An Upstate New York Christmas Poem on Trial
by Jimmy Vielkind (Capital New York)

(Reporting from Troy, New York, 12/24/13)

The attorneys were some of this city’s finest, wearing red hosiery to reflect the spirit of the season. They met in the ceremonial court room here, a capacious square that was once a church, where many of the most colorful cases in the history of this reviving Victorian industrial capital were argued. Two of the witnesses were raised from the dead.

The topic was a fundamental yuletide question: who really wrote “A Visit from Saint Nicholas,” the famous poem that first appeared in the Troy Sentinel in 1823 and begins with the famous line, “’Twas the night before Christmas.”

It was anonymous, but conventional history dictates that Clement Clark Moore, a theology professor, was its author. The poem appears in a volume he published in 1844, and his name is even inscribed on a plaque a few blocks from the court house on River Street, where the Sentinel once had its offices.

That convention has long been disputed by descendents of Henry Livingston Jr., a farmer from Dutchess County who died in 1828—before Moore published the poem under his own name. Hoping to leverage a long-simmering historical debate into a popular spectacle, local publicity artist Duncan Crary concocted the idea of the trial, which drew a standing-room-only crowd of hundreds.

“Put what you’ve learned aside. Right this historical wrong,” said Molly Casey, an attorney for the Livingstons. “You have the opportunity to stop this Grinch from stealing Christmas year after year.”

Molly Casey appeared alongside her father, Jack, a novelist, onetime newspaperman and former parliamentarian for the Republicans who control the State Senate.

The family patriarch, longtime judge John T. Casey, sat nearby in a wheelchair, watching proceedings in a room that now bears his name. Defending Moore was E. Stewart Jones Jr., who has made his name defending the well-heeled but usually-not-angelic in their brushes with the law. His clients include Joe Bruno, the former Senate leader and Troy political patron who was nudged into retirement by a federal prosecution. His grandfather successfully defended storied bootlegger Jack “Legs” Diamond. (Unidentified gunmen, believed to be Albany Police officers, killed Diamond less than 48 hours later.)

“This presentation by the Livingston Family is an exercise in one of the seven deadly sins: greed,” Jones declared, straight-faced, to jurors selected at random.

There is some evidence to back Livingston’s claim. His jolly demeanor is much more in line with the poem’s joyous description of the Christmas celebration, while Moore was more dour and religious. Further, the original text of the poem contained Dutch words for two of Santa’s reindeer—Dunder and Blixem—as opposed to the accepted German words, Donner and Blitzen. They mean “thunder” and “lightning.”

“Moore spoke German. But he didn’t speak Dutch,” said Molly Casey. “The original was written in Dutch. Why would Moore later change it to German—unless he was trying to cover for the fact that this poem was written by another man?”

Like any good lawyer, Jones put the burden of proof on his enemies, and noted there is no physical evidence of a written copy of the poem under Livingston’s hand. Only after Moore published it did Livingston descendants come forward, he argued.

As much as it was a creative way to enliven history, the event was a forum for some of the best characters in greater Albany to enjoy themselves. There is often an element of theater or absurdity in the arenas of law and politics, but it’s usually tucked beneath the a veneer of serious purpose.

The Dec. 18 event was pure spectacle: Jones wore red socks, which he displayed for the crowd after Molly performed a gratuitously sincere witness examination. A Santa Claus with a tenor saxophone played while the jury deliberated. Men in the audience held signs begging “No Clemency for Clement C.” and “Moore is a Bore.” A fog machine and bells welcomed Livingston and Moore from the beyond. (“Slacks?” Moore condescended to the female court aide sitting beside the judge.)

All sides scored laughs with jokes about Troy and its unique take on criminal justice (the juries here are particularly forgiving) and politics.

“Your honor!” Jones objected, as Jack Casey called Livingston to the stand. “Many a witness has left the witness stand in this court room wishing they were dead. But I’ve never heard, even in this city, a witness coming from the dead to testify.”

“If they can vote in Troy,” Casey told retired judge Bud Malone, back on the bench for the evening, “they can testify in Troy.”

After 90 minutes of arguments the attorneys rested, and the jurors split four to two (the four were for Livingston), prompting immediate suggestions that the event become an annual tradition.

“I didn’t rig it!” said Crary, wearing an elf hat and matching red beard, at the after-party. “I swear.”

PHOTO (From Left): Henry Livingston, Jr., and Clement Clarke Moore