American Scoundrel (25 page)

The reality, however, as Dan’s lawyers saw, was that only those Christian souls who believed the slaughter of the lover to be inappropriate behavior for a wronged husband would be selected. Mr. Ould threw in the added complication that he insisted upon property qualifications in jurors, as did the State of Maryland, and ruled out jurors who did not meet the requirement of owning property valued at $800. Since this $800 property limit had not been imposed in similar cases, Ould’s insistence on it would attract much scorn from Dan’s lawyers, especially the scathing Stanton.

A number of talesmen were dismissed for saying they were prejudiced
one way or another and did not think they could render a fair and impartial verdict.
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Early in the afternoon, after only five jurors had been chosen, Clerk Middleton announced that the regular panel of thirty potential jurors was exhausted, and the court ordered the marshal to summon seventy-five citizens to be present the next morning at ten o’clock for selection. But the day’s business was not ended. Mr. Stanton rose, with an aggressiveness of manner that thoroughly affronted District Attorney Ould, and stated that he wanted to direct attention to the position of the prisoner’s dock. It was situated in such a way that counsel could have no access to him. The place where the prisoner should be, close to his counsel, was occupied by bystanders. Judge Crawford said the dock had always been there, but the officer of the court would, he stated, keep a passage open between the defense table and the dock. Mr. Magruder then presented the second wing of the argument: The gentlemen associated in the defense of Dan were from Virginia, Alabama, Pennsylvania, and New York, and it was a practice in all those states to place the prisoner in such a position that he could readily communicate with his counsel. During the trial of Vice President Aaron Burr for high treason, the accused had been permitted to sit at the table with his legal advisers, and was furnished with pen, ink, and paper.

The judge, who had had a hard day in his unruly, overcrowded, and overheated court, said he had never heard of a man on trial for his life being taken from the dock and allowed to sit on the floor of the courtroom. But, expecting a daily mass of spectators, he wisely ordered that the dock be moved overnight to the rear of the bar, to a place behind Dan’s counsel and immediately facing the bench.

When the court adjourned, Dan was marched out of the courthouse, as he would be every day, with a phalanx of friends, consisting today of a chipper and paternally hopeful George C. Sickles, Manny Hart, Antonio Bagioli, Chevalier Wikoff, Sidney Webster (the private secretary of the President), and Thomas Francis Meagher, along with “other gentlemen, distinguished in law and politics, from the city and State of New York.”
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Dan had been reassured when so many potential jurors had expressed a prejudice in his favor and only one had mentioned the gallows.
His friends thought that this helped account for his self-possessed and calm manner.

Judge Crawford took his seat the next morning at ten-thirty, and found that though the crowd had increased, it was better organized and regulated. The first thirty-seven citizens questioned in jury selection that day were excused. Washington being a small city, one man declared he was on the spot a few minutes after the killing, and had expressed his opinion there, at the site of the murder, and it was an opinion strongly in favor of one side.

Edwin Stanton still feared that many potentially favorable jurors were being excused by the court on a questionable point of law. He expressed this belief at a stage of the day when only one new juror, James Kelley, a Washington tinsmith, had been sworn. “There was no intelligent man who did not read newspapers . . . and when those impressions were such as would yield to the superior weight of evidence when introduced to him in the jury box, he was, most assuredly, a qualified juror.” But Judge Crawford let Ould continue to apply a narrow test to the selection, and of the seventy-five talesmen summoned to the court that day, only three were selected, and with the five chosen the day before, they were cautioned by the court not to allow anyone to converse with them on the case now pending, and were sent away to an amiable quarantine at the National Hotel. They were generally delighted to be associated with this famous trial, but one, Mr. Arnold, an older man who would be jury foreman, prayed that God would spare him to complete the task.
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Even by the third day, when another seventy-five talesmen were available, the less than exciting business of empaneling a jury had not lost its crowd appeal, and again in court there was heat and the press of bodies. An incident that amused the crowd but harrowed Antonio Bagioli occurred when a man named Charles H. Kiltberger declared that, as an indication of his lack of bias, “if the prisoner was guilty, he would say, hang him as high as hell.” Though Dan seemed calm, there was what the press always called “a sensation” in the court, and the defense
peremptorily challenged Kiltberger. As he left the box, Mr. Bagioli rose and stood in his way. “I heard you just now say something harsh of the prisoner,” said the renowned musician and voice teacher, “but let me ask you if you had lost your wife, or had your daughter sacrificed, would you have been able to control your feelings and be governed by your reason?” It was not quite a rational question, but an embarrassed Kiltberger could see that Bagioli was in pain, and he offered apologies for his remark.

