by Howard Blum
This was the point when the real torture began. It was “worse than any third degree,” said Billy with the authority of a man who had witnessed his share of brass-knuckled persuasion in the back rooms of police stations.
Uncle George took to parading along the street outside the jail. He knew his nephew, who liked to peer out his cell window, would be sure to see him. Pounding on the window’s wire screen, McManigal would shout hysterically, “Oh, Uncle George, here I am. Oh come up and see me, Uncle George.” Behm just kept on walking.
Some days Behm would have his nephew’s five-year-old son accompany him on this stroll. “Hey,” McManigal yelled, “Uncle George! Bring the boy over and let me see him.” Behm held the boy’s hand tight and walked on in stony silence.
Afterward Behm reported to Darrow, “I didn’t take the boy over. I didn’t pay any attention to the hollering.”
Darrow congratulated Behm on his resolve. “That’s right, goddammit,” said the attorney. “Tease him, and he will come across.”
But McManigal didn’t come across. MacLaren told Billy that “Ortie is in a very nervous condition bordering on collapse.” Despite the pressures, though, McManigal grasped the grim, intractable logic in Billy’s argument. If he turned and went with the defense, the jury’s verdict could be easily predicted: death by hanging.
In August both Emma and Uncle George realized the futility of any further attempts. Resigned and disconsolate, they took a train together back to Chicago.
But there were other witnesses for Darrow to have a go at, and he sent his men off in pursuit. Larry Sullivan, the former prizefighter, and John Harrington, the defense’s chief investigator, headed up to San Francisco. Their target: George Phillips, a clerk at the Giant Powder Works, who had sold Jim McNamara—using the alias Bryce—the dynamite for the Times bombing. Phillips had announced he was prepared to identify Jim in court.
The approach to Phillips was weirdly oblique. Using the cover name of Kelly, Sullivan went to Michael Gilmore, another clerk at Giant Powder, with a letter purportedly written by a priest. The letter, though, was succinct and compelling:
“My dear Michael:
“I wish you would assist this man in the information which he will need. Help him in every way you can. Mr. L. M. Kelly will explain when he sees you.”
Sullivan—posing as Kelly—gruffly provided the promised explanation. Gilmore must urge his friend Phillips to change his testimony in the McNamara case. The man who bought the dynamite, Phillips should suddenly remember, was someone else. A man missing an index finger.
If he shared this newly recalled memory at the trial, “Phillips can name his own price.” However, if he pointed to Jim, “he will not die a natural death.”
But Billy also had men keeping a conscientious watch on Phillips, and when he learned of the threat, he hurried to San Francisco. “I’m going to stand pat,” Phillips told the detective. He was nervous, but he “would not permit anybody to frighten me out of doing my duty as a good citizen.”
Inwardly, Billy rejoiced, and at the same time the detective earnestly promised Phillips he didn’t need to worry. He would make sure no one harmed him or his family. From that day, a contingent of guards, sober men in topcoats and derbys, surrounded the modest Phillips house in Oakland.
Still, the Darrow team kept hammering away, determined to create a crack in the prosecution’s case. Lena Ingersoll owned the San Francisco boardinghouse where Jim (giving his name once again as Bryce) had stayed. Watching from the sheriff’s car as McNamara was led off the train in Pasadena two months ago, she had confirmed his identity. And she had agreed to repeat the identification at the trial. Sullivan met with her husband at a San Francisco hotel and, dispensing with any preliminaries, made a blunt offer: It would be worth $5,000 to the couple if they’d stay out of Los Angeles during the trial.
Kurt Diekelman was another potential star witness. He was a Los Angeles hotel clerk who could establish that Jim (once again posing as Bryce) had been in the city at the time of the explosion. Diekelman had moved to Albuquerque to run a restaurant, but Darrow’s investigators tracked him down.
This time the Darrow team decided that the courting would require more finesse than menace. A special emissary was sent to Albuquerque.
A man introducing himself as Bert Higgins, a member of the McNamara defense team, arrived at Diekelman’s Fashion Café.
