Friday, April 3, 2020

Solving Historical Cold Cases With Modern Techniques

Cold case true crime appears to be a popular entertainment genre these days. I know at least one retired cop who has been a regular on the series Cold Justice, which features him assisting former Harris County Prosecutor Kelly Siegler in a long list of unsolved crimes from the recent past. Besides that show, I often find the other true crime programs occasionally delving into the cold case realm for a look at other unsolved crimes.


Beyond the entertainment value, however, I’ve found an educational angle to the exercise of reviewing a mystery from the perspective of time. As witnesses age and their relationships shift, they often become more willing to share details than they had in the emotional moment of the crime. Viewers also have a chance to examine the actions of the suspects or relatives during the months or years following a crime. You get a more satisfying picture and a better understanding of the procedural strategies involved in solving a crime.

Still, I wondered recently why former Houston Homicide Detective Johnny Bonds was able to find a crucial witness 30 years after he’d been missed at the scene of a kidnapping by the small town cops who initially caught the case.

But how about those really, really cold cases—the dry ice variety. I thought about that recently when I spotted the CBS 48 Hours program revisiting one of the country’s ultimate cold cases in the 1892 Lizzie Borden murders in Fall River, Massachusetts, complete with a mock trial to determine if her 1893 acquittal had been correct.

That show reminded me of an interesting feature I wrote in 1993 for The National Law Journal about the burgeoning trend toward using modern forensics and legal strategy to unravel historical mysteries. Here’s the story published June 21, 1993, under the headline:

Historical figures get their day.
Legal ‘ghostbusters’ say serious issues are at stake

Earlier this year in Richmond, Va., convicted Lincoln assassination co-conspirator Dr. Samuel Mudd successfully appealed the 127-year-old verdict that sent him to prison for life.

Two years ago in San Antonio, accused Alamo deserter Moses Rose won a claim for return of his veterans’ benefits—more than a century after they were denied.

And today there’s an investigation under way to determine if legendary Louisiana Purchase explorer Meriwether Lewis actually committed suicide in 1809 as reported.

Has the nation’s legal community suddenly become lost in a time warp? Perhaps so. For it seems Messrs. Mudd, Rose and Lewis are merely the vanguard of a parade of dead people finally getting their day in court. While these modern verdicts in old cases technically cannot override judgments from earlier days, they still give descendants ammunition that can be used to persuade legislatures or government officials to provide some sort of latter-day relief.

New technology and courtroom techniques have given legal history buffs their first real chance to ride in a time machine. And the race is on to find the most captivating old cases and review them in a modern light.

While some have questioned the purpose of exhuming the century-old corpses, others insist there is much to be learned about the law and society from these excursions back in time. Still others tout the entertainment value of historical re-creations as a way to raise funds to pay the tab on more serious educational activities.

Whatever the purpose, the trend undoubtedly will gather steam because no one seems irritated enough to stand in the way.

“It's not controversial yet because everyone has better things to do than to make a cause out of this,” says Melvin B. Lewis, a professor at John Marshall Law School in Chicago. A specialist in expert witnesses and forensic sciences and a sidelines observer, he adds: “Is it a waste of time? It all depends on how it is done and its objective. If it is entertainment, it can be counterproductive.”

Trials and Evidence

Everyone from the American Bar Association to Texas Public Radio in San Antonio to the Smithsonian Institution has answered the call to solve some lingering legal mysteries.

“Every time I go in and prove the value of science in historic cases, I prove it has value in the contemporary,” says James E. Starrs, in explaining his motivation for becoming one of the nation's most visible legal ghostbusters from the forensic sciences camp.

For 17 years, Professor Starrs, a professor of forensic sciences law at the National Law Center at George Washington University in Washington. DC, has published a quarterly newsletter, Scientific Sleuthing Review, which now boasts about 1,000 subscribers.

His critics usually accuse him of using science to promote himself, but Professor Starrs says he believes the publicity from his adventures assists his primary cause of boosting an interest in forensic science among law enforcement and legal authorities He considers himself a spokesman for the dead, an emissary from the present come to solve the mysteries of the past.

“They say, ‘Let the dead rest in peace.’ But how do we know they are in peace?” the professor asks. “I provide a voice for the dead. The dead deserve the truth. I give them an opportunity to respond. It’s the lawyer in me. I’m giving them their day in court.”

