CAPITAL DEBATE
Students of the Smuttynose murder case have often argued that Wagner’s defense team failed him. They accuse Tapley and Fischacher of being unprepared or too timid in their cross-examination or not clever enough in their efforts to raise a reasonable doubt. However, these may have been tactics, rather than errors. Wagner’s attorneys very likely came to believe that their client did indeed kill Karen and Anethe. If so, their defense can be seen primarily as a calculated effort to keep a guilty man from hanging.
Throughout his opening speech at trial, Max Fischacher repeatedly noted it was Wagner himself who “insisted that he was innocent.” As to Wagner’s alibi, Fischacher told the jury, “You will be able to discern whether his explanation is a mere fabrication.” They knew that the more the prisoner spoke, the more impossible his story became. The defense team sat silently back while most of the jury members were selected. They rarely objected or cross-examined key witnesses for the prosecution, remaining as deferential as possible to the judge and jurors, because they were seeking leniency rather than an acquittal.
In his closing argument, Harris Plaisted even suggested the defense team rarely objected to his witnesses because his opponents themselves believed in Wagner’s guilt. Tapley’s refusal to dispute Maren Hontvet’s critical testimony, according to Shoals historian Lyman Ruttledge, “suggests that he knew Wagner was guilty.” Tapley was forced to construct Wagner’s defense, Ruttledge wrote, “out of the rottenest timber he had ever tried to handle.” With so little to work with, says true crime writer Edmund Pearson, the defense team was forced into quibbling over legal technicalities and running down every possible option the law allowed. The hours spent reading seventeenth-century York County documents and debating the jurisdiction of Smuttynose Island may have irritated the jurors and harmed Wagner’s chances. “This does not indicate that they had a very high opinion of their case as touching the innocence of their client,” Pearson noted.
Even if Wagner was guilty, Tapley wanted justice. He clearly believed John Hontvet and his fishing friends conspired to bend the truth. He did not trust the hard evidence provided by the police. He questioned the admissibility of Anethe’s dying declaration. And, as Fischacher feared, the jury may have been biased against the penniless Prussian immigrant from the start and may also have resented his fancy lawyer from Boston. Despite his denials, Officer Entwistle may have attempted to bargain Wagner into a confession, a practice still common in police stations today. The media undoubtedly shaped public opinion against Wagner when the newspapers initially named him as the killer, but the favorable jailhouse interviews that followed also convinced many who never met him that Wagner was an innocent man.
An item discovered in the Bangor Commercial published three years after Wagner’s death offers an exclusive glimpse behind the scenes. The article, titled “An Unpublished Incident of the Wagner Trial,” might just wrap up the entire case. While on business in Bangor in 1878, Max Fischacher was asked by an enterprising reporter whether he thought Wagner had truly been guilty. Fischacher, of course, declined to comment directly. “But I will give you a little circumstance bearing on that question which did not come out in evidence,” he told the reporter.
Besides Maren’s testimony, the most damning evidence at trial had been the “battle on the bridge” at New Castle. If Wagner was there, as numerous witnesses claimed, then his alibi was undeniably false and he was certainly guilty. The Portsmouth police, Fischacher told the Maine reporter, had rounded up “every man, woman, and child who claimed to have seen him that morning,” and brought them to identify the prisoner in his cell. Near the close of the trial in Alfred, Fischacher had learned that one man named John Lyons, on seeing Wagner in the Portsmouth jail, said aloud that Wagner was not the man he met along the road in New Castle on March 6. Yet Lyons had testified for the prosecution earlier that week, confirming he had seen Wagner just after he crossed the washed-out bridge. Had Lyons lied under oath? This might be the break they had been waiting for. So on Saturday, in the middle of Louis Wagner’s testimony, Fischacher had begged Judge Barrows to pause the trial. The adjournment was granted. Fischacher rushed from Alfred to Portsmouth.
“I found the man,” he told the reporter years later. Fischacher confronted Lyons and asked him why, while at Portsmouth jail, he had denied seeing Wagner on the New Castle road, but then reversed himself, and testified in court that he had seen Wagner. Lyons admitted he had pretended not to identify the prisoner at first, when Wagner was glaring at him threateningly through the bars, but he later told the police the truth. The defense attorney was skeptical. This might be proof the police were coercing witnesses into lying. He pressed Lyons harder. Had he really seen Wagner or not?
