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Elizabeth Fee, PhD and Theodore M. Brown, PhD

Elizabeth Fee is with the History of Medicine Division, National Library of Medicine, National Institutes of Health, Bethesda, Md. Theodore M. Brown is with the Departments of History and of Community and Preventive Medicine at the University of Rochester, Rochester, NY.

Correspondence: Requests for reprints should be sent to Elizabeth Fee, PhD, Bldg 38, Room 1E21, 8600 Rockville Pike, Bethesda, MD 20894 (e-mail: elizabeth_fee{at}nlm.nih.gov).

THE NATIONAL SPECTACLE OF battling expert witnesses in the notorious murder trial of Elizabeth Wharton in 1871 cast doubts on the moral and scientific standards of the medical profession of the day and led to a national debate on the reliability, objectivity, and fairness of the way the legal system treated expert witnesses.¹

Some facts of the landmark case: Elizabeth Wharton, a wealthy and well-connected Baltimore widow and leading Episcopalian churchwoman, stood charged with the murder of the eminent General W. Scott Ketchum, who was a family friend and her financial advisor. She was also charged with the attempted murder of a young accounting clerk, Eugene Van Ness. Immediately following a dinner at Mrs. Wharton’s home, the general had fallen gravely ill and, after three days of agony, had expired. Mrs. Wharton then sent for the clerk, an employee of the venerable Baltimore investment house of Alexander Brown and Sons, where Mrs. Wharton kept her accounts. It would later be discovered that the young man had been keeping a secret set of double books for the widow. Van Ness subsequently came down with the same symptoms; however, the young man managed to survive. The attending physicians suspected poisoning. Some townspeople remembered that Mrs. Wharton’s only son had died suddenly the previous year, and that she had been the beneficiary of unusually large life insurance policies. The widow was arrested in New York City, as she was about to embark for Europe.

Scene in the courthouse at Annapolis: Trial of Mrs Wharton on the charge of murdering General Ketchum by poison. From a sketch by Jas. E. Taylor. Courtesy of the Wisconsin Historical Society, Image ID: 29275.

Philip Williams, General Ketchum’s physician, enlisted the aid of two colleagues at the University of Maryland Medical School in Baltimore, Samuel Claggett Chew and F. T. Miles. The three men conducted an autopsy, removed Ketchum’s stomach, and sent it to another Maryland professor, E. A. Aiken. Aiken found a large amount of tartar emetic, containing antimony, in the stomach. The same poison had been found in a glass of punch that Mrs. Wharton had given to the clerk. At trial, witnesses testified that they had seen Mrs. Wharton purchasing large quantities of tartar emetic (then used medicinally in minute quantities to induce vomiting) from a store near her home a few days before the fateful events. They also testified that the general had been pressing Mrs. Wharton to return a personal loan of several thousand dollars.

At trial, Wharton’s well-paid team of defense lawyers launched direct attacks on the expert testimony of the physicians who had performed the autopsy and on Aiken, the medical chemist who had performed the analysis. They brought in leading forensic toxicologists from around the United States to cast doubt on the procedures followed, as well as on the knowledge and competence of the prosecution’s expert witnesses. What might have been good enough evidence for an ordinary murder trial was not going to be good enough for Mrs. Wharton’s legal team. The methods and record-keeping of the local doctors were subjected to withering criticism. Furthermore, the defense team argued, the local doctors were Maryland Medical School colleagues and thus were merely trying to cover for each other’s mistakes.

The chief prosecutor then had Williams, Miles, and Chew re-exhume the general’s remains, and they in turn sent his liver and kidneys to William P. Tonry, an analytical chemist in the Surgeon General’s Office in Washington, DC. Tonry agreed that Ketchum’s organs showed evidence of poisoning.

The defense team returned with several expert witnesses who dismissed, in turn, Tonry’s evidence as too little, too late, and returned to the attack on the testimony and reliability of the local doctors. The defense also called three physicians from the Washington Medical School—also located in Baltimore, and an archrival of the Maryland Medical School. These doctors offered an alternative possible cause of death: cerebrospinal meningitis. The defense further called in physicians from other parts of Maryland and Pennsylvania, all to cast doubts on the prosecution’s autopsy results and to support the plausibility of the meningitis theory.

The jury, initially divided, eventually reached a unanimous verdict of not guilty on the fifth ballot. Whether as a result of professional incompetence or the manifest professional infighting among the experts, Mrs. Wharton went free. The New York Evening Express concluded: "The case, we suppose, has scarcely a parallel as a doctors’ war, chemical experts having been arrayed for weeks in hostile squadrons, though after all nothing seems certain about their conflicting tests, unless it is their uncertainty."^1(p192)

Dozens of other newspapers made similar points. Some concluded that what the nation needed was a group of official and impartial medical and scientific expert witnesses. Perhaps each state should recruit specially chosen medical experts, pay them reasonable fees, and expect them to serve as disinterested advisors to the courts when their expertise was required in legal cases. Under the current system, many decided, the judgments of expert witnesses were "as vulnerable to the influence of money, greed, ambition, political pressure, interprofessional power plays, intraprofessional rivalries, friendship, error, and obstinacy as any other kind of judgment."^1(p195) Especially in celebrity trials such as Mrs. Wharton’s, handsome private fees were creating a marketplace for medical witnesses willing to tailor their testimony to the requirements of whoever retained them. By contrast, physicians acting in the public interest were expected and often required to testify without compensation. Despite numerous calls for reform of the system of expert witnesses in the 1870s and 1880s, and various legislative attempts in several states, American legislatures refused to alter either the adversarial system or the unequal treatment that sets expert witnesses testifying for well-financed private interests against the often involuntary and generally unpaid testimony of those testifying on behalf of the public interest.

	Reference

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1. Mohr JC. Doctors and the Law: Medical Jurisprudence in Nineteenth-Century America. New York, NY: Oxford University Press; 1993.

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