Wee Willie Winkee
In 1957, the Pennsylvania Supreme Court upheld the conviction of Charles Holden for murder. He was accused of killing a woman named Cora Smith, who had died when she was struck over the head early on the morning of New Year’s Eve, 1955.
Holden was arrested shortly thereafter and taken to the home of a Ralph Jones, with whom he had spent the hours prior to the killing. In Holden’s presence, Jones was questioned by the police. When Holden was later charged with the murder, his defense was that he was innocent because he was not in the victim’s home at the time of the attack.
During Jones’ interrogation, an incident happened that came up during Holden’s trial. The prosecutor asked Jones if Holden had done anything unusual while Jones was being questioned. Jones responded, “Well, during the period of time that the detectives were questioning me in his presence, I believe one of them noticed him to sort of wink or something.”
Jones added, “I didn’t rightfully know whether it was a wink or something that was in his eye.” But later in the trial, however, Jones was allowed to answer the district attorney’s question, “What did you take this wink to be?” and over the objection of Holden’s lawyer, Jones responded, “I think he was trying to get me to make an alibi for him to cover up some of his actions and I don’t know nothing about any of his actions.”
When Holden’s conviction was reviewed by the Pennsylvania Supreme Court, this little exchange between Jones and the prosecutor wasn’t even mentioned in the court’s main opinion, but it was more than Justice Michael Musmanno could stand. Musmanno, always something of a maverick, was the only judge to dissent from upholding Holden’s murder conviction, and he wrote that “the prosecuting attorney’s question was a flagrant violation of the rules of evidence and should not have been permitted. What Jones may have thought that Holden meant by the wink, if it was a wink, was entirely speculative.”
Musmanno said that the prosecutor might just as well have been allowed to ask Jones, “What was Holden thinking of at the time?” He added, “no matter how eloquent is supposed to be in the minds of poets, novelists, and dreamers, it is still not capable, by a blink, to telegraph complicated messages, unless of course, the blinker and blinkee have previously agreed upon a code.”
The jury, said Musmanno, “was thus informed that the defendant endeavored to have Jones frame an alibi for him. On what evidence was this information based? On a wink.” He added, “It will be noted that the stupendous and compendious wink not only solicited the fabrication of a spurious alibi but specified that it was ‘to cover up some of his actions.’ One movement of the eyelid conveyed a message of 21 words. Not even the most abbreviated Morse code could say so much with such little expenditure of muscular and mechanical power.”
Musmanno argued that the information Jones’ testimony was particularly damning to Holden because they had been together just before the murder. It would therefore have seemed to the jury very convincing if the wink were interpreted (by the winkee) to mean that Holden wanted Jones to lie and say that they had been together for just another hour — past the time that the murder was committed.
Musmanno pointed out, though, that only the winker, not the winkee, knew what the wink (again — if it was a wink) was supposed to mean. Indeed, he said, no one knows if Holden “was trying to convey a message . . . to shut out a strong ray of light, or whether a bit of dust troubled him at the moment . . . . Was ever more ridiculous evidence presented in a murder trial.? . . . Holden was convicted and sentenced to life imprisonment. He might have been sentenced to death. On a wink.”
As often happened, Musmanno’s rhetoric got a little ahead of him at the end of his opinion: “Why should not be allowed to interpret a cough? Or a sneeze? Or a grunt? Or a hiccough? . . . Why not permit mind readers to read a defendant’s mind, and thus eliminate the jury system completely because who knows better than the defendant himself whether or not he committed the crime?”
Musmanno ended by suggesting that, by failing to reverse Holden’s conviction and to send the case back for a new trial, “the law has not only winked, but closed both eyes.”
Or maybe it’s just that justice really is blind, after all.
Frank Zotter, Jr. is a Ukiah attorney.