by Dick Kreck
For Harold Francis Henwood, two years and a wide social chasm lay between the comforts of the Brown Palace Hotel and the gray steel cell where he had become an
erratic and, perhaps, mentally unbalanced recluse. A life filled with violent encounters and an inability to stay in one place for long pointed to a man with serious psychological problems. His moods in prison rose and fell, depending on the trends of his trials. Sometimes, he would lose control for no apparent reason.
A heavy black beard made him a stranger even to those who knew him. They might not have seen him anyway. As he worked, he always kept one eye on the main door to the jail. When he spied someone he knew, he scurried into his cell and remained there until they left. Warden John Kenney was instructed not to let anyone visit unless Henwood gave
permission. He rarely gave it.
His routine never varied. Every morning at 6 o’clock, Henwood, a man for whom a roaming, will o’ the wisp lifestyle was habit, diligently swept and mopped the corridor and cells in the federal wing of the jail. It was a decided change for him. After his 1911 conviction for second-degree murder, Henwood lived a comfortable life in his small cell. He paid extra to have his meals specially prepared by the jail’s cook. Meals were sometimes delivered on fine china, accompanied by the proper silver, from the Brown Palace’s kitchen. He wore his own clothes instead of prison-issue green-gray overalls. He was allowed to wander the hall outside his cell, and he received guests and telephone calls at all hours. He spent part of each day outside his cell rocking in a large rocking chair sent by a friend. It was rumored that he frequently was turned loose on Friday nights to visit the city’s thriving houses “in which ladies of the evening cavorted and wine was consumed.”
The steel walls of his cell were plastered with pictures of his favorite outdoor recreation, fishing. On one wall were two primitive bookshelves, one with an inkwell and a paste pot that allowed him to clip and paste into scrapbooks stories about him and his trials. Below the shelves was a small
cupboard made from a packing case where he stashed gifts sent to him. His dark-blue suit and a new straw hat were hung carefully on a hanger. In one corner, a canary sang almost continually in its own prison.
After his funds ran out, he ate with other prisoners (a typical meal consisted of stew, black coffee, and bread without butter, all served on tin plates). He rarely saw friends and, most important, he began to understand that the chances of his life ending at the end of a hangman’s noose were growing each day.
Two days after the verdict was handed down, Bottom and Lubers began the appeals process again. The state was asked to spend twelve hundred dollars for transcripts in
a paradoxical effort to save Henwood from the death
sentence being carried out by the state. Henwood declared himself a pauper. His fiercest financial supporter, Senator McCue, perhaps sensing Henwood’s hopes fading, was
disinclined to continue bankrolling Henwood’s fight for life, meaning the state would have to pick up the tab to have 600,000 pages of court documents transcribed. Bottom and Lubers told the court that none of Henwood’s attorneys had ever been paid for their services, nor did they expect to be. Judge Butler put off a decision on the request until pending appeals had been decided.
Bottom’s contention that errors in the trial gave Henwood a third chance at freedom drew support in the press from other attorneys. A general feeling against the death penalty was rising, and members of the Colorado State Federation of Women’s Clubs were prepared to take the issue to the voters if Henwood failed to get a new trial. In the trial’s aftermath, Mrs. Edward P. Costigan, the club’s president—who, in a small touch of irony, lived around the corner from John Springer in Capitol Hill—expressed the disgust that many society women felt about the scandal and about Henwood’s involvement in it. “While I am opposed to capital punishment and can’t repress a shudder of horror at even the thought of life imprisonment, I think that a man of Henwood’s stamp should suffer confinement for a long number of years. The thinking people have no illusions concerning Henwood’s character and no false emotionalism concerning him.”
Bottom plunged ahead with appeals. “More error exists in the record of this trial than in that of the first trial, the only difference being that the error this time was introduced by the district attorney and not by the court. I am more confident of a new trial this time than I was after the former trial.” On June 28, Bottom petitioned Judge Butler for a third trial,
citing twenty-seven errors committed in the course of the second trial, including the arrest of defense witness John T. Garver for perjury, the prosecution’s intimidation of witnesses, and the district attorney’s behavior, in court and in the newspapers. At the request of the district attorney’s office, which claimed it had not received a copy of the motion, Judge Butler postponed the hearing.
