Question: Was there a "deal" made with Brigham Young regarding prosecution for the Mountain Meadows Massacre?

FAIR Answers—back to home page

Question: Was there a "deal" made with Brigham Young regarding prosecution for the Mountain Meadows Massacre?

There is no compelling evidence that such a deal was ever made

Critics charge that only a corrupt "deal" with Brigham Young allowed prosecutors to charge and convict anyone with the Mountain Meadows Massacre.

The continued theory of a deal to offer Lee as a scapegoat lacks competent, much less compelling, evidence. Speculation is a game played by Bagley...but there ought to be more than that.

One reviewer described the difficulties with this theory:

Introduction

Blood of the Prophets tells us that the U.S. district attorney's office struck a deal with the church: they would offer John D. Lee as a scapegoat to avoid all further prosecutions, and in return the church would help convict Lee in a second trial. For critics of the church (and I would put Blood of the Prophets in this category), the deal and scapegoat story helps sell the idea that the church was not above thwarting justice. For advocates of John D. Lee (and I would put [Juanita] Brooks in this category), the deal and the scapegoat theory helps sell the idea that an innocent Lee was willing to suffer as a martyr for his friends and church.

The deal is important to Bagley's conclusions. He says: "In a case that threatened to shake the LDS church to its foundations, the prosecutor found he could only secure a guilty verdict with the cooperation of Mormon authorities. As attorneys do, Howard made a deal" (p. 300). As part of this deal, the church assisted Howard with manufactured evidence and manipulated justice (p. 299). Bagley also tells us that U.S. District Attorney Howard was "'on the make,'" or in other words, had been bribed or threatened with blackmail by church leaders (p. 299).

Bagley's failures in this area are the same as Brooks's and the Salt Lake Daily Tribune's. The latter first floated this theory on 27 September 1876, citing only supposition. So Bagley is in good company.

...we will [first] examine the law, which demonstrates that any deal would have been a worthless nullity. We will then look at the evidence Bagley offers to support his theory of a deal, to show that his evidence lacks proper foundation and is thus not reliable. Lastly, we will see from an overwhelming amount of official correspondence that Howard's later actions were inconsistent with any "deal."

The law

The Law Pertaining to Agreements to Thwart Justice. A "deal" to thwart justice would have been a legal impossibility, a nullity, void at the outset, and obligating nobody. Under English and American common law, certain agreements such as agreements to collect gambling debts incurred in nongambling jurisdictions, to pay for a prostitute, or not to report a crime are unenforceable. Another example of an unenforceable agreement is an agreement to forbear prosecution of a crime. In U.S. v. Ford, an 1878 U.S. Supreme Court decision, the court summarized the law of forbearance of prosecution. A grant of immunity must be approved by a judge and is granted only to accomplices willing to come forward and testify in good faith against an accused. On the other hand, the court said that an executive pardon does not require approval by a judge or does not constitute an agreement to come forward to testify, but it does require a presidential act. A pardon usually comes only after conviction of the to-be-pardoned felon. Thus, the two kinds of deals approved by the Supreme Court require an official stamp of approval by persons other than the prosecutor; secret deals would not work.

Before the Supreme Court's 1878 decision, grants of immunity were questionable. Prevailing law before U.S. v. Ford suggested that a grant of immunity might not have been enforceable if the person granted immunity "appear[ed] to have been the principal offender" and that the best one could hope for was an "equitable" claim to a presidential pardon. Howard would also have known that an unlawful grant of immunity may have been a crime itself; he could have been subject to prosecution. He was obviously knowledgeable in the area because he appears to have offered John D. Lee a presidential pardon after Lee's conviction.

Any subsequent U.S. district attorney, or even Howard himself, could have simply ignored a deal to thwart justice and could have prosecuted any person worthy of prosecution. Therefore, if a deal to thwart justice was a nullity at the outset, it seems unlikely that a competent lawyer would have spent any effort reaching such a deal.

Bagley's Evidence of a Deal

Turning to Bagley's evidence of a deal to make John D. Lee a scapegoat (which really is unnecessary to discuss, given the legal impossibility of such a deal in the first place), we find it wanting. For example, there is no evidence whatsoever, other than reported rumor, that U.S. District Attorney Sumner Howard was bribed.

Witnesses told what to say?

Nor is there evidence that witnesses were told what to say. Bagley, as does Brooks, says that "according to . . . family traditions," Nephi Johnson and Jacob Hamblin received letters ordering them to testify and "telling them what to say" (p. 304). "Family traditions" are not evidence. I would like to see the letters. What would they have shown? That witnesses were told to lie about Lee's guilt when Lee was not really guilty? It is unlikely that Lee was not guilty. Although there may indeed have been letters telling witnesses to cooperate, it is doubtful that the letters instructed them what to say.

As further evidence of a deal, Bagley examines Hamblin's role in the second trial. Bagley and the Salt Lake Daily Tribune attack, in particular, Hamblin's testimony that Lee confessed to him and the fact that Hamblin never mentioned the confession to investigating law enforcement officers. They claim that Lee's confession to Hamblin never occurred, and they have suggested that church officials orchestrated Hamblin's testimony to secure Lee's conviction. Brooks agreed with Bagley's later assessment that Hamblin's testimony was selectively truthful and that he "could not remember what he did not want to tell."

The transcript shows that no lawyer in the second trial pushed Hamblin to say very much although Hamblin said he had more to tell. Each side was undoubtedly fearful to ask questions that would elicit previously unknown answers. Either side could have asked the court to order Hamblin, upon pain of contempt, to tell it all. Neither side did. Had I been the prosecutor, I would not want Hamblin to say anything that might possibly implicate Brigham Young because, in that event, I would have followed the same unsuccessful strategy of grandstanding against Brigham Young as did U.S. District Attorneys William Carey and Robert Baskin in the 1875 trial. Similarly, because Hamblin was under the control of the prosecution, as Lee's defense lawyer I would not know what Hamblin would say. In this particular case, less was more. There is no evidence that Hamblin lied; in fact, Hamblin's recent biographer, Hartt Wixom, takes exception to the charge of perjury. Lee's attorney, Bishop, admitted that Hamblin was an honest man, even though Lee contended that Hamblin's testimony was false. The press may have wished that Hamblin had said more, but Hamblin was not talking to the press.

