The Art of Cross-Examination

The autopsy, fifty-six days afterward, disclosed an apparently healthy body, and the chemical analysis of the contents of the stomach disclosed the presence of morphine but not of quinine, though the capsules as originally compounded by the druggist contained twenty-seven times as much quinine as morphine.

This astounding discovery led to the theory of the prosecution: that Harris had emptied the contents of one of the capsules, had substituted morphine in sufficient quantities to kill, in place of the 4-1/2 grains of quinine (to the eye, powdered quinine and morphine are identical), and had placed this fatal capsule in the box with the other three harmless ones, one to be taken each night. He had then fled from the city, not knowing which day would brand him a murderer.

Immediately after his wife's death Harris went to one of his medical friends and said: "I only gave her four capsules of the six I had made up; the two I kept out will show that they are perfectly harmless. No jury can convict me with those in my possession; they can be analyzed and proved to be harmless."

They were analyzed and it was proved that the prescription had been correctly compounded. But oftentimes the means a criminal uses in order to conceal his deed are the very means that Providence employs to reveal the sin that lies hidden in his soul. Harris failed to foresee that it was the preservation of these capsules that would really convict him. Miss Potts had taken all that he had given her, and no one could ever have been certain that it was not the druggist's awful mistake, had not these retained capsules been analyzed. When Harris emptied one capsule and reloaded it with morphine, he had himself become the druggist.

It was contended that Harris never intended to recognize Helen Potts as his wife. He married her in secret, it appeared at the trial,—as it were from his own lips through the medium of conversation with a friend,—"because he could not accomplish her ruin in any other way." He brought her to New York, was married to her before an alderman under assumed names, and then having accomplished his purpose, burned the evidence of their marriage, the false certificate. Finally, when the day was set upon which he must acknowledge her as his wife, he planned her death.

The late recorder, Frederick Smyth, presided at the trial with great dignity and fairness. The prisoner was ably represented by John A. Taylor, Esq., and William Travers Jerome, Esq., the present district attorney of New York.

Mr. Jerome's cross-examination of Professor Witthaus, the leading chemist for the prosecution, was an extremely able piece of work, and during its eight hours disclosed an amount of technical information and research such as is seldom seen in our courts. Had it not been for the witness's impregnable position, he certainly would have succumbed before the attack. The length and technicality of the examination render its use impracticable in this connection; but it is recommended to all students of cross-examination who find themselves confronted with the task of examination in so remote a branch of the advocate's equipment as a knowledge of chemistry.

The defence consisted entirely of medical testimony, directed toward creating a doubt as to our theory that morphine was the cause of death. Their cross-examination of our witnesses was suggestive of death from natural causes: from heart disease, a brain tumor, apoplexy, epilepsy, uremia. In fact, the multiplicity of their defences was a great weakness. Gradually they were forced to abandon all but two possible causes of death,—that by morphine poisoning and that by uremic poisoning. This narrowed the issue down to the question, Was it a large dose of morphine that caused death, or was it a latent kidney disease that was superinduced and brought to light in the form of uremic coma by small doses of morphine, such as the one-sixth of a grain admittedly contained in the capsules Harris administered? In one case Harris was guilty; in the other he was innocent.

Helen Potts died in a profound coma. Was it the coma of morphine, or that of kidney disease? Many of the leading authorities in this city had given their convictions in favor of the morphine theory. In reply to those, the defence was able to call a number of young doctors, who have since made famous names for themselves, but who at the time were almost useless as witnesses with the jury because of their comparative inexperience. Mr. Jerome had, however, secured the services of one physician who, of all the others in the country, had perhaps apparently best qualified himself by his writings and thirty years of hospital experience to speak authoritatively upon the subject.

His direct testimony was to the effect that—basing his opinion partly upon wide reading of the literature of the subject, and what seemed to him to be the general consensus of professional opinion about it, and "very largely on his own experience"—no living doctor can distinguish the coma of morphine from that of kidney disease; and as the theory of the criminal law is that, if the death can be equally as well attributed to natural causes as to the use of poison, the jury would be bound to give the prisoner the benefit of the doubt and acquit him.

