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THE
LEOPOLD AND LOEB TRIAL ..............................................
Few
trial transcripts are as likely to bring tears to the eyes as that
of the 1924 murder trial of Richard Loeb and Nathan Leopold.
Decades after Clarence Darrow delivered his twelve-hour long plea
to save his young clients' lives, his moving summation stands as
the most eloquent attack on the death penalty ever delivered in an
American courtroom. Mixing poetry and prose, science and emotion,
a world-weary cynicism and a dedication to his cause, hatred of
bloodlust and love of man, Darrow takes his audience on an
oratorical ride that would be unimaginable in a criminal trial
today. Even without Darrow in his prime, the Leopold and Loeb
trial has the elements to justify its billing as the first
"trial of the century." It is not surprising that the
public responded to a trial that involved the kidnapping and
murder of a fourteen-year old boy from one of Chicago's most
prominent families, a bizarre relationship between two promising
scholars-turned-murderers, what the prosecutor called an "act
of Providence" leading to the apprehension of the teenage
defendants, dueling psychiatrists, and an experienced and
sharp-tongued state's attorney bent on hanging the confessed
killers in spite of their relative youth.
The crime that captured national attention in 1924 began as a
fantasy in the mind of eighteen-year old Richard Loeb, the
handsome and privileged son of a retired Sears Roebuck vice
president. Loeb was obsessed with crime. Despite his high
intelligence and standing as the youngest graduate ever of the
University of Michigan, Loeb read mostly detective stories. He
read about crime, he planned crimes, and he committed crimes,
although none until 1924 were crimes involving physical harm to a
person. ( Darrow and Leopold later saw Loeb's fascination with
crime as form of rebellion against the well-meaning, but strict
and controlling, governess who raised him.) For Loeb, crime became
a sort of game; he wanted to commit the perfect crime just to
prove that it could be done.
Loeb's nineteen-year old partner in crime, Nathan Leopold, was
interested in ornithology, philosophy, and especially, Richard
Loeb. Like Loeb, Leopold was a child of wealth and opportunity,
the son of a millionaire box manufacturer. At the time of their
crime, the brilliant Leopold was a law student at the University
of Chicago and was planning to begin studies at Harvard Law School
after a family trip to Europe in the summer. Leopold already had
achieved recognition as the nation's leading authority on the
Kirtland warbler, an endangered songbird, and frequently lectured
on the subjects of his ornithological passion. As a student of
philosophy, Leopold was attracted to Friedrich Nietzsche.
Nietzsche's influence on early twentieth century academics was
powerful, and the merits of ideas contained in books like his
Beyond Good and Evil were fiercely debated in centers of learning
like the University of Chicago. Leopold agreed with Nietzsche's
criticism of moral codes, and believed that legal obligations did
not apply to those who approached "the superman."
Leopold's idea of the superman was his friend and lover, Richard
Loeb.
Loeb and Leopold had an intense and stormy relationship. At one
time Leopold contemplated killing Loeb over a perceived breach of
confidentiality. This relationship, described by Darrow as
"weird and almost impossible," led the two boys to do
together what they almost certainly would never have done apart:
commit murder. Motives are often unclear, and they are in this
trial. Neither the defense's theory that the murder was an effort
by both to deepen their relationship nor the prosecution's theory
that money to pay off gambling debts and a desire by Loeb to
"have something" on Leopold in order to counter
Leopold's unwanted demands for sex, are likely accurate. What is
clearest about the motives is that Leopold's attraction to Loeb
was his primary reason for participating in the crime. Leopold
later wrote that "Loeb's friendship was necessary to me--
terribly necessary" and that his motive, "to the extent
that I had one, was to please Dick." For Loeb, the crime was
more an escape from the ordinary; an interesting intellectual
exercise.
Murder was a necessary element in their plan to commit the perfect
crime. The two teenagers spent hours discussing and refining a
plan that included kidnapping the child of a wealthy parents,
demanding a ransom, and collecting the ransom after it was thrown
off a moving train as it passed a designated point. Neither Loeb
nor Leopold relished the idea of murdering their kidnap victim,
but they thought it critical to minimizing their likelihood of
being identified as the kidnappers. Their victim turned out to be
an acquaintance of the two boys, Bobby Franks.
Franks was simply in the wrong place at the wrong time. On May 21,
1924 at about five o'clock in the afternoon, Bobby Franks was
walking home from school when a gray Winton automobile pulled up
near him. Loeb asked Franks to come over to the car, asked him to
get in the car to discuss a tennis racquet, then killed him with a
chisel as the two drove off. (Though most evidence points to Loeb
as the actual killer, there is some dispute about this, as there
is over the time of the killing. Some have suggested that Franks
was sexually molested, then killed later.) Leopold and Loeb drove
their rented car to a marshland near the Indiana line, where they
stripped Franks naked, poured hydrochloric acid over his body to
make identification more difficult, then stuffed the body in a
concrete drainage culvert. The boys returned to the Loeb home
where they burned Franks' clothing in a basement fire. That
evening Mrs. Franks received a phone call from Leopold, who
identified himself as "George Johnson." Leopold told
Franks that her boy had been kidnapped, but was unharmed, and that
she should expect a ransom note soon. The next morning the Franks
family received a special delivery letter asking that they
immediately secure $10,000 in old, unmarked bills and telling them
to expect further instructions that afternoon. Leopold
("George Johnson") called Jacob Franks, Bobby's father,
at three o'clock to tell him a taxi cab was about to arrive at his
home and that he should take it to a specified drugstore in South
Chicago. Just as Franks headed out to the Yellow Cab, a second
call came, this one from the police, spoiling hope that the
perfect crime would be executed. The body of Bobby Franks had been
identified; a laborer happened to see a flash of what turned out
to be a foot through the the shrubbery covering the open culvert
where the body had been placed.