A juror's dream has not the slightest chance of constituting evidence, but Bagley offers it to us as such (p. 306). Blood of the Prophets uses juror Andrew Corry's recollection of a conversation he had with another juror about that juror's dream that Lee would be offered as a scapegoat. When Corry executed his affidavit in 1932 he was eighty-four years old. He had probably been pursued for fifty-six years by persons interested in having him support a particular view. The affidavit looks to be too fine a production.

Corry's affidavit, nonetheless, is compelling to me in a way Blood of the Prophets would not appreciate. Corry does not claim any external pressure to vote for Lee's conviction. He does not mention any pressure by any church authority to vote a particular way. He does not mention a deal. Corry dwells on the scapegoat theory, but that theory was the only defense theory offered by Lee's attorneys and the only possible theory for the jurors to debate. It seems that fifty-six years would have uncovered a claim of church pressure, given Corry's willingness to spill all in his affidavit.

Dictate to jurors?

Blood of the Prophets tells us that William Bishop, Lee's attorney, claims that he had an agreement with local church authorities to select particular persons as jurors (p. 302). According to Bishop:

The attorneys for the defendant had been furnished with a list of the jurymen, and the list was examined by a committee of Mormons, who marked those who would convict with a dash (—), those who would rather not convict with a star (*), and those were certain to acquit John D. Lee, under all circumstances, with two stars (**).

If Bishop asserts, which he really does not, that local church leaders agreed with him to dictate to jurors the outcome of the case, Bishop would be admitting to a crime at the most and grounds for disbarment at the least.

Blood of the Prophets recounts a story by Frank Lee that each juror favorable to Lee's cause would have a "star pinned under his arm" so that Bishop would know "whom to choose" (p. 302). I don't trust this evidence. According to genealogical records, and Bagley does not mention this, Frank Lee would have been barely thirteen years old by the time of the second trial when he claims that this information was conveyed "in the Council meeting." Frank Lee does not say he was at the meeting. A thirteen-year-old boy, one who had lived in isolation his entire life with his mother Rachel, would not likely understand the intricacies of conspiracies to suborn perjury. How many of the dozens or hundreds of potential jurors would have been trained to display their underarms only to Bishop? What would the stars have looked like? Frank Lee undoubtedly misheard secondhand family accounts of Bishop's list of potential jurors.

It certainly is not unusual for an experienced trial lawyer in a small town to compile a list of dozens of known veniremen (someone who is summoned to serve on a jury) and rank them according to their proclivities. A trial lawyer will use many sources to learn facts about these potential jurors. Even an experienced lawyer might get too close to potential jurors in the pretrial phase, as Clarence Darrow learned when he was indicted in 1911 in Los Angeles for allegedly offering money to a potential juror before jurors were called. Bishop probably analyzed the pretrial jury pool. His friendly sources were sympathetic Mormons in the community who probably identified to him and Lee those veniremen who might vote Lee's way.

Bagley and the press also cite as evidence of a deal the fact that an all-Mormon jury was selected for the first trial. Obviously, the argument goes, an all-Mormon jury could be controlled by the church more easily than a part-Mormon jury. Lee's attorney advanced this theory during closing argument. Howard replied by explaining that it was Lee's attorney, not the prosecution, who had struck non-Mormons from the panel. Bishop, said Howard, "was very anxious to get every Gentile off the jury; and I kept striking off Mormons." Because Mormons outnumbered non-Mormons by a huge margin, and because challenges to jurors are typically limited to a certain number per side, it would have been relatively easy for one side to unilaterally control the religious makeup of the jury. According to the uncontested trial transcript, it was Lee's attorney who did this and not, as Bagley argues, Howard. Bishop's unilateral selection of an all-Mormon jury (obviously, a smart thing to do since Mormons had previously voted to acquit) is an important fact in this story that Bagley misses.

Other than the unilateral ability to strike a limited number of jurors, neither party had control over the selection of the jury. According to press reports, the selection process was trilateral, with each side and the court having its say. It would be difficult to corrupt an entire jury pool for the twelve who would be empanelled. In any event, there was no limit to public and press contact with the jurors after the trial. After years of controversy over this case, as far as I know, no juror claimed to have been part of a conspiracy or to have received instructions from church authorities.

Judge and the deal?

Bagley also cites Judge Boreman himself for evidence of a deal:

The deal [Sumner Howard] struck with Brigham Young troubled even Howard. On the first day of the trial, the prosecutor stopped Judge Boreman as he was going to court. "Judge, I have eaten dirt & I have gone down out of sight in dirt & expect to eat more dirt." (p. 301)

Boreman never believed Howard had made a deal, as I will show from correspondence discussed below. Nonetheless, the conversation quoted above says nothing of consequence. Boreman does not claim this to be evidence of any deal and even admits that another witness to the conversation denied it.118 Bagley tells us that Howard's disclosure troubled Boreman, but there is no evidence of this.

Finally, Bagley tells us that "prevailing wisdom had it that the LDS church would dictate the outcome" and that one of Brigham Young's sons, John W. Young, took bets on the Chicago Board of Trade as to the outcome. Bagley's source for these two statements is the muckraking reporter John Beadle (p. 296). No serious scholar would accept as "prevailing wisdom" the conclusions of reporters for modern newspapers. Why should we accept John Beadle for "prevailing wisdom?" Admittedly, John W. Young may have been a colorful character, but I wouldn't rely on Beadle for the account of bets taken on the Chicago Board of Trade.

