Guest Blog: Historical Mystery Writer, Mary Reed

Juries aren’t universally involved in settling court cases but many aspects of the trial experience are, and one of them is the matter of witnesses.



bookImageSmall_mini In the Byzantine Empire, which we explore in our historical mystery series, oral wills were legal provided certain requirements were met, most importantly a set number of witnesses. It was this that caught our attention and formed the basis of the plot for Five For Silver, published by Poisoned Pen Press in 2004. Set during the 542 CE Justinianic plague, our protagonist John’s investigations begin after his servant Peter relates a vision of an angel, who revealed Peter’s old military friend Gregory had been murdered — as indeed proved to be the case.


In order to find the culprit John begins to trace Gregory’s movements, discovering that not long before Gregory died he had been among those who witnessed an oral will made by wealthy shipping merchant Nereus on his deathbed. The necessary seven witnesses had been hastily gathered together by Archdeacon Palamos, who was visiting Nereus to offer spiritual comfort. Due to the unusual circumstances, the assembled men form a remarkably motley band. In addition to the archdeacon himself, there was Gregory, who was there to see Nereus on a matter of business, and the courtier Crinagoras, who had escorted Gregory through the plague-ridden streets. There was also Aristotle, a purveyor of somewhat suspect oracular devices who had brought another prophetic artifact he was hoping to sell to Nereus. Nereus’ house steward was also chosen as a witness, but since he was ill his place was taken by another of Nereus’ servants, Cador. There was also a holy fool who happened to be passing by the house at the time so he and Byzos, the driver of the cart he was riding in, were also conscripted as witnesses. Despite the solemnity of the occasion, the holy fool insisted in dancing with the archdeacon although this was not the strangest event that occurred in the course of John’s quest, which was exacerbated by the plague’s frightful death toll. For it was entirely possible any or all of the remaining six witnesses sought might have fled the city or be dead themselves.


One of the most far reaching legacies of sixth century emperor Justinian I, ruler of the Eastern Roman Empire, namely was his codification of Roman law. The resulting Corpus Iurus Civilis, or Body of Civil Law, included the Codex Justinianus (529), a compilation of then current law; the Pandects (533), the writings of generations of Roman jurists; and the Institutes (535), which included extracts from the previous two works and were intended as a kind of text book. Title X of Justinian’s Institutes was devoted to wills and inheritance. Among other matters relating to this topic, it provided guidance on dealing with persons incapable of making a will, disinheritance, heirs, voided wills, legacies, and codicils. J. B. Moyle’s 1913 translation of the Institutes states that to be valid, a will had to be executed at one time in the presence of seven witnesses who must sign their names and affix their seals to the document. They could, however, all use the same seal or one belonging to someone else. Persons barred from acting as witnesses included women, slaves, those who were deaf and dumb, and lunatics. Furthermore, a will could not be witnessed by an heir and certain relatives of the heir. The Institutes stated it did not matter on which substance a will was written, and it was also legal to make an oral will by declaration before seven witnesses. Moyle translates this important passage as follows:



  • When, however, one wishes to make a will binding by the civil law, but not in writing, he may summon seven witnesses, and in their presence orally declare his wishes; this, it should be observed, being a form of will which has been declared by constitutions to be perfectly valid by civil law.

This type of will is known as a nuncupative will, from the Latin meaning roughly name-to-take. Title XI of the Institutes provides for oral wills executed by soldiers, exempting them from the usual requirements under which wills were normally made “in consideration of their extreme ignorance of law”. However, these oral wills must have been made while the soldiers were on active service. In other circumstances they could not make a will in this fashion.


The notion of oral wills has persisted for centuries. During the two World Wars British soldiers about to be sent to the fighting lines or who were already there could write their wills using forms provided by the various service branches or use a form in their pay books, assuming they had not already made a will in civilian life. According to he National Archives of Scotland, the commonest kind was the unwitnessed will written on the soldiers’ pay book forms. A nuncupativewill was accepted if none of these documents were available, and in such cases the War Office accepted statements from fellow soldiers, the deceased’s family, and friends as to what the testator had said were his wishes. The Scottish archive has examples of the paperwork associated with this type of will, a sample of which can be viewed at http://www.nas.gov.uk/guides/soldiersWillsExample4.asp . Letters in which the soldier stated his wishes as regards his property were also considered nuncupative, but were more commonly seen in the First World War than the second.