“Now I will tell you how you can satisfy yourself that Wagner was the man,” John Lyons told Fischacher. Lyons explained that, although he had not known who Wagner was when he saw him by the bridge at New Castle, he noticed there was a white spot on the buckle strap of his blue overalls. It was just one of those odd details that stuck in his mind as Wagner passed him, wet and disheveled, and headed frantically toward Portsmouth. Lyons had remarked on it to a friend.
“So when I got back to Alfred,” the attorney told the Bangor newsman, “I examined the buckle strap, and sure enough, there was the white spot just as Lyons had described it.” The witness Fischacher had hoped would prove Wagner was not on the bridge had instead made a stunning identification. The smoking gun was in the wrong hands, and the defense attorney returned to Alfred alone to wrap up the trial. “I did not have Lyons recalled,” he told the Bangor reporter, and the obvious was left unsaid. Fischacher knew Wagner had been on that bridge.
When this revealing article was reprinted in the Portsmouth Daily Chronicle on September 27, 1878, the editor could not resist jabbing at local people, particularly the editor of the Times, who “held to the belief that Louis Wagner was not guilty.” Even Wagner’s lawyer, the newspaper taunted, had known his client was “a brutal cowardly wretch who murdered two poor women from whom he had received only kindness.”
Even with this knowledge, Tapley did his best to keep Wagner off the gallows by dutifully filing every post-trial motion the law allowed. He immediately submitted his “exceptions” based on seven objections Judge Barrows had overruled in court, including the nagging issues over jurisdiction, Anethe’s dying declaration, and the introduction of the button and the pencil as evidence. For the next two years, Tapley searched for legal loopholes and grounds for appeal, delayed the execution date, and pushed the governor of Maine to reopen the case or commute Wagner’s death sentence to life in prison.
This crusade coincided with a popular movement against capital punishment in New England that was especially active among Quakers and Unitarians in the state of Maine. Already the first “dry” state in the nation to prohibit the public sale of alcohol, Mainers were very close to abolishing capital murder as well. With only two exceptions, no one had been executed by the state of Maine for almost three decades. And despite a rise in capital crimes, by 1873 there were fourteen prisoners living out their lives on death row at Thomaston State Prison.
“The state occupies a false position,” the Daily Eastern Argus editorialized way back in 1854. “Legally it professes to believe in a mode of punishment, which it has too much humanity to carry into practice.”
Wagner’s death sentence, though generally acceptable to the public, troubled those who had succumbed to his charisma or who were prone to distrust any case based largely on circumstantial evidence. “We see a very high degree of probability in the case made by the government,” the Boston Advertiser reported after Wagner’s sentencing, “but not that infallible and immutable certainty on which alone we should be content to see a man hanged.” Charles Thayer at the Portsmouth Evening Times, considering Maine soft on execution, wrote, “It is therefore probable that Wagner may yet live to old age and die a natural death.”
Opposition to capital punishment in Maine had been brewing since the largest state in New England gained its independence from Massachusetts in 1820. The harsh Puritan penal system created by the state’s founders was deeply embedded in Maine history. In the seventeenth century, that punitive system could sentence its citizens to death for a host of crimes including idolatry, blasphemy, public rebellion, witchcraft, bestiality, buggery, bearing false witness, rape, “man stealing,” and burning a house or ship. Technically, a child subject to early Puritan law could be executed for failing to obey his parents. By 1829, while creating its own more lenient laws, Maine legislators had reduced the number of capital crimes to treason, murder, and arson.
Then in 1834, Joseph Sager poisoned his wife, Phoebe. Or so the county prosecutor claimed at Sager’s murder trial in the state capital at Augusta. His housekeeper testified that Mr. Sager had left the breakfast table to make an “egg pop,” a mixture of wine and egg, and served it to his ailing wife. She also drank a cup of tea. Sager urged Phoebe to drink up, because “all the best of it, the sugar, was at the bottom.” Phoebe and the housekeeper noticed a white powdery substance on the milk pitcher, and they threw the milk out. Phoebe became terribly ill and, while lying on her death bed with her neighbors gathered around, she chastised her husband. “You are the whole cause of this, now,” Phoebe told Joseph. “Be an honest man and confess it.”
Like Louis Wagner, Joseph Sager did not confess. Investigators found traces of arsenic on the milk pitcher, but an autopsy team could not absolutely confirm the poison had killed Sager’s wife. Phoebe had been sickly for many years, and the defense argued that her autopsy indicated heart and gall bladder ailments, among others. A neighbor testified that the Sagers had marital problems and that Joseph, who was fifteen years younger than his wife, had licentious urges. “I have frequently heard him damn her using the most profane oaths,” the neighbor testified. Sager’s attorney said there was absolutely no proof his client had done anything wrong. The evidence was strictly circumstantial, he argued, and threw suspicion onto the housekeeper. The jury could make Sager an innocent man, the attorney declared, or “you may fix the fatal cord around his neck, and behold him swinging in the air, a blackened corpse.”
