Theodore roosevelt for t.., p.32
Theodore Roosevelt for the Defense, page 32
That was not what Roosevelt wanted to talk about. “I want to talk first about the evidence as to the dinner when Mr. Platt was there.” The whole room erupted in laughter at the witness’s audacity, and again Judge Andrews gaveled the gallery into silence, said firmly, “That goes out!” and warned against such outbursts.
But that would prove difficult. The Great Roosevelt was on full display, the adventurous, sometimes reckless, always headstrong and extremely confident man who already had secured his place in both real history and legendary tales. Now he was barging his way through the laws, and no one seemed able to stop him. “He swept the lawyers and spectators off their feet,” the Times reported, “and even Judge Andrews was powerless at times to stem the tide of his pent-up energy. The jurors smiled with the Colonel as if they welcomed an old friend.”
Van Benschoten acceded to the Colonel’s request, asking him if he remembered that dinner, then letting him loose. Judge Andrews’s memory was short, and he asked Ivins, “You asked him about this dinner?”
“I did... And if the witness has refreshed his recollection and is prepared to swear that on this particular occasion there was another conversation, the only question that remains is should he swear to it at this time, or whether he should be confined to his original testimony?
“If your honor rules that it is proper for them to reopen the case...then of course I acquiesce in the propriety of the latter course.”
This conciliatory, albeit somewhat sarcastic response surprised the judge, who wanted to strip away the sarcasm about “reopening” the case and get to the issue at hand: “Acquiesce unwillingly?”
“No,” Ivins protested again somewhat facetiously, “I acquiesce willingly, because I am entirely willing that Colonel Roosevelt should say everything that he can say and wants to say that is within the rules of law, curbed by the customs of the courts.”
Judge Andrews now seemed truly incredulous. “Do you mean that you don’t object to it?”
“I mean just a minute ago when he reached over and said...”
“Do you object to the conversation or don’t you object to it?”
“I object to the conversation on the grounds...”
That’s what Judge Andrews had been waiting to hear. He banged his gavel and said, “I don’t think it is competent! I think the witness should have given that on direct testimony.”
Van Benschoten retorted, “You were pretty kind to our friends on the other side in their re-direct of Mr. Barnes, but we will pass it.” He moved his witness along, asking him if “you recollect that (Barnes) testified that you said the racetrack legislation should be defeated?”
Roosevelt looked directly at Barnes, his face clenched with anger as he replied, pronouncing each word distinctly, “It. Is. Utterly. False.”
There ensued another lengthy discussion over whether the Colonel was permitted to respond to Barnes’s claim that Roosevelt had “cast some reflections” on former governor Woodruff—who had died two years earlier—during their discussion of the racetrack bill. Ivins made the legal argument that the witness had given direct testimony “to what we were justified in believing was the entire communication as he understood it. Barnes then testified to what occurred as he understood it. He said that Mr. Roosevelt had made certain remarks about Mr. Woodruff which he regarded as unimportant and therefore did not repeat.” It seemed improper to the lawyer that they “bring in a conversation between this man and a dead man.”
Why this testimony was so bitterly contested was revealed moments later, when Roosevelt was permitted to offer his version of that meeting. “Mr. Barnes asked me why I did not go to Governor Woodruff...and I said that Governor Woodruff was not the man that had the power...that Mr. Barnes did and I would go to him, and so I went to Mr. Barnes.”
Van Benschoten then brought up a conversation between the witness and Barnes that had taken place at his home at Oyster Bay during which the renomination of Governor Hughes was discussed. Barnes had testified that Roosevelt had said to him, “Of course you will continue your opposition to Governor Hughes?”
The Colonel literally shouted his answer, which reverberated through the courtroom. “I did not say it! I said to Mr. Barnes, ‘I suppose you will oppose Mr. Hughes to the end, but I have hopes for the others!’”
Then there were questions about another meeting with Barnes, this one at the Manhattan Hotel in 1910 to discuss the Colonel’s support of Governor Hughes’s direct primary bill, as well as his personal ambitions in the forthcoming presidential election. Roosevelt’s obvious intent was to provide evidence of Barnes’s control over the Republican machine. In extremely animated fashion, as if relating a grand story to a group of friends, he revealed, “Mr. Barnes said in substance that he and the organization...felt more kindly toward me than toward Mr. Taft...
“Mr. Taft had tried to double-cross them. And he also said that he had warned me before that Mr. Hughes’ supporters were my enemies...and that it was against my own interests to take the course that I was taking and allying myself with the followers of Hughes... But that he and the organization were unalterably hostile to the principles I had enumerated...and they would not support me if I continued to stand for those principles and for the primary legislation and would be hostile to me.”
