University of Virginia Library

CHAPTER XV.

MR. LEE FOR DEFENSE.

What was thought to be the last day of the argument had arrived.
Mr. John L. Lee, the noted criminal lawyer of Lynchburg, was to close
for the defense, and he was to be followed by Mr. Frank Gilmer, the
popular Commonwealth's Attorney for the city of Charlottesville.

The storming of the court-house began early. The greatest crowd
yet assembled gathered on the green and rushed for the doors as soon
as they were opened. Within five minutes every seat in the building
was taken, and every available inch of additional space was in the
hands of two hundred men and women well content to stand for hours,
if they were only permitted to see and hear. Still they came.

By the time the court bell rang not another man could squeeze in,
and the stream still pouring in had to be turned back.

The court-room was a perfect babel of chattering voices. Three
times as many women as usual were present.

A perfect cloud of negroes darkened the right gallery. On the outskirts
of the black crowd was a line of white faces, who, regardless
of the proximity of the negroes, had pressed in on the rear.

Within the bar twice as many people as it could hold had packed
themselves. Officers of the court, and some of the attorneys, could
find no seats. The court finally had to take a hand. "The administration
of justice," declared Judge Morris, "is more important than the
curiosity of people." He ordered the crowd back, but suffered some
relaxation of his rules for the benefit of the throng.

In return he demanded the most perfect order from the people, and
warned them against demonstration of any sort. This statement he
repeated later.

McCue came in about 10 o'clock, accompanied by the officers. As
he forced his way through the bar he bent and kissed his sister and his
children. Then he sat down, lifted his little girl to his knee and placed
one arm across the shoulders of his youngest son.

The preliminary proceedings of the court were dispatched with great
celerity, and then the crowd sat back in expectation. The court rapped
vigorously for order, and then called upon Mr. Lee. The great
Lynchburg lawyer, the leader of the defense side, arose from his seat,
where he had been pouring over a bundle of papers. Every eye was
fixed upon him. He stood straight and tall as he faced the jury. His

powerful, resonant voice penetrated to every corner of the court-room.

"If your Honor please, and gentlemen of the jury," said he, "the
longer I live and the more nearly I approach the last stage of human
existence, the more I feel myself impelled to believe in a destiny over
which we poor mortals have but little, if any, control. It sometimes
seems to me that the moving finger of destiny writes, and having writ,
moves on, and that all our power cannot lure it back. As we move
through the serious ways of life, how uncertain, gentlemen, are our
footsteps. As we come to the cross-roads, without sign-board to indicate
whither they lead, what is it but fatality or destiny that makes
us choose the one or the other way. Between vice and misfortune
there is a difference, but it is an underlying difference in many cases.
It does not always appear upon the surface, to be read of all men. The
results of the two are frequently identical, and it is extremely difficult
to determine in many cases which has led to a given result. Now,
gentlemen, when I say that to you, men of maturity and judgment, I
feel confident that you cannot fail to apprehend my meaning.

"How many men on this jury, in the days that you have put behind
you forever, and which you can never recall, have found yourselves
placed in the most embarrassing and awkward positions—positions
repulsive to every fibre of your mind and your being—and yet you
couldn't help it. You had done no wrong, your conscience spoke to
you in no disapproving voice, but you felt that in the eyes of society
you had been condemned. Isn't that true, gentlemen? Isn't it true?

"And haven't you found this to follow upon the heels of that condition:
The very instant that evil is spoken of you, the very instant that
some malignant tongue sends forth a rumor, whether true or untrue,
of your misconduct, haven't you found more people ready to believe
it than disbelieve it?

"Honor bright, hasn't that been the experience of every man on this
jury? And so far as you have been able to determine, has it not been
the experience of every man whom you have had opportunities of observing
in that respect? The greatest of all writers of the English
language has epitomized that truth. He has told you that `the evil
that men do lives after them; the good is oft interred with their bones.'
Why the Almighty, in His infinite wisdom, created us, as we are told,
in His own image; why He should have so constructed the human
heart and human mind that it is ever ready to believe evil, only God
himself in His wisdom knows.

"You may live a long life, dotted here and there and all along the
line with noble deeds, but unless that life has been lived in the full
glare of the public like that of a statesman, or a mighty general, or a
great orator, you die and only your immediate circle of friends know

of the beauty of your life. But as you struggle and totter along that
road that leads from the cradle to the grave, if you slip but once, if
you once stain your good name, generations to come after you will remember
it and speak of it.