The jury did exactly that. Sager was promptly executed outside the Augusta jail in January 1835. As many as five thousand spectators showed up despite a heavy winter snowstorm the day before. After waiting two hours for a governor’s reprieve that never came, Joseph Sager was hanged before a festive crowd. His friends immediately took the body to a nearby town where they attempted, in what sounds like a scene from Frankenstein, to revive his corpse using unspecified “galvanic means.”
Sager remained dead, but his execution reanimated the debate over capital punishment. That same year, an “anti-gallows” governor was elected in Maine. Some legislators wanted only to move the spectacle out of the public eye, putting an end to the drunkenness, revelry, and pick-pocketing that inevitably occurred at public hangings. Proponents of the death penalty, drawing from Puritan roots, offered the longstanding argument that such horrible displays were designed to chasten the audience and discourage similar behavior. They quoted the familiar biblical passage from the Book of Genesis—“whoever sheds man’s blood, so shall his blood be shed.” Opponents countered that Maine residents were not bound to the ancient tenants of the Old Testament, but observed the Christian principles of forgiveness, love, and mercy. If the public spectacle was a deterrent to crime, they pointed out, then why had there been four new murders in Maine during the months following Sager’s hanging?
Unable to ban executions outright, abolitionists managed to chip away at the process. In 1837, Maine passed a law requiring a one-year grace period between the final sentencing and execution of the condemned criminal. Capital prisoners were required to reside in solitary confinement at the state prison and work at hard labor. After a year, the governor was required to review the prisoner’s case and sign a death warrant. Most Maine governors balked at this added step, not wanting to act in a judicial capacity, especially with public sentiment running against hanging.
One governor did sign off on the execution of Valorous P. Coolidge, a Maine doctor who killed a man who owed him money, but Coolidge managed to commit suicide in his cell before he could be hanged. Two sailors, Abraham Cox and Peter Williams, were hanged publicly for murder and piracy in Auburn, Maine, in 1858. Theirs was a federal case, however, and did not impact Maine’s thirty-year record as a state soft on capital punishment. But there was no leniency for Francis Couillard Spencer. While serving a five-year sentence for assault, Spencer inexplicably stabbed the Thomaston warden in the neck, puncturing his carotid artery. Spencer was hanged in the prison yard in 1864 on the exact spot where he had killed the warden.
By 1867, under Maine’s post-war governor Joshua Chamberlain, one of the ten men then living on death row at Thomaston had been there for twenty years. A hero of the Battle of Gettysburg, Governor Chamberlain suggested the legislature either abolish the death penalty once and for all or repair the current law that he considered unconstitutional because it effectively made the governor the hangman.
And yet, Chamberlain himself signed off on one execution—a controversial one. Clifton Harris was convicted of killing two women in the town of West Auburn. The two women were white and Harris was black. Maine was then, and according to the most recent US Census, still remains, the “whitest” state in the nation. The newspapers clearly saw racial prejudice at work here. Harris’s partner in the crime, and likely the real killer of the two women, was white, and yet he was freed on appeal. And while Gov. Chamberlin commuted the sentences of three other white inmates, he issued a death warrant for Harris, who was executed in 1869 as soon as his one-year mandated waiting period was over.
The son of African American parents who had been kidnapped, sold, tortured, and enslaved, Clifton Harris was hanged behind prison walls at Thomaston. Only fifty witnesses were present. The Weekly Kennebec Journal described the scene for its readers, and for history, in horrific detail. As Harris dropped through the trapdoor of the gallows, “the hands commenced to twitch convulsively and there was an effort [by Harris] to pull them from the cords which bound them. The knees were drawn up and the body spun around and around. It was evident that the man was dying of strangulation. The struggle continued some two minutes with the exception of an occasional mighty effort of the chest. The body hung there for twenty-five minutes.”
The inhumanity of this method of killing prisoners could not be denied. The debate over capital punishment heated up once again. The state of Maine was losing its taste for blood revenge and no condemned man would be hanged at Thomaston State Prison until 1875, when Louis Wagner and John True Gordon mounted the wooden stairs of the scaffold. Wagner, some still believed, was an innocent man. Gordon, already half dead from a self-inflicted wound, had to be carried the last few steps and positioned over the trapdoor. The scene that followed came very close to ending capital punishment in Maine forever.