A DEATH AT CROOKED CREEK

by Marianne Wesson

Mimi Wesson’s research into the famous Hillmon case– its history, its characters, and its lasting consequence– animates her book A DEATH AT CROOKED CREEK: THE CASE OF THE COWBOY, THE CIGARMAKER, AND THE LOVE LETTER, published in 2013 by New York University Press.

You can order a copy of the book, if you wish, here or here.

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Here’s what Publisher’s Review said about the book on April 8, 2013:

Known for her legal thrillers, University of Colorado law professor Wesson (Chilling Effect) employs her expertise to great effect in this exhaustive study of a famous crime that left its mark on the American legal system. The 1879 murder of John Hillmon, which initially seemed like an open-and-shut case, gained notoriety when his life insurance providers, suspicious of fraud (they didn’t believe the body was Hillmon’s), refused to pay his widow. The result: six trials over a quarter century and a Supreme Court ruling that led to a new exception to the hearsay rule, a “durable and influential” precedent nevertheless embroiled in controversy. Wesson juxtaposes the history of the Hillmon trials with her own 2006 attempts to resolve the mystery of the dead man’s identity through DNA testing and other methods, giving readers an opportunity to watch as she loses her historical objectivity and relinquishes her “sympathies” to Hillmon’s widow. While she admits to fabricating some of the narrative (e.g., conversations between long-dead parties), she backs the story up with copious documentation, bringing this bizarre and convoluted tale to life. Wesson’s efforts result in a true crime drama that’s well researched, easy to read, and oddly compelling.

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The Washington Post reviewer had some doubts about the book’s mixture of fact and fiction:

On a chilly evening in March 1879, a young Civil War veteran named John Hillmon, traveling with his friend John Brown across the wilds of western Kansas, was accidentally shot and killed while unloading a wagon at a remote campsite near Crooked Creek.Then again, maybe he wasn’t.

Certainly someone died out there on the prairie that night, and Brown, the only eyewitness, insisted it was Hillmon. So, too, did the alleged victim’s wife, Sallie Quinn Hillmon, who identified the moldering body some weeks later. But the three corporations that had insured Hillmon’s life just prior to his journey had other ideas. To them, the fact that this poor cowboy drifter had so recently bought policies in the amount of $25,000 — a staggering sum in 1879 dollars — seemed more than a little suspicious. Smelling insurance fraud, they refused to pay the claim. And so was born one of the longest and most consequential legal battles in the history of American jurisprudence.

The Hillmon affair eventually generated an almost endless stream of court procedures, including two coroner’s inquests, six jury trials, a court of appeals ruling and two separate reviews by the Supreme Court. When the case was finally settled (out of court, 24 years later, with Sallie Hillmon’s lawyers getting most of the settlement money), it had still not produced any real certainty that the man killed at Crooked Creek was indeed John Hillmon. But the case did leave one important legacy: the invention, in the first Supreme Court review, of a basic rule of evidence that essentially rewrote the law of the land and that remains highly controversial to this day.Marianne Wesson’s exhaustive look at this real-life Jarndyce v. Jarndyceapproaches its subject from several angles. The bulk of the book is a narrative of the decades-long litigation saga, intertwined with some swift excursions into background history and the story of her own recent efforts to have the body exhumed and subjected to modern forensic analysis. As a law professor at the University of Colorado, Wesson is particularly well-equipped to make sense of the central legal issue of the case — namely, the admissibility as evidence of a love letter from a missing cigarmaker to his fiancee, the contents of which suggested that he, not Hillmon, was the man killed at Crooked Creek.Sallie Hillmon’s lawyers insisted that the letter was hearsay and therefore inadmissible in court; the insurance companies’ lawyers disagreed, as did the Supreme Court when it reviewed the case. Details of the justices’ ruling, which created an entirely new exception to existing hearsay rules, are too complex to go into here. But after reading Wesson’s analysis, I’m inclined to agree with her that the court “stumbled profoundly” in the case, basing its decision not on any rigorous legal logic but on a belief that the Hillmons had in fact committed fraud and shouldn’t be allowed to profit from it.But Wesson stumbles profoundly herself by larding this otherwise exemplary book with long fictional sections depicting behind-the-scenes legal machinations and other entirely undocumented material. To be fair, she does alert us in the endnotes to these various acts of imagination, but some of her re-creations are based on nothing even remotely suggested by the historical record. (“My inventions,” she reports in one note, “include Polly, Eliza, the lemonade, John Brown’s sojourn in jail, and Reuben’s role in getting him the job at Fulton’s mill”; a few other notes read simply, “This scene is altogether invented.”)

