Introduction. I wish to welcome the members of the Utah Bar Association to this presentation on the 100 th

Introduction I wish to welcome the members of the Utah Bar Association to this presentation on the 100 th anniversary of the trial of Joe Hill. I presume general familiarity with the Joe Hill case. For those without familiarity, Joe Hill was a labor songwriter and a member of the Industrial Workers of the World. (IWW). A Swedish immigrant, Hill wrote most of the labor songs of the early twentieth century. Hill was arrested, charged with the murder of Mr. John G. Morrison, a Salt Lake grocer and his son Arling, January 10, 1914. Hill was arrested, convicted and executed in Salt Lake City. It is one of the most significant American labor trials and it occurred in Utah. People in Utah have forgotten the power of the words to Joe Hill s music. Joe Hill songs are not great music. Joe Hill knew that his background in music was deficient. Almost of his music was taken from songs known to the working poor of the day. For example, the Preacher and the Slave (Pie in the Sky) is a parody of the evangelical hymn In the Sweet Bye and Bye. Joe Hill can t or at least doesn t write harmony parts. It is the words, rather than the music which commands attention. I am going to play Joe Pie in the Sky. To enjoy the song, you need to know that the IWW fought with the Salvation Army for the best street corners. There was much anger in their treatment. Long-haired preachers is an insult to the Salvation Army. Finally, Grafters means anyone who does not work at manual labor. I hate to tell you but you lawyers are all Grafters. Long Haired Preachers come out every night, Try to tell you what s wrong and what s right But when asked about something to eat They will answer with voices so sweet. (Chorus) You will eat, bye and bye In the glorious land above the sky; 1

Work and pray, live on hay, You ll get pie in the sky when you die. The Starvation Army they play, They sing and the clap and they pray, Till they get all your money on the drum, Then they tell you when you re on the bum. If you fight hard for children and wife Try to get something good in this life You re sinner and bad man they tell, When you die you will sure go to hell. Workingmen of all countries, unite. Side by side we for freedom will fight; When this world and its wealth we have gained To the grafters we sing this refrain You will eat bye and bye, In that glorious land above the sky: Work and Pray, live on hay You ll get pie in the sky when you die. It s a lie. 2

I presented an overview of the case to the Labor and Employment section of the bar on the 95 th anniversary of Joe Hill s execution. That speech became a book Pie in the Sky: How Joe Hill s Lawyers Lost His Case, Got Him Shot and Were Disbarred. I argued that a primary cause of Joe Hill s conviction and execution was the ineptitude of his lawyers. At the time, I believed I was through with Joe Hill. I find that once one starts with Joe Hill research, problems and questions continue to develop. There are questions for which I do not have answers. For example, the Joe Hill trial was twenty years after statehood when women were given the vote. There were women lawyers. There were women in the legislature. Yet, there were no women in the Joe Hill jury pool. I ve yet to discover a statutory reason for this exclusion. I do not intend to repeat the labor section presentation today. Rather, I wish to focus upon aspects of the Joe Hill matter which were not included in the book. They appeal directly to lawyers and perhaps give guidance on the present day practice of law. First, I will discuss the propriety of drawing an inference of guilt from the undisputed fact that Joe Hill suffered a serious chest wound on the night of Saturday, January 10, 1914. I believe the inference properly drawn when considering the evidence found in Salt Lake County during the week following the murders. Having convinced you of Joe Hill s guilt through the proper drawing of the inference, I will attack that conclusion through exculpatory evidence which I believe should have been admitted at trial under the residual hearsay rule. The exculpatory evidence meets every criteria of the modern rule and would have shed much doubt upon the prosecution case. In sum, the murder of John G. Morrison makes more sense as an assassination than a robbery. Reliable hearsay evidence supports that conclusion. 3

Finally, I will discuss the use of hearsay in the writing of the Joe Hill histories. There we find literary use of hearsay without discussion of reliability criteria. I will argue that hearsay in history like hearsay in law is an outmoded evaluation tool. History, like law, requires an evaluation of the reliability of hearsay evidence. In the Joe Hill case, there are two examples of literary hearsay which have come to light. In one telling of the story, a young woman who was closely associated with Joe Hill wrote fifty years after the trial claiming that Joe Hill was not wounded at the Morrison Grocery Store. Thus, in this telling, Joe Hill is exonerated. The counter-narrative is by Dr. Vernon Jenson, an eminent labor scholar from Cornell University. Dr. Jenson interviewed the treating doctor who told Dr. Jensen that Joe Hill had confessed his guilt. Writers have used the Joe Hill stories for their own purposes, applying rules of evidence which do not correspond with the Federal Rules. This should not greatly trouble the profession because we must recognize that our work as lawyers and judges requires immediacy in results. Legal truth is not scientific truth nor is it historical truth. The easiest example for lawyers is toxic tort. Lawyers and judges do not have the ability to wait for a forty year epidemiological study. Such a study may prove that the lawyers were entirely wrong about relative risk. History, of course, has the ability to look back, find other facts and make further arguments. Variations in historical truth claims have little to do with what happened in the 1914 Salt Lake City courtroom. I suppose that there will be arguments over Joe Hill well into the second century after his execution. I also suppose that those who cannot deal with ambiguity will continue to be frustrated in a search for absolute truth. After arguing three new sides of the matter, I return to the conclusion drawn in my book. I do not know who killed John G. Morrison and his son and I do not believe anyone else does either. 4

