Abstract: In 1857, at Mountain Meadows in Washington County, Utah, John D. Lee with Indians and 50 other Mormon settlers massacred over 120 Arkansan emigrants. John D. Lee was convicted of the crime in 1876. He was the only one prosecuted. Was he really a scapegoat? This article concludes that the scapegoating theory was a diversion Lee’s defense manufactured as his only possible defense during his capital trial; the official correspondence between the notable stakeholders reveal a far different story: The Department of Justice was continuing its efforts to prosecute other perpetrators.
I’ve offered this paper for formal publication and was told I needed to do more work on cleaning up cites to the Salt Lake Tribune; I just couldn’t bring myself to face the microfiche reader again.
It seems to be taken for granted among the more notable Mountain Meadows Massacre historians and commentators (Jon Krakauer (2003), Sally Denton (2003), Will Bagley (2002), William Wise (1976) and Juanita Brooks (1950) that the Mormon Church (rather, the Church of Jesus Christ of Latter-day Saints) determined with the federal Department of Justice to make John D. Lee a lone scapegoat for the massacre. The theory seems to be that finding somebody to sacrifice would deter the prosecution of other notable offenders, which some argue should include Mormon prophet Brigham Young himself. The theory certainly has traction, given that it is undisputed there were several dozen other participants, and nobody else was convicted of the crime. Indeed, it is truly remarkable that there were never any other prosecutions beyond arrests and indictment.
But, was there agreement between the notable stakeholders (the Church and the federal government) to scapegoat Lee? There was not. Elsewhere I point out that such an agreement to thwart justice, as it was called in the nineteenth century, would have been an legal impossibility.
This article thus steps through the various factual reasons why it was that the Mormon Church and the Department of Justice never reached an agreement to scapegoat Lee and desist the prosecution of other perpetrators. In summary, these reasons are (1) the theme of a scapegoating emerged early in Lee’s writings, five or six years before his trial, as he despaired the loss of his Church membership and his wives, (2) the press picked up Lee’s musings about a scapegoating a year before Lee’s trial, even though others were under arrest and awaiting trial along with Lee, (3) President Ulysses S. Grant fired three prior prosecutors for failing to bring Lee to justice; when they were replaced they picked up the scapegoating theme before Lee was even tried, (4) the theme of scapegoating was Lee’s only legal defense at trial, and the Salt Lake Tribune ran with that story during the trial, (5) publicly the Mormon church urged the prosecution of other perpetrators after Lee was convicted; and (6) behind the scenes, and up to seven years after Lee’s execution, the government had continued its efforts to arrest and prosecute other perpetrators; it, however, never completed the task.
Events Before the Trial of John D. Lee
The massacre itself is beyond the scope of this paper, but a brief description of it is certainly necessary. Brigham Young led his Mormon followers outside the United States to the Great Basin in Mexican territory. Mormons soon found themselves back in the United States when Mexico ceded the Great Basin in February 1848 by Treaty of Guadalupe Hidalgo. President James Buchanan, relying upon negative reports from federal officials serving in Salt Lake City, concluded that the Mormons in the Utah Territory were in a state of rebellion. Buchanan believed that military force was necessary to remove Mormon prophet and president Brigham Young from his appointed federal office as Territorial Governor. Buchanan ordered an army west under the eventual command of Brevet Brigadier General Albert Sidney Johnston, a future Confederate General to die at Shiloh.
Brigham Young organized the territory into military districts to prepare for the invasion. He restored the Nauvoo legion, which had been disbanded upon the expulsion from Illinois. Young asked the Indian tribes to assist in a campaign of guerilla warfare against the advancing argument, encouraging them to scatter and steal cattle.
A well-armed and wealthy train of approximately 140 Arkansan emigrants arrived in Southern Utah at the wrong place and time in history. They were led by Alexander Fancher. The local Mormons proved to be poor hosts, denying trade and making traffic on the road difficult. The immigrants were poor guests, taunting the locals – at least as the California press reported from California-bound trains which followed the Fanchers. 
Local Mormon leaders provoked the Southern Paiutes to attack the Arkansans at Mountain Meadows in southern Utah on 7 September 1857. The Arkansans proved unexpectedly resilient to the Indians. The Mormons witnessing the Indian attack then marshaled Mormon militia forces to complete the attack. Mormons lured the emigrants away from their fortifications with a white flag upon the pretext of a promise of safe passage. Mormons and Indians slaughtered all but seventeen young children. Witnesses generally acknowledged John D. Lee, a local Indian farmer and influential Mormon, as one of the principal leaders of the atrocity and the man who lured the emigrants away from their fortifications. Lee took his orders from two local Mormon authorities, Isaac Haight and William Dame, both of whom also served as ranking officers in the Nauvoo Legion. Lee supervised the later disposition of the train’s property. The participants swore each other to secrecy, but many of them talked.
Federal prosecution was lethargic. U.S. District Judge John Cradlebaugh reported to Congress, the U.S. Attorney General and the President that Church authorities frustrated the prosecution. The Church influenced and politicked with U.S. District Attorney Alexander Wilson and the new Territorial Governor Alfred Cumming, or so Cradlebaugh contended. There is little doubt the Mormons had a better relationship with Wilson and Cumming than they did with Cradlebaugh. But, it logically appears that, at least before the Civil War, Buchanan’s amnesty to the Mormons and personal animus between Judge Cradlebaugh and U.S. District Attorney Wilson won the day over prosecution. Upon departure of Cradlebaugh and Wilson, and the onset of the Civil War, federal investigation came to a temporary end.
Nothing happened in the prosecution for almost two decades. President Ulysses S. Grant appointed George Caesar Bates as U.S. District Attorney for Utah in 1872. Bates assumed responsibility for the massacre prosecution, but did not pursue indictments with alacrity. President Grant replaced Bates with William C. Carey, who continued to work with one of Bate’s hires, federal prosecutor Robert N. Baskin. Carey and Baskin obtained indictments against Lee and others.
Carey and Baskin tried Lee in 1875, but the case mistried with a hung jury. The national press blamed church influence for the mistrial, because Mormons plus one non-Mormon on the jury voted to acquit; the rest of the non-Mormons voted to convict. The press labeled the one acquitting non-Mormon a “jack-Mormon.” As reported in the Tribune, “he could see no evidence to convict. . . Some say he is deaf, others that he is in love with a Mormon girl, and others that he has been improperly and corruptly influenced.” Nonetheless, Carey and Baskin did not put on any eyewitness testimony against Lee. The prosecutors used the occasion to pander to the press and condemn Brigham Young, The government’s star witness, former Mormon Bishop Philip Klingensmith, attempted to turn states’ evidence, but he could not pin Lee to the crime.
With the passage of time, the Salt Lake Daily Tribune came around to the admission that the trial failure resulted from the prosecutors’ “disgraceful lethargy.” “It is true his Honor [Jacob Boreman] severely censured District Attorney Carey for his utter neglect of the business, and on general principles in condemning so totally worthless a man he could not go astray.”
“If I was wrong now, it certainly was wrong then.”
