Forensic Matters

A Tale of Two Killings


News of the murder of U.S. District Attorney Philip Barton Key (son of Francis Scott Key of Star Spangled Banner fame) on February 21, 1859, would have been electrifying enough by itself.   That Key had been killed by New York Congressman Daniel E. Sickles, a prominent politician and lawyer who believed that Key had been romantically involved with his young wife ensured the full attention of Washington society.   

Daniel Sickles was certainly no stranger to scandal.    Having been first elected to the New York State Assembly in 1847 (with the help of the notorious Tammany Hall political machine to which he belonged), his marriage to Teresa Bagioli in 1852 helped alienate his family and hers as well (he was thirty-three while she was only fifteen at the time).   Whatever misgivings people had about the age difference didn't prevent Sickles from holding a diplomatic post in London before returning to the U.S. and winning his first seat in Congress in 1857.   Despite his successful marriage to Teresa, Sickles also had a long association with notorious New York courtesan Fanny White and had even taken her with him to London while the pregnant Teresa was left at home.   

Whether it was being neglected by her husband or the humiliation of the very public affair he had been having with Fanny, Teresa's affair with the handsome and charismatic Philip Key was the apparent trigger that led to murder.  According to the lurid news coverage that I was able to track down, Sickles had heard rumors of the affair and confronted his wife, who "sighed as acknowledgment of her guilt."  Though he ordered Key to leave his wife alone, Sickles decided that threats alone wouldn't be enough.  Later seeing Key near Lafayette Square, across from the White House, Sickles left his nearby house to confront him.  After accusing Key of "having dishonored him and destroyed his domestic peace," Sickles then shot him twice.  One bullet was lodged near Key's right side, while the other bullet was lodged in his right side near the femoral artery.  Falling to the ground, Key begged Sickles not to kill him, but Sickles fired a third time, and Key died at the scene.  

Though there is no plaque to mark the site of the shooting, it’s hard not to appreciate just how public the killing was.   Having visited Lafayette Square once or twice, I can certainly picture the crowds who must have seen the murder.   Whatever was going through Sickles’ mind at the time, the prospect of getting caught didn’t seem to have dissuaded him in any way.

After the shooting, Sickles went to the nearby home of his friend, Attorney General Jeremiah Black.   Black urged Sickles to turn himself over to the police, which he promptly did.  In the meantime, Key's body was taken to the nearby National Club house where an inquest had little trouble determining that Sickles had been responsible for his death.   There were numerous witnesses, after all.  

Though Sickles was taken to jail and charged with murder, he was still visited in prison by some of the most prominent members of Washington society.  Then-President James Buchanan even sent a note of support which likely explains the special treatment Sickles received in jail.  He was even allowed to keep his gun and use the warden’s office to meet his prominent visitors privately.  Despite the favorable treatment, Sickles knew well that he would stand trial soon.

As one newspaper story I found pointed out, "the high position of the parties in this tragedy has caused the most unusual excitement."   Despite facing a possible death penalty, Sickles attracted a lot of sympathy (even though his infidelities were well-known).   Newspapers also related all the details of Sickles' visits from various family members describing his young wife's emotional torment over the role she played in the whole scandal. 

Looking over the newspaper coverage of the case, I couldn't help but be struck by the almost total support Sickles received from Washington society.   At the same time, there was virtually no sympathy for Teresa Sickles or Philip Key (which likely distressed both their families).  That Teresa likely had to endure far worse from her husband's affairs was dismissed as irrelevant.   If she was mentioned at all, it was for being a remorseful adulteress who drove her husband to murder.  

Sickles immediately began putting together a "dream team" of prominent attorneys to defend his case.  The team included Edward M. Stanton (later Secretary of War), fellow New Yorker James T. Brady  (both Brady and Sickles were Tammany Hall cronies), and Brady's partner, James Graham.   Under their legal guidance, Sickles agreed to plead temporary insanity (the first time this had ever been attempted in a U.S. trial).  

The real defense would be the "unwritten law" allowing a man to murder to avenge the sexual "dishonor" of a wife, daughter, or sister.   Beginning around 1840 (likely sooner), men who went on trial for cases very similar to Sickles' were typically acquitted because of the "unwritten law."   It was an often-slippery defense to try using in a courtroom, though.   Given the eminence of Sickles' victim and the murder that occurred near the White House, pleading temporary insanity likely seemed safer to his lawyers. 

The trial began on April 4 in a stuffy Washington courtroom with Robert Ould and J. M. Carlisle acting as prosecutors.   And it was quite a trial.   Edward M. Stanton and James T. Brady both gave stirring arguments on behalf of their client.  The fact that Stanton was a personal friend of the defendant helped add to the courtroom drama.    The "unwritten law" was central to their defense and their claim that Sickles was too mentally disturbed to be held accountable for his actions.   

