The Court of Last Resort

The man was released from custody.

So Dr. Snyder suggested, “If he’s so co-operative, ask him if he’d object to having another polygraph test. Tell him that Keeler’s out here and that it’s advisable to clear the matter up.”

So the police got in touch with the individual, who assented.

That test was a remarkable demonstration of Keeler’s powers. Aided, of course, by the graph shown on the sensitive machine, it wasn’t long until Keeler knew definitely just about all there was to know about this man’s temperament and reactions.

Questions, it will be remembered, are so phrased that the subject is expected to answer them by either a straight “yes” or “no.” Qualifications or explanations, if any, are to come after the test is concluded.

So, after Keeler felt he knew what had actually happened, he suddenly swung into a new line of questioning.

“Did you burn your wife’s body?” he asked.

“No.”

“Did you submerge your wife’s body in water?”

“No.”

“Did you bury your wife’s body?”

“No.”

It was a cold, rainy day. Wind was whipping sheeted rain against the windows of the office where the test was being conducted.

Keeler went on quietly, “Did you bury your wife’s body near the house?”

“No.”

“Did you bury your wife’s body far away from the house?”

“No.”

“Did you bury your wife’s body in the basement of the house?”

“No.”

“Did you bury your wife’s body in a shallow grave?”

“No.”

“Did you bury your wife’s body in a deep grave?”

“No.”

By this time the very nature of Keeler’s questions indicated to the suspect that Keeler knew, as he did know, that the wife’s body had been buried. The subject became somewhat apprehensive. Gradually the self-control which had enabled him to pass other polygraph tests without betraying himself began to break.

Abruptly Keeler pushed the machine away from him, looked at the man sympathetically, and said, “Your wife must be awful cold and lonely out there in that shallow grave in the flower garden. Why don’t we go dig her up and get it over with?”

The subject ripped off the apparatus, jumped to his feet and said, “Come on, let’s do it.”

So the police, the subject, Dr. Snyder, Raymond Schindler and Leonarde Keeler went out to the flower garden.

Standing there in the cold, driving rain, the man indicated the spot they should dig. They dug down and uncovered the wife’s body.

I think that is a typical illustration of the manner in which Keeler worked. A less skillful man could well have been baffled, but Keeler knew what to say, when to say it and how to say it.

I think it is generally conceded that Keeler was one of the greatest polygraph experts who ever lived, but much of his reputation was founded upon his uncanny ability to understand the mind of the man he was examining, and at just the proper time to say just the right thing that would prompt the man to pour forth his soul in a confession.

Keeler didn’t do this by any third-degree or by any persistent, continued pounding of questions. Neither did he do it by the type of trickery which is often utilized by police officers in getting a confession from a suspect. He did it by knowing the type of man with whom he was dealing and by having a good idea of how the crime had actually been committed. That last, of course, from reading the subject’s record on the polygraph.

One interesting illustration of his work comes to mind which I think is worthy of inclusion at this point.

Some time ago, Raymond Schindler, Dr. LeMoyne Snyder and Leonarde Keeler were due to join me at my ranch shortly after lunch.

They didn’t show up until the small hours. (This was before my ranch had a telephone and it was impossible to get any word through to me.)

It seemed that the three had dropped in to pay their respects to an investigator of the metropolitan police force. They sat around for a while, talking shop. Just before they were ready to start for my ranch the investigator started telling them about a case that had baffled the police there for some time.

A man, it seemed, had reported that his wife had gone back East to visit relatives. Neighbors became suspicious. The police were called in.

On the surface it was just another one of those things. A man who had murdered his wife and then announced that she had gone away to visit relatives.

But the police couldn’t find the wife’s body, and they couldn’t trap the man into any admission. They simply couldn’t get a scintilla of evidence. They asked if he would be willing to take a polygraph test. He readily agreed.

So the police gave him one, and when they had completed it, they knew no more than they did before.

The man was genial, friendly, co-operative, but all he could say was that his wife had told him she was going to visit relatives. He was terribly sorry that it was causing all this trouble. Probably she had some other man that she liked better and had-gone away with him. It was a regrettable situation all the way around but there was nothing he could do about it.

And there was nothing the police could do about it. They couldn’t even establish a corpus delicti.

Carefully conducted experiments show that it is rather difficult to make a positive identification, particularly where the individual was seen casually.

I remember at one time when I was attending one of Captain Frances G. Lee’s seminars on homicide investigation at the Harvard Medical School, Dr. Robert Brittain, a brilliant Scotsman, one of the shrewdest medicolegal brains in the profession (at present Lecturer in Forensic Medicine at Leeds University in England) was lecturing to a class of some fifteen state police officers, men who had been chosen for the course because of aptitude and ability.