“We are trying our best to save that man,” Higgins began. “He is innocent.”
“I don’t think there is any doubt,” said Diekelman.
Encouraged, Higgins continued. “Now you are a valuable witness to us, and whatever your price is, we will give it to you.”
With that bald opening, the negotiations started. Restaurant jobs in Chicago were offered, then simply cash. Finally Diekelman agreed to accept a ticket on the Sante Fe Limited to Chicago and a hundred dollars for expenses. Once in Chicago, the discussion would continue until terms could be established that would guarantee Diekelman’s refusal to identify McNamara.
On his first morning in Chicago, Diekelman went, as instructed, to Darrow’s law office. Waiting for him was Ed Nockles, a local labor leader, and Higgins.
“My name is not Higgins,” the man who had come to Albuquerque announced dramatically. “My name is Hammerstrom. I am Mr. Darrow’s brother-in-law.”
With that revelation, the talks began again.
But Darrow had not been the only one looking for Diekelman. Burns, too, had been on his trail. And when it was discovered that the witness had left for Chicago, Guy Biddinger was sent after him.
Biddinger was a confident, genial former cop who had been present at Jim’s arrest, then was part of the contingent of Burns guards who had traveled on the train to Los Angeles with the prisoners. Biddinger’s great talent, Billy knew, was that at any sudden moment he could drop his easy friendliness, let his dark eyes narrow into two slits like gun holes, and turn mean. He was the perfect man to persuade Diekelman that it would be in his best interest to leave Chicago, return to his restaurant, and wait to be called to Los Angeles to testify. And after listening to Biddinger, a subdued Diekelman took the next train back to Albuquerque.
Yet even as the two sides jockeyed for the allegiances of the witnesses, they also pursued a subtler covert strategy. Darrow conspired to place moles—informants—in the prosecution’s team. Billy, for his part, tried to identify the co-opted agents and turn them. He hoped to send them back as doubles, operatives spying on the men who had recruited them. For both camps, it was a tense, tricky game.
First, Billy learned that Olaf Tveitmoe, the San Francisco labor leader, was trying to recruit a spy from among the Burns men. So Billy provided him with one—investigator Ed McKeown. In a series of meetings McKeown gave Tveitmoe’s people carefully expurgated lists of prosecution witnesses and invented summaries of the district attorney’s strategy sessions. And while delivering this disinformation, McKeown picked up all he could about what the Darrow team was planning—a gold mine of intelligence delivered to Billy for his plundering.
Darrow, meanwhile, was boldly directing his own operation to land a valuable deep penetration asset. He personally orchestrated the recruitment of Guy Biddinger.
William Turner, a former Chicago detective who had worked for Darrow, was the go-between. He met with Biddinger and explained, one ex-cop to another, that Darrow had paid out big money, as much as $15,000, to informants during the Haywood case. Biddinger listened attentively. It was a lot of money, he agreed. Sure, he said at last, he’d talk to Darrow.
The meeting between one of the top Burns operatives and the renowned leader of the McNamara defense team played out like a coy first date. Darrow threw out the suggestion that $5,000 could possibly be paid for information. Who knows, said Biddinger with an equally contrived aloofness, he might be able to pass on a morsel someday.
For two tentative months Darrow and Biddinger continued their flirtation. Then Biddinger called the attorney: He had something to de
al. He had documents that established that J.J. had orchestrated the bombings. Darrow suggested a meeting at eight the next morning in the bar of the Alexandria Hotel.
At the Alex, Biddinger spotted a Times reporter and immediately turned antsy.
“I have got that money for you,” Darrow said, trying to coax some calm into Biddinger’s jumpy mood.
“I don’t want to take it here. We may be watched.”
“Do it here, open and aboveboard,” said Darrow. This was the experienced professional giving a lesson to the novice agent: A bold move often attracts less attention than a surreptitious one.
Biddinger, however, insisted that they conduct their business in the privacy of the mezzanine.
By the elevator, Darrow handed Biddinger $500 in cash.
