For two days bridging June and July, Morris Friedman, a socialist who had worked as a stenographer in Pinkerton’s Denver office, created an uproar by unveiling documents that he had smuggled out. Having recently published a book entitled The Pinkerton Labor Spy, his testimony repeated what he had written, identifying by name agents who had infiltrated labor unions and describing the operations overseen by McParland during the Colorado Labor Wars.69 Although sensational, his testimony was not generally considered significant, as he admitted on cross-examination that the Idaho Mine Owners’ Association had not been a major client of Pinkerton’s, nor did any of his documents actually have a bearing on the case.70
Darrow and Richardson, however, considered Friedman’s testimony a major triumph, as they had not expected it to be admitted at all—and it brought with it the implication that Orchard might be yet another Pinkerton’s operative. Others responded to it by publicly throwing support behind Friedman’s betrayed employers. The former U.S. marshal turned sports journalist Bat Masterson—who had had a run-in with Siringo in Dodge City in 1877—stated that “the defense will not be able to involve Captain James McParland in anything discreditable” and proclaimed him “one of the shrewdest and most capable detectives that has ever handled a case in this or any other country.”71
After Friedman, an even more shocking defense witness was called—McParland’s brother Edward. Described as a “funny little bald headed shoemaker, with brogue as thick as peat,”72 Edward told of his experiences in 1904 when he was hauled out of his shop in Victor, thrown in the bull pen, and shown over the Kansas border.73 Although the brief statement had no relevance to the murder, it allowed the defense to portray McParland—with whom Edward claimed to have not had contact for more than six years74—as a heartless, soulless spy and mercenary.
In fact, even while his brother was testifying, McParland was again playing spymaster, making a last effort to separate Moyer from Haywood and Pettibone and get him to turn state’s evidence. In May he had encouraged two deputies, who watched over the prisoners at the jail, to convince Moyer to work with the prosecution.75 When this failed he devised a plan similar to the one he had developed for Hicks to talk to Annie Adams—in this case turning to Fannie Cobb, the wife of the proprietor of The Idaho Daily Statesman, to put pressure on Bertha Moyer. Somehow the press got hold of the story, and Mrs. Cobb hurriedly denied any involvement.76 Moyer eventually took the stand on behalf of the defense.
When the defense completed its case on Saturday, July 13, many thought the efforts had done more harm than good. In trying to portray Orchard as a liar, witnesses had confirmed his story as often as they disproved it. And although serious questions had been raised about his involvement in some of the crimes he claimed—particularly the attempted murder of Bradley and the bomb in the Vindicator mine—the alternatives were unproven theories. Moreover, the different reasons given for Orchard’s involvement—personal hatred for Steunenberg, a role as a Pinkerton’s operative, serving as a double agent for the mine owners—showed the defense’s arguments were riddled with internal contradictions.
