“Yes.”
“Very well then,” continued Darrow, “in what other ways did the Pinkertons ‘subvert Federation activities,’ as you called it?”
“They’d cut pay to miners, monies coming though the Federation, just to anger the members against the leadership.”
“And by leadership, you mean—”
“Mr. Haywood there, and Mr. Pennington.”
“Mr. George Pennington? The Federation’s treasurer? The acting president in Mr. Haywood’s absence?”
“I don’t know about now, of course, but when I was fired, Detective McParland was focused on Mr. Haywood.”
Feeling good about this examination, Darrow thought to tidy up any problems that might arise on Borah’s cross. He came close to the witness box and spoke in a gentle tone. “One more thing, Mr. Friedman. Why were you fired?” It was a question Darrow hadn’t discussed with Friedman, but thought its answer would be harmless: The man was writing a book on the Pinkertons, something Mr. Pinkerton didn’t approve of.
Friedman looked spooked for a moment. He frowned and repeated the question, “Why was I fired?”
“Yes, Sir, if you don’t mind,” Darrow urged. His mind whirled: Something’s wrong. Why is he hesitating?
“Detective McParland found a manuscript I’m writing.”
“A book?”
“Yes, Sir”
“What about? What’s your book concerning? The Pinkerton Detective Agency?”
Again Friedman dithered, his eyes locked on Darrow’s. Finally, he blew a breath and said, “More than that. I was writing on the embezzlement action—the Pinkerton’s work to make it look like Mr. Haywood had stolen more than he already had.”
“More than he already—” As soon as Darrow began, he regretted it. “I retract—”
“We knew Mr. Haywood had skimmed thousands from the Federation, but Detective McParland wanted it to look worse, so the papers—”
“Hold a moment, Mr. Friedman,” Darrow interrupted. “You don’t know if Mr. Haywood had done such a thing.”
“I saw Federation ledgers.”
“I have to stop you right there,” said Darrow, feeling his cheeks flush. He had called Friedman to give evidence against the Pinkertons—revealing the agency’s nefarious practices and motivations, how the Pinkertons couldn’t be trusted to be the gatherer of the State’s evidence. But he’d led this witness right off the path. Now, suddenly, Friedman was introducing evidence that Haywood stole from the union? Embezzlement didn’t mean Haywood was guilty of ordering the assassination, of course, but it certainly didn’t help his case. Worse yet, the accusation might put Haywood’s life in danger—not from the Pinkertons or the government, but from his own labor men. And to tie a big black bow on all this, Darrow couldn’t switch to taking Friedman on as a hostile witness, nor could he imply that Friedman was lying—the man was his witness after all.
Behind him, Borah was smiling, watching the heavyweight stumble on his own shoe strings.
Darrow continued, slowly, as though easing a horse through fallen timbers. “Would it be correct to say the Pinkertons discussed the idea that Mr. Haywood may have done such a thing as embezzle, but, as far as you know, there is no direct evidence of such?” He pulled a breath, scolding himself for not better preparing Friedman—for not better preparing himself.
“That’s correct.”
“All right. Thank you for clarifying … that point.” He stalled again, looking for a pivot back to firmer ground, feeling the juridical parts of his brain scramble for congruence, gasping for the oxygen of a logical argument. “What other actions by the Pinkertons against the Federation were you aware of?”
“All sorts,” said Friedman. “The Pinkertons think themselves a secret police force. The one eye—always open and watching.”
“The one open eye, yes,” mumbled Darrow, his mind not fully re-engaged. What one eye? Haywood’s eye? Oh, yes, the symbol of the Pinkertons—the one eye. “From your testimony so far, Mr. Friedman, it sounds as if the Pinkertons believe they can do anything they wish. Would you agree?” There, that was better.
“Yes.”
“Objection,” growled Borah. “Leading. Argumentative. This isn’t cross-examination or a closing argument.”
“Sustained,” said Wood. “Mr. Darrow, wrap this up.”
“Yes, Your Honor,” said Darrow, leaping at the judge’s permission to abandon this witness to the wolves. “Thank you, Mr. Friedman. I have no further questions.”