It was the turning-point in the trial. If any of the jurors credited this testimony,—the witness gave the reasons for his opinion in a very quiet, conscientious, and impressive manner,—there certainly could be no conviction in the case, nothing better than a disagreement of the jury. It was certain Harris had given the capsules, but unless his wife had died of morphine poisoning, he was innocent of her death.

The cross-examination that follows is much abbreviated and given partly from memory. It was apparent that the witness would withstand any amount of technical examination and easily get the better of the cross-examiner if such matters were gone into. He had made a profound impression. The court had listened to him with breathless interest. He must be dealt with gently and, if possible, led into self-contradictions where he was least prepared for them.

The cross-examiner sparred for an opening with the determination to strike quickly and to sit down if he got in one telling blow. The first one missed aim a little, but the second brought a peal of laughter from the jury and the audience, and the witness retired in great confusion. Even the lawyers for the defence seemed to lose heart, and although two hours before time of adjournment, begged the court for a recess till the following day.

Counsel (quietly). "Do you wish the jury to understand, doctor, that Miss Helen Potts did not die of morphine poisoning?"

Witness. "I do not swear to that."

Counsel. "What did she die of?"

Witness. "I don't swear what she died of."

Counsel. "I understood you to say that in your opinion the symptoms of morphine could not be sworn to with positiveness. Is that correct?"

Witness. "I don't think they can, with positiveness."

Counsel. "Do you wish to go out to the world as saying that you have never diagnosed a case of morphine poisoning excepting when you had an autopsy to exclude kidney disease?"

Witness. "I do not. I have not said so."

Counsel. "Then you have diagnosed a case on the symptoms alone, yes? or no? I want a categorical answer."

Witness (sparring). "I would refuse to answer that question categorically; the word 'diagnosed' is used with two different meanings. One has to make what is known as a 'working diagnosis' when he is called to a case, not a positive diagnosis."

Counsel. "When was your last case of opium or morphine poisoning?"

Witness. "I can't remember which was the last."

Counsel (seeing an opening). "I don't want the name of the patient. Give me the date approximately, that is, the year—but under oath."

Witness. "I think the last was some years ago."

Counsel. "How many years ago?"

Witness (hesitating). "It may be eight or ten years ago."

Counsel. "Was it a case of death from morphine poisoning?"

Witness. "Yes, sir."

Counsel. "Was there an autopsy?"

Witness. "No, sir."

Counsel. "How did you know it was a death from morphine, if, as you said before, such symptoms cannot be distinguished?"

Witness. "I found out from a druggist that the woman had taken seven grains of morphine."

Counsel. "You made no diagnosis at all until you heard from the druggist?"

Witness. "I began to give artificial respiration."

Counsel. "But that is just what you would do in a case of morphine poisoning?"

Witness (hesitating). "Yes, sir. I made, of course, a working diagnosis."

Counsel. "Do you remember the case you had before that?"

Witness. "I remember another case."

Counsel. "When was that?"

Witness. "It was a still longer time ago. I don't know the date."

Counsel. "How many years ago, on your oath?"

Witness. "Fifteen, probably."

Counsel. "Any others?"

Witness. "Yes, one other."

Counsel. "When?"

Witness. "Twenty years ago."

Counsel. "Are these three cases all you can remember in your experience?"

Witness. "Yes, sir."

Counsel (chancing it). "Were more than one of them deaths from morphine?"

Witness. "No, sir, only one."

Counsel (looking at the jury somewhat triumphantly). "Then it all comes down to this: you have had the experience of one case of morphine poisoning in the last twenty years?"

Witness (in a low voice). "Yes, sir, one that I can remember."

Counsel (excitedly). "And are you willing to come here from Philadelphia, and state that the New York doctors who have already testified against you, and who swore they had had seventy-five similar cases in their own practice, are mistaken in their diagnoses and conclusions?"

