Bloody Williamson

by Paul M. Angle

  Even the lawyers seemed to be affected by a feeling of futility. Their examination of prospective jurors followed the same lines as before, but was more rapid and more cursory. As a result, though more talesmen were examined than at the first trial, the jury was completed in slightly more than two weeks instead of a month. Again the jury consisted mainly of farmers, one or two of whom had worked in the mines. All were of the old American stock.

  The state opened its case on the morning of March 2, 1923. This time C. W. Middlekauff, the middle-aged, experienced prosecutor whom Brundage had borrowed from the United States District Attorney’s office, made the first statement. The state would show, he promised, that Hugh Willis, Otis Clark, and many others conspired to drive the Lester strikebreakers from the county. No man with “even horse sense,” he admitted, would have attempted to operate on a nonunion basis in that locality, but that fact was of no pertinence in this trial. He and his associates did not represent scabs or Lester or the Southern Illinois Coal Company: they stood in the place of the people of the commonwealth.

  After recounting, once more, the events of June 22, Middlekauff outlined what the state expected to prove. It would show that Otis Clark and Oscar Howard killed McDowell. James Brown was the colored man who maltreated the marching captives with frenzied cruelty. The union official who came up in a car and waved the prisoners to their death on the barbed-wire fence was the defendant Hugh Willis. Phillip Fontanetta had killed one of the men who had been wounded there; Bert Grace had taken part in the killings in the Harrison woods, and he was also the person who kept Don Ewing from giving a drink of water to the dying man at the Herrin cemetery.

  In the afternoon Kerr took the floor for the defense. As at the first trial, he laid the blame for the riot on Lester and the strikebreakers. “We will show you, not by strangers, but by your own citizens,” he promised, “that the real murderers were the men that were brought in to work in the Lester mine.… This trouble … started in the greed of Lester for money.”

  The defense would prove, Kerr continued, that Henderson had been dead for thirty minutes “before the community arose and started the aggression.” It would also prove that the men charged with killing Molkovich were not at the scene of that murder when it was committed.

  The defense had been criticized for paying its witnesses. “We do so,” Kerr admitted, “and we do it proudly. These witnesses are laboring men and are now getting about one day’s work a week. If you had a lawsuit and were to need a witness from the hayfield during harvest time, you would probably pay that witness for his time lost. We are only paying our witnesses for the time we take them away from their regular work.”

  “The miners’ union is standing behind these men,” he concluded, “because the Illinois Chamber of Commerce, two months before the miners’ union got behind these miners, had raised a fund to prosecute the miners and to send them to the penitentiary.”

  The prosecution lost no time in producing its most important witnesses. After an undertaker and the coroner had given testimony regarding the body of Molkovich, thus establishing the corpus delicti, William Cairns was sworn in. He pointed out Otis Clark, as he had in the first trial, as one of the men who had led McDowell away. Under questioning he continued:

  “We were halted again and a machine went by and I heard the crowd say, ‘Willis is coming.’ That auto went on ahead and I don’t know what happened there.”

  “What else?”

  “I saw a colored man with a rifle. [Cairns pointed to James Brown.] I remember him because part of his left ear is gone. He had on overalls and a piece of a war helmet.”

  Cairns described the ordeal at the powerhouse woods, repeating the testimony he had given at the first trial against Peter Hiller, and then added:

  “John Shoemaker, mining engineer and assistant superindent, was lying within ten feet of me and two men walked up to him saying, ‘Here’s that machine gunner.’ These two men kicked my head to one side. One of them [Cairns paused to identify Phillip Fontanetta] had on an army uniform. He put a gun up against the face of Shoemaker and fired a shot, blowing away a portion of his jaw.”

