CHAPTER X.
MR. BLISS MAKES HIS SPEECH.
"May it please your Honor and gentlemen of the jury," began Mr. Bliss,amidst an impressive silence, "in a few hours you will be called uponto act in a capacity which has been delegated to you by yourfellow-men, but which finally is the province of our heavenly Fatheralone. You are to sit in judgment upon a human being, and accordinglyas ye judge him, so shall ye be judged hereafter. I have not the leastdoubt of the integrity of your purpose; I fully believe that suchverdict as you shall render will be honestly adopted, after the mostthorough weighing of the evidence which has been presented to you. AllI ask is that you form your final opinion with due recognition of thefact, that if a mistake is to be made, far better would it be that yourelease our client, if he be guilty, than that you should send him tothe hangman, though innocent. I beg of you to remember that great asis the majesty of the law and the rights of the people, yet more mustyou respect the rights of this man, who stands alone, to defendhimself against such an array of witnesses and lawyers, as the wealthof the whole commonwealth has been able to summon against him. Thevery weakness of his position, as compared with the forces againstwhich he has to contend, should excite your sympathies. If there beany doubt in your minds, it becomes, not your privilege, but yoursworn duty to accord it to him. For, as his Honor will undoubtedlyexplain to you when expounding the law, the prosecution must prove thecharge beyond all doubt. The burden of proof is upon them. They claimthat the deceased came to her death by poison administered by ourclient. They must therefore prove that she died of poison, and thatthe poison was given by Dr. Medjora. But they must prove even morethan that, for they must show that it was given with intent to destroylife. Thus, if you decide that she died of diphtheria, of Bright'sdisease, of poison retained in the system, or even of the last dosewhich was taken by her, you are bound to acquit our client, unlessindeed you should adopt the extraordinary conclusion, that the finaldose of morphine alone produced death, and that Dr. Medjora himselfadministered it, intending that it should destroy his beloved wife,for whom he had retained skilled medical service and nursing, and atwhose bedside he even tolerated the presence of his bitterest enemy,because he knew that the man possessed the greatest skill available inthe vicinity of the house where the poor girl lay ill. Had he intendedto injure his wife, had he premeditated poisoning her, do you thinkthat he would have allowed a man to be nigh, who would be only tooglad to find a pretext upon which to charge him with a crime, but who,moreover, was possessed of exactly the experience and ability neededto detect the symptoms of a deadly poison? The proposition ispreposterous, and I am sure that such intelligent gentlemen asyourselves will cast it aside from you. But if the prosecution fail toprove that the girl did not die from natural causes, then they failutterly to make out their case. Upon this point the law is mostexplicit. In fact in one of our great text books, a work recognized bythe entire legal profession as the highest authority, I find a passagewhich seems almost to have been written for your enlightenment in thisvery case. I will read it to you:
"'It does not follow that because a person is wounded and dies, the death is caused by the wound; and the burden in such cases is on the prosecution to show beyond reasonable doubt that the wound in question produced death. It may happen also, where poison has been administered, that death resulted from natural causes. The presence of poison may be ascertained from symptoms during life, the _post mortem_ appearances, the moral circumstances, and the discovery of the existence of poison in the body, in the matter ejected from the stomach, or in food or drink of which the sufferer has partaken. But to this should be added proof that the poison thus received into the system was the cause of death.'
"I think that passage most clearly indicates to you the task which theprosecution have undertaken. Upon what do they rely for theaccomplishment of their purpose? Two things mainly. Circumstantialevidence, and expert testimony. And now, if I may hope for your closeattention, I will say a few words upon both of these classes ofevidence, in general.