That third afternoon, with the jury still not fully selected, Stanton again challenged the $800 property requirement, bamboozling Ould into admitting that he had tried only one other murder case, and in that one the $800 qualification had not been insisted upon. “It was because,” admitted Ould, “I was not aware of the existence of the law at that time, and therefore could not put it into practice.”

This was a naive and fatal admission to make to such a ferocious jurist as Stanton. He asked Mr. Ould how long he had been practicing law in this district, and Ould replied that it had been since 1844. So Stanton started in: “You have the declaration of the gentleman, who for fifteen years has been engaged in the practice of the criminal law, who has been appointed by the President of the United States as a gentleman in every way qualified to enforce the laws of the United States . . . and yet has declared that until recently he did not know what was the qualification of jurors in this district. . .. Where has this practice been hidden that a man of intelligence didn’t know it? Why has it been buried in the oblivion of a hundred years to be dug out for the trial of Daniel E. Sickles?”

Dan, secretly gratified to have Stanton behave in this terrierlike way, showed no emotion in the dock. But he knew that pressing on Stanton was the sense of what he was up against with Ould and the judge. They thought of Washington, for the purposes of this trial, as part of Maryland and thus subject to Maryland law. Ould himself was a states’ rights man. He would ultimately become a Rebel officer on that principle, and be given charge of the exchange of Union prisoners for Confederates. And Judge Crawford, like much of the D.C. bench, tended to see the
United States, for which he worked, as a mere pooling of residual jurisdiction not yet claimed by any states. Crawford thus believed that Maryland law prevailed here, and once again upheld Ould.

At the end of the day, twelve jurors had at last been sworn in. Two of them were D.C. farmers, four were grocers, one described himself as a merchant, another as a gents’ furnisher. A shoemaker, the tinner Kelley, a coach maker, and a cabinetmaker filled out the roster. Most of them fitted the American ideal of the self-made man, to the extent of a minimum $800. Going back to his cell that night, Dan knew the intimate features of those who would decide whether or not he would hang.
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The fourth day of the trial was the subject of public anticipation, since Robert Ould would make his address to the jury, and those wonderfully titillating issues murder and adultery would at last be broached. Dan’s assiduous lawyers may have suspected something of their client’s contact with Teresa but would have been horrified to know that he had written yet again to his wife, and in such terms as to evoke a response that could have been close to fatal to the defense.

