THE BURKE TRIAL: VERDICT

And lo, after six weeks of courtroom drama in Santa Rosa’s trial of the century, the jury sayeth thus: Doctor Willard P. Burke was guilty of attempted murder.


THE BURKE MURDER CASE


THE BIG DEAL OF THE CENTURY

THE DYNAMITE LINK AND LU ETTA DISAPPEARS

WHO HID THE KEY WITNESS?

DO YOU LOVE YOUR GOLD OVER YOUR CHILD?

DOCTOR OF LOVE

IMMACULATE CONCEPTION

MYSTERIES ABOUND

COURTROOM BOMBSHELLS

BURKE TESTIFIES

The speed of the verdict shocked trial watchers – the jury arrived at its decision in slightly over two hours – as did the certainty of their decision; not a single juror thought he was innocent.

The San Francisco Call sent its courtroom reporter to interview Burke in his jail cell. The writer found the doctor melancholy and defiantly declaring his innocence. “…He declared himself sorry for the jurors. He complimented District Attorney Lea on his closing address. He looked forward to seeing him the next democratic congressman and vowed that the forthcoming years would see him voting for Lea. ‘A bright boy,’ he said, ‘a remarkably bright boy…'”

The Press Democrat, which had covered every aspect of the trial in remarkable depth, was caught unawares by its abrupt conclusion. Where they were probably expecting to cover every point of the prosecutor’s closing arguments on the final day, the PD described only a single detail before hurrying on with a terse summary: “District Attorney Lea closed his argument for the prosecution with a comprehensive review of the evidence as presented by both sides, and arrayed his facts in telling style. He is an earnest, eloquent and forceful speaker and held the closest attention of the jury throughout…no detail being overlooked that might tend to strengthen the position of the prosecution.”

The SF Call mentioned another important point, describing that Lea pointed out it was silly for the defense to claim the original dynamite, wrapped in newspaper, could have been buried in sandy mud for 53 days and emerge with the paper still looking like new. All of the reporters failed to catch the point that was actually most interesting – namely that District Attorney Lea apparently told the jury they should find Burke guilty even if they believed he didn’t commit the crime.

Say what?

We first read about this in the newspapers a week later, when everyone was back in court for sentencing. Defense Attorney Leppo asked for a new trial. The Press Democrat reported: “Dr. Burke was tried for almost everything under the sun,” said Attorney Leppo in his argument, “and every attempt was made to prejudice this defendant in the mind of the jury. The effect of the Court’s ruling was to strengthen any idea that the jury might have gotten that Dr. Burke should be convicted on ‘general principles,’ and in reality amounted to a declaration that he should be found guilty even though he did not really commit the crime.”

Specifically, Leppo’s motion insisted that the judge’s final instructions to the jury were prejudicial. Apparently summarizing a point made by prosecutor Lea, Judge Seawell told them it didn’t matter whether Burke acted alone or helped someone else commit the deed. This was unfair, Leppo argued, because nothing was said during the trial about Burke being an accessory to the crime. Here is exactly what Judge Seawell told the jury:

I charge you that all persons concerned in the commission of a crime, whether it be a felony or a misdemeanor, and whether they directly commit the act constituting the offense or aid and abet in its commission, are principals in any crime so committed.

Therefore, if you are satisfied from the evidence in this case beyond a reasonable doubt and to a moral certainty that the crime charged in the indictment was directly committed by the defendant as therein set forth, it would be your duty to find him guilty, so, to, if you should be likewise satisfied from the evidence in the case that the explosive referred to in said indictment was deposited and exploded by some other person that the defendant, whose identity is unknown, and you should also be satisfied from the evidence beyond a reasonable doubt that the defendant was concerned in the commission of such crime, as above explained, and that he did not directly commit the act constituting the offense, but aided and abetted its commission, or not being present, advised and encouraged its commission, you should likewise return a verdict of guilty.

The motion for a new trial was denied and Defense Attorney Leppo appealed the decision, all the way to the state Supreme Court, which agreed with Judge Seawell. It didn’t matter whether Burke did it by himself or was an accessory before the fact “…since he can be charged in the indictment as a principal whether he actually committed the offense or aided and abetted or encouraged its commission, he can be justly convicted if the evidence shows that he was connected with the crime in either relation,” the high court ruled over a year later.

All of this legal hairsplitting is (somewhat) interesting, but Gentle Reader is probably asking oneself about now, what about the implications of it all? Did someone else actually handle the dynamite? Yes, I believe so – and I also think the judge, jury, and most everyone else in that courtroom similarly believed that Dr. Burke did not act alone in the attempt to murder Lu Etta Smith.

Start with Burke’s alibi: The loud explosion marked the exact moment of the crime and he had a reasonable – albeit not perfect – explanation of his whereabouts. Two patients said he briefly visited each of them 5-10 minutes before the explosion was heard. Judging from the 1911 photograph seen at right, the cabin-tents appear to be at least 100 yards from the main building. It is possible, but not likely, that he left the patient’s rooms, collected the dynamite from his study, rushed to the tent area, placed the explosive, strung out a lengthy fuse (which would burn about 30 seconds per foot, and let’s not forget this was being done in darkness and he had never personally handled dynamite) then sprinted back to the main building before the big bang. Could 59 year-old Willard Burke have done that? Could you?

Burke’s behavior, however, strongly suggested he desired the death of the woman who insisted Burke was the father of her child and who was now contacting attorneys, apparently planning to file a lawsuit against him. Shortly before Christmas, 1909, Burke visited his gold mine in the Sierras and returned with six sticks of dynamite. At once he began saying that Lu Etta had told him she wanted to commit suicide by blowing herself up. No one else heard her say such a thing. While she was recuperating from her injuries after the explosion, it was discovered that Burke was treating her wounds with potentially lethal doses of arsenic. He was not indicted for a second attempt at murder, but in later denying the appeal by Burke’s defense team, the California Supreme Court agreed that it certainly appeared that Burke  “…contemplated that the death of Miss Smith would be the result of the continued application of this ‘slow poison.'”

Having now read everything available about the case, thought about it for months and having written in this space ten articles chronicling the crime investigation and trial, I humbly submit that I’ve come to know Dr. Burke and Miss Lu and the others fairly well. Here is what I believe happened:

Although he was twenty years older, Willard had known Lu for almost her entire life. She was in the same grade as his youngest brother Alfred at their school in Upper Lake, and Willard’s sister testified she first met Lu when she was about four. Over the next two decades their paths probably crossed many times after he graduated from medical college; most of his family continued to live on their Lake County farm in Bachelor Valley while Willard practiced medicine mainly in Napa and Sonoma Counties. As mentioned earlier, Burke testified Lu Etta first came to his Sanitarium in 1901 as a patient, then remained there as an employee for several years. The next snapshot of them comes from shortly after the 1906 earthquake. She was living at the time in Yolo County and he wrote a friendly letter letting her know the Sanitarium survived without serious damage. He offered to send money. She testified they had sexual intercourse for the first time a month later.

From that point on, Lu Etta Smith was entirely dependent upon Willard Burke. He sent her money for living expenses at various places around the Bay Area or paid her landlord directly. When she arrived at his sanitarium, eight months pregnant, he put money in her bookkeeping account that paid for her residence there.

When you scrape this tale to its bones, it comes down to one thing: Money. Everything else – their sexual relationship, the eccentric views held by each of them, even, to a degree, the paternity of the child – is a MacGuffin. Lu Etta, a woman in her late 30s with a grade school education and few friends, wanted a nest egg; Willard was a miser who boasted of his great generosity, while not giving her a penny more than he deemed necessary. She overreached, writing a letter promising to disappear before the trial began in exchange for $20,000 (about a half million dollars in today’s currency). He went on the cheap even when it was obviously against his best interests; when she did voyage to Japan to hide from the trial lawyers, he ignored her pleas for the allowance that was promised and would have allowed her to stay there.

