Barber County Kansas
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Barber County Kansas |
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http://www2.ljworld.com/news/2006/feb/02/petition_filed_dig_old_grave/?city_local
Petition filed to dig up old grave
City supports project to exhume
127-year-old remains at Oak Hill Cemetery
By Sophia Maines (Contact)
Thursday, February 2, 2006
The city will support an unusual request
to unearth the remains in a century-old grave at Oak Hill Cemetery.
“We think
it’s to the public interest to find out who is buried there,” City Manager Mike
Wildgen said.
Two University of Colorado professors want to exhume the
remains of a 127-year-old unmarked grave at Oak Hill Cemetery. Anthropology
professor Dennis Van Gerven and law professor Marianne Wesson both are working
on the project. They plan to use forensic evidence to solve a dispute that in
1892 was taken to the U.S. Supreme Court and generated an important piece of
federal evidence law.
A petition to exhume the remains was filed Wednesday in
Douglas County District Court, said Mackenzie Murphy-Wilfong, an associate with
Spencer, Fane, Britt and Browne, a Kansas City, Mo., firm that is doing pro bono
legal work for the project.
Though Wildgen said the city supports the
project, which he said is being done with care, a judge ultimately will decide.
Mark Thornhill, partner with Spencer Fane, said the request was unusual.
“There’s not a whole lot of cases around the country dealing with exhumations,”
he said.
The professors hope to conduct their work in March.
The site
could hold the remains of either John Hillmon or Frederick Adolph Walters. In
1879, Hillmon set off from Lawrence with a companion, John H. Brown. Later,
Brown appeared at a home outside Medicine Lodge, southwest of Wichita, and said
he accidentally shot Hillmon while unloading his gun.
But insurance companies
that had underwritten life insurance policies on Hillmon suspected fraud. They
believed Hillmon and Brown killed a third man, not Hillmon, to collect on
insurance. That man was Walters, who reportedly sent his girlfriend a letter
announcing his plans to travel with Hillmon.
The case was tried six times and
taken up by the U.S. Supreme Court twice. The court’s first ruling created an
exception to the hearsay rule known as the “state-of-mind” exception, dealing
with statements describing the intentions of the speaker or writer. The court
said the letter should have been allowed for evidence in a case because it met
this description.
Jim Mielke, a KU professor of anthropology, said he and
another KU faculty member have known Van Gerven for years and when the CU
professor asked for assistance, they agreed to help. The remains will be taken
to a space in Fraser Hall for the forensic work.
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http://www2.ljworld.com/news/2006/jan/30/gravesite_lawrences_oak_hill_cemetery_might_hold_c/
Gravesite in Lawrence’s Oak Hill Cemetery might hold clues to the mystery of
Crooked Creek
By Charlie Brennan - Special from Rocky Mountain News
Monday, January 30, 2006
The uneasy 127-year sleep of John Wesley
Hillmon is about to be disturbed — again. Assuming, that is, that it’s really
Hillmon lying in the remnants of a simple wooden coffin at an unmarked gravesite
in Lawrence’s Oak Hill Cemetery.
University of Colorado professors Mimi
Wesson and Dennis Van Gerven are planning soon to dig up whatever may be left of
the cattle dealer and sometimes ranch hand, who was reportedly accidentally shot
by his partner on the trail back in 1879.
Their goal is to answer
definitively: Who dwells in Hillmon’s grave?
Though he died in relative
obscurity, Hillmon’s demise soon became a frontier cause célèbre, and today his
name is familiar to most law students and legal practitioners.
The epic
case of Mutual Life Insurance Co. v. Hillmon — which generated no fewer than six
trials and two U.S. Supreme Court rulings over 20 years — gave birth to an
enduring piece of federal evidence law.
The problem is, that law might
have sprung from fraud by insurance companies to counter what they suspected was
an attempt to defraud them regarding the identity of the man who was killed near
Medicine Lodge and now rests in a Lawrence graveyard.