  Bernard Jones and Odis Lawrence, Lester’s locomotive engineer, followed Cairns and confirmed what he had said about Clark, Brown, and Fontanetta. It was Robert Officer, however, who gave the most damaging testimony against Hugh Willis. At the first trial he had been unable to identify any of the defendants; now he pointed a steady finger at Willis and said:

  “That man with glasses got out of the car. I was thirty feet from him when he got out of the car and I saw him walk around in front of the column and ask for the leader.… Willis said, … ‘Don’t kill any men here on the highway, there are too many women and children. Take them over into the woods and let them run under fire, killing all you can.’ ”

  After Officer stepped from the stand the judge declared a recess because of serious illness in the family of one of the jurors, and eleven days passed without a session. When the trial was resumed familiar witnesses told familiar stories—of the looting of stores for guns, of the killing of McDowell, of Otis Clark and the “stop the breed” speech. Then came another recess—this time of four days—because of the illness of a juror’s child. When court reconvened Don Ewing described again how the man whom he identified as Bert Grace kept him from giving water to the wounded prisoners. Again the defense attorneys could not shake his story.

  The state finished its case on March 29, and the defense introduced its first witnesses the same day. As before, they testified to the provocative conduct of the mine guards and swore that on the afternoon of June 21 the first shots came from the strip mine. After two days, the parade of alibi witnesses began. Oscar Howard, according to four residents of Crenshaw Crossing, was there instead of at Moake when McDowell was killed. A Herrin miner who knew both Howard and Clark had stood within twenty feet of the crippled superintendent when he was led down the road, yet the witness recognized neither of the men who held McDowell’s arms. Several others confirmed his statement. Five men declared that it was Clark who told the mob he was washing his hands of the affair if they were going to kill the strikebreakers; a sixth swore that he took Clark in his car from Crenshaw to Moake at 9.20 a.m., hours after the killing of McDowell.

  The proceedings became monotonous. Some of the defendants dozed; Otis Clark spent more and more time with his books. Judge Hartwell, always nervous and high-strung, wandered about the courtroom looking from the windows, inspecting the picture of President Harding, sitting on the court reporter’s bench, on the newspaper reporters’ bench, on the defense attorneys’ bench, on the State’s Attorneys’ bench, on the window-sills, yet ever alert even though he might sustain or overrule an objection in a voice that sounded, as one reporter put it, “like a bored stud-poker player dealing a ‘last round’ at three o’clock in the morning.”

  Alibis were offered for every defendant. Fontanetta was playing cards at the time the Lester men were being killed; Bert Grace was loitering on the Marion public square; James Brown was plowing with a borrowed horse; Hugh Willis was in Herrin. None, according to many witnesses, could have had a part in the murder of Antonio Molkovich.

  On the morning of April 6 the defense rested, the state announced that there would be no rebuttal evidence, and Otis Glenn rose to make the opening argument. Early in his address he pointed to the logical weakness of the defense case.

  “Someone was killed that day,” he reminded the jury. “The defense has spent several days in trying to prove that the killing of these men at the powerhouse was justified. Then, on the other hand, they have produced scores of witnesses to try to prove that their men did not do the thing which they said was the right thing to do.”

  He made no effort to defend Lester. The man was a “fool” and “insane,” and as far as his property was concerned, he “committed suicide.” Yet no law forbade him to bring men, union or nonunion, into Williamson County to work a mine.

  Irony gave a sting to Glenn’s vo
ice as he reviewed the testimony of the witnesses for the defense, pointing out flaws and implausibilities in their statements. But irony gave way to fervor when he came to his conclusion:

  “You have an opportunity to strike at murder and lawlessness. If this crime is endorsed murder will grow upon the community and assassination will increase. Life, home and family will not be safe. You have the opportunity of stamping this out and I believe you will do it.”

  Glenn finished late in the morning. After the noon recess the defense waived its right of argument. Judge Hartwell called in the jurors and gave them his charge. At 4.20 p.m. they retired.

  Shortly after eleven o’clock that night word came that a verdict had been reached. The judge appeared, took his place on the bench; Middlekauff shuffled in in carpet slippers; twenty-five or thirty friends and relatives of the defendants found seats in the dimly lighted room.

