The Alternative Case

Thelma was clearly in a poor physical and mental state in the months before her death. Several witnesses confirm that when the curtain went down at the interval of the final performance of a play in which she was performing she took a considerable time to get to her feet. According to Mrs Bransgrove, everyone assumed she had had an attack of appendicitis (of which she would frequently complain) and was a 'heroine' for going on with the show. Stark testified that Thelma 'practically collapsed when she got home',³⁸ either because of 'the influence of liquor' or of 'nerves'. A few weeks before her death, Dr Walton examined Thelma on two separate occasions and found that she had been vomiting every morning in a way consistent with alcoholism (but not pregnancy), and was in a 'condition of nervous exhaustion'. O'Leary asked him whether 'you would have been surprised if you had heard she had committed suicide?' and Dr Walton answered, 'No, I wouldn't.'³⁹ Several witnesses, including Stark, also stated that Thelma had a dread of pregnancy and on more than one occasion confessed that she would rather die than have a child. The Mareos all claimed that Thelma would frequently spend long periods of time in bed because of illness. Stark did testify that on these occasions she was quite capable of looking after herself. However, when O'Leary asked her to confirm that Thelma had not been 'confined to her bed for two or three weeks continuously' she could only reply, 'She was in bed so much I can't really say.'⁴⁰

What was contested, however, was Thelma's alleged alcoholism. This was crucial not just because it might have accounted for Mareo's delay in calling a doctor but it may also have called into question her general mental condition and therefore page 47propensity to suicide or carelessness with other drugs, as well as the credibility of Stark. Although the autopsy indicated that Thelma showed no signs of alcoholism, that does not exclude the possibility in someone only twenty-nine years old. A number of witnesses who knew Thelma rather more casually than the main protagonists — Mrs Evans and Miss Bransgrove from the theatre and the various other visitors to the house — all reported that they had never seen her drunk. With the possible exception of the last night of the play, in which she collapsed, Stark maintained that she had never seen Thelma 'under the influence of liquor'.⁴¹ Interestingly a number of witnesses confirmed that when Thelma did drink alcohol she would hold her nose. Stark maintained that she did this because '[s]he didn't like the taste of it very much',⁴² although later under cross-examination she admitted that Thelma nevertheless 'liked the effect [of alcohol] – Oh yes, it made her feel better'.⁴³ However, in his statement to the police on the Tuesday after Thelma's arrest Mareo claimed that he was 'used to seeing my wife in an unconscious condition through alcohol' and that since the play Thelma had consumed 'on average two bottles of sherry every day'.⁴⁴ Betty and Graham confirmed their father's testimony.

On balance it seems that the case for Thelma's alcoholism was much stronger than the case for her relative sobriety for four main reasons. Firstly, while Stark's repeated denials that Thelma drank excessively were clearly crucial, when Mareo had asked her in front of the police only a few hours after Thelma's death whether she knew that 'Thelma used to drink a lot', Stark had replied, 'Oh yes, I did, Mr Mareo.'⁴⁵ Secondly, not much weight can be given to the evidence of those witnesses who knew her only casually and said they had never seen her drunk because it was precisely from such people that a heavy drinker could be expected to conceal their drinking successfully. Thirdly, Dr Walton's evidence should have been given considerable weight because he was the only witness professionally qualified to comment on Thelma's alleged alcoholism and the only witness who could not have had any reason to lie. Indeed, by stressing the seriousness of her mental and physical condition, Dr Walton page 48may even have laid himself open to the suspicion that his treatment of her had been less than adequate.

Finally, and most tellingly, there is the sheer detail of the evidence given by Betty and Graham. Betty could remember an occasion towards the end of January when Thelma had been in bed for three weeks because 'she had been drinking';⁴⁶ being told by Stark on another occasion that her father hadn't drunk before marrying Thelma; a Saturday evening when Thelma had asked her to purchase some brandy and she had gone next door to 'the Wakeham's' and then been prevented from purchasing the alcohol by Mareo; and another occasion before Christmas when she had twice tried to prevent Stark from giving Thelma a bottle of colourless alcohol, the second time hiding it behind the piano. As well as claiming that Thelma was drunk after the Dixieland party and during the bathroom incident, Graham claimed to remember an occasion on which Thelma had given £1 of grocery money to Stark to buy liquor and he had called his father at the St James to tell him about it. The even more detailed evidence given by Mareo to the police on several occasions corroborates Graham's and Betty's testimony. Obviously, while the jury could not have been expected to treat Mareo's own children as impartial witnesses, they would nevertheless have had to credit the 17-year-old son and 21-year-old daughter with a considerable capacity for deceit. Interestingly, the autopsy revealed that Thelma did not suffer appendicitis or any kind of disease that might be confused with appendicitis. The Attorney-General, Mason, would later suggest that she feigned appendicitis to cover up her drinking.