"And strange to say—sad to say—when the voice of calumny has
touched you, when the scandalous tongue has blackened your fair
name, it is not only your enemies who profess to believe it, but frequently
it is the friend whom you have nurtured in prosperity, gentlemen,
in the day of our prosperity.

"But happy is the man who, in the hour of adversity, in the hour
of public condemnation, undeserved, let it be, who can reach outside
of his own family and put his hand on one man who believes in him
and who loves him and who stands by him. And it is that position,
gentlemen, it is that condition, that makes the position of my client
here pitiable in my eyes. And if you are honest men—as I believe
you are, as I know you want to be—it will make it pitiable in your
eyes and will appeal to your sense of honor and your sense of right.

"Gentlemen of the jury, this is no ordinary case. It is an indictment
to which I am now addressing myself—a man charged with wife murder—but
it is extraordinary in this, that from the very time when that
charge was made public the men who should have been the prisoner's
friends, and some of whom have told you they were his friends for
twenty long years, unwilling to await the developments of a fair trial,
to harbor in their hearts one instant that charity which is commended
to us by God above, deserted him.

"Put your hand on your hearts, gentlemen, and tell me, you who
read the newspapers, is there likeness of any sort between publications
of the public press and the evidence you have heard in this case.

"Gentlemen of the jury, yours is a hard task—harder than that
which has been imposed upon me and my colleagues. Ordinarily a
man comes into court presumed to be innocent, but this man, before
trial, before the testimony was heard in his case, was led into this
court before you already condemned, and you knew it. Many of you
on that jury, in your integrity and candor, were fair enough when you
took the oath to say that you had read newspaper articles; that you
had read accounts of this transaction, and that to a great extent your
minds had been interested, and you had formed opinions based upon
these accounts. And yet you stated, and I have no doubt truthfully,
that you could put these reports out of your mind and give this accused
a fair and impartial trial. But, gentlemen of the jury, guard yourselves.
If ever there was a time in the lives of you men when you
needed God Almighty's guidance and divine protection, it is to-day.
I know that you know that the people of this State, never having heard

the testimony which you have heard, and deciding upon scandalous
publicity, from one end of the land to the other, and expecting a conviction
at your hands. I am not here to deal in milk and cider talk.
You know as well as I know, that if you acquit this man you will receive
at the hands of those who haven't heard the evidence the fiercest
criticism, and I have no doubt you very properly fear and dread it.
But think of your responsibility, gentlemen. A man's life, his reputation,
his character, the lives of his little children, are being weighed
in the balance here. You know what it means.

"Ordinarily," continued Mr. Lee, "a man comes into court presumed
to be innocent. But this man, before he was heard, was brought into
this court already condemned. Some of the jurymen themselves, in
their integrity and honesty, had admitted that they had read newspapers
and formed opinions before they had ever come into court.
These opinions they hoped to lay aside.

"The attorney for the defense had no doubt that the gentlemen
spoke honestly when they said they would put these opinions aside,
but he warned them that they must be careful; that if ever they
needed the guidance of a divine providence, it was to-day, in this case.
He declared in all candor that for himself, were he on trial for his
life, he would prefer a verdict at the hands of twelve men who had
absolutely no previously-formed opinion of the case."

Proceeding along this line, Mr. Lee referred to the contagion of
public rage against the accused. He would mince no words, he said.
He pictured a public fired by false newspaper reports; a public ready
almost to rise up and strike down the man who claims for McCue anything
but a hangman's rope. The gentlemen of the jury were aware
of the sentiment throughout the State.

"A man's brain is after all nothing but a piece of machinery, built
along certain principles and designed to move along given lines. It is
like a phonograph. Breathe into it a note—it may be a false note—
but years after it sounds itself again and becomes a living thing once
more. And so the accounts given by the newspapers can never be
effaced from your memory. They are in your good skulls at this
minute—mixed up with what you have heard on this witness stand.
You have got to convert your minds into a fan and winnow out the
chaff of newspaper notices from the truth as learned.

"In this day of enlightened civilization, we have adopted the motto,
`It is better that ninety and nine guilty men escape than one innocent
man be punished.'

"Let's be honest with each other. Suppose you, Mr. Traylor, were
in my place and your son was in the place of the accused. Would you
not feel that he might, under the circumstances, get a fair trial, but
you would doubt it.

"This is a remarkable case. It is not only important to my client,
but it is likely to form an epoch in the legal history of this State.
Acquit this man, and the time will come when you will be regarded as
having laid down another golden rule—that men shall be tried by the
evidence and not by the scandals circulated.

