Chapter VIII: Pleadings and the Verdict (1)

The instructions of the court, carefully prepared by Judge J. T. Ronald, required sixty-five minutes in the reading. These instructions were divided into twenty-three sections, each section representing a different phase of the case. Herewith is presented the first section in its entirety and a summary of the remaining portion:

"Ladies and Gentlemen of the Jury:

"My responsibility is to decide all questions of law in this case; yours to decide one question of fact. With these instructions my responsibility practically ends, your commences. You have taken a solemn oath that 'you will well and truly try and true delivery make between the State of Washington and the prisoner at the bar, whom you have in charge, according to the evidence.'

"There is no escape from the responsibility which has come to you, save in the faithful effort to render a true verdict. Any verdict other than one based upon pure conscience will be an injustice. An honest juror yields to no friendship, nor bears any enmity. He is moved by no sympathy, nor influenced by any prejudice. He seeks the approval of no one, nor fears the condemnation of anyone--save that one unerring, silent monitor, his own conscience. Disregard this whispering voice in yourself and you may fool the public, you may fool the defendant, you may, hereafter, with some effort, even close your own soul to her whispering reproaches and enjoy the ill-earned plaudits of the selfish or biased friend or interest whom you sought to please, but be assured you will not change the truth, you will not deceive justice which, at some time, and in some way, will collect from you the penalty which is always sooner or later exacted from those who betray the truth.

"So let me urge that in deciding the issue of facts which is now your responsibility you be guided by these instructions which you have sworn to follow, and by their conscientious application to the evidence in this case.

"Do not permit yourselves to be swayed by sympathy, influenced by prejudice, or moved in the least by a consideration of what might or might not meet the approval or the condemnation of any person or class of persons, or of interest whatever. To do so will be an act alike dishonest, violative of your oath, substituting for a fair and impartial trial an unfair and a partial one. This is an epoch in your lives to which you will ever look back. Be sure that when you do you may face the smiling approval of your conscience rather than its stinging reproach.

"The guilt or innocence of this defendant is a single question of fact to be determined by the evidence alone. If this evidence shows defendant to be guilty, then no sympathy, no desire for approval, no fear of condemnation, can make him innocent; if the evidence fails to show him guilty, then no prejudice, no desire for approval, no fear of condemnation, can make him guilty. The issue is a momentous one, not only to the defendant, who, if innocent, deserves the deepest sympathy, for the accusation made against him is a serious one; but likewise to the public and to society at large, and the tranquility and security of our different communities.

"A false verdict against the defendant conflicts with the purpose and the laws of the State as effectively as a false verdict in his favor. The State has no higher duty or interest than to preserve all its citizens from suffering under unfounded accusations. If, on the other hand, the guilt of the defendant has been shown, a false verdict of acquittal would not only be a breach of your oaths, but it would inflict a grievous wrong upon the State. If a true verdict calls for conviction, the misfortune to the defendant is not in the verdict, nor in the penalty, but in the fact it was his conduct which makes the verdict true. You alone of all the world, and who now possess all the facts, are therefore responsible for the verdict in this case. The law is not concerned about conviction merely--but it is concerned, deeply concerned, that juries shall conscientiously and fearlessly declare the truth. Whether it be conviction, or whether it be acquittal, a true verdict is justice--a false is injustice."

Judge Ronald followed this lecture on civic righteousness and personal duty with more specific instructions to the jury, of which the following are excerpts.

"In this case you must answer the question--Is this defendant guilty or innocent? * * * Keep constantly in mind this issue and do not go astray to discuss any other of the many issues that may be suggested by or may lay hidden among the great mass of evidence in this case. Whether the Industrial Workers of the World shall or shall not speak at a certain place in the City of Everett is not an issue here. * * * Whether the open or the closed shop shall prevail is not a subject for your consideration.

