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Big Trouble

By J. Anthony Lukas


Big Trouble.gifBig Trouble, a history of the Haywood trial, shows how the trials of the century have changed over the years.

875 pages
Simon & Schuster (1997)


Reviewed by: Judge Anthony J. Mohr

Shortly before dinner on December 30, 1905, Frank Steunenberg, the former governor of Idaho, a bank president, sheep raiser, and solid family man, opened the gate leading to his house in the little town of Caldwell in southwestern Idaho. The bomb he triggered was loud enough to be heard 16 miles away. Steunenberg's assassination almost caused a class war.

A drifter named Harry Orchard was soon arrested on suspicion of planting the bomb. James McParland, a Pinkerton investigator, extracted a 64-page confession from Orchard. Journalist and author J. Anthony Lukas describes this document as "the most extraordinary confession in the history of American criminal justice." In it, Orchard admitted planting the bomb, killing 17 other men, trying to assassinate the governor of Colorado, two Colorado Supreme Court justices, an adjutant general of Colorado, and the president of a mining company,"all on behalf of the inner circle of the Western Federation of Miners."

Based on that confession, three of the union's leaders were arrested–kidnapped actually–and charged with Steunenberg's killing. William D. Haywood, the union's secretary-treasurer, was tried first. What quickly became apparent was that the trial, which forms the nucleus of Big Trouble, would range far beyond a murder prosecution. Lukas writes: "[T]he Haywood case may have been the first trial in American history in which the real target wasn't so much the jurors in the box as the larger jury of public opinion."

William E. Borah represented the people. Later that year he would be elected U.S. senator from Idaho. Clarence S. Darrow defended Haywood. In 1907, Darrow's career was already ascending, and the Scopes monkey trial lay 18 years in the future. High-powered counsel served as seconds on both sides.

The Haywood trial attracted a phenomenal degree of attention. Lukas makes the point that "there was now a national public ready, eager, and able to absorb the disparate messages dispatched from the Boise courtroom." Press coverage was overheated, and even the president of the United States, Theodore Roosevelt, entered the fray, branding the suspects ";undesirable citizens" and drafting a letter that called Haywood and his colleagues "the murderers of ex-Governor Steunenberg." Worse yet, Roosevelt read portions of the letter to members of the U.S. Supreme Court the week that a habeas corpus petition in the case was on their docket.

Big Trouble may be read on two levels. First is the trial itself, an enlightening snapshot of the U.S. legal system almost 100 years ago. Second is the trial as the backdrop for Lukas's sketches of life in the first decade of this century.

Big Trouble allows attorneys to compare the modern legal profession against what existed in 1907. Haywood was tried 3 years before the American Bar Association adopted its first ethical guidelines for lawyers and 19 years before the appearance of the Canons of Judicial Ethics. The privately financed prosecution planted a mole in the defense team and freely engaged in ex parte communication. The trial judge, Fremont Wood, presided even though his old law partner was on the defense team. At one point, Ethel Barrymore visited the courtroom, and the judge adjourned early to host an impromptu reception for her in his chambers. In attendance were the trial counsel, several detectives, some of the leading press "boys," the owner of McClure's Magazine, and Theodore Roosevelt's chief conservationist, Gifford Pinchot. One investigator became so infatuated with Barrymore that he escorted her to the jail to meet Orchard. In addition, Darrow wrote daily newspaper articles about the trial's progress, and Judge Wood "led a large party of newsmen on a tour of his celebrated apple orchard in full bloom."

Equally fascinating is how little has changed in the past 100 years. Some believe that the trial's controversial outcome hinged on the jury instructions, particularly those involving testimony by an accomplice. Then, as now, many talked of eliminating juries. Lukas notes that Judge Wood used the (pre-Proposition 115) California system of voir dire. Like today, hardship requests abounded. "Brandishing physician's notes certifying to their lumbago, hemorrhoids, and carbuncles, a platoon of men tried to get off on health grounds; few succeeded." Some escaped because their jobs were in the public interest.