This dubious technique is especially problematic when Wesson takes us into Sallie Hillmon’s private musings. Since no one — Wesson included — really knows whether the alleged widow was actively engaged in a large-scale fraud, her interior monologues must necessarily be fudged, scrubbed clean of any stray thought that might contain an implicit revelation of her innocence or guilt. The effect is entirely artificial — an omniscient narration that knows everything except the really important elements of the story.

By blurring the lines between the factual and the fanciful, the book continually undercuts its credibility. Wesson, who has produced several well-received novels, knows how to write fiction, and her invented scenes are full of lively touches of description and characterization. But here her skills as a novelist sabotage her obvious strengths as a researcher, historian and legal scholar. “A Death at Crooked Creek” could have worked well as either fiction or narrative nonfiction; by trying to be both, it ends up compounding the perplexities of the Hillmon case. It’s a sad irony that a book so centrally concerned with the question of reliable evidence should be undone by so much outright hearsay.

(MW replies: I appreciate this reviewer’s praise for my abilities as novelist and historian, and understand that mixing the two enterprises in a single volume was risky. I struggled with the question of whether to write this book as history or fiction, and in the end was unwilling to give up either the value of the thoroughly documented historical narrative or the access to the interior lives of the characters that was possible only if some of the story were invented. I actually thought that explanation about “Polly, Eliza, the lemonade,” etc. was rather funny, but I guess he did not. I am pleased that all reviewers have noted my candor in making clear to the reader exactly what is documented and what is invented. As for “compounding the perplexities,” this case is nothing but perplexities from beginning to end, and it was never my intention to make them go away– only to expose what is known about the Hillmon case, and to identify what is not and never can be.)

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The following review by Robert R. Dykstra appeared in the journal JUDICATURE in the May/June 2014 issue:

This is one really unusual work of legal history. Its author, Marianne Wesson, is a University of Colorado law professor as well as a crime novelist, author of the Cinda Hayes mysteries. What she has written here is a structural experiment, an eccentric mix of three modes, the narrative slipping back and forth from one to another, not always adhering to chronology. These modes are: (1) courtroom description and legal analysis, (2) the author’s search for the identity of a 127-year-old corpse, and (3) imagined reconstructions of actions and thoughts of men and women who people the case of Hillman v. Mutual Life Insurance Company et al. This third, fictive mode always appears in the present tense, clearly setting it off from the factual material. At first I found these interruptions annoying. Yet I soon saw that the fanciful interludes were not meant as “improvements” on what is known, but simply a nice way of personalizing, without evident exaggeration, the litigator, Sallie Quinn Hillman, and others associated with the case. Just an example: “Sallie has noticed in recent months that her speech and even her thoughts have begun to employ the serpentine rhythms of the law and make use of its mysterious terms …. She sometimes thinks it a pity that women are not permitted to be lawyers …. She is in any event sure that a woman’s lot would not be pleasant among the pestering and overbearing fellows who populate this stately building and pollute its grandeur with their harsh conversations and sudden barking laughter” (p. 83). An especially evocative passage imagines law clerk Ezra Thayer’s early morning walk through a bustling downtown Washington to the steps of the U.S. Supreme Court (p. 170). Another nicely realized scene reconstructs the deposing, in a dusty Missouri mill-yard, of an uneasy witness by an insurance company lawyer while a laconic Kansan with star, handgun, and arrest warrant lounges obtrusively nearby (pp. 47-50). Such fictions are perfectly unnecessary, of course, but they add lyric grace notes to the factual narrative. In the hands of the average academic, such idiosyncratic snippets would be clumsy at best, but Wesson, a marvelously talented writer, pulls them off with breathtaking aplomb. The second of the book’s three modes is almost as audacious: Wesson occasionally inserts herself into the narrative, telling us what it was like, for example, researching files unopened for a century while the archives clock ticks ominously toward closing time, or the grisly excitement of a cemetery exhumation. As for the case itself, Hillman v. Mutual Life began in 1878 at Lawrence, Kansas, when Sallie Quinn, a waitress, married ex-cowboy John Hillman, an Indianan seeking his fortune in the West. For reasons never revealed, Hillman took out life insurance policies with three East Coast companies for a potential payout totaling $25,000. A few months later, in 1879, Hillman responded to an emerging (but brief) sheep-raising boom in Kansas by setting forth with a friend to discover a good site on the public domain for a sheep ranch. But while camped for the night on Crooked Creek west of Wichita, a Sharps rifle, evidently the model with an easily dislodged external hammer, fired a round into Hillman’s head, killing him instantly. An accident, said the companion, caused when pulling the gun from a wagon. A coroner’s inquest exonerated the companion, and the corpse later was carried to Lawrence, identified by Sallie as her husband, and reburied. The three companies suspected an instance of “graveyard insurance,” whereby a policyholder pretends to have died, but he and co-conspirators substitute a different body in his grave, collect the money, then split the proceeds. They refused to pay up, and Sallie Hillman sued. The case was adjudicated no less than six times: 1882 (hung jury), 1885 (hung jury), 1888 (verdict for Sallie, but overturned by the U.S. Supreme Court), 1895 (hung jury), 1896 (hung jury), 1899 (verdict for Sallie but overturned by the Supreme Court). After 21 years of litigation, the exhausting affair finally ended with an out-of-court settlement in 1903. The key issue through all these years of changing lawyers, judges, and courts was simply whether or not Hillman’s grave contained Hillman. The companies claimed that the corpse was that of Frederick Walters, a wandering cigarmaker; their evidence was a note written by Walters to a girlfriend back in Iowa saying that he planned to leave Wichita “with a certain Mr. Hillman, a sheep trader, for Colorado or parts unknown to me” -after which he was never heard from again. The company lawyers introduced this “Dearest Alvina” letter into evidence at the first trial, but by the third trial Sallie’s lawyers finally had cottoned to the fact that it was hearsay and thus inadmissible as evidence. The judge agreed. Sallie Hillman’s best rebuttal did not emerge until the sixth trial, when her lawyers put a Leavenworth cigar manufacturer, Arthur Simmons, on the stand. Simmons said-and had records backing it up-that he had briefly employed Walters two months after Walters purportedly died. Meanwhile, in 1892 the Supreme Court justices, in voiding the 1888 verdict for Sallie, held thatthe Dearest Alvina letter was not hearsay, since it described the declarant’s intentions. They therefore invented an entirely new exemption to the hearsay rule for out-of-court statements. Known ever since as the “Hillman rule,” it is limited to the intentions, plans, and states of mind of declarants only, not to anybody else. How about the conflict between the Dearest Alvina letter and the testimony of Arthur Simmons? Professor Wesson came to believe that the letter was a fraud, penned by Frederick Walters, true enough, but dictated by W. H. Buchan, an insurance company attorney. In return, Walters was promised a monthly salary for the rest of his life, so long as he disappeared, never revealed his true identity, and kept Buchan informed of his address. “It could have happened that way,” writes Wesson. “The longer I think about it, the more I believe it must have happened that way, more or less” (p. 325). And what about the body in the grave? Like the crime novelist she is, Wesson decides to solve that mystery with a DNA test. She located a Hillman descendent living in Montana, who agreed to contribute his DNA, and in 2006 she received permission to have the body exhumed by Professor Dennis Van Gerven, an anthropologist from Boulder, aided by a few graduate students. Alas, the bones had been so scoured by ground water over the years that the extraction of useful DNA proved impossible. But Wesson had one more string to her bow. Three years earlier, at the National Archives branch in Kansas City, she had discovered in the Supreme Court files for Hillman a trove of seven photographs: two studio portraits of Frederick Walters, three of John Hillman, and-most importantly-two (front and profile) of the corpse briefly displayed at Lawrence in 1879. Ingenious photoshop work by Van Gerven, superimposing the corpse’s facial profile against the facial frontal view of Walters, then of Hillman, effectively demonstrated that ·the corpse could not have been Walters. In the absence of any other candidates, it must have been John Hillman, just as the determined Sallie had maintained for so many years. Mystery solved and Sallie Hillman vindicated after more than a century. Unfortunately, says Wesson, the rule of law rising out of the case, the Hillman exception, lives on, even though based on fraudulent, or at least very questionable, evidence. * ROBERT R. DYKSTRA is Emeritus Professor of History and Public Policy, SUNY Albany. He is the author of two books on frontier society and politics and, with JoAnn Manfra, is completing a third, Getting’ Out of Dodge: Homicide, Moral Discourse, Cultural Identity. (dykstra39@charter.net)

