Dying Declaration: Judicial Musket Fire in the Boston Massacre

Dying declaration.

jorisvo, Stained glass window depicting an old man of his deathbed, surrounded by family. Stained glass window in the German Church in Stockholm, Shutterstock.

It’s perhaps fitting that one of the most controversial hearsay exceptions was first used in one of the most controversial trials of United States history. The muskets the British soldiers fired in the Boston Massacre found their marks in American patriotism. The massacre became a watershed event in American history – one of the events that incited the American Revolution.

A statement defense attorney John Adams introduced into evidence also echoed through the hallways of judicial history. The Boston Massacre trials marked the first time the American history the dying declaration was used as evidence.

What is the dying declaration? Why is it so controversial? And what role did it play in the Boston Massacre?

The dying declaration as a hearsay exception

Hearsay is one of those boundary stones that demarcate the law of evidence. It consists of an out-of-court statement, made by anyone other than a defendant, offered into evidence to prove the truth of the matter asserted. Courts exclude hearsay because it isn’t as reliable as court testimony – it isn’t made under oath and isn’t subject to cross-examination. The jury can’t judge the declarant’s demeanor.

But there are lots of exceptions. One of them is called the dying declaration.

Here’s how the Federal Rules of Evidence define the dying declaration. State rules of evidence are similar.

Rule 804. Hearsay Exceptions: Declarant Unavailable

 

(b) Heasay Exceptions: The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

….

(2) Statement Under Belief of Impending Death. In a trial for homicide or in a civil action, a statement a statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances.*

Not a deathbed confession

Note the difference.

A declarant must have made a statement about the cause of what he or she believes to his or her impending death. Some states require that the declarant actually died before allowing the statement into evidence.

Courts consider dying declarations reliable enough to overcome the hearsay rule: A dying person doesn’t have reason to lie, and a statement about the cause of death might be the only evidence available. Think of it as giving the dead a say in court.

When a person clears their conscience on their deathbed, however, and confesses to a crime, law enforcement can use that to help close a case, but it can’t be admitted into evidence.

Shakespeare and the dying declaration

The dying declaration dates all the way back to 1202 – the reign of King John. And that’s perhaps fitting, because Shakespeare includes a dying declaration in his play King John (Act V, scene 4):

Have I not hideous death within my view …
What in the world should make me now deceive,
Since I must lose the use of all deceit?
Why should I then be false, since it is true
That I must die here and live hence by truth?

Dying declaration and the confrontation clause

The possibility that some people might lie on their deathbed makes the dying declaration controversial. In a 2004 decision, the U.S. Supreme Court called many of the traditional hearsay exceptions into question: The lack of opportunity to cross-examine the declarant can violate the confrontation clause of the Constitution. The Court hasn’t specifically addressed the dying declaration, but its future is now in the air.

Boston Massacre

Paul Revere’s engraving of the Boston Massacre (1770, public domain), via Wikipedia.

Dying declaration in the Boston Massacre

As a 34-year-old lawyer, the future President, John Adams, defended the British soldiers. The job guaranteed unpopularity with the American patriots, but Adams felt it was his ethical duty to offer representation. He did a good job, too. Most of the soldiers were acquitted, and for the other two, Adams could reduce the crime down to manslaughter.

Critical to his defense was the dying declaration of Patrick Carr, one of the victims. This testimony constituted the first use of the dying declaration in the American colonies. In violation of colonial law, two British soldiers had fired on a mob of Americans when the soldiers felt threatened. Carr’s deathbed statement to his doctor goes to the cause of his death and indicates a lack of premeditation – an element of murder.

Here is John Adams in the courtroom, examining the doctor on the stand:

John Adams

John Adams, Second President of the United States, Gilbert Stuart [1823, Public domain], via Wikimedia Commons.

Testimony of Dr. John Jeffries

Q. Was you Patrick Carr’s surgeon?

 

A.  I was in the company of others. I was called that evening about eleven o’clock to him…. Dr. Lloyd, who was present, turned round to me and said Jeffries, I believe this man will be able to tell us how the affair was, we had better ask him: I asked him then how long he had been in King-street when they fired? he said he went from Mr. Field’s when the bells rung, when he got to Walker’s corner, he saw many persons coming from Cornhill, who he was told had been quarrelling with the soldiers down there, that he went with them as far as the stocks, that he stopped there, but they passed on: while he was standing there he saw many things thrown at the Sentry. I asked him if he knew what was thrown? He said he heard the things strike against the guns, and they sounded hard, he believed they were oyster shells and ice; he heard the people huzza every time they heard anything strike that sounded hard: that he then saw some soldiers going down towards the Custom House, that he saw the people pelt them as they went along, after they had got down there, he crossed over towards Warden and Vernon’s shop, in order to see what they would do, that as he was passing he was shot, that he was taken up and carried home to Mr. Field’s by some of his friends. I asked him whether he thought the soldiers would fire; he told me he thought the soldiers would have fired long before. I then asked him whether he thought the soldiers were abused a great deal after they went down there; he said he thought they were. I asked him whether he thought the soldiers would have been hurt if they had not fired; he said he really thought they would, for he heard many voices cry out, kill them. I asked him then, meaning to close all, whether he thought they fired in self-defense, or on purpose to destroy the people; he said he really thought they did fire to defend themselves, that he did not blame the man, whoever he was, that shot him. This conversation was on Wednesday. He always gave the same answers to the same questions every time I visited him.

 

Q.  Was he apprehensive of his danger?

 

A.  He was told of it. He told me … he was a native of Ireland, that he had frequently seen mobs, and soldiers called upon to quell them…he had seen soldiers often fire on the people in Ireland, but had never seen them bear half so much before they fired in his life…

 

Q: How long did he live after he received his wound?