As in today's big cases, both sides amassed precise intelligence, the product of a massive effort to compile the preferences, affiliations, and dirty little secrets of hundreds of prospects. Their methods involved a lot of duplicity: "Both sides had sent small armies of scouts into the countryside posing as insurance men, encyclopedia salesmen, and other itinerants." The Haywood trial operated under pre-Wheeler/Batson practices. Counsel stereotyped each ethnic group, and no less than Darrow recorded his prejudices for the benefit of the bar, writing about which religious and national groups were likely to include jurors favorable for the defense.

Young lawyers in the Boise bar spent hours taking careful notes on Darrow's and Borah's tactics. In describing Darrow's questioning of one Mr. Pride, Lukas writes that unlike the other lawyers, who stayed seated:

Darrow got up close, hooking his suspenders and tilting into the jury box like a small-town druggist leaning across the soda counter:

"Imagine yourself in the defendant's shoes," he said to Pride. "Would you want a man on the jury whose mind is the same condition as your own?"

"I';d hate to be in such a predicament."

"You'd want a fair jury?"

"Yes."

"And you think you could be fair?"

"He might do worse."

The attorney and the talesman paused for a moment, looking each other straight in the eye.

"And he might do better? Isn't that so?"

";Perhaps," said Pride, "but I think not."

Among the lessons a young lawyer would have learned is not to expect to break a witness during cross-examination. Darrow's cocounsel grilled Orchard for 26 hours and got nowhere. The prosecution fared no better with the defendant. Haywood, who was blind in one eye, seized control in the first moment:

Scarcely had Borah begun his cross-examination than the witness interrupted. Gesturing toward the open window directly behind the judge's head, through which poured the radiance of the blistering Boise afternoon, Haywood said, "If Your Honor please, may the shutters be closed on that window. While I will be talking most of the time to the jury [and thus facing the bright light] I cannot see the Senator's eyes with the shutters open...."Haywood wanted to fix Borah with the terrible glare of his single eye. Borah was stunned, telling an associate later, "It doubled me up like a jack-knife."

The summations lasted longer than most modern trial judges would tolerate. Darrow argued more than 11 hours, Borah almost 6. Both their assistants spoke as well, which added another 17 hours of oratory. Again, any barrister who heard Borah and Darrow learned a lot. Darrow had to defuse the reputation that Haywood and the Western Federation of Miners had for "direct action." No one would believe him if he claimed the miners were "industrial saints," yet he could not just admit that the defendant and his group endorsed violence. Darrow confronted the issue head-on:

I don't mean to tell this jury that labor organizations do no wrong. I know them too well for that. They do wrong often, and sometimes brutally."But I am here to say that in a great cause these labor organizations–despised and weak and outlaws as they generally are "have stood for the poor, and they have stood for the weak, they have stood for every humane law that was every placed upon the statute books....I know their cause is just.

Big Trouble ranges beyond the Boise courtroom to provide a sweeping view of turn-of-the-century America. The trial becomes a stage on which various characters make their cameo appearances. Barrymore played one night in the town, sitting through Darrow's opening statement and upstaging him simply by being present. This incident triggers a lengthy digression on the theater, the plays of Clyde Fitch, and monopolistic practices in the entertainment industry. Lukas uses other details for similar forays into social history. For example, readers do not merely learn everything about Caldwell's Idanha Hotel (what was on the menu, the name of the intercom system, and the fact that the hotel featured the first electric elevator in the Northwest), which served as prosecution headquarters for 15 months. In addition, they learn about the growth of hotels in America. Through similar pretexts Lukas informs readers of the rampant use of private detectives during the era, the Spanish-American War, the fate of the African Americans who fought for the Union during the Civil War, the labor movement, small-town baseball, the professionalization of college football, the changing role of the press, and the conservation movement.

Among the most interesting of these digressions is the growth of psychology.McClure's Magazine dispatched Hugo Münsterberg, a Harvard professor, to apply psychology to legal evidence and determine whether Orchard was telling the truth. Münsterberg gave Orchard a battery of tests and concluded that he was.

Even a quick scan of Big Trouble will convince a reader that the author researched his heart out. Unfortunately, Lukas has crammed in too many details. As a result, Big Trouble contains 875 pages of material so dense that at times even a determined reader will consider putting the book down. The best way to approach Big Trouble is to hopscotch through its many digressions and linger only when one finds a topic engaging.


Anthony J. Mohr is a judge of the Los Angeles Superior Court in Van Nuys.

     





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