Trial law prohibits the admission of statements made outside the court as hearsay, statements said or written outside the trial and the bounds of an oath to tell the truth, beyond the ability of the judge and jury to observe and assess their delivery or attorneys to cross-examine. Such claims aren’t to be taken as true.
But it’s subject to exceptions — about 40. Certain circumstances make those statements reliable — no man wants to meet his maker with a lie on his lips, as the Victorian saying goes, and so deathbed confessions are admissible in court. As are written business records or outbursts delivered without a chance for premeditation.
So a hearsay exception that allows for intention — what you say you plan to do — that stems from an 1892 Supreme Court decision caught the attention of Marianne Wesson, a University of Colorado law professor.
“It’s quite easy to lie about your intentions,” says Wesson, which is why she says she kept wondering why the exception existed at all. “Every time I taught this case I was puzzled by it. … It took me 25 years of being familiar with the case to know I wanted to solve the mystery behind it.”
The facts of the case and how it unfolded both through the courts and her own life are covered in her latest book, A Death at Crooked Creek: The Case of the Cowboy, the Cigarmaker, and the Love Letter. Wesson, who teaches a law and literature course and also wrote the legal thriller Chilling Effect, says she is particularly interested in this intersection between how stories are crafted and how they influence law, and describes this latest book as an effort to once again merge those different enterprises of law and literature.
The tale is multifold: a rigorous historical documentation of a criminal case that saw the courtroom six times, including two drawn out spells at the Supreme Court; a cautiously fictional account of how the characters might have been; and a chronicle of her own plaguing obsession with the evidence of the case — and notable lack thereof.
The dispute went something like this. John Hillmon was a Civil War veteran, a poor man, recently wed to a seamstress named Sallie. He left his home with a traveling companion.
The two men traveled through desolate areas and ended up, one late winter night in 1879, at a campsite near Crooked Creek in Kansas. Not long after, Hillmon’s traveling companion knocked on a stranger’s door. He said his gun had misfired and he’d accidentally shot his friend in the head.
A body was found, crumpled over, dressed in Hillmon’s clothes and boots, a bullet in the head. But was it Hillmon? The news reached Sallie, the new, young widow, and may have ended as nothing more than a tragic accident, except for one crucial part.
“[Hillmon] did something very interesting before setting out,” Wesson says. “He took out a life insurance policy for $25,000, roughly $600,000 today, and borrowed money for the premium from Sallie’s cousin.”
The insurance companies claimed the dead man was not Hillmon at all and refused to pay his bereaved wife. A private investigation paid for by the insurance company began. Enter a missing cigarmaker, who apparently crossed paths with Hillmon shortly before his death. Their meeting is mentioned in a love letter that the cigarmaker, Frederick Adolph Walters, wrote to his fiancée, which was introduced into evidence as the 86th of 88 trial court errors the insurance companies listed when plying the Supreme Court to hear the case. In the letter to his fiancée, Walters states that he has been offered a job on a sheep ranch by a man named Hillmon who will pay him better wages than he can hope to make selling cigars.
The insurance company contended that Hillmon was not the victim of a shooting, but a crafty criminal, responsible for staging his own murder at the peril of the cigarmaker — whose fiancée and her family testify that they have never seen him again. They insist that the body later buried as Hillmon’s was Walters.
A photo of the body in its coffin.
The competing stories see the inside of a courtroom for the next 25 years. All the while, Sallie does not see a penny.
Sallie Hillmon’s lawyers’ called the letter hearsay and thus inadmissible in court. But the Supreme Court justices ruled to admit the letter as evidence. That exception changed the role of the grapevine in law.
Wesson writes that the justices must have made the exception believing that the insurance companies were right — and they invented a new way to admit this form of hearsay simply to make sure Hillmon didn’t get away with it.
But the question came back to one point.
“The only issue in the trial was who the dead guy was,” Wesson says. DNA technology did not exist at the time, she points out, and police had only the inklings of crude forensic science.
“I decided I was going to find who the dead guy was,” she says.
This moment of realization would lead her on a hunt through old, forgotten records and her own tangles with laws regulating historic gravesites.
“I’m going through a dusty stack of archives in Kansas City — mostly handwritten papers — nothing is in order, 1892 is next to 1895, it was a mess. I open an envelope and these photographs fall out,” Wesson says. “I took them to a friend in the anthropology department, Dennis Van Gerven, and asked if he could tell me which photo belonged to the photograph of the corpse. He looked at them and he pointed to a particular feature, the schnozz, and said, ‘Look at that!’”
“Are you sure?” she asked Van Gerven.
“Hell no,” he replied.
“What would it take for you to be sure?” she countered.
“We’d have to dig up the remains,” he said.
“If I didn’t follow through, then people would ask me for the rest of my life why I didn’t use DNA analysis,” she says of why she was quick to pursue this avenue.
Workers exhume the body. | Photo by Ben Herr
The body of the dead man rested in an unmarked grave in a Kansas City cemetery — and a series of requests to disinter him ended in frank refusals for a year. Still obsessed, and unwilling to give up against red tape, Wesson worked with a law firm in Kansas to negotiate with the city and agree to a set of conditions. These included only having the remains up for 24 hours, only taking a small part of the remains for DNA testing and avoiding promotion in the media. The graveyard is a resting place to many Civil War veterans, and the city was cautious about whether a spectacle like this would come across as disrespectful.
“The day itself was a perfect graveyard day. It was rainy and gray and we had big, black umbrellas. My main emotion was of anticipation,” Wesson says.
The remains were sparse. The body had been waterlogged, and in the end, there was nothing that could be DNA-tested.
“There wasn’t really anything you could call a corpse, I’m afraid,” Wesson says. “I was overwhelmed with sadness for the loss. It wasn’t a story anymore. … Just the proximity to the bones, it struck me, these people were alive once, and they lived and loved just like me.”
“We were reasonably sure. The remains were fragmented and had been under water for years,” Wesson says. “The DNA leached out, so Dennis returned to the photographs. He was able to prove who the remains did not belong to.”
Which is to say, it was not the cigarmaker’s.
One of the agreements with the city was that if the crew was able to ascertain an identity, a name marker could be placed on top of the stone. The marker reads: John Wesley Hillmon, Jan. 11, 1948 – Mar. 17, 1879.
The book details the long-neglected evidence, along with Wesson’s psychological chronicle of understanding her own obsession with a case that is more than 100 years old.
“I still live with the uncertainty,” she says. “Coming to terms with how to live with that was the most significant part of the journey.”
Marianne Wesson will be speaking about A Death at Crooked Creek at 7:30 p.m. Aug. 28 at the Boulder Book Store, 1107 Pearl St. Additional information on her book and her research can be found at http://thehillmoncase.com.