Newly-appointed U.S. District Attorney Sumner Howard led the prosecution in a retrial in 1876. The evidence seems to indicate that a scapegoat theory originated long before Lee’s execution. After a long and favorable relationship with Brigham Young and most church authorities, Lee was surprised to learn 18 November 1870 that he had been expelled from his Church. The letter from the church’s ruling Quorum of the Twelve Apostles did not give Lee a reason for the expulsion. Tormented by the expulsion, Lee recounted a few days later a dream in which Lee believed that action against his church membership was necessary to reduce pressure against Brigham Young. Publishers of the Salt Lake Daily Tribune and other enemies of Young, he said, were “trying to implicated Prest. B. Young . . . on the grounds that he houlds Men in the church who are reportd to be in & Consiquently it is needful to stop their mouths.”
The torment continued as Brigham Young granted permission to plural wife Lovina on 21 December 1870 to leave Lee. Young told Lovina that Lee would never be readmitted to the church in Young’s lifetime.
Unhappy with his treatment, Lee met with Brigham Young on 29 December 1870 to demand an explanation. Lee said he told Young: “I was held in fellowship 13 yeas for an act the commited & all of a sudden I Must be cut off from the church. If I was wrong now, it certainly was wrong then.” Young responded by saying that he did not know the particulars of Lee’s full involvement “until lately.” Lee says he responded to Young by reminding him that he had made a full confession in 1857. Young did not respond, but as Lee recounted the facts to Erastus Snow on the same day, “[h]e seemed Much astonished . . . .”  Lee demanded a rehearing, which Young purportedly told Lee he would have. On the basis of an anonymous letter which Lee claimed he received a few days later urging Lee not to press for a rehearing, Lee felt better about his situation.
Nonetheless, the sacrifice of Lee was one of Lee’s recurring themes. On 20 July 1871, Lee’s diary puts Lee’s feelings into the mouth of a missionary from the Reorganized Church of Jesus Christ of Latter-day Saints schism, wherein the missionary purportedly told Lee that “Brigham has Treacherously through fear Made Me a scape Goat, to bear of his sins & had exposed me to the spleen & Malace of all his adherents.”  Lee thus developed his scapegoating and sacrifice theory four years before the first trial.
As federal investigation intensified, Lee came to know that he had something more at stake than his Church membership and his marriages. Upon Lee’s capture on 7 November 1874, United States Marshal George R. Maxwell, deputy William Stokes, and trial judge Jacob Boreman all met with Lee to pressure him, unsuccessfully, to save his life, obtain immunity, and testify against Brigham Young. Lee, nonetheless, believed he had been abandoned. Lee, quite the diarist, composed a ditty about his prison food.
Old Mormon Bull, how came you here?
we have tuged and toiled these many years,
we have been cuffed and kicked with sore abuse
and now sent here for penetentiary use
We both are creatures of Some Note.
You are food for Pri[s]oners
and I the scap[e] goat
After the first mistrial, the notion of a scapegoat also was a popular one with the press. In September 1875, the Tribune opined:
It is known that he has soured on the Church and is quite free in his admissions that he has been cast off as a scape-goat, and that he has been made to bear the whole infamy of this unparalleled crime. . . . It would be a cheap way of removing this very damaging [public perception of the inadequacy of Utah justice] to abandon the prisoner Lee to his fate. He has long been an obnoxious person, he is of no further use to the Church . . . .”
William Nelson replaced George Maxwell as United States Marshal on 16 March 1876. Sumner Howard replaced prosecutors William Carey and Robert Baskin on 27 May 1876. George Caesar Bates, who had previously been the federal prosecutor, and who had joined the Lee defense team for the first trial, was ousted from the defense team for the second trial. William Bishop, along with Wells Spicer and J.C. Foster, became Lee’s defense counsel for the second trial, replacing the defense team of Jabez Sutherland and George Caesar Bates with minor support from William Bishop and E.D. Hoge.
“Howard and the Saints Had Simply Put up a Job on Lee”
Second guessers were easy to find as Sumner Howard unfolded his prosecution strategy in September 1876, particularly with the professionally embarrassed Bates and Baskin following the case from Salt Lake City. As subsequent events would show, the theory of a scapegoat and a secret deal to thwart justice against other perpetrators seemed the most attractive theory upon which to embarrass, in turn, Howard and Brigham Young.
Howard began the second trial against Lee on 14 September 1876 in front of a national press contingent encamped at Beaver City, Utah. Lee held court daily with the press as they laughed and joked with him about his confinement, his wives and his crimes.
Howard dismissed the indictment against William Dame for lack of evidence. The press howled in outrage over Dame’s dismissal as well as over the selection of an all-Mormon jury. Lee fueled the fires by reminding the press again that he was being made a scapegoat. The Tribune also reported jailhouse talk from Lee’s friends and fellow prisoners of “the priesthood’s necessity of deserting Lee, at lease [and] Dame and the others should henceforth never be molested by the courts. . . .” Two days later, 16 September 1876, the Tribune reported further that “[o]n the street the wildest kind of conjectures were in circulation as to what the prosecution meant, but finally the conclusion became prevalent that Howard and the Saints had simply put up a job on Lee.”
The most significant witness in the second trial was Jacob Hamblin, a Mormon missionary to the Paiutes in 1857. The massacre occurred on his property, but he had been absent on business. He did not testify in the first trial. At the second trial, he provided a surprisingly detailed recitation of Lee’s confession to him, shortly after the massacre, of premediated murder. Although Lee would later condemn Hamblin’s testimony as a fabrication, in closing argument Lee’s lawyer Bishop conceded that he thought Hamblin’s testimony was accurate. It has been relatively easy to criticize Hamblin. His testimony seems contrived and overly-detailed as Hamblin recounts not what he saw but what Hamblin told him. When Army Major J.H. Carleton interviewed Hamblin in May 1858 about the massacre, Hamblin did not mention Lee’s confession. An early confession to Hamblin would have meant that Brigham Young would have had very early detailed knowledge of Lee’s involvement, a fact which Young denied by affidavit. John Beadle appears to have interviewed Hamblin extensively, stating that he is “a man I know to be in many respects high-toned and honorable.” Yet, he wrote that Hamblin “told lie on top of lie, and covered himself fathoms deep in perjury to screen his brother Mormons. Later historians are burdened with the lack of an adequate cross-examination. “Q. Tell the balance? A. I would not kile [sic] to undertake it.” He didn’t tell the balance, and none of the lawyers asked Judge Boreman to order him to do so.
William Bishop made closing arguments on 19 September 1876. The scapegoating and sacrifice of Lee was his only defense other than the inadequacy of the evidence. Lee was innocent, not because the evidence failed to show that he committed the crime, but that others equally responsible were not being held for it.
Howard opened his rebuttal attack, but it was directed as much against the Tribune and its advisors as it was against Bishop’s opening argument. “By a misguided policy” the prior prosecution was sought “with great reach which caused its downfall. But, another policy has been pursued and to-day we can only deal with Lee . . . . . Howard challenged any juror to find “iota of evidence that points to the Church at Cedar City or to any officer of that Church and makes them responsible for the commission of the offence.”
Howard denied that Lee was offered as a sacrifice. “[I]t is Lee’s counsel’s theory alone.” Howard said:
I do not know but one rule actuating me in the discharge of my official duty, and that is to do just what I believe to be right, and the outside world may say, that he is sacrificed, and the wish is father to the thought; and I say before you to day that there are men and newspapers and politicians and partners in the Territory of Utah, and in this country to-day, that would roll this morsel of conviction of the Mormon Church of this great crime under their tongues as sweet. These are men that don’t want this thing to go where it belongs because it would knock the wind out of him as well as the offender out of the [illegible]. That is not my proposition.
