The Everett massacre Part 27

John Looney Hugo Gerlot, Felix Baran Abe Rabinowitz]

"Therefore, simplify your deliberations and determine first the question: Did somebody on the boat unlawfully kill Jefferson Beard? If somebody on the boat did not kill Beard, then of course Tracy could not be guilty of aiding John Doe to do something which John Doe did not do.

But if the State has satisfied you beyond a reasonable doubt that Beard was killed by a shot fired by somebody on the boat, then such killing is either unlawful, in which case John Doe would be guilty of one of three degrees of unlawful or felonious homicide, viz., murder in the first degree, murder in the second degree, or manslaughter; or it is justifiable in which case John Doe would not be guilty. Hence you will render one of four verdicts in this case--

1. Guilty of murder in the first degree, or

2. Guilty of murder in the second degree, or

3. Guilty of manslaughter, or

4. Not guilty.

"It is very desirable that you reach a verdict in this case. The law requires that your conclusion shall be unanimous. It is not required that any one of you should surrender his individual freedom of judgement, but it is well that each of you should have in mind that your true verdict cannot ordinarily be reached except by mutual consideration and discussion of all the different views that may suggest themselves to any of your number. The jury room is no place for pride of opinion. A verdict which is the result of real harmony, or that growing out of open-minded discussion between jurors, and a willingness to be convinced, with a proper regard for the opinions of others, and with a reasonable distrust of individual views not shared by their fellows, is a fair yielding of one reason to a stronger one; such, having in mind the great desirability of unanimity, is not open to criticism. The law contemplates that jurors shall, by their discussions, harmonize their views if possible, but not that they shall compromise and yield for the mere purpose of agreement. One should not surrender his conscientious convictions.

"And now, ladies and gentlemen of the jury, I commit the case to your hands. Listen to the arguments. Regardless of what may be counsel's recollection of testimony, you must take and follow your own recollection. You are not required to adopt any view which counsel may suggest in argument, but you should give close attention to all they say. Take up your task fearlessly, with but one single aim--to discharge the obligations of your oaths. You have no cla.s.s to satisfy--simply the dictates of your own conscience."

Taken as a whole the instructions were distinctly unfavorable to the defendant, not because of any particular bias of the judge whose political ambitions might have made him desirous of establishing a record for fairness, but by reason of the fact that the law itself on the question of criminal conspiracy is archaic and absurd, being based upon precedents established when the use of electricity and steam power were unknown, when the stage coach was the fastest means of locomotion and the tallow dip the princ.i.p.al form of illumination. This law, like all other statute law, was created thru the desire of the ruling cla.s.s to protect property, therefore it contained no element of justice when applied to the modern proletariat, the twentieth century worker stripped of everything but his power to labor.

Following the reading of the court's instructions prosecutor Black made his argument, Vanderveer and Moore for the defense addressing the jury in turn, and Cooley making the concluding plea for the state. This arrangement gave Veitch no chance to turn loose his oratorical fireworks, much to the chagrin of the gentleman who had been so kindly loaned to the prosecution by the Merchants' and Manufacturers'

a.s.sociation.

Black's lengthy address was a whine for pity because of his youth and a prayer for relief from the dire straits and legal bankruptcy into which Snohomish County had fallen. It is summarized in the following:

"We are at the close of a great trial. A great deal of evidence has been introduced; practically two million five hundred words. From the standpoint of the attorneys who have tried this case the evidence has been very complicated because it had in it a great ma.s.s of evidence that was only remotely connected with the real issue at bar. You as jurors have a very simple question to decide in this case.

"Thomas H. Tracy is charged with the crime of murder in the first degree, not that he himself killed Jefferson Beard, but that he, Thomas H. Tracy, aided, incited and encouraged some unknown one to kill Jefferson Beard of Everett, on last November 5th.

"I repeat first that some person on the boat unlawfully killed Jefferson Beard; secondly that this defendant, aided, incited and encouraged such shooting.

"I come before you as the prosecuting attorney of Snohomish County.

