This compilation was inspired when I read on the American Association for Justice Listserv a modern day eulogy tribute to Scotty Baldwin. It will appear as story number two, preceded only by the story of Abraham Lincoln’s use of the almanac as an example of judicial notice.
Story number three and following, I hope, will be submitted from our readers. We are looking for stories about lawyers and judges that teach, inspire and make one proud to be a lawyer or judge.
Please submit stories you recommend to: gary.green@gGreen.com
Judicial notice is a very simple way to introduce a fact as evidence, but it is not frequently invoked.
The best-known example of judicial notice comes from the 1858 trial of “Duff” Armstrong, who was charged with murder and defended by Abraham Lincoln, then a Chicago railroad lawyer. An eyewitness claimed that Armstrong was able to see the victim in the moonlight. Lincoln produced a copy of the Farmers’ Almanac, and asked the judge to take judicial notice that the moon was too low in the sky to produce moonlight on the night in question. The judge agreed, and Armstrong was acquitted.
Judicial notice may be based on “sources whose accuracy cannot reasonably be questioned,” such as Lincoln’s almanac. Judicial notice can also be based on local general knowledge.
ABRAHAM LINCOLN AND THE ALMANAC TRIAL
The late Irving Younger is rightly celebrated for an entertaining lecture on “The Art of Cross-Examination,” which he later published as an ABA monograph. The lecture is now used in many law schools as a “classic” on the subject of cross-examination. Younger tells the story of the cross-examination of the critical prosecution eyewitness in the Armstrong case, beginning with the statement “[w]e have Lincoln’s Cross-examination in the trial transcript.” We must accept this as professional poetic license, because there was no trial transcript. If you have to guess, Younger is using the Donovan/Wellman version, and editing it to suit his purpose. One purpose was to reinforce three of his “Ten Commandments of Cross-Examination” – that the cross-examiner should not ask a witness to repeat an answer, that the cross-examiner should stop when he gets what he needs and should not ask that “one question too many,” and that the cross-examiner should not ask a witness an open-ended question which might give the witness an opportunity to explain or volunteer “bad facts.” But according to Younger, the “masters of cross-examination” may break the rules and achieve greatness (but don’t you dare) – this seemed to be the point of the exercise. Here is the story that Younger’s “transcript” provides:
Question: “Did you actually see the fight?”
Question: “And you stood near them?”
Answer: “No, it was a hundred and fifty feet or more.”
Question: “In the open field?”
Answer: “No, in the timber.”
Question: “What kind of timber?”
Question: “Leaves on it rather thick in August?”
Question: “What time did all this occur?”
Answer: “Eleven O’clock at night.”
Question: “Did you have a candle?”
Answer: “No, what would I want a candle for?”
Question: “How could you see from [a] distance of a hundred and fifty feet or more without a candle at eleven o’clock at night?”
Answer: “The moon was shining real bright.”
Question: “A full moon?”
Answer: “Yes, a full moon.”
… Lincoln drew a blue covered almanac from his back pocket. …[He] asked the judge to take judicial notice of it and the judge said, “Yes, I will.” …Lincoln hands the almanac to the witness:
Question: “Does the almanac not say that on August twenty-ninth (the night of the murder),
the moon had disappeared, the moon was barely past the first quarter instead of being full?”
Answer: [The imaginary stenographer records the answer as,] “No answer.”
Question: “Does not the almanac also say that the moon had disappeared by eleven o’clock?”
Answer: [No answer.]
Question: “Is it not a fact that it was too dark to see anything from fifty feet, let alone
one hundred and fifty feet?”
Answer: [No answer.]
…Lincoln sat down. He had demolished the witness, and Armstrong was acquitted. …
– Professor Irving Younger
– Northern Kentucky Law Review – Vol. 29:2, Book Review: John Walsh, Moonlight: Abraham Lincoln and the Almanac Trial; Richard H. Underwood.