“It’s a great
historical mystery, a window not only onto the law, but onto life in the
frontier in the late 19th century,” said Wesson, a longtime CU law professor.
And, she might have added, a Wild West murder mystery.
John Wesley
Hillmon, born in 1848, married the former Sallie E. Quinn on Oct. 3, 1878, in
Lawrence. A short time later, he decided to venture west with a companion, John
H. Brown.
The pair’s intent was to find and lay claim to some decent
cattle ranching land in the Southwest. The two departed in a light wagon,
passing through the tiny settlement of Medicine Lodge.
On the night of
March 17, 1879, at their campsite along Crooked Creek — now known as Spring
Creek — a man was shot and killed.
Brown went into Medicine Lodge to
report the incident, saying the dead man was Hillmon.
He readily admitted
he had shot his friend in the head accidentally while pulling a rifle off the
wagon.
Two inquests were promptly conducted in Barber County. The first
was inconclusive, but the second supported Brown’s account.
Hillmon was
buried — for the first time.
But because he had died with no fewer than
three life insurance policies in his name totaling $25,000, a more than handsome
sum at that time, Hillmon was destined to stay buried no more than 10 days.
Insurance fraud was rampant in the 1870s. When Hillmon’s widow sought to
collect on the policies, the insurers believed they smelled a rat and refused to
pay up.
Then they set out aggressively to expose the suspected ruse.
The Medicine Lodge Cresset reported on April 15, 1879, that “parties were
sent to this place to identify the body and take it home.
“And now comes
forward divers (sic) and sundry medical experts, versed in the intricacies of
insurance swindling, and propose to choke down our throat the monstrous
falsehood, that Mrs. Sadie (sic) E. Hillmon and the man John H. Brown are
accomplices in a matter of selling human life and blood for money.”
When the body, wearing Hillmon’s clothes and accompanied in the coffin by
Hillmon’s journal, arrived back in Lawrence, another inquest was conducted under
the direction of the coroner — with a far more agreeable result for the
insurance companies.
The coroner later admitted under oath that his and
the assistant county attorney’s fees had been paid by the insurance firms.
According to the Lawrence Standard, the verdict stated that the deceased was
“unknown to the jury,” and that death came to him — whoever he was — “in a
felonious manner at the hands of one J.H. Brown.”
But murder charges were
never pursued against Brown.
Finding a missing man
Instead, the
insurance companies went into overdrive, trying to select a missing man whose
identity they could assign to the cadaver.
After several false starts,
they found a candidate: Frederick Adolph Walters, a 24-year-old man who had left
his home in Fort Madison, Iowa, in 1878 to seek his fortune.
The
insurance companies were aided by several factors.
One is that Walters
had, in fact, gone missing.
The second is that Brown, despite first
having given an official statement supporting his story of accidentally shooting
Hillmon, recanted and gave a sworn affidavit — which he later admitted in a
deposition was done with heavy coaching by an agent of one of the companies —
“admitting” to conspiring with Sallie Hillmon and others to defraud the
companies.
Brown soon retracted his recanting and returned in the first
of the six Hillmon trials to his original account.
But his brief
departure from the original version would cause lasting problems for Sallie
Hillmon’s cause.
Thirdly, and most famously, the insurance companies
produced a letter, ostensibly from Walters to his sweetheart, Alvina Kasten.
A key portion of that letter, authored March 1, 1879, and postmarked in
Wichita the next day, read as follows:
“I will stay here until the fore
part of next week and then will leave here to see 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 expects to start a sheep ranch, and as he has promised me more wages
than I could make at anything else, I concluded to take it for a while, at least
until I struck something better.”
Kasten proved to be a helpful witness
to the insurance companies, identifying photographs of the Medicine Lodge
cadaver as Walters.