Henwood’s options and hopes were dwindling. On July 17, Judge Butler took up another of the condemned man’s appeals, but Henwood seemed to have lost interest in the proceedings. He strode into court with his usual confident air, a smile on his face, but two years in jail had taken its toll. His weight was down considerably, and his face looked haggard and nearly devoid of color. He quietly took his place between Bottom and Lubers.
The judge allotted each side two-and-a-half hours to present its arguments. The hearing lasted most of two days. The animosity that boiled over between Bottom and Rush during the second trial flared again. Rush began by submitting twenty-one affidavits disputing Bottom’s claims that members of the jury had expressed a desire to convict Henwood before the trial began. And he strongly defended his attitude in
presenting the state’s case. “The innuendoes and charges made in the motion for a new trial are wholly unsupported by the oath or affirmation of any person,” he said, adding that he filed his affidavit merely out of an abundance of caution. It was a clear, if indirect, attack on Bottom, with whom he had clashed several times during the 1913 trial, leading both men to be admonished by the judge to mind their manners.
Bottom attacked Rush and his efforts “to poison the minds of the jury. What jury would acquit this defendant with the prosecutor’s question, ‘Is this another Patterson jury?’ ringing in their ears? What right had he to say that Henwood was a home wrecker and that John W. Springer was his meal ticket?” He charged that Rush browbeat and “bully ragged” witnesses for the defense. He also asked that if an appeal were granted, that the trial be moved to another venue because it would be impossible to find jurors who had not made up their minds to Henwood’s guilt or innocence.
Rush launched a vicious counterattack, insisting that he was right when he called Henwood “a vagabond, a nomad, a rover, a parasite, a vermin, a leech who had fastened himself upon John W. Springer.” He added,
If the district attorney paints the defendant as a perfect angel he will not be criticized, but if he tells the truth he is attacked as an outlaw, not only in the courtroom but also in the public press. Talk about conduct of the case! According to [the attorneys for the defense] it might be all right for them to come in here with perjured affidavits, mutilated or forged records and a coat, which upon the face of it, shows that it has been cut with a knife. And another thing, it was a dirty trick of defendant’s counsel to have Springer walk down here and shake hands with the defendant. Talk about conduct of a case!
Rush accused Henwood’s lawyers of, in effect, falling asleep during the trial. Lubers leaped to his feet to protest. “Wait and see what I have to say,” said Rush. “If you keep your ears open you might get something through your noodle.” He pointed out that the judge declined to allow into the record many of his arguments. He also delivered something of an apology. “I confess that we attorneys, in our personal quarrels, acted like pickpockets and fishmongers [during the trial].”
Bottom’s rebuttal focused on Rush’s closing argument. He took particular offense to Rush’s statement relating to Henwood’s birth in
Italy—that “while he may not be an Italian he has at least inherited the racial freedom with a stiletto.” “The district attorney,” said Bottom, “slanders a whole race of people in order to prejudice 12 men to convict Henwood.” There were more charges and countercharges over bits and pieces of evidence that should, or should not, have been allowed into the trial. Judge Butler let both sides have their say.
The following Saturday was Henwood’s sentencing hearing, and it began with Judge Butler’s ruling on the request for a new trial. “During this argument I have wanted all to be said which could be said,” Judge Butler said. “I did not wish to have anything withheld from me. The benefit of every reasonable doubt was given to the defendant, and every reasonable objection by his counsel was sustained. It seems to me that the defendant has had a fair trial. The motion for a new trial will be denied.”
