CHAPTER TWENTY-FIVE
The Trial
JOHANNESBURG
— 1909 —
Nothing dies harder than the desire to think well of oneself.
When the Criminal Sessions commenced in the High Court, on Wednesday, 1 December 1909, the room filled to hear an indictment on two charges of murder – of George Stevenson and Hadji Mustaffa. The charges were read out on behalf of the Acting Attorney-General of the Transvaal, ‘Jan Christiaan Smuts’. If convicted, the Acting Attorney-General ‘prayed for judgment against the accused’ – whose name was given only as ‘Jack McLoughlin’ – to proceed ‘according to law’. Did it matter that his name at baptism was John, not Jack? Perhaps not. Enquiring too closely into the life of an accused distances the law and humanises the pursuit of justice beyond limits that many states are comfortable with.
Throughout the trial there was always something on display to remind one of the bravado of the leader of the ‘Irish Brigade’, the terror of every publican along the mining frontier and of the Johannesburg underworld. But there were also telltale signs of a man who was never fully at ease with his body image and who had failed to recapture fully his manly posture after losing a limb.1 It did not help that, after Mynott and De Beer had handed him over to men at Marshall Square, the besieged Chief Detective, Major TE Mavrogordato, had seen fit to confiscate his ‘false hand’ and immediately place it on display in the police museum.2 The state had its trophy even before the outcome of the hunt was clear.
As ever, Jack McLoughlin insisted on presenting himself as self-confident and well-kempt. He steadfastly refused to cast himself as anyone’s victim, including that of the young man whose betrayal had shattered his barely cohering self-image in 1894. According to a not entirely unsympathetic court reporter:
McLoughlin appeared to be in the best of health and spirits, although whenever a particularly damaging statement was made his facial muscles quivered for a second or so. But in every instance the quivering ended in a smile. He was neatly clad and well groomed; and he seemed to take particular care to conceal his right arm, the hand of which had been amputated. From time to time he scanned the faces of the morbid-minded crowd which filled the public section of the Sessions room as though he was looking for somebody.3
The first and most damaging day of the trial belonged entirely to the prosecution. Douglass’s preparation had been meticulous and he examined a string of witnesses as to the events in the rooms behind the Red Lion Beer Hall to devastating effect. Most of the Crown’s witnesses were either working-class coloured men and women, or former prostitutes. The principal exception was Harry Lobb, the mason and one-time boxer who, along with Jack McCann, had been present at the infamous dinner McLoughlin presided over in Rosenthal’s Café on the night of the shootings. The star witness of the first day, however, was undoubtedly George Stevenson’s inamorata and McLoughlin’s long-time rival for the young man’s affections – Sarah Fredericks/McNeil.4
Determined and feisty, Fredericks made an excellent impression. She was an unwavering witness for the prosecution, recalling details around the shooting of her lover with graphic precision. She was full and frank about her comparatively long and loving relationship with Stevenson as well as the fatal consequence of his decision to provide evidence for the state in the Pretoria Station robbery case. Fredericks was careful to avoid disclosing the sources of her own income or the nature of her earlier acquaintance or relationships with either Jack McLoughlin or Harry Lobb, her former lover. Her complicated past remained largely secret.
Sensing that it would be difficult, if not impossible, to shake Fredericks’s testimony about a shooting that she had witnessed at point-blank range, Lucas’s cross examination of her took a different tack. He questioned her insistently about her prior relationship with Lobb and how it had led to a street-fight with Stevenson that had to be settled by way of a boxing match in order to determine who would be the recipient of her favours. The defence hoped to portray her as a common prostitute with questionable credibility and to suggest that she had surrounded herself with men of a violent disposition – some of whom, presumably, might have had their own reasons for wanting to settle scores with her former lover.