Part One I don t have to tell where I was shot: Drawing Inferences in the Joe Hill Trial. The shooting of a human being, whatever the cause, in a populous city like Salt Lake, is not such a common and ordinary occurrence that the fact that it occurred can long be kept secret; and yet, if appellant's claim is true, the shooting in his case has entirely escaped discovery by any one. The jury were not bound to believe what to all others must appear to be unreasonable and wholly improbable. Justice Joseph E. Frick 1 concurring in State v. Hillstrom. 2 I The labor songwriter Joe Hill (Joseph Hillstrom) sought treatment for a serious gunshot wound at approximately 11:30 PM on Saturday, January 10, 1914. The physician s office was in Murray, Utah, a suburb of Salt Lake City. Hill told the treating physicians that an unnamed man in an undisclosed place had wounded him in a fight over an unnamed woman. The doctors also noted that Hill possessed an automatic revolver. Hill later admitted that he discarded the weapon. Approximately one and a half hours before Joe Hill arrived at the doctor s office, two individuals invaded a south Salt Lake City grocery store owned by J.G. Morrison. They opened fire and killed Morrison and his elder son. Morrison kept a weapon at the store because he was afraid of assailants. 1 Joseph E. Frick. Justice Frick was born on August 6, 1848. Justice Frick studied law in Toledo, Iowa. He was admitted to the Bars of Iowa (1880), Nebraska (1880) and Utah (1897). Justice Frick was elected to the Utah Supreme Court in 1906. HISTORY OF THE BAR AND BENCH OF UTAH (Intermountain Press Association 1913). 2 State v. Hillstrom, 150 P. 935, 947 (Utah 1915). When referring to the case, I use Hillstrom. When referring to the person, I use Joe Hill or Hill. 5

After the shooting was over, the authorities found Morrison s gun outside the grasp of the son with one chamber discharged. There was a trail of blood leading from the Morrison store. The officers followed the trail until it ended at an irrigation canal. The doctor s office was approximately two and a half miles from the Morrison store. 3 The wounded man was moving in the general direction of the doctor s office. The chief controversy in Hill s arrest, trial and appeal was the legitimacy of drawing an inference that Hill was the criminal based upon his wound. The authorities focused upon the seriousness of the wound. They looked at the close proximity in time and location. Equally important, they found no other seriously wounded men in close proximity to the Morrison store. Although the trial court admitted testimony as to Hill s story of his wounding, Hill did not take the stand and testify. There was no defense evidence presented as to the whereabouts of Hill the evening of January 10, 1914. 4 Chief Justice Daniel Straup 5 stated the authorities view of the evidence and the alibi. He recounted the eyewitness evidence. 6 He found the fresh bullet wound on the defendant to be a 3 Although the streets in the area have changed over the century, Google Maps indicates that the distance from the Morrison Store to the doctor s office was approximately 3 ½ miles. The Hillstrom opinion says that it was only two and a half miles. The landscape has changed there are no longer railroads and irrigation canals to navigate. 4 The chief alibi defense presented to the trial court was that about 11:30 PM a witness saw two men about a mile west of the grocery store. The taller man was lying on the ground and groaned. The groaning man then boarded a streetcar. The streetcar conductor thought the man drunk. The man rode the car into the city. The testimony was that the groaning man was not Joe Hill. Justice Straup observed, Sufferers may moan and groan from gunshot wounds. But all who moan and groan are not shot. Id. at 941. Thus, the proffered evidence proves little, if anything. 5 Daniel N. Straup. Utah Bar Journal Spring-Winter 1986. Chief Justice Straup was born in 1862 in Millersburg, Pennsylvania. He graduated from Valparaiso University in 1883. Admitted to the Indiana Bar 1888. Board of Directors of the Salt Lake City Unitarian Church. HISTORY OF THE BAR AND BENCH OF UTAH (Intermountain Press Association 1913). 6 Chief Justice Straup recited the direct evidence in the light most favorable to the jury verdict. Those facts were sufficient to support the jury s verdict against a motion for acquittal. Stephan J. Markham & Paul G. Cassel, Note, Protecting the Innocent: A Response to the Bedau-Radelet Study, 41 STAN. L. REV. 121, 137-38 (1988). 6

distinguishing mark. That wound, unexplained or unsatisfactorily explained by him, was in connection with other evidence that one of the perpetrators of the crime answering the description was shot in the store Gunshot wounds are not normal. As in all criminal cases, the state was required to prove Joe Hill guilty beyond a reasonable doubt. However, where inferences of guilt can be shown other than through direct testimony, after the prosecution makes a prima facie case, a defendant would have the burden of persuasion tending to show that he was not guilty. But when there are circumstances tending to show guilt, Joe Hill could rely upon the presumption of innocence and fail to introduce sufficient proof. Of particular importance to Justice Straup was that Hill had peculiar knowledge of the facts regarding his wounding by which he may repel or rebut such proven facts and inferences If the jury could not infer that a seriously wounded man was in the store, a conviction could rest only upon eyewitnesses who unerringly and unequivocally are able to identify the thief. 7 Joe Hill s appellate lawyer, Judge Orin Hilton, first articulated the claim that the authorities and the jury had illegitimately drawn inferences of guilt from Hill s wounding and placed the burden of proving the location and circumstances of his shooting upon Joe Hill. 8 The only question that they had any hesitancy on was Hillstrom s refusal to tell where he got that wound. That is what did the business for him. Not that he was to be proven guilty, but that he must prove his innocence and tell where he got that bullet wound. 9 Over the century, individuals who believe Hill innocent have strenuously attacked the drawing of an inference of guilt from the fact of Hill s wound. Dr. Phillip S. Foner stated, It all boiled down to 7 We should not forget that 1914 science did not know of fingerprinting, blood typing and certainly not DNA evidence. 8 O.N. Hilton to Argue Hillstrom Case Today, SALT LAKE HERALD (Sept. 18, 1915). 9 In re Hilton, 158 P. 691, 698 (1916.) 7

