by Marianne Wesson
University of Colorado Law School
U of Colorado Law Legal Studies Research Paper No. 06-09, Working Paper Series.
Abstract: The case of Mutual Life Insurance Company v. Hillmon is one of the most influential decisions in the law of evidence. Decided by the Supreme Court in 1892, it invented an exception to the hearsay rule for statements encompassing the intentions of the declarant. But this exception seems not to rest on any plausible theory of the categorical reliability of such statements. This article suggests that the case turned instead on the Court’s understanding of the facts of the underlying dispute about the identity of a corpse. The author’s investigations into newspaper archives and the original case documents point to a different understanding, and proposes that this important rule of evidence may have grown out of an historical mistake.
Keywords: Evidence, Legal History, Law and Literature
MCGUFFIN: In film theory, especially in the films of Alfred Hitchcock, an object of no intrinsic significance, often misunderstood or even nonexistent, whose function is to explain the characters’ behavior to suit the author’s dramatic purposes.
When Sallie Hillmon of Lawrence, Kansas bade farewell to her husband John in February of 1879, she may have been feeling some apprehension about the errand he said he was undertaking a winter trip by horse and wagon to find a good spot farther west where a man might start a sheep ranch. But the twenty-three year old waitress could not have anticipated that John Hillmon’s failure to return from this expedition would provoke an epic lawsuit that would last for a generation and produce six trials, two decisions by the United States Supreme Court, and a new rule in the law of evidence. The litigation bearing her name, brought against the three life insurance companies that had issued policies on John’s life, is seen as important today chiefly because of the law it created. In the course of disapproving the judge’s exclusion from the third trial of certain epistolary evidence a young man’s letter to his sweetheart back home– the Supreme Court created an important exception to the hearsay rule for expressions of the intentions of the speaker or writer. Litigators certainly know the rule; it is now embodied in Federal Rule of Evidence 803(3) and corresponding exceptions recognized in most other American jurisdictions. Recent law school graduates may remember the case, and a few lawyers with a fondness for history may even recall that it grew out of a dispute about the identity of a corpse found at a rural campsite. But for most of us the story has faded into uncertain memory.
Still, the Hillmon decision has proven one of the most durable examples of nineteenth century American case law. Most decisions of that era enjoy little continuing vitality, but Mutual Life Ins. Co. et al. v. Sallie Hillmon is different. The state of mind exception to the hearsay rule, at least as it pertains to expressions of intention, rests on very little ground other than the authority of Hillmon; more than nearly any other rule of evidence, it owes its existence to a single decision. In practice this rule has, like all persisting legal doctrines, become somewhat abstracted from the case that gave it birth. Yet in many ways it remains profoundly wedded to its origins in the dispute about the identity of a corpse, and thus embedded in a classic mystery narrative. Having taught the case many times to students in my Evidence class, I recently found my curiosity aroused by the unconvincing nature of the reasons the Court gave for its decision, as well as certain discrepancies in the accounts I had read of the case; I decided to investigate further. I was inspired in part by the narrative movement in legal scholarship, which has attempted among its other projects to excavate some of the stories concealed by the law’s insistence on distillation and abstraction. But I also thought that further investigation might at least illuminate my puzzlement about why the Court invented a rule that seemed to be so little grounded in logic, policy, or psychology. After a long journey through archives and old newspaper accounts I have arrived at this conviction: the story of John Hillmon’s disappearance, as the Supreme Court understood it, led the Justices to create an ill-considered legal doctrine that has nevertheless proved remarkably resilient and nearly immune to criticism. The venerability and importance of this doctrine have led us in turn to remember the events and the story of the Hillmon case in a way that validates the Court’s enterprise of rule invention. But the story as it is now remembered cannot survive a closer inquiry into the historical record. In particular, I believe that the record nearly compels the conclusion that the piece of evidence whose disputed admissibility led the Court to create this rule the famous letter– was a fake, the creation of unscrupulous litigants or their lawyers.
My sources were the original records of the six trials and two appeals, or all of them that have been preserved; they are located at the National Archives and Records Administration in Kansas City. I also read original newspaper accounts of the quarter century of litigation from the archives of the Kansas State Historical Society. The story they tell is this: in the spring of 1879, Sallie Hillmon filed claims against the policies that three New York insurance companies had issued on the life of her husband John, to whom she had been married but a few months; she reported that he had died in a firearms accident in rural southwest Kansas. Life insurance fraud was common, if not rife, in late nineteenth century America, and the suspicious companies refused to pay the claims, maintaining that John Hillmon was not dead. In July of 1880, negotiations having broken down, Sallie commenced lawsuits against them; the three suits were eventually consolidated into one.
The first two Hillmon trials, in 1882 and 1885, produced hung juries, but the third resulted in a victory for Sallie Hillmon. It was this verdict, rendered in 1888, that led to the famous Supreme Court decision of 1892 reversing the judgment in her favor. Three more trials ensued, two ending with hung juries and the last in another verdict for Sallie Hillmon, which was once again overturned by the Supreme Court. The ultimate contested factual issue in all of the trials was the identity of the man who died of a gunshot wound in March of 1879 at a campsite near Medicine Lodge, Kansas, leaving behind a body whose death far predated the availability of twentieth-century methods of identification. Sallie Hillmon and her attorneys insisted that the corpse was her husband’s, and there was evidence that this was the case, including identifications of the body shortly after its demise by Sallie Hillmon and many of those who knew Hillmon when he was alive, and statements made on some occasions by Hillmon’s traveling companion at the time, one John H. Brown. In Brown’s original account, given within hours of the death, he said he had shot Hillmon accidentally when unloading a rifle from a wagon, while the two men were making camp at a place called Crooked Creek.
The insurance companies argued that the deceased was not Hillmon but an innocent victim, a man whom they claimed Hillmon and John H. Brown had lured to Crooked Creek for the precise purpose of killing him and leaving his body behind to be passed off as Hillmon’s. There was some evidence that this was the case, including witnesses who knew Hillmon in life and swore that the body (or a photograph of it) could not have been he, and a written statement sworn to by John H. Brown a few months later, after a coroner’s inquest had concluded that the dead man was not Hillmon. In this statement, Brown supported the companies’ theory and said that the victim was an individual named “Joe” whom he and Hillmon had picked up in Wichita and persuaded to accompany them west. But before the first trial, John Brown repudiated this story and returned to his original one, claiming that the insurance company’s lawyers had coerced him into signing the false affidavit.
By the time of the first trial, the companies were claiming that the corpse was that of Frederick Adolph Walters, once a citizen of Ft. Madison, Iowa, and the betrothed of a Miss Alvina Kasten, also of Ft. Madison. They produced witnesses, including Miss Kasten and various Walters family members, who identified the corpse from photographs as Frederick Adolph. It was agreed that young Mr. Walters had left Ft. Madison in March of 1878 for the purpose of bettering his condition, and had traveled widely in the Midwest for a year or so. The defendant insurance companies claimed that Walters found himself in Wichita in March of 1879, and it is here that a letter, a document that a film theorist might call the McGuffin of the story, first makes an appearance.
Miss Kasten testified in a pretrial deposition that she had received a letter from her fiance dated March 1st from Wichita; in it he wrote that he planned to leave that city soon with a “man by the name of Hillmon,” a sheep trader. The letter, which was attached to the Kasten deposition transcript as an exhibit, explained the writer’s decision to accompany this stranger by confiding that Hillmon had “promised me more wages than I could make at anything else.” Miss Kasten described this letter as the last communication she had ever enjoyed from Mr. Walters.
This letter was exceedingly helpful to the defense, both in suggesting an alternate identity for the corpse and in corroborating Brown’s statement that he and Hillmon had lured a victim to accompany them on their journey. It’s difficult for any reader of the Supreme Court’s 1892 decision to resist the conviction, aroused by Mr. Justice Gray’s description of the letter, that the Crooked Creek corpse must have belonged to Frederick Adolph Walters. John Brown’s conflicting accounts might cancel one another out and leave one in doubt, as might various witnesses’ identifications of the corpse as Hillmon or Walters, but the letters are a decisive tiebreaker. It is insupportable as coincidence that Frederick Adolph Walters encountered a man named Hillmon in Wichita shortly before the death at the campground, left that town with him, and was never heard from again; murder is the obvious explanation. Most students and scholars of the case, not only in this country but abroad as well, have believed that the corpse was that of Walters.
Frontal and Profile Views of the Corpse in the Hillmon Case.