"Every defendant in a criminal case is presumed to be innocent. * * * You must be satisfied beyond a reasonable doubt of the facts necessary to show guilt before you can convict. * * * You should give the phrase 'proof beyond a reasonable doubt' its full meaning and weight as explained and defined to you in these instructions. On the other hand, you should not magnify nor exaggerate its force and fail to return a verdict of guilty simply because the evidence does not satisfy you of guilt to an absolute certainty. No crime can be proved to an absolute certainty.

"It does not follow because every one of the facts which are disputed between the parties may not be established beyond a reasonable doubt, that there cannot be a conviction. At the same time you will bear carefully in mind that all facts which are necessary to establish the conclusion of guilt must be proved beyond a reasonable doubt.

"There are two facts necessary to convict this defendant:

(1) That some person on the boat unlawfully killed Jefferson Beard.

(2) That this defendant aided, incited or encouraged such shooting.

"If you are satisfied beyond a reasonable doubt of these two facts, then you must convict, no matter what may be your belief concerning any other question in dispute in this case; if you have a reasonable doubt as to either of these two facts, then you must acquit."

The instructions then went into detail as to the rights of the workers to organize, to bargain in regard to compensation, hours of labor and conditions of work generally, to go on strike, to persuade or entice their fellow workers by peaceful means from taking the positions which they have left, to assemble at public places where such meetings are not prohibited by law and ordinance, and "no person, either private citizen or public official, has any right to deny, abridge or in any manner interfere with the full and free enjoyment of those privileges and any person who attempts to do so is himself guilty of an unlawful act."

After reciting such acts attributed to the workers in this case as were in violation of law, the instructions went on to state that "a sheriff has no authority to arrest any person without a warrant except upon probable cause for believing such person has violated a law of the state; nor has he authority after making such arrest to hold his prisoner in custody for a longer time than is reasonably necessary to cause proper complaint to be filed, and an opportunity given for bail. * * * A sheriff has no right or authority to interfere with or prevent any person from violating a city ordinance, nor has he the right or authority to arrest for violations of city ordinances" unless "the act threatened, or the act done, in violation of such ordinance be at the same time violation of a state law."

The instructions then outlined the scope of criminal conspiracy, stating that it was unnecessary for one conspirator to know all of the other conspirators but that common design is the essence of the charge of conspiracy. The acts of one conspirator become the acts of any and all conspirators. In the eyes of the law the sheriff and the deputies also constituted in this case but one personality, the sheriff being bound by the acts of his deputies and the deputies being authorized by the powers of the sheriff. Also the ordinance dated September 21st, 1916, was held to be a valid one.

"Now whether any of the Industrial Workers of the World have been, prior to November 5, 1916, guilty of encouraging disrespect for law, or of unlawful assemblage, or of riot, is not the question on trial here. They could all be guilty of all the acts or offenses heretofore mentioned, and still this defendant be innocent of this particular crime charged on November 5th, or they could all be innocent of all the acts mentioned, and defendant still be guilty of the main charge here.

"Again, whether the sheriff or any of his assistants have been guilty of any of the acts charged against them is not on trial here. They could all be guilty of all the acts charged and still be the victims of unjustifiable shooting from that boat, or they could all be innocent of any offense, and still be the aggressors and cause of that shooting on the dock wherein Jefferson Beard lost his life.

"One of the questions in this case is the question--Which side was the aggressor on that occasion?

"In determining who was the aggressor it is your duty to consider all the facts and circumstances surrounding the situation, the relations of the parties to each other, their intentions toward each other, and all the things they did. You will also consider the past conduct of all the parties, any acts of violence or other assaults that may have been committed, and any threats that may have been made, and the character as known and understood by each other.

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 class 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 principal form of illumination. This law, like all other statute law, was created thru the desire of the ruling class 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' Association.

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 mass 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 assistance in this case. The State of Washington, thru its county commissioners, requested the assistance 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 associated as assistant counsel in practically all the criminal prosecutions of Snohomish County that have required assistance.

"And in addition to this the State has been fortunate in having, at the request of the county commissioners, the assistance 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 assisting the federal prosecution at Indianapolis. It has been necessary in this kind of a case for the State to have assistance.