 

A. Ten days.

 

Q.  When had you the last conversation with him?

 

A.  About four o’clock in the afternoon, preceding the night on which he died, and he then particularly said, he forgave the man whoever he was that shot him, he was satisfied he had no malice, but fired to defend himself.**

Justice Oliver gave the following instruction to the jury:

This Carr was not upon oath, it is true, but you will determine whether a man, just stepping into eternity, is not to be believed; especially in favor of a a set of men by whom he had lost his life.***

John Adams’s legacy

John Adams later confided to his diary that his representation of the British soldiers was one of the most important things he’d ever done in his life:

The Part I took in Defence of Cptn. Preston and the Soldiers, procured me Anxiety, and Obloquy enough. It was, however, one of the most gallant, generous, manly and disinterested Actions of my whole Life, and one of the best Pieces of Service I ever rendered my Country. Judgment of Death against those Soldiers would have been as foul a Stain upon this Country as the Executions of the Quakers or Witches, anciently. As the Evidence was, the Verdict of the Jury was exactly right.****


You might also like: The Five Greatest Criminal Trials of History. It also goes into the witch trials John Adams so despised.

What do you think? Should dying declarations be allowed as evidence?

Literature on point:

****John Adams, diary, March 5, 1773 (public domain).

Crawford v. Washington, 541 U.S. 36 (2004).

*Federal Rules of Evidence.

***Frederic Kidder & John Adams, History of the Boston Massacre, March 5, 1770 (Albany, NY: Joel Munsell, 1870).

Liang, B. A. and Liang, A. C., Lies on the Lips: Dying Declarations, Western Legal Bias, and Unreliability as Reported Speech, Law Text Culture , 5, 2000.

Douglas Linder, “The Boston Massacre Trials.” Jurist (July 2001).

**Trial of the British Soldiers (Boston: William Emmons, 1824).

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Dorothy Kilgallen: Crime Reporter as a Murder Victim?

Mark Shaw's book on the mysterious death of Dorothy Kilgallen.

Mark Shaw’s book on the mysterious death of Dorothy Kilgallen.

The night before she died, Dorothy Kilgallen participated in the television show “What’s My Line” and correctly guessed the contestant’s occupation. The young woman sold dynamite.

Kilgallen, a crack investigative and crime reporter, was sitting on a stack of dynamite herself – her research on the JFK assassination. Before the new day broke, it cost Kilgallen her life. That’s what Mark Shaw thinks. He recently published a new book, The Reporter Who Knew Too Much: The Mysterious Death of What’s My Line TV Star and Media Icon Dorothy Kilgallen. Based on several years of research, the book offers new evidence that’s never been revealed before.

Finally, an investigation – 51 years later

Did DorothyKilgallen’s knowledge of the JFK assassination lead to her murder? Shaw’s book has convinced the Manhattan DA’s Office to open an investigation into Kilgallen’s death – 51 years later!

Mark Shaw joins us today to tell us why.

A former criminal defense attorney and legal analyst for CNN, ESPN, and USA Today for the Mike Tyson, O.J. Simpson and Kobe Bryant cases, Mark Shaw is an investigative reporter and the author of 20+ books whose latest is The Reporter Who Knew Too Much.  You can learn more about the book by clicking on the book title or watching Mark Shaw’s book-signing presentation.

Welcome, Mark Shaw!


Most people know Dorothy Kilgallen as a “What‘s My Line” panelist, but she was equally well known as a crack investigative and crime reporter. What famous crimes did she cover?

Dorothy Kilgallen at the Sheppard trial.

18 Nov 1954, Cleveland, Ohio, USA — Original caption: Newsman gather around Wm. J. Corrigan at the courthouse today to discuss the Sheppard trial. Dorothy Kilgallen (L) seems to be doing most of the talking. Woman in the center is unidentified. — Image by © Bettmann/CORBIS; courtesy of Mark Shaw.

In addition to her What’s My Line? fame, Dorothy covered many of the most famous criminal cases of the 29th century, the Lindbergh baby kidnapping case, the Profumo Scandal in England, the Dr. Sam Sheppard murder trial, the Lenny Bruce 1st Amendment case and most importantly, the Jack Ruby trial.

Her columns won her a few significant enemies….

Dorothy was a woman of the truth and her New York Journal American column, syndicated to more than 200 newspapers across America, could make or break the career of a celebrity and this led to her having enemies that included most prominently singer Frank Sinatra. When she ridiculed him for the “bimbos” and “has-been” girlfriends he paraded around with, he responded by calling her “the chinless wonder,” making fun of her appearance. He also sent a fake tombstone to her office.

How influential was she as a reporter?

There is not a media personality today who can match the journalistic career that Dorothy enjoyed for nearly three decades. Besides being nominated for a Pulitzer Prize, she was arguably the most trusted reporter in the world which permitted her the best sources for her stories. This led to an astounding number of “scoops,” including being the first reporter who expose JFK’s affair with Marilyn Monroe and later, being the only reporter to interview Jack Ruby at his trial and then expose his Warren Commission testimony before it was to be released. During her era, people got most of their news from newspapers and she was, as the New York Post proclaimed, “The most powerful female voice in America.”

What stance did Dorothy Kilgallen take on the JFK assassination? And how might that have been connected with her death?

Dorothy launched an 18-month investigation of the JFK and Oswald assassinations and without doubt, it is the most extensive investigation of those events in history. She was there when it all happened and at the Ruby trial so she is a true eyewitness to history. In the fall of 1965, she was about to include her belief that the assassinations were simply “Mafia hits” start to finish based on motive, that New Orleans Don Carlos Marcello had masterminded the assassinations based on revenge against the Kennedy’s. As November arrived, she was getting ready to complete a book for Random House exposing the truth and those threatened by it could not let her live.

John F. Kennedy, whose assassination Dorothy Kilgallen was investigating.

John F. Kennedy. By White House Press Office (WHPO) [Public domain], via Wikimedia Commons.

Do you think she was murdered?