Evidence against the deal

Evidence Refuting the Deal, Which Bagley Ignores. In the analysis above, we have seen that the U.S. district attorney would never have entered into a deal to thwart justice because he would have known it would have been unenforceable. We have also seen that Bagley's evidence of a deal is without foundation.

Looking at the evidence refuting the notion of a deal, we find it is substantial. For years after the start of the Lee trial, until at least as late as 1884, federal prosecutors and investigators actively sought to bring other massacre participants to justice. Had the church and federal prosecutors struck a deal that only Lee would be prosecuted, we should expect that all parties to the deal would act thereafter in a manner consistent with a deal. None of the parties acted in such a manner.

The Salt Lake Daily Tribune reports the church's call for continued prosecutions on 23 September 1876. A few days later and after Lee's conviction, the Tribune on 27 September 1876 published a summary of its grounds for believing that Howard had cut a deal with the church. One day after the Tribunes accusation, and most likely in response to the Tribunes charges, Howard described to the U.S. attorney general meetings with the church in which he lobbied for assistance in locating witnesses. "That aid was given." Howard also told the church authorities that he had no present evidence against them. Howard also complained of political intrigue from former prosecutors to malign his successful efforts.

On 4 and 5 October 1876, U.S. District Attorney Howard wrote to U.S. Attorney General Alphonso Taft and explained his plans to arrest Haight, Higbee, and Stewart. Judge Boreman endorsed the 5 October letter with a note of his own (reproduced on p. 241) to Taft.

The letter from Boreman to the U.S. attorney general shows several things that are fundamentally inconsistent with Bagley's theories about the deal. On the one hand, Bagley tells us that Boreman and Howard were troubled with the deal Howard had to make to thwart justice for other perpetrators (p. 301). On the other hand, the official correspondence shows that Boreman endorsed Howard's plan for further pursuit and arrest. Boreman agreed with Howard's progress. Under Bagley's view of the facts, Boreman should have called for Howard's ouster. It seems Bagley has this completely wrong.

The evidence from official sources mounts against Bagley's and Brooks's theory of a deal. Taft authorized additional personnel to support Howard's and Boreman's request. U.S. Marshal William Nelson told Alphonso Taft on 19 December 1876 of the discovery of physical evidence in California, asking the Justice Department help to retrieve it. On 12 February 1877, Howard told Taft that Howard had located a possible eyewitness to the massacre, a Fancher child, now an adult languishing in the penitentiary for robbery. Howard asked Taft for help from the Justice Department to corroborate the witness's identity. The secretary of war responded with the information requested.

On 23 February 1877, Boreman communicated to Howard a desire to spend more money on the marshal's efforts to intercept the other perpetrators before they fled to New Mexico. Howard and Nelson wrote to Taft on 3 March to urge that "the importance of availing ourselves of every reasonable means to bring others equally guilty to trial—is apparent. The trial of Lee has resulted in developments that give us a reasonable hope that the others—if arrested can be convicted."

Taft's successor, Attorney General Charles Devens, responded to the correspondence of the third and questioned whether a five-hundred-dollar reward requested for the arrest of Haight, Higbee, and Stewart would be wasted. Lee was executed four days later on 23 March 1877.

Three days after the execution, Howard recommended to Devens that undercover officers be used to effect the remaining arrests. On 2 May 1877, after learning that George C. Bates, Lee's former attorney, wished a special appointment to attempt the apprehension of Haight, Higbee, and Stewart, Howard complained to Devens that Bates's proposal was "another of Brigham Young's . . . games to thwart the officers" in their arrests. Why would Howard have condemned the "games" of Brigham Young to thwart further arrests if Howard had agreed, as Bagley and Brooks say, to forgo all arrests?

On 20 October 1877, over one year after the deal Bagley claims the government made to thwart justice, Howard's assistant and Boreman petitioned the president of the United States for additional appropriations for a special agent.134 Howard wrote Devens, disagreeing with his assistant, asking that the money instead be spent on undercover agents who could approach the fugitives by stealth.

After Howard resigned in February 1878 to pursue a respected career in law and politics in Michigan, federal efforts to arrest Haight, Higbee, and Stewart continued. Boreman wrote to Devens on 1 January 1879 with a request for additional appropriations. "The arrest of these men has been delayed so long that the people are not anticipating any effort in that way. This then would be a suitable time to make the arrests." Eleven months later, Devens approved the request. In 1884, or almost seven years after Bagley claims a deal was made to frustrate further prosecutions, an acting attorney general confirmed Utah inquiries from the U.S. marshal that reward money was still offered for the arrests of Haight, Higbee, and Stewart.

Thus all of this post-Lee-conviction activity by the prosecutor's office and the judiciary would have made no sense whatsoever if all agreed and understood there was a deal to thwart justice. What is the answer from Young critics and Lee advocates on this point? Was it all a subterfuge involving two federal prosecutors, a federal judge, several U.S. marshals, a secretary of war, and at least three U.S. attorneys general?

Dwyer's work: Bagley's manipulation of source

When Bagley gets to this postconviction official action, his analysis is stunted, missing nearly all the correspondence mentioned above. He relies solely on a doctoral dissertation by Rev. Robert Joseph Dwyer later published as The Gentile Comes to Utah: A Study in Religious and Social Conflict (1862—1890). This is a weak work, at least when it discusses post-Lee official action, because Dwyer lacked many of the official sources I have cited above. Nonetheless, with the limited sources Dwyer possessed, he does not conclude that a deal had been struck between prosecutors and the church.

What annoyed me most about Bagley's use of Dwyer's work is that Bagley chose to cut and paste Dwyer's own words into Blood of the Prophets although Dwyer does not reach the same conclusions Bagley does. The dissonance in some of Dwyer's fuzzy logic becomes incomprehensible when Bagley repeats almost verbatim the Dwyer logic as original thought.

