The Trial of Oscar Russ
Joseph Pelletier makes his case.
This is the sixth in a series on Commonwealth v. Russ. Prior installments are here, here. here, here, and here.
For a minute there, I lost myself.
Easy enough to do, when building something out of not-quite enough. Nose pressed against the glass, drifts of information blowing like snow, notes pushed into piles, files shoved into folders. Biographies1 and timelines and newspaper clippings.
Details of industrial equipment offered at auction in 1826.2 Manifestos, theses, and whitepapers by activists, community organizers, and consultants, concerning the never-constructed Southwest Expressway. German-language publications from a Lutheran Seminary in Illinois3.
Last week, late at night, without explanation, I convinced myself the names of the jurors4 were crucial; likewise, an explanation for why a fairly new judge, James H. Sisk, had been assigned to Suffolk County for what seemed like just this one trial5.
Impulsively, I wrote to the court, to see whether they had anything on the case6. I thought maybe, if it was the kind of thing they’d have to pull from an archive, I’d be told to make an appointment and take a look in person.
But, instead, they sent me a scan.
Jurors. Witnesses. Summaries, and in some places, excerpts from, testimony. Autopsy report. Jury instructions. Closing argument. Motions for new trial. Arguments on appeal7.
Burdened with abundance8, I will try — try — to be more selective in what I share.
Trial began on Monday, January 31, 1916.9 Jurors were taken for a view of the scene, after empanelment. The day was warm for January, cloudy with a bit of rain.10
Jurors would’ve been accompanied, on the view, by the prosecutor, at least one of the defense attorneys, and a court officer,11 who’d’ve sworn an oath12 to “suffer no man to address the jury.13”
Before entering the apartment, jurors might have been able to look up Highland Street, and see the Standpipe at the top of Fort Hill. Some might’ve recognized the former site of the Echo Chimney, demolished sixteen14 years earlier. After the view, the jurors were permitted to separate.
Testimony began the next day, February 1st, 1916.
The Commonwealth’s first witness was John Mahoney15, from the Boston Building Department, who’d prepared a “plan” of the three-room flat on Center Street, measuring the furnishings, the walls, the windows, the large, round blood stain on the rug in the front room. The plan was entered into evidence as an exhibit.16
On cross-examination, Mr. Mahoney admitted that the furnishings were intact and in order, each room neat and clean, except for the unmade bed in the back bedroom.17
Commonwealth called next William H. Watters, assistant medical examiner for Suffolk County. Dr. Watters testified as to his observations, made when he arrived at 178 Center Street, at about 8:15 pm on August 23, 1915. He described how Emilie’s body was found, between a couch and small table18, in such a small space that the table needed to be moved to see clearly.
Dr. Watters said that he found a clothesline around Emilie’s neck, tied in a knot on the left side. Beneath the clothesline was a cord, with a tassel, matching the curtain tie-backs.
Dr. Watters testified that beneath the rope, there was another cord, one tied in a square knot. The cord was bloody, and there were tassels on it. The cord matched a tie-back to the curtains in the front room; he noted that one was missing.
The wound on Emilie’s neck was deep, and deeper on the left side than the right. It cut through “certain blood vessels” nearly reaching bone.
Dr. Watters testified that “there was no blood except what was soaked into the clothing or carpet; that the area on the carpet was approximately a foot and a half,” but that when Emilie was moved, blood ran from the wound on her neck. The blood was not dry, except very small spots on her clothing. In his opinion, Emilie had been dead between “twelve and eighteen hours,” or maybe “twelve to twenty-four hours,” at the time of his examination.
Dr. George Burgess Magrath19, Suffolk County Medical Examiner, testified after Dr. Watters.
Dr. Magrath fixed the time of death at twenty-four to thirty-six hours prior to the autopsy, which began on the afternoon of August 24, 1915. Dr. Magrath’s conclusion was based on a greenish discoloration of one side of the abdomen.
Attorney Pelletier asked Dr. Magrath if he’d formed an opinion as to the “position of the body when these acts were done.20” The defense objected; the objection was overruled. Examination continued:
Pelletier: What is that opinion?