“I thought you were going to bring a thousand.” Biddinger was upset.
Once again Darrow worked to calm him. “Money isn’t rolling in,” he explained. “Give me a little time.”
At last Biddinger pocketed the money; and Darrow relaxed. He knew he had bought his mole. He immediately gave Biddinger his first assignment.
“There is some man in the Iron Workers organization who is tipping everything off to Burns,” Darrow said. “I would like to find out who it is.”
Biddinger suggested the leak came from Gene Clancy, the top Iron Workers official on the West Coast.
Darrow was stunned—and grateful. This was troubling but valuable news.
Over the following months, Biddinger continued to supply Darrow with names and information—all of it as deliberately false as the revelation of Clancy’s name had been. From the start, Biddinger had been loyally working for Billy, helping him to spread disinformation and dissension to the enemy.
And so the intrigues continued throughout the summer and early fall. Then it was announced that “the greatest trial of the century” would begin on October 11.
D.W., as it happened, was also busy dealing with a spy in his camp. The Biograph studio heads had assigned an accountant to monitor and then report on the director’s excesses as his productions became more elaborate.
Johannes Charlemagne Epping looked as if the studio casting director had picked him for this accountant’s role. He was a short, meek, bespectacled man. But with D.W.’s masterly direction, Epping was soon playing a new, more forceful part—a double agent.
The director had confided to Epping that he realized his days working for Biograph would soon come to an end. He envisioned making more technically ambitious and expensive films than the ones the studio would want. And, D.W. also revealed, he had come to appreciate that his annual winter sojourns to Los Angeles were no longer sufficient. He wanted to make all his movies in California. When D.W. made his break, he’d need a financial officer. Was Epping interested? Epping decided he was.With that agreement, the alerts that the studio had been receiving about unanticipated costs in the Griffith productions abruptly stopped.
Before D.W. and his designated financial director left Biograph, however, the company made one last winter’s trip to Los Angeles.
THIRTY-SEVEN
____________________
AN EXACTING SMALL-SCALE model of the downtown block where the Times Building had stood had been built with great care, at great expense, and with great expectations. A row of miniature streetlamps lined the sidewalk. A side of the newspaper building had been left open to reveal five floors filled with tiny desks, printing presses, and linotype machines. Little doors swung open with the pull of minute metal handles. It was a beautiful piece of craftsmanship. And Darrow couldn’t wait to blow it up.
The attorney was hoping to prove that a gas leak had caused the fateful explosion. Articles had reported that for weeks Times employees had been complaining of the smell of escaping gas. His investigators had contacted union supporters at the paper who said they would swear to this in court. If Darrow’s technicians were able to reinforce this testimony by demonstrating that gas, not dynamite, was the catalyst, then the McNamaras had a chance.
On Darrow’s command, a gas charge was set off, and the model erupted into flames.
The fire burned high and bright, but there was only localized damage.
Try it again, Darrow ordered.
The model was repaired, and this time a larger amount of gas was used. The results were also disappointing.
Again, Darrow ordered.
The technicians kept at it, restoring the model and igniting gas charges. But the fundamental conclusion did not vary: Gas could not have caused the catastrophic explosion that rocked the Times Building. Only dynamite could have set off such devastating and rolling waves of destruction.
With this knowledge, Darrow lost all confidence in his case. His mood blackened. He sat slumped over his desk in the Higgins Building, a man overwhelmed. He was reminded of the last time he was in Los Angeles. Once again he was living with another devastating illness. Only this time the sickness, he knew with a total and resigned certainty, would end in death. The case would be lost, and the two brothers would be executed.
For the moment it was beyond him to focus on a new strategy. When it got like this, Darrow had to escape.
It was only a two-room apartment. Thirty-five dollars a month, including the Murphy bed that folded up into the wall. But 1110 Ingraham Street offered Darrow a freedom that was liberation. He was able to ease the weight of “the trial of the century” off his stooped shoulders and enjoy small moments with his Mary. They talked about the articles Mary wrote for Dreiser’s Delineator and for the American Magazine. Darrow read poetry out loud in his perfect voice. And when it was time, the Murphy bed would be pulled down from the wall.