There would have been no arrests and no trial but for what the
prosecutor called "the hand of God at work in this
case." A pair of horn-rimmed glasses were discovered with the
body of Bobby Franks. The glasses, belonging to Nathan Leopold,
had slipped out of his pocket as he struggled to hide the body.
They had an unusual hinge and could be traced to a single Chicago
optometrist, who had written only three such prescriptions,
including the one to Leopold. When questioned about the glasses,
Leopold said that he must have lost them on one of his frequent
birding expeditions. He was asked by an investigator to
demonstrate how the glasses might have fallen out of his pockets,
but failed after a series of purposeful trips to dislodge the
glasses from his coat. Questioning became more intense. Leopold
said that he spent the twenty-first of May picking up girls in his
car with Loeb and driving out to Lincoln Park. Loeb, when
questioned separately, confirmed Leopold's alibi. Prosecutor's
were on the verge of releasing the two suspects when two
additional pieces of evidence surfaced. First, typewritten notes
taken from a member of Leopold's law school study group were found
to match the the type from the ransom note, despite the fact that
an earlier search of the Leopold home turned up a typewriter with
unmatching type. Then came a statement from the Leopold family
chauffeur, made in the hope of establishing Nathan's innocence,
that spelled his doom. He said he was certain that the Leopold car
had not left the garage on the day of the murder.
Loeb confessed first, then Leopold. Their confessions differed
only on the point of who did the actual killing, with each
pointing the finger at the other. Leopold later pleaded with Loeb
to admit to killing Franks but, according to Leopold, Loeb said,
"Mompsie feels less terrible than she might, thinking you did
it and I'm not going to take that shred of comfort away from
her."
The Loeb and Leopold families hired Clarence Darrow and Benjamin
Bachrach to represent the two boys. Nathan said his first
impression of Darrow was one of "horror", unimpressed as
he was by Darrow's unruly hair, rumpled jacket, egg-splattered
shirt, suspenders, and askew tie. His opinion of Darrow would soon
change. He later described his attorney as a great, simple,
unaffected man, with a "deep-seated, all-embracing
kindliness." In his book Life Plus Ninety-Nine Years, Leopold
wrote that if asked to name the two men who "came closest to
preaching the pure essence of love" he would say Jesus and
Clarence Darrow.
It was Darrow's decision to change the boys' initial pleas to the
charges of murder and kidnapping from "not guilty"
(suggesting a traditional insanity defense) to "guilty."
The decision was made primarily to prevent the state from getting
two opportunities to get a death sentence. With "not
guilty" pleas, the state had planned to try the boys first on
one of the two charges, both of which carried the death penalty in
Illinois, and if it failed to win a hanging on the first charge,
try again on the second. The guilty plea also meant that the
sentencing decision would be made by a judge, not by a jury.
Darrow's decision to plead the boys guilty undoubtedly was based
in part on his belief that the judge who would hear their case,
John R. Caverly, was a "kindly and discerning" man. With
the public seemingly unanimous in calling for death, Darrow did
not want to face a jury. In his summation Darrow noted,
"where responsibility is divided by twelve, it is easy to say
‘away with him'; but, your honor, if these boys are to hang, you
must do it--...it must be by your cool, premeditated act, without
a chance to shift responsibility."
The defense hoped to build its case against death around the
testimony of four psychiatrists, called "alienists" at
the time. The best talent psychiatric talent 1924 had to offer was
sought out by both sides to examine the defendants. Even Sigmund
Freud was asked to come to Chicago for the trial, but his poor
health at the time prevented the visit. The prosecution argued
that psychiatric testimony was only admissible if the defendants
claimed insanity, while the defense argued strenuously that
evidence of mental disease should be considered as a mitigating
factor in consideration of the sentence. In the most critical
ruling of the trial, Judge Caverly decided against the state's
objection, and allowed the psychiatric evidence to be introduced.
The trial (technically a hearing, rather than a trial, because of
the entry of guilty pleas) of Leopold and Loeb lasted just over
one month. The state presented over a hundred witnesses proving--
needlessly, in the opinion of many-- every element of the crime.
The defense presented extensive psychiatric evidence describing
the defendants' emotional immaturity, obsessions with crime and
Nietzschean philosophy, alcohol abuse, glandular abnormalities,
and sexual longings and insecurities. Lay witnesses, classmates
and associates of Loeb, were offered to prove his belligerence,
inappropriate laughter, lack of judgment, and childishness. Other
lay witness testified as to Leopold's egocentricity and
argumentative nature. The state offered in rebuttal psychiatrists
who saw normal emotional responses in the boys and no physical
basis for a finding of mental abnormality.
On August 22, 1924, Clarence Darrow began his summation for the
defense in a "courtroom jammed to suffocation, with hundreds
of men and women rioting in the corridors outside." As a
newspaper reporter observed, the setting underscored Darrow's
argument "that the court was the only thing standing between
the boys and a bloodthirsty mob." For over twelve hours
Darrow reminded Judge Caverly of the defendants' youth, genetic
inheritance, surging sexual impulses, and the many external
influences that had led them to the commission of their crime.
Never before or since the Leopold and Loeb trial has the
deterministic universe, this life of "a series of infinite
chances", been so clearly made the basis of a criminal
defense. In pleading for Loeb's life Darrow argued, " Nature
is strong and she is pitiless. She works in mysterious ways, and
we are her victims. We have not much to do with it ourselves.
Nature takes this job in hand, and we only play our parts. In the
words of old Omar Khayyam, we are only Impotent pieces in the game
He plays Upon this checkerboard of nights and days, Hither and
thither moves, and checks, and slays, And one by one back in the
closet lays. What had this boy had to do with it? He was not his
own father; he was not his own mother....All of this was handed to
him. He did not surround himself with governesses and wealth. He
did not make himself. And yet he is to be compelled to pay."
In pleading that Leopold be spared , Darrow said, "Tell me
that you can visit the wrath of fate and chance and life and
eternity upon a nineteen- year-old boy!"
