The frontier-flavored justice made it “about as interesting and remarkable as any case in which I figured,” Darrow remembered. As Tyler’s mother, clad in black, sat in court and wept, the two sides squabbled over the identification of a weathered skull and bones that had been found by surveyors in the woods. Adams had an alibi and Darrow contended that, with the countryside aflame over claim jumping, a group of vigilantes who called themselves the Jumper Killers probably shot Tyler. Indeed, the leader of the vigilantes had been arrested as a suspect at the time.
Darrow closed the case for the defense. The other union attorneys “made a very poor impression not only on the jury but on the public,” McParland wrote Gooding. “Darrow is a different type of man; he gets close to the jury and makes a very earnest appeal.” The real crime was not murder—it was the way the state perverted justice, Darrow argued.
Adams was nothing but “a pawn in a game,” Darrow said. “Back of all this … is a great issue of which this is but the beginning. Because, beyond this case, and outside of this courtroom, and out in the great world, it is a great fight, a fight between capital and labor, of which this is but a manifestation up here in the woods … You know it; I know it; they know it.”
With a target like McParland at hand, Darrow would not neglect one of his guiding dictums: the jury needs a villain. The essence of the detective’s life was deception, Darrow told the jurors. Remember the Molly Maguires. “He met day after day and week after week with his neighbors and his friends, and his comrades and members of his lodge; he learned their secrets, he ate at their table, he drank at the bar with them … And every moment, he was working himself into the lives of these men; he was a spy, a traitor, a liar; and he was there to bring them to the gallows!” Darrow said.
“There are … methods that are more dangerous to the State, and are more odious to honest men, than crime,” Darrow said. “It is better a thousand crimes should go unpunished … than that the State should lend itself to these practices of fraud and treachery.”
The jury spent most of two days arguing, then told the judge they were hopelessly deadlocked. On almost every ballot, they had split 7 to 5 for acquittal. “Had it not been for two or three men we would have secured an acquittal,” Darrow told reporters before fleeing the ice and chill of Wallace for a speaking tour in California. But he was content.16
McParland was crestfallen. Adams was “the most important witness we’ve got,” he told Gooding. The Pinkerton approached a deputy sheriff named Carson Hicks and promised that the state would pay “liberally” if Hicks and his colleagues could cajole the prisoner to return to the prosecution. McParland began planning for a retrial, with a change of venue that would take the case from a mining community and give it instead to “true, loyal citizens.”17
DARROW WAS NOT thoroughly cynical. If so, he could have made his life easy, and splendidly comfortable, selling his skills as a corporate lawyer. But he had studied ethics under Altgeld, who was “absolutely honest” in choosing his causes and “perfectly unscrupulous” in achieving them. The Haywood defense was now engaged in a series of unscrupulous tactics.
From the spring of 1906 through the following winter, a Pinkerton agent in Colorado known as Operative 28 kept an eye on Frank Hangs, a union lawyer who was enlisting witnesses for Haywood’s defense. Hangs told prospective witnesses what he hoped they would say, and promised them money if they did so. Operative 28 was Arthur Cole, a militia officer. “Hangs was feeling me out to see if I would stand, if paid, to testify that these murders in Cripple Creek were planned” by the Mine Owners’ Association, Cole told McParland. “He is talking … openly about me making a good piece of money.” As the case neared trial, Darrow arrived in Colorado to screen the witnesses. He met with Cole, who told him that the mine owners had known in advance that Orchard was going to bomb the Vindicator and had arranged for Orchard to travel to Denver to meet Haywood, Moyer, and Pettibone and gain their confidence. “Darrow became very excited,” Cole reported. He told Darrow there were other helpful things he would say “if I was paid for it” and that “Darrow appeared to be much pleased and desired me to refresh my memory.” Darrow asked if Cole could testify that the mine owners were behind the Independence depot bombing as well. “I agreed with Darrow to do these things,” Cole said. “Darrow said if I would stay with the proposition I would be a valuable witness and would be taken care of in a substantial way.” The Pinkerton operative agreed to perjure himself for $500 and claimed to have been paid $50 by Darrow as an advance.