this: the court simply concluded that because Hill was proved to have been shot on the same night as the Morrison murders, he was guilty. 10 The playwright, Barrie Stavis, also attributed the identification and conviction of Hill solely to inferences drawn from Hill s wound. 11 Could the authorities draw such inferences? 12 Precedent Approves the Drawing of Inferences in Hillstrom. Legal precedent has not been kind to the Joe Hill adherents when protesting the drawing of the inference that Joe Hill was guilty from the gunshot wound. The Utah court has never overruled or even criticized the State v. Hillstrom case. 13 The Utah Supreme Court cited its drawing of inference language in its entirety in 1950. 14 The Supreme Court with approval as late as 1988 cited Hillstrom. 15 Authorities other than those in Utah would approve the inference that Joe Hill was the murderer. A 2010 Boston University Law Review article discussed the Hillstrom case. 16 On the other 10 Phillip S. Foner, THE CASE OF JOE HILL 59 (1965). 11 Barrie Stavis, THE MAN WHO NEVER DIED 32 (1951). Stavis also repeats the claim that there were three other unexplained gunshot wounds in Salt Lake City the night of January 10. Id. As discussed below, there is no evidence to support this contention in the Salt Lake press. 12 While the drawing of inferences has attracted literary interest, the authors ignore the very real violations of Hill s constitutional rights as understood in present times. For example, the deputy-sheriff undertook a rigorous examination outside of the presence of counsel without Miranda warnings. As expected, His silence, the officers think may be due to the fact that he realizes that the less he says the better chance he has to escape punishment... After his wound was examined by Dr. Pugh, Hill was locked up for the night. It is expected that he will be subjected to a severe cross examination this morning. Wounded Man Held As Slayer of Grocer, SALT LAKE TRIBUNE (Jan. 14, 1914). Probable cause for the arrest of accomplices was not the same as we might expect. Story of the Chase After Murderer, SALT LAKE TELEGRAM (Jan. 12, 1914). 13 Joe Hill partisans also complain that Hill s lawyer, Judge Orin Hilton, was disbarred for representing a labor defendant. That view is inaccurate. See Justice Marilyn S. Kite, Good Guy Actually Does Win, 10 Wyo. L. Rev. 397, 412 (2010). 14 State v. Matteri, 225 P.2d 325, 331-32 (Utah 1950). 15 State v. Bishop, 753 P.2d 439, 451 (Utah 1988), overruled on other grounds by Ross v. State, 293 P.3d 345 (Utah 2012). 16 Dale A. Nance, Adverse Inferences: Restructuring Judicial Roles for Responding to Evidence Tampering by Parties to Litigation, 90 B.U.L REV. 1089, 1146 (2010). 8

hand, one can easily imagine cases in which the prosecution can show that (a) an important witness to the events being litigated exists (or at least is claimed by the defense to exist), (b) the prosecution has exhausted its efforts to identify and locate this witness, and (c) the accused knows the identity or whereabouts of the witness but has not divulged such information. An adverse inference should be allowed in such a case if the surrounding circumstances do not suggest a good reason, compatible with innocence, for not revealing the whereabouts of the witness. The author noted that in Hillstrom, the evidence was sufficient to support a conviction for murder in connection with a robbery. This was true where the defendant s only explanation of his gunshot would refer to a controversy with his unnamed man over an unnamed woman. What is an Inference? An Inference is a conclusion reached by considering other facts and deducing a logical consequence from them. 17 In common language, Inference means the act or process of reasoning. 18 Although inference sounds like it is evidence it is not. Inference is the reasoned product of evidence. The Utah Court of Appeals describes the proper drawing of inferences which can only be drawn upon sufficient circumstantial evidence. If the supporting evidence is not present, the jury is speculating which cannot be allowed. 19 A criminal defendant has a Fourteenth Amendment constitutional right to have inferences drawn only upon provable and admissible facts. However, it is the responsibility of the jury not the court to decide what inferences should be drawn from evidence properly admitted at trial. A reviewing court may set aside the jury s verdict on the ground of insufficient evidence only if no rational 17 BLACK S LAW DICTIONARY (9th ed. 2009). 18 WEBSTER S II NEW RIVERSIDE DICTIONARY (Revised Edition 1996). 19 Harding v. Atlas Title Insurance, 285 P.3d 1260, 1263 (Utah Ct. App. 2012). 9

trier of fact could have agreed with the jury. 20 The United States Supreme court test for the sufficiency of the facts from which the jury may draw a proper inference is a threshold of bare rationality. 21 An inference is mandatory when the court tells the jury that if the prosecutor proves certain facts, the jury must find the defendant guilty. This is clearly inappropriate. However, an inference may be permissive. 22 A permissive inference does not relieve the State of its burden of persuasion because it still requires the State to convince the jury the suggested conclusion should be inferred based upon the predicate facts proved. 23 Thus, a permissive inference violates the Due Process Clause only if the suggested conclusion is not one that reason and common sense justify in light of the proven facts before the jury. 24 Nevertheless, was the inference of guilt properly supported by factual evidence? For that, we must look to contemporary accounts of what the police, prosecutor and the trial court knew of the crime. It is those facts and not the suppositions of writers that determine whether a jury had a basis to conclude that Joe Hill was the murderer. Contemporary News Accounts do not Support Hill s Claims that other Men were shot on Saturday night. There were four daily newspapers in Salt Lake City. The Latter-day Saint Church published the Deseret News. Former Senator Kearns owned the Salt Lake Tribune. Modern readers tend to focus on 20 Jackson v. Virginia, 443 U.S. 307, 324, 61 L.Ed. 560, 99 S.Ct. 2781 (1979.) 21 Coleman v. Johnson, 182 L.Ed. 978, 132 S.Ct. 2060 (2012). Utah reaches the same conclusion under its state law and constitution. A criminal judgment will be upheld when the evidence and all inferences that may be drawn from it, shows that some evidence exists from which a reasonable jury could find that the elements of the crime had been proved beyond a reasonable doubt. See also Utah v. Cristobal, 2010 UT App 228, 238 P.3d 1096. 22 MCCORMICK ON EVIDENCE, 4 Ed, West Publishing Co., St. Paul, Minn., (1992), vol. 2, page 489. Presumptions in Criminal cases will be divided into mandatory and permissive presumptions. A permissive presumption is one that will permit the jury to find the presumed facts, but neither compels the acceptance of such facts or allocates a burden of persuasion with regard to the facts. 23 Francis v. Franklin 471 U.S. 307, 105 S.Ct. 1965, 1971, 85 L.Ed.2d 344 (1985). 24 Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). 10

