White could not anticipate the bitter, sensational legal battle that was about to ensue—one that would be debated in the U.S. Supreme Court and would nearly destroy his career. Still, hoping to tie up the case as neatly and quickly as possible, he made one last attempt to persuade Hale to confess. “We don’t think you want to expose [your family] to a long trial and all its sordid testimony, the shame and embarrassment,” White said.
Hale stared at White with gleeful zeal. “I’ll fight it,” he said.
19 A TRAITOR TO HIS BLOOD
The revelations of the arrests and the horror of the crimes held the nation in their grip. The press wrote about “an evidently well-organized band, diabolic in its ruthlessness, to destroy with bullet, poison, and bomb the heirs to the oil-rich lands of the Osage”; about crimes that were “more blood-curdling than those of the old frontier days”; and about the federal government’s effort to bring to justice the alleged “King of the Killers.”
White had been consumed with the cases involving Roan and Mollie Burkhart’s family members, and he and his men had not yet been able to connect Hale to all of the twenty-four Osage murders or to the deaths of the attorney Vaughan and the oilman McBride. Yet White and his team were able to show how Hale benefited from at least two of these other killings. The first was the suspected poisoning of George Bigheart, the Osage Indian who, before dying, had passed on information to Vaughan. White learned from witnesses that Hale had been seen with Bigheart just before he was rushed to the hospital, and that after his death Hale made a claim upon his estate for $6,000, presenting a forged creditor’s note. Ernest Burkhart disclosed that Hale, before filling out the note, had practiced making his handwriting look like Bigheart’s. Hale was also implicated in the apparent poisoning of Joe Bates, an Osage Indian, in 1921. After Bates, who was married and had six children, suddenly died, Hale had produced a dubious deed to his land. Bates’s widow later wrote a letter to the Office of Indian Affairs, saying, “Hale kept my husband drunk for over a year. Hale would come to the house and ask him to sell his inherited shares in land. Joe always refused no matter how drunk he was. I never believed that he sold that land, he always told me he would not even up to a few days before his death….Well, Hale got the land.”
Despite the brutality of the crimes, many whites did not mask their enthusiasm for the lurid story. OSAGE INDIAN KILLING CONSPIRACY THRILLS, declared the Reno Evening Gazette. Under the headline OLD WILD WEST STILL LIVES IN LAND OF OSAGE MURDERS, a wire service sent out a nationwide bulletin that the story, “however depressing, is nevertheless blown through with a breath of the romantic, devil-may-care frontier west that we thought was gone. And it is an amazing story, too. So amazing that at first you wonder if it can possibly have happened in modern, twentieth-century America.” A newsreel about the murders, titled “The Tragedy of the Osage Hills,” was shown at cinemas. “The true history of the most baffling series of murders in the annals of crime,” a handbill for the show said. “A Story of Love, Hatred and Man’s Greed for Gold. Based on the real facts as divulged by the startling confession of Burkhart.”
Amid the sensationalism, the Osage were focused on making sure that Hale and his conspirators did not find a way to wriggle free, as many feared they would. Bates’s widow said, “We Indians cannot get our rights in these courts and I have no chance at all of saving this land for my children.” On January 15, 1926, the Society of Oklahoma Indians issued a resolution that said,
Members of the Osage Tribe of Indians have been foully murdered for their headrights…
Whereas, the perpetrators of these alleged crimes deserve to be vigorously prosecuted and, if convicted, punished to the full extent of the law…
THEREFORE, BE IT RESOLVED by this Society that we commend the federal and state officials for their efforts in trying to ferret out and prosecute the criminals guilty of these atrocious crimes.
Yet White knew that America’s judicial institutions, like its policing agencies, were permeated with corruption. Many lawyers and judges were on the take. Witnesses were coerced, juries tampered with. Even Clarence Darrow, the great defender of the downtrodden, had been charged with trying to bribe prospective jurors. A Los Angeles Times editor recalled Darrow once telling him, “When you’re up against a bunch of crooks you will have to play their game. Why shouldn’t I?” Hale held enormous influence over Oklahoma’s fragile legal institutions; as a reporter who visited the region noted, “Townspeople, from low to high, speak of him with bated breath. His influence and that of his associates is felt everywhere.”