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The following review essay by Randy Gordon appears in the journal THE GREEN BAG in the Fall 2014 issue:

If we need current, collateral proof that Professor Maitland was spot-on in his observation that all law is history, then Marianne Wesson’s A Death at Crooked Creek provides a copious dose.[1] And it is a worthy successor to that other great investigation of death on the Great Plains, Truman Capote’s In Cold Blood. Like Capote, Wesson skilfully weaves narrative fabric out of a legal record, historical context, and imagined scenes and dialogue (although she’s much more forthright than Capote on this latter point!). Unlike Capote, though, who had access to the principal actors and fresh records, Wesson had to contend with a cast that had long disappeared from the earth and documents that crumbled to dust at her touch.

The book is principally an investigation of a standard textbook evidence case, Mutual Life Ins. Co. of New York v. Hillmon,[2] but it pauses to consider a range of larger cultural narratives that came to define and describe life on the frontier. I have written about the case myself on a couple of occasions—it has a particular resonance for me, I suppose, because I grew up in western Kansas and it begins just a few years before my grandfather (who lived until the late 1980s) arrived in Kansas in a covered wagon with his parents and siblings.[3]

The reported story (i.e., the one set forth by the Supreme Court) is fairly easy to capsule, and it’s worth brief examination here. Towards the end of 1878, John W. Hillmon purchased $25,000 of life insurance (a considerable sum in those days) before setting out from Lawrence, Kansas for points west. The ostensible purpose of his trip was to meet up with a friend, John H. Brown, who would accompany him on an expedition to find and purchase land for a ranching operation. Brown and Hillmon connected in Wichita sometime in February, 1879 and around March 5 headed southwest towards Medicine Lodge, where they stayed for a few days before decamping for a relatively unpopulated area called Crooked Creek. There, tragedy befell Hillmon: Brown’s rifle discharged as he was unloading it from a wagon and a bullet struck Hillmon in the head. The verdict after two coroner’s inquests was “accidental death.” That probably would have been that had not Hillmon’s wife of six months, Sallie, made a claim on the insurance policies, setting in motion litigation of Bleak-Housian proportions – spawning a third coroner’s inquest, six trials (and two trips to the Supreme Court) and lasting into the next century. The third trial gave rise to the first trip to the Supreme Court.

Sallie Hillmon’s claim bore facial indicia of fraud: Hillmon was of relatively modest means (compared to the amount of insurance), a relative had paid part of the insurance premiums, the couple had been married only a short time, and Hillmon’s “death” came right on the heels of the multi-policy purchase. Unsurprisingly, given these circumstances and a general proliferation of insurance fraud in the late nineteenth century, the insurance companies refused to pay voluntarily and litigation ensued. In 1888, after two trials had already resulted in hung juries, the third trial was held as a consolidation of three separate actions (one against each insurance company).

At the trial, Sallie’s case rested on evidence supporting the gun-fell-out-of-the-wagon story that I just described. Defendants, however, “introduced evidence tending to show that the body found in the camp at Crooked Creek on the night of March 18th was not the body of Hillmon, but the body of one Frederick Adolph Walters.”[4] There was “much conflicting evidence” on the point but in the defendants’ telling “Walters left his home at Ft. Madison, in the State of Iowa in March, 1878, and was afterwards in Kansas in 1878, and in January and February, 1879; that during that time his family frequently received letters from him, the last of which was written from Wichita; and that he had not been heard from since March, 1879.”[5] To tie Walters to the corpse at Crooked Creek, the defendants tried to introduce two letters from Walters, one written to his sister, one to his fiancée. The sister’s letter had been lost, but the fiancée’s letter was available. The trial court refused to allow the sister to testify as to the contents of her letter or to allow the contents of the fiancée’s letter to be read to the jury. For the Supreme Court’s purposes, the two letters contained evidence of the same operative fact, so the focus both for the Court then and for Wesson now is on the letter that was physically available.