This was a juicy morsel of political gossip. After all, Roosevelt had fought long and hard to win the 1912 Republican nomination, and if Barnes and the Republican Party had not opposed him so vigorously, he likely would have become president again. The packed courtroom was at attention. Then as if he were speaking on the hustings, he continued, “I answered...that I was not concerned with the interest either of myself or of Mr. Taft in that matter; that I regarded the points at issue as being of far greater consequence than the welfare of either Mr. Taft or myself; that I was supporting Mr. Hughes’ primary legislation as a matter of principle, because I believed in it, and that in (the speeches) I had made in the West that all I had been doing was trying to apply the principles of Abraham Lincoln to the conditions of our own country, and that I could not abandon that fight.
“Mr. Barnes said, ‘All right, then the fight would have to go on.’”
With that, Van Benschoten handed over his witness to William Ivins one last time. Here it was then, the final confrontation between these two men. There was not a sound to be heard in the courtroom as Ivins stood, an amused smile on his face. The Colonel turned slightly in his chair to look at him directly.
Ivins picked up the echoes of the Colonel’s impassioned defense of Lincoln Republicanism, wondering, “Did Mr. Barnes sit there quietly and listen to a long speech which you made and interpose no objections, and just finally end by saying, ‘Very well, then we part?’”
Roosevelt began, “In the...”
Ivins cut him off sharply, his voice a little louder this time. “You have just testified to a long conversation, which I would designate a monologue. I want to know whether it was a dialogue.”
The witness could be equally sarcastic; glaring at Ivins, he replied, “Now, do you want me to correct your understanding of it?”
“No,” Ivins said dismissively, his point made to the jury, “I understand it.”
“You do not!” Roosevelt practically screamed, thrusting out his jaw. These were actions of a man who did not appreciate his word being questioned. “I testified that it was a dialogue. I gave the statements of Mr. Barnes and my answers to them. The way I think it came was in a long statement by Mr. Barnes, and then quite a long statement from me.” And then he added, “It may have been occasionally broken up by interruptions.”
Ivins did not take his bait. “As a matter of fact that is not the way you gave it.”
At the defense table Bowers sat easily, knowing Roosevelt neither desired nor needed any help he might offer with an objection. Instead, he let them go at each other.
“I am giving it to you in substance.”
“What you mean now,” the lawyer suggested, “is that as a matter of fact in what you just gave you gave the substance of the conversation?”
Substance versus direct quotation? The Colonel recognized the potential trap. “You can test it by reading it.”
“Can you tell me now, recalling what you have just testified to, how many times you referred to Mr. Barnes as having broken into your conversation and made a remark?”
The Colonel was taken aback by the question. “How many times I referred...”
Ivins asked directly, “How many times you introduced him into what you call a dialogue?”
Roosevelt considered that, then responded, “My memory is that I gave Mr. Barnes’ statement first, and then my own statement. If you have any doubts about my memory being accurate let the stenographer read it.”
Ivins looked straight at Roosevelt and said, clearly, sharply, “I have very grave doubts of it.”
“Then let it be read,” Roosevelt challenged him.
Ivins kept his smile locked in place. “But my doubt is not a matter for consideration or discussion.”
“Then why ask me about it?”
And then, in a few words, Ivins summed up the weeks of testimony. “Because I want your doubt.”
And that was not within the realm of possibility for the Colonel. In Theodore Roosevelt’s entire career, he had never been a man held back by doubt. “I have none,” he said, flatly and forever. “I have no doubt.”
Ivins had got what he wanted, and asked softly, “You have no doubt?”
“None.”
Ivins let those words settle, then told Judge Andrews he had no further questions and turned his back on the witness.
Van Benschoten had only one question for the former president of the United States. “It occurred in precisely the way you have stated?”
“In substance,” Teddy Roosevelt agreed. “As I particularly said: In substance the way I have stated.”
Every attorney strives to leave the jury with a final, positive impression. In this instance, Adams for the plaintiff asked the court’s permission to call Lafayette Blanchard Gleason, the secretary of the New York State Republican Committee. Gleason was the mystery witness that Ivins had promised earlier to reporters. His purpose was to buttress the plaintiff’s case by calling into question Loeb’s testimony, about a 1911 meeting with Barnes where he talked of an “arrangement” with the Democrats. The groundwork had been laid on cross examination of Loeb when he was asked about an encounter with Gleason on 5th Avenue. Plaintiff’s attorney Adams had indicated it occurred in 1911 but Loeb insisted it was in 1914. “Do you remember meeting Mr. Loeb on 5th Avenue in 1911,” Adams asked.
“In 1911,” Gleason agreed, “I met him.”
The date of this meeting was important because Gleason then testified that Loeb had told him “in substance” that he had not seen Barnes recently. If true, that would tend to belie Loeb’s claim of a meeting with Barnes earlier that year. But when asked what day that was he admitted, “I can’t recollect the exact day.”
Adams persisted, “Did he say to you that he hoped he would make a great chairman, if he would be conciliatory?”
“Not exactly that,” Gleason replied.
Judge Andrews stopped this, ruling, “This does not contradict Mr. Loeb in any way. The only thing to contradict him is this first sentence which you have given.”
