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David Grover Interview

[Image: David Grover]

David Grover is an historian and writer who has written several books, including Debaters and Dynamiters: The Story of the Haywood Trial. This interview was conducted in December of 2006.

BR: Before the trial played out there were a series of alternative theories being discussed about who actually assassinated former Governor Steunenberg.

DG: There were so many. You can invent one by re-reading the materials today, the trial materials. I think probably the leading ones were that there might have been a prosecution counter-plot going on here, that the missing witness Jack Simpkins may have been a Pinkerton or may have been an employee of the Mine Owners Association. That was one very strong one. There are as many theories as there are people who know anything at all about the trial.

BR: So who was Jack Simpkins?

[Image: simpkins]

DG: He was rather pivotal in that he was part of the inner circle of the Western Federation; and he was in Caldwell with Harry Orchard at the time or shortly before the governor was assassinated in December of 1905; and there is a documentary record of his being in touch with the Denver headquarters of the Union asking about getting an attorney and in return being told a Union attorney would come down from Spokane.

And he was also sent some money, so there was physical evidence connecting Simkins more closely than Orchard to the crime in Caldwell, and particularly in the days immediately before. But Simpkins disappeared and became the mystery, the real mystery, that was never solved in this whole case.

BR: Is it possible that Simpkins assassinated the governor?

DG: That could be, although there were people in Caldwell who passed Harry Orchard on the street shortly after the bomb went off and identified him later, picked him out the next day. Harry Orchard stayed around town and became so conspicuous he was acting as a sheep buyer, and he interrupted conversations about the dynamiting to ask if anyone knew where he could buy a good band of sheep. He just seemed so out of character, and then he was identified by this passerby on the street.

[Image: borah]

So it seemed pretty certain that Harry Orchard was the person who committed the crime. The big question was, did he have the blessing or support of the Union's inner circle in doing that?

There were a lot of things that Harry Orchard did that made him look very inept, very stupid. And he had planted a bomb in a Boise hotel, the Idanha Hotel, to get Steunenberg previously; and there was some problem, he had to disconnect the bomb. He had scouted his victims conspicuously, not furtively at all, and so there were just all kinds of instances of him having been seen doing the things he claimed to have done.

BR: Borah is said to have favored trying Harry Orchard in Idaho and leaving the Western Federation of Miners officials in Colorado. Why did he take this position?

DG: I think Borah simply thought this was Idaho's business and that they wouldn't worry about the other things that happened in Colorado because they really had to build an Idaho case, and I think he was using state's pride. Borah made a lot of his being an Idahoan. He was not a native. None of these people were, and he had been here less time than Hawley, but considerably more time than Darrow or Richardson, but he prided himself on being an Idahoan and he makes the state of Idaho, the manhood of Idaho, an important issue in addressing that jury in his closing argument.

[Image: hawley]

BR: You have made a study of each of the major attorneys in this drama. Let's start with James Hawley.

"It was hardest to identify the special strength of Borah than it was for the other three. Hawley's was his ability to relate personally to the jury. Richardson's was his ability to convince the judge about those narrow, legal constraints of the case. Darrow's was this wonderfully emotional appeal."

DG: Prior to the trial Hawley was probably the best known legal figure in the state of Idaho. He had been in the Idaho Territory at an early date back in the 1860's I believe. Any way, he had been a miner, had gotten interested in law, read some law, went off to San Francisco and got himself a community college education at the City College of San Francisco, and even an associate degree, then came back and turned to the law full time.

He had been a prominent attorney, had a lot to do with labor law and was on the side of the union in several very important cases and he actually came to be known as the godfather of the Western Federation of Miners because he advised them in the Ada County Jail in 1892 after their imprisonment there for the riots in the Coeur d'Alene District. He advised them on what they could do, and they followed some of his advice. As he pointed out later, they didn't go the peaceful route that he would have prescribed for them.

BR: How did William Borah get into this trial?

[Image: darrow and richardson]

DG: Borah was a later Idaho arrival. He came in the 1890's on a hunch that this would be a good place to practice law, and he started with the pettiest kinds of cases. I guess most attorneys have to begin that way, and so he wasn't a power until he became prominent in the Coeur d'Alene cases in the prosecution. He did a very imaginative thing in riding a box car down a canyon up there in front of a jury to prove that Paul Corcoran, a defendant in those cases, could be seen and identified by passersby, who said yes, he was part of that train that came down the canyon with those miners who dynamited the Bunker Hill Smelter.