Fredericks, however, was as intelligent as she was persuasive. It was difficult to cast her as a mere hawker of sex. Her complex relationships with a string of men could not easily be portrayed as casual, on-going whoring. Not beyond telling the odd lie, she denied any knowledge of the boxing match or the press report that it had evoked. Her single-minded, monogamous devotion to Stevenson had endured until his death and occasioned sufficient sacrifice for it be credibly presented as something close to a common law marriage. When that line of questioning proved unpromising, Lucas prepared the way for an arcane point he was to raise later. He attempted to establish Stevenson’s religious beliefs. She told the court that, as far as she could tell, her lover had not had any.5
The rest of the day was spent interrogating various men and women who had been in the rooms off the passage, or elsewhere in the Red Lion at the time of the shooting. It was brought to a conclusion with a brief examination of Lobb about the celebratory dinner at Rosenthal’s. Lobb, still wary of McLoughlin, was as elusive and vague as possible. ‘I could not say I knew him well,’ he suggested. Sarah and I ‘did not exactly live together,’ he claimed, and so on. But Lobb could not deny that by the time of the dinner he knew that Stevenson had been shot, and that he was aware that his one-armed friend was the only suspect.6
On Thursday, the second day of the trial, Douglass and Tindall bolstered an already devastating case for the prosecution by calling 20 more witnesses. Almost all offered testimony about the shooting of Stevenson or the tragic street-slaying of young Hadji Mustaffa that was as focused as it was clear. A notable exception was Johannesburg’s venal Chief Detective of the mid-1890s, one of about a half-dozen policemen who had known the accused. Robert Ferguson was a shell of a man, an officer of the law whom McLoughlin, at the height of his powers, had cowed and humiliated to a point where he lost all respect and was then forced to resign from his position by the press.
Taking comfort from the fact that many years separated him from the shootings, and hoping that nobody would contradict or question him by referring to reports at the time, Ferguson dissembled and equivocated so as to place even more distance between him and the events that had proved to be his undoing. He claimed to have resigned days before the shootings. ‘I am not certain whether I was in town that evening or not,’ he lied. ‘I came into town the following night or two nights afterwards from Heidelberg if I was not in that evening.’ He also denied having subsequently seen the accused in Delagoa Bay. Ferguson epitomised everything that McLoughlin despised, the man he feared he would have become had he not shot Stevenson. In his own testimony he again hinted at the detective’s cowardice.7
Ferguson aside, the Crown Prosecutor and most of the policemen did exceptionally well. When the trial concluded the Chief Justice, mindful of the fact that the police had got a drubbing from the press for their shoddy public performance over the past few months, was fulsome in his praise. Sir James was struck by ‘the vigilance, capacity and industry of those concerned in investigating the case’.8 Of all the witnesses for the prosecution on the second day, however, few carried more weight than did Ferguson’s successor as Chief Detective, Andrew Trimble, and the Veld Kornet at the time, FE Kretzmar. Between them, they had taken an affidavit from George Stevenson, as he lay dying, and in which he had clearly identified his assassin as his one-time partner, McLoughlin.9
But neither Trimble nor Kretzmar’s testimony was beyond question, and it was at this point that Lucas saw his best chance to put to use his reputed skill as an expert on the law of evidence. He drew attention to the fact that, despite an extensive search in the police archives, the prosecution had been unable to come up with Stevenson’s original, sworn and signed statement, implying that this relegated the officials’ evidence to something approximating to hearsay. In addition, Lucas averred that his questioning of Sarah Fredericks had revealed clearly that Stevenson was a non-believer and that, as such, any supposedly ‘sworn’ statement should count for nothing in a court of law.
The Chief Justice halted proceedings in order to hear these objections, the validity of which were immediately contested by Douglass. Sir James listened carefully but was singularly unimpressed by what he heard from counsel for the defence. In commonsense, no-nonsense, mode he dismissed Lucas’s argument, suggesting that the rule was that ‘the best evidence must be produced if possible, but if not, the secondary evidence should be taken’ and that, ‘the fact of a man having no religious belief did not in the opinion of the Court make any difference’.10
Lucas’s moment had come and gone. He had little to show for his efforts. Much of the rest of the day saw McLoughlin himself in the witness stand. The accused man’s evidence was, for the main part, disingenuous – a crude mixture of dissembling, strategic silences and outright lies. But, as had happened while chatting to Mynott aboard the Wyreema on leaving Brisbane, just recalling the early days on the Rand breathed new life into him. A reporter noted that there was a ‘twinkle’ in his eye while recalling events on the day of the shooting. Unable to render explicitly or fully the code of masculinity and oath-taking that had informed his behaviour in frontier Johannesburg 14 years earlier, he nevertheless made it clear that he considered his own conduct to have been above reproach – manly – and quite unlike that of Stevenson.