  “Gentlemen, have you reached a verdict?” Hartwell asked when the jury stood before him.

  “We have,” the foreman answered, and handed over several sheets of paper.

  The judge adjusted his horn-rimmed glasses, then read slowly:

  “We, the jury, find the defendant, Hugh Willis, not guilty of the crime as charged in the indictment.”

  He paused, then resumed:

  “We, the jury, find the defendant, Phillip Fontanetta, not guilty of the crime as charged in the indictment.”

  And so for the other four defendants.

  There was no demonstration.

  Middlekauff pulled himself to his feet.

  “I ask your honor to poll the jury.”

  The judge asked the first juror to stand.

  “Were these and are these your verdicts?” he asked, holding up the papers.

  “Yes, sir,” came the answer in a firm voice.

  “Are you satisfied with them?”

  “Yes, sir.”

  Each juror, asked identical questions, responded in the affirmative.

  The second trial was over. And the greater case into which this trial and the one that preceded it had somehow been transformed—the case of organized labor against the strikebreaker, the private guard, the organizations of employers who wanted a return to the open shop, against the law itself—that too had been decided.

  On the following morning State’s Attorney Duty announced that there would be no more trials. “I intend to nolle every one of these cases,” he said. “I have my personal opinion as to who did the crime and I tried to convince two juries.… I am not complaining, but it’s a hopeless proposition.” Middlekauff deferred to the State’s Attorney’s decision, although he reminded the court that the state legislature had recently appropriated $75,000 for the prosecution, and said he believed that body should have some voice in the matter. Brundage showed less restraint than his associate, issuing a statement in which he charged that many of the defense witnesses testified falsely, and that the court had permitted the selection of jurors who should have been disqualified. “The prosecution is reluctantly obliged to admit that justice cannot be obtained in Williamson County,” he concluded. To which the seven lawyers for the defense replied by pointing out that when the second-trial jury was completed, there were left to the prosecution, unused, almost a hundred peremptory challenges. “It is strange,” they commented with reference to Brundage’s charges of false testimony, “that because witnesses happen to be laboring men rather than gunmen their motives must be questioned.”

  Amid these recriminations Judge Hartwell granted Duty’s motion that all remaining indictments be dismissed.

  Herrin faded from the front pages, even from the editorial columns, of all but the few papers that followed the investigation authorized by the Illinois House of Representatives during the course of the second trial.

  The occasion for legislative intervention was offered in mid-March 1923, when a deficiency appropriation of $120,000 for the Adjutant General’s office was under discussion. Representative Michael Igoe of Chicago declared that the responsibility for the Herrin riots ought to be fixed before this appropriation was voted. Adjutant General Black, he asserted, was trying to put the blame on Colonel Hunter, yet Hunter’s report, which had been read before the Appropriations Committee, showed that on three separate occasions Hunter had asked Black to send troops to Williamson County, only to be told that the request could not be granted because the local authorities had not asked for troops. Igoe introduced a resolution providing for a committee to investigate and report its findings to the House. Representative McCarthy of Kane County pointed out that Igoe’s resolution was so worded that it practically fixed responsibility in advance of the investigation, and proposed a milder, less prejudicial substitute, which was adopted immediately.

  A few days later the Speaker picked the seven members of the committee: Frank A. McCarthy, chairman, and Norman G. Flagg, W. B. Phillips, Thomas Curran, Michael L. Igoe, and M. P. Rice. Igoe and Rice were Democrats, the others Republicans. Phillips and Flagg lived in southern Illinois; the other five members represented constituencies in the northern part of the state.

  As soon as the second trial ended, Chairman McCarthy announced that the committee would hold its first meeting in Springfield on April 11. The members plunged at once into the main purpose of the investigation—to ascertain the delinquencies, if any, of the state officials concerned—by putting Adjutant General Black on the stand. That day and the next he and Colonel Hunter told their stories. Most of the pertinent facts were brought out during their first appearances, though later witnesses added some information of value.

