Popular Crime

by Bill James

  I came of age in a pre-revolutionary era, the 1960s, as did many of you. I have thought a lot, over the forty years since, about why that revolution ultimately failed. I should say that I am very glad that it did fail; no sane person would want to live through a revolution, except as a last remedy for the most grievous of social ills. But the revolution of my generation failed, in part, because the leaders of the revolutionary movement had based their appeal on pacifism—meaning that they were rooted to the position that violence is not a legitimate means to an end. This made it impossible for them to justify acts of violence directed against the state. They tried to justify violence as a form of resistance, but they failed. This crippled their ability to mobilize their supporters. It’s a trivial and personal story, but I remember participating in an anti-war rally early in the summer of ’69. A few leaders of the rally, unknown to us, hijacked the rally for some pre-planned acts of petty violence … throwing a few rocks, breaking a few windows. Nothing serious. But the next time those guys tried to organize a protest march, I didn’t go; most of my friends didn’t go. The leaders of The Movement were more revolutionary than they were pacifist, but the followers were more pacifists than we were revolutionaries. The revolution failed for this reason, that when the head of The Movement sent the body a signal that it was time to move, the body didn’t accept the signal.

  But the revolutionary movement of the teens, culminating in 1914–1915, was very different; those people certainly did justify murder as an instrument of politics, and did so not only in extraordinary circumstances, like William Goebel, but routinely. The fantastic economic growth of the mid-19th century, which attended the opening of the American West, had created a class of super-rich people, while allowing others to languish in fetid poverty. Mine owners made huge fortunes enabling them to make showy displays of wealth, while miners lived like rodents.

  I am always puzzled, in reading modern accounts of the shooting of Stanford White, that modern writers refuse to face what White had actually done to offend Thaw. Modern writers will say that there was a “relationship” between White and Nesbit. In reality, Nesbit’s mother had left the sixteen-year-old Evelyn in White’s care, and White had gotten her drunk and “seduced” her—even this is a euphemism—converting her more or less into a concubine. Maybe he didn’t deserve to be shot for it, but he could certainly have stood to be horsewhipped. It seems to me phenomenal that people writing about the case will buzz over this “relationship” as if there was nothing untoward about it.

  And I think that, by refusing to make any moral judgment here, even the most modest one, people are missing something obvious about the time: that there was a revolutionary fervor in that era fueled not by racial injustice, as Doctorow presented it in Ragtime, but by hatred of the rich, which was fueled in turn by the fact that rich people were behaving like pigs.

  It is a terrible thing to justify murder, for one murder makes justice of the next one, lighting a fire that runs no charted course. For those of you in my generation … for decades now we have looked back on our youth with some chagrin. We should be proud or at least relieved, I think, that we never crossed that certain line. When the revolution embraced violence, we abandoned The Movement and got our hair cut. In the minds of the true believers, this made us petty and faint of heart. Indeed we were, my friends; indeed we were. And thank God for that.

  VII

  A metropolitan newspaper never entirely shuts down, and men were still working in the offices of the Los Angeles Times, September’s last work shift carrying them into October, 1910. Sixteen sticks of dynamite were hidden in a storage corridor, among barrels of ink. Time fuses were set for one AM. The explosion, at 1:17 AM, October 1, could be heard for miles. It ripped open the gas mains, turning the building into a three-story torch, with a hundred men and women trapped inside. Twenty-one people were killed. Most of the rest were seriously injured.

  Within minutes, bombs had exploded at two other locations in the Los Angeles area, those being the Llewellyn Iron Works and the Merchants and Manufacturers headquarters. The Los Angeles Times was owned by, and spoke for, General Harrison Gray Otis. General Otis had made the Times a leading opponent of organized labor, and for this reason it was immediately assumed that the bombing was an act of political terrorism. The Times headline of the following day, rushed to the city through the facilities of a hated rival, read BOMBS EXPLODED BY ENEMIES OF INDUSTRIAL FREEDOM/ FEARFUL LOSS OF LIFE; OTHER CRIMES THREATENED. Within hours, labor leader Samuel Gompers in faraway St. Louis had stated that “we had nothing to do with it. I am reliably informed by men who have studied the matter that it was the result of gas mains exploding, and the deaths were entirely due to the fire caused by this mechanical failure.”

