At ten thirty that morning a private ceremony was held around the casket for the Kennedy family and their closest friends, while elsewhere in the White House, workers tentatively began the task of packing up the Kennedy household. At eleven o’clock former president Eisenhower arrived by limousine and stepped bareheaded into a cold steady rain and walked into the north portico with his hat in his hand. He was followed by former president Harry Truman, House Speaker John McCormack, and the members of the Supreme Court, a ten-man honor guard jolting to attention every time another dignitary climbed the steps. At one o’clock that afternoon the casket was placed on an artillery caisson and drawn by six white horses, three of them riderless, to the Capitol Rotunda, where the body would lie in state throughout the night.
In Boston people were, if possible, in an even greater state of shock than in Washington. Services held Friday night at Saint Paul’s Cathedral were attended by Governor Peabody and his wife, who was crying without restraint. Standing with the Peabodys, face frozen in shock, was the Reverend Harvey Cox, a good friend of the Kennedys who had just gotten out of jail in North Carolina. He had been arrested for leading a civil rights march. Telephone lines into and out of Boston were so overloaded that callers had to wait twenty minutes or more to get a dial tone. Scrubwomen at the State House on Beacon Hill sobbed as they went about their chores. Bartenders stepped outside their places of business to avoid crying in front of customers. Crowds of people gathered in front of newspaper offices to get the latest news.
The weather was cold, and by midday a slow steady rain had started to fall. The world had not ended but it had stumbled badly, and the people of Boston wandered around in the rain knowing they would have to go on living but not knowing exactly how.
AT EIGHT THIRTY Saturday morning—nineteen hours after the president was killed—the jury in the Roy Smith trial filed into the courtroom at Middlesex Superior Court and took their seats in the jury box. Every half hour people in Boston could hear the boom of a 105 mm howitzer on Boston Common that was being fired by the National Guard from dawn until dusk, in keeping with military tradition for the death of a president. Roy Smith was at his place in the defendant’s dock, and Richard Kelley and a young assistant prosecutor named Ruth Abrams were at the prosecution table. Beryl Cohen was seated next to Roy Smith at his own table. Judge Bolster turned to the jury and told them that the case against Roy Smith was an entirely circumstantial one and that he would have to explain to them the nature of circumstantial evidence and how it can and can’t be used in a court of law. The legal issues were so complex that Judge Bolster needed almost three hours to cover them.
“Circumstances must be such as to produce a moral certainty of guilt and to exclude any other reasonable hypothesis,” he said, taking his language from a famous 1850 case called Commonwealth v. Webster. Webster was a Harvard professor who was accused of murdering someone who had loaned him money. He was convicted—and eventually hanged in public—on evidence that was purely circumstantial. “The circumstances taken together should be of a conclusive nature and tendency,” the judge went on, “leading on the whole to a satisfactory conclusion and producing…a reasonable and moral certainty that the accused, and no one else, committed the crime.”
Circumstantial evidence is everything except eyewitness testimony, photographs, and other evidence from the crime itself, which is called direct evidence. Direct evidence is extremely powerful as long as it is supported by circumstantial evidence; unsupported, it is only as reliable as the witness who supplies it. Eyewitnesses are famously inaccurate; they have lied on the stand, misremembered things, imagined things, and reinvented reality whole cloth. Studies have shown, for example, that people of one race have a much harder time correctly identifying people of another race. Studies have also shown that casually mentioning a nonexistent object during a conversation—during police interviews of witnesses, for example—increases the likelihood that a person later “remembers” seeing it by 15 percent. Stress affects memory as well, and violence is extremely stressful. Muskets have been found on Civil War battlefields with dozens of cartridges in their barrels, rammed home by soldiers who were too terrified to remember to fire each time they reloaded. Witnesses to violent crimes can be similarly unaware of their actions.