The Jailers and the Gilman Affidavit

When Bagley does get specific with Dwyer's work, he focuses on a dispute between a claimed jailer, assistant U.S. Marshal Edwin Gilman, and U.S. District Attorney Sumner Howard (p. 308). Relying solely on Dwyer's secondary work, Bagley tells us that Gilman's affidavit reported that Howard at the trial intentionally suppressed Lee testimony that would have implicated Brigham Young. Bagley, however, does not refer to Gilman's affidavit because Dwyer lacks one and, hence, Bagley does not have it. After telling us about Gilman, Bagley reiterates the suggestion that "the Mormons had corrupted Howard" (p. 309).

It is curious that when Bagley discusses the Gilman affidavit he relies on a secondary source that never had the affidavit. The affidavit in full, and Sumner Howard's response to the affidavit, were published in the New York Herald (James G. Bennett's paper) on 12 April 1877. The day before, the Salt Lake Daily Tribune had published Howard's response on 11 April.

In his affidavit, Gilman declared that he was a jailer in Beaver. At Howard's request, Lee prepared a confession, and "as read to and by me, charged Brigham Young with direct complicity in the Mountain Meadows Massacre, as an accessory before the fact, that Brigham Young had written letters to Dame and Haight, at Parowan directing them to see that the emigrants were all put to death."

Bagley, however, does not tell us about Howard's rebuttal to Gilman's charge. Howard's rebuttal seems irrefutable, and indeed, I am unaware that Gilman ever attempted a refutation of the rebuttal. Howard says that no Gilman affidavit was ever found at the Justice Department (the New York Herald reported it had been filed) and that Gilman disappeared so nobody could interview him. Howard said that Gilman was never a jailer at Beaver. Howard said that Gilman never had an opportunity to speak to Lee and thus Gilman would never have been in a position to hear any purported confession. Howard reported that "Gilman is a notorious liar; has been impeached here in Court, and there are not ten men in the Territory acquainted with him who would take his oath or word." Further, the "confession of Lee has not been sold, altered, suppressed or in any other manner put to an improper use." Because the Gilman affair is Bagley's chief source for a "deal," I find it remarkable that he does not even possess a copy of the Gilman affidavit.

A better account

A more accurate account of the relationship between Howard and the jailers can be seen from an earlier 21 March 1877 article in the New York Herald that reported that the jailers were upset that Lee refused to implicate his accomplices. Howard had given up trying to get information "as was expected and as he indirectly promised." Nowhere is there any shred of evidence that Lee told Howard something that was not published in these newspapers. Nowhere is Gilman mentioned in the earlier article. Nowhere do we read any corroboration of the statements contained in the supposed Gilman affidavit. Justice of the peace and jailer Benjamin Spear had claimed one month earlier that Judge Boreman and other fellow officers were either timid or bribed by "Brigham Young's blood stained coin." Spear claimed obliquely that John D. Lee had more to say and had so told Spear at one time, but Spear wouldn't get specific about his charges. Spear also complained that John D. Lee was permitted to cohabit with his wives.

U.S. Attorney General Devens asked Howard to come to Washington to explain the jailers' charges, specifically focusing only on a charge that the jailers were selling a confession for profit. Nowhere in Devens's letter does Devens give any credence to Gilman's or Spears's vague claims that Howard suppressed evidence that implicated Brigham Young. Devens would have mentioned such an incendiary charge had there been any credibility to it. On 16 April 1877, Howard told Devens that "I will state here that the allegations of Gilman are cruel wicked and infamous—without the least grain of truth." Bagley tells us that Howard went to Washington to respond to the charges against him, but the official correspondence shows that Devens accepted Howard's explanation and reversed his request to see Howard.

Summary of charges of a deal

To summarize, the official correspondence shows years of prosecutorial effort to apprehend massacre perpetrators. This effort overwhelms the meager and faulty story Bagley puts together from the Gilman affair. To rely upon secondary material for the "deal" theory, particularly where primary material was published in the national press, is not good scholarship. Bagley's lack of knowledge of the official correspondence discussing prosecutorial effort is a significant impediment to his credibility.

An alternate view

What really happened between Howard and the Church? Let me suggest a plausible explanation for the facts that have led laypersons in the past to think there was a deal to make Lee a scapegoat. After the first trial failed and Sumner Howard replaced the prior prosecutors, the Salt Lake Daily Tribune peppered its editorial column with charges of prosecutorial bungling. The paper charged the prosecutors with grandstanding against church authorities and failing to adduce specific evidence against Lee. U.S. District Attorney Howard, not willing to repeat the mistakes of his predecessors, decided he needed a different strategy and slate of witnesses. However, many of the desired witnesses could not be found. Howard met with church officials to lobby their support to encourage witnesses to come forward. Howard assured church authorities that he sought only justice and that he had no evidence against Brigham Young or George A. Smith. Nor did Howard give up on Brigham Young; both Orson F. Whitney and the New York Herald reported that Howard offered Lee a full pardon in exchange for evidence against Brigham Young. Church authorities probably got the word out to witnesses to encourage them to cooperate.

Few of the witnesses in the first trial testified in the second. Howard did not call Klingensmith, who had turned state's evidence in the previous trial. This indicates to me that Howard did not want to repeat the errors of his predecessors. Howard probably asked the church to have a nominal presence at the trial. Daniel Wells agreed to testify, and he did so. Ostensibly, Wells's testimony was necessary to show that Lee was not a high church authority. The night before his testimony, Wells preached a fiery sermon in Parowan demanding justice, but not necessarily against Lee. (I have not seen the text of that sermon.) The Deseret News also published editorials demanding justice. The jurors deliberated. According to the Corry affidavit, the decision was not an easy one to make. No external force influenced the jurors, other than the social difficulty of convicting one's own. But, in the end, Lee was convicted. Investigations continued against other perpetrators, but they secreted themselves effectively in the wilds of the desert. No doubt the other perpetrators had plenty of Mormon friends and family willing to assist with their evasion.

