Idaho’s trial of the century

By Vern Herzog
For The Journal

Of all the legal writing I have done over the last 50 years, my research about dynamite assassin Harry Orchard and his victim, former Idaho Gov. Frank Steunenberg, and one of the men from the Western Federation of Miners Orchard implicated, William D. Haywood, was the most exciting. Maybe it really was “Idaho’s trial of the century.”
But before I continue my story, let’s look at some activities/growth within Idaho during the 1800s, creating pressures which culminated in the assassination and other acts of violence.
• Early 1800s: Explorers Lewis and Clark meandered through Idaho on their way to Oregon and discovered many fur-bearing animals and thus began the fur trade.
• 1860: Mormon pioneers established the first permanent Idaho settlement, Franklin, and farming made a foothold in Southern Idaho.
• In 1860: Miners found gold first on the Clearwater River and then on the Salmon River, Boise River Basin, Owyhee River … all by 1863. “Gold and silver fever” struck, producing a host of settlements, which are present-day “ghost town” tourist delights.
• This rush of action brought a population large enough for Congress to create the Idaho Territory in 1863.
• And by the late 1800s, construction of railroads enabled shipment of Idaho’s riches to all parts of the United States, and which, incidentally, provided considerable financial aid to BOTH sides of the Civil War.
• On July 3, 1890, Idaho Territory became the State of Idaho.
• During the 1890s, poor working conditions for miners encouraged them to join unions, the largest of which was the Western Federation of Miners. And guess who the union’s “Godfather” was? Stay tuned.
• In 1892, violence broke out between union miners and non-union men and the mine owners.
• In 1899, a second strike broke out. Gov. Frank Steunenberg declared martial law and federal troops were called in to regulate the situation. This act was seen as a betrayal by Steunenberg union supporters, and likely because of this, he served only one term as governor, not seeking re-election in 1900, and was eventually assassinated by Harry Orchard on Dec. 30, 1905.
With this background, let me share my enthusiastic pursuit of the Steunenberg assassination. My wife, Margaret, and I made two trips to Boise, one to visit retired Supreme Court Jurist Byron Johnson, renowned for his research on the Steunenberg affair; and second, to spend an afternoon at the old State Penitentiary, escorted by a former prison guard, who actually knew Harry Orchard during his 47 years of confinement.
In fact, our guide had assisted Harry Orchard attend to his hybrid roses, chickens and vegetables that he was allowed to grow on prison grounds and generously shared with fellow inmates. (Many of those roses are still growing and were in beautiful bloom while we were there.)
You may be saying to yourselves, “Who was Harry Orchard?” Harry Orchard’s role in the Haywood trial was murderer and chief witness for the prosecution. Following the dynamite blast that killed former Gov. Steunenberg at the gate to his Caldwell home, Harry Orchard was soon apprehended in Caldwell, charged with the crime, to which he confessed, and was then held in solitary confinement at the Idaho State Penitentiary.
He also tried to implicate leaders of the Western Federation of Miners, indicating he had been paid by them to do the assassination. As a result of that information, three top leaders of the Western Federation of Miners were apprehended and charged with murder in the first degree and conspiracy to commit murder.
They were Charles H. Moyer, federation president; George Pettibone, a federation adviser; and William D. Haywood, affectionately known as “Big Bill Haywood.” As strategies developed for the trial, it was determined that the defendants would all be tried separately, and that “Big Bill Haywood” would be tried first.
None of the defendants were actually within the State of Idaho at the time the assassination took place, and at the time of their arrests they were in Denver, Colo.—two in bed at their homes and Bill Haywood “spending the evening” with his sister-in-law. It is important to note here also, that all of the incriminating evidence against Harry Orchard, the state’s chief witness, had been obtained by a search of his room which turned up all the essential ingredients needed to construct a bomb … all of this evidence was obtained without a search warrant.
During the first 30 days after the assassination, Harry Orchard had been visited regularly at the penitentiary by a “man of God” with a Bible, and by James McParland, a “policeman” with a gun. McParland was a master detective with the Pinkerton Detective Agency, whose services had been retained by Gov. Gooding soon after the killing took place.
Orchard confessed to McParland that he had killed Steunenberg and that he had also committed a number of other crimes of violence during the Colorado “Labor Wars,” killing as many as 28 “scabs” or non-union miners. According to Orchard, all of these assassinations had been done with the blessings of “Big Bill Haywood” of the Western Federation of Miners, for whom Orchard operated as a paid professional “dynamiter.”

