Worthy Brown's Daughter (26 page)
Read Worthy Brown's Daughter Online
Authors: Phillip Margolin
T
he weight of having to gain an acquittal for Worthy Brown crushed Matthew, and his guilt consumed him, driving him to prepare ceaselessly. He slept in fits and starts and ate only when his hunger was so great that it interfered with his concentration. Matthew’s weight had dropped until he looked gaunt and unwell, and he was always exhausted and morose.
The day before the trial, Matthew walked to the jail to confer with his client. It started to rain when he was halfway there. Matthew hunched his shoulders and ran as the downpour increased in intensity. As soon as he was inside, Amos Strayer led him down the muddy corridor to Worthy’s cell and locked Matthew in with his client.
“I want to beg you one last time to let me call Roxanne so we can mount a believable case of self-defense,” Matthew said as soon as the deputy was out of earshot.
“We talked about this before,” Worthy answered stubbornly. “I ain’t going to let you call Roxanne as a witness.”
“Be reasonable, Worthy. The jurors will expect her to testify. If she doesn’t, they’ll assume it’s because her testimony would hurt you.”
“I can’t help what people assume.”
“It may be painful for Roxanne to tell what happened to her, but you should let her choose what she wants to do. Your life is at stake. She won’t refuse.”
“If she testifies, Roxanne would have to do more than tell about what Mr. Barbour done to her. If she says I killed Caleb Barbour, Roxanne would have to lie after she put her hand on the Bible and swore to God to tell the truth. I can’t ask that of no one but myself.”
“Let me be blunt, Worthy. Witnesses who were at your court case will tell the jurors that you threatened to kill Barbour if he mistreated Roxanne. Dr. Sharp will testify that he examined Roxanne and she showed signs of being beaten. The prosecution will put on the men who went to Barbour’s house to put out the fire. They’ll say they saw you alone with the body in Barbour’s yard. You will be convicted if we do nothing. Won’t you even let me talk to Roxanne and see what she says?”
“I know what she’ll do. She’ll go to court and lie, and I won’t have it. And don’t think you can trick me by calling her against my will. If I see that child walking to the witness stand, I’ll confess and put an end to it.”
Matthew continued to try to persuade Worthy to change his mind. When it was clear that he was making no headway, he stood up and yelled at Amos Strayer to let him out.
“I know you’re worried for me, Mr. Penny. Don’t be. I’m at peace, and I’m ready to accept what the Lord has in store for me with an untroubled mind.”
“You are only thinking of yourself,” Matthew answered bitterly. “Other people will suffer if you hang. Roxanne will be alone in the world, and I will go to my grave with your death on my conscience.”
“You saved my Roxanne and made her future possible. You are a good man, Mr. Penny, and you will come to see the wisdom in what I done. God loves you. He won’t let you suffer.”
When Matthew heard the deputy put his key in the lock, he turned away, utterly defeated.
THE RAIN WAS POUNDING DOWN
when Matthew walked back to his office, but he was oblivious to the onslaught. Matthew shut the office door behind him and shucked off his rain-soaked jacket. It was freezing in the office, and he set a fire in the potbellied stove. Then he hung the jacket over a chair and moved it near the stove to help it dry. He started to head for the stairs to his apartment so he could change out of his wet pants, but he stopped abruptly and turned to look at his jacket.
“My God!” he whispered. Then he dropped onto a chair and ran through everything that had happened on the evening Barbour died. When he was done, he found that he was short of breath. He stood and paced, going over everything again. Maybe all was not lost. Maybe he could win Worthy’s case without the defendant or Roxanne Brown taking the stand.
Matthew grabbed his jacket and hurried across town to Dr. Sharp’s office. Then he found Marshal Lappeus and asked him some questions. It was after dark when Matthew explained his strategy to Worthy Brown. The decision was not one Matthew could make without Brown’s consent. Worthy listened carefully and agreed to go along with Matthew’s plan. Matthew was elated when he left the jail, but doubt began to edge aside certainty as he neared his office. He was gambling with Worthy’s life. If the dice came up wrong, Worthy Brown would hang.