Darrow attacked the death penalty as atavistic, saying it
"roots back to the beast and the jungle." Time and time
again Darrow challenged the notion of "an eye for an
eye": "If the state in which I live is not kinder, more
humane, and more considerate than the mad act of these two boys, I
am sorry I have lived so long." Darrow told Judge Caverly
that a life sentence was punishment severe enough for the crime.
He reminded the judge how little Leopold and Loeb would have to
look forward to in the long days, months, and years ahead:
"In all the endless road you tread there's nothing but the
night." When Darrow finally ended his appeal, tears were
streaming down the face of Judge Caverly and many other courtroom
spectators. One reporter wrote, "There was scarcely any
telling where his voice had finished and where silence had begun.
It lasted for a minute, two minutes."
State's Attorney Robert Crowe closed for the prosecution. He
sarcastically attacked the arguments of "the distinguished
gentlemen whose profession it is to protect murder in Cook County,
and concerning whose health thieves inquire before they go out and
commit a crime." Addressing Leopold, Crowe said, "I
wonder now, Nathan, whether you think there is a God or not. I
wonder whether you think it is pure accident that this disciple of
Nietzsche's philosophy dropped his glasses or whether it was an
act of Divine Providence to visit upon your miserable carcasses
the wrath of God." (Leopold, much later, said he wondered the
same thing.) He heaped ridicule on Darrow's attempt to blame the
crime on anyone and anything but the defendants: "My God, if
one of them had a harelip I suppose Darrow would want me to
apologize for having them indicted." Crowe called the defense
psychiatrists "The Three Wise Men from the East" and
accused one of them of being "in his second childhood"
and "prostituting his profession." He reserved his
strongest language for the two defendants, who he referred to as
"cowardly perverts", "snakes",
"atheists", "spoiled smart alecs", and
"mad dogs." For Crowe, this was a premeditated crime
committed by two remorseless defendants, and the appropriate
punishment was obvious. The "real defense" in the case,
according to Crowe, was "Clarence Darrow and his peculiar
philosophy of life." It ought not be a defense, suggested
Crowe, who closed by asking Judge Caverly to "execute justice
and righteousness in the land."
Two weeks later Caverly announced his decision. He called the
murder "a crime of singular atrocity." Caverly said that
his "judgment cannot be affected" by the causes of crime
and that it was "beyond the province of this court" to
"predicate ultimate responsibility for human acts."
Nonetheless, Caverly said that "the consideration of the age
of the defendants" and the possible benefits to criminology
that might come from future study of them persuaded him that life
in prison, not death, was the better punishment. He said that he
was doing them no favor: "To the offenders, particularly of
the type they are, the prolonged years of confinement may well be
the severest form of retribution and expiation."
Richard Loeb and Nathan Leopold were moved to the Joliet
penitentiary. In 1936, Loeb was slashed and killed with a razor in
a showroom fight with James Day, another inmate. Leopold rushed to
the prison hospital to be at his old friend's bedside as he died.
Day claimed that he was resisting Loeb's sexual advances, while
prison officials called it a deliberate and unprovoked attack. Day
was acquitted by a jury. Leopold managed to keep intellectually
active in prison. He taught in the prison school, mastered
twenty-seven foreign languages, worked as an x-ray technician in
the prison hospital, reorganized the prison library, volunteered
to be tested with an experimental malaria vaccine, and designed a
new system of prison education. In the 1950's, an elderly and now
retired Robert Crowe reportedly offered to write a letter to the
Illinois Parole Board urging his release. In 1958, after
thirty-four years of confinement, Leopold was released from
prison. To escape the publicity accompanying the release of
Compulsion, a movie based on the 1924 crime (and which Leopold and
his lawyer, Elmer Gertz, challenged in a lawsuit as an invasion of
privacy), Leopold migrated to Puerto Rico. He earned a master's
degree, taught mathematics, and worked in hospitals and church
missions. He wrote a book entitled The Birds of Puerto Rico.
Despite saying in a 1960 interview that he was still deeply in
love with Richard Loeb, he married. Leopold said he often found
himself wondering during his years in Puerto Rico at what point
the thirty-four dark years in prison became balanced by the
subsequent sunshine of freedom. Leopold died following ten days of
hospitalization on August 30, 1971. The next morning his corneas
were removed. One was given to a man, the other to a woman.
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Big Bill ...................................................
"War"
is not too strong of a term to describe the state of affairs
existing between the Western Federation of Miners and the Western
Mine Owners' Association at the turn of the twentieth century.
When the state of Idaho prosecuted William "Big Bill"
Haywood in 1907 for ordering the assassination of former governor
Frank Steunenberg, fifteen years of union bombings and murders,
fifteen years of mine owner intimidation and greed, and fifteen
years of government abuse of process and denials of liberties
spilled into the national headlines. Featuring James McParland,
America's most famous detective; Harry Orchard, America's most
notorious mass murderer turned state's witness; Big Bill Haywood,
America's most radical labor leader; and Clarence Darrow,
America's most reknown defense attorney, the Haywood trial ranks
as one of the most fascinating criminal trials in history.
"War" is not too strong of a term to describe the state
of affairs existing between the Western Federation of Miners and
the Western Mine Owners' Association at the turn of the twentieth
century. When the state of Idaho prosecuted William "Big
Bill" Haywood in 1907 for ordering the assassination of
former governor Frank Steunenberg, fifteen years of union bombings
and murders, fifteen years of mine owner intimidation and greed,
and fifteen years of government abuse of process and denials of
liberties spilled into the national headlines. Featuring James
McParland, America's most famous detective; Harry Orchard,
America's most notorious mass murderer turned state's witness; Big
Bill Haywood, America's most radical labor leader; and Clarence
Darrow, America's most renown defense attorney, the Haywood trial
ranks as one of the most fascinating criminal trials in history.
