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Legal Murder Anyone?
America's legal system was almost turned upside down by a bizarre case that began in the early hours of October 29, 1888, when a German-born waiter named Julius Roesler was having one last drink in a New York City bar before heading home. Suddenly the timid Roesler was surrounded by three men who ordered him to stand them a round of drinks. When Roesler refused, the men started roughing him up. While the barman distracted the bullies, Roesler managed to sneak out of the bar. He was quick but not quick enough. The trio of thugs caught up with him a few doors along the street, grabbed his umbrella and began beating him brutally. Roesler's cries for help attracted the attention of passing patrolman, Officer Joseph Brennan, 43.
When they saw Brennan approach, two of the assailants fled, but the third, Henry Carlton, known as 'Handsome Harry,' was slow in getting away. Instead, he drew a pistol and fired four times. Brennan fell dying on the sidewalk. Now it was time for Carlton to flee, which he did – right into the arms of three other police officers who'd heard the gunshots and had come to investigate. After being charged with murder, he was held at the Tombs Prison to await trial.
The case looked open and shut. And so it proved. Despite Carlton's claims that he had shot Brennan self-defense, the jury wasted little time in returning a verdict of guilty. However, just as Judge Randolph B. Martine was about to pass sentence of death, Carlton's defense counsel leapt to his feet. This was the moment that William F. Howe had been waiting for.
Howe was a bull of a man, not tall, about five feet seven, but weighing in at 250 pounds. Together with his partner, Abraham Hummel, he ran the most successful law firm in New York City and, arguably, the world. At one time a survey of inmates held on remand for murder at the Tombs, showed that 23 out of 25 listed Howe & Hummel as their counsel. Howe, flashily dressed, dripping with diamonds and silver-tongued, was the mouthpiece, while the diminutive Hummel, barely five feet tall, with an enormous head and spindly legs, had one of the sharpest (and most crooked) legal brains to be found anywhere. It was Hummel (among many others) who was credited with the old joke: "There are two kinds of lawyer; those who know the law, and those who know the judge."
Bribery, disappearing witnesses, jury tampering, subornation of perjury, it all came alike to Howe & Hummel, but their main specialty was finding legal loopholes and this time around the devious Hummel reckoned he'd found a real doozy, one that would enable Carlton to cheat the gallows. Howe rubbed his hands in anticipation.
In court, Howe explained this finding to Judge Martine. You can't sentence my client to hang, he said, because New York State does not have a death penalty!
Martine, who'd been on the bench less than a year, just gaped. Howe moved smoothly into gear. The confusion had arisen, he said, over the State Legislature's recent passage of the 'Electrical Death Penalty Law.' This was the bill designed to allow New York State to switch its form of capital punishment from hanging to the electric chair. But the law had been sloppily worded. It stated that no convicted murderer would be hanged after June 4, 1888, and that from January 1, 1889, all condemned persons would die in the electric chair.
What the lawmakers had intended was that anyone found guilty of murder after June 4 would be electrocuted the following year. But Howe & Hummel – as devious a couple of rascals whoever practiced law – didn't read it that way. And technically they were right: an error in syntax had given murderers a six-month moratorium on the death penalty. As Howe spelled it for Judge Martine, everyone in court instinctively checked a mental calendar. It was December 21, 1888 – Carlton had escaped execution by just 10 days.
Judge Martine might have been rattled, but he went ahead and sentenced Carlton to the gallows, anyway. The final decision, he said, would have to rest with the appeal courts. Handsome Harry went back to the Tombs, confident that Howe & Hummel had not only saved his neck, but might even have him back out on the streets in a matter of weeks.
Where Howe and Hummel first trod, other lawyers followed. An avalanche of appeals overwhelmed the courts from inmates who had been recently sentenced to death. Something very close to legal panic swept New York's judicial community. The state had seemingly deprived itself of the right to execute anyone for a period of almost seven months. If Howe was upheld, every death sentence handed down since passage of the bill would be voided and the courts might be forced to dismiss all indictments for first-degree murder committed in the state between June 4 and December 31, 1888.
The matter was batted back and forth for several months. On June 28, 1889, the New York State Supreme Court finally delivered its verdict. Whilst conceding that, according to the letter of the law, there was not a prescribed punishment on the books for murder at the time of Carlton's crime and conviction, the unanimous opinion was that regulatory foolishness should not be allowed to endanger human lives. The court's view was summed-up in the following phrase: "The punishment must be according to the old provisions, in the same manner as if the act had not been passed."
It had been a nice try, but at 7.30 on the morning of December 5, 1889, time ran out for Harry Carlton. Flanked by several sheriffs he made the lonely walk into the courtyard of the Tombs Prison where made the brief acquaintance of hangman Joe Atkinson. The killer who'd almost made it into the record books by making murder legal in New York State instead made another kind of history, by being the last person to be hanged at the Tombs Prison.