The press ridiculed this argument. Brigham Young should have been the target. The Tribune charged that Howard’s deal with the Church to make Lee a scapegoat was linked to the Church’s desire for Utah statehood. Beadle, however, writing in 1877, was not entirely convinced with the scapegoating theory. The scapegoating theory appeared to him to be a defense theory.
Howard obtained his conviction the next day on 20 September 1876, with the jury deliberating three and one-half hours. One juror later stated that the scapegoating defense was the only one they considered. The Church’s call for continued prosecution of other perpetrators, three days later, 23 September 1876, was met with derision. 
The Tribune’s “Conditions of the Bargain”
The Tribune claimed that Howard “has made a foolish bargain, and will come out at the small end of the horn. . . . Those everlasting fellows have egregiously bamboozled him . . . .” A long letter to the editor from a non-Mormon, defending Howard, appeared on 26 September 1876. On 27 September 1876 the Tribune responded and summarized its previously-stated theories for a deal between the church and Sumner Howard. It was “plain enough” that the “conditions of the bargain” were that the indictment against Dame be quashed, Howard selected an all-Mormon jury, Howard “was to absolve the priesthood and people from any complicity in the treacherous massacre,” Howard was to taunt the prior prosecution team who had failed, and Howard was to “treat with ribald scorn the Liberal [party] of Utah,” of which Howard was a member.
There were problems with the Tribune’s theory as measured against the rule of law. A dismissal or nolle prosequi before the jury is empanelled was a dismissal before jeopardy attaches (as in “double jeopardy”). Dame’s dismissal was not a legal bar to further proceedings against him and it permitted the Department of Justice to maintain its option to prosecute Dame. There was no statute of limitations for murder. The Tribune attacked what a prosecutor would have otherwise seen as careful practice.
As to the selection of the all-Mormon jury, the Tribune advanced its theory on jury selection on 16 September 1876, the first day of trial. It reports that Lee asked an officer of the court (the paper does not identify the man) “to use his influence in having a few Gentiles left upon the jury to hang it.” However, “[t]t is too late; he is gone.” The selection of an all-Mormon jury was part of a scheme to sacrifice Lee. But, the selection process was trilateral, with each side and the court having its say. The court used a list of fifty petit jurors, twenty-nine of whom were Mormons. Howard explained in closing argument that it was Bishop, not the prosecution, who had struck non-Mormons from the panel. Bishop “was very anxious to get every Gentile off the jury; and I kept striking off Mormons.”
But, fundamentally, an agreement to thwart justice, or “stifle prosecution,” would have been an unlawful and unenforceable agreement, just as it would have been unlawful to form an agreement to collect gambling debts, pay for a prostitute, and not report crime. An agreement to stifle prosecution would have been a felony. North Carolina’s highest court explained in 1816 that there are certain agreements which are crimes and cannot be enforced “such as . . . agreements to stifle prosecutions of a public nature.” “[S]uch promise cannot be enforced, on account of the illegality and iniquity of suppressing testimony in any cause.”
This bar against stifling prosecution did not mean that immunity could not have been granted a co-conspirator. However, immunity agreements required either judicial or presidential imprimatur, which would be matters of public record. Immunity agreements, other than pardons, also usually required as a condition that the immunized person turn state’s evidence. Without a valid immunity agreement, any subsequent U.S. District Attorney, or even Sumner Howard himself, could have ignored a deal to thwart justice and could have prosecuted any person worthy of prosecution. Any agreement to forbear the prosecution of Lee’s accomplices, or of Brigham Young himself, would have been a nullity and something not worth pursuing.
But, the charges of a deal to thwart justice continued. Under considerable pressure, and one day after having been pilloried in the Tribune, Howard and U.S. Marshal William Nelson penned a remarkable letter to U.S. Attorney General Taft (father of the future President and Supreme Court Chief Justice, William Howard Taft), telling Taft that the Lee verdict “seems to be displeasing to certain factionists” whose “thunder” is stolen. Howard and Nelson expressed surprise that their enemies, unnamed in the letter, would envy and reject the conviction for political purposes. They further explained that “[i]t has been their public boast that the former trial of John D. Lee in July 1875 was not for the purpose of convicting the prisoner, but to fix the crime of the Mountain Meadow butchery upon the Mormon Church.” But, “that there is no evidence whatsoever to connect the chief authorities of the Mormon Church with the Massacre.” Instead, “[we] asked [the church’s aid] in unraveling the mystery of this foul crime. That aid was given and the horrid testimony is public from the mouths of eye witnesses, convicting the prisoner without the shadow of a doubt.” Howard and Nelson were outraged that their political opponents, whom they described as those who “fail[ed] in the . . . prosecution before,” would “reject the conviction of the chief butcher of Mountain Meadows, but disappointment and envy, together with the loss of political capital, will drive men into strange positions.”
George Caesar Bates: “They have sold me out.”
Howard and Nelson were not specific about the men who had “fail[ed] in the . . . prosecution before” who were accusing him of a deal to stifle prosecution. It is fairly easy to deduce that these men were George Caesar Bates and Robert N. Baskin.
George Caesar Bates, replaced by Ulysses Grant as the Territory’s prosecutor, was a man of petty grievances and unfulfilled ambition. In 1851, as U.S. District Attorney for the District of Michigan, Bates had had a bitter experience with his unsuccessful efforts to prosecute Mormon schismatic polygamist James Jesse Strang for counterfeiting, cutting government timber, and obstructing the mails. Bates complained that conspiracies with schismatic Strangites and politicians defeated his conviction, but it seems that Bates used the trial to advance his political career rather than muster evidence. The same decade found Bates in San Francisco, perhaps in the company of backsliding Mormon millionaire, Sam Brannan, as fellow members of the lynch mob known as the Vigilance Committee.
Bates expected payment from the Church for his services in the defense of Lee after his ejection from the defense team following the first trial. He unsuccessfully sued the Church for payment and, upon that loss, considered a suit directly against Brigham Young. In a tactic which, today, should lead to disbarment in most states, Bates offered to turn upon his former clients, telling Judge Boreman: “All those other men now under indictment are as guilty as old John D. Lee himself, and they can be, and ought to be captured, brought into Court, tried, convicted and sentenced to death, and I possess the power to aid in the accomplishment of that event. They have sold me out, turned their back upon me, and put thier [sic] case into the hands of Sutherland, who intrigues with others to let them escape.”
Bates also maligned Sumner Howard. Bates told U.S. Attorney General Devens that mining interests had also corrupted Howard. Bates told U.S. Attorney General Devens about financial frauds allegedly committed under Howard’s watch in the U.S. Marshal’s office. Howard, in retaliation, commenced criminal prosecution against Bates for libel.
Bates asked Judge Boreman on 9 March 1877 that a detective which Bates recommended be appointed to apprehend his former clients, the remaining indictees for the massacre. Bates then went to Washington to obtain an appointment from the Department of Justice to replace some of Howard’s prosecutorial functions for the massacre. Judge Boreman on 25 April 1877 informed U.S. Attorney General Devens that Bates “cannot be trusted with the arrest of any one. He is totally unreliable . . . and is neither honorable nor truthful.”
On 2 May 1877, after learning about Bate’s request, Howard told Devens that Bate’s proposal to pursue the perpetrators was “another of Brigham Young’s games to thwart the officers” in their arrests. In other words, Howard was of the view that Bates, the former Lee attorney who believed he had been hired by the Church, was secretly in league with Brigham Young. Had Howard made a deal to stifle prosecution, this claim would have made little sense. Why would Howard have been accusing Bates of a “game to thwart officers” if Howard had previously made a deal to thwart justice? None of this material has come under Brooks’ or Bagley’s myopic microscopes.