"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 class of men that were on the dock.

"There are only two classes 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 circumstances 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 circumstance 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.

"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 circumstance.

"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 butt of his gun. The sheriff brought them into Everett because they constituted an unlawful assemblage. 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 class 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 class--a large class 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. Every one of these were discovered before they did five cents worth of damage. Who had notice of them? Was it the I. W. W. who set them or was it Reese or some paid employe of the Pinkerton Agency? Can you conceive that an organization embracing as many members as this does, bent upon the destruction of Everett, could not set one fire at least that would do some damage. It is nothing but a hoax!

"As to force and violence, who did they put on to prove it? Young Howard Hathaway, a mere boy, whose father represents some mill companies in Everett. Then Sheriff McRae, and McRae couldn't tell you one thing that he heard at the street meetings. Then they put on Ed Hawes, the big brute that out at Beverly called the little boy a coward, a baby, because he wouldn't stand there and be slugged with guns and clubs. And what did Hawes say? That he looked up sabotage in the International Dictionary! And you can search that book until you are black in the face and you won't find a word in there about sabotage. Why, if sabotage is such a terrible thing, did Hawes, having heard all about it at the street meeting, have to go home to look it up at all?

"At these meetings there was not one thing said that could invite criticism, there was not one thing said that could justify or invite censure or abuse; there was not one disorderly thing done but was done by the officers of the law themselves, and they went in recklessly, without excuse, without right, they clubbed Henig, they clubbed Carr, a former member of the council, and they roughed women around and knocked them down. Why? Because these people were mill owners, their hirelings and their representatives, who had been instructed in the propaganda of the open shop by employes, aides and emissaries of the Merchants' and Manufacturers' Association.

"A lot of people went to the jail one night, a thousand, maybe. They hooted, they cat-called, and they hissed. Is it any wonder they did? Ladies and gentlemen, I want to tell you there is no surer verdict on earth than the verdict of a crowd; and the verdict of that crowd condemned what the deputies had done.

"Finally they say there was a conspiracy on the 5th of November to go to Everett and to hold their meeting at all hazard, to brook no opposition, to ride rough-shod over it, to oppose everyone and anything that stood in the way of accomplishing their purpose. I ask you to think just for a moment how foreign that is to everything you know about the I. W. W. and their operations and behavior in Everett. Not one witness for the state could tell you an incident where one of them resisted arrest, could tell you an occasion where one of them had advocated violence, could tell you one occasion where any one of them had committed any acts of violence.

"These people wrote to Governor Lister calling his attention to the violations of the law on the part of the officers of Everett; they wrote to Mayor Merrill, enclosing a copy of that letter and calling on him to restore the order that had been violated by the officers of the law; they scattered handbills all over Everett, among its best homes and in its business streets, calling upon the good citizens to come to their meeting on November 5th at Wetmore and Hewitt, to come and help maintain your own and our constitutional privileges; they mailed to the citizens of Everett on October 30th, seven or eight hundred copies of a little pamphlet calling upon them to intervene and stop the brutality of officers of the law; they questioned Governor Lister at a public meeting and again called his attention to the conditions in Everett; they called in the reporters, called the newspapers and notified the editors that they were going to Everett and asked them to have representatives present: Are these the acts of conspirators?

"You know how that meeting was called and why it was called. You know it from ministers of the gospel, you know it from the lips of those whom you cannot help but believe. And it was called for Sunday, the day when people ordinarily resent disorders of the kind that had occurred there. It was called for the daytime, when ordinarily abuse and violence are not attempted. And this big crowd went up there on this fine Sunday afternoon because in number there is strength and in numbers there is protection against brutality.

"At first the deputies had taken out one or two and abused and beaten them; then they had taken five or six; they had taken eighteen; finally they had taken forty-one. But I ask you, would you believe it possible that they could take two hundred or three hundred people in broad daylight and do to them what had been done to the others? Yet the evidence in this case shows convincingly and conclusively they intended to do substantially that thing. They intended to run those men into a warehouse; they didn't intend to let one of them get away. And had they gotten them into that warehouse you don't know, I don't know, nobody knows what would have happened!