those papers as they have survived into the present. In 1914, there were two other papers, The Telegram and the Herald-Republican, equally important in the Salt Lake media. Only the Tribune and the Herald published Sunday papers and thus, it is there we find the first public notice of the Morrison murders. The Telegram and the Deseret News first reported the murders in their Monday editions. For the week following the murders, including the discovery of Joe Hill and his wound, the Morrison murder story was on the front page of each newspaper. On Sunday, January 11, 1914, the Tribune attributed the murders to revenge. 25 Bandits believed to be the Same Who Were Foiled by Grocer Morrison Last September. By Monday, little additional information was available. 26 Governor Spry had offered a reward of $500 for capture and conviction of the murderers. On Tuesday, although there had been no important developments in the case, the authorities remained confident that they would capture the Murderers. The reason for this confidence was the severe wounding of one of the assailants. 27 They took Hill into custody at 11:30 PM Tuesday. The officers were taking no chances and when Hill made movements like he was trying to get away, the police captain shot him in the hand. 28 By Wednesday, January 14, 1914, the focus of the authorities had shifted to Joe Hill. The treating doctors were out of town on Monday but returned on Tuesday to read news reports that a seriously wounded man was involved with the Morrison murders. The doctors reported Joe Hill to the authorities. The authorities believed that the doctors story of Joe Hill and his wound corresponded to the known facts of the crime. The Murray police arrested Joe Hill at 11:30 PM on Tuesday in Murray. The Tribune reported the arrest. The byline said the Officers were Jubilant over Arrest. The Tribune found a strong chain of circumstantial evidence linking Hill to the murders. They found Hill wounded 25 SALT LAKE TRIBUNE (Jan. 11, 1914); Morrison Knew Enemy Wanted to Murder Him, SALT LAKE TELEGRAM, (Jan. 12, 1914). 26 Every Available Officer Hunts Grocer s Slayer, SALT LAKE HERALD-REPUBLICAN, (Jan. 12, 1914). 27 Thinks Murderers Will Be Captured, SALT LAKE TRIBUNE (Jan. 13, 1914). 28 May Have Grocers Slayer, DESERET EVENING NEWS (Jan. 14, 1914). 11

through his lung. The police knew that when the doctors saw him at 11:30 PM Saturday evening, the wound was recent. The police immediately doubted Hill s story of being shot by an unknown man in a fight over an undisclosed woman as they had other evidence to support the conclusion that Hill was one of the assailants. Hill was carrying an automatic revolver when seen by the doctors. 29 Hill admitted discarding the weapon. The police found witnesses who stated that they saw a man meeting Hill s description in the area of the grocery store prior to the murders. The doctor s report was consistent with Hill s presence in the grocery. Although Hill initially refused to further talk, he reiterated his strange story that he was shot in a quarrel over a woman. He stubbornly refused to give any names or the details of the story. He refused to tell what address the shooting occurred. 30 The Authorities knew that the Wound was Serious. The authorities discovered the blood trail late Saturday night or early Sunday morning. The authorities followed it for a number of blocks. The existence of the blood trail led them to believe that the wound inflicted in the grocery store was serious. From its appearance the police believe that the one bullet fired by Arling Morrison had pierced the lung of one of the assailants. 31 The pool was larger than a dinner plate, and from its appearance the police concluded that it came from the lungs of the wounded man. 32 Examination of the original blood trail showed that the blood must have fallen from considerable height. The conclusion of the police is that the man must be wounded in the upper part of 29 Wounded Man Held As Slayer of Grocer, SALT LAKE TRIBUNE (Jan. 14, 1914). 30 More Arrests in Salt Lake, OGDEN STANDARD (Jan. 15, 1914); May Have Grocer s Slayer: Murray Police Arrest Man Who Tells Odd Tale, DESERET EVENING NEWS (Jan. 14, 1914). 31 Story of the chase after the murderer, SALT LAKE TELEGRAM (Jan. 12, 1914). 32 Id. 12

his body or in his face. 33 It is also believed by the police that the murderers have been unable to get very far away. 34 The authorities also found two.38 caliber cartridges near the large blood clot. (This was the same caliber as the bullets that killed the Morrisons). 35 The Joe Hill partisans downplay the existence of the blood trail, claiming that it led to a dog with a sore foot. What they ignore is that the original trail was lost at an irrigation ditch. Other witnesses thought that it continued at a later point some blocks south of the original trail. It was this later trail that led to the sore-footed dog. 36 Oran Anderson was shot. The newspapers do reveal a report of one other individual shot on Saturday night or Sunday morning, January 10-11, 1914. Two thieves held up Oran Anderson, age 19. One of the thieves shot Anderson in the left arm. The Anderson shooting occurred at Eighth South and Sixth West. 37 This would have been about a mile from the Morrison Store. Anderson walked into the police hospital, fortyfive minutes after his wounding. It was thought that Anderson might possibly have been the man wounded by John A. Morrison (the son) in the battle in Morrison s grocery store Saturday night. That theory was dispelled, however, after an examination of Anderson s wound revealed it had been but 33 Thinks Murderers will be captured, SALT LAKE TRIBUNE (Jan. 13, 1914). 34 Salt Lake Has Reign of Crime, OGDEN STANDARD (Jan. 12, 1914). 35 Wounded Man Held As Slayer of Grocer, SALT LAKE TRIBUNE (Jan. 14, 1914); Story of the Chase After the Murderer, SALT LAKE TELEGRAM (Jan. 14, 1914). 36 Id.; the blood trail was lost in the vicinity of Twelve South and West Temple. Story of the Chase After Murderer, SALT LAKE TELEGRAM (Jan. 12, 1914); Salt Lake Has Reign of Crime, OGDEN STANDARD (Jan. 12, 1914). In an effort to pick up again the trail of blood which was followed near Tenth south street from the scene of the killing, members of the police department found a blood-marked trail that led to a disappointing and somewhat humorous discovery. Considerably south of the supposed wounded bandit was lost, blood marks were found. They were followed to a house where the owner of the place explained that they were the tracks of his dog that had cut one of his feet. Thinks Murderers Will Be Captured, SALT LAKE TRIBUNE (Jan. 13, 1914). 37 Salt Lake City addresses are on a regular grid. Blocks are much larger than would be expected in other American Cities. There are eight blocks to a mile but the blocks were renumbered. Dr. McHugh s office was at 14 th South, State Street which is about 44 th South today. West Temple is two blocks west of State Street. The blood trail ended either four blocks or six blocks north of the doctor s office. It could be inferred that the wounded man was moving in the general direction of Dr. McHugh s office. 13

