‘A clever counsel would tear it all to rags.’
Sherlock Holmes, ‘The Adventure of Silver Blaze’
Fifty-four years old, silver-haired and smooth-tongued, John Comrie Thomson, senior counsel for the defence, had a way with juries. It was widely felt that there was not a lawyer then working in Scotland who could best him at pleading out a case. He was persuasive and assertive when he needed to be, yet always showed courtesy to witnesses, even the most hostile ones. But most of all, he had an instinctive feel for what made people tick and an effortless ability to connect with ordinary folk.
He was well aware of the value of his talents, too. Rumour had it that he charged a thousand guineas per trial, which was just short of the Solicitor-General’s total annual salary. Conscious that the Monson trial was a perfect showcase, he eagerly gave of his best over its ten-day duration. Central to his aim of dismantling the Crown’s forensic case was Matthew Hay, Aberdeen’s police surgeon and Littlejohn’s potentially upstart rival. Comrie Thomson led him through his evidence with characteristic verve. Nor was it the first time that the two police surgeons had crossed scalpels in the courts. They had been on opposing sides, for example, during the 1889 trial of the Dundee wife-killer William Bury. It was their conflicting interpretations of the medical evidence that prompted the jury to make a plea for mercy on Bury’s part despite finding him guilty.
And now Hay enthusiastically set about once again undermining the testimony of Littlejohn, along with that of Bell and Heron Watson. The position of the corpse, the distance and direction of the shot, the validity of the pellet marks on the surrounding trees – all were cast into doubt. Regarding the location where Cecil actually died, he spoke in support of Monson’s assertion that the body was moved: ‘Assuming that the body had been moved after it fell, I should not be very much surprised that the gardener and others had not observed traces of blood apart from the quantity under the head. Supposing the grass at the place was long and quite wet, and the flow of blood from the head had been gradual, I would not be surprised that blood was not very observable. The bleeding from a gunshot wound is generally slow … There is a track by the south side of the wall across the dyke from the old to the young plantation, and, of course, the grass and brackens in that track are beaten down, so that if Lieutenant Hambrough fell at that place there would be no very obvious mark of pressure on the grass or brackens … Taking the situation into account, I think it quite possible that the deceased could have been shot somewhere about the ditch, and that his body could have afterwards been transferred to the top of the dyke.’
He furthermore dismissed the presence of a bloodstained wad from the cartridge and two pieces of bone about two feet from Cecil’s head where he was discovered on top of the dyke as being materially irrelevant. Instead, he argued that both the wad and the bone may have dropped from the head in the process of moving the body, or during a subsequent examination. His acceptance that Cecil’s body may have been transferred to the dyke post-mortem was particularly intriguing, since Hay freely acknowledged that his own calculations regarding the flight of the shot were based on the assumption that he fell where he was found by the first witnesses Monson brought to the scene. Hay may have had little choice but to work on this assumption – he had to establish some solid terms of reference, after all – but his doubts about the location of Cecil’s body, in stark contrast to Littlejohn and Bell’s assuredness, doubtless compromised his evidence. Crucially, he could not, in good conscience, claim his calculations of the shot’s flight path as accurate if he was undecided as to where the body had fallen – a fact that the prosecution could have done much more to highlight. Instead, on this point, he was seemingly allowed to cherry pick the arguments that most suited him.
He remained on the front foot throughout his evidence. He was, for instance, curt in his setting aside the pellet marks found in the trees. ‘I formed an opinion with reference to the probable age of the pellet marks,’ he said, ‘that they were at least two or three months old. Certain of the pellet marks on the rowan tree and also on the lime tree showed considerable signs of vital reaction, that is, healing.’ In other words, he believed the marks pre-dated Cecil’s shooting. He also doubted the ability of the Crown witnesses to establish the true flight of the shot given that there was no way to be certain at what angle the shot entered Cecil’s head and what resistance it met from his skull. As Comrie Thomson put it: ‘You were told that there were between 200 and 300 pellets in each cartridge, and you are asked to find against this man because the marks of twelve pellets, not discovered, are found in three trees in the neighbourhood! I think it is useless to labour this part of the case further.’
Next came the critical question of the likely distance the shot flew before hitting Cecil – a lesser distance than the nine feet or so posited by the prosecution. Hay was convinced the more likely distance was between a few inches and three or four feet – and probably somewhere around two feet. Whereas the prosecution found the absence of any scorching around Cecil’s wound indicative of a shot from further away, Hay argued that the shot had been fired using amberite powder rather than traditional gunpowder (a fact the prosecution did not contest), one of the features of which was the absence of scorching. Furthermore, he argued that what residue there might have been from a short-range amberite shot could have been washed away in the process of cleaning and dressing Cecil’s body on the day of the shooting. The relatively smooth nature of the entry wound and the absence of any more than four pellets in Cecil’s head was further evidence, he said, that the shot originated very locally. ‘In my experiments,’ he told the jury, ‘it is shown that when you go beyond two feet or thereby the edge of the wound begins to get distinctly ragged on account of the action of the spreading shot.’ As for the scarcity of pellets, he simply did not believe there could be so few since pellets characteristically start to disperse as soon as a cartridge leaves a gun, and separate with increasing rapidity beyond a distance of about two or three feet. ‘As the result of these experiments,’ he went on, ‘I conclude that it is quite impossible for a shot to be fired from either the twenty-bore or the twelve-bore gun at a distance of nine feet without the production of numerous pellet marks, whether on a target or on the human head, and whether fired directly at the head or in an oblique direction.’