Justinian’s codification played an important role in the development of civil law in many European nations, beginning in the late eleventh century. From there the civil law spread to the colonies of continental countries. Here in the US Louisiana’s legal system includes elements of civil law based upon Justinian’s code through its status as a former French territory. Not all US states accept oral wills although some permit them in special circumstances. However, generally speaking they must have been made on a person’s deathbed or by members of the military or marine services while serving in an armed conflict. In addition, a specified number of witnesses are required and the testator’s wishes must have been written down within a set time after they were made, with application for probate filed within a certain period after death. In some cases there are limitations on bequests made in this fashion, such as a stated amount for the total value of personal property. States that have or had statutes allowing for oral wills include New York, Ohio, Missouri, Oklahoma, and Washington State. The ability to make this type of will is recorded before the founding of the United States. Two examples of colonial oral wills dating from the 1750s are briefly noted on the Fredericksburg Genealogy Regional Society’s website at:



http://www.fredericksburggenealogy.org/Newsletters/2004%20%20FRGS%20nl/FRGS_2004Fall_RTF.rtf


In both these cases, legacies were confirmed on oath by two witnesses.



—MR–

THE BIO NOTES:

The husband and wife team of Mary Reed and Eric Mayer published several short John the Eunuch detections in mystery anthologies and in Ellery Queen Mystery Magazine prior to their first full length novel, One For Sorrow (1999). Their protagonist’s adventures continued in Two For Joy (2000), a Glyph Award winner in the Best Mystery category. Two For Joy also gained an Honorable Mention in the Glyph Best Book Award list and in addition was a finalist for the IPPY Best Mystery Award. Three For A Letter (2001), Four For A Boy (2003), and Five For Silver (2004) followed. The latter two novels were nominees for the Bruce Alexander History Mystery Award. Five For Silver won the 2005 Glyph Award for Best Book Series. In June 2003 the American Library Association’s Booklist Magazine named the John the Eunuch novels as one of its four Best Little Known Series. Six For Gold appeared in 2005 and Seven For A Secret in 2008. They are currently writing the as yet untitled next novel in the series. Their website can be viewed at http://home.epix.net/~maywrite/

O.J. Jury’s Daily Dose

1) Surely the O.J. Jury is More Comfortable with Judge Glass


The judge has toned down her “instructions” to the lawyers. If I were in the jury box, I’d now feel much more sympatico with her attempts to keep the witnesses and the lawyers on track. Not only that, now that her tone is calmer I notice her nice eyes and lovely hands with long fingers. For some reason, I notice people’s hands and feet almost as soon as their eyes. Hands are very expressive. The shoes on a person’s feet tell me a great deal about them, too. (Remember O. J.’s Bruno Maglis?)


2) Apparently the Goldman’s Lawyer is Out


Judge Glass ruled yesterday that the lawyer representing the Goldman family could not testify about the property in question in this trial. This ruling will greatly help the jury reach a verdict. If the prosecution wishes to argue that the ownership of the property stolen from the Las Vegas hotel room is irrelevant, then it is also irrelevant that the Goldman family is claiming to own some of it.


The real reason the prosecution wanted this gentleman to testify, though, was to remind the jury of O. J. Simpson’s past and of his many victims. But courtrooms and trials aren’t about vengeance for victims. A case is never The Victims versus The Defendant: trials are The State versus a Citizen.


I truly wish that victims’ personal tragedies didn’t become such a big part of most sensational trials. The media does this, not the law. And I can’t think of a single victim who benefited from the resulting circus. A wise victim will hide from the cameras and once the trial is over will let go of the past. Nothing can change the past. What happened, happened. When a person is victimized, the only way to heal is to let go of the victimization. The media are cruel and self-serving to keep victims in the spotlight their whole lives.