A transcript of her deposition, recorded in the
flowing hand of a court reporter and preserved in the National Archives at
Kansas City, Mo., contains this rather skeptical inquiry about her photo
identification, posed to Kasten during cross-examination by a lawyer
representing Sallie Hillmon:
“Now, don’t you think it is rather an
uncertain thing for a person to undertake to swear that they recognize a person
who they have not seen for nearly two years, from the photograph of a corpse
that had been buried several days, then taken out of the ground and exposed to
the air and carried across the country across ninety miles by stage and over 200
miles by railroad in warm weather and then laid about an undertaker’s
establishment exposed to the atmosphere for two or three more days, and then
buried again, then taken up again, and exposed to the air embracing in all a
period of nearly three weeks from the time it was killed, such photograph having
been taken at the last time it was taken up, and after all this had transpired,
don’t you consider that it is very uncertain whether one can make a recognition
from a photograph of such a corpse taken under such circumstances after all the
decay that must have followed and the change that must have naturally taken
place in a body under such circumstances of a person whom they had not seen for
nearly two years?”
After an objection by an insurance company lawyer that
runs for about five pages, Kasten was permitted to answer.
“That is
rather an uncertain thing,” she conceded, “but still the countenance and general
expression of the corpse I cannot help as recognizing as being of Mr. Walters.”
The first two trials to resolve Sallie Hillmon’s suit against the
insurance companies for refusing to pay the claims, conducted in 1882 and 1885,
resulted in hung juries.
The third trial, in 1888, ended with a verdict
returned in favor of Sallie Hillmon.
A key development in that trial was
the trial judge’s refusal to allow the Walters letter to be admitted as
evidence, blocking it as inadmissible hearsay.
The refusal was
immediately appealed to the U.S. Supreme Court, which set aside the verdict and
ordered a new trial.
The trial judge, according to the nation’s highest
court, erred in not admitting the Walters letter as “competent evidence.”
The letter represented an admissible exception to the rule prohibiting
hearsay, the Supreme Court ruled, because it clearly showed the author’s state
of mind and intent.
According to the American University Washington
College of Law Evidence Project, since the Supreme Court’s ruling in the Hillmon
case, it has been settled law that a person’s statement that he intends to do
something can be used as evidence that he carried out the stated intentions.
Codified as Rule 803(1)(b) in 1975 within the Federal Rules of Evidence,
Wesson said the rule “more than nearly any other rule of evidence, owes its
existence to a single decision.”
But Wesson says it may be based on a
lie.
It is the insurance companies, she theorizes, that actually
conspired to defraud Sallie Hillmon, in an effort to dodge payment on her
policies.
The “Walters letter,” she believes, is a fake.
Enter the
stranger
John H. Brown’s first account of the death at Crooked Creek
placed just two men at the scene — him and Hillmon.
But Brown’s second
version, in the affidavit “prepared and urged” on him by the insurance
companies, said three people were actually present. The third man, according to
his affidavit, was a stranger he and Hillmon encountered “on this trip out from
Wichita, about two and one half miles from town. Who Hillmon invited to get in
and ride.”
Brown’s affidavit stated that the man called himself “Berkly,
Burgis, or something like that” and that “we always called him Joe.”
It
was this “Joe” whom Brown later claimed was murdered — by Hillmon — as part of a
conspiracy involving Hillmon, his wife and Sallie Hillmon’s cousin, Levi
Baldwin, to fraudulently collect on the $25,000 in death benefits.
The
insurance companies then built a case that “Joe” was actually Walters —
traveling under an alias — and that Brown’s tale of picking up a stranger who
then turned up dead was consistent with the plans Walters outlined in the
letter.
Wesson, however, finds several problems with this scenario.
One is that Brown’s affidavit — which he would completely recant in favor of
his original story in time for the first Hillmon trial — spoke of their party
being joined by “Joe” after leaving Wichita, headed west.
How then,
Wesson asks, would “Joe” have managed to write to his sweetheart about meeting
Hillmon while westward-bound a number of miles west of Wichita and mail a letter
that recounted such a meeting in Wichita?