National Archives and Records Administration, Kansas City, Missouri.
Still, the first two juries were unconvinced, at least enough of the jurors to produce two mistrials. But in the third trial, Judge Shiras of the Circuit Court in Topeka excluded the Kasten letter from evidence, accepting the arguments of Mrs. Hillmon’s lawyers that it was inadmissible hearsay. The jury, innocent of any knowledge of the letter, returned a verdict for Mrs. Hillmon, and the insurance companies appealed. The Supreme Court’s decision overturning that verdict contains its famous language about what has become known as the “state of mind” exception to the hearsay rule:
A man’s state of mind or feeling can only be manifested to others by countenance, attitude, or gesture, or by sounds or words, spoken or written. The nature of the fact to be proved is the same, and evidence of its proper tokens is equally competent to prove it, whether expressed by aspect or conduct, by voice or pen. When the intention to be proved is important only as qualifying an act, its connection with that act must be shown, in order to warrant the admission of declarations of the intention. But whenever the intention is of itself a distinct and material fact in a chain of circumstances, it may be proved by contemporaneous oral or written declarations of the party. . . .
The rule applicable to this case has been thus stated by this court: ‘Wherever the bodily or mental feelings of an individual are material to be proved, the usual expressions of such feelings are original and competent evidence. Those expressions are the natural reflexes of what it might be impossible to show by other testimony. If there be such other testimony, this may be necessary to set the facts thus developed in their true light, and to give them their proper effect. As independent, explanatory, or corroborative evidence it is often indispensable to the due administration of justice. Such declarations are regarded as verbal acts, and are as competent as any other testimony, when relevant to the issue. Their truth or falsity is an inquiry for the jury.”
145 U.S. 285, 295-96 (1892), quoting Insurance Co. v. Mosley, 8 Wall. 397, 404-05 (1869).
With this reasoning the Court reversed the trial judge and sent the case back to be tried anew, directing that the evidence of the letter be allowed.
The Court’s explanation is not really persuasive, however, especially to the eye of a reader a century later. What could the Court mean when it suggests that expressions of intention are (at least sometimes) “verbal acts”? Today we reserve that description for utterances the saying of which per se transforms the legal situation of the speaker and/or another– for example words of gift, of contract, or of consent. It is characteristic of such locutions that they effect this transformation whether or not they are “true”; they are not actually hearsay at all, because not offered to prove the truth of some matter asserted. Descriptions of one’s intention to go to a certain place are not, ordinarily, in that category certainly not when offered solely as proof that one did go to that place. Such declarations would be probative only if true would be, that is, hearsay. The Court spreads the confusion around a bit by borrowing from an earlier case the proposition that the “truth or falsity” of statements like those in the letters is “an inquiry for the jury.” But the rule excluding hearsay, which the Court does not purport to repeal in this case or any other, rests precisely on the notion that determining the truth or falsity of some extrajudicial utterances is too challenging a task for a jury that has been deprived of a chance to observe the declarant and hear him cross-examined under oath.
There is yet another difficulty of the Court’s opinion: even if, as the Court holds, the letter was properly admissible to prove that Walters intended to leave Wichita with Hillmon (and apparently as well for its tendency to prove that he did leave Wichita with Hillmon), surely the letter’s effect on the jury could not be confined to proving those propositions. If accepted as evidence of the truth of the propositions put forward by the letter-writer, they argued just as surely that Hillmon had approached Walters in Wichita, had promised him extraordinarily (perhaps suspiciously) good wages if he would accompany Hillmon, and had intended to take Walters along when he and Brown decamped. None of these latter propositions concerns Walters’ intentions; instead they describe either past events that the writer is recalling as he writes (“I met Hillmon and he promised me good wages”), or the perceived intentions of another not the writer (“Hillmon intends to take me with him when he leaves Wichita”).
The Court, although it does not address this criticism explicitly, does seem to anticipate it by citing at length the precedent Hunter v. State, a then fourteen-year-old New Jersey decision on an appeal from a murder conviction. In Hunter, the disputed evidence was a pair of declarations by one Armstrong that he was “going with Hunter to Camden on business.” He was found dead a day later, and Hunter was charged with murder. The New Jersey Supreme Court defended the admissibility of Armstrong’s statements with following argument:
In the ordinary course of things, it was the usual information that a man about leaving home would communicate, for the convenience of his family, the information of his friends, or the regulation of his business. At the time it was given, such declarations could, in the nature of things, mean harm to no one. He who uttered them was bent on no expedition of mischief or wrong, and the attitude of affairs at the time entirely explodes the idea that such utterances were intended to serve any purpose but that for which they were obviously designed. If it be said that such notice of an intention of leaving home could have been given without introducing in it the name of Mr. Hunter, the obvious answer to the suggestion, I think, is that a reference to the companion who is to accompany the person leaving is as natural a part of the transaction as is any other incident or quality of it. If it is legitimate to show by a man’s own declarations that he left his home to be gone a week, or for a certain destination, which seems incontestable, why may it not be proved in the same way that a designated person was to bear him company?
11 Vroom 495, 538 (N.J. 1878).
As a precedent, Hunter does justify the broad use of a declaration of intention, but it is an odd choice for the Court, which was under no compulsion to promote this New Jersey decision into a source of federal common law. Hunter’s reasoning is at best unpersuasive: it gives no authority for its “incontestable” premise that a man’s declaration that he intends to “[leave] his home to be gone a week, or for a certain destination” qualifies for a hearsay exception, and apart from a state of mind exception, none would seem to apply. Its genial air of nineteenth century doubt that a respectable gentleman would utter a falsehood about his own affairs has a charm to it, but not much force. Nevertheless the Hillmon decision silently endorsed Hunter’s holding and stamped it with the Court’s powerful imprimatur. The expansive version of the state of mind exception that is, an exception that encompasses statements about whom one’s assignation was with, or who one’s companion would be has persisted remarkably well through the ensuing one hundred twelve years, despite occasional eloquent criticism from thoughtful judges, and it has done so because of Hillmon.
What could account for the Court’s unconvincing reasoning and doubtful rulemaking in the Hillmon case? Even a modest version of the hearsay exception for the expressed intentions of a hearsay declarant– that is a version allowing expressions of intention to prove only the genuineness of the intention– does not rest on any plausible theory of reliability. It lacks any justification in the sort of armchair psychology that prompted the invention of, say, the exceptions for dying declarations or statements against interest. The former were thought reliable because “no man would meet his Maker with a lie upon his lips,” and the latter because persons who say things that disadvantage them must be motivated by a powerful need to tell the truth. But expressions of one’s intentions? It would seem to be easier to lie about one’s intentions than about nearly anything else, since the likelihood of being caught out in a lie is small any discovery of later acts incompatible with the expressed intention can always be explained by the simple phrase “I changed my mind.” The more robust version of the exception endorsed by the Hillmon court is even less grounded in reliability, since allowing an expression of intention as evidence that the intention was accomplished disregards the folk wisdom that there is “many a slip twixt cup and lip.”
One could ascribe the Court’s curious misstep here to generalized hostility toward Sallie Hillmon and her victory, but the Court did not need to reach out to invent the state of mind exception to send Mrs. Hillmon’s case back for retrial. It had already decided, before addressing the matter of the Walters letter, that Judge Shiras erred reversibly by granting the insurance company defendants too few peremptory challenges. Indeed, the dispute about the letter seems to have been a secondary consideration in the minds of the defendants’ lawyers. The companies’ principal argument before the Court concerned the peremptory challenge question, and they placed the matter of the letters far down their list of assigned errors; moreover, their only argument for the admissibility of the letter consisted of the claim that it was a business record, an obviously meritless proposition. Nevertheless, after disposing rather briskly of the challenge issue, the Court observed that “[t]here is . . . one question of evidence so important, so fully argued at the bar, and so likely to arise upon another trial, that it is proper to express an opinion on it,” and then proceeded to consider the trial court’s decision to exclude evidence of the Walters letter.
Justice Horace Gray, who was assigned to write the opinion of the Court, had at the time a remarkably competent secretary (today we would say law clerk): Ezra Ripley Thayer, later to become Dean of the Harvard Law School and a noted evidence teacher and scholar. According to Thayer, the Court in conference voted to overturn the trial court’s evidentiary ruling on “general principles” without specifying what those might be. Thayer later noted that Justice Gray was in “dense darkness” about how to undo the ruling excluding the letter until he (Thayer) “fed him with matter obtained with J.B.T.” that is, from James Bradley Thayer, the young secretary’s father, himself a Harvard law professor and scholar of the law of evidence.