  Long before anything could actually be known about the subject, then, sides were chosen, with labor men claiming that labor had nothing to do with the explosion, and the spokesmen of commerce asserting blandly that the bomb was the work of organized labor.

  The powers of Los Angeles gathered, and asked Earl Rogers to take charge of the investigation. Rogers, who was the real-life model for Perry Mason, was a defender, not a prosecutor. He had defended Colonel Griffith J. Griffith, earning a light sentence for him; he defended dozens of other murderers, almost all of them guilty, and gotten almost all of them off. He had accepted a handsome fee to switch sides and prosecute the hapless Morris Buck, who had shot Chloe Canfield, but he was remorseful about that, and could never forgive himself for helping lead Buck to the gallows. He was an anti-establishment man, a professional thorn in the side, more inclined to favor labor than management. It was against his nature to take charge of a police investigation, but on the other hand, his office was across the street from the Times, and he had been on the scene within moments of the blast. He had seen doomed men appear briefly in windows, and then disappear behind the smoke. He had heard the screams of women on fire. He had seen others leap to their deaths. One of the men killed had been a dear friend. He accepted the charge.

  The investigation drew on the Los Angeles police, on the funds of General Otis, the resources, including reporters, of the Los Angeles Times, the Burns Detective Agency (also brought into the fight by General Otis) and the experienced cadre of private detectives regularly maintained and directed by Earl Rogers in his defense of his accused. Even so, it took months for the investigators to trace the materials of the bomb to their purchase point in San Francisco.

  The dynamite had been purchased by James B. McNamara. J. B. McNamara’s brother, John J. McNamara, was secretary-treasurer of the International Bridge-workers and Structural Ironworkers Union. He was a well known labor official, and a member of a clique of radicals which was centered in Indianapolis, Indiana.

  Detectives from the Burns agency located J. B. McNamara and a confederate, Ortie McManigal, in Detroit, and placed them under arrest. McNamara was indicted on seventeen counts of murder. McManigal talked, and the arrest of J. J. McNamara followed two weeks later in Indianapolis. Thus, the bombing of the Times had been tied directly to the labor movement.

  Labor leaders sent representatives to Los Angeles, or came themselves, to talk to the McNamaras. The McNamaras denied any involvement in the bombing. Labor undertook their defense. Red, white and blue buttons proclaiming “The McNamaras Are Innocent” were worn throughout the country. A socialist candidate for mayor of Los Angeles, Job Harriman, put up billboards all over town, pleading “Save the McNamaras from the Capitalistic Conspiracy.” Hundreds of thousands of dollars were raised for their defense. Clarence Darrow came to Los Angeles to take charge of the case. He said it would take at least $350,000, millions in today’s money, to put on a proper defense against the powerful forces arrayed against his men.

  From the nickels saved for Tuesday’s lunch, from dresses not bought, from trousers worn bald, shoes forced through the summer with strips of cardboard, the money came flowing in. And Clarence Darrow knew all along that the McNamaras were as guilty as sin.

  If
Clarence Darrow actually did all three things his accusers said that he did, it was an astonishing trifecta of disreputable acts. First, he misled his friends in the labor movement about the facts of the case, begging for money under false pretenses. Second, or so The People claimed, he attempted to bribe a juror to save the McNamaras. And third, when the second failed, he sold his clients down the river to save his own skin.

  Darrow may have taken the McNamara case believing his clients to be innocent. More likely he didn’t. The war between capital and labor, in Darrow’s mind, was exactly that—a War. People got killed. Darrow had no problem with that.

  In any case, by mid-summer, 1911, Clarence Darrow was well aware that the McNamaras were in fact responsible for the dynamite at the Times. “My God,” he said to James McNamara. “You left a trail behind you a mile wide.”

