The Trial of Oscar Russ
The defense has its say.
This is the seventh in a series on Commonwealth v. Russ. Prior installments are here, here. here, here, here, and here.
The Commonwealth rested its case on February 3, 1916, after the contentious cross-examination of Reverend Conrad Klemer.
Morris Katzeff gave the opening statement, for the defense.1 It was brief. I am tempted to offer you all of it, but I’ll restrict myself to the second half:
Gentlemen, we will show you the history of this man who is on trial for his life. We will show you how he has lived and what his progress in life was. We will show you his acquaintance with his wife, his affections which ripened into marriage. You hear from the lips of the defendant himself the relations with his wife during the entire period of time that they knew each other. He will tell you what he did on the day preceding and on the day on which his wife met her untimely death.
You will hear what happened to him from the moment that he entered the window of his own home to find the ghastly spectacle of his wife’s lifeless body on the floor. You will hear how he acted under arrest. You will hear all that we are able to bring before you. We will present to you a picture of his wife as she was a year or two ago, and we will show you how she was and how she felt in her last days. We will show you as far as we are able to, gentlemen, the history of her life, how she came through these years, what she did and what her life was.
We will show you the things which preyed upon her mind, which undermined her health and broke her heart. We will show you, gentlemen, that it is possible that she ended her own life, that she took her own life. And although as far as we know there is no human being who saw her death, we will throw all the light on the subject that our investigations have enabled us to bring before you, and you will hear all the witnesses that will be called before you.
I ask your attention, gentlemen, to the evidence of the defendant.2
Strong opening. The use of romantic, emotional, evocative language, in restrained flashes is brilliant: “affections which ripened into marriage,” “ghastly spectacle,” “the things which prayed upon her mind…and broke her heart.” These phrases hint at a narrative, while still remaining within bounds of appropriate opening.3
Despite the opening4 — and the Commonwealth’s acknowledgement that all of the evidence in their favor was circumstantial — the defense did not have an easy time putting their case in.
Oscar Russ was either so soft-spoken, or had such a heavy accent, he spent much of his time on the stand repeating himself.5
There were doglegs, rabbitholes, witnesses stacked like pancakes, testifying on issues that were nearly uncontested, like Oscar Russ’ presence and demeanor at work on August 23, 1915.6
Witnesses were not sequestered. They clustered, in the hallways, on breaks, in groups and in factions, conferring among themselves about what had been said and what might happen next.7
And this had an effect.
After the Commonwealth rested, Elizabeth Kangur, a friend of Emilie’s who had already testified, made it known that she had more to say. Mr. Murray invited Mr. Pelletier to recall her; Mr. Pelletier declined8.
The witness was called to the stand; the court asked whether she wanted to change her testimony. She said yes, then no. Asked a final time, the witness said, no.
Mr. Murray then called her, as his witness, and she testified that the day before Emilie died, Emilie told her that there was a man who came to the apartment, wouldn’t leave, and tried to kiss her9. Ms. Kangur10 said Emilie had told her she threatened to shoot him with Oscar’s gun.
Cross-examination, by Mr. Pelletier, did not go well.
Pelletier: Why didn’t you tell me this story?
Kangur: I was waiting all the time for the man to come [to court] to know the man.
Pelletier: Do you think that is the man that killed her?
Kangur: No, I don’t think anything.
Pelletier: Why didn’t you tell the police about it? Why didn’t you tell the police about this man that was kissing Emily or trying to kiss her?
Kangur: I didn’t want to talk with them.
Worse, Ms. Kangur seemed to be caught in a lie. She denied talking with anyone about her testimony, but she’d been seen discussing it with three women in the hallway, that morning. Ms. Kangur said that she was asking for the English word for “a man selling clothes.”
The biggest problem, though, was Oscar. He testified in his own defense. The transcript, or the portions captured in the appellate record, are wrenching.
Oscar didn’t believe that Emilie committed suicide; worse, he appears oblivious that his life depended on proving it. The idea of a premeditated murder — intentional killing — was almost equally beyond Oscar.
Oscar, when asked what he thought had happened, that there must have been a fight. He didn’t know who would want to fight Emilie, or who she would fight.
She was a tough woman, bold. She fought his mother. She sent that peddler running, and laughed about it. It didn’t make sense to him that she couldn’t have fought off, whoever it was.
How couldn’t she have fought? But how could she? Everything was left so neat.