What an imbroglio! At the time the Hillmon case was argued, it seems the Supreme Court building housed a Court that would object to the exclusion of the Walters-Kasten letter on principles too general to be articulated but too powerful to be omitted from its holding, a Justice assigned to author an opinion but more than willing to leave the fine points to his clerk, and a young scholar so eager to leave his mark on the law of evidence that he would seek guidance in ex parte correspondence with his famous father, incorporate their invention into the Court’s opinion, and later boast that it was his idea, and not the clueless Justice Gray’s, to cobble together this new exception to the hearsay rule.
And yet these converging antagonists to Sallie Hillmon’s lawsuit, whose apparent motives were no more nefarious than ordinary ambition or professional exhaustion, cannot altogether account for the invention of the state of mind exception. There is something more powerful at work: the urge to complete a just and intelligible narrative. It is impossible to come away from an encounter with the Supreme Court’s opinion without the impression that the trial judge’s exclusion of the evidence concerning Walters’ letter the story’s McGuffin disserved the cause of truth. The letter, although barred from the jurors’ notice in the third trial, was part of the appellate record, and minutely described in the Court’s opinion. Once a reader of the Court’s opinion knows of the letter, it seems offensive to the idea of justice that the law would countenance a retrial in which the verdict could rest again on the jurors’ ignorance of evidence that seemed to prove, with near certainty, that the corpse belonged to Frederick Adolph Walters. The story, the true story, had to be the one that Brown told in his affidavit: Hillmon persuaded the credulous “Joe” (obviously, from the evidence of the letters, Frederick Adolph Walters) to accompany them on their journey, and killed him at Crooked Creek, leaving his body to be taken for Hillmon’s.
If the reader is left with this narrative anxiety about the availability of the indispensable McGuffin, can the Court have been unmoved by the corresponding need to participate in the creation of an acceptable story a story in which truth and justice are served in the end, rather than mocked? Inattentive though they may have been to the details of their decision, the Justices must have believed they were doing justice by inventing a hearsay exception for statements describing the intentions of the speaker. For truth to prevail (and for Hillmon’s swindle to be thwarted), the letters had to be part of the story; for the letters to be part of the story, they had to be admissible; for the letters (unquestionably hearsay) to be admissible, some exception to the hearsay rule had to be found; if one could not be found, it must be invented.
Once invented, the Hillmon exception to the hearsay rule has carried enough prestige to fend off serious criticism for more than a century. Although later commentators raised doubts about the rule of Hillmon, especially the expansive version, its holding was incorporated eighty-three years after its announcement into Federal Rule 803(3). That rule reads (in pertinent part): “The following are not excluded by the hearsay rule, even though the declarant is available as a witness: . . . . A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed . . . .” By itself (especially in light of the qualification of the last phrase) this rule might be read to exclude such materials as the Walters letters, or at least to require strict confinement of their use to proving the intentions of the declarant, and prohibit their employment to prove any past acts, or anyone else’s intentions. But it has not been on the whole been read that way, in part because the influential Advisory Committee’s Note to that rule states: “The rule of Mutual Life Insurance Co. v. Hillmon, . . ., allowing evidence of intention as tending to prove the doing of the act intended is, of course, left undisturbed.”
Note the emphatic of course deployed in the midst of the comment. Although other Advisory Committee Notes are thoughtful, analytical, occasionally critical even of Supreme Court precedents — in this Note the mere mention, the invocation, of Hillmon begins and ends the discussion. The case has become iconic, and thus unquestionable. Moreover, the cause of narrative coherence requires that the rule of Hillmon must be construed to sustain the story of deception and conspiracy that the case is understood to tell. The letters must, in this cause, be admissible in all of their aspects and implications’ they must illuminate not only what Walters intended and did, but also what Hillmon intended and did. Unless the letters are allowed this explanatory force, the story is missing essential ingredients that are required to satisfy our curiosity and our hunger for a just narrative.
Since the Hillmon decision itself seemed to permit all uses of the Walters letters, it is with some justification that most judges have accepted the case to mean that a declaration of the speaker’s intentions is admissible over a hearsay objection, even if it includes assertions about past conduct of the speaker or another, and even if it contains a claim about the intentions of someone else. This doctrinal result grows largely out of reverence for the rule of Hillmon — and the circumstance that the disputed evidence in Hillmon itself described not only the intentions of the declarant Walters, but that declarant’s claims about the past acts and intentions of another, Hillmon.
The power that this single letter seemed to hold over the development of the law of evidence eventually led my inquiry in this direction: suppose a case were to be made for the truth of quite a different narrative, one in which the corpse belongs to John Hillmon after all? In particular, suppose that the story’s McGuffin, the famous letter, were full of lies? What would this circumstance, if proven, bode for the state of mind exception?
The possibility of any such plausible narrative may seem small given all of the foregoing discussion, but that is in part because the provenance of the Walters letter is taken for granted; the lawyers’ quarrel over its admissibility as hearsay seems to exhaust skepticism about the circumstances of its creation. And it is also in part because partisans of the defendants have played a suspiciously large role in constructing the Hillmon story in historical memory.
Most persons familiar with the Hillmon case take their understanding of it from a few sources: the Supreme Court’s opinion; a lengthy account of the case found in the 1913 edition of Dean Wigmore’s famous treatise on the law of evidence, The Principles of Judicial Proof; and in “The Case of the Anonymous Corpse”, an engaging account published in American Heritage magazine in 1968 by historian Brooks Maccracken. But the last two accounts rest on essentially the same source, and that source is one of the attorneys for the defendant insurance companies. Maccracken confesses that his “principal authority” was a report prepared by the Kansas State Superintendent of Insurance; that report, reproduced verbatim, is also the only account of the case given in the Wigmore treatise. In fact the Superintendent of Insurance, a lawyer and businessman named Charles Gleed, was at the time of its preparation and release attorney of record for the defendant insurance companies. Newspaper accounts and court records confirm that he and his law firm represented one of the insurance companies from the second trial to the sixth and last one, as well as in both Supreme Court appeals.
Apparently the Kansas Superintendent of Insurance was free, during his term of office, to represent at a month-long trial three of the insurance companies that he was charged with regulating, a rather stunning instance of what we would today call “regulatory capture.” Gleed was also a journalist who claims to have written many of the contemporaneous newspaper accounts of the inquest and the first trial. He practically made a career of seeking to discredit Mrs. Hillmon’s claim, and yet his account has become the principal authority for what we now remember of, and how we think about, the Hillmon case. Considering the bias that colored this canonical source, I concluded that the most instructive information about the Hillmon case was to be found in contemporaneous newspaper accounts, which were fortunately available because of Kansas’ lengthy and proud journalistic tradition and its excellent newspaper archives.
When I visited those archives, there was plenty to read. The Hillmon trials were press sensations, and the Kansas newspapers of that time were neither restrained nor what we would today call “objective” in their coverage. Some of the papers that reported the Hillmon inquest and trials were obvious Hillmon partisans, and some (especially the Leavenworth Times and, during the 1870′s, the Lawrence Standard) were obvious allies of the insurance companies. None of a newspaper’s readers would have found this shocking or even unusual. But this is not to say that press accounts about trials were indifferent to facts. Indeed, the daily stories in many papers resembled transcripts, with minute, almost question-and-answer, reportage of the testimony. Almost all of the newspaper stories employed this near-transcription method, and these close accounts of testimony comprised the bulk of any paper’s coverage of a trial. Comparison of accounts of a day at trial as reported by two different newspapers often reveal word-for-word correspondence between their accounts of the witness testimony, suggesting that a gift for stenographic recording was part of the newspaper reporter’s arsenal. The newspaper accounts may be regarded, then, almost as alternative sources of trial transcripts. These accounts are especially important because official transcripts of much of the testimony are lacking. Although portions of the transcripts of the third and sixth trials have been preserved in the records prepared for appeal, these records did not include transcriptions of every witness’s testimony. As for the four inconclusive trials, no official transcripts are available. Moreover, the first three judicial inquiries into the death at Crooked Creek were coroner’s inquests, and transcripts of their proceedings were not preserved; but the third, and most consequential, inquest is reported in extraordinary detail by the two Lawrence papers.
