The 1859 Murder Trial of Daniel E. Sickles

The D.C. Circuit’s First Successful Insanity Defense? Or Jury Nullification?

James E. Rocap, III
President, Historical Society of the D.C. Circuit

June 28, 2024

On June 27, 2024, the Society presented a program on perhaps the most famous not-guilty-by-reason-of-insanity verdict in modern history – The Road to the Release of John Hinckley: Attempted Presidential Assassination, Insanity, Commitment and the Courts. The history of the use of the insanity defense in the D.C. Circuit courts, however, began 165 years ago. It involved a defendant with a colorful past, a 7-attorney defense team, multi-day opening statements and evidentiary arguments in the flowery rhetorical style of the day, extensive eyewitness testimony, lengthy arguments over instructions on the insanity defense, all spread over a 20-day trial and culminating in an ambiguous verdict after just 70 minutes of deliberation.1

On Sunday, February 27, 1859, U.S. Congressman (N.Y.) Daniel E. Sickles

shot to death former U.S. Attorney Philip Barton Key (the son of Francis Scott

Key) in Lafayette Square, mere steps from the White House. Sickles was

consumed by the discovery and confession by his wife that she had been having an

1 The quotations and summary of the proceedings in this article are derived from and based upon “Trial of the Hon. Daniel E. Sickles for shooting Philip Barton Key, Esq.” by Felix G. Fontaine, R.M. De Witt, Publisher, 1859, available at https://archive.org/details/sickles_202003.

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affair with Key, then a widower. The indictment, returned on March 24, 1859, read: “that Daniel E. Sickles . . . , gentleman, not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil, on the twenty- seventh day of February, in the year of our Lord eighteen hundred and fifty-nine, . . . , in and upon the body of one Philip Barton Key, in the peace of God and of the said United States, then and there being, feloniously and willfully, and of his malicious aforethought, did make an assault [with] a certain pistol of the value of two dollars [and] did discharge and shoot off, to and against and upon the said Philip Barton Key . . . in and upon the left side of him . . . a little below the tenth rib of him . . . of which said mortal wound, he, the said Philip Barton Key, then and there instantly died.”

Sickles’ criminal trial commenced on April 4, 1859 before Criminal Court Judge Thomas Crawford, a short six weeks after the shooting and only two weeks after the return of the indictment. In a contemporaneous “Special Report” on the trial written by Felix G. Fontaine and published by De Witt’s publishing house in 1859 in New York, Mr. Fontaine (“the reporter”) described the opening scene: “The room was crowded to excess, nearly all the legal fraternity of Washington occupying the bar, the space without being filled by the citizens generally.” U.S. Attorney Robert Ould headed the two-person prosecution team, while Sickles’ trial

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team consisted of no less than seven attorneys, including Edwin Stanton, later to be named President Lincoln’s Secretary of War.

Jury selection took three days, with countless prospective jurors declaring their minds made up and they could not sit on the jury. All prospective jurors were white, male, and property owners. In fact, one of the more contentious debates during voir dire was whether prospective jurors who did not have at least $800 in property – a value over $30,000 in 2024 – were disqualified under a Maryland rule requiring such ownership. Judge Crawford ruled that Congress had incorporated Maryland law into District of Columbia law in 1801, and therefore the property qualification, wise or not, must be enforced.

The voir dire went through 80 prospective jurors on day one, 75 on day two, and another 75 on day three. Perhaps the voir dire foreshadowed the ultimate verdict of not guilty. From the very first prospective juror, it was clear that many in the community had made up their minds in favor of Sickles. It is important to note that the possibility of an insanity defense had not yet been raised; the prospective jurors’ opinions were based solely on their understanding the simple facts of the alleged crime, that Sickles shot Key after discovering the adulterous affair.

Mr. Phillips [one of the defense counsel] (to the Juror) – Did you form the opinion you have expressed, upon the current rumors of the day, or upon a direct knowledge from your own observation or intercourse with witnesses to the transaction?

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The Juror – I formed my opinion merely upon rumor.

Mr. Philips – If the facts on the trial should turn out to be different from those you have heard, would you be able to render an impartial verdict?