Henwood’s face betrayed no emotion. He stared impassively at the district attorney, then looked toward the gallery, which was almost empty, an indication of how the public’s interest in his case had waned since 1911. As the attorneys for both sides wrangled over a motion to stay the judgment, Henwood said to Bottom, “I’m going into the sheriff’s office to telephone. If you want me, I will be in there.” He strolled out of the courtroom, followed by an officer. He talked on the phone briefly, then stepped outside into a light rain and turned up his collar against the gloomy weather.
When Henwood reentered the courtroom, Judge Butler asked the defendant if he wanted to say anything. His face pale, his lips dry, and his voice quaking, Henwood had to support himself on the edge of the prisoner’s box as he read a statement:
As God is my judge, I did not enter that barroom with murder in my heart. It is not in fear of the sentence that awaits me that I protest my innocence. I was shooting in fear of my life. For those lives I have taken, if this life of mine could bring them back God knows they could have it. I want to say these things that my position may be known to the people. My mode of life has been different from the life of some men. Circumstances that looked bad for me were misunderstood. I have seen much of the world and I have always been taught to protect good women. My action in this matter was actuated by a desire to protect a good woman’s name. Your honor, I am ready for sentence.
Bottom tried again to delay the judgment, but Judge Butler brushed him aside. “These things have all been threshed out time and again. There has been nothing new brought out in this motion and sentence will be passed upon the defendant.” With that decision, Judge Butler pronounced his verdict:
The sentence of the court is that you be remanded to the custody of the commissioner of safety and ex-officio sheriff of the City and County of Denver; that within twenty-four hours you be taken by him, and delivered into the custody of the warden of the state penitentiary at Cañon City; that you be by the said warden kept in solitary confinement in the penitentiary until the week beginning Monday, October 27, 1913, ending Saturday, November 1, 1913; and that upon a day and hour in said week—to be designated by the warden—you be taken from said place of confinement to [a] place of execution within the confines of said penitentiary, and then and there be hanged by the neck until you shall be dead.
There was a ray of hope. Judge Butler continued, “The court has no discretion in fixing the penalty for murder in the first degree. That is a matter solely for the jury....
I believe that the death penalty should be inflicted only in the most extreme cases. The facts here, in my opinion, take this case out of that class, and I therefore recommend that the governor commute this sentence to imprisonment at hard labor for life.”
Back at the jailhouse, Henwood said he would refuse a commutation of his sentence from the governor, if one were granted. “What is death that I should fear it? Death has no suffering that I haven’t now endured. But death linked with dishonor—to know that you must die with all of the filth, the rottenness with which this case has been surrounded, to serve you for a shroud—it is unthinkable, and yet it is better to die even so, with your face toward the front and fighting to give your innate decency a chance, than it is to accept a
commutation of your sentence, which would amount to an admission of what the people said of you was true.”
Turning to warden Kenney, Henwood asked, “John, you’re not going to put me back in that death cell, are you? Surely you won’t do that, will you?” Kenney promised he wouldn’t. Henwood refused to discuss the case with gathered reporters, other than to say, “As long as there is life there is hope. There’s no use of my trying my case in the newspapers again, by the press and in court. My case has been stated. I can say only I still have hope, and I am not afraid.”
On December 23, Bottom asked the state Supreme Court for the second time to grant Henwood a new trial, based again on the contention that because the charge of murdering von Phul had been dismissed between the first and second trials, the Copeland charge also should have been dismissed. For good measure, he added that Rush’s prejudicial misconduct in “bulldozing’’ witnesses and in his conduct toward Henwood created “reversible error.’’
The court took up the case on April 13, 1914, and handed down its denial of a new trial on July 8, virtually ending Henwood’s hopes for freedom. It fixed Henwood’s execution sometime during the week of October 25. In its decision, the court turned down Henwood’s claim that when the charge of murdering von Phul was dismissed, the charge of killing Copeland should also be dismissed because the shootings constituted one act. Not so, said the court. Copeland’s death was ruled a separate crime.
