the few minutes we have left, I want to go over what you want to say in broad strokes. I don’t want you to seem as if you are an actor reading rehearsed lines from a play.”

  “There is no risk of that, Abraham. I speak from an unrehearsed heart.”

  “Good, let’s spend a few minutes finding out what your heart has to say.”

  * * *

  With the lawyers and Abby back at their tables and all the jurors back in the courtroom, Judge Garrett seemed anxious to finish up. “Mr. Lincoln, you have only one witness, is that correct?”

  “Yes, Your Honor. Before I call him, though, I have the usual motion to bring.”

  “Why does that not surprise me?” the judge said, smiling.

  Lincoln had half expected that the judge would ask the jury to leave while he made his motion. The fact that he did not could be read in one of two ways; the most logical one was that the motion was going to be denied.

  Lincoln rose from his table and said, “Defendant Mrs. Foster moves to dismiss the government’s case on the ground that the United States has not met its minimum burden of proof in the case. I will now specify the ways in which that is true and cite the relevant law to Your Honor.” Lincoln glanced over at the jury, to be sure the judge was really wanting them to stay.

  “That won’t be necessary, Mr. Lincoln,” the judge said. “First, I’m familiar with the procedural law that is applicable to these sort of motions here in Illinois because I’ve been a federal judge in Chicago, where the same law applies. Second, I’ve listened to the witnesses and while some might say the matter is close, I believe a reasonable jury could go either way. So I’m going to deny your motion.”

  Lincoln breathed an internal sigh of relief. The judge had practically given the jury permission to acquit Abby if it felt like doing so.

  Lincoln looked over to Lizar to see if he was going to say something or protest, or ask for a mistrial on the grounds that the judge had prejudiced the jury. But he said nothing.

  Abby leaned over to Lincoln and whispered, “Was that good?”

  “It was wonderful,” Lincoln whispered back, then said aloud, “The defense calls Reverend Albert Hale.”

  There was an audible gasp in the courtroom as Hale pushed through the bar and took his seat in the witness chair. Men of the cloth were not usually called to testify in court.

  After he was sworn—saying “So help me God” in a particularly strong voice, Lincoln asked his first question.

  “Father Hale, do you recall where you were the evening of August 24?”

  “Yes, I was in the church of which I have been privileged to be the pastor these many years. Second Presbyterian.”

  “Why were you there?”

  “I was there to introduce a speaker I had invited to the church, Abby Kelley Foster, a noted abolitionist.”

  “Did people attend?”

  “Yes, except for the last few rows in the back, the sanctuary was full, and when filled it holds three hundred people.”

  “Did you introduce Mrs. Foster?”

  “Yes, I did. And then she gave what we call an abolition lecture. So she spoke at some length on the need to free the slaves in this country.”

  “Did she talk about anything else, Father?”

  “Well, Mr. Lincoln, at the start she went out of her way to say that she was not supporting anyone for president, and certainly not you.” He smiled.

  “Do you recall her mentioning anything else, Father?”

  “Yes, she mentioned that nearby, a young, enslaved girl was about to be returned to her master.”

  “Did she say anything else about that?”

  Hale paused, as if searching his memory. “She said that the girl was about to be returned to bondage in Kentucky.”

  “Anything else?”

  Hale paused aga
in. “Oh, yes. She asked for a show of hands of those who had been to a protest about the matter that had taken place there earlier.”

  “There being where, Father?”

  “Oh, in the courthouse square, but I don’t think she mentioned the place by name. I recall that she just said something like ‘several blocks from here.’”

  “Did she urge anyone to take any kind of action?”

  “No. Not at all.” He paused again. “Oh, later on she urged people to contribute money to help spread the word about the need to abolish slavery. That was at the very end. There were even women there walking around in the aisles and near the doors with collection plates, taking up contributions as Mrs. Foster was finishing up.”

  “Did you stay for the entire lecture?”

  “Yes.”

  “Every minute of it?”

  “Yes.”