Owing to the exigencies of politics I was elected to office a few days after November 5th, the time of this catastrophe. Two months and a few days after, I took office and found a man charged with a crime that I did not have the power of prosecution over up to that time. Mr. Webb, then prosecuting attorney, who had started the action and initiated and seen fit to collect some of the evidence, was not able to complete the prosecution on account of the size of the trial.

"I am a young man without the experience that any man ought to have in the prosecuting of a case like this, a case the size of which has never been experienced in the State of Washington, and in many ways an absolutely pioneer case in criminal trials the world over.

"So the State has been hampered in that at the outset a young man, a new prosecuting attorney, has come into office and to him there has come a case that no man could read up concerning, and a large piece of battle--it is the State's contention, a battle between hundreds of men on the boat and a large number of deputies on the dock, a battle absolutely and surely initiated by firing from the boat, but still a battle;--a case without parallel in the criminal history of this State or of the United States.

"It happens that fortunately the State has had a.s.sistance in this case.

The State of Washington, thru its county commissioners, requested the a.s.sistance in this case of Mr. Cooley, whom you have all grown to know, a man who formerly for four years was prosecuting attorney of Snohomish County, and who since that time has been a.s.sociated as a.s.sistant counsel in practically all the criminal prosecutions of Snohomish County that have required a.s.sistance.

"And in addition to this the State has been fortunate in having, at the request of the county commissioners, the a.s.sistance of Mr. Veitch, a young man it is true, but one who thru years of service in the district attorney's office in Los Angeles County had experience in criminal trials, and especially because of his connection with what are known as the conspiracy murder trials in Los Angeles County, and also in a.s.sisting the federal prosecution at Indianapolis. It has been necessary in this kind of a case for the State to have a.s.sistance.

"Now I told you my friends that I came here as prosecuting attorney of Snohomish County. I am also a deputy prosecuting attorney of King County under Mr. Lundin. After I was appointed I was very unpleasantly surprised by one statement. A little phrase, 'without pay,' so that I don't know whether really I am a deputy prosecuting attorney or not, because I found that in public office a man always likes to see the warrant come at the end of the month!

"You are a jury in this case from King County because the defendant and the other defendants filed an affidavit to the effect that they didn't expect that a jury selected in Snohomish County would give the defendant a fair trial. The State is happy in your selection and knows that you will follow the dictates of your conscience and is likewise confident that you cannot help but believe that Jefferson Beard was killed by someone shooting from the Verona, and that Thomas H. Tracy, alias George Martin, incited, aided and encouraged in that shooting.

"Now, the witnesses on the dock are men of Everett, men of family, men who are laborers, but with families; men who are clerks, with interests in Snohomish County; men who hold some important positions, as lawyers; people with families, people who by residence have established reputation for truth and veracity; men who have established themselves, have made themselves successful, sometimes in merely that they have established a small home, or who have lived in Everett and have made friends and acquaintances. That is the cla.s.s of men that were on the dock.

"There are only two cla.s.ses of people who know anything about the shooting. The people on the dock are one set, and the people on the boat are the other.

"The people on the boat, with but one or two exceptions, are men who have established no reputation for truth and veracity, have been successful in the world in no way, even from the standpoint of stable friends, living here and there, unfortunately; perchance, with some of them it is due to unfortunate circ.u.mstances and environments, and they have been unlucky, but still they haven't established stable friends in any community.

"Then there are the three boatmen on the boat--and those three men, unprejudiced, unbiased, not deputies and not Commercial Club members, but merely laborers, they know where the first shot came from, and they tell, and their testimony absolutely and entirely contradicts the testimony of the defense in this case from start to finish.

"And when you look at that red face and red hair and that honest expression of big Jack Hogan John Hogan here, and his honest blue eyes, it doesn't seem to me that you can have any more doubt than I have that Jack Hogan saw Tracy.

"Now, these men that come on the stand all confess they had a common design. Their common design they say, was that about two o'clock in Everett they were going to speak at the corner of Wetmore and Hewitt Avenues, that is their common design.

"The court tells you that the purpose that they admit was unlawful, so Tracy, by the testimony adduced in his favor, was one of the men having a common design for an unlawful purpose. Tracy, regardless of his location, regardless of whether he fired or not, is guilty.

