If one material fact would come to light convincing me of her innocence, I would not press this case if the whole country was behind my back howling for her blood.
—Colonel John Feighan, Attorney for Lyon County (1885)
Lyon County authorities were well aware that the Walkup trial would be a big one. Not only would there be newspaper correspondents from all over the country, but the crush of people wanting to attend was liable to be staggering. Sheriff Wilhite’s task was to find room for three hundred seats in the main courtroom area and also to build a witness platform so everyone could see those testifying.1
Female attendees were limited to the east gallery, overlooking the courtroom. No daily newspaper account of the trial (all by male reporters) was complete without an accounting of the number of women present, their behavior, and the appropriateness, or (mostly) lack thereof, of their presence on that particular day. Usually, there were about 200–250 women in attendance, and often they brought their children—some quite small. The bailiffs had a hard time controlling the antics of bored children who amused themselves by running up and down the gallery stairs, and testimony was sometimes drowned out by the wailing of infants. (They might not understand the rap of the gavel, a newspaper pointed out, but they would probably understand a rap on the head.)
The women figured out early on that to leave their seats at the lunch break was to lose them for the afternoon session. Consequently, many of them brought lunch baskets to court, while others merely stuffed their pockets with apples and gingerbread. The women seem to have been quite vocal as well, laughing or gasping in response to testimony and chatting among themselves or admonishing their children. Judge Graves frequently interrupted the session to say that he would have the bailiff evict those who could not control themselves, but he never followed through on these threats.
Most of the women in attendance had opera glasses, necessitated by their distance away from the action, but the binoculars were not always trained on the witnesses. They were used instead to look at Minnie, to note her appearance and her reaction to the testimony.
Another group relegated to the gallery section was African Americans, primarily men. Sometimes a reporter would comment on the number of “colored gentlemen” on a given day, but for the most part they were ignored.
Those who could not squeeze themselves into the seating on the main floor or the galleries had to stand. On the first day of the trial, which consisted of jury selection, the attendance figure was seven hundred, and this number was frequently repeated throughout the duration. There were schoolchildren and students from the Normal School (teachers’ college) and visitors from out of town, primarily doctors and lawyers. One esteemed visitor was attorney Colonel Charles Crysler of Independence, Missouri, who had recently defended outlaw Frank James, brother of Jesse, for a train robbery in Gallatin. Court was held on Saturday and all the farm families from the outlying districts, in town to do their weekly shopping and trading, stopped in at the courthouse.
It is no surprise, then, that there was so much ongoing disorder in the courtroom. It was impossible to keep everyone quiet, and Judge Graves seems to have resigned himself to a somewhat acceptable level of noise, above which he would threaten to throw people out. Added to the human element was the deafening presence, within forty feet of the courthouse, of the Atchison, Topeka, & Santa Fe Railway.
To accommodate those who would not be able to attend the trial (and probably also those in attendance who wouldn’t be able to hear anything over all the din in the courtroom), the Emporia Daily Republican promised its readers a verbatim transcript of the testimony each day. This transcript would be available only through a special subscription of seventy-five cents (equivalent to about twenty dollars today). And so, after every day’s proceedings, the court stenographer, Miss Lane, produced a transcript for the Daily Republican.2
Bill Greer wanted a transcript, too, although his newspaper would not be printing a verbatim account. He approached Judge Graves, who told him he could have one the next morning. “No, your Honor, that won’t do,” the reporter told him. “I will be writing up my article and wiring it to New Orleans before your Honor goes to bed tonight.” “We live in a fast age,” Graves said. “All right, you’ve got your transcript.” And so, Miss Lane (who was universally admired by the male reporters for her youth, beauty, and efficiency) had even more work after her day in court. Greer thought she was “the hardest-working person in the case.”3
Greer did not forget Judge Graves’s kindness (“His Honor is a most courteous and affable gentleman”). Every afternoon, when his bundle of Daily Picayune newspapers arrived, he saved one for the judge. The rest were quickly snapped up by the attorneys. To Greer’s immense pride, “the Picayune is universally complimented on the fullness of its report.”4
Judge Charles B. Graves, forty-three, was, like most of the attorneys in the case (and, in fact, like most of the men of James Walkup’s generation in Emporia), a veteran of the Civil War. He had been a farmer, a city attorney, and a county attorney before his 1880 election as judge of the Fifth Judicial District. He was a kindly man, but also a no-nonsense one. Bill Greer observed an actual slugging match between two attorneys arguing before Judge Graves on another case. Graves came down from the bench, grabbed one of the combatants, and pitched him over the railing into the spectator section.5
