Before court opened there was a carnival atmosphere in the spectator section, men calling back and forth to one another, laughing and joking, discussing crops and cattle in loud voices. When the defendants were brought in, the noise suddenly ceased. All knew that Parker would be close behind to mount his throne, which reminded many of a pulpit in a great church. Waiting, they sat leaning forward, like obedient schoolchildren, for Parker had been known to levy heavy fines on anyone misbehaving in his courtroom.
In this hush the bailiff would rise, face the crowd, and intone with as much dignity as he could summon:
“Oyez! Oyez! The Honorable Court of the United States for the Western District of Arkansas, having criminal jurisdiction of the Indian Territory, is now in session, the Honorable Isaac C. Parker presiding. God bless the United States and the honorable court!”
THIRTEEN
It was almost August. Outside, the sun beat down with a merciless glare on the compound and there was no breath of wind stirring. In the courtroom, people sat in shirtsleeves or cotton blouses, busily waving before their wet faces cardboard fans with large black letters proclaiming the benefits of Indian Blend nostrum for rheumatism and neuralgia. They had come early, anxious to see what the trial newspapers were heralding as the preliminary show to the Winding Stair case. Some had lunch pails or brown sacks filled with sandwiches, unwilling once they had a seat to give it up if the proceedings went beyond noon.
As yet, Evans had not gone to the grand jury with the John or Thrasher cases. We had heard twice from Oscar Schiller in Choctaw Nation, but he had not located Mrs. Thrasher. I had begun to despair that he ever would. At least the boy Emmitt had identified Smoker Chubee as the “dark man who just sat on his horse and grinned.” When we showed him the Colt .45 found among Chubee’s things at Smith’s Furnace, he told us it looked like the big pistol the dark man had fired at him when he ran from the scene on Hatchet Hill Road.
During those long, hot days after we brought in Smoker Chubee, I had been working on unrelated cases. Evans explained that he wanted me to have no further part in Winding Stair in view of my being a possible prosecution witness. I had not seen Jennie Thrasher throughout that time, but had talked with Zelda Mores. After the Cornkiller and Grube hearings before the commissioner, Zelda said, Jennie had stayed close to the jail, seldom leaving her room on the top floor. She had asked for books and spent her time reading. I could imagine, as the days grew hotter, how miserably uncomfortable she must have been. I had, on many occasions, given Zelda money to buy Jennie ice creams from one of the Rogers Avenue shops, and had secretly hoped the girl might ask to see me. But she made no response to these feeble overtures. Twice I dreamed of her, but her features seemed to be slipping from my memory, and that made me all the more eager to see her once more.
Merriweather McRoy, the Little Rock attorney, had been in town throughout much of this time, working on his defense for Johnny Boins. He had volunteered his services to Smoker Chubee for nothing more than the nominal court fee paid appointed defense counsels. It bothered me that he wanted this case, but Evans was unperturbed.
“Old Mac just wants to test me in court. He doesn’t give a damn about Chubee. But we haven’t been adversaries since right after the war, in central Arkansas. He wants to get the feel of me before we get into the John and Thrasher thing.”
The Smoker Chubee trial would be my first opportunity to observe Judge Parker preside in court. On that sweltering July morning, only he and Evans were wearing coats. And over his coat, Parker wore the black robe of office. My first impression of him was his intensity. His blue eyes followed each witness to the stand and he seemed to listen with total concentration to every word spoken. From time to time, he pushed a pair of steel-rimmed glasses onto his nose and made pencil notes in a large pad before him. But generally, he held the spectacles in his hand, and sometimes as he became impatient he tapped them lightly on the green felt top of the bench. Now and again he lifted a gavel and seemed to fondle it with both hands as he listened to exchanges. At his side were a number of law books, most of them the statutes of Arkansas. For, like most federal courts of that period, in cases not specifically covered by federal law, precedents followed were those of the old English common law and sometimes of the state in which the court sat.
