Finally, in the eleventh hour of his closing, Darrow delivered his summation. “I have known Bill Haywood. I’ve known him well, and I believe in him. I do believe in him. God knows it would be a sore day to me if he should ascend the scaffold. The sun would not shine, nor would the birds sing on that day, for me. It would be a sad day indeed if any calamity should befall him. I would think of him. I would think of his wife. I would think of his babes. I would think of the great cause that he represents. It would be a sore day for me. But, gentlemen, he and his wife and his children are not my chief concern in this case. If you should decree that he must die, ten thousand men will work down in the mines to send a portion of the proceeds of their labor to take care of that widow and those orphan children, and a million people throughout the length and the breadth of the civilized world will send their messages of kindness and good cheer to comfort them in their bereavement. So, no, it’s not for them I plead.”
Again, he sipped from his glass. Finishing the water, he motioned to Deputy Jones, who brought a pitcher and refilled it. Darrow stationed himself in front of Sebern and said, “Thank you, Deputy Jones.” He looked at the floor, and then surveyed the eyes of the jurors. “Other men have died. Other 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. Men who have raised their voices in defense of the poor, in defense of justice. They’ve made their good fight and have met death on the scaffold, on the rack, in the flame. And they will meet it again and again until the world grows old and gray.”
Darrow turned to face Haywood. “Bill Haywood is no better than the rest. He can die, if die he needs. He can die if this jury decrees it.” Facing the jury again. “But, oh, gentlemen, don’t think for a moment that if you hang him you’ll crucify the labor movement of the world. Don’t think that you’ll kill the hopes and the aspirations and the desires of the weak and the poor.” He focused again on Sebern, and then the others. “You men, unless you are anxious for this blood, are you so blind as to believe that liberty will die when he’s dead? Do you think there are no other brave hearts, no other strong arms, no other devoted souls who will risk their lives in that great cause which has demanded martyrs in every age of this world? There are others, and these others will come to take Bill Haywood’s place. They’ll come to carry the banner where he could not carry it. And it is one banner, the same banner. And in that same banner runs the color red, for sacrifice, blood spilt for the most noble struggle. For liberty. For justice. For life.”
Pockets of sobs came from the gallery, elsewise crisp with silence. Darrow turned toward the sounds and sniffed. He gave a sad nod toward Winnie who wiped her cheeks, and noted Neva was still stone. He rotated back to the jury. “Gentlemen, it’s not for him alone that I speak. I speak for the poor. For the weak. For the weary. For that long line of men who in darkness and despair have borne the labors of the human race. The eyes of the world are upon you, upon you twelve men of Idaho tonight.”
He leaned on the rail of the jury box and spoke softly. “Wherever the English language is spoken, or wherever any foreign tongue known to the civilized world is spoken, men are talking and wondering and dreaming about the verdict of you twelve men that I see before me now. If you kill him, your act will be applauded by many. If you should decree Bill Haywood’s death, in the great railroad offices of our great cities, men will applaud your names. If you decree his death, amongst the spiders of Wall Street will go up paeans of praise for those twelve men, good and true, who killed Bill Haywood. In every bank in the world, where men hate Bill Haywood because he fights for the poor and against the accursed system upon which the favored live and grow rich and fat, from all those you will receive blessings and unstinted praise.”
Darrow paced, took another sip of water, and returned. “But, but, if your verdict should be not guilty, there are those who will reverently bow their heads and thank you, you twelve men, for the life and the character you have saved. Out on the broad prairies where men toil with their hands, out on the wide ocean where men are tossed and buffeted on the waves, through our mills and factories, and down deep under the earth, thousands of men and of women and children, men who labor, men who suffer, women and children weary with care and toil, these men, and these women, and these children will kneel tonight and ask God to guide your judgment. These men and women, and these little children, the poor, the weak, and the suffering of the world, will stretch out their hands to this jury, and implore you to save Bill Haywood’s life.”
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– 67 –
THURSDAY
July 25, 1907
For five hours the next afternoon, lasting again till after dark, Senator Borah gave the State’s closing argument. He began by saying the trial was not an attack on organized labor, but “simply a trial of a murder.” Indeed, the only thing the prosecution sought was justice for his friend, Frank Steunenberg. “Let us never forget that night when he was sent to face his god without a moment’s warning, and within sight of his wife and children. It has never left my mind.”
Borah then deconstructed and denigrated the Federation and Haywood. He walked the jury through the details of Orchard’s “born again” confession. “In it, in his words, I saw divine grace working upon his soul, and through him, to bring justice to one of the worst criminal bands that ever operated in this country.” Borah implored the jury to also examine Orchard’s actions, what he did and where he went, like his many trips to Denver. “Why? Why always back to Denver? Unless it was to find there the protection and pay of his employer.”