The Juror – No, sir; my mind is biased in favor of the prisoner.
Several prospective jurors later, another explained that “he had no bias or prejudice

in favor of, or against, the prisoner, ‘except he had his sympathy.’” At the end of the first day, the panel had been exhausted, Judge Campbell called for 75 more prospective jurors to be summoned, and proceedings concluded for the day.

On the morning of the second day of voir dire, the reporter observed that “Mr. Sickles was, as usual, self-possessed and calm, and the undisguised sympathy expressed by many of the jurors called and set aside, and by his friends generally, seemed to have a marked effect upon him.” As prospective jurors continued to declare themselves not impartial, one explained that he had “expressed opinion so far that he thought Mr. Sickles was justified in shooting Mr. Key.” Another stated that his “sympathies were strongly enlisted in favor of the prisoner.” Yet another was “strongly biased in favor of the prisoner.” Others “sympathized strongly with the prisoner”; “too strongly sympathized with the prisoner to sit on the jury”; “should acquit the man if he were placed upon the jury”; explained that “his sympathies were with the prisoner”; or that he was “prejudiced in favor of the prisoner”.

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Eventually, by the end of the third day of trial, twelve jurors – out of 230 summoned for the venire – had been seated. Judge Campbell adjourned for the day.

When Ould rose to give his opening statement the next morning, the reporter noted, the “space within the bar has been more densely crowded than heretofore, and without, every inch of room has been monopolized by the eager spectators” Before this large audience Ould began his opening statement to the jury. “It was the Sabbath – a day which for more than eighteen hundred years has been set apart to commemoration of that Divine mission which brought ‘peace on earth and good will to men.’” He then described Sickles finding Key in Lafayette Park, and how Sickles “had come to that carnival of blood fully prepared. He was a walking magazine.” He explained that Sickles came with not one, but several, weapons “each one of which, doubtless, possessed its peculiar excellence for the murderous work.” “It would seem [Sickles] did not reason carelessly,” Ould declared. Perhaps anticipating Sickles’ insanity defense, Ould argued that “no matter how revengeful may have been the feelings of the prisoner at bar towards the deceased at the time of their meeting, yet a sufficient time elapsed between that moment and the close of the catastrophe to have allowed whatever passion had inflamed him, to subside.” Observing that Key was unarmed and defenseless, Ould explained that “homicide with a deadly weapon, perpetrated by a party who has all the advantages

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on his side, and under circumstances indicating cruelty and vindictiveness, is murder, no matter what may be the antecedent provocations in the case.”

Defense counsel reserved their opening statement and the testimony by the prosecution witnesses began.

Over the next two trial days, several eyewitnesses described the shooting, followed by the medical doctors’ testimony on the manner and cause of death. The facts of the shooting were simple. Like Hinckley/Reagan, Sickles shot Key in broad daylight before several eyewitnesses, including a close friend, S.F. Butterworth, who was walking with him in the park at the time. Butterworth was not called as a witness, but separately recalled outside of court that when he saw him on the street, Sickles approached Key, declaring “Key, you scoundrel, you have dishonored my home; you must die!” He then shot Key once, and then twice more as Key struggled to get away crying “don’t shoot me!” and “murder!” Another witness heard Sickles state, while he was hovering over Key as he lay on the ground after the first three shots, “you have violated my bed.” Others heard the same. Key died shortly thereafter, and Sickles promptly and voluntarily went to the nearby home of Attorney General Black to surrender. There was little if any cross examination of the prosecution witnesses, the facts of the shooting and cause of death being clear. Ould rested his case at the end of the fifth day of trial.

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On the sixth trial day, one of Sickles’ counsel (John Graham) rose to deliver his opening statement – and continued for the next day and a half. Adultery is far worse than any other crime, he thundered. “An interference with the marriage relations must strike every reflecting mind as the greatest wrong that can be committed on a human being. It has been well said that affliction, shame, poverty and captivity are preferable.” Every man should have the right to defend his home against an intruder, and an adulterer is no less an intruder than a trespasser. “You are here,” Graham challenged the men in the jury box, “to fix the price of the marriage bed; you are here to say in what estimation the sacred couch is held by an intelligent American jury.” Later, he repeated the same challenge, in starker terms: “You are here to decide whether the defender of the marriage bed is a murderer – whether he is to be put on the same footing with the first murderer, and is to be presented in his moral and legal aspects with the same hue of aggravation about him.”