"That is the evidence of conspiracy in this case. They have claimed no other conspiracy; they have offered no other evidence of conspiracy, either to set fires or to incite violence, or to override all opposition on November 5th. Their evidence doesn't stand even if unanswered--and no evidence could be more successfully answered.

"What evidence is there that Tom Tracy had anything to do with such a conspiracy, if there were one? Their most willing tools, Auspos and Reese, don't say a word about Tracy.

"What does the identification by McRae amount to? He identifies Tracy as the man who leaned out of the window and shot at him. Now at the time this shot was fired McRae had his back turned to the man who shot it. He says himself he did, and he was shot thru the heel, which seems to prove it. That, by the way, suggests to me that it was not an I. W. W. who shot McRae. The man who shot him must have thought McRae a hero, like the gentleman of mythological fame who was killed by an arrow thru the heel which no I. W. W. does, I assure you. Or else he thought that McRae wore his brains there.

"But I am not going to discuss McRae at great length either now or at any other stage of this case, because the greatest kindness I can do him is to forget him. The man is a perjurer! He lied! He was not mistaken. He deliberately, cold-bloodedly lied about almost everything in this case wherein his conduct as an officer was questioned. He lied about 'Sergeant' Keenan! He lied about shooting at the "Wanderer," and you saw the bullet holes. He lied about Berg and about Mitten, and finally, and last of all lied, and we have proven it conclusively, about being out to Beverly Park.

"Bridge's identification of Tracy does not agree with that of Smith, and Bridge does not even agree with his own testimony given at the coroner's inquest. Smith picked out a photograph and said it was Tracy and that picture resembles Tracy about as much as I do some of you jurors. Bridge and Smith say that Tracy fired three shots, and Hogan says he fired only one. And you know, ladies and gentlemen, that Hogan did not see this man at all. You know that he did not even see the window at which he pretends this man was sitting when the shot was fired. You know it because you went there to the dock and you saw the boat lined up to a mathematical certainty by the shot marks, and you saw a photograph taken with the camera placed by John Hogan exactly where he said he was standing himself. And there wasn't a one of you who could identify Bob Mills, with his long nose and angular features, with everything that makes identification easy, when he was in the position attributed to Tracy. And when you came around from there to where you could look directly at the place, the reflected glare of the sunshine left nothing but a blank background.

"There were one hundred and forty deputies looking toward the place where the first shot was supposed to have been fired. They have produced on the witness stand only about one in ten. We challenged them to bring them all on, we dared them to do it, and Mr. Cooley said 'I accept that dare!'--look it up Mr. Cooley on page 1802 of the transcript--but he did not dare accept that dare. Mr. Cooley knows what those nine-tenths would testify to. Twelve out of their sixteen witnesses who testified about the first shots said that their brother deputies were mistaken as to even the place on the boat where the first three shots came from.

"I venture, ladies and gentlemen, that with a bit of the kind of work the State has employed in this case, a little bit of the same zeal that was employed on Auspos, a little bit of the same zeal that was employed with Reese, a little bit of the help of McLaren of Los Angeles, I can take these one hundred and forty-five men and pick out four men who will honestly and truthfully testify that they saw anything, and I say that with no reflection on their honesty either, because the power of suggestion is enormous. It is not surprising that four people have come here to say they saw Tracy. It is not surprising that three out of the four should have been proven, conclusively, convincingly and absolutely, not to know what they were talking about.

Dark lines on body caused by internal hemorrhage; Portland doctor said life might have been saved by operation.]

"The court has told you that in this case it is not a question of who shot first, not a question of which side shot first, it is a question of who was the aggressor, who made the first aggressive movement, who did the first hostile thing. The man who did a thing to excite fear was the aggressor, and that man was McRae when he pulled his gun. McRae clearly did that before there was any shooting.

