Archive for February, 2009

More News You Missed

February 25, 2009

From the Santa Fe New Mexican of February 20, 2009:

During a debate in the New Mexico Legislature about a bill which would have required voters to show a photo ID before voting, a former county clerk said,

“New Mexico has a proud history of not disenfranchising our dead at election time.”

The bill failed.

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The Murder Trials of Abraham Lincoln, Part III

February 23, 2009
Lincoln in June, 1860

Lincoln in June, 1860

We’re at the last episode of the Anderson trial in which Abraham Lincoln appeared as one of six lawyers for the two defendants.  (The two prior episodes are here and here.)At the end of our last episode the prosecution had rested and it was time for the defense to put their witnesses on the stand.

The prosecution did not get to use all the evidence it had.  Witnesses were prepared to testify that they had seen Mrs. Anderson together with Theodore, who you will remember was her husband’s nephew, on several occasions.  One witness was prepared to testify that he had seen Mrs. Anderson and Theodore out walking one day in a field.  He saw them sit down together in the field but could not see them again until they stood up some time later. Another witness saw the two of them duck into an empty house three separate times in February of that year.  Others saw the two of them standing at the Anderson fence talking during the month before the murder and after Theodore had been evicted from the Anderson house.

But the jury did not hear that evidence because of some very clever lawyering on the part of the defense lawyers.  We are not certain which of the lawyers made the argument about keeping that evidence away from the jury — the stenographer hired by the local paper to cover the trial took down almost every word of the trial but did not identify a single speaker — but it is no stretch to think that Lincoln, because of his credibility with Judge Davis, made the argument.

Here it is in a nutshell: In 1856 adultery was a crime in Illinois.  But neither Mrs. Anderson nor Theodore were charged with adultery; they were charged with murder.  It would unacceptably confuse the jury and prejudice the defendants to admit evidence of some other crime with which they were not charged.

The prosecution, not surprisingly, argued that the evidence should be heard by the jury because it was evidence establishing the motive for murder.  Besides, the judge was going to instruct the jury about the law and they would not be confused at all.

Judge Davis bought the defense argument and the jury did not hear the evidence.  All the prosecution had at the end was the evidence of the carpenter that Theodore watched the Anderson house from the carpenter shop and the evidence of the photographer Smithers about the two photos of Mrs. Anderson, one of which was found in Theodore’s trunk — along with the bottle of strychnine.

The defense then brought on several witnesses all of whom testified that they had never seen the slightest discord between Mr. Anderson and Mrs. Anderson and that they seemed to be a perfect loving couple.  None of these witnesses ever saw anything that made them suspect any but marital happiness and fidelity.  Another testified that, from his observations, George was fond of his nephew and they got along even after Theodore’s eviction.

House in Lincoln's Springfield Neighborhood

House in Lincoln's Springfield Neighborhood

George Anderson’s sister and a different nephew, Charles, combined to give Theodore an alibi.  The sister testified that she, Charles and Theodore were boarding in the same house.  On the night of the murder, she testified, Theodore came home about 9:30.  Charles corroborated that testimony and further said that Theodore did not leave again until after the hue and cry went up about the murder. Both said that Theodore could not have left without them knowing it.

The lawyers then gave three and a half days of closing arguments.  Today, some judge probably would have reduced that to half an hour for each side.  That is because judge’s today have much shorter attention spans and so assume juries do too.  They are wrong but it is the judges who control trials.

But the arguments boiled down to the defendants pointing out the lack of any motive for the murder.  This argument, remember was available to them because they successfully had kept the jury from learning about most of the evidence which would have established a motive.  The prosecution focused on all the other incriminating evidence and did what they could with Smithers’ and the doctors’ testimony.

Lincoln's Springfield Home

Lincoln's Springfield Home

One thing did happen during the arguments which may have made a difference to the outcome.  During the middle of the trial another famous Illinois lawyer arrived in Springfield and was immediately enlisted by the sole prosecution lawyer, McWilliams, to help him prosecute the defendants.