More dramatically damaging to
the insurance companies’ story line was the surprise testimony of Henry Simmons,
a Leavenworth cigar factory owner.
After the verdict favoring Sallie
Hillmon was reversed by the U.S. Supreme Court, for reasons that included the
trial judge’s exclusion of the “Walters letter,” the fourth and fifth trials
both ended in hung juries.
The sixth and final trial in 1899 marked the
first time a jury heard from Simmons, appearing as a witness for Sallie Hillmon.
“He testified,” said Wesson, “that two months after the death at Crooked
Creek, he had employed Frederick Walters in his factory to make cigars.”
Simmons even produced employment records corroborating his claim.
Attempted fraud?
Van Gerven, the CU anthropologist who will supervise the
exhumation of the Hillmon grave, thinks the insurance companies attempted a
fraud of their own to combat what they perceived to be a fraud against them.
“I believe the insurance companies, while they were doing it illegally and
immorally, believe they were doing the right thing,” said Van Gerven.
“They believed they were being screwed. This kind of fraud was rampant, and I
think the insurance companies made up their minds that they were going to make
an example out of this one.”
The final trial ended in November 1899 with
a verdict in Sallie Hillmon’s favor.
But, again, the verdict was appealed
to the U.S. Supreme Court, and once more the verdict was reversed — on grounds
unrelated to the admissibility of the “Walters letter.”
The New York Life
Insurance Co. had settled with Sallie Hillmon’s lawyers before the sixth trial,
and the Mutual Life Insurance Co. of New York paid off in July 1900 on the
$22,068 judgment against it from the sixth trial.
But the third policy
holder, the Connecticut Mutual Life Insurance Co., appealed the sixth trial
verdict to the Supreme Court. There, the verdict favoring Sallie Hillmon was
reversed yet again.
There would be no seventh trial. Connecticut Mutual
elected, finally, to also settle with Sallie Hillmon.
The records of Oak
Hill Cemetery in Lawrence state that the body occupying Grave 555 in Section 4
is that of Hillmon.
But Wesson doesn’t believe the insurance companies
ever abandoned their conviction that it is Walters — and not Hillmon — in the
ground.
“They didn’t admit, explicitly or implicitly, that the insurance
claim was valid, or that the body was Hillmon,” said Wesson.
“The whole
generation of lawyers and managers of the insurance companies had changed from
the beginning to end,” said Wesson. “And, finally, some newer people came in and
said, ‘This is insane. We have spent three or four times as much as the face
value of this policy defending this claim. Let’s just pay and move on.’”
Safe for business
The legal battle had been waged for 20 years, Wesson
believes, as a test case through which the companies hoped to show that fraud
perpetrated by wily frontiersmen — and women — would not be permitted to impede
the growth of business.
The insurance companies were so determined to
make the American West safe for business, she is convinced, that they committed
fraud of their own. And she believes the resulting federal evidence law is
saddled with an exception to the hearsay rule based on that fraud.
“I
hope and believe that if we’re able to confirm that this body belongs to
Hillmon, the courts and legislatures responsible for creating and amending the
law of evidence may re-examine the state-of-mind exception with a new eye, an
eye less enchanted by the story of an insurance fraud foiled that has always
propped up the rule,” she said.
The legal rule is particularly worth
re-examination, Wesson contends, because of the shaky premise it advances — that
what a person says they’re going to do is what necessarily occurs.
“On
the contrary,” Wesson contends, “it would seem to be easier to lie about one’s
intentions than about nearly anything else, since the likelihood of being caught
out in a lie is small.
“Any discovery of later acts incompatible with the
expressed intention can always be explained by the simple phrase, ‘I changed my
mind.’”
Paul Bergman, who teaches evidence at the University of
California at Los Angeles School of Law, was intrigued to hear of the planned
exhumation.