The fiancée, Alvina D. Kasten, testified (by deposition) that she was 21 years of age, a resident of Ft. Madison, and engaged to Walters, whom she last saw in March of 1878. After Walters left, she corresponded regularly with him, receiving a letter from him about every two weeks until March 3, 1879, when she received his final letter. That letter was dated at Wichita, March 1, 1879, and signed by Walters; the envelope was postmarked “Wichita, Kansas, March 2, 1879.” Here’s what it said:

Dearest Alvina: Your kind and ever welcome letter was received yesterday afternoon about an hour before I left Emporia. I will stay here until the fore part of next week, and then will leave here to see a part of the country that I never expected to see when I left home, as I am going with a man by the name of Hillmon, who intends to start a sheep ranch, and as he promised me more wages than I could make at anything else I concluded to take it, for a while at least, until I strike something better. There is so many folks in this country that have got the Leadville fever, and if I could not of got the situation that I have now I would have went there myself; but as it is at present I get to see the best part of Kansas, Indian Territory, Colorado, and Mexico. The route that we intend to take would cost a man to travel from $150 to $200, but it will not cost me a cent; besides, I get good wages. I will drop you a letter occasionally until I get settled down; then I want you to answer it.[6]

The trial court ruled that this letter, and the one to Walters’ sister, were inadmissible hearsay. So when Sallie prevailed at trial, the defendants included this evidentiary ruling as a point of error on appeal.

In the Court’s view, “[t]he matter chiefly contested at the trial was the death of John W. Hillmon”—i.e., “whether the body found at Crooked Creek on the night of March 18, 1879, was his body, or the body of one Walters.” The defendants introduced evidence tending to show that Walters was at Wichita in early March, that he had not been heard from since, that his body had been found at Crooked Creek, and that he went to Crooked Creek between early March and March 18. Thus, “[e]vidence that just before March 5th he had the intention of leaving Wichita with Hillmon would tend to corroborate the evidence already admitted, and to show that he went from Wichita to Crooked Creek with Hillmon. Letters from him to his family and to his betrothed were the natural, if not the only attainable, evidence of his intention.” And “whenever the intention is of itself a distinct and material fact in a chain of circumstances, it may be proved by contemporaneous oral or written declarations of the party.”[7]

Thus is born the modern “statement of intention” exception to the hearsay rule. This exception has been much criticized, and it does seem overbroad. (Could a statement that “I’m going to do my homework” be used later as collateral proof that the dog did eat it?) So why did the Court (largely) invent this exception? In earlier writings on the subject, Wesson made a good structuralist argument that “narrative exigencies” rather than “policy views” drove the Court’s decision.[8]Specifically, she argued that the Court was compelled to read the story before it as a “romance” into which the “Dearest Alvina” letter (in its very artlessness) fits perfectly as a signifier of truth. Now, in A Death at Crooked Creek, she also demonstrates that the Supreme Court was convinced that the case was easily characterized as an example of fraudulent “graveyard insurance.” In this respect, she draws close to my own view that the Supreme Court was constrained to read the letter in light of the then-dominant view of the frontier as a seething cauldron of lawlessness. In other words, the Court created a rule of evidence that would allow the construction of a better, more truthful story—one in which John Hillmon was a murdering, thieving desperado who preyed on a hapless young adventurer out to “strike something better” on the frontier. In any event, this letter animates Wesson’s foray into the past, which turns out to be far more equivocal than the Court has led us to believe.

Legal narratives—viz., the stories presented at trial and constructed in case opinions—are, as Neil MacCormick notes, “partial in every sense.”[9] No judge or jury can ever determine “what really happened” down to the minutest detail: the legal system trades in approximations. The task that Wesson sets for herself in her new book is to construct a closer approximation. And she does this through an effective and engaging narrative structure that is one part case history, one part social reconstruction, and one part present-day memorial of the twists and turns of her own investigation (which includes the exhumation of Hillmon’s grave and a search for DNA evidence). Along the way, she introduces us to an array of familiar (and not-so-familiar) characters, ranging from “Uncle Jimmy” Green, the first Dean of the Law School at the University of Kansas, who appeared at one of the inquests and conducted all six trials; Mary Elizabeth Lease, a feminist icon; populist political figures like Governor Lorenzo Lewelling and Congressman “Sockless Jerry” Simpson; and Ezra Ripley Thayer, a one-time Supreme Court clerk and future Dean of Harvard Law School. These characters converge in an imaginative way that ably demonstrates the Janus-faced nature of Kansas: one side peering towards a mythical past of agrarian simplicity, the other cast in the direction of Wall Street investment and its industrial fruits.