Bell had earlier attempted to deal with the lack of pellet-scatter evident in Cecil’s head, saying that he believed the ‘body of the shot went right through the bone en balle’, i.e. as if it was a compact, single bullet rather than an expanding cartridge, and having struck the bone, ‘four pellets appear to have entered the aperture, and the rest to have gone into space’. This assumption further suggested to Bell that the shot came from some considerable distance since if it had struck en balle from less than three feet, ‘it would have forced the bones from within outwards, shattering them to a greater extent, and probably no bone in the head would have escaped’. Hay was unmoved, however. The absence of pellets was for him indicative of quite the reverse. ‘It practically comes to this,’ he said, ‘that in my opinion the shot which killed the deceased was delivered within arm’s length.’
Hay expanded upon his argument, suggesting that the path along the dyke upon which Cecil was said to have been walking was treacherous, with ‘projecting pieces of turf, sometimes a stone from the wall beneath, and occasionally holes. Quite close to where I was told the deceased’s body was found there was a distinctly large hole, almost a kind of trap to one’s foot, in the ground; it was a place where a man might readily have stumbled, especially if he was not watching the ground as he walked along, if his eyes were directed to the search for game, or anything of that sort. The morning of the occurrence was a wet morning, and that would tend to his slipping on the grass if he went off the rough path of the dyke; the ground there slopes up, and the grass would be very wet … After careful examination of the skull and photographs I consider that the injury to the deceased’s head was such, in respect of the position of the injury and the line of fire, that it could have been inflicted by a gun held in the deceased’s own hand. There are many, almost innumerable, positions permitting of the gun being held in the deceased’s own hand when the shot was fired.’ He then proceeded to show a number of photographs that he and Dr W. G. W. Saunders, a professor of clinical medicine at Edinburgh, had taken to illustrate the point, for example showing how the gun might have gone off if it got caught in a thicket as Cecil was walking along. ‘As a result of the whole examination,’ Hay testified, ‘and the consideration of this case from a medical point of view, I consider that the death of Lieutenant Hambrough was more likely to be due to an accident from the gun he was carrying than to a shot from the gun of another person.’
There was even time for some heated back-and-forth with the prosecution. The Solicitor-General, for example, cross-examined him on his assertion that the body might have been moved. ‘The question is, did you see anything at the bottom of the ditch in any way to indicate that a dead body had been there?’ Asher demanded of him.
‘I could form no opinion,’ Hay replied.
‘You are not asked to form an opinion,’ Asher fired back. ‘Did you see anything tending to indicate that a dead body had been lying in the ditch?’
To which the witness could answer only ‘No.’ A little later he was pushed still further into a corner, conceding: ‘I think the probability is that he was not moved after he fell; that is to say, on the assumption that there was no blood anywhere except under the head [i.e. no blood was found in the ditch].’
These confrontations were given added heat by the fact that the defence had taken the highly unusual step of refusing to allow Hay to undergo a precognition by the prosecution. At trials in Scotland it was the norm that witnesses went through a precognition, during which a witness made a factual statement that, though inadmissible in the trial itself, provided an insight into the evidence they were expecting to give. Thereby both sides could enter the courtroom fully aware of the likely battles they were each to face. The defence justified their position regarding Hay by claiming that they had not requested precognitions of the prosecution’s medical experts and that since Hay had professional commitments in Edinburgh at the time he was required by the Crown, they had advised him not to submit to the request. The judge was distinctly unimpressed by the defence’s stance. ‘It seems to me that nothing could be more prejudicial to either side than that the advisers of one side should direct their witnesses not to be precognosced,’ he said. ‘I think it is a grievous mistake. I express no ruling of law on the subject at all. There is no doubt about this, that in inquiries by the Crown for criminal prosecution, not only is a witness bound to submit to precognition, but he is bound to submit to precognition upon oath, and may be imprisoned if he refuses to give his evidence, either with or without oath; and I think that the proper course for the witness was to submit to precognition.’
Yet, if the prosecution hoped that this side issue might put Hay on the back foot, there was little evidence that it did. He even found the opportunity to get in a jab or two at Littlejohn and the experiments he conducted with MacNaughton. Referring to the decision to fire shots into cadavers at the mortuary, Hay commented: ‘I consider the bodies of persons dead for some time to a certain extent suitable for experiments, but they do not exhibit the exact effect of the shot fired at a living body.’ In other words, the prosecutions’ grimmest experiments were ultimately futile.
Littlejohn, though, gave as good as he got. Where he had favoured recreating Cecil’s last moments with a human corpse, Hay and his team had opted instead for a freshly slaughtered horse. Littlejohn was unconvinced: ‘We can make no conclusion from a wound on a horse’s head,’ he noted. ‘[T]here is an enormous difference between this and the wound in question … I entirely fail to draw any useful deductions from these photographs of horses’ heads.’ Nor was he happy with the wooden busts the defence had used to represent the human head, the proportions of which he said were ‘most faulty’, anatomically incorrect and made of a substance ‘very different from the cranium’ – Littlejohn’s team had used clay-lined pasteboard to represent as closely as possible the condition of matter in the human skull.
Hay’s general conclusions were well supported by the follow-up evidence of Dr Saunders of Edinburgh University. One might imagine there were some frosty faculty meetings in the Scottish capital in the weeks and months after the trial finished. Saunders was distinctly Holmesian in parts of his testimony, warning ‘how careful one must be in drawing deductions in such a case’ and pointing out the ‘insufficient data’ that blighted many parts of the evidence. What was the jury to make of it all? If they had felt their sympathies moving in one direction after the evidence of Littlejohn, Bell and Heron Watson, they had surely now been thrust back into the no-man’s-land of uncertainty. Just as in the Bury case, the diametrically opposed conclusions of such eminent men of medicine could have had no other effect than to leave the jurymen utterly confused as to what to think. It brought to mind the words of Alexander Pope: ‘Who shall decide when doctors disagree?’
A very good question indeed.