DEFENSE OF DUFF ARMSTRONG, AS RECOUNTED BY JUROR, JOHN T. BRADY
“The prosecuting witness, Allen, testified in the trial that the reason he could see a slung-shot that Armstrong had in his hand, with which he struck Metzker, was that the moon was shining very bright, about where the sun would be, at one o’clock in the afternoon. Mr. Lincoln was very particular to have him repeat himself a dozen or more times during the trial about where the moon was located, and my recollection is now, that the almanac was not introduced until Mr. Lincoln came to that part of Allen’s testimony telling the Court where the moon was located. Mr. Lincoln was very careful not to cross Mr. Allen in anything, and when Allen lacked words to express himself, Lincoln loaned them to him. Allen was the only witness for the State, and there were eight or ten witnesses for the defense, and they all swore that Armstrong struck Metzker with his fist, and I am satisfied that the jury thought Allen was telling the truth. I know that he impressed me that way, but his evidence with reference to the moon was so far from the fact’s that it destroyed his evidence with the jury. The almanac that was produced was examined closely by the Court, and the attorneys for the State, and the almanac showed that the moon at that time was going out of sight; setting; and the almanac was allowed to be used as evidence by Judge Harriott.
There has never been a question in my mind about the genuineness of the almanac, that it was an up to date almanac; this I am sure of, as it was passed up to the Judge, jury and lawyers, who all examined it closely, and the State’s Attorney said ‘Mr. Lincoln, you are mistaken, the moon was just coming up instead of going down at that time’ and Lincoln retorted: ‘It serves my purpose just as well, just coming up, or just going down, as you admit it was not over head as Mr. Allen swore it was.’ As to the question of the validity of the almanac, Mr. Lincoln’s long and honorable life is a distinct refutation of any such dishonorable action on his part. My recollection of Mr. Lincoln’s appearance as he addressed the jury is very vivid. The day was warm and sultry, and, as he rose to make his closing argument he removed his coat, vest, and later, his ‘stock’, the old fashioned necktie worn by men in those days. His suspenders were home-made knitted ones, and finally, as he warmed up to his subject, one of them slipped from his shoulder, and he let it fall to his side, where it remained until he finished speaking. In this ‘backwoodsy’ appearance he was about as homely, and awkward appearing person as could be imagined; but all this was forgotten in listening to his fiery eloquence, his masterly argument, his tender and pathetic pleading for the life of the son of his old benefactor. Tears were plentifully shed by every one present; the mother of Duff Armstrong, who was present, wore a huge sun-bonnet, her face was scarcely visible, but her feelings were plainly shown by her sobs.
As we were leaving the court room to pass into the jury room, I heard Mr. Lincoln tell Mrs. Armstrong that her boy would be cleared before sundown, which proved to be true. We were out less than an hour; only one ballot was taken, and that was unanimous for acquittal. After we rendered our verdict, Mr. Lincoln shook hands with Duff Armstrong and then led him to his mother and gave him a short lecture on making a man of himself and being a comfort to his mother, telling him to care for her and try to make as good a man as his father had been.
– John T. Brady, who at the time he wrote this was the sole living juror who had tried the case.
– Illinois State Historical Society, April 1910 – Lincoln’s Defense of Duff Armstrong, The story of the Trail and the Celebrated Almanac, by J.N. Gridley (Re-Print from the Journal of Society of April 1910.
BIBLE VERSES AND THE LAW
“I heard Scotty tell this story two or three times. As I remember Scotty telling, it, they were trying a case and Carl Roth was relatively new to the firm. In final argument, the defense lawyer got up and began to regale, the clearly pious jury of East Texas people with a seemingly unending string of Biblical references as to why it would be wrong, why even un-Christian to give this widow any dirty old money for the death of her husband.
Slightly panicked, Scotty turns to Franklin Jones Jr and says, give me a Bible verse that will fit with this case. Nothing. Then he says, “Hell, give me any Bible verse.” Still nothing. Franklin turned to Carl and said, do you know any Bible verses that would apply? Carl is equally helpless.
Scotty says to himself, “What the hell kind of firm do I have that we can’t come up with one Bible verse between the three of us?”
The defense lawyer wraps himself in the Bible a little tighter and sits down feeling pretty good about his argument until Scotty gets up.
“Lady and gentleman, defense counsel has shared with you selections from the sacred Book and carefully parsed them in an effort to sway you in this case today. Now clearly, I could do the same and we might stay here all afternoon going from Genesis to Revelations, but I think that would be wrong, and a misuse of the holy text. But I will tell you this,” as he walked over to his client and put his hand on her shoulder, “If Jesus Christ walked through that door and into this Courtroom today, I think we know which table he’d sit down at.”
My guess is Scotty is sitting at the same table today.
– Guy Choate