Russ: ….And after I was taken to Charles Street Jail I can’t see how anyone could commit a thing without seeing anything disturbed. I can’t understand. You don’t explain that.
Pelletier: What?
Russ: No, I think it is impossible.
Pelletier: Impossible, what — to have had a row or to explain it?
Russ: To kill anybody that way without any fight. I don’t think she would let anybody; she wouldn’t let me or anybody come near her to try and kill her. Nobody would. Any man had any intentions to kill me I would fight all I can.11
Attorney Pelletier took Oscar Russ through the evidence, and eventually, Oscar testified, that he didn’t think that Emilie’s death could be the result of a “fight,” because of the second cord.
And then there was this exchange:
Pelletier: Then your first impression that there had been a fight had gone away from you?
Russ: Yes, the way it is now I don’t know what it is. I don’t believe one way and I don’t believe the other way; I want to see it proven which way it is done.
Pelletier: How much proof?
Russ: Well, some people that know something about it.
Pelletier: For instance?
Russ: Doctors, men that has experience in things like that.
Pelletier: What do you expect them to prove?
Russ: Probably they will be able to tell how it was done.
Emilie’s life, and her mental state, and her physical health, during the time before her death, comes out in brief glimpses, here and there.
John Russ, Emilie’s father-in-law, testified that Emilie was downcast, while living in his home. She seemed to look out of the window, “very deep down, as if in a day dream or a dope.”
He testified that Emilie had “trouble” with his wife, because “Emily broke dishes and his wife had told her to be more careful, because it cost money, and things of that kind,” and they had also quarreled about hot water, and broken needles in the sewing machine.
He testified about an argument with his wife, five weeks before Emilie died; Emilie took the baby and left, and Oscar joined her a week later. Even during the time that Emilie wasn’t living in his home, she would visit Oscar, during the evenings.
Elizabeth Russ, Emilie’s mother-in-law, testified about the tension between her and Emilie.12
Oscar also testified about difficulty between Elizabeth and Emilie. He testified that they’d got along fine, initially, “but in the spring his mother started to pick on his wife in all kinds of ways; that if she went to the ice chest and left it open his mother would give her a call-down; if she wanted to use the hot water to wash the baby’s clothes, his mother would not let her; if she swept the dirt from her room into the kitchen his mother would find fault about this, and about Emilie’s using the sewing machine and a lot of other things, and finally she had some trouble about his, defendant’s, clothes, and about the room,” and finally, his mother had kicked them out of the house.
Oscar testified that Emilie often didn’t eat, while she was at his parents’ house. When they lived alone and had little money, she made sure he ate before work, and she ate nothing.
He testified that she’d been troubled with “gripes in her stomach,” that were getting “worse all the time, and lower all the time.”
She didn’t want to leave the house very often, because she hated to dress herself. She’d been leaving the house only two or three days a week, and had been wearing the same nightgown and kimono, most days.
She had been tired, often. She was too thin and getting thinner, and complained that the baby was nursing the flesh from her bones. He told her to get the baby milk, but she told him “I won’t buy any milk, it might kill the baby; I heard milk is poison to baby; I heard babies die drinking other milk.13”
Her sister and sister-in-law came, from time to time, to try to help with the housework.
Two or three weeks before she died, Emilie had been very ill. She saw “funny men and devils walking around the room.” She was scared, sweating, feverish. She had a headache and “gripes.”
Emilie went to the doctor, and he told her “she had very little blood” and needed to drink a lot of beer. Episodes of headache, fatigue, and sweating repeated every few days.
On the day before she died, though, she’d seemed in good spirits. She seemed to enjoy the prospect of going out, and showed off new shoes that she’d spent some of her savings on. Oscar joked with her, telling her to make sure she showed off the shoes, and not her legs.
She spent the evening out with her friends, and arrived home around midnight. She promised Oscar she’d start some washing for him the next day. That night, before they fell asleep, they talked about the future, and ways to get ahead. Emilie thought they might buy the furniture from their landlord, which would lower the rent, and let them take in a boarder.
During the final day of trial, Vina Russ, who had been with her grandparents in the courtroom, started to cry. She couldn’t be consoled.
Attorney Pelletier demanded that she be taken from the courtroom.
Before she was taken out, Oscar Russ was allowed to hold her. Newspapers described the scene as touching.
When all the evidence was in, Judge Sisk charged the jury.
