A HAILSTORM OF EVIDENCE
Infamous court cases often create famous lawyers and launch successful careers, but Harris Merrill Plaisted needed no help. He was already a rising star before he became lead prosecutor at the Wagner trial. Born in Jefferson, New Hampshire, Plaisted was a practicing lawyer in Bangor, Maine, at the outbreak of the Civil War. He enlisted in the 11th Maine Volunteer Infantry Regiment, served bravely by all accounts, and rose to the rank of major general. By 1873, the soldier with the prominent forehead, slicked back hair, unkempt beard, dangling sword, and military braid had become the attorney general of Maine. Plaisted was now a mature attorney of forty-four years old. At Alfred, his beard was trimmed and combed and he was developing a slight paunch. The same year as the Wagner trial, he would successfully prosecute James M. Lowell for the murder of his wife, Elizabeth, whose headless skeleton wearing only a silk dress was discovered three years after her disappearance. Following these two gruesome homicide cases, Plaisted would move on to serve in the United States Congress and as governor of Maine.
With the prestigious Mr. Plaisted at his side, with the Alfred courtroom crammed to capacity, and with Wagner and his lawyers seated at a nearby table, attorney George Yeaton slowly rose to make his opening statement. He did not sit down until the conclusion of his speech two hours later. The jury, Yeaton began, must convict Louis Wagner for an atrocious crime, “a crime which startled and shocked the community as few within the recollection of the oldest man upon this panel ever have.” The job of the prosecution team, Yeaton explained, was to lay before the jury a plain explanation of the facts of the case. From this evidence, the jury would either be convinced of Wagner’s guilt or they would acquit him of the horrible murders. But before parading through an estimated forty-six witnesses, the prosecutor needed to define a few key terms.
First degree murder, Yeaton began, represented the “highest offense known to the law” except for treason. Wagner had unlawfully killed his victims with malo animo, or with an “evil mind,” the prosecutor said, parsing the Latin term for malice. The murderer had acted with deliberation. “How long must a man deliberate before, in law, there is sufficient deliberation?” Yeaton asked the jury rhetorically. “I think, gentlemen, not one instant.” If Wagner went to rob the Norwegians and had not considered murdering Anethe until the second he let the ax fall, then that instantaneous decision was reason enough to convict him, Yeaton said.
Anticipating a battle over tiny technical details from the defense, Yeaton explained it made no difference whether the victims died on March 5 or March 6 or whether they ultimately expired due to blows from an ax or other means. Yeaton went to great lengths to explain, using ancient court records, that Smuttynose Island was indeed within the jurisdiction of York County. The jury should focus on the overwhelming evidence, he warned, and not get distracted by the tactics of Wagner’s attorneys.
It was a full hour of definitions and history trivia before the prosecutor finally got down to brass tacks. His star witness and the only survivor of the tragedy would soon tell her fearful story, the prosecutor promised. Yeaton then went on to vividly summarize the murders. He detailed Wagner’s alleged journey from New Castle back to Johnson’s boarding house in Portsmouth, his escape by train to Boston, and his capture. The prosecutor pointed to Wagner’s abject poverty as the motive for the robbery. Burke’s rowboat was his opportunity to reach Smuttynose, and his strange and conflicting comments were evidence he was an habitual liar. The state would produce the ax, Yeaton promised, then display the killer’s bloody clothes and his distinctive size-eleven rubber boots that tracked blood all over the island. The state would introduce Karen’s telltale white button found in the prisoner’s pocket and offer a full accounting of the money stolen at Smuttynose, detailing the purchases that Wagner made in Boston. All this was forthcoming, but first, there was one sticky detail to clear up.
“A popular prejudice sometimes exists against what is termed circumstantial evidence,” Yeaton told the jury. “Every man understands that the moon controls the tides. How do they arrive at that conclusion? Purely and solely from circumstantial evidence. Who ever saw the moon pulling the water from one side of this earth to the other?”
If we wake up on a winter morning and see human footprints in the freshly fallen snow, the prosecutor further explained, we can assume that someone recently walked by. We did not see the man. We have no direct evidence that he was there, but only the circumstance of the footprints from which to conclude that someone walked by. Most of our knowledge about the world comes, not from direct eyewitness proof, he noted, but from conclusions intelligently drawn from myriad connected clues.
