... and justice for all

William M. Kunstler

1963 Oceana Publications, Inc. Dobbs Ferry, N. Y.

© Copyright, 1963, by William M. Kunstler

All Rights Reserved

Library of Congress Catalog Card Number 62-11115

Manufactured in the United States of America

To

Michael J. Kunstler

Introduction

Years ago, when I tried to enlist the services of the great defender of the underdog, Clarence Darrow, against a free speech prosecution of some midwestern radicals, he refused, not because of lack of sympathy but, as he said, because it was hopeless. “You can’t get anybody off in these radical cases,” he said. “Whenever I get a case with anything radical in it I cut it out. I’m not taking any more of them. I am just defending murderers and other respectable criminals; sometimes I can get them off.”

What Darrow observed then is the theme of lawyer Kunstler’s selection of cases where justice might have yielded to community passion and prejudice. The cases are not exceptional: they are symptomatic. In the First World War, passion against dissenters rose so high that, in surveying the wreckage of the hundreds of federal prosecutions for anti-war utterances, the then Chief Justice of the United State Supreme Court, Charles Evans Hughes, was moved to wonder whether “American democracy could survive another great war, however victoriously waged.”

Half of the ten dramatic court cases skillfully analyzed by lawyer Kunstler for laymen are still for me vivid experiences in the struggles of the American Civil Liberties Union for fair trials against fear and prejudice. All but two of them occurred during the period of my active association with the Union from 1920 on. In some the Union was only indirectly involved; in others it directly took part, and in one, the trial of Scopes for teaching the theory of evolution, the Union initiated the prosecution and handled the defense.

This experience confirms the thesis underlying Mr. Kunstler’s selection of a few of the hundreds of cases he could have cited to show how difficult it is for juries and judges to rise above community fears to deal justly and fairly with unpopular or hated defendants. In most of the cases, “who you were, not what you did,” was on trial, what you represented as a threat to majority prejudice or dominant powers, not what you represented as a force of protest or progress with a claim on equal justice.

It is an old story forever new, and the lesson of history needs constant repetition for us in the United States in terms of our time. It was just such community hostility that condemned Socrates before the jury of Athenian citizens, and forced Pontius Pilate to turn over Jesus of Nazareth to the jury of priests. The witches of Salem were hung in a fury of community condemnation, with the blessing of clergy and officials. In our times, Mr. Kunstler could have brought to witness the hundreds of cases against members of the Industrial Workers of the World before and after World War I, condemned even before they were tried as destroyers of property and enemies of government. Or coming up to date, he could have cited dozens of prosecutions of Communists in which conviction was a foregone conclusion, whatever the charge.

His selection omits these cases in favor of more dramatic and better-known trials illustrating a larger variety of intolerances, racial, religious and political. Only four of the ten involve political radicals,--three of them the casualties of cold war fears for national security. All the defendants are long since dead or freed, with the sole exception of Morton Sobell, convicted with the executed Rosenbergs, now serving a savage thirty-year sentence. The stories are therefore history in the dark chapter of dubious trials, with no call to present action.

What lessons can be learned from the record? Mr. Kunstler offers a few in his preface. I would add one or two of my own.

The emphasis on due process of law as the basic guarantee of our liberties, so often voiced by courts and lawyers, and reasonably true in ordinary trials, is secondary where prejudice prevails. And prejudice is not confined to the fears of war-time, hot or cold, or to the racial conflicts dramatized by a case nationally or internationally famous, as most of these in this book were, but it exists in our courts every day all over the country. What Negro can be assured that he will get equal justice with a white man for the same offense? What Mexican-American in the Southwest? What Puerto Rican in our eastern cities? Is justice as equal in any court for the non-conformist and unpopular as for the regulars?

If our juries and judges are to approach the goal of even-handed justice, we need the restraints, as Mr. Kunstler suggests, of fewer trials by newspapers, more searching screening of juries, more resolute and independent judges, and public defenders, competent to counteract prejudice, for indigent defendants. I would not tamper with the jury system, imperfect as it is in rising above community prejudice; but skilled defense lawyers always know, when there is a choice, whether a judge or a jury is likely to assure a fairer trial.

Not all the cases Mr. Kunstler presents came out badly. Some had salutary effects, even striking. The impact of the Tennessee evolution case was so profound that, although anti-evolution laws were not repealed, they were nullified in practice. The resistance to the McCarthy inquisition, set forth in the Lamont case, combined with the Senator’s own excess of zeal, destroyed him as a political demagogue though the prejudice and fears he aroused continue, greatly diminished, under cold war pressures. The recent school prayer decision will doubtless do much to clarify the delicate relationship between church and state.

The short-range good won from the evils of most of these trials may be matched by their long-range effects if the lesson Mr. Kunstler impresses on us is learned in the administration of justice. But it is a hard task to guard against the prejudices and fears of an aroused community, as all history shows, and yet one which must be achieved if our professions of justice are to be vindicated.

ROGER N. BALDWIN _Founder of the American Civil Liberties Union_

New York, N. Y. October 9, 1962

Preface

In 1953, Professor Edmund M. Morgan, of Vanderbilt University’s School of Law, in his introduction to a reprint of Felix Frankfurter’s _The Case of Sacco and Vanzetti_, wrote: “In times when the opinion of the community is shot through and through with deep-seated prejudices concerning race, social class, economic theories or political ideologies, a case in which either the issues or the parties involved touch these prejudices, arouses passions which becloud judgment and make impossible a fair consideration of the evidence.” Like Professor Morgan, I have always felt that “the fixed preconceptions of the community” can, in too many instances, contribute more to the outcome of criminal trials than the quantity or quality of the evidence. It was with this uncomfortable thought in mind that this book was conceived and written.

I do not claim that all the cases which appear in this collection bear out the truth of Morgan’s observation. But they do illustrate some of the difficulties that confront a defendant who is being tried in an environment that is, to say the least, hostile to him or his cause. This does not mean, of course, that his chance of a fair trial are hopeless. But it goes without saying that he must struggle against greater odds than those faced by others accused of crime who are more acceptable to the community.

Leo Frank, for example, was an outsider and a Jew charged with a particularly heinous crime. As the judge who presided at his trial so aptly put it, “If Christ and his angels came down here and showed this jury Frank was innocent, it would bring him in guilty.” The Scottsboro boys were southern Negroes accused of raping two white women. The fact that the complaining witnesses were tramps, the defendants young boys, and the evidence far from convincing, did not deter three successive juries from imposing the death penalty. Sacco and Vanzetti were immigrant Italians whose anarchistic views had made them anathema to a society which sought its salvation in Attorney General Mitchell Palmer and his pre-dawn raids. Mary Surratt, Alger Hiss, the Rosenbergs and Corliss Lamont were, in one way or another, enemies of the state, Tom Mooney an obstreperous labor agitator in an era of anti-unionism, John Thomas Scopes a threat to the Bible, and the five petitioners in the recent Herricks school prayer case against God.

In all but three of these cases (Mary Surratt was tried by a military commission, Corliss Lamont’s fate decided by a solitary judge and the school prayer petitioners were limited to a single-judge court) the defendants faced juries which were prepared to believe the worst of them before their trials began. Mrs. Surratt was judged by nine army officers wholly subservient to a vindictive, autocratic Secretary of War, and Dr. Lamont, although he was spared a jury trial by the dismissal of the indictment against him, would undoubtedy have been confronted by a panel not overly favorable to an acknowledged leftist who had defied a congressional investigating committee. But, whatever the mode of trial, or type of tribunal involved, the fundamental fact remains that all the pariahs had to run the gamut of a hostile climate of opinion which militated strongly against their chances of success.

The dilemma of the unpopular defendant (or plaintiff) has caused grave concern to those interested in the just administration of the law. Many solutions have been suggested. Some have urged that, as in Great Britain, the news media be forbidden to report any but the most rudimentary details of pending civil or criminal cases. Others have proposed that more frequent changes of venue be granted by the courts. Still others have questioned the validity of the jury system itself. It is my hope that the cases in this volume will illustrate the gravity of the situation and provoke some fruitful discussion of the problem. As Prof. Morgan points out, “the administration of justice, particularly in times of crisis, is one of the most important functions of government.” It deserves the immediate attention of us all.

William M. Kunstler

New York, N. Y. September 15, 1962

“I PLEDGE ALLEGIANCE TO THE FLAG OF THE UNITED STATES OF AMERICA AND TO THE REPUBLIC FOR WHICH IT STANDS, ONE NATION UNDER GOD, INDIVISIBLE WITH LIBERTY AND JUSTICE FOR ALL.”

Pledge Of Allegiance To The Flag

Table of Contents

Introduction VII

Preface XI

_1. She Helped to Kill a President_ 1 UNITED STATES V. SURRATT

_2. Atlanta’s Northern Jew_ 24 GEORGIA V. FRANK

_3. In Union There is Death_ 37 CALIFORNIA V. MOONEY

_4. Anarchists With Bloody Hands_ 65 MASSACHUSETTS V. SACCO AND VANZETTI

_5. He Defied the Bible_ 102 TENNESSEE V. SCOPES

_6. Their Skin was Black_ 120 ALABAMA V. PATTERSON

_7. A Traitor from Harvard_ 137 UNITED STATES V. HISS

_8. They Gave the Bomb to Russia_ 170 UNITED STATES V. ROSENBERG

_9. Contempt by Silence_ 194 UNITED STATES V. LAMONT

_10. Five Against God_ 210 ENGEL V. VITALE

Bibliography 230

Index 232

1

_She Helped to Kill a President_

The United States

_versus_

Mary Eugenia Jenkins Surratt

A few minutes after eight o’clock on the morning of Palm Sunday, April 9, 1865, Robert E. Lee sat down at a field table and wrote a note to General Grant, requesting an interview “with reference to the surrender of this army.” That afternoon, at the McLean farmhouse on the edge of Appomattox village, the fifty-eight-year-old Lee turned over the Army of Northern Virginia to its embarrassed conqueror. The brief surrender document was written out in pencil by Grant at a table in the McLean living room and corrected by Lee who, resplendent in dress uniform sat across the room from the somewhat disheveled Union commander. At 3:45 p.m., the Confederate general signed his acceptance of Grant’s rather generous terms and went out to explain to his incredulous troops what he had done.

Even though Joe Johnston and Kirby Smith were still at large in the deep South, the Civil War was all but over. Two days after Appomattox, Grant and his wife arrived in Washington where the general was promptly lionized by a city gone wild after more than four nerve-wracking years of being a front line capital. In honor of the couple, Mrs. Lincoln had done her part by inviting them to a theatre party at Ford’s Opera House on the evening of Good Friday, April 14th. _Our American Cousin_, a new comedy with the incomparable Laura Keene, had been playing to enthusiastic audiences throughout the North and, although the President wasn’t particularly overjoyed at the prospect of sitting through a late-evening play, he knew better than to obstruct Mary’s plans. However, at the last moment the Grants begged off, primarily because the general had little stomach for what he termed “show business.”

At nine o’clock on Good Friday evening, coachman Francis Burns stopped the White House carriage in front of Ford’s between E and F on Tenth Street. Outside of the Lincolns, his only other passengers were Major Henry Reed Rathbone and Clara Harris, an engaged couple who were filling in for the Grants. When the quartet entered the Presidential box, Major Rathbone and Miss Harris took the two seats nearest the stage with their hosts sitting behind them. Lincoln sprawled in a haircloth rocking chair directly in front of a door that opened on a narrow hallway. Sometime during the afternoon, a small hole had been bored in the door, through which it was possible to observe the box’s occupants from the corridor.

Shortly after the Lincoln party had entered the box, John F. Parker, a perennially thirsty patrolman who had been assigned by the Metropolitan Police to guard the President, decided to leave his post in the hallway and look for a nearby bar. At 10:15, just as, on stage, Harry Hawk was referring to Mrs. Mountchessington as “you sockdologizing old mantrap,” actor John Wilkes Booth opened the now unguarded door and put a bullet into the head of the dozing man in the rocker. The rest was for the chroniclers--the leap to the stage, the broken shinbone, the mad dash across the Navy Yard Bridge, the frenzied manhunt through the woods and swamps of Northern Virginia, and the end of the trail in a burning barn on Garrett’s farm just south of Port Royal.

The self-styled avenger, who believed that “God ... made me the instrument of his punishment,” was destined to die just before sunrise on April 26th on the front porch of a Virginia tobacco farm. The cause of death--a bullet wound in the neck. Whether Booth shot himself, as Colonel Everton Conger, the leader of the cavalry patrol which had run him to earth, believed, or was killed by fanatical Sergeant Boston Corbett who claimed that God had been looking over his shoulder when he squeezed the trigger, didn’t change the essential fact that the assassin was as dead as he was ever going to be. The troopers who searched his body found a small diary and the daguerrotypes of five women in his pockets.

Seconds after Booth’s one-shot derringer had earned him a sizeable place in the history books, a wild-eyed young man on a bay horse pulled up in front of Secretary of State William H. Seward’s mansion on Lafayette Square. Pretending to be a messenger sent by Seward’s physician, he broke into the Secretary’s bedroom where he stabbed him three times. Only a steel frame which the victim had been wearing to support a fractured jaw saved him from death. The intruder then fought his way out of the house, seriously wounding four other people in the process, and rode off toward the east.

Meanwhile, four Pennsylvania artillerymen carried the President’s unconscious form across Tenth Street to William Peterson’s house. There he was placed on a walnut cot in the first floor bedroom of William Clark, one of Peterson’s boarders. He lingered during the night, but it was soon obvious to the six physicians in the room, who could do little more than remove the pressure-causing blood clots that continuously formed at the entrance to the wound, that their illustrious patient would never see another day. By dawn, his breath had become stertorous and labored and, at 7:22 a.m., Surgeon-General Joseph K. Barnes, recorded the last heartbeat. “Now,” Secretary of War Edwin M. Stanton was supposed to have said, as he closed the dead man’s eyes, “he belongs to the ages.”

Some four hours earlier, a Metropolitan Police squad, headed by a detective named Clarvoe, had arrived at a small boardinghouse at 541 H Street, which was owned by one Mary Eugenia Surratt, a widow who had come to Washington from Surrattville, Maryland, in the Spring of ’64. They were looking for Mrs. Surratt’s son, John, who, Clarvoe told her, had just murdered Secretary Seward. When Mrs. Surratt informed them that John had left for Canada when Richmond fell on April 3rd, the squad searched the eight-room brick building from cellar to attic. After ordering Louis J. Weichmann, one of Mrs. Surratt’s borders, to report to headquarters the next morning, the policemen left the house.

As soon as Lincoln died, Stanton, to whom one cause was as good as another so long as he remained _primus motor_, announced that he would not rest until he had found and prosecuted everybody who had anything to do with what his reward circulars referred to as “the stain of innocent blood.” Booth and David E. Herold, a slow-witted youth whose only redeeming feature was his devotion to the actor, had been identified as soon as they fled across the Navy Yard Bridge, minutes after the murder. Herold had been captured by Colonel Conger’s cavalry patrol just before it set fire to the barn in which the two men were hiding.

By that time, Stanton had rounded up seven other persons whom he accused of conspiring to kill the President. There was Lewis Payne, a Confederate deserter and the son of a Florida minister, who had created the havoc at the Seward house. Payne and George A. Atzerodt, a carriage-maker from Port Tobacco, had both boarded at Mrs. Surratt’s prior to the assassination. Atzerodt, who, with Herold’s help, was supposed to kill Vice-President Andrew Johnson at the Kirkwood House, had lost his nerve and spent the night of April 14th wandering aimlessly around the streets of Washington. He was finally captured on April 20th at his cousin’s farm in nearby Germantown. Payne was picked up when he showed up at the H Street boardinghouse at midnight on April 17th, with his head wrapped in a bloody shirtsleeve, just as Major H. W. Smith was in the process of arresting Mrs. Surratt.