3) The Bible-Thumping Witness


Yesterday one of the sleaziest characters in this case testified: Walter Alexander. He may even be on the stand today. But he reduced my interest in this case. He actually had the gall to bring a Bible into the witness stand with him. And he testified that he only turned state’s evidence because God spoke to him and told him to.


This guy may think the jury will fall for this, but I know otherwise. During my jury experience, something similar happened. When a prosecution witness made a statement that was obviously untrue, and obviously intended to sway the jury, it had the opposite effect from what was intended. I won’t go into details, but the whole jury agreed the statement was ludicrous. We all knew why he said it. Instead of convincing us of the prosecution’s side, we ultimately decided that no one would have bothered to argue about it if it were true.


I’m not sure I want to waste my time with this trial now.

Do Las Vegas Jurors Have More Fun?

I have long assumed that most jurors would prefer not to be there, that very few people relish the idea of confronting criminals, crimes, judges, and lawyers up close and personal. From my web-surfing I’ve found ample evidence that even in high-profile trials most people try to be excused from jury duty. But maybe people who live in Las Vegas are different.


I just Googled “juror experiences” and found a lawyer’s blog, http://juryology.com/2006/07/one-jurors-experience.php, with a link to this former Las Vegas juror’s blog post: http://www.bloggingvegas.com/lasvegas/opinion/jury_duty_101-11066.html.


When the TV pundits said that the O. J. Simpson jury didn’t laugh much, I took that as a sign they weren’t having fun. Now, the same pundits are wondering if this will be another case of “jury nullification” because they finally laughed at a star witness.


It seems to me that if a jury would rather not be in court, then they’re more likely to take the situation seriously.  If trials are just another form of entertainment for Las Vegas juries, though, I think everyone in Las Vegas is in trouble–especially O. J. Simpson.


I’ve never been to Las Vegas. I’ve specifically avoided it. I don’t want to be in a place where prostitution is legal because they think it’s a “victimless crime.” (The victim is the prostitute.) So, I won’t make any assumptions about the above blogging juror or extrapolate to the entire community. I don’t know enough to form an opinion.


Assuming that the O. J. Simpson jury is more like a real American jury than that single Vegas juror, I suspect by now they’re fed up. The alleged crimes seem to me to be nothing but the stupid antics of a bunch of “men behaving badly” when no adult supervision was available. This isn’t me (one juror) wanting to nullify the law. Robbery should be illegal. I would never nullify a law against it, no matter who owned the stolen property. This is me (one juror) saying that no matter how you parse the language of the Nevada statutes concerning robbery, armed robbery, and kidnapping the current trial isn’t revealing that these crimes occurred.


If I were on that jury, right now I would have heard that the two defendants are facing life imprisonment, a draconian punishment for a ridiculous “event.” I would know that one of the accusers actually apologized to Simpson for having the property in question and that the other accuser is possibly mentally ill. I would know that most of the prosecution witnesses were threatened with life imprisonment if they refused to testify against Simpson. I would know that neither of the defendants was carrying a weapon during the incident. It would take some very dramatic testimony to incline me to convict the defendants on any but the most trivial of the charges.


And I find O. J. disgusting, and I don’t live in a state that thinks prostitution isn’t a crime against women and children.

O. J.’s Chief Accuser: What He Did Should Be a Crime

And I don’t mean setting up O. J. (which regrettably I do think this idiot Riccio did). I mean getting a book contract without being literate or articulate. Here I am, trying to find an agent for a “one from the heart novel” and I discover all this guy had to do was tell a publisher he had “tapes” of O. J.’s “armed robbery.”


Please, please do not buy this so-called book. Buy a real mystery novel. Try something by Elizabeth George or James Lee Burke or Lawrence Block.

O.J.’s Stuff and A Juror’s Question for the Cop

Yesterday a juror in the ongoing Las Vegas trial of O. J. Simpson asked a question of a witness before he was excused from the stand. The witness was the lead investigator in the case. On cross-examination, O. J.’s attorney had hammered the detective about whether or not he looked into the ownership of the property that O. J. allegedly stole. The detective repeatedly “admitted” that he had not. Several times the witness tried to explain that the actual ownership of property taken in a theft is irrelevant. The defense attorney cut him off each time.