Because of Hale’s power, a federal prosecutor warned that it was “not only useless but positively dangerous” to try him in the state legal system. But, as with many crimes against American Indians, the question of which government entity had jurisdiction over the Osage murders was confounding. If a murder occurred on Indian territory, then the federal authorities could claim jurisdiction. The Osage territory, however, had been allotted, and much of the surface land where the murders had occurred, including the slaying of Anna Brown, was no longer under the tribe’s control. These cases, Justice Department officials concluded, could only be tried by the state.
Yet, as officials scoured the various cases, they thought that they’d found an exception. Henry Roan was killed on an Osage allotment that hadn’t been sold to whites; moreover, the Osage property owner was under guardianship and considered a ward of the federal government. Prosecutors working with White decided to move forward with this case first, and Hale and Ramsey were charged in federal court with Roan’s murder. They faced the death penalty.
The assembled prosecution team was formidable. It included two high-ranking officials in the Justice Department, as well as a young, newly appointed U.S. attorney, Roy St. Lewis, and a local attorney named John Leahy, who was married to an Osage woman and who had been hired by the Tribal Council to assist in the various trials.
Hale was aided by his own array of lawyers—some of the “ablest legal talent of Oklahoma,” as one newspaper put it. Among them was Sargent Prentiss Freeling, a former Oklahoma attorney general and a staunch advocate of states’ rights. He had often traveled around the region giving a lecture titled “The Trial of Jesus Christ from a Lawyer’s Standpoint,” warning, “When a small-natured man indulges to the extent of his ability in villainy and goes as far as his contemptible nature will permit, he then employs some disreputable lawyer to assist him.” To defend John Ramsey, Roan’s alleged shooter, Hale hired an attorney named Jim Springer, who was known as a fixer. Under Springer’s counsel, Ramsey quickly recanted his confession, insisting, “I never killed anyone.” Ernest Burkhart told White that Hale had earlier assured Ramsey “not to worry, that he—Hale—was on the inside and had everything fixed from the road-overseer to the Governor.”
Prosecutor Roy St. Lewis reviewing the voluminous Osage murder case files Credit 55
Soon after the grand jury proceedings began, in early January, one of Hale’s cronies—a pastor—was charged with committing perjury on the stand. At a later proceeding, another associate was arrested for trying to intoxicate witnesses. As the trial neared, crooked private eyes began trailing witnesses and even trying to make them disappear. The bureau put out a physical description for one private eye who agents feared might be hired as an assassin: “Long face…gray suit and light Fedora hat…several gold teeth…has reputation as being very cunning and ‘slippery.’ ”
Another gunman was hired to assassinate Kelsie Morrison’s former wife, Katherine Cole, who was Osage and had agreed to testify for the prosecution. The gunman later recalled, “Kelsie said that he wanted to make some arrangement to get shed of Katherine, his wife, because she knew too much about the Anna Brown murder deal. Kelsie said that he would give me a note to Bill Hale and that Hale would fix the arrangements.” Hale paid the gunman and told him to “get her out drunk and get rid of her.” But at the last minute the gunman wouldn’t go through with it, and after being picked up on a robber
y charge, he told authorities about the plan. Still, the plots continued.
White, who had ordered his men to work in pairs for security, received a tip that a former member of the Al Spencer Gang had shown up in Pawhuska to kill federal agents. White told Agent Smith, “We’d better head this off,” and armed with .45 automatics, they confronted the man at a house where he was staying. “We hear you’ve threatened to run us out of town,” White said.
The outlaw assessed the lawmen and said, “I’m just a friend of Bill Hale’s. Just happened in town, is all.”
White subsequently informed Hoover, “Before this man could put into execution any of his ‘dirty’ work, he left…as he was given to understand that it would be healthier for him some other place.”
White was extremely concerned about Ernest Burkhart. Hale later told one ally that Burkhart was the only witness he was afraid of. “Whatever you do, you get to Ernest,” Hale told him. Otherwise, he said, “I’m a ruined man.”