Parker gave every appearance of a man accustomed to great power. Yet somehow, in his unusual position, the sense of power seemed to make him both confident and humble at the same time. No less so than Parker himself, the people were aware of the unique character of this court. And although some of them understood no nuance of the law, all sat in awe of these proceedings and of this man.
Now, the indictment charging murder had been read, and Smoker Chubee had pleaded not guilty. Evans opened with a few remarks indicating the government would prove murder and the intent to commit it, resulting in the death of United States Deputy Marshal Burris Garret in the Creek Nation at the hands of one Smoker Chubee, here charged, and his companion in the crime, Rufus Deer, deceased. McRoy waived opening and Judge Parker instructed Evans to present his case.
I sat in the spectator’s section, at the wooden barrier immediately in the rear of Evans’s desk. When Orthro Smith was called, sworn, and took the stand, I glanced at my watch. It was 8:32.
“My name is Orthro Smith. I live at my business, which is brickmaking, at a place called Smith’s Furnace, Creek Nation.”
“Do you know the defendant in this case?” There was little of the dramatic about Evans’s courtroom manner. He remained standing behind his desk during examination of witnesses, fully twenty paces from the witness, but his strong voice carried clearly across the room.
“Smoker Chubee,” Smith said, pointing. Chubee was slouched in his chair, but he watched the proceedings with a hard, intimidating glare that unnerved Smith. “He’s worked for me about four months. Off and on. He comes and goes a lot.”
“Mr. Smith, do you recall any conversation you had with the defendant on July fifteenth or thereabouts?”
“I recall something he said to me on that day because I thought it was unusual. He don’t talk much.” Smith shifted constantly on the stand, as though his underwear as too tight. He was a nondescript man except for a waxed handlebar mustache that drooped now with sweat. He gave a visible start when McRoy rose to object.
“This is hearsay, Your Honor.”
“Overruled,” Judge Parker snapped. “A witness can testify to another’s words to show they were spoken, so long as it doesn’t go to the substance of the charge, and—”
“Your Honor,” McRoy interrupted, “I object to your instructing the jury at this time.”
“—and besides, you know as well as I do, Mr. McRoy, statements made by a defendant are admissible. Overruled!”
“Exception, Your Honor.”
“Let it show in the record,” Judge Parker said to the reporter, who was taking shorthand notes. “Go on, Mr. Smith.”
“Smoker said Rufus was coming back into the neighborhood to see his folks. They got a little farm nearby the Furnace. Smoker and Rufus was friends. I’d seen them together a few times.”
“The defendant made a point of telling you this?”
“Yes. I recall because at the time he told me, everybody knew the law was after Rufus.”
McRoy was on his feet again. Even in shirtsleeves, he was an imposing figure. A full head taller than Evans, who was no small man himself, the defense counsel wore a Vandyke beard and his thick brown hair was close-cropped and graying at the temples.
“Your Honor, I object to that statement.” He spoke without effort, yet his deep voice boomed throughout the large room.
“Mr. Smith,” Judge Parker said. “It is sufficient to tell what you knew.”
“Thank you, Your Honor,” Evans said. “Now, sir, you say you were aware that Rufus Deer was wanted by officers of this court?”
“It was in all the newspapers. He was wanted for the Winding Stair killings—”
“Your Honor,�
� McRoy said, cutting into the testimony. “I object to any reference to matters other than those under consideration here.”
“Sustained, and the jury will disregard any reference to other crimes.”
“Sir, I object to the word crimes,” McRoy said. He was completely at ease, in marked contrast to Evans, whose face had begun to grow purple. Judge Parker tapped his glasses on the bench as he calmly considered the defense counsel. Everyone in the room knew that this early bickering, although perhaps justified in substance, was largely a testing of the court by McRoy.
“Sir, it is hardly likely we can avoid the word, since our entire purpose here is to determine if there has been a crime and who committed it. Mr. Evans, please continue.”
“The government is prepared to produce a warrant issued on Rufus Deer,” Evans said.
“It is sufficient the witness knew he was being pursued by the law.”