Witness (embarrassed and in a low tone). "Yes, sir, I am."

Counsel. "You never heard of Helen Potts until a year after her death, did you?"

Witness. "No, sir."

Counsel. "You heard these New York physicians say that they attended her and observed her symptoms for eleven hours before death?"

Witness. "Yes, sir."

Counsel. "Are you willing to go on record, with your one experience in twenty years, as coming here and saying that you do not believe our doctors can tell morphine poisoning when they see it?"

Witness (sheepishly). "Yes, sir."

Counsel. "You have stated, have you not, that the symptoms of morphine poisoning cannot be told with positiveness?"

Witness. "Yes, sir."

Counsel. "You said you based that opinion upon your own experience, and it now turns out you have seen but one case in twenty years."

Witness. "I also base it upon my reading."

Counsel (becoming almost contemptuous in manner). "Is your reading confined to your own book?"

Witness (excitedly). "No, sir; I say no."

Counsel (calmly). "But I presume you embodied in your own book the results of your reading, did you not?"

Witness (a little apprehensively). "I tried to, sir."

It must be explained here that the attending physicians had said that the pupils of the eyes of Helen Potts were contracted to a pin-point, so much so as to be practically unrecognizable, and symmetrically contracted—that this symptom was the one invariably present in coma from morphine poisoning, and distinguished it from all other forms of death, whereas in the coma of kidney disease one pupil would be dilated and the other contracted; they would be unsymmetrical.

Counsel (continuing). "Allow me to read to you from your own book on page 166, where you say (reading), 'I have thought that inequality of the pupils'—that is, where they are not symmetrically contracted—'is proof that a case is not one of narcotism'—or morphine poisoning—'but Professor Taylor has recorded a case of morphine poisoning in which it [the unsymmetrical contraction of the pupils] occurred.' Do I read it as you intended it?"

Witness. "Yes, sir."

Counsel. "So until you heard of the case that Professor Taylor reported, you had always supposed symmetrical contraction of the pupils of the eyes to be the distinguishing symptom of morphine poisoning, and it is on this that you base your statement that the New York doctors could not tell morphine poisoning positively when they see it?"

Witness (little realizing the point). "Yes, sir."

Counsel (very loudly). "Well, sir, did you investigate that case far enough to discover that Professor Taylor's patient had one glass eye?"25

Witness (in confusion). "I have no memory of it."

Counsel. "That has been proved to be the case here. You would better go back to Philadelphia, sir."

There were roars of laughter throughout the audience as counsel resumed his seat and the witness walked out of the court room. It is difficult to reproduce in print the effect made by this occurrence, but with the retirement of this witness the defendant's case suffered a collapse from which it never recovered.

*      *      *      *      *

It is interesting to note that within a year of Harris's conviction, Dr. Buchanan was indicted and tried for a similar offence—wife poisoning by the use of morphine.

It appeared in evidence at Dr. Buchanan's trial that, during the Harris trial and the examination of the medical witnesses, presumably the witness whose examination has been given above, Buchanan had said to his messmates that "Harris was a – fool, he didn't know how to mix his drugs. If he had put a little atropine with his morphine, it would have dilated the pupil of at least one of his victim's eyes, and no doctor could have deposed to death by morphine."

When Buchanan's case came up for trial it was discovered that, although morphine had been found in the stomach, blood, and intestines of his wife's body, the pupils of the eyes were not symmetrically contracted. No positive diagnosis of her case could be made by the attending physicians until the continued chemical examination of the contents of the body disclosed indisputable evidence of atropine (belladonna). Buchanan had profited by the disclosures in the Harris trial, but had made the fatal mistake of telling his friends how it could have been done in order to cheat science. It was this statement of his that put the chemists on their guard, and resulted in Buchanan's conviction and subsequent execution.

Carlyle Harris maintained his innocence even after the Court of Appeals had unanimously sustained his conviction, and even as he calmly took his seat in the electric chair.

