by Howard Blum
Franklin went to the small alfalfa ranch outside Covina where Lockwood, semiretired, was living. Once again he was direct.
“George, I have a proposition to make to you. You can make some money and be of material assistance to myself at the same time.”
Lockwood was also a direct man. “Bert, spit it out,” he said.
“Did you know that your name was on a prospective list of jurors?”
“No, I didn’t.”
“In case you are drawn, would you vote for a verdict of acquittal in the McNamara case?”
Lockwood didn’t answer. “Well, I don’t know,” he said after some thought.
Franklin offered $500 in cash right away and an additional $3,500 at the end of the case.
Lockwood paced back and forth. The money would certainly come in handy. Still . . .
“Bert, this is a matter I would want to think over.”
And that was how it was left, for now.
On October 11 the trial began. There were more than a thousand people crowding the street outside the courthouse trying to get in, pushing and shoving in the uncommonly warm early morning autumn heat. Reporters had arrived from all over the country. Mary, with press credentials from American Magazine, sat between the men from Pulitzer’s New York World and Hearst’s San Francisco Examiner. Like everyone else, she had come to see Clarence Darrow perform.
The first order of business was to pick a jury. It loomed as a long, contentious process. John Fredericks, the district attorney, interrogated each of the candidates with stern precision. Darrow was more garrulous and often witty, playing both to the press and to the judge. When a candidate tried to disqualify himself because his property was under his wife’s name, a grinning Darrow taunted, “Most workingmen’s property is in their employer’s name.” And he reassured another prospective juror who complained about his finances, “You know, every man is a capitalist in Los Angeles who doesn’t sleep in a disappearing bed or eat at a cafeteria.”
But even at this preliminary stage of the proceedings, Darrow was determined to articulate what he hoped to make the central issue in the case. “I presume you have heard of the bitter war that is going on in this country between capital and labor?” he challenged the first juror to take the stand. The prosecution objected, but by then it was too late. Darrow had let the potential jurors know that at stake in this courtroom was not simply the fate of two brothers but the future of the nation.
After two weeks of battling, both sides had so far only agreed on one juror. He was an elderly retired carpenter who sported a flower in his buttonhole. His name was Robert Bain.
As the jury selection continued, Lincoln Steffens arrived to cover the trial. He was Billy’s old friend and Darrow’s, too. But he saw himself as working independently of the two adversaries. His role—and he was as cocky and self-assured as both the detective and the attorney—was, he boasted, to “be the McNamara of my profession.” He had his own theory about crime and punishment, and he came to Los Angeles determined to use his explosive ideas not to cover the trial but to blow it up.
THIRTY-EIGHT
____________________
D..W. HAD ALSO turned his mind and his camera to thoughts about crime and punishment. He was never a big thinker, more the sort of curious man who traveled along latching on to bits and pieces in the flow of circulating ideas. So from the police gazettes that were popularizing Billy’s detective exploits, he began to focus on the realization that gangsters were never boring. Audiences would flock to see a crime story. And from the writings of men like Steffens and Darrow, he began to give some thought to the reformers’ argument that criminals were made, not born. Put anybody into their ill-fitting shoes, and the odds were that they’d cross the line, too.
But D.W. was an innovator. He could take elements from a clutter of ideas and bring them to the screen with a clarity that was pure power. His Musketeers of Pig Alley was a small masterpiece, a melodrama from the sidewalks of New York that Billy had policed. And it was a wonderfully visual essay about the shaping of the criminal mind that either Darrow or Steffens might have used to bolster his argument in defense of the unfortunate McNamara brothers. How can you be truly guilty, D.W. was suggesting to his audiences, if you never had the opportunity to be innocent?
Musketeers tells a sappy, wildly improbable story. A young couple, a struggling musician and his seamstress fiancée, take an unanticipated detour into gangland. The Snapper Kid, a gang leader, is both villain and hero. He steals the musician’s wallet but then prevents the seamstress from swallowing the doped drink offered to her at a dance hall by a rival hood. This act of gallantry provokes a gang war, a brutal and mesmerizing cinematic jumble of tense close-ups, shifting eyes, and jumping guns. In the end the wallet is recovered, the seamstress and her musician are reunited, and the young girl helps the Snapper Kid escape from the police, a repayment for his kindness.
But there was a genuine and unique achievement in this sixteen-minute film. D.W. had once again led his cameraman Billy Bitzer into the slums and streets of New York. Scene after scene pounds with the crowded tumult of the Lower East Side. There is a remarkable energy in the dense montages of immigrant faces—Italian, Irish, Jewish—leaning out of tenement windows, restless children perched on fire escapes, and the vast caravan of people weaving through narrow streets lined with hustling vendors and bubbling food stalls.
These pictures are an education. Like the photographs of D.W.’s contemporary Jacob Riis, they are documents that reveal a hard, mean foreign land in our own cities, a breeding ground for crime and criminals. What choice did the Snapper Kid have? D.W.’s camera was asking. Snapper was a fundamentally good man, a noble soul, brought down by the unavoidable circumstances of his life.
It was a logic—reason as well as rationalization—whose principles would find their way into the trial in Los Angeles. And with dramatic results.