"Circumstantial evidence, I need hardly tell you, is most delusive inits character. Analyzed, what do we find it to be? It has been trulyargued that there is, and can be, no cause without an effect. Inconsidering circumstantial evidence, the mind of the investigator ispresented with the relation of a number of facts, or effects, and heis asked to deduce that they are all attributable to a stated cause.For example, a peddler is known to have started out upon a lonelyroad, and to have in his pack certain wares, a given amount of moneyin specified coins and bills, wearing a watch and chain, and he issubsequently found murdered, by the wayside. Later, a tramp isarrested upon whose person is found the exact missing money, and manyof the articles which were known to have been in the pack. He ischarged with the crime, and the evidence against him iscircumstantial. His possession of these articles is an effect, whichis said to be attributable to a cause, to wit, the killing of thepeddler. But strong as such evidence may appear, as I have said, it isdelusive. For just as the prosecution ask you to believe that a numberof effects are traceable to a single cause, the crime charged, so alsoit is possible that all of the effects may have resulted from variouscauses. Thus in the case cited, the tramp may have been a thief, andmay have stolen the articles from the peddler after some other personhad killed him. And if it could be shown that the watch and chain weremissing, and yet were not found upon the tramp, that would be as goodevidence in his favor, as the other facts are against him. So that incircumstantial evidence the chain must be complete. If a single linkbe missing, or have a flaw, the argument is inconclusive, and a doubtis created, the benefit of which must invariably be given in favor ofthe accused.
"If this be true where there is a single link that has a flaw, whatare we to say when we find that the entire chain is composed of linkswhich are faulty? You are asked to decide that from this fact, andthat fact, and the other fact, the accused is guilty of a crime!Suppose that we show that from either the first, or the second, or thethird fact, we can trace back to other causes as producing the result?Why, then, the prosecution's case is rendered so fragile that thegentlest breath of a zephyr must blow each separate link to adifferent quarter of the globe. Now, that is what I shall endeavor todemonstrate; that, from the chief facts claimed by the prosecution,you may deduce innocence rather than guilt.
"First, we have the accuser, Dr. Meredith. He aids the prosecution'sclaim of poison by relating the symptoms of poisoning, which he sayshe observed before death. Now, even granting that this is a truestatement of facts, observed by an unprejudiced mind,--of which,gentlemen, you can readily judge, when you recall the abundanttestimony as to an existing animosity,--but, even granting itsabsolute truth, what does it show? Simply that morphine had beenadministered, in a dose large enough to have produced _ante-mortem_evidences of its presence. But what of that? Does it show that thedrug was administered by any particular person? By Dr. Medjora, as theprosecution have claimed? If so then I am ignorant, and ill informedas to all the rules of logic. It shows that morphine was present, andit shows no more, and no less. Now that fact we freely admit. TheDoctor himself told you how the drug was taken, and there has beennothing whatever offered, that even tends to disprove his assertion.Thus, as his testimony is all that we have upon the subject, and as ithas been unimpeached, you are bound to accept it as the only evidenceavailable. I may also remind you at this point, that in this country,where the God-given liberty of one man is as much cherished as that ofthe whole people, a man is to be considered innocent until after hehas been adjudged guilty. He therefore goes upon the witness stand, asunsullied as any other witness, and his evidence is entitled to thesame credence. I may also interject a momentary remark as to thedifference between juridical and common judgment. You may see a mancommit a crime and if accepted upon the jury which tries him, althoughyou know that he is guilty, you are bound to bring him in innocent,unless the evidence introduced against him proves his guilt, entirelyaside from your
own prejudices or prejudgment. You must give ajuridical opinion only. So that if you have imbibed any prejudicesagainst Dr. Medjora,--which is scarcely probable, for he must haveimpressed you as favorably as he has every one else who has seen himin court,--but if so, you are to set that all aside, and accept hisunimpeached evidence upon this point, relative to the administrationof the morphine, as the only available evidence upon which to base anopinion. And if you do adopt that, and decide, as you necessarilywould, that self-administered morphine cannot implicate Dr. Medjora inthis crime, why the case is ended at once, and need scarcely go anyfurther.
