—CHAPTER SIX—
PRELIMINARY ROUNDS
THE CROWD gathered early on Friday, July 10, for the opening of the trial. The first spectators began filtering into the courthouse before 7 A.M., a full two hours before the scheduled start. “The newspapermen set along the three sides of the rectangular rail surrounding the sanctum of the court,” one of them noted. “Feature writers and magazine contributors have the first three of four spectators’ seats reserved for them, just like the seats for the families at a wedding.”1 By 8:45, all seats were taken, and the general public began to spill out into the hallway—local men mostly, from Dayton and the surrounding countryside. “Farmers in overalls from the hillside farms, silent, gaunt men,” the New York Times reported. “They occupied every seat and stood in the aisles and around the walls of the room.”2 These were not the big-spending tourists that Dayton civic boosters hoped to attract (those people never showed up) but East Tennesseans who came for the day in small automobiles raised high for the rocky mountain roads, or in wagons drawn by horses and mules.
Only about five hundred visitors stayed in Dayton during the trial, and almost half of these were associated with the media. “They sleep and they ‘drop’ a little money,” the Chattanooga Times said of the visiting journalists, “but they do not form the vast hoards that Dayton expected.” 3 The reporters began work early on the opening day. Some claimed seats at the courtroom press table long before the trial started, already drafting articles for afternoon papers. Antievolution bill author J. W. Butler, in his new role as a trial commentator for a national news syndicate, joined the reporters at the press table—but gave far more interviews than he conducted. Other journalists tracked down Darrow or Bryan for pretrial statements. Press photographers and newsreel crews waited on the courthouse lawn to record the arrival of key participants, much like at a movie premiere. The trial quickly became more of a media event than a spectator show, with some of America’s finest journalists on hand to tell the story: H. L. Mencken, Watson Davis, Joseph Wood Krutch, Russell D. Owen, Jack Lait, and Philip Kinsley. Reports from Dayton would dominate the front pages of the nation’s newspapers for more than a week.
Judge Raulston arrived with his entire family at about 8:30, carrying a Bible and a statute book. “As he laid these down on the desk,” Darrow later wrote, “I wondered why he thought that he would need the statutes. To the end of the trial I did not know.”4 The judge’s family took seats next to the bench while the judge mingled with friends and reporters. He wore a new suit for the occasion (Tennessee circuit judges rarely wore robes), and kept the coat on for the time being. With temperatures forecast to push 100 degrees and poor air circulation in the overcrowded courtroom, however, he had authorized attorneys and court personnel to dispense with coats and ties. Most welcomed this relaxed formality, but objected to Raulston’s added rule against smoking during the proceedings. Nearly all the lawyers except Bryan smoked heavily. So did the reporters. Perhaps this might be a short trial after all, some people joked. Certainly chewing tobacco gained popularity among court personnel and spectators as a result. A bouquet of flowers graced the judge’s bench; spittoons adorned the floor.
Defense counsel came in next, along with Scopes and Rappleyea. Darrow had eaten breakfast with reporters at the Mansion and passed through the gathering crowds on his way downtown, picking up the other defense lawyers as he went. “As we approached the courthouse,” Hays later recalled, “our attention was first caught by a sign on the fence reading, ‘Sweethearts, come to Jesus,’ and conveying other advice of like kind. In the courtyard were various groups of people, some singing psalms.”5 Malone entered the jammed courtroom first, at about 8:45, wearing a fashionable double-breasted suit and smoking a cigarette. “He bubbles with good humor,” a New York reporter observed, “and the smile on his round and merry face greets everyone who stops him.”6 Malone was the only lawyer who wore a suit coat throughout the proceedings. At first, townspeople dismissed him as a dandy for doing so, but grew increasingly impressed with his stamina. The rumor spread that he did not even sweat. Although several spectators and prosecutor Ben McKenzie dropped from heat exhaustion during the first day, Malone held out against the temperature in style that day and throughout the trial—although he did occasionally blot his brow with a linen handkerchief.
Darrow trailed behind. “His appearance is in marked contrast to the others of the defense staff,” the New York reporter noted. “His huge head, leathery, lined face, square jaw, his twisted mouth of the skeptic, are softened by the quizzical twinkle of his deep-set eyes.” Darrow shed his coat upon crossing the threshold, revealing his trademark colored suspenders and pastel shirt—both a generation out of date. “Are you going to wear suspenders like Darrow?” one journalist ribbed Malone, who laughed back, “I refuse to get dressed up for the occasion.” Meanwhile Neal impatiently chomped on his half-burnt cigar and Hays chatted with the press. Scopes looked like “a college student on vacation,” the reporter added, with neither coat nor tie and his sleeves rolled up to the elbows.7 His casual dress hid his nervousness. “The whole scene, to me, was unnatural,” Scopes later wrote. “I realized that I was on display. Everything I did was likely to be noted; consequently, relaxing was not as easy for me as it apparently was for my companions at the defense table.”8 He made himself as inconspicuous as possible.