In the early evening of December 30, 1905, Frank Steunenberg,
returning from a walk in eight inches of freshly fallen snow,
opened an in-swinging gate leading to the porch of his Caldwell,
Idaho home, and was blown ten feet into the air by an explosion
that "shook the earth and could be heard for miles
around." Within an hour, Steunenberg, the former governor of
Idaho, was dead. Speculation began immediately that Steunenberg's
assassination was the work of the Western Federation of Miners (WFM),
whose enmity Steunenberg had earned by his aggressive efforts,
including the requesting of federal troops, to suppress labor
unrest in the Couer d'Alene mining region of northern Idaho.
The 1890's had been a time of unprecedented violence in Idaho's
silver mines. Federal troops were called to Idaho three separate
times to combat union-sponsored terrorism that had resulted in
many deaths and extensive property damage to mining company
property, the last time being an eighteen-month occupation from
May, 1898 to November, 1899 undertaken at the urging of Governor
Frank Steunenberg. Steunenberg asked President McKinley to send
troops after union miners hijacked a train and planted sixty boxes
of dynamite beneath the world's largest concentrator, owned by the
Bunker Hill Mining Company of Wardner, Idaho, blowing it and
several nearby buildings to smithereens. Federal troops responded
by arresting every male-- even doctors and preachers-- in
union-controlled towns, loading them into boxcars, and herding
them into an old barn where the over 1,000 men were held captive
without trial. In declaring martial law, Steunenberg said,
"We have taken the monster by the throat and we are going to
choke the life out of it. No halfway measures will be adopted. It
is a plain case of the state or the union winning, and we do not
propose that the state shall be defeated." Steunenberg's
tough anti-union stance infuriated leaders of the Western
Federation of Miners, all the more so because he was a Democrat
who miners helped elect
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Steunenberg's
assassination
............................................................
The day after Steunenberg's assassination, a waitress at the
Saratoga Hotel in Caldwell reported that a guest, calling himself
Thomas Hogan, had "trembling hands" and "downcast
eyes" when she waited on him shortly after the explosion. A
search of Hogan's hotel room turned up traces of plaster of paris,
the substance used to hold pieces of the bomb together, in his
chamber pot. Hogan was questioned about the bombing and, the next
day (New Year's Day, 1906) arrested while having a drink in the
hotel bar and charged with the first degree murder of Frank
Steunenberg. Interrogated repeatedly in a Caldwell jail, Hogan
disclosed that his name was Harry Orchard, and that he knew
leaders of the WFM, though he continued to deny both his own guilt
and any recent contact with Federation insiders.
No one in Idaho believed that Steunenberg's assassination was the
work of just one man. The Governor of Idaho contacted the The
Pinkerton Detective Agency for help in coordinating the murder
investigation. The Pinkertons sent to Boise to head the effort
their most famous employee and America's premier detective, James
McParland. McParland had made his reputation some thirty years
earlier, working undercover in Pennsylvania's anthracite coal
mining region to expose and convict a secret gang of Irish thugs,
the Molly Maguires. McParland's fame was great enough to attract
the interest of the author Sir Arthur Conan Doyle, who invented a
meeting of Sherlock Holmes and McParland in The Valley of Fear, an
unprecedented honor for a real detective.
McParland, visiting Orchard in the state penitentiary near Boise,
suggested to the suspected killer that he was likely to receive
more lenient treatment if he was willing to become a witness for
the state and help convict WFM leaders, who were the target of the
state's real anger. Within days, Orchard, after breaking down and
crying several times, offered one of the most amazing confessions
in the annals of American justice. In his 64-page confession,
Orchard admitted both to the Steunenberg bombing and seventeen
other killings all, he said, ordered by the inner circle of the
WFM. WFM Secretary-Treasurer William Haywood, President Charles
Moyer, and close advisor George Pettibone were all specifically
accused of ordering the Steunenberg assassination. Orchard also
identified three other WFM miners who he said had been his
accomplices in various acts of union terrorism.
With Orchard's confession in hand, McParland proceeded to devise a
plan to arrest the three members of the WFM inner circle, all
living in the WFM's headquarters city of Denver, and transport
them to Idaho for trial. McParland wanted the arrest and trip
north to be so surreptitious and swift that the men would have no
opportunity to obtain the assistance of lawyers who might prepare
legal challenges to extradition. In effect, what McParland
proposed was a kidnapping under the barest color of state law.
McParland and Idaho state officials succeeded in convincing the
governor of Colorado to issue warrants for the arrest of the the
three men (codenamed Copperhead, Viper, and Rattler) on February
15, 1906, though both the warrants and the planned arrests
remained a closely guarded secret until the night of February 17,
when the three were rounded up (Moyer was arrested after boarding
"the Deadwood Sleeper" which was to take him to South
Dakota on the first leg of a probable planned escape to Canada;
Haywood was arrested while having sex with his sister-in-law).
Haywood, Moyer, and Pettibone were placed for a few hours in the
city jail, denied permission to call family or lawyers, before
being hustled in the early hours of the morning to the Denver
depot and placed on a special train with orders not to stop until
it crossed the Idaho border.
Not long after the special train departed the Denver station,
Edmund Richardson, the longtime attorney for the WFM, boarded
another train to Idaho and began the legal battle to free the
three leaders. Richardson filed petitions for habeas corpus,
arguing that their forcible removal from Colorado without an
opportunity to legally challenge their arrest and extradition in
Colorado courts violated the Constitution. The prisoners'
arguments lost both in the Idaho courts and the United States
Supreme Court, which in December of 1906 in the case of Pettibone
v. Nichols, ruled that a prisoner was "not excused from
answering to the state whose laws he has violated because violence
has been done to him in bringing him within the state."
Justice McKenna was the sole dissenter, writing: "Kidnapping
is a crime, pure and simple. All of the officers of the state are
supposed to be on guard against it. But how is it when the law
becomes a kidnapper? When the officers of the law, using it forms,
and exerting its power, become abductors?"