"However, merely as a matter of form, I will take up one or two morepoints. The second link in this circumstantial chain is that evidencesof morphine were found at the autopsy. But, gentlemen, what of that?You and I know how it entered the system, and of course we expect thateminent specialists, such as the gentlemen who performed the autopsy,must necessarily recognize the recent presence of the drug. It formsno particle of proof whatever against Dr. Medjora. That we see clearlyenough, when we eliminate the bare facts from the fog ofmisinterpretation. But I may casually remind you of another fact,which these same eminent specialists told us about. They found thatthe kidneys were atrophied, an evidence of disease, and later welearned that if the kidneys are diseased morphine is retained in thesystem, until a poisonous dose may accumulate. So we see that even ifthe deceased was poisoned to death, it was only by the retention ofmany doses, due to a diseased condition, and in no way attributable tocriminal interference.
"The next link is the actual presence of the drug, as testified by theexpert chemists. They tell us that they found morphine. Why of coursethey did. It was in the system; we knew that it was there; and we arenot at all shocked by the discovery.
"But I need not take up any other of these forged links, for, as youplainly see, the principal ones are so very faulty that as they arethe mainstay of the bonds that bind our client, we break them asunderwith scarcely an effort.
"Now, I will say a few words relative to expert testimony, and I begof you to understand throughout, that however I may attack this sortof evidence as a class, I speak in general terms only, and in no waycast any imputations against the scientific gentlemen who haveappeared upon the stand, except as they come within the limitations oftheir class, as I am about to explain to you.
"When expert testimony was first introduced it was received withmarked respect. The expert witness was counted as a professor in hisspecialty, and his word was almost final. Experience, however, hasmaterially altered all this. The field from which the expert may becited has been vastly broadened, whilst at the same time his testimonyis accepted with much more caution, and less credence. The causeswhich have operated towards this state of things are manifold, but Ineed not explain them here. Wherever there is any sort of specialty,from the blacking of boots, to the highest scientific pursuits, we nowhave experts who go upon the stand, and dogmatically inform us thattheir opinions are the true and only accepted finality upon thesubject presented. But we have found, that however positive one, ortwo, or three experts may be in asseverating what they claim to be afact, an equal number, of equally scientific, equally experienced, andequally trustworthy experts, may be found whose testimony will beequally as positive, though diametrically opposed. Indeed, so true isthis, that I may quote the wise words of that eminent jurist LordCampbell, who says: 'Skilled witnesses come with such a bias on theirminds to support the cause in which they are embarked, that hardly anyweight should be given to their evidence.' These are strong words, butwhat does Lord Campbell mean? That an eminent scientist would go uponthe witness stand, and perjure himself merely because he has beenengaged to substantiate a given proposition? Not at all. Of allexperts, I may be permitted to say perhaps, that the most eminent arethose connected with the professions, for we must rank the professionshigher than the arts, just as the arts are above the trades. We havethree great professions, to wit, the Ministry, Medicine, and Law. Ifwe could have before us the most prominent Minister, the mostcelebrated Physician, and the most eminent Lawyer, we would probablyhave three men standing equally high in public esteem. Then let ussuppose that this most eminent lawyer were engaged as counsel in somegreat suit. Suppose that some intricate technicality of law shouldarise, upon which the presiding judge should ask for argument andprecedents. Suppose, then, that associate counsel should place thismost eminent lawyer upon the stand as an expert witness? Rememberingthat he had been paid for advocating the cause in behalf of which hewas testifying, how much weight would his evidence have? I think youwill agree that it would be very slight indeed! Yet is it not the samewith the expert physician? Is not the skilled medical witness hired,and paid for his advocacy, just as that eminent lawyer was? Then whyshould we discard the evidence of the one, and accept the other?Neither of these gentlemen commits perjury. What they tell, ishonestly told. But--and, gentlemen of the jury, I