GRAND JURY #1

Feb 8–20, 1904

A special grand jury for the Iroquois Theater fire case was requested on February 6, 1904, by state attorney Charles S. Deneen, it having been concluded that February's regular grand jury would not have time to hear the case. The prosecution was given to assistant state attorney Albert Barnes who had been present throughout the coroner's inquest. Barnes was to be assisted by assistant state attorney Frank P Blair. Jury selection began on February 8 (see right).

State attorney Frank P. Blair clarified on March 8, 1904, that mayor Harrison, fire chief Musham, Iroquois fireman Sallers and lamp operator William McMullen, did not remain under bond, nor had the special grand jury erred in not filing a "no bill" on them. The special grand jury's final report would supersede "blue slip" no bill form filings.

The job of grand jurists was to investigate possible criminal behavior related to the fire. It was not bound to indict the individuals held over by the coroner's jury or limit its investigation to those same individuals. There was nothing to prevent them from indicting mayor Harrison, even though a judge and the prosecutor had opined in a public forum that the coroner's jury had overreached its authority and purpose in its findings.

Witness testimony began on February 9 following a tour of the theater. First came police and firefighters, who described the jam on the steps leading from the second-floor balcony and told about rescue work.

Newspapers reported that individuals the jury might wish to indict could not be questioned by the grand jury because if they did, they could not then be prosecuted. That included any likely candidates held over by the coroner's jury, such as Davis. (That was apparently inaccurate because the first grand jury both interviewed and indicted Iroquois treasurer Thomas Noonan.) Grand jurors were free to read the extensive transcripts from the coroner's inquest, including transcripts from fire attorney Fulkerson's inquest.

On February 10, surviving theater goers were called, and on the 11th, Iroquois Theater employees, including usher supervisor Dusenberry, engineer Murray, electrician John Wiertz, former Iroquois employee, usher Willard Sayles and lamp operator Peter O'Day.

Elvira Pinedo described the number of people standing in the aisles and at the back of ground floor seats, and Ernest Stern described breaking open a door in the front lobby. Emil Von Plachecki described his harrowing escape through a bathroom skylight. Of particular importance was testimony from Sam B. Rogers because his late wife, Rose, was one of the few victims who could be connected to a specific seat in the auditorium. She'd placed her ticket stub in her purse. Looking ahead to an eventual criminal trial, prosecutors were desperate for such examples.

"We want more evidence of the manner in which persons escaped and of the difficulties they encountered," said assistant state's attorney Barnes. "Anyone who can give us data of where any of the victims were seen last in the theater gladly will be heard." Coroner Traeger supplied transcripts of testimony given at the coroner's inquest, and grand jurors heard testimony from painting contractor John Galvin baseball players Charles Dexter and Frank Houseman. Fresh from the hospital, Carrie Anderson was brought to testify but sent away to be told, for the first time, that her mother had not survived the fire.

February 12 brought conflicting testimony with multiple theater personnel claiming to have opened the same door and the same doors as theatergoers claimed to have opened. My bet is that it was more about communication problems than prevarication or the hero posturing suggested by jurors. In modern times large flip charts or PowerPoint in the courtroom would make sure everyone in a discussion is talking about the same door. I've read nothing about visual aids in the Iroquois courtrooms but have read reports of courtroom dialogue that demonstrates attorneys and reporters who lacked familiarity with the building.

There were signs the jury wanted to keep its options open regarding supervisor Dusenberry, twice scheduling and canceling his testimony until they'd heard from all the ushers.

An attorney for lamp operator William McMullen and stage carpenter James Cummings floated an offer of putting their constitutional rights on hold so they could again volunteer to testify as they had for the coroner's inquest, but the jury didn't bite. They instead called James' brother Roger Cummings to testify, along with his supervisor, operator of the fire curtain, Joseph Dougherty.

On February 13, jurors called Arthur Hull to explain and substantiate his claim, as made to the press and in a flier he'd had printed for passing out, that "powerful influences were at work to prevent the punishment of those responsible." Under questioning by assistant state attorney Barnes, Hull admitted he could produce no evidence.

Also testifying on the 13th: Carl Berry who lost his wife, brother, and sister-in-law, the Martin parents who had lost both their sons at the Iroquois and James Strong, whose wife, mother, and niece died on the other side of a door he and William McMullen struggled to open until fireman Roche appeared with an ax, succeeding in opening the door moments too late.

On Monday, February 15, building inspector Julius Lenses testified about inspecting Chicago theaters while preparing the report building commissioner Williams had submitted to mayor Harrison that demonstrated every theater in the city violated ordinances sufficiently to merit license revocation. As he spoke, jurors had before them the testimony given by Williams and Harrison at the coroner's jury about the report. According to the Chicago Tribune, either man had the power to revoke theater licenses. Instead, Harrison had sent it to the city council to review the ordinances, where it was moved to and remained in a committee.

