Hale said that Smith had threatened to beat his brains out and that White had told him, “We will have to put you in the hot chair.” Then, he said, the agents shoved him in a special chair, attached wires to his body, and put a black hood over his head and a device like a catcher’s mask over his face. “They kept talking about putting the juice to me and electrocuting me and did shock me,” Hale said.
Burkhart and Ramsey testified that they had received similar abuse, which was the only reason they had made their confessions. When Hale was on the stand, he gestured wildly, dramatizing how the electricity had allegedly jolted his body. One agent, he claimed, had sniffed the air and cried, “Don’t you smell that human flesh burning?”
One morning in early June, Hoover was in Washington. He liked to eat a poached egg on toast for breakfast. A relative once observed that Hoover was “quite a tyrant about food” and that if the yolk seeped at all, he would send it back to the kitchen. Yet this morning it was not the food that disturbed him. He was stunned to pick up the Washington Post and find, above the fold, the following headline:
PRISONER CHARGES USE OF ELECTRICITY BY JUSTICE AGENTS…
ATTEMPT TO FORCE HIM TO ADMIT MURDERS TOLD ON STAND….
OFFICERS SNIFFED AT “FLESH BURNING,” HE SAYS.
While Hoover had no particular devotion to the niceties of the law, he did not seem to believe that White was capable of such tactics. What worried Hoover was scandal or, to use his preferred term, “embarrassment.” He sent White an urgent telegram demanding an explanation. Though White did not want to dignify the “ridiculous” allegations, he promptly responded, insisting that the charges were a “fabrication from start to finish as there was absolutely no third degree method used. I never used such tactics in my life.”
White and his agents took the stand to refute the allegations. Still, William B. Pine—a U.S. senator from Oklahoma who was a wealthy oilman and had defended the guardianship system—began to lobby government officials for White and his men to be fired from the bureau.
At Ernest Burkhart’s trial, tempers could no longer be contained. When a defense attorney alleged that the government had committed fraud, a prosecutor shouted, “I’ll meet the man who says it out in the courtyard.” The two men had to be separated.
With the government’s case in trouble, prosecutors eventually called a witness who, they believed, could sway the jury in their favor: the bootlegger and former bureau informant Kelsie Morrison. White and his men had earlier confronted Morrison after learning of his deception. Morrison seemed to have only one guiding force: his own self-interest. When he thought that Hale was more powerful than the U.S. government, he’d served as a double agent for the King of the Osage; once he was caught and realized that the government controlled his fate, he flipped sides and admitted his role in the conspiracy.
Now, as rain fell and thunder clapped outside the courtroom, Morrison testified that Hale had plotted to eliminate all the members of Mollie’s family. Hale had informed him that he wanted to get rid of “the whole damn bunch” so that “Ernest would get it all.”
As for Anna Brown, Morrison said that Hale had recruited him to “bump that squaw off” and had given him the weapon—a .380 automatic. Bryan Burkhart had acted as his accomplice. After making sure that Anna was good and drunk, they drove out to Three Mile Creek. Morrison’s wife at the time, Cole, was with them, and he told her to stay in the car. Then he and Bryan grabbed hold of Anna. She was too drunk to walk, Morrison recalled, and so they carried her down into the ravine.
Anna Brown Credit 56
Eventually, Bryan helped Anna sit up on a rock by the creek. “He raised her up,” Morrison said. A defense attorney asked, “Pulled her up?”
“Yes, sir.”
The courtroom was still. Mollie Burkhart looked on, listening.
The attorney continued, “Did you tell him in what position to hold her while you shot her in the head?”
“Yes, sir.”
“You stood there and directed him how to hold this drunken helpless Indian woman down in the bottom of that canyon while you got ready to shoot a bullet into her brain?”
“Yes, sir.”
“Then when he got her just in the position you wanted him to have her, then you shot a bullet from this .380 automatic?”
“Yes, sir.”
“Did you move her after you shot her?”
“No, sir.”
“What happened when you shot her?”
“Turned her loose and she fell back down.”
“Just fell over?”
“Yes, sir.”
“Did she make any outcry?”