Her relationship with Willard became arduous once she was at the sanitarium for the birth of her child. She wasn’t at ease with either the patients or members of the staff, who viewed her as very eccentric and possibly deranged (the bookkeeper wrote that she was “almost an imbecile”). She repeatedly asked Burke for money so she could go away. Burke refused and gave orders to staff that she was not to be allowed to leave. She threatened to sue. She also created scenes in front of sanitarium guests and staff demanding he admit fatherhood. This was no simple mother’s emotional outcry; Burke was a very wealthy man – his gold mine alone was valued at $6 million in modern terms – and he had no descendant heirs. Except for little Willard P. Burke Smith, of course.

We’ll never know exactly when he decided that blowing Miss Smith to smithereens was his best option. He may have visited his mine that December of 1909 because he actually wanted to only discuss new machinery; he may have asked the miners for the dynamite on a whim because he remembered they needed to blow up a big rock on the property. But when he returned to Sonoma County with the dynamite, he was given a ride from the train station by Dr. Hitt, who informed him “there had been quite a commotion at the sanitarium on account of Lu Smith having telephoned to San Francisco to an attorney.” A few moments later in their conversation, Burke dropped the comment that she and her child would be “better off dead.” It was also around this time he stopped making payments into her sanitarium account – for a tightwad like Burke, that was a definite tell.

But if he were planning to kill her with dynamite, why would he broadcast that Lu Etta had supposedly told him she planned to blow herself up? Wouldn’t that make him about the stupidest murderer of all time? What he was actually doing, I believe, was advertising for someone else to kill her. He was providing both the means and the expectation that the act would be committed – and anyone working at the sanitarium realized it would be a great boon for Doctor Burke if the problem that was Lu Etta Smith disappeared. All Burke needed was for someone to do him this great service.

That someone, I firmly believe, was Aggie Burke, Dr. Burke’s sister-in-law.

No one else in our cast of characters had greater motive to perform Willard such a solid favor. She and her husband Alfred were supposed to be the managers of the sanitarium, but apparently were hangers-on who did little; Dr. Burke had recently commented he would like to jettison them, and if the place were to be sold or leased to someone else they would undoubtedly be first to go. She was also apparently a troublesome drunk; while Burke was at his mine collecting the dynamite, there was outrage at the sanitarium after she slapped or punched Dr. Hitt in the snoot. She (and Alfred) also had the greatest opportunity to commit the crime, as they seem to be living in another of the tent-cabins – they were first on the scene after the explosion. And finally, it was Aggie who elbowed her way into the spotlight as the sanitarium spokesperson as reporters swarmed the scene, loudly defending Dr. Burke while telling them Lu Etta was a lunatic who was likely holding the sizzling stick of dynamite between her teeth until she lost her nerve at the last moment.

Don’t believe Burke was hoping to murder Lu Etta by proxy? Look also at the arsenic incident.

(As mentioned before, Burke’s use of arsenic was unusual and old-fashioned by 1910, but not improper. Lu Etta’s wound developed “proud flesh” while healing and small amounts of arsenic were applied directly to such diseased tissue in 18th and 19th century medicine. Here’s a reference in the 1797 Encyclopaedia Britannica and another in a 1871 pharmacology on Chinese medicine.)

In his testimony, Burke told the court he took over as Lu Etta’s physician the evening after the explosion. A couple of days later the wound began looking and smelling foul. He treated it with witch hazel (to reduce swelling), boracic acid (a harmless antiseptic) and a one percent solution of arsenic. When there was no improvement by the next day, he increased the arsenic dosage to seven percent solution – well within the range that could cause death, according to a doctor testifying for the prosecutor, particularly when it was applied in the manner used by Burke, as a dressing.

District Attorney Lea led Burke through a damning series of questions: Burke used the seven percent solution only once. He left the arsenic by Lu Etta’s bedside. It was in a small white paper box, the same as used for the boracic acid. Arsenic and boracic acid look the same. The box containing the dangerous dosage of arsenic was unlabeled. He did not tell the nurses that he was using arsenic.

The inference in the prosecutor’s questioning was clear: Burke hoped a nurse changing Lu Etta’s wound dressing would use the arsenic by mistake and kill her.

Burke was not indicted on this second attempt to kill Lu Etta, although he certainly could have been charged with criminal negligence for not labeling the poison, even if there was no iatrogenic injury or death as a result. Nor did prosecutor Lea present the Grand Jury with evidence that Aggie Burke or other persons unknown must have had a hand in setting off the dynamite. Given Dr. Burke’s high standing in the community, Lea must have realized he would be lucky to get any sort of conviction at all and it was best to stick to a simple narrative: Burke got the dynamite, Burke used the dynamite, and intended to kill his troublesome mistress.

Burke was sentenced to ten years at San Quentin. “The defendant stood for a moment as one dazed,” the Press Democrat reported, “and then made his way back to his chair just inside the railing that separates the court and spectators. As he faced around, a tear-drop glistened in his eye. But he bade no sign, and the tear-drop did not fall.”

L’affaire Burke was now yesterday’s news, but the Press Democrat couldn’t yet say goodbye to its story of the century. The paper sent round its society reporter, the delightfully clueless Dorothy Anne, to interview Lu Etta and true to form, the interview ended up being mostly about Dorothy Anne interviewing. Golly, that woman is sure in touch with her feelings. The PD published two lengthy essays in defense of Burke, both stating he couldn’t have possibly been guilty because he is such a nice guy.

(RIGHT: Willard P. Burke, inmate. Photo courtesy Bancroft Library, UC/Berkeley)
While his sentence was on appeal, Burke asked for bail about three months after the verdict, claiming his health was failing in the county lockup. Bail was granted at $50,000, his bond underwritten by Santa Rosa’s richest men including Con Shea, John Overton and Frank Grace. In midsummer the PD reported Burke was in town, “looking very well, in fact many of his friends declare better than he has for years.”

The sanitarium was sold after the trial to a couple of homeopathic doctors: Dr. Carrie Goss Haskell of San Francisco and Dr. Wellingham B. Coffeen (consistently misnamed as “Coffen” or “Coffin” in the papers, probably because doctor + coffin = funny). It was renamed “Woodland Acres Sanitarium.”

The strangest episode in those months after the trial came in July, when the superintendent of Burke’s gold mine and a Detective Hurst “retained by several wealthy friends of Dr. Burke” showed up in Lakeport and tried to get Earl Edmunds to confess to the dynamiting; his uncle Dillard, the former bookkeeper of the sanitarium, confronted them on street the next morning and caused quite a row. This little adventure is all the more mysterious because Edmunds, an orderly who was 19 at the time, had the best alibi for that night as he was flirting with a pretty nurse when the explosion was heard.

About fourteen months after the trial, the California Supreme Court finally rejected his appeal. The next day Willard P. Burke began his new life as San Quentin inmate #25602.

What became of the players in our little melodrama?

* MRS. MARIAN DERRIGG   The intriguing Mrs. Derrigg (who was probably “Marion Derrig” but also used at least two other aliases) was a long-time friend of Dr. Burke. She was instrumental in efforts to hide Lu Etta in Japan and spin the story that she was suicidal. She was wanted as a witness by both the defense and prosecution, but she successfully hid from detectives in Los Angeles, surfacing the very day the trial ended. “The woman is one of the most mysterious characters I have run across,” District Attorney Lea told the San Francisco Call. “As I understand  she is a handsome blonde, a little over 30 years of age, and has the faculty of making men do her will. She bobbed into the Burke case with the utmost mystery. We have discovered that following the explosion and the indictment of Burke she went to the sanatorium [sic], took a hurried trip to Los Angeles, and then shot up again in San Francisco, buying a ticket to Japan for Lu Etta Smith. Whatever her relations were with Burke they were rapid, to say the least.” In January, 1912, the SF Call reported she was in an Ohio state asylum and “her case is said to be incurable.”