Nearing the end, he paused, clutched the witness-stand rail, and stood straight. “In preparing to speak with you tonight, I remembered again the awful thing of December 29, 1906, a night which has taken ten years from the life of some who are in this courtroom now. I felt again its cold and icy chill, faced the drifting snow, and peered at last into the darkness for the sacred spot where last lay the body of my dead friend, and saw true, only too true, the stain of his life’s blood upon the whitened earth. I saw Idaho dishonored and disgraced. I saw murder—no, not murder, a thousand times worse than murder. I saw anarchy wave its first bloody triumph in Idaho. And as I thought again, I said, ‘Thou living God, can the talents or the arts of counsel un-teach the lessons of that hour?’ No, gentlemen, no. Let us not be blinded by the art of oration. Mr. Darrow has that art within him. You heard it yesterday. Last night, I saw tears throughout this courtroom. What elegant oration. But of what consequence upon the facts in question? None. The facts remain: Mr. Haywood ordered the killing of Frank Steunenberg.”
Borah walked to his table for water, returned and regarded the men in the jury box. “Let us be brave. Let us be faithful in this supreme test of trial and duty. If the defendant is entitled to his liberty, let him have it. But, on the other hand, if the evidence in this case discloses the author of this crime, then there’s no higher duty to be imposed upon citizens than the faithful discharge of that particular duty. Some of you men have stood the test and trial in the protection of the American flag.” He turned and looked at the American flag behind Judge Wood. “You know all too well the meaning of the red stripes in that flag. You don’t need a Chicago lawyer to come explain it to you. You know it in your soul. You have served your nation. You are this nation.” Finally, he softened his voice and said, “But you’ve never had a duty imposed upon you like this—one which requires more intelligence, more manhood, more courage than that which the people of Idaho assign to you tonight. And now it is time for you to discharge that final duty.”
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– 68 –
FRIDAY
July 26, 1907
It was a beautiful Friday in Boise. The prior evening’s rain, during Borah’s closing arguments, had cooled the ground and air. Then came the morning’s clear skies throwing newness across the long-trampled courthouse lawn.
I
nside, once all were seated, Judge Wood gave the jury their instructions. “You must keep forward in your mind that the defendant is presumed innocent. The State of Idaho—the prosecution—had the burden to prove guilt. You may only convict if it is your unanimous verdict that the defendant is guilty of the charges beyond a reasonable doubt. The only other verdict can be where you all agree that the defendant is not guilty. You must deliberate until you reach a unanimous verdict, of one or the other. Further, due to the charge against the defendant, you may not reach a guilty verdict unless you believe the prosecution presented corroborating evidence by two or more persons of the defendant’s involvement in the assassination of Governor Steunenberg.”
The jury began deliberations at eleven-ten in the morning.
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“So I don’t hang, the jury needs to hang,” mused Haywood.
“That’s about the sum of it,” said Darrow, sitting next to his client in the spacious cell. Both were leaning against the wall, their chairs’ front legs off the floor. Both were in their shirt sleeves. Haywood puffed a cigar. Darrow a cigarette.
“And you say they won’t retry me?”
“Yes, I said that, but— My God, Bill, after all this— One miss-read after another. Bad guess upon worse. How am I to know?”
Haywood nodded. “You’ve done as best you could.”
“I don’t know.”
“Just to hear you in that closing argument.”
“I apologize I had to acknowledge some less favorable things. It was strategic, of course.”
“Well, the rest was terrific eloquence.”
“Mmph,” snorted Darrow. “I suppose we’ll see.”
Haywood blew a blue cloud across the cell, then followed it with a self-satisfied chortle. “I know where you went, when you were killdeer-ing like you were sick.”
“I told you I was going to mock an illness.”
“Yes, but you didn’t tell me why, or where you’d go.”
“No. It was best to—”
“But I figured it out. Where you went. What you did.”
“You think so?”
“While you were gone, I had more talks with Deputy Jones in here. They wouldn’t let anyone else come see me. We put our minds to it. He’s a smart young man.”
Darrow smiled. “So, where did I go?”
“You went to Wallace, up north, where they tried Adams for murdering the sheriff’s boy. You represented Adams there.”
Darrow didn’t blink. “Why do you think that?”
“Deputy Jones helped take Adams up there for that sheriff. On the way, seems Adams jabbered about how he wasn’t afraid because he was gonna have America’s Lawyer representing him.”
Darrow shook his head. “That nickname again.”
“So that was right?” Haywood absorbed the implications.
“Thank God the deputy didn’t tell McParland,” said Darrow. “He and Borah would’ve told Judge Wood, and he, well—”
“No, I won young Deputy Jones over that night you were here. You saw that. So, he kept it to himself. I think he’s a little afraid of me.” Haywood squinted the dead eye.
Darrow stared blankly into the vacant office beyond the cell. “I’m not sure I did right. Sheriff Sutherland was fireball mad. I can’t say I blame him, seeing how I used him for your benefit. He hadn’t seen what I was going to do, or he’d never have agreed to it.” Darrow rubbed his nose. “He thought we were going to dupe Adams into some hair-brained escape plan. Instead, I got his boy’s killer set free.”