“Your Honor, I object to the term pursued,” McRoy said, smiling. For a moment Judge Parker fixed the defense counsel with his eyes.
“Mr. McRoy, please sit down,” he said. “Let’s get on with it.”
“Very well,” Evans said. “Mr. Smith, when the defendant told you Rufus Deer was coming, was this his habit? Confiding such information?”
“No, sir. He was pretty tight-lipped about things. I recall him saying it because it was unusual.”
“Did it occur to you that he was giving this information for a purpose?”
“Objection,” McRoy said from his seat.
“Sustained.”
“Very well. Mr. Smith, what did you do after the defendant told you this?”
“That Rufus was coming? Why, I rode into Okmulgee that night and told Marshal Garret what Smoker had said.”
“Had you ever done this before?”
“Yes, sir. A lot of the boys are always hanging around my place and I hear things useful to the law.”
“Did the defendant know this?”
“It wasn’t any secret—”
“Objection.” This time McRoy’s voice was harsh. “This is an assumption.”
“Sustained,” Parker said, and he bent closer to the witness. “Mr. Smith, did you ever tell the defendant that you provided information to the deputy marshal in Okmulgee?”
“No, sir, I never done that,” Smith said. “But everyone knew—”
“That will be enough along that line,” Parker said, an edge to his voice as well.
“Mr. Smith,” Evans said. “Do you recall if the defendant told you the time Rufus Deer would come?”
“Smoker said in a few days. Then he said July eighteenth.”
Evans took a paper from his desk and walked to the bench, handing it up.
“Your Honor, I introduce a Creek Nation coroner’s report, a copy of which has been provided to the defense counsel, stating that the death of United States Deputy Marshal Burris Garret occurred on the night of July eighteenth–nineteenth, and ask it be entered in evidence.”
Parker, his glasses on as he read the paper, asked if defense objected and McRoy said defense did not.
“No more questions,” Evans said, and McRoy was up for cross-examination.
During his interrogations, he stood directly before the stand, his hands thrust into hip pockets as he leaned from the waist toward the witness. He reminded me of the umpires at baseball games I had watched in Saint Louis.
“Mr. Smith, the prosecution instructed you on that date, didn’t they?”
“I object,” Evans said.
“There’s nothing wrong with the question, Mr. Evans. Go on, Mr. Smith, answer the question.”
“We talked about it some, yes. But I remember that’s what Smoker said.”
“Mr. Smith,” McRoy said congenially, as though he were having a conversation with an old friend. “You sell whiskey at the Furnace, don’t you?”
Smith started to answer, glanced quickly toward Evans, then shook his head. Before Parker could instruct him in answering properly, McRoy asked his next question.
“Have you ever been arrested?”
“A long time ago, yes,” Smith said, squirming. Smoker Chubee was grinning, his teeth showing white in his dark face.
“In fact, twice, you were arrested and fined for selling whiskey. Is that true?”
“Yes, sir.”
Evans was leaning forward in his chair but he didn’t object because he knew Parker would not sustain him.
“And isn’t it true that at the present time, you are free on bond from a Creek court for selling whiskey?”
“They never brought that one over here to Fort Smith. They dropped the charges.”
“Why did they do that?”
“I don’t know. Lack of evidence, I guess.”
“Isn’t this true, Mr. Smith: You are legally in The Nations on a work permit and the Creek police caught you selling whiskey; but because you are an informer for a federal officer, they dropped the charges?”
“I don’t know why they dropped the charges.”
“Isn’t it true that federal officers pay you for information?”
“Well, yes, sometimes,” Smith said. He was sweating hard now, his shirt showing in wet patches between the straps of his suspenders.
“How much did they pay you for this information about Rufus Deer?”
“Seven dollars.”
“Then you are a paid informer?”
Parker broke in. “I think he’s answered adequately without taking it any further, Counselor. Do you have anything else for this witness?”
“No,” McRoy said, turning away and smiling at the jury. “I think not.”