His testimony was punctuated by short sentences. Like a pit-bull straining at the leash, the anger and hubris was barely contained. ‘I knew all the town but I did not know the Red Lion,’ he said. ‘I had confidence in myself,’ but ‘I did not use a revolver that day’ – even though many other white men carried concealed weapons. ‘I could shoot with a revolver the same as any other man but I was not an expert shot,’ but then, with poorly disguised pride: ‘I could use it as well as if I had a right hand,’ because, back then, Johannesburg was a ‘rough place’.11
He made much of the confusion as to whether or not he had sported a beard on the day of the shootings, tried to do some misleading about a supposed one-armed look-alike, and generally played down the dinner at Rosenthal’s and his brazen movements around town later that day. He had seen the one-armed man ‘continually for two or three months’ – yet, despite sharing an affliction, ‘did not know his occupation or anything about him’. He had dinner with friends that night but had not lingered in town. ‘Is it feasible,’ he asked, that ‘I should go moping about Commissioner Street between the Central Hotel and the Height’s Hotel if I had murdered this man? It is one of the most dangerous places in Johannesburg.’12 But he was rowing against wave upon wave of contradictory evidence. And amidst all the self-generated turbulence, the only thing that the unfortunate Lucas could do was to hang on grimly.
Predictably, the weakest part of McLoughlin’s testimony related to the emotions that had engulfed him, Stevenson and Sarah Fredericks in the weeks leading up to the Pretoria Station robbery. With breathtaking understatement he conceded only that ‘Stevo was a friend of mine at one time or another’, but then went on to underscore how, after the robbery, ‘[Stevo] was despised by everybody in town’ – presumably himself included. He never once referred to the dying man’s deposition identifying him as the assassin. He claimed never to have had problems with Fredericks, whom he had got to know well before she met Stevenson. But then, in an unguarded moment, he hinted at an underlying problem of jealousy, rejecting her testimony by suggesting that: ‘… I do not know why she should tell lies except that she was living with Stevo’.13
Although often revealing his own complex and vulnerable make-up, McLoughlin’s testimony failed to diffuse the prosecution’s unrelenting focus on the events leading up to and after the shootings. McLoughlin insisted that he knew nothing about the shootings at the Red Lion Beer Hall, other than through hearsay, which he had dismissed as ‘a joke’.
The court proceedings on Friday, the third and final day of the trial, followed a painfully well-worn path. The case for the Crown had been assembled with such diligence that Douglass had little to do in addressing the jury other than point out the obvious. Nobody, he said, had disputed the fact that the first victim had been shot by a man with ‘only one arm and that he had held the revolver in his left hand’, or that Stevenson had been ‘in the best position to know who shot him’. The shooting of Mustaffa had been so well established by many witnesses that there was no need to dwell upon it. The accused was clearly guilty.14
In his closing address Lucas attempted to deal with Sarah Fredericks’s first-hand account of the shooting. He tried to sow small seeds of doubt in a field of stones by pointing to Stevenson’s allegedly ‘cowardly’ behaviour after the station robbery. He underscored Stevenson and Fredericks’s alleged lack of composure at the moment of the shooting:
They were afraid of their shadows and in a state of mind that they had the fear of some particular persons [Lobb and McLoughlin?] continually before them. They were afraid of McLoughlin and thought they saw him every time they saw anybody. When the knock came to the door and the man entered they naturally thought of McLoughlin. It was dark. Sarah McNeil, who stood behind Stevenson – who was a big man – could not see, and yet said it was McLoughlin. She shouted out ‘McLoughlin has shot Stevo’, and that fathered the whole testimony in the case. As time passed the impression on the people’s mind was confirmed.15
According to Lucas, the whole episode was no more than history viewed through the collective imagination – an eerily post-modern suggestion. But his closing address had long since been reduced to an exercise in shadow-boxing. Douglass had punched out a compelling argument. It was a hopeless mismatch. So gross was the disparity that both counsel for the defence and the Crown Prosecutor had failed to engage with some of the more arcane and intriguing elements that had arisen during the hearing. There were a few loose ends, seemingly contradictory evidence, that might yet come to trouble the jury during its deliberations.
* * *
Sir James Rose Innes had picked up on the loose ends and knew that he would have to deal with them when instructing the jury. For one, he had taken note of the accused man’s seemingly inexplicable behaviour before and after the shootings. But, try as he might, the judge was at a loss to situate such a daring and self-controlled manner in its appropriate, wider, context. Rose Innes simply could not see a once-charismatic gang leader attempting to regain caste in an underworld that operated within the prescriptions of the Victorian cult of masculinity. He used his summing up to sew up the troubling loose ends around Stevenson’s shooting, taking that of the Hadji as having been proved beyond doubt.
