Sighing, he began prowling before the bench. He seemed almost to be talking to himself. “I haven’t always had the highest opinion of the average human being. Man is none too great at best. He is moved by everything that reaches him. Tommie has told you that there was no intention of killing.”
His voice climbed again.
“But when Kahahawai said, ‘Yeah, we done it!’, everything was blotted out! Here was the man who had ruined his wife.” Again he pointed at the jury. “If you can put yourself in his place, if you can think of his raped wife, of his months of mental anguish, if you can confront the unjust, cruel fate that unrolled before him, then you can judge…but only then.”
His voice was barely audible as he said, “Tommie saw the picture of his wife, pleading, injured, raped—and he shot. Had any preparations been made to get this body out? What would you have done with a dead man on your hands? You would want to protect yourselves! What is the first instinct? Flight. To the mountains, to the sea, anywhere but where they were.”
A humorless laugh rumbled in the sunken chest as he walked, hands in pockets again. “This isn’t the conduct of someone who had thought out a definite plan. It is the hasty, half-coordinated instinct of one surprised in a situation. As for Tommie, gradually he came back to consciousness, realizing where he was. Where is the mystery in a man cracking after six or eight months of worry?”
Darrow returned to a position directly in front of the jury box. “This was a hard, cruel, fateful episode in the lives of these poor people. Is it possible that anyone could think of heaping more sorrows on their devoted heads, to increase their burden and add to their agony? Can anyone say that these are the type of people on whom prison gates should close? Have they ever stolen, forged, assaulted, raped?”
He slammed a fist into an open hand. “They are here because of what happened to them! Take these poor pursued, suffering people into your care, as you would have them take you if you were in their place. Take them not with anger, but with understanding. Aren’t we all human beings? What we do is affected by things around us; we’re more made than we make.”
With a sigh, he strolled to where he could get a view of the green hills out a courtroom window. Almost wistfully, damn near prayerfully, he said, “I have looked at this Island, which is a new country to me. I’ve never had any prejudice against any race on earth. To me these questions of race must be solved by understanding—not by force.”
One last time he positioned himself before the defendants, gesturing from Tommie to Mrs. Fortescue and finally to the quasi-defendant, Thalia herself. “I want you to help this family. You hold in your hands not only the fate but the life of these people. What is there for them if you pronounce a sentence of doom on them?”
And he plodded, clearly exhausted from his effort, to the rail of the jury box, where he leaned and said, softly, gently, “You are a people to heal, not destroy. I place this in your hands asking you to be kind and considerate, both to the living and the dead.”
Eyes brimming with tears, Darrow walked slowly to his chair and sank into it. He was not the only one crying in the courtroom. I was a little teary-eyed myself—not for Massie or Mrs. Fortescue or those idiot gobs: but for the great attorney who may well have just delivered his last closing argument.
Kelley, however, was unimpressed.
“I stand before you for the law,” he said, “opposed to those who have violated the law…and opposed to those—like defense counsel, who has distinguished himself during his long career by disparaging the law—who would ask you to violate the law.”
Kelley paced before the jury, but more quickly than Darrow; his businesslike summation was quicker, too.
“You have heard an argument of passion, not reason,” Kelley said, “a plea of sympathy, not insanity! Judge on the facts and the law, gentlemen.”
Point by point, he took Darrow on: no evidence had been presented that Massie had fired the fatal shot (“He couldn’t hide behind the skirts of his mother-in-law, and he couldn’t put the blame on the enlisted men he inveigled into his scheme—so he took the blame”); he reminded the jury how Darrow had sought to remove Mrs. Kahahawai from the courtroom because of the unfair sympathy she might invoke, then himself put Thalia Massie on the stand in a “mawkish display”; he dismissed the insanity defense and the experts who supported it as a last refuge of rich guilty defendants; and he reminded the jury that had these four not formed a conspiracy to commit the felony of kidnapping, Joseph Kahahawai “would be alive today.”