The juror question, in so many words, was, “Do you normally look into the ownership of the property involved in a theft?” The detective answered, “No.”


If I were the Simpson defense team, I would take this as a clear signal that at least one juror understands very well that it is theft even if you are recovering your “own stuff” from someone who is illegally in possession of them. The defense team would do well to drop this blatant appeal for the jury to nullify the theft charges simply because one item was a photograph of his deceased mother. The jury knows this is irrelevant. That’s why the juror asked that question–to send a message to the defense.


So, looking again at the rhetoric of this situation, I would say that the defense has established that the defendant had an emotional attachment to the property and that it wasn’t a theft for value. Fine. Move on. The jury will be much more receptive to the defense’s contention that O. J. was set up. The ownership issue will better resonate for the jury in that context.

If it was entrapment, isn’t the issue of recovering your own property by force irrelevant? (I don’t know. I’m not a lawyer; but as a juror I would be wondering about this. Will the judge instruct the jury on entrapment?)


If I were sitting in that jury box, I would be very bored and irritated at everyone involved. I would have resented the judge’s admonitions that she would “get me” if I ended up on camera after the trial. After all, isn’t she the one who permitted the cameras in the courtroom and even conducted my voir dire in front of the cameras?


I would be very irritated that she said the trial had to be short so that she could take a cruise in October. After all, the jurors have missed work, possibly lost income, and didn’t have cruise tickets in hand when they came to court–or they would have been excused.


And, frankly, while some people may find the judge’s demeanor refreshingly “no-nonsense,” I find her shrill. She seems to be posturing for the cameras. (In fact, I hear she may have been a TV crime reporter at one time.)


I would also be very irritated at the prosecution for over-charging the defendants. As early as the first witness (Bruce Fromong) it must have been apparent to the jury that less than five minutes in his own hotel room did not constitute being kidnapped–and that the prosecution’s “tapes” of the incident were very unclear about the presence or absence of weapons.


We shall see, of course.

Spoilers and Zero-Sum Gamers: I’m beefing up security on this blog

Owing to technical difficulties with people who can’t seem to stand anyone else having a chance to express themselves, I am shutting down trackbacks and comments. I am sorry to have to do this. I enjoy reading your comments. Please contact me by email at ccm@ccmambretti.com if you would like to post a comment on this blog. I will post it for you.

In addition, please note that I will soon be changing the URL for this blog. Details follow.

Catherine Mambretti

More Jury Rights Restricted: O. J. Simpson in Las Vegas

When Judge Jackie Glass admonished prospective jurors in the current O. J. Simpson trial not to expect to win a book deal from their jury service, I applauded her. I feel that profiting from jury service is an ethical failing. Then I realized that voir dire in the trial was being conducted in front of TV cameras. Outrageous! How can a judge boldly abjure citizens against exercising their right to freedom of speech and then turn around and require them to abandon all privacy rights, especially in such a high-profile case?


Let’s face it: There’s a very good reason that trials must be held in public. Without public access, the government would be able to do whatever it wanted to. The Star Chamber is illegal in America. But jurors must be free to speak about what happened in court and in the deliberation room after a trial if they feel that something wasn’t right. That’s why it would be improper to prohibit jurors from writing or speaking about the O. J. Simpson trial, and it is appropriate for a judge to caution jurors from serving only because they want to be able to write about the trial.


On the other hand, if the judge really expects jurors to be completely selfless, she ought to permit them to maintain their personal privacy by conducting voir dire in front of the Las Vegas public, but not in front of the cameras.

A Slippery Slope: O.J. Simpson May Be Many Things, but a Kidnapper?

There’s a movement afoot in the U.S. to expand the definition of kidnapping so that it covers all forms of assault. This is a dangerous, slippery slope. Potentially it can lead to the destruction of state statutes against kidnapping under that irksome Law of Unintended Consequences.


