by Dick Kreck
“That’s an untruth!”
“And you called up a newly appointed constable and told him to stop helping Henwood—and he had helped him before he had been appointed a constable.”
“Yes,” Lubers chimed in, “and you’ve been giving out the letters of Mrs. Springer every day to certain newspapers, trying to bolster up your own case!”
Rush, waving his arms wildly, shot back. “That’s an untruth, an untruth, an untruth!”
“Prove it,” said Lubers.
Before Rush could answer, Bottom renewed his attack. “And what’s more, I hereby charge that John A. Rush, the district attorney, inspired another article, printed some time ago [on page one on March 10, 1913, which, among other things, proclaimed, “Henwood must and will be punished”] in The Post and headlined ‘Thou Shalt Not Kill!’”
“That’s not the truth,” said Rush, when he could get a word in.
Bottom was furious. “Your honor. If John Rush charges me again with telling an untruth, I’m going to fight him, and fight him right in this courtroom!”
“Any place you say,” seethed the district attorney.
The audience burst into loud laughter, causing Judge Butler to bang his gavel repeatedly and shout, “Gentlemen! Gentlemen!”
Chastened, the two attorneys debated, briefly, the merits of each other’s witnesses and the punishment for perjury and intimidation of witnesses.
Growing angry, Bottom thundered, “He is a liar! He is a scoundrel!” Bottom swept the room with his arm and concluded, “He is unworthy to be considered as a man among men!”
The judge’s gavel crashed down time after time, and he again admonished the attorneys, “Gentlemen! Gentlemen!”
Finally, the judge, who gave both sides, particularly the defense, great latitude in presenting their cases, even allowing Henwood to ramble at length about his motives, could stand no more. After a long silence while the feuding counsels stared at each other, he said, “We are engaged in the trial of a case, the most serious known to law, wherein the penalty may be death. Therefore we should be most careful. There was a time when there was only one tribunal, the court. Now, it seems, there are two. Lately it has become popular with lawyers to seek to influence the public through the newspapers and, at some later time, take their case to court. It seems that the attorneys have deemed it necessary to try this case in the newspapers. Efforts have been made by both sides to educate the public.
“It was unfortunate that [Rush’s] interview was granted. While his motives, I am sure, were of the highest, his interview might be construed by these witnesses as a threat—and it is therefore unfortunate. Therefore, the court would ask that in the future, the attorneys for both sides refrain from such interviews and confine themselves to trying this case in the good, old-fashioned way—through sworn witnesses on the witness stand.”
With the judge’s admonition out of the way, Henwood took the stand in his defense and told basically the same story he told in the first trial, that he feared for his life because of repeated threats made, directly and indirectly, by von Phul. As Henwood retold his tale, he wandered around the courtroom, even resting his hands on the jury box railing and addressing the jurors. He reiterated that his relationship with Mrs. Springer was strictly platonic. He never, he swore, tore her nightgown. And he came back to the reason he fired the shots. “Because I was in fear of my life, because of threats, because of the attitude of that man, his brutality, his size—he was of powerful, athletic frame—everything tended to give me the idea he was going to take my life.”
Four days after his outburst at the attorneys for both sides, Judge Butler revisited the issue. First, he excused the jury. Leaning forward on the edge of his seat, he began a most extraordinary oration, one not seen previously in the West Side Court, where lawyerly free-for-alls and histrionics were the norm.
“I have something to say to counsel now present and to all lawyers practicing before this bar as to the conduct of cases. The practice in this court is of a solemn nature, since in many instances the charges are so grave, the penalties so far-reaching. That a jury may arrive at a just estimate of the evidence and thus render a fair verdict between the defendant and the people, every means should be put forth to attain the facts in a calm, dispassionate way.
“There are various ways of examining witnesses. There is one method employed by attorneys today—the vigorous method. Sometimes in their zeal counsel approach the witness with voice raised, hands shaking, arms upraised and rush questions at him which tear him to pieces.
