CHAPTER EIGHTEEN
And now it was Ivins’s turn. His task was entirely different. In addition to making the legal argument that his client’s reputation had been attacked and severely damaged and for that he deserved to be compensated, he had to counter Bowers’s emotional appeal to the jurors’ patriotism; that a great man such as Theodore Roosevelt should be rewarded for his service to the nation, rather than castigated for honestly stating his political opinions. As far as closing arguments go, this was the far more challenging presentation; Ivins had to bring down the former president of the United States to the level of the everyman and convince the jury that this was not about exalted patriotic principles, but just a simple tort, a libel, that no American, no matter who they are, no matter their position in life, should be permitted to spread with impunity.
Ivins walked to the podium to open the morning session, May 20, 1915. He began by acknowledging His Honor and the jurymen and then, in a pleasant conversational tone, struck out against his opponent’s argument. “Mr. Bowers opened with a reference to himself and his politics and his relations with the defendant,” he began. “I shall say nothing about myself or my politics, they are not in evidence and wholly unimportant in this case. We come here as officers of the law...when we were admitted to the bar forty years ago or more we were compelled to take an oath of office. It is not for me to discuss myself, but it is for me to discuss the law.
“The lawyer’s place, his work, his duty, his function are confined to seeing that all of the evidence in a case is properly marshalled and brought before the court; to see, so far as lies in his power, that the rulings of the court conform to the law and then, when the evidence is in, to sum up the case on the evidence with the view of coordinating or collating, bringing together all of the evidence which bears on the real issues of the case...”
It seemed a slightly esoteric beginning, until he reached his point; clearly his great fear was that the jurors’ awe for the defendant as emphasized by Bowers would color their judgment of the evidence. “...Oratory is destructive of thought as a rule. Oratory is an appeal to passion, it is an appeal to feeling; it is not an appeal to wisdom... I was, therefore, surprised when toward the end of his speech Mr. Bowers in my opinion forgot his function as a lawyer and devoted a long time to political considerations...from the landing of the Pilgrims until the time of the Spanish War.
“It would be as pertinent for me to close my address by quoting the first lines of Cicero’s Gallic War, that all Gaul is divided into three parts. It may have been, but it is entirely immaterial in this case... You, as jurors each swore that you were entirely competent and qualified to try this case as between man and man, citizen and citizen, without regard to person, without regard to politics, without regard to the offices which had been held by one or by another of the parties to this action. That was your oath, that is your duty and an appeal to you to consider any political qualifications, an appeal to you to consider anything with regard to the future of these parties or their possible activities is something which never, never should be made.
“It was an appeal to feeling, it was not an appeal to reason and it was not an appeal to the evidence in this case. What has the effect on the future usefulness of Mr. Roosevelt have to do with this case? I appeal to you in my function in my position as a lawyer to dismiss all of that from your minds and to consider this as an ordinary action at law. It is not a political controversy... Should any man because of the position which he has held in the past be placed in a position above the law? Should he be beyond the reach of the law?
“Not at all. And when you get in the jury room you must forget your (political stance) and remember simply that you are men; fair-minded manly men, doing your duty, agreeing if you can, disagreeing if you cannot, but under no circumstances let any appeal to passion, any appeal to feeling reach you.”
Should the jury find for the plaintiff, the jurors then would have to determine the financial penalty. Ivins addressed that issue well in advance, telling them, “During the last years of his life Thomas Jefferson was in exigencies of a financial kind. Can you imagine Thomas Jefferson going into a court of bankruptcy and saying that the law should be held up because he had been President of the United States and that he should not be declared a bankrupt because of his possible future usefulness? Daniel Webster was a large borrower and frequently in debt. Is it conceivable that because Daniel Webster was one of the greatest orators and the greatest statesmen this country has ever produced, and was a potential candidate for the presidency of the United States that he therefore should not appear before the court like any other man and pay his debts?
“No man is above the law... Here nobody’s life is in question, but there is one thing that is in question and that is the life of the law. If you want to see the law live, if you want this jury to take its place in the great historical line of American juries that has built up that system of law which has produced the most marvelous human justice...you should not for one moment forget your duty... If you were in this case to consider it from a political point of view rather than from the point of view of jurors determining the facts, and if your precedent were to be accepted as a universal order, then law would disappear from the land; you would be setting a precedent for the death of the law...”