His name was Usher Linden and he was well-known throughout the state as a top trial lawyer with many successful prosecutions under his belt.
It was not uncommon in those days for trial lawyers to involve themselves in trials they knew little about.  Trial lawyering places a premium on the ability to think on one’s feet, react quickly, and learn quickly.  In modern America, we have let the practice slide but English barristers still try cases with much less familiarity than American lawyers.  In those far off days, many opportunities arose for American lawyers to behave like English barristers.

Linden, in his argument, called the jury’s attention to Theodore’s behavior during the trial.  Linden thought Theodore acted guiltily throughout the trial, always whispering to the other defense lawyers, staring at the witnesses, writing notes, etc.  Linden told the jury this behavior was exactly what someone would suspect from someone guilty of murder.

While making this argument Linden, who you must remember did not live in Springfield and who arrived in the middle of the trial, pointed at Theodore repeatedly.

Only he was mistaken.  He was pointing at one of the defense lawyers, not Theodore.

The jury acquitted both defendants.

No one else was ever charged with the murder of George Anderson.

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We’ll return to this series with the more famous murder trial of Duff Cooper, in which Lincoln acted as the sole defense lawyer.  In the meantime though, The Lone Truther is saddling up to ride again and there is some news you missed.

The Murder Trials of Abraham Lincoln, Part II

February 17, 2009
Lincoln in 1860

Lincoln in 1860

Last time we left poor George Anderson dead in his backyard.  The doctors who had been attending him before his violent backyard death remained suspicious of strychnine poisoning even when they  arrived at the scene.  With a gruesomeness that offends modern sensibilities, they hauled his body into his own dining room and immediately commenced an autopsy over the screamed objections of the distraught Mrs. Anderson.  Even though it was obvious that the cause of death was a blow to the head, the doctors examined the contents of Anderson stomach where they found what they were certain was strychnine.

This was not good news for the new widow who, you’ll recall, had insisted for weeks that she be the only person to feed her husband.

On the other hand, she could not have wielded a club with enough force to cave in Anderson’s skull.

It did not take the local authorities long to find someone with that much strength.

For some months prior to the murder, the Andersons had boarded in their home George’s nephew Theodore.  At the end of March, only six weeks before the murder, George had ordered his nephew to move out which Theodore did almost immediately.  Theodore, 23 years old at the time and a recent arrival from New Jersey, had worn out his welcome with George by hanging around the house all day long instead of going out and finding work.

As we’ll see shortly, there were reasons to suspect young Theodore.

He and Mrs. Anderson were charged with murder.

By the time of the trial, Abraham Lincoln had declined an opportunity to assist in the prosecution of the two but had accepted a role as one of six defense lawyers.  At the beginning of the trial, the prosecution was represented by just one, Amzi McWilliams.

Presiding over the trial was Judge David Davis, the Illinois circuit court judge before whom all of the defense lawyers had appeared hundreds of times.  Lincoln especially had credibility with Judge Davis, who often appointed Lincoln as pro tem judge on cases that Davis could not hear for one reason or another.

Lincoln also respected Judge Davis.  When he was President he put Davis on the United States Supreme Court.

Justice Davis

Justice Davis

Mrs. Anderson and Theodore were charged with conspiring to murder George.

After Theodore was evicted by his Uncle George, he traveled to Jerseyville in southern Illinois and then returned to Springfield. While in Jerseyville Theodore twice visited the local doctor there.  That was doctor John L. White who came to Springfield for the trial and told the jury that he kept a bottle of strychnine in his office and that the bottle was gone.  There was a bottle of strychnine in the courtroom and Dr. White identified it as the same kind of bottle with the same label as his.  The cork stopper was different and quite a lot of strychnine was missing, if it was his bottle.

The bottle of strychnine in the courtroom had been found in Theodore’s trunk.

According to a sheriff’s deputy who testified, Theodore wasn’t upset at the news about the strychnine, saying that he had bought it in New Jersey before  moving to Illinois and that it was for his hands to prevent skin disease.  In minuscule amounts, strychnine was occasionally used for skin care but it is absorbed through the skin so even the smallest amount is poisonous and the bottle was half-empty; enough, according to Dr. White to kill a couple of hundred people.

