Legal experts examine whether Chester Gillette would be convicted by today’s courtroom standards

By DAVID DELLECESE
Observer-Dispatch
May 23, 2006

A ghastly courtroom display designed to shock. The murder victim’s love letters bordering on the suicidal. A body that may have been damaged during its recovery. An autopsy performed after embalming. Chester Gillette went to the electric chair for killing Grace Brown after a trial 100 years ago that might not have held up in today’s legal climate, experts and observers say. There were no eye-witnesses, and Gillette never admitted guilt during his trial. It all came down to circumstantial evidence, some of it improperly obtained. Gerald Fiesinger, a Little Falls lawyer, says that while the Constitution has remained the same, the interpretation of the law that has changed. “From what I understand and can figure out, it was basically a fair trial,” he said. A fair trial by 1906 standards, perhaps.

“By today’s standards Gillette’s conviction would surely have been overturned. District Attorney George Ward broke all the modern rules about how to obtain evidence. Any of those things would have been grounds to toss out the conviction. But those kinds of things were common in 1906, and by those standards he certainly got a fair trial,” said Craig Brandon, author
of “Murder in the Adirondacks.”

Gillette was charged with striking Brown with a tennis racket in a quiet bay of the remote Big Moose Lake on July 11, 1906, and he was arrested two days later. Almost immediately, newspapers breathlessly reported on the case, coloring the trial that followed in November.

Evidence collection

In several instances Grace Brown was said to have told co-workers she hoped she “would not live to see the sun rise again,” or that she was leaving, “never to be heard from again.”

Even the letters she wrote to Chester Gillette seemed laced with overtones of suicidal tendencies. In one letter she wrote, “I hope I can die … and then you can do just as you like.”

These letters, however, were, highly inadmissible against Gillette, forcefully retrieved from Gillette’s living quarters in Cortland without his consent.

“Today we couldn’t do that under the concept of the exclusionary rule. Because there was no search warrant we would not have been able to use those documents,” said Oneida County District Attorney Michael Arcuri.

Each letter was presented as a piece of evidence in the trial. They were read aloud by the district attorney and admitted as proof of the relationship to establish time, facts and proof in the case.

Playing for emotions

Melodrama was a common thread in the case. Brown’s uterus and fetus, for example, were removed from her body and exhibited for the jury. Objections to this display were constantly overruled, no doubt shocking the
jury and spectators.

“It’s like autopsy photos. We are not allowed to use excessive autopsy photos,” Arcuri said.

According to Arcuri, attorneys now are asked to pick one photo, within reason, showing a wound.

“Certainly I would say the fetus coming in like that is clearly, very shocking,” Arcuri said.

Sara Beaty, an Albany-based civil lawyer, agreed. “Under the Federal Rules, there is no way that could get in today. It’s probative value clearly does not outweigh its prejudicial value,” she said.

Witness or not?

Gillette insisted that Brown, distraught over their situation, jumped into the lake saying, “I will end it here.” The boat overturned, sending both into the lake. Gillette claimed he was not quick enough to save her.

A supposed witness to the crime, Marjorie Carey, claimed she was on a boat crossing the lake, when she heard what she considered to be a scream. The witness went back and forth on the stand as to whether she heard the scream of a young boy or a woman. She then settled on a woman, and went further to say that it was a cry of grief.

“A shout or cry of a person would probably not be expert testimony because you as a human being, that’s within the realm of our expertise as people, so… a court would probably allow you to give an opinion on that specific issue,” Oneida County District Attorney Michael Arcuri said.

Missing testimony

According to some accounts, the body of Grace Brown was mishandled well before the trial began.

The first assumption was that Brown’s death was accidental, so the body was shipped off to the coroner, where it was already embalmed by the time an autopsy was requested.

It was later said by Roy Higby that the body had been mishandled the minute it was found in the lake. Only 13 years old at the time of the murder, Higby was on the boat that recovered the body. He said he watched as the engineer poked at the body with a large stick, causing cuts and bruises to the young woman’s body, injuries that were later attributed to Gillette.

Higby was kept off the stand courtesy of a deal he said was struck between his father and the district attorney. Higby later recalled what he saw on the boat in interviews with the Utica newspapers, where he also claimed he overheard the district attorney tell his father: “If the defense had gotten that boy on the stand, we never would’ve convicted Gillette.”

This is what would today be referred to as “Brady Material,” Arcuri said, referring to any evidence that the defense could use in some way to show their client didn’t commit the crime.

“If we don’t turn that over, it’s an automatic new trial,” Arcuri said.

However, Jeffrey Steele, associate professor of history at Herkimer County Community College, said Higby’s recollections in his later years may not be as reliable at 87 as they were when Higby was 13.

“The thing about Roy Higby was that, by the time he was 87, some of his recounts of the case and scenarios incorporated things that were only in Theodore Dreiser’s version,” Steele said, referring to the 1925 novel “An American Tragedy.”

Then and now

Long before the birth of DNA evidence, hair from the scene was used in the prosecution’s evidence against Gillette. The jury was asked to compare hairs collected from the rowboat, and hairs said to have been cut from the body of Grace Brown, and find them alike based merely on sight.

“I don’t think there was anything improper because all you’re asking them to do is rely upon their basic faculties,” Arcuri said.

However, Arcuri says that if he were the defense, he would have pointed out how many people in the courtroom alone had a particular color hair, and to take into account how many people may have rented the row boat in a given week or year that could have had similar hair.

“If I were the defense, I would have just been very dismissive about that. ‘OK, so he’s narrowed it down to one in 10,000 people,’” Arcuri said.

Today, things would be much different. According to Sara Beaty, an Albany-based civil lawyer, “Today those hairs would have gone through DNA analysis.”

“Evidence today is more difficult to get in. You must show relevancy, which the law defines as any tendency the evidence could help prove a point in the case. Even if the defense counsel’s objections are overruled, it creates a record which could form the basis for an appeal later,” Beaty said.

In the end …

 Gillette’s lawyers did file appeals, but the effort made little difference. “The appeals court did listen to it and did say that there were some irregularities, but they decided that those irregularities did not affect the outcome of the trial,” Steele of HCCC said.

The governor also was approached, but chose to let the execution proceed, not wishing to stir things up. “It was an election year,” Steele added.

In 1908 Gillette was supposed to graduate from the Oberlin Academy.

Instead he wore a metal cap that sent more than a thousand volts of electricity through his body for 61 seconds in the electric chair.