Haywood, Moyer, and Pettibone took their fates differently. Moyer
was frequently observed crying or walking nervously around his
cell. Haywood used his time in jail to design new WFM posters,
take a correspondence course in law, read books such as Upton
Sinclair's The Jungle, and run on the Socialist ticket for
governor of Colorado (he received 16,000 votes). Pettibone took
his incarceration on death row almost cheerfully, shouting
"There's luck in odd numbers, said Barney McGraw!" Over
the months of their detention, tensions grew between the radical
and defiant Haywood and the more cautious Moyer. Soon they were no
longer on speaking terms and McParland began efforts, ultimately
unsuccessful, to convince Moyer to testify against the other two
defendants.
Meanwhile, McParland continue to hunt down other witnesses who
could strengthen the prosecution's case. A miner named Steve
Adams, implicated by Orchard in the bombing of a Colorado train
depot that killed thirteen non-union miners and the killing of two
claim jumpers in northern Idaho, was arrested. Threats of hanging
and promises of immunity finally induced Adams to confess.
In December of 1906, after the Supreme Court's ruling in the
Pettibone case, Clarence Darrow, famed Chicago defense attorney,
was hired to work with Richardson in preparing the case for the
defense of Bill Haywood, the first of the three prisoners who
would face trial. Darrow's first priority, after arriving in
Idaho, was to convince Adams to withdraw his confession and thus
make the state's case against Haywood stand on the uncorroborated
testimony of Harry Orchard. Denied personal access to the closely
held Adams, Darrow was able to convey, through an uncle of Adams,
assurances of free counsel (and perhaps other financial rewards as
well) should he repudiate his confession. Much to McParland's
chagrin, Adams did repudiate his confession and was as a result
shipped to Wallace, Idaho to face old murder charges. Darrow
defended Adams in a February, 1907 trial that ended in a hung
jury.
The prosecution was assembling its own star-studded line-up for
the Haywood trial. One of the two lead prosecutors was William
Borah (who, later as member of the United States Senate would be a
leading voice for the Progressive Republicans). Borah, known for
his shrewd strategizing and forceful oratory, had the biggest and
most profitable legal practice in the state. Borah was joined by
James Hawley, a stereotypical western lawyer, renowned for his
rapport with Idaho juries and the state's most experienced trial
attorney.
THE
TRIAL
On May 9, 1907 the case of State of Idaho versus William D.
Haywood was called for trial in Judge Fremont Wood's third-floor
courtroom of the Ada County Courthouse. Press reports that day
from Boise announced that "the eyes of the civilized world
are on these great proceedings," which was described as a
"determined struggle between labor unions and capital."
One reporter called the Haywod trial "the greatest trial of
modern time," while another described it as "one of the
great court cases in the annals of the American judiciary."
In a front row bench, much like an old-fashioned church pew, sat
Haywood's wife, daughters, and mother, all of whom had been asked
by Darrow to attend the trial so as to help create sympathy for
his client.
Jury selection proved a difficult and time-consuming task, with
249 potential jurors questioned over more than six weeks to arrive
at the final panel of twelve. Both sides understood the importance
of having a favorable jury in a case with the political
implications of the Haywood trial. Each side had invested great
resources in compiling intelligence on members of the local jury
pool. Men were sent out into Boise and the surrounding countryside
posing as encyclopedia and insurance salesman, with the purpose of
investigating the affiliations, politics, and preferences of any
who might be called for jury duty. The Pinkertons managed to place
a spy, Operative 21, as a jury canvasser for the defense with the
instruction to provide Darrow and the defense team with erroneous
reports of the preferences of potential jurors. (Only late in the
jury selection game did the defense uncover the spy in their
midst.) Many potential jurors resisted serving on a jury for $3 a
day for what promised to be a long and controversial trial, and
some ran from the sheriff as he tried to round up potential
jurors. Some took off for the hills, while others were found
hiding in cellars and haystacks. Once in court, potential jurors
were asked about what they thought of labor unions, what church
they belonged to, and whether they heard a speech recently
delivered in Boise by Secretary Howard Taft. Both sides weighed
the answers of potential jurors and exercised peremptory
challenges or challenges for cause against those they saw as
unsuitable jurors. Bill Haywood huddled with his lawyers,
seemingly taking an active role in the jury selection process.
Finally, jury selection was completed with the addition to the
jury of a rancher named O. V. Sebern. Of the twelve jurors, nine
were ranchers or farmers, one was a real estate agent, one a
construction foreman, and one a building contractor. Eleven of the
twelve were men over fifty.
James Hawley gave the prosecution's opening statement. Hawley's
attempts to describe Steunenberg's murder and the confession of
Orchard were repeatedly objected to by Darrow, who called his
statements argument rather than an outline of the proposed
evidence as the rules for opening statements call for. Darrow's
interruptions and frequent sarcastic editorializing seemed to
fluster Hawley, and most reporters rated the opening statement
weak. Darrow opted to postpone his own opening statement until the
close of the prosecution case.
The first set of witnesses called by the state described events in
Caldwell on December 30, 1905. The group included a neighbor of
Steunenberg who heard the explosion, a doctor who attended
Stuenenberg at his deathbed, a Caldwell resident who witnessed
Orchard observing the Steunenberg residence with binoculars,
another resident who observed Orchard leaving the Saratoga Hotel
shortly before the explosion and, finally, Steunenberg's son
Julian, who once had a conversation with Orchard during which he
was said to have asked about the possibility of buying sheep from
his father. Then the state called the witness everyone was waiting
to hear.
"Call Harry Orchard." The prosecution considered it
something of a victory to present a live Harry Orchard, after
months of rumors that the WFM was planning to poison him in jail
or shoot him on the way to the courthouse. The rumors were taken
seriously. Hawley sent word to the defense that "the second
man shot will be Darrow." Orchard took the stand, wearing a
tweed suit and a neat mustache, he was described by one reporter
as "looking like a Sunday school superintendent."