The most famous English poison case comparable to the Harris and Buchanan cases was that of the celebrated William Palmer, also a physician by profession, who poisoned his companion by the use of strychnine in order to obtain his money and collect his racing bets. The trial is referred to in detail in another chapter.

Palmer, like Harris and Buchanan, maintained a stoical demeanor throughout his trial and confinement in jail, awaiting execution. The morning of his execution he ate his eggs at breakfast as if he were going on a journey. When he was led to the gallows, it was demanded of him in the name of God, as was the custom in England in those days, if he was innocent or guilty. He made no reply. Again the question was put, "William Palmer, in the name of Almighty God, are you innocent or guilty?" Just as the white cap came over his face he murmured in a low breath, "Guilty," and the bolts were drawn with a crash.

CHAPTER XIII

THE BELLEVUE HOSPITAL CASE

On December 15, 1900, there appeared in the New York World an article written by Thomas J. Minnock, a newspaper reporter, in which he claimed to have been an eye-witness to the shocking brutality of certain nurses in attendance at the Insane Pavilion of Bellevue Hospital, which resulted in the death, by strangulation, of one of its inmates, a Frenchman named Hilliard. This Frenchman had arrived at the hospital at about four o'clock in the afternoon of Tuesday, December 11. He was suffering from alcoholic mania, but was apparently otherwise in normal physical condition. Twenty-six hours later, or on Wednesday, December 12, he died. An autopsy was performed which disclosed several bruises on the forehead, arm, hand, and shoulder, three broken ribs and a broken hyoid bone in the neck (which supports the tongue), and a suffusion of blood or hæmorrhage on both sides of the windpipe. The coroner's physician reported the cause of death, as shown by the autopsy, to be strangulation. The newspaper reporter, Minnock, claimed to have been in Bellevue at the time, feigning insanity for newspaper purposes; and upon his discharge from the hospital he stated that he had seen the Frenchman strangled to death by the nurses in charge of the Pavilion by the use of a sheet tightly twisted around the insane man's neck. The language used in the newspaper articles written by Minnock to describe the occurrences preceding the Frenchman's death was as follows:—

"At supper time on Wednesday evening, when the Frenchman, Mr. Hilliard, refused to eat his supper, the nurse, Davis, started for him. Hilliard ran around the table, and the other two nurses, Dean and Marshall, headed him off and held him; they forced him down on a bench, Davis called for a sheet, one of the other two, I do not remember which, brought it, and Davis drew it around Hilliard's neck like a rope. Dean was behind the bench on which Hilliard had been pulled back; he gathered up the loose ends of the sheet and pulled the linen tight around Hilliard's neck, then he began to twist the folds in his hand. I was horrified. I have read of the garrote; I have seen pictures of how persons are executed in Spanish countries; I realized that here, before my eyes, a strangle was going to be performed. Davis twisted the ends of the sheet in his hands, round and round; he placed his knee against Hilliard's back and exercised all his force. The dying man's eyes began to bulge from their sockets; it made me sick, but I looked on as if fascinated. Hilliard's hands clutched frantically at the coils around his neck. 'Keep his hands down, can't you?' shouted Davis in a rage. Dean and Marshall seized the helpless man's hands; slowly, remorselessly, Davis kept on twisting the sheet. Hilliard began to get black in the face; his tongue was hanging out. Marshall got frightened. 'Let up, he is getting black!' he said to Davis. Davis let out a couple of twists of the sheet, but did not seem to like to do it. At last Hilliard got a little breath, just a little. The sheet was still brought tight about the neck. 'Now will you eat?' cried Davis. 'No,' gasped the insane man. Davis was furious. 'Well, I will make you eat; I will choke you until you do eat,' he shouted, and he began to twist the sheet again. Hilliard's head would have fallen upon his breast but for the fact that Davis was holding it up. He began to get black in the face again. A second time they got frightened, and Davis eased up on the string. He untwisted the sheet, but still kept a firm grasp on the folds. It took Hilliard some time to come to. When he did at last, Davis again asked him if he would eat. Hilliard had just breath enough to whisper faintly, 'No.' I thought the man was dying then. Davis twisted up the sheet again, and cried, 'Well, I will make him eat or I will choke him to death.' He twisted and twisted until I thought he would break the man's neck. Hilliard was unconscious at last. Davis jerked the man to the floor and kneeled on him, but still had the strangle hold with his knee giving him additional purchase. He twisted the sheet until his own fingers were sore, then the three nurses dragged the limp body to the bath-room, heaved him into the tub with his clothes on, and turned the cold water on him. He was dead by this time, I believe. He was strangled to death, and the finishing touches were put on when they had him on the floor. No big, strong, healthy man could have lived under that awful strangling. Hilliard was weak and feeble."

