Not Guilty: Thirty Six Actual Cases in Which
An Innocent Man Was Convicted
(1957)
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.
SOURCES
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.