Part 6

In courts of justice no experts should be allowed to plead (_ex-parte_) for the side they espouse. Experts in handwriting are notorious for this; and their methods and deductions are always according to the testimony desired by the side retaining them. Their opinions are tinctured by retainers. In many cases where large sums of money are involved in litigation, as, for instance, a disputed “will case,” experts in handwriting appear on each side. The question in such cases often narrows down to the simple proposition: “Is the signature of the last will and testament genuine?” It must be either genuine or forged; and yet we find the phenomena of prominent experts in handwriting holding diametrically opposite views, and giving reasons under oath in support of their opinions. Now it naturally follows that if one side is right, the other side _must_ be wrong, and _vice versa_; the signature cannot possibly be both genuine and forged. If the testimony of _all_ the experts is in accord with _conscience_, some experts are—to be charitable—inaccurate.

The expert in handwriting can seldom be coaxed into a position in which he can be _proved_ wrong. Really it is extremely simple. Is the signature of the deceased so exact that no one would dare dispute it? Not he! The expert will declare it a tracing should his retainer dictate; otherwise _not_; but whichever way he testifies he can never really be _proved_ wrong, at least in this world, since the one who could tell has passed away to another. Under the circumstances, no wonder the expert can afford to be very positive.

In criminal cases these experts affect the side of the prosecution. Is a conviction secured? It is the result of his skill, while in case of an acquittal, he protests that justice has been cheated, and the prosecuting attorney never fails to indorse this view. He dearly loves a forgery case. If retained by the prosecutor, that official will protect the expert, and have witnesses to corroborate his opinion; while, should the defence secure his services, the expert’s opinion will be corroborated by the defendant himself. The only thing which will _prove_ the expert in error would be a confession—an unlikely occurrence.

But disputed writings, disguised, and anonymous communications are his joy, and again it is almost impossible to prove him wrong; and again his work is very simple. In these cases the guilty man, whoever he may be, never comes forward to admit his crime, so that the expert can blame whom he pleases or, rather, whom he is paid to blame. It is simplicity itself—similarities are to be pointed out. It is self-evident that all writings must contain similarities, for were there no resemblances the art of writing would be useless. In fact, that one person can read another person’s writing, is based on this principle. Surely it is just because we all do make the twenty-six letters of our alphabet more or less alike, that we can read each other’s writing at all. In such a case the _dissimilarities_ (and they are in all writing) will be regarded as attempts at disguise. And, since all writings must consist of similarities or dissimilarities, either or both will be argued as proof against a victim of this kind of evidence. To sum up, their art is to offer a theory favorable to the side retaining them, in such a manner that it may be believed or doubted, but which cannot be disproved.

Another question regarding this class of experts is, do they keep their oath, “to tell the truth, the _whole_ truth, and nothing but the truth?” If engaged by the prosecution do they disclose the points favorable to the defendant—no matter how apparent? Never. Although under oath to tell all, they are advocates for one side only. They are always positive, they swear to their opinions; but are they accurate? Suppose they should be tested, examined with writings of known and living persons, and knew nothing of the circumstances of the case, and had no District Attorney to warn and protect—suppose some one tried to fool them—a child could do it!

The law limits all opinion evidence. It is not considered as good as testimony to fact; much has been written on the justice of so doing. Judge Woodward in “The North American Review” for October, 1902, has treated the subject from a legal standpoint. In this article referred to he shows in no uncertain way how the opinions of experts in questions of disputed handwriting are regarded by bench and bar, especially in the higher courts. Moreover, he cites many instances of injustice done by this kind of opinion evidence. Beside this, I believe, there is a justly popular prejudice against this particular kind of expert testimony.

I have tried to show that this opinion evidence—expert testimony in regard to questions of disputed handwritings—is less accurate and has less authority than the opinion of other specialists. If this is true, should it not be limited to a greater extent than all other kinds of expert testimony? And to this end I venture to propose the following: That a commission be appointed to thoroughly and exhaustively examine all so-called public and official experts in handwriting. No thorough and conscientious expert would object to being tested as to his qualifications. Licenses should be issued to the successful candidates. (Few “sheepskins” would be needed.) Such a license should be required before the expert can practise in court.

_CHAPTER XVII_

_Prologue to a little Comedy written in the Death-Chamber, and called_

ONCE IN A HUNDRED YEARS.

I come to tell you how the author sat And looked upon the picture of his love. He spoke to her—you know he could do that— And she replied. But this you must believe. Although no ears received her charming words, Nor keenest eyes saw her sweet lips pronounce— It was her heart which spoke to his and said What none but they may know. ’Twas thus she brought him Of love and faith and joy and merriment. The last alone he has set down because No tongue or pen can tell the other three. But they, God bless them, knew it in their souls, And so do I—for, would you think it, I’m that happy man. Is there another Half so blessed—“Once in a Hundred Years?”