At the end of the day, Wesson is left (and leaves us) in a state of suspense that is nonetheless satisfying. Probably everybody was lying in one respect or another. Probably a skewed view of the West animated the Supreme Court. Probably Hillmon died at Crooked Creek and is buried in Lawrence. Probably Walters was alive and well at the time of the trials. And probably the “Dearest Alvina” letter is either an outright fake or at best full of lies. (In either case, it’s probably an invention of the insurance companies.) These ‘probablies” are not hollow, however. They serve to remind us that law is a historical product, which is to say that it is a product of a multiplicity of discourses—of narratives. Thus, although the creators of the Hillmon hearsay exception could not stand outside the narrative stream that surrounded them and be “objective” observers of the evidence, we—from the privileged perspective of the present—can see that particular legal rule “grow[ing] out of a particular place and time.”[10]

Thus conceived, the Hillmon opinion is, as Hippolyte Taine suggested with respect to all documents, “simply a mold like a fossil shell, an imprint similar to one of those forms embedded in a stone by an animal which once lived and perished.”[11] So just as we can study a fossil to form some idea of the animal that formed it, so may we study a document to comprehend its author. Under this way of thinking, a document can be described as a momentary fix and snapshot of then-extant cultural crosscurrents. Thus, contra strict textual constructionists, “[i]t is a mistake to study [a] document as if it existed alone by itself. That is treating things merely as a pedant, and you subject yourself to the illusions of a book-worm.” The teaching points here are two-fold. First, a historicist point of view can help us discover why a flimsy rule like the statement-of-intention exception to hearsay was adopted in the first place. (As Wesson wryly points out, history is replete with instances of men lying to women about where they were going or what they intended to do.) Second, it puts us on guard as to our own law-making, which just as inevitably takes place within a causal stream, the influences of which are easily overlooked (or perhaps impossible to see) in a moment of decision undertaken in haste or with particular results in mind.

Ultimately, we can only make of Wesson’s investigation what we will. But the true value of the book is in the telling, not the tale.

Author note: Randy Gordon is a partner at and chair of the antitrust and trade regulation practice of Gardere Wynne Sewell LLP, and an adjunct faculty member in law and English at Southern Methodist University. The views expressed in this article are the author’s alone and do not necessarily represent those of the firm or its clients.

Footnotes

[1] Marianne Wesson, A Death at Crooked Creek: The Case of the Cowboy, the Cigar Maker, and the Love Letter (2013).

[2] 145 U.S. 285 (1892).

[3] Randy D. Gordon, Rehumanizing Law: A Theory of Law and Democracy 54-58 (2011); Randy D. Gordon, Truth in Context: Sketching a (New) Historicist Pedagogy, in The Moral Imagination and the Legal Life 189, 195-200 (Zenon Bankowski & Maksymilian Del Mar eds., 2013).

[4] Id., 287.

[5] Id.

[6] Id., 288-89.

[7] Id., 294-95.

[8] Marianne Wesson, Particular Intentions: The Hillmon Case and the Supreme Court, 18 L. & Lit. 343, 350(2006).

[9] Neil MacCormick, Rhetoric and the Rule of Law 221 (2005).

[10] Brook Thomas, Reflections on the Law and Literature Revival, 17 Critical Inquiry 510, 535 (1991).

[11] Hippolyte Taine, History of English Literature—(1864) trans. Henry Von Laun, rev. ed. (1864; Colonial 1900), excerpted in The Modern Tradition 254, eds. Richard Ellman & Charles Feidelson, Jr (1965).

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AMERICAN HISTORY magazine (August 2013 issue) recommended and described the book as follows:

A Death at Crooked Creek: The Case of the Cowboy, the Cigarmaker. and the Love Letter by MarianneWesson (NYU)

Modern forensic techniques and reexamined evidence unearth a potboiler tale-and question a Supreme Court decision based on it.

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If you’d like to learn more about the Hillmon case, and this book, go here or here.

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