"In determining who the aggressor was, you are entitled--not only entitled but must take into account the past behavior of all parties. And what does that show you? Was it the I. W. W.'s who had never offered violence, who had never done an act of violence, who had decried and deplored violence, as members of their audiences told you, and advised caution against it? Or was it McRae and his deputies?

"It is only formally correct to refer to these as deputies. They had commissions, but in nothing else in the world did they bear the remotest resemblance to officers of the law, not in their conduct, not in their training, not in their purposes, not in anything. They were the hirelings of either the mill owners of Everett or the Commercial Club. Did you ever in your life before hear of officials taking their instructions from representatives of an industrial movement? Did you ever before hear of deputy sheriffs being instructed in the propaganda of the open shop, being instructed in the methods employed at Minot unlawfully to prevent street speaking? That is where the first mistake in this case was made. First in the selection of that kind of men; second in the deliberate attempts which were made to color their actions, to pervert them, to make them the tools of the employers.

"That is the reason Henig and Carr were beaten, that is the reason Feinberg and Roberts were beaten, that is the reason men and women were knocked down in the crowds, that is the reason that this boy, Schwartz, was taken out by McRae and chased zigzag down the road in mortal terror of being run down by the sheriff's automobile, that is the reason 'Sergeant' Keenan was hit over the head with a gun, that is the reason James Rowan was taken out and beaten black and blue. How do you suppose Rowan got those marks on his back? Did he put them there for fun, or were they put there by somebody else's rotten, dirty brutality? If you didn't know a thing about him except what you know about Beverly and these other incidents, and it was deep darkness where this happened, I venture you would all say off-hand, 'It must have happened at Everett, anyway. There is no place else that I know of where they do such things.'

"Black says the "Wanderer" has been greatly misrepresented to you, that the things we claim happened did not happen there at all. Well, there is a lot of evidence that they did happen. There are a lot of people who could have denied it. There are a whole crew of deputies who could have come up here and denied it. Why didn't they? Because they were ashamed of it and they knew they could not stand the grilling that was awaiting them in the court room. It is true, certainly! And I say here that nothing but providential intervention prevented McRae on that day from being a cold-blooded murderer! That is the manner of man you are considering. You are considering whether he was the aggressor, he or the people he shot at.

"Counsel says that Louis Skaroff lied. Now I am very frank to confess that when we produced that story on the witness stand I feared you would not believe it, not because I doubted the truthfulness of his statement but because the story itself is so brutal and inhuman that I questioned whether there could be found anywhere in the county twelve persons who would think such things could possibly happen just thirty miles away. But when one of their own witnesses went on the stand here, in rebuttal, and told you that Louis Skaroff came out of that room with his arms above his head, crying, with the blood running from his finger tips, I knew that you knew that Louis Skaroff had told the truth.

"The state has been very reluctant in this case to admit that there were rifles on the dock, because if the deputies went there with rifles there was a reason for it. You could not find a rifle on that dock until we proved--what? That rifle shells were around the dock in great numbers; we proved it by innocent, clean little boys who picked up the shells; until we proved by witnesses that the rifles were there and were being shot; until we proved by a rifle bullet with human blood and a man's hair on it that the use made of the rifles was a deadly one.

"Who was the aggressor? Even now the State doesn't like to admit, because the State knows it is fatal to their case to admit, and notwithstanding hopeless to deny, that there were helpless men in the water being shot at. They do not like to admit that a man was so impressed with the inhumanity of the thing that he ran from the depot to the boat house hoping to effect a rescue of the men and was stopped by the armed deputies. The State does not like to admit the evidence of their own deputy witness, Groger,--whose actions I want the counsel for the state to explain and justify if he can--who repeatedly fired at a man who was trying to untie the boat so the unarmed men could escape.