_CHAPTER XVIII_

_Impressions—The Last Night and the Next Morning—The Last Night_

There are unwritten laws and canons for all important occurrences in the Death-Chamber. I do not mean the prison rules; but the way “we” have of doing things. For instance, the new arrival, after he has passed through all formalities at the officials’ hands, and they are many, is initiated by “us” on the first night passed in our society.

This is an ancient and honorable custom, and like all initiations, a secret. These fixed ceremonies occur all through his long and brutal life in the Death-Chamber.[1] Long, for even a short stay in it makes him old; brutal, because his punishment is—death. Is that not enough? And to add thereto years of solitary confinement is to kill him not once, but over and over again. The system is all wrong. Oh, the years in the Death-Chamber! The loneliness, the quiet. Hell must be a quiet place.

Footnote 1:

See the very humane recommendations of the Hon. Cornelius V. Collins, Superintendent of State Prisons, in his report for 1901.

When at last it is drawing to a close, when the Governor has refused to interfere, the officials proceed in this manner: On Saturday the “fortunate one” on stepping from his bath is ordered into a new cell—the one next to the “little door” leading to the execution chamber. Here he receives everything new: new bedding, new clothes from head to foot, and then his knick-knacks, pipe, tobacco, boxes, books, and the packages of letters from home, ragged and blurred from reading and rereading; all have been very carefully searched. He receives something else, for this change in itself is his notice that one week from the following Monday he will be moved again. No questions are ever asked; he has seen it all before; but should he ask, the only reply will be, “I don’t know.”

From that moment a certain unwritten etiquette among us is never violated. His own way in everything, as far as we can possibly comprehend it, is our law. Does he ask for a song or story, his demand is acquiesced with at once. Will he play checkers? He may choose his opponent, and he will always win. We send him our oranges, the top layer from the box of cigars one has purchased. We do anything, everything we can to please him. Has there been a quarrel between him and another, it is completely forgotten. On his part, he must make the ghastly regulation jokes during the week. These are two in number, one with the keeper about the new suit of clothes: “I suppose _you_ will be wearing this week after next.” Number two is with the barber: “Don’t forget to cut my hair short on top.” From now on the “death watch” (two keepers) sits in front of his cage every night. During this week occurs the greatest horror we are called upon to bear, _i.e._, to hear the last farewells of our companion to mother, wife, sister, or child. While listening to their cries we anticipate the agony in store for those _we_ love. My heart bleeds when I remember what I have heard in the Death-Chamber. It is unspeakable. I cannot write of it.

Then comes the last night. Everything must be done very exactly now. Our code prescribes for everything; nothing must be omitted, no custom may be violated. The early evening passes as usual. Generally he asks for songs, perhaps he will sing one himself. That is as it may be. But at midnight the last rites among us of the Death-Chamber take place. The keeper comes to my cell carrying, perhaps, the little paper box my departing friend has kept his tobacco in so long; one that he made and decorated himself.

“Keep that to remember me by,” I hear from the direction of the little door.

“Thank you,” I reply.

“Good-by. I hope you have luck and get out,” is the next part of the ritual.

I must respond, “Thank you. Good-by, and God bless you.”

This is repeated with each one separately. He gives everything away, books, pipe, all. For six months he has been turning over in his mind just what treasure each of his companions shall receive when the last night comes. The responses never vary. They are now as they were ten years ago; they will be the same twenty years from now if that hell on earth is still in existence.

No one speaks to him or to any one else after that. He is reading and rereading each of those letters for the last time and destroying them. We hear him tearing them up one by one. “Swish, swish, swish.” Then it is quiet, very quiet in the Death-Chamber. I am not sleepy; the other fellows do not seem to be sleepy. They are reading. I sit up and write this; to-morrow I will write the other half.

_The Next Morning_

I have often read in the newspapers the supposed meal partaken of by the departing guest “furnished from the Warden’s table.” No newspaper reporter seems able to resist a description of the last breakfast, and no two papers ever publish the same one. Did the wretch gorge himself to the extent indicated, indigestion and not electricity would carry him off, and justice be cheated. No, he is not even stimulated to the extent of a cup of coffee, and for a good reason; a full stomach is not a good conductor. You will read that “the man was indifferent.” I tell you he was glad to go. “That he made no trouble.” Why should he? “Our horror,” how we are affected by our companion’s death, is portrayed. As a matter of fact, we envy him. Anything, everything is better than existence in the Death-Chamber.