 

* ALFRED BURKE and AGGIE BURKE   Dr. Burke’s younger brother died about two months after the verdict. The cause was not mentioned in the papers, but it appeared he was in rapid decline during his brother’s trial (feel free to speculate about Dostoevskian guilt over his role in an attempted murder of a childhood friend). The Press Democrat reporter commented, “The marked change that has taken place in the appearance of Alfred Burke since the beginning of his brother’s trial has been one of the features of this sensational case. From a strong, robust man, the very picture of health, Alfred Burke has wasted away until he is only a shadow of his former self.” Aggie remained at the sanitarium working as a housekeeper at least through 1919.

 

* DR. WILLARD P. BURKE   Despite his ten year sentence, the doctor spent less than three years in prison. Instead of working in the infirmary as he hoped, he chopped wood in Butte county. He was  pardoned by Governor Hiram Johnson in January, 1916, having been on parole for six months before that. Gentle Reader may recall that Johnson was hired as Burke’s original defense attorney, but dropped out before the trial began to run for office. The pardon allowed him to practice medicine again and he said he intended to reopen the sanitarium. (I do not know whether or not that happened.) He had a medical office in Healdsburg, according to the 1929 phone directory, and between then and 1935 was also listed in Santa Rosa as operating “baths” at 819 Fourth street. He died January 31, 1941 in Sonoma County.

 

* LU ETTA SMITH   The day after the verdict, the Call reporter asked Lu Etta what she planned to do. “How am I to know?” She replied. Lu Etta spent the next year in limbo, living in Berkeley with her son at the expense of Sonoma County, who wanted her ready to testify in case the Third District Appeals Court ruled in favor of Dr. Burke. When the Court of Appeals upheld the verdict exactly a year later, it was announced that she was planning to sue Burke for $25,000 damages. Her attorney was Fannie McG. Martin, one of the founders of the suffrage movement in Sonoma County. Nothing came of that, however, and the last we hear of Lu Etta in that period was a little item a few months later, when it was reported she had moved to San Francisco to find work as a nurse, being months behind her Berkeley rent since Sonoma County stopped paying her bills. The 1940 census found her in Oakland living with son Willard, who was an accountant at the WPA office. She died in Alameda County in 1950, age 79.

A personal note: In writing about the doings at Burke’s institution over these ten articles, I fell into the habit of typing “asylum” when I meant to write, “sanitarium.” The more I got into the story, the more “Burke’s Asylum” sounded right. Don’t know why.

BURKE CONVICTED!
Verdict Returned Last Night by Jury on the Third Ballot
VERDICT A SURPRISE
Turned Over to the Sheriff and Is Now in Jail

“In the Superior Court of the County of Sonoma, State of California: The People of the State of California, plaintiff, against W. P. Burke, defendant. We the jury, find the defendant guilty as charged in the indictment.”

The above verdict was returned by the jury at 11:15 last night in the case of Dr. Burke, charged with the attempted murder of Lu Etta Smith, which has been on trial for nearly two months. The end came suddenly and unexpectedly and created a sensation, as no one had anticipated a verdict with such little delay.

The indictment, which was returned by the grand jury on February 25, 1910, charged the defendant with having committed the “crime of maliciously depositing and exploding explosives with intent to injure a human being.”

The Jury Retires

District Attorney Clarence F. Lea completed his masterful closing argument about 8 o’clock. Judge Emmet Seawell at once began reading his instructions to the jury and it was 8:40 when he concluded. The jury was provided with blank verdicts, and placed in the custody of Bailiff Don McIntosh filing out of the court room at 8:45 to decide the fate of the defendant.

The general sentiment of those present during the reading of the Court’s instructions was that they were favorable to the defendant. While no one expected an immediate verdict there was no tendency to leave the court room except by a few to get into the lobby for fresh air.

Call for Evidence

It was about 9:15 when the bell from the jury room startled those within hearing. In response to the bailiff’s prompt answer the jury asked that the dynamite and fuse offered in evidence by the defense be given them to take to their room. This request was complied with and nothing more was heard from the jury room.

At 10 o’clock Judge Seawell instructed the bailiff to lock the jury up for the night, but at the same time informed them that if a verdict was reached before midnight he might be called.

This had the effect of practically clearing the court room as it was then believed there would be no verdict before morning. Dr. Burke, with his wife, Dr. and Mrs. H. F. Dessaud, R. E. Grisby and his daughter, and Frank Golden, who were in the court during the evening, left court room with Attorneys Leppo and Cowan. District Attorney Lea had left for home immediately after the close of his argument completely prostrated.

Verdict is Reached

Just after 11 o’clock the jury bell again rang and the bailiff, who responded, was informed that the jury had reached a verdict and was ready to report to the court.

A hurry summons was immediately sent out for the Court…

…”Read the verdict, Mr. Clerk.”

Clerk Burroughs hand trembled slightly as he took the paper and began reading slowly and distinctly the words thereon.

Watches Jury and Court

Dr. Burke, sitting besides his wife behind his attorneys just inside the railing separating the public, had scarcely taken his eyes from the jurors from the moment the first one appeared at the door and entered the room until the paper was passed to the clerk. He then followed it with his eyes and watched the Court closely as if to read his mind as Judge Seawell read the words which meant so much to him.

There was no sign, however, from the Court, and there was a deathly stillness as the clerk read, “Guilty as charged.”

[…]

How the Jury Stood

Three ballots were taken and on the first two ballots the jury stood 11 for conviction and one blank. On the third ballot there were 12 for conviction. At no time was there a vote recorded for acquittal.

[…]

Lea’s Telling Argument

District Attorney Lea closed his argument for the prosecution with a comprehensive review of the evidence as presented by both sides, and arrayed his facts in telling style. He is an earnest, eloquent and forceful speaker and held the closest attention of the jury throughout.

Taking up the matter of the buried dynamite, and the marked package afterwards introduced by the defense as being the one brought down by Greenwell from the mine some ten days after the explosion. Lea emphasized the strange character of Attorney Golden’s request and reminded the jury had said, “I have foolishly destroyed the evidence needed to keep Dr. Burke from going to the penitentiary”; how Greenwell had at first demurred saying: “You are asking a good deal of a man with a family, to expect him to do something that may land him in State’s prison”; how Greenwell had finally consented to procure the four sticks of dynamite and two fuses as per Golden’s request; how Greenwell took a fast team, and, under the shield and darkness of the night drove twenty-two miles through the mountains, went down into the deep canyon to the mouth of the mine, and secured the evidence wanted, returning with it to Oroville just as the gray dawn was breaking and bringing it to this city the following day, where it was delivered to Golden in the back room of a second-class hotel at which Greenwell had registered under an assumed name, and after a midnight drive to Burke’s Sanitarium, where he expected to see Golden and deliver over the package that same night of his arrival.

“Yes, that much-needed evidence had been destroyed,” cried Lea in a dramatic manner as he suddenly turned and faced the aged defendant. “But it was destroyed on the night of February a year ago by this defendant when he applied his match to the fuse beside the tent-cottage in which Lu Smith and her child lay peacefully sleeping.”

Following up his argument, District Attorney referred to the haste that had been displayed in procuring the dynamite from the mine, and Golden’s claim that he wanted it to use for experimental purposes. “But it was not until after the beginning of this trial, or nearly eleven months after the dynamite came into his possession, that any experiments were made,” said Lea. The remainder of the argument was along similar lines, no detail being overlooked that might tend to strengthen the position of the prosecution.