Putting aside the partisan arguments of the various newspapers, their more particular reports of the testimony and evidence tell a rather clear story. After John Brown reported the shooting death at Crooked Creek to some nearby rural residents, two inquests were conducted under the auspices of the coroner at Medicine Lodge, seat of Barbour County. The first coroner’s jury failed to agree whether the death was accident or otherwise (one account says the jury “did not know how to render a verdict,” an odd circumstance suggesting that homicide, or at least investigations into it, were not common in Barbour County); the second concluded that the shooting was accidental. The body was then buried at Medicine Lodge, and Brown wrote a letter to Sallie Hillmon explaining what had happened and conveying his regret and condolences.
When the insurance companies that had issued policies on Hillmon’s life learned of the reported death of their policyholder, they lost no time moving into action. Agents of two of the companies, Theodore Wiseman (sometimes known by the title of “Major”) and a C. Tillinghast, traveled to Medicine Lodge and demanded that the body be exhumed for their examination. They were accompanied by one Colonel Walker, apparently a figure of some renown in Kansas. The first two gentlemen told the Medicine Lodge coroner that they knew Hillmon and wanted to assure themselves that the deceased was he. According to a contemporaneous report in the Medicine Lodge paper, the Cresset, “the identification was satisfactory” and the body, presumptively Hillmon’s, was dispatched “to be returned to his relatives near Lawrence.” When the body reached Lawrence, however, far from being returned to Sallie Hillmon or any other relative, it was delivered to two physicians described by the Lawrence Standard as “representing the insurance companies.” These physicians were reported to be in doubt about whether the body, by then nearly a month dead and partially decomposed, was that of Hillmon. Three other persons who knew Hillmon were asked to look at the exhumed body, and all said they could not be certain whether or not it was he. Mrs. Hillmon declined at first to examine the body, saying she preferred to remember her husband as he was in life, but later she did look at it, and affirmed that it was John. The body was then sent to a funeral home to be embalmed, although it was apparently taken out and shown to various persons over the ensuing days. The next day the coroner of Leavenworth County summoned a coroner’s jury and commenced a third inquest. Douglas County Attorney J.W. Green and his assistant George Barker performed the office of examining the witnesses. The inquest proceedings were reported for the Standard in great particularity.
There must have been some buzz of citizen dissatisfaction about the role of the insurance companies in orchestrating the Lawrence inquest after the Medicine Lodge coroner had found the death to have been accidental. The Standard’s reporter took time out from reporting the testimony to castigate in print some of the critics of the proceedings: “The mistake is made by some, of supposing that the inquest now being held is managed by the representatives of the insurance companies. The inquest is, of course, by the State to determine whether the body brought here is that of Hillmon, and the manner of that death. County Attorney Green and Geo. J. Barker represent the State and not the insurance companies in the examination now being held.”
This rather impatient admonition takes on some significance in light of later events. Not only did Mr. Charles Gleed, the Insurance Commissioner, represent the insurance companies at the later trials of Mrs. Hilllmon’s suit; his co-counsel in those trials were J.W. Green and George J. Barker. Barker and Green also represented the companies at the first trial, as well as in both appeals, serving these clients altogether for nearly a quarter of a century. Green, the County Attorney, later became Dean of the University of Kansas Law School, but even after taking that post he continued to represent the companies in the Hillmon litigation. And despite the reporter’s claim, Green and Barker seem to have been employed by the insurance companies even at the time of the inquest, as were almost all of the other participants. At the fourth trial of the case, in 1895, the Coroner testified that he had received his pay for conducting the inquest from the insurance companies, that he believed the witnesses and jurors had been compensated from the same source, and that “as far as he knew the coroner’s inquest had not cost the county of Douglas a single dollar.” He also recalled “the fact of the examination of witnesses being conducted by George J. Barker in behalf of the insurance companies and that to this, [I] offered no objections.” Testifying in the same trial, Major Wiseman corroborated this account: he said that he had “employed Mr. Barker at the time of the inquest to assist him in establishing the fact that the body was not Hillmon’s.”
In any event, despite citizen grumbling about its justification the Lawrence inquest proceeded, an arduous affair of several days. Many witnesses testified, including John Brown, who gave the same account of an accidental shooting that he had given at Medicine Lodge. Mrs. Hillmon testified that she had looked at the corpse after it was brought to Lawrence and knew it for her husband’s. Similar testimony about the corpse’s resemblance to Hillmon was given by Levi Baldwin, a cousin of Sallie and erstwhile employer of John Hillmon who had gone to Medicine Lodge and accompanied the body back to Lawrence. The proprietor of the rooming house where Sallie and John maintained their household also said he had seen the corpse and it was Hillmon. The chief controversies seemed to concern the questions of Hillmon’s height, the condition of his teeth, and the age of a smallpox vaccination scar. (Controversies over these matters’ teeth, height, scars’ would mark each of the later trials as well.) The corpse was five-eleven, and Hillmon had reported exactly that height when he first applied for one of the insurance policies. But the doctor who had examined him for the company at the time testified that Hillmon had come back a few days later to say that he was really only five-nine, and that the doctor had only then proceeded to measure him, and had found that the shorter height was correct. He explained the obvious alteration of the application to reflect the shorter figure by saying he had made the correction after Hillmon’s second visit. Hillmon had been vaccinated for smallpox just before leaving on his journey, about three and a half weeks before the shooting, and the corpse had a scar from a recent vaccination. But various doctors called by Green and Barker testified that the scar was too fresh for the body to be Hillmon’s; one said Hillmon’s scar would have hardened and dropped off by the time of the Crooked Creek shooting. The physicians who had performed the post-mortem of the corpse noted its excellent teeth and one of them, who had examined John Hillmon in connection with his policy application, said that by contrast “one or two” of Hillmon’s front teeth were “broken or out.” Levi Baldwin and the Hillmons’ landlord Arthur Judson, however, said that John Hillmon’s teeth were not defective, and one of the other physicians said he had noticed nothing unusual about Hillmon’s teeth when he examined him.
The early days of the inquest were marked by these controversies over teeth and scars and height; no mention was made of any other person who might have been the real victim of the shooting. John Brown had, in his testimony, mentioned that on two different occasions after he and Hillmon left Wichita headed west, men had traveled and camped with them for one or two nights before going their separate ways. But nobody at first sought to put a name other than Hillmon’s on the corpse, nor was it suggested that either of the temporary traveling companions Brown mentioned might have ended up dead at Crooked Creek.
Toward its conclusion, however, the inquest became an occasion for the newspapers to suggest a number of different individuals who might have been the victim of Brown and Hillmon’s criminal conspiracy. First a Mrs. Lowell thought from the body’s description it might have been her missing brother, but when the corpse was dug up for her inspection she said it was not; then there was a “young man of Indiana” said to be missing; and later Colonel Wiseman was said to have located some friends of a man named Frank Nichols, known as “Arkansaw.” The friends said that Arkansaw had told them he had agreed to go herd cattle with men named Brown and “Hillman,” and had never been heard from again. Major Wiseman, Colonel Walker, and the insurance companies’ other agents were apparently tireless in their efforts to locate a convincing actor to cast in the role of the corpse, and the details of their story (the victim meeting up with Hillmon and agreeing to travel west with him) were already becoming clear, even though the agents had not by this time ever heard of the cigarmaker from Iowa, Frederick Adolph Walters.
It was mid-May when the coroner’s jury returned its verdict of murder “at the hands of J.H. Brown.” (Curiously, it did not mention Hillmon as murderer or accomplice.) Brown must have been feeling alarmed, but he was not immediately accused, arrested, or charged. Instead, he was approached not long afterward by a lawyer named W.J. Buchan. Buchan had offices near the Brown family home in Wyandotte, Missouri, to which John Brown had repaired after testifying in the proceedings at Lawrence, and claimed to have come into the case at the request of John Brown’s father. The lawyer had several conversations with Brown over the summer, beginning in May, and eventually spoke as well to Brown’s brother. In September, Brown signed and swore to a lengthy statement prepared by Buchan, and in it he repudiated the story he had told about Hillmon’s death and gave quite a different account. The statement averred that John Hillmon and Sallie’s Hillmon’s cousin Levi Baldwin had entered into a conspiracy to commit insurance fraud, Baldwin’s part being to pay the premiums and Hillmon’s (and Brown’s) being to journey to the southwest with the object to “find a subject to pass off as the body of John W. Hillmon, for the purpose of obtaining the insurance money.” The affidavit said that after leaving Wichita, the two men had encountered a stranger “the first day out of Wichita, about two or two and one half miles from town.” The stranger “said his name was either Berkley or Burgess, or something that sounded like that,” but Brown and Hillmon “always called him Joe.” Hillmon told Brown that Joe “would do for a subject to pass off for him,” but Brown objected that murder was “something that I had never before thought of, and was beyond my grit entirely.” Nevertheless, by the statement’s account, Hillmon proceeded with his plan, most foresightedly by persuading “Joe” to allow Hillmon to vaccinate him for smallpox. Hillmon accomplished this rather remarkable feat by taking the virus from his own arm and using a pocket knife to insert it into the other man’s. Hillmon also persuaded the other man to trade clothing with him, and measures were taken to avoid any passersby seeing three men, rather than two, in the wagon: “sometimes one and then the other would be kept out of sight.” Apparently as a hedge against any impression of implausibility a reader might form of these events, the statement explains that the stranger was “a sort of an easy-go-long fellow, not suspicious or very attentive to anything.”