"Counsel said that if there was any intention to start trouble men would not have lined up as they were on the dock in an exposed position. And I ask you, if there was not an intention to start trouble why were they kept in the warehouse until the boat had almost tied up? If that was not an ambuscade, what on earth was it? If they did not intend to start trouble why was it McRae waited until the line was out and made fast. Why was it, then, he did not say to the captain, 'Take your boat out?' He said he was afraid they would go somewhere else. Well, when he told those boys they could not land he expected them to go away. Or did he expect them to go away? Which was it?

"The manner in which McRae handled this thing indicates nothing so much as that he intended to get them there and administer to them another of the things that he calls a lesson, another of the things that other people call infamous, damnable brutality.

"Counsel says there have been mistakes made. He doesn't want to apologize for them, but clearly he doesn't want to be held responsible for them. There were mistakes made. Beverly was one! The "Wanderer" was one! From the beginning to the end of all their operations in Everett everything has been a mistake--a mistake because the ordinary processes of law and the rights of other people were ignored. There was no ordinance prohibiting speaking. The boys were yielding implicit, careful obedience to such law as there was. McRae unblushingly tells you that the reason he made arrests was because there were labor troubles in Everett and the shingle mill owners didn't want things embarrassed by the truth, by the disclosures contained in this little report of the Industrial Relations Commission.

"They were not afraid of the I. W. W.'s going up there to incite violence, to advise disorder, to invoke a reign of terror. Reigns of terror are the employers' specialty! They were afraid of cold fact. Never a man went up there to speak on the street and used that little Industrial Relations report but was thrown in jail for it--Thompson, Rowan, Feinberg, Roberts, all.

"It's nice to enjoy the powers, the position and authority of a dictator who can repeal, amend and modify, ignore, disregard laws when it suits his fancy, but it's kind of tough on other people. That's what McRae did!

"On the 5th of March, nearly nine weeks ago, His Honor called this case from his bench 'State versus Thomas H. Tracy,' and my friend Mr. Cooley rose from his chair and said 'Your Honor, the State is ready.' I say to you, Mr. Cooley, you slandered the fair name of your state! What has the State of Washington to do with this thing? The name of the State of Washington in such a case as this should stand for law and order and decency. The State is supposed to protect the innocent against abuse and injustice and you who are now running this case do not now maintain these things, or if you do, you protect them only when convenience requires it.

"It is not the State of Washington versus Thomas H. Tracy at all, and if the decent people of Everett who know the facts could decide what course this action should take it would never be here. Even the title of the case is a mistake. It is the case of the Commercial Club of Everett, the mill owners of Everett, against Labor. This is an attempt, just as all the actions for months have been an attempt, to keep Labor out of its rights in Everett. The same people who took possession of the machinery of law in Everett, who took possession of the sheriff and furnished him with guns and clubs and murderous things like that and instructed him how to act, the same people who employed detectives to set fires in order that they might manufacture evidence and public sentiment against these boys, those same people are today prosecuting this case.

"I don't know where Governor Clough was on November 5th. I suspect he was not anywhere where there was any danger, but I know the smoke had not left the decks of the Verona before he was hot-footing it to the telegraph office,--Governor Clough, not the prosecuting attorney, not the sheriff, nobody but Clough and Joe Irving, the man who was so drunk that he beat up Schofield,--to send a telegram to Judge Burke of the Chamber of Commerce of Seattle, to the Mayor of this City and to the Chief of Police of this City to arrest the whole bunch of them.

"Then right away they got their other emissaries at work, Reese and Smith, down here with two fingers out of the door of a darkened cell, deciding for the State of Washington who should be prosecuted in this case, and H. D. Cooley, who surely then was not a prosecuting attorney, giving them legal counsel and directing their energy, taking out the men, preparing statements, and getting ready for the work he was going to do in this case, because his employers wanted it.

"There is a conspiracy in this case, a conspiracy supported by evidence, a conspiracy of men in the Commercial Club to take over the machinery of government, and by it club these fellows out of their rights, club them out of Everett, club them out of all contact with the workers in order that they might not bring to them the gospel of their organization.