“No, sir.”
The attorney continued, “Did you stand there and watch her die?”
“No, sir.”
“You had satisfied yourself that with that gun you shot that bullet into her brain you had killed her, didn’t you?”
“Yes, sir.”
Asked at one point what he had done after the shooting, he replied, “I went home and ate supper.”
Morrison’s former wife, Cole—who said she hadn’t come forward right after the murder because Morrison had threatened to “stomp me to death”—corroborated his account. She said, “I stayed in the car alone about twenty-five or thirty minutes, until they returned. Anna Brown was not with them, and I never saw her alive again.”
On June 3, in the middle of the trial, Mollie was called away. Her younger daughter with Ernest, Anna, whom a relative had been raising since Mollie became seriously ill, had died. She was four years old. Little Anna, as she was called, had not been well of late, and doctors had attributed her death to illness, because there seemed to be no evidence of foul play. But for the Osage every death, every apparent act of God, was now in doubt.
Mollie attended the funeral. She had relinquished her daughter to another family so that she would be safe; now she watched as Little Anna, in her small plain box, disappeared into the grave. There were fewer and fewer Osage who knew the old prayers for the dead. Who would chant every morning at dawn for her?
After the burial, Mollie went straight to the courthouse—the cold stone building that seemed to hold the secrets to her grief and despair. She sat down in the gallery by herself, not saying a word, just listening.
On June 7, several days after the death of his daughter, Ernest Burkhart was being escorted from the courtroom back to the county jail. When no one was looking, he slipped a note to the deputy sheriff. “Don’t look at it now,” he whispered.
Later, when the deputy unfolded the note, he discovered that it was addressed to John Leahy, the prosecutor. It said simply, “See me tonight in the county jail. Ernest Burkhart.”
The deputy passed the note to Leahy, who found Burkhart in his cell pacing restlessly. He had deep circles around his eyes, as if he hadn’t slept for days. “I’m through lying, judge,” Burkhart said, the words rushing out of him. “I don’t want to go on with this trial any longer.”
“Being with the prosecution, I’m in no position to advise you,” Leahy said. “Why don’t you tell your lawyers?”
“I can’t tell them,” Burkhart said.
Leahy looked at Burkhart, not sure if the impending confession was yet another trick. But Burkhart looked sincere. The death of his daughter, the haunting face of his wife each day at the trial, the realization that the evidence against him was piling up—it was too much to withstand. “I’m absolutely helpless,” Burkhart said. He beseeched Leahy to ask Flint Moss, an attorney whom Burkhart knew, to come see him.
Leahy agreed, and on June 9 Burkhart returned to the courtroom after having spoken to Moss. This time, Burkhart did not sit at the defense table with Hale’s team of attorneys. He walked to the bench and whispered something to the judge. Then he stepped back, breathing loudly, and said, “I wish to discharge the defense attorneys. Mr. Moss will now represent me.”
There were protests from the defense, but the judge agreed to the request. Moss stood beside Ernest
and pronounced, “Mr. Burkhart wishes to withdraw his plea of not guilty and enter a plea of guilty.”
Gasps filled the courtroom. “Is this your desire, Mr. Burkhart?” the judge asked.
“It is.”
“Have state or federal officials offered you immunity or clemency if you changed your plea?”
“No.”
He had decided to throw himself at the mercy of the court, having earlier told Moss, “I’m sick and tired of all this….I want to admit exactly what I did.”
Burkhart now read a statement admitting that he’d delivered a message from Hale to Ramsey, saying to let Kirby know it was time to blow up the Smith house. “I feel in my heart that I did it because I was requested to do it by Hale, who is my uncle,” he said. “The truth of what I did I have told to many men, and as I see it the honest and honorable thing for me to do was to stop the trial and acknowledge the truth.”
The judge said that before he accepted the plea, he needed to ask a question: Had federal agents forced Burkhart to sign a confession at gunpoint or under threat of electrocution? Burkhart said that other than keeping him up late, the men from the bureau had treated him just fine. (Later, Burkhart said that some of Hale’s attorneys had prodded him to lie on the stand.)