It is hard to weigh the tale. Cole was a mine owners’ man, telling McParland what he wanted to hear. Or perhaps a wary Darrow was stringing Operative 28 along, for at some point the defense caught wind of the plot and Cole was exposed as a spy.18 McParland was crestfallen. He had hoped to entrap Darrow and reveal, with a dramatic flourish in the courtroom, a conspiracy to suborn perjury. But in the end, he came away with nothing.19 Darrow’s only comment came in his autobiography. While “investigating rumors” in Colorado, he wrote, he came upon many “marvelous tales” from people “impelled by all sorts of motives.”
THE PROSECUTION HAD its own ethical contortions, which undoubtedly stirred Darrow’s willingness to break the rules. “We are here employed by the State,” Hawley had told the jury in Wallace. “Not a bit of corporate money jingles in my pockets.” It was a lie. The state of Idaho could not easily come up with the funds it needed to abduct and prosecute Adams, Haywood, Moyer, and Pettibone, so Gooding had turned to the state’s banks—especially those owned by the mining industry—for loans. Borah and Hawley pitched in as fundraisers, with Hawley telling one mine owner that this was their chance “to rid the West entirely” of the Federation, whose “foul crimes” had done “so much to retard our progress, and which is a menace to our future.” In response to such pleas, the mining companies donated $5,000.
Word of the fundraising reached Washington, alarming President Roosevelt. “That Haywood and Moyer have been at the head of a labor organization, the members of which have practiced every form of violence, including assassination … is not to be disputed,” the president wrote his attorney general. He dismissed the kidnapping of the three WFM leaders as a “failure to comply with … formalities.” Gooding was engaged, said the president, in the noble work of “saving civilization.” And yet Roosevelt recognized the liabilities of having mine owners bankrolling the prosecution of union leaders.
“Such action would be the grossest impropriety,” Roosevelt wrote in a letter hand-delivered to Calvin Cobb, the publisher of the Statesman, who was in Washington lobbying for the prosecution. “If the Governor or the other officials of Idaho accept a cent from the operators … I should personally feel that they had committed a real crime.” The governor rushed to refund the $5,000 and promised the president that “the mine owners will not be asked for a dollar, nor permitted to take any part in the prosecution.” But Hawley and the others simply shifted their fundraising to Colorado and other states, where mining and commercial interests quietly contributed the tens of thousands of dollars needed to destroy the Federation.
Roosevelt’s own behavior, it turned out, was also of the “grossest impropriety.” Just days before the Supreme Court heard the oral arguments in the extradition case the president had hosted the justices at the White House, where he read aloud from a letter he had written condemning Moyer and Haywood as “undesirable” citizens. The incident became public in the spring of 1907.20 Labor and the Left erupted. Socialists and unionists, who had been forming “Moyer-Haywood conferences” around the country, chose May 4—the Saturday before the trial was to begin—for a national day of protest. A hundred thousand marched and cheered in Boston and almost as many in New York, where they waved red flags and sang the “Marseillaise.” Thousands wore badges that said, “I am an Undesirable Citizen.”21
Roosevelt’s most malodorous intervention was still to come. It was triggered by a cable from federal investigators in Idaho alerting the White House th
at the “civilization” which Governor Gooding was “saving” was rotten to the core. The Haywood prosecution, the investigators said, was being used to deflect attention from pervasive corruption.
“Investigations will show Steunenberg to be leading member timber frauds,” they said. Borah was “morally if not criminally connected. Cobb of Statesman and Governor Gooding both use all influence against investigation. Cobb morally and probably criminally connected.” Attorney General Charles Bonaparte quickly confirmed, and wrote the president, that the findings in the cable were “well-founded.”
The news stunned Roosevelt. If it became public it could ruin all the productive work that Cobb, McParland, and the others had done to paint Steunenberg as a saintly victim. Worse yet, it gave credence to the defense’s contention that Orchard might have had other paymasters. The findings offered an alternative “motive for the persons involved in these timber frauds to kill Steunenberg,” the attorney general advised Roosevelt.