"Let us see what are some of the results of this supposed evidence.
We examined one hundred and forty men. Nearly all were disqualified
because they had read all the idle rumors that any scandal mongers
may have seen fit to set afloat in the public prints. If it does nothing
more, your verdict of acquittal will put your seal of disapproval on
prejudging the case before the evidence is heard.

"The Commonwealth is ably represented. The Commonwealth's
Attorney occupies the best position of any lawyer in the case. He
will tell you he is not biased—he believes it is true—but he is mistaken.
I am biased, and I know it. I am outraged by the wrongs that
have been done my client.

"Mr. Ker occupies the same position in this case that I do—he is a
paid attorney, and strictly within his rights. My good friend Captain
Woods, I am sorry to say, occupies no enviable position.

"I protest against the use of this friendship for the accused to creep
into your hearts and to prejudice them against him—the very mouthpiece
of the sentiment which disqualified this community from trying
this case.

He pictured his opponent as a Bacon, appearing against his friend
Essex; a man who under the guise of friendship for the accused, crept
in and attempted to poison the minds of the jury; a man who mistook
vituperation for argument and abuse for reason; a man who constantly
sought but should not receive the commendation of his fellow-men.

"Some day," said Lee, "the same public that, for months unenlightened
as to the facts in this case, have been clamoring for conviction,
may, like the fickle winds of heaven, veer around. My friend will then
find that over rough swamps and meadows he has been chasing the
everlasting will-o'-the-wisp—public sentiment and public approval. At
times you may think you have got it and can keep it, but, gentlemen
of the jury, it has got to come to you; you cannot run it down.

Having, as he said, prepared the jury for the argument of the case
itself, Mr. Lee proceeded to take up the law, as set forth in the instructions,
and the evidence, as included in the testimony of the witnesses.
He referred to circumstantial evidence as a chain which was as strong
as its weakest link, and which is utterly destroyed when a single link
is shattered. The defense he claimed to have broken, not the weakest
link, but the strongest. There was one link so fragile that it broke
of its own weight.

This link the attorney declared to be the puerile effort of the Commonwealth
to establish bad relations between the man and wife.

The gentlemen of the prosecution had introduced evidence that was
ridiculous; that could not even be called decent "straws." And yet
these gentlemen thought that this evidence was terrific and convincing.

"It simply shows, gentlemen of the jury," declared the speaker,
"how the spiders of venom have woven cobwebs about their usually
strong and clear intellects."

The testimony of the various Commonwealth witnesses bearing upon
the alleged bad relations existing between the accused and his wife
was taken up by Mr. Lee and dissected.

He gathered the bits on his fingers and blew them away; declared
that they were the veriest chaff.

Like those of his associates who had preceded him, he called the
attention of the jury to the oaths by which they had sworn to try the
accused, according, not only to the evidence, but also the law. The
law he declared to be embodied in the instructions.

Under the heat of argument, the gentlemen of the prosecution had
done a thing absolutely contrary to this law. They had dragged in
the evidence used to impeach Willie McCue and John Perry—evidence
that the court had distinctly stated should not be used against the
accused. The alleged statements of the two witnesses had been detailed
to the jury. How many of these statements had in reality been
made, Mr. Lee declared that God in heaven only knew. But whether
they were true or not, they had nothing to do with the case.

"For God's sake, gentlemen, when you retire to your room, give us a
square deal. The only possible effect of this evidence would be to
put Willie McCue and John Perry out of the case entirely.

"It can be used for no other purpose. And, gentlemen, when these
two witnesses are put out of the case, does not the Commonwealth
find itself with nothing left? His Honor has told you that you must
not consider this testimony as affecting the decision for or against
this accused. Can you do it? Have you the sense and the brains to
keep them separate? It will not be easy, gentlemen. Could I do it
myself? Thank God I am not called upon to do it. It is you, gentlemen,
upon whom the responsibility lies. Be careful, gentlemen, for
God's sake, be careful."

Somewhere in the beginning Mr. Lee had asserted that the defense
could shatter the strongest link in the chain of circumstantial evidence,
on which the Commonwealth hung its case. The speaker now
went back to this point and resumed the argument from this direction.
The "lifelong friend of the accused," the leader of the prosecution,
pausing significantly in his speech, had declared that if nothing else

had been established by the Commonwealth, one thing alone would be
sufficient to convict the prisoner—the varying accounts he gave of
what had occurred in the house on the night of the murder.