Suggesting to the jurors that they held the future of the American legal system in their hands, he had raised the stakes. In as many different ways as possible he put forth one idea: “The question is this: Has any man in this land the right to rob another of his honor?”
Reiterating themes he presented in his opening statement, Ivins reminded the jury that once placed in a position of dishonor, a man’s life in his community—in his client’s case that community being New York state politics—is done. For those who doubted that, he told the story of the butcher’s cart, an “old story (that) has been heard time and again, as to the usefulness of racing with a butcher’s cart, because if you beat the butcher’s cart you have got no glory; if the butcher’s cart beats you, you are in a very sad position.” The butcher’s cart, in this instance, he claimed were the newspapers and magazines. “When what they say is taken up and not only repeated but is fulminated throughout the entire land by a man who is known to be one of the greatest, if not the greatest center of public opinion in certain quarters, then the offense ceases to be negligible; it must be met.”
For years, Ivins told the jury, his client had read the “silly stuff” being said about him without being overly concerned, “but when in the summer of 1914, in a struggle for supremacy, the defendant saw fit to spread throughout the length and breadth of this land a libel charging corruption, charging dealing with the enemy, charging Mr. Barnes with being a political Benedict Arnold...then the time had come...we have a situation which justified the strong, the patient, courageous and the determined man finally saying: I must go before a jury of my peers...and have it determined as a matter of law whether it is I who am telling a falsehood or another man who is telling a falsehood. Because if it is I who is telling the falsehood then what the other man says about me is true: I am unfit to live in decent society.
“Now, that is the only issue in this case.”
The initial phase of Ivins’s closing was intended to convince the jury to treat this case the same as it would if one of the principals had not been among the most important men of the time. When that appeal was done, he began reviewing the case he had presented. “In an action for libel,” he said, as if he was explaining the legal aspect to a good friend, “a jury has to inquire into two things: First, it has to decide whether the libelous matter is true. Then it has to decide whether it is so libelous that for the protection of society, and as a warning to others, punitive damages should be given... Consequently, the question is raised as to whether or not the libel was malicious, (and to do that) you have to consider the frame of mind of the defendant...”
Ivins expressed sympathy with the jurors for the complicated two-headed charge that made sitting in judgment of libel so confusing. Evidence may be admitted for one purpose that should not be considered for the other. The example he gave was Franklin Roosevelt’s testimony that he had been told by Senator Grady that there was an arrangement between Barnes and Tammany Hall. If this was entered for justification, for evidence of truth, it would have been deemed inadmissible hearsay. “Evidence of a corrupt fact upon which you would not have kicked a yellow dog...” And then Ivins slipped easily into comfortable sarcasm. “...But the defendant in this case, lacking as he is in experience, credulous as a child, listens to Franklin Roosevelt and sets that up as a reason he should not be punished. But the Judge has to take that evidence, but only as bearing on the state of mind of the defendant and not in any sense as bearing upon the justification of the truthfulness of the matters charged.” Determining the difference between justification and mitigation was complicated and inexact, he admitted, but he urged them to be cognizant of it as they deliberated.
Now he turned to the essence of the case, which according to Ivins, was far simpler. It began during the election of 1914 when Roosevelt admitted “with the same vehemence and the same eagerness and the same intensity of the eminent Nimrod, the (Biblical) hunter,” that he had written it for the “edification, the illumination, the education of the people of the State.” In politics, referring to a man as a boss has come to imply “a tone of dishonor, or a Phariseeical occupation.”
Ivins was well-known for peppering his presentations with historical, mythical, biblical and literary references, and this time was no different. It was questionable that many of the jurors understood them, but still they listened intently, as he guided his own tour of the trial as methodically as one would stroll through the halls of Roosevelt’s African animals on display at the Smithsonian Museum of Natural History.
One by one he dissected and dismissed all of the familiar topics: “invisible government,” “crooked business and crooked politics,” “bosses running a machine,” “the alliance between Barnes and Murphy.” He stood in front of the jury, with just the appropriate level of indignation in his voice, and ridiculed Roosevelt for setting himself up as the nation’s moral censor, then characterized the personal attack on Barnes as unjustified “as if he were to charge you with forgery,” he said, pointing directly at one juror, then another, “or you with picking a pocket,” and another, “or you with perjury,” and another, “or you with arson.”