Edward Spangler, the cantankerous stage carpenter at Ford’s had held Booth’s horse while the actor was about his murderous business in the President’s box. Samuel Arnold and Michael O’Laughlin, both of whom had known Booth since childhood, had been persuaded by him to help out in an abortive 1864 scheme to abduct Lincoln and hold him a hostage until the North came to terms with the Confederacy. After almost a year of fruitless discussions with Booth about ways and means, both men had withdrawn from the project. On the night of the President’s murder, O’Laughlin had been on a drinking bout in Washington with three friends while Arnold was working for a sutler at Fortress Monroe near Baltimore. Lastly, there was Dr. Samuel A. Mudd, the Maryland physician who had set the murderer’s broken leg the morning after the shooting.

By the end of April, Stanton had everybody he wanted. Herold was brought back to Washington on the same steamboat as his master’s blanket-wrapped corpse, and incarcerated with the other prisoners in the brigs of some gunboats moored near the Navy Yard. All that remained was the selection of a court. The Secretary of War was determined not to let his prizes enjoy the benefits of a civil trial and urged the new President to appoint a military commission to try them. Johnson agreed and, on May 1st, named a commission composed of seven generals and two colonels “for the trial of David E. Herold, George A. Atzerodt, Lewis Payne, Michael O’Laughlin, Edward Spangler, Samuel Arnold, Mary E. Surratt, Samuel A. Mudd ... implicated in the murder of the late President, Abraham Lincoln, and the attempted assassination of William H. Seward, Secretary of State, and in an alleged conspiracy to assassinate other officers of the Federal Government at Washington City.” The main charge--“maliciously, unlawfully, and traitorously murdering the said Abraham Lincoln, then President of the United States and Commander-in-Chief of the Army and Navy of the United States.”

As far as Mrs. Surratt was concerned, Brigadier-General Joseph Holt, the Judge Advocate General, didn’t mince words. She did, he said, “receive, entertain, harbor and conceal, aid and assist, the said John Wilkes Booth, David E. Herold, Lewis Payne, John H. Surratt, Michael O’Laughlin, George A. Atzerodt, Samuel Arnold and their confederates, with the knowledge of the murderous and traitorous conspiracy ... with intent to aid, abet and assist them in the execution thereof, and in escaping from justice after the murder of the said Abraham Lincoln, as aforesaid.” On March 10th, Mrs. Surratt and the seven other defendants pleaded, “Not Guilty.”

Their trial, which began officially at ten a.m. on May 10th, was held in a large room on the third floor of the Old Penitentiary. Several days earlier, the defendants had been transferred from their nautical prisons to cells in the same building where they were kept in solitary confinement. Even their guards were forbidden by Stanton to utter a word to them. Shortly after their arrival at the Penitentiary, the male prisoners’ heads were encased in heavy canvas sacks which were slit in the vicinity of their mouths. Payne’s attempted suicide by butting his head against his cell’s stone wall had alerted the Secretary of War to the possibility that some of his birds might succeed in beating their brains out before he could properly hang them. When General Hartranft, the Special Provost Marshal assigned to the commission, suggested the hoods, Stanton was quick to order them.

The trial had been scheduled to get underway on Tuesday, May 9th, but since the defendants all asked for time in which to find lawyers, General David Hunter, the President of the Commission, postponed it twenty-four hours. The next morning, Mrs. Surratt applied for permission, as Benn Pitman, the chief court stenographer recorded it, “to introduce Frederick Aiken, Esq. and John W. Clampitt, Esq., as her counsel, which applications were granted.” Dr. Mudd was the only other defendant to have drummed up a lawyer, and Hunter adjourned the Commission to the next day “to allow further time for the accused to secure the attendance of counsel.”

Aiken and Clampitt were two young attorneys who volunteered their services in Mary Eugenia’s behalf. Neither had had much experience in criminal trials and they were only too happy to welcome the assistance of Reverdy Johnson, the United States Senator from Maryland, who felt that the least he could do for an old constituent was to help her defend her life. On Saturday, his co-counsels introduced him to the Commission, only to find that one member--Brigadier-General T. M. Harris--objected to Johnson because he had publicly questioned the legality of the loyalty oath of 1862. When the Senator informed the Commission that he had merely expressed his opinion that the Maryland Constitutional Convention of 1864 did not have the authority to make the taking of such an oath a condition of voting on the new charter, Harris withdrew his objection.

As the prisoners filed into the courtroom, Pitman and his fellow reporters noticed that all except Mrs. Surratt and Dr. Mudd wore ten-inch manacle bars which prevented them from bringing their hands together. Mudd sported ordinary handcuffs while the feet of all the male defendants were shackled together with chains. With Atzerodt and the half-mad Payne, Stanton had taken the additional precaution of welding heavy weights to their steel anklets which made it impossible for them to walk without help from their guards.

The courtroom itself was a dimly lit room with only four small windows to illuminate its more than twelve hundred square feet. The prisoners’ dock consisted of a railed-off raised platform at the far end of the room. The defendants were separated from each other by blue-clad guards who sat between them. Mrs. Surratt’s seat was the last chair on the right side of the platform, just a few feet away from the door through which prisoners were brought from their cells every morning at precisely nine o’clock. There were two small field tables directly in front of the makeshift dock around which the seven defense attorneys sat. In the middle of the chamber were two long conference tables, one of which was occupied by the members of the Commission, with the other reserved for the official reporters. The witness stand was located in dead center between two of the three pillars that supported the room’s eleven-foot ceiling. The walls had been freshly white-washed and cocoa-nut matting had been spread over the stone floor.

As soon as all the defendants were represented by counsel, they were given permission to withdraw their “Not Guilty” pleas and attack the Commission’s jurisdiction. Each prisoner took the position that, since they were all civilians and there were appropriate Washington civil courts available to try them, the Military Commission did not have any power over them. The Judge Advocate answered this by claiming unequivocally that “this Commission has jurisdiction in the premises.” Hunter, who was very much Stanton’s man, went through the formality of clearing the courtroom, and then announced that the prisoners’ pleas were over-ruled. After a motion for separate trials had suffered the same fate, all of the defendants then reaffirmed their innocence.

As it put in its case against the eight defendants, the prosecution digressed for hours attempting to prove that Jefferson Davis and the other Confederate leaders had been responsible for Lincoln’s murder. In fact, Holt and his aides were determined to show that the assassination plot had been connected with Southern guerilla warfare in New York and Vermont as well as with the maltreatment of Union captives at Andersonville and other rebel prisons. Although, the evidence hardly supported their grandiose thesis, they succeeded in creating an illusion that the prisoners in the dock were part of a gigantic plot in which the President’s death was only one of many factors.

Late on the afternoon of May 13th, the Provost Marshal escorted Lou Weichmann to the tri-railed witness stand. Weichmann stated that he had first met John Surratt in the Fall of 1859 at St. Charles College in Maryland. Because of this friendship, he had moved to the H Street boarding house on November 1, 1864. He remembered that his landlady had requested him to visit John Wilkes Booth at the National Hotel twelve days before the President’s murder “and say that she wished to see him on ‘private business’.” Later that same evening, Booth had come to the house and closeted himself with Mrs. Surratt for more than an hour.

On April 11th, Mrs. Surratt had asked her boarder to see whether the actor would lend her his buggy for a trip to Surrattsville, which was some ten miles southeast of the capital. Booth informed Weichmann that he had just sold his vehicle, but gave him ten dollars “that I might hire one.” Weichmann had rented a surrey at Howard’s Stables and then driven Mrs. Surratt to Surrattsville “for the purpose of seeing Mr. Nothey, who owed her some money.” The couple had returned to Washington late that afternoon.

After lunch on Good Friday, Mrs. Surratt had again asked Weichmann to drive her into the country because, she told him, she had received a letter “in regard to that money Mr. Nothey owed her.” She had given him a ten-dollar bill with which to hire another rig. “We took with us only two packages; one was a package of papers about her property at Surrattsville; and another package done up in paper, about six inches, I should think in diameter. It looked to me like perhaps two or three saucers wrapped up. This package was deposited in the bottom of the buggy and taken out by Mrs. Surratt when we arrived at Surrattsville.” As soon as they reached Lloyd’s tavern at 4:30, Lou had headed for the taproom while his passenger went into the parlor. When he called for her at six o’clock, he had noticed that Booth was with her and that the two were in deep conversation.

Before John Surratt left Washington early in April, Booth had been a frequent visitor at 541 H Street. Whenever he called, he had always asked for young Surratt or his mother. “Sometimes,” Weichmann recalled, “when engaged in general conversations, Booth would say, ‘John, can you go upstairs and spare me a word?’ They would then go upstairs and engage in private conversation which would sometime last two or three hours. The same thing would sometimes occur with Mrs. Surratt.”

The witness had first seen Lewis Payne at the boardinghouse early in March. The defendant, who had been introduced to Weichmann as Wood, had arrived with no luggage and remained overnight. The next morning, Payne had taken the early train to Baltimore. He had returned three weeks later, this time dressed as a Baptist preacher, and said that he had just finished a seven-day term in a Baltimore prison but that the experience had taught him a lesson. “He had taken the oath of allegiance, and was now going to become a good and loyal citizen.”

From the first time he saw Payne, he was convinced that the latter was up to no good. One day, he had found a black false mustache “of medium size” on the table in his room. “When I found it, I thought it rather queer that a Baptist preacher should use a mustache. I took it and locked it up because I did not care to have a false mustache lying round on my table.” Later, he used to entertain his fellow clerks in the office of the Commissary-General of Prisoners with “a pair of spectacles and the mustache.”

One evening, he had returned to the house to find Payne and Johnny Surratt “playing with bowie knives” in his room. He also saw two Navy revolvers and four sets of new spurs on the bed. Just after the assassination, the Metropolitan Police had found one of these spurs in Atzerodt’s room at the Kirkwood House. Weichmann had seen Atzerodt, whom the ladies at Mrs. Surratt’s called Port Tobacco, “at the house, ten or fifteen times.” Like Booth, the carriage-maker had always asked for John Surratt or his mother.

Although Weichmann had never seen Arnold or McLaughlin before, he had met Dr. Mudd walking with Booth on Seventh Street on January 15, 1865. The actor had invited him to join them for a glass of wine in his room at the National. There, Booth and Mudd had had a private conversation in the hallway, a discussion which Weichmann was told had to do with the contemplated purchase of the physician’s farm by Booth. “Dr. Mudd apologized to me for his private conversation and stated ... that Booth wished to purchase his farm, but that he did not care about selling it, as Booth was not willing to give him enough.” It was after this meeting, that Booth had begun to show up frequently at the boardinghouse.

Herold had been at H Street once. But Weichmann had also seen him at Surrattsville in the summer of 1863. The only other time that he had met him was in March of ’65 when Booth, who was playing the part of Pescara in _The Apostate_, had given Surratt and himself two complimentary tickets. On the way to the theatre, the two young men had met Atzerodt and Herold, who were also going to the play. After the final curtain, the witness “found Atzerodt and Herold in the restaurant adjoining the theatre, talking very confidentially to Booth.” When the Judge Advocate asked him to identify Herold, Weichmann pointed to the defendant. Benn Pitman, using his brother’s new shorthand system, noted that Herold “smiled and nodded in recognition.”

Senator Johnson took over the brunt of the cross-examination. Weichmann admitted that Mrs. Surratt, whom he had met through her son, was a “member of the Catholic Church and a regular attendant upon its services.” In fact, he had usually accompanied her to church on Sunday mornings. Yes, he was on friendly terms with her son, John, who had never intimated to him that there was a plot afoot to kill the President. The only thing young Surratt had told him about Booth was that he hoped to go on the stage with him in Richmond after the war.

No, there was nothing suspicious about Mrs. Surratt’s April 11th visit to Surrattsville. A John Nothey had owed her $479.00 for more than thirteen years and she had decided to see him personally about it. She had met Nothey early that afternoon in the parlor of a tavern she had leased to a retired Washington policeman by the name of John M. Lloyd, for fifty dollars a month, just before she moved to the H Street house in the Spring of ’64. Her second visit, three days later, had been motivated by a letter she had received from George H. Calvert, Jr., “urging the settlement of the claim of my late father’s estate.” When her husband died in 1862, he had still owed Calvert Senior part of the purchase price of the Maryland property.

When Johnson sat down, young Clampitt took over. He wanted to know whether Weichmann had heard Booth or Mudd discuss anything subversive when he saw them at the National Hotel in January. The witness had not. As for the ten dollars which Booth had given him to hire a buggy for Mrs. Surratt, “I thought at the time that it was nothing more than an act of friendship. I said to Booth, ‘I am come with an order for that buggy that Mrs. Surratt asked you for last evening.’ He said, ‘I have sold my buggy, but here are ten dollars, and you go and hire one.’” No, he had never told Mary Eugenia about that. A few minutes later, he told Aiken that he had written a letter for his landlady to Mr. Nothey, threatening him with a law suit if he did not pay what he owed her at once. He remembered that he had helped her to calculate the interest on “the sum of $479 for thirteen years.”

When Weichmann stepped down late in the afternoon, Hunter adjourned for the day. Since the next day--May 14th--was a Sunday, the commission did not reconvene until the fifteenth. The first witness called on Monday was Mrs. Surratt’s tenant, John M. Lloyd. He recalled that Herold, Atzerodt and John Surratt had come to his house some five or six weeks before the assassination. They had brought with them “two carbines with ammunition ... a rope from sixteen to twenty feet in length, and a monkey wrench.” Surratt had asked him to hide these articles and even showed him a secret hiding place “underneath the joists of the second floor of the main buildings.” On April 11th, he had met Mrs. Surratt on the road at Uniontown. “When she first broached the subject to me about the articles at my place, I did not know what she had reference to. Then she came out plainer, and asked me about the ‘shooting irons.’... Her language was indistinct, as if she wanted to draw my attention to something, so no one else would understand. Finally, she came out bolder with it, and said that they would be wanted soon.”

Three days later, when he returned from watching a trial in Marlboro, he had found Mrs. Surratt in his backyard. “She met me by the wood-pile as I drove in with some fish and oysters in my buggy. She told me to have those shooting irons ready that night, there would be some parties who would call for them. She gave me something wrapped in a piece of paper which I took upstairs, and found to be a fieldglass. She told me to get two bottles of whiskey ready, and that these things were to be called for that night.”

At midnight, Herold had woken him up and said, “Lloyd for God’s sake, make haste and get those things.” The tavern owner had immediately gone to the place where he had hidden the carbines and given them to Herold. For some reason, he did not turn over the rope and the monkey wrench. Herold had taken the bottle of whiskey which Lloyd gave him and offered it to a man who was sitting on a light-colored horse in front of the tavern. In the bright moonlight, the tavern keeper had watched this man, who “was a stranger to me,” put the bottle to his lips and drink deeply. The two men had stayed for only five minutes before riding off in the direction of Tee Bee, a hamlet a few miles to the south. Just as they were about to leave, the man who was with Herold had said, “I will tell you some news, if you want to hear it. I am pretty certain that we have assassinated the President and Secretary Seward.” As they rode off, only Herold took a carbine with him. The other man “said he could not take his because his leg was broken.”