‘Caliban of Colorado’

In the summer of 1989,  Professor Starrs led a team of forensic scientists into the San Juan Mountains of Colorado, where they recovered the remains of five supposed victims of Alfred Packer, a prospector convicted twice in the 1880s of murdering and eating them during a snowstorm in 1874.

Professor Starrs verified the record of Mr. Packer’s guilt, which had come under attack over the years by skeptics protesting Mr. Packer’s innocence. That exhumation, like the others, cost money. The professor says he’s made no profit from his projects and notes that he took out a second mortgage on his home to finance one mission He paid the tab for the cannibal victims dig by selling T-shirts decorated with skulls and skeletons.

The Colorado expedition serves as a textbook example of the prescribed method for historic inquiries. The team functioned like detectives investigating a homicide that had happened only days—not 125 years—before. They employed subsurface radar to find the graves and recover the skeletons; then the bones were cleaned, preserved and pieced together for scientific evaluation by the Human Identification Laboratory at the University of Arizona in Tucson. They reviewed records of the trials of Mr. Packer, studied his confession and testimony, and then compared the wound marks evident on the victims’ bones with his version of the events.

The researchers reported evidence of “substantial defleshing” in the bones of all five victims—“so thoroughgoiug, so conscientious and so exact as to be unmistakable proof of cannibalism.”

Armed with a modern autopsy report, Professor Starr asserts that prosecutors of the 19th century easily would have destroyed Mr. Packer's contention that he only nibbled on two of the corpses to quell hunger pangs temporarily.

“Alfred Packer was as guilty as sin, and his sins were all mortal ones,” the team concluded in its report. “It remained for this scientific investigation to prove with overwhelming conviction that Alfred Packer was not only the Colorado man-eater, not merely America's most celebrated anthropophagist, but also the ‘Caliban of Colorado,’ who butchered his five fellow prospectors.”

Code of Ethics

Professor Starrs is ever alert for new old mysteries to solve—he hopes soon to have a chance to locate and study the remains of Meriwether Lewis to determine if the famed explorer was actually the victim of a homicide or an accident, instead of a self-inflicted gunshot wound in 1809. But the resulting publicity has caused him to develop his own code of ethics. “I’m going to give a talk soon about exhumations I'll never conduct,” he says. “I turn down 50 for every one I would do.”

Before determining whether an exhumation has scientific value, Professor Starrs first asks three questions:
·       Are there significant scientific issues to be resolved? He says science must be able to make a positive contribution to warrant an exhumation.
·       Is there a new scientific development, technology or understanding that could be used now that was not available or not applied to the original evidence?
·       Is it likely that the remains will be in analyzable condition?

Among the top names on his hit parade of exhumations is John Wilkes Booth, who is rumored actually to have survived a shootout with federal troops after the assassination of President Abraham Lincoln. Did a body switch occur? Professor Starrs says he believes that only an exhumation of the body buried in Baltimore will answer the nagging question.

“In each and every case it behooves the investigator to look at whether there is an historical question that is relevant,” says another member of the scientific sector, William R. Maples, curator and professor of anthropology at the Florida Museum of Natural History in Gainesville.

Professor Maples has examined the deaths of President Zachary Taylor and Spanish conquistador Francisco Pizzaro, and is working with Russian authorities on an investigation into the death of the Romanov family; he hopes to determine if the mysterious daughter Anastasia is indeed among the dead. Unlike Professor Starrs, Professor Maples says he's found a lot of grant money available for projects.

“To a certain extent there is a race under way to find ripe cases,” says Professor Maples.

Mock Trials

As the scientific sector of the historic re-creation subculture continues to time-travel with technological gadgetry, the second school of legal re-creationists—the mock trial gang—appears content to employ rhetoric and modern litigation strategies to review existing records.

Mock trial proponents seek unanswered or untried controversies and use the legal process to reach a conclusion about facts already in the record. Witnesses familiar with the issues help present them through interrogation by the attorneys. Critics argue that historic mock trials risk emphasizing too much show business at the expense of the truth. But the proponents say they work hard to ensure that entertainment value won‘t discolor the results.

San Antonio sole practitioner Pat Maloney helped represent an obscure dead man seeking return of his veterans’ benefits two years ago. His client was Louis “Moses” Rose, long vilified in Texas lore as the only man to desert the Alamo as the Mexican army approached in 1835.