From the outset, Judge Raulston adopted the practice—already used by some in town—of referring to Darrow as “colonel.” Malone also became “colonel” or the lesser rank of “captain.” Darrow submitted to the practice with good humor. Many of the other attorneys also bore titles, but none without an obvious reason. Everyone referred to Neal as “judge,” which reflected a previous position; Stewart and Ben McKenzie were usually “general” (as in attorney general); and even Bryan, on occasion, was “colonel,” his rank during the Spanish-American War. Yet some wondered whether the judge extended this designation to Darrow and Malone as a way to avoid calling them “mister,” a title of respect in the South. He certainly had no problem referring to all the other attorneys, including Hays, as “mister.”
The spectators broke into applause just before 9:00, when Bryan entered with Stewart and the other prosecutors. Raulston strode over to welcome the Commoner. The applause broke out anew when Bryan and Darrow shook hands. Despite their differences over religion, the two men had worked together for a variety of political causes and remained on cordial terms. In a letter to Sue Hicks shortly before trial, Bryan described Darrow as “an able man, and, I think, an honest man.”9 Darrow, for his part, always maintained that Bryan was sincere. The two talked amiably with their hands clasped on each other’s shoulders and posed for pictures with the judge. The conversation became more formal when Malone approached Bryan, perhaps due to bitterness from their days together at the State Department. Darrow wandered off to compare suspenders with Ben McKenzie.
Bryan already showed signs of strain from the heat. “His shirt sleeves were rolled up as high as they would go, and his soft collar and shirt front were turned back away from his neck,” Darrow recalled, though closer inspection showed that Bryan had removed his collar altogether. “In his hand was the largest palmleaf fan that could be found, apparently, with which he fought off the heat waves—and flies.”10 Mary Baird Bryan watched from a wheelchair behind her husband. She suffered through the entire trial in quiet dignity and obvious physical pain from her crippling arthritis. Privately she objected to her husband’s crusade against teaching evolution and his participation in the Scopes trial, but she stood by him throughout. Raulston took his seat behind the bench and called for order. The trial was about to begin.
First, the court opened with a long prayer (Scopes called it “interminable”) by a local fundamentalist minister. “Not just an ordinary prayer,” Hays noted, “but an argumentative one, directed straight at the defense.” Acknowledging a divine “source of our wisdom,” the preacher prayed that “the Holy Spirit may be with the jury and with the
accused and with all the attorneys” so that they would “be loyal to God.” Many spectators punctuated these words with audible amens. Prosecutors bowed their heads throughout; reporters looked toward the defense table; the defense lawyers stared out the window. The judge then reconvened the same grand jury that had indicted Scopes six weeks earlier; that jury had met in May without sufficient notice, therefore a new indictment was needed. The judge repeated his original charge to these jurors, complete with the Genesis account of creation, and Stewart recalled the earlier witnesses. “One of the [student witnesses] did not want to go on the stand,” Scopes later wrote. “To prevent his loyalty [to me] from delaying the trial I went to see the youngster and told him to go ahead ... because he would be doing me a favor.” These proceedings consumed most of the morning, whereupon counsel asked to call it a day so that defense lawyers could recuperate from their travels and become acclimated to the heat. “Well, it wouldn’t require any great amount of energy to select a jury, would it?” the judge responded. He then directed the sheriff to summon one hundred potential jurors to appear after lunch. Under local practice, all veniremen would be white males.11
The principal figures in the Scopes trial greeting each other in the crowded courtroom at the start of the trial. In front from left are Dudley Field Malone, Tom Stewart, William Jennings Bryan, Judge John Raulston, and Clarence Darrow. (Courtesy of Bryan College Archives)
Shortly before noon, a thousand people poured out of the ovenlike courtroom into the festive atmosphere of downtown Dayton. Four steers roasted over a huge barbecue pit behind the courthouse. Hot dog and soft drink stands lined the main street, intermixed with bookstalls and carnival games. “A blind man with a portable organ sat at the iron fence at Market Street, only half shaded from the broiling sun, playing mountain hymns,” a reporter observed, “another blind man played on a guitar and mouth organ.” An African-American string quartet entertained in the street. “Negroes mingled freely with white persons on the lawn of the court house,” a surprised Yankee noted. The biggest thrill occurred later in the day, when two airplanes buzzed the crowd after taking off from near town. They carried newsreel footage of the trial that would begin showing in northern cinemas at the next afternoon’s matinee.
Jury selection started immediately after lunch. Darrow typically stressed this part of a trial as critical for the defense and often spent weeks going through hundreds of veniremen before settling on twelve suitable jurors. Tennessee trial practice allowed only three peremptory challenges without cause for each side, and there was little point in probing into the backgrounds and beliefs of veniremen to establish cause for their exclusion owing to a fundamentalist predisposition—which in itself would never constitute just cause for a local judge to exclude anyone from anything. When Darrow tried this tact by challenging a particularly militant fundamentalist for cause, Stewart objected: “If a man is subject to challenge by the defendant because he believes the Bible conflicts with the theory of evolution... then, for the converse reason the state would have grounds to challenge for cause and the result would be everybody on earth who could be brought here, would be challenged.” Betraying his frustration with the jury pool, Darrow shot back, “If you can find any man on the jury that believes in evolution, you have my permission to challenge him.”12 Despite Stewart’s objection, this particular venireman had gone too far in admitting his bias. Raulston excused him for cause.
