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Washington Lawyer

Legal Spectator: Circumstantial Evidence

From Washington Lawyer, March 2013

By Jacob A. Stein

spectator

The “Legal Spectator” column commenced on the Washington Lawyer back page in 1991 and continues on. One of the columns was a story about Circumstantial Evidence. It appeared in November 2010, and it triggered a number of responses. Occasionally, I get a request that it appear again. Here it is, slightly changed.

Martin Armstrong had obtained two continuances from court to file his opposition to the defendant’s motion for summary judgment.

He had a problem with the case. He could not bring himself to read the file. He knew he must go someplace where there were no distractions. He decided to take the file and nothing else and register at that second–rate hotel in Boston where he stayed in his student days.

When he arrived at the old hotel, the clerk told him to leave his briefcase in the lobby and to come back in an hour or two and his room would be ready. He decided to stop in at the used bookstore close by. He was determined, however, not to buy any books that would distract him.

He went to the table where, for a dollar, one could pick up a stray volume from one of the multivolume sets. He saw one of Arthur Schopenhauer’s books, titled Counsels and Maxims. Despite his resolution to buy no books, he could not pass up this dollar bargain. He knew of Schopenhauer in his Harvard philosophy class. He liked the old boy’s pessimism.

No matter his resolution not to buy a book, he bought the book. A page or two of Schopenhauer would not be much of a distraction from the summary judgment, and he took a few turns around Bromfield Street, enjoying the pleasant fall weather. Then he returned to the hotel. His room was just what he wanted—a bed, a desk, a chair, a small closet. No radio. No TV. No distractions.

Once and for all he was going to read the pleadings and the papers, no skipping. He soon realized that there was not much to the defendant’s motion. Why had he been so frightened by it?

After two hours of work he stood up, stretched himself, and looked around the small drab room. The cleaning people did a poor job. The last occupant was a smoker and a drinker. The ashtray was filled with cigarette butts. Beneath the bed was an empty half-pint whiskey bottle. He put both in the trash basket. He had been clean of smoking and drinking for three years. If he were to spend a week in this room, he might fall off the wagon.

Armstrong felt exhilarated after writing the first draft of the pleading. He decided to take a walk, eat a sandwich, and return to the room. He said to himself that he had now earned the right to read a few of Schopenhauer’s maxims, including the advice that “[t]o speak angrily to a person, to show your hatred by what you say or by the way you look, is an unnecessary proceeding—dangerous, foolish, ridiculous, and vulgar.” Well, he said to himself, that is pretty good.

There was a one-page paper note in the back of the book. It happened to be a suicide note, filled with despair and futility. It contained this Schopenhauer quotation:

Life may be represented as a constant deceiver in things both great and small. If it makes promises, it never keeps them, … Life gives only to take away. The charm of distance shows us a paradise, which vanishes like an optical delusion if we allow ourselves to approach it.

Well, Armstrong said, somebody in that state of mind should not have been reading Schopenhauer.

The outside Boston fall weather was pleasant. He tried to open the window facing the street. It would not open. There were chipped coats of old white paint around the window. He thought of those lead poisoning cases he had lost.

Armstrong placed himself where he could put all his strength behind the effort to raise the window. It did not open. But something else happened. He felt a sharp chest pain. Why did he get all worked up about opening that window? His cardiologist had warned him against doing anything that required real physical effort.

He breathed deeply, but the pain did not go away. He looked through the leather pouch where he kept his shaving supplies to see if he had the prescription bottle of nitroglycerin pills. The bottle was there, but no pills. He did find a scatter of over–the–counter sleeping pills that he had. In the past, when he had sharp pains, he took a nitroglycerin pill together with a sleeping pill. If he got a good night’s sleep, the pain went away. He took two of the “blueys,” the blue pills that guaranteed to give a good night’s sleep.

The following morning, the cleaning woman knocked on his door. No answer. She reported this to the desk clerk who, with the help of others, pried open the lock. Armstrong was in bed. Dead. The police were called. The policeman found the suicide note. He then called the doctor whose name appeared on the empty nitroglycerin bottle.

The policeman identified himself and asked if the doctor had Martin Armstrong as a patient. The doctor confirmed that he did.

“Did you prescribe nitro pills for him?” the policeman asked. The doctor said he did.

The policeman said, “What if he took a lot of pills and smoked a lot and drank a bottle of whiskey—would that have any effect?” The doctor said it would kill him.

“Well, it looks like Martin Armstrong has died, and left a well-written suicide note.”

The doctor said, “Something must have gone wrong for Martin to end up like this. Something must have really gone wrong for him to be in that hotel you described. Why wasn’t he staying at the Ritz, his favorite hotel in Boston? Something must have really gone wrong.”

Reach Jacob A. Stein at jstein@steinmitchell.com.