“Hereafter, I will not tolerate in this court that form of examination. Here there shall be no third degree. An examination of witnesses by counsel is supposed to be an intellectual contest, with the odds always against the witness. Any tendency hence forth to bulldoze or intimidate or terrorize witnesses will be checked and the court will order the immediate imprisonment and fine of any attorney who continues this way.
“Anything of a vaudeville nature, anything calculated solely to amuse the audience will immediately be checked by the officers of this court. Mr. Bailiff, call the jury.”
In the days that followed, many of the same witnesses were called and recounted information they gave in the 1911 trial. One witness was notably absent—Isabel Patterson Springer. Now living in the East, she was reported at various times to be on her way to Denver or hiding in Colorado or traveling in South Africa or Europe or living in Chicago or New York City.
Bottom felt certain that Isabel, whose appearance on the stand two years earlier had done nothing to support Henwood’s case, could convince this jury that Henwood had acted honorably. The prosecution was not about to let that happen. In a brilliant stroke, Rush used newspaper interviews to warn that if Isabel returned to Denver and changed even a comma of her testimony she would be arrested for perjury. In addition, it was made clear that if she took the stand on Henwood’s behalf, all her “foolish little letters” would be put before the public’s prying eyes. “They will prove the degeneracy of three people, and prove it conclusively,” said Rush. Over the objections of the defense, Mrs. Springer’s testimony from the 1911 trial, the one in which she had given little support to Henwood, was read into the record.
On June 14, seventeen days after the second trial began, Judge Butler called the attorneys together to discuss his instructions to the jury on possible verdicts. They spent until six that afternoon going over what each side wanted to be included—first- and second-degree murder, voluntary and involuntary manslaughter, or acquittal. Self-defense was not an option, though Bottom and Lubers argued vigorously for it to be included. The Denver Times, adding a bit of humor to the discussion and perhaps still chafing under the judge’s complaint that the case was being tried in the newspapers, was of the opinion that “Judge Butler’s impression from the discussion was that the instructions—to suit all the attorneys—would read about this way:
1. The defendant is guilty.
2. The defendant is not guilty.
3. The defendant is neither guilty nor innocent.
4. The costs of this case shall be assessed against the
newspaper reporters, to be paid out of their salaries
at the rate of $100 a week.
Attorneys for both sides assured the judge that they were coming to the end of their long lists of witnesses waiting to appear. But Bottom and his assistants had one more surprise. They unleashed it the next day when John Springer, the wronged husband and Henwood’s onetime business partner, took the stand on Henwood’s behalf.
John T. Bottom. (Courtesy of the Denver Public Library, Western History Department)
Frank Henwood’s County Jail cell allowed him many “luxuries,” including two homemade shelves that held cigars, photographs, and gifts from admirers. (The Denver Post, May 28, 1913. Courtesy of the Colorado Historical Society)
James W. Atkinson, assisted into court to testify. (The Denver Times, June 7, 1913. Courtesy of the Colorado Historical Society)
Charl
es C. Butler, the judge at the second Frank Henwood trial. (The Denver Post, June 24, 1928. Courtesy of the Colorado Historical Society)
Chapter Ten
An Old Friend: “Always a Gentleman”
When John Springer mounted the witness stand to testify on June 15, 1913, he was no longer the energetic, highly political club man who had become a well-known figure in Denver. His political career and his reputation as a bachelor and an escort of beautiful women behind him, Springer looked older than his fifty-three years, despite his natty clothing. His face had grown paunchy, his eyes appeared tired, and he was nearly bald. The strain on him since the shooting at the Brown Palace and the subsequent scandal weighed him down.
That he testified for Henwood was an astonishing turn of events because he had remained aloof from the entire affair. When his wife’s tangled relations with Tony von Phul and Frank Henwood came to light, Springer distanced himself from the case, and from her. “Mrs. Springer made mistakes,” he told a reporter in 1911. “But why should I, as the head of one of the largest institutions in the city, be brought into this unfortunate affair? If Mrs. Springer has sinned, she alone must answer for those sins.”