Circumstantial evidence, on the other hand, uses known facts to draw inferences about unknown facts. No single fact is enough to prove guilt—the defendant was observed near the scene of the crime, for example—but taken together, they prove the defendant is guilty. When judges instruct a jury on circumstantial evidence, they sometimes use the example of a law clerk arriving at work in the morning to find the judge’s coat hanging in the closet, a cup of hot coffee on his desk, and the morning paper open next to it. The clerk does not need to actually see the judge with his own eyes to conclude that he is almost certainly in the building. The weakness of circumstantial evidence is that, ultimately, it is an extremely complex form of guesswork that involves dozens of interrelated facts, but that is also its strength: Dozens of interrelated facts are thought almost never to arrange themselves in such a way to make an innocent man look guilty.
To refute a circumstantial case, all the defense ordinarily has to do is break one link in a chain of inferences created by the prosecution. The defense attacks all up and down the line, of course, hoping for breakthroughs everywhere, but all they need is one solid break. Halfway through his summation, Beryl Cohen had pointed out a detail that the jury surely missed when they heard it: A practical nurse working on Scott Road testified that one of the children who saw Israel Goldberg arrive home had stepped off the school bus on one corner of Pleasant Street, when in fact she had gotten off on a different corner. “It’s not a big victory,” Cohen admitted to the jury. “Lawyers don’t win cases on the little things. But you get enough little things, you may get a reasonable doubt. You get a reasonable doubt in a circumstantial case, watch for the strict proof, watch for the presumption of innocence.”
Cohen’s summation had shied away from a grand theory of innocence for Smith and instead went for a blizzard of particulars. Smith was not avoiding arrest in Cambridge, Cohen claimed; he was simply looking for his girlfriend, Carol Bell. The next morning Smith accompanied Dorothy Hunt as she took her daughter to the optometrist, which required walking directly past the Cambridge police station in Central Square. Sidewalk vendors were already selling newspapers that identified Roy Smith as a fugitive who was wanted for the murder of Bessie Goldberg. Was this the behavior of a guilty man, of a man who was evading arrest? Cohen went on to point out that no one who encountered Smith that afternoon thought he looked nervous except Louis Pizzuto, who had misidentified the clothing Smith was wearing and seemed to be a racist anyway.
“And we had a lady named Geneva Harden, the landlady at 175 Northampton Street,” Cohen had told the jury. “She came on and testified that the defendant didn’t need any particular money in terms of rent. Wasn’t behind in his rent. And then of course there was a stakeout. Do you mark a Boston police officer’s car and put it in front of 175 Northampton Street? Put the lights on in the apartment and sit there and watch television and wait? Anyone walking down the street is going to see the scene and say, ‘Not tonight. Think I’ll sleep out.’”
According to Cohen the police had actually made themselves comfortable in Smith’s apartment while they waited for him; even an innocent person might hesitate to go into the apartment under those circumstances. Cohen went on to question how long Goldberg was really inside the house as well as his response to the crime, which was to call the police rather than an ambulance. “What can I say?” Cohen asked. “Can I summon in my mind a man married a number of years who comes home, finds his wife lying on the ground and does not put his hand to her head? Didn’t go near her? Didn’t touch a thing—didn’t even try to loosen the scarf?”
The crucial testimony, though, was from the children. Because of them it was supposedly known that Goldberg had spent only a couple of minutes in
his house and that no one else had gone in or out. But Cohen questioned whether children playing kickball on the street could monitor even the front door of a house, much less a back door facing a yard enclosed by bushes. Cohen went on to accuse Kelley of feeding the children whatever testimony he needed while preparing them for the trial. “The district attorney became a schoolteacher!” Cohen proclaimed. “He had them in the other courtroom one at a time, he went over their testimony. I just stumbled on it: I asked Susan Faunce, ‘Have you ever seen that exhibit before?’ And she said, ‘Yes, last Wednesday.’ Gentlemen of the jury, she saw that exhibit before I did! And I have the obligation to try a capital case!”
Cohen dismissed the testimony of Smith’s friends as far too compromised by alcoholism and legal troubles to be trusted. He dismissed the fact that the state police chemist had found a small semen stain on Smith’s pants because the jury was not allowed to inspect the pants for themselves. He dismissed Smith’s entire interrogation in the Belmont police station—upon which the commonwealth based the bulk of their case—because it was coercive and unfair. He was referring to the fact that John Droney, the Middlesex County DA, had told the Belmont police chief to go have dinner in Cambridge while Smith was being interrogated.