Whether it was the unseasonably hot weather or a monumental case of stage fright, Lloyd had wilted fast as the long morning wore on. By the time the prosecution let him go, he was on the verge of collapse. As Colonel John A. Bingham, Holt’s chief assistant, put him through his paces, the ex-policeman’s back country drawl frequently became so low that even the members of the Commission who were sitting directly in front of him had difficulty in hearing him. Both Aiken and Clampitt were constantly imploring Hunter to instruct the whispering witness to raise his voice, requests that the presiding officer consistently ignored.

On cross-examination, Aiken couldn’t shake Lloyd’s story. But he did get him to admit that there might have been a witness present at the April 14th conversation with Mrs. Surratt about the “shooting irons.”

Q. Are you positive again that Mrs. Surratt told you at that time that the shooting irons would be called for that night?

A. I am very positive.

Q. Was there any other persons present during the interview?

A. Mrs. Offutt, my sister-in-law, was, I believe, in the yard; but whether she heard the conversation or not I do not know.

But he couldn’t remember whether or not he had told “these circumstances” to Mrs. Offutt.

As for the package which Mrs. Surratt had brought to the tavern with her on Tuesday, the 11th, he had taken it upstairs at once.

Q. Did you undo it immediately when you got upstairs?

A. As soon as I got upstairs, I saw what it was.

Q. Did you lay the package down and leave it anywhere before you went upstairs?

A. No, sir.

He was sure that he had told Mrs. Offutt, shortly after Mrs. Surratt had started back to Washington, “that it was a fieldglass she had brought.”

He had gone to bed early on Good Friday because “I was right smart in liquor that afternoon and after night I got more so.” He had been sleeping soundly when Booth and Herold arrived. As soon as they had ridden off, Lloyd went back to bed. When he awoke the next morning, his yard was being picked over by Union soldiers who had traced Booth and Herold there. He was asked whether he “had seen two men pass that way in the morning.” He had replied that he had not. “That is the only thing I blame myself,” he remorsefully told the Commission. “If I had given the information they asked of me, I should have been perfectly easy regarding it. That is the only thing I am sorry I did not do.” In fact, it was not until the middle of the next week that he had decided to tell Captain George Cottingham, who had locked him in Roby’s Post Office in Surrattsville for safekeeping, that Booth and Herold had been at the tavern at midnight on April 14th.

As Lloyd rushed out of the hearing room, obviously destined for the first bar he could find, Holt recalled Weichmann. Outside of some elaboration of his previous testimony about the strange goings-on at chez Surratt, he contributed nothing further to the case against Mary Eugenia. He conceded that he had not heard the conversation between his landlady and Lloyd at Uniontown. It seemed that “Mrs. Surratt leaned sideways in the buggy and whispered, as it were, in Mr. Lloyd’s ear.” When Aiken asked him why he hadn’t told somebody about the suspicious circumstances at the house on H Street, he insisted that “my suspicions were not of a fixed or definite character.” Besides, when he had tried to tell Captain Gleason of the War Department about some peculiar remarks he had heard Booth utter about kidnapping the President, the officer had “laughed and hooted at the idea.”

After Lloyd was brought back to explain that he now wasn’t sure where he had taken the package which Mrs. Surratt had brought to the tavern on Friday, April 14th, Emma Offutt took the stand. She had been in the carriage with Lloyd when they had met Mrs. Surratt near Uniontown three days before the assassination. No, she hadn’t heard a word of the conversation because her brother-in-law had gotten out of the buggy to talk to Mrs. Surratt and “I was some distance off.” As far as Good Friday was concerned, she hadn’t heard anything that was said between Lloyd and Mary Eugenia in the tavern’s backyard. Mrs. Offutt had spoken to Mrs. Surratt shortly after the latter’s arrival that afternoon but she “gave me no charge in reference to her business, only concerning her farm, and she gave me no packages.”

Major H. W. Smith had been in charge of the troops who had arrested Mrs. Surratt on the night of April 17th. “While we were there, Payne came to the house. I questioned him in regard to his occupation, and what business he had at the house that time of night. He stated that he was a laborer, and had come there to dig a gutter at the request of Mrs. Surratt.” Major Smith had asked Mrs. Surratt, who was sitting in the parlor, whether she had hired Payne. She had stepped out into the vestibule and, from a distance of three feet, taken a long look at the man. “Before God, sir,” she had told Smith, “I do not know this man, and have never seen him, and I did not hire him to dig a gutter for me.”

When Holt showed the witness a brown and white coat, he promptly identified it as the coat that Payne had been wearing that April night. Ten minutes later, when William E. Doster, Payne’s attorney, asked him whether he was sure that the brown and white coat had been worn by the defendant, he repeated that “I am certain that this is the coat.” Seconds after the words had left his mouth, Major Smith was busy eating them. Doster shoved a drab-gray coat under his nose and asked him whether he didn’t want to change his mind. He did. “The coat now shown me is the one worn by Payne on the night of his arrest,” he conceded. It was very difficult, he explained, in the poor light of Mrs. Surratt’s vestibule to tell one coat from another. But now he was certain that “the coat just shown me is the one.”

Both Smith and R. C. Morgan, who had been sent to H Street to superintend “the seizing of papers”, had found photographs of such Confederate leaders as Beauregard, Jefferson Davis and Alexander H. Stephens. Lieutenant John W. Dempsey, the officer in charge of the search party, had turned up a rotogravure of John Wilkes Booth hidden behind a small framed lithograph entitled _Morning, Noon and Night_ which hung in Mrs. Surratt’s first floor bedroom. But Captain W. M. Wermerskirch, Smith’s executive officer, swore that he had also seen a photograph of Union General George McClellan in the parlor.

Weichmann had testified that the H Street boardinghouse had been a beehive of activity during March and early April of ’65. On May 22nd, Holt called Honora Fitzpatrick, one of Mrs. Surratt’s more attractive boarders. Miss Fitzpatrick was a very definite young lady. “During the month of March last,” she said, “I saw John Wilkes Booth and John H. Surratt there.” Payne and Atzerodt had also dropped in but only once or twice. Early in March, Payne and Surratt had taken her to a performance at Ford’s Theatre. “I do not know what box we occupied, but I think it was an upper box. John Wilkes Booth came into the box while we were there.”

On May 23rd, the Judge Advocate called it a day and Messrs. Johnson, Aiken and Clampitt began their labors on behalf of Mrs. Surratt. Their first witness was George Cottingham, the special officer who had arrested John Lloyd on April 15th. For two solid days, he had urged his prisoner to tell what he knew about Booth and Herold. Finally, Lloyd had broken down and sobbed, “O, my God, if I was to make a confession, they would murder me.” When Cottingham had asked him who had designs on his life, he was informed that it was “these parties that are in this conspiracy.”

Then the dam had burst. The conscience-stricken Lloyd had told Cottingham everything. “He stated to me that Mrs. Surratt had come down to his place on Friday between 4 and 5 o’clock; that she told him to have the fire-arms ready; that two men would call for them at 12 o’clock....” The two men had turned out to be Booth and Herold, who showed up at midnight and picked up a carbine and some whiskey. As he had unburdened himself to Cottingham, he began to cry out, “O, Mrs. Surratt, that vile woman, she has ruined me! I am to be shot! I am to be shot!”

Cottingham had obviously caught the defense by surprise. Aiken had interviewed him in the bar of the Metropolitan Hotel on May 20th and, at that time, Cottingham had told the lawyer that Lloyd had not mentioned Mrs. Surratt. But, he insisted, “I had an object in that answer. He wanted to pick facts out of me in the case, but that is not my business; I am an officer and I did not want to let him know anything either way. I wanted to come here to the Court and state everything that I knew.”

Q. Did I ask you if Mr. Lloyd, in his confession, said anything at all in reference to Mrs. Surratt?

A. That question you put to me, and I answered; I said, “No.”

Q. That Mr. Lloyd did not say so?

A. I did say so. I do not deny that.

Q. Then you gave me to understand, and you are ready now to swear to it, that you told me a lie?

A. Undoubtedly, I told you a lie there; for I thought you had no business to ask me.

Q. No business! As my witness, had I not a right to have the truth from you?

A. I told you you might call me into court; and I state here that I did lie to you; but when put on my oath, I will tell the truth.

The fact that the Commissioners of Prince George’s County had offered a $2000.00 reward for information leading to the arrest of “anybody connected with the assassination” had had absolutely nothing to do with this fine distinction!

At this juncture, the defense introduced two letters which it claimed would satisfactorily explain Mrs. Surratt’s April 14th trip to Surrattsville. The first was signed by George H. Calvert, Jr., and was dated April 12th. When Mr. Calvert took the stand, he identified his letter which insisted that Mary Eugenia “pay the balance remaining due on the land purchased by your late husband.” The second communication, which had been written by the defendant to John Nothey from Surrattsville on April 14th, demanded that he settle his debt to her “within the next ten days” or she would “settle with Mr. Calvert and bring suit against you immediately.” B. F. Gwynn, who had read this note to the illiterate Mr. Nothey, said he had received it from Mrs. Surratt at the tavern on the afternoon of the 14th.

Lloyd had previously testified that he had been “right smart in liquor” on that fateful Good Friday. The defense team saw nothing to be lost by exploiting this admission to the fullest. Gwynn had seen him on the Marlboro road at 4:30 that afternoon and “he had been drinking right smartly.” Joe Nott, the bartender at Lloyd’s tavern, claimed that his employer “had been drinking a good deal; nearly every day and night, too, he was pretty tight. At times, he had the appearance of an insane man from drink.” As far as the 14th was concerned, “he was pretty tight that evening.”

Zad Jenkins, Mrs. Surratt’s brother, thought that Lloyd “was very much intoxicated at the time.” Richard Sweeney, who had run into the tavern owner on the Marlboro road, remembered that “he was considerably under the influence of liquor and he drank on the road.” James Lusby had ridden back to Surrattsville with him, and said he was “very drunk on that occasion.” Mrs. Offutt thought that her brother-in-law was “very much in liquor, more so than I have ever seen him in my life.” So much so, in fact, that he had become deathly ill shortly after returning from Marlboro and had to lie down. But Lloyd was evidently a man of great recuperative powers, because she had seen him heading back to the barroom a few minutes later.

As the trial dragged on, it was obvious that the Judge Advocate was relying heavily on Mrs. Surratt’s refusal (as he called it) to recognize Payne in the vestibule of her house on the night of April 17th. But Zad Jenkins swore that her “eyesight is defective,” while her daughter, Anna, testified that “my mother’s eyesight is very bad, and she has often failed to recognize her friends.” It was only her vanity, Anna said, that kept her from wearing glasses. Honora Fitzpatrick, who shared Mrs. Surratt’s room, said that her landlady had “complained that she could not read or sew at night, on account of her sight. I have known of her passing her friend, Mrs. Kirby, on the same side of the street, and not seeing her at all.” Honora had also been unable to identify Payne that night until “the skull-cap was taken off his head.” Mrs. Eliza Holahan, another boarder, knew that “Mrs. Surratt’s eyesight was defective.” Anna Ward, an old friend, stated that the defendant had frequently “failed to recognize me on the street”

The rest of the case for Mrs. Surratt consisted of evidence of her good character and loyalty to the Union. Anna Ward knew her as “a perfect lady and a Christian,” while four Catholic priests attested to her religious devotion. Her brother recalled that she frequently gave “milk, tea and such refreshments as she had in her house to Union troops when they were passing.” Rachel Semus, whom, Pitman noted, was “colored”, had been the Surratt cook for six years. She remembered that her employer had “fed Union soldiers at her house, sometimes a good many of them; and I know that she always tried to do the best for them that she could, because I always cooked for them.” Rev. E. F. Wiget, the president of Gonzaga College, had “always heard everyone speak very highly of her character.” John and Bill Hoxton, Surrattsville neighbors, had “never heard her utter a disloyal word.”

On June 13th, the defense suddenly recalled Mrs. Offutt. As she took the stand, Aiken told the Commission “that at the time Mrs. Offutt gave her testimony before, she came here very unwell. If I have been correctly informed, she had been suffering severely from sickness, and had taken considerable laudanum. Her mind was considerably confused at the time, and she now wished to correct her testimony in an important particular.” Colonel Bingham was on his feet in a flash.

Q. Is it something you swore to here in court?

A. Of course, I took the oath when I appeared here.

Q. Do you want to correct anything you have sworn to here in court?

A. Yes, sir, I should like to do so.

There wasn’t much Bingham could do with an obviously determined lady, and he sat down as abruptly as he had gotten up.

Mrs. Offutt reminded Hunter and his colleagues that when she had testified on May 17th, the Judge Advocate had asked her whether Mrs. Surratt had handed her a package at Lloyd’s tavern on April 14th, and her answer had been “No.” Now, she remembered that “she did hand me a package and said she requested to leave it there.” Later on, she had seen it “lying on the sofa in the parlor.” After Mrs. Surratt had left for Washington, the witness had noticed that Lloyd went into the parlor and “had a package in his hand.” She thought that “after the package was handed to me, it might have been taken by Mrs. Surratt and handed to Lloyd, but I did not see her give it to him.”

As Clampitt reminded the Commission, “Mr. Lloyd, under oath, swore that he received a package from Mrs. Surratt. We wish to show that a package was received of Mrs. Surratt by Mrs. Offutt. We wish to show in this connection that it was the same package that Mr. Lloyd swore to. If we can show that this was the identical package that Mr. Lloyd swore to receiving, we can show that his testimony is not worth the snap of a finger.” But Mrs. Offutt did not know what was in the package; all she remembered was that Mrs. Surratt had given it to her around 5:30 that afternoon and she had “laid it down” on the parlor sofa. She had no idea of what had happened to it after that, except that she had seen a package in her brother-in-law’s hands when he entered the house a few minutes later.

When the defense rested on June 13th, the government trotted out John Ryan, Frank Smith, James P. Young and P. T. Ransford, all of whom swore that Lou Weichmann, its witness-in-chief, was a very trustworthy fellow indeed. But only one--Young--had known him for any length of time. John T. Holohan, who had occupied a second-floor room at Mrs. Surratt’s in early 1865, swore that he had never heard anyone mention his landlady’s bad eyesight. With the testimony of six Prince George’s County neighbors that Zad Jenkins was, among other things, “one of the most disloyal men in the country,” the prosecution had shot its wad as far as Mrs. Surratt was concerned.

The closing arguments began on June 16th and continued for twelve days. While they droned on, John Clampitt tried to introduce the joint affidavit of Louis Carland and John P. Brophy, two friends of Weichmann, who swore that he had told them that he had perjured himself during the trial. He, and not Mrs. Surratt, had suggested that he try to borrow Booth’s buggy for the April 11th trip to Surrattsville. He had also informed Carland and Brophy that he had told a fellow clerk in the War Department all about the kidnap plot as early as February, and that Stanton had forced him to testify against Mrs. Surratt despite the fact that Lou thought she was innocent. But he had played along with the Secretary of War because “I didn’t want to hang.”

But Holt wasn’t going to let a piece of notarized paper spring Mary Eugenia. He rejected it as hearsay and, when Clampitt offered to produce Brophy in person, the Judge Advocate thumbed down his request on the ground that it was too late to call another witness. But on June 27th, eleven days after the prosecution had closed its case, Holt called one John Cantlin to testify to an anonymous advertisement printed in the _Selma_ (Alabama) _Dispatch_ on December 1, 1864, offering to kill Lincoln, Seward, and Johnson, for one million dollars. Brophy felt so strongly about the rejection of his affidavit that he tried to see Andrew Johnson about it but the President was incommunicado as far as the trial was concerned.