Even the gains made by the defense were diluted in the following rebuttal phase, as much of the testimony disputing Orchard was drawn into question.77 Judge Wood later noted the benefits that accrued to the prosecution during the period after he had let the trial continue: “The principal portion of the corroboration in the Haywood case was developed through the witnesses of the defendants when making their defense and while there was little or no corroboration against Haywood in the original presentation by the State, it was my opinion that the corroboration was ample when the case against Haywood was submitted [to the jury].”78
Wood’s view was widely supported, including by C. P. Connolly of Collier’s—a lawyer himself—who noted: “There is no escape from the conclusion that at the close of the case for the defense, a much stronger chain of evidence had been forged against Haywood than the prosecution had succeeded in welding. And the credit for laying the State’s well-concealed traps for the defense to stumble into must be given to the detective McParland, an old-fashioned man in appearance and habit, who works silently and seriously, and with a passion for winning.”79
• • •
As James Hawley began the first of four closing arguments on a sultry afternoon on Friday, July 19, he glanced at the front row of spectators, toward where sat two men who had thus far assiduously avoided making an appearance. But McParland and Gooding were both there now—it was McParland’s only appearance—and their support comforted Hawley. He had been ill—due to stress—in the preceding days, but his summation was masterful. For two hours that afternoon Hawley seemed to chat informally to his fellow Idahoans on the jury. At times he leaned on the table, at others he sat on it with his feet on a chair, and at still others he sat close to the twelve men, his legs swinging free. Saturday he was back, finishing, he noted, “after occupying only eight hours.”80
Hawley’s primary task was to give a blow-by-blow account of Orchard’s violent acts, of the actions taken by the WFM after the Steunenberg assassination, and of the reasons for believing Orchard’s testimony. He addressed each of the alternative theories that the defense had propagated. By the time he finished, Hawley had made “one of the most masterful and forceful addresses that has perhaps ever been made to a jury in a murder case in the history of this country. It was an address that will go down in the history of court proceedings as one of the greatest efforts of its kind.”81
When the trial paused on Sunday, Judge Wood disappeared, as was his wont, to relax in his avid pursuit of trout fishing. As he had a couple times before, Oscar King Davis accompanied him. That afternoon, for the only time on their ventures, the trial was mentioned. “Well . . . it will soon be over,” Davis later recalled Wood had said. “It ought to go to the jury next week. Haywood is guilty and has been convicted. I believe he will be hanged, for I don’t see how it can be upset.”82
The next day, with the temperature soaring to 90 degrees Fahrenheit (32 degrees Celsius)—so hot that Wood announced the second daily session would be held from 6:00 to 8:30 P.M. to avoid the heat—Richardson did his best to thwart this inevitability. Wearing a three-piece suit with a formal wing collar that some thought out of place in a Boise courtroom, he spoke rapidly but distinctly in “a great, big voice,” using a series of jerky arm and leg movements that made him even hotter, so he frequently had to wipe his face and balding pate. Having had the table moved “to give him a good space to walk about in as he talked,” he would move as far from the jury as possible and then, “crouching down, to approach stealthily, speaking softly until he got fairly in front of the first row of jurors, and then booming out his point at the top of his voice and with explosive emphasis,” he would throw his shoulders back and gesture with his fingers spread far apart.83
Richardson gathered steam as he described the events in the Coeur d’Alenes in 1899. This was why, he argued, Orchard had murdered Steunenberg—because the governor’s actions had led him to sell his share in a mine that later became wildly successful. On and on Richardson went, building this notion, until suddenly, as his second day began, everything changed. “And when Mr Richardson had blown this bubble-theory of the personal grudge and had filled it and had it floating before the jurors and they were looking at its beauty,” The Idaho Daily Statesman commented in derision, “the Denver attorney petulantly thrust out his finger, poked it through his own creation and the bubble broke. He had another idea. . . . [H]e spread before the jury the startling theory that the Steunenberg murder was all a plot of the Pinkerton detective agency.”84
In actuality, Richardson had targets beyond the Pinkerton’s. “You have been fooled in this case largely by the State of Colorado,” he told the jurors. “She has sent up here all her dirty linen in order to have you gentlemen wash it.”85 And there was no doubt who was doing that dirty work for Colorado and Idaho: the Pinkerton’s, with “the express pu
rpose of destroying the Western Federation of Miners, the only organization that has ever had the power or the courage to raise its hand against the mining interests of the country.” And so he built the argument that Orchard had been working against the WFM—had perhaps even murdered Steunenberg—on the orders of McParland, who “has been held up in a sort of nebulous atmosphere as ‘the great I am’ . . . and that back of it somewhere he was going to produce evidence that would astound the world. What is the evidence here that has been produced by this man? The seas have been combed, the land has been raked . . . and when we come to this trial there is not a single scintilla of evidence that has been gotten to sustain Mr Orchard’s original statement.”86
Thus, as he neared the end of his ten-hour summation, Richardson followed a strategy that had been used against McParland many years before in the Molly Maguire trials by Martin L’Velle and John Ryon. By trying to fix the blame for the assassination on McParland, not only did he hope to give the jury an alternative theory that might influence their reasonable doubt of Haywood’s guilt, but he also hoped to shift the blame for Steunenberg’s grisly murder from Haywood onto McParland. It was a time-tested method, so powerful, in fact, that it was used again during the next two days—by Clarence Darrow.