  On arriving in Los Angeles, Darrow had hired several local investigators to help him sort out the facts. Among these was a former deputy sheriff, Bert Franklin. Franklin, an able, aggressive individual, became Darrow’s right-hand man.

  Los Angeles chose juries from a rotating “wheel” of potential jurors, which allowed the defense to anticipate who might be on their jury. Darrow, rolling in labor money, had directed his staff to learn as much as possible about all of the potential jurors. He put Bert Franklin in charge of this.

  One of the members of the jury pool was a man Franklin knew, another former law enforcement officer. In October, 1911, the ex-cop visited the District Attorney’s office with a story to tell. Bert Franklin, he claimed, had offered him money to vote “Darrow’s way” on the upcoming case. According to Franklin (said the ex-cop), Darrow was aware of and had authorized the payment. Weeks later, another juror also contacted the police, reporting a similar offer. On November 28, 1911, Bert Franklin met his juror on a street corner in downtown Los Angeles (Third and Los Angeles), and handed him $4,000. Franklin was arrested immediately thereafter.

  Clarence Darrow was present when the money was passed. Darrow was not arrested on the scene, mostly because the police who had set up the sting were flabbergasted to find Darrow present in the flesh, and didn’t know quite what to do with him.

  After months of insisting that the McNamaras were innocent and would be acquitted, Darrow did an about-face. Three days after the arrest of Bert Franklin, both McNamaras pled guilty in exchange for leniency. “Leniency,” for J. B. McNamara, meant life in prison. His brother got ten years.

  Darrow’s critics, including the judge who handled the McNamara case, have alleged that Darrow pleaded the McNamaras guilty in the hope that this would make the bribery case against Clarence Darrow disappear. If so, it was a dreadful miscalculation, as well as a betrayal of his clients. The end of the McNamara case did three things to Darrow’s. First, it deprived the Los Angeles authorities of an opportunity to try the McNamaras, leaving them frustrated and angry. Second, it allowed them to focus on the bribery issue, without worrying about the McNamaras.

  And third, it drove a wedge between Darrow and labor. Darrow had been the lead attorney for the labor movement, by this time, for about 17 years, since representing Eugene Debs in a civil action in 1894. For a decade and a half, labor leaders had been brought up on charges true and false, and for a decade and a half Darrow had defended them. His victory in the trial of Big Bill Haywood had made him a star.

  Darrow, however, had told his supporters that the McNamaras were innocent, right up to the day he pled them guilty. For seventeen years Darrow had seen the money gush in, for the defense of Debs, for the defense of Bill Haywood, for the defense of the McNamaras, for the defense of countless others. Now it was Clarence Darrow under indictment, and he assumed that the money would flow in for the defense of Clarence Darrow.

  He got nothing. Labor leaders refused to make any effort to raise money on his behalf. It is a debatable point whether those labor leaders were furious with him, whether they were merely cold toward him, or whether they cut him off in miserly self-interest.

  For a modern reader, raised on the image of Clarence Darrow as The Great Defender, it requires an effort to understand the depth of Darrow’s peril. Darrow was not a hero to all of the American people; he was a hero to half of them. He was a hero to the labor movement; the other side hated him. Even among social progressives, socialists, anarchists, and civil rights activists, there were many who distrusted Darrow, and many who hated him. He was famous for his tactlessness. He would make anti-Semitic remarks to a gathering of Jewish leaders, vaguely racist comments to African Americans, and engage, at professional functions, in vicious lawyer baiting. In any place and at any time, he would find the most unpopular idea, and advocate it brilliantly. This was his genius.

  Now, facing the very real prospect of ending his career in San Quentin, Darrow was abandoned and despised by that half of the public that had previously admired him. By the time he was indicted, he had been in Los Angeles for about eight months, and was well aware who the best attorney in town was.

  Darrow asked Earl Rogers to defend him.

  Rogers agreed.

  Lawyers.