Except to deny emphatically that he had filed for a divorce (which he had), he remained mum during the very public settlement negotiations with his wife that were carried on in the city’s daily newspapers. “I say to you as I have said to all others who have asked me to make a statement—that I positively refuse to be interviewed. I can’t see why this affair should be kept up.”
Not only had he declined to testify at Henwood’s first trial, he didn’t attend any of the sessions at the West Side courtrooms between June 19 and 29, 1911, preferring to conduct business as president of the Continental Trust Company and to manage his horse and cattle ranch. Yet, two years later, he strode confidently into Judge Butler’s court, convinced at last in his mind that Henwood had acted on his behalf against von Phul and prepared to present his former business associate as a paragon of civil behavior.
He entered the packed courtroom the picture of up-to-date fashion. “Mr. Springer [was] smartly dressed, self contained,” noted The Post. “He wore a spring suit of soft gray wool, his red-socked feet were encased in white oxfords—latest, flat-heeled model—a red tie was held by a dreamy pearl in front of the high, chokey collar. In one nervous hand Springer twirled a cane and in the other held a pair of buff-colored suede gloves.’’
Seated a few feet away at the defendant’s table,Henwood kept a close eye on the man whom he considered one of his closest friends in Denver, though they had not spoken to each other in more than two years. Henwood didn’t look well, and, in fact, had been suffering from a cold, the result of his habit of keeping his cell window open wide winter and summer. He leaned toward his attorney and said softly, “For two years I’ve waited for this.” He sat back and listened.
Defense attorney O. N. Hilton began quizzing Springer on his views about the relationship between Henwood and the former Mrs. Springer:
Question: Did the defendant at any time, on any occasion, treat Mrs. Springer with impropriety?
Answer: He did not.
Q: Had Henwood been your guest before?
A: Yes.
Q: What had been his course of conduct as far as it came to your attention, on each and every occasion, to Mrs. Springer, your then wife?
A: Mr. Henwood always was a gentleman.
At that moment, a young woman in the audience clapped her hands. She was ejected from the courtroom.
During his time on the witness stand, Springer pointed out that he, his wife, and Henwood often met socially, at their home on Washington Street and “at the Brown Palace Hotel, at the theater, at the bank, at the ranch and at many other places.”
His testimony complete, Springer was excused. In one of the most riveting moments of the trial, he walked immediately to Henwood, put his left hand on the prisoner’s shoulder, and extended his right hand. “Hello, Frank. How are you, old fellow?” he said with a smile. For a fleeting second, Henwood appeared to lose his composure, his eyes tearing up, then he rose and took Springer’s hand. “Pretty well, thank you, John. And thank you, John.”
Everything Springer told the jury reinforced Henwood’s claims that he was acting only as the older man’s friend, to spare him the embarrassment of a court case about the conduct of his wife with von Phul. For Henwood, the public reuniting of the two men came two years too late. If it had taken place in the 1911 trial, the outcome almost certainly would have been different.
Prosecutor Rush wasted no time heaping scorn on Springer’s courtroom declarations. He agreed that Springer’s testimony about Henwood’s gentlemanly behavior toward Isabel was correct “within the witness’s knowledge.”
The last of the witnesses was heard on June 17. All that remained before the jury began its deliberations were Judge Butler’s instructions to the jury and closing arguments by both sides. Despite the drawn-out trial, Henwood continued to believe that he would be set free. “I think I have a good chance of being acquitted,” he told The Denver Republican. “I have looked at the case from every angle, and while I realize there is damaging testimony against me, I believe we have it offset by testimony offered by the defense.
“I have not worried as much over the outcome of this trial as I did over the last for I am getting a squarer deal all ’round. The prosecuting attorney is a bit more offensive in this trial than was District Attorney Elliott, but Judge Butler is very much fairer than was Judge Whitford, before whom I was tried before.”