Circumstances do not “add up” to a conclusion, Yeaton said. Rather, each new circumstance “multiplies” the others. If Wagner was desperate for money, for instance, and he knew the Hontvets intimately, knew that they had money, knew the women were alone on the island—each of these separate circumstances multiplied the possibility he might take dire action. So when two of the women were found murdered and Wagner was missing, when a boat with which he was familiar suddenly disappeared, when he was seen by witnesses in New Castle the morning after, when the same boat reappeared nearby, when Wagner denied he was in New Castle, when he suddenly had money to spend, when he fled to Boston, when he disguised himself—the sheer logical weight of these circumstances multiplied together could not be ignored by a rational person.
After two hours of pacing back and forth in front of the twelve-man jury, George Yeaton had reached the emotional and intellectual apex of his opening argument. Circumstantial evidence, he implied, when scientifically presented, was a valid and effective means for making important judgments. But it was incorrect, he concluded, to picture circumstantial evidence as an arch, rope, or chain. These often-used metaphors were flawed.
“You all know that no chain is stronger than its weakest link,” Yeaton said. A reasonable doubt about Wagner’s innocence, he therefore implied, could not be established merely by disputing one or two bits of circumstantial evidence. The argument did not fall apart if one or two factors were in doubt. Instead of a chain, Yeaton explained, the accumulation of circumstantial evidence when multiplied against itself should be compared to a hailstorm. And the hailstorm would last four days, burying the defendant under a deep and damning blanket of evidence that George Yeaton had meticulously organized. The York County attorney had personally visited the murder scene on Smuttynose even as the bodies of Karen and Anethe were being loaded aboard ship for Portsmouth. Yeaton had picked up his prisoner in New Hampshire amid the lynch mob riots and had successfully arraigned him in South Berwick. Now, with the learned Mr. Plaisted as his partner, he was going to see justice done and the guilty man hanged.
On Wednesday, Yeaton began by establishing the location of Smuttynose as affirmed by the testimony of York County surveyor Moses Safford. Then the prosecutor launched into the real action by delivering up two of his most appealing witnesses. Both men spoke in thick Norwegian accents. Jorges Ingebretsen of Appledore Island, the fisherman who had rescued Maren Hontvet when she was half frozen with fear and cold, took the stand. He described seeing the bloody ax with the broken handle lying on a rock in the snow outside the door of the Red House.
Ivan Christensen, widower of Anethe, came next. Since the murders, Ivan had been working at the Appledore Hotel. According to Celia Thaxter, he was no longer a handsome picture of masculinity. He had been transformed, in recent weeks, to a pale, thin, sickly shadow.
“He dragged one foot after the other wearily, and walked with the feeble motion of an old man,” Celia wrote. Unable to pull himself away from the Shoals, but unable to ever look again at the house on Smuttynose Island, Ivan had given up fishing and taken a position as carpenter at the Thaxter’s hotel. Celia yearned to comfort him, she said, but could not, “for he seemed to me to be hurt too sorely to be touched by human hand.” Anethe’s death, Ivan later told John and Maren, must have been part of God’s mysterious plan. Otherwise, he said, “Why else did all things so play into Louis’s hands?”
Witnesses were kept out of the Alfred courtroom except during their testimony. Now the wooden doors opened and Ivan Christensen, head bowed, stepped reluctantly toward the front of the room. Wagner, who scarcely reacted to most witnesses during the day, appeared to regard Ivan “with special interest and pleased recognition.” Ivan swore his oath on the bible and took his place in the witness chair as the audience fell silent. Struggling to understand the prosecutor’s questions in a language he scarcely knew, unnerved by the enrapt onlookers, his heart and soul broken, Ivan responded in clipped terms as evidenced in the trial transcript:
Ques. Where did you go from Appledore Island?
Ans. I went first up to Ingebretsen’s house. After I left there I went to Smutty Nose. When I got to Smutty Nose, I went right up to the house and right in.
Ques. What did you see there?
Ans. I saw my wife lying on the floor.
Ques. Dead or alive?
Ans. Dead.
Ques. What did you do?
Ans. Went right back [out] again.
Yeaton then introduced one powerful witness after another. Calvin L. Hayes of Kittery, a member of the coroner’s jury, recounted the ghastly scene in the kitchen where Anethe’s body lay on the floor with her brains exposed. There was “a scarf or shawl, some colored woolen garment” around her neck. The furniture was thrown all around and the clock had fallen and shattered. Hayes found Karen on the other side of the duplex strangled with her tongue protruding. She was “covered with wounds, but not so bad as the first one,” Hayes said. It was Mr. Hayes who had picked up the ax that was lying on a stone just outside the house. Now, upon request, Hayes produced the murder weapon, washed clean by the ocean spray as the coroner’s team rowed back from Smuttynose to Appledore on the night of the investigation. The ax was exhibited in the courtroom and entered as evidence.