O.J. Simpson goes on trial this week in Las Vegas, NV, for several crimes, including kidnapping. The charge, if proven, carries a life sentence. Given that he evaded mass-murder charges, many Americans may hope that he is sent away for life this time, whether or not he is guilty. However, I’m asking you to consider this: If O.J. is convicted under this interpretation of the laws of kidnapping, you could be next. All you would have to do is grab another person in anger.


I have written previously about the laws of kidnapping in Illinois and the way at least one judge twisted them so that she could send an attempted sexual assault criminal to prison for 30 years instead of 15 years.


I have much to say about this issue of the laws of kidnapping. For now, I ask you to read the following:


A common-sense definition of kidnapping: http://www.legal-explanations.com/definitions/kidnapping.htm 


A legal editorial from Chicago’s WGN Radio about the kidnapping charges against O.J. Simpson: http://wgnradio.com/index.php?option=com_content&task=view&id=36735&Itemid=448


Please also refer to my other “Kidnapping Posts.” I kid you not: Lawyers are arguing about how far a victim must be “moved” for a kidnapping to have occurred.

Rumrunners on Trial

Guest blogger and author Carola Dunn reminds us that drug smuggling is just the latest form of smuggling that has presented great challenges to law enforcement and the justice system: 

In my new book, BLACK SHIP, the seventeenth Daisy Dalrymple mystery, my protagonist, Daisy Dalrymple Fletcher, and her family move in next door to the family of a high-class wine merchant. At the same time, an old acquaintance from her US adventure, THE CASE OF THE MURDERED MUCKRAKER, turns up on the Fletchers’ doorstep. He was then a youthful, hapless, helpless, hopeless FBI agent. Now, he announces, he is a Prohibition agent, sent to England to find out who is shipping forbidden alcohol to America. He starts spying on the neighbours–very embarrassing. Then a body is found in the communal garden and Daisy finds herself involved in the affairs of bootleggers, rumrunners and mobsters. Not at all what a respectable mother of twins is accustomed to!

In researching for this book, I came across a library book, The Black Ships (black ships is what the coast guard called the rumrunning ships), by Everett S. Allen. Mr Allen grew up on the New England coast and knew many people who had been involved with rumrunning during Prohibition. He interviewed many of them as well as doing research in the US Coast Guard archives. His book sent me to the Coast Guard on my own behalf, to clear up a few points, and the USCG sent me their history of the period: Rum War at Sea, by Commander Malcolm F. Willoughby.

The USCG was in a very difficult position. Prohibition had been passed by a narrow margin, so a large proportion of the US population were on the side of the bootleggers, at least until organised crime took over. This resulted in a “disheartening number of releases and acquittals by certain courts, when there should have been forfeitures and convictions…”
[Willoughby].

One Federal judge in Connecticut was so anti-Prohibition that he virtually never convicted a rumrunner, however convincing the evidence.

In one case, a small cargo vessel was stopped in Long Island Sound. The Coast Guards couldn’t find any liquor aboard. They suspected concealed tanks built behind false bulkheads, but at sea it wasn’t possible to make the measurements necessary to find them. She was released, but later was seized for running without lights (a common ploy to make the rumrunners harder to find, which led to the name Black Ships). She was taken into custody. Tied up at a USCG pier, she was measured and hidden tanks full of liquor were indeed discovered. The court pronounced that as she had been seized for running without lights, that was the only offence for which she could be prosecuted. Ship and cargo were returned to the owners.

A Norwegian steamer, Sagatind, was found drifting on “Rum Row”, forty miles offshore, well outside the three-mile limit. The Coast Guard fired shots across her bow to stop her, without eliciting any reaction. They boarded, and found the crew drunk and incapable, some injured from fighting amongst themselves. They also found 43,000 cases of liquor and a large amount of cash. However the Government failed to prove any liquor had been sold, rather than just transported in international waters. Ship and crew were released by the court.

The USCG was permitted by law to fire upon ships that refused to halt when ordered to do so. Inevitably, this led to deaths on both sides. In one such case, three seamen on a black ship were killed. Because of conflicting evidence, the coastguardsmen were tried for murder. They were acquitted, but when the captain of the black ship was tried for smuggling, the jury acquitted him, too, saying he had been punished enough by having his thumb shot off in the incident.

The 3-mile limit was extended to 12 miles or one hour’s sailing time, by international treaty in 1925. This made it much more difficult to pinpoint the position of black ships, and proving how fast they were able to sail was no easier. By this time many bootleggers were highly organised. They could afford their own experts in navigation, whose testimony refuted the Coast Guard’s careful measurements–at least when judges and juries were already far from keen on producing a conviction.

On one occasion, an overzealous coast guard falsified his log to show the rumrunners were within territorial waters. This was a serious offense, the log being a legal document. The chief warrant officer concerned was found guilty and reduced in rank.

There was no effort to falsify the position in another case, off the West coast. The Coast Guard found a known black ship, the Federalship, far outside the limits and trailed her from Oregon to California, hoping to catch her actually breaking the law. She flew the flag of Panama. The decision was taken by the San Francisco headquarters to seize the ship. Two USCG cutters came up to her and ordered her to stop and let them come aboard. The captain refused, saying that for all he knew they were “a lot of bloody pirates.” After being fired on–and hit–several times, Federalship stopped. She was taken to San Francisco Bay and the cargo of liquor removed (it disappeared from storage!). A Federal Grand Jury indicted the captain and crew for conspiracy. The defence claimed the seizure was illegal, and an act of war as she was Panama registered. The US attorney said that under Panama’s law Federalship had lost her registry by engaging in rumrunning and so was a renegade pirate. However, the black ship had not engaged in any illegal activity–had not, in fact, entered territorial waters–while under pursuit from the Columbia River to the point where she was seized. She was released and the USCG had to tow her all the way back to where they had captured her.

The law required the Coast Guard to seize not only any liquor they round aboard a black ship, but the ship itself and all its equipment. This led to the rumrunners turning the tables. They’d go to a friendly local jurisdiction and accuse the individual Coastguardsmen of stealing their tackle–charts, sextant, timepiece and so on. The US attorney would request a transfer to Federal court, where the rumrunners didn’t pursue the case, but in the meantime the newspapers made hay with the charges of theft and the Coast Guard became ever less popular.

The rumrunners used to communicate from shore to ship by illegal radio transmissions in code. One radioman who was arrested was fined $10 for violation of a fire ordinance, the only charge that a hostile jury would make stick. The Prohibition authorities managed to crack the code of one prolific transmitter. They found themselves in a quandary: if they prosecuted, the rumrunners would know the code had been cracked. Not only would no further information about ship movements be overheard, but to persuade a jury of conspiracy to break the law the Coast Guard would have to reveal its methods. They decided not to prosecute.

In one prosecution, when a motorboat had been seized loaded with liquor, the Coast Guard witness was asked what he had found aboard. “One hundred cases,” he said. The judge responded, “There’s no law against carrying cases,” and he dismissed the case.

One final episode among many: Off Key West in Florida, a black ship was halted by gunfire. The boarders were told they had killed the skipper, who had fallen overboard. The Key West population was almost wholly anti-Prohibition and there was talk of lynching the coastguardsman responsible. He was charged with first degree murder by the father of the
captain. At the hearing before a justice of the peace, the charge was reduced to manslaughter because the body of the victim could not be found. The coastguardsman was released on bail. Subsequent investigation revealed that the skipper had disappeared before in similar circumstances and had reappeared in Cuba. This time, apparently, he had swum to shore and made his way to his girlfriend’s house in Tampa. When the case went to the Grand Jury, some months later, it was dismissed because no prosecution witnesses turned up!

BIO: Carola Dunn is the author of 17 Daisy Dalrymple mysteries, set in England in the 1920s, as well as 32 Regency novels. Many of her mysteries have been IMBA bestsellers. She was born and grew up in England but has lived in the US for many years, presently in Oregon. Her website is www.geocities.com/CarolaDunn/ and she blogs weekly at http://tinyurl.com/66q19u.