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The Trials of Eric Mareo

Chapter Seven — In the Condemned Cell

page 108

Chapter Seven
In the Condemned Cell

It is sweet to dance to violins
When Love and Life are fair:
To dance to flutes, to dance to lutes
Is delicate and rare:
But it is not sweet with nimble feet
To dance upon the air!

—Oscar Wilde, The Ballad of Reading Gaol, (1896)

In New Zealand the institution of what Americans call 'Death Row' can be traced to the 1752 English statute entitled 'An Act for Better Preventing the Horrid Crime of Murder', that specified that 'felons had to be placed immediately after conviction in solitary confinement, where they could do no work and receive no visitors other than the priest, their only solace during the ritual preparation for their death'.1 Even in 1936 the vestiges of these requirements remained, to the extent that condemned men were not allowed to mix with other prisoners or to engage in any form of prison work, or join in educational or recreational activities, and were guarded around the clock. A light always burned in the Condemned Cell. The mental torture of waiting in the Condemned Cell was acknowledged by judges in Britain at this time, who insisted that executions be carried out as swiftly as possible - on average within six weeks of conviction (even allowing for appeals).2 Mercifully, the daily weighing ritual, designed to ensure that authorities always knew the necessary length of the 'drop' without letting the prisoner know that the day of execution had actually arrived, did not occur until after a final decision about the condemned man's fate had been made. Nevertheless, it took another sixty years for the Privy Council formally to rule (in the context of a Caribbean legislature where capital punishment still existed) that a lengthy stay in the Condemned Cell constituted 'cruel and page 109unusual punishment', and was therefore unconstitutional. The fact that this judicial recognition of the most serious of constitutional breaches was so long in coming should not diminish the reality of the suffering of any condemned prisoner at any time and in any country during the intervening period. While it is ludicrous to suppose that any such prisoner would, if asked, have opted for death over a life lived under sentence of death, it is perhaps unsurprising that it was reportedly with at least a measure of relief that the torment of waiting was over that many in the end went to the gallows.

Since Mareo was to remain in the Condemned Cell for more than two months, it can safely be assumed that he received his fair share of 'cruel and unusual punishment'. Remarkably, however, he seems to have faced his ordeal with some degree of equanimity, at least eventually. Prison records show that five weeks after receiving his sentence a Catholic priest was permitted to see him. Mareo also saw the prison chaplain, Rev George Edgar Moreton. A former scoutmaster, amateur oarsman, and secretary of the Discharged Prisoners' Aid Society, Moreton was a kind of left-wing muscular Christian and outspoken critic of the punitive aspects of New Zealand's 'hopelessly archaic' prison system. According to him, while Mareo - a courageous, 'gifted, [and] sensitive soul'- was in the Condemned Cell following his second conviction,

something happened. He spoke to God. When he had first come into that prison he was, not unnaturally, bitter, cynical, resentful; he had deliberately demanded pen and paper in order to sign himself as an atheist. His adored daughter Betty had pleaded with him to say his prayers - he never forgot her words: 'Please, Daddy darling, for my sake, say your prayers'. But her plea had left him unmoved.… Lying awake in that dark cell one night shortly after his second conviction he remembered his daughter's pathetic plea and, because he loved her so dearly, he tried to pray. From that moment a wonderful peace came upon him. His mind felt soothed and refreshed, and he knew in his heart there would be no hanging; indeed, so calm did his mind become that he commenced writing his oratorio.3
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Interestingly, a letter written by Mareo to his lawyer about a week after he had seen the Catholic priest suggests that his frame of mind was by no means inconsistent with this 'conversion' story. It is worth quoting in full because so few of his letters survive and few are as personal:

My dear Mr O'Leary, –

I want to thank you with all my heart for the splendid and noble way you defended me at the trial. That the verdict was an adverse one is no fault of yours: no man could possibly have done more for me than you did. I was enthralled by the brilliant genius of your final address, and, believe me, knowing your generous and sincere nature — when the unexpected verdict was announced — I felt for you and knew that you were suffering.

God bless you for your warm-hearted friendship in my tribulation. It has helped me to maintain an undaunted spirit despite the buffets and jolts which Fate has dealt me.

Strange to relate, notwithstanding everything, my spirit is really undaunted, and I can honestly say that I refuse to allow force of circumstances to break my heart.

It hardly seems credible that after ten months in prison (over two of which I have spent in the condemned cell) I can still find it possible to smile. So I suppose I am entitled to look upon myself as that somewhat rara avis, a 'cheerful loser'. After all, I have a lot to be thankful for, I have found many Real friends.