Lee was executed on 23 March 1877. U.S. Marshals, accompanied by an army contingent, transported Lee from the penitentiary to the scene of the crime at the remote Mountain Meadows. Executioners seated Lee is his coffin and shot him before a national press contingent on 23 March 1877. Lee had given a confession to his attorney, William W. Bishop, and another to Howard, on the condition they could be published upon his execution. The New York Herald and San Francisco Chronicle jumped the gun with the publication of the confession to Bishop on 21 and 22 March 1877, respectively, or one and two days before the execution. The Salt Lake Daily Tribune published the confession to Bishop on 25 March 1877 and the confession to Howard on 28 March 1877.
After the Tribune published the Lee confessions, an affidavit appeared in the New York Herald purportedly from former Deputy U.S. Marshal Edwin Gilman on 12 April 1877. Gilman declared that that the Lee confession was altered to remove material implicating Brigham Young. Gilman said that he was a jailer in Beaver. As Gilman claimed, Lee prepared a confession, and “as read to and by me, “charged Brigham Young with direct complicity in the Mountain Meadows Massacre, as an accessory before the fact, that Brigham Young had written letters to Dame and Haight, at Parowan directing them to see that the emigrants were all put to death.” Gilman contended that Howard removed the evidence from Lee’s confession which would have implicated Brigham Young. Of the massacre historians discussed in this paper, Bagley alone mentions the Gilman affidavit, but only through a secondary source, Robert J. Dwyer’s The Gentile Comes to Utah (1971). Dwyer lacked the Gilman affidavit for his work.
Although the New York Herald contended the Gilman affidavit had been filed with the Department of Justice, Howard and the Department of Justice denied that it had been filed. Howard claimed that Gilman disappeared after his affidavit before anybody could cross-examine him about it. Howard, who certainly would know the facts as the person responsible for the federal jails in Utah, said that Gilman was never a jailer at Beaver. Howard said that Gilman never had an opportunity to speak to Lee and thus Gilman would never have been in a position to hear any purported confession. Howard reported that “Gilman is a notorious liar; has been impeached here in Court, and there are not ten men in the territory who would take his oath or word.” Further, the “confession of Lee has not been sold, altered, suppressed or in any other manner put to an improper use.”
Howard told U.S. Attorney General Devens on 16 April 1877 that “I will state here that the allegations of Gilman are cruel wicked and infamous—without the least grain of truth.” Howard suggested that Bates had fabricated the Gilman affidavit, claiming that it was in Bates’ handwriting. The Tribune on 12 April 1877 opined that Howard was telling the truth and that “the Mormon strategy is at the bottom of this movement.”
As to former prosecutor Robert Baskin, Juanita Brooks cited him for evidence of a deal to stifle prosecution. Baskin had a close relationship with Bates. Baskin was Bate’s attorney. Baskin was no longer more directly privy to trial communications than the average reader of the Tribune. Baskin said in his memoirs:
I have not the least doubt that to appease the universal adverse sentiment shown by the general expressions of disgust and indignation by the newspapers of the country caused by the exposures made at the first trial, Brigham Young entered into an arrangement with District Attorney Howard, that a Mormon jury should be impaneled to convict Lee; . . . and that he should exonerate the authorities of the Mormon church of complicity in the massacre.
But, Baskin’s “not the least doubt” conclusion does not mention any particular evidence other than what he had been reading in the newspapers.
“Howard intends to leave no efforts untried to secure their capture”
Howard and the Marshal pressed forward with other massacre prosecutions, although Dame’s indictment had been dismissed and it seems that George Adair and Elliot Wilden were arrested, incarcerated pending trial, but never prosecuted. As is evident from correspondence found in the National Archives and nowhere else discussed, federal agents sought to conceal their massacre investigations to avoid tipping off the fugitives; it would have been unlikely that these federal agents would have shared their plans with the press. On 4 and 5 October 1876, Howard explained in letters to U.S. Attorney General Taft plans to arrest indicted co-conspirators Haight, John Higbee, and William Stewart. Judge Boreman endorsed the 4 October 1876 letter with a letter of his own to Taft, in which Boreman stated that
[s]everal unsuccessful efforts have been made for their arrest. I am gratified that Wm Howard intends to leave no efforts untried to secure their capture and I hope that he will be seconded in his efforts by the Department of Justice; and I think that these men can with proper diligence, through the aid of a detective, be arrested and brought to justice.
Boreman’s enthusiastic endorsement of Howard’s continued prosecution rings through the Department of Justice correspondence.
U.S. Attorney General Taft authorized additional personnel to support Howard’s and Boreman’s joint request for more money. U.S. Marshal William Nelson then told U.S Attorney General Taft on 19 December 1876 of physical evidence of the massacre discovered in California, asking the Department of Justice help to retrieve it. Two months later, on 12 February 1877, Howard told Taft that Howard had located a possible eyewitness to the massacre. Howard asked for help from the Department of Justice to help corroborate the identity of the eyewitness, an adult in a federal penitentiary who claimed to be one of the spared children, Charlie Fancher. The Secretary of War responded with the information requested.
On 23 February 1877, Judge Boreman reported to Howard the progress of Deputy Marshal Stokes’ efforts:
Stokes has returned from his trip south where he has been serving papers. He said that he is satisfied that he can get Haight, Higbee & Stewart if he has money enough to [illegible] men, spies [illegible]. But he says that if they be not arrested soon, his opinion is, from what he could learn on his trip south, that they will all be gone to New Mexico . . . . 
Howard and Marshal Nelson wrote to Taft on 3 March 1877 to urge that “the importance of availing ourselves of every reasonable means to bring others equally guilty to trial—is apparent. The trial of Lee has resulted in developments that give us a reasonable hope that the others—if arrested can be convicted.” Taft’s successor, Attorney General Charles Devens authorized additional funds on 19 March 1877.
As the time approached for Lee’s execution. Howard and the Marshal spent their time arranging for the execution and a military squad to resist an imagined rescue by Lee’s family. Lee was a nationally notorious figure who, in turn, spent his idle hours talking with Howard and Bishop about competing confessions, as well as complaining to his jailers about being cast adrift by his friends and church.
There were occasional suggestions that Lee had more to say about Brigham Young than he was letting on. Benjamin A. Spear, a jailer as well as a notary for the court, wrote U.S. Attorney General Devens to say that when Lee “was sick he made a partial confession to me but such as it was it implicated Brigham Young and all the heads of the Mormon Church directly and indirectly accessories before and after the facts of the terrible Mountain Meadows Massacre.” Spear, without naming names but probably referring to Sumner Howard or U.S. Marshal Nelson, said that “[m]ost of the officers appointed for this Territory seem to be affraid to do their duties or else they are bribed or bought by Brigham Young’s blood stained coin . . . .” And, for good measure, “this institution [the Mormons are] composed of the worst class of ignorant and depraved emigrants from the old country . . . . It is unfortunate that Spear was never specific about his claims about matter deleted from Lee’s confession. The Spear affair seems remarkably similar to the Gilman affair, which would come one month later.
