Rossi Post 7.1: It appears to me now that my discussion of the full range of issues raised in the pre-trail battle over the change-of-venue question is going to require not one but several posts. It is hoped this “thick coverage” of these issues will be boiled down later — i.e., for the book that may emerge from this series of posts. For now, however — and, once again, invoking my “work in progress” authorial shield — I’m going to treat each contested issue in mind-numbing detail. As below. (Readers short of patience are invited just to wait for the book to come out!)
— See Roster of Rossi posts
Prosecuting attorney H.J. Hull placed a number of arguments in front of Probate Judge R.E. Weniger in his eight-page motion for a change of venue. Hull also submitted two affidavits prepared by local citizens – from men I’ll refer to as A.M.S. and J.J.W. They testified in their sworn statements that Rossi trial, if held in Shoshone County, would be deeply biased in favor of acquittal. (Their two statements, it might be noted in passing, bore the marks of initial drafting by prosecution attorneys.) Rossi’s defense team, on the other hand, spared no expense in rebutting Hull’s submissions. They almost certainly felt that their client’s best shot at an acquittal lay with a Shoshone County jury. Defense attorneys Walter H. Hanson, John P. Gray, and John H. Wourms each submitted rebuttal affidavits. Rossi, himself, contributed a detailed rebuttal affidavit. And, additionally, sworn affidavits were collected and submitted from 16 strategically placed citizens of Shoshone County, each occupying a propitious vantage point from which to assess popular sentiment and/or some particular aspect of Hull’s contentions.
One of Hull’s pro-venue-change arguments raised the issue of Rossi’s membership in numerous fraternal organizations in the county. These, it may be noted, were the nexuses of socializing and business-related relationships in the community – and for that matter remain so, to a not inconsiderable extent, even today. Hull enumerated that Rossi was “a Mason, an Elk, an Eagle, an Odd Fellow and a Red Man.” Moreover, argued Hull, “…a majority of the men who will necessarily be called as jurors in this case are members of one or more said organizations…” Beyond mere co-membership, Hull suggested that at least two fraternal organizations were both (a) actively involved in attempting to create pro-Rossi and pro-acquittal sentiment in the county and (b) engaged in a survey of the county’s current jury panel, in order to assist the defense in selecting jurors favorable to the defense.
Rossi’s rebuttal statement conceded that he was a member of these fraternal organizations. But he argued in response that, save for the Elks and the Eagles, he hadn’t attended organizational meetings in many years. Rossi also argued that it was not the case most jury members would also, and inevitably, be fraternal organization members as well. He framed his counterargument statistically, weighing the size of the county’s voting population against total fraternal organization membership. He observed, as well, that the citizenship requirement for voting and for jury membership was not also a requirement for membership in a fraternal organization. Finally, Rossi argued that permitting or tolerating any efforts by members to bias community sentiment or influence jury selection would be contrary to the policies of these organizations. Rossi showed more than a little skill for effective argumentation in the rebuttal affidavit he submitted.
The team of defense attorneys went a good deal farther in their vigorous efforts to rebut Hull’s claims about bias residing in this community’s fraternal organizations. A number of the affidavits recruited from the county’s citizenry came from key players in the fraternal organizations Hull had cited.
Charles A. Keating, for instance, was Secretary of Shoshone Lodge No. 25 of the Masons. He confirmed that Rossi had not been “in the habit” of attending meetings “for a great many years.” Keating also stated that “the imputation” that “the order of Masons has or would attempt to sway the course of justice in this case is not only false but slanderous as well.”
Similar statements flowed from key members in other organizations. Joseph Hermann, whose affidavit introduced him as both “Chief of the Records of the Wallace Lodge of the Improved Order of Red Man” and also an officer in the Eagles organization, asserted that Hull’s charges of biasing enterprises were “absolutely false and untrue” in relation to both organizations. Members attempting such biasing activity, moreover, wrote Hermann, would be “subject to expulsion.” Like Keating, Hermann affirmed that Rossi had attended these organization’s meetings very infrequently; asserting of the Red Man organization in particular that Rossi hadn’t attended in the past six years. Hermann added that the Rossi case had drawn no discussion at meetings. He noted that despite the fact he had been a member of the coroner’s jury in relation to the case, he’d heard no information about the event beyond the basic facts of the shooting itself. There was no reason to believe, concluded Hermann, that a fair and impartial jury could not be impaneled in Shoshone County.
And so it went. E.R. Turk, an officer of the Odd Fellows, noted that Rossi’s attendance was so infrequent that many of the organization’s members were not aware he was a member. J.W. Wimer, “Secretary of the Wallace Lodge of the Benevolent and Protective Order of Elks,” asserted that Clarence Dahlquist attended meetings of that organization much more frequently than Herman J. Rossi and as well that the two members “stood on equal footing” in the organization. Wimer declared that the Rossi case had never been discussed “on the floor of the lodge room” and that biasing efforts of the sort Hull described would be contrary to the Elks’ “teachings and laws.” Even the “Good Roads Association of Shoshone County” got into the act. F.E. Stone — a Wallace resident, a barber in town, and secretary of that organization — asserted that he saw no reason a fair jury would not be impaneled and a just verdict reached. John P. Gray, one Rossi’s attorneys, wrote that Hull’s claims of biasing efforts by fraternal organizations were, in his judgment, untrue. “If any such action has been taken,” noted Gray, “affiant has no acquaintance with or knowledge thereof.”
The affidavit submitted by J.J.W. – one of the two citizens taking Hull’s side in the contest – lumped fraternal organization members together with Rossi’s friends and business associates as agents “creating and attempting to create” public sentiment favorable to the defendant. In J.J.W.’s view, these efforts had proved so successful that a fair trial in the county was not possible. Hull’s two citizen supporters – A.M.S. and J.J.W. – would become the targets of withering and venomous attacks in the affidavits submitted by the other side. But that aspect of the tug-of-war over change-of-venue question will be discussed in another post.
For now — and if my own judgment may be permitted on the question — it appears to me that Hanson and his defense team, with the help of the officers of fraternal organizations submitting statements, did about as good a job as they could rejecting and disconfirming H.J. Hull’s bias charge. Indeed, if Hanson may have any second thoughts about the great strength and unanimity of the statements he’d submitted to Judge Weniger on this issue, one wonders if he might have mused that so many voices offering such resounding rejections of Hull’s claim may have, ipso facto, tended to affirm the prosecutor’s larger contention that the Shoshone County community favored Rossi in the upcoming trial. The very fact that the defense attorneys had expended so much effort and gone to such great lengths to refute Hull’s change-of-venue motion might have signaled to Judge Weniger just how important a Shoshone County jury was to the defense’s prospects. It’s nice to think that such an irony might have given Hanson and his thoughtful defendant a little something to mull over and worry about, even with – or, indeed, because of – how effectively they’d nullified Hull’s fraternal-organizations bias charge.