So he was imaginative then. A very forceful lawyer. He and Holly had been on opposite sides in the Diamond Field Jack prosecution in the 1890's and continued over into the 1900's.

He had run once unsuccessfully for the Legislature or the Congress, I forget, but he had been elected to the United States Senate and elections in those days were by the state legislature.

BR: Clarence Darrow and Edmund Richardson were obviously not from Idaho.

DG: Darrow was a Midwesterner, basically, and his career was a kind of unusual one in that he had settled into corporate law practice. He was a railroad attorney, the Chicago Northwestern Railroad, and that's kind of hard to believe of Clarence Darrow, because he became so anti-corporation later in life. But he had also become involved in labor problems in the Chicago area — the Haymarket riots and all. He had done a number of labor cases and had become a labor figure but not a national figure yet. I think the Haywood trial really did that for him.

[Image: darrow at trial]

Richardson was the Western Federation of Miners' attorney in Colorado. He headquartered in Denver. He had come out of a little town in southern Colorado, where he had a private law practice. He was the least educated of any of the attorneys. He had no college at all. The other attorneys each had at least a year of college and none of them more than two. But Richardson as far as I could determine had no college and yet he was the most literary of the attorneys. His language was a step higher than anyone else's, even those who were prone to use flowery language such as Darrow or Borah, and so Richardson would come up with things that were probably indecipherable to even the attorneys in court, and the jurors must have had no idea at all.

I might add that self-read and self-taught attorneys were a remarkable breed of people. They obviously read widely because all of them were well-read men. You could not accuse any of those four attorneys of being less than well-read.

"Darrow... seemed to violate so many of his own precepts. He said, I won't ever let a Scotchman sit on a jury. Well, he let two of them, and they were both for him all the way through."

BR: For all their preparation, it sure seems that both sides misread their jury.

DG: I think both sides had to admit they had misread the jury. I think the prosecutors had felt safe, and I think the defense felt, we did the best we could, and yet they did swimmingly. Things went very well for them.

I don't know whether the explanation of that is simply their misjudgment, or whether the jurors really did determine the case on the legal strength of it as they had been told to do by the judge.

[Image: trial jury sitting outside]

Now Darrow took the position that jurors never pay any attention to the instructions, so you as the emotional pleader can reach them. Well, he did reach that jury, but so did the judge's instructions get to that jury.

BR: How would you rate James Hawley's effectiveness in his closing arguments to the jury?

DG: Hawley had the responsibility of covering everything that had been in the evidence for the previous five weeks. That's tough, it takes a long time; he took a long time.

He was an older man, he seemed to be kind of under the weather as he made his presentation, but he did a pretty thorough job of covering everything that needed to be covered, knowing that a lot would happen between the time of his orientation of the evidence to the jurors and the time they finally made their decision. So what transpired after he was finished was really more important to the jury.

The jury could not help but know of his reputation, and he had that going for him, plus he had an easy, comfortable style. He sat on the table close to them and just chatted with them, and only once in a while would he rise to any kind of oratorical heights.

BR: After Hawley spoke for eight hours, Edmund Richardson then spoke to the jury.

DG: Now Richardson who followed him was exactly the opposite. He was an intense speaker. He moved the table back so he'd have more room, and he would kind of pounce and bounce around and gesture and raise his voice, and that bothered some of the jurymen.

The newspapermen picked up that some of them kind of turned sideways when Richardson was pounding on them. So he had developed a different style. He effected a different appearance. He was a city attorney by all appearances. He wore a wing collar which had gone out of style, except I think in very formal settings — inaugurations of presidents and places like that — and that must have seemed out of place in the Boise courtroom.

BR: Richardson spoke for ten hours. Then it was Darrow's turn.

[Image: richardson]

DG: Now Darrow, the third speaker, was like Hawley. He had a kind of an easy going manner, but he probably more so than Hawley would rise to emotional pitches and was very effective. He particularly humanized the issues.

Now Borah would later talk about how this jury must defend the integrity and the manhood and the statehood of Idaho. Those are kind of abstract concepts, but Darrow talked about Haywood's mother sitting in that court room, and Haywood's wife sitting in that court room, and Haywood's daughter sitting in that court room, and do you twelve men want to deny to that wonderful family the life of their husband, father and son? It really touched. Apparently there were tears all over the court room during that presentation.

BR: Darrow was himself brought to tears.

