Between a Rock and a Hard Place

by Katherine Scardino

At times during my legal career, I have faced really tough decisions -- and most of them have been similar to the one that is nagging me now. I am representing a 20-year-old Hispanic man who is accused of capital murder. He was 18 when he killed another human being. We have a trial date, and the State is hoping a jury will convict him of capital murder. If the jury does, there will be no punishment hearing, because the prosecution chose not to seek the death penalty. Instead, the judge will immediately sentence him to life in prison without the possibility of parole -- ever. It also means the defense has no opportunity to tell about any mitigating circumstances that might sway the jury toward mercy or sympathy for this young man.

Life without possibility of parole is second only to the death penalty in our American scheme of punishment options. I call life without parole “death in the penitentiary from natural causes”. That is what it means. A life without hope; a long life in a box with a hole in the door through which he is fed three times a day. Many years with no human touch.

But this young man has a defense. He told me a story about what happened at his cousin’s house that balmy summer morning about two years ago, and I believe him. I believe him because the story makes sense. The basic facts of his story are irrelevant to my dilemma, but suffice it to say that he killed a man in self defense. You may ask: So what is the problem? You have a defense to murder. All you have to do is get it out in front of a jury. The jury will believe it -- because it is true -- and they will understand the legal ramifications of self defense. They will know that a not-guilty verdict is proper under the circumstances. Yeah, right. And pigs can fly.

Defense attorneys are well aware that not-guilty verdicts are very few and far between, regardless of the client's guilt or innocence, regardless of whether he has a defense for an otherwise criminal act.

As most people know from experience or news reports, the prosecutor will generally make a plea-agreement offer some time before the trial starts. The prosecutor will offer to trade a certain number of years in prison for a guilty verdict. But in my case, where there are only two possible punishments -- life or death -- the prosecutor must get approval from the boss to reduce the charge from capital murder to murder. That's the only way the prosecutor can offer a set number of years in prison. For example, the prosecutor offers to reduce the charge, and the defendant agrees to spend thirty years in prison.

A thirty-year sentence means he would spend approximately fifteen years in prison before he could be considered for parole -- a long time. But the big deal here is the possibility of parole at some point, years in the future. Without a plea bargain, the defendant has to face a jury on a capital murder charge, a jury that could convict but not make no punishment decision.

So here is the choice: my client has a defense and facts that might, just might, cause the jury to return a verdict of not guilty. Under our laws, this is the right thing to do. But the reality of this situation is not so clear. The defendant takes a risk that is hard to fathom. He risks losing his life forever. Or, he can agree to a plea bargain and spend many, many years in prison. But he'll still have a chance at a life someday. He won't die of old age in prison. At my client’s age, he might even be be able to get married and have children after he has served his sentence.

The last time I tried a capital case without a potential death sentence, the result was a not-guilty verdict. Can that possibly happen again? Can I choose a jury who will actually follow the law if they believe the young man acted in self defense?

Lawyers understand how difficult it is for a jury to overlook the fact that a person has been accused of committing a crime by the powerful State. Why would that person be sitting here if prosecutors had no evidence of guilt? How could the case have gotten so far otherwise? The physical set-up of the courtroom itself is serious and intimidating. There's a judge sitting up high wearing a black robe, a court reporter, lawyers on both sides of the table with stacks of paper and files; people in the gallery, and twelve people who are supposed to be “jurors of the defendant’s peers."

As I noted, not-guilty verdicts are few. The prosecutor will likely suggest to the jurors that when the trial is over, the defendant may ride down in the elevator with them if they haven't convicted -- meaning it'll be their fault if he's allowed to continue his alleged murdering, raping, robbing ways. As a lawyer, I was trained to believe that the law is the rule of life; that everyone would follow the law; that our constitution was what separates us from less-civilized countries. I still believe in our legal system, but I no longer believe that juries follow the law when deliberating on the fate of a defendant.

My young client turns to me. “Miss Katherine, what do you think I should do?” I will let you know next time....

Black-Eyed Borgia

by Deborah Blum

Mary Frances Creighton, Fanny to her friends, was a rather appealing 24-year-old in the summer of 1923. She had curling dark hair, pale skin, “deep, luminous eyes,” according to The New York Evening Post, and lush, “petulant lips,” according to The New York American.

The New York Times more sedately described her as a “comely brunette,” or as “a young mother.” She had a three-year-old daughter, Ruth, and a newly born son, John Jr. The baby had been born in the Newark, N.J. jail, while both she and her husband, John, (together, above left) awaited a trial on charges that they’d killed Fanny's young brother with arsenic.

Hence all the publicity. The newspapers ran few photos of scrawny sandy-haired John. But Fanny Creighton willingly posed for admiring photographers: dressed in long-sleeved demure black, despite the summer heat, eyes lowered, carved silver cross hanging around her neck, infant cradled in her arms.

The image was of a gentle Madonna, the least likely person to have killed a younger brother for a life insurance payout.