  Lincoln considered asking Hale straight-out if Abby had said anything like “Go do something about it,” but decided against it. What he’d gotten from Hale was good enough without making it seem as if he had put words in his mouth. He would instead let Hale deal with it if Lizar was foolish enough to go near it.

  “I have no further questions,” Lincoln said. He glanced over at Lizar. The man looked like someone who had just taken a bite out of a bitter apple. “Mr. Lizar, cross-examination?” the judge said.

  54

  “Yes, Your Honor.” Lizar rose and walked over to Hale, but stood not nearly as close to him as he had with the other witnesses.

  If I were Lizar, I’d start with bias, Lincoln thought.

  Which is what Lizar did.

  “Good evening, Father,” Lizar said. “I don’t think we’ve had the pleasure of meeting.”

  “No, we haven’t,” Hale said. “But if you’re staying awhile in town, you’d be very welcome at our church this coming Sunday.”

  Nice shot, Lincoln thought. Hale had managed to remind the jury that Lizar was from out of town.

  “Thank you, Father,” Lizar said. “You are an abolitionist, am I correct?”

  “Yes. Although something of a moderate one by most people’s standards, I’d say.”

  Good, Lincoln thought, Hale has positioned himself where most of the jurors are likely to be, politically. Probably half of their wives say the same thing at the supper table. Let’s see if Lizar is inept enough to ask Hale to elaborate.

  But he didn’t. Instead he asked Hale what Lincoln thought of as a good yes/no question.

  “Father, did you meet with Mrs. Foster before her lecture?”

  “Yes, in fact we had supper together beforehand.”

  “At that supper, did you tell her about the enslaved girl?”

  “Yes, I told her there was such a girl—only twelve years old, can you imagine? A girl who was about to be handed back to her so-called owner.”

  “Did you tell her there was going to be a protest?”

  “Either that there was going to be or had just been one. I don’t recall the timing.”

  Lizar should stop now, Lincoln thought.

  “Did she express any desire to ‘do something’ about the situation of the slave girl?”

  Well, Lincoln thought, perhaps Lizar was continuing down his perilous path because he trusted a minister to be honest, but if any of the jurors were inclined toward abolition, they would not like that Lizar had slipped and called Lucy a “slave girl” instead of “enslaved.”

  “Not at all,” Hale said. “She said only that she might like to go herself to such a demonstration but was far too weary from her trip to do so. And then she said she needed to rest in her room for an hour before her lecture.”

  Lizar didn’t pursue it further, but looked down at some notes he’d apparently taken during Lincoln’s direct examination.

  Lincoln wondered if Lizar was going to risk asking an even more direct question of a witness he knew nothing about and hadn’t interviewed. Lincoln felt sorry for him. He was a man sent from afar to do a job in a midsize town he didn’t know. If they’d left the regular United States attorney in place, he would surely have gone and interviewed Hale. Or perhaps the regular man had simply refused to participate in this outrageous charade of a case.

  Lizar took a deep breath, and said, “Father Hale, during her lecture, did Mrs. Foster urge anyone to do anything?”

  “Oh, yes,” Hale said. “Toward the very end of her lecture, she urged people to go forth and oppose slavery and to please contribute to the collection plates that were circulating, both in the aisles and near the front door. I think she may have pointed toward the doors.”

  “Father Hale, do you carry a pocket watch?”

  “Yes, in fact my wife recently gave me as a gift the new Waltham Model 57. It even has interchangeable parts, so it can be repaired more easily!”

  Ignoring Hale’s enthusiasm, Lizar said, “Do you look at your watch frequently to check the time?”

  “Yes, although at times my wife says I do it too much and it makes people think I’m impatient with them.”

  “I see. Did you happen to check the time Mrs. Foster finished speaking.”

  “I did.”

  “Do you recall it?”

  “I do. She finished at precisely 9:00 p.m. And I remember that because I recall thinking that she had not droned on forever, as some speakers do.”