Before Orchard could begin to tell his remarkable tale of his
career as a union terrorist, Hawley had some preliminary
questions:
"Is Harry Orchard your real name?"
"No, sir."
"How long have you used the name of Harry Orchard?"
"About eleven years."
"What is your real name?"
"Albert E. Horsley."
With a strong, steady delivery, Orchard told his story to a packed
courtroom (with hundreds of spectators unable to find seats
milling around on the courthouse lawn). Orchard said he was born
in Ontario, Canada forty years earlier, left for the U.S. at age
thirty, eventually finding work as a mucker in a Burke, Idaho
silver mine, where he joined the WFM. On April 29, 1898, Orchard
was, he said, one of the thousand or so miners who hijacked a
Northern Pacific train, diverted it to Wardner, then blew up the
Bunker Hill concentrator, killing two men:
"Who lit the fuse?"
"I lit one of them. I don't know who lit the rest."
Orchard testified that he evaded arrest by hiding out in the hills
above Burke, then making his way to Butte, Montana which was then
the headquarters of the WFM. His career as a union killer began in
1903 when he blew up the Vindicator mine in Colorado for $500,
killing two. In 1904, he dynamited the train depot in
Independence, Colorado, killing thirteen non-union miners. Later,
under orders of Haywood and Pettibone, Orchard said that he
attempted assassinations of the governor of Colorado, two Colorado
Supreme Court justices, and the president of a mining company. The
attempts all failed, although one bomb intended for a justice
killed an innocent bystander instead. Orchard testified that he
was the fifth man hired by Haywood, Moyer, and Pettibone to
assassinate Steunenberg. He testified that when he was hired
Haywood said to him, "Steunenberg has lived seven years too
long." His reward for a successful job was to be several
hundred dollars and a ranch. The purpose of the Steunenberg
assassination, according to Orchard, was to strike fear in any
politician who might consider actions that would frustrate WFM
goals. (LINK to reports by Oscar Davis on Orchard's Testimony)
Edmund Richardson cross-examined Orchard for the defense, after
winning a battle with Darrow for the honor. For twenty-six hours,
Richardson subjected Orchard to a threatening, loud, and insulting
attack covering every detail of his confession. The
cross-examination succeeded only in emphasizing his testimony
through repetition. Richardson attempted to damage Orchard's
credibility by showing him to be a womanizer, a man who deserted
his family, a bigamist, a heavy drinker, a gambler, and a cheat.
He was drilled about his indifference to the damage and
destruction he inflicted. Through it all, Orchard stood up well.
Richardson suggested that Orchard took the stand only to save his
own life:
"So you thought you could make your peace with the future by
having someone else hanged, did you?"
"No, sir. No, sir. [Orchard was sobbing at this point.] I had
no thought of getting out of it, by laying it on anybody else. I
began to think about my own life and the unnatural monster I had
been."
When Orchard finally left the stand, the reporter for Collier's
called him "the most remarkable witness that ever appeared in
an American court of justice."
The state concluded its case by introducing articles from a WFM
publication, Miner's Magazine, that revealed a deep hatred of
Steunenberg and sardonic pleasure over his passing, some letters
received by Orchard, and presenting an African-American witness
who claimed to have seen Orchard and Haywood together in a buggy.
The defense asked for a directed verdict when the prosecution
rested, but Judge Wood ruled that he was "thoroughly
satisfied that the case should be submitted to a jury."
The defense called nearly a hundred witnesses to refute various
points of Orchard's confession or cast doubt on his motives. Among
those called was Morris Friedman, Pinkerton Detective James
McParland's private stenographer and author of a book, Pinkerton
Labor Spy. Friedman described dirty tricks used by the Pinkertons
to subvert the WFM, including the use of undercover operatives
within the WFM who padded bills to drain the Federation treasury
and reduced payments to miners to build dissatisfaction with
Haywood. The purpose of the testimony was to suggest to jurors
that Pinkerton infiltrators may have committed some of the crimes
Orchard attributed to the WFM in order to bring the labor
organization into disrepute. Charles Moyer and George Pettibone
also testified and denied many of Orchard's specific allegations
about their complicity in crimes.
On July 11, 1907, Darrow called William Haywood. Spectators fanned
themselves with palm-leaf fans in ninety-five degree heat as
Haywood, in a mild-mannered, soft-spoken, conversational tone,
denied charge after charge that had been leveled against him by
Harry Orchard. He denied ordering Orchard to blow up any mine or
assassinate Steunenberg or any other public official. One
reporter, no fan of Haywood, wrote in admiration of Haywood's
"manly assertion of his principles." Senator Borah
cross-examined Haywood for the prosecution. As Borah stood to
begin his questioning, Haywood fixed his single eye (the other had
been lost in a childhood accident) on the prosecutor. Borah was to
say later that Haywood's glare "doubled me up like a
jack-knife." For five hours, Borah tried and failed to crack
the imposing defendant.
J. Anthony Lukas, Pulitzer Prize winning author of the magnificent
book about the Haywood case, Big Trouble, wrote that "rarely
in the nation's first century and a quarter had a courtroom
harbored four attorneys of such distinction as Hawley, Borah,
Richardson, and Darrow." There summations were, at a time
when courtroom theater was a popular form of entertainment,
greatly anticipated, and their performances did not disappoint.
Hawley summed up first for the prosecution, chatting with the jury
in the informal way for which he was famous. Hawley said the
prosecution asked only for justice, then reminded them of that
December day when Steunenberg was "sent to face his God
without a moment's warning and within sight of his wife and
children." In Orchards's confession, Hawley saw "divine
grace working upon his soul and through him to bring justice to
one of the worst criminal bands that ever operated in this
country."