Colonel John W. Feighan, forty, county attorney for Lyon County, was a graduate of Miami University of Ohio and the Cincinnati School of Law. His former partner, fifty-year-old J. Jay Buck (called “Judge Buck” because he had once been a justice of the peace), joined him as the trial went on.6
Ordinarily, Feighan would be the only prosecutor in the case, because that was his job, but William Jay had hired more defense counsel and Harry Hood wanted to even up the sides. Hood brought in his best friend, the portly Clinton N. Sterry, forty-three, who had vowed to Hood that he would see to it that his father-in-law’s poisoner would be punished; and Isaac E. Lambert, thirty-one, Major Hood’s protégé and the youngest attorney at the trial. Sterry was actually a close personal friend of defense counsel William Scott (although it would be hard to tell that as the trial progressed). A brilliant cross-examiner, he went through the entire trial with an unlit cigar in his hand. Lambert had studied under the controversial Robert Ingersoll and had a very impressive 9–3 record in murder cases.7
Besides William Scott for the defense, there was Thomas P. Fenlon of Leavenworth, another noted trial attorney. Admitted under special permission was young (age thirty-one, the same as Lambert) George S. Dodds of Hazlehurst, Mississippi, whose stated motive in joining the defense was to help his childhood friend, Minnie Wallace. It is not known how exactly Dodds could have been a childhood friend, given their age difference and that Dodds does not seem to have ever left the town of Hazlehurst, 125 miles from New Orleans. But he was young and handsome and much admired as a “large, fine-looking man.”8
Rounding out the defense was Edward C. Ward, forty-six, of Parsons, Kansas, whose services were obtained by Mrs. Augustus Wilson, Kansas Commissioner for the New Orleans Cotton Exposition and paid for by Minnie’s father (see chapter 10, page 117).9
Those living in the twenty-first century would be shocked at the nineteenth-century jury selection process. There were no women and no African Americans. As the process went on, prospective jurors’ names, addresses, ages, and occupations were printed in the newspapers, along with the various reasons for their being excused. In the Walkup case, each candidate was asked for a short biography, then questioned as to whether he had heard about the case and formed an opinion. If he had no opinion, he was allowed to stay. If he had formed an opinion, he was excused for cause. In today’s system, a prospective juror (sometimes referred to as a venireman) would not be excused for having formed an opinion unless it were determined that he or she could not or would not change it.10
Murder was a hanging offense in Kansas, and the veniremen were asked if they would be afraid to find a woman guilty. One man was a Quaker and against capital punishment, so he was gone. Another had conscientious scruples against serving as a juror. He was gone, too. Those in the jury pool were asked if they had known either James Walkup or Harry Hood. And that was it. A jury of twelve was obtained by 4:00 that afternoon, October 19, 1885. They were all farmers, all married, and their average age was forty-six.
For the duration of the trial, the jurors would be sequestered at the Park Place Hotel under the guardianship of Deputy Sheriff Waldo Wooster, who took them for an hour’s walk each night, saying that he was “exercising his pets.”11
Minnie, for her first day in court, was very stylishly dressed in an “ottoman silk jersey and cashmere dress, trimmed with chenille, all in a rich shade of black.” Two minutes after the doors were opened that day, the courtroom and galleries were filled to capacity. Seven hundred people packed themselves inside, not to hear the boring jury selection, but to get a glimpse of Minnie.
Throughout the trial, Minnie’s mother sometimes sat with or near her daughter and sometimes up in the ladies’ gallery. William Jay nearly always sat somewhere close to his young ward and was each day accompanied by his unmarried thirty-four-year-old daughter, Mary. The most common verb used by the newspapers in describing Jay’s behavior each day was “flitted”: The old man had boundless energy and was everywhere in the courtroom, sometimes taking notes, sometimes talking to Minnie or to witnesses or audience members, sometimes consulting with the defense attorneys.
The prosecution’s opening statement was given by Colonel Feighan, who presented the story of a “powerful, vigorous man, somewhat uncouth, without any charms of person or deportment,” who was then made the victim of a vicious conspiracy between Minnie and her mother to take him for everything they could, then murder him for the widow’s portion.12
The first days were given to the druggists, the Newman’s Department Store clerks, and the Walkup neighbors. Mary Moss’s testimony caused some amusement for the audience when she was cross-examined about a buggy ride she had taken with “a redheaded white man.” Mary seems to have been quite a sociable young woman, and when the handsome Mr. Landry begged her to walk around the park with him, she finally gave in. A few days later he asked her to go on the buggy ride.