Notes

Question: Was there a "deal" made with Brigham Young regarding prosecution for the Mountain Meadows Massacre?

There is no compelling evidence that such a deal was ever made

Critics charge that only a corrupt "deal" with Brigham Young allowed prosecutors to charge and convict anyone with the Mountain Meadows Massacre.

The continued theory of a deal to offer Lee as a scapegoat lacks competent, much less compelling, evidence. Speculation is a game played by Bagley...but there ought to be more than that.

One reviewer described the difficulties with this theory:

Introduction

Blood of the Prophets tells us that the U.S. district attorney's office struck a deal with the church: they would offer John D. Lee as a scapegoat to avoid all further prosecutions, and in return the church would help convict Lee in a second trial. For critics of the church (and I would put Blood of the Prophets in this category), the deal and scapegoat story helps sell the idea that the church was not above thwarting justice. For advocates of John D. Lee (and I would put [Juanita] Brooks in this category), the deal and the scapegoat theory helps sell the idea that an innocent Lee was willing to suffer as a martyr for his friends and church.

The deal is important to Bagley's conclusions. He says: "In a case that threatened to shake the LDS church to its foundations, the prosecutor found he could only secure a guilty verdict with the cooperation of Mormon authorities. As attorneys do, Howard made a deal" (p. 300). As part of this deal, the church assisted Howard with manufactured evidence and manipulated justice (p. 299). Bagley also tells us that U.S. District Attorney Howard was "'on the make,'" or in other words, had been bribed or threatened with blackmail by church leaders (p. 299).

Bagley's failures in this area are the same as Brooks's and the Salt Lake Daily Tribune's. The latter first floated this theory on 27 September 1876, citing only supposition. So Bagley is in good company.

...we will [first] examine the law, which demonstrates that any deal would have been a worthless nullity. We will then look at the evidence Bagley offers to support his theory of a deal, to show that his evidence lacks proper foundation and is thus not reliable. Lastly, we will see from an overwhelming amount of official correspondence that Howard's later actions were inconsistent with any "deal."

The law

The Law Pertaining to Agreements to Thwart Justice. A "deal" to thwart justice would have been a legal impossibility, a nullity, void at the outset, and obligating nobody. Under English and American common law, certain agreements such as agreements to collect gambling debts incurred in nongambling jurisdictions, to pay for a prostitute, or not to report a crime are unenforceable. Another example of an unenforceable agreement is an agreement to forbear prosecution of a crime. In U.S. v. Ford, an 1878 U.S. Supreme Court decision, the court summarized the law of forbearance of prosecution. A grant of immunity must be approved by a judge and is granted only to accomplices willing to come forward and testify in good faith against an accused. On the other hand, the court said that an executive pardon does not require approval by a judge or does not constitute an agreement to come forward to testify, but it does require a presidential act. A pardon usually comes only after conviction of the to-be-pardoned felon. Thus, the two kinds of deals approved by the Supreme Court require an official stamp of approval by persons other than the prosecutor; secret deals would not work.

Before the Supreme Court's 1878 decision, grants of immunity were questionable. Prevailing law before U.S. v. Ford suggested that a grant of immunity might not have been enforceable if the person granted immunity "appear[ed] to have been the principal offender" and that the best one could hope for was an "equitable" claim to a presidential pardon. Howard would also have known that an unlawful grant of immunity may have been a crime itself; he could have been subject to prosecution. He was obviously knowledgeable in the area because he appears to have offered John D. Lee a presidential pardon after Lee's conviction.

Any subsequent U.S. district attorney, or even Howard himself, could have simply ignored a deal to thwart justice and could have prosecuted any person worthy of prosecution. Therefore, if a deal to thwart justice was a nullity at the outset, it seems unlikely that a competent lawyer would have spent any effort reaching such a deal.

Bagley's Evidence of a Deal

Turning to Bagley's evidence of a deal to make John D. Lee a scapegoat (which really is unnecessary to discuss, given the legal impossibility of such a deal in the first place), we find it wanting. For example, there is no evidence whatsoever, other than reported rumor, that U.S. District Attorney Sumner Howard was bribed.

Witnesses told what to say?

Nor is there evidence that witnesses were told what to say. Bagley, as does Brooks, says that "according to . . . family traditions," Nephi Johnson and Jacob Hamblin received letters ordering them to testify and "telling them what to say" (p. 304). "Family traditions" are not evidence. I would like to see the letters. What would they have shown? That witnesses were told to lie about Lee's guilt when Lee was not really guilty? It is unlikely that Lee was not guilty. Although there may indeed have been letters telling witnesses to cooperate, it is doubtful that the letters instructed them what to say.

As further evidence of a deal, Bagley examines Hamblin's role in the second trial. Bagley and the Salt Lake Daily Tribune attack, in particular, Hamblin's testimony that Lee confessed to him and the fact that Hamblin never mentioned the confession to investigating law enforcement officers. They claim that Lee's confession to Hamblin never occurred, and they have suggested that church officials orchestrated Hamblin's testimony to secure Lee's conviction. Brooks agreed with Bagley's later assessment that Hamblin's testimony was selectively truthful and that he "could not remember what he did not want to tell."

The transcript shows that no lawyer in the second trial pushed Hamblin to say very much although Hamblin said he had more to tell. Each side was undoubtedly fearful to ask questions that would elicit previously unknown answers. Either side could have asked the court to order Hamblin, upon pain of contempt, to tell it all. Neither side did. Had I been the prosecutor, I would not want Hamblin to say anything that might possibly implicate Brigham Young because, in that event, I would have followed the same unsuccessful strategy of grandstanding against Brigham Young as did U.S. District Attorneys William Carey and Robert Baskin in the 1875 trial. Similarly, because Hamblin was under the control of the prosecution, as Lee's defense lawyer I would not know what Hamblin would say. In this particular case, less was more. There is no evidence that Hamblin lied; in fact, Hamblin's recent biographer, Hartt Wixom, takes exception to the charge of perjury. Lee's attorney, Bishop, admitted that Hamblin was an honest man, even though Lee contended that Hamblin's testimony was false. The press may have wished that Hamblin had said more, but Hamblin was not talking to the press.