DG: I think Darrow was a consummate actor, and Borah had a little of this in him too. He was accused of being an actor, but maybe a declaiming actor rather than Darrow's style, which was more of a Marlon Brando style, I suppose, by conventional standards. He got very cozy with the jury. There were real contrasts in all of them.

"As the years go by, I tend to want to think that this was justice functioning as our legal system was supposed to dispense it, that some attorneys did a beautiful job of presenting a case, some jurors made some pretty intelligent decisions in the face of very difficult circumstances, and that Idaho was all the better, and that the country was all the better, for the way it turned out."

BR: As a former debate coach, I imagine you looked at the special strengths that each of these attorneys brought to the trial.

DG: Yeah, and oddly enough, it was hardest to identify the special strength of Borah than it was for the other three. Hawley's was his ability to relate personally to the jury. Richardson's was his ability to convince the judge about those narrow, legal constraints of the case.

Darrow's was this wonderfully emotional appeal, and Borah's was a little harder. It combined some elements of each of them, but I don't think he had the homey touch that the first two did, and he certainly suffered in the long run, in the final analysis, by going to the trouble of having his closing argument reprinted and doctoring it to improve upon it.

[Image: haywood reading the newspaper in his jail cell]

And that reprinted version persisted for a long time, and was quoted at some length in a number of books about the case. That to me was unfortunate, because, while Borah was eloquent, he wasn't that eloquent. To me, it all reflected his concern for his upcoming troubles in the land fraud indictment that he had to defend himself against later that year.

BR: I've heard him described as conflicted.

DG: Yes. There was conflict in his intent, his purposes. He was preoccupied, and that has been held against him, so he didn't really achieve all that Borah was capable of. I would have to conclude that, and I think other people have come to the same conclusion.

He was eloquent in his final moments, and when he described the scene in Caldwell, he was probably at his very best, and I think equal to anything that Darrow did emotionally. But, Borah still never approached Haywood in the way that a man who you were trying to convict had to be identified. He never quite was able to pin on Haywood some of the invective that Darrow had pinned on Orchard and even pinned on Hawley. Jurors understood invective, I'm afraid, but they did not understand abstraction.

BR: What role did religion play in their arguments?

DG: I think both Hawley and certainly Borah appealed to the Christian theme; and then Darrow scoffed at it, which seems to us today a very strange strategy, knowing what we did about small town America in the first decade of the 20th Century.

Seemingly Christian motives, Christian beliefs would be terribly important. Anyone adhering to those beliefs would be respected. Anyone ridiculing those beliefs would not.

It didn't work out that way, and not long ago I checked about the jurors. Only, I think, three of the twelve claimed a church affiliation. But I think the others probably would have identified themselves as Christians as most Americans would have in that time. So the Christian appeals seem proper, well selected, and yet Darrow ridiculed those appeals, ridiculed those beliefs, and got away with it with that jury.

BR: Edmund Richardson used some pretty big words in his closing argument.

"It was Boise's finest hour and certainly the finest hour for the state of Idaho. I think Idaho really came of age in the Haywood trial; and it was recognized for the first time as a state of extremely competent jurors who could conduct a trial under very difficult conditions."

DG: He gets into "tawdry," he gets into "obloquy" and some of these words that send us to the dictionary to find out. He was such a master of words, this uneducated lawyer from rural Colorado, that he was probably trying to prove something to himself or to the legal community, that coming up the hard way as he had without any college education, he was the equal of any fine attorney — and perhaps he was in some cases — but this may not have been one of those.

BR: And now to Clarence Darrow. What was his strength?

DG: One of the most interesting things that was said of Darrow and his skill as an attorney was said by John Nugent, one of his co-council in this case. Nugent was the Western Federation of Miners attorney from Silver City and later was in the United States Senate. Nugent called Darrow "Old Necessity," and when he was asked why, he said, because necessity knows no law, which was a pretty good indication coming from co-council what even defense attorneys thought of Darrow. I'm sure Nugent would have been very quick to say that this man can get the job done with juries.

[Image: jury sitting in the courtroom]It is very hard to identify what it was that Darrow was able to do in the Haywood trial because he seemed to violate so many of his own precepts. He said, I won't ever let a Scotchman sit on a jury. Well, he let two of them, and they were both for him all the way through.

