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Criminal Justice, Then And Now

By Byron J. Johnson
Retired Idaho Supreme Court Justice and Member of the Idaho Legal History Society

How did the Haywood trial of 1907 evidence the existing criminal law in Idaho and the rest of the United States in the early Twentieth Century? This article will compare some current criminal procedures that highlight how the law has developed here in Idaho and throughout the country in the past one hundred years.

The Defense Had No Access to Orchard's "Confession"; The Differences in Procedures Today

[Image: harry orchard]

In 1906 and 1907, there were no procedures in Idaho that required the prosecution to deliver a copy of Harry Orchard's confession to a defendant who was charged because of the statements contained in it. When Haywood went to trial in 1907, his lawyers had not seen this confession, but had only seen published accounts of it. Before trial, defense counsel sought a bill of particulars, listing the factual allegations the prosecution intended to prove, but the trial judge denied the request.

These were the days when criminal trials were considered to be warfare. The prosecution could play "hide the ball" in dealing with the defense. Some called this style of trial "ambush and surprise." This has changed significantly today, with well-established standards of discovery in criminal cases.

For instance, in 1963, in the case of Brady v. Maryland, the United States Supreme Court ruled it was a violation of due process of law for the prosecution to fail to provide the defense, upon its request, with a statement of a companion in crime of the defendant that was favorable to the defendant.

Under rules of criminal procedure established by the Idaho Supreme Court several years ago, upon request, defense lawyers are usually entitled to receive from the prosecution copies of any statement by a prosecution witness made to the prosecutor or the prosecutor's agent. Idaho Criminal Rule 16(b)(6). These rules also provide for discovery by the defense of other evidence, such as any statement of the defendant, statements of co-defendants, the defendant's prior record, documents and tangible objects, reports of examinations and tests, a list of state witnesses, and police reports.

Even the defense is required to divulge upon request by the prosecution some items the defense intends to offer in evidence at the trial, such as, documents and tangible objects, reports of examinations and tests, and a list of witnesses the defense intends to call at the trial. Idaho Criminal Rule 16(c).

[Image: Haywood, Moyer, and Pettibone]

The Law Permitted the Denial of Habeas Corpus to Haywood, Moyer, and Pettibone and Bringing Them to Idaho, And Would Today

Haywood, Moyer, and Pettibone were only alleged accomplices to Orchard's actions, but under Idaho law they could be charged in the same language as if they were principals.

For example, the criminal complaint against Haywood stated that he made an assault on Steunenberg by use of "a certain bomb, then and there loaded with a certain destructive explosive," and "did throw [it] at and against the person of the said Frank Steunenberg." The prosecution had no evidence that this was true, only that Orchard said Haywood and the other officials of the Western Federation hired him to kill Steunenberg. But, this complaint was necessary in order to lay the foundation for a purported extradition of Haywood and the others as "fugitives from justice."

There was nothing in the extradition request to indicate that the officials of the Western Federation of Miners were not in Idaho on December 30, 1905, when Steunenberg was assassinated. There was nothing on the face of the extradition papers issued by the Idaho court that disclosed that the officials were not "fugitives from justice." As the U.S. Supreme Court said in 1903 in Hyatt v. New York, the extradition clause of the U.S. Constitution authorizes extradition only of "fugitives from justice." In this case, under the Constitution, extradition was authorized only if Haywood and his compatriots had escaped from Idaho after the assassination.

[Image: train similar to the one used to bring the accused from Colorado to Idaho to stand trial]

On this basis, an order to extradite Haywood, Moyer, and Pettibone from Colorado, was secured by the prosecutors. They then obtained the cooperation of the governor of Colorado, who was an adversary of the miners' union, to facilitate the execution of the arrest warrants in his state. Through this procedure, the Western Federation of Miners' officials were brought into Idaho to stand trial, without any opportunity of their lawyers to challenge their removal from their home state as purported "fugitives from justice."

The Idaho Supreme Court, the U.S. Circuit Court in Idaho, and the United States Supreme Court all denied these defendants habeas corpus, stating that it didn't matter how they had been brought to Idaho, because once here, they were subject to the jurisdiction of the court in the Haywood case and had to stand trial. This rule was reaffirmed by the United States Supreme Court in 1952 (Frisbie v. Colliins) and 1975 (Gerstein v. Pugh) and is generally the rule, except in the U.S. 2nd Circuit Court, where habeas corpus will be granted, if "shocking misconduct" involves "brutality" by government agents (U.S. ex rel. Lujan v. Gengler, 510 F.2d 62 [2nd Cir. 1975]); and in Tennessee, if misconduct of governmental authorities "shocks the conscience of the court."