The official cause of death, accidental due to a combination of an overdose of barbiturates and alcohol is flawed based on the primary evidence presented in the book. She certainly did not commit suicide and that leaves murder as the logical choice as to how she died. This said, since this book is true crime murder mystery, readers should make up their own minds based on the book content and watching the more than 50 videotaped interviews with those who knew her best at www.thedorothykilgallenstory.org.

Did her JFK assassination research file disappear with her death?

Yes, this is one of the many mysteries connected to Dorothy’s death that readers around the world have debated through the more than 175 Amazon reviews and emails I have received from both the US and countries such as Japan, Australia, and even Iceland. I’m pleased to say the book is in its 6th printing with a film in development in LA that will focus on Dorothy’s life and times, and her death.

Wow! Congratulations. I want to see the film when it comes out.

Mark Shaw.

Mark Shaw, with permission.

Was the file ever found again?

No, but I believe it still may be out there somewhere and recently fresh evidence has been forwarded to me by a person close to Dorothy’s family as to the possible whereabouts of the file. We are following up on that information.

How would Kilgallen’s murderer have known where to look for the file? Didn’t she die on a different floor of the house than the floor where she kept her file?

Dorothy never made a secret of her intention to expose the truth about the JFK and Oswald assassinations and this contributed to her death. It was common knowledge that she always kept the file close to her and shared it with no one but as November 1965 neared, she told her hairdresser Marc Sinclaire that she was “afraid for her life and for her family,” and a second hairdresser Charles Simpson that “if the wrong people knew what I know about the JFK assassination, it would cost me my life.” They did know, and it did cost her her life.

If I were in Dorothy Kilgallen’s shoes, I wouldn’t have left my file around the house without having made copies for protection. I’d have put one copy in a safe deposit box, for instance, and given another copy to my attorney with instructions what to do with it in the case of my untimely demise. Is there any indication that she took those precautions? She took a trip to Switzerland before her death and at least one acquaintance thought she had a safe deposit box there. Has anyone checked to see if a Swiss safe deposit box might hold a copy of the file?

You have to remember that there were no copy machines back then and so it would have been a carbon copy that might have been in existence. This said, there is no credible evidence that any copy of the file existed. There is also no credible evidence that she took any copy to Switzerland or gave a copy to anyone.

Dorothy Kilgallen with other What's My Line panelists.

NEW YORK, NY – 1960s: (L-R) The panel of judges along with the host of What’s My Line? Arlene Francis, John Charles Daly, Dorothy Kilgallen (right), and Bennett Cerf pose for a portrait circa 1960’s in New York, New York. (Photo by Michael Ochs Archives/Getty Images), courtesy of Mark Shaw.

Tell us about the new investigation into Dorothy Kilgallen’s death.

After I requested that NYC District Attorney Cyrus Vance, Jr. investigate Dorothy’s death (not re-investigate since there was no investigation in 1965 despite a staged death scene and other evidence pointing to a homicide), the NY Post reported that the DA had opened an investigation into her death 52 years later. I have subsequently been working with the DA’s office by forwarding fresh evidence that will assist with the investigation but I’d like to see the investigation proceed more quickly than it has since as the victim of a homicide, Dorothy has rights and I am fighting to make sure she gets the justice she deserves that was denied her so many years ago.


Thank you, Mark Shaw!

Do you think a new investigation is warranted, 51 years later? Please comment below.

More books by Mark Shaw

Mr Shaw has also written The Poison Patriarch, Miscarriage of Justice, Beneath the Mask of Holiness, Melvin Belli: King of the Courtroom, Stations Along the Way, and Down for the Count. He has penned articles for The New York Daily News, USA Today, Huffington Post and the Aspen Daily News, which he co-founded. More about Mr. Shaw, who lives in the San Francisco area, may be learned at markshawbooks.com and Wikipedia (Mark William Shaw).

Literature on point:

Susan Edelman, “Manhattan DA’s Office probing death of a reporter with possible JFK ties,” New York Post (Jan. 29, 2017).

Mark Shaw, The Reporter Who Knew Too Much: The Mysterious Death of What’s My Line TV Star and Media Icon Dorothy Kilgallen (Post Hill Press, 2016).

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Death of a Texas Ranger: Interview with Author Cynthia Leal Massey

Real quick now: What are the first things that come to your mind when you think of the Texas frontier?

Cowboys? Check.

Rangers? Check.

Indians? Check.

Mexicans? Check.

But how about paleontologists? Did you think about them, too?

Fossil hunters tended to stick to the background, picking their way through the Texas bone beds, but they were very much part of the frontier. Texas was a magnet for 19th-century collectors. Universities and museums on the east coast, even in Europe, hired them to augment their collections. Mix the paleontologists up with the usual cast of characters and you sometimes had a great recipe for violence and murder.

In her book, Death of a Texas Ranger (2014), Cynthia Leal Massey successfully stirs a paleontologist into the frontier murder recipe. Her book deals with what was once the coldest case on the San Antonio court docket (37 years to case closure!) and features all the traditional characters listed above. The culinary result was a winner. Death of a Texas Ranger took the 2015 Will Rogers Silver Medallion Award for Best Western Nonfiction and the 2015 San Antonio Conservation Society Publication Award.

Cynthia Leal Massey joins us for an interview today. Welcome, Cynthia!

Cnythia Leal Massey, author of "Death of a Texas Ranger."

Courtesy of Cynthia Leal Massey.

Death of a Texas Ranger actually chronicles two homicides, one of a Ranger in 1873 and another of a postmaster in 1878. Tell us first how the Ranger died.

On the morning of July 9, 1873, Minute Men Texas Ranger Troop V of Medina County was breaking camp at a site in northwest Bexar County, Texas, near the settlement of Helotes, getting ready for a scout. Private Cesario Menchaca came out of the bushes and confronted Sgt. John Green (a German immigrant originally born Johann Gruen). After a few tense words, Sgt. Green moved toward Menchaca, who had a rifle in his hands, and Menchaca shot him, killing him on the spot.