recently inflicted. (At the time Anderson came to the police hospital, the city police and sheriff s office had mustered forty officers to search for the Morrison assailants.) The police investigated the possibility of other shootings in the vicinity. No shooting in Murray was reported to the Murray police on Saturday night and they say they are positive none occurred. 38 The papers disclose no other shootings in the Salt Lake area on Saturday night, as the police did not report any other victims. The Authorities Sought Other Suspects as Accomplices to the Wounded Man. The Salt Lake police rounded up a large number of the usual suspects. At one time, they had as many of twelve people under arrest. However, the authorities believed every one of these suspects to be the accomplice of the wounded man. The existence of these suspects never diverted their attention from the search for a seriously wounded man. The suspects range from the criminal to the bizarre. The bizarre was a man named W.J. Williams. The police found Williams standing on the street corner near the grocery store at about 11:30 PM on Saturday. He was wearing only light clothing, unusual for the Salt Lake winter. He said that he was a restaurant worker and was staying at the Salvation Army. The police determined these claim to be false. Williams was carrying no weapons. The Tribune described him as very excited. 39 Williams refused to make any statements to the police other than he was out walking for his health. When found, Williams had a handkerchief with bloodstains. 40 The authorities released Williams from custody on Friday, January 16. J. Holt and Mrs. Holt of 777 west Temple street (sic), who said that they noticed a very nervous and excited stranger in the crowd peering into the Morrison store last Saturday night, were taken to the county jail yesterday to see 38 Wounded Man held as slayer of grocer, SALT LAKE TRIBUNE (Jan. 14, 1914). 39 Holdups Kill Father and Son For Revenge, SALT LAKE TRIBUNE (Jan. 11, 1914); Salt Lake Has Reign of Crime, OGDEN STANDARD (Jan. 12, 1914); Story of the Chase After the Murderer SALT LAKE TELEGRAM (Jan. 12, 1914). 40 Williams is still Held as Suspect, SALT LAKE TELEGRAM (Jan. 12, 1914). 14

Williams on the chance that he might have been the man they referred to. According to Mr. Holt, there was little resemblance. Williams is thin and pale and the mysterious stranger in question was inclined to be ruddy in complexion and rather stocky in build. 41 The irrelevant suspects were three men arrested on January 17 near the doctors office at Twelve South and State Street. 42 There was also a report of a lame man walking south on the Salt Lake line. The lame man had one foot bandaged showed plainly that traveling distressed him. While the police are trying to check on the whereabouts of the lame man, yet it is not thought that he could have been the wounded refugee, because of the fact that the blood on the trail did not look as if it had fallen from so slight an elevation as would be the case in a wound in his foot. 43 Also arrested were C. E. Christiansen and Joe Woods. The authorities found the pair in the blind baggage car on a Salt Lake Route train. They ran from the police officers who opened fire. No one was injured. The authorities released the baggage stowaways when no connection was found to the Morrison murders. 44 The criminal was Frank Z. Wilson. Wilson was an ex-convict who recently appeared after an absence in the city prior to the Morrison Murders. Wilson was a serial burglar with a specialty in railroad cars. 45 The authorities arrested Wilson on January 12 but released him when they could not 41 Dragnet Spread for Applequist, DESERET EVENING NEWS (Jan. 16, 1914). 42 Direct Information about Applequist is Lacking, SALT LAKE TELEGRAM (Jan. 17, 1914). 43 Thinks Murderers Will Be Captured, SALT LAKE TRIBUNE (Jan. 13, 1914). 44 Story of the Chase after the Murderer, SALT LAKE TELEGRAM (Jan. 12, 1914). 45 It is commonly claimed that Frank Z. Wilson was not a petty criminal and was the prime suspect in the Morrison killing. The newspaper record is to the contrary. Salt Lake Has Reign of Crime, OGDEN STANDARD (Jan. 12, 1914); Frank Z. Wilson, an ex-convict is being sought by the department. Wilson is a burglar with a Utah prison record. Story of the Chase after the Murderer, SALT LAKE TELEGRAM (Jan. 12, 1914); I knew Hurley man y years ago. Said Mr. Pender (former Ogden Police Chief) He was then known as Wilson and he was a thief at that time. Former Chief Says Hurley is Joking, SALT LAKE TRIBUNE (Dec. 12, 1912); Wilson confessed to the Detectives that he stole the gloves which were found in his trunk at an express office Theft is Confessed, SALT LAKE TRIBUNE (FEB. 6, 1914); Wilson is an old offender, having frequently been arrested on burglary charges. Holdups Kill Father and Son For Revenge, SALT LAKE TRIBUNE (JAN. 11, 1914); Tim Hurley, the Warden says is Frank Z. Wilson, who was released from the penitentiary the day before the date the confession after serving an 18-month term for burglary in the second degree. SALT LAKE HERALD (Sep. Dec. 26, 1912). The Police are looking for Frank Z. Wilson, recently an inmate at the state prison, on the theory he may know something of the murders. Wilson is an old 15