But, he said, “I hope they don’t solve it — only because it’s
sort of fun leaving students with this being an open-ended mystery.”
At
the same time, he predicted that a firm determination of the corpse’s identity
won’t matter to the law.
“The (state-of-mind hearsay exception) principle
has been established and has carried through,” he said. “Whoever it is under
there won’t have any effect on the legal system.”
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http://www2.ljworld.com/news/2006/jan/30/dna_skeletal_matching_could_identify_remains/
DNA, skeletal matching could identify remains
By Charlie Brennan -
Special from Rocky Mountain News
Monday, January 30, 2006
Denver — Compared with some dead bodies Dennis Van Gerven has examined, the
127-year-old remains in the grave of John Wesley Hillmon are downright fresh.
Van Gerven, a professor of anthropology and President’s Teaching Scholar at
the University of Colorado, made a name for himself studying health and disease
in ancient populations of the Nile Valley. He is also known for his extensive
collection of mummified human remains from Sudanese Nubia.
So, trying to
confirm who’s in the grave of a Kansas cowpuncher reportedly killed in 1879
should be a snap, right?
Not necessarily.
“This could be Geraldo
(Rivera) opening the sealed room of (gangster Al) Capone’s vault, the whole
hoopla, and man, there’s nothing there,” Van Gerven said.
“There could be
just tiny vestiges of what might have been a skeleton years ago and
disintegrated pieces of coffin.”
If Douglas County District Court grants
an exhumation petition, Van Gerven’s best guess is that the exhumation will be
done the week of March 27.
The first eight inches or so of soil in
Section 4, Grave 555 at the city of Lawrence-owned Oak Hill Cemetery will be
removed by backhoe, Van Gerven said.
Then more delicate digging by hand
will begin.
For all his experience, Van Gerven — whose resume includes
work at CU’s celebrated project at the pre-Incan ruins of Gran Pajaten, Peru —
has no firm idea what he’ll find.
“With the Nubian mummies,” he said, “in
one grave I’d get a mummy, and three feet over, I’d get a mess.”
What
skeletal remains are found will be taken to the laboratory of Van Gerven’s
friend, James Mielke, Kansas University anthropology department chairman, for
study.
Van Gerven believes the best bet for determining whether the
remains are that of Hillmon or, as life insurance companies alleged, a man named
Frederick Adolph Walters, is the use of digital photography.
Photographs
are available of both Hillmon and Walters. Digital images of the cadaver’s skull
will be put in a computer.
Then cranial matches will be attempted with
overlays of the Hillmon and Walters photographs.
“There’s some
peculiarities around the base of the nose (of Hillmon), which I think were
definitive,” said Van Gerven.
“If we’ve got a good skull and can
reconstruct the face, that should do it.”
A second matching technique is
to compare the skeleton’s age with that of the two men — Hillmon was 31 at the
time of his presumed death, and Walters was 24.
Van Gerven and CU law
professor Mimi Wesson also have located Daniel C. Davis Jr., a grandnephew of
Walters, who has agreed to donate DNA if needed.
That is not a first
option for identification, however. A grandnephew would have no more than a 25
percent match in genetic markers.
The remains in the Hillmon grave will
be reburied within four days of exhumation.
Though Van Gerven is
fascinated by the science involved in the identity hunt, he’s also gripped by
the opportunity to resolve a century-old mystery.
Did Hillmon kill
Walters, then dress Walters’ body in his own clothes as part of an elaborate
life insurance fraud?
Or did three insurance companies wrongly attach
Walters’ name to Hillmon’s corpse to avoid paying out on three policies worth
$25,000?
“My gut feeling is that it’s Hillmon, from the shape of the
face, the shape of the nose,” said Van Gerven, referring to pictures he has seen
of the living Hillmon and the questioned corpse.
“But the perverse Dennis
would love to find out that it’s Walters. I’m just perverse enough, I’d like to
be the one to find out — ha, ha, they (Hillmon and his wife) did it after all!”
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