As the day’s business began, Judge Butler carefully explained its options to members of the jury. He instructed them that if they found Henwood guilty they must state in their verdict whether they find him guilty of first- or second-degree murder, or of voluntary or involuntary manslaughter. In the case of first-degree murder, he added, they must fix the penalty of death or life imprisonment. Self-defense was not mentioned.
At 10:40 a.m., the doors to the courtroom were thrown open and a large crowd, as many as five hundred people, began forcing its way inside, tearing a screen door off its hinges. The room filled quickly with spectators, and many were left outside as the closing arguments began.
Prosecutor Charles Mahoney spoke first, and held nothing back, attacking not only the “cowardly” shooting but Henwood’s character. “Two men are now in their graves and one is crippled for life as a result of Henwood’s cowardly act. And it was a cowardly act, for he shot Sylvester von Phul in the back. Henwood, the man who fired those
cowardly shots into von Phul’s back, lived off of John Springer and his wife.
“He has never sat in the prisoner’s dock,” Mahoney noted, attempting to show that Henwood was given special treatment throughout his time in court. He was entirely right. Unlike most prisoners, confined to a chair in a small enclosure, Henwood was allowed to sit between his lawyers at the counselors’ table and even allowed to wander around the courtroom. He often stood near the open windows to get relief from the stuffy air.
“Sometimes the heart of the prosecutor goes out to some of those poor wretches who have no breeding, no friends and no money to defend their cases. But we have no sympathy for this man, well educated and cultured, who tells us of the strength of his powerful eye and then fires cowardly shots into this man’s back.” He talked scornfully of Henwood’s “commanding presence. He used this presence to strike a good side of von Phul, as he claimed. And he did strike a good side—with a .38 caliber bullet.” Springer’s last-minute and cordial testimony on behalf of Henwood, followed by a warm handshake in full view of the jury, was treated with scorn. “That incident, gentlemen of the jury, was an insult to your intelligence.”
As he neared the end of his forty-minute summation, Mahoney took von Phul’s bloodied brown-checked coat in his hands and held it up before the jury. The prosecutor tore into Henwood’s story that he acted in self-defense. “If Henwood thought von Phul was a dangerous man, why d
id he follow him up, and follow him up, and follow him up? I say that Henwood provoked that quarrel in the barroom of the Brown Palace Hotel so that he might murder him. I say that he was the aggressor in this quarrel. And yet this defendant attempts to make the plea of self-defense!
“I have to say this, that Henwood provoked this quarrel, that he shot von Phul in the back, that he shot at him and kept on shooting, even after von Phul had gone behind other men; but just the same, Henwood kept on shooting, and in doing so he shot George E. Copeland and sent him to his grave; and this, I say, was murder in the first degree.”
Defense attorney Lubers followed and focused immediately on the prosecution’s attitude toward his client. “I knew they were going to ask for a verdict of murder in the first degree. I knew it from the vindictiveness and malice they extended from the time that the first juror was called to the box until the last witness in rebuttal had been examined. They must have another notch in their pistol. Henwood’s life must be delivered to them, in spite of all the evidence that has been adduced at this trial.”
Lubers, too, put von Phul’s coat before the jury, arguing that the pattern of the bullet holes could be made only by the dead man reaching for his hip pocket and a revolver. Springer’s testimony, he said, “was a vindication for Henwood—a real vindication. It showed that he was not a breaker of homes, but a protector of homes.”
There was a five-minute recess, then Lubers, his powerful voice loud enough to be heard by those gathered on the lawns outside the courthouse, asked the jury’s mercy. “We want you to give a verdict that you will not be sorry for, and remember that if there is a verdict against this defense you must give it with your eyes before God Almighty, and give it in such a way that when you pass before the Great Judge you may go there with a heart free and with the feeling that his guilt was absolutely beyond a reasonable doubt.