O'Leary, then, proposed that Thelma had taken the veronal herself, although not necessarily with suicidal intent. He put it to the jury that

On Saturday morning she was out of bed obviously searching for something, and either then or in the two hours when she was alone [between about 11.30 a.m. and 1.00 p.m.] she got veronal and swallowed it, and that was the veronal from which she died.

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Throughout the Saturday she had no food or drink and her digestion was practically at a standstill, and the veronal would take hours to dissolve. She was aroused on Saturday night. She did not admit [sic] that she roused of her own volition. She was given sal volatile, which would greatly hasten the solution of the veronal remaining in the stomach [since it contained alcohol]. Then, in spite of the efforts of Miss Stark to keep her awake, she lapsed into unconsciousness and died. Death was due to the veronal taken on the Saturday morning, and it was not necessary for her to have taken it on Saturday night.⁴⁷

There were several problems with this alternative account. No veronal was found in the bedroom, although of course that may have been because Thelma had consumed it. Alternatively, it may have been difficult for someone in her apparent condition to have gone to the laundry and reached up to the shelf where it was hidden, even though O'Leary told the jury that 'Poor little Detective Meiklejohn [who testified that he was "6'½" in [his] stocking"!] even had to get a chair to get up this shelf 5ft 7in. high! It was quite clear that Mrs Mareo could easily have got to the shelf.'⁴⁸ Finally, because of his decision to call no witnesses, O'Leary had no medical testimony to verify that the veronal would have remained reasonably inactive in her stomach until being dissolved by the sal volatile.

Nevertheless, all three doctors called by the Prosecution testified that Thelma must have had a dose of veronal on the Saturday morning. Dr Gilmour maintained that when Graham found Thelma swaying, incoherent and apparently looking for something, earlier on the Saturday morning, she may have been 'recovering from a dose taken on Friday night', or she may have been showing the 'preliminary symptoms from a dose taken on the Saturday morning. If they [re]present recovery from a dose on Friday night, then it is necessary to assume another dose on the Sat. morning'.⁴⁹ Dr Ludbrook thought it 'possible' that these symptoms may have 'immediately' followed the taking of a toxic dose, while Dr Gunson testified that Thelma took a dose of veronal on the Saturday morning, although he did not specify if this was when she was found by Graham swaying or somewhat page 50later when Mareo was awake.⁵⁰ Not only did the three Crown doctors think that Thelma must have received a dose of veronal on the Saturday morning, but that this dose may have been taken just before or just after Graham found her swaying in front of the dresser. Since Mareo was not in the room at the time, according to the undisputed evidence of Graham, all three doctors had effectively testified that Thelma may have taken a dose of veronal by her own volition.

Thus the Crown had the seemingly impossible task of convincing the jury that Mareo had killed his wife with veronal when the evidence was entirely circumstantial and based on rather dubious medical testimony, when the dead person seems to have been quite capable of either endangering or taking her own life, and when by the Crown's own admission the deceased may have voluntarily taken somewhat earlier the same drug that later killed her. O'Leary's alternative account of the events had some problems but these paled into insignificance beside those of the Crown's. Moreover, the onus was on the Crown to convince the jury that its version of events was certain 'beyond reasonable doubt'.

It is of course easy for us more than half a century later to reconstruct painstakingly the complicated sequence of events. The jury could only be expected to take at most a few days to come to their decision. In recent years it has become clear that juries are usually confused after a long trial in which there is difficult and complex evidence. For example, one expert has found both that fewer than forty per cent of jurors in trials lasting two to three weeks claimed to have understood all of the trial and that there is a clear correlation between the length of the trial and the capacity of jurors to maintain concentration.⁵¹ However, if the jury was confused then it had no alternative but to acquit Mareo, even if it had serious doubts about his innocence. Although the jury did apparently have some doubts, it seems that they were only about whether or not Mareo had intended to kill Thelma. A little over an hour after having retired to consider their verdict, the Foreman came back into the jury room and asked the judge whether or not there was a possibility page 51of a manslaughter verdict. Mr Justice Arthur Fair, who would become known for the firmness with which he held his views and for the importance he attached to the dignity of his court, was conducting his first criminal trial as a judge. Perhaps for that reason his direction to the Foreman was ponderous and confusing, and completely failed to define what manslaughter was. Several hours later the Foreman came back into the court with the verdict 'Guilty, but with a strong recommendation for mercy'. Had the Foreman — who was a known opponent of capital punishment — convinced the others to recommend mercy? Or did the jury feel that in the light of the medical evidence they had no alternative but to deliver a guilty verdict about which they were nevertheless apprehensive? We can never know. Justice Fair, however, had no alternative by law but to don his black cap and sentence Mareo to be hanged.