THIRTY-NINE
____________________
JUSTIFIABLE DYNAMITING,” Steffens announced.
It was his first day in Los Angeles, and it had been a busy one. He had breakfasted at the Alex; made an appearance at the trial, explaining to Judge Bordwell without irony that he had come “to try the case”; and then had quickly decided watching the duel over the jurors was not big enough sport for a journalist of his renown. He had a mission and was eager to get under way. He asked Darrow to have him admitted into the jail so that he could meet with the two brothers. The attorney promptly made the arrangements. But then, Darrow had no idea what Steffens was going to propose to his clients.
Steffens marched like a toy soldier into the jailhouse conference room, and the brothers stared with open fascination. He was a fastidious little man with a tightly cut little three-piece suit, a little dark mustache, and a little goatee. A curtain of brown hair fell down over his little forehead. His blue eyes shone as if to signal his own importance and natural authority. He was the man who had alerted the nation with his 1904 book The Shame of the Cities, and now, eager to regain the spotlight, he was going to change the course of the McNamara trial.
“Justifiable Dynamiting,” he repeated with evident pride. That was the title of the article he wanted to write. He explained that he assumed that organized labor had committed the dynamiting. But he wanted to raise the question: Why? Why did the labor leaders feel so hateful they had to kill? He wanted to educate people about how a conspiracy of capital had forced them into violence.
The brothers listened in stunned silence.
“It’s a doubtful experiment and risk for you,” Steffens continued on merrily, “but it’s got to be done sometime. Why not now?” He added, “I might be able to show why you turned to dynamite.”
This odd little man had finally come and said it! the brothers realized. Steffens was asking them to admit their guilt! He was asking them to put the hangman’s noose around their own necks.
The McNamaras attacked with a wail of objections.
No, no, Steffens demurred
. It would never come to something so dire. His article would establish the guilt of both labor and capital. Judge Bordwell would certainly appreciate that the ultimate blame for the bombing was shared. He’d probably pardon them “as political prisoners.”
The little man’s naïveté was breathtaking, the brothers decided.
“Have you seen Darrow about this?” an exasperated J.J. managed to ask at last.
No! said Darrow to Steffens later that evening in the office in the Higgins Building. Impossible. He did not even want to discuss the possibility of the brothers’ admitting their guilt.
But it was a discussion that Steffens was determined to have. His article depended upon their admission; it was the fulcrum upon which his theory of equal culpability teetered. And so he engineered invitations for both Darrow and him to spend Sunday, November 19, at Miramar.
Rolling through the lush foothills of La Jolla, a shimmering slice of the blue Pacific in the distance, the air ripe with the scent of oranges and the perfume of bougainvillea, Miramar was a two-thousand-acre paradise. It was also the home of E. W. Scripps, the liberal-thinking newspaper publisher and proudly self-described “old crank.”
Scripps enjoyed his wealth. His house was a sprawling hacienda. He had his own speedway with a fleet of fast cars to race around in. He had built a biological laboratory near his estate and staffed it with researchers. But his greatest passion was ideas. He collected ideas the way other very rich men collect pictures or sculptures. So when Steffens had telephoned and suggested that perhaps Darrow and he could come down for a day to escape the pressures in Los Angeles, Scripps eagerly assented. The McNamara case had been very much on his mind, too.
But throughout the day at Miramar, Darrow had been uncharacteristically taciturn. To Scripps’s eyes he seemed morose, like a man mourning an irreplacable loss. It wasn’t until they were sitting on the patio in the starry evening, coaxed by the warming comfort of the brandy and the pull of Scripps’s hand-rolled Key West cigars, that Darrow opened up.
As if he could no longer bear the pain in silence, Darrow suddenly blurted it out. The evidence against the brothers was devastating. J.J. could somehow perhaps hope to get off. But Jim’s conviction was inevitable. It was “a dead cinch.” “The boy will be hanged.”
Steffens had been waiting for his moment all day. Now he seized it.
Their deaths could serve a purpose, he suggested with a helpfulness that struck Darrow as simply cruel. But Steffens did not notice the reaction, or possibly he didn’t care. He simply continued: The nation will realize the necessity to resolve the differences between capital and labor. Think of it! The end to a war.
Darrow’s thoughts, however, remained focused on the two men. “I can’t stand it to have a man I am defending hanged.” The words rushed out in a thin, weak moan. “I can’t stand it.”
With that admission, the conversation stalled. But Scripps had heard enough. Like Steffens, he had been waiting for his moment. He rose and said he had written an article for his papers. He wanted to share it with his two guests.
Scripps went into the house and unlocked a black steel box. Inside was a manuscript. He removed the sheaf of pages and returned to the patio. Handing the article to Darrow, he asked the attorney to read it aloud.
“ ‘Belligerent Rights,’ ” Darrow began, reciting the title. What followed was a passionate, idealistic, yet often cogently reasoned argument declaring that the McNamara brothers were soldiers in a war—the conflict between capital and labor. Darrow read:
“ ‘These men that were killed should be considered what they really were—soldiers enlisted under a capitalist employer whose main purpose in life was warfare against the unions.