The jurors also believed her an unlikely murderer. Both the Creightons were found innocent of the charges. But, in fact, although her husband was only a dupe in the affair, Fanny Creighton was guilty. She admitted to the killing a dozen years later. That was after she’d been charged with yet another arsenic murder.

In the second case – the murder of a close friend’s wife on Long Island – Creighton (and the close friend) went to the electric chair. This time, the press did not find her so appealing: “The Black-Eyed Borgia” screamed one headline. And this time the evidence was not so easily brushed away – the forensic results were so precise that the laboratory could identify the brand of arsenic-laced rat poison used – and the guilty decision came very quickly.

The different endings to two prosecutions of the same woman offer a remarkable measure of how much and how fast forensic science had grown up in the intervening decade. Today, we tend to take such scientific expertise for granted. This is not to imply perfection in a human enterprise. We’ve all followed recent scandals involving overworked criminal laboratories that misstated or even made up some of the findings. But that involves people making bad, really bad, decisions. The basic science itself – our ability to tease a poison out of tissue, identify a blood type, analyze traces of fibers or soils – those techniques stand as solid.

That was far from true in the early 20th century. Elected coroners often knew nothing about science or how to determine cause of death. As I learned in researching my book, The Poisoner's Handbook, death certificates from the time period sometimes merely gave “Act of God” as the cause. Police detectives regarded these strangers from laboratories with real suspicion, refusing to accept their findings. And lawyers found laboratory results to be a wonderfully easy target.

All of that worked perfectly to Fanny Creighton’s advantage in her first murder trial: “My clients know nothing of how this boy came to be poisoned!” her lawyer declared.

John Creighton and Mary Frances Avery were long time friends when they married in 1919. He was the son of an executive with the Pennsylvania Railroad Company. She, her brother and two sisters were orphans, cared for by affluent grandparents.

The newlyweds moved in with Creighton's parents, who owned a big, two-story home in Newark’s comfortable Roseville neighborhood. They shared the space for a year until his mother died at age 47 of apparent attack of food poisoning in 1920. His father, also 47, died the following year, of a sudden heart ailment.

 

In the 1920s, a powdery form of arsenic called white arsenic, also known as arsenic trioxide, was mixed into an astonishing array of home products. These included a tonic to improve one’s complexion (Fowler’s solution), prescription medicines, weed killers and pesticides, such as the popular rat poison Rough on Rats, which was 10 percent soot and 90 percent white arsenic. In their analysis of Charles Avery’s body, forensic scientists could easily detect arsenic in the tissues – tests had been available since the mid-19^th century – but they were unable to figure out which of these many poisons was responsible.

Fanny Creighton used Fowler's Solution to improve her pale complexion. But as her attorney pointed out, the mixture was so dilute that it would have taken gallons to kill the boy. Avery had access to rat poison at the grocery where he worked. The Creightons' attorney suggested that he might have taken it himself. His sister said he was depressed about a girl. The jury found the poison evidence so inconclusive that they quickly returned a not-guilty verdict. The angry prosecutor – convinced that Fanny, at least, was a murderer - then charged her with using arsenic to kill her mother-in-law. But that case foundered on even thinner scientific results. As Fanny Creighton walked away from the courthouse, she sent the prosecutor a message of forgiveness: “I bear no malice toward anyone.”

After the trial, the Creightons left New Jersey and moved to the small town of Baldwin on Long Island. During the Depression, they rented part of their home to another couple, Everett and Ada Applegate. Fanny had lost her dark Madonna looks by then. But her daughter Ruth was a rather lovely 15-year-old, and Ev Applegate decided he'd much rather be married to Ruth than to Ada, who was both fat and ill-tempered. Ev began sleeping with Ruth on the sly, and he told Fanny that if only he were free, he'd be glad to marry her daughter.

On September 27, 1935, Ada Applegate died of acute gastrointestinal distress. Prompted by an anonymous letter, the police opened and investigation and requested a forensic analysis. This time the tests -- done by New York's star toxicologist Alexander Gettler -- were inarguable. Not only did Gettler find three times the lethal dose of arsenic in Ada Applegate's body, he was able to identify the impurities in the poison as soot -- in fact, the exact proportion of soot found in Rough on Rats. The police traced the purchase of the poison, and Applegate and Creighton admitted to buying it together.

Creighton (left) also admitted, in an interview, that she'd used Rough on Rats to kill her brother. Investigators just hadn't known then how to identify it so precisely. It was such precision -- and a new awareness by police and the public of the science itself -- that changed the way we think about forensic medicine. There also was a very definite message in the end of Mary Frances Creighton's story. 

On July 16, 1936, she and Everett Applegate went to the electric chair at Sing Sing Prison.

Smoke and Mirrors: The Truth About Las Vegas

by Cathy Scott

Watching Las Vegas Mayor Oscar Goodman’s indignation over recent advice by President Barack Obama to a New Hampshire audience to not waste cash in Las Vegas was reminiscent of a similarly indignant Goodman a decade earlier. 


Goodman, a former criminal defense attorney and self-described “mouthpiece for the mob,” spe