What followed developed into one of the most dramatic incidents
of the entire trial. Mr. Lee referred to the likelihood that there was
as much variation in the impression gathered by the witnesses as
there was in what the prisoner said. He discussed the alleged variations,
and declared that they were so slight as to amount to nothing.
But what he said here was preliminary to what the speaker was holding
in reserve. He suddenly reached for a Bible and held it in his
hand. He leaned forward and looked into the faces of the jurymen.

"Gentlemen," he asked in effect, "What was the most important
event in all the history of the world? Was it not the scene enacted
upon Calvary, when Jesus Christ, the Saviour of mankind, gave up
His life for humanity. I speak reverently, gentlemen; I trust that you
will receive what I say with reverence for this Holy Book upon which
you have already taken your oath. The life or the liberty of a man
is at stake, and only in this crisis do I venture to use the inspired
words themselves to save him."

Not a sound disturbed the silence in the court-room while Mr. Lee
began to turn from place to place in the Bible he held. Speculation
was rife as to what he would do.

Finally he began to speak again, and then it became clear to the
audience what was coming. The attorney for the defense was about
to show that the inspired servants of the Christ himself had given
varying accounts, not of an ordinary occurrence, not upon which
nothing depended, but of the greatest, the grandest, the most significant
event the world was ever to see—the crucifixion of their Lord and
Master. Upon these writers lay the responsibility of transmitting to
posterity the record of this glorious scene. They were there in the
shadow of the cross; they saw and then they wrote. Each saw what
the other did; each read the inscription on the cross written in three
languages; before the eyes of each passed the incidents of that marvelous
day. And yet, what had they written? No two of them agreed.
The differences were radical. Not even the inscription above the head
of the Saviour had been read alike by these inspired men.

It was a bold stroke, and it was powerful in its effect. Mr. Lee read
the sacred words aloud to the jury. As he went along he pointed out
the variance in the accounts given.

"And now, gentlemen of the jury," was all the comment the attorney
made when he was through, "are you prepared to say that the main
fact of the crucifixion did not occur because four different accounts
of it, written by the saints themselves, differ—and differ radically?

Again, gentlemen, I speak with deep reverence; but, gentlemen, I ask
you, Are you prepared to say this thing?"

A moment later Mr. Lee had left this point, and was delving again
into the evidence itself. He referred now to the occurrences in the
house on the night of the murder.

"I promised you to be truthful to you, and I say to you that
McCue's account of what happened at the house don't seem reasonable.
Does what the prosecution say happened there sound any more reasonable?
If the accused had said he had been knocked senseless, and
had stopped there, it would have been all right.

"I have no doubt upon the point that he could have been knocked
senseless without leaving any mark of violence. Dr. Early said so at
the coroner's inquest, before there was clamor against the accused;
but at the trial, without having had any experience and without having
read any further upon the subject, he believes that any lick which
could have knocked the accused senseless, would have left some
marks of such violence. Are you not bound to believe that he is influenced
by public sentiment?

"Of the millions of men that `God has poured from his bowl,' as
Oma Kayam expresses it, no two of them are alike. And to the extent
that they are unlike physically, to that extent they are unlike mentally,
and so I cannot say that Mr. McCue's conduct on that night was unreasonable.
It would have been unreasonable in me, but in a man of
McCue's mental calibre, it may have been perfectly reasonable. He
acted possibly as best he could. For you, gentlemen, to sit quietly in
the jury box and to decide what is reasonable is like the gentle doe
deciding what would be reasonable in the fierce tiger.

"God knows, gentlemen, what I should have done myself, had I found
my house full of gunpowder and my dear wife missing. I am told that
one of you gentlemen is an engineer. He knows, and you all know,
that in moments of frightful mental excitement a man does not act
rationally. He does not stop to reason, gentlemen. He does not stop
to consider whether or not he is doing what another would do under
the circumstances. He acts at once, and acts impulsively.

"It will not do, with life the issue, for you in your calm deliberation
to decide that the man's action was reasonable. I might have acted
differently—you probably would have acted differently.

"We are not always the same men. We do to-day what we would
not design to do to-morrow. A philosopher has said that what we do a
given day is frequently dependent upon what we had for breakfast."

Mr. Lee went on to discuss the question of probability and improbability
along the line already covered by his associates. He referred
to the argument of the prosecution concerning the lack of hue and cry.

