Bought juries deny justice in Herrin Massacre trials
</element><element id="paragraph-1" type="body"><![CDATA[After the massacre on Thursday the county coroner did his job and held an inquest for the dead on Sunday. He impaneled six men - three miners, a merchant, an electrician and the superintendent of the Herrin waterworks as a coroner's jury to rule on the deaths.
They ruled striking miner Jordy Henderson's death as murder at the hands of the mine manager C. K. McDowell. As for all the others, many who still whom were yet unidentified, they died at the hands of parties unknown. As to the fault, they blamed the coal company and not the union for "acts direct and indirect" that led to the deaths.
Over and over witnesses at the inquest could provide amazingly exact details, except when it came to names of those doing the shooting.
The Carbondale Free Press criticized the lack of candor by the witnesses. They wrote the evidence given by each could be summarized as follows: "I heard the shots, went to the scene, saw a crowd and found men lying dead. I don't know who fired the shots."
Across the country newspapers editorialized about the need for justice. They demanded arrests be made, but in Williamson County the sheriff made no effort to arrest anyone.
Almost immediately fingers began pointing as to which public official should be held responsible. Critics laid much of the blame on Sheriff Melvin Thaxton for not calling in state troops to guard the mine and prevent the massacre in the first place.
Oldham Paisley, then editor of the Marion Daily Republican blamed the ranking National Guard colonel on the scene, Sam Hunter, who had been sent to investigate the mine issue earlier in the week.
"I thought then and I think now that Williamson County had that riot, because Gov. Small permitted a national guard colonel to play politics, instead of doing his duty," Paisley told of journalism students at Southern Illinois University around 1964. "This colonel said he could not call the Illinois National Guard without a request from the sheriff; and he knows, and I knew the sheriff was not available."
At this point Paisley referred to the activities of Wednesday afternoon the day before the riot when the sheriff was investigating the ambush of the mine car and truck returning from Carbondale with additional workers and guards.
"I know, because I sat across the table from (the colonel) in the Marion City Hall when we got word that Jody Henderson had been killed at the Lester Mine. Henderson was a striking miner and was killed, as I remember, about 2 or 3 p.m. Had the colonel called for troops, they could have come to Marion by train from Carbondale, Cairo and Mt. Vernon, on regular trains that same night and would have been in control of the mine the next morning. If the colonel had not wished to curry political favors from some mine officials who did not want troops called, the mine riot would have been averted," Paisley said.
Troops had arrived in the county in 1915 following a lynching in Johnston City and were used in West Frankfort after a race riot in 1920, so Paisley knew exactly how quickly they could arrive. He was also right that it didn't take the sheriff to act to get troops as would be proven in subsequent episodes during the klan war.
With the sheriff not making arrests the search for justice fell to the county prosecutor.
State's Attorney Delos Duty wasn't a stranger to tough cases. He started his first week on the job in December of 1920 with a double murder case that had ignited the race riot in West Frankfort earlier that summer. He easily secured a conviction for one of the defendants who was hung the following year. The second man had hung himself in the jail during the trial.
"Then everything went to Hell," wrote Brockton Lockwood 11 years ago in an article on Duty in Springhouse magazine. "Suddenly, with little or no warning, the state's attorney's job became impossible.
With the assistance of the state's attorney-general Duty began an investigation using a county grand jury to hear testimony two days after the coroner's jury had passed taking any responsibility to investigate.
Lockwood, a former circuit court judge described grand juries as a way for a "state's attorney to take the heat off himself when he doesn't want to file charges. The secret hearing allows the state's attorney to tell the grand jury not to return 'true bills' because he knows he can't get a conviction and that the county can't afford a trial."
Duty, he wrote, "did not use the grand jury to duck his responsibility to prosecute those responsible."
Over the next two months he would bring 300 witnesses before the grand jury to testify.
"When indictments were returned," Lockwood wrote, "Duty and the grand jury shocked the county and the nation by returning 42 indictments for murder and over 100 other charges."
When Paul Angle interviewed Duty in 1951 his notes described the attorney as "tall, angular, bony man... speaks ungrammatically, but gives every indication of native shrewdness."