“The district attorney made the Belmont Police Department look like a little boy with a lollipop!” Cohen told the jury. “He was told to get out of the station—‘We’ll use your room, go out to dinner.’ And who came in but the big-city boys. I do not suggest they put their hands on the defendant—no evidence of that. But you have to realize that when these detectives, the big boys from the city, when they interrogate a prisoner they know the rules of evidence. They know about the admissibility of evidence, and when the poor guy who didn’t do it gets caught up with the big-city boys, watch out. No confession from the defendant. He withstood it. I don’t say they won’t put their hands on him, there are no false issues here. But there is such a thing called coercion. Being at that desk for ten or twelve hours…that could be called coercion, under the right circumstances.”
Cohen finished in a blaze of indignation: “Smith is here on the basis of murder, rape, and robbery. Are you going to take his life? You have it within your hands tomorrow afternoon. Are you going to take his life on the basis of the people at the country club? Are you going to take his life on the basis of the children who ‘attended school’ with the district attorney? Are you going to take his life on the basis of evidence that was evolved in a police station? Have courage! I know you will!”
This was a jury’s dilemma at its most terrible: to decide between two plausible but utterly contradictory propositions. Either Roy Smith killed Bessie Goldberg but was too apathetic to conceal it—failing even to get rid of her address in his pocket—or he didn’t kill Bessie Goldberg and was the victim of bad luck and the distortions of the Middlesex DA’s office. Furthermore, in some criminal cases it is possible to be found guilty of some crimes and not others, but this case was all or nothing. Either Smith killed, raped, and robbed Bessie Goldberg or did none of those things; logically Smith could not be innocent of one of those crimes and not of the others. The man who killed Bessie Goldberg also raped her; if the rape was not plausible, then neither was the murder. And neither crime would have happened without the robbery, which was described by Richard Kelley as the motivation for the murder in the first place.
Even Beryl Cohen would have to admit that Smith made an excellent suspect in the murder of Bessie Goldberg, but that wasn’t the question before the jury. The question was whether Roy Smith killed Bessie Goldberg, not whether he could have killed her. In a civil case—in which a man’s life or liberty is not at stake—the jury uses something called a “preponderance of evidence” to decide whether something is true. The jury only has to decide if something is more likely than not likely to be true; the chances have to be at least slightly better than fifty-fifty. By that standard a jury could easily find Roy Smith guilty of killing Bessie Goldberg.
In a criminal trial, however, a jury cannot send someone to prison—or, in Smith’s case, to the electric chair—unless he is guilty “beyond a reasonable doubt.” It is a phrase that almost everyone thinks they understand but no one can explain. The classic definition was penned Chief Justice Lemuel Shaw, who incorporated it into his instructions on circumstantial evidence in the 1850 Webster case. “What is reasonable doubt?” Shaw asked. “It is not a mere possible doubt; because everything relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt. It is not sufficient to establish a probability, though a strong one, that the fact charged is more likely to be true than the contrary. The evidence must establish the truth of the fact to a reasonable and moral certainty.”
Trying to define “reasonable doubt” is like trying to define a color; you end up having to explain the very words you use in your definition. If a jury doesn’t intuitively understand the phrase “reasonable doubt,” they’re not going to be helped much by the term “moral certainty.” Over the years, courts have struggled to clarify, in some senses, the obvious: “It is not a fanciful doubt, it is not an imagined doubt, and it is not a doubt a juror might conjure up to avoid performing an unpleasant duty,” Black’s Law Dictionary offered. Nor is it “free-floating existential doubt,” a legal scholar added. One court finally acknowledged that there may be no better definition of the phrase “than the phrase itself.”