He just had no faith in the legal processes meaning anything to the jurors, and yet apparently they did. He inveighed against Christianity. That has been mentioned previously and it was just a number of things he said about society. He inveighed against the stupidity of farmers, and this was a farmer jury, and he said, I was once a farm boy myself, but I wasn't dumb enough to stay one. That's the kind of thing that he did and got away with.

So it is really difficult to assess how he accomplished what he did. Maybe these other things they talk about, the fear the jurors felt about retaliation. Maybe there was more to that than we're willing to admit, because certainly you can't find in Clarence Darrow, his approach, his rhetoric, anything that really would have endeared him to this jury.

BR: He seemed to be saying the ends justified the means when it came to violence.

DG: Darrow made a big thing out of the fact that labor had committed some wrongs in its history, but that wrongs done on behalf of a good cause were forgivable. And he carried that to extremes, that violence in a good cause is forgivable, and that if a smelter was blown up and a thousand men did it, it was because that smelter needed blowing up. He actually said that about one of the events in the Coeur d'Alene troubles of 1899.

And so he constantly justified violence, and I can't picture that this was the sort of thing that farmers in Ada County, Idaho, in 1907 would have accepted as the kind of reasoning that justified what the defendant was alleged to have done.

BR: And yet he could be incredibly eloquent and powerful.

DG: Darrow had the ability to do that. He was obviously speaking very directly to them. His eye contact must have been very effective. He was close to them — in more ways than just being physically close to them. I think he picked out a very good way to approach them.

BR: Darrow also went after James Hawley, in what seemed like unfair ways.

DG: Darrow could come down very hard on his victim in the court room, and in this case it was mostly Hawley that he inveighed against. He found a lot of fault in Hawley's having helped the unions early on and then having turned on them. I don't think he uses the phrase "turncoat," but essentially that is what he was implying, and that Holly was getting rich.

[Image: hawley looking at the camera]And of course it's true if you look at the expenses that the state had for the trial. Most of the money, a goodly portion of it went to Hawley. Relatively little went to Borah. So Darrow knew what he was talking about when he said Hawley was doing well financially from the trial.

But invective was part of Darrow's court room procedure and Hawley just happened to catch it. It bothered Hawley a great deal. In his own words after the trial, he talks about wanting to give the man a thrashing and settle it, but he decided on the advice of his friends not to, so obviously it bothered Hawley. And any time you can get under somebody's skin it can be a benefit to you, although Hawley wouldn't speak again, so there was nothing he could do to unnerve Hawley at that point. Hawley had had his final word.

BR: The prosecution team of Hawley and Borah seemed to work well together. You can't really say that about the defense, about Darrow and Richardson.

DG: The prosecution team was a well integrated team. They agreed with each other largely and assigned responsibilities well, but the defense team had some serious problems.

Richardson indicated later he even considered leaving the defense team when Clarence Darrow was brought aboard. Richardson was a senior council, being the union attorney, and Darrow was the junior council, but Darrow obviously came away with the public image, being the lead council, the important pleader for the defense.

So the two sides were really going in different directions. The prosecution was going in a unified direction and the defense was going in a split direction, and that again is remarkable considering the verdict finally favored them.

BR: The reporters covering the trial seemed to think the jury would find Haywood guilty.

DG: The general feeling about the verdict, at least among the news men who were covering the trial, seemed to be that it was just basically a very settled issue, that one juror was holding out for acquittal, the rest were already to convict.

They had it wrong. It was eleven to one the other way around, and I think they were really surprised when the jury came in, and fairly quickly, with the result of acquitting Haywood.

I don't know of anyone who clearly saw the verdict in advance and announced it in advance. I think that would have been almost a dangerous thing to do in Boise at that time. It was very much up in the air, but people didn't realize to what degree it was up in the air. I think there was probably a feeling of, it's a dead certainty among a lot of people, and it certainly didn't turn out that way.

BR: Got any theories about why the jury found Haywood not guilty?

DG: There are a number of theories of the verdict. Some people took the position that the jurors were simply terrorized, they were afraid to do anything else.

[Image: people in the courtroom watching the trial]Others argue no, these were intelligent men. They heard the judges instructions, they heard the cases that were presented and the lack of connection between Haywood and Orchard, and they simply made the decision as intelligent jurors would.

There was some criticism of Borah's role as not being as effective as it might have been, because he had hanging over his head the challenges of the trial for land fraud that he was soon to endure, and that he didn't have his heart in the prosecution, some said even from the beginning.

