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Byron Johnson Interview

[Image: Byron Johnson]

Byron Johnson is a former Idaho Supreme Court Justice. He has had a life-long interest in the Haywood Trial. This interview was conducted in December of 2006.

BR: Let's get right to Harry Orchard's amazing confession. How did that come about?

BJ: You've hit the heart of the case. Harry Orchard was totally innocent as he told those who interrogated him initially, the local law enforcement officers. And then there was another detective agency that was brought in called the Theil Agency, and they interrogated him without success. They were sure they had the right guy because of the physical evidence they found in his hotel room, but Governor Gooding, who was the governor of Idaho at that time, had immediately marshaled state forces to assist with the investigation, and the Chief Justice of the Idaho Supreme Court, Charles Stockslager, who was very interested in succeeding Governor Gooding as governor of Idaho, had a great interest in being prominent in this investigation, and perhaps a sincere interest because everybody knew Frank Steunenberg from the years he had come to Idaho and then become governor.

But the two of them, Gooding and Stockslager, knew the Pinkerton Detective Agency that was the foremost detective agency in America. And so they both contacted James McParland, who was the chief of the western division of the Pinkertons, and they prevailed upon him and the Pinkertons to come to Caldwell to undertake the investigation.

[Image: James McParland]

James McParland, who was then growing somewhat elderly, had been in the 1870's, the detective who broke the so-called Molly Maguires in the strikes of miners in Pennsylvania and actually a number of them, ten I think, had been executed because of their activities there, their violent activities. And this is the guy they wanted to interrogate Harry Orchard.

So McParland came on their request and the first thing he did was to say, I don't want him held in the Canyon County Jail any longer. I want him taken to a place where we can isolate him for ten days. And so there was quite a bit of scurrying around. They had to get legal opinions. They actually got the legal opinions of two members of the Idaho Supreme Court, two out of three, that it would be alright if they transferred him to the Idaho State Penitentiary, even though he hadn't been convicted of anything at that point.

"The thing that struck me the most, the more I studied the original confession, was that on the first page Harry Orchard lied twice."So they took him to the Idaho State Penitentiary and put him in solitary confinement for ten days. Nobody saw him or talked to him. Then on January the 22nd of 1906 James McParland had him taken to the warden's office, and McParland came in and did not identify himself. He said in effect, Harry, I'm here to talk to you about the assassination of Governor Steunenberg. Now Harry, we don't need your confession to convict and hang you because we've got the evidence to do it, but Harry, rather than being hung, you have the opportunity to get my support to save your life. And here's how you'll do it, Harry. If you can implicate the so-called inner circle of the Western Federation of Miners, and I believe they are the ones who hired you to do this because they had good reason, and we've been on their case for quite a long time, but if you can implicate Big Bill Haywood and Moyer and Pettibone and anybody else who was involved, I'll do whatever I can, Harry, to help you save your life.

[Image: harry orchard]

Well, Harry said, I have nothing to confess. I didn't do anything. I understand you have a job to do, but you are talking to the wrong guy.

Well, that's fine, Harry. I'll tell you what. I'll be back in a few days, you think it over, and we'll be back and talk to you again.

January 25th, three days later, he showed up again. Again, they took Harry out of solitary confinement, put him in the warden's office, and McParland said, well, Harry, I'm back again.

The long and the short of it is Harry Orchard decided to confess that day, and he started his lengthy confession. It lasted over four days. There were court reporters present, stenographers if you will, who took it down. It was eventually typed up, and on February 9th of 1906, it was presented to Harry Orchard, and he was allowed to read it over to make written changes in it and to sign it under the declaration that he had not been coerced in doing any of this, nor had he been promised anything. And this was the so-called confession.

There were, we believe, three copies of it made, and until very recently none of those copies have been available. Just a few months ago the family of Governor Gooding found a copy. It's been donated to the State Historical Archives here in Idaho, and I have a copy of it and have studied it, and that's what started out to be Harry Orchard's confession.

Now what most people think is Harry Orchard's confession is a published version. It originally was published in McClures's Magazine in installments and later was published in book form as the autobiography and confession of Harry Orchard that was sold. And so that, some people would call his confession, but I think the original typed version is what we need to focus on as his confession.

[Image: harry orchard on witness stand]

BR: What struck you about his confession?

BJ: The thing that struck me the most, the more I studied the original confession, was that on the first page Harry Orchard lied twice. Now, they may not seem to most people to be significant things, but when McParland said to him, what is your name, he said, Harry Orchard. That was a lie. His name was Albert Horsley.