He declared that the accused had acted naturally in going at once to
his telephone and calling for help. The office was connected with a
hundred homes; had McCue gotten into his yard and squalled until
his lungs gave way, he could not have published more broadly to the
world the fact that a man had entered his home and stricken down
his wife. The speaker thanked God that the innocent telephone girls
had not allowed themselves to be swept away on the wave of public
sentiment that had submerged the counsel for the prosecution. The
Commonwealth had claimed that by utter lack of hue and outcry they
had tried by insinuation to say that the police had learned of
the murder by accident, and that they arrived unexpectedly upon
the scene which the accused was trying to cover up the tracks of
his crime. And yet what were the facts. The man had gone to his
telephone and had done the most natural thing he could have done—
called in his brother, who was a physician. But he had done more;
he had broken in on the central office and had cried desperately, "Give
me somebody; a burglar is in my house; he has knocked me senseless
and probably killed my wife." Did he whisper this over the 'phone
to some accessory? No; he cried aloud. He told the girl who could
at once alarm the entire town, and it was this girl who had been told
by McCue himself, who informed the police. Yet it had been argued
that the police learned by accident that this man was seeking to cover
up his guilt.

"I don't know what your verdict may be—I can't tell how the evidence
may have impressed you—but I have the right to beg that you
will not place this man beyond the opportunity to clear himself—by
consigning him to the gallows. I cannot see how, upon the evidence,
you can fail to acquit; but even if you believe that the contention of
the Commonwealth is true, you are bound to say that the deed was
not due to deliberation.

In urging the jury to be careful in its judgment and not to convict
the accused, Mr. Lee said: "These newspaper reports that you have
heard on the outside, the pressure brought to bear on your mind by
the ripples of approbation or condemnation you have heard from the
galleries, may have moulded your minds and your intelligence, but if
you act as free, intelligent human beings, you cannot and will not do
this thing."

A little later, he added: "They haven't brought a living, respectable
resident of Charlottesville, the people among whom the accused has
lived, to speak of any unkind relations between McCue and his wife."

Then, straightening himself up like a Roman gladiator, and with
eyes ablaze and cheeks aflame, the speaker dramatically hurled a great

bundle of letters on the desk before Captain Woods. Almost before
the latter could make a retort, Judge Morris said: "Counsel on both
sides finally assured me, before these arguments began, that they
agreed to offer no more evidence. Gentlemen, the incident is closed."

And so it was, for Mr. Lee submitted with the utmost grace. A
moment later he resumed his speech.

At this juncture, the speaker said: "And now, if your Honor please,
I make it a rule never to do anything that the court has forbidden me
to do, but while Captain Woods was addressing himself to the jury he
referred to the business of these letters (producing correspondence
between McCue and his wife, and during the progress of this very trial,
he arose in the presence of this court and said that it was proper, even
after the evidence had been closed and the arguments concluded, to
offer additional evidence. I take him at his word. I tender you these
additional letters, and I challenge you (turning to Captain Woods) to
show them to that jury.

"And now, gentlemen of the jury, let me say this to you: I have
always made it a rule in cases of this character to make absolutely no
appeal to the emotions of the gentlemen who do me the honor of listening.
I am not here to deal with your emotions, but with your reason
and your intellect, and in closing this case I do want to say this: You
have been in this town and at this court-house long enough to realize
that you are under pressure. The pressure of the population of this
town, strange to say, is being brought to bear upon you.

"You can feel it in the very atmosphere. You know full well that
there exists that which we call public sentiment. Why, it is the most
subtle thing on earth—as subtle as electricity. You cannot see it in
the atmosphere, but it is there. You cannot touch it and you cannot
hear it, but it is in the atmosphere. You breathe it just as electricity.

"You are going to be controlled by that to some extent, I know. All
of us are. If I were on that jury, I believe I would be controlled by it
to some extent; but I am afraid it may have some effect upon you. All
I want to do is this—to offer you against that public sentiment the
sweet face of that little girl." Here Mr. Lee turned and pointed to
tearful little Ruby McCue.

"There is," added the speaker, "nothing on earth that can get all
the good out of the heart of a man like the hand of a little girl. I
offer it as an offset to this public sentiment.

"And now, gentlemen of the jury, all we want you to do is to give us
a fair and honest trial, to treat us justly, and to treat us fairly. Let
love and kindness be coupled with right and justice, and so shall you
become channels of the divine seal of God's eternal love."

The speaker now resumed his seat amidst profound silence.

FRANK GILMER,
Commonwealth's Attorney for the City of Charlottesville.