Ivins established a rhythm; he introduced a topic, briefly explained the evidence through his filter, then concluded, “There is not one word of evidence as to the existence of a corrupt or machine ruled government...
“There is no evidence that (a) public office and public officer was controlled during the time to which this controversy refers by any one...
“There is no evidence of mal-administration, nor is there any evidence of corruption in public offices...”
Ivins was not so foolish as to deny what the jurors probably believed, that politicians were corrupt. Indeed he surprised them by admitting it, claiming it was to be expected, almost a natural order: “There has never been any government in which there has not been some corruption,” he said. “The reason is very simple: It inheres in the nature of mankind. St. Paul said that we were born in corruption...until we attain a higher stage of civilization, until the principles...of Christianity be converted into practice instead of into preaching, there will always be some evil men (who become involved in government) as a source for the protection or advancement of their interests...”
But such corruption was limited. He continued, “The whole government of this country is not deeply tainted... It is the wonder of the world that we live as we do, without autocratic command.” And what damage did Roosevelt do to this? “The only two equals of Theodore Roosevelt,” he roared with sarcasm, “George Washington and Abraham Lincoln would make a pronouncement to the effect that our whole government system was deeply tainted and discredited, and that the only cure was to attack one or two individuals. And the gentleman who wrote this knew what attack was. He had been at Kettle Hill, if not at San Juan, and he had been in a jungle, and no man on earth knows better what an attack means than he. And he was inviting the readers of newspapers to make this attack upon the personal integrity, upon the personal honor of these two men.”
His client, of course, was “a man of courage, a man of profound convictions, a man of dignity, a serious man.” A man who has been wronged. “Out of all of the men one arises, dignified, stern, courageous, determined on holding his own and challenges the truth of this statement and asks the eminent defendant to come into court and give you the proof.”
In the matter of Barnes’s supposed collusion with Murphy in the election of a senator in 1911, Ivins argued that his client could have accomplished that covertly simply by directing a number of Republican legislators to stay away from the process. That would have given the Democrats a sufficient majority to elect their choice; but instead Barnes loudly, actively and publicly joined the fray. “We find ourselves in this position,” Ivins suggested, his sarcasm once more amusing the courtroom. “This man is eminently and incontestably crooked because he is so undeniably straight. Undeniable straightness must imply crookedness. That is about the volume of evidence in this case.”
The one piece of evidence that Ivins admitted might reasonably prove the alliance between bosses was the contested claim of Loeb that Barnes “confessed to him his dishonor... You have got to determine whether, as you have seen Mr. Barnes on the stand, he is the kind of man to tell a person whom he had met casually at a luncheon that he was guilty of a dishonorable dicker—to volunteer it. We have a phrase in law, nunc pro tunc; that is doing a thing now as if it were done then. Here we have the reverse of that phrase turned upside down, it is tunc pro nunc doing things then as if it were done now. Mr. Loeb throws his testimony back a year in order to supply the missing link...which Mr. Barnes denies and which we prove was impossible.”
At the defense table Roosevelt and his team of lawyers paid respectful attention but displayed no emotion beyond an intellectual curiosity.
Just as Bowers had done, Ivins addressed the complex printing issue by explaining why he would not address it. “I am not going to touch it,” he said, “because it has nothing to do with this case. Counsel on the other side thinks it (does) because Mr. Barnes was a public printer.” During the trial the jury had been absent when he had quoted Ben Franklin, public printer, so for their benefit he repeated Franklin’s words. If Bowers was willing to compare Roosevelt with Washington and Lincoln, it was appropriate for Ivins to point out, “Mr. Barnes, just as much Benjamin Franklin, wanted to do public printing. It is perfectly true and perfectly human that he should have communicated with Mr. Platt the fact that he was being discriminated against in these matters... You are all in business of one kind or another, you all know what would happen to you if we entered into a state of socialism.” He continued this reference to Roosevelt’s desire to establish a State printing office, which Barnes had lobbied hard against, warning, “If everything was done by the government...many men would be put out of business.”