In his closing argument, Reverdy Johnson pointed out that the Military Commission lacked the power to try Mrs. Surratt. “As counsel for one of the parties,” he told its members, “I should esteem myself dishonored if I attempted to rescue my client from a proper trial for the offense charged against her, by denying the jurisdiction of the Commission, upon grounds that I did not conscientiously believe to be sound. And, in what I have done, I have not more had in view the defense of Mrs. Surratt, than of the Constitution and the laws. In my view, in this respect, her cause is the cause of every citizen. And let it not be supposed that I am seeking to secure impunity to any one who may have been guilty of the horrid crimes of the night of the 14th of April. Over these, the civil courts of this District have ample jurisdiction, and will faithfully exercise it if the cases are remitted to them, and guilt is legally established, and will surely award the punishment known to the laws.”

Johnson left it to his youthful associates to discuss the substantive case against Mrs. Surratt and young Aiken did his best. What had “two months of patient and unwearying investigation, and the most thorough search for evidence that was probably ever made” developed insofar as his client was concerned? Only that she knew Booth (and who in Washington did not?), that she had taken a message to Lloyd (so had a hundred others), and that she had failed to recognize Payne (bad eyes in a dim light). The chief witnesses against her--the unreliable Weichmann and the drunken Lloyd--were both trying to save their own skins. He ended in a blaze of rhetoric, asking the Commission’s members to disregard “suspicion fastened and fed upon the facts of acquaintance and mere fortuitous intercourse with that man in whose name so many miseries gather, the assassinator of the President.”

Colonel Bingham, who summed up for the prosecution, ended his two-day presentation with the observation that Mrs. Surratt was “as surely in the conspiracy to murder the President as was John Wilkes Booth himself.” After all, wasn’t her house the headquarters of the conspirators? And didn’t she deliver a fieldglass to Lloyd and instruct him to have the carbines ready? Would an innocent woman fail to recognize a man who had been her boarder? If she wasn’t involved in the plot against the President, why did Booth always ask for her when he visited H Street? As far as the Special Judge Advocate was concerned, the questions answered themselves.

When he sat down late in the afternoon of June 28th, the court was cleared for the last time and the Commission began its deliberation. It took only minutes for it to decide that Payne, Herold and Atzerodt should hang. Dr. Mudd, Mike O’Laughlin and Sam Arnold were sentenced to “hard labor for life,” while Ed Spangler drew six years. But the Commission couldn’t make up its collective mind about Mrs. Surratt. On its first ballot, only four of its members voted to execute her. The other five could not be convinced that the evidence had disclosed that she was guilty of anything more than running a boardinghouse that catered to a mighty strange lot of roomers.

But two days of Washington’s heat did what all of the Judge Advocate’s arguments had failed to accomplish. At noon, on June 30th, the five recalcitrants voted that “the said Mary E. Surratt be hanged by the neck until she be dead, at such time and place as the President of the United States shall direct.” However, they insisted on appending a petition for commutation of the “sentence of death ... to imprisonment for life” to the record of the case which Holt was to submit to Johnson. On July 5th, the President formally approved the Commission’s sentences and ordered that Herold, Atzerodt, Payne and Mrs. Surratt be executed “on the seventh day of July, 1865, between the hours of ten o’clock a.m. and two o’clock p.m. of that day.” Whether he ever saw the recommendation for mercy or not, no one could say.

But Clampitt and Aiken weren’t ready to call it quits yet. At two o’clock on the morning of July 7th, the two young men persuaded Andrew Wylie, one of the Justices of the Supreme Court of the District of Columbia, to issue a writ of habeas corpus on the ground that prosecution by the Military Commission had deprived Mary Eugenia of her right to trial by jury. Major General W. S. Hancock, the commander of the Middle Military District, was ordered “to produce ... the body of your said petitioner” at ten o’clock the next morning. But Stanton had an ace up his sleeve. When Hancock, accompanied by Attorney General James Speed, walked into Judge Wylie’s courtroom, almost two hours after the time specified in the writ, he did not have Mrs. Surratt with him. What he did have was a message from the President, declaring that “I do hereby especially suspend this writ.” Judge Wylie had no choice--he yielded to the suspension.

The scaffold had been built in the courtyard of the Old Penitentiary Building. Just as General Hancock was presenting Johnson’s suspension order to Judge Wylie, Captain Christian Rath, the officer in charge of the execution, approved the drop. Four graves had been dug to the left of the gallows near the prison wall. At the side of each one was a pine box containing glass bottles in which the name of each defendant had been placed. Shortly before two o’clock, Mrs. Surratt, despite Payne’s last minute statement that she “was innocent of the murder of the President,” was led from her cell. Accompanied by two priests, she climbed the fifteen steps to the gallow’s platform where she sat in an armchair while an officer read the sentences aloud. Five minutes later, with her hands tied behind her back and her face covered by a white hood, she dropped into eternity.

On July 15th, the four surviving defendants, who had begun serving their terms in the Albany Penitentiary, were re-sentenced to “hard labor in the military prison at Dry Tortugas, Florida.” In 1867, O’Laughlin died of yellow fever, but Mudd was pardoned in 1868, and Spangler and Arnold one year later. In 1867, John Harrison Surratt, whom spectator Walt Whitman described as “very young ... with sharp eyes,” was tried by a Washington civil court for his part in the conspiracy. The jury voted eight-to-four for acquittal and the government decided to call it a day and dropped the charges against him. By this time, everyone knew that Stanton had suppressed Booth’s captured diary which contained an entry for April 14th, clearly indicating that it had not been until that very day that the actor had decided to kill rather than kidnap the President. Mary Eugenia had never had even a fighting chance.

2

_Atlanta’s Northern Jew_

The State of Georgia

_versus_

Leo M. Frank

The southern Negro stands halfway between slavery and freedom. On one hand, he is his own man, able to own property, to be compensated for his labor and even, in some areas, to vote. On the other, he must endure many forms of segregation, perform his community’s less desirable chores, and suffer whatever slings and arrows his white neighbors choose to send his way. But occasionally he finds himself an honest-to-goodness hero. This metamorphosis occurs whenever he mounts the witness stand to testify against another Negro whom, for one reason or another, the state wants to put out of the way. In Atlanta, in 1913, it didn’t seem to make much difference that the victim was a twenty-nine-year-old northern Jew.

After he graduated from Cornell, Brooklyn-born Leo M. Frank married a Georgia girl. With her parents’ help, he was able to buy a small interest in the National Pencil Factory, a medium-size enterprise which operated out of a four-story building on South Forsyth Street in Atlanta. National employed more than one hundred employees, most of whom were women, and Frank, who was also its production superintendent, directly supervised their work from his tiny second-floor front office.

The factory building was a narrow rectangular structure which ran 150 feet back from South Forsyth Street to a small alley. The entrance to the plant was through an enclosed hallway on the first floor. An elevator shaft was located in this hallway near the foot of a glass-enclosed stairwell. Behind this shaft there was a hatchway which opened into the basement. Outside of a boiler and some lockers for Negro employees, the cellar was empty.

The stairs led up to the building’s second floor where Frank’s small cubicle was located. His office opened into a large room where most of the plant’s clerical help worked. At the very rear of the building was National’s metal room where tips were attached to the ends of completed pencils. The metal room, which was separated from the rest of the second floor by a wooden partition, was entered by means of a double glass door. The actual manufacturing of lead pencils was performed on the third and fourth floors.

National’s employees were normally paid at noon on Saturday. However, Saturday, April 26, 1913, was a holiday--Confederate Memorial Day--and Frank had met his payroll the day before. But some of the girls who worked in the metal room had been laid off the preceding Monday because the plant had run out of pencil tips. Some of them decided to take advantage of the holiday and pick up the few dollars owed them for their single day’s work. One girl, fourteen-year-old Mary Phagan, who lived in an Atlanta suburb, decided to kill two birds with one stone--she would pick up her pay at the plant and then take in the parade which was scheduled to start at two p.m.

Mary ate an early lunch of cabbage and wheat bread and left her house at 11:45. She boarded a street car which let her off at the corner of Broad and Hunter Streets, just a block away from the pencil factory. She arrived at National shortly after noon and went immediately to Frank’s office where she received a pay envelope containing $1.25. She asked the superintendent whether a new supply of metal had arrived and, when he said “No,” she left the office, and he listened to her footsteps as she went down the stairs to the first floor. Only one other person was ever to see her alive again.

Fifteen hours later, Newt Lee, the factory’s night watchman, was making his rounds through the darkened building. In the cellar, near the back of the building, he found the body of Mary Phagan. The girl had been strangled and it appeared that she had probably been raped. Although no spermatozoa were found on her body or her clothes, the epithelium of the walls of the vagina was torn and bruised and her underwear, which was ripped, was spotted with blood. From the condition of her clothes, it was obvious that whoever had killed the girl had dragged her body along the cellar floor. There was a deep cut on her head and numerous bruises on her arms and legs.

Newt Lee was a Negro which was enough to make him a prime suspect. He was immediately arrested and thrown into the Fulton County Jail, and it seemed that the Atlanta police had more than enough to mark the case solved. But because somebody thought that Frank had appeared unduly nervous when he was informed of Mary’s death, the police decided to book him, too. Frank proved anything but an uncooperative prisoner. He hired private detectives to assist the Atlanta constabulary in its efforts to find the girl’s murderer, and persuaded his captors to allow him to spend some time alone with Lee in his cell in order to induce him to talk.

But the night watchman stuck to his plea of innocence and was soon released while his employer was held for the action of the grand jury. A garrulous prostitute informed the police that Frank had telephoned her the night before the murder and pleaded for a room. He had told her that it was a matter of “life and death.” She also swore that, on the day after Mary’s body was found, he had offered her a large sum of money to leave town. Although she later repudiated her entire story and disappeared, the damage was done and Frank, who was referred to by a local magazine as “this filthy, perverted Jew of New York,” was indicted on May 24, 1913, for Mary’s murder.

When the dead girl’s body was found, two notes, scribbled on sheets of paper ripped from a scratch pad, were discovered on the floor near her. Written in pidgin English, they claimed that “a long tall negro” had been making love to Mary and that “i write while play with me.” According to the author “he said he wood love me, laid down, play like the night witch did it, but that long tall negro did buy his self.”

The police were convinced that Frank had written the notes in an attempt to throw the blame on Lee. This theory was somewhat shaken when, on the Thursday after the murder, a Negro porter named Jim Conley was discovered scrubbing a bloodstained shirt in the factory’s basement sink. Conley, who was later described as a “low squatty Negro with a gingercake complexion,” was picked up and lodged in the county lockup where he languished for almost three weeks. However, when he finally convinced the police that he could not write, he was given back his shirt and released.

Then Harry Scott, a Pinkerton operative engaged by the pencil factory to solve the crime, discovered that Conley was much more literate than he had let on. Now thoroughly frightened, the porter was returned to jail where he poured out a tale of sex and murder that was sure to find ready listeners. He said that on April 26th he had stood watch for Frank, who habitually used the factory as seraglio, when the superintendent had assaulted and killed Mary Phagan. Then, after helping his employer hide the body in the basement, he had written the two notes which had been found near her corpse. In all, he told the investigators from the Solicitor General’s office four different versions of this story. As each one was investigated and found untenable, Conley assured his avid audience that “Sure, I lied but I swear to God I am telling the truth this time.” The following July, he was to tell a fifth story on the truth of which a man’s life was to depend.

Although Frank testified before the coroner’s jury and claimed that he neither knew Mary Phagan nor had killed her, he was swiftly indicted for her murder and his trial began on July 28, 1913, in the Fulton County Courthouse before Superior Court Judge L. S. Roan and an all-male jury. By the time the trial got under way, all Atlanta had prejudged the “Jew of New York” and the newspapers were off and running on an orgy of sensationalism that was not to die down until Leo Frank had become the symbol of the Gate City’s greatest shame.

Conley was, by all odds, the prosecution’s most important witness. Ordinarily, the testimony of a Negro who “always seemed to be kind of nervous or half drunk” wouldn’t have carried much weight in a Georgia court. But what Arthur Garfield Hays referred to as “counter-prejudices” were at work. To the rednecks, a Jew from Brooklyn was even worse than a “no-account nigger” and Conley’s audience was sublimely ready to believe every word he uttered.

He told a fantastic story. Frank had come to him early on the morning of April 26th and said: “I want you to watch for me like you have been doing the rest of the Saturdays.” According to Conley, for more than two years he had been picking up a little extra change by acting as Frank’s lookout while the superintendent was enjoying himself with various women in his office. “I always stayed on the first floor ... and watch for Mr. Frank, while he and a young lady would be upon the second floor chatting.”

On this particular Saturday, the witness had been given very precise instructions as to the afternoon’s activities. “Now, there will be a young lady here after a while,” Frank had told him, “and me and her are going to chat a little.” When the girl arrived, the superintendent would “stomp like I did before” and Conley was to shut the door that led to second floor. “Now, when I whistle, I will be through, so you can go and unlock the door and come upstairs to my office like you were going to borrow some money from me and that will give the young lady time to get out.”

Shortly after noon, he swore, he had seen Mary Phagan climbing up the steps to the superintendent’s office. He had heard her footsteps approaching Frank’s cubicle and then the sound of two people walking toward the metal room. A few minutes later, there was a scream, followed by the sound of someone running from the metal room to the front of the building. At that moment, another young lady had entered the building, walked up the stairway to the second floor and immediately come down and left the factory. How she had opened the locked door was anybody’s guess.

Apparently, Conley was used to an occasional scream or two emanating from the second floor on Saturday afternoons because he promptly went to sleep. “Next thing I knew, Mr. Frank was up over my head stomping, and then I went and locked the door ... and the next thing I heard Mr. Frank whistling. When I heard him whistle, I went and unlocked the door just like he said and went on up the steps. Mr. Frank was standing up there at the top of the steps, shivering and trembling and rubbing his hands like this. He had a little rope in his hand, a long, wide, piece of cord. His eyes were wide and they looked right funny. He looked funny out of his eyes. His face was red.”

After Frank had composed himself, he told the porter that there had been a little trouble upstairs. “I wanted to be with the little girl,” he had said, “and she refused me, and I struck her, and I guess I struck her too hard, and she fell and hit her head against something, and I don’t know how bad she got hurt. Of course, you know that I ain’t built like other men.”

The two men had then gone upstairs to the metal room where Conley had picked up the dead girl’s body and carried it to the elevator. He had taken it to the basement where it was placed on a trash heap near the rear of the building. Then, Frank had ordered him to write the two notes which were eventually found near the corpse. The porter insisted that the defendant had dictated the notes to him and had promised him $200.00 for his help in covering up the crime. Frank’s bank balance on the day before this grandiose offer was exactly sixteen dollars.

After Conley had graphically described the murder itself, Hugh M. Dorsey, the Solicitor General of Georgia, made him recount what he had witnessed on other Saturdays when he claimed Frank was entertaining some of the easier ladies of Atlanta in his upstairs lovenest. He remembered one girl in particular, a Daisy Hopkins, who had been a steady visitor to the second-floor playroom. Just before Thanksgiving of 1912, he had inadvertently wandered into the superintendent’s office where he saw Daisy “sitting down in a chair and she had her clothes up to here, and he was down on his knees and she had her hands on Mr. Frank and I found them in that position.” When the couple left the office, they found the inquisitive porter waiting in the anteroom.

Q. What was said when they saw you?

A. When Mr. Frank came out of the office, Mr. Frank was hollering, “Yes, that is right, that is right;” and he said, “That is all right, it will be easy to fix it that way.”

