by Dick Kreck
The court’s decision went on to say that “the evidence shows without question that von Phul knocked the defendant down with his fist by a blow so violent that [the] defendant struck the floor with great force. But if Henwood shot without taking into consideration the presence of others in the
barroom, the court holds that he was not guiltless. But with the question of manslaughter taken from the jury, there was nothing left for the jury to do but find [the] defendant guilty of murder. They were thus deprived of their exclusive province to determine the grade of the offense from the evidence in the case.”
Henwood waited nervously in the County Jail for the court’s decision. He paced and puffed on his pipe. The phone rang. Jailer Jack Hardy called Henwood to the phone.
“Hello, this you, Henwood?” asked Bottom. “This is Mr. Bottom. Your case has been reversed and remanded.”
A joyous expression on his face, Henwood turned to Hardy. “I’ve got a new trial!” He slammed the receiver down and began to dance about the room. “I knew it was coming! I knew it was coming! I have waited for it every day of my twenty-two months imprisonment. I am confident that I will be freed. My first trial was a farce.” Prisoners throughout the jail cheered his good news as Henwood vigorously shook hands with those near him. His mood grew somber when one of the assembled reporters asked, “Will Mrs. Springer testify in your favor?” “I do not know where she is,” he said, dodging the question. “I have heard nothing at all from her since my trial. No, I have never written to her.”
Bottom next appealed to have the von Phul charges dropped because, under Colorado law, if a defendant is not tried within three terms of the sitting court, the charges become invalid. His strategy of delays and repeated appeals worked. On February 24, 1913, Judge Charles C. Butler agreed, ruling that Henwood should be set “at liberty,” a vague bit of legalese that made it unclear whether he should be let out of jail or merely no longer held liable for the charge. One minute after Judge Butler handed down his decision, new District Attorney John A. Rush, elected the previous fall, refiled the murder charge in the von Phul matter. News of the dismissal barely caused a ripple in the local press. The assassinations of deposed Mexican president Francisco Madero and vice president José Maria Pino Suarez dominated the city’s papers. The reversal of Henwood’s fortunes was buried on page seven of The Denver Republican. He was no longer front-page news.
Sensing that he might succeed in freeing Henwood
altogether, Bottom asked the court to release Henwood on both the Copeland and von Phul charges, claiming that since the charge of killing von Phul had been dismissed, putting him on trial again in the Copeland killing would constitute double jeopardy.
Judge Butler took up the matter in March. The Post already had made up its mind. In a page-one editorial, the newspaper, whose attorney, Bottom, was also the lead attorney for Henwood, proclaimed, “If Harold Henwood, who shot and killed Sylvester von Phul and George Copeland in Denver in May 1911, is allowed to go free by the courts on some technicality it will be to the lasting disgrace and dishonor of Colorado.” It concluded, “Henwood must and will be punished. We have not reached such a pass in this state—and by God’s mercy we never will—when a mere official technicality can give to such a man as Henwood immunity for the deliberate killing of two defenseless citizens.”
Judge Butler heard arguments for a week. It was a textbook lesson in microscopic legal fine points. Both sides cited numerous cases and authorities. Henwood took so little interest in the arguments, he nodded off several times during the hearings.
Rush and Bottom argued vehemently. Rush accused Bottom of failing to prepare for the von Phul case, charging that he had never brought his witnesses to Denver for the trial. Bottom responded by putting himself on the stand, where he was forced to admit that he had not called any witnesses, but denied that he ever asked for a delay in starting the trial. John Chiles, assistant district attorney under Elliott, took the stand and said that it was Bottom, not the prosecution, who requested the delay in the von Phul trial. Bottom was furious. “I did not ask the district attorney, or any of his men, to put the case over.” He called on Henwood, and asked if he had ever heard Bottom ask for a delay. Henwood swore he hadn’t. Then Rush took over, pressing Henwood to reveal the names of the witnesses whose expenses he had paid so they could come to Denver and testify on his behalf.