The statement then relates that Hillmon shot and killed the stranger at the Crooked Creek campground, dressed the dead man in his clothes and put his own day book into the jacket pocket, told Brown to ride for assistance, and then vanished north with “Joe’s” valise. Later back in Lawrence, according to the statement, Brown had a conversation with Sallie Hillmon in which she assured him that “she knew where Hillmon was, and that he was all right.”
From the insurance companies’ point of view, a more useful document than this affidavit can scarcely be imagined. It accounts for all the facts then known, including the inconvenient vaccination scar, discredits not only Brown’s earlier testimony but two of the most important witnesses (Levi Baldwin and Sallie Hillmon) who identified the corpse as Hillmon, and makes excellent use of what had before been the most suggestive circumstance in favor of the company’s position: the suspiciously large amount of life insurance carried by a poor man like Hillmon.
Brown had also written (not just signed, as with the affidavit) another highly helpful document: a letter to Sallie Hillmon. In it he wrote, “I would like to know where John is, and how that business is, and what I should do, if anything. Let me know through my father. Yours truly, John H. Brown.” Brown later would say that this letter was dictated to him by Buchan. And by the time of the first trial of the Hillmon case in 1882, Brown had returned to his original account of the death at Crooked Creek, testifying for Sallie Hillmon and claiming that Buchan and the insurance companies had pressured him into swearing to the affidavit.
Brown’s inconstant narratives are described in the Court’s 1892 opinion. I imagine most readers will likely have the same reaction that this writer did on first reading: Brown was a weasel and a turncoat, but his affidavit was probably true. For (I reasoned) there could have been many motivations for Brown to lie when he said he had killed Hillmon accidentally, chiefly an expectation that he would share in the insurance proceeds when they were paid. But it seemed unlikely that he had lied in confessing to the plot as he did in the affidavit. Pressure from the insurance companies seemed inadequate to account for that narrative or his willingness to give it, as it would have exposed him to prosecution as an accomplice to murder. Buchan’s actions seemed questionable; nevertheless, as a naive reader I was willing to ascribe my reaction to a perhaps excessively nuanced sense of the boundaries of acceptable professional conduct, instilled in me a century later in a far different legal environment. But further reading led me back to Buchan’s behavior, and caused me to re-examine my first conclusion.
I found that the only documents evincing Buchan’s legal authority were signed after Brown agreed to sign the affidavit Buchan had composed for his signature. There were two such documents, both prepared by Buchan. The one executed by Brown, dated the same day he signed the affidavit, authorized Buchan to “make arrangements, if he can, with the insurance companies for a settlement of the Hillmon case, by them stopping all pursuit and prosecution of myself and John H. Hillmon, if suit for money is stopped and policies surrendered to the companies.” The second, dated the next day, was executed by an agent of the insurance companies; it “authorized and employed” Buchan to procure and surrender the policies of insurance on the life of John Hillmon. Buchan himself would testify later that the only pay he received in the matter came from the insurance companies. He bridled at the suggestion that there was anything improper about this, saying that he “was in the habit of taking fees for his work.”
Concerning the lawyer’s conduct, the testimony of the Browns, both John and his brother Reuben, was altogether different from Buchan’s. John Brown testified that Buchan showed up, unbidden, at a farm in Missouri where Brown was working; he came back at least twice more, approaching Brown at various places where he was employed and finally at his brother Reuben’s house. On the last occasion, at Reuben’s, Buchan brought with him a man named Ward, whom he said was a deputy sheriff. On each occasion Buchan pressed Brown to sign a statement saying that the dead man was not Hillmon but another; according to later testimony from Brown, Buchan told Brown he could “make it appear it was a man who came out from Wichita ; the man called himself Joe; . . . [and] was killed by Hillmon and [Brown]; and was passed off as Hillmon.” Buchan also warned Brown that “they are after you.” Brown testified that at a later occasion at Reuben’s house, with the deputy sheriff Ward in tow, Buchan told Brown that “there was a warrant for [his] arrest, and [he] must do something soon.” Brown said that Buchan also informed him “that he was employed to protect me; [was] well acquainted with the insurance men; they care[d] nothing for [me], and want to keep from paying the money . . . .”
Reuben, in his testimony at the first trial, seconded his brother’s account. He said that after listening to Buchan, he undertook to convince his brother that it would be better for him to do as the lawyer urged him, in order to avoid further difficulties, and that John Brown then gave in to these arguments and agreed to sign a paper that Buchan would prepare.
After this capitulation there followed John Brown’s preparation (pursuant to Buchan’s dictation) and signing of the letter to Sallie Hillmon saying that he would “like to know where John is.” Mrs. Hillmon testified that she did not receive this letter, and Buchan admitted that he did not send it on to Mrs. Hillmon; instead he gave it to the insurance companies’ representatives. Apparently it was never intended as an actual communication; it was a piece of evidence manufactured by Buchan, at a time he purported to be representing Brown, in favor of the insurance companies’ theory that Brown and Sallie Hillmon were united in a continuing conspiracy.
A couple of days later, in the presence of a notary, Brown signed the lengthy affidavit prepared by Buchan. A few days after that the document’s history became even more bizarre: after it was shown to Mrs. Hillmon and did not immediately produce the desired effect of prompting her to renounce her claim, it was torn to pieces and thrust into a stove in Buchan’s office. Brown (backed up by Sallie Hillmon) claimed that it was he who treated the paper thus; the reason for this destructive act (he testified) was an agreement between him and Buchan that the document was to be used only by the insurance companies’ men to get Sallie to relinquish her claim. Buchan maintained on the other hand that the statement was prepared “as a guarantee that Brown would testify in case suit was brought that the statement was true,” a description that implies the possibility of use in court to impeach a discrepant statement (and of course that is the very use to which the affidavit eventually was put). In any event, after the stove incident Brown must have believed that the statement had been destroyed. Buchan, however, acknowledged that between the time Brown signed it and the stove incident, he had given a copy of the affidavit to the insurance companies’ attorneys. Copies were made by hand at the time, so the preparation of a copy was not a casual act, and Buchan testified that it was he who had it done. He could then destroy the original affidavit or permit its apparent destruction to reassure Brown of his good faith, secure in the knowledge that his colleagues representing the companies had access to a copy. But he seems even to have anticipated the possibility that a handmade and unsigned copy might not be admissible to the same extent as an original: later he rescued the torn original statement from the stove, and placed the pieces in an envelope. These efforts were later rewarded: Judge Shiras, presiding in the third trial, ruled that the copy made at Buchan’s direction could not be admitted or described, and that the matters therein could not be proved unless the original document were produced. Thanks to Buchan’s rescue it was produced (somewhat scorched and tattered, but apparently restored or at least pieced back together), and admitted into evidence for the impeachment of the man he had claimed was his own client.
Although Buchan denied or contradicted many aspects of the Brown brothers’ testimony, his own account of the course of his representation is scarcely less damning. By his own admission he prepared a document that, in exchange for
Brown’s affidavit, promised immunity from prosecution for both Brown and Hillmon. But these negotiations were held only between Brown and representatives of the insurance companies; no public officials signed any of the documents, nor is there any visible evidence of their involvement. Either Buchan arranged for his “client” to confess to a crime (or more than one) in exchange for a promise that he knew was worthless, or the insurance companies really did dictate the administration of criminal justice in Lawrence and elsewhere (for if there was a murder it took place in Barbour County), and Buchan knew it and was willing to participate in their appropriation of the criminal justice system for their private purposes.