Borah stood and said, “Mr. Friedman, thank you for your candor as to the Pinkerton’s discovery of possible embezzlement by Mr. Haywood of union funds.”
“Objection,” blurted Darrow, “that is testimony beyond—”
“Come now, Mr. Darrow,” said the judge.
“I would agree with Mr. Darrow, Your Honor,” said Borah. “In fact, the State will stipulate that any embezzlement by Mr. Haywood from union coffers is sui generis to the facts in question.”
Though Darrow winced at the right hook to his jaw, he had to admire Borah’s skill at landing it. While making himself appear reasonable and conciliatory, Borah had repeated the embezzlement accusation to the jury, and threw in unnecessary Latin to make it sound even more true.
“Very well,” said the judge. “All questions and testimony alleging Mr. Haywood embezzled from the Federation will be struck from the record.”
“Thank you, Your Honor,” fumed Darrow. Now the judge had repeated it. No matter what the jury thought regarding Haywood’s role in the assassination, one thing was now clear to everyone there: Haywood had stolen from the union. But there was little Darrow could do. It was his own outhouse that he’d tipped over.
“So, Mr. Friedman,” continued Borah. “I’ll ask you directly: Do you have any knowledge or information that might refute the evidence the State has presented in this court, that Mr. Haywood ordered the assassination of the governor of Idaho?”
“No.”
Judge Wood shook his head as Darrow rose to object.
Borah turned on his heel. “Very well. No further questions.”
Darrow took a breath, unsure how much of that exchange his volatile client had followed. Probably all of it.
<><><>
– 65 –
TUESDAY
July 23, 1907
The trial was in its third month, counting the recess for Darrow’s absence, when, on a hot, ninety-five-degree July day, Darrow called William D. Haywood to the stand. Looking out over the packed room aflutter in hand fans, Big Bill calmly denied every allegation that had been presented by Orchard. Not wearing an eye patch, he was careful to keep his dead eye away from at the jury. In fact, he scooted himself such that even the furthest juror couldn’t be jarred by the offending orb. No, he hadn’t ordered Mr. Orchard to harm or otherwise do anything regarding anyone, and that included Governor Steunenberg. And no, he had never ordered Mr. Orchard to blow up any mine or depot. Nothing of the sort. Nothing written. Nothing verbal. And no, he had no knowledge of the special yellow paper on which he supposedly wrote orders before burning them. Darrow then took him through the good deeds of the Federation, the lives saved, the widows protected, the children fed and clothed.
When Borah came forward to begin cross-examination, Haywood lifted his head and engaged the special prosecutor with his dead-eyed stare—an unshakable assault on the senator’s concentration and confidence. Borah would later shudder in recapping the encounter, saying the man’s glare “doubled me up like a jack-knife.” After an hour, and making no ground against the implacable giant, Borah moved toward his table and began to say, “No further questions,” when he pivoted, lifting a finger to the air. “One more question, Mr. Haywood.” Staying at the prosecution’s table, he raised his voice to be heard by the jury and the gallery alike. “When you were arrested in this matter, where were you?”
Darrow’s chair scraped the wood floor as he stood. “Your Honor, I must object. The location of his arrest, which we attest to have been improper at best, is not relevant.”
Judge Wood sagged his chin in contemplation, and then raised it and rubbed his neck. “I’ll allow it. But, Mr. Borah, I must caution you, if you travel this road too far, I’ll have no choice but to allow Mr. Darrow’s wish to bring in the procedural questions surrounding the arrest and transportation of the accused.”
“I understand, Your Honor,” said Borah.
“Then proceed, with that caution.”
“Thank you. So, Mr. Haywood, I ask again, where were you at the time of your arrest?”
“At home, in Denver.”
“You have two homes, I believe. In which were you that night?”
“My suites in the Pioneer Building.”
“And more specifically, in which room were you found?”
Neva turned to look at Winnie four rows back. When the sisters’ eyes met, and Winnie saw Neva’s tears, Winnie mouthed silently, “I’m sorry,” then rose and hurried from the courtroom.