Graham also argued, without objection, that Key’s death “ may prove to be your and my gain. You know not how soon the wife or daughter of some one of you would have been – in fact you know not but she had been – marked by the same eyes that destroyed the marriage relations of the defendant; you know not how soon the gardens of loveliness over which you now preside, had that life been spared, would have been called upon to supply their flowers to satisfy the

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insatiable appetite of the deceased.” Graham’s argument on this score was, to be kind, ironic, given Sickles’ past reputation. Born in 1825, he had risen through the ranks of Tammany Hall, with the nickname “Devil Dan.” Along the way, he carried on an affair for several years with a well-known prostitute, Fanny White, and in fact was censured as a member of the New York Assembly in 1847 when he brought White into the assembly chamber. In 1852 he had married his wife – the same wife who seven years later had carried on the affair with Key – when she was 15 and pregnant by him. Even after his marriage, he continued to carry on with Fanny White, including bringing her with him to the Court of St. James instead of his wife.2

Graham decried the fact that there was no criminal law against adultery, and then again urged the jury: “You, gentlemen, are sitting there to pronounce the estimate of an American jury on the value of a husband’s bed.” By your verdict, he told them, “you will say whether you will strike terror into the heart of the adulterer, or whether you will embolden him in his course and send him out to repeat his crime.” Following close to an hour of biblical quotations and references, Graham summed: “The citations from the Bible show that female purity, in connection with the marriage relation is an object in divine law of the greatest

2 https://todayinhistory.blog/2017/04/26/april-26-1859-dan-sickles; https://www.cmohs.org/news- events/medal-of-honor-recipient-profile/daniel-sickles-an-unusual-character.

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concern; that the sanctity of the family altar must not be desecrated; that it is impiety to Heaven to violate it, and that it is piety to heaven to defend it.”

Graham finally turned to the defense of temporary insanity. Despite Sickles’ reputation for womanizing and adultery himself, Graham argued that Sickles’ discovery of his wife’s affair with Key caused him to lose his mind to “a frenzy”. The question, he said, is this: “Whether when a man receives provocation which excites in him an amount of frenzy which he cannot control, he is responsible for what he does under the influence of that frenzy? It is folly to punish a man for what he cannot help doing, if you concede that the transport is such that he cannot control it. You cannot make him criminally responsible for what he does under the influence of that transport.” “This, gentlemen of the jury, is regarded as one of the most important items in this prosecution. We mean to say, not that Mr. Sickles labored under insanity in consequence of an established mental permanent disease, but that the condition of his mind at the time of the commission of the act in question was such as would render him legally unaccountable, as much so as if the state of his mind had been produced by a mental disease. In other words, the proposition we argue to this jury is this: It is no matter how a man becomes insane, is he insane, that is the question. Whether it results from disease of mind or body or sudden provocation, it is perfectly immaterial.”

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Graham continued for another several hours, finishing the next day. At the close, the reporter observed that “Counsel resumed his seat amid suppressed indications of applause, and was complimented by many of those who were within reach of him.”

The defense’s evidentiary case proceeded first with several witnesses testifying to Sickles’ statements and state of mind after he had surrendered to the Attorney General following the shooting. One witness testified that Sickles “became very much convulsed indeed. He threw himself on the sofa, covering his face with his hands. He then broke into an agony of unnatural and unearthly sounds, the most remarkable I ever heard – something like a scream, interrupted by violent sobbing. From his convulsed appearance he was in the act of writhing. His condition appeared to me very frightful, appalling me so much that I thought if it last much longer he must become insane.” Shortly after this testimony, Edwin Stanton asked Judge Crawford for a continuance because of the impact of the testimony on Sickles, who was “breaking out into sobs and profusely shedding tears.” How much of this was an act by a man well known for making scenes is unclear. But apparently it worked its magic on those in attendance. As Sickles was escorted out, the reporter observed that even “the witness and many of the spectators were moved to tears.”

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Later that day (the eighth day of trial), the defense began to introduce evidence of Mrs. Sickles’ affair with Key, including her written confession, in order to establish what drove him to the “frenzy” that ultimately resulted in shooting Key. Her confession had been written out in Sickles’ presence, and there was no offer to call her as a witness. After describing the house on Fifteenth Street where they would meet, she explained there was “a bed in the second story” where “I did what is usual for a wicked woman to do.” In what may have been a testament to her enmity towards her philandering husband Sickles, she signed the statement using her maiden name, Teresa Bagioli.