Lenses also testified about his visit to the theater with inspector Loughlin/Laughlin the morning of the Iroquois premier, November 23, 1903, when Loughlin performed his final inspection and reported the building as being "OK."  Lenses repeated his opinion, offered in his coroner's jury testimony, that the theater was far from complete enough to have earned that inspection certification.

Also testifying on the 15th  were survivors John Haney and Sidonie Fellman.

Verdict

On Saturday, February 20, 1904, grand jury #1 voted to bring multiple counts against Iroquois manager Davis, treasurer Noonan, and stage carpenter Cummings for involuntary manslaughter, a misdemeanor, and against building commissioner Williams and inspector Laughlin/Loughlin for "palpable omission of duty" resulting in the deaths of two third-floor theater occupants. Those were Viva R. Jackson, who had occupied a seat in the first row of the gallery, and Margaret Berry.

Williams was charged with not inspecting the theater, not directing a subordinate to inspect it, not having enforced city ordinances, and not having had corporate council enforce the ordinances. Iroquois treasurer Thomas Noonan was a grand jury add-on who had not been held over by the coroner's jury. It was reported that he was indicted in part because jurors thought it would be inconsistent to indict Williams and not Noonan. Noonan had been instructed by his superior, Davis, to purchase fire hose for the Iroquois, and Noonan purchased only fifty feet of hose. The juror's first vote on Noonan was inconclusive, so his indictment was voted upon a second time as the last vote.

The penalty for involuntary manslaughter was a prison sentence of from one year to life, and for misfeasance, a fine up to $10,000 and possible removal from office.

Indictments

The jury turned the indictments over to the state's attorney's office for drafting and recessed until Tuesday, February 23, 1904, when the indictments were turned over to judge Chytraus' court ,and arrest warrants were issued.

A committee of three grand jurors prepared a 12-page report of their findings, released February 24, 1904, including recommendations and an explanation as to why the mayor and fire chief were exonerated.

Exonerations

Exonerated were mayor Harrison, fire chief Musham, lamp operator McMullen and Iroquois fireman Sallers.

Mayor Harrison - the coroner's decision to hold Harrison over for trial had been based on the presumption that Harrison let the Iroquois open after he was informed (by commissioner Williams' report) that Chicago's theaters were unsafe. The coroner's jury, however, had not heard all the testimony heard by the grand jury. Testifying before the grand jury was city clerk Fred C. Bender, mayoral assistant Edward Ehrhorn, city collector Edward Lahiff, and deputy collector J. F. McCarthy describing a conference with Lahiff, Bender, Ehrhorn, the mayor, and Williams, subsequent to the filing of Williams' report, in which Harrison directed that no theater licenses should be issued without Williams' verification that the theater met ordinance requirements. Since Williams had already permitted licensing of the Iroquois, and the Iroquois was a brand new structure, inspected and given an okay by Loughlin/Laughlin, Williams did not himself know the Iroquois was a fire trap thus had no reason to bring it up in the conference. If it went down as described, one of history's most tragic communication gaps.

Fire chief Musham - his exoneration resulted from the juror's interpretation of Chicago building ordinances that Musham's job description included a responsibility to judge the adequacy of fire apparatus in theaters but did not require safety inspections. Like the judgment could be pulled from the air? I kind of like gruff Fred Musham, but part of the benefit of stationing firemen in the theaters was to ensure that exactly this type of information reached the ear of officials charged with responsibility for protecting the public. Musham's aloofness aborted that chain of responsibility, abandoning theater firemen to the conflicting objectives of theater owners.

Lamp operator William McMullen was exonerated because jurors felt the lack of fire fighting equipment was more causal to the massive loss of life than the cause of the fire outbreak. The jury recognized that McMullen had the option of refusing to operate the lamp in such unsafe circumstances but, like fireman Sallers, McMullen was given a pass because he lacked authority. No mention in the coroner's inquest or the grand jury report why there was no indictment of the Mr. Bluebeard electrical supervisor Wlliam Dunn who knew the lamp was too close to the drapery and failed to resolve the problem.

Iroquois fireman William Sallers was exonerated because he was never instructed on his duties or asked for a report on the theater's conditions. Sallers was a fireman who knew better than anyone else at the Iroquois what fire could do to human flesh, and better than anyone else in Chicago how poorly prepared the Iroquois was for a fire. His excuse, that he feared he'd be fired if he spoke out, as he had been at a prior job, is weak. "Might have to find a new job if I speak out... wife might get upset...but if I remain quiet, it risks the lives of two thousand people every time this theater fills up...let's see, what should I do..." Gives cowardice and self interest a whole new meaning.