"Duty received a whole pile of threatening letters from local miners and their sympathizers, and a bigger pile of vituperative letters from all parts of the country," the notes continued.
"Miners whom he had known from childhood would pass him on the street with faces averted. Cut him pretty deeply."
Between the mine trial and the subsequent klan war that followed he was shot at eight times, and hit three.
As those indicted were arrested the county jail, now a museum, became packed. The miner's union provided extra food. Families flocked to the facility visiting their loved ones. One arrested striking miner even got married during his incarceration.
As part of their defense strategy the union immediately appointed one of their local presidents Ora Thomas as a lead investigator. Thomas' role, if any, in the massacre has never been determined, but he later claimed to have been part of the union men guarding the mine in the days and nights leading up to the massacre.
His job as investigator likely involved the gathering, if not the outright creation, of alibis for the witnesses. He would later gain fame as the leader of the Knights of the Flaming Circle organized by Duty and others to counter the Ku Klux Klan in 1923.
Duty started his prosecution by trying five striking miners indicted for murder, Otis Clark, Leva Mann, Peter Hiller, Bert Grace and Joe Carnhagi. All had been named by multiple witnesses as having taking a leading role in some of the major deaths of the massacre.
The trial opened with defense motions on Oct. 3 with the main trial beginning on Nov. 7. The next day jury selection began and for the next five weeks it continued as the state struggled to find 12 impartial men.
The state called 87 witnesses and the defense countered with 130. The presiding judge also improperly, in Lockwood's opinion, allowed the use of the "Texas defense."
"In Texas, former stomping ground of Judge Roy Bean and where allegedly anything goes, a defendant is allowed to put the victim on trial and suggest that the 'S.O.B' deserved killing," Lockwood described.
In the end the jury acquitted all five men on Jan. 17. Duty knew something was up when the defense waived closing argument. Someone had already attempted to bribe Duty.
"I was offered money in my office. I told the man that normally when someone offered me money I at least thought about it overnight before rejecting it, but in this case that he just better get out of my office right now!" Lockwood quoted Duty.
Duty may have rejected the bribe but the jurors did not. About 30 years ago a son of one of jurors told Lockwood about his family's story.
"A man came up to him at the courthouse and said, 'if I was you I would walk north on Market Street this afternoon at the break; and, if I was youI would carry an umbrella.' So, my dad did as suggested. Another man walked up and handed him an envelope and said that 'this was a token of appreciation from the United Mine Workers of America,'" the son recalled.
The envelope contained $980, enough money to pay off the mortgage on the family's farm.
All in all some accounts indicated the union spent $35,000 in defense costs during the first trial alone.
Duty tried again in the winter of 1923 with a second trial, but the new jury found the men innocent as well.
Covering the trials
For the local papers the trials proved an interesting challenge.
Paisley, editor of the Marion Daily Republican, covered the mine riot (he rarely referred to it as the Herrin massacre) and the trials.
"This was a difficult time for reporters, but by sticking to what we believed to be the facts and not editorializing in the news or in the editor's columns, we had little trouble," he later told a group of journalism students at SIU some four decades later.
During the trials he and his young colleague 18-year-old reporter Homer Butler, the father of Marion Mayor Bob Butler, worked as a team to cover every aspect of the trials, writing up each morning's testimony for the afternoon paper.
Paisley also represented the Associated Press, United Press and International News Service wire services as well as the Chicago Tribune and the St. Louis newspapers.
"I had to have from two or three new leads for every morning and every evening newspaper," he recalled.
Between Nov. 8, 1922, and April 30, 1923, the Western Union office in Marion transmitted 780,095 words. Of that amount Paisley filed 403,000 of them.
He and Butler used some techniques to get the news then that probably would be frowned upon by authorities today.
"When the jury was deliberating we searched the waste baskets every time the jury went out for lunch. We found scraps of paper in the waste baskets (that showed) the trend of the voting.
We could tell how many voted and some idea as to whether they were close or widely split," he explained to the young journalists.
"Naturally, we checked the waste basket in the morning to see if it was empty and saw to it each day there were pads of scrap paper on the table for balloting," he added.
Next: Massacre's aftermath
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Musgrave receives e-mail at bdeneal@yourclearwave.com</li>
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