According to Conley, the defendant was equally at home in other parts of the factory. “I have seen him another time,” he said, “There in the packing room with a young lady lying on the table.”

Q. How was the woman on the table?

A. Well, she was on the edge of the table when I saw her.

Before he left the stand, the witness, who proudly described himself, in Frank’s words, as “the best nigger I ever saw,” had titillated the spectators with a running account of two years as a peeping Tom in the pencil factory. What went on during those languorous Saturday afternoons was enough to shock a satyr. “Why,” Conley said, about Frank, “I have seen him in a position I haven’t seen any other man that has got children.”

But Frank wasn’t the only one whom Conley had observed making hay in what must have been the most sybaritic factory in Georgia--or anywhere else, for that matter. Once, Frank and his paramour of the moment had been joined by a Mr. Dalton and another lady. They had told the porter to “go down and see nobody don’t come up and you will have a chance to make some money.” Dalton, who was to return to the plant on many future occasions, usually took his playmates down to the basement. From his first-floor observation post, Conley was able to watch both the stairs leading to Frank’s office and the hatchway to the cellar. He evidently proved to be sharp of eye for, until the death of Mary Phagan, no one in Atlanta knew that more was being made at National than pencils. For his services, he received from twenty-five cents to one dollar a sortie. Although Dalton later testified that he had found the factory a convenient place in which to make love, he denied that he had ever seen Frank similarly occupied.

According to Frank, Mary Phagan had arrived in his office at 12:12 p.m. that Saturday. Another metal room worker, Monteen Stover, who had also gone to the factory to pick up her pay, said that she had been in the plant from 12:05 to 12:10. Since Conley had sworn that Miss Stover had entered the building after the dead girl, then Mary must have entered the plant before 12:05. However, Frank’s stenographer had taken the last of his dictation at 12:02, at which time she went home. Thus, it was clear that the only time in which the superintendent could have been alone with Mary was between 12:02 and 12:05. Lemmie Quinn, the factory foreman, had seen him in his office at 12:20 when, Quinn testified, he had exhibited no sign of nervousness.

According to its schedule, the English Avenue car on which Mary had taken her last ride was due to arrive at the corner of Broad and Marietta Streets at 12:07½ p.m. Mathas, its motorman, was certain that “we were on schedule.” He also believed that “we got to Broad and Hunter about 12:10.” It was at the latter crossing that Mary had left the street car and gone directly to the factory which was only a block away.

Hollis, the conductor, was just as definite. “We ran on schedule that day,” he testified. “We got to Broad and Marietta 7½ minutes after 12, schedule time ... it takes 2½ minutes to run from Broad and Marietta to Broad and Hunter. I have timed the car again and again since then.” Occasionally, a car would run ahead of schedule but “hardly ever.” He insisted that it was “against the rules of the company to get to the city ahead of time.”

The division superintendent backed up the motorman and the conductor as far as the schedules went. However, he remembered that the men frequently came in ahead of time. Just a week before the trial, he had suspended a motorman for arriving a few minutes before his scheduled time. Sometimes, one car would “cut off” another which was ahead of it and come in much too early. On one occasion, he had seen one car cut off another which was scheduled to arrive at Broad and Marietta at 12:05.

In rebuttal, the prosecution put one of the line’s inspectors on the stand. He had never heard of a 12:07½ time for reaching Broad and Marietta; as he remembered it, the schedule called for a 12:07 arrival at that crossing. On one occasion, he had seen Mathas cut off the car in front of him. The men liked to come in ahead of schedule “on relief time, for supper and dinner.” In fact, the crew on Mary’s car had been relieved for lunch just after it arrived in the center of the city after dropping her off at Broad and Hunter.

At 12:50 that day, Frank had announced to several people in the factory that he was going home for lunch. Three employees had seen him leave the building ten minutes later and a dozen witnesses passed him as he walked home where he arrived at 1:20. Yet Conley had said that it had been 12:56 when he had seen Frank at the head of the stairs with a piece of rope in his hand. He had also testified that the two notes had been written after one o’clock and that Frank was still in the building when the porter left at 1:30.

Conley had stated that Mary’s body had been taken to the basement in the electric elevator that serviced the building. But two factory employees who had been working on the fourth floor that afternoon had not heard the whirring noise that always accompanied its operation. More important, a pile of trash that Conley himself had observed at the bottom of the elevator shaft on Saturday morning was not crushed by the descending car.

The porter had also insisted that Mary had been killed in the metal room. However, no blood was found anywhere on the second floor or in the elevator cab. But in the basement, Atlanta police had found blood scattered on the floor, the walls and the inner door that led to the alley in back of the plant. Incidentally, the hasp of the outer door had been pried off with an iron bar.

Frank’s attorneys were convinced that Conley, who was on a holiday toot, had attacked Mary and killed her. It was their opinion that the cinders which were found all over her clothes indicated that Mary had put up quite a battle for her life in the cellar and that it had taken the drunken porter some time to kill her. After her death, he had suddenly come to his senses and decided to write notes putting the blame on a “long, sleam tall negro.” Since he was a stocky, light-colored Negro, this description would, he had thought, prevent suspicion from falling on him. His last precautionary effort had been to wash his bloodstained shirt in the basement sink on the Thursday after the murder.

In addition to trying to prove that Frank was a sexual deviate, the prosecution was determined to show that he had had his eyes on Mary for a long time. W. E. Turner, a boy who worked as a messenger at National, said that “I saw Leo Frank talking to Mary Phagan on the second floor about the middle of March.... There was nobody else in the room then. She was going to work when he stopped her. She told him she had to go to work. He told her that he was the superintendent of the factory and that he wanted to talk to her ... she backed off, and he went on towards her, talking to her. The last thing I heard him say was he wanted to talk to her.” At this point, Turner had left the floor and had seen and heard nothing else.

Dewie Howell, a girl who had once labored in the metal room with Mary, had been found by the prosecution in Cincinnati’s Home of the Good Shepherd. Miss Howell had worked at the pencil factory during February and March of 1913. She had “seen Mr. Frank hold his hand on Mary’s shoulder. He would stand pretty close to Mary when he talked to her. He would lean over in her face.” Irene Jackson, another National employee, had seen him open the door of the girls’ dressing room one afternoon and stare inside.

After Frank had been arrested, four policemen came to the jail with Conley in tow and insisted on seeing the defendant. Frank had refused to talk to them because his lawyer wasn’t to be present at the conference. Dorsey took great pleasure in pointing out that it had been one of the private investigators hired by the factory at Frank’s request who had suggested that Conley be taken to the superintendent’s cell in an effort to shake the truth out of the porter. He was later to tell the jury that Frank had not been so coy at the time he had requested permission to visit Newt Lee’s cell when the night watchman was still under suspicion.

Since the time of Mary’s visit to the factory was crucial to both the state’s and the defendant’s cases, each side tried to show by the condition of the food in her stomach how many minutes had elapsed between her 11:30 lunch and the time she died. Dr. H. F. Harris, Dorsey’s medical expert, was the secretary of the Georgia Board of Health while Dr. W. F. Westmoreland, who testified for the defense, was its former president. Harris thought that the girl had eaten her cabbage and wheat bread “perhaps three quarters of an hour or half an hour or forty minutes, or something like that, before death occurred.” Westmoreland estimated that death had occurred nearer to one o’clock. Both physicians had previously been involved in an altercation provoked by charges of professional misconduct being filed against Harris by Westmoreland. The former was subsequently cleared and his accuser forced to resign as president of the Board of Health. There was bad blood all around and the two physicians effectively neutralized each other.

When the defense took over, it tried to dispel the aura of sexual degeneracy that the Solicitor General had so painstakingly developed. A reward of $5000.00, offered by William J. Burns to anyone who could turn up a single immoral act in Frank’s past life, went begging. Even the Atlanta police, who could hardly be classed as impartial observers, were unable to locate any evidence in Brooklyn or Ithaca that in any way implicated the defendant. So clean was his record that Chief Beavers did an about-face and insisted that the police had never claimed that he was a degenerate. But if Atlanta officialdom had changed its mind, the man in the street still saw Frank as the anti-Christ.

Dorsey, who was later to refer to the sodomy trial of Oscar Wilde in his summation, had also introduced testimony that Mrs. Frank had never visited her husband in jail. What could be clearer evidence that he was guilty of murdering what Tom Watson’s _The Jeffersonian_ referred to as “our little girl--ours by the Eternal God!” To rebut these inferences, the defense put witness after witness on the stand to testify to Frank’s good character. But Judge Roan consistently permitted Dorsey to undermine the effect of their testimony. The cross-examination of Mary Pirk, a National worker, was typical.

Q. You never heard of a single thing immoral during the five years?

A. Yes, sir, that’s true.

Q. You never knew of his being guilty of a thing that was immoral during the five years--is that true?

A. Yes, sir.

Q. You never heard a single soul during that time discuss it?

A. No, sir.

Q. You never heard of his going in the dressing room there of the girls?

A. No, sir.

Q. You never heard of his slapping them as he would go by?

A. No, sir.

The trial was destined to last for a month. As it wore on, popular feeling against Frank grew by leaps and bounds. In its last week, the Solicitor General was carried down the steps of the courthouse at the end of each day on the shoulders of a surging crowd that shouted, “Hurrah for Dorsey.” On August 23rd, when one of Frank’s character witnesses was on the stand, the spectators began to laugh and it took all of Judge Roan’s courtroom savvy to quiet them down. An hour later, a claque in the rear of the room began to applaud exchanges of causticities between Dorsey and various defense lawyers. Again, Judge Roan stepped into the breech and restored some sort of order. But apparently he was at the end of his resources because he promptly called in the police and the Fifth Georgia Regiment to keep the restive audience under wraps.

On August 25, 1913, the trial’s last day, the courthouse was ringed by thousands of people who shouted such pleasantries as “Hang the Jew or we will hang you!” into the Pryor Avenue windows of the first-floor courtroom. As the _Atlanta Constitution_ described it, “A veritable honeycomb of humanity spread over the section ... Men and women clung to the walls of buildings and stood in doorways. Windows were crowded with women and girls and children. It was as though a street audience had gathered to watch an eventful procession.”

The situation grew so bad that Roan cleared the courtroom when the jury announced that it had decided on a verdict. The cheering from the outside reached such a crescendo that it was almost impossible to hear the foreman inform the judge that he and his colleagues had found Leo Frank guilty of murder in the first degree. When a court bailiff leaned out of a window and shouted the word “guilty,” a reporter noted that “a combined shout ... rose to the sky. Pandemonium reigned. Hats went into the air. Women wept and shouted by turns ... Few will live to see another such demonstration.”

Judge Roan, who had previously said that “if Christ and his angels came down here and showed this jury Frank was innocent, it would bring him in guilty,” denied his attorneys’ motion for a new trial despite the fact that he publicly acknowledged that he did not know “this morning whether Leo Frank is innocent or guilty.” The next day, Frank was sentenced to be hanged in the courtyard of the “common jail of Fulton County.” Before Roan went through the dreary formalities that marked the first step in taking a man’s life, he afforded the slender, dark-haired defendant an opportunity to make a last statement. Frank, in a voice that was all but drowned out by the clamor outside the courtroom, swore that “I am innocent of little Mary Phagan’s death, and have no knowledge of how it occurred....”

On February 17, 1914, the Supreme Court of Georgia affirmed the death sentence. Ten months later, the United States Supreme Court refused to intervene although Mr. Justice Holmes was moved to state that “I very seriously doubt if the petitioner has had due process of law ... because of the trial taking place in the presence of a hostile demonstration and seemingly dangerous crowd.” It looked very much as if Leo Frank would never live to see his thirty-first year.

But on June 30, 1915, Governor John H. Slaton, with rare courage, sacrificed his political career and commuted Frank’s sentence to life imprisonment. Unfortunately, his _beau geste_ was an empty one because, several months later, a mob broke into the prison hospital where Frank was recovering from an attack by a fellow prisoner who, in a frenzy of self-righteousness, had cut his throat, rushed him back to Atlanta, and hanged him from a tree that grew in front of Mary Phagan’s house. After the jury’s verdict, the defendant had asked a reporter, “Can it be that the law, and our system of its administration, is so inexorable that truth and innocence may never be heard after once the die is cast? Is the door forever closed and the way barred?” His swinging body was the answer.

3

_In Union There is Death_

The State of California

_versus_

Thomas J. Mooney

Saturday, July 22, 1916, was a day that San Francisco would long remember. Its Chamber of Commerce, anticipating early American entrance into World War I, had organized a Preparedness Day parade which was scheduled to kick off at 1:30 p.m. The two-mile line of march extended from the Ferry end of Market Street to the Civic Center, and every organization in the Bay area that could muster a column of fours was to be represented. Market Street had been closed to all traffic shortly before the parade started and an enormous crowd lined both sides of the route. The various units had assembled in the Embarcadero at noon and marched westward to the music of more bands than San Francisco had ever heard at one time. At 2:06 p.m., as the Spanish-American War veterans stepped smartly out of Steuart Street to join the parade, an enormous explosion shattered the air. When the smoke cleared, the police found eight mutilated corpses lying in the street.

It was soon clear that a bomb had gone off on the westerly sidewalk of Steuart Street, some seventeen feet in from Market Street. Captain Duncan Matheson of the San Francisco Police, who was on duty nearby, ordered Lieutenant Stephen Bunner to take care of the wounded while he kept the parade moving. As soon as the dead and injured had been taken away, Bunner ordered the sidewalks washed with fire hoses. He later stated that he “was satisfied that all the evidence had been collected by the detectives and the persons around before I ordered the sidewalks washed.”

About an hour and a half later, District Attorney Charles M. Fickert, accompanied by a San Francisco banker named Frederick H. Colburn, arrived at the scene. Colburn found some “nickel flattened bullets and a ragged piece of pipe, one or two .32 cartridge shells, rim fire,” on the sidewalk. A remarkably curious man, he then asked for a sledge hammer and “broke a strip three or four inches wide around the little hole in the sidewalk where the concrete was shattered.” Some more cartridges and several jagged pieces of iron were found in the hole. Colburn then pushed in some loosened bricks in the adjoining wall and discovered a few more scraps of metal lodged behind them.

After clearing Market Street for the 42nd Division which had come over from Oakland to join the parade, Captain Matheson returned to Steuart Street, only to find that Bunner had washed the sidewalk clean. The police officer walked over the explosion area and found a bloody strip of iron, a narrow piece of metal with several nails in it, fifteen exploded .32-caliber shells, three .22-caliber bullets, and some fibre strands which he thought looked like “imitation leather.” He then returned to Market Street where he “stayed until all the parade had cleared about 4:30, and then walked back to the scene of the explosion.”

In his absence, Fickert and Colburn had arrived and the latter had enlarged the break in the sidewalk. Matheson was extremely angry that no efforts had been made to guard the explosion area and he ordered Steuart Street roped off. He also set up a police detail to keep the souvenir hunters from removing any evidence that had not yet been picked over. The detectives who had swarmed over the area minutes after the explosion had taken no measurements of the size of the hole in the sidewalk and had made no record of the positions of the victims’ bodies.

