Francis Wellman, author of The Art of Cross-Examination and a turn-of-the-twentieth-century
New York prosecutor is reputed to have litigated more than 1,000 jury trials
over the course of a 30 year career at the bar. During that time he gained a
well-deserved reputation as a deadly cross-examiner, and his contemporaries
could not mention him without also mentioning the first case in which he
showcased his considerable talents—the Carlyle Harris murder trial.
Harris, a brilliant but flawed medical student at the New
York College of Physicians and Surgeons, fancied himself something of a Don
Juan, boasting that he could have any woman he wanted by fair means or foul. If
he could have them no other way, he would talk them into a secret marriage
under assumed names and then abandon them. Then he met, wooed, and won Helen
Potts, a beautiful but demur girl of 19 who refused his advances until he
proposed a secret marriage. Helen’s mother discovered the secret marriage and
began lobbying Harris to publicly marry her daughter on pain of being
scandalously exposed as a blackguard. Harris felt he could not stand exposure
for three reasons: (1) It would crimp his style as a seducer of young women;
(2) it would get him kicked out of medical school as morally unfit to practice
medicine; and (3) it would prompt his rich grandfather to disinherit him.
Less than two weeks before Mrs. Potts’s deadline for the
public marriage, Helen died after taking a headache remedy prescribed for her
by Harris. The symptoms were those of morphine poisoning, and the autopsy
revealed morphine poisoning. Harris was indicted for murder, and his lawyers
defended on the theory that the young lady could just as easily have died of
uremic poisoning. The prosecution’s “smoking gun” proof of morphine poisoning
was the fact that prior to death Helen’s irises had symmetrically contracted
until her pupils were mere pinpoints. All the prosecution experts testified
that this symmetrical contraction of the pupils was evidence of morphine
poisoning and nothing else.
The defense called an eminent expert from an out-of-town
medical school, a scholar who had written extensively on the subject, to
testify that the “smoking gun” was no such thing. As a matter of fact, he was
aware of one case of morphine poisoning where only one iris contracted to a
pinpoint and the other remained dilated. This emphatic testimony from such a
highly credentialed expert had the spectators in the packed courtroom
whispering that the prosecution had lost the case—but Wellman had not
cross-questioned yet. We will allow Wellman himself to describe what happened
when he undertook the cross-examination of the expert:
If Jerome [the defense attorney] could succeed in discovering a
single authentic case where the pupils were not symmetrically contracted and
where death had resulted from an overdose of morphine, the defense he had
constructed with such diligence and skill would win his case, or as he probably
would have expressed it "do the trick."
Accordingly he made a trip to Philadelphia and there found just
the witness he needed in the person of a sweet old Professor Doctor who called
himself a toxicologist and who claimed that he had made a specialty of the
study of the effects of poisons for about forty years.
On the witness stand this witness lived up to Jerome's fondest
hopes and gave it as his unqualified opinion that symmetrical contraction of
the pupils of both eyes could not be relied upon as excluding all other
causes of death
but morphine. He had known a case of undoubted death from morphine, where
the pupil of only one eye was contracted, the poison not having affected the
other eye in any way.
If this testimony had stood the test of cross-examination,
Jerome's ambition to acquit Harris would have been accomplished and with it
perhaps his own reputation as an outstanding trial lawyer, but (and I cite it
as still another striking example of the important part preparation plays in
the outcome of a case) it so happened that I had had, roughly speaking, about
five thousand cases of morphine poisoning examined and tabulated. I knew that
in only one of them had the drug failed to contract both pupils
symmetrically to a pin point.
Because of this investigation I thought I saw a chance to spring
one of my favorite surprises. If I could lead up to it cautiously enough I
might create a situation where I could pull a genuine rabbit out of the hat and
perhaps even decide the case then and there.
By easy steps I persuaded the Professor to admit that the one case
he had mentioned contradicted all his previous notions about the effect of
morphine poisoning. BUT (now I
felt that I was on dangerous ground)-
Q: Was it in the case of one of your own patients?
A: No.
Q: Was it ever authentically recorded in any medical book?
A: No.
Q: Do you know in what city the patient died?
A: Washington, D. C.
Q: Had you obtained you information about the case mainly from
the Washington newspapers?
A: I had. [I was getting nearer and nearer to the identification
of the one exceptional case that had been furnished me].
Q: Do you know the patient's name?
A: I don’t remember.
Q: Could I refresh your memory?
A: Perhaps. (And now I nearly stopped breathing).
Q: Was the name Mr. ---?
A: Yes. I remember it now.
Q: Did you personally investigated the case?
A: No.
Q: Well, perhaps it will interest you to know that I have
investigated it and in the case you have referred to the patient had one glass
eye?
Jerome nearly collapsed, along with his defense. He fairly
begged the Judge to adjourn the court and give him an opportunity to
investigate further (but really to get his second wind). It was no use. He
tried hard the next morning with some new doctors, but his client's liberty had
gone out of the window the afternoon before.
This account, which comes from Wellman’s autobiography, Luck and Opportunity, written some 40
years after the trial, is an example of two things (1) the value of preparation
in dealing with an overconfident expert, and (2) the fallibility of eyewitness
testimony. Wellman got the gist of the story right, but as he told and retold
the story over the decades his performance became far more dramatic than it
actually was. The actual transcript of that portion of Wellman’s
cross-examination reads as follows:
Q. Now you state, do you not, that the
symptoms [symmetrical contraction of the irises] could not be told of morphine
poisoning with positiveness?
A. Yes, sir.
Q. That that was your best opinion upon your
reading and upon your own experience; your own experience in twenty years is
confined to one case; is your reading confined to your own book?
A. No, sir.
Q. Is your reading confined to your own book?
A. No, I say no.
Q. But I suppose you embodied in your book
the results of your reading, didn't you?
A. I tried to, sir.
Q. Allow me to read to you from page 166.
THE COURT: Of what?
Mr. WELLMAN: Of his own book on Therapeutics and its Practice.
(Reading.) "I have thought that inequality of the pupils"—that is
where they are not symmetrically contracted—" I have thought that
inequality of the pupils is proof that a case is not one of narcotism; but
Prof. Taylor has recorded a case of opium poisoning in which it occurred."
Q. So that until you heard of the case that
Prof. Taylor had reported in which it occurred, your opinion before that was
that it never had occurred, symmetrical contraction of the eyes, besides
morphine poisoning?
A. No, sir.
Q. Now, did you inquire and did you inform
yourself that the case of which Professor Taylor spoke, was a case where a man
had one eye?
[Objection by Mr. Jerome overruled].
Q. Before you made the statement in your book
that the case Professor had cited, did you look it up and find that it had one
eye? Yes or no?
A. Not according to my remembrance.
Wellman
actually made the point he remembered, but he did not make it in quite as
dramatic a fashion as he remembered. He also misremembered Jerome’s collapse.
After Wellman had scored his point on the witness, Jerome immediately jumped up
to try to repair the damage on redirect examination. He did not collapse until
the following day, when he became completely exhausted and disoriented while
conducting the direct examination of another expert witness. The trial was at
that time in its third week, and both he and Wellman were near the point of
total collapse. Judge Smyth gave the lawyers a three day weekend, and Jerome
came back strong on the following Monday, fighting like a tiger to save his
client from the gallows.
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