“No, don’t be hard on yourself. You did him a favor.”
“Who?”
“That sheriff.”
“Why’s that?”
“He’ll kill Adams himself. Right?”
“Probably.”
“That’s what I’d do if someone hurt one of my girls. That’s justice. Real justice can only be found outside a courthouse. A man has to set things right himself, directly. These goddamned judges and juries, they never get it right.”
Darrow doubted Haywood realized that the very vigilantism Haywood advocated might come looking for him—if the union believes Haywood stole from them. But that was a fight for another time. And only if Haywood didn’t hang first.
“This jury had better get it right,” said Haywood.
“I hope so,” murmured Darrow, beginning to be unsure which verdict would be “right.” Had he gotten the “right” verdict in Wallace? He closed his eyes, his mind flooding with the absurdity of his client, this murderer, explaining justice, saying he’d kill someone who hurt one of his girls—children the man rarely sees. It was repulsive—Haywood’s obscene hypocrisy—reflecting Darrow’s own. He shook the thought free, creaked his chair forward, stood, then extinguished his cigarette under his heel. He should get this in the open. “There’s another matter, Bill. Those missing funds that the Russian fellow, Friedman, was talking about.”
“Why’d you let him say all that nonsense? Not a word of truth to it. You heard what he said: Pinks are inside our accounts, twisting numbers to say I’m thieving. But you know that’s not true.”
“The leadership came to me,” said Darrow, his face hardening.
“You mean George Pennington came to you.”
“He did, along with the local labor presidents.”
“How many?”
“All of them,” said Darrow.
Haywood stood abruptly, but stayed silent for a bit. Then he said, “You represent me, Clarence.”
“Yes, in this case. Otherwise I represent the Federation.”
Haywood glowered. “The great Clarence Darrow, America’s Lawyer—my savior today, my hangman tomorrow.”
“I’m not your savior, nor—”
“That wasn’t the point!” thundered Haywood.
Darrow squared with Haywood but spoke calmly. “Nor will I be your hangman. After this jury returns, regardless of the verdict, I’ll no longer be your attorney. And, in truth, I’m not sure I’ll want to further represent the Federation.”
“If you’re not mine, you lose the whole union.”
“So long as you’re its president, that will be—”
“So long as I’m president? What does that mean?”
“I’m just being clear, in case we win tomorrow,” said Darrow.
Haywood nodded. “Well, we goddamned-well better.”
***
By nightfall, with no word from the sequestered jury, the saloons, parlors, and hotel lobbies across Boise vibrated with speculations. Those who hadn’t heard Darrow’s closing argument tended toward Haywood hanging. But for those who’d heard it, a unanimous guilty verdict seemed unfathomable. Many thought it’d be a mistrial, a hung jury—11 to 1, 10 to 2, maybe 9 to 3—in favor of conviction to some, or in favor of acquittal to others. But no one guessed a unanimous verdict of not guilty. Haywood, by popular estimation, would either hang, or he’d be tried again.
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– 69 –
SUNDAY
July 28, 1907
The jury was nerve-rackingly silent on Saturday. Then, at 6:40 a.m. Sunday morning, Judge Wood was roused from sleep with word that, after deliberating all night, the jury had reached a verdict.
***
Darrow studied their faces as they entered the courtroom, shuffling into the jury box. As he expected, none would make eye contact with him, or look at Haywood. Then O. V. Sebern glanced at Darrow and seemed to scowl. Darrow leaned close to Haywood. “Bill, old man, you’d better brace yourself for the worst. I’m afraid it’s against us. Keep your nerve.”
Haywood gave a “Mmph.”
Judge Wood began. “Gentlemen of the jury, your service across the dark hours of last night is greatly appreciated. Have you elected a foreman?”
Sebern raised his hand. “Yes, Your Honor. I�
�m the foreman.”
Darrow closed his eyes. Sebern. Damnit.
Judge Wood said, “Mr. Foreman, it’s my understanding that this jury has reached a verdict. Is that correct?”
“Yes, Your Honor.”
“And is the verdict you have reached the opinion of each and every member of this jury?”
“Yes, Your Honor.”
“Very well, present your verdict to the clerk.”
The clerk took a note from Sebern’s hand and brought it to Judge Wood. He looked at it nonplussed and handed it back to the clerk. “The clerk of the court will read the verdict.”
The clerk turned to face the gallery. “We the jury in the above entitled cause find the defendant, William D. Haywood, not guilty.”
Darrow sat stunned. As did Borah.
Haywood jumped to his feet, laughing and crying at once. As Darrow finally responded, grinning, standing, Haywood shook his hand, and then bear hugged him, lifting Darrow off his feet. Then Haywood turned and rushed the jury box, attempting to shake all of their hands.
***
Neva stood, gathering her crutches under her arms, then eased herself into the aisle, George close behind. She gave Winnie a grave smile, then made her way up the aisle to the main doors. In the hallway, crowded and loud with reporters and attendees pouring out, George helped Neva to the elevator.
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