  Reduced to its essentials, the question between the two officers was one of veracity. Had Hunter—not once but several times—asked Black to send troops, or had he led his superior officer to believe that they would not be necessary? The issue came out nakedly in their conflicting accounts of what was said in the course of the several reports Hunter made to Black by telephone on June 21.

  1.00 p.m. HUNTER: Reported the attack on the truckload of Lester men near Carbondale, the raids on the stores in Herrin and Marion, his inability to find the sheriff. Black ordered him to get after the sheriff again, and said: “Let them damn fools go to it. Some of them will get killed off. Maybe they will quit.”

  BLACK: Hunter reported only that a citizens’ committee had been formed.

  3.15 p.m. HUNTER: Reported the attack on the mine, the killing of two union men, the continued absence of the sheriff, and McDowell’s request for troops. “General Black advised me to see to it that the sheriff got on the job, and told me to stay in the clear; that he could not send troops yet, as the civil authorities had not requested them.”

  BLACK: Hunter reported the attack on the mine, but said he believed the situation could be handled locally. (Black also stated that he alerted commanders of the National Guard companies at Mt. Vernon, Salem, and Cairo in response to the call he received from the panic-stricken Lester soon after Hunter reported.)

  6.30 p.m. HUNTER: Reported the truce that was in the making, but asked Black to send troops. Black refused. “The Adjutant General maintained all the way through that he could not or would not send troops until requested by civil authorities.”

  BLACK: Hunter reported that a truce had been arranged and that there was no further reason for apprehension.

  11.00 p.m. BLACK: Hunter verified his earlier report regarding the truce.

  Hunter denied that he ever made this call. Later in the investigation, telephone-company records proved that he did make it. The toll slip was filed at Springfield instead of Marion or Murphysboro, as was the case with the records of the other calls, and did not come to light for several weeks.

  Other evidence indicated that Hunter’s repeated requests for troops were inventions after the damage had been done. Three days prior to the massacre, he had told Oldham Paisley of the Marion Republican that troops would not be used because the local authorities had the situation in hand. Two days after the massacre he had talked freely to the Board of Officers, heade
d by Major General Milton J. Foreman of the 33rd Division, Illinois National Guard, who had made an investigation on the scene, and said nothing to any of its members to indicate that he had asked the Adjutant General or anyone else to send troops to the danger spot.

  The fact was that at the time of the massacre Hunter believed that under the law state troops could not be sent into a county unless local authorities asked for them. On June 24, 1922, he had made that clear to a representative of the Marion Post. “Let me say right here,” he was quoted, “that I did not have the power to call out troops at any time. The law compels me to wait until the local authorities announce the situation is beyond their control and ask for troops.” Abundant testimony given during the investigation showed that this was his understanding at the time; hence his frantic efforts to induce the sheriff to make the appeal that he believed to be essential. When he learned, sometime after the riots, that the governor, acting through the Adjutant General, could send troops into any community on his own initiative, he altered his story to fit the newly discovered provisions of the state’s military code.

  Having grilled the military in Springfield, the committee decided to move to the scene of the trouble. On April 26 it met in Marion. There, after a visit to the site of the Lester mine, it took up the question of local responsibility for the riot.

  Melvin Thaxton, now county treasurer by virtue of the largest majority in the county’s history, was one of the first witnesses. Under questioning by Chairman McCarthy he was less than co-operative, but when Representative Igoe took over the examination his memory failed him almost completely.

  IGOE: “What do you do down here in the case of murder?”

  THAXTON: “Try to make arrests.”

  IGOE: “Why didn’t you make arrests before June 22?”

  THAXTON: “I couldn’t find anybody to arrest.”

  IGOE: “Name a single act which you did in connection with the murder of the two union men.”