“Are you going to follow the law of Hawaii, or the argument of Darrow? The same presumption of innocence that clothes these defendants clothes Kahahawai and went down with him to his grave. He went to his grave, in the eyes of the law, an innocent man. These conspirators have removed by their violent act the possibility that he will ever be anything other than an innocent man, regardless of whether or not the other Ala Moana defendants are retried and found guilty.”
Mrs. Fortescue’s impassive mask tightened into a frown; it had not occurred to her that she had helped transform Joe Kahahawai into an eternally innocent man.
“You and I know something Darrow does not,” Kelley said chummily, in one of the few instances when he leaned against the jury rail in the fashion Darrow had done, “and that is that no Hawaiian would say, ‘We done it.’ Kahahawai might have said, ‘We do it,’ or ‘We been do it,’ but never ‘We done it.’ There is no past tense in the Hawaiian language, and they don’t use that vernacular so common on the mainland.”
Now it was Kelley’s turn to stand before Kahahawai’s parents. “Mr. Darrow speaks of mother love. He singled out ‘the mother’ in this courtroom. Well, there’s another mother in this courtroom. Has Mrs. Fortescue lost her daughter? Has Massie lost his wife? They’re both here in the single person of Thalia Massie. But where is Joseph Kahahawai?”
Kelley wandered over to the defense table and panned a cold gaze across Lord, Jones, Massie.
“These men are military men, trained to kill…but they are also trained in the ways of first aid. When Kahahawai was shot, what attempt did they make to save his life? None! They let him bleed to death while they began trying to save their own skins. And where was the dying statement of a man about to meet his Maker with such a burden? I expected that in their defense by this high-powered attorney we would learn that as Kahahawai lay dying, he told what had happened.”
Now Kelley fixed his gaze on Darrow, who sat with bowed head. “In the Loeb and Leopold case…”
Darrow looked sharply up.
“…Darrow said he hated killing, regardless of how it was done, by men or by the state. But now he comes before you and says a killing is justified. That it is not murder.”
Darrow bowed his head again.
“Well,” Kelley continued, “if Lt. Massie had taken his gun and mowed these men down in the hospital the night his wife identified them, he’d at least have had the understanding of the community however unlawful that act might be. But instead he waited months, and dragged in these enlisted men…though they too are free and voluntary parties to the act, and are fully responsible. A killing is a killing, Mr. Darrow, and under these circumstances, it is clearly murder!”
Kelley moved quickly to the jury box and pounded a fist on the rail. “Hawaii is on trial, gentlemen! Is there to be one law for strangers and another for us? Are strangers to come here and take the law in their own hands? Are you going to give Lt. Massie leave to walk out and into the loving arms of the Navy? They’ll give him a medal! They’ll make him an admiral. Chief of Staff! He and Admiral Stirling are of the same mind—they both believe in lynch law.”
Kelley pointed at the flag behind the bench.
“As long as the American flag flies on these shores—without an admiral’s pennant over it—you must regard the constitution and the law. You have taken an oath to uphold it, gentlemen. Do your duty uninfluenced by either sympathy or the influence of admirals. As General Smedley Butler, the pride of the Ma
rines, has said: ‘To hell with the admirals!’”
I couldn’t resist turning to get a glimpse at Stirling in the audience; his face was white with rage.
On this bold note, Kelley took his seat, and the judge began his instructions to the jury, pointing out the distinctions between the possible verdicts of murder in the second degree and manslaughter.
The defendants were to be held in the Young Hotel until the verdict came down; there was a palpable sense of relief among them as Chang Apana accompanied them out of court. Isabel, who hadn’t spoken to me since our moonlight swim, smiled at me as she accompanied Thalia and Tommie out; what was that about? Ruby was waiting in the aisle as Darrow pulled me off to one side.
“That was a fine summation, C.D.”
“Mine or Kelley’s?”
“Both, actually.”
“You need to get back to work.”
“Why in hell? The case is over. It’s time to go back to Chicago.”