When Harry Orchard was asked about his wife, he identified the woman with whom he was living, with whom he had in fact gone through a marriage ceremony, but he was still married to a woman in Canada and had a daughter by her, and he had abandoned them and run off with another man's wife in 1896. He didn't bother to tell that.

Orchard admitted killing at least 17 other individuals besides Frank Steunenberg in that so-called confession and a lot of other dastardly things. He was an arsonist before he left Canada. He defrauded an insurance company. He was a gambler. He played around with loose women quite frequently. He was not a savory character.

BR: From the point of view of a defense attorney, what are your thoughts about Harry Orchard as a witness?

"Probably the thing that most people would agree was scandalous was the fact that the officials of the state of Idaho and the Pinkerton Detective Agency kidnapped Bill Haywood, Moyer, Pettibone from Denver, Colorado, in the dead of night under the supposed collar of an extradition."

BJ: Harry Orchard, in some respects, was the epitome of a witness. He was brought in, he was a different appearing individual than he had been when he was arrested. Of course, he hadn't been in public. He had a rather elegant mustache, he was dressed in a very fashionable suit, it turns out was loaned to him by the warden of the Idaho State Penitentiary. He was well-nourished, he was clear-eyed, he spoke very clearly, and his testimony as the newspaper reporters described it was flawless.

[Image: train similar to the one used to return the defendents to idaho]

Indeed, several years later, the trial judge, Fremont Wood, used the flawlessness of Orchard's testimony to opine that he obviously was telling the truth, because even after twenty six hours of cross examination by defense council Edmond Richardson, he couldn't be tripped up.

As I've reflected on that flawlessness, I've come to a different opinion. I think there's a distinct possibility — maybe even a probability — that the flawlessness of Harry Orchard's testimony both on direct examination and cross examination was another clear evidence of his lack of credibility. That he was perhaps not telling the truth on all scores.

The newspaper articles about his testimony — and I've read particularly Oscar King Davis' New York Times articles day after day while he was being interrogated — were flowing with the reporter's view that this man must be telling the truth.

I think there's a distinct possibility that Harry Orchard's memory was really a script because at one point James Hawley suggested to him, well you can just tell this in a narrative fashion. Well, that's what had become his memory, the script that had been created through the so-called confessions and the tutoring — mentoring if you will — that he received from McParland and his attorneys. So that was, in some respects, the most exciting part of the trial, Harry Orchard's testimony.

BR: The pre-trial legal process strikes some as almost scandalous.

BJ: Probably the thing that most people would agree was scandalous was the fact that the officials of the state of Idaho and the Pinkerton Detective Agency kidnapped Bill Haywood, Moyer, Pettibone from Denver, Colorado, in the dead of night under the supposed collar of an extradition.

[Image: haywood and two other men]

Now, extradition was not appropriate under the United States Constitution for these three officials of the Western Federation of Miners, because in order to have extradition under the Constitution they have to be fugitives from justice, meaning they had to be in the state of Idaho on December 30th of 1905, when Frank Steunenberg was assassinated, and then have fled from the state and needed to be brought back to stand trial.

In fact, they weren't in Idaho on December 30, 1905. They didn't leave Idaho any time close to that date, because they weren't here. But what the state of Idaho did was rely upon a technicality. The technicality was that as alleged by Orchard and the indictments of the State of Idaho, they were accessories to Harry Orchard's assassination of Frank Steunenberg, and as accessories under the Idaho law, they could be charged as principals; that is, the charging documents that lead to the extradition, so-called, said they had murdered Frank Steunenberg, because that's what the Idaho law entitled them to charge them with.

So here they were, going to the Governor of Colorado with documents that said, these three officials of the Western Federation of Miners murdered a former governor of Idaho, and we want them arrested and taken back to Idaho. Well, the governor of Colorado wasn't friendly to the Western Federation of Miners anyway, and he decided, sure, arrest them and take them back.

[Image: Borah]

So he signed the necessary papers that had them arrested; the law enforcement authorities in Colorado had been alerted, and on a Saturday night the three of them were taken into custody, and they were put on a special train with the track cleared by the Union Pacific from Denver to Boise so they wouldn't have to stop.

Now the important legal point about that is that, for instance, under English law there was a requirement that anyone who was subject to that kind of process, where they were taken from one state back to a state where they were charged with a crime, had to be given the opportunity to have a lawyer challenge the process, because if they weren't fugitives from justice, it was an improper process.

But there was no such rule in Colorado or Idaho or the United States generally at that point, so they were given no opportunity to contact their attorney to try to challenge this process.

The next thing they know, they are back in Idaho; they are charged with the murder of Frank Steunenberg; and then Edmond Richardson, their attorney through the Western Federation of Miners, filed papers with the Idaho Supreme Court asking for Habeas Corpus, the great writ, the great foundation of Anglo-American liberty — being able to challenge the authority of the king or the monarch or the president or whomever took you into custody, that you weren't lawfully taken into custody.