W
illiam Page had been appointed Multnomah County district attorney when W. B. Thornton was elevated to the supreme court. Page was a sturdy, thick-chested man with a full head of curly black hair and a well-tended beard who had graduated from Miami University Law School in Ohio and practiced in Chicago before moving to the Oregon Territory in 1857. He had earned a reputation as a business lawyer, but he was also a skilled trial attorney. Matthew could not help noticing how confident Page looked when he took his seat at the table for the prosecution.
Justice Thornton had recused himself from sitting in the
Brown
case, and Justice Ruben P. Boise was presiding over the trial. Boise, a native of Massachusetts and a graduate of Williams College, had moved to the Oregon Territory in 1852 after practicing law in Chickopee Falls, Massachusetts. In 1859, after Oregon entered the Union, he was elected to the Oregon Supreme Court.
“Good morning, gentlemen,” Justice Boise said as soon as court was called to order. “Shall we proceed with the selection of the jury?”
Matthew’s stomach churned and his legs shook as he rose to answer the judge. Once he spoke, there was no going back.
“Your Honor, after conferring with my client, we have decided to waive a jury and try this case to the court.”
There was a collective gasp in the spectator section, and Justice Boise could not mask his surprise.
“We are trying a murder case, Mr. Penny. Your client will hang if he is convicted. Is he absolutely certain this is the way he wishes to proceed?”
Matthew nodded to Worthy, and his client stood. They had discussed this decision at the jail, and Matthew had urged it on Worthy. He worried that prejudice against Negroes among the jurors might trump any reasonable doubts raised by the evidence. Justice Boise was opposed to slavery and had a reputation as a compassionate man. Matthew hoped the reputation was well earned because Worthy’s fate would be in the hands of this slender, intelligent, gray-bearded jurist.
“Your Honor,” Worthy told the court, “Mr. Penny and I have discussed this, and I want you to decide my case.”
AS HIS FIRST WITNESSES,
the district attorney called several prominent Portlanders who had visited Caleb Barbour’s home. They testified that he treated Roxanne humanely, and each man swore that he’d never seen Barbour mistreat the child. During cross-examination, Matthew got these witnesses to admit that Roxanne was a servant and that Barbour never expressed any love or affection for her, but only Roxanne could testify about the way she was treated when there were no witnesses around.
Next, Page called several witnesses who testified that Worthy had threatened to kill Barbour in this very courtroom only hours before Barbour died. Then Page called Ed Grace to the stand.
Grace’s friends slapped him on his massive back as he threaded his way through the spectators to the witness stand. He acknowledged the attention with grins and nods and looked more like a prizefighter headed toward the ring than a witness in a murder case.
“Mr. Grace,” William Page asked, “what were you doing on the evening Caleb Barbour was murdered?”
“Objection,” Matthew said. “Whether Mr. Barbour was murdered is a question for the court to decide.”
“Sustained,” Judge Boise said. “Please rephrase your question, Mr. Page.”
“Please tell the judge what you were doing the evening Mr. Barbour died.”
“I was playing poker at the Oro Fino Saloon. Amos Strayer ran in and said he needed some boys to ride out to Caleb Barbour’s place because it was on fire, so I saddled up.”
“What did you see when you arrived?”
“The nigger standing near Mr. Barbour’s corpse and the house on fire.”
Matthew stood. “Your Honor, will you please instruct the witness to refer to Mr. Brown by his name or as the defendant.”
“Yes, Mr. Grace. Do not refer to Mr. Brown other than by his name or by the legal term. You may continue, Mr. Page.”
“What did the defendant do when he saw you?” the DA asked.
“He ran off, but Rex Arneaux lassoed him.”
“Did the defendant appear to be afraid?”
“He sure did.”
“Did he submit to arrest peacefully?”
“No, sir, he did not. He kept fighting, so we had to calm him down.”
“What happened next, Mr. Grace?” Page asked.
“Marshal Lappeus rode up and took charge of the prisoner.”