I am more than lucky in that God has blessed me with the wonderful love of Betty and Graham (indeed in having their love I am the richest man in the whole world!) and my faith in humanity is restored by the genuine sympathy and kindness shown me by everyone in authority at Mt. Eden Gaol. I cannot speak too highly of their treatment, and my welfare and comfort are studied in every way. Above all, I feel, intuitively, that the many kindnesses I am constantly receiving are prompted by a belief in my innocence, and this has been a great help to me in enabling me to maintain my cheerful and confident demeanour.

And of course, deep down inside me is the knowledge that somehow, at some time in the future, God will readjust matters so that my dear son does not have to go through his life bearing the stigma of his father's tragic misfortune and ignominy.

God bless you, dear friend, I want you to know that mypage 111heart is full of gratitude to you, and that I shall pray for you always.

Eric Mareo.4

Apparently, the indomitable optimism of Mareo that many had commented on before his arrest could survive even two months in the Condemned Cell.

Of the many loyal supporters referred to by Mareo in his letter, Betty was, as Rev Moreton recognised, the most important. According to Truth, Betty was allowed to visit her father daily after the first trial, a fact that, in the absence of any other concrete information, became the basis for a feature article. Its author begins by imagining Mareo '[a]lone in the condemned cell, except for the unfailing company of the lynx-eyed warders' and his memories of the 'joyous years… writing popular compositions in London; controlling the music for stage shows in Australia and New Zealand; working on plays; winning the melody dear to his strange soul - warped, it is now shown - from the orchestra of his creation'. And then in all his desolation a kind of angel appears - the 'charming Betty Grey, otherwise known as Betty Mareo'. In the account of Betty's visits that follows, Truth's portrait of Mareo's daughter is little short of hagiographic. In the space of a single newspaper column Betty is described as 'gracious', 'charming', 'slim', 'attractive and well-dressed', a girl of 'magnificent sympathy and compassion', 'amazingly self- possessed', with 'twinkling footsteps' and a 'gentle voice'. Thus Betty is placed in the same angelic camp as her only slightly older stepmother, rather than in the shameful realm occupied by her father. Although the melodramatic arc of Mareo's life from the 'joyous' London years to the 'ashes' of a 'shameful death' is in a legal and social sense irreversible, the fact that he is still loved by his daughter suggests the possibility of some kind of spiritual redemption.5 Apparently, a man who has been cast out of society for assaulting a pure woman can be redeemed by the love of another.

However, as the prominence given to the exchange of letters between Thelma's mother and Stark might suggest, most of the page 112women involved in Mareo's life were avenging rather than redeeming angels. For, in the same article about Betty's prison visits, Truth reported with some relish that there had already been an abundance of applications from persons wishing to assume the job of Mareo's hangman, and, indeed, that one of the applicants was a woman:

Once the idol of many women as, immaculate, well-groomed, accomplished and self-possessed, he conducted his Symphony Orchestra, Mareo is tasting the dregs of humiliation and degradation.

For a woman, one of the sex that admired the poise of the polished musician, has applied to the authorities to hang Mareo! It is an application without precedent in New Zealand, and the most devastating blow to his pride that could be imagined.…

'Truth' now reveals how numbers of people have hastened to apply for the grisly task of hanging the musician, among them a member of the sex whose affections Mareo so easily accepted — and spurned. Blind adoration of the majority has been transformed into the merciless, calculating estimate of the condemned man's worth by individuals of the sex.

The article then speculates about this woman's motivation, wondering if she is acting out of economic necessity (how much one wonders could the fee be?), a desire for 'notoriety', or simply by the belief that hanging 'a wife-poisoner, would be a smashing gesture'. After providing a graphic and lingering description of the execution procedure, it concludes by asking whether a woman would be capable of the 'elimination of sentiment' and 'nerve' needed to carry out the 'grim, shocking formalities necessary when the State takes a man's life?'6

No official record of such a request, nor of one from any other would-be-hangman, exists. There is one letter on file signed by 'a mother' exhorting the Minister of Justice to '[d]o the right thing' on behalf of the women of New Zealand and 'hang him up at once and save the country from any more expence [sic]; but she is appealing to the Minister's 'man hood' rather than applying for the job herself.7 However, while Truth's story sounds page 113– from the point of view of a tabloid — too good to be true, it hardly matters whether or not it is. Truth did not achieve the highest circulation of any newspaper in the country by featuring stories people did not want to read.

Significantly, the story about vengeful women was perpetuated by those who believed in Mareo's innocence as well as those convinced of his guilt. Harcourt's main contention, as we have seen, was that the men who wanted him hanged were racked by sexual jealousy and that the women were consumed by a desire for revenge. At the time of his arrest, according to Harcourt, '[t]he women of the town, for the most part, were deeply sympathetic and quite sure - that is before the trial - that it was all a ghastly mistake'. However, once the trial got under way, '[t]he Court was packed (mostly with Mareo's former admirers) day after day, and many salaciously minded females reveled in seeing rumours transformed into facts by the authoritative backing of the Crown'.8 Supporters and detractors alike seemed to believe that there was a kind of sexual triangle in which Mareo initially seduced and then betrayed his female audiences while their men felt, depending on one's point of view, either sexually jealous or protective of their wives' and sweethearts' virtue and honour.