Even allowing for the possibility of a less rigorous set of professional expectations in 1880 Kansas than we might entertain today, the behavior of the lawyer Buchan was far beyond unprofessional. If the testimony of the Brown brothers is to be believed, his perfidy was shocking; but even if his own account is credited, his persistent persuasions might easily have caused a poor young man to sign a statement that he knew was not true in exchange for assurances that he would face no further trouble if he did so.
If you are not yet persuaded of this account, consider testimony much later by one of the companies’ own faithful agents. The central claim of the affidavit drafted by Buchan for Brown’s signature was that a man who called himself “Joe Berkley” or “Joe Burgess,” who camped and traveled briefly with Brown and Hillmon, was the individual killed at Crooked Creek. In this particular the affidavit capitalized on and harmonized with testimony Brown had given at the inquest that a stranger had been their road companion on an earlier leg of the trip (although there Brown said that the stranger had left them before they struck out for Crooked Creek). In the first five of the trials, the insurance companies’ lawyers argued that the “Joe” of Brown’s affidavit was really Frederick Adolph Walters, presumably using an assumed name. But testifying at the last trial, in 1899, Major Wiseman admitted that he had found “Joe Burgess,” the same one mentioned in Brown’s affidavit, quite alive not long after the Lawrence inquest. Apparently, at the time the affidavit was written, the companies knew of an actual young man named Joe Burgess who had dropped from sight, and hoped he could be made to perform the office of the dead man; it was only later, after the real Joe Burgess turned up and the Walters family reported their son missing, that the claim was made that “Joe” was Walters. What better proof could there be that the affidavit was the product of Buchan’s invention, and not a truthful account related to him by Brown?
These reflections are important not only to the judgment of history as it pertains to Mr. Buchan, but also to the credibility of Brown and, ultimately, to the significance of the letter from Frederick Adolph Walters to his sweetheart. Without Brown’s affidavit, the defendants had little to rest their case on but claimed variations between Hillmon’s and the dead man’s bodies, the oddness of a man like Hillmon having purchased so much life insurance, and the Walters letter. The letter and the affidavit (despite certain discrepancies between them) seem to reinforce one another: each tends to quell doubts about the reliability of the other. But if the Brown affidavit is dismissed as the product of the interactions of an unscrupulous lawyer, a relentless set of adversaries, and a frightened and unlettered young man, the Walters evidence justly falls under new scrutiny, together with the famous decision that legitimized it.
The career of the letter through the various trials rewards further attention. There was no evidence produced of the letter at the Lawrence inquest, of course, because at that time the insurance companies had not yet learned of Mr. Walters’ disappearance or even of his existence. But after the inquest the insurance companies learned of the Walters family and the missing Frederick Adolph. (Walters’ father had asked for help locating his son from Frederick Adolph’s lodge in Ft. Madison, where an officer had corresponded with his counterpart in Lawrence, who knew that Col. Wiseman would be interested in any news of a missing man. Along this chain the news that Walters was missing reached the insurance companies.) Eventually the companies’ lawyers took the deposition of Miss Alvina Kasten, who (she said) furnished them with the famous “Dearest Alvina” letter. Judge Foster, presiding in the first trial, admitted the letter, together with the deposition in which she identified it; Kasten herself did not testify live at this trial (or any of the others). The attorneys on both sides seemed far more interested during the first trial in other evidence about the corpse’s identity, especially the matter of the teeth, an issue whose significance had become clear as early as the inquest and would persist through each of the six trials. The judge kept the jurors in session overnight on a Saturday, but after seven ballots the jury remained divided seven to five in favor of Mrs. Hillmon, and a mistrial was declared.
In the second trial, the Kasten deposition was again received in evidence, together with the letter. Again the jury hung, this time six to six, but this time the letter seems to have been more important in their deliberations. One juror (who had voted for the plaintiff) suggested afterward to a newspaper reporter that if Walters had been in Wichita, as the letter suggested,
he would certainly have been seen and remembered by somebody. He would have had a boarding house; he became a cigarmaker, he would certainly have been remembered by someone of that craft. The fact that there was no attempt to bring anyone forward, who could say they had seen him in Wichita at that time, caused us to believe THAT THERE WAS SOMETHING CROOKED about that letter.
Concerning Brown’s two accounts, this juror said that they “had considerable influence, although it was hard to tell which of his stories was true,” and also that “it will be hard to make me believe but what Buchan worked him pretty hard, to get his evidence for the companies.”
Apparently heeding this juror’s skepticism, at the third trial in 1888 the defendants called several witnesses to testify that they had seen Walters, or someone who resembled him, in Wichita in early March, 1879. And again they offered the Kasten deposition, together with its attached copy of the letter she said Walters had sent her. But this new and revived evidence availed the defendants little because Judge Shiras forbade any mention of the contents of the letter, reasoning that its assertions were hearsay (as they undeniably were). The jury found unanimously for Mrs. Hillmon. The letters, it seems, had been essential to the insurance companies’ earlier modest success in staving off a loss; without them they could not prevent a Hillmon victory. Of course it was this outcome that gave rise to review of the case by the Supreme Court, where the Court (per Justice Gray), after delivering its famous opinion, remanded the matter to be tried yet again before a jury fully apprised of the existence and content of the Walters letter.
The three trials that ensued after the Supreme Court’s 1892 decision produced outcomes that eerily replicated the first three trials’: two more hung juries, followed by a verdict for Mrs. Hillmon destined to be overturned by the United States Supreme Court when the litigation reached it for the second time. But the letters, having by then enjoyed the Supreme Court’s attention, sustained a more focused and searching scrutiny in the last three trials than in the first two.
The fourth trial, which took place in Topeka in 1895, was the longest of any, occupying nearly three months of the court’s time. (The Topeka newspaper, recounting the case’s previous history with some awe, prematurely called the proceeding “this final Titanic contest.”) On this occasion the insurance companies produced some evidence that no previous jury had heard. Major Wiseman testified for the first time that he had received a letter (not produced) from the patriarch of the Walters family asking him for help in locating a “lost son who wrote home last that he was going west with a man by the name of Hillmon to herd sheep for him.” In addition, the defendants called three citizens of Lawrence who had served as jurors at the inquest there; they testified, with remarkable unanimity, that during the inquest Mrs. Hillmon had testified that she could not remember or did not know the color of her husband’s hair and eyes, nor his height. As no official transcript was preserved of the inquest, Mrs. Hillmon’s lawyers were not in position to impeach this testimony, but this author (having read the newspaper accounts) is: she described the color of his hair and eyes (eyes dark brown, hair brown, whiskers lighter than hair) in addition to many other features of his appearance (dark complexion, sometimes wore chin whiskers and sometimes only a moustache, hair quite straight and tolerably long, cheek bones quite prominent at times, depending on his weight). It is true that she said she could not certainly state his height, never having measured him.
Kasten’s deposition and its accompanying letter had not, of course, changed since it was admitted at the first trial. There was another deposition witness who claimed to have been the recipient of correspondence from Walters: one H.S. Spreen of Ft. Madison, who deposed that he had gotten a letter from Walters dated Wichita, about the 5th or 6th of March, informing Mr. Spreen that the writer “was going west to herd sheep for a man.” According to Mr. Spreen the business purpose of the letter, which was not produced, was to request a statement of Walters’ account with “the lodge” (apparently the Odd Fellows Lodge, of which Walters was a member). Although Spreen had testified at the first trial, merely to say that Walters had a mole on his back and that a picture (apparently of the corpse) “look[ed] a good deal like Walters,” this was the first mention of any letter Spreen had received from him. And then there was a brother, C.R. Walters, who lived at the time of Frederick Adolph’s disappearance in Missouri, who remembered (as he had in the first trial) a letter he said he had received during February of 1879, postmarked Wichita. But his memory of this missing letter had grown a bit more particular with time: this time he said it related that his brother “had made arrangements to drive cattle for a man by the name of Hillmon” in Colorado, and wished to postpone plans the two brothers had made to meet and go to Leadville for the gold mining until after his engagement with Hillmon. This brotherly letter, like Mr. Spreen’s, was not produced, but another one was, by Mrs. Hillmon’s lawyers: a letter that C.R. Walters had written to the sheriff of Leavenworth in 1880, after the inquest but before any of the trials, stating that his brother Frederick Adolph had a gold filling in his teeth. This letter was inconvenient to the defendants, as their proof had been as adamant on the untouched perfection of the corpse’s teeth as on any point in the litigation. The jury in this trial hung eleven to one in favor of Mrs. Hillmon.