connect him to the murders. For a short time, the authorities believed that Joe Hill was in fact, Wilson. 46 Wilson was rearrested on January 28 on suspicion of a railroad car burglary in Elko, Nevada. 47 He pled guilty and the authorities returned Wilson to Nevada to face federal burglary charges. Wilson was also a bizarre character. While in custody, He exercises almost constantly in the narrow corridor of the city jail and is recognized as a magnificent physical specimen. 48 The offended suspect was Robert Erickson. Erickson was the nephew of Joe Hill s Swedish friends the Eselius brothers. The police captured Joe Hill in the Eselius brother s home. The police never suspected Erickson as being one of the assailants in the store. However, they suspected him of being a look-out for the thieves. The police based this accusation upon the report of a witness to the effect that the wounded man had called to Bob for assistance. The fact that Erickson was known as Bob Erickson and that he wore a light set of clothes was regarded as a circumstance that justified taking him into custody. 49 Again, the authorities released Erickson when he produced a theatre ticket and testimony of individuals who saw him at a chili parlor after the time of the shooting. 50 The serious accomplice was Otto Applequist. By Thursday, January 15, the authorities viewed Applequist as the primary, possible suspected accomplice. The authorities knew that Hill and Applequist were friends and that both were staying at the Eselius home. The Eselius family furnished the following offender, having frequently been arrested on burglary charges. Holdups Kill Father and Son for Revenge, SALT LAKE TRIBUNE (Dec. 11, 1912); Wilson has a record as a box car burglar Suspect in Morrison Murder Case Confesses to Burglary; Wilson to Face Federal Charges, SALT LAKE TELEGRAM (Feb. 5, 1914). Wilson was arrested here on August 12, 1911by Patrolman Richard Benyon on a charge of committing a burglary. Police Search for Friend of Convict, Suspect in Morrison Murder Case Confesses to Burglary; Wilson to Face Federal Charges, SALT LAKE TELEGRAM (DEC. 26, 1912): Frank Z. Wilson picture is found in the SALT LAKE TRIBUNE (DEC.26, 1912) AND THE SALT LAKE HERALD (DEC. 26, 1912. Wilson was arrested after Joe Hill was taken into custody. May have Grocers Slayer, DESERET EVENING NEWS (Jan. 14, 1914). Wilson plead guilty to boxcar burglary because he was found in possession of a trunkful of gloves belonging to the federal government. 46 May have Grocers Slayer, DESERET EVENING NEWS (Jan. 14, 1914). 47 Suspect in Morrison Murder Case Confesses to Burglary; Wilson to Face Federal Charges, SALT LAKE TELEGRAM (Feb. 5, 1914). Records of the Federal Nevada Court are no longer in existence according to the clerk of the court. 48 Id. 49 More Arrests in Salt Lake City, OGDEN STANDARD (Jan. 15, 1914). 50 Id.; Alibi for Erickson Seems to be Complete, DESERET EVENING NEWS (Jan. 15, 1914). 16

information. On last Friday, Applequist and Hillstrom went to the Eselius home. They were sleeping on a folding cot in one of the rooms of the house. They remained there all day Saturday and were there when the Eselius boys left for Salt Lake Saturday evening. When the Eselius boys returned after the theater, Applequist was in bed. He had reached home shortly before one o clock.soon after the Eselius boys returned from Salt Lake, when the doctor brought in the wounded Hillstrom. Within, an hour, Applequist dressed and left the home after talking quietly with Hillstrom. 51 The authorities sent descriptions of Applequist throughout the West without success. 52 Applequist had distinguishing tattoo marks. The police department hired the Eselius boys to assist in the search. On the report that Applequist and Joe Hill once worked at the Silver King mine in Park City, they search that town. 53 The authorities also arrested Fred Larson, who was an acquaintance of Joe Hill and Applequist. The police are anxious to take into custody anyone who may furnish information leading to the arrest of Applequist. Larson denied seeing Applequist since a Christmas party at the Eselius home. 54 Otto Applequist was never located. The Trial Court Gave a Permissive Inference Jury Instruction. Trial Judge Morris Ritchie 55 gave a permissive inference jury instruction. Circumstances of suspicion are not sufficient proof of guilt. All the circumstances had to concur to show guilt and exclude all other possibilities. 56 The instruction appears to put the burden of disproving Joe Hill s alibi upon the prosecution. The instruction also calls the jury s attention to the factual circumstances and instructs the 51 More Arrests in Salt Lake, OGDEN STANDARD (Jan. 15, 1914). 52 Direct Information about Applequist is Lacking, SALT LAKE TELEGRAM (Jan. 17, 1914). 53 Where is Otto Applequist? Is he the Second Man in Morrison Murder, DESERET EVENING NEWS (Jan. 15, 1914). The DESERET NEWS published a picture of Applequist. Dragnet spreads for Applequist, DESERET EVENING NEWS (Jan. 16, 1914). 54 Id. 55 Morris Latimer Ritchie. Judge Ritchie was born in 1858. He was admitted to the Kansas Bar in 1879 and was admitted in Utah in 1891. Judge Ritchie served in the Kansas Legislature as a Republican. Judge Ritchie was an Episcopalian. HISTORY OF THE BAR AND BENCH OF UTAH, Intermountain Press, 1913. 56 State v. Hillstrom, 150 P. at 946-947. 17