Magrath: That the body was recumbent or lying flat on its back when these acts were committed. In my opinion, the injuries resulting in this death could not have been self-inflicted21.
Pelletier: Did you form any opinion, doctor, as to a struggle while these things were done?
Murray: Now, if your Honor please, this is in a domain of common facts. This is not a pathological domain at all, it seems to me.
Pelletier: Why, my brother22 asked Dr. Watters about scratches on the furniture, about the room, about the legs of chairs and so forth.
COURT: That was merely in cross-examination. I think that last question is competent. I don’t know whether it goes over the line or this side. Read the question.
(Question read by the stenographer)
COURT. What do you mean by that —” these things”?
Pelletier: Cutting the throat and tying of the ligatures.
COURT: Has he answered he did form an opinion?
Pelletier: I have answered, your Honor, in the affirmative.
COURT: He says he has.
[…]
Magrath: I formed an opinion on the matter of no struggle while the ligatures were being applied, and I rely in forming that opinion of the description of these ligatures as placed in what seems to be a situation improbable if the person was struggling at the time. I believe that the person was, the decedent, was unconscious when these ligatures were applied, or one of them at least.
And this, I suppose, is how Dr. Magrath, Dr. Watters, and Joseph Pelletier answered the question. The one that itches. The elaborate, overkill murder so quiet, it couldn’t even wake a sleeping baby, and failed to alert the neighbors in a crowded, cardboard tenement23. The murder without defensive wounds.
She couldn’t have done it herself. There are no signs of struggle. Therefore, she must have been unconscious.
Scraps of testimony, throughout the Commonwealth’s case hint at Emilie Russ’ mental state, and her health, in the weeks and months before she died.
Palmurnia Vollm, who lived on the second floor at 178 Center Street, said that she’d spoken with Emilie frequently, and Emilie told her she wasn’t feeling well, had been sick, and often had to lay down, during the day.
Mrs. Vollm related an incident in which Mrs. Russ panicked, having seen a telegram delivered to the house. Mrs. Russ told her she was worried that something had happened to Oscar, and that she was always worried that “something would happen,” and he might “fall off a building.”
Several friends of Emilie testified, saying that Emilie had been happy, years ago, but became sad, and thin, after her marriage. Emilie had been one hundred and sixty-five pounds in 1913, but was down to one hundred and fifteen, at the time of her death.
Emilie complained of headaches, fatigue, inability to sleep, very painful menstrual cramps, and “gripe.” Emilie had seen the doctor several times, and been told to drink “milk and wine.” She didn’t think she would live long. She had been taking valerian24 before her death.
The Commonwealth’s final witness was Conrad Klemer25.
Conventional wisdom is to have your best and strongest witnesses testify first and last. The first witness should be someone credible, comfortable on the stand. Someone who makes the attorney look good. Not slick, not dry.
Last witness, because that’s the one the jury will remember. Ideally, this person should tie the whole case together. Take the little parts and create a coherent whole.
Conrad Klemer was about thirty-two, born in Estonia, emigrated in his adolescence, and married in California to a Swiss woman named Frieda in 1911. He studied for two years at a Lutheran Seminary in Illinois, planning to go abroad as a “missionary,” but ended up taking over existing congregations in Manhattan and Boston in after his ordination in 1913.
On direct, he testified that he’d last seen Emilie about a week before she died, and Oscar four weeks before that. The meeting with Oscar, he testified, was to “effect a reconciliation” between Emilie and Oscar26.
Reverend Klemer described imploring Oscar to “reform,” saying “I wish you would lead a decent life, and don’t abuse your child and not your wife, and it is an unhappy life to live this way; you live here and she lives this way. She wants to take a position; she wants to turn the child to my wife, and in this way you turn up your home and you are unlucky, and she is also like you, unjust. And I advise you she leave this and lead a holy life, have your prayers and reconcile with each other.”
Reverend Klemer admitted that he’d been present when the defendant’s investigator tried to speak with Emilie’s half-sister, Lena, and prevented her from speaking to the investigator.