Darrow’s closing argument—which lasted four sessions and totaled eleven hours and fifteen minutes—was one of the greatest plays on the emotions of a jury in American legal history. This consummate orator and rhetorician had a deep understanding of human nature, and he used sarcasm, indignation, pathos, invective, sorrow, humor, vituperation, and outrage to appeal to the sentiments of the jurors. His goal was to attack Orchard, Hawley, and McParland so viciously—while presenting Bill Haywood and the WFM in a positive light—that the jury would not want to convict the defendant but rather to blame those who had brought the charges.
Throughout his two-day speech—much of it in weather so hot he took off his coat and talked to the jury in shirtsleeves, with one thumb crooked behind his suspenders—he paced continuously. Sometimes he faced the gallery, sometimes he was so close to the jurors—seemingly addressing each individually—that one of them asked “that he stand further away, as it gave some of the jurors a headache to have him stand so close to them and talk so loud.”87
Just as he wandered back and forth through the courtroom, so his impassioned speech wound around and around but always returned to the same themes. Orchard was a liar, and Hawley was even worse, “bughouse” for believing a word the man said. He again mentioned Orchard’s theoretical financial motive for murdering Steunenberg. But none of the tales was worse than Orchard’s supposed religious conversion—a fabrication and irrelevancy brought about by “Father McParland.” Treading a dangerous line with a strongly Christian jury, Darrow cried:
[H]ere is a piece of work, gentlemen of the jury, that will last as long as the ages last—McPartland’s conversion of Orchard! . . . From the beginning of the world was ever any miracle like this performed before? Lo, and behold! A man who has spent his life as a Pinkerton—isn’t a preacher—he has never been ordained except in the Pinkerton office. . . . [A]nd he [Orchard] meets this Pinkerton detective who never did anything in his life but lie and cheat and scheme, for the life of a detective is a living lie, that is his business; he lives one from the time he gets up in the morning until he goes to bed; he is deceiving people, and trapping people and lying to people . . . and Harry Orchard is caught, and he meets this famous detective who speaks to him familiarly about David and St Paul and Kelly the Bum. . . . And then he holds out the hope of life and all that life could offer to Harry Orchard, and lo and behold, he soon becomes a Christian. Now, gentlemen, Savonarola, who was a great preacher, and a mighty man in his day is dead. . . . John Wesley is dead. Cranmer is dead. Moody is dead. Pretty much all of them are gone. What is the matter with McPartland changing the sign on his office, and going into the business of saving souls instead of snaring bodies? If he could convert a man like Orchard in a twinkling of an eye, I submit he is too valuable a man to waste his time in a Pinkerton detective office trying to catch men. . . . A man who could wash Harry Orchard’s soul as white as wool need not hesitate at tackling any sort of a job that came his way. He is a wonderful detective, but his fame as a detective would be eclipsed in a moment if he would go into the business of saving souls instead of catching men.88
Darrow also claimed time and again that there was a plot by the mine owners to kill Bill Haywood, the WFM, and the labor movement. And he vehemently insisted that violence on behalf of labor was justified. “I don’t care how many wrongs they committed,” he said. “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 . . . how many brutalities they are guilty of. I know their cause is just.”89
But somehow, Darrow always made his way back to the same person:
I might suggest to Mr. McPartland, the wise and the good, who quotes the Bible in one moment and then tries to impose upon some victim in the next, who quotes Scripture in one sentence and then lies in the next, who utters blessing with one word and curses with the next, I might suggest to this good man that William Haywood has a soul, Moyer has a soul, Pettibone has a soul. . . . Do you suppose McPartland is interested in Haywood’s soul? Do you suppose he is interested in Moyer’s? Do you suppose he is interested in Harry Orchard’s? Do you suppose he is interested in his own? Do you suppose he is interested in anything except weaving a web around these men so that he may be able to hang them by the neck until dead? And to do it, like the devil, he quotes Scripture. To do it, there isn’t a scheme or a plan or a device of his wily, crooked brain that he won’t bring into action, whether it is the Bible or detective yarns—there is none too good for McPartland.90