Three days after the execution, Howard recommended to Devens in Washington that undercover officers be used to make the remaining arrests, along with a reward of $500 for each of Haight, Higbee and Stewart. “The apprehension of these parties is the next step in order towards getting to the bottom of this unequaled butchery.”
Howard continued with his efforts to prosecute the massacre offenses; he had Brigham Young in his sights. Whereas in September 1876, the Tribune labeled Howard’s opening statement to the jury as a “jack-Mormon address . . . heartily condemned by the Gentiles here,” by April 5, 1877, the Tribune reversed its condemnation of Howard’s prosecution decisions and now approved them.
Hitherto it has been the unpleasant duty of The Tribune to condemn the manner in which he performed his difficult duty. . . . We did not like the method he adopted to secure this end, and in his encounter of diplomacy with the leaders of the Church . . . .But he came out ahead, and it is only fair to admit that the end justifies the means. With this experience before us, we now withhold censure and gladly accord praise. District Attorney Howard has done well . . . .
On 26 April 1877, Howard wrote to Devens to inform him that property taken from the murdered emigrants was turned over by “Lee and other agents of Brigham Young” to the Indians, with fraudulent vouchers for the property submitted to the government for reimbursement while Young was Indian agent.
On 20 October 1877, Howard’s assistant and Boreman petitioned President Rutherford B. Hayes for additional appropriations for a special agent for massacre apprehensions and investigations. Howard wrote Devens, disagreeing with his assistant, asking that the money instead be spent on undercover agents.
After Howard resigned in February 1878, the U.S. Marshal continued with his efforts to arrest Haight, Higbee, and Stewart. Boreman asked Devens on 1 January 1879 for more appropriations for the arrests: “The arrest of these men has been delayed so long that the people are not anticipating any effort in that way. This would be a suitable time to make the arrests.” Eleven months later, Devens approved the request. In 1884 an acting Attorney General confirmed Utah inquiries from the Marshal that reward money was still offered for the arrests of Haight, Higbee, and Stewart. The prosecution effort came to an end, at least from what can be ascertained from the official correspondence. Lee had been dead seven years.
The conclusion to be derived from these facts is that “scapegoating” was Lee’s trial defense, which the prosecution denied and which only the press seemed to really support. How could Lee have been made a scapegoat for other guilty participants when there is no evidence of a deal to thwart justice, and the government’s internal workings show a continued effort to prosecute President Young and others? “Scapegoating” helped sell books and newspapers. Had the Church and the Department of Justice reached a secret deal to make Lee a scapegoat, then one would think that the DoJ would have acted consistently with that deal. But it didn’t; there were years of additional efforts to pin Brigham Young to the crime.
It is unfortunate that Brooks and Bagley swallowed the scapegoating theory hook, line and sinker when there was not any bait hanging on the hook. Brooks’ analysis of this theory seems, a half century later, rather odd, but one must remember that her grandfather, Dudley Leavitt, was a principal in the massacre. When she published her biography of Leavitt, she left out the massacre entirely other than to say that it would be better left alone. Bagley adopted the theory because by the time Bagley wrote his book the theory had become so entrenched as to take on the force of truth, and there is plenty of external evidence to show that Bagley has an unmitigated axe to grind against the Church.
It is inappropriate that Bagley did not mention the National Archives files of the Departments of Justice, War and the Interior, which discuss the government’s continued efforts to prosecute Church officials and which contain denials of the Salt Lake Tribune’s charges of a deal to thwart justice. Bagley doesn’t even cite these materials in his sources, but it is plain that he had had access to the National Archives in his research because there are a few NARA cites in his footnotes.
(c) Robert D. Crockett 2006
 See Jon Krakauer, Under the Banner of Heaven: A Story of Violent Faith (New York: Doubleday 2003), 246-48; Sally Denton, American Massacre: The Tragedy at Mountain Meadows, September 1857 (New York: Knopf, 2003), 228 (“It was an extraordinary quid pro quo that neither side apparently committed to writing.”); Will Bagley, Blood of the Prophets: Brigham Young and the Massacre at Mountain Meadows (Norman, Oklahoma: University of Oklahoma Press, 2002)m 299-300; William Wise, Massacre at Mountain Meadows: An American Legend and Monumental Crime (1976; reprint, Lincoln, Neb.: iUniverse.com, 2000), 266; Juanita Brooks, The Mountain Meadows Massacre (1950; reprint, Norman: University of Oklahoma Press, 1991), 195; Juanita Brooks, John Doyle Lee: Zealot, Pioneer, Builder, Scapegoat (1962; reprint with corrections, Logan, Utah: Utah State University Press, 1992), passim; Juanita Brooks, Emma Lee (Logan: Utah State University Press, 1975; 2nd ed. with an introduction by Charles S. Peterson, 1984), passim; Ann-Eliza Young, Wife No. 19. A Life in Bondage. A Full Expose of Mormonism (Hartford: Conn.: Dustin, Gilman & Co. 1875), 255. Bancroft diplomatically took no position on the scapegoat theory. Hubert Howe Bancroft, History of Utah: 1540 to 1887 (San Francisco: The History Company, 1890), 564-71. Church apostle and historian Orson F. Whitney does not mention the theory. Orson F. Whitney, History of Utah: Comprising Preliminary Chapters on the Previous History of Her Founders, Accounts of Early Spanish and American Explorations in the Rocky Mountain Region, the Advent of the Mormon Pioneers, The Establishment and Dissolution of the Provisional Government of the State of Deseret, and the Subsequent Creation and Development of the Territory (Salt Lake City: Cannon & Sons, 1892), 786-829.
 Enrique Krauze, translated by Hank Heifetz, Mexico: Biography of Power: A History of Modern Mexico 1810-1996 (New York: 1997, reprint paperback 1998), 144,
 Mr. Buchanan’s Administration on the Eve of the Rebellion (New York: D. Appleton and Co., 1866), pp. 232-35; Norman F. Furniss, The Mormon Conflict 1850–1859 (New Haven, Conn.: Yale University Press 1960), 62-67.
 Charles P. Roland, Albert Sidney Johnston: Soldier of Three Republics (1964; reprint, Lexington, Kentucky: University Press of Kentucky, 2001), 189, 326-51.
 Furniss, Mormon Conflict, 137.
 Dimick B. Huntington, diary, MS 1419–2, Family and Church History Department Archives, The Church of Jesus Christ of Latter-day Saints (hereafter Church Archives), 12–13.
 “Our Los Angeles Correspondence: Massacre of Emigrants—Execution of Johnson—Another Murder—State of the Weather—Rain—Snow—Grapes,” Daily Alta Californian, 12 October 1857, p. 1, col. 2; “Our Los Angeles Correspondence,” Daily Alta Californian, 27 October 1857; p. 1, col. 2 (detailed interviews); Whitney, History of Utah, vol. 1, p. 694; T. B. H. Stenhouse, The Rocky Mountain Saints (New York: Appleton, 1873), 46, 48–49.
 Whitney, History of Utah, 1:700 (“It was just at dawn on Monday, the 7th, when from the heights and ravines surrounding their camp a volley carried pain and death in to the ranks of the emigrants.”)
 J. Ward Christian, “Horrible Massacre of Emigrants!!”, Los Angeles Star, 10 October 1857, p. 2, cols. 2-3, reproduced in David L. Bigler and Will Bagley, ed., Innocent Blood: Essential Narratives of the Mountain Meadows Massacre, vol. 12 of Kingdom of the West: The Mormons and the American Frontier (Norman, Oklahoma: 2008 ).