  He glanced over at Abby and said, “Apologies, Mrs. Foster, I can’t imagine you ever droning on.”

  Abby nodded slightly in response, but didn’t crack a smile.

  “One final question, Father Hale. Did you put up posters advertising Mrs. Foster’s lecture?”

  “I didn’t personally, but I did ask some of our parishioners to do that.”

  “I have no further questions,” Lizar said.

  The judge looked at Lincoln. “Any redirect, Mr. Lincoln?”

  Lincoln thought about it for a second, considering where Lizar was likely going with the time issue, but he couldn’t immediately think of any way to defang it. “No, Your Honor. I don’t have any redirect.”

  “Does the defense have any other witnesses, Mr. Lincoln?”

  “No.”

  “In that case, we’ll have closing argument now,” the judge said.

  “Excuse me, Your Honor,” Lizar said. “I request leave to reopen my case to call one additional witness.”

  “Who?” the judge said. “And on what grounds?”

  Lizar turned and pointed toward the back of the courtroom. “To question that man.” He pointed directly at Clarence, who to Lincoln’s astonishment, had apparently been unable to restrain himself from returning in order to hear the end of the trial.

  Clarence, who’d been sitting in the last seat in the row closest to the door, jumped up and started walking rapidly toward the exit.

  “I ask that the marshal restrain him,” Lizar said.

  Red, without being asked, moved into the middle of the doorway, where Clarence, who was not a big man, bumped up against him and stopped dead in his tracks.

  “Please move to the witness stand, sir. Since you are in the courtroom, Mr. Lizar does not need a subpoena to call you as a witness.” The judge paused. “Unless, Mr. Lincoln, you have some objection to Mr. Lizar reopening his case. Do you?”

  Lincoln could tell by the tone of voice in which the judge had said “Do you?” that he ought not to have an objection.

  “It’s fine with me, Your Honor.”

  Clarence walked up to the witness chair and sat down. After he was sworn, and had given his name and profession, Lizar said, “Sir, were you in the courthouse square the evening of August 24.”

  “In late afternoon and evening, yes.”

  “Were you there more than once?”

  “Yes, twice.”

  “What did you observe happening the first time?”

 
“A large crowd was threatening to interfere with the transfer of an enslaved girl back to her so-called master.”

  “Did you see any physical violence?”

  “Threatened, but it hadn’t happened when I left. At that point they had announced they weren’t moving the girl that night—I think it was Red who said that. Most of the crowd was dispersing.”

  “You went back a second time, right?”

  Lincoln had decided not to object to leading questions. He was most anxious to get Clarence off the stand and out of there as quickly as possible.

  “Yes, I did.”

  “Why did you go back?”

  “I was back in my office, a couple of blocks away, when someone shouted to me that they were bringing the carriage around again, presumably to try a second time to move the girl.”

  “Did you do anything in response?”

  “Yes, I grabbed what I needed—pencil and paper—and raced back to the square.”

  “What did you observe when you got there?”

  “The carriage was on its side and the man I’d seen sitting in it before was gone. I didn’t see the girl, Red or the sheriff. I had the sense it had all just happened, seconds or minutes before I got there.”

  “Did you see anything else?”

  “There was a small fire burning in a room inside the courthouse, and a small fire that had been built in a hole in the ground.”

  “Did you note the time that you got back to the square?”

  “Yes.”

  “Is it your normal practice to note the times of important events?”

  “Yes.”

  “What time was it when you got back to the square?”

  “Exactly 9:15.”

  “By your watch?”

  “Yes.”

  Lizar smiled. “Is it by chance a Waltham Model 57?”

  “No, it’s a much more exp—beautiful one.”

  “I see. Are you sure of that time?”

  “Yes.”

  “I have no further questions.”

  Lincoln breathed a sigh of relief. He had thought Lizar was going to try to move Clarence’s newspaper account of the riot into evidence, including the part that speculated about the possible role of Abby’s lecture in fomenting what happened. For whatever reason, Lizar had decided against it.