"I think the study of this case will never end. I expect a hundred years from now there will be somebody . . . who will have new evidence, perhaps based on the correspondence of Mr. O'Reilly from Belt, Montana, perhaps based on new evidence that comes to light from sources that we do not yet know."They didn't get to do that until they were back in Idaho and the Idaho Supreme Court said, once you're here, we don't care how you got here; you've got to stand trial. The federal court in Idaho said the same thing, and the United States Supreme Court said the same thing. And very surprisingly, that is still the law in Idaho, in the United States generally today in the state and federal courts.

[Image: Darrow and Richardson sitting in front of bookshelf]

Indeed, it was the very principle that the Israelis used when they kidnapped Adolf Eichmann from Buenos Aries, Argentina, in 1960 and took him back to Israel for trial as a war criminal. They used that very precedent before the United Nations when they were challenged. Well, that was the first thing that was very irregular and I think most people have been shocked by it.

Tony Lucas, who wrote Big Trouble, came to see me when I was on the Idaho Supreme Court and asked me how in the world the Idaho Supreme Court or the United States Supreme Court could have ever ruled that way; and what I had to tell him was, after I researched it, was it appeared to still be the law, which he found very difficult to accept.

BR: What other differences were there in the way the trial was conducted?

BJ: I would characterize the criminal process in 1905 in Idaho and most other American states as "hide the ball." That is, the prosecution was in charge of accumulating the evidence and presenting it at trial against the defendant. There was no process defined by which the defendant, like Big Bill Haywood, was entitled, for instance, to the confession that Harry Orchard had rendered — especially the one that he had originally given to McParland. Now, the ones that were published they could read, but they would like to have seen that original confession to see how they could use it to cross examine him. They never saw it.

"I think Borah felt that the proper way to honor Frank Steunenberg's memory was to convict and execute the man who admitted killing Frank Steunenberg."Today, the defendant is entitled to receive from the prosecution any information, including witness statements, that would help exonerate the defendant or reduce the degree of his complicity in the charges; and today we have rules also of criminal procedure that allow the defense to ask for witness statements if a witness is going to testify, and that would have cleared out this question about Orchard's confession that was totally kept private and away from the defense's scrutiny.

BR: And both the prosecutors and the defense seemed to have lots of detectives working for them.

[Image: courthouse in Boise]

BJ: There were a lot of them. It was endemic, I think, in the United States in those days. The Pinkertons were the prominent ones, and not only was James McParland involved, but there were others who were helping the prosecution investigate the prospective jurors.

Every important person in the case had a bodyguard. James McParland had a guy named Charlie Siringo. Charlie Siringo had infiltrated the Western Federation of Miners at an earlier date in north Idaho, and had fed information back to the mine owners, but Siringo was an example of the kind of gun slinging bodyguards that the Pinkertons provided, not only for their own people, but for the governor of Idaho and James Hawley, one of the special prosecution.

There was a Pinkerton operative — so-called Operative 21 — who infiltrated the process. During the examination of prospective jurors in the courtroom during the trial, the defense began to get the idea that the prosecution already knew the defense's information about certain prospective jurors, and they finally unearthed this Operative 21 and ousted him from their presence, but it kind of tainted the whole process.

But there was this going on continually, of snooping on the other side through detectives, who many then turned up in the courtroom armed — although as I understand they weren't supposed to be armed — but they were armed, and everybody knew they were armed.

There was a story that the Western Federation had hired a sniper to be stationed on Table Rock to surveil the exercise yard of the Idaho State Penitentiary, and if Harry Orchard ever ventured out there, they were to shoot Harry Orchard.

[Image: hawley sitting in chair with legs crossed looking at camera]

When this rumor came to James Hawley, one of the special prosecutors, he was heard to say, "Well, if Harry Orchard is the first one to be killed, Clarence Darrow will be the second one." So that was the spirit in which this trial was going on. It was probably hyperbole, but, with the revelations of Harry Orchard and the violence that people already knew had taken place in the mining wars in both Idaho and Colorado, it was serious business, because there were lots of violent acts involved.

BR: There were some pretty interesting theories floating around before the trial began.

"The occasion of the trial was a grand event in Boise. It packed the courtroom every day during the trial, and the trial went on for two and a half months."

BJ: The most prevalent one was that the miners had angered the Mine Owners Association so much, that they hired the Pinkerton Agency to infiltrate and that somehow they had convinced Harry Orchard to do this dastardly deed to Frank Steunenberg and blame the Western Federation of Miners for it.