jury that they must find those circumstances proven by the prosecutor in order to draw the inference. This instruction does not shift any burden of proof to Joe Hill. The burden of proof is strictly on the prosecutor. The jury believed, as it was entitled to do, the predicate facts. Arling Morrison shot Joe Hill through the lung in the store. His wound was serious. There was evidence that the blood trail leading from the store went in the general direction of the doctor s office. The appearance of the blood trail indicated the loss of a great deal of blood. The wound was in close time proximity to Joe Hill appearing at the doctor s office. The doctors believed that Joe Hill could have walked the distance from the grocery store to their office. Joe Hill threw away his gun. Lastly, the jury disregarded the alibi. The jury chose to draw the inference of guilt. Other people might and have argued the correctness of the verdict. However, the jury verdict meets the Supreme Court test of bare rationality. The lesson is that one s alibi must be reasonable or the defendant will suffer the consequences. Thus, the conviction is not irrational given the testimony. Part Two Available Exculpatory Evidence under the Residual Hearsay Rule Years of research have been spent on Joe Hill but very little is known of the victim, John G. Morrison. Mr. Morrison was paranoid about his personal safety and he had reason to be paranoid. Within five months of his death, he told multiple reputable people that certain individuals were going to try to kill him. The story that Morrison s enemies wished him dead has evidentiary support as the shooting resembled an assassination as much as a robbery. All of the Salt Lake papers initially attributed the shooting to revenge upon Mr. Morrison. Witnesses who were told of Morrison s fear of a revenge killing include the following: 18

Morrison told John Hempel, a former police captain, that he would give up all of the money he had made in Salt Lake City if he could only erase the experience of serving on the city police force. According to Hempel, Morrison said that he lived in daily fear of men whom he had arrested. 57 Morrison told his wife that the feared assailants lived in the neighborhood of the grocery store. 58 He also told a trusted neighbor. John G. Morrison lived in daily fear of violence since September 20, 1913 when a desperate attempt was made to rob him. Moreover, he believed that at least one of his assailants was a resident of the neighborhood and he expressed his fear only a few days ago to Herbert Steele, a neighbor, saying that this man would get him the next time. In conversation with Steele, Morrison said: I believe the man who tried to hold me up last September is living right here in the neighborhood and posing as a moral citizen. He even comes in this store. I m positive of this, too, although I know I cannot prove it for I only saw him in the dark that night. What is more, this fellow knows I suspect him and he will get me the next time. 59 The Telegram told much the same story in its Monday edition: The fellow who tried to hold me up did not want to rob me, he wanted to kill me, said J. G. Morrison, who was murdered with his son Saturday, while telling Hardy K. Downing, the police reporter for THE EVENING TELEGRAM of the incidents surrounding the attempt on his life last September. Mr. Downing called upon Mr. Morrison for his version of the shooting, and after pledging Mr. Downing to confidence regarding some phases of the shooting, said: He did not want my money, he wanted my life. He ordered me to throw up my hands, and if I had obeyed, he would have killed me when I had no chance to defend myself. He knows me and he knows my habits. He knew just the moment I was to leave the store, according to my regular habits, and he knew where to get me. Knowing that it was not my money he wanted, I whipped out my revolver and fired at him. Each of us fired six shots and neither of us was hit, so far as I know. 60 Mr. Downing kept Morrison s confidence until after his murder. 57 Morrison Knew Enemy Wanted to Murder Him DESERET NEWS, Salt Lake City (Jan. 12, 1914). 58 Id. 59 Morrison in Fear since Experience of Last September, SALT LAKE TRIBUNE (Jan. 11, 1914). 60 Morrison Knew Enemy Wanted to Murder Him, THE EVENING TELEGRAM (Jan. 12, 1914). 19

The evidence of threats was withheld from the jury. All good lawyers would approve of withholding the evidence of the decedent s paranoid statements of fear from the jury. We mindlessly say Hearsay, not subject to any exception. It is true that there are no applicable exceptions in the evidence code. The evidence of threats is not a dying declaration nor is it a statement against interests. It fits none of the hearsay exceptions we find in Evidentiary Rules 803 and 804. The traditional hearsay rule with all of its caveats and exceptions makes no sense in a twentyfirst century court room. For example, the present sense exception is archaic. Psychologists do not believe that a person cannot lie immediately after observing an event. Psychopaths and individuals with anti-social traits lie at will. The excited utterance exception does not comport with reality. It makes little sense to believe that a traumatized individual has a clear idea of what happened to her. Why would a diary be considered reliable when the diarist cannot remember the event? Why are ancient documents more reliable? People have lied throughout history. We let experts testify to hearsay under Rules 704 and 705. The expert is allowed to use hearsay if it is accepted within her field of expertise. That merely puts the decision of reasonableness in the hands of the expert rather than the judge. The exceptions have swallowed the rule. Rule 807 s evaluation of trustworthiness is more predictable than the mindless recitation of listed exceptions. In the Joe Hill case, Rule 807 would have provided more satisfactory and reliable evidence than the non-hearsay eyewitness testimony introduced at the Joe Hill Trial. Reported decisions continue to undermine the validity of eyewitness testimony. It is error to refuse to allow a criminal defendant to call an expert on the unreliability of eye witness identification. We can appreciate the lack of veracity in the eye witness testimony in the Joe Hill matter when we consider that the confrontation probably lasted ninety seconds. The chief eye witness, thirteen year old, Merlin Morrison, was in the rear of the store when the shooting began. The assailants wore masks. 20