now come to thevital point of this argument--the expert does not give us an unbiasedopinion. The reason is plain. As experts can be found with varyingopinions, so those are sought whose opinions agree with the positionwhich they are called to sustain. To be more definite, the expertscalled by the prosecution in this case, were called, because it wasknown in advance what they would testify, and because said testimonywould be favorable to the hypothesis of the prosecution. Though, I maysay parenthetically, in this case it has proven otherwise. But, statedon general principles, that is the fact. The prosecution choosesexperts, whose views can be relied upon to support the charge againstthe prisoner. And I must candidly confess that the defence is actuatedsimilarly. Surmising in advance what the opposing experts would tellus, we went about amongst equally eminent men, and found no difficultyin selecting those who could with equal positiveness, with equalauthority, and with equal experience and knowledge, support ourhypothesis. Had we found a gentleman who entertained views similar tothose of the prosecution's witnesses, do you suppose, for one moment,that we would have engaged such a man to aid us? Of course not! Thenare the lawyers for the prosecution any more human than we? Do yousuppose that they would call an expert, if they knew that his honestopinions would controvert their claims? Certainly not. Were they notloath to call Dr. Fisher? Thus, gentlemen, have we discovered, byanalytical reasoning, the cause of the bias existing in the mind of anhonest man. His opinion is sought in advance. If favorable he isengaged. When engaged he becomes a hired advocate, as much as thelawyer. Moreover, unlike the witness of facts, his testimony is tingedby a personal interest. He knows that celebrated experts will opposehis views. His reputation is on trial, as it were. If the verdict isfor his side, it is a sort of juridical upholding of his position. Heis therefore arrayed against his antagonists, as much as the lawyersof the opposing sides. In short, having once expressed an opinion, hewill go to any extreme almost, to prove that he is right. Thequestions asked by the counsel for his side, the majority of which heprepares or dictates himself, are glibly and positively answered. Butwhen the cross-examination begins, what do we see? An interestingspectacle from a psychological standpoint. We see a man, honest in hisintentions, standing between two almost equal forces; the love ofhimself and of his own opinions, on the one side, and upon the otherthe love of scientific truth which is inherent in all trulyprofessional men. When a question is asked, to which he can replywithout injury to his pronounced opinion, how eagerly he answers. Butwhen a query is propounded, which his knowledge shows him in a moment,indicates a reply which his quick intelligence sees will be againsthis side, what does he do? We find that he fences with the question.As anxious not to state what he knows to be false, as he is not toinjure his side of the case, he parries. He tells you in hesitatingtones, 'It may be so, in rare cases,' 'Other men have seen andreported such instances, but I have not met them,' 'It might bepossible under extraordinary circumstances, but not in this case,' andso on, and so on, reluctant to express himself so that he may be citedafterwards. You have witnessed this very kind of evasion in this case,so that you readily grasp my meaning. When
I asked Professor Orton,whether the action of morphine is modified by disease, his answer was,'It might be'; and when I asked him whether, from continual dosage, itcould accumulate in the system, he said, 'The records contain reportsof such cases.' When I asked him if morphine would not be so retainedwhere Bright's disease were present, he tried evasion again by saying,'I have never seen such a case,' after which he admitted that he hadread of them in good authorities.
"As I have told you, speaking generally, this sort of evasion undercross-examination is a peculiarity common to nearly all experts, sothat in singling out Professor Orton as an example, I do so with nointention of attacking his honesty of purpose. He was simply defendinghimself, and upholding the side which pays him for his advocacy. But Ichoose this testimony because if we analyze it I think we will findmore, much more than appears at a glance; and I can at the same timeshow you how all expert testimony should be received. I will exemplifythe amount of caution to be displayed in accepting what a skilledwitness tells. I will show you principally, that what the experttestifies under cross-examination is more likely to be true, than whathe tells the friendly lawyer on his own side.