Now to buy that theory, one has to believe that Orchard would be willing to do it for the Mine Owners Association and the Pinkertons if he were paid properly probably, and that was a good share of the trial from the defense's point of view, especially Edmond Richardson. He stressed that a lot — that there was this effort by the Mine Owners Association and the Pinkertons to get rid of Steunenberg in order to implicate the Western Federation of Miners. Frankly, I don't think that theory ever went very far and Clarence Darrow did not subscribe to that theory.

The theory that was hard to use during the trial was that Jack Simpkins, who was the fourth member of the inner circle of the Western Federation of Miners and who actually came to Idaho with Harry Orchard, may have either been the one who killed Steunenberg and left Orchard to take the blame for it, or in fact hired Orchard to do it, because there is clear indication of money that flowed from the treasury of the Western Federation of Miners to Jack Simpkins in Idaho during the time immediately before Steunenberg's assassination.

[Image: darrow at trial]

Now there was also the fact that an attorney was hired for Orchard after he was taken into custody, and that attorney who came from Spokane was paid out of the treasury of the Western Federation of Miners.

Now that would, on one hand, seem to indicate the Western Federation of Miners involvement, but it may only have indicated that Simpkins, who was the Idaho supervisor for the Western Federation, made a deal with the president of the Western Federation to support this fellow who was accused of killing Steunenberg, because he was a member of the Western Federation, and they were trying to implicate the Western Federation.

All that centers on Simpkins himself, and the remarkable thing is Simkins disappeared sometime before Steunenberg was assassinated. The last time he was seen in Caldwell was probably the middle of November. To this very day no one has ever been able to tell where Simkins went. He may have changed identity. He may have been the one who put Orchard up to killing Steunenberg, and all this may be a totally different explanation of Steunenberg's death.

BR: Borah is said to have favored trying only Harry Orchard and leaving to Colorado the cases against the Western Federation. Was that a good idea?

BJ: William Borah was a very excellent lawyer. It appears to me that his rationale was, first of all, that in order to convict Big Bill Haywood, Orchard's testimony had to be corroborated; that is, supported by other evidence on the essential points, especially Haywood's hiring Orchard to kill Steunenberg. And the Idaho law was then and it is now, without that type of corroborating evidence, you couldn't convict Haywood on Orchard's testimony.

So, I think that Borah, knowing that rule, could see it was going to be difficult to get the corroborating evidence, especially when the key corroborating witness was someone who had been employed in other respects by the Western Federation of Miners — and his name was Steve Adams — and he had under tutelage, so to speak, by Harry Orchard and James McParland, confessed to items that implicated Haywood in the assassination.

[Image: judge wood at his desk]

But because of Clarence Darrow's activities in the case, he got Steve Adams to withdraw his confession, so Steve Adams couldn't be a prosecution witness, because he then had the protection of the 5th Amendment, because he might then be implicating himself in something he wasn't already implicated in.

I think it's very probable that Borah saw that, plus he saw that the unions were strong political allies in some respects, and he had just been elected as United States Senator, and there's a possibility he didn't want to alienate the unions.

But I think the key reason is that he could see Harry Orchard as a very unappealing prosecution witness because of his nefarious background, and he did not want, as a matter of principle, to honor the memory of Frank Steunenberg by letting Harry Orchard live. And Harry Orchard did live until 1954 when all the other participants in this trial were long gone.

"This is really, in my view, a 19th Century case, because that's where the events, the struggles, the conflict that lead to it arose. So I would say it's really a trial of two centuries, of both the 19th and the 20th Centuries."

The guy who killed Frank Steunenberg lived the longest, and I think that Bill Borah may have seen that possibility. And I think Borah felt that the proper way to honor Frank Steunenberg's memory was to convict and execute the man who admitted killing, assassinating Frank Steunenberg, and he was never given that opportunity because the case was diverted to the officials of the Western Federation of Miners, because the prosecution and the mine owners wanted to destroy the union — and that's what the trial was about.

BR: The prosecution had to somehow corroborate Harry Orchard's testimony. That was their burden. What was the special burden for the defense?

BJ: They had direct testimony from a witness that Haywood had hired Orchard. He was very vivid in his description of that, he could tell you when and where it happened, who was present, what was said, and what he expected, and what he received. And of course Harry Orchard could show no other livelihood during the many months preceding the Steunenberg assassination than what he claimed he was getting from the Western Federation of Miners, for whatever reason.

[Image: jury sitting in courtroom]

So the defense was confronted with that initially, that there was this connection between Harry Orchard and the Western Federation of Miners. What was he doing in Caldwell all this time if he wasn't there to assassinate Steunenberg? And if the Western Federation of Miners wasn't paying, who was paying him?

