Epstein spoke shortly and quietly. I remember his argument word for word; yet I was not conscious of attending to it at the time.
He said, “We are not prepared to contest the matters of fact alleged by the prosecution, nor to deny that their bearing is against my client. That Mr. Neuman was in Miss Pathzuol’s company on the night of July 12th, and that the next morning a blood-stained handkerchief and a key to Mr. Tikulski’s door were taken from his pocket, we admit. We will even admit that these circumstances are of a sort to cast suspicion upon him: all that we claim is that they are not sufficient to confirm that suspicion and make it certainty. It is the liberty, perhaps the life, of a human being which you have at your disposal. No matter how dark the shadow over him may be, if you can entertain a reasonable doubt of his guilt, you must acquit. And, putting it to you in all simplicity and sincerity, I ask: Does not the evidence offered by the prosecution leave room for a reasonable doubt? Is it not possible that some other hand than Neuman’s dealt the blows by which Veronika Pathzuol met her death? If such a possibility exists, you must give Neuman the benefit of it; you must acquit. Consider his good character; consider that he was the betrothed of the lady whose murderer they would make him out to be; consider that absolutely no trace of motive has been brought home to him; consider that on the contrary he was the one man who above all others most desired that she might live; consider these matters, and then decide whether in reasonableness his guilt is not in doubt. Remember that it is not sufficient that there should be a presumption against him. Remember that there must be proof. Remember also what a grave duty yours is, and how grave the consequences, should you send an innocent man to the gallows.
“Only one word more. I had naturally intended to place my client upon the stand, and let him justify himself by his own word of mouth. But, unfortunately, I am not able to do so, because morally and physically he is prostrated and unfitted for sustaining the strain of an examination. But after all, if you will for a moment imagine yourselves in Mr. Neuman’s position, you can conceive that his defense must necessarily be of a passive, not of an active, kind. In his position what could you say? Why, only that you were ignorant of the whole transaction, and innocent despite appearances, and as much at loss for a solution of the mystery involving it as his honor himself. This is what Neuman would say were he able to go upon the stand. But one thing more he would say. He would impugn the veracity of the Marshalls. He would maintain that they lied in toto when they swore to his second entrance. He would tell you that when he left the house in Fifty-first street at midnight, he went directly home and to his bed, and that he returned no more until the next morning. And he would leave you to choose between his story and that of Mr. and Mrs. Marshall. My opponent will ask, ‘Why not prove an alibi, then?’ Because, when Mr. Neuman returned to his lodging-house late that night, every body, as might have been expected, was asleep. He encountered no one in the hall or on the stairs. He mounted straight to his own bed-chamber and went to bed.
“I trust the matter to your discretion. I am sure that you will weigh it carefully and conscientiously. You will realize that the life of a fellow man hangs upon your verdict, and you will deliberate well, if there be not, on the whole, a reasonable doubt in his favor. You will, I am confident, in no uncertain mind consign Ernest Neuman to the grave of a felon.” The district-attorney’s address was florid and rhetorical. It lasted about two hours. He resumed the evidence. He said that an ordinary process of elimination would suffice to fasten the guilt upon the prisoner at the bar. The gist of his argument was that as Neuman had been the only person in the victim’s company at the time of the commission of the crime, he was consequently the only person who by a physical possibility could be guilty. He warned the jury against allowing their sympathies to interfere with their judgment, and read at length from a law book respecting the value of circumstantial proof. He ridiculed Epstein’s impeachment of the Marshalls, and added that even without their testimony the doctor’s story and the police-captain’s story, coupled with my own “eloquent silence,” were conclusive. It was the obvious duty of the jury to convict.
The judge delivered his charge, dealing with the legal aspect of the case.
Epstein rose again. “I request your honor,” he said, “to charge that in the event of the jurymen finding that there is a reasonable doubt in Neuman’s favor, they must acquit.”
“I so charge,” assented the judge.
“I request your honor,” Epstein continued, “to charge that if the jurymen consider the fact of no motive having been shown, sufficient to establish a reasonable doubt of the defendant’s guilt, they must acquit.”
“I so charge you, gentlemen,” said the judge.
The jurymen filed out of the room. The judge left the bench. It was now about four in the afternoon. Half an hour passed. The court-room began to empty. Another half hour passed. Only the court attendants, Epstein, the district-attorney’s colleague, and the prisoner remained. One of the attendants held a whispered conference with Epstein: then said to me, “There is no prospect of a speedy agreement. Come.” I rose, followed him to the rear of the room, and was locked up in the prisoner’s pen.