During the night, if you have lain awake, and one has been known to be so foolish, you may have felt a very slight vibration, perhaps it is imagination; perhaps it is the dynamo. If you have slept, and do not hear the death-watch draw down the curtains in front of all the cells when the night outside turns gray, you will surely be awakened by the noise of many feet. It is the priests who have entered. Their ordinary shoes on the flagging of the corridor sound like thunder, thunder moving away. Now it subsides to the murmuring of Latin prayers. As you lie in your cell (the drawn curtains make it resemble a little box) wide-awake, you know that the last confession is being made, the last sacrament is being administered. This is another reason why no breakfast is given to the traveller. I saw it all one morning; the curtain was not quite down to the floor. I made myself as flat as possible. I saw the priest bless and kiss him; hold up the cross before his eyes; bid him have faith, and then back out of the cell. “He,” who is so soon to be “it,” followed. Then I heard the procession march rapidly into the next room. “Bang!” said the hungry little door as it closed.

What happens in there, and how it felt three minutes later, I cannot tell you; but I came very near finding out. Will you believe me that this day is a long one? _You_ fellows outside can do much to divert the mind from disagreeable thoughts; _we_ have breakfast, and sit down to wonder which one of us will be the next to go. Poor Benjamin, you have the advantage of us now; you have found “Nirvana” while we are worrying; you are reposing in your bed—of quicklime.

_CHAPTER XIX_

_Impressions—Dawn in the Death-Chamber_

I listened for the shrieking whistle of the milk train. It has come and gone, and the echoes have died away among the hills of Ossining, those beautiful hills, just—outside. The little family of sparrows who live in the skylight of the dead-house—I know each one by name—awake and angrily pipe their protest at the disturbance. Some of them fly down into the stale, tobacco-laden air and hop on the floor looking for crumbs.

I can hear Shorty, at the other end of the corridor, in the last cell of all, talking to himself, or to God. Others are mumbling while they doze. Larry shrieked twice during the night. And I? I received a visit yesterday and have lain awake thinking over the incident and of what the future means to me.

I am morbid!

I have made the story of the little dead mouse—it is all imaginary, but it is what I have resolved to do myself if----

All these are signs not to be disregarded; I know something is about to happen; I lie in bed and watch for it. Outside, I know that nature is cool and gray—delightful. I wait; it comes. The fierce yellow light begins to fade from out the electric globes; and finally, as it becomes less intense, each little red wire is visible; which fades into pink and disappears. The fearful light, the cruel, torturing, piercing light is gone. And that is how dawn comes to us in the Death-Chamber.

_CHAPTER XX_

_Impressions_ _While the Jury is Out—The First Jury_

It is said that everything is relative. A fixed period of time, for instance, is either long or short, according to circumstances. There is an exception to this rule. Time is always long while the jury is out. Be this period eight hours or six minutes in duration, either constitutes a life-time. I know, for I have experienced both.

To a man whose brain is analytical, here is a splendid opportunity to administer to his mind some of its own medicine. While the first jury considered my case I noted my impressions in my little red diary, for, thought I, this is a road over which few travellers pass; it is really a unique experience, an episode in a life. I will record my impressions. That jury was most considerate; it did not hurry me in the slightest; it was out eight hours. I started to record my impressions while the second jury deliberated; it interrupted me in six minutes—but I have forgiven it.

Here are the thoughts which came to me during the period at the end of my first trial; but before I quote from my note-book—it will be unnecessary to open it, for I shall never forget what is inside—it may be of interest to know the circumstances under which the entries were written.

My trial for murder is almost over. The evidence against me has all been given—there was none offered in my defence, for technical reasons. The closing arguments by counsels have been made; the judge has charged the jury, and the jury is out. My fate rests upon the knees of the gods. All of which means that I am in a little iron pen, and that twelve men occupy the next room, deliberating whether life or death shall be my portion. I am very tired; for full three months I have been under a physical strain and a mental tension—I have been falsely accused, I am innocent. There are three who know this—myself, the man who did the murder, and God.

February 10, 1900. The first entry at 3.30 o’clock P.M.

The keepers are watching me curiously. Their trained eyes are like microscopes, through which they study and compare my conduct with that of previous defendants whom they have guarded under similar circumstances. They are calculating how long it will take for me to break down and show nervousness. I think they have a bet on the subject. It is irritating. If I should ask for a drink of water, they would exchange glances. I must not throw away my cigar before it is quite smoked up, neither must I let it go out—for these are bad signs. No laughter on my part, even should something impress me as being amusing—it would sound “forced.” And, above all, no blowing of the nose, even if I want to. They will suspect a surreptitious use of my handkerchief for another purpose. Any one may guess, and very cleverly, at mental agony expressed through physical distress. But what if there are no visible signs of distress? There shall be none. I wonder how they will interpret my occupation of writing this? If they imagine I am making my will they must think me possessed of much to give away.