The Haywood prosecution, moreover, was depending on Borah’s arts of persuasion. The “new U.S. senator” cited in the cable was a favorite of the president and a darling of the press. With “keen blue eyes, a powerful square chin, a frank straightforward manner and a winning boyish smile,” Borah beat down his foes with “the dazzling force of a thunderbolt,” the New York Sun reported. He was a self-made man who had married a governor’s daughter and profited from his ties to the mining industry as he rose from hick lawyer to corporate attorney and, eventually, to the Senate. “This is the work of my personal enemies,” Borah told Roosevelt—and, he said, of the Federation. But the miners had not caused Borah’s troubles. The investigation was launched by Roosevelt’s own land office personnel in response to widespread swindling in the Northwest. A similar prosecution in Oregon had been applauded by the White House, and its prosecutors lauded as heroes.
Gooding moved to get the White House to quash the investigation. He sent Roosevelt copies of Pinkerton reports which revealed that the prosecution had another spy—Operative 21—embedded in the defense who warned that Haywood’s legal team had gotten wind of the probe. “Everything should be made subservient to this great trial,” Gooding wrote, urging Roosevelt to rein in the investigators.
Roosevelt caved. There were no lectures on propriety this time. If he had any qualms about Gooding’s news that the state of Idaho had used a Pinkerton detective to infiltrate the defense staff and corrupt the jury selection process, the president of the United States never voiced them. He ordered Bonaparte to seal the indictments until Borah had finished hanging Haywood. “I have sacrificed, or at least, endangered, some of the chances of a successful prosecution of the Steunenberg frauds,” Bonaparte reported back to Roosevelt, “in order … not to injuriously affect the chances of the prosecution in the Haywood case.”
Operative 21—a Pinkerton detective by the name of Johnson—was a deep-cover man for the agency. He had arrived in Idaho in the days after the assassination posing as a socialist agitator and wormed his way onto the local defense team. There he was assigned the task of surveying the people on the voting rolls, from whom the Haywood jurors would be chosen.22 Canvassing was a vital practice in a big trial. Teams of investigators from both sides would roam the countryside posing as salesmen or lost travelers, engaging the locals in casual gossip and turning the conversation to the case at hand. They would compile lists of each prospective juror’s age and occupation, political affiliation, and views about the case, unions, capital punishment, and other topics. Armed with the data, the lawyers would know what questions to ask to reveal a juror’s bias, and whether to spend one of their peremptory challenges to keep him off the jury.
Having Operative 21 handling this chore for the defense gave the prosecution a twofold advantage. His work for the defense, and other secrets, was available to the state. At the same time, he could feed misinformation to Darrow. A juror the defense might otherwise covet, having been maligned by Operative 21, might be challenged.23
ON MAY 16, the governor invited the press corps to the penitentiary and introduced them to Harry Orchard. The eastern reporters—who had come to Boise hoping to find Dodge City and discovered Harrisburg with mountains instead—were grateful. For weeks they could salt their coverage with accounts of the day they had gazed into the soul of America’s deadliest killer.
“I have received no promise of immunity from anyone,” Orchard told them. “I have been moved only by a desire to do right.”
The New York Times led the coverage, as it would throughout the trial. The newspaper was the voice of Manhattan’s economic royalists and its editors had given the assignment to their chief Washington correspondent, Oscar Davis, a Roosevelt enthusiast. Gooding personally escorted Davis to the interview. Orchard was dolled up in a gray suit with patent leather shoes. “His complexion is as fresh and pink as a child’s,” Davis wrote. “There was irresistibly a feeling in him of serenity and sincerity.”
At the time of the killer’s arrest, Orchard’s eyes had been uniformly described—by reporters, witnesses, and even McParland—as empty, cold, and cruel. Davis now found them “round, blue and shining, ready to twinkle merrily at the slightest suggestion.” Orchard was not permitted to speak about the case, and talked instead of the lessons he learned from his Bible. By the end of that twenty-minute interview, Davis had bought the prosecution patter. He announced to his readers that Orchard had undergone a spiritual conversion, wished only to repent, and was testifying with no thought of saving his neck.