That evening, Martin Swanson, a former Pinkerton operative who was employed by the Public Utilities Protective Bureau, strolled into Fickert’s office and nonchalantly remarked that he knew who was responsible for the tragedy. He named two coast labor leaders--Warren K. Billings and Thomas J. Mooney--as the ones who had planted the bomb. They had been assisted, he said, by Israel Weinberg, a cab driver, Edward D. Nolan, the President-elect of Machinists’ Lodge 68, and Mooney’s wife, Rena. Swanson was evidently quite persuasive because Fickert immediately put him on the payroll, and picked up Billings, Weinberg and Nolan four days later. The Mooneys were on vacation in Montesano, Washington, when they read that they were being sought as suspects in the bomb case. After Mooney had wired Chief of Police White that “this attempt to incriminate me in connection with bomb outrage is one of the most dastardly pieces of work ever attempted,” the couple took the first train back to San Francisco. They were arrested on July 27th, by policemen who boarded their coach at Guerneyville.

This wasn’t the first time that Swanson had used Mooney’s name in vain. Three years earlier, when the linemen of the Pacific Gas & Electric Company in neighboring Contra Costa County had gone on strike, the detective had been hired to find out who was dynamiting the utility’s property. He had accused Mooney, who was leading the strike, of possessing explosives, and the union organizer was tried three times before he was eventually acquitted. Swanson had been more successful with Billings who was sentenced to two years at Folsom Penitentiary for carrying dynamite.

On June 10, 1916, Mooney, as a representative of the Amalgamated Association of Street and Electric Railway Employees of America, called an organization meeting of the carmen of the United Railroads, San Francisco’s trolley lines, at Woodsman’s Hall. Early the next morning, three of the carrier’s transmission towers near San Bruno were slightly damaged by dynamite. According to Weinberg and Billings, Swanson went all out to pin this bombing on Mooney. On July 17th, he hailed Weinberg’s taxi and offered the cabbie $5000.00 to swear that he had driven Mooney to San Bruno after the meeting at Woodsman’s Hall. When he repeated the offer two days later, Weinberg told him that he had no information to sell.

On July 18th, Swanson met Billings at the office of the Pacific Gas & Electric Company, where the latter had gone to pay a bill. The detective promised him a machinist’s job with the utility as well as five thousand dollars if he would help connect Mooney with the San Bruno explosion. Billings was as uncooperative as Weinberg had been, and Swanson soon gave him up as a bad job. He later admitted that he had spoken to both men about Mooney’s part in the bombing of the transmission towers, but denied that he had offered any money to either one.

When Billings, Weinberg, Nolan and the Mooneys were arrested, they were held incommunicado until the Grand Jury met on the evening of August 1. Meanwhile, San Francisco was staging mass meetings at which speaker after speaker urged that all radicals, anarchists and liberals be run out of town. The Law and Order Committee of the Chamber of Commerce raised more than $400,000 for the avowed purpose of ridding the city of its “anarchistic” elements. All of the newspapers embarked on an orgy of speculation, openly inspired by the District Attorney’s office, in which no effort was made to separate fact from fancy. As far as the _Examiner_, the _Call_, the _Chronicle_ and the _Bulletin_ were concerned, Fickert had an open-and-shut case against all the suspects, and it made little difference what they printed under their banner headlines.

The first witness before the Grand Jury was Henry Kneese, the City Marshal of South San Francisco, who said that he had found a suitcase containing forty sticks of dynamite on the state highway leading to San Bruno on June 10th. Apparently, Fickert wasn’t above some titillating irrelevancies to soften up a jury. Kneese was followed by Dr. David E. Stafford, the physician who had performed the autopsies on Hetta Knapp and the seven other persons killed in the July 22nd blast. Dr. Stafford stated that he had removed small pieces of .22- and .32-caliber shells and particles of iron pipe from their bodies. After Will George M. Hon, the foreman of the Cadillac Garage, testified that, when Billings was discharged from his mechanic’s job in June, he had owned a brown suitcase, Captain Matheson and Lieutenant Bunner described the scene at Steuart and Market Streets following the blast

Earl R. Moore, a policeman, was the first witness to place any of the defendants on Market Street before the explosion. He had been ordered to clear the parade route of all traffic. Shortly after one p.m., he had noticed an old Ford jitney with a broken horn and a torn rear cushion parked in front of 721 Market Street, a two-story building directly across the street from the offices of the Preparedness Day Parade Committee. While he was standing near the automobile, waiting for its owner to show up, he had observed a man loitering on the sidewalk a few feet away. When Moore asked him if he knew who owned the vehicle, the man had answered, “Oh, he’ll be here in a minute.” The policeman “went on down toward 4th Street and I came back in about ten minutes again and the machine was gone.” Four days later, he identified Billings as the man who had spoken to him that afternoon.

Herbert C. Wade, the principal of a Hawaiian school, had been in no mood to watch the Preparedness Day Parade. Bothered by a bad toothache, he had been heading for his dentist’s office in 721 Market Street. As he walked toward the entrance to the building, Billings passed him “and went up the steps into the dental office. He had a suitcase or something of the sort with him.” A few minutes later, the witness saw a man and woman but he was unable to say that they had been Mr. and Mrs. Mooney. “It was somewhere around one o’clock when I saw Billings,” he told the jurors, “ten minutes to one or ten minutes after.”

The dentist’s receptionist, Estelle G. Smith, had been waiting for the parade to start when Billings entered the office. He had a suitcase in his hand and told her that he was a motion picture cameraman for the _San Francisco Chronicle_. When he asked for permission to photograph the parade from the roof, she told him that he would have to wait until the dentist returned from lunch. Because she thought he was “sick from the heat,” she had decided to let him go up to the roof at once. She had asked a friend, Louis Rominger to “Please show this man to the roof” while she returned to the window to watch the parade, which had just started. When Mayor Rolph passed by in the street below, she had waved a towel at him and shouted, “Hello, Mayor Rolph!” According to photographs taken by the International Film Company, the Mayor had passed 721 Market Street at 1:50 P.M.

At “half after one or so,” a tall “very repulsive looking man, long mustache,” who looked like “a Russian Jew,” burst into the dental office and attempted to push by Miss Smith who was standing in front of the stairway. When she threatened to call the police, a woman ran up the first-floor steps and persuaded the man to leave the building. Five minutes later, a “very agitated” Billings came down from the roof and, after thanking the receptionist for her kindness, hurriedly departed. She was sure that the woman had been Rena Mooney.

Alice Kidwell, Miss Smith’s mother, had been seated at the window in the dentist’s reception room when she saw the Mooneys talking to two men on the sidewalk outside the building. Mrs. Mooney left the group for a moment and, when she returned, “I saw her with her hand waving it up this way, beckoning to someone on the roof.” A few minutes later, the young man who had been taking pictures on the roof left the building. Mrs. Kidwell remembered saying, “Good gracious, he couldn’t have taken very many because he was up there just a short time.” She last saw the Mooneys walking west on Market Street.

A tramp waiter by the name of John McDonald was the only witness before the Grand Jury who testified to seeing both Mooney and Billings at Steuart and Market Streets. He had been standing on the east side of Steuart, some fifteen feet south of Market, when he noticed a “young fellow coming down carrying a grip in his hand.” Because the man appeared so nervous, McDonald kept his eye on him as he walked down Steuart Street. Just before he reached the corner, he “transferred the suitcase over to his left hand and set it down near the wall.” Then, the young man walked to a saloon at the comer of Steuart and Market where he was joined by another man who had been inside. He identified the youth who had been carrying the suitcase as Billings and the man who had emerged from the bar as Mooney.

McDonald watched the two men talk together for a few minutes and then he saw Mooney take out a pocket watch and check it with the clock in the Ferry Building tower. Seconds later, Billings “took a cut right through the parade toward the other side of Market Street as though he were going back to the Ferry Building.” After waiting a few minutes, Mooney also crossed Market Street “as though he was going across to Drum Street,” one block west of the Embarcadero. By this time, the witness had lost interest in both men and decided to walk up Market Street. He had reached the Alameda Cafe, some 150 feet from where he had been standing, when the explosion occurred.

Mrs. Mooney, who was known professionally as Rena Herman, had been teaching music in a fifth-floor studio in the Eilers Building at 975 Market Street for almost eight years. On the day of the parade, she had watched the spectacle from the roof of her building with her husband and two relatives. When they arrived on the roof, “the parade hadn’t started then. Everybody was yelling it was starting. We hurried to get up there. We didn’t leave the roof until after the parade passed.” Neither she nor Tom had been at 721 Market Street on July 22nd; in fact, they hadn’t left the Eilers Building until five o’clock that evening.

Although Mooney, Billings and Nolan refused to testify because they had not been permitted to talk to their lawyers, Weinberg stated that “I am willing to answer every question you wish to ask me.” He denied that his taxi had been parked in front of 721 Market Street on the afternoon of the explosion or that he had been in the vicinity of Steuart and Market around two o’clock. Although he swore that his jitney was in perfect working condition, he admitted that “the machine in the back is torn, the thread.” At one p.m. on the 22nd, he was driving a passenger to Fillmore and Sutter. Then he had gone to the office of the gas company and paid his bill which was two months overdue. Because the parade was disrupting all traffic, he had decided to call it a day and go home. “I went to the butcher shop,” he said, “and got some meat and went home about three or a little after three.” He had remained home until “five or a little after.”

When Mooney was arrested on the San Francisco train, the police who searched him found the key to Nolan’s basement apartment at 82 Angelica Street in his pocket. Officer Peter J. Hughes, who had been a member of the squad which ransacked the apartment, testified that he had found plaster of Paris, a box containing saltpetre and another bag that contained what “looked like black powder.” A motorcycle belonging to Mooney, twenty pounds of epsom salts, a bag of flour, and a small quantity of flashlight powder were also uncovered. According to Hughes, “We asked him [Nolan] several times before we went down in the basement if there was anything in the basement. He said ‘no.’”

On August 2nd, the Grand Jury returned a true bill, charging all five suspects with the murders of the eight people who had been killed in the explosion. Fickert, whose first act after having been elected District Attorney in 1909 had been to obtain the dismissal of graft indictments against officers of the United Railroads, looked forward to the Mooney trial with a relish that was undisguisable. However, he decided that it might be more expedient to try second offender Billings first and the latter’s trial began on September 11, 1916, in the Superior Court of San Francisco, before Judge Frank H. Dunne.

The prosecution called most of the witnesses who had testified before the Grand Jury. McDonald repeated his story of seeing Billings at Steuart and Market just before the explosion. “As near as I can remember it must have been eight or ten minutes to two when I first discovered him.” After describing the meeting of Billings and Mooney in front of the saloon, the witness said that he “went down to the restaurant on the Embarcadero, 34 was the number, and got a glass of buttermilk.” It was while he was there and not, as he had told the Grand Jury, in front of the Alameda Cafe, that the explosion took place. Also, he now said that he had lost both men in the crowd after their meeting at the corner of Market and Steuart.

Fickert had found a new witness to support McDonald’s story. John M. Crowley was an automobile mechanic who worked on the corner of Steuart and Mission. He was positive that he had seen Billings at 1:55, “standing about three feet from where I was.” He saw him again at the same place immediately after the explosion and he remembered that the defendant had refused to take off his hat when the band was playing “The Colors.” But he was certain that Billings had not been carrying anything in his hands at either time.

Estelle Smith and Herbert Wade swore that they had seen Billings at 721 Market Street at approximately one p.m. on July 22nd. Peter Vidovich, an eccentric patient who had decided not to wait for the tardy dentist, was just descending the steps to the street when he saw Billings struggling up the narrow stairway with a suitcase. “I backed up and stood behind the banister on the top of the stairway and give him a chance to come up.” The suitcase was, he remembered, “kind of pale color like, rather deeper that the ordinary suitcase ... pale color of chocolate or wine color. It was a kind of funny suitcase, it was kind of different.”

Mellie Edeau and her daughter, Sadie, had come from Oakland to see the parade. Although neither woman had been called before the Grand Jury, they both swore that they had seen Billings on the roof of 721 Market Street. Shortly before one p.m., they had been standing in front of the Kamm Building which was next door to 721. Sadie Edeau testified that “when I first saw Billings he was on the roof of 721 Market, leaning over the edge of the building. He had a suitcase in his hand.” Her mother said she had noticed him “on top of the roof ... with a suitcase and he was talking to someone on the street below him.”

According to four employees of Uhl Brothers, there had been a cameraman with a suitcase on the roof of 721 Market Street on Parade Day. Alphonse De Caccia had seen a young man with “a kodak, a kodak grip--a black grip about two feet long and a foot wide” sitting in a corner. This man, he said, had been there when DeCaccia left “about 4:15.” Tracy F. Barrett had observed a “man sitting in the west corner [with a] camera very similar to a newspaper reporter’s camera,” while William B. Crump was sure that this man was still there at “about ten minutes after two” when the witness left the roof. Henry Pincus had seen a man “sitting on the firewall” when he arrived on the roof just as Crump was leaving.

On the day of the blast, Billings had left his house at 1:30 p.m. As he headed for Market and Kearney, he had noticed “a large battleship gray Hudson automobile” on Union Square Avenue. He ended up at Market and Sixth where he “bought an extra with an account of the explosion.” Then he had helped a friend of his who was running a jitney bus between the Ferry and uptown. At no time during the day had he been “at Steuart and Market or 721 Market. I didn’t see Mrs. Kidwell, Estelle Smith, or Rominger, and I had no suitcase.”

On September 23rd, the young machinist was convicted of murder in the first degree, but the jury fixed his punishment at life imprisonment. Now, with Billings on his way back to Folsom, Fickert could concentrate on the man whom he had once described as “a direct action anarchist.” On January 3, 1917, Mooney’s trial began before Judge Franklin A. Griffin and twelve Bay area citizens. Fickert, who had let one of his assistants handle the Billings prosecution, had had enough of the sidelines and showed up with Edward A. Cunha and James M. Brennan, two stalwarts from his office. Mooney was defended by W. Bourke Cockran, Maxwell McNutt and John Lawlor. It took two weeks to select a jury from the 177 talesman who were called and sworn and it was not until January 18th that Ed Cunha was able to begin the state’s campaign to convince Foreman William V. MacNevin and his eleven San Francisco County colleagues that the bombing had been the opening gambit in a Wobbly-inspired campaign to overthrow the State of California.

After six physicians had testified to the wounds and causes of death, Fickert called a whole battery of witnesses who described the cartridges, pieces of metal, ball-bearings and bits of imitation leather that were scattered all over the area after the explosion. Then Frederick H. Colburn, Captain Matheson and Lieutenant Bunner were put through their paces as to what they had seen and done after the blast. With these preliminaries behind him, Fickert finally got around to his star witness, talkative John McDonald, who had already told the Grand Jury and the Billings panel that he had seen Mooney and Billings at the corner of Market and Steuart Streets just before the bomb went off.

McDonald had been found wandering around the Hall of Justice two days after the explosion, claiming that he had seen the men who planted the lethal suitcase. Prior to his sudden prominence, he had been a waiter at a number of cheap San Francisco restaurants. Just a week before the parade, he had been released from the hospital where he had spent several months recuperating from a serious stomach operation. The doctors had told him that he would not be able to work for some time and he had just about run through his meager savings when he walked into Fickert’s office with his story. By July 24th, rewards totalling more than $14,000.00 had been reported by the _Chronicle_ “for the arrest and conviction of the criminals who perpetrated the bomb outrage on Saturday.”

It had been “about 1:40” when the witness arrived at the corner of Steuart and Market. He had gone to Steuart Street “because I thought there would not be such a crowd there.” After watching the parade for a few minutes, he had “moved up ten or fifteen feet on Steuart.” When he first saw Billings, the machinist was coming down Steuart Street from the direction of Mission Street. He had had a suitcase in his hand.

Q. Would you describe more in detail to the jury his actions when you saw him coming walking along Steuart Street with a suitcase?

