In April 1793, Richard appeared before a tribunal of county judges who weighed the merits of serious criminal charges to decide whether they should be adjudicated in a higher court. Few defendants in the 1790s had legal counsel, but Richard and his stepfather assembled a good team: Henry, a charismatic litigator and former governor famous for his “Give me liberty or give me death” speech; Marshall, a rising star and the future U.S. Supreme Court chief justice; and William Campbell, the U.S. attorney for Virginia.

The circumstantial obstetric evidence overwhelmingly demonstrated that Nancy’s pregnancy ended that night at the Harrisons’ home. Marshall recorded Martha Randolph’s testimony that Nancy was pregnant and that she delivered the herb, noting that the gum of guaiacum was “designed” for producing an abortion. But he did not describe this as a crime.

No effort seems to have been made to determine whether the pregnancy had reached the stage of quickening. If it was post-quickening, the state could have prosecuted Nancy and Martha. Instead Henry skillfully undermined the credibility of the prosecution’s witnesses, and Marshall successfully took the untenable position that there was never a pregnancy and, thus, Richard could not be guilty of murder.