Rush: Who were these witnesses?
Henwood: I refuse to answer.
Bottom: You may answer.
Henwood: I positively refuse.
Rush: I ask that the court order the witness to answer the question.
Judge Butler: You must answer the question, Mr. Henwood. Your attorney advises it.
Henwood said nothing.
Judge Butler: You may write the names of the witnesses on a piece of paper and hand it to the district attorney, if you do not care to make their names public.
Henwood hesitated, then complied with the judge’s
suggestion.
Rush and Bottom weren’t through. Bottom asked, loudly, of Rush, “Are you questioning my veracity?” “I certainly am,” Rush retorted. Everyone began to shout. Judge Butler had heard all he wanted to. “I don’t think all this matter is necessary, gentlemen. Let us get down to business.”
The road to avoiding another trial in the Copeland death was rapidly becoming more slippery for Henwood. On March 29, Judge Butler affirmed his previous decision not to free Henwood, saying that while he dismissed the von Phul charge on a technicality, “the question of Henwood’s innocence was not considered.” He also censured the late district attorney, Willis Elliott, who conducted the state’s case against Henwood in the first Copeland trial. “As soon as I came over to this court, I became aware that very loose methods had long prevailed in the work of the court clerk and the former district attorney, especially the latter. I was never so struck with the looseness of that system as I have been today. There are no adequate records of some of the transactions in this Henwood case under the former district attorney.” He ordered Henwood to face a second trial for killing Copeland, beginning on May 28, 1913.
Two years in jail since his arrest the night of the shooting and a bitterly fought trial that ended in his conviction had taken its toll on the salesman and promoter. Henwood’s handsome features had grown sallow, his eyes sadder, his slicked-back hair thinner until he was nearly bald. Frances Wayne, who closely followed Henwood for The Post, remarked on the day he appeared for his second trial, “Every trace of color has gone from Henwood’s face. The short, crinkled nose is pinched and waxy; the pouting, girlish lips have a purple tinge which when they part, show white gums and teeth made yellow by comparison.
“The eyes of this man, long imprisoned and overanxious, are sunk in their sockets and circled by heavy shadows. His appearance is ghastly, uncanny.” Henwood experienced
frequent periods of depression, and his well-known temper flared from time to time, leading to confrontations with guards and other prisoners.
He did not lack creature comforts in his cell. Unlike other prisoners, housed two to a cell, Henwood lived alone. His steel-walled cell was on what was known formally as “the lower west tier” and informally as “Millionaire’s Row’’ or “Banker’s Row,” isolated from the clanging and banging of cell doors and the comings and goings of other prisoners and their visitors. Behind intersecting bars, which formed rectangles floor to ceiling, Henwood outfitted his small space with humble furnishings—pictures, books, and knickknacks. Among his family photographs was one of his
fifteen-year-old daughter, Frances, who wrote to him often. “To the right and across the wall extended over a regulation jail couch bed, is a pine board shelf,” observed Post reporter James R. Noland, who made frequent visits. “It is loaded with books and various articles, including bottles of medicine, tobacco jars, a pipe or so, an alarm clock, two or three family portraits, the portrait of a former friend in the social world and many magazine
s.”
Friends, men and women, were allowed to visit night and day. They brought him gifts, including boxes of cigars, bottles of wine and liquor. In the early days, flowers from female admirers were delivered frequently. As time wore on, however, visitors became fewer, and Henwood relied more on his own amusements. Reading became a passion. He particularly favored Arctic adventures. Titles on his primitive bookshelf included Marchward Over the Ice, The Arctic Prairies, and The Grizzly Bear. He often stayed up until three or four in the morning, reading about places he would never visit, and often slept until noon.
At 10 a.m. on May 28, Henwood’s quest for freedom started over, with Judge Butler presiding. Attorneys lined up on the prosecutors’ side of the large table before the judge were District Attorney Rush and two of his deputies, Harry N. Sales and Charles T. Mahoney. Seated across the large table from them, in the custom of trials of the day, were defense attorneys John T. Bottom, Judge O. N. Hilton, and Henry Lubers, former speaker of the state House of Representatives.