It was a very large burden even though the prosecution had the initial burden. The defense was in a disadvantageous position because Boise Idaho in 1907 was not really the hot bed of unionism, and it was a relatively conservative community. It was a small isolated community, and it was not accustomed to trials of this sort and people were, so to speak, Law and Order. Indeed the jury was Law and Order. Nine of them were Ada County farmers; three of them had been farmers at one time but had gone on to other endeavors. All but one of them was over fifty years of age.

There were no women on this jury. Even though women had been given the right to vote in 1896, the Idaho Statutes referred to a jury of twelve men and when the Idaho Supreme Court at a later time had an opportunity to interpret that, they said, that means men. Granted, women are qualified voters but it says men so until 1943 when the statute was changed, only men could serve on juries, and here we had a jury of twelve Law and Order men from Ada County — and that was a big problem as the defense viewed it.

Going into the case, I think the odds might have been one out of five for acquittal. By the time they got to the case being given to the jury, I would think the popular sentiment was one out of ten; that is, that nine times out of ten, Haywood was going to be convicted.

Now that may not have been an astute analysis of the rules of corroboration and the other rules that the judge instructed them about, but that was certainly the popular sentiment.

[Image: harry orchard in suit]

BR: Let's talk about the courtroom setting and the mood of those who came to watch the trial.

BJ: The Ada County Courthouse in 1907 was just on the eastern part of the block where the State House is now, and it had been built in 1882. It was basically a brick building described as Italianate. It had wooden cupolas on top and on the third floor it had Judge Fremont Wood's courtroom. This was a room that was 40 x 75. It normally seated 250 members of an audience. The trial judge expanded that by allowing fifty additional chairs to be placed inside the rail, so to speak, for spectators who were then right next to where the attorneys and the jury were as well as the witness.

The judge's bench as we would usually refer to it was at the end of the courtroom and was generally described as being like a pulpit — so he was elevated and he sat above where the jury was placed. The jurors had swivel chairs and could turn one way and look at the judge and turn the other way and look at the witness. The lawyers sat on benches on either side of the witness, and the witness was kind of the central feature of the courtroom in the witness chair, with chandeliers hanging above for proper lighting.

"It wasn't about who should be punished for killing Frank Steunenberg, because Harry Orchard had confessed to that. It was about trying to carry out the agenda of people who wanted to destroy the Western Federation of Miners."

The occasion of the trial was a grand event in Boise. It packed the courtroom every day during the trial, and the trial went on for two and a half months. Indeed, during one part of the trial, one of the prominent, maybe the most prominent dramatic actress of the day, joined the residents of Boise. This was Ethel Barrymore who was in Boise to star in Captain Jenks and the Horse Marines — but that was symptomatic of the popularity of this as a theatrical event, if you will, because of course that was before we had all the forms of entertainment we have these days.

July in Boise in those days as in these days can get blistering hot. There was no air conditioning and by the time of the summations the temperatures were in the range of 95 to 98 degrees, and all the windows had to be thrown open, fans were distributed, hand fans, and people were fanning themselves to try to keep cool. People lounged on the lawns outside. It was a grand event and people struggled to get there in time to find seats every day.

[Image: orchard at the state pen with a dog standing at the entrance of the pen]

It's reported there were 54 journalists who were there from all over the world really, but certainly the major United States dailies and many magazines and they did a marvelous job of reporting it. The array of materials we have from the journalists is remarkable, examining every aspect of what went on in the courtroom as well as what went on outside the courtroom, and the words flowed. It's estimated 50,000 words a day flowed across the telegraph lines out of Boise to all parts of the world; and the New York Times ran stories daily from Oscar King Davis. The other major dailies and magazines had similar staffs and production of articles. Even when the trial was over, there were analyses about how the verdict came about. There was a debriefing of the jurors by some and it has continued even down to the present day, with people writing and rewriting the analysis of the whole dramatic event.

BR: The prosecution team seemed to be going in the same direction, as opposed to the defense team.

BJ: As a team, Hawley and Borah appeared to be well balanced, because Hawley with 35 years of practice in law in Idaho, starting in the Boise Basin when he was a young man in 1871, had tried so many cases that there was nothing new to him really. He reputedly had participated in 300 murder cases previously, so he was the old "sagebrush" lawyer as some called him. He understood the Idaho jurors mentality. He knew what buttons to push. He was not eloquent usually, but he understood who he was dealing with.

Borah, on the other hand, of course was a world class orator and at pertinent portions of the trial his oratorical ability was on display. Borah and Holly could then work together very well because they complimented each other.

