An Invitation to an Evening of Memories

Of the Court, the Judges, and the Lawyers of Washington County
Washington County Courthouse, July 21, 2015
A picture of the lawyers who had practiced in Vermont for 40 years and had reached the age of 70 in a recent issue of the Bar Journal started this thought.  A long conversation with Mike Popowski one early morning confirmed it. The heart of the history of Vermont law is not only in decisions or briefs; it is best found in the memories of those who experienced the trials and hearings from either side of the bench. 
If we look back over what survives of the Vermont bench and bar from even a generation ago, we must grieve for what has been lost. One lawyer tells another a story, and that story gets repeated until it is forgotten. 
To counter this continuing extinction of our histories, the Vermont Judicial History Society invites all active and retired judges and attorneys to an evening of reminiscing, to be held at the Washington County Courthouse in Montpelier, on Tuesday, July 21, beginning at 7:00 p.m., to spend a couple of hours telling the old stories, comparing versions, and remembering how it used to be.  Nostalgia has no place in the courtroom during the day, but on this evening the rule against it is suspended.   
The event is co-sponsored by Assistant Judges Otto Kinzel and Miriam Conlon, who have generously allowed the use of the courthouse. The event is open to the public, and the stories will be recorded for posterity.  All are invited to participate.
Judge Stephen Martin, whose provocative history Orville’s Revenge has just been published, will start off the evening, in the courtroom where his portrait daily smiles down at the litigants and lawyers and where he spent many decades presiding over the trials and hearings that occurred there.  There are enough stories to fill a month of evenings like this, but we will make a start at preserving what we remember on an evening in the summer.  Join us.
This building and two others on this site have been in active service, with only a few brief recesses, including two terrible fires and the flood of 1927, since the erection of a courthouse in 1843, more than 170 years ago.  The first trials in the county, after the county was incorporated in 1811, were held in the hall of the State House. The first courthouse was located on the State House Common, completed in 1818. That building was moved in 1837 to a lot east of the Pavilion Hotel, where trials continued until 1843, when a new courthouse was built on Elm Street, partially on the lot now occupied by the this building. Later that year, it burned, and a new building was erected on the corner of State and Elm. That courthouse burned in 1880, and the present structure was built from the remaining walls on the same footprint.  Extensive remodeling was made to the courthouse and courtroom in 1968.  A “commodious and elegant brick edifice” built in the Greek Revival style, it served as the only court in the county until the erection of the Barre courthouse.
During the flood of 1869, the court officials, lawyers, the jury, and witnesses all had to be rescued from the high water in boats.  When one reached the steps of the Pavilion it caught on a hitching post and capsized, spilling the officials into the water. They had to wade the rest of the rest to dry safety.  The high water mark on the stairway leading to the courthouse shows the extent of the 1927 flood. But the real action of this courthouse happens above that line, in the courtroom. 
The Vermont Supreme Court met here for its Washington County term until 1887, when its new quarters at the State House was opened. The long bench leaves room for as many as the seven justices on the high court at that time.
Judge Asahel Peck presided here from 1851, after he was elected Circuit Judge, and the memory of the sound of his striking the top of the bench echoed for years after, including the bang his gravel made when he roared at the witness Rockwell, “answer the questions or I’ll commit you to jail.” Rockwell shrunk down in his chair and said, “Lord, have mercy!”  
The courtroom has, according to one historian, never been “surpassed in acoustic properties.”  Through those doors have passed the greatest advocates Vermont has ever known—E.J. Phelps, Paul Dillingham, John Senter—and Vermont’s great judges—Isaac Redfield, Timothy Redfield, Charles K. Williams.  This place has been the site of some of the most important and infamous trials in our history.  Here former Governor Horace Graham was tried for and convicted of larceny and embezzlement of state funds while he was Auditor of Accounts in 1919.  Mildred Brewster was convicted of murder of Anna Wheeler in this room in 1899.