A jury charge consists of instructions on the conduct of deliberations, the principles to apply, and the burden of proof14 to be met.
The defense can give their opening statement at the beginning of the trial, or after the other side rests. Currently, in civil litigation it is most common for the defense to give their opening after the plaintiff opens. In criminal trials, the most common practice remains opening after the prosecution rests, at least, that is what I am told.
Based on the appellate record, Mr. Murray was acting as lead counsel. It is unusual, although not unheard of, for a second chair to open.
I don’t know why Mr. Katzeff opened — I can make some guesses, ranging from strategic to practical — but I like that he did.
This is from the appellate record, page 50-54. Everything here, unless stated otherwise, is from the appellate record.
Opening statements are supposed to be descriptions of the evidence to be presented. No argument, opinion, vouching. It can be difficult to make a story out of “we expect the evidence to show.”
And the talent and dedication of the attorneys.
They presented twenty-five witnesses in defense of Oscar Russ, over two days, four months after being retained in a capital case.
Although Morris Katzeff was new to practice, his work on this case is creative, careful, dedicated; he used habeas to make sure that Oscar Russ could attend the hearings on custody of Vina, and his opening was, as noted, brilliant.
Wendell Murray was a noted trial attorney, at the time — although for his civil work — and would later teach and mentor extensively about trial practice.
There are numerous exchanges where Attorney Pelletier asks a question, Oscar answers, and Attorney Pelletier asks him to repeat himself.
Pelletier: Killed by…
Murray: Killed by somebody, he says.
William Gay, the owner of the house Oscar was painting that day, testified, as did his maid, Annie Canning, and janitor, Percy Burton. Painters Herbert Woods and Charles Bradley testified, as did paper-hangers Joseph Keefe and Michael Sullivan.
Information passed between and among witnesses before trial, as well.
Reverend Klemer seemed to have taken active role, behind the scenes. During cross-examination, he admitted to being present when Emilie’s half-sister, Lena Kasibou, refused to grant an interview to the defense investigator.
Later, his involvement came up in the testimony of defense witness, Anna Russ.
Pelletier: You never heard that she was assaulted with a knife by Oscar?
Anna: I heard about a scar before but I haven’t seen any.
Pelletier: When did you hear about it?
Anna: Kolka and the minister said that she had a scar.
Pelletier: The minister and Mr. Kolka said that Emily had a scar on her breast. Did they say how she said she got it?
Anna: The minister and Kolka said to me that there were two scars on Emily’s breast and said that they were cuts, and asked me if I had seen them, and I said no, that I hadn’t seen any cuts or scars on her breast.
Pelletier: Did he say where Emily said they came from?
Anna: She didn’t say, but the minister said after Emily was dead, asked me if I had seen those scars on her breast, that she had two, but I said I hadn’t seen them.
Massachusetts, until very recently, had a prohibition on impeaching your own witness, which is what Mr. Pelletier promptly did, as soon as Ms. Kangur testified on behalf of the defense. If Mr. Pelletier recalled Ms. Kangur, Mr. Murray could have cross-examined her, and the testimony might have gone in a bit more smoothly.
Ms. Kangur also testified that Emilie told her “many times” that it had happened “many mornings.”
This story appeared in newspaper accounts of the investigation in August of 1916; whether or not the story was told to Ms. Kangur in precisely the same manner as she recounted it, it was not something invented for purposes of trial.
I’ve cut a lot of the objections and repetition from this testimony.
Mr. Murray wrote, later, about how difficult this was for her. The only difficulty that Emilie had seemed to have was with Mrs. Russ; her son’s defense depended on her ability to admit to every insult, slight, moment of irritation, major or minor injustice or unfairness done to Emilie over the two years they’d known each other.
Emilie wasn’t wrong, of course. Present guidance is that infants shouldn’t drink milk until they are twelve months old. Boston also had an outbreak of “septic sore throat” only three summers before, linked to raw milk.
As to use of circumstantial evidence, Judge Sisk instructed: In order to convict the defendant upon circumstantial evidence, it is necessary not only that all the proven circumstances concur to show that he committed the crime charged, but that they are inconsistent with any other reasonable conclusion.
It is not sufficient that the circumstances proven coincide with, account for and render probable the hypothesis sought to be established by the prosecution, unless they also exclude to a moral certainty — that is, beyond a reasonable doubt — every other hypothesis than the single one of guilt. If this is not so the prisoner is entitled to a verdict of not guilty.