The fifth trial followed the fourth by a year; it began and ended in March of 1896. There were the Kasten deposition and the familiar disagreements about resemblances and disparities between the living Hillmon and the corpse, and evidence of the contradictory accounts given by John Brown. There was also a rather spectacular defense witness who was heard in this trial for the first time, a Patrick Heely of St. Louis. Mr. Heeley testified that seventeen years earlier, in the winter of 1879, he had known Frederick Adolph Walters in Wichita for about two months prior to March 1st. Walters worked for him, said Heeley, helping him sell railroad excursion tickets, and the two men had seen each other at least once a day. On about March 1st he saw Walters with another man whom Walters introduced as John Hillmon; on a later occasion, he saw Walters alone and Walters said he was going with Hillmon to start a cattle ranch. This testimony must have been very impressive at the time, and seems not to have been much impeached. But in retrospect it seems altogether dubious. If Heeley had not been quite so certain of the two-month duration of his acquaintance with Walters, and of having seen him at least once every day in Wichita during that time, his testimony might carry some historical weight. But unfortunately for Mr. Heely’s credibility, at the sixth trial Frederick Adolph’s sister Elizabeth Rieffenach produced a letter from her brother postmarked February 9, 1879 at Emporia, in part to prove that its handwriting resembled that in the Kasten letter. But its contents belie Heeley’s testimony: in it Walters writes that he is staying in that city (it would have been about eighty wintry miles from Wichita) and has not had much employment recently. This highly impeaching evidence was not known, however, to the jurors of the fifth trial. They also hung, a majority of the jurors apparently in favor of the defendants.
The sixth trial began in a manner that resembled the others, but offered several significant new revelations. Alvina Kasten again did not testify, but her deposition and the letter performed they same office they had in most of the earlier trials, and several familiar witnesses from the earlier trials appeared. But Major Wiseman then confessed that he had found Joe Burgess’ the same Joe “of whom there was some talk of [his] having been body which was shipped back for that of Hillmon” alive more than twenty years before. There was a blatant effort at corruption reported by a juror about midway through this last trial, but it is impossible to tell which side might have been responsible, as Judge Hook handled the event with extraordinary discretion, issuing a stern admonition against further such attempts but declining to interrupt the trial or dismiss the jury. Then there was a surprise rebuttal witness for the plaintiff, a man named Arthur Simmons, who owned a cigar factory in Leavenworth.
Simmons testified that for three weeks in May of 1879 — that is, two months after the death at Crooked Creek — he employed Frederick Adolph Walters in his factory as a cigarmaker. Nor was his testimony the only proof of these events; Simmons produced records of employment corroborating this claim. He knew the young man as F. Walters, and he identified a photograph of the young Frederick Adolph as one of the man who had made cigars for him. He testified that even after the intervening years he had a good recollection of the young cigarmaker because
[h]e was a man who was all the time talking to the men about him and telling of his many travels. He had been in a large number of towns in different places and he also talked a great deal of his love scrapes and how he had gotten out of them.
This testimony apparently made an impression on the sixth jury; they returned a unanimous verdict for Sallie Hillmon. And although the companies continued their appeals to higher courts, and eventually succeeded in overturning this victory as well in the Supreme Court, in the end they all settled with her. It was then nearly twenty-five years after the death at Crooked Creek.
But I have not forgotten that I undertook to persuade you that the “Dearest Alvina” letter was a fake. Consider the testimony of Arthur Simmons. If this testimony was true (and no reason appears that a cigar factory owner should have perjured himself for Sallie Hillmon’s sake, much less manufactured business records), then of course Walters did not die at Crooked Creek. And if he did not, the same argument against coincidence that made the “Dearest Alvina” letter such convincing proof of his death at the hands of Hillmon must be reconsidered as an argument that the letter was not genuine. Curiously, Mrs. Hillmon’s lawyers do not seem to have pursued the possibility that the letter was inauthentic, perhaps because they had quietly investigated and, even before Walters’ sister produced a cache of old letters from him in the sixth trial, had an opportunity to compare the letter’s handwriting with exemplars and concluded that the letter was written by Walters’ hand. But that circumstance does not necessarily imply that the letter was written when it is dated, nor that the assertions in it are true.
Walters’ long absence from home and failure to write to his loved ones, which the insurance companies must have learned of at about the time their agent Major Wiseman reported the disappointing news that Joe Burgess was alive and well, were circumstances too suggestive for the defendants not to make use of them. All that was needed to transform the cigarmaker’s disappearance into strong proof that Hillmon had not died at Crooked Creek was a document to tie Walters to the Crooked Creek corpse, and a witness to authenticate it. The Kasten letter and Miss Alvina Kasten satisfied this need almost perfectly if the letter could be manufactured, and if she could be persuaded to testify in a deposition that she had received the letter shortly after the date that appeared on it.
The mind resists this last possibility, because it requires us to conclude that Alvina Kasten lied when she testified in her deposition that she had received the letter on March 3, 1879. We must also credit the insurance companies’ agents and lawyers with sufficient dishonesty to create a brazenly inauthentic document and suborn the perjury of these witnesses. Can this rather extravagant hypothesis be supported? I believe that it is not only supportable but nearly irresistible, and that a narrative that accounts for all of the known facts must lead us to the conclusion that the Kasten letter was not authentic– at least not authentically a letter that was written when dated– and further that it makes many assertions that are not true.
We know that the lawyer Buchan, an attorney who conceded that he worked for and was paid by the insurance companies, employed coercion to persuade John Brown to sign the “Joe Burgess” affidavit, a document shown to be false by the later testimony of Major Wiseman. We also know that not long before Alvina Kasten gave her deposition (the only occasion when she ever swore to her receipt of the letter) Buchan dictated to John Brown the language of a letter addressed to Sallie Hillmon, a letter suggesting that the writer and the addressee were conspirators in a plot and that John Hillmon was still alive. The circumstance that there was never even any pretense of actually mailing the letter to Mrs. Hillmon that Buchan sent it directly to the insurance company lawyers suggests both the nakedness of Buchan’s motive for having Brown write it, and the clumsiness of his methods. Mr. Buchan was no stranger to the fabrication of evidence epistolary evidence nor was he too scrupulous to pressure an individual into swearing to propositions that were not true.
Neither was Buchan the only attorney in the employ of the companies who participated on the presentation of false evidence. At least three witnesses who testified at the second and fourth trials the three jurors from the Lawrence inquest testified falsely about what Mrs. Hillmon had (or had not) said at the inquest. The witnesses were examined in these trials by attorneys Green and Barker, both of whom were present at the inquest indeed conducted it and surely knew that these witnesses’ testimony was untrue. Other testimony presented by the defendants such as that of the doctor who said that John Hillmon reported his height to be 5’11″ (the length of the dead body) when examined for his insurance policy, but came back a few days later to say he was in fact only 5’9″ is far enough beyond implausible to arouse a serious suspicion of subornation. And it surely reflects on the ethics of the companies’ lawyers that they continued to maintain for years after their agent had located “Joe Burgess” alive that he and Frederick Adolph Walters were the same (dead) man.
But if the defendants’ lawyers were capable of such chicanery as document fakery and subornation, what would have induced such a respectable woman as Alvina Kasten and various Walters family members to perjure themselves? Of Kasten more later, but as to the Walters family, a possible explanation appears in a newspaper account of the second trial. The reporter concludes an account of the day’s testimony with the following:
It is not generally known that there was an insurance on the life of young Walters, who is said to have been the dead body taken to Lawrence and passed for the body of Hillman. A reporter for The Times was informed yesterday afternoon that Walters’ life was insured and that the insurance money was paid, on the evidence elicited in the Hillman trial, of his death.
If the defendants wished to induce members of the Walters family to testify (as they did) about correspondence from Frederick Adolph that mentioned the name Hillmon, what better method of compensating them for their trouble than retrospectively issuing a policy of insurance on his life, then paying the proceeds to his bereaved family– a gesture splendidly in synch with their insistence that he had died at Crooked Creek? But beyond pecuniary motives, I credit that the Walters family did truly come to believe that the photographs of the dead man were those of their lost son and brother Frederick Walter. A little suggestion and an adroit presentation of the photos of the corpse would go a long way toward persuading a baffled and worried family, whose loved one had suddenly ceased writing, that his death at the hands of the murderer John Hillmon was the explanation. If they believed this much, they would also have believed that John Hillmon was in hiding, waiting to enjoy the proceeds of his crime. Their conviction that Frederick Adolph had died at Crooked Creek may have nudged the family (as well as Alvina Kasten) toward participation in perjury, if they thought it would produce justice for their missing loved one.