Haywood watched her go, then bounced a look at Neva. Then he turned to Borah. “You asked where I was—when they invaded my house and kidnapped me?”
“In which room were you when you were arrested?”
“None of your goddamned business is where.”
Borah looked at the judge. “May the witness be instructed—”
“I’ll certainly not,” barked Judge Wood. “It’s his prerogative not to answer such a question.”
“Then I choose not to,” said Haywood.
“I’ll ask it another way, then,” said Borah. “Isn’t it true that you were in bed with your wife’s sister at the time of the arrest?”
The gallery had to be gaveled to silence and order.
Fixing his gaze on the empty air before him, Haywood flexed his jaw and shook his head, almost imperceptibly.
“So, you’re saying it is not true? You might not answer, but you may not lie, Mr. Haywood. So, I’ll ask you again, were you not in bed with your wife’s sister—in her bedroom?”
Haywood’s glare remained, his head now motionless.
“Very well,” said Borah. He turned to the jury. “The defendant refuses to answer—thus inviting us to draw what conclusions we will. Are you a Christian, Mr. Haywood?” He pivoted to face the witness chair.
“No. Most certainly not.”
Darrow started to stand, but Woods motioned him down.
“No?” pressed Borah. “And why’s that?”
“It’s nonsense,” said Haywood, his fingers now entwined with themselves.
“Including the faith of your wife, the Adventists?”
“Fables and the vagaries, like that old woman’s science.”
Borah frowned at the unexpected answer. “Do you mean Mary Baker Eddy?”
“Yeah, the blathering bag.”
“That’s Christian Scientists, right? The Adventists are—”
“Same damn thing, basically.”
Neva blanched and looked at her hands in her lap. George handed her a handkerchief across the back of her seat.
“I’m certain the two religions are not the same. But to continue: as a professed atheist, Mr. Haywood, do you nonetheless think it not an outrage of natural law, a corruption, for a man to lie with his wife’s sister? To commit such an act of obscene adultery?”
Darrow got to his feet, but it was not necessary.
“All right, Senator,” said the judge, intentionally using the title. “Shall I open up the entirety of the arrest?”
“It won’t be necessary.”
“No? Then this line of questioning is at its end.”
“Yes, Your Honor,” said Borah. “I have no further questions for the defendant.”
Judge Wood looked at Darrow. “Redirect, Mr. Darrow?”
Darrow scratched his eyebrow, took a breath and stood. “No, Your Honor. The defense rests.”
Behind Darrow, Neva dabbed her eyes with George’s handkerchief, then set her gaze on an angle away from Bill as he stood from the witness box.
<><><>
– 66 –
WEDNESDAY
July 24, 1907
The time came for Darrow to give his closing argument, to say whatever he could to persuade the jury to save Haywood. In the weeks leading up to this moment, he’d often focused his thoughts on the sheep rancher, O. V. Sebern, the juror who Jack had deceived Darrow into sitting—the juror who undoubtedly would vote to convict, regardless of the evidence, regardless of the two-witness rule. How could he convince that man? That man who shouldn’t be on this jury in the first place. How could he turn Sebern’s vote from guilt to innocence? He rolled the problem around like a Chinese puzzle box, vexed, looking to unlock it, trying to convince himself that it had at least one invariable solution.
Meanwhile a blacker question hissed at him from the procedural gloom. How had he allowed himself to be so manifestly misled? The most treacherous man is the one who moves with grace through his own deception. Jack Garrett did that. Darrow had to respect the young man’s skill, the simplicity of his ruse, the elegant prevarication. It had rattled Darrow since he realized it that first day in court. He’d been tricked into putting that spurious Sebern fellow on this jury, a certain ringer for the prosecution—not for the defense, as advertised. What a fool, he’d been. It was a far worse error than calling Friedman to the stand. Well, thank God, Haywood didn’t know about Sebern. But Carla knew. Of course, she did. She’d carried the lie from Jack to Darrow. But had she known it was a lie when she relayed it? Darrow was unsure. Regardless, surely she knew now. But she wouldn’t tell Haywood. Would she? She wasn’t allied with the Federation’s cause anymore. She’d even stopped coming to court. That did little to allay Darrow’s worries, but it was all he had.
