Demonstrative Evidence: The Death of Lawyer Clement Vallandigham - Articles

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Posted by: Donald Paine on Feb 1, 2013

Journal Issue Date: Feb 2013

Journal Name: February 2013 - Vol. 49, No. 2

He was an Ohio lawyer, a Congressman, a Copperhead, an exile, and again a lawyer. As we shall see, he had a brief visit in Tennessee.

Clement Laird Vallandigham (accent on second syllable of surname) was born on July 20, 1820, in Lisbon, Ohio. He studied law under an older brother and was admitted to the bar in 1842. Moving to Dayton, he had a thriving law practice.

Democratic politics put Vallandigham in the legislature and the House of Representatives. He lost his House seat in 1862.

He opposed the Civil War, which classified him a Copperhead. Matters came to a head on May 1, 1863, when Vallandigham gave a speech at Mount Vernon, Ohio, denouncing Republicans and President Lincoln and General Burnside. He was quickly arrested, then tried and convicted by a military commission.

President Abraham Lincoln decided to deliver Vallandigham to the Confederacy instead of to a prison. He was taken to Tennessee and handed over to General Bragg’s troops near Shelbyville.

The Rebels, like the Yankees, didn’t want him. He was shipped off to Canada.

After the war Vallandigham returned to Ohio to practice law again in Dayton. Once more he was successful, victorious in most of his trials. His last trial was in Lebanon, halfway between Dayton and Cincinnati. It involved demonstrative evidence, almost.

My favorite modern evidence scholars, Chris Mueller and Laird Kirkpatrick, include courtroom reenactments within the rubric of demonstrative evidence. Clement Vallandigham planned to reenact what happened in a bar fight between his client Thomas McGehan and victim Tom Myers. In other words, he was going to show the jury what happened: Tom Myers shot himself by accident.

The trial began on Tuesday, June 6, 1871, and was still in progress on Friday, June 16. After court adjourned that afternoon, Vallandigham walked into the countryside to fire a revolver at a piece of cloth to look for powder residue, experimenting with distances. He returned to his hotel room, placed the still-loaded pistol beside an unloaded one on the bureau. That evening he conferred with co-counsel in his room. Allow me to quote from a biography by Frank L. Klement, The Limits of Dissent (1970, 1998), as to what happened next.

Vallandigham stated that he would demonstrate to the jury next day just how Tom Myers had accidentally shot himself while drawing a pistol as he tried to arise from the floor. Pretending he was Myers, Vallandigham took a pistol from the bureau and put it in his right trouser pocket, not realizing that he had taken the loaded one by mistake. Then he slowly pulled it out, cocking it as he drew it forth. When the muzzle cleared the pocket, he tried to place it in the exact position which he believed Myers’s weapon would have assumed at the moment when it was discharged. “There, that’s the way Myers held it,” Vallandigham said, “only he was getting up, not standing erect.” At that moment he pressed the trigger. There was a flash and the half-suppressed sound of a shot. “My God, I’ve shot myself!” Vallandigham exclaimed in shocked dismay as he reeled toward the wall and tried to hold himself up.

Clement L. Vallandigham died the next morning, Saturday, June 17, 1871, at age 50. His grave is in Dayton’s Woodlawn Cemetery.

McGehan was acquitted after being tried thrice. He was murdered in 1875.

DONALD F. PAINE is a past president of the Tennessee Bar Association and is of counsel to the Knoxville firm of Paine, Tarwater, and Bickers LLP. He lectures for the Tennessee Law Institute.