The Chief Justice prefaced his comments to the jury by noting how well various law-enforcement agencies had done to ferret out an ‘alleged perpetrator of the murder – a cold-blooded murder – committed fifteen years ago’.16 Rose Innes could detect no signs of passion. He went on to remind jury members, without offering any detail that might inform their deliberations, how a lengthy interval between the commission of the crime and the trial might bedevil the administration of justice. It was an anaemic formulation designed to discourage questions as to whether there may have been an ethnic, emotional, ideological or singularly personal motive – as opposed to a merely criminal one – behind the shooting. It was a pared-down view of the complicated events that had led up to the execution of a police informer. Only someone with a tin ear, or someone intent on extracting a clear-cut verdict, could have ignored the deep feelings that linked Fredericks, Stevenson and McLoughlin.
By reducing the reasons behind the shooting to just one – revenge, pure and simple – the learned judge brought the motive and the act into alignment. The intention of the one-armed assassin, which had never been fully probed, was assumed to have been demonstrated beyond all reasonable doubt. But if the assassin, a man comfortable with a revolver and known to be a good shot, was intent only on slaying his victim, why had he fired but a single bullet at Stevenson and then left, perhaps knowing that the victim had probably only been seriously wounded? Had his intent been all that clearly demonstrated? Could it not have been that he had left knowing only that he had inflicted serious harm, of indeterminate consequence, on his victim? The accused had not panicked or fled helter-skelter; witnesses recalled that, upon leaving Fredericks’s room, the one-armed man had deliberately walked away and said to the two men he passed in the passage: ‘All right boys, I won’t harm you.’17
More pertinently, if the shooting was simply an act of revenge of the sort occasionally encountered among the under-classes, one where the intention was to kill by way of clinical execution with a single shot, why had the alleged murderer sent his victim a message telling him that he would be a dead man by nightfall? It was surely unusual for a murderer to give his victim advance notice of his impending death and, as in this case, allow him the time to find and load his own revolver and prepare for a possible shootout? The truth was that there had been a primitive, underlying, duel-like dimension to the shooting which, had Stevenson been slightly more alert and vigilant, might have given rise to a different and wholly unpredictable outcome. These were awkward, potentially messy, considerations – but here too, Sir James was having none of it:
His Lordship dealt with the evidence of the witnesses, and on continuing, referred to the warning alleged to have been given by the accused. Would he have given that warning before committing murder? It might be unlikely but it was possible. Men often warned their intended victims from various motives – from a rough sense of fair play or perhaps anxious to make it as miserable as possible for the victim. The fact that a warning was given was not greatly in favour of the accused when examined as they would be prepared to regard it at first blush [sic]. If the story of Sarah McNeil [Fredericks] was true, it was a cold-blooded deliberate murder.18
So much for a ‘rough sense of fair play’. It was, yet again, a parsimonious albeit logical reading of the events leading up to the shootings, one that rested largely on Fredericks’s account, in which she, like McLoughlin – for reasons of his own – was at pains to play down the emotional cross-currents in a triangle of deep affection, if not love.
The dinner at Rosenthal’s, McLoughlin’s week-long stay in the inner city and his night-time sortie past the police station where he had learnt that, like any ‘outlaw’, he was ‘wanted dead or alive’ and had heard the police interrogating ‘his girl’, constituted further potential distractions for the jury. They were bold acts which, in truth, were probably calculated not only to flaunt McLoughlin’s newly recovered status in the underworld, but to consciously produce a dissembling pattern of behaviour that would be difficult to reconcile with the conduct of someone who had just shot two men.
The Chief Justice, however, having already downplayed the importance of a duel-like element to the confrontation between the men – a formulation that denied the assailant having even a modicum of courage – was equally unwilling to cast events in a light that might credit the accused with the semblance of real bravery. Sir James’s view of the events was clear:
If [McLoughlin] was the guilty man it was a most foolhardy and daring [act] that having shot a man, and being followed by a crowd of people who must have recognised him on account of his deformity, a man known in Johannesburg for a long time, and then to have gone with Lobb to the café when he must have known that a hue and cry was already raised. He might be a very desperate and daring man but it was a foolhardy thing to do.19
In the eyes of the Chief Justice, after the shootings McLoughlin had been, in that order, ‘foolhardy and daring’ or ‘desperate and daring’. On Sir James’s reading, the accused had only been reckless or mindlessly provocative in an otherwise hopeless situation. His behaviour was ill-considered, his deeds probably best construed as either rash or resigned. It was a view, conveyed to the jury, that allowed for no controlled acts of courage on the part of a man with a physical handicap, a ‘deformity’; a man who was attempting to regain respect, including self-respect, in a sub-culture obsessed with notions of masculinity. Rose Innes’s view was part of a perception that also made no allowance for the possibility of an ‘outlaw’ intent on staging a successful, well-planned exit from the city and country he had spent the better part of a decade in. It was a ‘cold blooded murder’ by a man more foolish than he was brave. In short, there was nothing to commend the man or his deeds.