I have speculated about my guards and answered their kind inquiries. I am killing time; the afternoon is slipping away quickly. At any rate, the jury cannot stay out much longer. I look at my watch—eight minutes and a half have passed. Good God! Only eight minutes and a half!

The second entry at four o’clock.

I am chemist enough to love an experiment. The jury is the unknown substance; the testimony, the reagent; my case is in solution; what will precipitate?

I think of the judge’s charge. I can repeat it word for word; it is seared into my brain; but it would have been more cruel had it aroused a false hope. How did it impress the jury? Over and over again, the old question cries out in my mind: “What will the jury do?”

You may be sure I selected pleasant-faced men; men with little fans made of wrinkles at the corners of their eyes; men who smiled often; who had pleasant voices.

What a change comes over a talesman when he becomes a juror! He is sworn. He takes his seat in the box; he will hold your life in his hand; you cannot get rid of him. Now you look at him in this new aspect, and there is a leer about his mouth, a cruelty in his eyes you had not seen before. Why did you select him—a man with a jaw like that? It was suicide.

I think of the prosecution’s case. They will convict me, of course. I reconsider it from my point of view. No, they cannot! No jury in the world could convict on such theories. But on what will they base an acquittal? There was no defence. I remember the surprises the district attorney’s office has sprung upon me—the unanswered witnesses, the fervent experts swearing to the impassioned hypothetical questions of the prosecutor, and his closing address, scathing, unjust. There is no chance for me—the odds are thousands to one against acquittal.

Even so, whispers Hope, that happens every day. Think of the lotteries—the odds in them are many thousands to one against the winning ticket; but one ticket _must_ win. There can be no—That’s it! “The reasonable doubt”! But there has been no defence. It is hopeless. Then the presumption of innocence? Ah, they will disagree; I know it, I am sure of juror number ----; I shall have another chance; but what will the jury do? Perhaps they will exonerate me.

The third entry: 5 o’clock.

I have gone over the merits of the case again, coolly, dispassionately. I have counted the points against me on the fingers of my right hand, and checked off the points in my favor on the left. I shall be convicted is my conclusion.

How will they take it at home—my mother, my—Stop that! _Stop that!_ You are not to speculate on that subject; there must be no redness about the eyes, no twitching mouth when you face that jury for the last time. Use your brain—think of something else.

I am sick of the case; it can have but one issue. I must drive it from my mind by some other subject. I must have a proposition to prove—anything. Why does time pass so slowly? for instance; that will do.

It _is_ going slowly. This afternoon is a life-time—but why? That is a very good subject; it is an intensely real one. That this afternoon is “a life-time” is not only figurative—it is literal. Think of it; as long a life-time as you will, is composed of what? Of course I mean mentally—not what happens; that is hardly worth chronicling. What constitutes our interest in life? Surely it is because we cannot tell what the next day—or the next moment, for that matter—may bring forth. We hope, but uncertainty gives that hope its zest. Because we cannot discount the future, the unexpected is life, and life is Doubt. Can enough doubt be crowded into a few hours, or even minutes, to constitute a life-time? You will know it possible if you have ever waited—while the jury is out.

This must be the secret of the drama—the mimic life—in which the aroused hopes and fears and sympathies are but other names for doubt. Imagine, then, the suspense, the doubt, of the waiting man in this play with real life or death, and concentrate the emotions of a whole audience into that single brain.

The fourth entry: 6.30 o’clock.

There is a noise in the street below. I look out of the window at the crowd; they are waiting also from curiosity. Newspapers are being sold—newspapers full of unjust and imaginary stories about me and mine. The journalists are eager to sell these inventions while interest in my case lasts, hence the newspapers are “extras.” While watching this I see the jury go to dinner in an old-fashioned white stage, such as used to carry passengers on Broadway. Perhaps it is the same stage in which I rode with my mother to Manhattanville thirty years ago—I a little fellow in kilt skirts and white stockings. How well I remember it!

The fifth entry: 8 o’clock.

They will allow no one to see me; that is, none of my friends, but curious officials come in on imaginary errands to look me over. The jury returned some time ago; they have now deliberated for five hours. Evidently some one is holding out. Having done so for this length of time, it looks like a disagreement; unless some one changes his mind. Why should a juror change his mind? He has sworn to go by the evidence. Do the opinions of his companions change the evidence?

I wish that there was no jury system. Having five judges to preside would be much better. They would go by facts, their ears would not be tickled by mere eloquence; experience would teach them when witnesses were lying. And, best of all, five judges would know the real value of expert testimony; yes, they would know that, for they would hear the official experts expounding one theory to-day, have heard its opposite yesterday, and will hear the repudiation of both to-morrow.

The sixth entry: 8.30 o’clock.