Dr. Fowler,the second Springfield doctor, who treated George during his spasms and fevers, testified that he told George that something was wrong and that he, the doctor, was going to find out what.  Mrs. Anderson heard him say that to George and it was immediately after that George’s condition improved so much that he was able to return to work and went out and bought himself a new set of clothes.

The courthouse in Springfield

The courthouse in Springfield

No witness saw anyone strike the deadly blow nor had any witness seen anyone lurking about just before the murder. Someone had seen, however, Mrs. Anderson talking with an unknown man during the day before the murder.  That man was not identified during the trial.

Theodore, it turned out, was at George Anderson’s house right after the murder.  That night, while standing at the back door, he told a witness that it looked to him like George had fallen and hit his head on the steps out the back door.  The witness thought that a little strange because Anderson’s body was a full five feet away from the steps when it was found.

John Armstrong, a carpenter whose shop looked out on the Anderson’s backyard, had seen Theodore many times.  Theodore, according to both Armstrong and one of his employees, hung out at the carpenter’s shop a lot and seemed to watch the Anderson home, paying careful attention to Mrs. Anderson anytime she was in the yard.  Both said that Mrs. Anderson paid no attention to Theodore on those occasions.

But Theodore and Mrs. Anderson had been together before.  The local photographer, a man named Smithers and isn’t that a wonderful name for a photographer? — told the jury about Theodore and Mrs. Anderson visiting his studio in early May, only a couple of weeks before the murder.  He had made two photos of Mrs. Anderson, one in a light dress and one in a dark dress, taken later because she did not like the first photo.

The photo of Mrs. Anderson in the dark dress had been found in Theodore’s trunk, the same trunk containing the bottle of strychnine.

Smithers also told the jury that only a few days before the murder, but after he had photographed his wife twice, George Anderson told Smithers that he wanted him to take photos of his wife and family.  Anderson did not seem to know that Smithers had just taken two photographs of his wife.  Smithers did not tell Anderson.

The prosecution rested and so must we.  The end of the Anderson trial comes in our next installment of the Murder Trials of Abraham Lincoln.

Lincoln’s Murder Trials, Part I

February 12, 2009
First Known Photograph of Lincoln

First Known Photograph of Lincoln

This week marks the 200th anniversary of the birth of Abraham Lincoln and just about everybody has written a book about him to coincide with the event.  Commentators have written op-ed pieces and bloggers have blogged, so it is next to impossible to find something to say that hasn’t already been said.

So I am going to skip his presidency, assassination, and mythology and write a short series about his murder trials.

Lincoln was a skilled, successful lawyer.  By the time he was elected president he had handled more than 5000 cases, had argued more than 300 in the Illinois Supreme Court and one in the United States Supreme Court.  He represented the largest railroad in Illinois. Financially well off, he was one of the best known and best lawyers in Illinois.  Since his early twenties, when he first ran for public office, Lincoln had married his legal career to his political career and, by the mid 1850s, was doing very well at both.  Already he had served several terms in the Illinois legislature and one term as a United States Representatives, during which he was a prominent critic of President Tyler and the Mexican War. There was talk of his running for the United States Senate in 1856.  And people all over Illinois sought his legal advice.

Lincoln Home with 1856 Second Story Addition

Lincoln Home with 1856 Second Story Addition

He accepted about every kind of case that came his way, including the occasional murder trial.

The fundamentals of a criminal trial 150 years ago weren’t much different than today.  A judge presided, a jury decided, witnesses were called to the stand, sworn in, and examined by the lawyers, the jury was instructed about the law and then, retired to render their verdict.

Some things were different. No women participated unless as a witness or defendant. Trials were less bureaucratic than today. For instance, now a complete record of every trial is made.  Trials today are either tape recorded or transcribed into a written record.  Any document or thing admitted into evidence is kept.  And juries receive many pages of instructions about the law.

Because verbatim transcripts were rarely kept, the historical record about most murder trials is scant.  For instance, Lincoln is said to have represented a woman in a murder trial that wasn’t going well.  During a break, while he was conferring with her in a side room of the courthouse, she asked Lincoln for some water.  Lincoln responded by telling her that he understood the water was very good in Tennessee.  He then left the room and his client climbed out the window and disappeared.  Or so we are told.  No record of the trial exists so the story may be myth.