 William Bishop, ed., Mormonism Unveiled: or the Life and Confessions of the Late Mormon Bishop, John D. Lee (St. Louis: Bryan, Brand, 1877; reprint, Salt Lake City: Utah Lighthouse Ministry, n.d.),18; “The Confession! Another Chapter in the Bloody History of the Mormon Church. John D. Lee Carries Out the Orders of Brigham Young. George A. Smith Carries the Word from the Profit Brig. The Innocent Emigrants Decoyed to their Doom by the Saints. The Butcher Reports to Young and the Work is Pronounced Good. Opening the Eyes of the World to the Monstrous Crimes of the Church,” Salt Lake Tribune, 28 March 1877, p. 1, col. 1.
 See Nephi Johnson affidavit, in Brooks, Mountain Meadows Massacre, 224.
 That a Los Angeles Star reporter would have been possessed of the essentials of the massacre, including the story that the emigrants were lured by a flag of truce, means that the participants were talking. Bigler and Bagley, Innocent Blood, p. 141.
 Bagley, Blood of the Prophets, 235.
 James Buchanan, “A Proclamation,” 6 April 1858, 35th Cong. 2d Sess., S. Exec. Doc. 1, Serial 974, pp. 69–72, “offering to the inhabitants of Utah, who shall submit to the laws, a free pardon for the seditions and treasons heretofore by them committed.” Governor Alfred Cumming expanded upon this, to include “all criminal offenses associated with or growing out of the overt acts of sedition and treason are merged in them.” Otis G. Hammond, The Utah Expedition: 1857-1858 (Concord, New Hampshire: New Hampshire Historical Society, 1928), 356–57; “The Mountain Meadows Massacre,” Harper’s Weekly: Journal of Civilization, 14 August 1875, p. 661, col. 3 [noting conflict between federal employees over the scope of the amnesty and the massacre prosecutions]; New York Post, cited in John H. Beadle, Western Wilds, and the Men Who Redeem Them (Cincinnati: Jones Brothers, 1879), 514 [questioning why the amnesty would not apply to massacre prosecutions].
 [U.S. Attorney General] J. S. Black to Alexander Wilson, 17 May 1859, 36th Cong., 1st Sess., S. Exec. Doc. No. 42, Serial 1033, p. 10 [telling Wilson to keep Cradlebaugh away from prosecutorial functions]; John Cradlebaugh to James Buchanan, 16 July 1859, 36th Cong., 1st Sess., S. Exec. Doc. No. 42, Serial 1033, p. 19 [apologizing for dispute with federal prosecutor but blaming U.S. Attorney Wilson for “whole course of conduct [which] has been marked with culpable timidity and neglect.”].
 R[obert] N. Baskin, Reminiscence of Early Utah (Salt Lake City, Utah: self-published, 1914), p. 56. Baskin later became Chief Justice of the Supreme Court for the State of Utah.
 Baskin, Reminiscences of Early Utah, 58, 87.
 “After the Trial. Mormon Jurymen Can’t Convict in Their Endowment Robes. Although They Knew More About the Case Than Was Gleaned From the Entire Evidence. The Spirits of the Innocent Victims Still Call for Vengeance,” 11 Aug. 1975, p. 4, col. 2.
 Trial Transcript, People of the Territory of Utah v. John D. Lee (1875), Utah State Historical Society, MS B915, Charles Peterson copy.
 Ibid., pp. 8-97; Denton, American Massacre, 225.
 “Released on Bail,” Salt Lake Tribune, 12 May 1877, p. 2, col. 2.
 Cleland and Brooks, The Diaries of John D. Lee, vol. 2, p. 144.
 Ibid. p. 147.
 Ibid., p. 150.
 Ibid., p. 151.
 Cleland and Brooks, The Diaries of John D. Lee, vol. 2, pp. 151-52.
 Ibid., p. 153-54.
 Ibid., p. 164.
 Juanita Brooks, John Doyle Lee: Zealot, Pioneer, Builder, Scapegoat (1962; reprint with corrections, Logan, Utah: Utah State University Press, 1992), pp. 335-36.
 Cleland and Brooks, The Diaries of John D. Lee, vol. 2, pp. 352, 368, 369, 460.
 Robert Glass Cleland and Juanita Brooks, The Diaries of John D. Lee – 1848-1876 (San Marino, California: The Huntington Library, 1955), vol. II, p. 382. Spelling is original throughout this paper except where necessary to clarify.
 “Mountain Meadows Trials,” Salt Lake Tribune, 9 Sept. 1975, p.2, col. 1.
 William Nelson to Edwards Pierrepont [Attorney General], 16 March 1876, General Records of the Department of Justice, Letters Received, Record Group 60, Box No. 1017, Folder “Feb 1876 – Apr. 1876″, National Archives; Sumner Howard to Attorney General [Alphonso Taft], 27 May 1876, Record Group 60, Box No. 1018, Folder “May 1876 to June 1876,” National Archives.
 Whitney, History of Utah, 2:805, 785, 788.
 “The Trial. John D. Lee Still Melancholy Over the Situation. His Wife Emma goes Back on Him and Claims the Ferry. What the New Witnesses Say About the Massacre,” Salt Lake Tribune, 16 Sept. 1876, p. 4, col. 2.
 Indictment for Murder [William Dame], 21 Nov. 1874, General Records of the Department of Justice, Letters Received, Record Group 60, Box No. 1015, Folder “Mountain Meadows Massacre Letters”, National Archives. For a spirited defense of Dame’s innocence, see Pease, Harold W., The Life and Works of William Horne Dame (master’s thesis, BYU, Aug. 1971).
 “The Lee Trial. The Fate of the Butcher of Mountain Meadows Sealed. The Priesthood Determined to Sacrifice Lee. The Old Man Hoping Vainly Against Hope. The Jury Composed Exclusively of Mormons,” Salt Lake Tribune, 16 Sept. 1876, p. 4, col. 2.
 “Lee Interviewed. The Old Man Reticent on the Main Question. If He Takes Hemp, He’ll Die Game. The Tribune Reporter Shows Him a Bullet From the Slaughter Pen. The One-Eyed Pirate Cavorting Around Beaver,” Salt Lake Tribune, 14 Sept. 1876, p. 4, col. 2.
 “The Lee Case. The Material That Mormon Juries Are Composed Of. The Tallest Old Liar in Southern Utah. The Whole Court Astounded at the Revelations. Some Things Which Look Passing Strange to a Man Up a Tree,” Salt Lake Tribune, 17 Sept. 1876, p. 4, col 2.
 Testimony of Jacob Hamblin, in Trial Transcript, People of the Territory of Utah v. John D. Lee (1876), Utah State Historical Society, MS B915, Charles Peterson copy (“1876 USHQ Trial Transcript”), p. 85 [start of testimony].
 John D. Lee to Emma B. Lee, 21 September 1876, in Samuel N. Henrie, ed., Writings of John D. Lee, 2nd ed. (Tucson, Ariz.: Fenestra Books, 2002), 408.
 1876 USHQ Trial Transcript, pp. 86–101, 114; Trial Transcript, People of the Territory of Utah v. John D. Lee (1876), Papers of Jacob Smith Boreman, 1857-1912, Huntington Library (hereinafter, “1876 Huntington Library Trial Transcript”), Box 2, Book 4, p. 20.