“ ‘If belligerent rights were accorded to the two parties in this war, then McNamara was guilty of no greater offense than would be the officer of any band, large or small, of soldiers who ordered his men to fire upon an enemy and killed a great number of them . . .
“ ‘Workingmen should have the same belligerent rights in labor controversies that nations have in warfare . . . The war is over now; the defeated side should be granted the rights of a belligerent under international law.’ ”
When Darrow finished reading, he bowed his head and held it in his two hands as if he were supporting a heavy weight. He knew that all was lost.
Slowly he raised his head and stared up into the clear starry night as if searching for an inspiration. But he found only the counterfeit comfort of wishful thinking.
“I just wish they would see that it’s in the best interest of the community to settle the case without shedding any human blood,” he told the two men.
A moment; and then even this small hope slipped away. “But they never will,” he said.
_____
On the sleeper that night returning to Los Angeles, Steffens lay in his bunk and replayed the after-dinner conversation back in his mind. Steffens made his living and his reputation with words. He understood their power. Darrow, he realized with excitement, had spoken what had previously been unspeakable. However tentatively, however abstractly, the attorney had indicated that he would like to settle the case.
Over an early breakfast at the Van Nuys Hotel near the train station, Steffens pounced. “Did you really mean it when you said you wanted to make a settlement?” he asked.
“Yes,” Darrow agreed with little conviction. “But it’s impossible, of course. The feeling is too bitter. The people are not in a reasonable state of mind.”
“But why not try it?” urged Steffens. And with an egotist’s unwavering certainty, he declared, “I think I can convince the businessmen of Los Angeles that it would be better all around to avoid the passion of a trial.”
Darrow smirked at this absurdity. Otis and the M&M wanted a trial. They wanted a very public victory. And they wanted to claim their spoils—the corpses of the McNamara brothers.
But Steffens’s belief in his own power was boundless. He kept pressing the attorney. And Darrow no longer had either the calm or the will to hold up against such a persistent assault.
“I am perfectly willing,” Darrow finally agreed. Steffens could meet with “your crowd,” as Darrow sneeringly referred to the journalist’s contacts in the business community. He could raise the possibility of a settlement.
But the attorney insisted that two nonnegotiable conditions must be attached to his surrender. One, all charges against J.J. must be dropped. And two, Jim must not be hanged.
Suddenly Darrow paled. It was as if the significance of what he was conceding, of what he was embarking on, had now become real. He started to shake. With great emotion, he begged Steffens to proceed as if he had not discussed the proposal with anyone in the defense. The journalist should present it as his own idea. “If it should get out to the community that we are making overtures it will make it that much more difficult to defend the men and save their lives,” Darrow warned.
“Any proposition will come to you, not from you,” Steffens promised.
And so it began. What once had seemed utterly impossible now struggled to become a reality. A settlement in the case against the two brothers accused of “the crime of the century” was under discussion.
Steffens started by approaching Meyer Lissner, a prosperous lawyer and businessman. Lissner knew all the town leaders. Even better, they saw him as one of their own. But Steffens’s own friendship with Lissner had revealed him to be a reasonable man, more civic-minded and generous of spirit than the vengeful M&M ideologues. Lissner listened to Steffens and, with an insider’s shrewd knowledge, suggested they bring Tom Gibbon into the discussion. If this was going to work, Lissner explained, the Times ownership would need to endorse the plan. And Tommy was Harry Chandler’s buddy; he could bring any proposal directly to the man who was not only the paper’s assistant publisher but also, no less significantly, Otis’s son-in-law.
When Gibbon arrived, he needed to hear only the opening of Steffens’s argument before he interrupted. I agree, he said.
How can I be of assistance?
Steffens explained. Eager to move his plan forward, he dictated a memo, and Lissner’s secretary typed it:
“Party on trial”—the case against Jim was to be prosecuted first—“to plead guilty and receive such sentence as the court might administer (except capital punishment). All other prosecutions with the affair to be dropped.”
Gibbon took a copy of the memo and hurried off to deliver it to Harry Chandler. Hours later Gibbon reported back to an anxious Steffens and Lissner.
Chandler had agreed, Gibbon revealed. He’d support the settlement as it was outlined.
Steffens was elated. He had done it! His impossible plan was going to succeed! He would broker the peace between capital and labor!
The talks had been secret, but secrets involving many people rarely remain so for long. When Darrow’s co-counsel LeCompte Davis walked into the courtroom the next morning, District Attorney Fredericks charged toward him.
“Why don’t you get those boys to plead guilty and quit your horseplay?” thundered Fredericks.
Davis was taken aback. What was the district attorney talking about?
“You know you’re going to do it,” Fredericks stormed on. “A committee has been consulted about it, and I have been approached.” He found Davis’s disingenuousness infuriating.
But Davis had not been acting. He had no idea that a settlement had been discussed. Furious, he went off to confront Darrow.
The two men were friends as well as partners, and as they talked, rage turned into resignation. They both agreed that the two brothers had no chance. Quickly they decided what needed to be done, and then with a lawyerly pragmatism they went about doing it.