It turned out that Landry was a detective hired by the defense, and his job was either to get information from Mary Moss that would help Minnie’s case or get her to perjure herself. Landry went back to his employers and told them (falsely) that Mary said Libbie had told her to make up the story about “going for butter” when Minnie sent her to Bates’s with the note. He also claimed that Mary told him that she saw James Walkup take some white powder out of a box, stir it in some water, and drink it down. Mary denied ever saying any of this, and as it was stated that Landry would be arrested for perjury if he took the stand and testified that she did, it is evident that nobody believed his story. He was probably trying to give his employers their money’s worth. There was a rumor going around that he was “a Pinkerton man,” but this was not true. Landry had disappeared completely from the scene before the trial began.
Mary Moss characterized Landry as “a little low man with a low mustache” and caused much laughter in the courtroom when she ruefully commented, “I didn’t suppose anybody knew anything about it or I wouldn’t have gone with him.” As Scott was cross-examining her ad nauseam about the buggy ride, his friend (and now adversary) Sterry, who also had red hair, thought they had all had enough: “I object, your Honor; she has admitted going riding with my redheaded friend and is heartily ashamed of it.” Scott immediately rejoined with, “And if you had been the redheaded white man, she would be still more ashamed of it.” The bailiff had a hard time getting order back after that interchange. (Lawyers today are forbidden to address each other directly in court but must do so through the judge, a system designed to prevent them from wrangling and coming to blows.)
Two important additions to the druggists’ testimony were Joseph Murphy and Frank McCulloch. Murphy had a stationery business inside William Irwin’s drugstore and heard Minnie tell Irwin about purchasing what she thought was strychnine in Cincinnati. McCulloch, a clerk in Dr. Moore’s drugstore, was present when Moore told Minnie that the powder was quinine. As Minnie would later deny all of this, the corroboration was important.
Neighbor Fannie Vickery revealed that Minnie had once asked her, “One poison kills another, doesn’t it?” although the timing for this was not specified. After Walkup died on Saturday, Fannie told Minnie about Libbie’s bed having been set on fire the previous Wednesday. Minnie seemed surprised by this and cried out, “My God, what next!” But Minnie had admitted knowing about the fire the next day, so her reaction here is a strange one.
Luther Severy related that, as Walkup lay dying, Minnie revealed to him the attempted suicide story she had told Reverend Snodgrass, enlarging on it a bit. She said that on August 7, designated to be President Grant’s memorial day (he had just died), she and her husband were picnicking at Soden’s Grove at the southern edge of town. James had been drinking and got to brooding on the letter he had received from Mattie. It was after their return home from this outing that he went upstairs and attempted to kill himself.
The remainder of the prosecution’s lay testimony was the same as it had been at the inquest, with the addition of witnesses who said that James Walkup had either not said anything about having been ill in Topeka or that he had looked fine on that Saturday when he returned. However, as Walkup told his physician, Dr. Jacobs, that he had been feeling poorly either in Topeka or on the way home (Dr. Jacobs could not remember which), we can probably assume that he was sick to some degree at that time, but not seriously so.
The largest part of the prosecution’s case consisted of an impressive array of medical experts, many of whom had either assisted at the autopsy or had analyzed Walkup’s organs. The primary witness, of course, was Dr. Luther D. Jacobs, who had attended Walkup throughout that last week, had witnessed Minnie’s behavior during that time and also her spilling of the arsenic, had heard her explanations for purchasing the poisons, and had assisted at the autopsy. As the case progressed, Dr. Jacobs was frequently recalled regarding one of these issues.
During William Scott’s cross-examination of Dr. Jacobs, one of the defense’s theories was revealed: The victim had at some point long before his death (possibly in Topeka) ingested, either through his own actions or those of someone other than Minnie, a fatal dose of arsenic that had somehow become encysted in his stomach. Immediately prior to his death, something happened to act upon the protective casing that had grown up, pearl-like, around the poison, causing it to dissolve and kill him. It was a preposterous theory. Could they prove it?
Dr. Jacobs responded that, while it might theoretically be possible for this to happen with a small dose, it could never happen with a fatal dose. Well, then, how about the action of arsenic on organs “demoralized by prior disease” (i.e., syphilis): Could that cause the elimination of the poison to be delayed at all? Dr. Jacobs conceded that might be possible, since the organs couldn’t do their jobs properly. And how about if he had that pocket of mucus surrounding his arsenic, then ate those oysters, drank that pop, and vomited: Could that dislodge it? Possibly.