– Press Democrat, January 28, 1911
LU SMITH’S LIFE TRAGEDY
An Interview by Dorothy Anne

When I rang the bell last night at the Mead home on Chinn street, where Lu Etta Smith is at present living, I will confess my heart was down in my boots–and my boots were wet and cold.

That “Fools rush in where angels fear to tread,” was a motto plainly in my mind’s eye. Reporter after reporter from the San Francisco dailies had plead, argued and threatened, trying to make Lu Etta Smith talk for publication. She was obdurate. She would not. She had nothing to say to them; therefore she said nothing. Would she talk to me? That was the vital question.

I rang the bell. The door was answered by a most polite and agreeable young lady who was armed for an odious male. She gasped when she saw me and smiled a cold smile when I made my errand known.

My quest was quite useless, but would I come in? I did so and quickly, before she could change her mind. She would ask Miss Smith if she would talk to me. She did. Miss Smith said she would not talk. When Miss Smith said she would not, she should not. That was all there was to it. I suppose I should have left, but I did not.

I tried again. I argued what a very harmless reporter I was, how cold the nigh was how far I had come. I told of my sympathy for the unfortunate woman and — the young lady said she would ask Lu Etta Smith again, but she really didn’t think it any use.

Miss Smith then sent word back that she would talk to me if I would come into the dining room.

The dining room in the Mead home is the usual comfortable, well-furnished room of the American home. There were just the heavy oak table and chairs and a small couch. Seated on the couch, as if roused from a recumbent position, was probably the most discussed woman in the town and State, Lu Etta Smith.

She looked worn and tired, and I felt ashamed of myself for inflicted my presence upon her, even briefly. The lines in her face showed genuine sorrow and a nervous smile came and went as I talked.

“Reporters are a nuisance, are they not, Miss Smith,” I ventured.

“Yes,” she conceded, “today I have been burdened with them. They caught me coming after a walk with my boy and insisted I talk. I ran into my room and shut the door. Don’t you think they are very rude?”

Immediately I arose to the defense of the unfortunate reporter who is detailed to get a story at all hazards.

“Why do you not talk to them?” I added. “It would be easier.”

“They ask me too many questions and talk to me too long,” she almost defiantly answered.

I thought the topic exhausted.

“Have you any plans for the future?” I asked, noticing she held Froebel’s book on kindergarten work in her hand. “Do you plan to take up the kindergarten work as your future life work?”

“Only as it affects my baby,” she answered. “He is getting to be a big boy now, and is beginning to notice things. I want him to have the right start.”

That Miss Smith is more than ordinarily interested in this subject has been evident by the interest she has taken in attending lectures on the subject lately given by Miss Brown. I saw her there myself. So the conversation gently glided into the criticism of Miss Brown’s work.

“I thought you might be going to stay in Santa Rosa,” I rather insisted, hoping to get an expression of what she had planned for the future.

She shook her head sadly.

“It is too near the Sanitarium, I am afraid.”

“But if Dr. Burke is in the hands of the law, he cannot harm you.”

Then a most unexpected turn to the conversation took place. Quite unknowingly we discussed prisons and how work in portioned out to the prisoners, and I volunteered some information about the jute mill and the rockpile. I knew a lot. I had just heard it discussed at the Saturday Afternoon Club.

I told her the jute mill was run at a loss of $3,000 per year, even if everybody did work for nothing, and that everybody worked either there or on the rockpile.

Lu Etta Smith involuntarily stiffened, a look of something almost akin to terror crept into her eyes.

She leaned forward nervously and looked straight at me.

“If what you say is true, I hope Dr. Burke never goes to prison,” she said.

“Do you mean to tell me after what you say you have suffered at his hands, the disgrace of the trial, the terror and anxiety of waiting for the verdict, that you do not want to see him punished?”

“No, I believe in remedial punishment.”

“You mean that you think the punishment his conscience would give him, if he were free, would be sufficient?”

“Yes, that’s what I think.”

“Well, what state do you think a man’s conscience would be in if he had plotted and planned as the jury evidently believe Dr. Burke has? Do you not think it would be somewhat dulled?”

She shook her head and smiled a wan smile. The terrible tragedy of it all came over me, I couldn’t stand it. I left.

In my heart of hearts I believe Lu Etta Smith loves Dr. Burke! That all this trial and conviction has been a grief, not a joy to her. She told me frankly the only fear she ever had of him was that he would shut her up in an asylum for the insane.

What will become of Lu Etta Smith now? Who will turn to her the helping hand? Who will help her raise that beautiful little blue and white baby boy she so dearly loves?

These questions surged through my brain as I jumped into the waiting taxicab.

Who will?

God only knows.

– Press Democrat, January 29, 1911

Read More

THE BURKE TRIAL VI: BURKE TESTIFIES


THE BURKE MURDER CASE


THE BIG DEAL OF THE CENTURY

THE DYNAMITE LINK AND LU ETTA DISAPPEARS

WHO HID THE KEY WITNESS?

DO YOU LOVE YOUR GOLD OVER YOUR CHILD?

DOCTOR OF LOVE

IMMACULATE CONCEPTION

MYSTERIES ABOUND

COURTROOM BOMBSHELLS

BURKE TESTIFIES

VERDICT!

As the sordid trial for attempted murder stumbled into its sixth week, the accused was finally to testify: Dr. Burke was about to tell all. Well, something, anyway.

For those just tuning in and unfamiliar with the story so far (Googling for “sordid murder,” perhaps?) read the previous article, or take a look at the introduction to this lengthy series. Otherwise, what is found below won’t make much sense.

The Burke case mesmerized newspaper readers across the country in 1910, but no paper could hope to match the coverage of the Santa Rosa Press Democrat. Although it was the heyday of yellow journalism, PD coverage was remarkably impartial as well as thorough; when Burke took the stand, the paper published a complete transcript – every little gap-filling word, every irrelevant question, every stutter, every hem and haw. And the paper presented this transcription in page after page of tiny, tiny type that probably made armchair detectives swoon in delight. For each day of testimony the Press Democrat also offered a terse summary and introduction that set the stage. An example:

Dr. Burke made a good witness in his own behalf. Calm and dignified in manner his answers were [illegible microfilm] and ready and given with an intelligence and noticeable appearance of frankness that was without its effect. At times his words weer spoken with great earnestness, as he leaned forward and gazed directly at his questioner. Again, where the matters under discussion were relative unimportant, he dismissed them with an expressive shrug of the shoulders and a smiling “yes” or “no” as the occasion might demand.

The defendant told of his visit to the Kanaka Peak mine in December of 1909, and how he came to go there of the circumstances under which he happened to procure the dynamite that he brought back home with him and how he did not carry it in a grip or hand satchel, as has been claimed, but all the way in his pocket. He told of how he put the dynamite in a drawer in his studio, and after the explosion listened to the advice of his brother Dr. Isaac P. Burke and of Attorney Golden and allowed the former to take the package and bury it instead of keeping it and giving it over to the authorities as he felt that he ought to do. “And with this result,” the defendant added as his eyes traveled for a moment about the crowded courtroom.

(RIGHT: Press Democrat photo of Dr. Burke in the courtroom. The dark black band is a scratch in the microfilm)

It would be impossible to summarize it all (much less retype it into a computer) but here are Doctor Burke’s answers to key questions, abridged as indicated:

RELATIONSHIP WITH LU ETTA SMITH:    Burke testified Lu Etta first came to the Sanitarium in 1901 as a patient, then remained there as an employee for several years. He denied any improper or illicit relations with her, “undue familiarities” or having sexual intercourse.

In her testimony a month earlier, Lu Etta Smith said Burke began supporting her shortly after the 1906 earthquake, and paid for her lodging with a family in Berkeley, a stay at a Carmel inn, and at a rooming house in San Francisco. Burke told the court he called on her four or five times at the boarding house, which was not far off the route between his San Francisco office and the Ferry Terminal.