"The sheriff and his deputies could have been guilty of everything claimed against them previous to this and the defendant still be guilty of helping and encouraging someone else to unjustifiably kill Jefferson Beard.

"Under the Court's instructions there were acts done at Beverly Park that were unlawful. There is no question about that. Instead of this being a weakness on the State's part, it seems to me that it is an added strength. Because the I. W. W. used Beverly Park for what purpose? They jumped on it with desire, deeming it a fortunate circ.u.mstance because they wanted to inflame men to invade Everett. They jumped on this, the men at the head of the conspiracy, they jumped on Beverly Park because they could use it to inflame their members. How do we know? Their own statements! Their telegrams! 'Advertise conditions and send volunteers.'

Volunteers for what? Volunteers for what? When a man represents things and so helps to make men mad he wants these men up there as volunteers for retaliation. And the Court has instructed you that if these men went up there with the purpose of retaliating, they are guilty. Tracy having been one of a common design makes it central, vital, in good conscience as citizens, that you return your verdict asked by the state.

"Any time a murder is committed it is important that prosecution be had and conviction secured. That is always vital from the standpoint of protection to society. The police, the sheriff's office, and the officials of all cities and states of the United States sometimes forget themselves, I take it, sometimes do things they shouldn't do, sometimes do things they should be censured for, but the fact that they had is no reason that murder is to be excused or justified, because if you did, we would have no society. That is true in an ordinary murder case. That is overwhelmingly true in this case.

"The I. W. W. is an organization that realizes the great truth in combating government. They have stumbled upon an overwhelmingly successful instrument in fighting society. What is that? To commit a violation of the law in numbers, to violate the law by so many people that only a few can be prosecuted and even if they are convicted, the great majority go scott free. They built better than they knew when they stumbled upon the great secret that the violation of a law in great numbers would protect practically all of the violators. And this trial itself is proof of that.

"Snohomish County can ill afford the expense of this one trial; can ill afford the expense of two or three trials after this; would be overwhelmed with debt to convict all the men who are in this conspiracy, if there were a conspiracy it can't do it; most of them are safe from prosecution and they know it; and the only protection that Snohomish County has, and King County has, and the State of Washington has, and the United States has, is that when something happens like this a conviction be secured against a man who is guilty, not because you are convicting all, because you can't, you are helpless--but because that at least is the voice of warning to the men that if you lead an attempt you may be the one of the great number that will be caught. It is important from the standpoint of citizens of the State of Washington to establish the principle that crimes cannot be committed by numbers with impunity, that while it is fairly safe, it won't be absolutely safe. We have no protection. That is the vital part of this case. We have no protection.

[Ill.u.s.tration: JOHN LOONEY]

"If this case were just that of murder committed by one man acting alone, the importance of your verdict would be of small significance, compared with the importance of your verdict in a criminal case where the members are part of an organization. True, the society has no doubt a great many aims that are desirable to improve the welfare of the workingman. But it has one aim, one vital aim, in its platform to bring upon it the condemnation of thinking, sober men and women residing permanently in the State of Washington, and that is sabotage.

"We are not claiming that the killing of Jefferson Beard was in the exercise of sabotage. We are saying that sabotage along with the conscious withdrawal of efficiency, sabotage along with the destruction of property, may also mean crime.

"The I. W. W. members did not come to Everett for the purpose of employment; they were men who were wanderers upon the face of the earth, who desired to establish themselves nowhere, and none of them, as far as this witness stand is concerned, expected to work in Everett or to put sabotage in effect in Everett by working slow. The only way they could use sabotage in Everett was by the destruction of property. The mayor became alarmed, and the sheriff, after their repeated threats in their papers. But whether you believe sabotage to be good, bad, or indifferent, really is not vital in this case except as a circ.u.mstance.