But we do know a fair amount about a couple of his murder trials.

On April 22, 1856, local Springfield, Illinois, blacksmith George Anderson contracted a mysterious illness.  When Dr. Rufous Lord arrived at the house, Anderson’s wife took him to the couple’s bedroom where Dr. Lord found Anderson in bed with a high fever and severe abdominal cramping.  For the next week or so the symptoms intermittently stopped, then returned.  On May 1, Dr. Lord found Anderson, an otherwise healthy 36 year-old man, vomiting and in great pain.  Spasms caused the man enormous pain.  Dr. Lord was mystified.

The illness continued until May 5th, when Anderson was improved and able to return to work.

But his recovery didn’t last.  The next day, Anderson’s symptoms were worse than ever.  Then, for a day, he improved but by the next day, the symptoms recurred and were much worse.  The spasms were so bad that all Dr. Lord could do was give Anderson morphine for the pain.

ii_b_110By now both Dr. Lord and his partner — a Dr. Fowler — had thought of strychnine as an explanation for the illness. Dr. Lord, even gave some to a stray dog which, before it died, exhibited exactly Anderson’s symptoms. Neither thought that Mrs. Anderson could be poisoning her husband even though she insisted on feeding Anderson all his meals while he was ill.  Apparently they told no one of their suspicions.

Presumably, both doctors were relieved by mid-May, because Anderson had recovered.  He was back at work and felt much better.

Then, during the night of May 15, Anderson awoke, possibly ill again, and headed outside to the family’s outhouse.  In the yard somebody bashed him over the head, killing him instantly.

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We’ll be back next time with the trial.

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The daguerreotype above is the earliest-known photograph of Abraham Lincoln, taken at age 37 when he was a frontier lawyer in Springfield and Congressman-elect from Illinois.  Here is today’s New York Times blog The Lede discussing the photographs of Lincoln.

For current  political  commentary  see this article from the New York Times.

Here is a story about the celebrations today in Washington, D.C.

And another.

And here is an article about the Lincoln exhibition in the Library of congress which opens today.  The exhibition will travel for the next two years to various cities in the U. S.

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Today is also the 200th Anniversary of the birth of Charles Darwin.  Olivia Judson, as usual, writes well and respectfully about the great scientist.  Here she is in today’s New York Times.

Cheating at the Grand Canyon, Part II

February 9, 2009
The "Flood" of 2008

The "Flood" of 2008

As we discussed last time, the Glen Canyon Dam, a/k/a the Damn Dam, has not been good for the Grand Canyon and many of its native inhabitants.  At the end of his long, distinguished career as a United States Senator, Barry Goldwater was asked what his biggest regret had been.  Without hesitating, Goldwater responded, “Voting for the Glen Canyon Dam.”

A Cottonwood drowned in Glen Canyon Photo by Eliot Porter

A Cottonwood drowned in Glen Canyon - Photo by Eliot Porter

Not only was Glen Canyon drowned, the interior of the Grand Canyon was neutered.  Seasonal floods no longer scoured its beaches, deposited life-giving nutrients in sediments; instead the absence of flooding allowed invasive species such as tamarisk to thrive, and extirpated at least four species of fish, with a fifth, the Humpback Chubb in grave danger. All the muskrats and river otters in the Grand Canyon died. At least eighty percent of the sediment that would normally deposit in the Canyon piles up behind the dam.  (It is that sediment that will eventually allow the river to overwhelm the Damn Dam.) The water that is released from the dam comes from the bottom of Lake Foul, er — Lake Powell; water which is cold.  Non-native fish thrive in the colder downstream water but the natives do not.

Lake Foul, er - Lake Powell

Lake Foul, er - Lake Powell

The water impounded behind the dam is released in a daily, fluctuating flow which can vary in amounts up to 15,000 cubic feet of water per second.  Known as MLFFs — no, not MILFs — MLFFs, “Modifed Low Fluctuating Flows” — these periodic releases of water from the dam are timed to provide the cheapest electricity possible for electrical customers in six states. It is these dam operations that endanger the fish, clog the beaches, and allow invasive species to thrive downstream in the Grand Canyon.  Natural periodic floods necessary to build beaches for native plants and animals and to spark seed germination have been eliminated by MLFFs.