Though the prosecutors attempted to bring up Sickles' infidelity to show that he wasn't too emotionally invested in his marriage, the judge excluded that line of testimony.   The prosecution then shifted to discussing the cold-bloodedness of his attack on Key and downplayed any supposed provocation.

The trial lasted for twenty-two days with numerous melodramatic scenes, highlighting the domestic drama of the case.   Members of the audience often cheered at something Brady or Stanton said despite stern warnings from the judge.    Stanton was particularly effective as he weighed in on the "sanctity of the marriage vows" and the husband's right to defend his home.   One commentator later said Stanton's performance was "a typical piece of Victorian rhetoric, an ingenious thesaurus of aphorisms on the sanctity of the family."   Newspaper editorials across the country weighed in on the case, and full details of Teresa's candid confession were leaked to the press (likely by Sickles' attorneys).  

Popular magazines such as Harper's Weekly ran pictures of Sickles in prison, often showing him in prayer or weighed down by the stress of the case and the horrors of being in prison (despite being far better treated than the average prisoner).   Many editorials even suggested that Sickles was a hero for "saving all the ladies of Washington from this rogue named Key."  There seemed little doubt that he would eventually be acquitted.

Not surprisingly, the defense worked.   After deliberating for only seventy minutes, the jury brought in a verdict of not guilty, and the crowd went wild.   To prevent a mad rush to congratulate his client, Stanton asked the judge to release Sickles from custody which was immediately granted.  As one eyewitness reported, "Mr. Stanton, unable to repress the emotions of his big heart, . . . almost rivaled David when he danced before the ark of the Tabernacle."   Enthusiastic supporters serenaded Stanton, Brady, and Sickles that night at their homes.

After the acquittal, Daniel Sickles publicly forgave his wife for the affair (with no mention of his infidelity) and temporarily withdrew from public life.  If anything, the public seemed more outraged by Teresa than her husband, and she became a social pariah afterward.   Sickles never resigned from Congress, and his political career continued as strongly as ever.   It helped that he had the public support of then-President Buchanan (who was openly thrilled by the acquittal), not to mention the not-so-covert aid of the Tammany Hall political machine. 

Any political fallout from the acquittal was quickly overshadowed by the U.S. Civil War, which broke out soon afterward.  Daniel Sickles became a prominent figure in the Union Army and, ironically, his old courtroom adversary Robert Ould would become part of the Confederate Army.   Though he stayed in the army until the war's end, Sickles' military career ended after losing a leg in the Battle of Gettysburg.  Ever the showman, Sickles donated the fractured bones of his lost leg, complete with a miniature coffin, to the new Army Medical Museum in Washington, D.C., where they remain on display even today.  Eventually promoted to major general, Sickles moved on to a diplomatic career with postings to Colombia and Spain (and a rumored affair with the deposed Spanish queen).    After Teresa died in 1867, he remarried and had two more children with his second wife.  

Daniel Sickles died in New York City in 1914 and is buried in Arlington National Cemetery. Though he is mainly remembered for his military and political career, the role he played in establishing temporary insanity and "the unwritten law" as legal defenses for murder can't be underestimated.   Both defenses would play a role in numerous murder cases as husbands would use the defense to escape punishment.  Never mind that many of these outraged husbands were often guilty of infidelity themselves, the "unwritten law" made murder perfectly legal so long as it was for the "right" reasons.  

But it only applied to men.   Any woman murdering under similar circumstances would be prosecuted to the full extent of the law.   This became abundantly clear in the case of Kate Southern, a Georgia housewife charged with murdering a rival for her husband's affections in early 1878. 

According to the lurid news coverage,  Kate had married her husband, Bob Southern, despite the active opposition of Narcissa Fowler (frequently described in the newspaper coverage as a "woman of notoriously lewd character"), who had been sexually intimate with Bob before, and after,  his marriage.  Though Kate knew about the affair and had been "unsettled and annoyed by the knowledge," she seemed determined to keep Bob and Narcissa as far apart as possible.    On the other hand, Narcissa actively tried undermining Kate's marriage, including starting scandalous rumors about her and saying that "they would have no peace or satisfaction as long as (Narcissa) lived."  

A few months after Kate and Bob were married, Narcissa confronted Kate at a party where, under the influence of the whiskey she had been drinking, she began insulting Kate using what one witness later described as "epithets too vulgar and obscene to be written or spoken."   After finally provoking Kate into a fistfight, Kate's sister, Amorelli Hambrick, got involved.   Though Narcissa likely had no idea that Kate was armed with a knife, she learned this quickly enough when Kate stabbed her repeatedly. 

