Not Guilty: Thirty Six Actual Cases in Which
An Innocent Man Was Convicted
by Judge Jerome Frank and Barbara Frank

Excerpt on

Gerald Wentzel

In 1946, Miriam Green, an attractive young divorcee, was working in a factory in Pottstown, Pennsylvania. She lived alone, near the factory, on the ground floor of a small apartment house in which the tenants were on friendly terms. Since the thermostat that regulated the furnace for the building was located in Miriam's apartment, ordinarily she attended to the heat through the winter months.

The weekend of December 6 had been unseasonably cold, but, although the furnace had gone off, Miriam had not reset the thermostat. Several times during the weekend other tenants had knocked at Miriam's door to inquire about the heat, getting no response from Miriam. Finally, on Monday, December 9, in the early afternoon, two of Miriam's neighbors broke into her apartment to see whether she was ill. They felt sure that she was at home, since they had seen her enter the apartment early Friday evening and had not seen her come out again.

They found Miriam in the bedroom, on the bed. The window had been left open, and the bedroom was extremely cold. Miriam lay on her left side, clad only in a short polo coat and bobby socks. At her back, rolled into a ball, was a red kimono. A blue scarf, tied tightly in a sailor's knot around her neck, had been used to strangle her to death. Blood covered Miriam's face, as well as a large area of the bed, in the middle of which lay the imprint of what looked like a bloody hand. Her face and upper body were grotesquely swollen, a condition that indicated advanced decay.

The police, notified immediately, called in Dr. W. L. Franck to examine Miriam. The police later said that they thought she might still be alive, since they saw blood, mucus, and air coming from her right nostril, but Dr. Franck pronounced her dead. He also stated that he believed she had died not more than twelve hours before the neighbors discovered her, as there was no odor of putrefaction in the room.

By questioning friends and neighbors of the deceased the police learned that, for two years before she met her death, Miriam had been often in the company of a thirty-seven-year­old man named Gerald Wentzel, who lived with his wife and child near Pottstown, in the village of Kennilworth. At seven- thirty in the evening of the day on which her neighbors had discovered Miriam's dead body the police took Wentzel into custody for questioning.

Badly frightened, at first Wentzel denied that he had been near Miriam's apartment for four days before his arrest. Later he admitted that, after returning from a four-day hunting ex­pedition two hundred miles from Pottstown, he had visited Miriam's apartment late Sunday evening. Finding her dead, obviously murdered, in panic he had fled.

The police realized that Wentzel was a suspect not to be ignored. In the hope of obtaining a confession they began a prolonged interrogation lasting the better part of two days. The prosecutor, called in by the police, took an active part in the questioning. During this period Wentzel had no lawyer present to advise him about his rights or the wisdom of answering the questions.

Under this ordeal Wentzel admitted to certain facts, some of which had no bearing on the case, but almost all of which the prosecutor later used against him at his trial. Still badly scared by the implications of the situation, in a desperate effort to evade the truth Wentzel made several statements that, immediately, he flatly contradicted. Because he was innocent and unprepared, he acted the stereotype of guilt.

Finally, however, he truthfully admitted that he and Miriam had been living in adultery for two years; that, early in the year, when Miriam became pregnant as a result of their relationship, she induced an abortion by taking drugs; that he had a key to Miriam's apartment but, on returning from his four-day trip to find her dead, he had thrown the key into a nearby river, believing that, with that evidence destroyed, no one would connect him with his murdered mistress. On prodding from the prosecutor he said that, in his shock, he might have placed his hand on the bed in which the dead woman lay. Despite the efforts of his questioners at no time did Wentzel admit that he had murdered her. He persisted in his assertion that she was dead when he arrived; he maintained that she must have been murdered while he was away.

On investigation the police apparently learned that Wentzel's weekend alibi could be verified by the members of his club who had accompanied him on the hunting expedition. But the prosecutor, believing that he could prove Wentzel's guilt – despite his alibi and the condition of the body when found – presented the case to the grand jury on the theory that Miriam had been murdered after his return on Sunday night. The grand jury indicted Wentzel.

Early in January 1947, Wentzel went to trial, before a jury on which there were ten women. As his first witness the prosecutor called Dr. Franck. He stated that he had been asked by the police merely to determine whether Miriam was alive. He said that he did not examine the corpse "except to notice she had bobby socks on." When pressed by the prosecutor Dr. Franck said that he did not think she had been dead for more than twelve hours before her neighbors found her – in other words, she had died on Sunday night. The prosecutor asked if the witness noticed whether putrefaction had set in. "I didn't examine the body," the doctor said again. On cross-examination by Wentzel's lawyer Dr. Franck admitted that he had never done pathological work on corpses; thus he had no experience in determining the time of death.