The judge said, “Then your plea of guilty will be accepted.”
The courtroom erupted. The New York Times reported on the front page, BURKHART ADMITS OKLAHOMA KILLING: CONFESSES HE HIRED MAN TO DYNAMITE SMITH HOME…SAYS UNCLE HEADED PLOT.
White sent a message to Hoover. Burkhart, he reported, “was very much disturbed and, with tears in his eyes, told me that he had lied and that he was now going to tell the truth…and would testify to any Court in the United States to that effect.”
After Burkhart’s admission, the campaign to fire White and his men ended. Oklahoma’s attorney general said, “Too much credit cannot be given these gentlemen.”
Yet only a fraction of the case had been completed. White and the authorities still had to convict the other henchmen, including Bryan Burkhart and Ramsey. And, most treacherous of all, they still had to bring down Hale. White, after witnessing the shenanigans in Ernest’s trial, was less certain that Hale could be convicted, but he received at least one encouraging bit of news: the U.S. Supreme Court had ruled that the place where Roan had been murdered was indeed on Indian lands. “That put us back in federal district courts,” White noted.
Ernest Burkhart’s mug shot Credit 57
On June 21, 1926, Burkhart was sentenced to life imprisonment and hard labor. Even so, the people around him detected relief on his face. A prosecutor said that he was now someone “whose mind is at ease because he has relieved his tortured soul of a terrible secret and now seeks repentance and forgiveness.” Before being led away in irons to the state penitentiary, Burkhart turned and smiled wanly at Mollie. But her expression remained impassive, perhaps even cold.
20 SO HELP YOU GOD!
In the last week of July 1926, as the summer heat reached infernal temperatures, the trial of Hale and Ramsey for the murder of Henry Roan began at the redbrick courthouse in Guthrie. “The stage is set: the curtain rises slowly on the great tragedy of the Osage—the long-awaited federal trial of two old-time cowboys,” the Tulsa Tribune reported. “The trial of Ernest Burkhart, although it ended in a melodramatic flourish with his confession to the Smith murder conspiracy implicating Hale, was merely a prologue to the life and death tragedy that goes on the boards today.”
White stationed extra guards at the jail after attempts to break out the outlaws who were going to testify against Hale. Later, when Hale was being held on a separate tier from the cell housing Blackie Thompson, he passed him a note through a hole where a radiator pipe went through the ceiling. Blackie admitted to agents that Hale had asked him what he required to “not testify against him.” Blackie added, “I wrote one note that I would not testify against him if he would get me out.” Hale wrote back promising to arrange his escape in return for one more thing—that Blackie then kidnap Ernest Burkhart and make him disappear before he could testify. “He wanted me to take Ernest Burkhart to Old Mexico,” Blackie said, adding that Hale didn’t “want Burkhart killed in this country where he would be found.”
Given the abundance of evidence against Hale and Ramsey, White believed that the verdict would depend, in large part, on whether the witnesses and the jury became tainted. At Ernest Burkhart’s trial, the first panel of prospective jurors had been dismissed after evidence surfaced that Hale had attempted to bribe them. Now, before selecting a jury, prosecutors probed prospective candidates to ascertain whether anyone had approached them. The judge then asked the twelve chosen jurors to swear that they would render a true verdict according to the law and the evidence—“so help you God!”
There was one question that the judge and the prosecutors and the defense never asked the jurors but that was central to the proceedings: Would a jury of twelve white men ever punish another white man for killing an American Indian? One skeptical reporter noted, “The attitude of a pioneer cattleman toward the full-blood Indian…is fairly well recognized.” A prominent member of the Osage tribe put the matter more bluntly: “It is a question in my mind whether this jury is considering a murder case or not. The question for them to decide is whether a white man killing an Osage is murder—or merely cruelty to animals.”
