Thursday, December 1, 2011

Pebbles and Mud


“Returning from her stroll, Anne Lindbergh paused at the southeast corner of the house and looked up at the second-story nursery windows, then picked up a few pebbles from the moist, clayey ground and tossed them against the corner windowpane.  Presently Betty Gow, the nurse, appeared.  Smiling, she turned away and came back with the little boy in her arms.  She pointed down to his mother and he smiled in recognition.  Anne Lindbergh waved.  Betty raised the baby’s hand and waved it back.”
                                  George Waller, Kidnap, p. 3.

            George Waller’s  1961 book, Kidnap: The Story of the Lindbergh Case,  was considered for a long time the very best book on the case, despite its failure to cite sources in the text, and a very limited bibliography.  The back page carries the imprimatur of George Mason Brown, a very serious journalist and public intellectual.  And the author information tells us that Waller was a newspaper editor and the author of more than a thousand radio plays.  Waller’s dramatic opening of his study frames the entire case – precisely as the prosecutor, Attorney General David Wilentz did at the trial, in order to set the stage for the "Crime of the Century."  With Anne Morrow Lindbergh on the stand very early in the trial, Wilentz began a series of questions about her afternoon walk the day of the kidnapping.  Was there one occasion, he asked, when Charlie was up in the nursery and “you were downstairs and you played  from the downstairs to the window?”  Anne answered promptly that after she returned from her walk down the path and back to the house they called Highfields, she had continued  from the driveway to a place beneath the nursery window and tried to look for him.

“I attracted the attention of Miss Betty Gow [the live-in nursemaid] by throwing a pebble up to the window, and she then held the baby up to window to let him see me.”  But after that things became a little vague.  Anne could not recall exactly which of the windows she threw the pebble against, as she moved back and forth.  Finally she said, “I don’t remember.”  But Betty did hold the child up for her to see.  (In the testimony, of course, Charlie is constantly referred to as a baby.) 

Wilentz then asked if she stayed on the walk or moved off of it at any time.  “I walked from the driveway along by the side of the house where it was quite muddy and then on to the flagstones, flagstoned porch at the back.”  Wilentz stressed in the next several questions that she walked in the mud at times.  “Was the condition of the ground such that when you walked there there you left footprints of your walk?” 

“It was.”  It was, the attorney general repeated, so the condition was such that you left footprints? “I did.”

Wilentz then asked about the temporary walk way, and ascertained that it was only two planks or so wide.  His meaning was clear, even if not from Anne’s words, but from the evidence of the walkway – it was impossible for her not to have left footprints.
To finish up this sequence, the Attorney General asked about the time of day.  Anne replied that it was around three-thirty.  She could not be exact.  (Trial Transcript, pp. 60-3)

This moving vignette accomplished two things for the prosecution:  First, it put in the minds of the jurors at the outset the heinous nature of a crime that would so tragically interrupt one life and destroy another.  In a prosecution effort where the actual presence of the accused on the night of the kidnapping depended on dubious eyewitness accounts, it was important to establish in early testimony an emotional bond between the jury and the victim's family, especially the mother.  It would not have mattered who was on trial for that to be an imperative task for the prosecution. Second, and more to the point of the prosecution’s immediate effort to eliminate possible collaborators in the crime, it established that any unexplained footprints discovered outside the house were those left by Anne herself during this walk.  This is yet another conflicted issue at the trial as I shall try to demonstrate below. 

Authors following Waller have included the vignette in their accounts, including myself.  In The Case That Never Dies, I write that it would have been difficult indeed for Anne not to have left footprints given the placement of the boards along the outside the house if she threw pebbles at the window.  (p. 16)  And Betty Gow confirmed the story during the trial.  In Betty’s testimony, she recounts that “my attention was drawn to Mrs. Lindbergh out of doors.  She was throwing pebbles up to the window, and as I recall ….”  Betty is interrupted at this point by Prosecutor Wilentz who is concerned about noises outside the courtroom.  After someone is sent to attend to the problem, Wilentz asks for the question to be repeated.  It is, but there is no further account of the pebble incident, or of Betty holding the child up to the window.  And there is absolutely no confirmation in either woman’s testimony of the scene as Waller described it, with mother and child exchanging smiles.  Since the defense would not dare risk a cross examination of Anne Lindbergh, the scene remained untouched by any doubts questions to Betty Gow might have raised. (Trial Testimony, pp. 257-9)