Henwood was on trial a second time, not for killing Tony von Phul, his rival for the attentions of Isabel Patterson Springer, but for the death of Copeland, an unsuspecting bystander. Judge Butler, who had a reputation as a letter-of-the-law jurist, was certain to adhere to the Colorado Revised Statutes, which provided that “all murder which shall be perpetrated...by any act greatly dangerous to the lives of others...shall be deemed murder in the first degree.” Self-defense was virtually ruled out.
Jury selection was an aggravating, slow-moving process. Publicity in the 1911 trial and anticipation of the retrial made it difficult to find any man who hadn’t formed an opinion on Henwood’s guilt or innocence. The courtroom was crowded, potential jurors on one side, “men and women, boys and young girls who are always on the lookout for the erotic and sensational” jammed into the few chairs on the other.
The building of a jury dragged on for a week as dozens of prospective jurors were questioned and rejected by one side or the other. Eight men were selected fairly quickly, but the remaining four represented a series of stumbling blocks.
As days ground into a week, prosecutor Rush, adept at bending the newspapers to his purposes, vented his frustration to reporters. “I want to get a jury and have this case started,” he grumped. “I’m tired of all this nonsense. The more the case is tried in the newspapers before it is tried in court the harder it will be to get a jury. Let us get down to the testimony in the case. I want to try the case in court and not in the newspapers.” Quickly mollifying his audience of news gatherers, he said, “I don’t blame the newspapers. There is hardly a man we may call as a juror who has not formed an opinion about the case.”
Nearly two hundred men, in lots of one hundred, were called for the jury pool. The selection process was so tortuous that juror Thomas McAleer napped repeatedly. “Caressed by the tsetse bug,” he was dismissed at the urging of Rush,
causing the first of many clashes between defense attorney Hilton and the court. “Such an arbitrary use of discretionary power has never been recorded in the history of court trials,” Hilton complained, perhaps overstating the case. “There is no law on the books which says a juror may not go to sleep and there is no evidence here, save the word of the district attorney, that the juror did go to sleep.” Judge Butler responded curtly that he had seen McAleer drop into a
prolonged slumber.
After eight days of wrangling, both sides were satisfied. The jury consisted in the main of young men, eight of them married. They were William F. Backes, automobile salesman; John T. Brattin, stenographer; John C. Brodie, cut-stone contractor; Timothy Calahan, creamery salesman; William T. Eccles, salesman; Adolph T. Hart, grocer; Marcus E. Johnson, accountant; George H. Layton, millwright; Charles McAllister, clerk; Harl Morton, clerk; Benjamin F. Slack, brass manufacturer; and William Seltzer Jr., broom manufacturer.
Though spectators continued to pack the courtroom, the number of curious men and women milling under the trees of the courthouse grounds was greatly diminished. The trial itself was, in large part, a rehash of the 1911 proceedings. Some witnesses, including the Springer family chauffeur Thomas Lepper, and Cora Carpenter, the housekeeper who claimed to have found Mrs. Springer’s ripped nightgown after Henwood’s all-night visitation, could not be located. Carpenter’s testimony from the 1911 trial was read into the record.
The most effective witness for the prosecution was a man unable to appear at the first trial, Colorado Springs businessman James W. Atkinson, whose left leg was shattered by one of Henwood’s bullets, leaving him permanently unable to walk unaided. In one of the more bizarre moments of the trial, the bulky Atkinson entered the courtroom on crutches and, as he paused at the doorway, a flash of lightning lit the room and a tremendous clap of thunder shook the building. Clad in a white suit, his pale skin and white hair gave him the appearance of a specter. His gigantic figure seemed to fill the doorway.