On January 20, 1926, Burkhart—whom the government had not yet charged, waiting to see the extent of his cooperation—told White that he was sure he was going to be “bumped off.”
“I’ll give you all the protection the government can afford,” White promised him. “Whatever is necessary.”
White arranged for Agent Wren and another member of his team to spirit Burkhart out of the state and guard him until the trial. The agents never registered Burkhart in hotels under his own name, and referred to him by the alias “E. J. Ernest.” White later told Hoover, “We think that it is likely that they will endeavor to kill Burkhart. Of course, every precaution is being taken to prevent such a step, but there are many ways that this could be done, for friends of Ramsey and Hale could probably slip poison to him.”
Mollie, meanwhile, still didn’t believe that Ernest was “intentionally guilty.” And when he did not return home for days, she became frantic. Her whole family had been decimated, and now it appeared as if she’d lost her husband, too. An attorney assisting the prosecution asked whether she’d feel better if agents brought her to see Ernest.
“That is all I wanted,” she said.
Afterward, White and Mollie met. He promised her that Ernest would be back soon. Until then, White said, he would make sure that they could correspond.
After Mollie received a letter from Ernest saying that he was well and safe, she replied, “Dear husband, I received your letter this morning and was very glad to hear from you. We are all well and Elizabeth is going back to school.” Mollie noted that she was no longer so sick. “I feel better now,” she said. Clinging to the illusion of their marriage, she concluded, “Well Ernest I must close my short letter. Hoping to hear from you soon. Good by from your wife, Mollie Burkhart.”
On March 1, 1926, White and the prosecution received a devastating setback. The judge, agreeing with a defense motion, ruled that even though Roan’s murder had occurred on an individual Osage allotment, this was not the equivalent of tribal lands, and therefore the case could be adjudicated only in state court. Prosecutors appealed the decision to the U.S. Supreme Court, but with a ruling not expected for months, Hale and Ramsey would have to be released. “It appeared that Bill Hale’s lawyers—just as his friends predicted—had clipped the government’s tail feathers good,” one writer observed.
Hale and Ramsey were celebrating in the courtroom, when they were approached by Sheriff Freas. He shook hands with Hale, then said, “Bill, I have a warrant for your arrest.” White and prosecutors had worked with the Oklahoma attorney general to keep Hale and Ramsey behind bars by filing state charges against them for the bombing murders.
White and the prosecutors had no choice but to initiate the state case in Pawhuska, the Osage County seat and a Hale stronghold. “Very few, if any, believe that we can ever be able to get a jury in Osage County to try these parties,” White told Hoover. “Trickeries and all methods of deceit will be resorted to.”
At a preliminary hearing, on March 12, Osage men and women, many of them relatives of the victims, crammed into the courtroom to bear witness. Hale’s wife, his eighteen-year-old daughter, and his many boisterous supporters clustered behind the defense table. Journalists jostled for space. “Seldom if ever has such a crowd gathered in a court room before,” a reporter from the Tulsa Tribune wrote. “Here are well-groomed business men, contesting standing room with roustabouts. There are society women sitting side by side with Indian squaws in gaudy blankets. Cowboys in broad brimmed hats and Osage chiefs in beaded garb drink in the testimony. Schoolgirls crane forward in their seats to hear it. All the cosmopolitan population of the world’s richest spot—the Kingdom of the Osage—crowd to catch the drama of blood and gold.” A local historian later ventured that the Osage murder trials received more media coverage than the previous year’s Scopes “monkey trial,” in Tennessee, regarding the legality of teaching evolution in a state-funded school.
Many people in the gallery gossiped about an Osage woman who was sitting on one of the benches, quiet and alone. It was Mollie Burkhart, cast out from the two worlds that she’d always straddled: whites, loyal to Hale, shunned her, while many Osage ostracized her for bringing the killers among them and for remaining loyal to Ernest. Reporters portrayed her as an “ignorant squaw.” The press hounded her for a statement, but she refused to give one. Later, a reporter snapped her picture, her face defiantly composed, and a “new and exclusive picture of Mollie Burkhart” was transmitted around the world.