John Green’s company was a colorful mixture of Texans, Germans, and Mexicans. Did Germans and Mexicans often serve as Rangers?

During the early days of the Ranger companies, Mexicans did serve in a sort of multicultural unit; however, it was not the norm. The Ranger company that John Green served in was composed of ranchers and farmers from northwest Bexar County and southeast Medina County. A mixture of Germans, Mexicans (or Texicans), and Anglos, lived in this region. These men had something in common–they wanted to protect their families and their livestock.

John Green, murder victim in "Death of a TExas Ranger."

John Green, ca. 1869. Courtesy of Shirley Sweet.

Menchaca fled to Mexico. The U.S. and Mexico already had an extradition treaty at the time of the killing. Why didn’t it help Texas extradite Cesario Menchaca from Mexico?

Apparently, no one was able do the work necessary to get the extradition paperwork together.

How did the Green homicide end up becoming the coldest case on the San Antonio court docket?

The United States has no statute of limitations on murder. The 1873 indictment charge was murder, so by necessity, it moved forward on the docket, despite no activity in his apprehension. In 1897, Deputy Will Green, the victim’s son, petitioned the court for a new Bill of Indictment, since the sitting judge was eager to remove old cases from the docket. Deputy Green was successful and with a new bill of indictment and case number, the murder case remained on the docket. However, because of circumstances regarding the outcome of the extradition request, the case remained on the docket until Menchaca’s death in 1910, 37 years from the initial indictment.

turtle fossil

A fossil of the extinct turtle Baena arenosa from the Green River Formation, Wyoming, USA estimated to be fifty million years old. Professor Leidy also collected fossils of this species. By (c) Linnas, Shutterstock.com, with permission.

How did a turtle fossil lead to a fossil hunter killing the postmaster?

Gabriel Wilson Marnoch, a frontier naturalist, lived in Helotes. He was a neighbor of the Green family and was allegedly involved in the Green killing. Marnoch collected specimens and fossils and mailed large boxes of his finds to scientific institutions around the country. He was a frequent visitor to the Helotes Post Office, where Carl “Charles” Mueller was postmaster. In the spring of 1877, Marnoch received correspondence from Professor Joseph Leidy of the Academy of Natural Sciences in Philadelphia, indicating that one of Marnoch’s packages to him, which contained “turtle remains,” had arrived in a state of “ruins.” Marnoch confronted the postmaster about the mishandled package, demanding recompense, which elicited bad feelings on both sides. This ignited what came later.

In Death of a Texas Ranger, you write that post-Civil War Texas was a magnet for paleontologists. Why?

The mid-nineteenth century is often referred to as the Age of Darwin, a nod to British naturalist Charles Darwin, who in 1859 and 1871, respectively, published his seminal scientific works, The Origin of Species and The Descent of Man.  Texas was still very much a frontier, with virgin landscape, and those interested in the natural sciences descended upon Texas in troves. According to Samuel Wood Geiser, author of Naturalists of the Frontier, “several hundred men of science labored in Texas in the pioneer days.” Marnoch’s father, Dr. George Frederick Marnoch, a graduate of the Royal College of Surgeons in Edinburgh and the University of Edinburgh, was a contemporary of Charles Darwin and likely shared a medical class with him. Gabriel mentioned this many years later, saying that he’d had “considerable correspondence” with Darwin and fellow naturalist Thomas Huxley, although said letters have yet to surface.

Gabriel Marnoch and wife.

Gabriel Marnoch and his wife Carmel Trevino (ca. 1919). Courtesy of Cynthia Leal Massey from her book, Helotes, Where the Texas Hill Country Begins.

Gabriel Marnoch collected for Professor Edward Drinker Cope at the Haverford College in Pennsylvania. Cope’s feud with paleontology Professor Othniel Marsh of Yale is now the stuff of legend. Can you tell us about their clashes?

There are several good books about the feud between Cope and Marsh. In a nutshell, the paleontologists were involved in something now called “The Bone Wars.” This was a period of intense fossil hunting and discovery in the mid-nineteenth century. Trying to outcompete each other, they resorted to spying, counter-spying, bribery, theft and even destruction of bones to remain “on top.” Marsh’s charges of errors, distortion, and fraud against Cope and the professor’s countercharges were published in the spring and summer of 1873, in The American Naturalist, which Cope finally purchased in 1877 to stop further allegations from being published.

Cliff chirping frog.

Cliff Chirping Frog, Marnoch’s great scientific discovery. By Dawson at English Wikipedia (Transferred from en.wikipedia to Commons,) CC BY-SA 2.5, via Wikimedia Commons.

How did Marnoch help cement Cope’s reputation?

Marnoch hosted Cope in Helotes and other Texas environs on a two-week quest for new fossils in the fall of 1877. After that, Marnoch, whom Cope hired as a field correspondent, began sending specimens to the paleontologist. Marnoch discovered several new specimens, one a frog that Professor Cope said was “a new genus of Cystignathididoe.” Cope gave the cliff chirping frog the scientific name Eleutherodactylus (Syrrhophus) marnockii, in honor of his field correspondent. A few other Marnoch discoveries named by Cope: the Texas Banded Gecko, Short-Lined Skink, and the Barking Frog.

Why were the murder charges against Marnoch dismissed?

Marnoch killed the postmaster in March 1878. He was indicted for murder on April 4, 1878. In November of that year, the jury could not agree on a verdict and a mistrial was declared. At his second trial May 17, 1879, the jury convicted him of murder in the second degree and sentenced him to confinement in the penitentiary for twenty years. His attorneys kept him out of prison while they appealed his murder conviction and the appeals court remanded his case back to the district court for a new trial. The judge believed that the jurors weren’t given appropriate directions regarding self-defense. His lawyers were able to get continuances due to their inability to recall several important witnesses who’d moved out of the country. The murder case was finally dismissed in 1887.

