Clarence Darrow: Attorney for the Damned

by John A. Farrell

  “And if it shall come,” he warned, “when you then look abroad over the ruin and desolation, remember the long years in which the storm was rising, and do not blame the thunderbolt.”17

  It was quite a show. In the days before radio and motion pictures, the era’s courthouse clashes and public debates played the role of mass entertainment. It was not unusual for the gallery to be packed with prominent lawyers, off-duty judges, newspapermen, and politicians, and the hallways outside jammed with spectators trying to get in, all to see Darrow close for the defense. At times a mob of thousands would spill through the corridors, down the stairs, and out into the yard, to surround a courthouse and listen at the windows.

  Darrow savored the attention. “In corporation law practice he was but an invisible cog in a great machine. And he disliked being invisible,” said the writer Louis Adamic. “His superior powers and wit, of which he was more and more conscious, demanded function and expression. The actor-egoist in him sought opportunities to play great parts. Hero parts.”18 It wasn’t only ego. Darrow employed his celebrity to shape public opinion, knowing that jurors reflect communities. “Cases are not won in the courtroom alone, and no one on earth knows this better than Darrow,” said his friend Erskine Wood. “His first move is to get the outside atmosphere right for his case and he sticks at nothing to do this.”

  In lectures and public speaking, Darrow affected a humble awkwardness; in court, simplicity, to endear him to his audience. He might start with his arms folded, tapping his gold spectacles on his shoulder, his brow contracted in thought. Often, he would lean on the rail, as if to take the jurors into his confidence, talking so softly that those in the back row would lean toward him to listen. Then, suddenly, his demeanor would change. His voice would turn harsh; his jaw muscles would tighten. Soaring in a crescendo, he would swing his arms, shake clenched fists at heaven, or point a finger in the face of his opponent. And then the storm would pass, the sun would return, the jurors would relax, and Darrow would be genial and engaging, lightening the mood with a wisecrack. He never addressed juries, he said. He talked to them.

  He often used laughter as a weapon. “We will never get a conviction unless we can make this case more serious,” one frustrated prosecutor told his associates, as he watched Darrow captivate the courtroom. His galluses were a favorite prop, and he wore them long after belts became the fashion. “The old man used to crack his suspenders like the explosion of a .45,” a Chicago newspaperman recalled. “I used to think he’d break a rib.”19

  DARROW’S APPEALS TO juries were all about context. The haughty judges and the lean and hungry prosecutors of Victorian America knew their duty; they were there to exact vengeance, and to safeguard property and propriety. But Darrow believed that jurors, if given the opportunity and a skillful enough invitation, could be persuaded to look past the legal particulars, to judge a defendant in the context of the times, and consider the situational factors that prompt behavior. He sought to make even the most hideous of crimes comprehensible.

  A juror “begins by assuming that a man charged with a crime is guilty. He sees before him, not an ordinary human being like himself, but a creature of whom he thinks as a criminal,” Darrow said. “The first task of a lawyer … is to put forward the human side of his client, to show that jury that the defendant is merely a man like themselves.”20

  Darrow would “stand up, slouch his shoulders, talk quietly and … hardly mention the facts,” said Arthur Garfield Hays, his co-counsel in several celebrated cases. “In homely language and with a great wealth of illustrations he would talk about human beings, the difficulties of life, the futility of human plans, the misfortunes of the defendant, the strange workings of fate and chance that had landed him in his trouble. Darrow would try to make the jury understand, not so much the case, as the defendant.”

  It was not unusual, in the late nineteenth and early twentieth centuries, for lawyers to take many hours—spread over two or three days—to give a closing argument in a significant case. Darrow did so without notes, in marvelous displays of intellect and concentration. Taking his time, Darrow worked like a weaver, ranging back and forth across the crime, laying down threads, reviving assertions in different form, showing the facts from different angles. To a modern ear, his rhetoric seems to sprawl. But when he was done he had reshaped the case. “He will travel far beyond the immediate issue of guilt or innocence,” said Hays. “The whole background of the case takes on a different coloring.”21

  It was more than a tactic. It was his creed. Darrow was a determinist. He did not believe in free will, nor good and evil, nor choice. There were no moral absolutes, no truth, and no justice. There was only mercy. “We are all poor, blind creatures bound hand and foot by the invisible chains of heredity and environment, doing pretty much what we have to do in a barbarous and cruel world. That’s about all there is to any court case,” he said.

  He had no faith in God or churches, and won notoriety in the Jazz Age as the country’s most prominent and outspoken atheist. He built his moral code upon life’s very pointlessness, and the comfort and tolerance that human beings can offer to their doomed fellow travelers on what he called this “graveyard planet.” His infidel status gave Darrow the distinctive fortune of being among the most beloved and the most hated men in America.

  “Mr. Darrow is the greatest criminal lawyer in America today. His courtesy is noticeable, his ability is known,” said one prosecutor who was pitted against him. “Great God! The good that a man of his ability could have done if he had aligned himself with the forces of right, instead of aligning himself with that which strikes its poisonous fangs at the bosom of Christianity.”22

  Which of his clients won Darrow the public’s greatest disapprobation? Was it Prendergast? The homosexual thrill killers Nathan Leopold and Richard Loeb, who murdered fourteen-year-old Bobby Franks? Or James McNamara and his brother John, responsible for the bombing of the Los Angeles Times and the fiery death of twenty employees? Big Bill Haywood, the leftist union rabble-rouser accused of deploying union executioners and assassins? The socialist Debs? The anarchists arrested for the Haymarket bombing? The American communists in the days of the Red Scare after World War I? Or perhaps, in that era of prejudice and bigotry, it was the black men whom Darrow volunteered to defend—Isaac Bond; the Scottsboro boys; Ossian and Henry Sweet and others—charged with the rape of white women, or the murder of white men.