As the years go by, I tend to want to think that this was justice functioning as our legal system was supposed to dispense it, that some attorneys did a beautiful job of presenting a case, some jurors made some pretty intelligent decisions in the face of very difficult circumstances, and that Idaho was all the better, and that the country was all the better, for the way it turned out.

BR: Judge Fremont Wood certainly paid a price for his instructions to the jury.

DG: Fremont Wood, the judge, paid the ultimate price for having been accused of being too insistent on the jurors hearing over and over again the instructions about corroboration and the other responsibilities of proof. Judge Wood was subsequently not reappointed and his career really was over in Idaho.

He had been well thought of, he had had some personal experience in the Coeur d'Alene mining troubles, where I think he served as a prosecutor, so there was no question about his being pro-labor union if he had once prosecuted them in the Coeur d'Alenes; but I think he carried out his job very well and ought to be commended but he was not particularly highly regarded in Idaho. The governor vilified him for what he seemed to have been responsible for.

BR: The judge seemed to think Haywood was guilty.

DG: I think that's true, but in his own remarks later, Judge Woods said a very interesting thing. He said, after the initial arguments and the defense's motion for a directed verdict of acquittal, he, Judge Wood, was inclined to go along with that because he did not think a case had been made, but he said one thing deterred him. The fact that Edgar Wilson, who had been his law partner, was on the defense staff, and it would look like collusion or conflict of interest if he were to turn this case down and say to the prosecution, you simply have not built a case, we're dropping it.

[Image: judge woods]So he insisted then that the prosecution go ahead with the case. Later he said, it was the defense's witnesses who convinced me of the guilt of Haywood, or at least the guilt of the inner circle, because the defense's witnesses were such a weird crowd of ne'er-do-wells and criminals that it really made a case where none had existed.

So the judge would have closed the case after Richardson's motion for the acquittal if the defense had not added Wilson to their staff, thinking that would give them some leverage.

BR: Who were the winners and the losers, in your estimation?

DG: It's hard to identify a loser, unless you look at the miners union itself and the direction it had been going. They lost in that sense. They had to reverse themselves and change direction. But that was probably a blessing for the miners union in that it turned out to be a more representative body and eventually turned into the International Mine, Mill and Smelter Workers Union.

Haywood went on to considerable fame. The union unloaded him, the Miners Union. He got active with the Wobblys; eventually they unloaded him, but Haywood still had his moment of glory during World War II when the Socialists became kind of vocal, did some indiscreet things in terms of war powers which never please everyone, and so Haywood fled a criminal from justice and went to Russia where he subsequently died.

So, in the long run sense, Haywood lost, but certainly he had had several years to enjoy greater — I was going to say fame, but perhaps notoriety is a better word — and maybe that's what radicals really prefer, is to be notorious rather than be famous.

The trial and its outcome did let the world know that that's not the kind of unionism that society really thrives on, respecting the rights of people to organize and all but that's not the end product that we would hope would result. That kind of violence has no place in unionism. I think the unions learned that lesson, and while there has been union violence since, I don't think it ever approached what it had been under the Western Federation of Miners. They had been once called "The Western Federation of Murderers" and it wasn't far from the truth, at least in some cases and certainly in the case of Harry Orchard.

BR: Did you personally find any heroes in this story or were there just too many backroom deals and lies to talk in terms of heroes?

DG: Historians love to find heroes in what they have researched, particularly those who haven't been identified as such by other writers, and I looked for a hero in the Boise trials, but I really didn't find one. I think the heroes, if they existed, were a group of people. The people who conducted the trial and that would include all the attorneys. It certainly would include those twelve men in the jury, the spectators who behaved against the expectations that they might not behave, and certainly the community. All those people were the heroes.

It was Boise's finest hour and certainly the finest hour for the state of Idaho. I think Idaho really came of age in the Haywood trial, and it was recognized for the first time as a state of extremely competent jurors who could conduct a trial under very difficult conditions, a trial that any state would have reason to be proud of.

BR: Why should people care about such a trial today?

DG: It's not easy to come up with an answer, except to say we have to be on our guard that we don't let the errors that characterized the background and trial in this case to emerge again in society. We can't let the things that happened in the mining camps happen. We can't let the violence that occurred at the hands of disgruntled union members happen. We can't let a trial be conducted under such difficult conditions as these.

I think that's the message for the future, and I think there is always a lesson in history — that we not let it repeat itself again and that I suppose is what another generation of Idahoans and Americans ought to be thinking about as they get interested in this case.