Waller’s experience at writing radio plays obviously got the best of him here.  In some ways it is a minor question to be sure, but in a scene which helps to set the stage for a “non-fiction” account of  events surrounding the crime, it is nonetheless disturbing, whoever had been on trial. What is most interesting about the story, however, is that none of it seems to have been told before the trial by anyone.  It is not in Betty’s pretrial deposition, at least not in the one available today.  And there is no Anne Morrow Lindbergh pretrial deposition in the New Jersey State Police museum.  There may well have been such depositions, as attorneys hate to ask questions for which they do not know the answers.  But they are not known to exist today.[1]

When Anne was first questioned on March 11, 1932, she said that she was in the “baby’s room” when he awoke from his nap, between two-thirty and three.   After a short while she “left them for most of the afternoon.”  She went for a walk, “a long walk down the road, then I came back, went up to the baby’s room [and] had the baby down to the living room.”  (Statements File, in the New Jersey State Police Museum)  This statement would put the walk somewhat later than her trial testimony, and there is no mention of the pebble-throwing vignette.  Two days later she made another statement.  She repeats that she left Betty with Charlie between 2:30 and 3:00.  Only this time she says that she did not return from her walk down the driveway until “about 5:00.”  “When I came back, about 5:00, I went up into the baby’s room where I found Betty, Elsie [Whateley] and the baby.”  So it was much later, according to this statement, when she returned from the walk, and went to the nursery where she “found” Betty and Elsie with Charlie.  On a cloudy day on March 1st, it would have been nearing dusk.  Moreover, “found” is a curious word to use if she had earlier stood outside the nursery and signaled with pebbles.  In neither statement is the vignette recalled, although they are given only a few days after the kidnapping.  One would think something that moving would have come up at least once in her statements.  Nor does it appear in her diary entries as published later.  It is not in any of Betty Gow’s statements to police, either.

Obviously, the police were in no position (and in no mood) to probe Anne’s statements for additional details at this moment in her ordeal.  Elsie Whateley confirmed that she had gone up to the nursery around four o’clock at the trial, and that later Anne “came up” and “we all played with the baby.”  (Trial Transcript, p. 232) This tallies with Anne’s March 13th statement, but there is no mention of the pebble incident. 

Does all of this mean that Wilentz and his aides “implanted” the story in Anne’s consciousness and along with her “discovered memory” persuaded Betty Gow to go along?  We have at least one instance where Assistant Prosecutor Peacock tried to make Betty say at the trial that Anne was in a prayerful position after the discovery the child was missing.  Betty demurred for quite some time during the deposition. He barely succeeded, but Betty did say at the trial that all the women struck such poses, carefully placing her in the same meditative mood as Anne.  Betty was a quick study, indeed.  Peacock had also managed to get Amandas Hochmuth -- a key eyewitness presented by the prosecution -- to say that the time he saw the man with the glaring red face go off in the ditch was much later than his original statement – a crucial point at the trial, which made it easier to put Bruno Richard Hauptman near Hopewell on that day, as he had reported for work that morning, and, being told he was not to be hired that day, would have arrived later than Hochmuth's original claim.  I recount these instances in my book. 

Whether Peacock or Wilentz would try such a thing with Anne cannot be known.  During her testimony, moreover, Anne proved much more resistant to his efforts to lead her than did her husband.  One can remain a complete agnostic, however, and still point to Wilentz’s use of the vignette to try to eliminate a very weak spot in the prosecution case.  The question that he continues to repeat during her testimony concerns footprints, not the pebbles.  And there she readily agrees that it would have been impossible for her not to have left footprints.  Thus any effort to introduce footprints of a woman outside the nursery was negated.