This led to a lengthy argument over admissibility, not only over the confession but other evidence the defense intended to introduce about the affair. Defense counsel insisted that evidence of the affair was what drove Sickles to temporary insanity, and thus must be admissible. Relying upon prior cases, the defense argued that “[i]f a wife informed her husband that she had been assaulted or insulted in the street, and if the husband rushed out, and in an affray with the offender, hurt or killed him, would it be held that the husband was to be deprived of the right of giving in evidence the communication which led him to the commission of the act?” The prosecution argued that the confession was hearsay and that the 12-15 hour delay between Sickles’ hearing his wife’s confession and learning of the circumstances of the affair was too tangential. Defense counsel’s

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response: “If, therefore, the fact that it stood the interval of twelve or fifteen hours until the commission of the homicide is relied on as excluding it, then we say that constant recollection of it haunting the memory of the defendant, his uninterrupted grief during the ever-to-be-remembered night, constitutes the bridge which covers over the chasm, and connects the homicide with the statement as one of the moving or superinducing causes. Where is that curtain to drop? Will the law assume an hour of the day as a period behind which we cannot go in our inquiries, and up to which we cannot go?”

The arguments on this issue continued on and off for the next four trial days, interspersed with testimony from defense witnesses about Key’s actions and movements in the days preceding his death, including his interactions with both Sickles and his wife, short of evidence of the actual adultery. At one point, defense counsel explained to Judge Campbell that they had introduced evidence leading to the door of the room where the adultery occurred. “The simple question is, whether our proof shall take them beyond that door, and whether we shall be permitted to show the jury the guilty correspondence between them, so as to leave no doubt on the point that the deceased and Mrs. S. were pursuing a confirmed and habitual adulterous intercourse.”

At one point, the arguments became so heated that the following exchange occurred between Mr. Ould and Mr. Stanton. Trial lawyers who believe civility

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has only recently left the profession may find this 165-year old exchange of particular interest.

Mr. Ould responded – Counsel for the defense had insinuated that the public prosecutor was actuated by the thirst for blood, and that he hunted down the prisoner for vengeance.

Mr. Stanton disclaimed making such charge.

Mr. Ould replied, he could let his argument and conduct in this case go before the Court and before the world in contrast with the disreputable rant which this counsel (pointing to Stanton) had exhibited. There was no place where gentlemanly feelings could be better shown than in a forensic contest of this nature, and so there was no place where vulgarity and rudeness could be better exhibited. There seemed to be divisions assigned to counsel for defense – to some, high tragedy; to some, comedy; to some, the part of walking gentlemen; and one gentleman appeared to fill the office of clerical supe, to set the theological part of the house in order. One of the counsel had carried out the part, whether assigned to him or not, of the bully and the bruiser. No one had a greater dislike to personal antipathies and personal controversies than himself – no one an instenser scorn of the person who gets them up, or the method in which they are got up. He stood here under the solemn responsibility of his oath, and had endeavored to discharge his duty faithfully as a public prosecutor. He had not now, and never had a prejudice or ill- feeling against the prisoner at the bar. If, however, he believed that that prisoner at the bar had imbued his hands in a fellow creature’s blood, he would not restrain from declaring it. He should not call murder gentleness, or malice good feeling. He had only risen now for the purpose do relieving himself from an aspersion which had been wantonly, and he believed vindictively, made against him. The exigencies of this case, perhaps, had demanded that before this he should have vindicated himself from the aspersions made against him in the course of the case. He was glad of having the opportunity of doing so now.

Mr. Stanton (who sat beside Mr. Ould during the latter’s remarks) rose earnestly, saying – I know my duty to my client, to the cause, to

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society , to myself, too well to allow myself to be drawn aside by any such personal considerations. I am not to be drawn from the principle of law by any such resort of the counsel for the prosecution. I will leave his course to be judged of by the whole world. If his course is justified by his being public prosecutor, be it so. I say the law he presents here is not adapted to our state of society. I say the law, on the principle on which he claims it, would lead my client to the gallows by those who are malignantly seeking for his blood. I have not the honor of his acquaintance, and, after his language just uttered, do not desire it. . . . Mr. Stanton resumed, by repeating that such law as that insisted on would conduct his client to the foot of the gallows, and that there were private prosecutors here. I cannot, he said, reply to the counsel’s remarks. I defy them. I scorn them. I don’t fear them.

