Footprints in the Snow
(Sunday, September 9)
On the day following his decision, Markham and Vance and I were
sitting in a secluded corner of the lounge-room of the Stuyvesant
Club. We often came together there, for we were all members of the
club, and Markham frequently used it as a kind of unofficial up-town
headquarters.*
* The Stuyvesant was a large club, somewhat in the nature of
a glorified hotel; and its extensive membership was drawn
largely from the political, legal, and financial ranks.
“It’s bad enough to have half the people in this city under the
impression that the District Attorney’s office is a kind of high-class
collection agency,” he remarked that night, “without being
necessitated to turn detective because I’m not given sufficient
evidence, or the right kind of evidence, with which to secure
convictions.”
Vance looked up with a slow smile, and regarded him quizzically.
“The difficulty would seem to be,” he returned, with an indolent
drawl, “that the police, being unversed in the exquisite abracadabra
of legal procedure, labor under the notion that evidence which would
convince a man of ordin’ry intelligence, would also convince a court
of law. A silly notion, don’t y’ know. Lawyers don’t really want
evidence: they want erudite technicalities. And the average
policeman’s brain is too forthright to cope with the pedantic demands
of jurisprudence.”
“It’s not as bad as that,” Markham retorted, with an attempt at good
nature, although the strain of the past few weeks had tended to upset
his habitual equanimity. “If there weren’t rules of evidence, grave
injustice would too often be done innocent persons. And even a
criminal is entitled to protection in our courts.”
Vance yawned mildly.
“Markham, you should have been a pedagogue. It’s positively amazin’
how you’ve mastered all the standard oratorical replies to criticism.
And yet, I’m unconvinced. You remember the Wisconsin case of the
kidnapped man whom the courts declared presumably dead. Even when he
reappeared, hale and hearty, among his former neighbors, his status of
being presumably dead was not legally altered. The visible and
demonstrable fact that he was actually alive was regarded by the court
as an immaterial and impertinent side-issue.* . . . Then there’s the
touchin’ situation—so prevalent in this fair country—of a man being
insane in one State and sane in another. . . . Really, y’ know, you
can’t expect a mere lay intelligence, unskilled in the benign
processes of legal logic, to perceive such subtle nuances. Your
layman, swaddled in the darkness of ordin’ry common sense, would say
that a person who is a lunatic on one bank of a river would still be a
lunatic if he was on the opposite bank. And he’d also
hold—erroneously, no doubt—that if a man was living, he would
presumably be alive.”
* The case to which Vance referred, I ascertained later, was
Shatterham _v._ Shatterham, 417 Mich., 79—a testamentary
case.
“Why this academic dissertation?” asked Markham, this time a bit
irritably.
“It seems to touch rather vitally on the source of your present
predicament,” Vance explained equably. “The police, not being lawyers,
have apparently got you into hot water, what? . . . Why not start an
agitation to send all detectives to law school?”
“You’re a great help,” retorted Markham.
Vance raised his eyebrows slightly.
“Why disparage my suggestion? Surely you must perceive that it has
merit. A man without legal training, when he knows a thing to be true,
ignores all incompetent testimony to the contr’ry, and clings to the
facts. A court of law listens solemnly to a mass of worthless
testimony, and renders a decision not on the facts but according to a
complicated set of rules. The result, d’ ye see, is that a court often
acquits a prisoner, realizing full well that he is guilty. Many a
judge has said, in effect, to a culprit: ‘I know, and the jury knows,
that you committed the crime, but in view of the legally admissible
evidence, I declare you innocent. Go and sin again.’”
Markham grunted. “I’d hardly endear myself to the people of this
county if I answered the current strictures against me by recommending
law courses for the Police Department.”
“Permit me, then, to suggest the alternative of Shakespeare’s butcher:
‘Let’s kill all the lawyers.’”
“Unfortunately, it’s a situation, not a utopian theory, that has to be
met.”
“And just how,” asked Vance lazily, “do you propose to reconcile the
sensible conclusions of the police with what you touchingly call
correctness of legal procedure?”
“To begin with,” Markham informed him, “I’ve decided henceforth to do
my own investigating of all important night-club criminal cases. I
called a conference of the heads of my departments yesterday, and from
now on there’s going to be some real activity radiating direct from my
office. I intend to produce the kind of evidence I need for
convictions.”
Vance slowly took a cigarette from his case and tapped it on the arm
of his chair.
“Ah! So you are going to substitute the conviction of the innocent for
the acquittal of the guilty?”
Markham was nettled; turning in his chair he frowned at Vance.
“I won’t pretend not to understand your remark,” he said acidulously.
“You’re back again on your favorite theme of the inadequacy of
circumstantial evidence as compared with your psychological theories
and æsthetic hypotheses.”
“Quite so,” agreed Vance carelessly. “Y’ know, Markham, your sweet and
charmin’ faith in circumstantial evidence is positively disarming.
Before it, the ordin’ry powers of ratiocination are benumbed. I
tremble for the innocent victims you are about to gather into your
legal net. You’ll eventually make the mere attendance at any cabaret a
frightful hazard.”
Markham smoked a while in silence. Despite the seeming bitterness at
times in the discussions of these two men, there was at bottom no
animosity in their attitude toward each other. Their friendship was of
long standing, and, despite the dissimilarity of their temperaments
and the marked difference in their points of view, a profound mutual
respect formed the basis of their intimate relationship.
At length Markham spoke.
“Why this sweeping deprecation of circumstantial evidence? I admit
that at times it may be misleading; but it often forms powerful
presumptive proof of guilt. Indeed, Vance, one of our greatest legal
authorities has demonstrated that it is the most powerful actual
evidence in existence. Direct evidence, in the very nature of crime,
is almost always unavailable. If the courts had to depend on it, the
great majority of criminals would still be at large.”