Every trial eventually comes down to the credibility of the witnesses. Who does the jury believe? What exchanges do they remember most? “You saw Mr. Barnes take the stand, you saw his calmness, his deliberation, his precision...you saw him sit there, soberly, dignified and you heard his testimony. He made his impression on you.”
Very subtly, without flair or a sense of rancor, Ivins then calmly launched his final attack on Teddy Roosevelt, whom he described as testifying with “not only his mouth but also with his feet, his hands and his head.” Then telling jurors what he had perhaps been aching to say for weeks. “You saw him when he was recalled spring at that chair as though it was going to get away from him, such was his haste to tell us his story. (But) one hundred times through his testimony you heard him say, ‘I don’t remember’ or ‘I can’t remember,’ but whenever he wanted to remember he remembered with a rapidity and accuracy, with a certainty, and with an illumination that put electricity out of business.
“But he has a fixed habit. The defendant believes he has the duty of reforming everybody’s character... The whole thing comes out in the psychology of the man. Here is a man dominated by the spirit and desire for power, a man who is dominated by his desire for publicity, a man who, unhesitatingly and unhaltingly attacks whomever he disagrees with. He has got himself in this position for one simple reason: He did not abide by the terms of his own letter declining the Presidency of the United States for a third term. I am not going to read any Gettysburg speech, nor am I going to read the Epistles to the Romans. I am only going to say this, that the whole trouble with the defendant in this case and the reason he has got himself in this position is due to the fact that he did not follow out the advice that was given by Cardinal Woolsey to Cromwell, ‘Cast aside ambition, by this sin fell the Angels.’”
And with that, he took his seat.
An odd silence permeated the courtroom, just as when Bowers had concluded. The gallery had just witnessed a bravura performance from a celebrated lawyer, a man who had faced hundreds of juries, arguing what would undoubtedly become the case of his career. He had been at it slightly more than two hours and had lived up to all expectations. The natural instinct was to respond with applause or even hurrahs. But this was a courtroom, not a theater, and the spectators restrained themselves. Ivins quietly accepted congratulations from Barnes and his associates, and Judge Andrews recessed the case for the scheduled midday break.
Judge Andrews began the afternoon session with his charge to the jury. In the wrong hands, this can be a tedious process as the judge instructs the jury on the precise, sometimes opaque law that they must use to decide the case. But these are the final words that jurors hear before they deliberate, coming from the objective source, so the judge needs to take great care in choosing those words.
There have been exceptions to this general principle of a judge serving as a fair arbiter of the law. When abolitionist John Brown was tried for treason after his raid on the armory at Harper’s Ferry, Virginia, for example, in his charge to the jury Judge Richard Parker supposedly said, “I will not permit myself to give expression to any of those feelings which at once spring up in every breast when reflecting on the enormity of the guilt in which those are involved who invade by force a peaceful, unsuspecting portion of our common country, raise the standard of insurrection amongst us, and shoot down without mercy Virginia citizens defending Virginia soil against their invasion.”
But despite his sometimes controversial, and at times seemingly contradictory, rulings, Judge Andrews had earned the respect of the attorneys and jurors alike. This charge, however, was going to be difficult to translate out of legalese. His attempts to separate testimony into justification and mitigation had proved confusing, even to the legal teams. Jurors had been cautioned to consider certain evidence as this, not that. The confusion was not necessarily his fault, however, since libel law was intrinsically complicated and still roughly hewn.
“The time has come when the mass of evidence offered here before you is to be submitted to you for your decision,” he began. “Your duty is to follow the law as laid down by the Court. If I am wrong I may be corrected in another court, but here and now you are bound to follow my instructions.
“To publish falsely of another any charge which tends to injure his reputation and so expose him to public shame or derision or disgrace is wrongful, to do such an act is libelous... There is but one defense. That is the truth. If the charges are true there is no libel. The truth of the charges is a complete answer to the complaint. You all know the maxim of the criminal law that a man is presumed to be innocent until he is proved to be guilty. Precisely the same rule applies to civil law: Innocence is presumed...”