 J. H. Carleton, “Special Report of the Mountain Meadow Massacre, By J.H. Carleton, Brevet Major, United States, Army, Captain, First Dragoons,” 25 May 1859, 57th Cong. 1st Sess., House Doc. 605, reproduced in Order No. NNO 71-340, consisting of documents obtained from Record Group 94, Record & Pension Office file No. 751395, National Archives.
 Brigham Young, affidavit, 30 July 1875, in Brooks, Mountain Meadows Massacre, 286.
 Beadle, Western Wilds, 516-17.
 1876 Huntington Library Trial Transcript, 114.
 NEED THIS FROM MICROFILM
 1876 Huntington Library Trial Transcript, Box 2, Book 5, p. 4.
 Ibid., p. 5 (afternoon).
 Ibid., p. 14-15 (afternoon).
 Ibid., p. 15 (afternoon)
 “The Lee Trial. Bold Charges of Lee’s Attorney Against the Church. The Price of Lee’s Conviction the Admission of Utah. Attorney Howard Goes for the Newspapers in his Zeal for the Church. He Defends the Bloody Priesthood Like a Mormon Bishop. Great Excitement in Beaver Over the Case,” Salt Lake Tribune, 20 Sept. 1876, p. 2, col. 2.
 Beadle, Western Wilds, 515.
 “The Lee Trial. Judge Boreman’s Charge to the Jury. The Prisoner Found Guilty of Murder in the First Degree,” Salt Lake Tribune, Sept. 1877, p. 2, col. 2.
 Andrew Corry affidavit, 11 March 1932, in Edna Lee Brimhall, Gleanings of John D. Lee (unpublished 1958), MS 6313, Church Archives, and at Northern Arizona University Library, pp. 52–54.
 Deseret News editorial, as reviewed in “The Work Done at Last,” Salt Lake Tribune, 23 September 1876, p. 1, col. 2.
 “Caught in the Toils,” Salt Lake Tribune, 21 Sept. 1876, p. 2, col. 1.
 O.J. Hollister to Salt Lake Daily Tribune, in “Howard’s Course. A Plea in His Behalf by an Honest Gentile,” Salt Lake Tribune, p. 3, col. 2.
 “A Word in Defense,” Salt Lake Tribune, 27 September 1876, p. 2, col. 1. LOCATE ORIGINAL.
 Lee v. State, 26 Ark. 260 (Ark. 1870); People v. March, 6 Cal. 543 (Cal. 1856).
 “The Lee Trial. The Fate of the Butcher of Mountain Meadows Sealed. The Priesthood Determined to Sacrifice Lee. The Old Man Hoping Vainly Against Hope. The Jury Composed Exclusively of Mormons,” Salt Lake Tribune, 16 Sept. 1876, p. 4, col. 2.
 “The Material That Mormon Juries Are Composed of,” Tribune, 17 Sept. 1876.
 “Lee Interviewed. The Old Man Reticent on the Main Question. If He Takes Hemp, He’ll Die Game. The Tribune Reporter Shows Him a Bullet From the Slaughter Pen. The One-Eyed Pirate Cavorting Around Beaver,” Salt Lake Tribune, 14 Sept. 1876, p. 4, col. 2.
 1876 Huntington Library Trial Transcript, Book 5, p. 1.
 Hooker v. De Palos, 28 Ohio St. 251 (Ohio 1876) (gambling contract void.)
 Nickelson v. Wilson, 60 N.Y. 362 (N.Y. 1875).
 Cameron v. McFarland, 4 N.C. 299 (N.C. 1816).
 Drinkard v. State, 20 Ala. 9 (Ala. 1852).
 William Nelson and Sumner Howard to Alphonso Taft, 28 Sept. 1876, General Records of the Department of Justice, Letters Received, Record Group 60, Box No. 1015, Folder “Mountain Meadows Massacre Letters”, National Archives.
 Roger Van Noord, Assassination of a Michigan King: The Life of James Jesse Strang (1988; reprint, Ann Arbor, Michigan: The University of Michigan Press, 1997), pp. 128, 133-136.
 Ibid., at 140-162; M. E. Leach, ”A History of the Grand Traverse Region,” in Doyle Fitzpatrick, The King Strang Story (Lansing, Mich.: National Heritage, 1970), 202. Fitzpatrick describes the prosecution against Strang a farce. Fitzpratrick, The King Strang Story, p. 89.
 Bates’ biography listing him as a member of the Vigilance Committee is maintained by the non-profit Illinois Trails: History & Genealogy. See http://www.iltrails.org/cook/chicagobios4.html#georgebates. Sam Brannan raised a committee to protect San Francisco from lawless elements attacking, among other things, his real estate holdings. Several men were lynched. Mormon apostle disfellowshipped Brannan from the Church for his involvement in the committee, among other things. Whether Bates was with Brannan at the time of the lynchings is unknown; his name is not listed in published newspaper accounts of committee meetings. See Richard O. Cowan and William E. Homer, California Saints: A 150-Year Legacy in the Golden State (Provo, Utah: Brigham Young University, 1996), pp. 187-190.
 Baskin, Reminiscences of Early Utah, 114.
 George C. Bates to Jacob S. Boreman, 9 March 1877, Records of the Department of Justice, Letters Received, Record Group 60, Box No. 1019, Folder “Mountain Meadows Massacre Letters 1877,” National Archives.
 George C. Bates to Charles Devens, 3 Feb. 1877, Records of the Department of Justice, Letters Received, Record Group 60, Box No. 1019, Folder “Utah Feb 1877,” National Archives.
 George C. Bates to Charles Devens, 7 Apr. 1877, Records of the Department of Justice, Letters Received, Record Group 60, Box No. 1019, Folder “Utah March 1877 to April 1877″, National Archives.
 George C. Bates to Jacob S. Boreman, 9 March 1877, Records of the Department of Justice, Letters Received, Record Group 60, Box No. 1019, Folder “Mountain Meadows Massacre Letters 1877″, National Archives.
 Jacob S. Boreman to Charles Devens, 25 April 1877, Records of the Department of Justice, Letters Received, Record Group 60, Box No. 1019, Folder “Mountain Meadows Massacre Letters 1877″, National Archives.
 Sumner Howard to Charles Devens, 20 May 1877, Records of the Department of Justice, Letters Received, Record Group 60, Box No. 1019, Folder “Mountain Meadows Massacre Letters 1877,” National Archives.
 “The Last of Lee,” Salt Lake Tribune, 24 March 1877, reprinted in Fielding, Tribune Reports, 261-264.
 “John D. Lee Makes a Confession of His Crimes [etc.],” San Francisco Chronicle¸ 22 March 1877, p. 3, col. 1.
 “Lee’s Story! Terrible and Bloody Record of the Mormon Church. The Butcher Implicates Brigham Young in the Massacre. How it Was Planned to Throw the Blame on the Indians. The Horrible Programme of the Fearful Slaughter. “Acting as a Church Council for the Sake of Christ.” A Report of the Atrocities Duly Made to Brigham Young. He “Communicates With God” and Indorses the Outrage. “I Sustain You and the Brethren in All You Did,” Salt Lake Tribune, 25 March 1877, p. 1. col. 1.
 “The Confession!,” Salt Lake Tribune, 28 March 1877, p. 1, col. 1.