A juror's dream has not the slightest chance of constituting evidence, but Bagley offers it to us as such (p. 306). Blood of the Prophets uses juror Andrew Corry's recollection of a conversation he had with another juror about that juror's dream that Lee would be offered as a scapegoat. When Corry executed his affidavit in 1932 he was eighty-four years old. He had probably been pursued for fifty-six years by persons interested in having him support a particular view. The affidavit looks to be too fine a production.

Corry's affidavit, nonetheless, is compelling to me in a way Blood of the Prophets would not appreciate. Corry does not claim any external pressure to vote for Lee's conviction. He does not mention any pressure by any church authority to vote a particular way. He does not mention a deal. Corry dwells on the scapegoat theory, but that theory was the only defense theory offered by Lee's attorneys and the only possible theory for the jurors to debate. It seems that fifty-six years would have uncovered a claim of church pressure, given Corry's willingness to spill all in his affidavit.

Dictate to jurors?

Blood of the Prophets tells us that William Bishop, Lee's attorney, claims that he had an agreement with local church authorities to select particular persons as jurors (p. 302). According to Bishop:

The attorneys for the defendant had been furnished with a list of the jurymen, and the list was examined by a committee of Mormons, who marked those who would convict with a dash (—), those who would rather not convict with a star (*), and those were certain to acquit John D. Lee, under all circumstances, with two stars (**).

If Bishop asserts, which he really does not, that local church leaders agreed with him to dictate to jurors the outcome of the case, Bishop would be admitting to a crime at the most and grounds for disbarment at the least.

Blood of the Prophets recounts a story by Frank Lee that each juror favorable to Lee's cause would have a "star pinned under his arm" so that Bishop would know "whom to choose" (p. 302). I don't trust this evidence. According to genealogical records, and Bagley does not mention this, Frank Lee would have been barely thirteen years old by the time of the second trial when he claims that this information was conveyed "in the Council meeting." Frank Lee does not say he was at the meeting. A thirteen-year-old boy, one who had lived in isolation his entire life with his mother Rachel, would not likely understand the intricacies of conspiracies to suborn perjury. How many of the dozens or hundreds of potential jurors would have been trained to display their underarms only to Bishop? What would the stars have looked like? Frank Lee undoubtedly misheard secondhand family accounts of Bishop's list of potential jurors.

It certainly is not unusual for an experienced trial lawyer in a small town to compile a list of dozens of known veniremen (someone who is summoned to serve on a jury) and rank them according to their proclivities. A trial lawyer will use many sources to learn facts about these potential jurors. Even an experienced lawyer might get too close to potential jurors in the pretrial phase, as Clarence Darrow learned when he was indicted in 1911 in Los Angeles for allegedly offering money to a potential juror before jurors were called. Bishop probably analyzed the pretrial jury pool. His friendly sources were sympathetic Mormons in the community who probably identified to him and Lee those veniremen who might vote Lee's way.

Bagley and the press also cite as evidence of a deal the fact that an all-Mormon jury was selected for the first trial. Obviously, the argument goes, an all-Mormon jury could be controlled by the church more easily than a part-Mormon jury. Lee's attorney advanced this theory during closing argument. Howard replied by explaining that it was Lee's attorney, not the prosecution, who had struck non-Mormons from the panel. Bishop, said Howard, "was very anxious to get every Gentile off the jury; and I kept striking off Mormons." Because Mormons outnumbered non-Mormons by a huge margin, and because challenges to jurors are typically limited to a certain number per side, it would have been relatively easy for one side to unilaterally control the religious makeup of the jury. According to the uncontested trial transcript, it was Lee's attorney who did this and not, as Bagley argues, Howard. Bishop's unilateral selection of an all-Mormon jury (obviously, a smart thing to do since Mormons had previously voted to acquit) is an important fact in this story that Bagley misses.

Other than the unilateral ability to strike a limited number of jurors, neither party had control over the selection of the jury. According to press reports, the selection process was trilateral, with each side and the court having its say. It would be difficult to corrupt an entire jury pool for the twelve who would be empanelled. In any event, there was no limit to public and press contact with the jurors after the trial. After years of controversy over this case, as far as I know, no juror claimed to have been part of a conspiracy or to have received instructions from church authorities.

Judge and the deal?

Bagley also cites Judge Boreman himself for evidence of a deal:

The deal [Sumner Howard] struck with Brigham Young troubled even Howard. On the first day of the trial, the prosecutor stopped Judge Boreman as he was going to court. "Judge, I have eaten dirt & I have gone down out of sight in dirt & expect to eat more dirt." (p. 301)

Boreman never believed Howard had made a deal, as I will show from correspondence discussed below. Nonetheless, the conversation quoted above says nothing of consequence. Boreman does not claim this to be evidence of any deal and even admits that another witness to the conversation denied it.118 Bagley tells us that Howard's disclosure troubled Boreman, but there is no evidence of this.

Finally, Bagley tells us that "prevailing wisdom had it that the LDS church would dictate the outcome" and that one of Brigham Young's sons, John W. Young, took bets on the Chicago Board of Trade as to the outcome. Bagley's source for these two statements is the muckraking reporter John Beadle (p. 296). No serious scholar would accept as "prevailing wisdom" the conclusions of reporters for modern newspapers. Why should we accept John Beadle for "prevailing wisdom?" Admittedly, John W. Young may have been a colorful character, but I wouldn't rely on Beadle for the account of bets taken on the Chicago Board of Trade.

