The Mammoth Book of Unsolved Crimes (29 page)

Dr Tidy, a distinguished specialist in forensic medicine and, like Dr Stevenson, employed by the Home Office as an analyst, said that if Maybrick had died from arsenic he would be a “toxicological curiosity”; he threw the whole weight of his authoritative knowledge on the side of the defence, giving a detailed account of food-poisoning, which was suggested as an alternative cause of gastro-enteritis—he explained that as “trifling” an irritant as a particle of gooseberry skin could produce the complaint. He pointed out that none of the four distinctive symptoms of arsenical poisoning had been manifested by the deceased.

These observations and opinions, as strongly expressed as those of Dr Macnamara, were stated, however, between prolific and prolix medical explanations, some of which must have been quite incomprehensible to a jury. For example, “As regards the appearances of the stomach—that is, the description given of redness at the cardiac end of the stomach, the natural colour and the red appearances at the pyloric end?” “Conjoined with the duodenum and with such other parts, I would say that these are perfectly consistent with death from gastro-enteritis.” And such general unexplained observations as “I am of the opinion that gastroenteritis does not occur idiopathically.”

Mr Justice Stephen’s contribution to the medical explanations, which formed the larger part of a summing-up lasting two whole days, was a curious mixture of adroitly concealed cynicism about the capacity of the jury to form a valid opinion about this part of the evidence and an exposition of it so dilatory that it could have only aggravated the confusion in the jury’s minds.

“The subject and the evidence in this case,” he said, “is but one of the many instances which has satisfied me, if I had not already been satisfied of it before, that medicine and everything connected with medicine is so much a matter of fact and experience of facts which do not readily present themselves for inspection, that you never can arrive at medical conclusions with anything like the same degree of certainty in your conclusions as you are entitled to expect in science which deals with mathematical demonstration or legal argument. I would not for the world say anything disrespectful of a science to which we all owe so very much; but it is science based upon more or less conjecture, and good sense and good fortune in making guesses.”

Having reached this conclusion, he presumably entrusted the jury with the task of making the guesses which he hoped by good fortune would be the right ones.

Later he said: “The doctors—the medical men—who do not believe in the arsenic, do not believe that the symptoms of that sort were the symptoms of arsenic; and that is, of course, of great importance—although I fear that we are there getting amongst questions which I have already warned you are really, speaking quite plainly, too difficult for us. At all events, they are too difficult for me.”

Then, after a lengthy analysis of the arsenic question: “I am very sorry I can do so little to help you in this great matter, but it is a great relief to me that, under the constitutional law of this country, it is you who have to decide the case and not I.”

This modest thought was expressed repeatedly later in his summing-up:

“Of course, speaking with precision, such a thing as an absolutely idiopathic disease can hardly exist at all; it could not arise except by some means, though one does not always know what it is. The doctors are divided in opinion, and, of course, I cannot answer the question whether there was arsenical poisoning or not.” And: “I should have to go into them [the medical arguments] at the expense of saying a good many things which had better not be said, and of showing my own extreme ignorance of the great difficulty of the subject.”

Later, referring to the medical controversy, he remarked: “It is extremely difficult to decide in this matter. It is a special science, of which I know nothing, and of which, I think, it is very unlikely that any one of you could possibly know very much. It is not a kind of knowledge that is likely, in the ordinary course of affairs, to fall to your lot. Two eminent men are put forward as very great authorities on this subject, and they both arrive at different conclusions on the matter; and the point in dispute is one upon which I cannot myself profess to form an opinion; and I don’t see how to suggest to you that you should form an opinion.”

The sort of evidence on which the jury however still had the responsibility of forming an opinion is typified by this further quotation:

“He [Dr Stevenson] says, ‘I found rather more arsenic than Mr Davies,’ and then he gives some calculations. He says, ‘I had 28 ounces of liver out of 48 ounces, which the liver weighed, and I found 27–1000ths of a grain. I actually weighed from the liver .034 of sulphide of arsenic, equivalent to .026 of a grain of white arsenic,’ and he makes out .087 or .091 of a grain—altogether 100–1000ths of a grain, or 1–10th of a grain, and this would be less. I cannot convey to your minds, or to any human being’s mind, anything to enable you to attach any meaning to figures representing such very small quantities . . . The globules of blood in a man’s body are so small that there are more than a billion, but really that conveys no idea whatever to our minds.”

It seems obvious from these repeated doubts about the possibility of arriving at any conclusion on this question that the judge should have at least warned the jury in the strongest terms to use great caution in examining this part of the evidence, and made plain to them that if, as was likely, they could not form an opinion, then this must constitute a genuine doubt as to whether murder had been committed. He appeared to do the very opposite: to indicate to the jury that if they could not decide on this evidence, they might minimize its importance, suggesting that the objectivity of the medical witnesses might be doubtful.

“You know perfectly well,” he told them, “that there is such a thing in scientific and legal questions . . . as subtle partisanship, which very much diminishes the value of the evidence given under such circumstances . . . The mere fact of a man coming into a Court and swearing this, that and the other, does not by any means give a reason for unqualified belief in what he says.

“You have to take off a good deal of discount from the testimony of skilled witnesses on the ground of their becoming, probably insensibly to themselves, advocates rather than witnesses. I certainly would not like to be invidious, and I would not do so unjust a thing as to impute in this awful inquiry advocacy to those gentlemen who have given the Court the benefit of their experience. Well, you must exercise your own free judgement, free from all unnecessary modesty about your own opinion, and free from all unnecessary respect for the opinions and special knowledge of men especially acquainted with these things.”

