WITH JUSTICE FOR SOME. Lise Pearlman
to capacity with Governor Gooding and James McParland showing up for the first time to lend their weight to the proceedings. Hawley went first, attributing Orchard’s confession to “the saving power of divine grace.”33 He disavowed any effort by the state to make war on the WFM or that the mine owners had a role in financing the prosecution – statements that Hawley knew to be false, having taken a very active role himself in fund-raising to “rid the West entirely” of the WFM.34
Edmund Richardson went first for the defense. The meticulous, balding Denver lawyer in his three-piece suit stood and lectured the jury from a distance. Richardson suggested that Orchard might have acted out a personal grudge against the governor who had authorized the outrages committed by the “colored troops” against Orchard’s fellow miners in Coeur D’Alene. “If you had been there, covered with vermin, . . . gentlemen of the jury, . . . you would have attained in your breast a righteous hatred for every person who had anything to do with causing your humiliation and suffering.”35 Alternatively, Richardson suggested that Pinkerton’s agency used that lingering wrath as a cover for hiring Orchard to kill Steunenberg and for misdirecting blame on the WFM leadership.
Darrow sensed the jury had already made up its mind to convict Haywood and invested himself in an extraordinarily moving, closing argument attacking the prosecution as a conspiracy to behead the WFM. In stark contrast to Richardson, the unconventional, shaggy-haired Chicagoan doffed his jacket and thumbed his suspenders in animated conversational style within arm’s length of the jury. For eleven hours, Darrow alternately dared them to hang his client if he was guilty of such a heinous crime and pleaded with them to believe in Haywood’s innocence as he did. He ended with a sterling defense of self-sacrifice in class struggle:
[O]ther men have died in the same cause in which Bill Haywood has risked his life, men strong with devotion, men who love liberty, men who love their fellow men have raised their voices in defense of the poor, in defense of justice, have made their good fight and have met death on the scaffold, on the rack, in the flame and they will meet it again until the world grows old and gray. Bill Haywood is no better than the rest. He can die if die he needs, he can die if this jury decrees it; but, oh, gentlemen, don’t think for a moment that if you hang him you will crucify the labor movement of the world . . . Think you there are no brave hearts, no other strong arms, no other devoted souls who will risk all in that great cause which has demanded martyrs in every land and age?36
Darrow’s aim was to obtain a hung jury by convincing any doubter among them to hold out for acquittal. By the time he finished, he was drenched with perspiration and sobbing. At the very least, he had greatly impressed the motley WFM supporters gathered outside the courthouse. Yet Senator Borah drew the biggest crowd for his final argument. Boise’s most prominent citizens turned out in full force. Widow Belle Steunenberg finally made an appearance, arriving from Caldwell with one of her sons. A thousand people remained outside, unable to get into the courtroom.
It seemed that all of Boise could smell an historic hanging in the air. Prominent citizens had already begun planning a huge, multi-day picnic celebration. Still, Judge Wood reminded the jury that Orchard’s testimony required corroborating evidence of Haywood’s complicity in that specific crime. He instructed them that they should view Orchard’s testimony with skepticism if they believed it resulted from promises of leniency by the prosecutor. When the jury left the courtroom, Darrow wearily confided to a newsman, “It only takes one,” spawning rumors that Darrow, too, expected a conviction.37
After only four hours, the jury sent a note to the judge. A quick agreement on a verdict sounded like bad news for Haywood, but that turned out to be a false alarm. The panel only wanted to review some exhibits. As jury deliberations proceeded through the night, Darrow paced and listened to disheartening talk that the jury had gone from seven-to-five for acquittal to ten-to-two for conviction. Then shortly before dawn someone standing outside the jury’s window overheard an eleven-to-one vote and ran to a newspaper office, which issued an exclusive within the hour.
Darrow heard the raucous celebrants in the street and purchased his own copy hot off the press. When he read that only one juror still held out for acquittal his heart sank. At 6:30 a.m. the attorneys were summoned to court to hear the verdict read. Darrow passed women and men in the streets decked out in their Sunday best, giddy with excitement over the upcoming festivities. In stark contrast, both Darrow and Richardson appeared lead-footed and downcast. When Haywood arrived from his cell, Darrow told his client to prepare for the worst.
To Haywood and his counsel’s surprise and relief, the eavesdroppers got it backward. The jury had leaned all night toward a defense verdict. Early that morning, the last holdout for conviction changed his mind to make it unanimous. Hawley registered shock as Haywood won acquittal for lack of proof beyond a reasonable doubt. It was the miners who then declared a holiday, hoisting Darrow on their shoulders as they paraded around amid outraged locals who spread rumors the jury must have been bought off. Others, like President Roosevelt, speculated that the jurors feared reprisal if they convicted the hero of the violent labor union. Elated Socialists across the nation quickly proposed Haywood as their presidential candidate. Anarchist Emma Goldman sent President Roosevelt a telegram: “Undesirable citizens victorious. Rejoice!”38
Hawley and Borah blamed the result on the judge’s careful jury instructions. Jurors themselves indicated that they focused on the need for corroboration of Orchard’s testimony. The prosecutors figured Haywood only escaped the noose because Darrow somehow engineered Steve Adams’ retraction of his confession that he acted as Orchard’s accomplice. Hawley and Borah badly wanted to turn things around when they tried Pettibone. The prosecutors decided to go after Adams again to get him to turn state’s evidence against Pettibone.
Darrow had barely gotten back to Chicago to resume his practice when he was summoned back to defend both Adams and Pettibone. Doped up nightly fighting the flu and severe mastoiditis, Darrow won a hung jury in the Adams case. Then, appearing near death, he commenced a brilliant defense of Pettibone. When Darrow reached the point he could only make it to court in a wheel chair, his doctors ordered him off the case to recuperate in California. Co-counsel then completed the case and won Pettibone’s acquittal. In jail, Pettibone had been stricken with cancer. He went back to Denver and died that summer following an unsuccessful operation.
By the time of Pettibone’s acquittal, Steunenberg’s reputation had suffered a severe setback. Borah himself faced federal charges that, when Steunenberg was governor, the two had conspired to perpetrate a series of fraudulent land deals. At this point, Idaho officials cut short their losses in attempting to destroy the WFM leadership. Charges against Moyer were dropped. Moyer had never favored violent tactics. Soon after his trial, he ousted the more aggressive Haywood from the WFM. Haywood went on to head major strikes over the next decade as a leader of the IWW. Yet some Socialists would have much preferred the boost they believed their movement would have gotten had Haywood, Pettibone and Moyer instead been martyred. They assumed Roosevelt would have faced far greater threats of mass strikes had the three labor leaders been hanged.
Roosevelt saw no benefit from Haywood’s acquittal, which he called a “gross miscarriage of justice,” from a jury he assumed had been terrorized.39 Yet had the Supreme Court not given its blessing to the illegal extradition from Colorado, no Idaho murder trial could have taken place. Given the blatant due process violation that brought the three labor leaders to Idaho and the extremely prejudicial pretrial publicity, workers throughout the country would never have believed in the legitimacy of a guilty verdict.
Judge Wood’s conscientious instructions, the jury’s cautious deliberations and the resulting acquittals showed workers everywhere that the fix was not in for conviction. The underdog prevailed, giving them hope their own situations would improve within the current political structure. One wonders how close the nation came to widespread violence, how much anger would have erupted in the streets and exacerbated pre-existing class, ethnic and religious divisions had Boise’s citizenry gotten their coveted hangings.
When Darrow’s doctors wheeled him out of the Pettibone murder trial before it ended in January of 1908,