The above article appeared in the morning Journal, a few days after the original publication in the New York World. The other local papers immediately took up the story, and it is easy to imagine the pitch to which the public excitement and indignation were aroused. The three nurses in charge of the pavilion at the time of Hilliard's death were immediately indicted for manslaughter, and the head nurse, Jesse R. Davis, was promptly put on trial in the Court of General Sessions, before Mr. Justice Cowing and a "special jury." The trial lasted three weeks, and after deliberating five hours upon their verdict, the jury acquitted the prisoner.

The intense interest taken in the case, not only by the public, but by the medical profession, was increased by the fact that for the first time in the criminal courts of this country two inmates of the insane pavilion, themselves admittedly insane, were called by the prosecution, and sworn and accepted by the court as witnesses against the prisoner. One of these witnesses was suffering from a form of insanity known as paranoia, and the other from general paresis. With the exception of the two insane witnesses and the medical testimony founded upon the autopsy, there was no direct evidence on which to convict the prisoner but the statement of the newspaper reporter, Minnock. He was the one sane witness called on behalf of the prosecution, who was an eye-witness to the occurrence, and the issues in the case gradually narrowed down to a question of veracity between the newspaper reporter and the accused prisoner, the testimony of each of these witnesses being corroborated or contradicted on one side or the other by various other witnesses.

If Minnock's testimony was credited by the jury, the prisoner's contradiction would naturally have no effect whatever, and the public prejudice, indignation, and excitement ran so high that the jury were only too ready and willing to accept the newspaper account of the transaction. The cross-examination of Minnock, therefore, became of the utmost importance. It was essential that the effect of his testimony should be broken, and counsel having his cross-examination in charge had made the most elaborate preparations for the task. Extracts from the cross-examination are here given as illustrations of many of the suggestions which have been discussed in previous chapters.

The district attorney in charge of the prosecution was Franklin Pierce, Esq. In his opening address to the jury he stated that he "did not believe that ever in the history of the state, or indeed of the country, had a jury been called upon to decide such an important case as the one on trial." He continued: "There is no fiction—no 'Hard Cash'—in this case. The facts here surpass anything that fiction has ever produced. The witnesses will describe the most terrible treatment that was ever given to an insane man. No writer of fiction could have put them in a book. They would appear so improbable and monstrous that his manuscript would have been rejected as soon as offered to a publisher."

When the reporter, Minnock, stepped to the witness-stand, the court room was crowded, and yet so intense was the excitement that every word the witness uttered could be distinctly heard by everybody present. He gave his evidence in chief clearly and calmly, and with no apparent motive but to narrate correctly the details of the crime he had seen committed. Any one unaware of his career would have regarded him as an unusually clever and apparently honest and courageous man with a keen memory and with just the slightest touch of gratification at the important position he was holding in the public eye in consequence of his having unearthed the atrocities perpetrated in our public hospitals.

His direct evidence was practically a repetition of his newspaper article already referred to, only much more in detail. After questioning him for about an hour, the district attorney sat down with a confident "He is your witness, if you wish to cross-examine him."