How did John Green’s son try to reopen his father’s case decades later?

In 1897, Deputy Will Green learned that the 37th District Court of Bexar County was reviewing old cases on the docket and that caused him to seek a new indictment. The original indictment for murder against Cesario Menchaca was filed in October 1873. Deputy Green was able to assemble several of his father’s old Ranger comrades before a new Grand Jury, and was successful at obtaining a new indictment on May 26, 1897. This enabled him to seek and obtain an extradition requisition from the Governor of Texas.

Death of a Texas Ranger book cover.

Death of a Texas Ranger. Courtesy of Cynthia Leal Massey.


Thanks, Cynthia!

A fascinating twist at the end of the book concerns a discovery about the paleontologist. He may be had more to do with the death of a Texas Ranger than Will Green originally thought. But I won’t spoil the ending for you – you need to read the book yourself.

Cynthia Leal Massey is working on a screenplay adaptation of Death of a Texas Ranger, and with luck, we might get to see it out the big screen. Fossils and felonies should make a great mix. I’ll be there if the film comes out. If you go too, grab an extra large bag of popcorn and come sit with me.

Literature on point:

Cynthia Leal Massey, Death of a Texas Ranger: A True Story of Murder and Vengeance on the Texas Frontier (Guilford, Connecticut: TwoDot, 2014).

Charles H. Sternberg, The Life of a Fossil Hunter (1st ed. Henry Holt & Co., 1909, reprint, Bloomington, IN: Indiana University Press, 1990) [Another account of a 19th-century paleontologist collecting for Cope, in part in Texas; considered a classic among paleontologists].

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Notorious Mrs. Clem by Wendy Gamber: Book Review

The notorious Mrs. Clem wore boots during the murder and left behind a print.

The notorious Mrs. Clem wore boots during the murder and left behind a print. Pixabay.

 

Betrayed by her boots

When she pulled the trigger, the last thing Nancy Clem thought about was her boots. In 1868, she and an accomplice murdered Jacob and Nancy Jane Young in a riverside park northwest of Indianapolis. They’d owed the couple money, and she decided murder was the best way to solve the problem. But the “notorious Mrs. Clem” left behind a footprint. That’s what led to her arrest in one of the nation’s most celebrated murder cases until Lizzie Borden swung up her ax in 1892.

A young cowherd found the bodies the next day. Jacob Young had most of his face blown off by a shotgun. Nancy Jane Young had been shot in the temple by a pistol at close range. Something – possibly the gunpowder – caught her crinoline on fire. Her body was still smoking when the cowherd found them. The flesh of her thighs had been burnt off, her bones pulverized, and her intestines spilled out of her charred skin. “Burned to the crisp,” wrote one Indianapolis newspaper.

The Hoosier murder that shocked the nation

The police originally surmised it was a murder-suicide. But a small woman’s footprint and a shotgun purchased the previous day and left at the scene led them to the “notorious Mrs. Clem” (as the papers dubbed her) and her accomplice, William J. Abrams.

The case wrote history. The public was shocked that a woman could commit such a murder. A future U.S. President – Benjamin Harrison – cut his prosecutorial teeth on the case. The notorious Mrs. Clem was his first major trial. The case also showcases the first known use of the financial swindle known as the Ponzi scheme. That was the motive for the murder. But what most shifted the tectonic plates of history was that the case put women’s right to work on trial. In a new book by Indiana University history professor Wendy Gamber, The Notorious Mrs. Clem: Murder and Money in the Gilded Age (Baltimore: Johns Hopkins University Press, 2016), the author navigates both the murder and the societal tsunami it created.

If you’re looking for a conventional true-crime read, this book may not be for you, because the raw facts of history don’t always neatly fit into a narrative arc. Notorious Mrs. Clem slipped through the fingers of justice. Her first trial resulted in a hung jury. She was convicted of second-degree murder in the second trial, but Mrs. Clem appealed and the Indiana Supreme Court reversed and remanded for a new trial. The third trial resulted in a hung jury and the fourth a first-degree murder conviction. Once again, the Indiana Supreme Court reserved and remanded. By then, six years later, most of the witnesses had left the state and the prosecution gave up. That’s not an emotionally satisfying ending to a true-crime book.

Notorious Mrs. Clem book cover

Book cover courtesy of Johns Hopkins University Press.

Notorious Mrs. Clem as a societal magnifying glass

But Wendy Gamber’s forte is history, and that’s precisely what she does so well in this book. Gamber uses notorious Mrs. Clem’s trials to dissect 19th-century Hoosier culture and values. Notorious Mrs. Clem became the first person to use the Ponzi scheme to bilk clients of their money, Gamber claims. Mrs. Clem borrowed money from her clients, promising to pay it back at attractive interest rates. But the money she paid back was nothing more than funds obtained from new clients. No Ponzi scheme can go on forever. Her debts to the Youngs forced a breaking point.

Notorious Mrs. Clem’s financial trading shocked not only Hoosiers but the rest of the nation. More than just guilt and innocence went on trial: Mrs. Clem made the public question women’s rights to manage their own businesses and keep their own profits. The trials serve as a magnifying glass to illuminate 19th-century ideas about gender against the backdrop of the emerging women’s rights movement. That’s what makes this case so fascinating.

In fact, you might say that the notorious Mrs. Clem left her footprints on history.

 

Disclaimer: I received an advanced review copy of The Notorious Mrs. Clem in exchange for an honest review.

What surprises you most about the notorious Mrs. Clem — her willingness to murder or her invention of the Ponzi scheme?

Merken

Merken

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Who murdered President Garfield? Interview with author Fred Rosen

President James Garfield

President James Garfield. Library of Congress Prints & Photographs Division, public domain.

What would you do if you had clues to a murder no one else knew about?