The next state's witness was the coroner's physician, Dr. John Simpson, who had examined the body on the evening of its discovery. Before Simpson testified, the prosecutor introduced some photographs in evidence. These pictures, taken after the body had been removed to the police laboratory, showed the jury Miriam's naked, bloated, bloody corpse. Using the photographs to illustrate his point, Dr. Simpson testified that, in his opinion, because only the upper part of the body showed putrefaction, Miriam had died not earlier than twelve to twenty-four hours before her discovery. In cross-examination Wentzel's lawyer asked, "Is it possible that this body was a corpse for forty-eight hours?" "It is possible," the witness an­swered. "It could have been a corpse for seventy-two hours?" the lawyer asked. "It could," the witness answered, admitting that Miriam could have died before Sunday night. At the close of that testimony, the judge warned the jury that "however horrible a crime may have taken place, as shown by these pictures, it does not indicate the guilt of this defendant. You will
have no prejudice against anyone because of these photographs or anything like that. It may be they are to some extent shocking. They are only put into evidence for such aid as they may be to you in determining the issue which comes before you for determination." The judge thus unintentionally fixed the horror of the photographs in the jury's mind. The prosecutor then put a police sergeant on the witness stand who testified that, after the defendant had been taken into custody, blood was found under his fingernails. That ended the witness's testimony, for the prosecutor did not attempt to prove that the blood was Miriam's. The prosecutor then introduced Wentzel's contradictory statements during his interrogation at headquarters. Later, in summation, he pointed to Wentzel's first evasions as evidence of a guilty mind, dwelling on the defendant's extramarital relationship with Miriam, and on his flight from the murder scene, as further indications of his guilt. He also made much of Wentzel's admission that the bloody imprints of a hand found on the bed might have been his. He brought sharply to the jury's attention the fact of Miriam's earlier pregnancy. But he made no attempt to prove that Wentzel's hand fit the handprints on the bed, nor did he connect the fact of Miriam's aborted pregnancy with her death. After the presentation of that evidence the prosecutor closed.

Wentzel's defense opened with his alibi witnesses, who testified that, from Thursday evening until Sunday night, he had been with them on a hunting trip two hundred miles distant from the place of the crime. Wentzel's lawyer then called Charles D. Kent, the undertaker who had prepared Miriam's body for burial shortly after the performance of the police autopsy. Having established that Kent had been a licensed undertaker for over twenty-one years, the defendant's attorney questioned him about the condition of Miriam's body when he examined it, not long after Dr. Franck's examination. "The face was almost twice the size," the witness said. "The arms and shoulders were very much enlarged, which of course, was caused by tissue gas, and tissue gases of course caused by putrefaction, which of course would be gas developing between the skin, which would cause the swelling, which is an indication the body had been lifeless for some time. It was swollen to the point it could not be reduced, so that we could make the body visible to show for the family and friends and relatives. Which is very unusual to have something like that occur when bodies are found within a reasonable length of time." He said that, in his opinion, Miriam, when found, had been dead from forty-eight to seventy-two hours. He based this opinion on his "experience and marks of decay which could not exist in a short time like this." "Is there no history of any case where the body had been dead less than that and the body decayed in a similar manner?" Wentzel's lawyer asked. "Not in my experience," the witness replied. Next Miriam's mother testified that it had been Miriam's habit to spend weekends at her mother's home in a town twenty-five miles distant from Pottstown. On the few occasions when Miriam had other plans she always let her mother know. On the weekend previous to December 6, Miriam's mother continued, Miriam had said that she would return Friday of the weekend following. She did not arrive on that Friday, nor did she phone to say why. Miriam's employer testified that, although she normally worked at the factory on the Saturday-morning shift, on the Saturday of December 7, she did not report for work or phone to say that she was ill.

Several of Miriam's neighbors testified that they had seen her going into her apartment shortly after six on Friday evening and did not see her again. These witnesses also said that, although ordinarily Miriam attended to the thermostat with care, on that weekend she had not turned on the furnace when it went off, even though the building needed heat. When they knocked on her door on Sunday morning to inquire about the furnace, they got no response. All this testimony indicated that she died early in the weekend. Wentzel's physician testified that Wentzel suffered from an inflammation of the skin, causing blood to flow. He said that he had last examined the defendant on December 3, at which time he had several cracked and bleeding lesions on his hands, a condition from which he could not have been free when the police examined him. He said that the blood under Wentzel's fingernails could easily have occurred because he had scratched the injured, itching spots.

Wentzel testified that he had not killed Miriam, and he did not falter when cross-examined by the prosecutor. His testimony closed the case for the defense. In his charge to the jury the judge said, "If you find that Miriam Green did not die on the night of December 8, then Gerald Wentzel did not kill her."

The jury retired to deliberate. In spite of the defendant's evidence, which strongly pointed to the conclusion that Miriam had met her death while he was out of town, the jurors – perhaps too vividly recalling their graphic view of Miriam's horribly distorted body, and remembering what had ended the life of Wentzel's unborn, illegitimate child – found they had no reasonable doubt about his guilt. After they had returned their verdict, the judge sentenced the prisoner to not less than ten and not more than twenty years in the penitentiary.

Wentzel's lawyer appealed to the Supreme Court of Pennsylvania. He argued that the state's evidence was wholly circumstantial and insufficient to convict, and therefore the trial judge should have directed a verdict of acquittal. He contended that the introduction of the gruesome photographs of the deceased, and of the defendant's statements to the police, particularly regarding Miriam's pregnancy, should not have been admitted in evidence.