It was Kenney, who had grown close to Henwood during his time behind bars, who broke the news to him in the warden’s office. “Frank, old man. I’ve bad news for you. They denied the appeal.” Henwood stood silently and stared into space. He turned back to Kenney and said, “Well, I guess they want my death, and I suppose they’ll get it. I’m sorry though. I had hoped that they would give me a chance to vindicate myself. The truth will be known sometime. I shall be vindicated, and it will be shown that I fired in self-defense. I hope it will be before I’m gone. I’d like to know that all men know I am an innocent man.”
Senator McCue’s death in August 1913 sent Henwood further into depression. McCue and, after his death, his widow inexplicably championed Henwood’s cause with financial and moral support almost from the day he was arrested following the shooting. McCue’s widow remembered that her late husband told her, “What is friendship worth that cannot be tested by adversity?’’ She told friends that “Frank’s unfailing courtesy, his strict sense of honor, his truthfulness, his enthusiasm over the deal he was preparing to put through made a deep and permanent impression on Mr. McCue. I believe with all my heart that Frank Henwood has been persecuted.”
There were serious questions about Henwood’s mental status when he suddenly attacked prisoner Francis E. Searway as the latter sat alone, eating. Henwood threw Searway to the floor and grabbed him by the throat, refusing to turn loose even though Searway’s face turned blue and he lapsed into unconsciousness. It took three guards to pull Henwood away and return him to his cell. Henwood told the guards that other prisoners were making faces at him and that they smoked his pipe when he wasn’t looking. He repeatedly told the warden that someone had placed “dictagraphs” in his cell. Some prisoners offered the opinion he was feigning insanity to stave off the state carrying out its death sentence, but his paranoia was clearly gaining control of him. His cellmate, Julius Hagan, a young Dane serving time for mail fraud, observed:
I can’t understand his actions at all. He used to be quite friendly, but he is the reverse now. From what little he says I have learned that he thinks I and the rest of us prisoners in this part of the jail are down on him. I don’t believe he speaks twelve words a day to us. And another thing. He will start to talk about a subject and when he has gotten started he suddenly will stop in the middle of a sentence and walk away. He doesn’t read his books or newspapers. He has almost given up eating, a
nd when he eats, he eats the ordinary jail grub instead of the meals prepared for him at his expense by the jail cook. He spends practically all his time on his back. He lies there with his eyes wide open, looking at the ceiling, and never speaks a word.
Even more worrisome, Henwood hinted to Hagan, “There will be a change soon. Then you will think better of me.” Hagan was puzzled. “I have never found out what he meant by that.”
Raised Catholic, Henwood renewed his faith during his 1913 trial. Father Dominic Pantanello of Sacred Heart College (now Regis University) visited daily for religious instruction, and the two kneeled in prayer in Henwood’s cell. Evangelist Jim Goodheart of the Sunshine Mission on Larimer Street, whose slogan was “A Hope for the Hopeless/A Friend to the Friendless,” dropped in frequently to counsel the prisoner. The night before the jury returned its verdict in his second trial, Henwood kneeled beside his cot to pray. Exhausted by the three-week courtroom ordeal, he fell asleep with his head resting on the cot until guards came and lifted him into bed.
Though things looked bleak, Henwood continued to assure those around him that he felt confident, that he expected “to be a free man before the week is out. If I am acquitted by the jury as I expect to be, I shall immediately prepare for a trip into the heart of Alaska. And while I am away I shall tell the world my story from my own pen and in my own words just as it really was.” Naturally, his account would portray himself as an unfortunate hero who came to the aid of a woman friend. His rival, Tony von Phul, was to be the bully.
Henwood’s notoriety and good looks transformed him into a matinee idol during his incarceration. His confident demeanor, impeccable dress, and sensuous features made him the center of attention almost daily for the curious who crowded the lawn outside the West Side Court. To reporter Gene Fowler, “He had the aplomb of a dancing master and the eloquence of a minor poet.” Accompanied by guards and his lawyers, he strode confidently between the jail to the courthouse, a slightly lopsided smirk on his face making him appear more confident than he was about the outcome of his trials. In his first trial, he wore a straw hat at a rakish angle, a hat he traded for an equally stylish derby in 1913.