This invitation to the jury not to be unduly modest about their own opinion simply because it was based on ignorance, and not to be unduly respectful of the opinions of others merely on the grounds that they knew what they were talking about, was the only attempt Mr Justice Stephen made to solve the anomalous situation in which laymen had to reach a decision in a matter where experts could not agree. His reference to partisanship or advocacy, insensible or otherwise (quite unwarranted in the case of the medical witnesses called, for neither side made any such imputations about the other) was not really removed from the jury’s mind by his immediate retraction; the doubt had been implanted; a spoonful of tar can spoil a barrel of honey, and a chance remark may have an undue significance at a critical moment of decision.

It is obvious that the jury accepted the direction not to be unduly modest about their capacity for judgement of medical evidence, and did in fact judge it; and that they also took heed of the suggestion not to be unduly respectful of specialists’ opinion. They either decided it was wrong or “subtly partisan” or they simply dismissed it from their minds. The last seems the most likely, because, whilst the experts took hours to expound their point of view, the jury only took about thirty-five minutes to reach a decision.

This part of the evidence, the “contrariety of expert opinion” as Sir Charles Russell put it, raises an interesting and controversial issue. In the case of the imponderable or the incalculable in some important question of evidence, would it not be wise for the judge to implement his discretionary powers and direct the jury to bring a verdict in favour of the prisoner? These powers are used of course when the judge believes that the weight of evidence brought by the prosecution is clearly insufficient to prove a charge, and that the danger of a perverse decision by the jury must be obviated. In the Maybrick case a different problem faced the court—not that of insufficient evidence, for there was prosecution evidence in profusion about arsenical poisoning, but that of the jury’s incapacity to judge the facts. With such conclusive evidence before him of the jury’s inability to form a decision as to whether or not a murder had been committed, for the judge to proceed with the case seemed to defy reason and commonsense; it was, by implication, a tacit invitation, to the jury to dismiss the whole of this part of the evidence from their minds.

Mr Justice Stephen went even further than this, the implicit character of the invitation assuming an ominously explicit form when towards the end of his marathon summing-up he said: “There are three or four circumstances in the case which are circumstances of very grave suspicion indeed; and where you find a case in which this dreadful accusation is made and is accompanied by circumstances which, apart from the physical, chemical and medical aspects of the case, are of such a character as are likely to produce suspicion, you must consider how far they corroborate the other evidence that has been given . . . Supposing you find a man dying of arsenic, and it is proved that a person put arsenic in his plate, and if he gives an explanation which you do not consider satisfactory, that is a very strong question to be considered.”

The sinister illustration devised by Judge Stephen to point his meaning undoubtedly gave tremendous force to this part of his summary; and the point seemed to be that “corroboration” of “other evidence” might be assumed by suspicious surrounding circumstances, this “other evidence”, it might be inferred, being the medical. The emotionally potent turn of language and the judge’s failure to add the customary rider that suspicion, however grave, does not actually amount to proof, undoubtedly had a strong effect on the jury.

The second and equally powerful buttress of the defence was the extraordinary coincidence, that is, the evidence brought to show quite conclusively that for many years Maybrick had been in the habit of taking arsenic in large doses approximating to these which the prosecution claimed had brought about his death.

The defence’s claim was so surprising, and the facts so unusual, that the greatest consideration had to be given to the evidence supporting it. It is worth examining this evidence in some detail, but before doing so it is of interest to try and establish the cause of Maybrick’s eccentric addiction.

As previously indicated, his hypochondria took a very serious form. Those who knew him—his friends, the doctors, his brothers, his wife—frequently noted his preoccupation with his health; he was obsessed with it; he would discuss his symptoms, whether real or imagined, interminably; he would visit chemists for the purpose of trying varieties of cures: tonics, “pick-me-ups”, stimulants, sedatives, patented brands, druggists’ concoctions, his own privately prepared mixtures, doctors’ prescriptions, anything that a friend recommended. He consulted his own family doctor but, not content with that, took advice from the children’s doctor, his brother’s, his friends’; he would get through a medicine at twice the rate prescribed and simultaneously ring the changes on other medicines, many of them containing strong drugs, thus imbibing several mixtures at once for the same ailment, a circumstance quite unknown to any of the doctors treating him. His stomach was a pharmaceutical-toxicological depository. Wherever he stayed he surrounded himself with medicines; his closet and medical cabinet were minor arsenals; shortly after his death a bottle found on one of his hat-boxes contained enough poison to kill a dozen strong men.

Maybrick clearly was a neurotic, a fact not appreciated in those days. At the trial he was judged a normal person with an idiosyncrasy: he had a taste for arsenic rather in the manner you took snuff. Snuff and arsenic were both stimulants, arsenic stronger stuff than snuff, certainly, but the general principle was the same. That was the defence’s line. Sir Charles did a neat piece of theatrical demonstration of this. Examining a witness who had been sent to purchase arsenic for Maybrick, he asked: “Did you go to the druggist’s?” “Yes, sir,” said the witness. “Were you asked who it was for?” “Yes.” Sir Charles, taking out a large snuff-box: “Did you state?” “Yes.” “And brought it back?” “Yes.” Sir Charles, helping himself to a pinch of snuff: “What did you get?” “A very small package; not so long as the box you have in your hand.” The witness pointed to the snuff-box, which Sir Charles flourished eloquently.

That was the method a skilful barrister employed to impress a point on the jury’s memory, associating one form of stimulant with another.

The point was well made and established, but it was a weak point, not really convincing; the judge later expressed his scepticism, and the jury no doubt shared it. Sir Charles referred to the habit of opium-eating as practised by De Quincey to explain the form of addiction that might have motivated Maybrick; and the judge wouldn’t have it. He was equally unimpressed by the other argument based on the alleged habits of Styrian peasants. Sir James Stephen failed to see what the habits of Styrian peasants had to do with the behaviour of an English gentleman, merchant and cotton broker, residing in Liverpool. He was probably quite right.