Richardson and Darrow did not get along. They had different approaches to the case; they had different approaches probably to the law generally. Richardson probably would be best described as a very fine lawyer with strong legal skills. Darrow on the other hand, who had become very successful especially in representing unions and union members, was called even by a member of his own defense staff, "Old Necessity" after the legal adage, "Necessity knows no law."

[Image: Richardson]

Now, it's not true that Darrow didn't know any law. What is true — that his forte was his understanding of human nature, his ability to appeal to the sentiments of jurors. Indeed, I think the cardinal rule of Darrow's legal representation was, give the jury a reason not to convict your client. Make your client such a warm human being regardless of whatever fallacies there might be about his conduct, that the jury will not want to convict him if they can avoid it; and I think that's what he did with Big Bill Haywood.

BR: When you read what Darrow said to the jury, you wonder how he could have been effective with them.

BJ: Darrow's cardinal characteristic is agnosticism. Now usually that is looked at in a religious context but in the broader context he took that attitude toward all human behavior, so that when he looked at a group of individuals like the twelve jurors in this case, he knew inherently after having studying them for weeks that he wasn't going to be able to just pound on them and convince them not to convict Bill Haywood.

He had to approach them, if you will, obliquely, and so these long, apparently irrelevant passages, where he would go off on flights of oratory about various concepts of human behavior, of the organization of society, of religion, of the unions in particular, of the class warfare, were all designed to kind of mesmerize the jury into the feeling that this was not somebody who ought to be killed, that Big Bill Haywood shouldn't be sentenced to die because of what he had done, that Harry Orchard was the culprit.

Indeed, kind of going back to the way Borah, I think, may have looked at the case. That's the attitude that Darrow tried to instill in the jury. That if they found him guilty, they would have ordered the death of Big Bill Haywood, and there was good and sufficient reason not to do that.

BR: You seem to have a special place in your heart for Clarence Darrow.

BJ: He's my hero. He is to this day. I think he did things in the law that revealed his idealism about the law. That the law should serve the cause of justice. It should not be a vehicle for carrying out some person's or some entity's political agenda.

Indeed, the reason he gravitated toward representing unions is because he was convinced that the working people of the United States, indeed of the world, needed champions who would help them achieve their just results under our economic system.

[Image: haywood reading the newspaper in his jail cell]Darrow saw himself as the champion of the little people, the people who went to work every day, and in one of the portions of his summation he evokes that. And what he evoked was that the jury was being watched — not only by the capitalists but by the working people. Not only of the United States but of the world.

And I think that was his forte, that he was able to humanize for the jury what their real decision was. It was not a technical decision. They simply had to decide whether to kill Bill Haywood or not.

BR: When the jury came back and rendered their Not Guilty verdict, it must have surprised most people.

BJ: They were astonished. I think the public generally, especially in Boise, was convinced that Haywood was guilty, and therefore it was just a matter of going through the motions. The intricacies of the trial eluded some of them I'm sure.

I think the press may not have captured the sentiments that were developing among the jurors. The jurors, when they were debriefed after they had rendered their verdict, said on the first ballot there were eight of them for acquittal, already, on the very first ballot, so the defense had done its work of casting doubt on Orchard's testimony, preventing corroboration from occurring of his testimony.

But most of all, I think the jurors followed the instructions of the judge and rendered the verdict that was really required of them. They did, many of them, refer to Darrow's advocacy, but the people on the street, I think, were generally not as convinced as the jurors were of what the verdict should be.

BR: So it sounds like Judge Fremont Wood had a major role to play in the verdict.

BJ: He had an enormous role to play. I think he is the unsung hero of the case, because he was criticized immensely for the instructions he gave. It was said that he gave too many instructions about presumption of innocence, of reasonable doubt, and that he emphasized too strongly the need for corroboration.

I think it was called for under the circumstances, but certainly he was very strong in giving instructions that stated the case that the defense had tried to make.

[Image: judge wood sitting on the bench]I think it needs to be said that the trial judge might have turned this into a totally different story if he had done what he later said he was almost prepared to do, and that is to dismiss the case at the end of the prosecution's witness, because the defense moved for acquittal when the State rested, and it appears from subsequent comments that Judge Fremont Wood made that, but for the presence of his former law partner Edgar Wilson as one of the defense lawyers, he might have terminated the trial at that point,because there was not sufficient corroborating evidence.

He said one of the reasons he didn't is because that would have looked like he was favoring his former law partner. But that indicates how weak the prosecution case was, even after they had presented their evidence and the defense hadn't presented any evidence. Indeed, the trial judge said that there was more corroborating evidence [that] came in through the defense's case than there was through the prosecution's case.