Punish those at the top, for sure, but folks who make decisions that cost hundreds of lives shouldn't be given a pass just because they're at the bottom of the totem pole.  McMullen, Dunn and Sallers ignored their consciences, and nearly six hundred people died.  Not acceptable.

Grand jury #1's recommendations

The mayor and other city officials were censured for tossing off responsibility to others and shirking responsibility, chief Musham for poor management of theater firemen. The grand jury agreed with the criticism and recommendations of the coroner's jury insofar as a need for changes in the inspection system and the creation of a fire/police board. Fire chief Musham took their recommendations and, within thirty days, had created a bureau within the fire department to specialize in inspections of structures, elevators, and other ordinance-mandated activities required of the fire department.

CHANGE OF VENUE FOR NOONAN & CUMMINGS

September 1904

In the fall of 1904, the defense team headed by Levy Mayer persuaded Judge Kersten that a fair trial could not be held in Chicago. Presentation of the argument turned into a clown show. On October 13, the judge granted a change of venue to Peoria, IL and it was entered on November 2, 1904, assigned to Judge Green's court.

INDICTMENT #1 QUASHED

March 10 -11

In a joint ruling with Judge Green, on March 10 1905 Judge Kersten ruled in favor of a defense motion to quash the indictments against Davis because of over a dozen technical errors in the case. He offered to describe the problems to the prosecutors so the errors could be corrected. Kersten did not find the city's ordinance to be defective, however, and disputed assertions by Davis's attorneys that his quashing the indictments was an indictment of the ordinance. Judge Green in Peoria stated that he would follow suit with the cases that had been transferred to his court against Noonan & Cummings. Green's went further, expressing his opinion that no case could be brought based on the Chicago fire ordinance. On March 11, 1905 Green followed Kersten's lead and quashed the indictments against Noonan & Cummings, expressing his opinion that the cases should not have been joined.

In the view of Judge Kersten, the problem with the first case was that it rested on the defendants having failed to equip and operate the Iroquois in conformance with the Chicago city ordinance, specifically providing the structure with an electrically-operated flue above the stage and automatic sprinklers.

The ordinance, however, did not specify who at the theater was responsible for this provision. The implication was that the responsibility fell upon the theater owner or leasee but Kersten and Green felt the indictments as presented would not withstand an inevitable appeals court if a conviction was successful.

In Green's ruling he said the fire killed the plaintiff and since the defendants were not charged with having started the fire, only with failing to provide adequate protection against a fire, the case was invalid.

GRAND JURY #2 & INDICTMENT #2

February 24, 1904 - March 5, 1905

States attorney Daniel Healy accepted Kersten's direction on corrections of the case errors and a new grand jury hearing was fast-tracked through the court with a reduced witness list.

Proceedings began February 24, 1905.
As the second grand jury trial opened, defense attorneys Alfred Austrian, William J. Hynes, and Moritz Rosenthal began arguing that a venue change was needed, and assistant state attorney Erasmus Lindley began protesting. Judge George Kersten interrupted to say that his docket was full and the trial was being transferred to another judge — later announced to be Willard M. McEwen (right).

On March 4 1905 grand jury #2 indicted Davis, Laughlin and Williams. State's attorney Healy also presented evidence against Klaw & Erlanger, Harry Powers, Cummings, Noonan and Sallers, but the jury declined to indict those men.  Efforts by Henry Shabab to obtain evidence against Klaw & Erlanger either failed or were rebuffed by the prosecution. 

Before the trial reached McEwen, however, the defense filed a motion to quash the indictment against Will J. Davis.  The motion landed in the court of circuit court judge Marcus Kavanaugh.  In mid June 1905 defense attorney Levy Mayer delivered a six-hour argument about deficiencies in the state's case and Kavanaugh found what was probably a typo but could have contributed to a later appeal. 

Nonetheless, on January 24, 1906, Kavanaugh upheld grand jury #2's indictment #2 and the case was set to go forward.

1905 Grand Jury Judge

Willard Milton McEwen (1868–1927)

After graduating from law school in 1887 McEwen entered private practice with Charles Deneen and F. B. Pease. He moved with Deneen to the Sanitary District, then in 1896 to the state's attorney office. Illness had prevented McEwen from getting the first Iroquois grand jury trial in 1904.

Discrepancies and addendum

* The Inter Ocean newspaper was founded as the Chicago Republican. Despite an 1872 name change it was Chicago's primary republican party mouthpiece.

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