 “Lee’s Confession. A Guard’s Charges Against District Attorney Howard. The Culprit Deceived. Promised a Full Pardon for a Full Revelation. Was Brigham Blackmailed? Lee Shot, His Document Garbled; But No Further Arrests,” New York Herald, 12 April 1877, p. 7. The Gilman charges were also discussed the day before in “Lee Confession. Evidence Accumulating That It Was Garbled By Law Officers In the Interest of Brigham Young. Speculating Officials: The Gilman Affidavit and Lee’s Hopes for a Reprieve,” New York Herald, 11 April 1877, p. 7.
 Bagley, Blood of The Prophets, p. 308, citing Robert J. Dwyer, The Gentile Comes to Utah: A Study in Religious and Social Conflict (1862–1890), rev. 2nd ed. (Salt Lake City: Publishers, 1971), pp. 105-06. Dwyer evidently relied upon characterizations of the Gilman affidavit in correspondence.
 “Miscellaneous. The Attorney General Says There is on Gilman Statement on File [etc.],” Salt Lake Tribune, 12 April 1877, p. 1, col. 4.
 “Mormon Strategy. Letter from District Attorney Howard and Marshal Nelson in Reply to the Attacks of Mormon Emissaries and Blackmailers,” Salt Lake Tribune, 12 April 1877, p. 4, col. 2.
 Sumner Howard to Charles Devens, 16 Apr. 1877, Records of the Department of Justice, Letters Received, Record Group 60, Box No. 1019, Folder “Mountain Meadows Massacre Letters 1877,” National Archives.
 Sumner Howard to Charles Devens, 20 May 1877, Records of the Department of Justice, Letters Received, Record Group 60, Box No. 1019, Folder “Mountain Meadows Massacre Letters 1877″, National Archives. Dwyer, Gentile Comes To Utah, p. 106, fn. 34. Dwyer writes: “Seemingly, the former district attorney, George Bates, was behind Gilman in pressing the charges against Howard. Devens to Bates, April 16, 1877 (D.J. Instruction Book L).” There is, however, no Instruction Book L which covers this time period, and an instruction book is not likely to contain incoming correspondence. Instead, see Letter Book L which contains a letter from Devens to Bates dated 14 April 1877. One should not draw any implication about Bates from the letter.
 Untitled opinion, Salt Lake Tribune, 12 April 1877, p.2, col. 2.
 Brooks, Mountain Meadows Massacre, 195.
 Baskin, Reminiscences of Early Utah, 136.
 Beadle, Western Wilds, 526.
 Sumner Howard and William Nelson to Alphonso Taft, 5 October 1877, General Records of the Department of Justice, Letters Received, Record Group 60, Box No. 1019, Folder “Mountain Meadows Massacre Letters,” National Archives; Sumner Howard to Alphonso Taft, 4 Oct. 1876, General Records of the Department of Justice, Letters Received, Record Group 60, Box No. 1015, Folder “Mountain Meadows Massacre Letters”, National Archives.
 Jacob S. Boreman to U.S. Attorney General Taft, 24 October 1876, General Records of the Department of Justice, Letters Received (Source Chronological Files 1871–84 Utah), Record Group 60, Box No. 1015, vol. 55.
 Alphonso Taft to Sumner Howard, 8 November 1876, Records of the Department of Justice, Record Group 60, M 701, Reel 7, Instruction Book G, National Archives. “Complying with your request, which is seconded by the recommendations of Judge Boreman I have this day commissioned John S. Sargent as Special Agent of this Department to perform the services as set forth in your letter.” Ibid.
 William Nelson to Alphonso Taft, 19 December 1876, Microfilm NND 170 (3015), consisting of documents obtained from Record Group 60, 123, 205 and 267, Order No. NND 69 -170 A, National Archives.
 Sumner Howard to Alphonso Taft, 26 February 1877, Records Relating to the Mountain Meadows Massacre of September 13, 1857, Records of the Adjutant General’s Office, Record Group 94, Record and Pension Office File No. 751395; [Secretary of War] George W. McCrary to Attorney General [Alphonso Taft], 23 February 1877, Records Relating to the Mountain Meadows Massacre of September 13, 1857, Records of the Adjutant General’s Office, Record Group 94, Record and Pension Office File No. 751395.
 Jacob Boreman to Sumner Howard, 23 February 1877, Records of the Department of Justice, Letters Received, Record Group 60, Box No. 1019, Folder “Mountain Meadows Massacre Letters,” National Archives.
 Sumner Howard and William Nelson to Alphonso Taft, 3 March 1877, Records of the Department of Justice, Letters Received, Record Group 60, Box No. 1019, Folder “Mountain Meadows Massacre Letters,” National Archives.
 Charles Devens to Sumner Howard, 19 March 1877, Records of the Department of Justice, Record Group 60, M 701, Reel 7, Instruction Book G, National Archives.
 Howard recounts to Taft a possible threat by “forty” of Lee’s sons to rescue him. Sumner Howard to Alphonso Taft, 26 Feb. 1877, Records Relating to the Mountain Meadows Massacre of September 13, 1857, Records of the Adjutant General’s Office, Record Group 94, Record and Pension Office File No. 751395 , Microfilm No. NND 340 (858).
 Benjamin A. Spear to Charles Devens, 2 March 1877, Records of the Department of Justice, Letters Received, Record Group 60, Box No. 1019, Folder Mar. 1877 to April 1877, National Archives.
 Sumner Howard to Charles Devens, 26 March 1877, Records of the Department of Justice, Letters Received, Record Group 60, Box No. 1019, Folder “Mountain Meadows Massacre Letters 1877″, National Archives.
 Miscellaneous. District Attorney Howard’s Jack-Mormon Speech Universally Condemned,” Salt Lake Tribune, 23 Sept. 1876, p. 1, col. 2.
 “Go On With the Prosecutions,” Salt Lake Tribune, 5 April 1877, p.2, col. 1
 Sumner Howard to Charles Devens, 26 Apr. 187, Records of the Department of Justice, Letters Received, Record Group 60, Box No. 1019, Folder May 1877, National Archives.
 Presley Denny, C. M. Hawley, and Charles M. Howard (with endorsement by Jacob S. Boreman) to President of the United States, 20 October 1877 (date received by Department of Justice), Records of the Department of Justice, Letters Received, Record Group 60, Box No. 1019, Folder “Mountain Meadows Massacre Letters 1877,” National Archives.
 Sumner Howard to Charles Devens, 8 November 1877, Records of the Department of Justice, Letters Received, Record Group 60, Box No. 1019, Folder “Mountain Meadows Massacre Letters 1877,” National Archives.
 Sumner Howard to Charles Devens, 2 January 1878, Record Group 60, Box No. 1019, Folder January 1878 to February 1878, National Archives; Jacob Boreman to Charles Devens, 7 January 1879, Papers of Jacob Smith Boreman, 1857–1912, Huntington Library; Charles Devens to Jacob S. Boreman, 15 December 1879, Papers of Jacob Smith Boreman, 1857–1912, Huntington Library.
 E. A. Ireland to [Attorney General] B. H. Brewster, 18 January 1884, Microfilm NND 170 (3015), consisting of documents obtained from Record Group 60, 123, 205,and 267, Order No. NND 69 -170 A, National Archives; [Acting Attorney General] S. J. Phillips to E. A. Ireland, 25 January 1884, Microfilm NND 170 (3015), consisting of documents obtained from Record Group 60, 123, 205 and 267, Order No. NND 69 -170 A, National Archives.
 Bishop, Mormonism Unveiled, 33.
 Krakauer, Under the Banner of Heaven, 248.