If the case had not “ended” with Hauptmann’s conviction, later authors would have seized upon the footprints question as a prime example of police – at all levels – bungling. Investigators the night of the kidnapping almost unanimously recall seeing “footprints” both near the window and trailing off toward where the ladder was found and going beyond that to Featherbed Road or Lane.  I will not recount all those statements here, but wish instead to focus on one, that of Nuncio de Gaetano. [2]

DeGaetano  testified at the trial about the single footprint he discovered.  But in his statement of March 3, 1932, he had quite a bit more to say about the question.  Study this carefully and see what you think:  “Then proceeded to the yard and made observations of the ground underneath the nursery window from which the child was supposed to have been taken.  The undersigned noticed a foot print pointing towards the house near the temporary boardwalk which was laid there,” and I will call this footprint #1.  DeGaetano continues his sentence, “and approximately 18 inches to the right of this print was an impression presumed to have been made by a heavy woolen stocking as the impression of the ridges were distinctly shown.”  I will call this footprint #2.  “Also noticed were two impressions near the temporary boardwalk and the footprint which was later proved to have been made by the ladder.” Is this footprint #3, or a way of referring to the ladder marks? It is far from clear if there was another one somehow inside the ladder marks or not.  “Upon further investigation found the foot print of a woman’s shoe, which was explained by Chief Wolfe of the Hopewell Police to have been made by Mrs. Lindbergh.”  This is footprint #3 or 4 depending on one’s reading of the ladder marks.  But notice what is happening here.  DeGaetano accepts Wolfe’s description of the footprint – and that’s it, period, end of inquiry. 

Wolfe’s identification would tally with Anne’s discussion of her walk.  But at this moment we have no documentary evidence that Wolfe questioned Anne about her behavior that afternoon.  Maybe he did, maybe he did not.  But it is not in his statements either, or those of his companion, Williamson from the Hopewell police.  And yet it deflects all attention from that footprint.  There is absolutely no indication that Anne’s show was matched up to the footprint.  Within hours all interest in this footprint disappears along with the print itself.  DeGaetano then goes on to talk about the footprints of “rubber boots or overshoes” that lead away from the ladder to “an abandoned road . . . and chicken coop.”  There is no indication here if the investigators believed the footprints #1 and #4 were made by people in regular shoes who changed shoes – de Gaetano seems unsure himself talking about stockinged feet, rubber boots, overshoes, all of which might leave ridged marks – or if there were at least three people involved outside. (Memorandum by de Gaetano, March 3, 1932, Harold Hoffman Papers, Box 29, at the New Jersey State Police Museum)

Gov. Harold Hoffman received two letters later that cast some light on how deGaetano’s original finding offered some difficulty for the prosecution.  The prosecution did not wish to have a single little matter like footprints mess up the “perfect case.”  Wilentz thus pressed Anne to tell about the pebbles incident to make sure that the jury understood who made any and all woman’s prints outside the house.  If he did not succeed in implanting the testimony in Anne’s accounts, he certainly pressed  the jury to get the point.  A disgruntled ex-trooper wrote Hoffman about an incident the day after the jury was picked and before the trial was to begin.  Archie Stinsom claimed that he was present in a judge’s office in Flemington that day when various officers, high ranking officers along with prosecutors, argued about the footprint evidence, and whether there was one or more footprints found. From Anne’s testimony it can be seen how Wilentz sought to finesse the whole issue.  Faulty police work or not, the evidence from the earliest statements was that there were footprints, and footprint trails.  A decent defense attorney should have been able to find out the truth; that Reilly was not, and he was in charge of the case.

Another letter writer, Tommy Bonsall, wrote to a friend Jim Burke, whose letter was passed on to Hoffman after the trial, that he had been told by two NJP officers, Lang and Herbert, that there were two “sets” of footprints leading from the house to Featherbed Lane. (Letters in Hoffman Papers, Box 33) We know perfectly well why the prosecution wished to use Anne to wipe away all memory traces of those prints, and how efficiently Wilentz cleaned up the territory.  But we have to ask: Whose prints did the police find that night?  It was a remarkable accomplishment by the prosecution team, using a single episode to establish a powerful emotional bond and at the same time to eliminate potentially troublesome footprint issues.

[1]  I do not make this as a categorical statement, because in this case perhaps more than any other, new evidence or, better put, evidence of new evidence turns up with astonishing regularity.  Many thanks to Mark Falzini for triggering this inquiry.  It was he who discovered that the account of Anne’s throwing the pebbles does not appear in any of her interrogations.  As always I am deeply indebted to Mark and all the others in SSI for my efforts to understand this baffling case.
[2]   Given the treatment of the footprints issue at the trial, the number of these statements from different police officials stands as an accusatory indictment of police behavior that night, but this can be argued forever and in more than a few pages, certainly.