Regardless of what else transpired in Judge Ritchie s court, Merlin Morrison was not competent to identify the assailants. Yet, the prosecutor, Elmer Leatherwood tried to elicit identification information from Merlin. About the best he was able to put before the jury was that Joe Hill was about the height of the taller criminal and wore clothes similar to Joe Hill s atire. The other eye witness testimony came from individuals who can charitably be called neighborhood busybodies. Their combined testimony establishes that they thought they might have seen someone who resembled Joe Hill in the neighborhood before the shootings. No witness definitely identified Joe Hill as that individual. It is doubtful that this witness evidence would meet present relevance standards of Rule 401 and even if it did, there would be a Rule 403 relevance challenge. Testimony that someone who might have looked like Joe Hill was in the area before shooting seems more prejudicial than probative. Our appreciation of the weakness of the 1914 evidence viewed in light of modern testimonial standards, leads us to question whether there was better and stronger evidence. The hearsay testimony, excluded from the trial, is factually more compelling than evidence actually presented. Morrison s Life History. When placed in the context of his life, the Morrison statements meet any standard of reliability. I have uncovered a family photograph. 21

By the ages of the children, it was taken between 1908 and 1909. It is the picture of a self-satisfied man who has provided his family with the finer aspects of life in early twentieth century Salt Lake City. We note that the Morrison sons are dressed in formal suits and Mrs. Morrison is tastefully dressed. 61 The image of prosperity is real. Morrison left an estate valued at $18,000 at a time in which the weekly wages of a skilled mine machinist were $30 and average annual income was $600. 62 The Morrison estate was complicated enough that it had not been closed by the lawyers in 1920. The 61 Marie Morrison continued to live in the family home, dying at the age of 98, in 1970. The witness, Merlin Morrison died in 1983. Besides the murders, the Morrison family knew their share of grief as four of ten children died in infancy. Social Security Death Index, recovered 1 June 2014. 62 Morrison Estate Valued at $18,000, SALT LAKE HERALD (1914). 22

Morrison Grocery appears profitable as the Morrison family placed advertisements in the Salt Lake press well into the great depression. Morrison s wealth was largely in real estate. We have some evidence of the extent of his Salt Lake City holdings. In 1911, he purchased 20 acres of city land. 63 In addition to his estate, Morrison was also a member of the International Woodsmen of the World. In the early twentieth century, the Woodsmen were both a fraternal organization and an insurance company. The size of the insurance policy remains unknown. 64 In addition to his wealth, Morrison s character must be examined. While on the police force, Morrison established a reputation for bravery almost to foolhardiness. He was the officer sent to arrest the most desperate of criminals. 65 A search of Salt Lake newspapers discloses no other grocer engaged in gunplay with hold-up men. 66 Yet, before he was killed, Morrison did it twice. In February 1903, the young Morrison family was living in the back of their store. Hearing a noise, Morrison went into the store and discovered three masked bandits. One of the bandits threw up his hands but the others opened fire. Morrison retreated into the living quarters but only long enough to retrieve his shotgun. The bandits continued to shoot as the shotgun jammed. Morrison called to his wife for his revolver. Freshly armed Morrison returned to the fray. Morrison killed one of the robbers and was wounded in his hand and foot. 67 In September 1913, Morrison again shot it out with criminals. Morrison s fight at that time earned for him the sobriquet The Man Who Won t Be Held Up. 68 63 Real Estate Transfers, SALT LAKE TRIBUNE (Aug. 30, 1911). 64 Morrison Funeral Attracts Hundreds, SALT LAKE TRIBUNE (Jan. 15, 1914). 65 Murderers Are Free: Dogs Can t Find Trail,DESERET NEWS (Jan. 12, 1914). 66 Unarmed Grocer Captures Burglar In His Own Store, SALT LAKE HERALD (Sep. 1, 1913). 67 Morrison Drove Back Robbers in a Fight Years Ago, SALT LAKE TRIBUNE (Jan. 11, 1914); Officer Heath Braved a Rain of Bullets and Ended Life of Outlaw, SALT LAKE HERALD (Feb. 3, 1903). 68 Murderers Are Free: Dogs Can t Find Trail DESERET NEWS (Jan. 12, 1914). 23

Morrison was born in 1866 in post-civil War Missouri. John Morrison is found with his extended family in Missouri in the 1880 census. The 1890 census is missing but Morrison was in Utah prior to 1895 when his eldest child was born. Morrison s wife, Maria, was a descendent of Mormon pioneers. However, the Morrison family attended the Congregational Church. 69 The Congregational church was among the leading Protestant denominations which opposed the Latter-day Saints in early Utah statehood. In the aftermath of the Reed Smoot Senate controversy, Salt Lake City non-mormons organized a local party called the American Party. Morrison was active in this organization, serving as a delegate from the 16 th District. 70 The American Party succeeded in capturing the city offices in 1909 but the Mormon People s Party ousted them in 1912. Utah followed the spoils system and city employees were ousted when the opposition took control. As part of the spoils system, Morrison became a policeman. Unfortunately, the police force organized by the American Party was corrupt. The Police Chief was involved in illegal gambling and was indicted, tried but let off on a technicality. After the Mormons resumed control of the police force, non-mormons mocked their efforts as naïve and ineffective. 71 Thus, Morrison was involved in organizations hostile to the Latter-day Saint half of the population. He also had all of the enemies of a police officer who was fearless in arresting the worst of men. 72 If those enemies were insufficient, Morrison fought with the Grocer s Association over price controls. 73 He filed a personal injury law suit. 74 Of course, Morrison earned the enmity of the criminals involved with the 1903 and the 1913 shootouts. 69 Morrison Funeral Attracts Hundreds, SALT LAKE TRIBUNE (Jan. 15, 1914). 70 SALT LAKE TRIBUNE (Sept. 29, 1909). 71 Straight Talk, GOODWIN S WEEKLY (Jan. 17, 1914). 72 Morrison had reason to feel aggrieved by the LDS Police Chief, B.F. Grant. Grant fired non-mormon Patrolman Horace Heath who had come to the rescue of Morrison in the 1903 shootout. To Search Record to Find If Heath Retains His Job, SALT LAKE TELEGRAM (Feb. 14, 1912). 73 Asks Damages For Injury, SALT LAKE HERALD (Nov. 25, 1909). 24