Alvina Kasten’s deposition was taken in June of 1881, a year before the first trial, in her home town of Ft. Madison, Iowa, and it is this deposition that served thereafter as the defendant’s evidence concerning the famous letter. In this deposition she identifies an exhibit as a letter beginning “Dearest Alvina” received by her on the 3rd of March, 1879; she says she recognizes the handwriting as that of her fiance F.A. Walters, from whom she testified she had received a letter every two weeks, or week and a half, since his departure from Ft. Madison nearly a year earlier. The letter contains the familiar description of his encounter with “a man by the name of Hillmon who intends to start a sheep range” and his intention to accept the man’s offer of employment at “more wages than I could make at anything else.” Kasten testified that she had given this letter to Mr. Tillinghast, representing the New York Life Insurance Company, in January of 1880. (What of the other twenty-five or so letters she had received from her swain? She claimed in the deposition that she had destroyed them because she was “was sick at the time and did not expect to get over my sickness and destroyed all my letters.”)
What might have been Miss Alvina Kasten’s motives for lying under oath? If threats or inducements prompted her deposition testimony identifying the letter, they are not evident from the record. Still, her account of her relationship with Adolph, as she said she called him, suggests some modest pride in her betrothed status. Perhaps it would have been hard for her to acknowledge that her fiance had simply chosen not to come home to her, and to stop writing; his death at the hands of Hillmon may have been a less painful explanation for his disappearance, not to mention one that would spare her public humiliation. And once recruited to this theory, perhaps she (like the Walters family) was not difficult to enlist in the enterprise of denying the wicked Hillmons the proceeds of their crime, in her case by agreeing to say that a letter she was given by the lawyers had actually been received by her in the post shortly after the date shown on it. She may have been persuaded that the letter was intended for her and had somehow gone astray, and told that it would benefit the Hillmons were she to say truthfully how it had come to her. She may also have been promised that she needed only to testify at a deposition and would never have to appear before a judge (for as a resident of Iowa she was not susceptible to a subpoena to appear in federal court in Kansas). She may even have been offered assurances similar to those John Brown said he was offered that his affidavit would never be used in court, but only employed to persuade Sallie Hillmon to abandon her claim. We know that Kasten never did appear in court, which prompts the question, why not? Would it not have behooved the defendants (who brought in many witnesses from much further away than Iowa) to persuade the bereaved fiance to travel to the trial? Yet they did not do so. The suggestion that wounded romantic pride might account for a respectable young woman’ small bout of perjury may seem fanciful, but Mr. Arthur Simmons’ escription of F.A. Walters as a seducer suggests that being his fiancemust have been a rather anxious business, requiring a certain capacity for self-deception.
But how would the companies have persuaded young Walters to write the famous letter? We know that the companies’ gents started looking for him after they learned from his family that he had stopped writing to them at about the time of the death at Crooked Creek. If they found him shortly after that time working for Simmons’ cigar factory in Leavenworth and explained their interest to him, would not Walters then have written home, and by this act relieved the sorrow of those who loved him and mourned his supposed demise? If he was the young man described by Arthur Simmons, an adventurer and traveler and a bit of a rake with a tiresome fiance back home, maybe not. Perhaps he would have preferred to remain lost, especially if the insurance companies who had placed so much stock in his death were eager to subsidize his adventures away from home. And if this deal were struck, what would have been more sensible than for one of the companies’ agents (my money would be on Mr. Buchan) to require Walters for his part to write out a letter, its contents partly dictated, to someone back home? (The dictation technique was precisely the method employed by Buchan to obtain a letter from John Brown addressed to Sallie Hillmon, a document that was then employed to suggest the existence of a Hillmon/Brown conspiracy.) The letter penned by Walters could then serve as evidence for the companies’ propositions about the corpse at Crooked Creek. In such a case, the handwriting similarity between the Dearest Alvina letter and the letters later produced by Elizabeth Rieffenach would be no coincidence or forgery; they would indeed have been written by the same hand. And the mystery of why F.A. Walters, if he were still alive, had not in so many years turned up would be solved.
Of course the letter to Alvina Kasten, having been created some time after the inquest, would have to be supplied with a Wichita postmark of a date some months earlier. Unfortunately the original cannot be examined; both the letter and the envelope made an exhibit to the Kasten deposition spent many of the years between Alvina Kasten’s 1880 deposition and the later trials in the safekeeping of defense counsel J.W. Green, after he supplied the record with a substitute copy. This copy, having been made before the advent of copying machines, was written by hand; the original is missing from the court’s archive. The copy that remains available for inspection represents that the original was postmarked “Wichita Mar 2, 1879.” But nineteenth century American postmarks, or cancellations, were neither distinctive nor uniform. Forging one would not have been much of a challenge, and there is no suggestion that any of Mrs. Hillmon’s lawyers scrutinized the cancellation or the letter with any suspicion.
As for Sallie Hillmon, by the time the case was over she retained none of the settlement proceeds; before the last trial she had assigned her interest in them to other parties. Perhaps the decision whether to continue her exhausting quest for affirmation that her husband was no murderer was by then not hers at all. But of her we do know this one thing: years earlier, before the time when the Supreme Court first heard the Hillmon case and while there was still some prospect that she would collect the judgment she had won, Sallie Hillmon remarried. It is possible that an unschooled waitress in her twenties pulled off a devastating double-cross of her first husband, knowing that he would be compelled to remain hidden while she and her second husband enjoyed their bigamy and his life insurance proceeds. But isn’t it far more likely that she always knew the truth of what she had claimed from the first moment she viewed the body that had been brought to Lawrence from Crooked Creek — that John Hillmon was dead?
One proponent of narrative legal theory quotes the maxim Da mihi facta, abo tibi jus (“give me the facts, then I will give you the law”), and several scholars have remarked the inseparable character of the activities of law-making and fact-finding (or storytelling). I have suggested that the legal rule propounded by the Court in the Hillmon case was created because the only story the Court could bring itself to endorse demanded it. And I have undertaken to persuade my readers that this story was untrue.
Of course, I cannot claim to be immune myself from the seductions of narrative. I have here only told another story, albeit one that I believe to be better justified by the evidence than the understood version. I have tried in telling my version to lash myself to the mast of truth, but I confess I’ve enjoyed telling what I believe to be an excellent tale, and possibly its siren call has deceived me as well.
But what if I am right? What if the letter from Frederick Adolph Walters to Alvina Kasten was written not when it was dated and postmarked but later, and not because the writer really wished to inform Miss Kasten of his whereabouts and plans, but because some agent of the three insurance companies manufactured this evidence with the assistance of Mr. Walters, who was paid for his contribution? At the very least, if we are persuaded of this proposition, we might be able to look at the exception to the hearsay rule for statements of intention with an eye less deceived by the McGuffin that has always bound this fragment of legal doctrine to a charming but mendacious story.
Recent Supreme Court discussions about other hearsay exceptions have cast a severely critical eye on proponents’ easy claims about the inherent credibility of certain categories of extrajudicial statement. Suppose this renewed skepticism were applied to statements of a declarant’s intentions, as exemplified by the Walters letter. Those I have persuaded about the letter’s origins must look soberly at the statements of Frederick Adolph Walters in the letter to his dearest Alvina, for if I am correct it is full of falsehoods from the implicit assertion contained in the date at the top (“Today is March 1, 1879″), to its assurance to Miss Kasten that “I am about as Anxious to see you as you are to see me,” to its recitation of the writer’s intentions to look for a place to start a sheep ranch with John Hillmon, who had promised him “more wages than I could make at anything else.” One might respond that a single counterexample does not unmake the wisdom of a general rule, but at least the wisdom of the rule must be defended without reference to that particular example. This enterprise is one that the law of evidence, in the one hundred twelve years post-Hillmon, has not seriously undertaken.
But even if they do not prompt revision of the law of evidence, these investigations may serve to illustrate the powerful and often unacknowledged contribution of the narrative imperative the need to construct an acceptable story to the creation of law. Judges may not think of themselves as storytellers, but this role is not easily abandoned even when disclaimed. Perhaps the maxim da mihi facta, abo tibi jus undervalues the other determinants of common-law decisionmaking, but it is a rare narrator who is willing to throw the McGuffin overboard.
Other reports of this research may be found in LITIGATION magazine, November 2005, in the book EVIDENCE STORIES (Foundation Press 2006, R. Lempter ed.) and the Fall 2006 journal LAW AND LITERATURE