Darrow settled for jurors who claimed to have an open mind. To facilitate this, he asked that names from the jury pool be drawn from a hat rather than selected by the sheriff. The judge offered this option to accommodate Darrow’s concern about fairness, inviting his daughter to draw the first name. The prosecution readily accepted nearly everyone after a few pro forma questions. For the defense, Darrow engaged each potential juror in a casual interrogation that inevitably covered three key issues and generally elicited similar responses. “Mr. Smith, do you know anything about evolution?” Darrow began one typical exchange. “I do not, no sir,” came the inevitable reply. Further questioning led up to, “Did you ever have any opinion... on whether the Bible was against evolution or not?” No, again. Finally, Darrow inquired to the effect, would you make up your own mind on these matters based on the evidence presented in court? When the answer came back, “Yes, sir,” Darrow concluded, “I think you would, too. You are a juror.”13
Nearly every venireman wanted to join the jury, if for no other reason than that it appeared to offer a front-row seat for the proceedings. Clearly, many of them said whatever they thought would help to get them accepted. This typically included denying that they held any opinion regarding the theory of evolution and its relationship to Christianity. Some were transparently honest in their professed ignorance on these points. When asked if he had ever read about the subject, for example, one venireman replied, “I can’t read.” Darrow followed up, “Is that due to your eyes?” No, the man answered, “I am uneducated.” Hays later commented, “It was said with such plain, simple dignity that we felt we had at least one honest man.” The illiterate venireman joined the jury. “Evolution is a new idea to the average Tennessee juryman,” Watson Davis concluded. This gave the defense grounds for arguing that the jurors needed to hear expert testimony about evolution to decide the case.14
When pushed, however, these veniremen betrayed a marked fundamentalist tilt. None said anything negative about the Bible or positive about evolution, and all but one of them were church members. Most were middle-aged farmers from rural Rhea County with little formal education. The judge excluded a few for cause after Darrow probed deeper into their beliefs. For example, a rural minister who professed to know nothing about evolution aroused Darrow’s suspicions. In response to rapid-fire grilling, the minister first denied ever preaching about evolution, then admitted doing so “in connection with other subjects,” and finally exclaimed, “Well, I preached against it, of course!”15 Local spectators broke into loud cheers, but the minister lost his chance to sit in judgment of Scopes.
Usually Darrow took prospective jurors at their word and accepted the inevitable. “It was obvious after a few rounds that the jury would be unanimously hot for Genesis. The most that Mr. Darrow could hope for was to sneak in a few men bold enough to declare publicly that they would have to hear the evidence against Scopes before condemning him,” H. L. Mencken reported from the scene. “Such a jury, in a legal sense, may be fair,” he added, “but it would certainly be spitting in the eye of reason to call it impartial.”16 The entire process took only two hours and twenty veniremen. Darrow told reporters afterward, “It is as we expected.” Bryan commented for the prosecution, “We are satisfied.” 17 Many northern editorialists scorned the prospect of these jurors sitting in judgment on a scientific theory, but one put it in a larger perspective. “Last week the white press made much ado about the jury that now sits hearing evidence in the Scopes’ trial,” a Pittsburgh African-American newspaper editor noted. “But right here we rise to remind the complainants that this is no unusual spectacle. The Scopes’ jury is typical—typical of the judgment bar before which black men and women in the bourbon South must stand when charged with crime against members of the opposite group.”18 Scopes now stood charged with such a crime, and Bryan’s majority sat in judgment.
Jury selection concluded quicker than anyone expected, and the court prepared to adjourn early for the defense. Counsel raised one more issue: “That is the matter with reference to the competence of evidence that will be introduced by the bringing here of these scientists,” Stewart spit out.19 Darrow had raised the issue several times during the day. Indeed, in his first words to the court that morning, Darrow said, “Your honor, before [jury selection] I want to have a little talk ... on the question of witnesses here, before we do anything else.” Raulston put him off. The competency of defense witnesses usually would not come up until the prosecution concluded its case, and the defense offered those witnesses, but Darrow pushed for an early ruling. “Your honor,
all I am doing at this time is because our witnesses are generally from a long distance,” he stated. “If there is to be any question of competency of evidence, that could be disposed of some time before we get them here.” The prosecution left no doubt about its position. “We have had a conference or two about that matter,” Stewart replied. “It isn’t competent to bring into this case scientists who testify as to what the theory of evolution is or interpret the Bible or anything of that sort.”20 Yet things of that sort constituted the entire defense.
Summer for the Gods: The Scopes Trial and America's Continuing Debate Over Science and Religion Page 19