He banged his thoughts back to where they belonged: persuading Mr. O. V. Sebern. In fact, as he got to his feet to address the jury, he told himself to be glad Sebern was sitting there in front of him. The man wasn’t a villain, he was an opportunity. The man gave him a target, a single person whom Darrow’s words must impact, must sway. If he won Sebern, he might win them all. But Sebern wouldn’t be convinced by outright denials. Darrow would have to take a serpentine path of his own, a calculated risk. He’d need to concede a few Federation faults and transgressions. Then, once Sebern became convinced of Darrow’s reasonableness—once Sebern sensed Darrow understood him, indeed aligned with him in some ways—then Darrow could lead Sebern, and thus the other jurors, out of the darkness of the union’s misdeeds, and into the aura of innocence of one man, and then on to the inevitability of a not-guilty verdict. Or so went Darrow’s plan.
He began by excoriating Orchard, calling him “the biggest liar that this generation has known.” He went further, declaring, “Any man who’d take away the life of a human being, another man, simply on the testimony of an animal of Harry Orchard’s low character, would place a stain upon the state of his nativity that all the waters of the great seas could never wash away.”
Six hours later, Darrow went for his divergent gambit. “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. They’re sometimes cruel. They’re often unjust. They’re frequently corrupt.” The courtroom seemed to gasp in unison. People whispered, scooted in their benches, then froze. Darrow glanced at Haywood who remained composed. He looked at Neva, behind Haywood. To Darrow, she seemed a flat cut-out, an enduring shell of a woman. He faced the jury again.
“Yes, labor unions can be corrupt. Capable of being unjust. Human. I know that. As do you. But I’m here to say that in a great cause, these labor organizations, despised and weak and outlawed as they generally are, have stood for the poor, they’ve s
tood for the weak, they’ve stood for every human law ever placed upon the statute books. They’ve stood for human life. They’ve stood for the father, bound down by his task. They’ve stood for the wife, threatened to be taken from the home to work by his side. And they’ve stood for the little child, also taken to work in their places, that the rich could grow richer still. And they’ve fought for the right of the little one, to give him a little of life, a little comfort while he is young.”
Darrow returned to his table to drink from his water glass. As he tipped the glass back, he let his gaze fall across his fingers to the silent gallery beyond. A few women were dabbing their tears. Good, he thought. The time had come. He returned to the jury, looking first at Sebern. “But I don’t care how many wrongs they’ve committed. I truly don’t. I don’t care how many crimes these weak, rough, rugged, unlettered men who often know no other power but the brute force of their strong right arm, who find themselves bound and confined and impaired whichever way they turn, who look up and worship the god of might as the only god they know. I don’t care how often they fail, how many brutalities they’re guilty of. I know their cause is just.”
An hour later, feeling that he had Sebern, he began to slowly pull the jury in, reeling them toward “not guilty.” Even if he couldn’t convince them of an alternate motive for Orchard’s actions, Darrow needed only plant the seed of doubt regarding Haywood’s involvement—to refuse them the safe harbor of “beyond a reasonable doubt.” Governor Steunenberg’s assassination had clearly been motivated as Orchard had said: in retaliation for the governor wrongfully incarcerating (for a time) all the Federation men in Idaho, after the Bunker Hill attack. But the assassination had not occurred by Haywood’s order. No, Orchard had lost a share in a silver mine due to the governor’s actions in the wake of Bunker Hill. Thus, Orchard killed the governor, acting alone, and without the assistance of Steve Adams—just as Adams had testified. It was nothing more than personal, spiteful revenge. And Orchard’s shameful lie of a “confession” regarding Haywood and the scrap of paper? Harry Orchard would take it to his grave as to why he had given such unconscionable false witness against Bill Haywood. Perhaps Orchard carried some depraved hope for revenge against Haywood, just as he had carried against Governor Steunenberg. No one would ever know.
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