Mr. Maloney was assigned the case by Texas Public Radio in 1991, when the station launched the first of three annual historical trials by reviewing the decision of the state in 1848 to deny Mr. Rose his request for a land grant as a survivor of the Alamo.

Attacking the case like any contemporary matter, Mr. Maloney researched the Alamo saga and quickly focused on the need to establish as fact an unproven legend—whether Alamo commander William B. Travis drew a line in the sand and invited the volunteers to stay or leave.

Like any other Texas lawyer, Mr. Maloney knew he wouldn’t have a hard sell in convincing a San Antonio jury that Col. Travis actually had drawn the fabled line. It’s an incident embraced on faith by most native Texans. Ironically, history reflects that his client, Mr. Rose, was one of the early disciples who spread the tale about the line, even drawing a picture of the event for others to see.

Mr. Maloney bolstered his client’s credibility with testimony about his background, including citations for bravery during battles under Napoleon in Spain, Italy and Russia. And he got a corroborating witness from the history books when he learned that Alamo survivor Susanna Dickinson also had confirmed the legend of the line.

Much as the jurors would have liked to have branded Mr. Rose a coward, several had to agree with Mr. Maloney that the line in the sand transformed his client’s decision into a voluntary one, and the result was a deadlocked panel. The judge jumped in, ruled in favor of Mr. Rose and symbolically awarded him Mr. Maloney's law offices as compensation.

His Name Was Mudd

Another example of the mock trial movement occurred Feb. 12, when the University of Richmond’s T.C. Williams School of Law conducted an appeal of Dr. Mudd's 1865 conviction as a co-conspirator in the Lincoln assassination. Notorious as the physician who set the assassin's broken leg, Dr. Mudd was tried by a military court and sentenced to life in prison. He served four years before winning a pardon.

As a professor of military law, Richmond’s John Paul Jones focused on the Mudd case as a way to show his students how slow the courts were then to adopt constitutional principles now taken for granted.

Dr. Mudd's appeal quickly attracted three prominent jurists to preside and pitted defense attorney F. Lee Bailey on Dr. Mudd’s behalf against John Jay Douglas, dean of the National College of District Attorneys in Houston.

Student briefs demonstrated that Dr. Mudd had been denied certain procedural rights and noted that civilian courts nearby easily could have assumed jurisdiction instead of the military tribunal.

Mr. Bailey relied on them and employed his own oratorical skills to assert that the military commission had been established “to satisfy the monumental embarrassment of lax security that allowed the president of the United States to be assassinated by an amateur.”

At the hearing’s conclusion, the panel decided that the military commission of 1865 actually had no right to try Dr. Mudd.

“It accomplished my goal of getting people thinking about the history of military law,” says Professor Jones. “We looked at the many procedural errors and learned that Dr. Mudd complained about things that other people could complain about up through World War II.”

Despite the widespread interest in his exercise, Professor Jones says he's reluctant to take the logical next step in the case of Dr. Mudd. Now that the military has been excluded from the case, the school wants to stage a real trial to determine if evidence exists to tie Dr. Mudd to the Lincoln conspiracy

It may be some time before Dr. Mudd again rests in peace, but he undoubtedly will be joined by other historical ghosts, willingly or not, as they roam the hallways of the nation’s courthouses in a belated search for justice.

Update

Since 1993, Professor Starrs has continued to scratch that itch for closure on old cases, as explained in his law school profile. He published a book about the Meriwether Lewis case, and his current Amazon.com author biography summarizes his work:

James E. Starrs is the author of A Voice for the Dead and a longstanding contributor to The Scientific Sleuthing Review. He is an emeritus professor of law and a professor of forensic sciences at George Washington University as well as a distinguished fellow of the American Academy of Forensic Sciences. He has been involved in many historical investigations, including the exhumation of Jesse James' remains and the Alfred Packer cannibalism case. He lives in Springfield, Virginia.”

The Lewis mystery generated a 2009 article in Smithsonian Magazine.

Meanwhile, Professor Maples died about four years after I wrote this story. His Wikipedia profile offers a brief review of his work and mentions his 1994 book, Dead Men Do Tell Tales

For more information on Moses Rose, Wikipedia offers a lengthy article and the Handbook of Texas Online features its own rendition. Rose’s mock trial attorney, Pat Maloney, died in 2005.   

Of course, if any readers have updates to offer, all comments are welcome.

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