The court rejected all these contentions. As to the sufficiency of the evidence the opinion said, "A careful reading of such evidence reveals that it is more than ample to sustain this conviction of the defendant. While none of the facts presented would be conclusive of his guilt when individually considered, yet there is no doubt in our minds that the evidence presented, when considered collectively, required that the case be submitted to the jury."

Thus the Supreme Court of Pennsylvania affirmed Wentzel's conviction. But, in a vigorous dissent, covering forty printed pages, Chief Judge Maxey (with whom two other of seven judges agreed) took sharp issue with the five judges who voted to affirm the conviction. He said in part, "A careful study of this record convinces me that the Commonwealth produced no evidence which justified a verdict of guilty against this appellant and the trial judge should have given binding instructions for acquittal. He could well have said, as other judges have said under like circumstances, 'No man can be guessed guilty in this court.' If the evidence in this case does not prove the defendant innocent beyond a reasonable doubt, it certainly greatly preponderates in his favor. Wentzel found himself enmeshed in a set of circumstances which raised a suspicion of his guilt, but each of these circumstances is consistent with his innocence. There is no rule at law or at logic that several suspicious circumstances, each one of which is consistent with the innocence of the accused, becomes proof of guilt when considered together. Four or five times nothing is still nothing."

About the state's medical testimony Judge Maxey wrote, "Another fact that tends to prove Wentzel innocent of this crime is the condition of the body when discovered on Monday afternoon. Mrs. Green was discovered at 2 P.M., Monday, December 9. The Commonwealth claims Wentzel killed her .. . the night before, Sunday night. If that was the fact, she would have been dead only fifteen hours when the body was discov­ered. The testimony which the Commonwealth produced to prove the condition of the body when discovered is most un­satisfactory.

"If later," said the judge, "some prowler should be apprehended and confess that it was he who killed Mrs. Green .. . it would be apparent to all how consistent with Wentzel's innocence of her murder were all the circumstances presented in this case."

Judge Maxey agreed with Wentzel's lawyer that the photographs, the evidence concerning Miriam's pregnancy, and several other facts contained in Wentzel's statements to the police, were inadmissible and extremely prejudicial to the defense.

But since Judge Maxey and his two colleagues were in the minority, Wentzel remained in prison.

Two and a half years later, on September 5, 1950, an American soldier, Clarence Woodley, serving a term for robbery in an Army prison camp in Germany, confessed that he had murdered Miriam Green. As a result the Army transferred Woodley to an American prison camp. The prosecutor handling the resulting investigation interviewed Woodley at length. He also corresponded with the commandant at the German prison camp with regard to the prisoner. The then prosecutor rejected the confession, since he thought it false, and let the matter go at that.

But the publicity stimulated by Woodley's confession aroused the interest of the Court of Last Resort, a private organization dedicated to the freeing of wrongly convicted men. The members of the organization undertook an intensive investigation of Wentzel's case.

They began by checking Wentzel's alibi for the weekend of December 6. In interviewing the members of Wentzel's hunting club, who had testified at his trial, they found his alibi sound. Next the members checked the facts concerning Miriam's weekend activities. After speaking with Miriam's neighbors, fellow workers, and relatives they concluded that Miriam must have met her death before Wentzel's return, just as he had contended at the trial.

The Court of Last Resort then consulted two experts in the field of legal medicine, Dr. Lemoyne Snyder and Dr. Richard Ford. After these men had jointly examined the medical testimony given at the trial, and the official weather reports covering the weekend on which Miriam died, Dr. Snyder wrote a long report, which said in part, "Considering all of the factors involved, and based on the time when the body was autopsied, it is highly improbable that death occurred less than 48 hours previously, and it is my belief that Mrs. Green expired during a period of from 6o to 8o hours before she was observed by Dr. John Simpson [the coroner's physician]."

Convinced of Wentzel's innocence, the Court of Last Resort presented to the Pennsylvania Board of Pardons Dr. Snyder's three-thousand-word report, together with another long report that contained the statements made by Miriam's sister, neigh­bors, and co-workers.

On the basis of these documents, the Board of Pardons held a hearing. Shortly afterward the members of the Board unanimously approved the action for which the Court of Last Resort had petitioned on Wentzel's behalf, the commutation of his sentence to the time already served. In 1950, after a three-year­and-one-month imprisonment, Wentzel was released from the penitentiary.

On the day of his release Wentzel made a statement to the press. "I want to get away for a while now," he said, "spend some time with my wife and daughter – get acclimated, I guess. All I want to do is breathe in some fresh air, to see the trees and the flowers," a mild request from a man who doubtless felt that the state had been exceedingly careless of his rights.


1. Commonwealth v. Wentzel, 360 Pa. State Reports, 137 (1948).

2. Argosy magazine, February 1951, pp. 73, 109, 110.

3. Argosy magazine, March 1951, pp. 98-99.

4. Argosy magazine, June 1951, pp. 100-1, 437.

5. Argosy magazine, July 1951, pp. 46-47.

6. Argosy magazine, August 1951, pp. 4, 51.