He also testified about his involvement in the neglect proceedings that were initiated to try to transfer custody of Vina Russ to a Mrs. Saul27, in Dorchester.
Cross-exam was messy28.
And that’s where the Commonwealth saw fit to rest its case.
That bit, about the prosecutor? That was the short version.
This is, in fact, relevant. I swear.
Not that one. The other one.
Jurors are not anonymous in Massachusetts. Before the one-day, one-trial system, jurors would sit for several weeks, usually in front of a single judge, hearing as many trials as came before the court. They were paid for their service.
Camaraderie would develop. Often the jurors would commemorate the end of a session with a lunch, even a gift, to the judge and court staff. See Judge Sisk Presented with Links by Jurors, Lynn Daily Item, December 11, 1915 (noting that jurors at Brockton Superior Court presented Judge Sisk with cuff links, clerk Edgar Silva with a pipe, and cigars to court officers).
For more on jury service and empanelment for this period: Commonwealth v. Walsh, 124 Mass. 32, 38 (1878); Commonwealth v. Cero, 264 Mass. 264, 267 (1928); Commonwealth v. Ventura, 294 Mass. 113 (1936) (description of empanelment); and also O’Toole, James, et al. Boston’s Histories: Essays in Honor of Thomas H. O’Connor. Northeastern University Press, 2019. Project MUSE. Chapter 9 “A Strong Argument for Juries”: The Saga of Willett v. Herrick.” https://muse.jhu.edu/book/68429.
Judge Keating was sick, it turns out. Judge Sisk was filling in.
How it took me five months to do this, I cannot explain. This really ought to have been a first step. Or fifth. Thirtieth, even. Maybe somewhere between the purchase of rare books and making a pest of myself, at the building department.
Please let’s agree that I could reconstruct the trial for you, day-by-day, witness-by-witness, providing their biographies, maybe even the route that they’d’ve taken to the courthouse to testify, but, compassionately, I will not.
If not separately footnoted, everything here comes from the appellate record.
Boston Globe, January 31, 1916 “Jurors Visit Scene;” Boston Globe, February 1, 1916 “Wife Murder Charged to Russ.”
Boston Globe, Morning Edition, January 31, 1916.
The oaths taken by court officers to protect jurors and their deliberations remain very similar, to this day.
This photo of Jackson Square, taken around 1960, shows 178-180 Center Street, just past the gas station; the standpipe can be seen in the background. The 1931 Bromley Map, at Plate 25, shows just how tightly the buildings are grouped.
For a description of the conduct of a “view” see Com. v. Dascalakis, 246 Mass. 12, 29 (1923).
It took two tries; the first, in 1872, used gunpowder and ladders; in 1899, they used dynamite and explosive charges.
Mahoney was frequently the first witness called by Attorney Pelletier. This was likely fairly useful in cases where crime scene photographs — there were some introduced at trial, I don’t have them, and I’m not sure I want them — might have been dark, dim, or difficult to reproduce.
Other exhibits entered at trial included Emilie’s kimono and night dress, her shoes, the rope and cord from around her neck, her cap, newspapers, chop bones and eggshells from the kitchen stove, a scrap of paper with poetry in Estonian, and an undertaker’s bill for a Latvian named Freyberg.
Never apparently collected as evidence: Any of the linens from the bedroom. Oscar’s gun. The clothes he was wearing when arrested.
Much is made, at trial, of the condition of the apartment as found on August 23; also, Emilie’s stomach contents, and the time between her death, and eating a meal. Neither are really, as far as I can see them, objectively important, but a tendency of lawyers to try to fill the holes they see, in their cases, without regard to what they may mean to the jury.
For the Commonwealth, the condition of the apartment is a problem. Emilie and Oscar had guests in the home on Sunday evening; the place was, at that time, strewn with newspapers, and the detritus of an at-home, first-apartment Sunday. Emilie then went out with friends — Oscar did not object — had several drinks, and returned home late. Yet, the apartment was neat when found on Monday evening.
For the defense — trying desperately, with science, to prove that Emilie died later in the day — the stomach contents feel important. Their expert said she died four hours after a meal. The Commonwealth, an hour. As Oscar was too guileless to say he’d seen her eat breakfast, when he hadn’t, an hour vs. four doesn’t help anyone.