And what if you knew the authorities wouldn’t believe you? Would you still try to preserve your information? Even worse, if the case involved the murder of a U.S. president, your dilemma would take on historical significance. According to Fred Rosen, who recently published a book about the assassination of President Garfield in 1881, that’s exactly what happened. Through newly accessed documents, Rosen found hints about the true assassin in Alexander Graham Bell’s correspondence. Those clues don’t point to Charles Guiteau, the disappointed office-seeker who shot and injured President Garfield at a train station.

Who murdered President Garfield, then? Dr. Bliss, Garfield’s treating physician who managed the president’s bullet wound, says Rosen. Bliss has long been suspected of committing malpractice by mismanaging the case and using unsanitary techniques. An ensuing infection killed the president. But Alexander Graham Bell’s correspondence tells a different story: Dr. Bliss purposely sabotaged Garfield’s treatment. And his actions crossed the line into criminal conduct.

Fred Rosen, a former New York Times columnist and author of twenty-four books on true crime and history, published his research results on September 1. The book’s called Murdering the President: Alexander Graham Bell and the Race to Save James Garfield (Lincoln, NE: Potomac Books, 2016). If the book interests you, Rosen has generously offered a 30% discount for my blog readers. You can download the coupon here.

Fred Rosen joins us for a discussion today on the question of who murdered President Garfield. Welcome, Mr. Rosen!

 Interview with Fred Rosen on who murdered President Garfield

Fred Rosen, who wrote a book on who murdered President Garfield.

Fred Rosen on his fantasy baseball card. He insists this is really him and not a baseball pro.

The most surprising claim in your book is that President Garfield’s treating physician, and not Guiteau, killed Garfield. Why is that?

Alec Bell left a trail behind him for someone to discover what he knew: that Bliss murdered Garfield and discredited the Induction Balance. I followed that trail because I am a homicide investigator and historian who followed the evidence.  Plus, new 2014 medical findings helped. Finally, Bliss’s full, previous criminal history that has never before been published until now.

Dr. Bliss had a criminal history?

Dr. Bliss had a long traceable record as a criminal and con man, including being court-martialed for cowardice at the Battle of Bull Run. He also accepted a bribe when he was the head of Armory Square Hospital during the Civil War.  That’s just the beginning.

What were the 2014 medical findings?

Bliss perforated the President’s gallbladder with his unnecessary exploration for the bullet. This has never before been revealed.

Who chose Dr. Bliss as Garfield’s treating physician?

Secretary of War Robert Lincoln.

That was Abraham Lincoln’s son! Why he choose Dr. Bliss?

Bob Lincoln called in Bliss because he knew he had treated his father after he was shot. On the basis of that publicity, Bliss  built a prominent Washington practice, despite the fact that Lincoln’s attending physician, Charles Leale, wouldn’t let Bliss touch the president. Bob didn’t know that because he was out of the room during most of his dad’s treatment.

Wouldn’t have Guiteau’s bullet killed President Garfield anyway even if it weren’t for Dr. Bliss?

No. The autopsy showed that the bullet safely encysted inside the president’s body. If Bliss had left him alone, President Garfield survives.  And even if he decided to operate using the Induction Balance to locate the bullet, he wouldn’t have had to explore for it, let alone DELIBERATELY explore for it on the wrong side of the president’s body.  That is why it is second-degree murder.

Period poster about the Garfield assassination.

Period poster about the Garfield assassination. Both Dr. Bliss and Charlies Guiteau are pictured. Library of Congress Prints & Photographs Division, public domain.

When does medical malpractice cross the line into murder?

That is what second-degree murder is: depraved indifference to human life.  Exactly what Bliss did.

Candice Millard wrote a bestselling book about Garfield’s death in 2012 — “Destiny of the Republic.” She also espouses the theory that Garfield’s physicians killed him. What does your book offer that hers doesn’t?

That is incorrect. I read it. She espouses the theory that his DOCTORS killed him by not practicing sepsis. That is not the case; the evidence does not back her conclusion. Only one doctor killed him. Bliss deliberately killed Pres. Garfield and discredited Alec Bell’s invention. That also eventually led to Pres. McKinley’s death. It’s all in the book.

The other surprising claim in your book is that Alexander Graham Bell invented the metal detector in an effort to save President Garfield’s life. Please explain.

Alec Bell figured there had to be a less barbarous way of finding the bullet than exploring for it with the Nelaton Probe and the scalpel through healthy tissue.  He knew that magnetism was the answer and so he invented the world’s first metal detector to find the bullet in the president’s body.  And this was 1881!

Dr. Bliss

Dr. Bliss. Detail from the poster above.

How did Dr. Bliss sabotage Alexander Graham Bell’s efforts? And why?

He wouldn’t let Bell use his invention; he wielded it, incorrectly, himself.  Dr. Bliss wouldn’t look for the bullet on the side of the body the other MDs thought it was in because he staked his reputation on it being someplace else in the President’s body. He didn’t want to look bad in front of the public. And, he did a lot, lot more to deliberately sabotage Bell’s efforts  It’s all in the book, revealed for the first time how Bliss murdered the president.

What kind of a background did Dr. Bliss have?

Trained as a surgeon, he served in the Union Army during the Civil War and ran the other way at the Battle of Bull Run. He was excellent at using newspapers to promote his practice and bad at treating his patients. He was a con man who took bribes and fooled his patients.

Alexander Graham Bell

Alexander Graham Bell: Pixabay, CCO public domain.

Did Alexander Graham Bell leave behind clues to Dr. Bliss’s maltreatment of the president?

Yes, in his correspondence with his wife Mabel and the scientific paper he wrote about his efforts that I got ahold of.

Why didn’t Bell take that information to the authorities himself?

Because no one would believe a doctor deliberately killed a patient in 1881.  And perhaps more importantly, when James Garfield died, Bell was up in Boston consoling his wife and grieving himself: they had just had a son who died at birth.

Is the Hank Garfield who wrote the foreword to your book related to President James Garfield?

Hank is the great-great-grandson of President James Abram Garfield and First Lady Lucretia Garfield.