Poor Dr. Jacobs was submitted throughout the trial to the defense’s accusations of malpractice in not administering the arsenic antidote to James Walkup. Of course, by the time he realized that Walkup had been poisoned, the victim was too far gone for the antidote to be of any use. Still, Scott harped away on this and seemed to insinuate that if it hadn’t been for Dr. Jacobs’s failure in this regard Walkup would still be alive. Dr. Jacobs became extremely defensive about this after a while, probably wishing he had given his patient the antidote regardless.
The next witness, Dr. Charles Gardiner, who had taken charge of Walk-up’s organs for the autopsy, quickly disabused the defense of any notion of encystment, answering succinctly instead of giving a lot of “possibly”s and “might be”s:
Scott: If a man had syphilis and was taking mercury or arsenic to strengthen his sexual powers and then got sick, couldn’t the sickness set the mercury or arsenic loose so the organs would look like Walkup’s?
Dr. Gardiner: No.
Scott: If he was a habitual arsenic eater and took a medicinal dose of arsenic ten days before death that did not assimilate, then took something like cove oysters with vinegar and pop, wouldn’t the dose set free the arsenic and produce the appearance as described?
Dr. Gardiner: No.
Dr. Gardiner explained that arsenic eaters never increase their usage to a fatal dose. Moreover, soluble arsenic cannot be encysted. Besides, mercury is the common remedy for syphilis, not arsenic. But all that was moot, as there was no sign in Walkup’s organs either that he had syphilis or had taken any mercury.
The lesions in Walkup’s bowels were fewer than ten days old, while those in his stomach could not have been made by syphilis in any stage. In fact, there were no syphilitic lesions anywhere in the body. Dr. Gardiner did concede, however, that the fatty degeneration of Walkup’s liver could have happened within forty-eight hours or over the course of several weeks. Many things other than poison can cause this condition.
On redirect, Dr. Gardiner backed Dr. Jacobs in saying that by Friday it was already too late for the arsenic antidote to have done any good, although the doctor should have given it just to protect himself. Also, it is not possible for arsenic to be encysted in the stomach, as the poison could not remain there for ten days without corroding it.
Dr. William Jones, a professor at Kansas City Medical College, was in charge of analyzing the organs for poison. His report, which lasted for three or four hours, was extremely tedious and undoubtedly went right over the heads of many of the jurors. Dr. Jones seemed to think he was lecturing his medical students, as he made no attempt to make the material either interesting or understandable. He went into exhausting detail about how he prevented contamination of his instruments and how he went about analyzing each organ.
During the afternoon session, however, Dr. Jones must have come to his senses (or else someone had given him a tip) because he allowed the jurors to come forward and look at the arsenic crystals through his state-of-the-art Zentmayer microscope. Whether they knew what they were looking at or not, they enjoyed the show-and-tell and the chance to get out of the jury box. And, when later the professor let Bill Greer look through it to see the arsenious acid (this was in the box that Minnie dropped on the porch) and also to see the effects of arsenic on the liver and the kidneys, the reporter was both gratified and impressed. “The Emporia physicians and experts are fully informed in medical and microscopical science,” he wrote. “And, for once, they all agree.”13
At a trial, hypothetical questions allow an expert witness to present an opinion on matters not yet proven. They say, in effect, “Let’s pretend that these facts are true. In that case, what do you think?” They can go a long way toward clarifying difficult scientific matters for a jury of lay people. Unfortunately, the Walkup prosecution’s hypotheticals did just the opposite, leading audience members to murmur among themselves, “What’s it all about?” It may be assumed that the jurors echoed those sentiments.
There were ten questions asked of eleven doctors for the prosecution and one for the defense (the lone physician for the defense who was an expert only and not also a witness to other events). The rules regarding hypotheticals forced the prosecution to ask long, involved, convoluted, and repetitious questions based on a set of long, involved, convoluted, and repetitious supposed facts. And, as these same questions had to be repeated in their entirety for each physician and in the context of the hypothetical facts surrounding them, it can readily be imagined how tiresome it all was for everyone concerned. Here, boiled down to their absolute essence, are the hypotheticals and a composite of the answers for all except the defense’s medical expert (and even his answers did not vary greatly, but, as he was being paid by the defense, he skewed his responses slightly; see Dr. S. Emory Lanphear’s testimony, chapter 7, pages 86–87):
1. How long would it be possible for arsenic in the stomach to be kept there previous to death? [Answers varied between 1 and 5 days, with most falling in the 2–3 day range.]
2. Would it or would it not be possible that the arsenic that killed this [hypothetical] man was taken on the Saturday previous to his death or any time before that? [Not possible (unanimous).]