Some witnesses testify that the table was square; others, that it was round. Everyone agrees that it was small, and that there were items on it, including an inkwell, pen, framed photograph.
Look him up. He is a giant in his field.
Delicate way of phrasing that inquiry, isn’t it.
Dr. Magrath did not opine as to why this was “impossible,” although, to be fair, it’s unclear what science would’ve been available to Dr. Magrath, at the time to support his opinion. The term “ergonomics” had yet to be invented and the entire medico-legal idea was barely old enough to drink. In the century since, however, science has developed.
Between 1.5 and 5% of suicides involve “multiple methods” employed by the victim, known as “complex” suicides. These are further divided into “planned” or “primary” complex suicides, where the victim decides to use multiple methods in case one fails, and “unplanned” complex suicides, where the victim uses a second method after the first is difficult, painful, or unsuccessful.
A recent literature review found that the most common combination of methods for unplanned complex suicide was sharp-force injury (including to the neck) and hanging. Pallocci, M., Passalacqua, P., Zanovello, C., Coppeta, L., Ferrari, C., Milano, F., Gratteri, S., Gratteri, N., & Treglia, M. (2024). Forensic Characterisation of Complex Suicides: A Literature Review. Forensic Sciences, 4(3), 277-288.
Characteristics of self-inflicted wounds to the throat have been studied, as well: Deeper, higher on the left and shallower on the right, with smooth edges are characteristic of self-inflicted wounds, per at least one paper. Vrinceanu, D., Banica, B., Papacocea, R., & Papacocea, T. (2018). Self-inflicted laryngeal penetrating wounds with suicidal intention: Two clinical cases. Rom. J. Leg. Med, 26, 16-20.
And the need to examine holistically in order to distinguish between complex unplanned suicide and homicide has also been noted. (Note: The pdf linked there has photos of wounds and a hanging. Please take great care with yourself, when researching this topic).
The genteel yet disorienting practice of referring to opposing counsel as “my brother” or “my sister” persists in Massachusetts to this day, although it has become gradually less prevalent since the pandemic.
Witnesses who testified they heard nothing, and would have: Louis Vollm, who lived upstairs; Palmurnia Volm, who lived upstairs; Lucy Cairnes, from the third floor of 178 Centre Street; Mary Lehman of 296 Highland Street, first floor. Her bedroom window was eight feet from Emilie’s.
Valerian, an herbal remedy, is used for insomina, anxiety, pain, and cramping.
His first name is also occasionally spelled with a K at the front or a T at the end; the double M in his surname is inconsistent, as well, making him a bit difficult to track.
Testimony from friends and family was that Emilie and Oscar were living together, at Oscar’s parents’ home on Linden Park Street, until mid-July, when Emilie had an argument with Oscar’s mother. During the argument, Oscar’s mother called her a whore. Emilie took Vina and left, finding the apartment on Centre Street. She lived there about a week alone, before Oscar joined her.
This had happened once before, where Emilie could not stand living with Oscar’s parents, and sought different accommodation, with Oscar joining her after.
I am allowing myself a small personal flash of anger here. If Reverend Klemer was telling the truth — that Emilie had asked him to take Vina — but didn’t make any attempt to do so, instead handing the child off to “Mrs. Saul,” fuck him.
So messy. At the informal hearing in Roxbury District Court, Reverend Klemer had told the judge that Vina Russ had no relatives able to care for her, in the United States.
This was not true, of course. The pages seethe. On both sides.
Q. You knew it was false, didn’t you?
A. I knew it was true.
Q. Didn’t you know that at that time and beginning the day after the child’s mother had died the grandparents were trying to get possession of the child?
A. I myself was…
Q. One moment. Answer that question, if you please. You knew the grandparents were trying to get possession of the child, didn’t you?
A. I knew.
Q. You did know that, didn’t you?
A. Not for the child’s good.
Q. You did know that they were trying to take possession of the child, didn’t you?
A. Yes, they were trying to get the child in their power.