Ruby knew. Darrow was away so many nights, it became impossible for him to continue to invent plausible excuses.
Billy knew, too. The Burns men kept Darrow under constant surveillance. But Billy said nothing to the press or the district attorney. It was a piece of intelligence that Billy parsimoniously filed away. Capital, the self-made man knew, should not be drawn on unless it was a necessity.
With an infinite resignation, Darrow assumed that both his wife and his enemies knew the risks he was taking. But it was not only his marriage and his reputation that were in jeopardy. In Los Angeles it was against the law—a statutory crime—to be in a bedroom with a woman who was not your wife. If he was charged, the McNamara jury would turn against him—and no doubt also against his clients. But Darrow was beyond caring. Desperate men act recklessly. As do, it would soon become evident, desperate attorneys.
George Monroe, the Los Angeles court clerk, gave the wheel a spin. Twirling about inside were slips of paper with the names of sixteen hundred potential jurors. When the wheel came to a stop, he opened a small hatch, reached inside, and began to withdraw 125 slips. It was Friday morning, September 29, 1911, and Monroe was selecting the jury pool for the McNamara trial.
The trial was expected to last three months, possibly longer. Not every juror could accommodate such an extended absence from his work or was sufficiently healthy to endure months in a courtroom. Judge Walter Bordwell met with the candidates and within days reduced the list to forty-three men.
This new list of names was given to the county clerk. And he promptly passed it on to Bert Franklin, one of Darrow’s investigators.
Officially, Franklin’s job for the defense was “to find out the apparent age, religion, nationality, of every prospective juror, what their feelings were to union labor, their feelings and opinions regarding the Times explosion, their opinion as to whether the McNamaras were guilty or not guilty of the crime with which they were charged, their financial condition, their property, the bank at which they did business.”
Unofficially, Franklin’s duties went further. He was to make sure that at least two members of the jury would, regardless of the evidence, vote for acquittal.
Although he was a native of Iowa, Franklin had spent enough years in the L.A. sheriff’s office and then as a deputy U.S. marshal to have a wide network o
f acquaintances throughout the region. Still, it was a matter of luck that Robert Bain, an elderly carpenter whom he had known for going on twenty years, was one of the forty-three potential jurors. On October 6 he paid his old friend a visit.
Bain wasn’t around, but his wife Dora was. This was the first time Franklin had been to their new home, and he told Dora it was lovely. “What do you owe on it?” he then blurted out.
Dora was shocked by his impertinence and told him so. But Franklin would rub people the wrong way, and he didn’t seem to care. He was a short, dapper man with a mustache that he clearly put a lot of effort into trimming until it was just right. Take me or leave me was his attitude. He was more than satisfied with himself.
For that matter, Dora’s attitude changed as Franklin breezily continued. He suggested to her that there was a way they could pay off their mortgage. “I would like to have Bob on the McNamara jury. I’m in a position to pay him five hundred dollars down. Four thousand total when he had voted for an acquittal for McNamara.”
“Well, Bob is a very honest man . . .”
Franklin listened patiently.
“—But that sounds good to me. I would like to have Bob consider it.”
He did. Particularly after Dora (as she would later remember with regret) “begged piteously.” When Franklin showed up that evening, Bain accepted $400 in twenties. The remaining $3,600 would be paid when he voted not guilty.
But only hours later Bain was filled with a tremendous self-loathing. “My honor is gone,” he told his wife.
Franklin passed the word to Darrow that if Bain were chosen, there would be one vote for acquittal.
But two sure votes would be even better. And as it happened, there was another name among the potential jurors that Franklin recognized. In fact, he had once worked with George Lockwood in the sheriff’s office. Now that was promising, Franklin decided. There was a bond between cops, and on the job you learn not to be too squeamish. It wouldn’t take much persuasion, Franklin was confident, to get Lockwood onboard.