A few reporters retained their professional skepticism, noting in their copy that McParland had had more than a year to train Orchard. And some even failed to see the merry twinkle in Harry’s eyes. The Denver Post reported that Orchard “is admittedly a man who has played with all parties. At one time he owned mines himself. At another time he was a member of the Western Federation. At another he worked for the Thiel Detective agency. At still another time he was employed by some associated mine owners.” His confession, the paper said, “is almost too complete.”
And one prominent journal singled Darrow out for tribute. The Mirror, published by William M. Reedy in St. Louis, carried a laudatory profile, written by one M. L. Edgar. Darrow’s “tireless mind roams through the world and space seeking out the reason of things … His control over men, over affairs, his power in a court and before a jury lies in his sincerity, his perfect truthfulness and his kindness,” Edgar wrote. “He could have been on the winning side, in the sunshine of favor, on the lips of those who make reputations. He could have been rich out of the coffers of privilege. But he chose what is called the thorny way.”
It was a glowing, perceptive account, obviously written by someone from Chicago who knew Darrow well and had ample opportunity to study him. A poet perhaps. The profile would be picked up and cited by other writers in the weeks to come. No one asked who M. L. Edgar was. And so it must be noted how, several years later, the poems of the Spoon River Anthology were first published in the Mirror, written by a close friend of Reedy, who delighted, throughout his life, in the use of noms de plume. “M. L. Edgar” was no doubt Edgar L. Masters, Darrow’s poetic partner in law.24
Chapter 9
BIG BILL
I speak for the poor, for the weak, for the weary,
for that long line of men who, in darkness and despair,
have borne the labors of the human race.
Big Bill Haywood went on trial for his life on May 9, 1907. For more than a year, he and Pettibone and Moyer had been imprisoned in the Ada County jail, down the stairs from the courtroom. Moyer was his same intense self and Pettibone still the “Happy Hooligan,” as his friends knew him. He had taken up leatherwork in jail, and on one piece burned a motto: “So live that every day you can look every man in the face and tell him to go to hell.” Big Bill seemed bigger than ever. He had exercised regularly, dug a vegetable garden, and studied Marx. Haywood had lost an eye in an accident when young and to focus had to turn his head. It gave him, the Times r
eported, an “unfairly” furtive expression, since the truculent union leader was nothing if not blunt.
Haywood’s extended family joined him in the courtroom, and rare was the newsman who missed the tableau of blond, ten-year-old Henrietta sitting in her father’s lap. The actress Ethel Barrymore performed in Boise in a traveling theatrical trifle that summer and sat in on a session of the trial. She appreciated Darrow’s stagecraft: “He had all the props: an old mother in a wheelchair and a little girl with curls.”
The courtroom was plain and rectangular. Its most notable feature was its intimacy. Instead of sitting off to one side, the jurors were seated directly in front of and slightly below Judge Fremont Wood’s bench, looking out toward the room. From the chairs in which they softly rocked, they could gaze squarely at the witness, who sat in an armchair on a raised platform, facing them, some fifteen feet away. In the pit between the jury and the witness chair were tables for the press, court stenographers, and lawyers. It was crowded (the defense routinely had half a dozen lawyers besides Darrow at its table) and hot. At any one time the spectators would include gunmen, celebrities, or whiskered socialists. There were pitchers of water and inkwells, the jurors’ broad-brimmed cowboy hats hanging on pegs along the wall, and blue and white spittoons. Witnesses would raise their hands, swear to tell the truth, spit, and take the stand.
It took a month to select a jury. Four venires, with more than 250 potential jurors—“talesmen,” as they are called—had to be summoned. The prosecution and the defense hoarded their peremptory challenges, and grilled the candidates about their occupations, political and religious beliefs, union affiliations, newspaper subscriptions, and opinions of President Roosevelt. The prosecution labored to keep unionists off the jury; the defense to bar the suspiciously large number of bankers. By repeatedly asking about “probable cause” and “reasonable doubt” the defense began its work of indoctrinating the jurors.
Clarence Darrow: Attorney for the Damned Page 20