On the thirteenth day of trial, Judge Crawford finally ruled the body of evidence on the adulterous affair admissible. According to the reporter: “The silence in the court as Judge Crawford pronounced his decision was almost painful, and as he closed there was perceptible though silent expression of satisfaction.”

The defense witnesses then continued for another three days of testimony, including evidence of an anonymous note to Sickles four days before Key’s death. The note read in part, “There is a fellow, I may say, for he is not a gentleman, by any means, by the name of Phillip Barton Key & I believe the district attorney who rents a house of a negro man by the name of Jon. A. Gray situated on 15th street b’w’n K and L streets for no other purpose than to meet your wife Mrs. Sickles, he hangs a string out of the window as a signal to her that he is in and leaves the door unfastened and she walks in and sir I do assure you with these few hints I leave the rest for you to imagine.”

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Late on the fifteenth trial day, the defense rested, but without having introduced Mrs. Sickles’ written confession despite the uproar it had caused when proffered several days before. In a surprising about-face, the prosecutor then stood and declared to the court that the prosecution disagreed with the court’s ruling on the admissibility of the evidence of the adulterous affair, but had decided to waive its objection. Ould then offered the defense the opportunity to introduce the confession even though the defense had rested their case. They declined, declared their evidence closed, and turned the case over to the prosecution’s rebuttal.

Early on the eighteenth day of trial, the prosecution concluded its rebuttal case. Counsel and Judge Campbell had begun work on instructions the afternoon before, and then spent the next two-plus days exchanging arguments over the instructions.

Finally, on the twentieth day of trial, all evidence had been submitted and Judge Crawford instructed the jury. “The question is whether [Sickles] was laboring under the species of insanity which satisfies you that he was quite unaware of the nature, character and consequences of the act he was committing, or in other words, whether he was under the influence of a diseased mind and was really unconscious at the time he was committing the act that it was a crime.” He added: “A man is not to be excused from responsibility if he has capacity and reason sufficient to enable him to distinguish between right and wrong to the

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particular act he is doing, a knowledge and consciousness that the act he is doing is wrong and criminal and will subject him to punishment.”

After the court’s instructions, all counsel agreed – mercifully – to submit the case to the jury without further argument. The court directed the indictment be given to the jury, which then retired. A mere seventy minutes later, they returned. The clerk: “How say you, do you find the prisoner at the bar guilty or not guilty?” The foreman: “Not guilty.” Had they concluded Sickles was temporarily insane? Or simply that he had been justified in killing an adulterer? If the jury followed the instructions of Judge Crawford, one would assume it was the former. If the jury chose to agree with Sickles’ counsel that the killing was fully justified, then perhaps the latter. The report does not say, although history has treated the verdict as the first recorded not-guilty-by-reason-of-insanity verdict in the District of Columbia courts.

As for Sickles, his colorful life continued. He went on to serve the Union Army in the Civil War, commanding troops at Gettysburg, where he lost one of his legs. Sickles ultimately received the Medal of Honor for his action that day, despite the fact that he had repositioned his troops in defiance of direct orders from General Meade. Sickles later claimed to have been the reason for the Union Army’s victory at Gettysburg, and donated the bones of his amputated leg for exhibit to the Army Medical Museum (not the National Museum of Health and

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Medicine) in Washington, D.C. After the war, he served in numerous governmental positions, including U.S. Minister to Spain, where he was reported to have had an affair with Queen Isabella II. He was reelected to Congress in 1892 – 1895. He died on May 3, 1914 at the age of 94 and is the subject of at least three biographies and numerous articles.3

3 https://www.cmohs.org/news-events/medal-of-honor-recipient-profile/daniel-sickles-an-unusual- character. Biographies include W.A. Swanberg, Sickles the Incredible: A Biography of General Daniel Edgar Sickles; Garry Boulard, Sickles: A Life; Thomas Keneally, American Scoundrel: The Life of the Notorious Civil War General Dan Sickles.