Evidence against the deal

Evidence Refuting the Deal, Which Bagley Ignores. In the analysis above, we have seen that the U.S. district attorney would never have entered into a deal to thwart justice because he would have known it would have been unenforceable. We have also seen that Bagley's evidence of a deal is without foundation.

Looking at the evidence refuting the notion of a deal, we find it is substantial. For years after the start of the Lee trial, until at least as late as 1884, federal prosecutors and investigators actively sought to bring other massacre participants to justice. Had the church and federal prosecutors struck a deal that only Lee would be prosecuted, we should expect that all parties to the deal would act thereafter in a manner consistent with a deal. None of the parties acted in such a manner.

The Salt Lake Daily Tribune reports the church's call for continued prosecutions on 23 September 1876. A few days later and after Lee's conviction, the Tribune on 27 September 1876 published a summary of its grounds for believing that Howard had cut a deal with the church. One day after the Tribunes accusation, and most likely in response to the Tribunes charges, Howard described to the U.S. attorney general meetings with the church in which he lobbied for assistance in locating witnesses. "That aid was given." Howard also told the church authorities that he had no present evidence against them. Howard also complained of political intrigue from former prosecutors to malign his successful efforts.

On 4 and 5 October 1876, U.S. District Attorney Howard wrote to U.S. Attorney General Alphonso Taft and explained his plans to arrest Haight, Higbee, and Stewart. Judge Boreman endorsed the 5 October letter with a note of his own (reproduced on p. 241) to Taft.

The letter from Boreman to the U.S. attorney general shows several things that are fundamentally inconsistent with Bagley's theories about the deal. On the one hand, Bagley tells us that Boreman and Howard were troubled with the deal Howard had to make to thwart justice for other perpetrators (p. 301). On the other hand, the official correspondence shows that Boreman endorsed Howard's plan for further pursuit and arrest. Boreman agreed with Howard's progress. Under Bagley's view of the facts, Boreman should have called for Howard's ouster. It seems Bagley has this completely wrong.

The evidence from official sources mounts against Bagley's and Brooks's theory of a deal. Taft authorized additional personnel to support Howard's and Boreman's request. U.S. Marshal William Nelson told Alphonso Taft on 19 December 1876 of the discovery of physical evidence in California, asking the Justice Department help to retrieve it. On 12 February 1877, Howard told Taft that Howard had located a possible eyewitness to the massacre, a Fancher child, now an adult languishing in the penitentiary for robbery. Howard asked Taft for help from the Justice Department to corroborate the witness's identity. The secretary of war responded with the information requested.

On 23 February 1877, Boreman communicated to Howard a desire to spend more money on the marshal's efforts to intercept the other perpetrators before they fled to New Mexico. Howard and Nelson wrote to Taft on 3 March to urge that "the importance of availing ourselves of every reasonable means to bring others equally guilty to trial—is apparent. The trial of Lee has resulted in developments that give us a reasonable hope that the others—if arrested can be convicted."

Taft's successor, Attorney General Charles Devens, responded to the correspondence of the third and questioned whether a five-hundred-dollar reward requested for the arrest of Haight, Higbee, and Stewart would be wasted. Lee was executed four days later on 23 March 1877.

Three days after the execution, Howard recommended to Devens that undercover officers be used to effect the remaining arrests. On 2 May 1877, after learning that George C. Bates, Lee's former attorney, wished a special appointment to attempt the apprehension of Haight, Higbee, and Stewart, Howard complained to Devens that Bates's proposal was "another of Brigham Young's . . . games to thwart the officers" in their arrests. Why would Howard have condemned the "games" of Brigham Young to thwart further arrests if Howard had agreed, as Bagley and Brooks say, to forgo all arrests?

On 20 October 1877, over one year after the deal Bagley claims the government made to thwart justice, Howard's assistant and Boreman petitioned the president of the United States for additional appropriations for a special agent.134 Howard wrote Devens, disagreeing with his assistant, asking that the money instead be spent on undercover agents who could approach the fugitives by stealth.

After Howard resigned in February 1878 to pursue a respected career in law and politics in Michigan, federal efforts to arrest Haight, Higbee, and Stewart continued. Boreman wrote to Devens on 1 January 1879 with a request for additional appropriations. "The arrest of these men has been delayed so long that the people are not anticipating any effort in that way. This then would be a suitable time to make the arrests." Eleven months later, Devens approved the request. In 1884, or almost seven years after Bagley claims a deal was made to frustrate further prosecutions, an acting attorney general confirmed Utah inquiries from the U.S. marshal that reward money was still offered for the arrests of Haight, Higbee, and Stewart.

Thus all of this post-Lee-conviction activity by the prosecutor's office and the judiciary would have made no sense whatsoever if all agreed and understood there was a deal to thwart justice. What is the answer from Young critics and Lee advocates on this point? Was it all a subterfuge involving two federal prosecutors, a federal judge, several U.S. marshals, a secretary of war, and at least three U.S. attorneys general?

Dwyer's work: Bagley's manipulation of source

When Bagley gets to this postconviction official action, his analysis is stunted, missing nearly all the correspondence mentioned above. He relies solely on a doctoral dissertation by Rev. Robert Joseph Dwyer later published as The Gentile Comes to Utah: A Study in Religious and Social Conflict (1862—1890). This is a weak work, at least when it discusses post-Lee official action, because Dwyer lacked many of the official sources I have cited above. Nonetheless, with the limited sources Dwyer possessed, he does not conclude that a deal had been struck between prosecutors and the church.

What annoyed me most about Bagley's use of Dwyer's work is that Bagley chose to cut and paste Dwyer's own words into Blood of the Prophets although Dwyer does not reach the same conclusions Bagley does. The dissonance in some of Dwyer's fuzzy logic becomes incomprehensible when Bagley repeats almost verbatim the Dwyer logic as original thought.