But then he had to explain how the burden of proof was turned on its head here once the judge made his initial finding that the statements were libelous per se: “The defendant is bound to satisfy you by a fair preponderance of evidence that what he has said is true.” If, he continued, the jury decided that the libel was published with actual malice and “a reckless and wanton disregard of the plaintiff’s rights,” the jury could go further and award the plaintiff punitive damages, a sum intended to punish the defendant for his actions. The difficulty in making that determination, he explained, was that “malice is a state of mind” and therefore “direct evidence (of that) is impossible.” Any evidence offered by the defendant to prove there was no malice is evidence in mitigation; “It simply bears upon the question of how much, if any, punitive damages should be awarded by the jury.”
He went issue by issue through the testimony they had heard and the decisions he’d made, the defenses raised by the Roosevelt side and the responses of the plaintiff. Central to the review of the facts was the 1911 Senate election: “If Mr. Barnes, as the leader of the Republicans, and Mr. Murphy as the leader of the Democrats, agreed to keep the Republicans voting for Mr. Depew, not for the purpose of benefitting the state, that is prima facie evidence of corruption...now the question is was such an agreement made? And if so was it a corrupt one?”
And finally, inevitably, he arrived back at the printing testimony. This issue had been the most difficult for the judge, who throughout the trial seemed to show the resolve of a pendulum, moving back and forth slowly and continuously. But now he had to make his final declaration on it. “Until it was all put together, until you could tell just what conclusions were to be drawn from it, it was impossible to rule whether it would finally become competent or not... Now you have heard that evidence. It may be more or less in your minds, but I say to you it has nothing to do with this case; I say to you that if you allow it to influence your verdict in the slightest you will be false to your duty. That evidence is out of this case; that evidence you are to put from your minds.”
He then addressed the unusually apt—in this political trial—cliché, the elephant in the room, Theodore Roosevelt. As Ivins had reminded them, the man had dominated the nation’s headlines for more than a decade. He was beloved by some and despised by others. But he could not be ignored. It was almost impossible not to have an opinion about the man, and the tricky part here for every juror was eliminating those feelings from his deliberation. Addressing it directly, Judge Andrews warned, “We are not here to be influenced by anything except the evidence in this case. If you allow yourselves to be swayed by passion or by prejudice or by friendship or by sympathy, if you allow your minds to be influenced by anything except the evidence you have heard, you are just as false to your duty, just as unfit to sit on that jury as I would be if I allowed my mind to be swayed by anything except my opinion as to what the law is.”
After more review and telling the jury how to consider additional pertinent facts, he concluded, “There is a fair question of fact here, a fair dispute between these parties and when that is so it is your business, not mine, to determine it.
“Now gentlemen, take the case... As I said once to you before, you are here to do equal justice between these parties.”
It was a balanced charge, so naturally as soon as he had finished there was an avalanche of objections to it from both sides. Wolff for the plaintiff objected “to so much of your Honor’s charge” and listed his complaints, then requested additional charges be made that the defendant has failed to accomplish this or show that or prove this or refute that, most of which was denied. Other requests asked him to extend or broaden charges already made to the jury. A few of those requests made little sense. At one point, trying to understand the objection, also referred to as an “exception,” Judge Andrews asked, “You except to my refusal to charge and you except to the charge as made?”
“Yes,” Wolff agreed, then launched into an equally confusing explanation, which in the end was refused.
When Wolff had finished, Van Benschoten for the defense began requesting exceptions or additions to the charge, some broad, such as a request that because the entire offending article was issued during a political campaign—it was therefore “privileged,” or exempt from legal consequences; some of it more obvious, for example that the jury might dismiss the entire testimony of a witness who testified incorrectly about any issue. In the end, many of his objections focused on specifics that would likely make little difference in deliberations.
When all that noise was done, Judge Andrews once again faced the jury. It was only a few minutes before the scheduled recess. “Gentlemen,” he said, making an understatement so great that the courtroom broke out in relieved laughter, “it is very evident you will not be able to come to any conclusion in the twenty minutes before court adjourns.”
At 3:45 p.m. the jurors finally began their deliberations. In the six week trial, 104 witnesses had taken the stand, 71 for Barnes, 33 for Roosevelt, and of them, 58 were former senators and assemblymen. The fully transcribed testimony, not including Judge Andrews’s charge, filled 3,738 pages. A member of Roosevelt’s defense team had even calculated that there had been a total of 934,500 words spoken in testimony—exclusive of the 252 exhibits, including letters, newspaper articles and other pieces of evidence admitted into the record.