Hale (second from left) and Ramsey (third from left) with two U.S. marshals Credit 58
On July 29, as testimony was set to begin, throngs of spectators arrived early in order to get a seat. The temperature outside was ninety degrees, and it was hard to breathe in the courtroom. John Leahy, the prosecutor, rose to give his opening statement. “Gentlemen of the jury,” he said. “William K. Hale is charged with aiding and abetting to the killing of Henry Roan, while John Ramsey is charged with the killing.” Leahy outlined the alleged facts of the insurance murder plot in a matter-of-fact voice. One observer noted that “the veteran of legal battles does not go in for fireworks or courtroom histrionics but he makes his points all the stronger for his quiet reserve.” Looking on, Hale smiled ever so slightly, while Ramsey leaned back in his chair, fanning himself in the heat, a toothpick between his teeth.
On July 30, the prosecution called Ernest Burkhart to the stand. There was speculation that Burkhart would defect again and return to the fold of his uncle, but this time Burkhart answered the prosecution’s questions forthrightly. Burkhart recalled that one time Hale and Henry Grammer had discussed how to eliminate Roan. The original plan was not for Ramsey to shoot Roan, Burkhart said. Instead, Hale intended to use one of his other primary methods—a batch of poisoned moonshine. Burkhart’s testimony finally made public what the Osage had long known: members of the tribe had been systematically killed with intentionally contaminated alcohol. In the case of Roan, Burkhart said, Hale ultimately decided to have him shot, but Hale was furious when he later learned that Ramsey had not, as instructed, fired the bullet into the front of Roan’s head and left the gun at the scene. “Hale said to me if John Ramsey had done it the way I told him to nobody would have known but that Roan had attempted suicide,” Burkhart recalled.
On August 7, the prosecution rested, and the defense soon summoned Hale to the stand. Addressing the jurors as “gentlemen,” he insisted, “I never devised a scheme to have Roan killed. I also never desired his death.” Although Hale had made a compelling witness, White was confident the government had proven its case. In addition to Burkhart’s testimony, White had testified to Ramsey’s confession, and witnesses had described Hale’s fraudulent acquisition of the insurance policy. The prosecutor Roy St. Lewis called Hale “the ruthless freebooter of death.” Another prosecutor said, “The richest tribe of Indians on the globe has become the illegitimate prey of white men. The Indian is going. A great principle is involved in this case. People of the United States are following us through the press. The time has now come for you gentlemen to do your part.”
On August
20, a Friday, the jury started its deliberations. Hours went by. The next day, the deadlock continued. The Tulsa Tribune said that though the government’s case was strong, bets around Guthrie were “five to one for a hung jury.” After five days of deliberations, the judge called the parties into the courtroom. He asked the jurors, “Is there any possibility of an agreement on a verdict?”
The foreman rose and said, “There is none.”
The judge asked if the government had any remarks, and St. Lewis stood. His face was red, his voice trembling. “There are some good men on the jury and some that are not good,” he said. He added that he had been informed that at least one, if not more, members of the panel had been bribed.
The judge considered this, then ordered that the jury be dismissed and the defendants held for further trial.
White was stunned. More than a year of his work, more than three years of the bureau’s work, had reached an impasse. The jury was also hung when Bryan Burkhart was tried for the murder of Anna Brown. It seemed impossible to find twelve white men who would convict one of their own for murdering American Indians. The Osage were outraged, and there were murmurings about taking justice into their own hands. White suddenly had to deploy agents to protect Hale, this man whom he so desperately wanted to bring to justice.
Hale leaving the courthouse Credit 59
The government, meanwhile, began preparing to retry Hale and Ramsey for the murder of Roan. As part of this effort, White was asked by the Justice Department to investigate corruption during the first Hale trial. He soon uncovered that there had been a conspiracy to obstruct justice, including bribes and perjury. According to one witness, the defense attorney Jim Springer had offered him money to lie on the stand, and when he refused, Springer aimed what appeared to be a gun in his pocket at him and said, “I will kill you.” In early October, a grand jury recommended filing charges against Springer and several witnesses for what it called flagrant attempts to obstruct justice. The grand jury issued a statement: “Such practices should not be endured, otherwise our courts will be a mockery, and justice defeated.” Several witnesses were indicted and convicted, but prosecutors decided not to charge Springer, because he would demand delaying the second trial of Hale and Ramsey until his own case was resolved.