“I took the ax from the island,” Hayes said. “It has been in my custody since . . . It does not now resemble its condition then at all; it was besmeared with blood and covered with matter entirely.”
Next in the witness box was Dr. John W. Parsons of Portsmouth, who had examined Anethe’s body at the Portsmouth funeral home on March 8. He described her condition in forensic detail: a flesh wound over the right cheek bone, two flesh wounds under the left eye, another on the upper right side of the forehead, and many more. The victim’s left and right ears were nearly severed and there was a compound fracture of the skull. Attorney Yeaton asked the doctor if Anethe’s death was likely caused from a severe blow by the heavy ax on display in the courtroom. Parsons said “yes.”
Twenty-one-year-old Waldemar Ingebretsen, who had lived on Appledore, Star, and Smuttynose islands, said he knew Wagner well. Waldemar and four other witnesses testified that, weeks before the tragedy, they had heard Wagner say: “I am bound to have money in three months if I am going to murder for it.” Another fisherman named Lars Nelson had seen large, bloody boot tracks on the island the day after the murders. Nelson also confirmed that, in recent weeks, Wagner had been penniless. James Lee, who had fished with Wagner aboard the Addison Gilbert, recalled a similar conversation. “He [Wagner] told me if he had money enough to buy a suit of clothes, he would leave Portsmouth and go to Boston, or somewhere else. He told me that [if] he could get a boat and go to the Shoals, he would get money enough.”
Throughout Yeaton’s speech and the first cluster of witnesses, Louis Wagner sat unmoved. The defendant manifested no emotion except “an incredulous smile” the newspapers agreed. It was only when Maren Hontvet, dressed in black, entered the jam-packed courtroom that the prisoner suddenly appeared “eager to catch her every word.” Maren pointed out her former friend and lodger for the court records. They had not faced one another since Maren lay on a lounge in the Portsmouth jail and asked Wagner, “Would you not like to kill me?” In her presence, according to the Chronicle, Wagner “threw aside or had lost that coolness previously shown.”
In the film version of the novel The Weight of Water, adapted from a fictional version of the Smuttynose murder case, the courtroom encounter between Maren and Wagner is dark and moody. The fictional prisoner stands manacled in a narrow, waist-high, wooden cage in the center of a misty room, a scene more reminiscent of the Salem Witch Trial era than America in the Industrial Age. As Maren recounts her harrowing escape to the jury, an eerie soundtrack, ideal for a gothic horror movie, combines violin and cello music with the screams of women and the crashing of waves. The actor playing the fictional Wagner in the movie is older, darker, more reactive, more ragged and unkempt, and much less endearing than the cool and calculated historical Wagner at Alfred. But Sarah Polley’s portrayal of Mary S. Hontvet may hover close to the truth. Although a decade younger and more camera-friendly than the historical Maren, Polley’s character is equally hard-working, strong-willed, long-suffering, stern, and dignified. In the movie trial, she is conservatively garbed in a long, black, mourning dress and bonnet, likely in sharp contrast to the summer tourists and farmers’ wives, with their lunch baskets and paper fans, who filled the Alfred courthouse.
Accompanied by her husband, John, and now fully recovered from her traumatic escape, the real Maren, the lone survivor of the March 6 massacre, faced off against her attacker at trial. “She is a very intelligent looking woman,” the New York Times noted on June 12.
There was nothing new in Maren’s testimony at Alfred. Her story had appeared numerous times in the press, and yet the Chronicle ran her full response to attorney Yeaton’s questions. March 5 was, Maren recalled again, a pleasant night with the promise of spring. Three Norwegian women, no longer separated by thousands of miles, went to bed peacefully downstairs in the easterly end of the Red House at ten p.m. There was some tension in the air. The three men of the house, delayed in Portsmouth according to their message, had not arrived late in the evening as scheduled. But the weather was not threatening. The curtains were open. The lock on the door had been broken since summer. They slept. Then Karen cried out “John scares me!” and the nightmare began.
Although he had scarcely spoken since the trial began, defense attorney Rufus Tapley rose here to object to the admission of the statements made by Karen and Anethe as reported by Maren. This was merely hearsay, Tapley declared. But Judge Barrows accepted the comments, citing the common law principle of res gestae, an exception to the rule against hearsay. Although secondhand, the statements of the dead women were considered trustworthy and admissible as evidence.