There is an alternative, SASFs.  (Seasonally-Adjusted Steady Flows) Steady flows, while not affecting the total amount of water released, would avert, the worst affects of the dam.  But the hydro-power interests are opposed, believing that switching to steady flows would result in higher electrical costs. (A disputed matter.)

The Damn Dam is operated by the U.S. Bureau of Wrecklamation, a division of the Department of Interior.  In March of 2008, the Bureau ran a 60 hour high flow out of the dam.  The results of the experiment were clear: Beaches were rebuilt, tamarisk removed, and new sediment deposited.

Hance Rapid from the South rim - Grand Canyon

Hance Rapid from the South rim - Grand Canyon

But that is it for the next five years at least.  For the next five years daily flows will fluctuate based solely on the desires of the sellers of electricity. MLFFs are mandated until at least 2014.

The Grand Canyon Trust recently sued the Bureau of Reclamation because of this policy, alleging that it violates the Grand Canyon Protection Act, a law that requires the bureaucrats who operate the dam, to operate it in a manner which does not impair the Grand Canyon.   Barry Goldwater’s successor, Senator John McCain was one of the sponsors.  On the floor of the Senate, he said, “The erratic release of water from the dam to meet peak electric power demands [has] destroyed Colorado River beaches, and harmed other natural, cultural, and recreational resources.  Somewhere along the line, we forgot our obligation to the canyon and to [t]he future generations for whom we hold it in trust.  In response, I introduced the Grand Canyon Protection Act to reorder those priorities—to stop the damage and legally require the dam to be operated in a manner which will protect park resources.”

Finally, we get to the cheating.

The Department of Interior’s lawyers responded to the lawsuit, denying everything.  In the course of responding, those lawyers wrote briefs to the judge in the case and signed their names.  Lawyers are required to have both a subjective and an objective belief that court documents they sign are true.  Interior’s lawyers denied that MLFFs damage the Grand Canyon.  Never mind that the Fish and Wildlife Service of the same United States government concluded in 1994 that such flows are killing the chub.

Colorado River from the Escalante Trail - Grand Canyon

Colorado River from the Tanner Trail - Grand Canyon

The Superintendent of the Grand Canyon — Steve Martin — is not amused.  He wrote a memo which subsequently found its way into the public domain.  You can read the entire memo here, if you choose.  In the meantime, here is a summary.

Mr. Martin wrote to Mike Synder, the Intermountain Regional Director of the United States Department on Interior on January 15, 2009.  In the memo, Mr. Martin demolishes any idea that Interior’s lawyers were telling the truth in their court papers.  Noting that the court documents imply that the National Park Service — which operates the Grand Canyon — agrees with an environmental assessment holding that MLFFs don’t do any harm, Mr. Martin baldly writes, “. . .this is not true.”

The five-year experiment, “… will significantly impair Grand Canyon resources.”

The government’s brief as presented continues to misinterpret key scientific findings related to the humpback chub, status of downstream resources in Grand Canyon. . . Significant misinterpretations of our involvement, the scientific findings, the Grand Canyon Protection Act, Park Goals, and future program oversight are found throughout the document.”

The Environmental Assessment, according to Superintendent Martin, is based in a “lack of scientific veracity” that “continues to misinterpret key scientific findings related to the humpback chub [and the] status of downstream resources in the Grand Canyon”; fails to address National Park Service, “concerns that actions under the EA’s five-year plan would impair the resources of Grand Canyon”; and “falsely suggests that the NPS concurs with the five year plan.” Never, according to Superintendent Martin, did NPS agree to a five-year program that lacks more high flows and seasonal steady flows.

He concludes, “In short, this is perhaps the worst EA I have seen for an action of this importance.  The EA’s lack of alternatives, the mistreatment and disregard of science, the lack of public involvement, the signing of a FONSI amidst the controversy and unresolved issues — all these actions are in conflict with standard NPS management practices and constitute poor government in general.”

In other words, the government’s lawyers lied and the Department of Interior cheated.