Dr. Brittain was commenting on description and identification. Abruptly he ceased his lecture, turned to the assembled group and said, “By the way, how tall am I? Will someone speak up, please?”

Someone said, “Five foot eight.”

Dr. Brittain was like an auctioneer. “Anyone here who thinks I’m taller than five foot eight?” he asked.

There was something in his voice that made it appear the estimate might have been on the short side, so someone promptly said, “Five foot eight and a half,” and then someone went to five foot nine.

After a while Dr. Brittain said, “Well, who thinks I’m shorter than five foot eight?”

That immediately drew a customer.

Then Dr. Brittain went on to the question of his weight and his age. Before he got done he had a series of descriptions which were simply meaningless. Between the extreme estimates there was a margin of difference that represented some fifteen years in age, some twenty pounds in weight and some four inches in height, and it is to be remembered that these descriptions were furnished not by men who were excited because they were being held up, or by men who were getting a fleeting glimpse of an individual in a dim light—they were sitting there looking directly at Dr. Brittain, whose figure was only partially obscured by a table, and they were trained observers, men who made it their business to classify and describe

Identification evidence, even when asserted with vehemence, should always be considered in the light of surrounding circumstances.

Some persons who are inclined to be positive and opinionated will get on a witness stand and swear with every ounce of sincerity at their command that the defendant in the case is the man they saw at such-and-such a time, at such-and-such a place.

Unfortunately the man who should be the most doubtful is, nine times out of ten, the man who is the most positive.

The fair man, whose testimony is apt to be accurate, is more likely to say, “Well, I can’t be absolutely positive, but I think that this is the man. Of course, it’s been some time ago, but I think this is the man.”

Defense attorneys are inclined to pounce upon such a witness and by showing that he isn’t positive and only “thinks” the defendant is the man, sneeringly subject the witness to ridicule.

In many instances, such tactics are unfair.

Jurors should not readily condone a fair witness being torn to pieces by a jeering, sarcastic defense attorney who is crucifying the witness upon the cross of his own fairness.

On the other hand, juries should not be too much impressed by the testimony of the man who, after seeing some individual for a few seconds during the excitement attending the commission of a crime, swears positively that the man seated in the courtroom is the criminal. Jurors should consider all the facts.

Such factors made the Court of Last Resort terribly costly, and made it debatable as a cold-blooded business proposition. Despite the fact that the reading public was indicating its approval it was, of course, quite clear that if the money spent on the Court of Last Resort should be used to increase promotional allotments and editorial rates, the expenditures would be far more profitable.

But, offsetting this tremendous expense was the knowledge that the work is a badly needed activity in connection with our whole scheme of justice.

Harry Steeger wanted Argosy to stand for something. He wanted the magazine not only to entertain, but to be a constructive force, and he overruled his editors when they pointed out how much more desirable it would be to use the money spent on the Court of Last Resort for promotional purposes.

Harry Steeger has a certain bulldog tenacity, and having started the Court of Last Resort he “stayed put.”

Had we known what we now know about investigating the cases, the investigation of the Boggie case could have been greatly simplified. We learned a lot from that case.

Before finally leaving it, I think it is only fair to mention certain obvious truths which should be given careful consideration

So far as the Court of Last Resort was concerned, the Boggie case demonstrated certain problems which, incidentally, we have never been able to solve.

In order to secure a committee the personnel of which would command confidence on the part of the public, would carry sufficient prestige to impress state officials, and at the same time be composed of men who were well established financially so that there was no need of personal publicity, it was necessary to get men who had active business interests. If a man is successful he has numerous demands on his time. If he isn’t successful people aren’t inclined to accept his opinion.

Dr. LeMoyne Snyder’s services are in constant demand. Leonarde Keeler was tremendously busy during his lifetime, and Alex Gregory at the present time is working on a crowded schedule. Raymond Schindler has the job of co-ordinating the investigation in countless cases. He is constantly flying back and forth from New York to Los Angeles, up to San Francisco, down to Florida, and occasionally over to Europe.

Harry Steeger, in addition to the responsibilities of supervising the destinies of Argosy Magazine, has some three dozen magazines in his publishing string. For my part I am always metering minutes, trying to be in two places at once, and do two things at the same time.

The result was that when we would fly to Walla Walla, Olympia or Spokane, and start an investigation, the long-distance telephone would be hammering out a constant succession of calls concerning some “emergency” which had developed in our various businesses while we were away.

We could only get away a few days at a time; then we would have to go dashing back and face the discouraging prospect of a desk piled high with mail which had accumulated in our absence.