The fact that a former president would come before this jury of twelve common citizens, pictured here, created a sensation but surprised no one. Years earlier Roosevelt had said, “No man is above the law and no man is below it, nor do we ask any man’s permission when we ask him to obey it. Obedience to the law is demanded as a right, not asked as a favor.”
Onondaga Historical Association
At 5:00 p.m., the judge summoned the jurymen to the courtroom to see if they had anything to report. After a few moments of silence, juror number 1, Walter J. Zuill, a Progressive like Roosevelt, asked that part of the judge’s charge on not allowing political leanings to influence their judgment be reread. Judge Andrews replied that he did not feel it necessary to do so since it should be perfectly clear it was their solemn duty not to be swayed by political considerations. The jurors then returned to their room to continue deliberations.
Throughout the late afternoon and into the evening, lawyers and newsmen moved in and out of the building. At six o’clock dinner was served to the jurors in their room. While the lawyers retired to local restaurants and taverns to wait out the verdict, resourceful scribes engaged in conversation with the bailiffs stationed outside the jury room, hoping for some bit of exclusive information about the proceedings.
There was considerable debate among the observers as they waited. The New York Times reported that a “ballot was taken” at the outset of deliberation: “It is not known what the result was, but there is ground for the statement that there was a division along political lines.” According to the Times, ballots were taken frequently after dinner, and they weren’t coming down in Roosevelt’s favor: “While no word came from the jury room as to what was taking place, it was persistently rumored that the vote greatly favored Mr. Barnes. One rumor had it that three members were holding out for a verdict for Colonel Roosevelt.”
What was not reported at that time was that much to the dismay of Roosevelt, this was entirely consistent with what his legal team had been predicting. Their hope was that the jury would be unable to reach a unanimous decision and warned Roosevelt, quite candidly, that he would be lucky to get as many as four jurors to vote for his position.
The waiting continued into the night. Roosevelt passed the evening quietly in Syracuse while Barnes returned by train to Albany. The Colonel received an amusing gift when he stopped at the hotel. An admirer from Troy, New York, had sent him a small silk-lined jewelry box filled with the tiny blue-and-white buttons marked T.R. that had been distributed during the 1912 campaign, accompanied by a note describing them as “An antidote for the crooked politics for Mr. Barnes, one to be taken before each meal.”
When asked by reporters to make a statement, Roosevelt maintained the proverbial stiff upper lip, replying, “It would be manifestly improper for me to say anything until a verdict has been rendered. Even then, I intend to let my counsel, Mr. Bowers, do all the talking for me.” Among themselves though, the newsmen doubted that, agreeing that no one had ever done all the talking for Teddy Roosevelt.
When it became apparent the jury would not be able to reach a verdict that night, arrangements were made to house them in the dormitory in the jail building on Cedar Street. At 11:30 p.m. they walked together as a group to that facility, ignoring the reporters who shouted questions at them. The papers described them as being “locked up” at the jail for the night.
Some jurors reportedly rose as early as five thirty the next morning, anxious to continue deliberations. Many observers expected a deadlock to continue until the judge would be forced to declare a hung jury. With that possibility in mind, slightly after 10:00 a.m., Ivins, feeling ill, boarded a train to return to New York City.
At about that same time, Judge Andrews called the court to order. Unlike at any point during the testimony, now he looked out on to a mostly empty courtroom. For the first time the newsmen far outnumbered the spectators. But to everyone’s surprise Justice Andrews was handed a sealed envelope from the jury foreman, Warren W. Somers, a Syracuse grocer. There was a general hubbub as reporters assumed the jury had reached a verdict. Instead, the note explained that a “peculiar situation had arisen” and asked the judge to come to the jury room. Instead, Judge Andrews ordered the jury into the courtroom.
They filed in quietly and took their seats. Rather than addressing their secret concern, he explained, “There is very little I can say in addition to what I have already said.” He continued, telling them that the law required that any questions must be asked in open court; and if this problem concerned evidence, he would have it reread to them. “That’s about as far as I can go.”
The jurors glanced at each other, then stood without asking any questions and returned to their room. The courtroom once again was quiet. The general feeling was that the jury problem concerned an inability to reach a consensus. So it came as a great surprise an hour later when Judge Andrews was informed the jury had reached a verdict.