A. Well, he was carrying the suitcase, and his head was working on a pivot, and he looked all excited as if he was worrying about something. That is what called my attention to him first.

Q. You at that time then noticed the cellar doors, the iron doors there?

A. Yes.

Q. Did he put the suitcase down before he got to the iron doors or afterwards?

A. No, before he got to the iron doors.

Q. He put it against the wall?

A. Let it down by the side of the wall.

Then he had watched Billings walk to the saloon at the corner of Steuart and Market where, just as he pushed the swinging door open, “right on the second, that man there, Mooney, he came out of the saloon.” As the two men were talking, Mooney kept checking his watch with the clock on the Ferry Building on the Embarcadero Plaza. When the brief conversation ended, Billings “started out in the crowd and I lost sight of him and my attention was drawn to this other man.”

Q. Thomas J. Mooney?

A. Yes.

Q. What did he do?

A. He took his watch out again and looked down toward the dock in the Ferry building and after he put his watch back in his pocket he drew his shoulders up and put his hand to his face like he was studying and looked alongside the building.

Q. What did he do?

A. He turned around and went through the crowd and I lost sight of him.

McDonald described the suitcase as being “kind of jersey, brownish color,” nineteen inches long, fourteen inches deep and seven inches thick. He was “just as positive as I am sitting in this chair” that Billings and Mooney were the men he had watched that July day. As far as the time was concerned, he thought that he had seen Billings walking up Steuart Street “about five minutes” after he himself had arrived at the corner at 1:40.

Cockran, who had been thumbing through the transcript of McDonald’s testimony at the Billings trial, could hardly wait for Cunha to finish with the witness. He didn’t waste any time getting down to bedrock.

Q. Didn’t you say at the Billings trial that when you saw Billings place that suitcase there it was about two o’clock?

A. Yes, but Mr. Cockran--

Q. Explain your answer. I understood you to say at the last trial ... it was two o’clock, and now you want to add something to your testimony. Am I right?

A. I know that is also the way I also testified in Judge--

Q. Can’t you answer that? Did you say at the last trial it was two o’clock when you saw Billings place that suitcase near those trap doors?

A. Yes, but I also said in Judge Dunne’s court it was eight or ten minutes of two when Billings came at the time with the suitcase.

Q. You repeat now it was eight to ten minutes of two and it wasn’t two o’clock when he put it down?

A. No, sir, I don’t say it was two o’clock when he put it down.

Q. You said it then, didn’t you?

A. Yes.

After Cockran had brought out that it would have been difficult for McDonald, who was standing more than one hundred feet away, to see the five-foot-four Billings through the crowd, the defense attorney came back to the all-important time element.

Q. Wasn’t the parade between you and Billings?

A. They were standing 50 feet off or more on Steuart Street.

Q. They were on the move at the time?

A. No, sir.

Q. Do you mean to say they were not moving at two?

A. I wasn’t there at two.

Q. Where were you at two?

A. Down towards the Alameda Cafe on Market Street or close to it.

Q. Then you were not there looking at him place it there at about two o’clock?

A. I mean about as near as I can tell to two o’clock.

Q. You don’t want to qualify it now?

A. I don’t change it.

In his testimony before the Grand Jury, McDonald had said that, after losing sight of Mooney, he had “started down Market Street and I got as far as the Alameda Cafe when the explosion occurred.” He had repeated this statement, almost word for word, at the Billings trial. Cockran decided to put the question to him once more.

Q. How far did you get when the explosion occurred?

A. Well, I had been standing down in front of the Alameda Cafe looking at the parade go by, and the parade had gone by, and I still stood there awhile and I seen the people pushing up toward Steuart and Market and I thought they were, that it was the units coming out of Steuart Street, and I was standing in front of the Alameda Cafe when the explosion occurred. When I did hear the report, I thought it was a signal for the units to come out of Steuart Street.

If McDonald could be believed (and it was obvious that Cockran was not prepared to accept this thesis), he had walked some 150 feet up Market Street after watching the Mooney-Billings tableau before he heard the blast. Since he had testified that he had first seen Billings at “eight or ten minutes to two,” some “25 to 50 feet” away from the corner, that the machinist had placed the suitcase against the building wall “about two o’clock,” and that he himself had started up Market Street in the direction of the cafe before two, it had taken him more than six minutes to cover the half-block. But the witness had an answer for this: “... when I started down Market I just took my time and walked along slowly. I didn’t walk any faster than a snail crawls almost. It took me a little time to get down to the coffee house.” Didn’t Mr. Cockran realize that he was still a very weak man?

McDonald was followed on the stand by Frank C. Oxman, a cattle dealer from Durkee, Oregon, who had replaced the syphilitic, wife-beating Crowley as a corroborative witness. It seems that he, too, had been on the corner of Market and Steuart Streets just before the explosion. He had pulled into town from Portland “between 12 and 1 o’clock,” and checked into the Terminal Hotel which was directly across Market Street from the Alameda Cafe. Then “I went to two or three restaurants and they were crowded and I couldn’t get a seat and I went over and bought some fruit and was at the corner of the street and was expecting to cross the street when the automobile drove up.”

Q. Where did it come from?

A. I call it down Market Street. It was going toward the Ferry Building.

Q. What was it attracted your attention to that machine?

A. This defendant was in the front seat holding a suitcase on the outside with his hands, on the running board.

Q. The defendant on trial, Thomas J. Mooney?

A. Yes.

He described the car as “an old Ford” and identified Israel Weinberg as its driver. He had seen Mrs. Mooney and Billings, whom he depicted as “the little auburn-haired boy,” in the vehicle’s rear seat. When Weinberg stopped the car near the saloon at the corner of Market and Steuart, “the little auburn-haired boy jumped out of the hind seat, very excitedly and very rapidly, and took the suitcase from the other gentleman that was holding it on the front of the machine.” Another man, who had been sitting in the Ford’s back seat, a man who “had a stubby mustache and looked like a working man,” got out of the car and relieved Billings of the suitcase. Then the two men had walked rapidly down Steuart Street just beyond some metal cellar stairs where Billings “took the suitcase from the other man and ... set it down by some doors.”

While all this was going on, Mooney had left the car and was standing on the curb, “right out near where I was,” watching Billings and his mustached companion walk down Steuart Street.

Q. Then what happened?

A. Then they came on back where Mr. Mooney was standing near the post and seemed to be looking for somebody, I don’t know--I think they went in the door of the building there, I won’t be sure whether all of them or not, and directly came out.

Oxman was near enough to hear Mooney tell Billings, “Give it to him and let him go; we must get away from here; the bulls will be after us.” The latter then handed something “to the other gentleman that carried the suitcase part of the way.”

Q. What happened?

A. He went across the street ... the other gentleman, I don’t know who he was.

After another brief conversation between Mooney and Billings, the machinist “went first toward the car and Mr. Mooney looked at his watch and looked at his watch and looked at the tower clock also at the same time. He glanced over to where the suitcase was after Mr. Billings left him and then he proceeded to go to the car also.” When he last saw the Ford, it had “turned into Steuart and went up Steuart.”

Oxman was certain that all of this had taken place at least twenty minutes before the explosion because he had returned to the hotel to wait for a telephone call.

Q. Now, when you got over to the hotel, did you notice anything about the time?

A. Yes.

Q. What would you say the time was when you arrived there?

A. It was 15 minutes to two o’clock.

Q. Around fifteen minutes to two?

A. Yes, because my telephone call was at two o’clock.

When Cockran took over, he wanted to know why Oxman had been so intensely interested in three men and a suitcase with a mammoth parade going by right under his nose. The witness had a ready answer to this oblique reflection on his credibility. “I thought these people were a set of thieves,” he said. “I took more than one glance at them. I thought they had stolen this suitcase and were caching it out, that was the reason I took close observation of them.” Besides, despite the fact that the cattleman weighed two hundred pounds, “Billings pushed me out of the way so he could go past.” A fat man would remember a thing like that.

Why hadn’t he reported the incident to the police when “he had noticed a mounted policeman there very close just before that?” He didn’t want to become involved. “Although I thought these men were thieves, I didn’t call a policeman, I didn’t look for one.” But he did jot down the license number of the Ford jitney--No. 5187--on the back of a Western Union envelope with the notation, “Think stolen grip. S. F. July 22.”

Thirteen-year-old Jimmy McDougall had been a flag boy with the First California Volunteers that afternoon. His unit formed in Steuart Street and had just turned the corner into Market Street when the bomb exploded. While he was waiting for the Volunteers to join the parade, Jimmy remembered seeing a light-brown leather suitcase “sitting where the hole was afterwards.” He had first seen the suitcase, which was about fifty-one inches long, ten inches wide, and a little more than fourteen inches high, “about ten minutes before I started to march.” But he hadn’t noticed any of the defendants in the area.

Before turning to les dames Edeau, Fickert called Detective John A. Dolan who had “arrived at the scene of the explosion about five minutes after it.” Like the other gendarmes who had preceded him on the stand, he described the positions of the bodies, the condition of the sidewalk, and the various pieces of metal that littered the area. When Fickert turned the witness over to him, Cockran saw a neat opportunity to put a small spike in Oxman’s story. He asked Dolan whether he had noticed any cars on Market Street after the parade had started. The detective, who had been assigned to look out for pickpockets on the sidewalks, said that he had seen no automobiles along the line of march and that he knew there was a general order excluding them from the area.

Sadie Edeau and her mother had both testified in the Billings trial. Although the two women swore that they had observed Billings on the roof of 721 Market Street, neither one had mentioned seeing any of the other defendants. Now Miss Edeau said that, shortly after witnessing Billings on the roof, “I saw Thomas J. Mooney and Mrs. Mooney ... coming down from the way of 721 Market Street.” When Billings came out of 721, she had watched him talking to Patrolman Moore. “I next saw Billings meet Mooney in the center of the sidewalk a little past the entrance to the Kamm Building a little further out on Market Street.” When she last saw the trio, they “all started down to the Ferry.” A few minutes earlier, she had seen Weinberg enter a “five-seated Ford” which had been parked on Market Street, facing downtown, and “drive down toward Third Street.” All of this had occurred “between half past one and twenty minutes to two.”

Cockran was beside himself when he took the witness over.

Q. Now, Miss Edeau, will you tell us why you didn’t mention Mr. Mooney and Mrs. Mooney and Israel Weinberg and the Kamm Building and that automobile ... at any time during the trial of the Billings case?

A. Yes, I was never asked anything about them on the witness chair.

Q. Were you asked what you saw that day?

A. I was only asked what I saw Billings do.

In fact, she hadn’t even told Draper H. Hand, the detective who had interviewed her in Fickert’s office before the Billings trial, all that she had seen because she “wanted to stay out of the affair.” But she insisted that she had revealed to him “about seeing the jitney and seeing the officer honk that horn.”

However, there was someone in whom Miss Edeau had confided before going to the police. She had spoken to Professor H. C. Migram, an elder in her church. But, while she had told him “more than I told Mr. Hand,” she was obviously not a lady who liked to reveal all at one sitting.

Q. Did you tell him everything you saw?

A. I didn’t tell him everything we saw.

Q. He told you to come over to the District Attorney and tell him everything you saw?

A. Certainly.

Q. And as I understand you, you didn’t tell him everything you saw, some of it you reserved until today?

A. Yes.

Q. Why didn’t you?

A. Because I didn’t feel like doing it.

Q. You didn’t feel like telling the whole truth?

You wanted to tell as much as you wanted?

A. The reason why I didn’t tell it was because I didn’t want to get into it.

Q. But you were in it!

A. We need not have gotten into it if we didn’t want to be truthful.

Q. But the elder advised you to go and tell the District Attorney everything you know?

A. Yes.

Q. And you went over and didn’t tell him all that you knew?

A. I think we did.

Cockran was muttering to himself when he sat down.

Mellie Edeau not only vigorously confirmed her daughter’s version, but insisted that they neither knew of any reward nor were “after the reward.” “Such a thing as that would not appeal to me,” she told Cockran. After Patrolman Moore, Peter Vidovich and Herbert C. Wade had repeated the testimony they had given in the Billings trial, Fickert called T. K. Stateler, a Civil War veteran who, like young Jimmy McDougall, had also seen “a suitcase at the place where I afterwards saw the indentation on the sidewalk.” Stateler, who didn’t have the stamina he had had at Gettysburg, had tired on his walk from his office to his unit’s assembly point in Steuart Street. “I looked for something to sit down on,” he said, “and I saw the suitcase. It was in the shade and it occurred to me to sit on it.” But a solid belief in private property had won out and he had decided to rest his G. A. R. bones on a nearby fence instead. As for the suitcase, “it looked like an old one, dark tan I should say.”

Fickert closed out his case with a lecture on the detonation of dynamite by Arthur H. Crane, an explosives expert, and the testimony of the officers who had arrested Billings and Weinberg. Lieutenant Bunner had picked up Billings at the Lane Hospital on July 26th. Later that day, he had searched the suspect’s home at 2410 Mission Street where he had uncovered a can of .22-caliber cartridges, a loaded .32-caliber pistol, a .22-caliber rifle, and ten ball bearings. Detective Hand had apprehended Weinberg in the famous Ford jitney that same day at the corner of Golden Gate Avenue and Market Street. Sergeant William R. Proll, accompanied by two policemen and the ubiquitous Martin Swanson, had ransacked the Mooney studio in the Eilers Building on July 26th. They had found “fifteen .32-caliber cartridges ... also three steel-jacketed bullets ... nine .38-caliber cartridges,” as well as an Iver Johnson pistol. On Tuesday, January 30th, twelve days after Cunha had arisen to address the newly impanelled jury, he informed Judge Griffin that “the State rests, your Honor.” Now it was Mooney’s turn.

Fickert’s case depended on convincing the jury that the cause of the blast was a time-bomb concealed in a suitcase which Mooney and Billings had planted at Steuart and Market Streets. Yet, there were witnesses who had seen an object falling from a roof just before the explosion occurred. Dr. Mora J. Moss, a physician who was marching with the Sons of the American Revolution, happened to look toward a building on the southwest corner and “saw a black object falling through the air.” When he noticed it, it was between twelve and fifteen inches from the ground. “It disappeared,” he testified, “behind the people standing on the sidewalk and a violent explosion immediately followed.” At the time, he was sure that it was a signal bomb to start the parade and had been dropped from the Ferry Building.

Fannie Dahl, Charles F. Hollfender, Louis Eris, and Maud Masterson, all of whom had been standing in the crowd on Market Street, also had seen “a dark object” flashing by. Dr. Moss had described it as “a foot to fourteen inches in length and three and a half to four inches in diameter.” Eris thought that “it seemed to be cylindrical in shape and about a foot across.” To Mrs. Masterson it resembled “an object like a balloon falling.” Janice Compton, who had a sixth-floor room in the Terminal Hotel, had been watching the parade from her window when she “saw a man crawl along the cornice of the building then being demolished just east of the saloon, walk across the roof of the southwest corner building and lean over the cornice and return, and in a second the explosion occurred.”

Thomas U. Doidge, who worked for the Fine Arts Engraving Company, said that he had been standing near the trolley pole in front of 721 Market Street, waiting for the parade. After the street had been cleared of all traffic, a car drove up and parked so close to him that he had to step aside so that its driver could get out. A few minutes later, Patrolman Moore had walked over and asked Doidge, “Is this your car?” When the witness answered, “No, sir, the driver has gone in the building here,” Moore “took hold of the horn and honked four or five times.” Shortly after the policeman had continued on his beat, the driver came out of 721, entered his car and turned left into O’Farrell Street. Doidge had not noticed any “suitcase or anything else in his hand.”

