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CU profs hear from descendant of man they exhume today
John Wesley Hillmon may - or may not - lie in a grave in Kansas.
By Charlie Brennan, Rocky Mountain News
May 19, 2006
LAWRENCE, Kan. - An answer to the John Wesley Hillmon mystery might be found in the DNA, after all. Work begins early today to identify the coffin's remains at the 127- year-old grave of the man at the center of an epic insurance fraud case.
And now, the 11th-hour discovery of a Hillmon descendant could make the job much easier.
University of Colorado law professor Mimi Wesson, who is leading the Hillmon exhumation along with CU anthropology professor Dennis Van Gerven, received a surprise e-mail last month from Sandra Hillmon.
She's married to Leray Hillmon of Stevensville, Mont., who is the grandson of John Wesley Hillmon's half brother. That makes him a direct descendant of John Wesley Hillmon's father.
Sandra Hillmon had seen reports about this weekend's planned dig. She let Wesson and Van Gerven know that her husband's heredity could help them solve the Hillmon puzzle.
"When I read her e-mail, I started breathing so hard I had to get up and walk down the hall," Wesson said. "I was afraid I was misreading it. I have learned a little genetics, and I realized that this would mean he and John Hillmon should have precisely the same Y chromosome," said Wesson. "I read it again, sent it to Dennis and asked, 'Does this mean what I think it means?'
"I think his response said something like 'Yee haw!' "
Prior to Leray Hillmon's surfacing, Wesson and Van Gerven had found no Hillmon descendants. They expected that efforts to identify the man at Oak Hill Cemetery would need to focus on photographic and X-ray comparisons of skulls and determining the skeleton's age at death.
But now their options are expanded.
"This newly discovered Hillmon descendant is likely to make a DNA comparison conclusive, if we can extract any DNA at all from what we find there," said Wesson.
"And Dennis tells me we can extract DNA even from teeth. And, that teeth are very likely to survive, even if the remains are pretty severely damaged by the passage of time."
Digging was to begin not long after sunrise today - first with a backhoe, and then with the finer precision tools of skeletal recovery, at Oak Hill Cemetery's grave 555, section four.
Leray and Sandra Hillmon are expected to be among the crowd looking on.
The project, which will be the subject of a documentary and about which Wesson is also writing a book, should cost about $10,000. It's being funded 50-50 between the CU School of Law and CU's Outreach program.
Under conditions set for the dig by Douglas County (Kan.) District Judge Paula Martin, the Wesson-Van Gerven team must have the grave's remains back in the ground 48 hours after they're removed.
That will mean long hours this weekend in loaned laboratory facilities at the University of Kansas for Van Gerven and his crew.
But Van Gerven maintains that DNA is still not his greatest hope in putting a name to the grave's remains.
"Antique DNA is potentially problematic," he said. "I'm an old-fashioned guy. If we get a good skeleton, I'm going to walk out of there not needing the DNA."
He sees DNA analysis for the Hillmon case as a "backup" if the coffin's contents are meager.
Van Gerven expects that a definitive answer on the cadaver's identity will still likely require several days' follow-up work once he returns to Boulder next week.
That is, Van Gerven said, "Unless, he's mummified and we find his I.D. or a tattoo on his forearm that says 'Hillmon.' "
Hillmon, a rancher from Lawrence born in 1848, was reportedly shot accidentally by his traveling companion March 17, 1879, as the two were making camp near Medicine Lodge, Kan.
Because Hillmon was covered by no fewer than three life insurance policies, the companies holding those policies withheld payment, suspecting an attempt at fraud by Hillmon, his wife Sallie, and Hillmon's camp mate.
The dispute was the subject of six trials over 20 years, and the case twice reached the U.S. Supreme Court.
In the first Supreme Court ruling in Mutual Life Insurance Co. vs. Hillmon, the court in 1892 created what endures today as the "state of mind" exception to the hearsay rule. Hearsay is an out-of-court statement presented in court as true and usually ruled not admissible.
The state-of-mind exception to hearsay in Hillmon was key to the insurance companies' production at trial of a letter purportedly authored by Frederick Adolph Walters, who left Fort Madison, Iowa, in 1878 and vanished the next year.
In that letter, Walters wrote from Wichita of having met, and making plans to travel with, a man named "Hillmon."
Walters was the insurance companies' favorite candidate for the true identity of the body put forth as Hillmon's. Wesson and Van Gerven also have found a descendent of Walters - Daniel C. Davis Jr., of Spokane, Wash. - and have his DNA (although he would likely only share about 25 percent of his ancestor's genetic markers).
Wesson believes the body is that of Hillmon, that it is the insurance companies that attempted a fraud by pushing the Walters theory and that the Supreme Court fell for the insurance companies' story.
"I have argued in print that the Supreme Court invented this exception to the hearsay rule, in order to make the Hillmon litigation come out 'right,' according to their view of what was right," she said.
"I've always argued that they believed the remains were not Hillmon, and the Hillmons were trying to defraud the companies and committed murder along the way. That has created an astonishing degree of reverence for the (hearsay exception) rule that the court created."
The potential result of Wesson possibly proving her belief that the body is Hillmon's, however, is for now an open question.
"If I'm right and the science bears me out, what I hope to prompt is a conversation about whether the rule of evidence the court invented there is really a good rule," said Wesson.
"And, I suppose the most dramatic outcome - of which I have no certainty at all - if it turns out I'm right about Hillmon and I'm able to be persuasive about this rule of evidence, perhaps the courts and legislatures that have observed this rule for 100 years will put it aside."
Van Gerven has joked about he and Wesson facing a possible "Geraldo moment," alluding to Geraldo Rivera's notorious 1986 unsealing of gangster Al Capone's secret vault on live television, only to find it empty but for two empty gin bottles.
But Wesson doesn't express much anxiety.
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