He shook his head, no, and the unruly hair bounced. “Not at all. We’ve just begun the battle.” He smiled slyly. “Now, I’m going to howl indignantly when it happens and cry twenty kinds of injustice and bluster like a schoolyard bully, acting as surprised as hell my clients weren’t found not guilty…but Nate, we’re going to be lucky to pull manslaughter out of this.”
“You think so? Your closing was brilliant—”
Looking around to make sure no one—not even Ruby—could hear, he laid a hand on my shoulder and whispered: “I’ll be going after pardons from the governor, and the mainland press and politicians will put the pressure on, and that’ll help me…but once and for all, I need to know the truth about that goddamn rape.”
“C.D., how can you be sure your clients won’t get off?”
He chuckled. “I knew they wouldn’t the minute I saw those dark faces on that jury. I’ve been pleading this case to the press ever since. That’s the only place this case can be won. Now, you come have some supper with us over at the Young—but then get your ass back on the job, son!”
Who was I to argue with Clarence Darrow?
17
Chang Apana had offered to open doors, and he’d already done that for me with the local cops, in spades. Now I asked him to accompany me into the part of town where tourists seldom ventured, particularly white ones.
He was reluctant, but I pressed.
“This rumor about a second gang of boys,” I said, “there must be somebody out there who can pin names on ’em. And I’m not going to find the answer on the beach in front of the Royal Hawaiian.”
“Okay, but day only,” he cautioned. “Chang not as young as he used to be. And dark night on waterfront not always friendly to white face.”
“Fine. Lead on.”
On River Street, facing the docks along the Nuanuu Stream, sat shabby storefronts—pawnshops, saimin cafes, and, predominantly, herb dens whose shelves overflowed with glass jars and reed baskets of such exotic commodities as dried seaweed, ginger root, shark fins, and seahorse skeletons.
The conversations between Chang and the shopkeepers were in Cantonese, and I understood nothing—except how feared and respected this wizened little man with the scarred skull face was in the toughest section of town.
“Fu Manchu in there was three times your size and a third your age,” I said, jerking a thumb back toward the musty-smelling hole we’d just exited.
“If strength were all,” Chang said, “tiger would not fear scorpion.”
“What stinger do you have in your tail?”
He walked quickly; I had much longer legs, but keeping up with him was a trick.
“They remember Chang from years ago. I make name running down gamblers, raiding opium dens. They not see me ’round here in long time, now I show up when they know police looking to remove black eye of Massie case.”
“And they’re not anxious to be the brunt of a new crackdown designed to restore the department’s reputation.”
“Correct. So I would think they would be anxious to help Chang Apana.”
“Then why aren’t we getting anything?”
He shrugged as he walked. “Nothing to get. Everyone hears rumor about second gang. Nobody hears name.”
We spent the better part of two days prowling a maze of dark alleyways, crooked paths, and narrow lanes, street after unpaved street where if I were to outstretch my arms I could touch a wall on either side. I never quite got used to the sickly-sweet stench of the nearby pineapple canneries that merged here with the salty odor of the marshlands below the city. And the sagging balconies and rickety wooden stairs of tenements made the Maxwell Street ghetto of my childhood seem like Hyde Park.
Chang questioned various whores, pimps, and assorted hardcases, sometimes in Hawaiian, sometimes in Cantonese, occasionally in Japanese, in neighborhoods with names that were a little too vivid for comfort: Blood Town, Tin Can Alley, Hell’s Half Acre. In Aala Park, Chang questioned rummies and hip-pocket bootleggers; but in Mosquito Flats, a disturbingly pretty, disturbingly young-looking prostitute in a red silk slit-up-the-sides dress told him something that made his eyes flash.
He grabbed her by the arm, tight, and spat Cantonese at her. Scared as hell, she squealed a stream of Cantonese back at him—but she seemed only to be repeating what she’d said before, louder.
And I thought I’d made out two English words: “Lie man!”
Now Chang was really walking fast. Something was bothering him.
“What did she say? What’s going on, Chang?”