On the afternoon of July 22nd, Wade Hamilton, an employee of the Eilers Music Company, had been photographing the parade with a small Brownie folding camera from the roof of 925 Market Street. Four of his pictures were taken from the rear of the roof and, when he developed them, he noticed that the Mooneys were included in a group of persons standing within camera range. A large jeweler’s clock on the opposite sidewalk also showed up in the photographs. When the defense attorneys asked Hamilton to let them see prints of the films, he refused and immediately turned them over to Fickert. At the Billings trial, blurred prints, which failed to show the clock in the background, were furnished to the defense and introduced in evidence.

Now, Maxwell McNutt, who had taken over for Cockran, was determined to force the prosecution to come across with Hamilton’s negatives. He asked Griffin to order the Police Department to “produce the films referred to by this witness.” Cunha gave him a bit of a fight.

MR. CUNHA: I believe they are in the possession of Mr. Blum, the police photographer.

MR. McNUTT: We will ask that they be brought here before the witness leaves the stand.

THE COURT: Yes, send for them.

MR. CUNHA: It is Mr. McNutt’s business not ours, to send for them.

MR. McNUTT: I have no control over Mr. Blum. Go and get Mr. Blum and tell him to deliver the films which were delivered to him a week after the day of the Preparedness Day Parade.

Cunha, after reminding McNutt that he “had copies of those at the last trial,” gave in meekly. When the films were brought into the courtroom, Hamilton identified them as those he had taken on July 22nd.

Theodore Kytka, a photography expert for the United States Government, had made enlargements of Hamilton’s pictures. They clearly showed that the Mooneys had been on the Eilers Building roof at 2:01 p.m. and 2:04 p.m. on the day of the parade. Since the Eilers Building was more than a mile away from the corner of Market and Steuart, it was difficult to see how Mooney could have been in two places at approximately the same time unless one was prepared to accept a theory later advanced by Mrs. Edeau that a person’s “astral” and “physical” bodies can be separated at will.

John C. Lawlor, another Eilers Music Company employee, had gone to the roof with his wife “about a quarter to two, ten minutes to two, something like that.” He had seen Rena Mooney there “about ten minutes to two.” However, in the Billings trial, he had testified that “I first went up about ten minutes to two and that I remained there about ten minutes and started to go down the street and had an engagement and met Mrs. Mooney coming on the roof alone.” His wife, Gertrude, remembered that Mooney had also been on the roof “but I can’t say what time it was.” Mr. and Mrs. Mario Cresafulli had seen the couple there at 1:50 p.m. as had Mrs. Julia de Lorenzo.

Before the Mooneys had gone to the roof, they had been in their fifth-floor studio-apartment. Benjamin Kirsch, who had his tailor shop in Room 503 of the Eilers Building, had seen Rena Mooney “going down to the mezzanine floor with a sheet of music in her hand” between one and 1:30 p.m. Harry Rosenblatt, Mrs. Kirsch’s brother, arrived at the shop “between one and half past” and met the Mooneys there as did Sam Green, a family friend. Nicholas Hugh Treanor went to Mrs. Mooney’s studio on the morning of July 22nd and did not leave until 12:30. Rebecca Cutler, a violin pupil, said that she had come for a lesson that morning but that she couldn’t remember “what time of day it was.”

Rena Mooney testified that she had seen three of her pupils on the morning of the parade. Camille Leger had arrived first, only to announce that “she would rather not take her lesson that week because she had been on vacation and had not practiced.” Mrs. Mooney told the girl not to give it a second thought since the cancellation “was just as well for me as I was going on a vacation myself.” She had decided to purchase some underwear at Schwartz & Goodman’s on Fifth Street and the girl accompanied her to the elevator. While she was out, Rena stopped in the Clarion and bought a shirt and a tie for her husband.

After Rebecca Cutler’s violin lesson, the Mooneys decided to go up to the roof to see the parade because a huge flag on the front of the building had blocked all their windows. Martha Timberlake, Mrs. Mooney’s cousin, and Belle Hammersburg, her sister, went to the roof with the couple and stayed there until the parade ended. Hilbert Roberts, a fourteen-year-old pupil of Mrs. Mooney’s, “saw her on Parade Day on top of the Eilers Building while the parade was going on,” but didn’t know what time it had been.

When Mooney took the stand, he confirmed his wife’s account of their activities on July 22nd. He had left the apartment for breakfast at Hoffman’s Restaurant at 9:30 that morning and returned an hour later. He recalled that Rebecca Cutler had left his wife’s studio “in the neighborhood of 1 or 1:15.” A few minutes later, Mrs. Hammersburg and Mrs. Timberlake arrived and, at approximately 1:30, the quartet went up to the roof. “We did not leave the roof,” he testified, “until the last section had passed.” Like his wife, he denied being either at Steuart and Market Streets or 721 Market Street at any time during the day.

Israel Weinberg, a Russian-born ex-journeyman carpenter who had turned to hacking early in 1915, had met Mrs. Mooney when a Mrs. Strager (his wife remembered the name as Trager) recommended her as a music teacher for his son. Until he was arrested, he had never met Nolan or Billings. At 2:05 on July 22nd, he had been paying a bill at the gas company office on Grant Avenue. Then, after buying some chops and a loaf of bread, he went home and had his lunch. At 4:45, he had driven to the Ferry and “kept working until ten o’clock that night.” When it came to denials, he was just as definite as the Mooneys. “I did not drive a jitney on parade day up to 721 Market Street or to Steuart and Market or carry as passengers Mooney, Billings, Mrs. Mooney and a man with a stubby mustache.”

Weinberg insisted that he had picked up two men at 29th and Valencia who ordered him to take them to the 12:20 Ferry. Although he told them that “I guess I can make it,” he had arrived five minutes too late. Then, the cabbie picked up two more passengers on E Street who were destined for Fillmore and Sutter. When the cab reached Golden Gate Avenue and Jones Street, Weinberg said, “I saw a jitney driver I know, Simon Statler.” Later a Simon L. Sutter testified that “I saw Israel Weinberg driving around Golden Gate Avenue and Jones St. between 12:30 and around 1 p.m. or probably a little after. I don’t know the exact time. It was in the early afternoon.” Esther Caplan, who ran a misfit clothing store at 1269 Golden Gate Avenue, had seen Weinberg “between half past one and two on Saturday” when he had stopped in for a few minutes to read her a letter from his wife, who had gone east for the summer. David J. Smith, an old friend, had met him on Golden Gate between Webster and Fillmore “about a quarter to two.” Weinberg was on the sidewalk, walking toward his cab, when Smith, who was accompanied by Leon Carasso, a life insurance agent, had hailed him.

On February 9, 1917, the jury returned a verdict, finding Mooney guilty of murder in the first degree. Cockran immediately moved for a new trial on the ground that the verdict was against the weight of the evidence, but Judge Griffin decided to let things stand as they were. On February 24th, he sentenced the defendant to be “hanged by the neck until you be dead.” If this wasn’t the end of the road for the thirty-year-old ex-moulder, it was as reasonable and uncomfortable a facsimile as a union man could ask for.

But there was more to come. On April 11th, the _San Francisco Bulletin_ published photostatic reproductions of a series of letters between Oxman and one F. E. Rigall, the proprietor of a pool hall in Grayville, Illinois. In the early morning hours of December 14, 1916, the Oregon cattle dealer had written an urgent--and misspelled--note on the stationery of the Hotel Terminal to his old friend, urging him to “cum to San Frisco as a expurt witness in a very important case.” He promised him “mileage and all that a witness can draw probly 100 in the clear.” Oxman closed with the plaintive plea that “I need a witness.” Two days later, Rigall wired: “Will come. Wire transportation and expenses.”

Oxman answered him at once. “Your Telegram Received,” he wrote, “I will wire you Transportation in Plenty of time.” But there was one condition. “You will only hafto say you saw me on July 22 in San Frisco and that will be easey dun.” In the meantime, he advised his friend that “the silent Road is the one and say nothing to any Body the fewer People no it the Better.” On Christmas day, Oxman informed Rigall’s mother that he was “sending Ed transportation tomorrow.” Perhaps, he would be able to use her, too, as “a Extry witness” might come in very handy.

Rigall arrived in San Francisco on January 6, 1917, and registered at the Terminal Hotel as “L. O. Charles.” He was given Room 437. Four days later, the register was changed to show that 487 was now occupied by an “F. E. Rigall, Evansville.” On January 17th, at the request of “Mr. C. M. Fickert,” a card was issued to an “F. E. Rigall” by the Olympic Club of San Francisco, extending to him “the privileges of the club for a period of two weeks.” Apparently, nothing was too good for “a Extry witness.”

But Rigall was destined never to see action in the Mooney trial for the simple reason that he had never been in San Francisco before in his life. On February 12, 1917, three days after Mooney’s conviction, he sent Cunha a congratulatory wire but warned him that “my evidence will get party new trial.” The Assistant District Attorney replied by return telegram that he was “astonished at your suggestion that you have testimony to help defendant,” and exhorted Rigall to “wire me collect all details at once.” There was no answer from Grayville.

On February 13th, Charlotte La Posee gave the defense attorneys an affidavit in which she swore that she had seen Oxman watching the parade near the entrance to the Phelan Building, more than a mile from Steuart and Market, at the exact time when, according to his testimony, he had observed Mooney and Billings planting the lethal suitcase. According to the _Examiner_, Fickert was “undisturbed” at this revelation because “John Regal, an Oregon business man, was a companion of Oxman the day of the Preparedness Parade and could corroborate the testimony of the cattle man.” The reason “Regal” hadn’t been called at the trial was “because of domestic difficulties.”

Rigall got around to putting his story in writing on April 22nd when he signed an affidavit in which he claimed that Oxman, with Fickert’s help, had tried to get him to say that he had seen Mooney at the corner of Market and Steuart on Parade Day. For this, he was to receive $250.00 from Oxman and a liberal share of the reward money. But his conscience had gotten the better of him and he had left San Francisco on January 26, 1917, without testifying. When he returned home to Grayville, he had told the story to Mayor Claude O. Ellis, who had persuaded him to return to California and prevent “the God damndest frame-up that you ever heard of.”

Six days earlier, Estelle Smith, the dental assistant who had testified that Billings and his famous suitcase had been on the roof of 721 Market Street on the day of the explosion, had admitted that Oxman had tried to bribe her to identify Weinberg as well. “Wouldn’t you testify,” he had asked her, “that you saw him for a check in four or five figures?” To her question, “Who sent you to me, Fickert?,” he had replied, “No, not Fickert, but men higher up than Fickert.” When she had told the District Attorney of this offer, she was informed that the cattleman was “a queer old duck.”

On April 30, 1917, Oxman was indicted for subornation of perjury. One month later, Rena Mooney was brought to trial and acquitted on July 25th. Fickert managed to keep her in jail on the other seven indictments until March 30, 1918 when she was released in five thousand dollars bail. On November 27th, Weinberg also was acquitted but it was not until March 22, 1918, that he was admitted to bail. Nolan, with Captain Matheson’s help, walked out of prison shortly after the Oxman exposures and was never tried.

In the Weinberg trial, eighteen police officers who had been stationed in the vicinity of Steuart and Market on July 22nd testified that they had seen no jitney in that area between 1:30 and 2:06 p.m. Inspector William H. Smith and Captain Walter J. Peterson of the Oakland Police Department both said that Mrs. Edeau had first told them that she and her daughter had seen two middle-aged men “carrying a black suitcase with white metal trimmings at Steuart and Market Streets.” When Mrs. Edeau was taken to City Prison to identify Mooney and Billings, she had told Inspector Smith, “I have never seen either of these men in my life before.” In any event, it had been her “physical” body at Steuart and Market, she had informed the startled officer, because her “astral” body was standing on the sidewalk in front of the Kamm Building watching Billings leaning over the roof of 721 Market Street. Two years later, her physical hand was to write for the rewards her astral eyes had earned.

Although Oxman was acquitted of subornation of perjury, Woodrow Wilson appointed a Mediation Commission to make an investigation into the Mooney case. On January 16, 1918, the Commission informed the President that, while it was not in a position to determine the defendant’s guilt or innocence, it did feel that “a solid basis exists for the feeling that an injustice was done ... and that an irreparable injustice would be committed to allow such conviction to proceed to execution.” On the strength of this report, Wilson persuaded Governor William D. Stephens to commute Mooney’s sentence to life imprisonment.

Because California law did not permit the granting of a new trial on the basis of evidence that was not in the original record, it became impossible, notwithstanding Judge Griffin’s earnest attempts, to give Mooney another hearing. Both the trial judge and the Supreme Court of California were powerless to act despite that fact that, in May of 1921, Mr. and Mrs. Earl Hatcher of Woodland, California, told a Grand Jury investigating Oxman’s possible perjury at the Mooney trial that the cattleman did not board the San Francisco train until 2:15 p.m., nine minutes after the bomb had exploded some ninety miles to the southwest. When Griffin reminded Governor Stephens that Mooney had been condemned upon evidence “concerning the truth of which, there had arisen a very grave doubt,” he had made the understatement of the century.

But there were still more surprises in the offing. Alice Kidwell, Estelle Smith’s mother, who had testified before the Grand Jury that she saw Mooney waiting for Billings outside of 721 Market Street, had written a letter on February 2, 1917, to her husband, who was then serving a term for forgery in Folsom Penitentiary. In it, she told him that “the authorities are going to let you out and maybe in a few days. Captain Matheson and the District Attorney went to see two of the Board this A.M. and will see the others at Sac. I know I am needed for authorities and they are helping me by getting you out.”

Fickert’s largesse was impressive. Before Estelle Smith had retired to the safety of a dentist’s office, she had been a San Francisco prostitute with a long arrest record. In addition, she and James L. Murphy, an uncle, had been indicted in 1913 for the murder of a boarder at the rooming house in which they were then living. Estelle was never tried but her uncle was convicted and sentenced to twelve years in the penitentiary. Coincidentally, Uncle Jim was released on April 10, 1917, forty-five days after Mooney’s sentence. In 1929, Miss Smith gave Fremont Older, then the editor of the _San Francisco Call_, a sworn statement in which she admitted she and the Edeaus had been carefully coached by Fickert’s men.

On February 7, 1921, John McDonald, the only key witness besides the Edeaus to testify in all four trials, executed a startling affidavit in New York City. In it, he stated that, while he had seen a man “lay down a suitcase” on Steuart Street, he had never seen that man again. But the District Attorney had wanted more out of him than this. “I think I talked to Fickert every day for weeks about the case. He kept saying to me every time I came, always using hard names against Mooney and Billings, ‘Those are the men you saw there that day.’ Up to this time I had never told Fickert that I could not have identified these men if they had not been pointed out to me, and I could not do so.” Just before the trial, Fickert told him that “there is a reward of $17,500 for the conviction of these people, and when I put them away, I will see that you get the biggest slice of the reward.” For a man who hadn’t worked in months, the temptation was just too much.

For some weeks prior to July 22nd, more than two hundred hand-printed post cards had been mailed to various sponsors of the parade. These cards warned their recipients that, because of their “extreme activity in promoting and glorifying militarism ... the extermination of you and your evil class, is going to be the sole and patriotic duty of the Employees Liberty League.” Although many detectives thought that there was a connection between the cards and the explosion, Fickert had dropped any further investigation along this line when handwriting experts advised him that neither Mooney nor Billings could have written them. But in 1930, Alonzo A. Smith swore that his brother, Louis, had