Q: Did she ask you for the means during these times when you gave her money?

A: Yes, she would make her wants known to me and I would try to meet them as best I could.

He was even more coy about his financial support when cross-examined by the District Attorney – he had given her money for years, but no idea how much:

Q: You kept furnishing her money how frequently after (1906)?

A: Well, when she would ask me for it and I would have it.

Q: How frequently would that be?

A: I could hardly say.

The District Attorney also asked why he hadn’t brought her back to the Sanitarium to live:

Q: Why didn’t you bring her back to the Sanitarium if you were going to maintain her, instead of maintaining her away from your place?

A: Well, I can’t say.

But Doctor Burke did say in a letter written shortly after the earthquake that he wanted to keep their relationship quiet. “Address me here (at his Oakland office),” he instructed her. “My letters are all opened at the Sanitarium by (family members) Alfred and Aggie, and it is none of their business what is going on between us, no, nor no one else.” District Attorney Lea asked:

Q: Well, what was there in your letters to Lu Smith that you did not want them to know about?

A: Why, simply because that they were angry at Lu and I didn’t know but what she might possibly write something with reference to that, too.

Q: What was there going on between you and Lu Smith that was nobody’s business but your own?

A: Why, I think all the help and everything like that that I was giving her was nobody’s business but ours, that is, as far as Alfred and Aggie is concerned, anyway.

Not long after the earthquake, Lu Etta turned up on the doorstep of Charles Thomas, an attorney whom she had met years earlier at the Sanitarium. Thomas wrote a letter to Burke saying Lu was in bad shape and wanted to come back to Sanitarium, but was afraid Burke’s brother and sister-in-law would prevent her return. The defense entered Burke’s response to Lu into evidence. In testimony, he recalled writing to her and providing a detailed explanation of how the human body digests food and how the autonomic nervous system works and if there is no cooperation with the mind in the evacuation of the bowel there is going to be trouble and “whenver the consciousness, or whatever that life makes known any of its purposes to the consciousness of the individual asking for support then we claim that consciousness should cooperate with that life” and after ten or twelve minutes of listening to that drivel the jury was probably reminded that Lu Etta Smith was not the only person in the case who was commuting from Crazytown.

LU ETTA’S MYSTERIOUS HUSBAND:    Burke testified that he once ran into Lu and a man at the San Francisco Ferry Depot – a man she supposedly introduced as her husband, also named Smith. District Attorney Lea asked Burke:

Q: What kind of a looking man was this man she introduced?

A: Well, I didn’t look at him close enough to give a very accurate description. He was a rather large man.

Q: Had you ever seen him before?

A: I don’t think so.

Q: Was he dark or light complexion?

A: Rather, well, I could not call him either. He was not very dark, nor he was not very light.

Q: How was he dressed?

A: I never see anybody’s clothes, Mr. Lea.

Q: Didn’t know anything about how he was dressed?

A: No, sir.

Q: How old a man was he?

A: Oh, I couldn’t say that.

Q: Could you tell what his nationality was?

A: I could not.

Q: Would you know him if you would see him now?

A: I would not.

Q: Never seen him before?

A: Never saw him before.

Q: Never received a letter from him?

A: No, sir.

Q: Never received any money from him?

A: No, sir.

Q: You don’t know where he is now?

A: No, sir.

WHO WAS THE FATHER?    The D. A. found Burke again claiming saintly virtue in not even asking Lu Etta about the paternity of her baby:

Q: Didn’t she tell you who the father of the child was, did she?

A: No, there was not anything said about that.

Q: Did you ask her?

A: No, sir.

Q: Did you ever ask her?

A: I don’t think so.

Q: And she never told you?

A: No, she never told me.

Q: So you did not quit sending her money for any time on account of her becoming in the family way by some other man?

A: No, sir. It has been my custom to always meet the need inquiring nothing into the life of the individual.

Prosecutor Lea also asked a question that seemed odd:

Q: Were you in San Francisco on June 9, 1908?

A: I don’t think I was.

There was no followup to that question, but it contradicted earlier testimony that he was always in the San Francisco office on Tuesdays and Fridays, and this date was a Tuesday. It was also almost exactly nine months before Lu Etta’s child was born.

Lu Etta Smith had left the San Francisco boarding house and returned to the Sanitarium when she was eight months pregnant. From other testimony, it was apparently about six months after the birth that she began saying Burke was the father.

Q: Did Lu Etta Smith at any time while there accuse you of being the father of her child?

A: Not directly to me, excepting the first time that I heard anything about it at all was at the breakfast table. She came up and spoke about, that I would not come and see my own child.

Q: State all about that, Doctor.

A: The evening before I think the baby was sick and she sent for me to come and see it, and I could not go right away. In a little while, Abble Smith came up and said the child was all right, and I did not go….And the next morning while I was at breakfast Lu came in and she said to me something about like this: “Why didn’t you come to see your own child last night,” or words to that effect. And I said, “Well, Mrs. Abble Smith said the child was all right and I didn’t think it was necessary.” Then she railed out and called me “a coward, coward, coward,” and “villain,” and so forth, and went on out the door.

Burke told the court Lu accused him of being father three times to his face.

Q: Why didn’t you send her away? Why did you permit her to stay there so near your home when she was making that charge against you?

A: Oh, I did not care anything for the charge, Mr. Lea.

It was around this time that Dr. Burke decided he needed to visit his mine in the Sierras to discuss the installation of a new rock pulverizer. He returned with four – or perhaps, six – sticks of dynamite.

CONSPIRACIES AFOOT:    While Burke was at his mine obtaining dynamite, the Sanitarium bookkeeper wrote him a gossipy note. Burke’s sister-in-law, Aggie, he claimed, was telling everyone that Doctor Burke was the father:


…You know as I know, there never will be any harmony as long as Aggie is in your midst or anywhere near you and she makes Alfred the same way. It is a shame they have circulated such dirty lies about you and Lu Smith. You probably have heard of them. Aggie told Dr. Dessau she had gotten Lu Smith’s confidence and she had told her that you were the father of that child and all such rot. Now, Doctor, what do you think of your own relative, one who owes every dollar she ever had to your brains and energy, trying to stuff such rot as that down outside people. Poor Lu Smith, almost an imbecile, who anyone could make believe and say most anything, is used by that sneak of a woman to cast such a slur as that…

That letter was not admitted as evidence, but we can again thank the Press Democrat for its diligent reporting of all the very juicy bits.

(RIGHT: Oakland Tribune illustration)

When Burke returned from the mines, Dr. Hitt picked him up in his buggy at the Fulton train station. Hitt had earlier testified that he asked Burke directly if he was the father and was told no. Hitt recalled he said Lu should probably be sent to an asylum, but Burke commented that she and her child would be “better off dead.” In Burke’s version of the conversation, Hitt said, “it would be better for the Sanitarium and all concerned if the woman was put away” and Burke refused. But Burke continued by claiming Hitt offered another solution:

A: Now he says, “Doctor, if that child gets sick,” he says, “you let me treat it and it won’t get well, there was a similar case in Chicago and they let me treat the child and it did not get well.”

Asked why he would “continue friendly relations” with Dr. Hitt after hearing such an outrageous suggestion, Burke replied, “Well, I did not think so very much of it at the time. I thought the man was acting as he supposed in the best interest for the Sanitarium.”

After his return from the mine, Burke found Lu Etta acting increasingly troublesome. She wanted Burke to give her money so she could leave the Sanitarium. When he refused, she decided to leave anyway and packed her bags. Burke told the stage driver not to give her a ride. When Lu Etta asked why, she testified he answered, “My dear girl, you haven’t paid your bill.”

