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.