Assisted by several men, Atkinson hobbled to the witness chair as the jury watched closely. Once seated, he looked directly at the jury, never giving Henwood the briefest glance. Henwood stared into the tabletop in front of him, content to make notes, as he often did, with a little black pencil. The jury listened raptly as Atkinson described what he saw the night of the murder.
I saw Henwood put his hand under von Phul’s face. He said something I didn’t hear. Almost immediately afterward von Phul struck him. There was a man in the way and I didn’t see the blow, but heard it hit his face. Henwood fell down, first on his hips and then full length on the floor. As soon as he fell I said to Copeland, “Let’s get out, there’s going to be a fight.” Henwood put one hand on the floor and started to rise, reaching for his hip pocket. He came to a standing position and then pulled his gun. One or two men attempted to grab hold but he shook them off and fired.
Questioned by Rush as to von Phul’s position at the time, Atkinson didn’t hesitate. “He had turned back to the bar with his right hand resting on it.” In short, von Phul never assumed the threatening position Henwood claimed. It was a crushing blow to the defense’s case.
Atkinson told how he had been struck by one of Henwood’s shots. “I was five or six feet from the bar when I was hit. I took one or two steps. My leg hurt and I went down. I hopped a couple of times and said, ‘My God! I’m shot!’ By that time everybody was out of the bar except Henwood. He picked up his straw hat and then came over to me.
“He said, ‘I shot you?’
“I said, ‘Yes, you did.’
“He said, ‘Can I help you?’
“I said, ‘No, you’ve done enough for me already. Get out and leave me alone.’”
On June 9, the tension that had been simmering between the two teams of lawyers since the trial began burst into the open. Henwood attorney Lubers, who remained in the background through the early days of the trial, asked Judge Butler if he would excuse the jury so he could call attention to a statement credited to the district attorney in the previous day’s newspaper. After the jury left the room, Lubers raised a copy of The Post overhead and said, “As your honor perhaps knows, it will be necessary for the defense to produce evidence that von Phul had made threats against the life of Harold F. Henwood, the defendant. And where else can we seek those witnesses except in the environment wherein they live?” Lubers’s allusion was to two prostitutes, Katherine Clark and Gladys Parker, who worked at Verona Baldwin’s house at 2020 Market Street and were willing to testify that they heard von Phul, whom they knew only as Tony, make threats against Henwood.
“It seems to the attorneys for the defense,’’ Lubers
continued, “that Mr. Rush, knowing this, willfully sought to intimidate those witnesses and frighten them from the stand by giving this purported interview, which was published in The Post of yesterday.” Gripping the paper tightly, he read a quote by Rush, “‘The statement has been made that women of the underworld will be put on the witness stand to bolster up the defense, and that a number of new
witnesses will be sprung. If these witnesses are all right they, of course, have a right to testify, but I will not stand for a repetition of the Gertrude Patterson case [the 1910 murder trial in which a last-minute witness won Mrs. Patterson her freedom]. The grand jury is in session and any attempt of that kind will be quickly met.’’’
“That, your honor,” shouted Lubers, “seems to me to be nothing more than a deliberate attempt to intimidate
witnesses for the defense. The office of the district attorney is the most powerful in the state, and we object to it using its power in such a manner as to drive our witnesses away, to frighten them. We want the court to admonish the district attorney to stop interviews.” Rush squirmed in his chair but said nothing. (The two women did testify two days later, although they were discredited by the prosecution, which implied that they had been put up to it by a Wyoming madam. Rush hinted, strongly, that the madam and Henwood were frequent companions in his cell.)
No sooner did Lubers fall silent than Bottom rose to the attack. “And that’s not all! I charge that the district attorney has been calling up men who have been favorable to the defense and warning them away from seeking to aid the defense in the finding of certain witnesses. I want it stopped. I...”
Rush could stand no more. Leaping to his feet, he said, “That’s not true! Name one!”
“Felix O’Neill!’’ Bottom responded. “You called him up and told him to stop working in the interests of Henwood. You told him that if he knew of any evidence he should be helping the district attorney’s office by concealing...”