The Jailers and the Gilman Affidavit

When Bagley does get specific with Dwyer's work, he focuses on a dispute between a claimed jailer, assistant U.S. Marshal Edwin Gilman, and U.S. District Attorney Sumner Howard (p. 308). Relying solely on Dwyer's secondary work, Bagley tells us that Gilman's affidavit reported that Howard at the trial intentionally suppressed Lee testimony that would have implicated Brigham Young. Bagley, however, does not refer to Gilman's affidavit because Dwyer lacks one and, hence, Bagley does not have it. After telling us about Gilman, Bagley reiterates the suggestion that "the Mormons had corrupted Howard" (p. 309).

It is curious that when Bagley discusses the Gilman affidavit he relies on a secondary source that never had the affidavit. The affidavit in full, and Sumner Howard's response to the affidavit, were published in the New York Herald (James G. Bennett's paper) on 12 April 1877. The day before, the Salt Lake Daily Tribune had published Howard's response on 11 April.

In his affidavit, Gilman declared that he was a jailer in Beaver. At Howard's request, Lee prepared a confession, and "as read to and by me, charged Brigham Young with direct complicity in the Mountain Meadows Massacre, as an accessory before the fact, that Brigham Young had written letters to Dame and Haight, at Parowan directing them to see that the emigrants were all put to death."

Bagley, however, does not tell us about Howard's rebuttal to Gilman's charge. Howard's rebuttal seems irrefutable, and indeed, I am unaware that Gilman ever attempted a refutation of the rebuttal. Howard says that no Gilman affidavit was ever found at the Justice Department (the New York Herald reported it had been filed) and that Gilman disappeared so nobody could interview him. Howard said that Gilman was never a jailer at Beaver. Howard said that Gilman never had an opportunity to speak to Lee and thus Gilman would never have been in a position to hear any purported confession. Howard reported that "Gilman is a notorious liar; has been impeached here in Court, and there are not ten men in the Territory acquainted with him who would take his oath or word." Further, the "confession of Lee has not been sold, altered, suppressed or in any other manner put to an improper use." Because the Gilman affair is Bagley's chief source for a "deal," I find it remarkable that he does not even possess a copy of the Gilman affidavit.

A better account

A more accurate account of the relationship between Howard and the jailers can be seen from an earlier 21 March 1877 article in the New York Herald that reported that the jailers were upset that Lee refused to implicate his accomplices. Howard had given up trying to get information "as was expected and as he indirectly promised." Nowhere is there any shred of evidence that Lee told Howard something that was not published in these newspapers. Nowhere is Gilman mentioned in the earlier article. Nowhere do we read any corroboration of the statements contained in the supposed Gilman affidavit. Justice of the peace and jailer Benjamin Spear had claimed one month earlier that Judge Boreman and other fellow officers were either timid or bribed by "Brigham Young's blood stained coin." Spear claimed obliquely that John D. Lee had more to say and had so told Spear at one time, but Spear wouldn't get specific about his charges. Spear also complained that John D. Lee was permitted to cohabit with his wives.

U.S. Attorney General Devens asked Howard to come to Washington to explain the jailers' charges, specifically focusing only on a charge that the jailers were selling a confession for profit. Nowhere in Devens's letter does Devens give any credence to Gilman's or Spears's vague claims that Howard suppressed evidence that implicated Brigham Young. Devens would have mentioned such an incendiary charge had there been any credibility to it. On 16 April 1877, Howard told Devens that "I will state here that the allegations of Gilman are cruel wicked and infamous—without the least grain of truth." Bagley tells us that Howard went to Washington to respond to the charges against him, but the official correspondence shows that Devens accepted Howard's explanation and reversed his request to see Howard.

Summary of charges of a deal

To summarize, the official correspondence shows years of prosecutorial effort to apprehend massacre perpetrators. This effort overwhelms the meager and faulty story Bagley puts together from the Gilman affair. To rely upon secondary material for the "deal" theory, particularly where primary material was published in the national press, is not good scholarship. Bagley's lack of knowledge of the official correspondence discussing prosecutorial effort is a significant impediment to his credibility.

An alternate view

What really happened between Howard and the Church? Let me suggest a plausible explanation for the facts that have led laypersons in the past to think there was a deal to make Lee a scapegoat. After the first trial failed and Sumner Howard replaced the prior prosecutors, the Salt Lake Daily Tribune peppered its editorial column with charges of prosecutorial bungling. The paper charged the prosecutors with grandstanding against church authorities and failing to adduce specific evidence against Lee. U.S. District Attorney Howard, not willing to repeat the mistakes of his predecessors, decided he needed a different strategy and slate of witnesses. However, many of the desired witnesses could not be found. Howard met with church officials to lobby their support to encourage witnesses to come forward. Howard assured church authorities that he sought only justice and that he had no evidence against Brigham Young or George A. Smith. Nor did Howard give up on Brigham Young; both Orson F. Whitney and the New York Herald reported that Howard offered Lee a full pardon in exchange for evidence against Brigham Young. Church authorities probably got the word out to witnesses to encourage them to cooperate.

Few of the witnesses in the first trial testified in the second. Howard did not call Klingensmith, who had turned state's evidence in the previous trial. This indicates to me that Howard did not want to repeat the errors of his predecessors. Howard probably asked the church to have a nominal presence at the trial. Daniel Wells agreed to testify, and he did so. Ostensibly, Wells's testimony was necessary to show that Lee was not a high church authority. The night before his testimony, Wells preached a fiery sermon in Parowan demanding justice, but not necessarily against Lee. (I have not seen the text of that sermon.) The Deseret News also published editorials demanding justice. The jurors deliberated. According to the Corry affidavit, the decision was not an easy one to make. No external force influenced the jurors, other than the social difficulty of convicting one's own. But, in the end, Lee was convicted. Investigations continued against other perpetrators, but they secreted themselves effectively in the wilds of the desert. No doubt the other perpetrators had plenty of Mormon friends and family willing to assist with their evasion.