“I cannot tell you, dear, dear Dan,” Teresa wrote within a few days of receiving Dan’s further correspondence, “how much pleasure your letter written yesterday gave me. I am so glad the flowers were acceptable. You are not wrong in supposing that I am pained by your silence, and equally pained at receiving the letter you sent me.” In it, Dan had defended some of his allies, such as Butterworth, Wooldridge, perhaps even Stanton and Meagher, and such value did he put on them that it seemed he wanted her to agree with him that they were all jolly decent fellows. But as dependent on kindness from Dan as she now was, Teresa would not submit and accept that all his friends were seamlessly good men. After all, some had mischievously made known the details of her confession, which he had shown them. It was an index of the weight he put on his friendships with other males that he should have sought to set her such a test. “You know, Dan,” she told him, “I never affect to love or dislike a person—and I am, in a certain way, as frank as any breathing creature. You say if I can hate those whom you love and who love you
then it is vain for you to appeal to me again on such a subject. Dear Dan, it would be impossible to love those who hate me and have injured me, have called me every foul name, as I believe it would be to have you love me again or even ever wipe out the past.” She continued in the same forthright vein. “You say that any object you have loved remains dear to you. Do I now stand upon a footing with the other women I know you have loved? I have long felt like asking you what your love affairs have been—love of the heart, or love of their superior qualities such as you have often informed me I did not possess, or attraction of face and form, or an infatuation? If during the first years we were married my conduct did not keep you true to me, can I suppose for a moment the last year has? Ask your own heart who sinned first, and then tell me, if you will.”
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Obviously, Dan needed to steel himself to hear Ould’s address to the jury, which would attempt to darken him by extolling the right of the eminent Mr. Key to go on living unmolested. Sickles’s pernicious act had been committed against Key in the soft gush of Sabbath sunlight. Key, unarmed and defenseless, had used the feeble means that were in his power to save his life. Whereas the prisoner at the bar came fully armed “to this carnival of blood. . .. He was a walking magazine.” Ould argued that Dan had selected his weaponry with care, and had provided himself with “the temporary armory” of a “convenient overcoat on an inconveniently warm day.” Against this moving battery, said Ould, the victim “interposed nothing, and had nothing to interpose,” except his physical strength, his presence of mind, “a poor and feeble opera glass . . . and last of all, the piteous exclamations which, however they might have moved other men, in this case, let me state, fell upon ears of stone.”

As chief prosecutor, Ould declared himself ready to prove that not only was the deceased unarmed, but Dan knew him to be so. He knew it when the first shot was fired, and certainly must have known it when he stood over his victim, “revolver in hand, seeking to scatter the brains of one who had already been mortally wounded in three vital parts, and whose eyes were being covered with the film of death.” This was not a
murder committed on momentary impulse. So deliberate had Dan been that when he was stopped by bystanders, he had been trying “to add mutilation to murder.” Murder was the killing of a human being with malice aforethought, manslaughter the killing of a human being without malice aforethought. Obviously, Dan Sickles had malice aforethought. These matters were established in common law, said Ould. No degree of innovation had ever suggested that revenge should be either a justification or a palliation of the crime of murder.

The crowd in court looked to Dan to see how he was standing up to these evocative accusations, but he showed no tremor. He, his lawyers, and faithful George Sickles were no doubt pleased that Ould did not foreshadow evidence that would show the double standards by which Dan lived, and that could have been used to diminish the idea of extreme provocation by Key. Why he did not do so may have been a reflection of nineteenth-century popular moral nicety about matters of male adultery, or may have been the result of pressure, implied or explicit, from powerful Democrats, perhaps even from Mr. Buchanan. Ould simply asked the jurors “to proclaim to the four quarters of the now listening world that there is virtue left yet in a jury, no matter how high the position or lofty the pretensions of the offender.”

Thus, as the new DA sat down, there must have been some relief at the defense table. James Topham Brady deferred the defense’s opening, and the first prosecution witness was called. James H. Reed, a wood and coal merchant, told a hushed court that, when strolling on Pennsylvania Avenue, he had seen by Lafayette Square the confrontation between Dan and Key, had seen Key running around Reed in his attempt to get away from Sickles and then slowly throwing something through the air. Most damagingly, Mr. Reed said that “no shot was fired when the parties were not facing each other. Their faces were toward each other on the occasion of each shot. . ..” The prosecution was pleased to hear this said, since it meant that at each stage of the killing, Key’s stricken and pleading face was visible to Dan. Reed also helped damn Sickles by saying that the shortest distance between him and Mr. Key during the last shot and the final misfire was only about two or two and a half feet. “Key
fell on his side and elbow with his face toward Sickles.” The district attorney had Mr. Reed repeat and confirm that distance—the lethal two or three feet. Dan’s counsel and his father kept a sharp eye on him now, wondering if Reed’s memories of the fatal Sunday would unsettle him. But still he gave no sign of being affected. It was obvious that he was not ashamed of the scene in the square.