Q: You tried to keep her from going, leaving there, when she wanted to leave by the stage, didn’t you?

A: I did.

Q: And also when she wanted to go at a later time?

A: Yes, sir.

Q: You wrote her a note?

A: I did.

Q: Before you went up to the mines in January, did you? (This was not the trip where he brought back dynamite.)

A: I did.

Q: Did you intend to send her away at that time?

A: Well, she kept wanting to go away and wanting to go away …I had kept her from going because I did not feel that she was able to go away and I had all this experience so far in helping her…

Q: Did you know that she was trying to communicate with an attorney?

A: Why, I had just heard of it.

Q: Wasn’t that discussed when Dr. Hitt came over and met you at Fulton?

A: I don’t remember that. It is barely possible he spoke something about her phoning that day I went away.

At this time Burke also began telling people he feared she would commit suicide by explosives:

Q: Doctor, did you ever at any time state to Doctor Hitt that Lu Smith would blow herself up with dynamite?

A: No, sir.

Q: Did you ever at any time state to Mr. Dillard that Lu Smith would blow herself up with dynamite?

A: No, sir.

Q: What did you say to them in that regard, if anything?

A: I stated to them that she had said she would blow herself up.

THE CRIME:    At the trial, Burke repeated what he had told the Grand Jury. In the half hour before the explosion, he spent some time along in the business office, then briefly checked on two patients. He stopped by the kitchen and spoke to Dr. Jobe and Jean Maxwell, the night watchman. He testified that he was just returning to his office when the explosion was heard. He bolted outside and saw Maxwell was already headed toward the sound of the explosion.

A: There was somebody else, but I don’t know who it was. I think, however, it was Mr. Edmunds (Earl Edmunds, an orderly)…I am quite sure it ws Jean Maxwell that said something about that being Lu Smith’s tent….the other party, whoever it was, said something about Lu had blown herself up, or something of that kind…

Q: Did you make any remark at that time, Doctor?

A: I think I remarked, “I wonder if that girl has blown herself,” or something to that effect…Then, I immediately proceeded to go up to the tent and Jean Maxwell was with me, and this one which I think was Earl Edmunds was behind us. We outran him…When we got up to about the little bridge, there I said to Jean Maxwell, “You better go by and get that lamp. It is probably dark over there.”

Q: Well, where did you go then, Doctor, do you remember?

A: Well, I think I was around the tent there for a while to see if there was anything else that might explode or something of that kind. I know I made a slight investigation anyway…as soon as I got into the tent after Jean Maxwell, Alfred had Miss Lu Smith, holding her, and she was groaning, and wanted to know what had happened, and Jean Maxwell and myself, we went to fighting the fire. The tent was afire, and the bed was afire, and a place or two on the opposite side of the tent was afire. And of course, by this time others began to gather.

Lu Etta Smith was taken to tent next door, where she was treated by Dr. Dessau. Burke looked in late in the evening.

POLICE ARRIVE:    The next morning, Burke was upset that bookkeeper Dillard had notified the sheriff’s office. Burke testified that he did not oppose a police investigation, but rather “I felt that we could handle the situation,” comparing it to the discreet handling of attempted suicides in the past. Burke’s brother, Dr. Isaac Burke, arrived and learned about the dynamite from the mine. On Isaac’s advice, he lied to police about its existence.

Q: Did you make any effort to find out the source of the explosive that did cause the explosion?

A: No, I can’t say now whether I did or not.

Q: Then all the action that you took in reference to that was to try to conceal the dynamite that you had?

A: Well, if you want–if you wish to look at it that way. I did not feel that I could give the dynamite over by reason of acting under advice.

Later, he expressed regret for not being truthful:

Q: The officers asked you for the dynamite when they were out there, didn’t they?

A: They did.

Q: And what did you say? You denied having it, didn’t you?

A: I did. But now, Mr. Lea, in the office, when Mr. Lindsay and Boyes was there, they spoke to me about the father, and Dr. Isaac and Mr. Golden were saying now, “Doctor, don’t you talk, don’t you talk” and I didn’t say anything..the third time they asked me I said “No”; reluctantly I said “No.”

LITTLE BOXES:    Burke took full control of Lu Etta’s care the evening following the explosion.

Q: Now, Doctor proceed and tell me and tell His Honor and the jury her condition…Saturday night after the explosion and Sunday morning as you observed it and as it was reported to you.

A: Well, the general condition was she was very debilitated, weakened, pulse in the neighborhood of 40. possibly a little more, but seemingly no pain, only at the time the dressing was changed and while I was there she was spitting blood quite considerably…but I considered that was all right because it was an effort of nature to relieve the congestion due to the shock that she had received. If she could not have thrown that off, why there would have been great danger. I did nothing whatever to prevent, of course, the hemorrhage because that was her salvation….by Sunday afternoon at the dressing there was scarecely any, just occasionally she would raise and spit out the blood.

By Tuesday morning, however, the wound was beginning to smell fetid. “I did not like the odor very well, so I took 1 per cent arsenic and boracic acid and I sprinkled around the edges of this cut wound on the arm and then bound it up and kept it wet in this solution, after cleansing it on Tuesday morning with the witch hazel and bichloride solution and alcohol. Now, on Tuesday evening there was no change only perhaps more fetid; still I applied the 1 per cent arsenic with the boracic acid  on Tuesday evening. Wednesday morning it was very far from satisfactory, considerably gangrenous, and it was then that I fixed up some boracic acid with a stronger proportion of arsenic and sprinkled it on around the edges of the wound, apparently to the extent of where this gangrenous line reached around the surface of the wound. I let that remain on there until Wednesday evening (when) there was a decided change for the better.”

Q: Of the stronger mixture, did you make more than one application of that, Doctor?

A: No, sir, only one. That was on Wednesday morning.

Q: Where did you have the mixture of boracic acid and arsenious acid or arsenic?

A: Why, I had it setting there. I left it there. I did not know but what I would want to use it again in the evening. It was setting there in a little cardboard box…

Q: Did you ever know that Mr. Lea or anybody else ever took any of that powder from that box?

A: I did not. I never heard of it until I heard Professor Price speak of it here in his evidence…there was something spoken of it in the paper, which was a wonder to me how the papers had ever gotten hold of it.

His defense attorney asked: “Had you previous experience with the use of arsenious acid, Doctor?”

A: A great deal.

Q: A great deal and used it in your practice?

A: Yes, sir.

Q: With success?

A: I have.

Q: Did you use that there, Doctor, for any other purpose than to assist in the relief of Lu Smith and the treatment of her wounds successfully? Did you use that for the purpose of causing her death by poisoning or secret poisoning or anything of that kind, Doctor?

A: I certainly did not.

Prosecuting attorney Lea asked for more details about the dose of arsenic:

Q: What percentage of arsenic was it that you placed on the wound on Wednesday?

A: Wednesday, that was the heavier dose. I was not sure what the percentage was. I am so used to using arsenic on sores of various kinds that I simply measured out what I though would do for the occasion.

Q: You did not make any specific measurement?

A: No, sir.

Q: When you made the 1 per cent application, did you measure that?

A: Yes, sir. I–I–I weighed that.

Q: Why did you weigh that when you could not weigh the heavier and more dangerous amount?

A: Well, I can’t say, Mr. Lea, just why.

Through questioning, the District Attorney established the boracic acid and the arsenic were in identical small paper boxes that the Sanitarium kept in its pharmacy.

Q: You administered the boracic acid and the arsenious acid together?

A: I did.

Q: They were the same color, weren’t they?

A: Well, practically so.

Q: The distinction was not observed to an ordinary eye?

A: No, sir, I think not.

Q: Did you have any method of confining that to a particular area?

A: Well, I put it on there, and put on the damp compresses of boracic acid, gauze, and then an antiseptic roll of bandages over that.