This was a critical victory for the prosecution. While Karen had initially believed the intruder in the dark was her brother-in-law John Hontvet, it was undeniable that John was in Portsmouth all that night and not on the island. Karen had been mistaken. But Anethe’s cry of “Louis! Louis!” gave Yeaton and Plaisted the next best thing to an eyewitness. Without it, Maren could only attest she had seen the shadowy shape of a tall silent man in the moonlight. She had seen his profile, not the front of his face. It was Anethe’s dying words more than any other piece of evidence that placed Wagner on the island on the night of the murder with an ax in his hand. Because Anethe identified Wagner spontaneously and without deliberation as she was being attacked, under res gestae, her words were considered highly credible, a dying declaration, not subject to deceit or interpretation.
Tapley objected successfully to other hearsay conversations Maren had with her sister, Karen, and he managed, temporarily, to prevent Yeaton from entering the incriminating white button into evidence. Tapley briefly cross-examined Maren, but it was a delicate game. The defense could not appear to badger or even dishonor the surviving victim. Tapley managed only to get Maren to repeat the fact that she had not actually spoken to the killer and had seen him only momentarily from the back or side as she looked out her bedroom window. The defense scored a minor point with Maren’s description of the killer’s hat.
“He had a hat on his head,” Maren said, “some kind of a dark hat, a short hat with a wide brim. Did not see his face.”
Originally Maren had said the killer wore a “tall hat” or a “beaver hat.” Wagner denied ever owning a tall hat. Witnesses later that day would describe Wagner wearing an old-fashioned military-style cap sometimes called a “slouch” or “Kossuth” hat when he crossed the bridge in New Castle. Wagner did own a light-colored Kossuth hat, probably made of felt with a broad black band around it. The confusion over Wagner’s hat was a minor detail. It had been dark. He could have changed hats. But it was a tiny warm spot for the defense against the blizzard of evidence that engulfed them.
John Hontvet took his wife’s place in the witness chair next. He retold the story of Wagner’s extreme interest in the fishing profits on the Clara Bella, of their meeting on the docks on March 5, of Wagner’s disappearance after he learned the women were alone on the island. Through Yeaton’s clever questioning, John put to rest any doubt one could row a boat to the Shoals in three hours or less, even against the tide. He had made the trip by oar at least fifty times himself, John said. He recounted his frequent attempts to find Wagner along the Portsmouth docks that night. He confirmed beyond doubt, despite Wagner’s claim, that no one except his men had been sleeping on the couch in the back room of Matthew Johnson’s shop as they baited trawls. Rufus Tapley’s cross-examination challenged none of this. He may have been lazy, as some insist, or he may have known he could not impeach John Hontvet’s story.
Next came Charles Johnson, a fisherman and son of Wagner’s Water Street landlords. Charles confirmed Wagner’s poverty and his threat to murder for money. Charles Campbell, the night watchman at the naval shipyard, then recounted seeing a stranger running across the ice at Little Harbor toward the cemetery on the morning after the murders. He later found large, distinctive boot prints in the snow near Devil’s Den. At this point, Judge Barrows recessed the court for lunch and media correspondents from New York to Boston scurried to telegraph their updates.
The hailstorm continued all afternoon, beginning with Sarah Campbell and Israel Fletcher of New Castle, who also saw the stranger heading toward the toll bridge en route to Portsmouth on March 6. Charles Place testified to finding a dory abandoned near Devil’s Den that morning. James Burke confirmed the recovered boat was his and the same one stolen from the base of Pickering Street the night before with its “thole” pins significantly worn from recent use.
Defense attorney Tapley made a valiant attempt to insinuate the testimony of Joshua Frasell, a cooper from New Castle, had been heavily influenced by John Hontvet and the Portsmouth police. Frasell denied the veiled charge he had been fed false information and said he was certain the stranger at the toll bridge was Wagner. The Amazeen brothers, George and Joseph, took the stand in turn. They explained how they had helped the stranger, who turned out to be Wagner, cross the washed-out bridge. Anne Carlton, John Lyons, and Alonzo Greene swore they had seen Wagner, his hat pulled over his face and his dungarees wet with snow and ice, as he hurried the final distance from the New Castle toll bridge to Water Street in Portsmouth’s South End.
By late afternoon on Wednesday, prosecutor Yeaton had fashioned twenty-two witnesses into an almost seamless chronological narrative. Defense attorneys Tapley and Fischacher had been unable to solidly dispute any of their testimony, and there were more tough witnesses to come. Wagner’s landlady, Ann Elizabeth Johnson, was especially daunting. She had the memory of an elephant and the demeanor of a junkyard dog. Her daughter, Mary, would prove tougher still.