“Nothing. Crazy talk.”
“What did she say? Did she give you a name?”
“Dead end.”
“What? Chang, did I hear her call you a liar?”
But he wouldn’t say any more about it, and the sun was going down, so it was time for the haole from Chicago to head to friendlier territory. We walked to our cars, parked on Beretania Street, and Chang paused at his Model T.
“So sorry I was of so small help,” Chang said.
“We going to pick up tomorrow where we left off?”
“No. Nowhere else to ask.”
“Hey, we haven’t even tried the residential neighborhoods yet.”
A rabbit warren of slum housing nearby included the home of the late Joe Kahahawai.
“With respect,” Chang said, “I decline offer further assistance.”
And the little man got in his car and rumbled off.
“What the hell,” I said to nobody.
Before I drove all the way back to Waikiki, I used a pay phone and checked with Leisure at the Alexander Young.
“Any word?” I asked.
“Glad you called,” he said. “We were just leaving for the courthouse. There’s a verdict.”
“Christ! How long did it take, anyway?”
“Fifty hours. Two hours ago, the judge asked the jury if they felt they could reach a verdict…we all thought we were headed to a hung-jury mistrial, like the Ala Moana case…but they said they could. And they did. See you over there?”
“See you over there.”
Darrow was right: it was manslaughter.
When the court clerk read the verdict, Thalia stood up, next to her husband, as if she were one of the defendants upon whom judgment was being pronounced. All four were declared equally guilty, but with “leniency recommended.”
The defendants took it stoically: a thin smile traced Mrs. Fortescue’s lips, and Tommie stood erect, Lord too, though Jones was nibbling at his fingernails. Thalia, on the other hand, went completely out of control, weeping and wailing.
Over Thalia’s sobs, the judge set sentencing for a week later, and prosecutor Kelley agreed to allow the prisoners to be kept in the Navy’s custody, on the Alton, until that time. The judge thanked and dismissed the jurors.
Thalia’s wailing continued, but Tommie said to her, surprisingly harshly, “Get ahold of yourself!” And she quieted down.
The public was filing out, but the reporters were swarming forward. Perhaps knowin
g he was under their watchful eye, Darrow went over to Kelley, shook the prosecutor’s hand, and said, “Congratulations.” Patient as a pallbearer, Chang Apana was waiting to escort the defendants to the Shore Patrol, and allowed Lord and Jones to shake hands with Kelley and proclaim no hard feelings.
Tommie held his hand out to Kelley. “If I ever had anything against you—”
Kelley, shaking Tommie’s hand, interrupted, saying, “I’ve never had anything personally against you, or your wife.”
Thalia snapped, “Oh really? Then you ought to look up the difference between ‘prosecution’ and ‘persecution.’”
The reporters were grinning as they jotted down this juicy exchange.
Tommie was again quieting Thalia down, whispering to her. She folded her arms, looked away, poutily.
“Mrs. Fortescue!” a reporter called. “What’s your reaction to the verdict?”
Her chin was, as usual, high; and there was a quaver in her voice, undercutting the casualness she affected: “I expected it. American womanhood means nothing in Honolulu, even to white people.”
Another reporter asked Tommie the same question.
“I’m not afraid of punishment,” he said, an arm around the sulky Thalia. “The Navy is behind us to a man.”
“Go Navy!” Jones said.
Lord nodded and said the same thing, shaking a fist in the air. You know what? I think I would rather pick my backup out of the crowd at a Wednesday night prayer meeting.
Another reporter called out: “How about you, Mr. Darrow? What’s your reaction?”
“Well,” Darrow said, gathering his briefcase and other things off the defense table, “I’m not a Navy man, but this does bring to mind a certain phrase: ‘We have not yet begun to fight.’”
“You beat the second-degree murder rap,” the reporter reminded him.
“The verdict is a stunning travesty on justice and on human nature,” he said, working up some steam. “I’m shocked and outraged. Now, if you’ll excuse me…”
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