Q: Kept the whole saturated, didn’t you?

A: Yes, damp.

Q: The object of that saturation was to reach the wound?

A: Yes, it reached the wound all right.

Q: What did you do with that box after you took it away from there?

A: Why, I think I set it on the desk for a few days and then I don’t know what I did with it.

Q: You don’t know where it is now?

A: I do not know; no, sir. Usually the nurses come and clean those things up.

Q: Did you tell Miss Lenox (the head nurse) that you were using arsenic?

A: I did not.

Q: Why didn’t you tell her?

A: Why, I seldom, if ever, say to a nurse what I am using there, especially if it is anything of a nature like arsenic. I use it myself and prepare it myself.

Q: Why didn’t you label that box so that it would show its poisonous character?

A: Why, I cannot say, Mr. Lea, why I did not.

THE DYNAMITE PLOT:    With Dr. Burke’s testimony over, the case was almost ready to go to the jury. But first: The “Dynamite Plot.”

On hearing that Burke had been indicted, superintendent Frank Greenwell of Burke’s Kanaka Peak mine near Oroville came down to Sonoma County to find out if they still had jobs. After speaking with Burke at the Sanitarium, he looked over the crime scene with attorney Golden, who was the brother of Burke’s sister-in-law. The attorney told him that he had given Burke bad advice, and “he had destroyed the evidence, and it was necessary for him to make good. He didn’t say in what way, or with what he had to make good,” Greenwell testified. Later, Golden asked him to secretly bring down some dynamite, saying he wanted to conduct some “experiments” as soon as possible.

“Greenwell told Golden,” the Press Democrat reported in its trial coverage, “that it was asking a good deal of a man with a family to expect him to do something that might get him into trouble, but later agreed to get the dynamite if it would help Dr. Burke any.”

The superintendent, also being a Butte County deputy, told the sheriff there about the unusual request. Suspecting that Golden and Burke might be scheming to claim these dynamite sticks were the original ones Burke brought back from the mines before the attempt to kill Lu Etta, the sheriff marked the sticks. The two of them brought the dynamite to Sonoma County, where they met with our sheriff and District Attorney, who made further covert ID marks on the explosives.

The four sticks were handed over to Golden, but only after more intrigue by the cops. When Greenwell arrived in Santa Rosa they had him rent a buggy in the middle of the night and drive out to the Sanitarium – apparently expecting Golden would be lurking about outside at 2AM, waiting for delivery. When Greenwell returned to the livery stable with mission unaccomplished, they had him write Golden a letter, telling him that Greenwell had the goods and was registered under a fake name at a fleabag hotel in downtown Santa Rosa. And thus the package was delivered in a backroom of said fleabag.

During the middle of the trial, Golden and Dr. Isaac Burke asked the mine superintendent to come back to Sonoma County and demonstrate the explosion caused by two sticks of dynamite. Greenwell examined the dynamite first and was confident these were marked sticks before blowing them up. He also promptly told District Attorney Lea about the test. Golden told him to keep the unused dynamite.

“Do you know where the dynamite is now? asked Attorney Leppo.

“Yes sir; I have it here in my pocket,” Greenwell told the court, pulling two sticks of dynamite from his jacket.

“Don’t throw it,” said Leppo, either joking or suddenly worried that the witness was about to blow up the Sonoma County courthouse rather than endure another moment of cross-examination.

“No, sir, I won’t throw it; I am afraid of it myself.”

Asked to point out the identifying marks, Greenwell showed that a few letters on the label had been scratched off. He explained that a portion of a paper clip had been stuffed in one end and pulled out his pocket knife, digging into the stick of dynamite.

“Is there any danger?” Judge Seawell asked. The PD reporter noted His Honor was “peering over cautiously.”

“No, sir; not the slightest,” replied Greenwell as he sawed a couple of inches off the stick and clawed even deeper in it with his blade. A few moments later he dug out the bit of buried wire and stopped poking at the dynamite, undoubtedly to the relief of all assembled.

And thus more than six weeks of courtroom sensations, the trial ended not with a bang (thankfully) but another leisurely stroll down a blind alley. During closing arguments it appears District Attorney Lea never said there was a conspiracy to claim the new dynamite was the original stuff. Instead, the jury spent most of a day hearing how the sheriffs of two counties and a D.A. must have had great fun creating all kinds of secret marks on the fake evidence and then tried to sneak into the hands of Burke and his boys. It was all a somewhat childish intrigue, but hey, hearing about it must have been a very entertaining way to spend a winter’s afternoon when you have to be stuck in a courtroom.

NEXT: VERDICT!

Read More

THE BURKE TRIAL V: COURTROOM BOMBSHELLS


THE BURKE MURDER CASE


THE BIG DEAL OF THE CENTURY

THE DYNAMITE LINK AND LU ETTA DISAPPEARS

WHO HID THE KEY WITNESS?

DO YOU LOVE YOUR GOLD OVER YOUR CHILD?

DOCTOR OF LOVE

IMMACULATE CONCEPTION

MYSTERIES ABOUND

COURTROOM BOMBSHELLS

BURKE TESTIFIES

If Dr. Burke wasn’t guilty of attempted murder, he sure as hell acted like he was guilty of something.

Earl Edmunds, a 19 year-old orderly at Burke’s Sanitarium, testified that he saw the doctor shortly before the blast. “I noticed Dr. Burke appeared to be very nervous when he first came by the card room and was still nervous when I saw him in the hallway,” he told the jury. “There was no one with him when I saw him the second time. He was walking slowly and was twitching his beard nervously.” When the explosion was heard a few minutes later, Edmunds ran outside and saw Burke coming towards him. “I guess that girl has done it,” Burke remarked. The intended victims, a woman and her infant child, survived but Burke did not seem terribly concerned about them; as people gathered around the scene of the crime, he called out, “Boys, did you find anything?”

The 1910-1911 trial of Dr. Willard Burke brought the national spotlight to Santa Rosa as no other event in the 20th century, except for that earthquake a few years before. Dr. Burke was wealthy and well-known and Lu Etta Smith, the woman he allegedly tried to kill with dynamite, insisted he was the father of her child. There’s a rundown of many of the people mentioned here in the previous article, or if you don’t have the foggiest about it at all read the introduction to this series.

As the trial entered its second month, the case against Burke appeared stronger every day. It was known from the Grand Jury indictment, for example, that six weeks prior to the crime, Burke visited a mine he owned and came away with six sticks of dynamite, which he claimed were for blowing up a boulder at the Sanitarium. When investigators arrived the day after the dynamite explosion however, Burke lied to them. He told the Santa Rosa police chief no dynamite had been used on the property for fourteen years and told the sheriff’s office that he would ask around, but dynamite hadn’t been used for “a number of years previously.” He also informed Undersheriff Lindsay that dynamite could be purchased at the general store in nearby Fulton, implying the victim herself had purchased it for the purpose of suicide.

The jury also heard contradictory testimony about her injuries. The doctor who initially treated her wounds described powder burns, fine lacerations on her face and a gash on an arm – not trivial, but not appearing life-threatening, either. Yet when first asked about her condition by the District Attorney, Burke said he believed she would soon die.

His prediction almost came true. In the days following the explosion, Dr. Burke, a widely-respected physician, demanded that Lu Etta Smith remain at his Sanitarium under his personal care. Her health grew steadily worse. The arm wound was smelling gangrenous and developed “proud flesh” (the runaway growth of bright pink tissue that develops before a scab forms). During a visit to Lu Etta’s bedside, District Attorney Lea noticed powder from a little box was spread over the wound when dressings were changed. Curious, he poured a bit of the powder into an envelope and sent it to a San Francisco chemist. The compound contained seven percent arsenic. Lu Etta was moved to the County Hospital, away from Burke’s control.