Accordingly, those who appealed to the Crown not to hang Mareo tended to represent the musician in the same kind of way as those who wanted him dead. We have seen how Mareo was frequently represented by those who believed in his guilt as an 'enigmatic' and contradictory figure, but those who begged the Minister to spare his life invariably also drew attention to his unusualness. The woman who felt compelled to inform the Minister that Mareo was 'funny and peculiar' because he did most of the housework (as well as playing the piano late at night), and the correspondent who drew his reader's attention to the connection between the 'super-normal' and the criminal, were both opponents of the death penalty. Similarly, 'a large body of Hawkes Bay citizens', in petitioning the Minister not to hang Mareo, pointed to

[t]he extraordinary conditions prevailing in the domestic life of the Mareo family, the effect of drugs upon the mental state of page 114Eric Mareo at the time of the death of his wife, and the difficulty of judging him according to the ordinary canons of conduct without prejudice.9

Given that one of the election planks of the Labour Party had been the abolition of capital punishment, Mareo might have been heartened by the fact that there had been a change of government in the same year as his arrest. Moreover, since 1900 only a third of those convicted of murder in New Zealand were actually executed. The rate of execution had increased somewhat in the fifteen years before his arrest to exactly half of the twenty- six men sentenced to hang, but it was still low enough, presumably, for Mareo and his supporters to fancy his chances. No doubt as a direct result of the verdict in his first trial, the press's interest in the new Government's stance on the death penalty surged during February and March 1936.10 Questioned on the subject by the Weekly News, the Minister of Justice stated that '[o]ne plank in the platform [of the Labour Party] is "Abolition of capital punishment and flogging". That is a fact. It always has been a plank. All members of the Labour Party are bound by it'.11 Nevertheless, when in April a member of the parliamentary opposition, W.J. Broadfoot, asked in the House whether the Government intended to legislate to abolish the death penalty on the current session, he was advised merely that 'the matter… is receiving attention'.12 The resulting uncertainty was reflected in an article appearing on 19 June 1936 in the Hawkes Bay Herald - occasioned no doubt by Mareo's conviction for the second time two days earlier. Under the heading 'Will Labour Allow the Death Penalty?', the Herald reported that '[t]he attitude taken by the present Labour Government is subject to much conjecture', and quoted the Speaker of the House, W.E. Barnard, as saying:

A good many years ago, the Labour Party decided that it was opposed to capital punishment… that decision has never been reversed but it is also true to say that the question has probably not been raised in anything like a definite form for many years.13

page 115

Four days later Truth reported that the 'feeling is strong against granting a reprieve to Mareo' amongst both the Labour members and 'the rank and file of Parliament'. The source for this information was presumably the Labour member for Auckland East, F.W. Schramm, who, while

personally opposed to capital punishment… could not find a thing to say in favour of this poisoner. Mareo had been declared guilty by two juries and five judges of the Supreme Court, and that left no doubt of his guilt.…

Discussing his answer afterwards, Mr Schramm admitted that it would be fairly typical of the views of the Labor members of Parliament. There was no sympathy, it was said, for a man who, when granted a second trial, used it to call evidence to blacken the name of a woman - his wife - whose tongue was stilled.

From the point of view of an opponent of capital punishment, he continued, it was unfortunate that such a case was the first that would have to be decided by the new Labor Government.14

Ultimately, the fate of a person sentenced to death was decided by the Executive Council who were bound to consider the judge's view, petitions and letters from friends and, where the con- demned man's sanity was at issue, the reports of the appropriate experts.15 Accordingly, a week after sentencing Mareo to death, Mr Justice Callan had written in confidence to the Attorney- General enclosing the notes of evidence, the case on appeal (which included the exhibits), and a transcript of his summing up. Most significantly, the judge expressed to the Attorney- General his personal reservations about the outcome of the trial. He said that while Stark struck him as a reliable witness,

… the expert medical testimony called for the Prosecution did not satisfy me that it necessarily follows from the symptoms observed and recounted by Freda Stark, that Mrs Mareo must have had a further dose of Veronal in the milk, or at about the time the milk was given. So far as I could follow the matter, that was not shown to be better than a probable opinion.16
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His Honour went on to record that his doubts were only increased by the medical evidence tendered by the Defence. He concluded:

[I]t thus follows that I could not finally convince myself of Mareo's guilt except by consideration of the other evidence. But consideration of these other matters, even collectively… has not had the effect of carrying my mind beyond grave suspicion. I can get no certain help from consideration of possible motives. Mareo failed badly as to sending for a doctor. He told lies, and his conduct before and after his wife's death suggests strongly he was nervous about something, and was hiding something. But I am not satisfied that his nervousness was not about the medicine bought from Morgan.17

At about the same time, the Attorney-General received a lengthy formal representation from Mareo's solicitor, K.C. Aekins, who formally applied for a commutation of Mareo's sentence on eight separate grounds, the principal of which - apart from jury prejudice - involved the unreliability, irrelevance and inconsistency of the Crown's medical evidence. Interestingly, he also pointed out that, while Mareo had been incapable of forming the necessary intent to murder because of the influence of the veronal, the Defence had been unable to pursue and develop a plea of manslaughter because of their client's express instructions. Presumably, as a man innocent of murder, Mareo would only have been satisfied with an acquittal. The Attorney- General, Mason, also formally sought and received the views of Counsel for the Crown, Meredith, and for the Defence, O'Leary, as to the possibility of Mareo's innocence. O'Leary's reply (no doubt in the knowledge of the lengthy representations which had been made by Aekins) was brief. He simply said:

… I wish to state that from the very first time I saw Mareo he protested his innocence of the charge brought against him, and this attitude he has maintained to me and to his solicitor throughout.18

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In contrast, Meredith expressed complete satisfaction with the jury's verdict despite finishing his report with the somewhat contradictory admission that 'taking Mareo's condition prior to his wife's death into consideration if the jury had found a verdict of manslaughter instead of murder I would not have considered that an improper verdict'.19

Betty and Graham Mareo also wrote both to the Governor- General and to Mason. In the letter to the Attorney-General, Betty based her plea for clemency on the apparent bias of the second jury, saying:

I am afraid I know very little about legal matters, my only experience being the trial and retrial, which recently took place in the Supreme Court at Auckland, but I do not understand how it is humanly possible for a jury to decide on a verdict in such a short space of time — less than an hour and a half - when a brilliant man like Judge Callan gives four and a half hours to sum up the case after due consideration of the facts, it seems to me an amazing thing and utterly beyond my comprehension; perhaps I do not understand justice.

We believe Daddy to be innocent and beg your consideration of our request.20

In fact, it was to the Under-Secretary for Justice, Berkeley Lionel Scudmore Dallard, that the job fell of considering all the correspondence and the Judge's report, and of making a preliminary recommendation to the Minister. Dallard, who was also Controller-General of Prisons, was a former accountant who had been Under-Secretary since 1925 and was widely regarded as an efficient, but rigid, unenlightened and conservative, man. Personally, he supported the retention of both flogging and the death penalty, but not because he believed that they were effective as deterrents. Rather, Dallard simply felt that such punishment was necessary to 'satisfy the claims of justice'. An extract from a memorandum written by Dallard in 1931 to the superintendent of the Wellington prison regarding the procedure for executions perhaps gives a further indication of his character: page 118

[A]s the Union Jack is emblematical of British justice, such a flag will be hoisted to the main flagstaff on the morning of the execution. At the time the execution takes place a black flag will be hoisted to the lower flagstaff, the Union Jack in the ascendant, silently proclaiming the suzerainty of the law.21

All in all, then, it might be thought that Mareo was unfortunate in having Dallard as the man who would, in the first instance at least, make a judgement about whether he should live or die. Indeed, in his memorandum to Mason, Dallard makes it quite clear what his recommendation would usually have been in such a case:

[P]oison murders involve deliberation and callousness, and for a vindication of the law and the satisfying of the public conscience, in ordinary circumstances, the extreme penalty of the law should be given effect to…22

Happily for Mareo, however, it is apparent that Dallard placed great store in the reservations expressed by Mr Justice Callan in his report. Moreover, the apparent inconsistency in the approach of the two juries was not lost on the Under-Secretary. '[G]iven the influence of drugs at the time of the alleged offence,' Dallard wrote, the first jury's recommendation of mercy was probably justified, but '[t]he absence of such a recommendation by the second jury suggests an unconscious bias against the accused with a possible predisposition to discount the later medical evidence submitted by the defence.'23 On 24 July, Mason circulated this memorandum and the other relevant documents to his Cabinet colleagues.24 According to Truth, when Mareo

was visited in the Condemned Cell by a senior warder and told of his fate, he turned eagerly towards the grim messenger who stepped into the cell.

'Your sentence has been commuted to life imprisonment.' The words struck Mareo like a blow. His shoulders slumped. Life seemed to ebb from him. Then he squared himself, turned and marched with the warder from the cell.25