Joseph Addison Wing’s portrait is on the west wall of courtroom. He practiced in these courts for nearly 60 years. “He delighted in his calling,” wrote his biographer, “and seemed to pursue it for the love of it rather than as a means of mere livelihood. The fees he exacted were always most moderate, and he never refused his assistance to a worthy client, no matter how faint the prospect of remuneration.”  His arguments were “clear and convincing.”  
Judge Timothy Redfield held court here. His portrait is on the northeast corner of the courtroom. It was Judge Redfield who instituted the practice of lawyers having to stand when examining witnesses, in addition to the practice of standing when judges entered the courtroom.  At the end of jury trials, Paul Dillingham, said to be the “greatest orator at the bar,” would say to Judge Redfield, “Now, Timothy, you preach, while I, Paul, will pray.”  
Frank Fish, the biographer of the judges and justices, described how Judge Redfield, when “he was aroused spoke rapidly and in ringing, incisive tones” to 
. . . the dismay or chagrin of counsel. He had a way of turning a case in the direction that he thought it should go by an eloquent pause, after which he would begin with an ominous “but” to marshal the facts upon the other side, and to combine them in so striking and suggestive a manner as apparently to call for a judgment or verdict directly opposite from that suggested by his opening remarks. When he had summed up the case in his charge upon his standpoint of its justice he would make the lawyer who was getting the worst of it wince and the one whose law and facts the Judge thought were right ashamed of himself to see how a real artist could do his work. Of unquestioned integrity, such was the confidence of the people in the counties of Orleans and Washington when he came to the bench that the jury were inclined in many instances to render verdicts in accordance with what they deemed to be his views of the case, and these views became noticeably apparent, we have reason to believe, in many of the cases which he tried.  
Look at his portrait. Fish wrote, “I wonder if any Judge ever sat beneath this portrait who did not feel the strength come down from the canvas that preserves and reflects so much of the greatness that was once in the flesh and speaking from the bench below? It is little wonder that the elder Mr. Wing on being asked to contribute toward the painting, the gift of the bar, remembering the occasions when the countenance of the Judge was his undoing, should have replied that he ‘would cheerfully do so if they would turn the face of the picture to the wall whenever the court was charging the jury.’" 
On the other side of the courtroom is the portrait of John Senter, one of the feistiest lawyers to appear in this courtroom.  How he could argue.  No lawyer ever fought harder for a client’s interests, and no lawyer likely came closer to being held in contempt for his courtroom behavior than Senter.  We can get a sense of his courtroom style in Foss v. Smith (1907).  The case reports what happened at trial:
Mr. Senter, counsel for the defendant, in his argument to the jury, under objection and exception of the plaintiff, said: “Mr. Redmond said to you, gentlemen of the jury, ‘granted that he, Foss, is a knave,’ and I guess it is generally granted.” Immediately after an exception was interposed to this remark of Mr. Senter and exception noted, Mr. Senter continued, under the objection and exception of the plaintiff: “And I repeat, gentlemen, Mr. Redmond says, ‘Granted Ernest Foss is a knave,’ and I don't dispute it.”   
Challenged on appeal as an incorrect statement of fact by plaintiff’s counsel, the high court refused to reverse on that ground, but condemned Sentor’s “style of advocacy,” as it was “not so vicious” as to warrant a remand. “If he asserted as a fact what he said as a guess, it might have been different.” 
Those voices are stilled now, but the memories persist.  Timothy Merrill had “one of the most clear toned and melodious voices which it was ever the good fortune of a public man to possess,” in his closing statements to juries in this court.  Paul Dillingham’s voice was “musical and sweet as a flute in its lower cadences, but rang like a bell in passion or excitement.”  Lucius Peck “was slow, deliberate and argumentative but his discourse was intended to instruct the understanding and convince the mind.”  
The court is open for business.  Today it houses the Washington Unit of the Civil Division of the Vermont Superior Court, and its Small Claims component. Bench and jury trials continue here, in much the same way as they have for the many decades this building has served the needs of litigants.