Even Aristotle would not be amused.

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For more information, here is the Grand Canyon Trust’s page about Colorado River water.

Cheating at the Grand Canyon, Part I

February 4, 2009
Aristotle

Aristotle

Aristotle famously held that women had fewer teeth than men.  But, despite being married twice, he never bothered to ask either of his wives to open their mouths and let him count.  In this instance, the recently concluded Bush Administration resembles Aristotle; dogmatically clinging to scientific ignorance, both refused to verify a cherished fantasy.

The chief difference?  Aristotle’s fancy was harmless.

Now that the Bush Administration has gone home, news of its wilful scientific ignorance is likely to begin flowing like rivers during Spring runoff.

Speaking of such runoff, they cheated at the Grand Canyon.

To see how, we’ll need to make quick stops for geology and legal refreshers.

Much of the snow melt on the western side of the Rocky Mountains ends up in the Colorado River.  For three million years or so that water cascaded unvexed to the ocean, cutting a channel into the uprising earth which we know as the Grand Canyon.  Every day and every year the river kept the bottom of the canyon clean and healthy.  From time to time, obstacles such as lava dams, would be thrown up in the way of the river but they never lasted long.  The river possessed immense power and immense loads of red earth. Put an obstacle in its way and the river mowed it down.  One such lava dam was more than 2,000 feet high.  The river got rid of it in three thousand years or so; a period of time which is, to a river existing in deep geologic time, like a 16th note in a Mozart symphony is to a musician.

But recently humanity came on the scene, evolved, and got the idea of building dams on the Colorado River.  The first, Hoover Dam, did not affect the Grand Canyon because it is too far downstream.

The Damn Dam

The Damn Dam

But the Glen Canyon Dam, a/k/a the Damn Dam, did. By creating a large pond, a/k/a Lake Powell, behind the dam and drowning the sublime Glen Canyon, humanity temporarily tamed the river, although it won’t last. It will take the river less time to destroy the man-made dam than it took to wipe out the monstrous lava dams. That’s assuming that Hayduke is really dead. Or that no one calls in an air strike first.

But for now the river is tamed, controlled by people who operate it to produce electricity and no longer able to scour the floor of the Grand Canyon.  Specifically, it is no longer allowed to flood in the spring and its daily fluctuations are timed solely for the convenience of power companies.

This has had and continues to have severe adverse ecological impact downstream of the Damn Dam.

Now for the law refresher.  Major projects undertaken by the government require environmental impact studies. No longer can the government fire up the bulldozers or turn off the flow of water down a riverbed without first studying the ecological impacts of the proposed actions or inactions.  Environmental assessments (EAs) must be performed. The assessments are supposed to be based on the best science available, unhindered by ideological interests.

But not in the Bush Administration’s Department of Interior, the one in which our government paid regulators were caught smoking dope and having sex with oil company representatives.  In that Department of Interior, business trumped science.

For instance, we have known for sometime now that the Grand Canyon needs the occasional flood.  The floods keep the river beaches clean, remove invasive plants trying to grow on those beaches, and keep the riverbed itself clean.  Innumerable plant and animal species in the Canyon need those floods.

Humpback Chub

Humpback Chub

One of those species is the lowly humpback chub, a fish species that lives no where else but the desert canyons of the Colorado and its tributaries.  No one really cares about Grand Canyon chubb, per se.  Especially evolved to thrive in white water rapids and swift currents, it is being extirpated in the Grand Canyon because the tamed Colorado is turned off and on at the Damn Dam solely for the convenience of power companies serving Phoenix and southern California.  Water is released at times of high human demand for electricity and slowed or stopped at times of low human demand,  the need of water for other beings usually not considered.

The chub, as a species is about three and a half million years old.  (For comparison, we are about a third as old.)  The chub grows, over its thirty year life span, to about 20 inches in size.  The chub’s body is highly streamlined with almost no scales.  Water is directed by the hump and dorsal fin enabling the fish to maintain its position in the swift currents of the Colorado. First listed by the Fish and Wildlife Service as endangered in 1964, it now has full protection under the Endangered Species Act.

Well, not quite, as we shall see next time.