This was a bombshell: It appeared Burke – having failed to kill Lu Etta by blowing her up – was covertly trying to finish the deed by poisoning her. But this evidence had not been revealed to the Grand Jury, so Burke had been indicted only on the dynamiting charge. Why?

District Attorney Clarence Lea’s prosecution was brilliant in all respects, including not seeking to indict Burke with a second count of attempted murder by poisoning. Laypersons knew arsenic was bad stuff, but it’s not as plainly a murder weapon as, say, firing off a stick of dynamite next to someone’s head. The way the arsenic angle played out at trial vindicated Lea’s hesitance; even the Press Democrat – which had produced uniformly excellent trial coverage – was confused, and ran a headline stating, “DR. BOGLE SAYS SYMPTOMS OF POISON WERE LACKING.” This shows a misunderstanding of Dr. Bogle’s testimony: What he primarily said was that a seven percent solution was close to the minimum fatal dose.

Another local physician, Dr. James Jesse, testified the arsenic could have been toxic, particularly since it would have been absorbed easily through the open wound and its effect intensified by repeated applications under bandages. The defense countered with Dr. E. S. Howard, chief surgeon of the San Francisco Emergency Hospital, as an expert witness. He told the court that arsenic was a good antiseptic although he wouldn’t use the stuff himself. In cross-examination by Lea, according to the PD, the doctor “admitted that arsenic is known as one of the ‘secret poisons.’ He said it leaves its traces, however, if one knows where to look for them which is in the bones and in the liver.” The paper ended with the wry observation, “Dr. Howard made a better witness for the prosecution than for the defense, everything taken into consideration.”

A modern Internet search, by the way, turns up that arsenic was sometimes used to treat proud flesh in the Victorian era, although probably not in the nearly lethal quantities found in Burke’s potion. But despite the potential of the arsenic angle to show Burke’s determination to kill his alleged mistress, it became yet another blind alley in the trial. And Lord knows there were enough irrelevancies heard in that court; there was one front page headline about a “farce marriage” between Burke’s head nurse and an Army doctor that took place over a decade earlier, and which has no bearing on the case at all. Honestly, following some of this trial coverage is a bit like enjoying the plot of a Dickens novel until it suddenly dawns on you that ten minutes were just wasted in reading about a minor character’s peculiar fondness for chickens.

After the New Year’s break, the prosecution dropped another another courtroom bombshell: They had recreated the crime. “The remains of a tent constructed and furnished in all respects like the one occupied by Lu Smith on the night of the explosion, and which had been blown up with dynamite in accordance with the theory of the crime as held by the prosecution, was brought into court and bit by bit offered in evidence,” the Press Democrat reported.


Thos. Riley, a miner formerly employed by Dr. Burke at the latter’s Kanaka Peak property, was called to the stand. He told of having performed an experiment a few evenings before at the request of the District Attorney, the object of which was to test a theory of the prosecution regarding the crime…

…there had been two experiments, and the first had not been a success, owing to the fact that the dynamite used was not “sensative,” [sic] only a portion of it exploding…

…It was left for Sheriff Smith to relate the result of the second experiment and tell what it was all about. He told of the construction of a tent at Maroni’s stone quarry near this city which was in all essential respects the counterpart of the one occupied by Lu Etta Smith on the night that her tent cottage at Burke’s was blown up. [He] told how it had been equipped with the same kind of furniture with a lamp and a clock, and how a pasteboard box and two blocks of wood had been placed in the bed so that when covered over with the blankets they resembled a lay figure; and last but not least he told how the dynamite had been hung on the outside and against the tent by means of a string fastened to the upper edge of the wall, and fired from a three-foot fuse of make similar to that alleged to have been used at the time Lu Etta Smith [illegible microfilm].

When it came to showing the results of the explosion, the jurymen [and] spectators that were present in the courtroom were treated to an ocular demonstration. One by one the various objects and pieces were brought in, shown to the jury, identified and put in evidence. Judged by this tent, the effect of the explosion appears to have been almost identical with that which occurred at Burke’s Sanitarium on the evening of February 5, 1910.

And with that, the prosecution rested its case.

Illustration from the Oakland Tribune, February 14, 1910      (CLICK or TAP to enlarge)

The defense lawyers began by teasing that yes, Dr. Burke would take the stand and testify – but first they had to prove to the jury that Lu Etta Smith was crazy. Really, really, crazy.

Defense Attorney Rollo Leppo told the court they intended to call a large number of witnesses from Lu Etta’s past to show she was periodically insane, irresponsible and “notoriously” immoral: “…[H]er mind was blind, or like that of the drunken man, incapable of perceiving correctly…A harmless conversation which to a sane mind would be perfectly clear and reasonable might take on a different complexion in the brain of a maniac…”

The District Attorney understandably objected to this effort to turn the criminal trial into an ad hoc sanity hearing for the victim, and surprisingly, Superior Court Judge Seawell said there was no legal precedent preventing it. After considering it over the weekend, Seawell ruled the defense could introduce testimony on her mental condition, but not immorality unless it might relate to paternity of the child.

Thus over the next five days the jury and courtroom spectators were entertained with the further odd doings and eccentric beliefs of Smith. They learned she would sometimes come into the Sanitarium kitchen, look up at ceiling and “whistle and holler.” Witnesses described seeing her “not in a very ladylike position,” meaning parts of her arms or legs were exposed. Another said she had a “diseased imagination” and believed “if we allowed ourselves to be raised to a high enough state of being we could understand the birds when they sang.” And if the court hadn’t already had its fill about the “immaculate conception” of her child, there was this:

Lu Etta Smith told witness that her child was born of an astral conception. “She said a great White Light spread over and enveloped her body, and she knew when she conceived, and that she had never had sexual intercourse with Dr. Burke, and if she had she would be proud to acknowledge it,” said the witness.

But curiously, only one witness said they heard Lu Etta Smith threaten suicide. And that witness was Dr. Burke’s sister.

The only significant physical evidence offered by the defense were four sticks of dynamite that were supposedly the same explosives Burke brought back from his mine. Testifying about the dynamite was another brother, Dr. Isaac Burke, whose San Francisco office the Sanitarium Dr. Burke shared when he visited the city twice a week to see patients. Dr. Isaac told jurors he came up to the Sanitarium the day after the explosion, and that night buried the dynamite in the sandy bed of Mark West creek. He returned about two months later and dug it up, giving it back to his brother who handed it over to his defense attorneys. Asked why he concealed vital evidence from the Grand Jury, the PD reported Dr. Isaac said the object of the secrecy was to “keep it quiet. I did not think the Doctor was guilty of anything, and thought if I said anything about the dynamite there would be a great howl about it.”

So except for Dr. Burke’s upcoming testimony, that was about all the defense had to offer; the case hinged on the jury believing Lu Etta was insane enough to attempt suicide – and likely kill her baby as well – by blowing herself up. The only other line of defense came from a parade of miners from Burke’s mines and acquaintances brought down from the Sierras. All of them said the same thing: Thomas Riley – the miner who had participated in the crime scene recreation and testified he had given Burke six sticks of dynamite, not four – was a lying sonofabitch who wouldn’t tell the truth to save his rotten soul. During their long train ride to the Bay Area paid for by the defense team they all had plenty of time to work up the expected level of bile.

There was one other mini bombshell in this phase of the trial: It seems that some of the witnesses who testified against Burke were receiving strange letters in the mail. Former Sanitarium bookkeeper Dillard and Dr. Hitt – and apparently others – received envelopes with just a sulphur match inside. It was probably supposed to look like a death threat from the Black Hand, which was then much in the news. But whatever the meaning, Judge Seawell told the jury to ignore such threats and turn over anything like that over to the court.

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