Hale and Ramsey were escorted into the courtroom. Though Ramsey appeared indifferent, Hale acknowledged his wife and daughter and supporters confidently. “Hale is a man of magnetic personality,” the Tribune reporter wrote. “Friends crowd about him at every recess of court and men and women shout cheerful greetings.” In jail, Hale had jotted down these lines from a poem as he remembered them:
Judge Not! The clouds of seeming guilt may dim thy brother’s fame,
For fate may throw suspicion’s shade upon the brightest name.
White sat down at the prosecution table. In an instant, one of Hale’s lawyers said, “Your honor, I demand that T. B. White over there, head of the federal Bureau of Investigation in Oklahoma City, be searched for firearms and excluded from this courtroom.”
Hale’s supporters hooted and stamped their feet. White stood, opening his coat to show that he wasn’t armed. “I will leave if the court orders it,” he said. The judge said that this wouldn’t be necessary, and White sat back down and the crowd quieted. The hearing proceeded uneventfully until that afternoon, when a man entered the courtroom who had not been seen in Osage County for weeks: Ernest Burkhart. Mollie watched her husband as he walked unsteadily down the long aisle to the stand. Hale glowered at his nephew, whom one of Hale’s lawyers denounced as a “traitor to his own blood.” Moments before, Burkhart had confided to a prosecutor that if he testified, “they’ll kill me,” and as Burkhart sat in the witness chair, it was evident that whatever strength he had mustered to reach this point was fading.
A lawyer for Hale rose and demanded to confer privately with Burkhart. “This man is my client!” he said. The judge asked Burkhart if this individual was really his attorney, and Burkhart, with one eye on Hale, said, “He’s not my attorney…but I’m willing to talk to him.”
White and the prosecutors watched incredulously as Burkhart stepped down from the stand and went with Hale’s lawyers into the judge’s chambers. Five minutes drifted by, then ten, then twenty; at last, the judge ordered the bailiff to retrieve them. Hale’s lawyer Freeling emerged from the chamber and said, “Your Honor, I’d like to ask the court to allow Mr. Burkhart until tomorrow to confer with the defense.” The judge agreed, and for a moment Hale personally buttonholed Burkhart in the courtroom, the plot unfolding this time right in front of White. Leahy, the prosecutor who had been hired by the Osage Tribal Council, considered all this to be the most “high-handed and unusual course of conduct I had ever witnessed on the part of attorneys.” As Burkhart left the c
ourtroom, White strove to catch his attention, but Burkhart was swept away by a mob of Hale’s supporters.
The next morning in court one of the prosecutors made the announcement that White and everyone in the buzzing gallery were expecting: Ernest Burkhart refused to testify for the state. In a memo to Hoover, White explained that Burkhart’s “nerve went back on him and, after he was allowed to see Hale and once more be placed under his domination, there was no hope of his testifying.” Instead, Burkhart took the stand as a defense witness. One of Hale’s lawyers asked him if he’d ever spoken to Hale about the murder of Roan or any other Osage Indian.
“I never did,” Burkhart murmured.
When the lawyer asked if Hale had ever requested that he hire someone to kill Roan, Burkhart said, “He never did.”
Step-by-step, in a quiet monotone voice, Burkhart recanted. Prosecutors tried to salvage their case by filing separate charges against Burkhart, naming him as a co-conspirator in the bombing of the Smiths’ house. Hoping to bolster their position against Hale and Ramsey by gaining an early conviction against Burkhart, prosecutors scheduled his trial first. But the two most important pillars of evidence against Hale—the confessions of Burkhart and Ramsey—had crumbled. White recalled that in the courtroom “Hale and Ramsey gave us triumphant grins,” adding, “The King on top again.”
When Burkhart’s trial began, in late May, White found himself in the midst of an even greater crisis. Hale took the stand and testified, under oath, that during his interrogation White and his agents, including Smith, had brutally tried to coerce a confession from him. Hale said that the men from the bureau had told him that they had ways of making people talk. “I looked back,” Hale continued. “What caused me to look back was hearing a pistol cock behind me. Just as I looked back, Smith jumped across the room, grabbed me by the shoulder and shoved a big gun in my face.”