"Now, the Wanderer. The Wanderer did not happen the way they said it happened. The sheriff did shoot after they refused to stop. The sheriff did hit some of them with the b.u.t.t of his gun. The sheriff brought them into Everett because they const.i.tuted an unlawful a.s.semblage. The sheriff did the only thing he could do. He filed charges against them and they were arraigned in court. Twenty-three men cannot be tried quickly when each one demands a separate trial by jury. Twenty-three trials would stop the judicial machinery for three months. They could not be tried and so the sheriff turned them loose. Maybe he did hit them harder than he should have. Policemen do that! Sheriff do that! Lots of time they hit men when it is not necessary. Hit them too hard, sometimes. They don't always understand exactly what they are supposed to do. But the I. W. W. exaggerated the matter and used it to incite retaliation on the fifth. So the Beverly Park incident, and all other incidents, if true to the last syllable of the defense testimony, merely in this case extenuated the motive on November 5th.

"Now then, why did the State select Tracy? The State's evidence was to the effect that Tracy was not only a member of the conspiracy, but was firing. Several State's witnesses recognized Tracy. There was another reason. What was that? Some of these men, some of these boys, flitting here and there from job to job, with never more than a dollar or two in their pockets, were inflamed intentionally by people who misrepresented conditions. They did not have any right to be inflamed; they did not have any right to go to Everett and they are guilty of murder if they went up there to retaliate for any wrong, actual or conceived. But the State has preferred to put on first a man who was in the forefront of the conspiracy; the man that appeared to be an important cog of that conspiracy, and that man is Tracy.

"Tracy knew that a great many people of Everett were alarmed and disturbed. Tracy knew that the I. W. W. did not want anything in Everett, had no interests there, no friends there except as they were disturbing conditions. Tracy knew the purposes and Tracy went back to Seattle so he could lead this excursion to Everett. Tracy is a man of determination. He knew the situation and he was prominent enough to be selected by the organization as a stationary delegate. And if any man knew what they intended to do in Everett, it undoubtedly was Tracy. So, regardless of whether he fired or not, Tracy was one of the men who were on the inside. Tracy is a part of the conspiracy that happened. But no man, my friends, on that boat, that went up there with a common design to break the ordinance has been sinned against because he is in jail.

"Now, my friends, you want in good faith to follow the instructions of the court. It seems to me that the only question you have to decide is the one the court told you to decide--Was Beard killed unlawfully by a shot from the boat, and did Tracy aid, encourage or incite that killing?

"The murder of Jefferson Beard was a premeditated murder. Following the instructions of the court, separating the wheat from the chaff, and deciding that one question, we of the State are confident that you as jurors and good citizens, as honest, sincere and conscientious citizens, will protect Snohomish County--we believe that your verdict will say 'We are convinced, beyond a reasonable doubt, that Tracy is guilty, and, being so convinced, we are going to protect Snohomish County as we would our own.' I thank you!"

Vanderveer handled the case from two different viewpoints--that of a first degree murder trial and also as a section of the cla.s.s struggle.

His address was a masterly array of invincible logic and satire.

Omitting his readings from the transcript of evidence, his speech was substantially as follows:

"This cause is, as the counsel for the state has told you, one of momentous importance not only to the defendant but to a cla.s.s--a large cla.s.s of people of whom today he stands merely as an unfortunate single member, fighting their battle.

"We do not ask in this case for mercy, we do not ask for sympathy, but it is essential, absolutely essential that we should have cold, stern justice; justice for the defendant, justice for those who have oppressed him, those who have denied him his rights. We hope this case is the beginning of a line of prosecution which will see that justice is done in the Everett situation.

"It is not the defense who outlined the issues in this case, it was the State who determined that. They have chosen their fighting ground, and we had to meet them on that battle. In the beginning of this case the State, thru Mr. Black, told you that it would prove a conspiracy of very formidable proportions, a conspiracy in the first place to commit acts of violence and to incite acts of violence, a conspiracy to commit arson, a conspiracy to overrun all law and order in Everett and bring on a condition of chaos. The claim was a very formidable one. The evidence has been very silly. The State ought to apologize, in common decency, for ever having suggested these things.

"What is the evidence about the fires? The fire marshall's report, made by a man who would naturally try to enlarge the performance of his duties and impress upon the public the manner in which he discharged them, reports only four fires of incendiary origin for the entire year.