"Now, when I asked Professor Orton whether Bright's disease would actas a cause to facilitate the accumulation of morphine in the system,he answered, 'I have never seen such a case.' That, gentlemen, is theset of words which I beg of you to analyze. Why did the Professor usejust this language? For, mark you, it is a well-studied answer. Let ussuppose that this eminent toxicologist had made an exhaustive seriesof experiments, which had proved, beyond all cavil, that the commonlyaccepted idea among physicians is wrong, and that Bright's diseasewill not effect an accumulation of morphine. How gladly would he havesaid 'No' to my question! How positively would he have asserted thatBright's disease would not have the effect which we claim! Therefore,that he does not use any such dogmatic denial shows logically andconclusively that he has no such knowledge. He does not know, beyondall doubt, that Bright's disease will not modify the action of thispoison. But we can see more in this answer. Suppose that, lackingabsolute knowledge, he had still a firm conviction. He would then mostprobably have said, 'It is my opinion that Bright's disease does notmodify the drug's action.' But, gentlemen, he had not even aconviction of this kind. On the contrary, he must either have known,or else have leaned towards the belief that such an accumulation ispossible, otherwise he would not have said just what he did say: 'Ihave not seen such a case.' 'I have not seen such a case'! Why, thevery words suggest that such a case has existed. More--that theProfessor had heard of such cases, and believed in them. Perhaps hehoped that this evasive answer would be accepted as final. In thatcase, gentlemen, it might have served, in your minds, as well as anegative reply. But, gentlemen, a lawyer's mind is necessarily trainedto the quick appreciation of situations like this. As soon as he hadsaid that he had never seen such a case, I was prompted by intuitionto ask if he had not heard of them. Then the fat was in the fire, andwe had an admission, however reluctantly given, that he had heard ofthem, and from competent authority. But the very attempt on the partof this witness to parry the question, and evade a full and truthfulreply, carries a conviction with it, that he recognized immediatelythe importance of our claim, and the possibility that it is a trueexplanation of the sad death of this young wife. He saw at once thatall the damning evidences of the presence of poison, are explainableby this simple hypothesis, that Bright's disease might cause otherwiseproper doses of morphine to accumulate until a lethal dose be present,and then act to destroy life. He therefore attempted to belittle thehypothesis. He could not refute it; he scarcely dared to deny it as apossibility, and therefore he essayed evasion.
"Thus we may deduce more from the reluctant admission of an expert,than from their glibly-told tales which have been rehearsed in theoffice of the District Attorney. So that, after all, expert testimonyis valuable--most valuable--if we but consider it with caution, andanalyze it, until bereft of bias and prejudice, the grain of truthstands out, as truth ever will, conspicuous midst the mass ofextraneous matter surrounding it, much of which is introduced for theexpress purpose of befogging your minds, and leading you away from thefacts.
"Thus, gentlemen, upon closer examination we find that just as theircircumstantial evidence was faulty, so the prosecution's experts provea boomerang. For it is upon their evidence that we mainly rely foracquittal. Dr. McDougal, the Coroner's physician, examined the kidneysat the autopsy, and freely expressed the opinion that Bright's diseasehad been present. Of course he denied that this disease had causeddeath, but there we have the opinion of an advocate. Next we haveProfessor Orton, who, as I have shown, practically testifies thatBright's disease may cause morphine to accumulate in the system untila poisonous dose has resulted. Is not that enough, gentlemen, tosatisfy you that, if this girl died of morphine, she died a naturaldeath, and was not murdered? At least, does it not raise a doubt inyour minds, which must be credited to Dr. Medjora, and which woulddeter you from sending him to the hangman? I am so positive that itmust, that I will close this appeal, without calling your attention tothe evidence, which has been abundant, and which indicates that deathwas not the result of poisoning at all, but of diphtheria, as indeedwas certified in the burial permit. I could go over all the evidencein greater detail, but I am so strongly impressed with the innocenceof our client, and so firmly confident that you are as capable as I amof reaching a proper conclusion in considering the evidence, that Iwill not take up more of your time, but leave our cause now in yourcare, satisfied that, regardless of the able rhetorical ability of thegentleman on the other side, you will be guided by Providence, andyour own hearts, to aid the cause of justice and release Dr. Medjorafrom his present trying situation. And as you deal justly with himnow, so may you receive your reward in the life hereafter."