BR: Judge Wood paid a price for his part in the case.

BJ: He was the subject of a very aggressive campaign to defeat him. It was led by former Governor Gooding. He was defeated in his bid for re-election in 1908 and solely because of the Haywood case.

BR: He was, in your view, the unsung hero.

BJ: I think he was, because in our society, justice is the center of our concern, justice based on the Rule of Law; and the Rule of Law depends in a jury case on the jury being correctly instructed on the law, and the jury following the law they are instructed on.

Both of those things happened in this case. Maybe Big Bill Haywood hired Harry Orchard to kill Frank Steunenberg, but if he did — and I think there is plenty of evidence to indicate that he did — it wasn't proved as the law required it to be proved; and in my view, that makes the Haywood trial verdict probably the best example of the Rule of Law that I know of in American History, because it went against all the odds at the beginning of the case and at the conclusion of the evidence as to what the public thought was going to happen. Public sentiment did not rule the jury's verdict, the law did.

BR: Clarence Darrow was quite impressed with the town of Boise, Idaho.

BJ: When Clarence Darrow arrived in Boise with his wife, he looked around, he saw the library, he saw Table Rock, he saw the many literary and other events going on around Boise, and he called it "the Athens of the Sagebrush."

It was intended to be a compliment, because Table Rock symbolized the Acropolis, and the way people were educated, and the things they discussed brought to mind the Greek Society. He was very fond of Boise during the time he was here.

BR: And yet he was surprised by the verdict.

BJ: I think Clarence Darrow's knees undoubtedly buckled at that moment, because I'm convinced he thought Haywood was going to be convicted.

[Image: haywood looking at camera]He was very surprised. Of course, lawyers need to be guarded. I can tell you, from many years of experience, that the longest time in the universe is the time between when the foreman of the jury hands the sealed envelope to the bailiff, the bailiff gives it to the judge, the judge opens the envelope, looks at the verdict, hands it back to the bailiff who hands it to the clerk and the judge says, read the verdict. That is the longest interval of time in the universe, because all of your work is in the balance, and whenever the clerk reads the verdict, you either collapse from exhaustion or from joy.

BR: What do you think of the phrase, "Trial of the Century"?

BJ: It all depends on which century we're talking about. This is really, in my view, a 19th Century case, because that's where the events, the struggles, the conflict that lead to it arose. So I would say it's really a trial of two centuries, of both the 19th and the 20th Centuries, because it was symptomatic of a new attitude that was growing in America that would balance the means of production with the working people.

It didn't happen overnight, and some would question whether it's happened now, but I think it was a beginning and I would think "The Trial of the Centuries" is a more appropriate title.

BR: What did the verdict mean to the nation as a whole?

BJ: As this began to be broadcast around the world, I think the world was affected by it positively, and they could see that America was growing up, America was reaching the status where difficult cases could be handled in a just manner, and there wouldn't be mob violence, there wouldn't be hangings that weren't called for. I think it was a beginning of an era where we could expect that justice would be done.

BR: Who were the losers in this trial?

BJ: The losers clearly were people like former Governor Gooding, who had reached the conclusion about Haywood's guilt even before the evidence was presented. Certainly, all of those who had invested in the prosecution, like the mine owners and the Pinkertons, certainly weren't winners in this case. Those were the primary losers.

BR: And the winners?

BJ: Obviously Haywood, but curiously the Western Federation of Miners was not a winner, because there had grown an estrangement between Haywood and Moyer during the eighteen months they were incarcerated together. They grew to dislike each other. When they emerged from the Haywood trial, Haywood went back to Denver, and Moyer was actually released on bond pending his own trial, but he resumed presidency of the Western Federation and Haywood was cast out and became president of the Industrial Workers of the World and ended up being convicted of sedition during the First World War and ended up in Russia, died, and part of his ashes are in the wall at the Kremlin.

So I think he took an extreme route after his acquittal that some people wouldn't think exemplified the cantor of a winner.

formal photo of james hawleyBR: Did you find any heroes in this trial?

BJ: I still think Fremont Wood is the one who needs to be remembered as having carried out his duties in a dispassionate manner without being swept away by the sentiments of the public, by not being influenced by what he knew was going on around him in his community, doing what the law required. That's what we would hope all judges will do, however unpopular it is.

BR: The verdict did not seem to hurt William Borah or James Hawley's careers.

BJ: James Hawley went on, in just a few short years, to become Governor of Idaho. Borah had already been elected to the Senate. He was acquitted of timber fraud in short order after the Haywood trial and went on to serve for thirty-three years as senator from Idaho, from 1924 to 1933. He was chairman of the Senate Foreign Relations Committee and in 1936 he was one of the leading candidates early on for the Republican nomination for President. And he died the hero, I think, of most Idahoans; and he is one of the two people who are memorialized by statues in the United States Capitol.

