In 1985, the Supreme Court of Arkansas decided a case entitled Catt v. State, involving identical Irish twin brothers, Kilkenny and Gallico Catt. Kilkenny was charged with selling cocaine, Gallico, in a different case, with charged with selling fake cocaine, which was also illegal in Arkansas. (“I paid for cocaine, and I want real cocaine!”)
The opinion, written by Justice George Rose Smith, states that one brother sold cocaine to undercover police officer Les Javert, who knew him as Kilkenny Catt. Javert identified him in court, saying, “If that’s not Kilkenny Catt, he looks enough like him to be his twin brother” — causing some embarrassment, of course, when it turned out he did.
Each brother was charged with only one crime. The prosecution’s problem: no one knew how to tell them apart. So the judge instructed the jury it could convict either twin of committing either the offense he was charged with, or of the charge filed against his twin, as a “lesser included offense.”
Is everyone following this so far?
Both brothers were convicted, with the twist that each was convicted of the crime his brother had been charged with.
On appeal they argued, because the state’s witnesses could not tell them apart, the jury must have guessed about their identities. They also argued it was legally impossible for each brother to have been convicted of a “lesser included offense” that was actually part of the other twin’s charge.
Smith’s opinion upheld both convictions, noting “These arguments have a certain plausibility, so much so that they might appeal strongly to minds untrained in the fine points of the law.” He questioned, because only the twins knew which one committed which crime, “Can they hide behind their guilty knowledge?” He answered himself by quoting the “eloquent language” of another judge: “No!”
As to their argument that there couldn’t be “mutually included lesser offenses,” Smith referred “to the classic Greek fable of the two serpents that began to swallow each other tail first and eventually succeeded, disappearing altogether.” While this also had a “superficial appearance of logic,” he rejected it, too.
There was just one slight problem. The whole case was a fake, made up by Smith or a law clerk, yet it was somehow sent to West Publishing Company, which publishes the lovely sets of bound books lawyers like to pose in front of for television ads.
What is truly surprising is that in 1967 Justice Smith wrote an article about opinion-writing, in which he stated, “Judicial humor is neither judicial nor humorous.” He added that anyone practicing such antics “proved himself unfit to be a judge.”
But in 1990, safely retired, Smith wrote another article decidedly sympathetic to funny judges. At the end he admitted that Catt v. State was a hoax — though only in the third person. He claimed he shared a laugh with a West Publishing vice president, who claimed he knew the boys’ parents, “Tom and Allie.” Unfortunately, the hilarity didn’t reach West’s printers, who dutifully included it as an official court decision.
Oops.
In his 1990 article, Smith also said that his 1967 article “is hereby overruled, set aside, held for naught, and stomped on!” (Obviously this was written by a judge. Who else would say the same thing four times?)
Smith pointed out some clues Catt v. State was a hoax. For example, Kilkenny cats were mythical cats that fought until only their tails were left. As for Gallico Catt, anyone with young children should recognize the opening lines of Eugene Field’s children’s poem “The Duel”:
The gingham dog and the calico cat
Side by side on the table sat;
’Twas half-past twelve and (what do you think!)
Not one nor t’other had slept a wink!
The poem tells the story of a terrible fight between the two stuffed animals, who then disappear. But:
…the truth about the cat and pup
Is this: They ate each other up!
Just like what happened to “Kilkenny” and “Gallico.”
Had Smith not come clean, we might never have learned about his little deception. He said that when West Publishing learned the case’s real status (or is that fake status?), it stopped listing it in legal reference books attorneys once used to find court cases. But he added, “Catt is curled comfortably in its permanent home, 691 S.W.2d 120 [the lawyers out there will know what that means] softly purring in the hope that the truth will someday out.”
Of course, someday some prosecutor may stumble onto it and, not knowing its history, will cite it to some judge. And some poor fool will go to jail as a result.
But isn’t that a small price for humor?
Frank Zotter, Jr. is a Ukiah attorney.
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