  To those involved in the matter, Earl Rogers’ acceptance of Darrow’s case was as much a betrayal as Darrow’s abandonment of the McNamaras. Rogers had been set to lead the prosecution of the McNamaras. He would have been the prosecuting attorney. How, the good people of Los Angeles wondered, could he now defend this despicable scumbag who had been the McNamaras’ mouthpiece?

  Rogers, of course, didn’t see it that way. He had agreed to prosecute the bomb makers because they had murdered his friend. That was over now, and Darrow had nothing to do with it. Darrow hadn’t killed anybody. Darrow had been caught in a police trap. Rogers didn’t like police traps. Besides, a defense attorney does not make a living defending saints. He makes a living defending sinners. Darrow was no worse than the rest of them.

  Johnnie Cochran, in the midst of O.J.’s trial, cited the trial of Clarence Darrow to establish some obscure legal point. It was, he said, the “first ‘Trial of the Century.’ ” The two most famous attorneys in America were now partners in the defense of Clarence Darrow. It was an unhappy partnership. Both Rogers and Darrow had complete contempt for the idea of formal education. Apart from this, they had astonishingly little in common. Rogers was trim and neat, obsessive about fashion. Darrow was overweight, soiled and rumpled, affecting the appearance of the common man. Rogers was precise and surgical; Darrow was broad and forceful. Rogers spoke to the jury box as though the juror was a dinner companion; Darrow spoke to the room, to the world, as though the courtroom was a stage. Darrow was depressed and emotional; Rogers was hyperactive and alcoholic. Darrow would collapse in his seat and weep openly at great length. Rogers found this nauseating. Rogers would go on drinking binges, and disappear for days. Darrow thought this was inappropriate conduct for a defense attorney in the middle of a trial.

  Darrow wanted to argue that the case against him was a conspiracy manufactured by the enemies of labor. Rogers refused to put on such a defense, arguing that

  a) it simply wasn’t true, and therefore would be difficult to prove, and

  b) whether it was true or not, he could never make a jury believe it.

  Rogers wanted to argue that Darrow had to be innocent, because he couldn’t possibly be that stupid. If a smart lawyer had intended to bribe a juror, Rogers argued, he

  a) would never have allowed a close associate to carry the bag, and

  b) would have been damned sure to be hundreds of miles away when the money was passed.

  They argued endlessly and loudly over which defense to use. Rogers, who had taken on hundreds of cases knowing full well that his client was guilty, had taken this case in part because Darrow was one of his heroes, and he had believed that Darrow might be innocent. When he realized (or concluded) that Darrow had in fact initiated the bribery scheme, he was unable to look at Darrow without revulsion.

  In any case, working together, sort of, the two men got Darrow off, sort of. Darro
w was acquitted of attempting to bribe the ex-cop/potential juror, who had received the $4,000. However, there was another bribery charge pending, from the other potential juror. The case was much weaker, there having been no exchange of money, but it gave the Los Angeles prosecutors a chance to make a second run at Darrow, and they decided to take it.

  Rogers bowed out, citing health concerns, and Darrow decided to act as his own attorney in the second case. This decision was very nearly fatal to his career. Darrow used the “frame-up” defense that had been vetoed by Rogers in the other case, and shouted his innocence to the world. Eight jurors voted to send him to prison. Fortunately for Darrow, the other four held out, and he escaped with a hung jury.

  Darrow made an agreement with the state. They would agree to drop the prosecution, and he would agree never again to practice law in California. After two long and agonizing years in LA, Darrow was free to return to Chicago.

  Was Darrow guilty? Biographer Kevin Tierney’s synopsis seems reasonable. “It is as impossible to be sure what happened in retrospect as it was impossible at the time,” wrote Tierney in Darrow, “but nearly everyone acquainted with the circumstances, or who was present at the trials, thought that Darrow was guilty.”

  The centerpiece of the evidence against Darrow was the testimony of the bribed juror and the testimony of Bert Franklin, the former deputy sheriff who said that Darrow hired him to make the bribe. But even without the cooperation of those two men, the state could still prove: