Memphis Injury Lawyer Blog

A Memphis man was recently charged with one of the most dastardly crimes imaginable. This Shelby County resident is accused of having killed his girlfriend and then, with the unwilling help of her daughter, he is alleged to have cut her body into pieces. Apparently, the accused was not sure of the victim's death. The Memphis police charge that he then burned her body parts and spread them around West Tennessee. The Shelby County Medical Examiner confirmed the victim's identity by DNA tests and dental records.

The accused has been sent for a mental competency test, but if he goes to trial the Judge will require that the jury find him guilty, if so they do, beyond a reasonable doubt and to a moral certainty. These words that bear such huge legal significance were "invented" by someone. The use of forensic dental testing did not begin with CSI. Let us wander back into legal history and explore the origin of these important concepts in Tennessee law.

The case of Dr. John Webster was of immense importance for the emerging law of the United States. Dr. Webster was a scholar of some significance, if not wealth. Most of Webster's peers came from old money and they dabbled at teaching for amusement. Dr. George Parker was one of these men.

THE ACCUSED

THE VICTIM

Parker was a man of financial means. He, and his family before him, were wealthy and had large real estate holdings. The accused, Dr. Webster, had borrowed the large sum of $400.00 from Dr. Parker. As was his custom, Parker made his rounds once a month to collect his rents and loan interest. On the fateful day, Parker approached Webster's laboratory intending to collect on his debt. After Webster said that he could not repay Parker, an argument broke out. In order to make his point, Webster punctuated his argument by whacking Parker in the head with a piece of firewood from the nearby hearth of the fireplace in his lab. Parker concluded his portion of the drama by expiring on the floor in a pool of his own blood.

In 1850, Dr. John Webster was tried for the murder of Dr. Parkman in Boston, Massachusetts. The trial judge for what was to become a celebrated case was the Hon. Lemuel Shaw.

THE JUDGE

It is Judge Shaw's explanation of reasonable doubt that is most historically definitive. In 1850, the standard in murder cases was proof "to an absolute certainty" that the dead body was that of the victim, or absolute proof of corpus delicti. The Webster case was one of the first capital cases to be won without absolute evidence that the victim had been murdered. It could not be established that the bones discovered were Parkman's. Judge Shaw opened the door for the jury to convict anyway by changing the standard. He instructed them that they need only prove corpus delicti "beyond a reasonable doubt."

The evidence must establish the corpus delicti.... must not only prove a death by violence, but must, to a reasonable extent, exclude the hypothesis of suicide, and a death by the act of any other person. This is to be proved beyond a reasonable doubt.

Then, what is reasonable doubt? ... It is not mere possible doubt; because everything relating to human affairs and depending on moral evidence is open to some possible or imaginary doubt. It is that state of the case, which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge.

THE EVIDENCE

Dr. Nathan C. Keep, who later became the first Dean of the Harvard Dental School, provided dental testimony during the trial of John Webster. It was the first trial in which dental evidence was introduced, and one of the first to admit forensic evidence as reliable. Dr. Keep's direct examination was, even by today's standards, exquisitely conducted. The prosecutor developed his witness's qualifications; the basis for his opinions; and Dr. Keep's opinion that the tooth found in Dr. Webster's lab was the same one that Keep had implanted into George Parker's jaw.

It was upon this basis that Dr. John Webster was found guilty by the jury beyond a reasonable doubt and to a moral certainty for the murder of Dr. George Parker. He was subsequently hanged. The joinder of all of these now familiar concepts in one trial is, from a historical perspective, amazing. The next time that you hear the term "reasonable doubt", think kindly of Judge Shaw.

Posted by William M. Monroe | Permalink | Email This Post

Posted In: Great Trials and Great Lawyers

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As current events unfold, I look back on the reasons that I went to law school and how these events may cause all Tennesseans to remember the phrase "Equal Justice Under The Law". When I graduated from what is now the University of Memphis Law School, I was filled with all of the idealism that one would expect from a child of the 60's. Being raised in East Memphis, I still remember seeing National Guard tanks rolling through the intersection of Poplar Avenue and White Station Road following the murder of Dr.Martin Luther King. My mind still contains a clear picture of my fellow citizens dressed in olive drab uniforms patrolling the streets with bayonets afixed to their rifles.

Now that our country has elected Barack Obama as our first African-American President, I pause today to reflect upon my own values after over thirty years as a Memphis trial lawyer. Anyone who deals, day in and day out, with the problems of others becomes somewhat jaded to all of the violent emotions that swirl around him. Professional distance becomes a shield that protects not only one's own psychological well being, but it also assures that we can continue to give unbiased advice to those who place their futures into our hands. I do not know why but today I was drawn to the story of three young people who were murdered and buried in an earthen dam near Philadelphia, Mississippi over forty years ago. My mind wandered back to "Mississippi Burning" compared to my recollections of 1964. Mississippi Burning Trial

As a result of this mental wanderlust, I have blown the dust off of some of the information respecting Andrew Goodman, James Earl Chaney, and Michael Henry Schwerner. This process reminded me of a great trial lawyer who fought to assure that these young men, after a fashion, received at least a small measure of justice. This man is John Michael Doar.

Doar was born in 1921 in New Richmond, Wisconsin. His father, W.T. had taken a job in a law firm in this small essentially all white town. This solidly catholic community imbued John with his credo: "Do the right thing regardless of the consequences." This ideal is precisely what led Doar to face an angry brick throwing mob in 1963 in Jackson, MS. The warring factions were the Jackson Police Department and a throng of grief stricken African Americans who were mourning the death of Medgar Evers. With outstretched empty hands, Doar approached and quelled the violence with an act that must be historically likened to single-handedly forestalling the Boston Massacre.

In a 1985 interview, Doar remembers:

Well, I went to the funeral. And uh, because I knew Medgar. And uh, he was a friend, and uh, then uh, the his friends, people from all over the country came to the funeral wanted to have a march and they wanted to march up the main street in Jackson. I can't remember the name of the street, but it was, Jackson had one main street principally. And the police officials didn't want them to do that, they said that they could walk across and then walk into a side street where the uh, black restaurants and the black stores were where blacks congregated a side street which was the typical pattern in a Southern town in 1960. There was a street for whites and a street for blacks – and the black street was a side street and a 2nd class street. And the police permitted the par—the marchers, the memorial march to cross the main street, but then finish up in the side street where the b—the black shops were. And it was a nice day, warm day, summer day, and uh, uh, I remember that there were a lot of kids around, and uh, and uh, uh, it was a friendly, but there was a lot of people milling around the streets and then some kids, I don't know who they were decided that they would march up the main street. And so they started back along toward the main street of Jackson and when they got to the corner of this side street that I've described, and the main street, the police put up a road block, put up a line of people and, and, block, and said you can't, you can't march on the main street of Jackson, Mississippi. And, so you had a line of police and you had a line of kids, or 3 lines of kids, and they were 2 or 3 feet apart and the, the kids were singing and agitating, and yelling and shouting and complaining and, and uh, then who pushed who first, I can't tell you but the police started to reach out and grab one, five, six of these kids and throw ‘em in the paddy wagon. And uh, uh, they uh, got the… that stopped. And then they decided that they would clear the street. This, this is the city police of Jackson. And they started to move along this side street uh, and to disperse the crowd. Uh, as uh, they moved further and further into the side street, and I was there observing as a representative of the Justice Department, and, and as they moved farther down the street, kids started to throw bottles and rocks from nobody was uh, close to getting hurt, and the city police were disciplined and controlled and moving slowly up the street in a line across the entire block. And when they got about a block up the street, the uh, the county uh, Sheriff's Office, uh supplemented this line of police with County Deputies and they had guns, shot guns, and uh, my, I didn't think that uh, they had the discipline that the City police officers did. And uh, so half a block down the street, a, a, black kid had come out of the crowd and throw a bottle and it had bounced in front of this line of police and the glass had skidded into them, or a rock had come out or a brick had come out and it had hit, hit the street in front of ‘em and skidded into em, and uh, I was just afraid that if this kept on that somebody was really going to get hurt because I didn't have any confidence in the discipline of those county officers. So I walked through the, the uh, the line of police and walked out and persuaded everybody to stop.

Shortly thereafter, Doar guided the investigation and trial of 18 Mississippians for civil rights violations which arose from the deaths of Goodman, Chaney and Schwermer. Not only was this a dangerous task but in addition to all of the obvious legal obstacles, Doar faced incredible racism within the Grand Jury itself. You see, these white jurors had to rely upon and believe the witnesses testimony many of whom were black. An internal FBI memo from 1964 illuminates this problem better than my poor words See, A. Rosen letter. Following what can only be mildly described as a contentious trial, The New York Times reported a guilty verdict against the Defendants from Doar's efforts:

MISSISSIPPI JURY CONVICTS 7 OF 18 IN RIGHTS KILLINGS MERIDIAN, Miss., Oct. 20     A Federal Court jury of white Mississipians convicted seven men today for participating in a Ku Klux Klan conspiracy to murder three young civil rights workers in 1964.     Guilty verdicts were returned against Cecil R. Price, 29 years old, the chief deputy sheriff of Neshoba County, and Sam H. Bowers Jr., 43, of Laurel, identified as the Imperial Wizard of the White Knights of the Ku Klux Klan.  Also convicted were Horace D. Barnette, a one-time Meridian salesman; Jimmy Arledge, 30, a Meridian truck driver; Billy Wayne Posey, 30 a Williamsville service station operator; Jimmie Snowden, 34, a Meridian laundry truck driver, and Alton W. Roberts, 29, a Meridian salesman.

However, this victory was bittersweet. This was not a conviction for murder but was rather a short term imprisonment verdict and not all who took part were found guilty. The most notable escapee from justice was Edgar Ray Killen. It was not until 41 years later that the scales of justice equalized a bit. The Court, entered a nearly unheard of manslaughter guilty verdict against Edgar Ray Killen, a/k/a "The Preacher", and sentenced the KKK ring leader to the maximum punishment that the State of Mississippi could mete out: sixty years in prison.

Today, on the eve of a new era in American politics, we should all in Doar's words "persuade everybody to stop." We must all stop judging the veracity of a person's words based upon their ethnic origin. We must assure that all persons have equal access to qualified legal representation. And, we must all recognize that this fresh new wind that is blowing across our country has a chance of securing the blessings of liberty for the future of all of our children.

Posted by William M. Monroe | Permalink | Email This Post

Posted In: Great Trials and Great Lawyers , Trial Practice

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As a Tennessean who grew up on Davy Crockett stories, history has always fascinated me. Our past is full of tales that have become movies, books and the topic of conversation. I hope to make this a series of articles about great trials and great trial lawyers. One such lawyer followed Wyatt Earp and his brothers into an Arizona courtroom. The Earp's chose a colorful and skilled trial lawyer, Thomas Fitch, Attorney At Law.

Fitch founded the Prescott, Arizona Amateur Dramatic Club. One can only guess whether his acting pursuits effected Wyatt Earp’s decision to hire Mr. Fitch to defend him in the infamous “Gunfight At The O.K. Corral” trial. O.K. Corral Trial

Mr. Fitch's credentials are revealed in the following biographical note published in 1892:

THOMAS FITCH, an eminent lawyer of the Pacific coast, and one whose reputation extends throughout the country as an orator and brilliant advocate, hails from the Empire State. He was born in New York City in 1838, the son of a merchant of that place. Six or seven generations of his ancestors were natives of New England. Sir Thomas Fitch, one of his progenitors, was Governor of Connecticut when it was a colony.

Thomas attended school in Massachusetts until he was fifteen years old. In 1855 he went to Milwaukee, Wisconsin, and after remaining there five years he came to the Pacific coast, landing here in 1860. He read law in the office of Shafter, Heydenfeld & Gould, and was admitted to the bar of the Supreme Court of Nevada in 1863, after which he engaged in the practice of his profession. The young lawyer’s abilities were soon recognized, and he was brought to the front in political circles. He was elected Representative to the Legislature of California in 1863; a member of the Constitutional Convention of Nevada in 1864; District Attorney of Washoe County, Nevada, in 1865 and 1866; and a Representative to Congress from Nevada in 1868. He was attorney for Brigham Young and the Mormon Church in 1871, and retained the position several years. In all probability he better understands the inside history of the great apostle and the Mormon Church than any other man outside the church.

Mr. Fitch subsequently went to Arizona, and in 1879 was elected to the Legislature of that Territory.

He is a staunch Republican, and in every campaign takes an active part on the stump, his name and fame as an orator being well-known in every hamlet throughout the Pacific coast.

During his early experience in law, Mr. Fitch had a large criminal practice. More recently, however, he has given his attention to mining litigation and equity practice. For the past twenty-eight years he has been engaged in his profession in California, Nevada, Utah and Arizona, about half that time in this State.
Transcribed by Donna L. Becker. Source: “The Bay of San Francisco,” Vol. 2, Page 475, Lewis Publishing Co, 1892.

Whether you agree or disagree with the result (or enjoyed any of the movies depicting this event ) of the trial, it is clear that the right to effective counsel is not new. Even in the Wild West, the rule of law sometimes prevailed over a six gun blazing on a dusty, narrow street.

Posted by William M. Monroe | Permalink | Email This Post

Posted In: Great Trials and Great Lawyers

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