After the summing-up, the court adjourned, allowing everyone to have lunch before the jury retired. In a nearby holding cell McLoughlin resolved that, whatever the outcome, he would again attempt to conduct himself with the necessary dignity and refuse to supplicate before the court. Lucas had offered him no grounds for optimism on the way out. The nine men could do as they thought fit, he would surely say no more.
The jury members wrestled with the problems as best they could and experienced little difficulty in moving to a consensus position. The Crown Prosecutor had effectively put the question beyond doubt by the end of the first day. Counsel for the defence had done nothing to dent the testimony of a score or more witnesses. The charge on the second count, the murder of the Hadji, required almost no debate at all, it had been proved conclusively. It was the murder of Stevenson that was difficult to deal with; that was the horse that would have to pull the cart through the swamps of muddied logic.
The problem for the members of the jury was that Rose Innes had left them with almost no room in which to manoeuvre when it came to the murder of Stevenson. It was their verdict in that matter that would do most to shape the attitude of the skittish white working classes to the outcome of the trial. Everybody knew that they were living in difficult times, attitudes were hardening and class conflict was becoming ever sharper. Miners, in particular, would expect the jury to show more signs of compassion than might be expected from a judge or a prosecutor.
The jury sensed that there were underlying issues in the case that had not been properly explored but, in his summing up, Sir James Rose Innes had all but sealed them off too. The only straw the Chief Justice had left for them to clutch at was his acknowledgement that the enormous lapse in time between the shootings and the accused coming to trial had constituted a serious problem for all the parties – and more especially so for the accused. With one exception, members of the jury agreed that it probably was a mitigating factor and that they should attempt to seek unanimity and somehow build it into their findings. But the lone dissenter among them could not be persuaded to abandon his hard line. It was Friday afternoon, and after a while they agreed to bring in a unanimous verdict with a majority recommendation.
Shortly after the customary hour devoted to lunch ended it was announced that the court would reconvene in 30 minutes. When the doors to the courtroom opened, at 2.15 pm sharp:
there was a general rush on the part of the public for admission They came along in such a large body that one youth was pushed through the glass panel of the inside door. Within two minutes the space allotted to the public outside the barriers was completely crowded. 20
Judge, jury and the accused all entered the courtroom promptly at 2.30 pm. The Registrar of the Court, Charles Rorke, addressed the foreman:
Gentlemen, have you agreed upon your verdict?
The Foreman: We have.
Do you find the prisoner at the bar guilty or not guilty on the first count?
The Foreman: Guilty, my Lord.
The Registrar: And on the second count?
The Foreman: Guilty. We wish, my Lord, to add the recommendation to mercy, by eight to one, owing to the time which has elapsed since the commission of the crime and the trial.
The Registrar then asked [the convicted man] whether he had anything to say why the sentence of death should not be pronounced upon him.
McLoughlin replied in a firm voice: ‘No, sir’.21
True to his promise to himself, Jack McLoughin ‘remained unmoved’, tapping his fingers on the front of the dock. Like Ned Kelly and other outlaw heroes of the age, he, too, wanted ‘to die game’, to show that he was a man. As the Chief Justice prepared to hand down the sentence he knew what was coming:
Well McLoughlin, the jury had found you guilty after a very fair and very careful trial and personally I do not think any other verdict was possible from the evidence. I do not wish by any words of mine to add to the pain of your position. The jury has recommended you to mercy, and I shall have much pleasure in forwarding that recommendation to the proper quarters, but in view of the evidence, I do not want to give you an exaggerated hope as a result of that recommendation so as to interfere with the making of your peace with God. I have only one sentence to pass.22
The convicted man ‘looked straight at the Judge while the sentence was being passed’ and, at the conclusion, ‘walked firmly and quickly out of the dock in charge of the Court Orderly’.23 He left the courtroom with the clearest understanding possible of what would happen next. Sir James Rose Innes, Chief Justice, constitutionalist, imperialist and liberal, had told him, in polite language, that it was to be a case of no hope rather than one of ‘exaggerated hope’. While standing about, waiting for ‘the Black Maria to convey him on his last journey to the Fort’, he turned and remarked to the warders: ‘Well Boys’ – his long-favoured mode of fraternal address – ‘I shan’t see the Seven Stars Inn at Manchester or the Mersey again.’24 The need to be constantly on the move had ended; there was only one short, or very long, journey left.