Book cover

Book cover courtesy of Fred Rosen.

Thank you, Fred Rosen!

My pleasure.

 Who murdered President Garfield? Based on what you just read, whom do you blame more for Garfield’s death, Charles Guiteau or Dr. Bliss?

 

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Women Civil War Soldiers: Digging up the Evidence

Tintype of one of the possible women Civil War soldiers.

Tintype of a Civil War soldier, courtesy of Shelby Harriel.

Historians are a bit like detectives. They sift through evidence, weigh it, and try to leave no stone unturned.

But when they publish their results, they’re a bit like lawyers. They need to be objective enough to gain the credibility of the judge and jury, but they are still advocating. They back up their historical observations with evidence and try to draw new conclusions.

In the following guest blog, historian Shelby Harriel uses the same analogy as a springboard into her research into women Civil War soldiers. Those female warriors were actually committing a crime. They also violated the norms of Victorian society. Because of that they covered their tracks and concealed their true identities. Sometimes the army even destroyed the evidence if they were caught.

That makes women Civil War soldiers hard to research. But their contributions to the war were invaluable; the research adds a new layer of understanding to Civil War history. Shelby Harriel is writing a book on women Civil War soldiers. I met her online, through her fascinating blog, Forbidden, Hidden, and Forgotten: Women Soldiers of the Civil War, and invited her to write a guest blog. You can read more about Shelby and her book below.

Here’s Shelby Harriel with her guest blog:

Shelby Harriel

Shelby Harriel, photo by Shellie Beauchamp, courtesy of Shelby Harrriel.

I was delighted to meet Ann Marie recently.  As bloggers, researchers, and writers, we share similar experiences.  We also share a love of history.  So I was extremely honored when she asked me to contribute a guest post.  Beyond the aesthetically pleasing nature of her blog, Ann Marie has some very interesting content among her writings, most of it dealing with true crime.  It made me think of how I, as a historian, am like a detective in my search for women soldiers of the American Civil War, 1861-1865.

The Suspects

Hundreds, perhaps thousands, of women disguised themselves as men and fought in the Civil War.  We’ll never know exactly how many there were.

The Crime

Victorian society was strictly defined.  Women were supposed to be passive and remain in the domestic sphere.  They were expected to create life, not take it.  Therefore, the government did not allow Victorian women to serve in the military.  War was the domain of men.

Clothing defined the genders.  Women did not wear pants.  Doing so resulted in imprisonment and/or a fine, not to mention the shame that discovery would bring themselves and their family.

So when women traded in their hoop skirts for army trousers, not only did they defy the morals and mores of the times, which was unacceptable behavior, they were also breaking the law.

It is difficult to think of these women Civil War soldiers as criminals, especially since many of them made the ultimate sacrifice and lie buried in graves right next to the men with whom they served.   But, by definition, women soldiers were committing a crime.  (And so were the hundreds of thousands of boys under 18 years old who lied about their age in order to fight.)

Arrested for wearing pants.

Arrested for wearing pants? You bet. During the Civil War, it was a crime in most states for women to wear men’s attire. Cincinnati Daily Press, January 6th, 1862.

The Crime Scene

Women are reported to have fought in every major battle of the American Civil War.  They were there from the beginning to the end.

The Motives of Women Civil War Soldiers

Why would these women risk their reputation and lives for a society that did not desire their service?  There were several reasons.  A majority of them enlisted in order to avoid being separated from a loved one.  Others were trying to escape an oppressive situation.  Economic factors drove some women.  Disguised as men working in masculine-only professions, they could make more money than they ever could in the few jobs available to Victorian women.  Patriotism motivated some women to enlist while others were simply seeking adventure, not unlike their male counterparts.  Love, fear, money, duty…motives common to any good mystery story.

The Witnesses

Civilians, common soldiers, high-ranking officers, and even well-known generals bore witness to women serving in the military during the Civil War.

The Evidence

Documentation is the backbone of any historian’s arguments.  The same goes for a criminal investigator. Without supporting evidence, there is no case.  And sometimes, acquiring this evidence and documentation is challenging.  Just like investigators of a criminal case, researchers who delve into the topic of women Civil War soldiers must overcome the obstacle of subterfuge.  In order to serve in the military, these women had to disguise themselves.  They cut their hair short, wore clothes that Victorians weren’t accustomed to seeing them wear, and assumed an alias.  (Some men did this, too….enlisted under an alias that is.) When discovered, some women soldiers not only told newspaper reporters the wrong male aliases they used, but they sometimes provided a false feminine name, if any at all.  Remember, it wasn’t that difficult for Victorians to assume a new identity.  They didn’t have birth certificates or forms of identification.

How does one find an individual who doesn’t want to be found?

Chasing phantom identities

Civil War tintype.

Civil War tintype, courtesy of Shelby Harriel.

Secondary sources

Before anyone may choose to venture into this realm themselves, I would suggest purchasing a box of hair color to hide the gray hair that will be infesting your head.  Eat chocolate.  And develop an exercise regimen to relieve the stress.  Eat more chocolate and understand that you’re not going to find all of the answers.

A good place to start an investigation is to read secondary sources.  But proceed with caution.  Both period and contemporary accounts may contain errors.  Some researchers can be careless.  On the other hand, it may not necessarily be the fault of the authors.  Most historians do the best they can with the evidence available to them at the time.  It is the job of subsequent generations of researchers to uncover new findings and advance the historical narrative.  And this is why it’s important to instill the love of history in young people. As archives continue to digitize more records, the more information people from all over the world will have access to.  This is exciting!

Genealogy

After scouring secondary sources for names, dates, regiments, etc., I enter the information in a genealogy website to see if I can discover the true name of the woman soldier, attempt to complete her story by finding out what happened to her after the war, or determine whether she existed at all.