“No further questions.”
Matthew studied the witness. Grace stared back defiantly.
“You testified that you were playing cards at the Oro Fino when Amos Strayer asked you to join the posse.”
“Yes.”
“When did you go to the saloon?”
“I don’t recall.”
“Well, didn’t it rain heavily that night?”
“Yeah, it was pouring.”
“Was it raining when you got to the saloon?”
“It was.”
“Was it still raining when you left the saloon to ride to Mr. Barbour’s house?”
Grace thought for a moment before answering. “I don’t believe it was. I’m pretty sure I didn’t get wet during the ride.”
“Okay, so you rode to Mr. Barbour’s house, and I believe you told the judge that Mr. Brown appeared to be afraid when you rode up?”
“Wouldn’t you be if you killed someone and got caught?”
“Your Honor, I move to strike that remark,” Matthew said.
“It’s stricken,” the judge said. Then he turned to the witness.
“Mr. Grace,” Boise said sternly, “just answer Mr. Penny’s questions.”
“He looked scared,” Grace said.
“Had you done anything to frighten him?” Matthew asked.
“Me? No.”
“Tell me, Mr. Grace, how many men were with you when you got to Mr. Barbour’s house?”
“Uh, ten, twelve. I’m not sure.”
“Were you on foot when you spotted Mr. Brown?”
“No, sir, we were riding.”
“Riding hard?”
“Yes.”
“Riding hard in Mr. Brown’s direction?”
“Yes.”
“Were some of the men yelling?”
“I guess.”
“What were they yelling?”
“Some were yelling about the nig . . . the defendant, and some were yelling about the body.”
“And I assume some of you had your weapons drawn?”
“Some.”
“So let me ask you this, Mr. Grace. If you were all alone at night and on foot and ten or twelve men came riding hard at you, yelling, with their guns drawn, do you think you might be frightened?”
Grace started to say something. Then he changed his mind and clamped his jaws shut.
“I’ll take that as a yes.” Matthew said. “Let’s move on. How much time went by between the first moment you saw Mr. Brown and the time Marshal Lappeus arrived?”
“Not much. Maybe a minute or two. Everything happened real fast.”
“And Mr. Barbour was already dead when you rode into the yard?”
Grace nodded.
“You didn’t see how Mr. Barbour died, did you?”
“Brown killed him.”
“Did you see him kill Mr. Barbour?”
“Well, no. But who else could have?”
“Anyone who left before you arrived, Mr. Grace, anyone. Isn’t that so?”
Grace paused for a moment and licked his lips.
“Well?” Matthew pressed.
“I didn’t see him killed, so I can’t answer,” Grace said.
“That’s right, Mr. Grace. You didn’t see Mr. Barbour killed, so you can’t tell the judge who killed him or how he died, can you?”
Grace looked down. “I guess not.”
“No further questions, Your Honor.”
AFTER MORE OF THE MEN
who had ridden to Barbour’s house testified, District Attorney Page called Marshal Lappeus to testify about Worthy’s arrest.
“Marshal,” Matthew said when it was his turn to cross-examine the lawman, “it rained heavily the day Mr. Barbour died, did it not?”
“Yes.”
“Was it raining when you rode from town to Mr. Barbour’s place?”
“The rain had stopped by the time Mr. Gillette’s servant told me about the fire.”
“When you arrived at Mr. Barbour’s house, did you see his body?”
“I did.”
“Describe the condition of the body to Justice Boise.”
The marshal turned to the judge. “It looked pretty bad, Judge. Mr. Barbour was sprawled across the porch steps on his back so his face was up. The house had a covered porch, and the fire brought down the overhang. A piece of wood had fallen across Mr. Barbour’s face and set it on fire, so the front of his head was burned bad.”
“Did you have a chance to touch Mr. Barbour?”
“I did.”
“Were his clothes wet?”
“Yes.”
“So it must have been raining when he died?”
“I guess so.”
“Did you see the back of Mr. Barbour’s head?”
