Stokes’s trial comes, but not speedily. The summer of 1872 has almost reached New York by the time the murder trial begins, in the New York Court of Oyer and Terminer. Defendants in Judge D. P. Ingraham’s court are rarely as well represented as Ned Stokes is today, and the prosecutors never deploy more legal firepower than the district attorney now does against Stokes. Indeed, John McKeon, heading the Stokes side, immediately questions the presence of William Beach, Fisk’s lawyer in Josie’s libel suit, and William Fullerton, his associate, at the side of District Attorney Samuel Garvin. “These gentlemen now employed have the gold of private individuals in their pockets,” McKeon declares. “These gentlemen were hired for the purpose of producing a conviction.” He looks at Beach and Fullerton and then at his client. “It is a terrible spectacle to see private counsel arranging themselves on the side of the prosecution, and with blood-hound perseverance hound this man.” Judge Ingraham accepts McKeon’s question and says he’ll rule on it tomorrow. For now Beach and Fullerton stay.

The examination of prospective jurors commences promisingly. Myer Homburger, who identifies himself as a merchant and importer, says that he has never had any business dealings with Messrs. Fisk, Gould, or Tweed; has never held a paid position with the Erie Railroad or the City of New York; has read various accounts of the shooting but has formed no opinion in the matter; does not remember reading of any particular expressions uttered by Mr. Fisk just before his death; has a general impression that Mr. Stokes shot Mr. Fisk but if placed on the jury would have no bias against the prisoner and would render a verdict based entirely on the evidence adduced in the trial. Myer Homburger is accepted as a juror.

But things soon slow down. William Russell, hardware dealer, is rejected for having done business with the Opera House. Louis Slocum, oculist, admits to having an opinion that will be hard to alter and is rejected. Jacob Davidson, shoe dealer, professes scruples about the death penalty and is rejected.

Then Roderick Hogan, hatter, though having gained an initial impression regarding the guilt of the defendant, says he has modified this impression lately and will have no difficulty rendering a decision based on the evidence. Hatter Hogan is accepted and sworn in.

The two jurors turn out to be the day’s total yield. Judge Ingraham orders them sequestered and rules that the fifteen persons who failed to answer the jury summons will be fined one hundred dollars each.

On the morning of the second day, Ingraham delivers his decision that Beach and Fullerton will be allowed to assist the prosecution. He doesn’t require them to reveal who is compensating them, and they don’t volunteer. But the unrebutted assumption is that they are in the pay of Jay Gould, Bill Tweed, or both. Beach, however, remarks that previously he has represented Stokes. “During some two years when I have acted as his counsel, and knew him in social life, there never has been the least unpleasantness between us, and not for a single moment have I entertained a single sentiment of hostility against him.” He turns to Stokes, smiles, and says, “That is right, Ed, is it not?” Stokes grimaces but nods.

Completing the jury takes several more days. One man is rejected for knowing Tweed, another for having made a wager on whether Stokes will hang (he doesn’t say which way he bet), a third for residing in New Jersey (how he received a summons is unclear), a fourth for not being a citizen, a fifth for having enjoyed the play Black Friday, and dozens, then scores, and finally hundreds of others for similar reasons. Judge Ingraham gets testy. “No man except a fool could read newspaper accounts of the shooting and not form an opinion on the subject,” he says, after the defense cites such opinion, for perhaps the 150th time, as grounds for rejection. “If he could, he would have no mind at all.” The judge tells the two sides to get serious, and after one further day of procrastination, during which not a single juror is accepted from a hundred prospects, the twelfth juror is at last impaneled.

District Attorney Garvin opens for the prosecution. The essence of the case is premeditation, he tells the court and the jury. “The law is that if the life of Colonel Fisk was taken by design and premeditation with intent so to do at the time when the transaction took place, then the prisoner is guilty of murder in the first degree, and you are bound so to find. There are no refinements about this case, no doubts about the question involved, no trouble surrounding it. It is a plain straightforward case, either one way or the other, and you will have no trouble coming to a conclusion.”

He lays out the people’s case. “We shall prove that about four o’clock on the afternoon of the 6th of January, 1872, the prisoner was on Broadway, nearly opposite his hotel. Next the prisoner was seen passing the Grand Opera House a few minutes thereafter. As he passed he looked directly into the window where Colonel Fisk stood. In a very short period of time subsequently he was seen again in Broadway, above the Grand Central Hotel. He was seen to enter that hotel in a hurry, go up the stairway, stand at the head of the stairs, laying in wait and watching as if for the appearance of someone who, at that time, nobody but the spirit who sits before you today knew. Not less than five minutes afterward Colonel Fisk stepped out of his carriage and walked up that stairway. At the head of the stairs stood the accused, pistol in hand. He fired the first and mortal wound upon Colonel Fisk. Then to make sure, he fired a second shot. The first shot was embedded in his bowels, and he died the following day.

“Now, gentlemen, if that is true, if these facts are proven in evidence, if he did lie in wait for Colonel Fisk and shot, and that was a mortal wound, and he died, I shall ask you, as good men, to render a verdict of premeditated murder against this prisoner, and let him take the consequences of his crime. If, on the other hand, there is any evidence produced by him which relieves him from this responsibility, then it will be for you to listen to him, hear it, give it such consideration as it shall be entitled to, and, if he is not guilty, so pronounce and let him go free. If, again, it turns out that the evidence we present is true, then under all the considerations which operate upon man, you are bound to pronounce him guilty and let the law of God and man take its course.”

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