Newspaper archives

I also like to search newspaper archives for period articles.  Again, the information may be wrong.  Names were sometimes spelled phonetically, and an incorrect unit may have been mistakenly recorded.  Furthermore, the woman soldier may have chosen to lead the reporter astray in order to protect the reputation of herself and her family.  Or the reporter may have chosen to take an otherwise true story and embellish it with exciting….and incorrect….details.  And some newspaper editors simply made up the story entirely.  They were trying to make a living by selling newspapers, after all.  I try to collect as many articles as I can about an individual woman soldier.  Even though all of them may contain the same basic information, one unique sentence in a single article can make the difference in piecing together the true story.

Primary sources

All investigators question the witnesses… or they’re supposed to.  Since all of the individuals involved in my realm of research have all passed on, it is necessary to acquire their testimony by investigating their letters and diaries.  I always feel as if I’m being rude by invading someone’s personal space, but at the end of the day, they’re not around to protest.  And these primary sources provide a wealth of all sorts of interesting information.  Again, one must proceed with caution.  Soldiers sometimes merely reported camp rumors and were not personally privy to the events they were writing about.  On the other hand, I have discovered information in a letter or diary that validated a newspaper article or was a completely new find.  One thing is for sure.  These missives are not tainted with political correctness! Other primary sources such as regimental histories, prison records, court martial transcriptions, and provost marshal documents also provide invaluable information.  Some of these particular records that I have examined have supported the claims of some women Civil War soldiers while debunking others.

Service records

Service records are the gold mine of military records.  One can learn all sorts of information from them:  when and where a soldier enlisted, a physical description, an antebellum occupation, when and where the soldier was mustered out, any prison records, some medical records, and any duty the soldier was assigned to.  To a lot of people, service records are the smoking gun.  According to some, if none can be found, this is enough to disprove a woman soldier’s service.  “If they don’t exist, you must omit!”  Ah, but a prosecutor doesn’t need the murder weapon or even a body to get a conviction.  In the case of women Civil War soldiers, a lack of service records does not necessarily equate to a lack of service.  For example, there is an account of a woman killed by an exploding shell during a particular battle. The story is supported by a future president of the United States, his future brother-in-law, who was a surgeon standing next to the soldier when she was killed, and several private soldiers who recorded the event in diaries and letters.  The surgeon provided enough details to narrow down a possible unit that the soldier belonged to.  So off I went to search for her service records.  Two months later, my aching eyes and I were unable to locate any.  Nor have I been unable to find any newspaper articles about the event.  Yet it happened.

Medical records

Muster roll card for one of the women Civil War soldiers.

Civil War muster roll card for “Charles Freeman,” a woman masquerading as a man. National Archives and Records Administration, Records of the Adjutant General’s Office, 1780’s—1917, RG 94; public domain.

Here’s another example. Enter Exhibit A, carded medical record and discharge document for Mary Scaberry, alias “Charles Freeman,” of the 52nd Ohio Infantry.  Obviously, she served….until she went into the hospital with a fever and ultimately discharged for “sextual incompatibility” after her true identity was discovered.  In addition to this card, newspaper articles document her story as well.  But yet there are no service records for her.  Nor does she appear on the unit’s roster.  So what happened to her records?  It could be that they were inadvertently lost or destroyed over time.  Or officials could have deliberately expunged them.  Officers were often embarrassed and angry when a woman was discovered in their unit.  They had just been fooled after all.  Also, if a woman was hired as an officer’s servant or orderly, there wouldn’t be any service records because she wouldn’t have been mustered in.  Yet she would have worn a uniform and experienced the same trials with the rest of the members of the regiment.

As for Scaberry, just like her service records, her ultimate fate also remains a mystery at this time.  After she was discharged, she went home to Columbus, Ohio, only to be spurned by her father.  Seeking employment, she then made her way to Chicago where she encountered a guard at Camp Douglas who made fun of her.  She promptly beat him up which landed her in police court.  The judge felt sorry for her and released her.  She then vanished from history, rendering the tale of her life incomplete.

Women Civil War Soldiers: Tough Cases to Prove, But Valuable Contributions to History

As we have seen, researching women Civil War soldiers is much like any courtroom drama in film or text. The evidence is gathered, crime scene investigated, witnesses interviewed, and trials held.  However, unlike most crime stories, there is no dramatic final scene….no dramatic presentation of the final piece of evidence to deliver the coup de grace as it were. But just as in these crime stories, the process of bringing the truth to light is the ultimate goal. However, there is no jury to decide the fate of these women. It is up to all of us to help solve this century old “crime.” The book never closes on a murder and it is my hope that the book will never close on the gallant and mostly unknown deeds of these courageous women.

Thank you, Shelby!

Shelby Harriel giving a lecture.

Shelby Harriel giving a lecture dressed as a Confederate soldier. Photo by Tom George Davison, courtesy of Shelby Harriel.

About Shelby Harriel:

Shelby Harriel received her B.A. in History with a minor in mathematics in May 1997 and her M.Ed. with an emphasis in mathematics and history in 2005.  She earned both degrees from the University of Southern Mississippi.  Shelby has been teaching mathematics at Pearl River Community College since 2007.

While her career has always revolved around mathematics, Shelby actively pursues her passion for history through research, exchanging ideas, and speaking to the public.  For her efforts, Pearl River Community College bestowed upon her the Outstanding Humanities Instructor award in 2014.  She is also a member of the speaker bureau of the Mississippi Humanities Council.

Papers/Articles

“The Third Mississippi Infantry and Hancock County”

“A Different Look at the Yankee Invaders:  Two Women Disguised as Male Soldiers in Louisiana”

“A ‘Hole’ New Perspective:  A Woman Soldier at the Crater”

“Bully For Her:  Women Who Served Openly as Women”  

Shelby is currently writing a book on women soldiers of the Civil War, Forbidden, Hidden, and Forgotten: Women Soldiers of the Civil War.

You can follow Shelby on Facebook too, where you’ll receive updates about her book.

 

 

 

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