Richardson went next, offering the defense's first summation. In a
nine-hour address full of theatrics and flourishes, Richardson
asked jurors to determine Haywood's guilt "under the high
dome of heaven." He reminded juror's of Steunenberg's 1899
crackdown on northern Idaho miners and the resulting incarceration
of miners in "bullpens" by federal "colored
troops:"
"They threw them in the dirty, vile-kept bullpens and they
were subjected to all sorts of indignities and insults at the
hands of those negro soldiers. If you had been there...gentleman
of the jury, it is certain that you would have attained in your
breast a righteous hatred for every person who had anything to do
with causing your humiliation and suffering."
Richardson argued that the angry words about Steunenberg in
Miner's Magazine were understandable given the events of seven
years earlier. Blame for Steunenberg's murder, however, Richardson
laid on Orchard and the Pinkertons. Richardson suggested it was
odd that an assassin like Orchard would make himself known around
Caldwell, fail to destroy incriminating evidence, and be called
"Harry" by prosecutors. The murder, he suggested, was a
frame-up planned by the Pinkertons to discredit and ultimately
destroy the leadership of the WFM.
As impressive as the first two summations were, Hawley and
Richardson were, in the words of Anthony Lukas, "a bit like
vaudeville artists who warmed up the crowd for the top
bananas," Darrow and Borah. Darrow closed for the defense
with an eleven-hour speech that at times, had Haywood's wife and
mother and many of the women in the courtroom sobbing.
Darrow pitilessly attacked Orchard, who he called "the
biggest liar that this generation has known." Any juror
"who would take away the life of a human being upon testimony
like that [of Orchard's] would place a stain upon the state of his
nativity...that all the waters of the great seas could never wash
away." In a move much criticized in the press, Darrow both
admitted and excused much of the violence attributed to the WFM:
"I don't mean to tell this jury that labor organizations do
no wrong. I know them too well for that. They do wrong often, and
sometimes brutally; they are sometimes cruel; they are often
unjust; they are frequently corrupt. . .But I am here to say that
in a great cause these labor organizations, despised and weak and
outlawed as they generally are, have stood for the poor, they have
stood for the weak, they have stood for every human law that was
ever placed upon the statute books. They stood for human life,
they stood for the father who was bound down by his task, they
stood for the wife, threatened to be taken from the home to work
by his side, and they have stood for the little child who was also
taken to work in their places--that the rich could grow richer
still, and they have fought for the right of the little one, to
give him a little of life, a little comfort while he is young. I
don't care how many wrongs they committed, I don't care how many
crimes these weak, rough, rugged, unlettered men who often know no
other power but the brute force of their strong right arm, who
find themselves bound and confined and impaired whichever way they
turn, who look up and worship the god of might as the only god
that they know--I don't care how often they fail, how many
brutalities they are guilty of. I know their cause is just."
Darrow offered a different motive for Orchard's murder than the
one suggested by his co-counsel. He argued (unconvincingly, as far
as the press was concerned) that Orchard bore a personal grudge
against Steunenberg because the governor's intervention in
northern Idaho resulting in him losing a share of a silver mine.
Finally, Darrow launched into a powerful conclusion that ranks
among the best of his long career:
I have known Haywood. I have known him well and I believe in him.
I do believe in him. God knows it would be a sore day to me if he
should ascend the scaffold; the sun would not shine or the birds
would not sing on that day for me. It would be a sad day indeed if
any calamity should befall him. I would think of him, I would
think of his mother, I would think of his babes, I would think of
the great cause that he represents. It would be a sore day for me.
But, gentlemen, he and his mother, his wife and his children are
not my chief concern in this case. If you should decree that he
must die, ten thousand men will work down in the mines to send a
portion of the proceeds of their labor to take care of that widow
and those orphan children, and a million people throughout the
length and the breadth of the civilized world will send their
messages of kindness and good cheer to comfort them in their
bereavement. It is not for them I plead.
Other men have died, other men have died in the same cause in
which Bill Haywood has risked his life, men strong with devotion,
men who love liberty, men who love their fellow men have raised
their voices in defense of the poor, in defense of justice, have
made their good fight and have met death on the scaffold, on the
rack, in the flame and they will meet it again until the world
grows old and gray. Bill Haywood is no better than the rest. He
can die if die he needs, he can die if this jury decrees it; but,
oh, gentlemen, don't think for a moment that if you hang him you
will crucify the labor movement of the world.
Don't think that you will kill the hopes and the aspirations and
the desires of the weak and the poor, you men, unless you people
who are anxious for this blood--are you so blind as to believe
that liberty will die when he is dead? Do you think there are no
brave hearts and no other strong arms, no other devoted souls who
will risk their life in that great cause which has demanded
martyrs in every age of this world? There are others, and these
others will come to take his place, will come to carry the banner
where he could not carry it.
Gentlemen, it is not for him alone that I speak. I speak for the
poor, for the weak, for the weary, for that long line of men who
in darkness and despair have borne the labors of the human race.
The eyes of the world are upon you, upon you twelve men of Idaho
tonight. Wherever the English language is spoken, or wherever any
foreign tongue known to the civilized world is spoken, men are
talking and wondering and dreaming about the verdict of these
twelve men that I see before me now. If you kill him your act will
be applauded by many. If you should decree Bill Haywood's death,
in the great railroad offices of our great cities men will applaud
your names. If you decree his death, amongst the spiders of Wall
Street will go up paeans of praise for those twelve good men and
true who killed Bill Haywood . In every bank in the world, where
men hate Haywood because he fights for the poor and against the
accursed system upon which the favored live and grow rich and
fat--from all those you will receive blessings and unstinted
praise.
But if your verdict should be "Not Guilty," there are
still those who will reverently bow their heads and thank these
twelve men for the life and the character they have saved. Out on
the broad prairies where men toil with their hands, out on the
wide ocean where men are are tossed and buffeted on the waves,
through our mills and factories, and down deep under the earth,
thousands of men and of women and children, men who labor, men to
suffer, women and children weary with care and toil, these men and
these women and these children will kneel tonight and ask their
God to guide your judgment. These men and these women and these
little children, the poor, the weak, and the suffering of the
world will stretch out their hands to this jury, and implore you
to save Haywood's life. (LINK TO DARROW'S SUMMATION.)
