C.D. Cunningham had the opportunity to interview witnesses, interview the prisoners, and to consider what exhibits would be necessary to build the prosecution’s case. He was faced with a very interesting situation. After a few days, he must have realized that Warren Grimm was killed by the rifle shot fired from the Avalon Hotel, and that “John Doe” Davis was probably the one who fired that shot. He also knew that John Lamb and O.C. Bland both went to the room in the Arnold Hotel, and that O.C. Bland had the rifle, and that Lamb was unarmed. He must have also known that no shots were fired from the Arnold Hotel, since Bland seriously injured his hand at the time he broke the window, presumably in an effort to fire the shot. It was a very serious wound. No shells were found on the floor, apparently, and no shots were heard by the proprietor of the hotel. He also knew that the three riflemen on Seminary Hill, over a thousand feet away, all fired their weapons and that the type of bullet which killed McElfresh was fired by Loren Roberts, and Loren Roberts alone. Burt Bland is not known to have struck anyone with his rifle shots.

Ole Hanson, of course, got away and was never apprehended. He was certain that Dale Hubbard was killed by Wesley Everest, and that Everest killed Ben Casagranda as well when he first left the union hall and at first started to run south. Ironically, the knowledge did not help him to the extent that it should, if his goal was to convict all participants of first-degree murder. The one who killed Grimm was gone, Everest had been lynched, and Loren Roberts might well be judged insane. Undoubtedly, the object of C.D. Cunningham was to convict everyone with attorney Elmer Smith thrown into the bargain. The question was, how to do it?

The plan that C.D. Cunningham devised was to charge all of the defendants except Elmer Smith with conspiracy to commit first-degree murder. This would have the advantage of subjecting the seven Wobblies who were in the IWW hall actually defending themselves to a first-degree murder charge even if the raid on the hall preceded the pistol fire by defenders inside. It would also make prosecution easier against John Lamb and Burt Bland. The difference is you are not charging anyone except the perpetrator with the actual murder of Grimm, but you were charging the bunch of them, with the exception of Elmer Smith, with partaking in a conspiracy to wrongfully murder Warren Grimm, whether such person be in the Arnold Hotel, the Avalon Hotel, or on Seminary Hill, or in the union hall itself. Elmer Smith would be charged with being an accessory to first-degree murder.

The law enables one to defend one’s own home, and this would include not only Britt Smith but also the other IWW members who had a right to be there and assemble there and treated as a home away from home. If someone invaded the union hall and threatened either themselves or union hall property, they have a right to resist such an attempt by the use of force. There is a requirement that the threat to the person or property must be in the presence of the defendant. This would obviously exclude those on Seminary Hill and in the nearby hotels, since it would not be possible to argue that the threat to the union hall was “in their presence.” The state would only need to prove that one of them did actually murder Warren Grimm, and that such murder was done pursuant to a plan or scheme and that the others participated in it, even if they did not fire a shot.

The opening argument was given by Prosecutor Herman Allen. He stated that the case about to be tried would be one of the most important in the state’s history. George Vanderveer, in a brilliant move, interrupted Prosecutor Allen, and asked whether the prosecution would stand or fall on the contention that there had been no attack on the IWW hall before the firing began. Even though Prosecutor Allen was the one addressing the court, attorney Abel leaped to his feet and said, “We surely will.” He had fallen into Vanderveer’s trap. Under the state’s theory of the case, it did not matter whether the shooting was first or whether the charge to the hall was first, since the entire conspiracy was based on an illegal use of self-defense. Vanderveer had no right to interrupt the opening argument of the prosecutor, but decided to do so in hopes that someone would “take the bait.” Vanderveer no doubt felt that as the testimony developed, he would probably be able to show that the attack on the hall occurred prior to any shooting.

According to jurors’ statements, one of the first votes that was taken by the jury was on the question of whether the hall was attacked first or whether the shooting took place first. A majority decided that the attack on the hall took place first. This, of course, had no legal relevance, but Vanderveer, as a good trial lawyer, was aware that juries are not made up of lawyers, and want to deal a sort of “rough justice,” and that this might be important to them in making their decision, regardless of any instructions from the judge. (Except to appear once briefly as a witness, Prosecutor Allen was not heard from again during the entire lengthy case.)