The newspaper coverage fails to mention whether Narcissa died at the scene or later, but Kate promptly fled.   Joined by her husband and other family members, she became a fugitive until a posse eventually tracked them down.   After being returned to Pickens County where the stabbing occurred, Kate Southern was charged with murder.  Her sister was also charged as an accomplice, while her husband was charged with helping her escape.

Kate's legal defense at her trial was far less spirited than what Daniel Sickles managed to arrange.  Many observers accused Kate's lawyers of mismanaging her defense, but their legal options were fairly limited.  There was no question of seeking any kind of defense based on the "unwritten law."   Though husbands could claim that a wife's infidelity was an attack on their "personal honor," wives were expected to endure the extramarital affairs of their husbands in silence.   Women could claim self-defense if they were being raped but killing an unfaithful husband or the other woman typically led to a criminal conviction.  Presumably, the courts didn't feel comfortable giving wives the same "license to kill" that husbands enjoyed.

And so it was with Kate Southern.  It probably didn't help that her defense attorneys failed to launch much of a defense on her behalf.   Many newspaper reporters commenting on the trial openly criticized the lawyers for not calling any witnesses on Kate's behalf or their failure to cross-examine many prosecution witnesses.    All they could come up with was a half-hearted insanity defense that failed to convince the jury.  Her conviction hardly came as a surprise to anyone though the penalty handed down by the judge certainly was.   Kate Southern was sentenced to death by hanging.

Almost immediately after news of the sentence got out, her attorneys mounted an appeal to Georgia's Governor to commute the sentence.   This included numerous depositions from Kate's family members (including her husband), which attempted to show that she was provoked into killing Narcissa.   It also helped that Kate had recently given birth, and descriptions of Kate in prison with her baby while she awaited her execution generated enormous sympathy.  Petitions with thousands of signatures (primarily from women) were sent pleading for clemency.

The campaign worked.   Kate's sentence was changed to ten years in prison to be spent in a Georgia prison camp.  Her sister, Amorelli, was sent to the same camp to serve her sentence.   Thousands of supporters later watched the train taking Kate to prison.  As one newspaper description I found reported, "at all the towns through which the train passed, the people (ministers, gamblers, women, and all classes) crowded to the depots to see and express their sympathy for her, and at Atlanta, where a large purse was collected for her benefit, the excitement was so great that the car windows were broken."    Her husband found work near the prison and was even granted conjugal visits (Kate had two more children during her time in prison).    After serving only three years of her sentence, she was granted a full pardon and allowed to return home.

Kate Southern largely faded into obscurity after she was released, but her case continued to generate controversy.  In the years that followed, more conservative newspaper editors accused Kate's supporters of allowing her gender to save her from execution and argued against granting clemency for women committing murder. 

And there would be no more clemency.  When Emma Simpson shot her estranged husband in 1919, believing that "the new unwritten law, which does not permit a married man to love another woman, will be my defense,"  even Clarence Darrow couldn't save her from being found "insane but guilty."  

While the number of cases claiming the "unwritten law" became less frequent by the 1920s, husbands committing murder  to defend their "personal honor"  still used the defense well into the 20th century.  In many U.S. states, the law allowing husbands to kill "interlopers" was formally enshrined into legal statutes (thus making it the "written law").  When and where the law could be used became a central sticking point for many judges who insisted that husbands could only kill in the "heat of passion."  If the husband allowed time for his anger to cool and to become more reasonable, then any homicide committed afterward became "deliberate revenge," and he could be prosecuted.

In Texas, for example, one statute held that "Homicide is justifiable when committed by the husband upon one taken in the act of adultery with the wife, provided the killing take place before the parties to the act have separated. Such circumstance cannot justify a homicide where it appears that there has been, on the part of the husband, any connivance in or assent to the adulterous connection."    In other words, the couple had to be caught in flagrante delicto for the killing to be legal (it was eventually repealed in 1974).  Other states, including Georgia, New Mexico, and Utah, passed similar laws, almost all of which would be repealed by the end of the 1970s.

These days while husbands are no longer so free to kill to avenge "personal honor", the "temporary insanity" or "diminished capacity" defense is still around in one form or another.  Perhaps fittingly, these days, it is more likely to be used by women on trial for murdering their husbands due to domestic abuse (a.k.a. the "battered woman defense") than vice-versa.   Whatever the status of the "unwritten law" today, however, defense attorneys are still known to use it during murder trials simply because it might work.  There is often no telling what a sympathetic jury might decide to do in cases where they regard the husband (or wife) as being fully justified in murdering in the heat of passion.

And so, the legacy of Daniel Sickles and Kate Southern remains with us even today.

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