There was a low grumbling in the courtroom as the witness left the stand, but Parker ignored it. Evans called me next and I detailed how the two Osage scouts and I had gone to Low Hawk Corners to meet Garret, responding to Smith’s information. McRoy made a great fuss over proof of Garret being a federal officer, but Evans had anticipated him. He introduced a copy of Garret’s commission. When we had brought in Cornkiller and Grube, I saw Garret sign his name to a number of documents in the commissioner’s office and now affirmed that the signature on the oath of office was indeed Garret’s.
McRoy continued to fume over the authenticity of the document, but it was all court smoke, as Evans put it, meant only to confuse the real issues before the jury. After a moment of wrangling, I continued my story. By then a fly had begun to hum around my moist face and I waved it away repeatedly, but it kept coming back. Smoker Chubee watched all of this with obvious amusement. From time to time, when he shifted his position, his leg chains gave off a faint clink.
I told of hearing the voice call Garret’s name, of going out to the porch, of the shooting. I told of Garret’s wounds as I had observed them, and of finding empty .44–40 shells, a dead horse, and Rufus Deer, along with an empty rifle. On my identification, the shells and the weapon were introduced into evidence.
It was an exciting experience, spinning out testimony of a violent crime. But cross-examination was not so entertaining or pleasant. McRoy was on me like a hog after a garden snake.
“Mr. Pay, you’re an assistant to the United States attorney?”
“No, sir, I have not passed the bar,” I said. “I have been working as clerk in the prosecutor’s office, reading law. And recently I was given appointment as a special investigator in regard to another case.”
“What experience have you had as a peace officer?”
“Before I came to Fort Smith, none.”
“What experience have you had in examining wounds and identifying signatures and articles to be placed in evidence?”
“None.”
“Mr. Pay, how many .44–40 rifles do you suppose there are in The Nations?”
“Objection,” Evans roared, leaping up, his face red. “Such a question is meant only to cloud the issue.”
“It seems a rather good question to me, Mr. Evans,” Parker said. “However, it calls for an opinion the witness is incompetent to answer. S
ustained.”
“Very well,” McRoy said, pacing for a moment and glancing at the jury knowingly. Once again he resumed his half-bent posture before me. His constant smiling infuriated me. “On the shooting, Mr. Pay. Did you recognize anyone at the corner of the barn?”
“I could see the forms of men and horses, but I recognized no one. Later, I recognized Rufus Deer when we—”
“Very well, Mr. Pay, very well. You needn’t enlarge. Now think carefully. Who fired first?”
“The first shots came from the night. From the barn.”
“In a moment of great danger, and you flat on your face on the porch floor, how can you be sure?”
“I wasn’t on my face until after the first shots were fired,” I said, and the anger was rising in me. “And they came from the barn.”
“You’d swear to that?” He was no longer smiling.
“Mr. McRoy,” Parker said. “He has just done so.”
“Mr. Pay, you went to Low Hawk Corners to arrest Rufus Deer on another matter?”
“We hoped to arrest him, yes.”
“Did you have a warrant for him?”
“Yes, sir, we did.”
“Did you have a warrant for Smoker Chubee?”
“No, we had a John Doe—”
“I am not asking about John Does. What I’m asking is, were you after Smoker Chubee?”
“Until that night, we had not heard of Smoker Chubee.”
“Then why would he have any reason to ambush a United States marshal?”
Evans was up, but before he could object, McRoy spun and waved him off.
“I withdraw that,” he said. But as he took his seat, he once more looked at the jury and smiled.
When Joe Mountain entered the courtroom after Evans called him, I was flabbergasted. I had not seen him in a number of days, and in that time he had bought a new suit and hat. The suit was yellow-and-brown plaid, complete with vest, and the hat was a small bowler that perched on top of his head like the purple plum atop a gigantic orange cake. As he walked through the barrier gate, he looked at me and grinned, his great eyeteeth showing and the tattooed dots along his cheek standing out like blue buttons.
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