“I was under the impression that this precious majority had always
enjoyed its untrammelled freedom.”
Markham ignored the interruption.
“Take this example: A dozen adults see an animal running across the
snow, and testify that it was a chicken; whereas a child sees the same
animal, and declares it was a duck. They thereupon examine the
animal’s footprints and find them to be the web-footed tracks made by
a duck. Is it not conclusive, then, that the animal was a duck and not
a chicken, despite the preponderance of direct evidence?”
“I’ll grant you your duck,” acceded Vance indifferently.
“And having gratefully accepted the gift,” pursued Markham, “I
propound a corollary: A dozen adults see a human figure crossing the
snow, and take oath it was a woman; whereas a child asserts that the
figure was a man. Now, will you not also grant that the circumstantial
evidence of a man’s footprints in the snow would supply
incontrovertible proof that it was, in fact, a man, and not a woman?”
“Not at all, my dear Justinian,” replied Vance, stretching his legs
languidly in front of him; “unless, of course, you could show that a
human being possesses no higher order of brains than a duck.”
“What have brains to do with it?” Markham asked impatiently. “Brains
don’t affect one’s footprints.”
“Not those of a duck, certainly. But brains might very well—and, no
doubt, often do—affect the footprints of a human being.”
“Am I having a lesson in anthropology, Darwinian adaptability, or
merely metaphysical speculation?”
“In none of those abstruse subjects,” Vance assured him. “I’m merely
stating a simple fact culled from observation.”
“Well, according to your highly and peculiarly developed processes of
reasoning, would the circumstantial evidence of those masculine
footprints indicate a man or a woman?”
“Not necessarily either,” Vance answered; “or, rather, a possibility
of each. Such evidence, when applied to a human being—to a creature,
that is, with a reasoning mind—would merely mean to me that the figure
crossing the snow was either a man in his own shoes, or a woman in
man’s shoes; or perhaps, even, a long-legged child. In short, it would
convey to my purely unlegal intelligence only that the tracks were
made by some descendant of the _Pithecanthropus erectus_ wearing men’s
shoes on his nether limbs—sex and age unknown. A duck’s spoors, on the
other hand, I might be tempted to take at their face value.”
“I’m delighted to observe,” said Markham, “that, at least, you
repudiate the possibility of a duck dressing itself up in the
gardener’s boots.”
Vance was silent for a moment; then he said:
“The trouble with you modern Solons, d’ ye see, is that you attempt to
reduce human nature to a formula; whereas the truth is that man, like
life, is infinitely complex. He’s shrewd and tricky—skilled for
centuries in all the most diabolical chicaneries. He is a creature of
low cunning, who, even in the normal course of his vain and idiotic
struggle for existence, instinctively and deliberately tells
ninety-nine lies to one truth. A duck, not having had the
heaven-kissing advantages of human civilization, is a straightforward
and eminently honest bird.”
“How,” asked Markham, “since you jettison all the ordinary means of
arriving at a conclusion, would you decide the sex or species of this
person who left the masculine footprints in the snow?”
Vance blew a spiral of smoke toward the ceiling.
“First, I’d repudiate all the evidence of the twelve astigmatic adults
and the one bright-eyed child. Next, I’d ignore the footprints in the
snow. Then, with a mind unprejudiced by dubious testimony and
uncluttered with material clues, I’d determine the exact nature of the
crime which this fleeing person had committed. After having analyzed
its various factors, I could infallibly tell you not only whether the
culprit was a man or a woman, but I could describe his habits,
character, and personality. And I could do all this whether the
fleeing figure left male or female or kangaroo tracks, or used stilts,
or rode off on a velocipede, or levitated without leaving tracks at
all.”
Markham smiled broadly. “You’d be worse than the police in the matter
of supplying me legal evidence, I fear.”
“I, at least, wouldn’t procure evidence against some unsuspecting
person whose boots had been appropriated by the real culprit,”
retorted Vance. “And, y’ know, Markham, as long as you pin your faith
to footprints you’ll inevitably arrest just those persons whom the
actual criminals want you to—namely, persons who have had nothing to
do with the criminal conditions you’re about to investigate.”
He became suddenly serious.
“See here, old man; there are some shrewd intelligences at present
allied with what the theologians call the powers of darkness. The
surface appearances of many of these crimes that are worrying you are
palpably deceptive. Personally, I don’t put much stock in the theory
that a malevolent gang of cut-throats have organized an American
camorra, and made the silly night clubs their headquarters. The idea
is too melodramatic. It smacks too much of the gaudy journalistic
imagination: it’s too Eugène Sue-ish. Crime isn’t a mass instinct
except during war-time, and then it’s merely an obscene sport. Crime,
d’ ye see, is a personal and individual business. One doesn’t make up
a _partie carrée_ for a murder as one does for a bridge game. . . .
Markham, old dear, don’t let this romantic criminological idea lead
you astray. And don’t scrutinize the figurative footprints in the snow
too closely. They’ll confuse you most horribly—you’re far too trustin’
and literal for this wicked world. I warn you that no clever criminal
is going to leave his own footprints for your tape-measure and
calipers.”
He sighed deeply, and gave Markham a look of bantering commiseration.
“And have you paused to consider that your first case may even be
devoid of footprints? . . . Alas! What, then, will you do?”
“I could overcome that difficulty by taking you along with me,”
suggested Markham, with a touch of irony. “How would you like to
accompany me on the next important case that breaks?”
“I am ravished by the idea,” said Vance.
Two days later the front pages of our metropolitan press carried
glaring headlines telling of the murder of Margaret Odell.