The final words belonged to the prosecution and Senator Borah.
Borah told the jury that this "is simply a trial for
murder," not an attack on organized labor. He asked the jury
to consider Orchard's actions, not just his words, especially his
frequent trips to Denver: "Why? Why always back to Denver?
Unless it was to find there the protection and pay of his
employers." Borah closed by reminding jurors of their solemn
duty:
"I remembered again the awful thing of December 30, 1905, a
night which has taken ten years to the life of some who are in
this courtroom now. I felt again its cold and icy chill, faced the
drifting snow and peered at last into the darkness for the sacred
spot where last lay the body of my dead friend, and saw true, only
too true, the stain of his life's blood upon the whitened earth. I
saw Idaho dishonored and disgraced. I saw murder--no, not murder,
a thousand times worse than murder--I saw anarchy wave its first
bloody triumph in Idaho. And as I thought again I said, ‘Thou
living God, can the talents or the arts of counsel unteach the
lessons of that hour?' No, no. Let us be brave, let us be faithful
in this supreme test of trial and duty...If the defendant is
entitled to his liberty, let him have it. But, on the other hand,
if the evidence in this case discloses the author of this crime,
then there is no higher duty to be imposed upon citizens than the
faithful discharge of that particular duty. Some of you men have
stood the test and trial in the protection of the American flag.
But you never had a duty imposed upon you which required more
intelligence, more manhood, more courage than that which the
people of Idaho assign to you this night in the final discharge of
your duty." (LINK TO PROSECUTION'S SUMMATION.)
Judge Wood gave the jury their instructions. He told them the
defendant was presumed innocent, that proof of guilt must be
established beyond a reasonable doubt, and that the jury could not
convict without corroborated evidence that connected Haywood with
the Steunenberg assassination. At 11:04 am on Saturday, July 28,
1907, the twelve jurors began their deliberations.
As deliberations continued through the night, rumors of the jury's
thinking began to swirl around Boise. Most rumors had it that the
jury was 11 to 1 or 10 to 2 or 9 to 3 for conviction. Darrow
seemed to be pinning his hope on a hung jury. After deliberating
through the night, the jury at 6:40 am on Sunday morning reported
that they had reached a verdict.
As the jury filed into Judge Wood's courtroom, Darrow put an arm
around his client and said, " Bill, old man, you'd better
prepare for the worst. I'm afraid it's against us, so keep up your
nerve." Haywood replied, "Yes, I will." The clerk
of court, Otto Peterson, announced the verdict: "We the jury
in the above entitled cause find the defendant, William D.
Haywood, not guilty." Haywood jumped up, laughing and crying,
bear hugged friends, then rushed to the jury to shake hands with
as many members of it as he could.
EPILOGUE
Interviews with jurors after the trial hint at several reasons for
their surprising verdict, which was reached six ballots after an
initial vote of 8 for acquittal, 2 for conviction, and 2
abstentions. Some jurors suggested that Judge Wood's instructions
requiring corroboration of Orchard's testimony dictated the
result. If so, the defense's success in persuading Steve Adams, by
bribe or threat or whatever, to withdraw his confession was the
key to victory. Other jurors expressed their positive impression
of Haywood on the witness stand. Still others credited Darrow's
moving summation. Members of the press offered other speculations
as well, suggesting that fear of reprisals by the WFM may have
persuaded some jurors to vote for acquittal. At least one
Pinkerton detective offered an even darker explanation: that at
least one of the jurors was bought.
George Pettibone was next up for trial. Harry Orchard was the
state's star witness. This time his cross-examination was handled
by Darrow who according to one observer, caused the jury to turn
from Orchard as they would "from the carcass of a dead
animal." The Pettibone jury acquitted him in much less time
than it took the Haywood jury to reach its verdict. Charges
against Charles Moyer were dropped after the Pettibone trial.
Bill Haywood became the leader of the Industrial Workers of the
World (the "Wobblies"). In 1918, Haywood was tried under
an espionage and sedition act for urging a strike in a
war-sensitive industry, was convicted and sentenced to thirty
years in prison. In 1921, while out on bond pending appeal,
Haywood jumped bond and fled to the Soviet Union, where he was to
become a confidant of the Bolsheviks and a friend to John Reed.
Haywood died in Moscow in 1928. Half of his ashes were buried in
the Kremlin near those of Reed, and the other half were shipped to
Chicago for burial near a monument to the Haymarket rioters whose
actions in 1886 inspired Haywood's life of radicalism.
Harry Orchard was tried and convicted of the murder of Frank
Steunenberg. He was sentenced to death, but his sentence was later
commuted to life in prison. He remained in the Idaho state
penitentiary near Boise, raising chickens and growing strawberries
as a prison trusty, until his death in 1954.
The trials of Haywood and Pettibone roughly marked the end of the
fifteen year labor war in the western mines, a period which
approached nearer than any other in American history to open class
warfare. Anthony Lukas wrote in Big Trouble:
Finally, the opposing camps in this nasty class war sputtering
along the icy ridges of the Rocky Mountains had just about
canceled each other out. Operative for operative, hired gun for
hired gun, bought juror for bought juror, perjured witness for
perjured witness, conniving lawyer for conniving lawyer, partisan
reporter for partisan reporter, these cockeyed armies had fought
each other to an exhausted standoff.
(Anthony Lukas was himself left physically and emotionally spent
after seven years of work on Big Trouble. On June 5, 1997, after
discussing final revisions on the book with his editor, Lukas
hanged himself.)
The Haywood Trial offers a fascinating window upon a time of
economic conflict and change. Although called by one reviewer of
Big
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