The central problem with the idea of reasonable doubt—with the entire premise of man-made justice—is that it tries to determine an objective truth with subjective tools. It will never be known in any absolute sense whether Roy Smith killed Bessie Goldberg; that is simply a given, the starting point of any determination of Smith’s guilt. Lacking the ability to “see men as God does,” as one legal scholar put it, the courts must settle for some lesser version of the truth. That lesser version is known as “legal” guilt. It is possible to be actually innocent—to have truly not killed Bessie Goldberg—and to still be found legally guilty of her murder. Legal guilt simply means that twelve unbiased people heard the evidence against you and decided that you killed Bessie Goldberg beyond any reasonable doubt. Maybe you did not kill her but—strictly speaking—that is not a concern of the court. The concern of the court is that you receive justice, and justice is defined as having received a fair trial. Fair trials, in turn, have been described in the Constitution; everything else is in the hands of the jury.
The disadvantage of this system is that innocent people can be found guilty and put to death. Between 1973 and 2000, more than one hundred people have been released from death row—over 3 percent of the current death-row population—because they were later proved to be innocent. As one defense attorney noted, the Federal Aviation Administration would never tolerate an airline that lost one plane out of a hundred; why should the justice system? DNA evidence, which was not available until 1989, was responsible for thirteen of the exonerations. With an error rate as low as one in a trillion, DNA evidence is virtually all-powerful in court and can win convictions with almost no supporting evidence. If it can send people to the electric chair, though, it can also save them from it, and that is a power that state prosecutors are loath give up. One case that wound up before the Missouri Supreme Court involved a man who was due to be executed despite the chance that a court-ordered DNA test would prove he was innocent. The assistant district attorney in the case argued that the new evidence should not be considered by the court. The presiding judge, Michael Wolff, was incredulous.
“To make sure we’re clear on this,” Judge Wolff asked, “if we find that DNA evidence absolutely excludes somebody as the murderer, then we must execute them anyway?”
The answer, according to the assistant DA, was yes. A jury had determined that the man was legally guilty, and if the state began to question jury decisions, the whole system would fall apart. You don’t endanger the ship to save one drowning sailor, in other words. Ultimately the gap between legal guilt and actual
guilt is the gap between human perception and objective truth, and that is a gap that has ruined lives—and tormented philosophers—for millennia. In a famous parable the Greek philosopher Plato described a cave where bound prisoners are held in complete darkness except for a campfire behind them that projects shadows on the wall. The shadows were made by passing objects in front of the fire. Everything these men knew about reality was based on the shadows; the objects themselves remained unknowable and maybe even unimaginable. That is a modern jury. They are allowed to see evidence from the crime, but they can never turn their heads to see the crime itself. They must come to a conclusion based only on the evidence—the shadows—that they are allowed to see.
“This is a strange picture,” the Socratic student Glaucon commented after hearing about the cave for the first time. “And strange prisoners.”
At 11:25 a.m. on November 23, 1963, twelve such strange prisoners retired to a jury room in the Middlesex Superior Courthouse to decide whether Roy Smith had, in fact, killed Bessie Goldberg.
FIFTEEN
TWENTY MILES TO the north in the failing mill town of Lawrence, Massachusetts, the phone was ringing in the apartment of a twenty-three-year-old woman named Joann Graff. Graff lived alone in a one-room apartment and worked in an industrial design shop; on Sundays she taught classes at a local church. Graff answered the phone and spoke for a few moments to a friend named Mrs. Johnson, who invited her to dinner that night with some other families from their congregation. Graff favored plain dresses and wire-rim glasses, and a last-minute invitation to a Saturday-night church dinner was about as spontaneous as she ever got. She said yes and hung up the phone.
One hour later—at 12:30 in the afternoon—Graff’s landlord knocked on the door. Graff opened up and gave him the fifteen dollars’ rent and then closed the door behind her. In the time that the door was open, though, the landlord noticed that the breakfast dishes were done and that a religious book lay open on the kitchen table. At some point in the next three hours but probably toward the end of that period, a second person knocked on Joann Graff’s door. She must have let the person in, because Graff’s neighbors heard nothing through the thin rooming-house walls. Whoever the intruder was, he knew what he was doing. He forced Graff diagonally across her own bed without the neighbors hearing, and he twisted two stockings and a black leotard around her neck without the neighbors hearing, and finally he stripped her and raped her and killed her without her neighbors hearing anything at all. Then he ransacked the apartment—though he left money for the gas bill sitting untouched on the kitchen table—and closed the apartment door behind him when he left.