BR: And former Governor Frank Steunenberg has a statue in front of the Idaho capitol.

BJ: The Steunenberg statue that stands in front of the Idaho Capitol building was dedicated in 1927. James Hawley gave the dedicatory address. William Borah was supposed to, but he was held over in Washington, so Hawley did it.

Interestingly enough, James Hawley's grandson, Jess B. Hawley, Jr., has told me that it was his grandfather, James Hawley who intervened in the planning of the placement of the statue, because originally it was planned that it would face south on Capitol Boulevard, away from the State House.

James Hawley said, No, Frank Steunenberg needs to be looking at the State House so that those in the State House in the executive and the legislative and judicial branches will see him every day and appreciate his significance in the history of Idaho.

Because, whatever the verdict revealed about the legal process, the origin of this case, the assassination of Frank Steunenberg was a dastardly thing. It could have led to almost revolution in Idaho, if it hadn't been handled in a sensitive manner by the authorities who carried out the trial; and we ought to thank all of them for having done it in a civilized manner, despite the dastardly deed that set it into motion.

BR: What's your take on the conversion of Harry Orchard?

BJ: It was very convenient that Harry Orchard converted, and remarkably, it was really under the guidance of Frank Steunenberg's widow, Belle, who visited Harry Orchard every week during her lifetime at the Idaho State Penitentiary. And he converted to her faith, the Seventh Day Adventist faith.

It was said he was a model prisoner. He was given certain advantages at the prison. Twice it was requested that he be released outright from his life sentence in 1922 and again in 1931. Both times former Governor Gooding supported his outright release and on the first occasion, in 1922, James Hawley did. The reason he wasn't released is the outpouring of correspondence from Caldwell by the people who said, this is the man who killed our beloved Frank Steunenberg. How can you possibly release him?

BR: Why should this trial matter to people today?

BJ: I think there is still a notion that trials can be vehicles to carry out political, economic, social agendas. That was certainly how this trial came to be. It wasn't about who should be punished for killing Frank Steunenberg, because Harry Orchard had confessed to that. It was about trying to carry out the agenda of people who wanted to destroy the Western Federation of Miners.

haywood with two other defendantsAnd I hope that the trial will be clear evidence that that's not a good thing to spawn trials of this significance. There are other political means to do it rather than turning the criminal justice process into a sideshow, which, in fact, this trial was.

BR: Now, apparently there are some who wonder if the right man was imprisoned for the murder of the former governor.

BJ: Several months ago, while researching the Haywood trial in the archives of the Idaho Historical Society here in Boise, I went through the prison file of Harry Orchard, page by page, and I came across this sheaf of documents that I thought was very puzzling.

The first document was a letter dated May 3rd, 1939, addressed from Belt, Montana, to the Governor of Idaho; and what this letter said in effect was, you've got the wrong man incarcerated in the Idaho State Penitentiary. That's not the real Harry Orchard. The real Harry Orchard bought his freedom for $200,000.00 many years ago, and you ought to find out who is serving in his place.

Well, this befuddled the Idaho authorities a great deal, so they asked for clarification. The individual, whose name was O'Reilly, came back with the explanation that his brother-in-law had died avowedly by being thrown from a horse, but O'Reilly was convinced that a band of criminals in Montana had killed him, and that the leader of that band of criminals was Harry Orchard.

The Idaho authorities just couldn't make heads nor tails out of this despite some evidence that had been presented by Mr. O'Reilly.

simpkinsAs I have contemplated what might be behind this correspondence, I have concluded that there is at least a distinct possibility that Mr. O'Reilly had stumbled on what happened to Jack Simpkins, that Jack Simpkins may have changed identity; and since he is mentioned vaguely — although under the name of Simmons in this correspondence — that maybe Jack Simpkins had secreted himself in Montana, and maybe he did have a band of criminals that he was leading, and that we may actually have the final chapter of the story in this correspondence. And some day I hope maybe somebody will get to the bottom of what Mr. O'Reilly was talking about.

And I think the study of this case will never end. I expect a hundred years from now there will be somebody in some medium that has been developed technologically who will be commemorating the 200th anniversary of this trial, who will have new evidence, perhaps based on the correspondence of Mr. O'Reilly from Belt, Montana, perhaps based on new evidence that comes to light from sources that we do not yet know.

One would think after a hundred years we'd plumbed all those sources, but I am surprised every time I begin to look at this freshly, that I find a new interpretation of events, and I think some day we may have even a fuller understanding of all the ingredients of this case.