Darrow was still at it late in his closing statement. “McPartland is not under indictment. Mac is too slick,” he said. “He is the head and the front of this prosecution. He is the father confessor of the greatest criminal of modern times. He is the man who has brought every witness into this court room. He is the man who knows whether Harry Orchard was promised immunity. . . . He has been connected with this case from a time long before the case arose. . . . Why does he sit around the lobbies of the hotels . . . and weave his webs everywhere between here and Colorado? Why . . . not dare to come on the witness stand? He isn’t indicted, although he ought to be.”91
• • •
Perhaps any other speaker would have been intimidated by following the magnificent addresses of Hawley, Richardson, and Darrow. But not the senator from Idaho. When court reconvened that evening, Borah began gently, eloquently, making clear the true point of the trial. “There is here no fight on organized labor,” he said. “This is simply a trial for murder. Frank Steunenberg has been murdered, and we want to know. A crime has been committed, and the integrity and the manhood of Idaho wants to know. An offense which shocked the civilized world has taken place within our borders, and unless we went about it earnestly and determinedly to know, we would [be] unfit to be called a commonwealth.”92
He then quietly chastised the emotive methods of Richardson and Darrow. “If I were fighting for the cause of labor I wouldn’t seek to engender hatred and ill will, faction against faction, or class against class; I would not inveigh against law; I wouldn’t inveigh against society; I wouldn’t inveigh against every man who owned his farm or his home; I wouldn’t inveigh against Christianity, because without those things the laboring man goes down into slavery and dirt.”93
During that evening and throughout the next day, Borah logically addressed the salient points of the case: He indicated that there was a conspiracy of an inner circle to kill Steunenberg, and he argued that Orchard was part of that conspiracy, stating his belief that Orchard was telling the truth and suggesting there was sufficient corroboration to connect Haywood to the crime, quite apart from Orchard’s confession. The next evening, having spoken for nearly
six hours, he concluded his address. “I have heard the best of them all over the country,” said Haywood, “but Borah beats them all.”94
What would prove to be the key point in the entire trial came the next morning, when Judge Wood spent about an hour giving the jury their instructions, a list of sixty-five points of law, the majority of which dealt with presumption of innocence, burden of proof, the need for corroboration, reasonable doubt, and circumstantial evidence.95 The most important of these was Instruction 34, which in part stated: “[A] person cannot be convicted of a crime upon the testimony of an accomplice unless such accomplice is corroborated by other evidence which of itself, and without the aid of the testimony of the accomplice, tends to connect the defendant with the commission of the offense charged.”96 By his restrictive instructions, Wood had, many would later say, effectively eliminated any possibility of a guilty verdict.97
That, however, is not the way it seemed on Saturday, July 27, while the jury debated behind closed doors. At that point, the prosecution, the majority of the reporters, and apparently most of the locals thought a guilty verdict was on the way. Even Darrow believed so. When a reporter said to him, “Well, it takes twelve,” he responded, “No, it only takes one”—showing that he held out a forlorn hope that one man would vote for acquittal, thereby creating a hung jury.98
Darrow did not have long to agonize. Early Sunday morning, after about twenty hours together—all in all, a relatively short time by the standards of such an important trial—the jury reported that a verdict had been reached. When the hastily summoned judge, attorneys, reporters, and others were assembled, the jury foreman, Thomas Gess, passed Wood an envelope. The judge opened it, looked at it incredulously, and said, “There’s nothing here! You gave me the wrong envelope, Mr Gess?” The embarrassed Gess took another from his inside breast pocket, and passed it to the judge. Wood glanced at it and handed it to the clerk, who read aloud: “We the jury, in the above-named case, find the defendant, William D. Haywood, not guilty.”99
Pinkerton’s Great Detective Page 45