3. What caused his death? [Arsenic (unanimous).]
4. How long previous to death would it be probable that arsenic found in his stomach contents had been taken? [Answers varied between less than sixteen hours and up to forty-eight hours, with most falling in the eighteen- to thirty-six-hour range.]
5. How many times previous to his death had arsenic been taken by this person between Saturday [August 15] and his death [August 22]? [Two or three doses (most said three or “over two”; one said three or four).]
6. Would it be possible that the death was caused by arsenic taken a week previous to his death in one or more doses? [No (unanimous).]
7. What was the amount of arsenic taken into the stomach and producing death so that after death four grains still remained? [Large dose (unanimous).]
8. When was the dose of arsenic given that caused death, as to the longest time before death? [From a low range of two hours to the majority answer of twenty-four to forty-eight hours.]
9. Would it be possible that the sickness commencing Tuesday noon [August 18] and the death that followed it, and the arsenic found in the body, was caused by and came from the arsenic he might have taken on the previous Friday [August 14] or Saturday [August 15]? [Here, the prosecution is saying to the defense, “OK, let’s have it your way. Let’s say he was given a dose of arsenic in Topeka, by himself or someone else. Did it cause his death?” Answer: No (unanimous).]
10. Would an antidote be of any benefit on Friday morning [August 21]? [No (unanimous; Dr. Jacobs, for whose benefit this question was included, was not asked the question).]
The doctors believed that the fatal dose was given to this hypothetical victim on Thursday of the week he died. Cross-examination failed to do anything to erode the strength of the state’s case in this regard, and one physician even maintained that Walkup could not have been given arsenic in Topeka, or he would not have recovered from the poisoning of Saturday night. His system would have been too compromised at that point.
This, then, was the prosecution’s case: Minnie Walkup had the means (one purchase of strychnine, two of arsenic), the motive (Walkup’s money), and the opportunity (she was the only one who gave him his medicine that fateful week, until it was too late for him to recover). For there to be four grains of arsenic (two grains is a lethal dose) in some of his organs after death, when some of the poison had been vomited up or eliminated through diarrhea, James Walkup had to have been given a massive amount. Some physicians speculated that it was as much as twenty grains. Druggist Charles Ryder had said that a single dosage of ten grains of bismuth, as prescribed for Walkup by Dr. Jacobs, would resemble (in appearance and amount) about twenty-one grains of arsenic, a little over a quarter of a teaspoon.
How would the defense counteract this?
The indomitable Bill Greer walked around Emporia to see how those connected with the case were spending their Sunday. He found the lovely Miss Lane coming from church, “tripping down the street . . . bright as a new $20 gold piece.” Colonel Feighan took a buggy ride with his family, William Scott went for a walk, and Judge Graves drank coffee and read (of course!) the Picayune.
Minnie, as usual, was surrounded by callers and her courtroom entourage (the Jays and her family members). The case was the single topic of conversation throughout Emporia, even as the subject of Sunday sermons. Arguments as to the fair defendant’s guilt or innocence broke out everywhere.14 Greer noticed that most of the newspaper correspondents seemed to be on Minnie’s side and they were allowing their feelings to influence their reports. For example, during the state’s case, some of the evidence prejudicial to Minnie was not included by these reporters. J. R. Graham, editor of the Emporia Daily Republican, declared that he was “hoodooed” by Minnie, then later denied it and said he just wanted to see her get justice because he thought she was innocent.15
The Kansas City Times began to suspect that its stringer, the man representing twenty-one newspapers, was submitting “cooked-up evidence,” so it sent its own reporter to Emporia to check it out. He was shocked at the partiality being shown to Minnie by almost all the correspondents. After that, the stringer hired by the Times had “only” twenty papers to report to.16
The Republican’s promise to provide a daily verbatim transcript for an extra fee proved more problematic than at first imagined. It was a good idea, but almost impossible to carry out. Some of the testimony was so long (for example, Dr. Jacobs was on the stand for six hours one day) and so complicated that poor overworked Miss Lane could not complete it all by press time. Nobody was more delighted about this state of affairs than the Republican’s rival, the Daily News. At the beginning of the trial, it had sourly asserted that a verbatim report would be pretty dull to read. As the case went on, the News took many shots at its opponent for the so-called verbatim report, much of which was missing in each day’s paper. (A perusal of other newspapers reveals the truth of the accusation, as these reports invariably include items left out by the Republican.)17
That Monday, October 26, the day of rest having ended all too soon, the defense would begin its case. And, while the prosecution had mostly repeated the testimony of the inquest witnesses, which everyone in the country was already familiar with, nobody knew for sure what Minnie’s lawyers would present. What they came up with would shock Emporia to its core.