The Trial

State of Idaho vs. William D. Haywood setting: The trial of “Big Bill Haywood” took place in Boise, in the heat of the summer of 1907 — a year and a half following the assassination. It lasted for 10 hot, humid weeks in the days with no air conditioning! To add to the temperature stress, it was taking place at a time when politics in the United States were also heated — explosively hot, in the true sense of the word.
Idaho, Colorado and Montana were endlessly under some sort of martial law imposed at the request of the various state governors, one of whom had been former-Gov. Steunenberg. It appeared he was no friend to the Western Federation of Miners.
The players: An all-male 12-member jury.
Defendant No. 1: William D. Haywood of the Western Federation of Miners.
Chief attorneys for the defense: Clarence Darrow, Edmund Richardson.
Chief attorneys for the state: James H. Hawley, William E. Borah.
Chief witness for the state: Harry Orchard.
Highlights during the trial: Within a few weeks of Steunenberg’s death, Gov. Gooding of Idaho retained the services not only of James McParland, but James H. Hawley, an Idaho attorney, as a special prosecutor. Finally, in addition, he named William E. Borah, Idaho’s newly elected U.S. senator, as another special prosecutor. Borah had practiced law in Idaho for a number of years and was also the man who had delivered the eulogy at the funeral of his close friend, Frank Steunenberg.
Interestingly, at the time the trial began, both Borah and Steunenberg (the latter deceased) had been indicted for an alleged fraudulent scheme involving a sale of lumber. What created even more stress for the prosecution, Sen. Borah had an ongoing and “steamy” relationship with Alice, a married daughter of the president of the United States, Theodore Roosevelt. Alice became “of child” and subsequently garnered the nickname, “Aurora Borah Alice.” And if that wasn’t enough luggage to carry around, President Roosevelt, in a pre-trial press release, referred to “Big Bill Haywood” as “America’s most undesirable citizen.” The Socialist Party was fuming, and rightly so.
For 10 weeks during the hot summer Boise became the news capital of the world. On average, there were 15 newspaper correspondents, wire service personnel and “muck-raking” magazine people gathered for the trial itself, with an average of 50,000 words a day going through the local Boise Telegraph Office describing the trial for readers throughout the entire United States. The trial transcript consisted of more than 5,700 pages.
What Clarence Darrow had to say to the jury about “Orchard getting religion” and then providing the state with a written confession implicating his client, Haywood, is not only entertaining, but a typical Darrow comment: “Hawley (attorney for the prosecution) doesn’t know half as much about religion as I do. If he knew anything whatever about religion, he would never tell 12 men that something could be sprinkled upon the head of Harry Orchard and his entire nature would change in the twinkling of an eye…. If Harry Orchard has religion now, I hope I never get it. I want to say to this jury that before Harry Orchard got religion he was bad enough, but it took religion to make him totally depraved.”
A highlight of defense cross-examination took place when Edmund Robinson, Darrow’s co-counsel, cross-examined Harry Orchard for over 26 hours concerning the content of his confession. During this entire period of time Orchard did not recant, change or modify any of his written confession. In fact, he acknowledged that he could possibly have killed even more people. It was during this same cross-examination that Orchard volunteered he had previously placed a bomb at the Idanha Hotel in downtown Boise, anticipating the arrival of Steunenberg.
But when the intended victim did not show up, Orchard said he removed the bomb from the premises. (Hmmm, hmmm, very interesting; makes me think back to during my high school football days at Pocatello High. When playing in Boise, our team was regularly housed at the Idanha Hotel. Makes me wonder if any of my teammates, or I, may have slept in the room where Orchard had placed the bomb so many years before.)
Trial verdict: Haywood was acquitted and justice was done. Then three weeks later, Borah was tried for felony lumber sales fraud and defended by James Hawley. Just 14 minutes after the jury received the evidence, the jury returned a verdict of “not guilty.” Triumphantly, Borah, in a speech from the porch of the Idanha Hotel, promised the audience that he would “get rid” of his Idaho prosecutors when he got to Washington, D.C., saying, “These human hyenas who feast on the dead as well as the living” (a reference to the fact that Frank Steunenberg hadn’t been tried because he was dead).
Borah succeeded in carrying out his promise. Alice’s father, President Roosevelt, upon Borah’s recommendation, removed and replaced both the U.S. district attorney and the U.S. marshal for the state of Idaho. (Now that’s what I call clout!)
Many other interesting side issues exist, but time and space prevent their discussion in this article. Oh well, I’ll tell you just one more little gold nugget: It was James Hawley who was the “Godfather” and creator of the Western Federation of Miners, almost 15 years before the Haywood Trial. Hawley may have felt he gave birth to a monster, then cut off its head at the Haywood Trial.