‘A Death at Crooked Creek: The Case of the Cowboy, the Cigarmaker, and the Love Letter’ by Marianne Wesson

By Gary Krist,

On a chilly evening in March 1879, a young Civil War veteran named John Hillmon, traveling with his friend John Brown across the wilds of western Kansas, was accidentally shot and killed while unloading a wagon at a remote campsite near Crooked Creek.

Then again, maybe he wasn’t.

Certainly someone died out there on the prairie that night, and Brown, the only eyewitness, insisted it was Hillmon. So, too, did the alleged victim’s wife, Sallie Quinn Hillmon, who identified the moldering body some weeks later. But the three corporations that had insured Hillmon’s life just prior to his journey had other ideas. To them, the fact that this poor cowboy drifter had so recently bought policies in the amount of $25,000 — a staggering sum in 1879 dollars — seemed more than a little suspicious. Smelling insurance fraud, they refused to pay the claim. And so was born one of the longest and most consequential legal battles in the history of American jurisprudence.

The Hillmon affair eventually generated an almost endless stream of court procedures, including two coroner’s inquests, six jury trials, a court of appeals ruling and two separate reviews by the Supreme Court. When the case was finally settled (out of court, 24 years later, with Sallie Hillmon’s lawyers getting most of the settlement money), it had still not produced any real certainty that the man killed at Crooked Creek was indeed John Hillmon. But the case did leave one important legacy: the invention, in the first Supreme Court review, of a basic rule of evidence that essentially rewrote the law of the land and that remains highly controversial to this day.

Marianne Wesson’s exhaustive look at this real-life Jarndyce v. Jarndyceapproaches its subject from several angles. The bulk of the book is a narrative of the decades-long litigation saga, intertwined with some swift excursions into background history and the story of her own recent efforts to have the body exhumed and subjected to modern forensic analysis. As a law professor at the University of Colorado, Wesson is particularly well-equipped to make sense of the central legal issue of the case — namely, the admissibility as evidence of a love letter from a missing cigarmaker to his fiancee, the contents of which suggested that he, not Hillmon, was the man killed at Crooked Creek.

Sallie Hillmon’s lawyers insisted that the letter was hearsay and therefore inadmissible in court; the insurance companies’ lawyers disagreed, as did the Supreme Court when it reviewed the case. Details of the justices’ ruling, which created an entirely new exception to existing hearsay rules, are too complex to go into here. But after reading Wesson’s analysis, I’m inclined to agree with her that the court “stumbled profoundly” in the case, basing its decision not on any rigorous legal logic but on a belief that the Hillmons had in fact committed fraud and shouldn’t be allowed to profit from it.

But Wesson stumbles profoundly herself by larding this otherwise exemplary book with long fictional sections depicting behind-the-scenes legal machinations and other entirely undocumented material. To be fair, she does alert us in the endnotes to these various acts of imagination, but some of her re-creations are based on nothing even remotely suggested by the historical record. (“My inventions,” she reports in one note, “include Polly, Eliza, the lemonade, John Brown’s sojourn in jail, and Reuben’s role in getting him the job at Fulton’s mill”; a few other notes read simply, “This scene is altogether invented.”)

This dubious technique is especially problematic when Wesson takes us into Sallie Hillmon’s private musings. Since no one — Wesson included — really knows whether the alleged widow was actively engaged in a large-scale fraud, her interior monologues must necessarily be fudged, scrubbed clean of any stray thought that might contain an implicit revelation of her innocence or guilt. The effect is entirely artificial — an omniscient narration that knows everything except the really important elements of the story.

By blurring the lines between the factual and the fanciful, the book continually undercuts its credibility. Wesson, who has produced several well-received novels, knows how to write fiction, and her invented scenes are full of lively touches of description and characterization. But here her skills as a novelist sabotage her obvious strengths as a researcher, historian and legal scholar. “A Death at Crooked Creek” could have worked well as either fiction or narrative nonfiction; by trying to be both, it ends up compounding the perplexities of the Hillmon case. It’s a sad irony that a book so centrally concerned with the question of reliable evidence should be undone by so much outright hearsay.

Gary Krist is the author of two nonfiction books — “The White Cascade” and “City of Scoundrels” — and several works of fiction.

A DEATH AT CROOKED CREEK The Case of the Cowboy, the Cigarmaker, and the Love Letter By Marianne Wesson New York Univ. 379 pp. $29.95