“Yeah, it was stove in. He fell backward onto the edge of one of the stairs, and the point drove into his head.”
“Were the porch steps wet?”
“Yes, sir. They’d dried a little, but they were still a tad slippery.”
“Now you arrested Mr. Brown, did you not?”
“Yes.”
“Did you tie his hands behind him?”
“I did.”
“So you were close to him?”
“I was.”
“Did you actually take hold of him?”
“Yes.”
“Think carefully, Marshal Lappeus. Were Worthy Brown’s clothes wet or dry?”
The marshal’s brow furrowed as he struggled to recall. Then his brow smoothed, and he stared at Worthy.
“I laid hands on Mr. Brown’s arms to steer him toward the horse he was going to ride back. Then I grabbed hold of his legs to help him get in the saddle because his hands were tied. The bottoms of his pants were wet and muddy but he was dry from the knees up.”
“Thank you, Marshal. I have no further questions.”
“Nothing on redirect,” Page said. “The state calls Dr. Raymond Sharp.”
Raymond Sharp, the doctor Portland society consulted when it was ailing, was a robust man in his late forties with a full head of wavy brown hair, a thick mustache, and lively blue eyes.
“Dr. Sharp,” District Attorney Page asked as soon as the doctor was sworn, “did you ride to Caleb Barbour’s house at the request of Marshal Lappeus on the evening Mr. Barbour died?”
“I did.”
“What did you find when you arrived?”
“There were two injured parties, Mr. Penny and the defendant, as well as the deceased, Caleb Barbour.”
“We’ve heard testimony that the injuries to Mr. Brown and Mr. Penny were inflicted by the men who rode from town to help put out the fire. Please describe the injuries inflicted on Mr. Penny.”
“He had been hit in the head and was unconscious.”
“Was this a serious injury?”
“Very. He remained unconscious for several days.”
“And Mr. Brown?”
“He had suffered several blows, but he was conscious.”
“Please describe the results of your examination of Mr. Barbour.”
“As I have said, he was dead when I arrived. His body was burned in spots where it had been touched by burning pieces of wood from the porch overhang, and his face was also badly burned.”
“Did you determine the cause of death?”
“Yes, it was obvious. Mr. Barbour had fallen backward, and the back of his head was impaled on a sharp corner of the top porch step.”
“In your medical opinion, could the deceased have been driven backward by a blow?”
“Of course.”
“In your opinion, did Mr. Brown have the strength to deliver a blow powerful enough to have caused the result?”
“Yes.”
“Nothing further.”
Matthew stood. “Dr. Sharp, where were you when you were summoned to Mr. Barbour’s house?”
“I was at Gillette House.”
“Why were you there?”
“Heather Gillette had asked me to minister to Roxanne Brown.”
“Please describe Miss Brown’s medical condition on that evening.”
“She was in shock. Her eyes were glazed over, she was obviously terrified, and she would not answer any of my questions. She became quite violent when I tried to conduct a physical examination.”
“Did Miss Brown have any obvious physical injuries?”
“Several. Her nose had been broken, and there was a large knot on the back of her head. I saw many scratches and bruises on various parts of her body.”
“I beg your pardon for having to make the following inquiry, Dr. Sharp, but were you able to examine Miss Brown’s genital area?”
“She resisted mightily at first, but Miss Gillette was finally able to calm her enough for me to conduct an examination.”
“Did you find signs of forcible sexual intercourse?”
Sharp looked solemn when he answered. “Yes, I did.”
“In your opinion, had Miss Brown been raped?”
“Yes.”
“You have testified that you examined Mr. Barbour’s corpse when you arrived at his house.”
“Yes.”
“How was he clothed?”
Dr. Sharp paused for a moment and stared into space. When he responded, he spoke slowly.
“He was wearing a shirt, but it was not tucked in. Sections of the shirt had been burned.”
“Did he have a jacket?”
“No, just the shirt.”
“Pants?”
“Yes, he was wearing pants.”
“What was the condition of his fly?”
“I remember that his fly was unbuttoned or partially unbuttoned.”
