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VOL. 39 | NO. 13 | Friday, March 27, 2015

An elaborate, complicated, catty practical joke

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The Honorable George Rose Smith is depicted in a John Deering wall-mounted bronze relief at the Central Arkansas Library System’s main branch. He’s in his robe and seated in front of a giant crossword grid.

The inscription reads: “Wordsmith Extraordinaire – New York Times Crossword Puzzle Author – Arkansas Supreme Court Justice 1949-1987.”

Judge Smith had 10 Sunday New York Times puzzles published between 1972 and 1983. In 1977, I interviewed with him for a law clerk’s position. I did not get the job.

Possessed of a keen sense of humor, Judge Smith duped bar, bench and the public on April 1, 1985, handing down Kilkenny and Gallico Catt v. State, a fictitious case in which “twin brothers … sought to use their remarkable resemblance to avoid justice.”

The opinion listed Steve Engstrom as counsel for the appellants and then-Assistant Attorney General Ted Holder for the State.

Each lawyer had agreed to his name being used. Weeks later, Catt was being cited nationwide when folks began to suss out the truth.

Per the opinion, an undercover officer, Javert, “arranged to buy cocaine from an Irish immigrant he had come to know as Kilkenny Catt.” After the buy, a second deal was made. Real cocaine was delivered the first time, sugar only the second time.

The prosecutor accordingly charged Kilkenny only with unlawful sale of cocaine in the first transaction. At a preliminary hearing, Javert identified Kilkenny as “the man I dealt with. If that’s not Kilkenny Catt, he looks enough like him to be his twin brother.”

In each transaction, Javert said, “he noticed the same scratch on the seller’s cheek. Before the hearing, however, the scratch had healed.”

At this juncture, “Kilkenny disclosed the existence of his brother Gallico and said … Gallico had been the seller in both instances. The prosecutor, caught by surprise, responded by charging Gallico” with felony fraud – agreeing to sell cocaine, then delivering sugar instead.

The State got the judge “to submit to the jury not only the actual charge filed against each twin but also the charge against the other twin as a lesser [included] offense.”

And the jury nailed them both.

“One snag: Kilkenny, charged with selling cocaine, was convicted of selling the counterfeit, and Gallico just the reverse. Identical five-year sentences were imposed.”

Google it. It’s worth reading. Here’s my favorite excerpt:

“Learned counsel’s … argument is that both verdicts cannot be upheld, because if offense A is less than and included in offense B, then logically offense B cannot be less than and included in offense A. Reference is made (we hope not with unseemly jocularity) to the classic Greek fable of the two serpents that began to swallow each other tail first and eventually succeeded, disappearing altogether. This argument has a superficial appearance of logic, but … the Criminal Code dictates a different conclusion.”

Here’s my second favorite: “Only the twins know which was actually in the courtroom that day. Can they hide behind their guilty knowledge? We cannot better answer that question than by quoting the eloquent language of Chief Justice Harris, speaking for a unanimous court: ‘No!’ Commercial Printing Co. v. Lee, 262 Ark. 87, 553 S.W.2d 270 (1977).” Affirmed.

Vic Fleming is a district court judge in Little Rock, Ark., where he also teaches at the William H. Bowen School of Law. Contact him at vicfleming@att.net.

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