The members of the investigating committee had agreed to donate their time, the magazine had agreed to defray traveling expenses. But when, for instance, a man has to fly from New York to the Pacific Coast to work a few days on a case, then dash back to his office, expenses pile up.

When three or four such individuals get together for a conference, the bill runs into big money.

Those of us who felt that we could afford to do so stopped sending in vouchers and donated all our expenses as well as our time. But some of us simply weren’t in a position to do this; contributing the time alone had been a very great sacrifice.

Henry MacLeod, Don Magnuson, and Magnuson’s assistant, a newspaper reporter who, by the way, took a violent personal dislike to me, were first-class newspapermen. It was a revelation to see the way these men, with their knowledge of local conditions and the power of a local newspaper behind them, dug into the facts of the case. Their work in the Boggie case is one of the best illustrations I know of why we should have a free press, and why readers and advertisers should support powerful local newspapers. An advertiser who buys space in his local newspaper gets value received in terms of a dollars-and-cents return on his investment. In addition to all this he is making a tax-exempt investment in liberty and in freedom of the press. Without our local newspapers citizens would find themselves in a very sorry plight.

The truth of this is so apparent it seems a waste of time to mention it. Yet, strange as it may seem, this is an angle that many local businessmen and newspaper readers overlook.

I know that in my own case I didn’t fully realize what a powerful factor a newspaper could be in safeguarding liberties until I saw the way these men from the Seattle Times with their knowledge of local conditions could get information that would have been unavailable to us.

From that time on we realized that whenever possible it would pay to have some local newspaper take an interest in our cases

With the Seattle Times and Argosy Magazine hammering away at the Boggie case, Governor Wallgren finally granted Boggie a conditional pardon in December, 1948.

Don Magnuson received an award for his outstanding reporting, and the Seattle Times was showered with congratulations in the press. No one saw fit to mention that Argosy Magazine had been investigating the case for months, and even had a virtual commitment from Governor Wallgren long before the Seattle Times had even published a word. Bill Gilbert and some of the others who had known of our work started writing indignant letters.

However, I for one am frank to admit that political pressure might well have prevented any action from ever having been taken if it hadn’t been for the work of the Seattle Times in uncovering the witness, who, apparently, had never read any of the articles in Argosy, but who did read that first article in the Times.

As I expressed it at one time, I think perhaps Argosy was ninety per cent responsible for proving that Boggie had been improperly convicted, whereas the Seattle Times was ninety per cent responsible for proving that a case much stronger than the case against Clarence Boggie could have been made against someone else

Digging into police records in Spokane, Lehan found that during the time John Doe had first been arrested by the Spokane police, and prior to the time he had been released because he had an alibi for the time that “the sirens went by,” every one of the witnesses who had seen the murderer running from the cabin of Moritz Peterson on that fateful Monday morning had positively identified John Doe as being the man they had seen.

The witness who had at the time of Boggie’s trial glibly identified him as the man she had seen, had actually, nearly two years before, when the occasion was fresh in her mind, identified John Doe as being the man who had run away from that cabin and had been so positive, according to police records, that she had made the definite statement, “I’ll stake my life on it.”

It will be remembered that when we examined the transcript in the Boggie case there was indication that this witness had previously made an identification of another man, and that there had been a retraction of the identification when it appeared that the other man had a perfect alibi and couldn’t possibly have been connected with the crime.

That man was John Doe and the alibi was merely a statement that he had been seen at a certain place some distance from the scene of the crime “when the sirens went by.”

In the meantime the Spokane police stated that they wanted to see whether the witness uncovered by the Seattle Times could make an identification of the murder weapon which, it is to be remembered, had then been in their hands for sixteen years. The witness had seen that weapon sixteen years earlier and hadn’t seen it since.

The Seattle Times agreed to have their witness go to Spokane and make an identification of the weapon.

When the witness arrived the Spokane police tossed out a collection of weapons, all as nearly identical as they could make them, and asked the witness to pick out the one he had seen.

It seemed that the Spokane police had been busily engaged in duplicating the murder weapon.

Here again we have another incredible fact in the Boggie case. The witness sat down and carefully examined each of the weapons, and then picked out the exact weapon which had been used to murder Moritz Peterson sixteen years earlier.

“This is the one,” he said.

And he was right.

Nor was that identification merely a matter of chance. It happened that this witness was one of those unusually keen observers, who possessed a remarkable ability to recall what he had seen. Moreover, there was one peculiarity about the murder weapon which had escaped the notice of the Spokane police but which had clung to the memory of the witness.

I know that it wasn’t merely an afterthought or a coincidence because the witness himself had told me about this peculiarity when Don Magnuson had arranged for me to meet him, a meeting which had taken place some weeks before the interview with the police in Spokane.