Bowers asked the man a few perfunctory questions, establishing that he had spent his entire career filling appointed offices in the Republican Party, making the point that he owed his career to the Republican machine. As for his qualifications, he was a lawyer, but before getting his political position as a twenty-six-or twenty-seven-year-old, he admitted, “I had been studying law in my father’s office and attending Yale College, and occupied by the usual boyish pursuits before that.”
Hardly the grand finale that the plaintiff desired. Without any corroboration the jury had no real way to determine when this casual encounter had taken place. It was little more than a he said-he said situation.
Both sides rested and court was adjourned.
Throughout the trial Judge Andrews had done as much as he could to give both sides a fair hearing. At times that had required allowing legally questionable testimony to be heard by the jury. Now the lawyers were going to make their legal case to limit that testimony, making motions to exclude certain evidence from the trial and forcing the judge to finally rule on its admissibility. Before these legal arguments began the jury was asked to retire. Henry Wolff, speaking for the plaintiff, started by challenging how much testimony about the printing industry the defendant’s counsel should be able to discuss in its summation, asking in particular that Roosevelt’s cross-examination on that topic be struck from the record.
“I think I will deny the motion,” said the judge, adding that he would, however, only allow it for limited purposes.
Next, Wolff asked for a directed verdict, a ruling that allows a trial judge to decide that the evidence presented is so clear that there is only one verdict a reasonable jury could reach. It means the case is so one-sided that under the law there is only one possible conclusion a reasonable trier of the facts could make based on the evidence. In those rare instances, the judge issues a verdict for that side and the case does not even go to the jury.
It is a common tactic that rarely succeeds, but if it had here, the jury would just be deciding what damages should be awarded. Wolff made a long, long argument to support his motion, citing the judge’s original ruling that on its face, the comments were libelous, then claiming the defense had not proved directly, circumstantially or inferentially any of its claims contained in that article. “We respectfully refer your honor to the rule of law which provides that the justification must be as broad as the libel,” he stated, pointing out, “In this libel there are points which have not even been touched upon...
“We hold that there is no evidence Mr. Barnes committed any act that could properly be called corrupt, even in the meaning of the word given it by your honor...and there was no evidence of an alliance between Barnes and Murphy.” The lawyer touched on several different claims for which the defense had introduced no evidence that would support the attack made by the Colonel, then asked if those statements were true would Roosevelt “have associated with him, received him as a friend into his home and asked his advice and counsel?”
Wolff then reminded the court that his client’s reputation, his very future, was at stake, that Roosevelt had “characterized Mr. Barnes as a man of the type that whenever the issue is drawn between corruption and popular rights, you will always find him fighting on the side of corruption,” and “it is through his aiding and abetting that the present rottenness in the state is due.” Harsh words that, he argued, would plague the plaintiff in all his future endeavors and result in irreparable damage.
His presentation was logical, complete and passionate, covering each of the three pillars holding up the defendant’s case. First, he challenged Judge Andrews in his definition of corrupt, pleading, “We have contended here that the word ‘corrupt’ has a far deeper and graver and more sinister meaning than that which has evidently been given by your Honor...”
He asked for a broader definition, perhaps making his argument as much to public opinion as to the judge. To the plaintiff’s counsel “It means that a person who has engaged in a corrupt enterprise must have secured to himself some personal advantage contrary to the public interest, whether it be in money or in power or otherwise.”
The judge found that claim wanting, responding harshly, “In other words you would not say that a man who traitorously betrayed his party or his country simply because he had an evil mind and did not obtain any advantage by it is corrupt?”
Wolff persisted in his claim that the proper definition of corrupt in this trial requires that a person must receive some money or personal advantage contrary to the public interest.
He then moved on to another central claim made by Roosevelt, that the relationship between Barnes and Murphy was corrupt. “There is no evidence showing any evil motive or bad purpose, or purposes contrary to the public interest, such as would justify a jury in finding that such an arrangement, if it existed, was corrupt—even in the sense which your honor has used the word.”
Finally he brought the court’s attention to the charge that Barnes had created a corrupt alliance between crooked business and crooked politics, essentially calling him a crook. Wolff argued that the defense would have had to have proved that campaign contributions were made in return for political favors, that Barnes was aware of this, and that he was a party to the arrangement. Most of the evidence presented on this issue focused on the Franchise Tax Bill, which was enacted long before Barnes had risen to power in the party. “There is absolutely no such proof in this case” that would support that claim.
The Colonel sat with his lawyers at their table, leaning back and occasionally crossing his legs, or whispering to Bowers but expressing no emotion other than a general interest.
Judge Andrews appeared to take a keen interest in Wolff’s presentation. Although it would be astonishing for him to intercede at this point to prevent the jury from weighing the case, he gave the argument careful consideration. In fact, based on the totality of the judge’s rulings, this was hardly a frivolous motion. Judge Andrews asked incisive questions at several points and when he was uncertain, he pushed for a more specific explanation. There could be no doubt he was giving the plaintiff the opportunity to make his pitch.