  These were only the more notable misfits. He was a practicing defense lawyer, and in his time he represented gangsters, psychopaths, gamblers, bank robbers, drunk drivers, rum runners, yellow journalists, union goons, crooked politicians and greedy corporations, bunko men, and many a scorned woman like Emma Simpson, the socialite who smuggled a handgun into court and shot her philandering husband in the midst of their divorce proceeding. “You’ve killed him!” said a shocked clerk. “I hope so,” said Emma. Meeting the classic definition of chutzpah, Darrow convinced the jury to have mercy on the widow.

  “His instantaneous reaction toward people—especially people in trouble—was the welling forth of that tremendous, instinctive kindliness and sympathy,” Nathan Leopold recalled. “It was so genuine, so immediate, so unforced. And it embraced the whole world. Or, at least, nearly the whole world. The only things Mr. Darrow hated were what he considered cruelty, narrow-mindedness, or obstinate stupidity. Against these he fought with every weapon he could lay a hand to.”23

  IN HIS PERSONAL life, Darrow was a notorious rake—a professed sensualist who took much pleasure from the chase, seduction, and act of love. He relied on “physical nearness” to escape the “emptiness” and the “spiritual isolation” of his life, said Mary Field Parton, for he was often lonely, haunted by death, and prey to melancholy. “Sex,” he told her, was “the only feeling in the world that can make you forget for a little while.”24

  Work was an anodyne as well. “Even as I have fought for freedom,” he said, “I have always had a consciousness that I was doing it
to keep myself occupied so I might forget myself.” Every man had his “dope,” said Darrow, whether it was “religions, philosophies, creeds, whisky, cocaine, morphine … anything to take away the reality.”

  Darrow’s practice was nondiscriminatory, and the rich were as welcome as the poor, if not more so. As with many things in Darrow’s life, his attitude toward money was marked by contradictions. “He is a strange mixture of craft and courage, generosity and penuriousness, consideration and despotism, honesty and deviousness,” one longtime friend told another. “And yet he has a big brain and a kind heart.” Darrow was a foolish and impulsive investor, ever scheming to recover, who could be alternately tight and free with the balled-up wads of bills and the silver in his pockets.

  But the fat fees from monopolists and elegant divorcées helped offset the costs of defending folks like poor Tommy Crosby, a thirteen-year-old charged with shooting a sheriff who had been sent to evict the boy and his widowed mother from their home three days before Christmas. Darrow told the whole sad story to the jury and dared them to send Tommy to the hangman. Of course they did not. And when no one else would defend a crazed killer like Russell Pethick, the grocery boy who slashed Ella Coppersmith to death with a butcher knife, cut the throat of her two-year-old son, and sexually abused her corpse, Chicagoans were not surprised to learn that Darrow had taken the case. He saved Pethick—and Crosby and Simpson and two or three score like them—from the noose and the electric chair. “I have known him a lifetime,” Wood wrote. “His almost insane desire is to save life.”

  “Well what can a fellow do,” Darrow asked, “when some poor devil comes to him, without a cent or a friend in the world, trembling in his shoes and begging for a chance before the law?”25

  HE WAS A Byronic hero—intelligent, captivating, jaded, moody; a renegade, with small regard for rank or privilege. He scorned society and its norms, and this seeped into his practice of the law. He would employ any trick to save a client. “To him the world was equally unmoral above as well as below,” said the Progressive Era reformer Frederic Howe. “So why be squeamish about it in criminal cases?”

  “Do not the rich and powerful bribe juries, intimidate and coerce judges as well as juries?” Darrow asked. “Do they shrink from any weapon?”

  “A great many people in this world believe the end justifies the means. I don’t know but I do myself,” he told the court in his closing argument in the Leopold and Loeb trial.

  The first time that Steffens called on him, Darrow laughed the muckraker out of his office. “Oh, I know,” Darrow said scornfully. “You are the man that believes in honesty!”

  “I never knew,” said Howe, “whether I admired or disliked him most. His realism hurt my illusions when it encountered them, and I hated having my illusions hurt.”

  And yet. Darrow had ineffable compassion for those who faced loss or despair or persecution. His “strongly emotional nature” was nourished by his upbringing. His father was the book-loving owner of a rural furniture shop, an abolitionist who steeped his family in the values of liberty and equality and taught his son to suspect and challenge authority. “He was always in rebellion against religious and political creeds of the narrow and smug community in which he dwelt,” Darrow recalled. His parents were “friends of all oppressed people, and every new and humane and despised cause.”26

  With such a childhood, and a “vivid imagination,” Darrow recalled, “not only could I put myself in the other person’s place, but I could not avoid doing so.”

  Compassion was the unifying theory in Darrow’s chaotic universe. The bench in Darrow’s outer office was invariably filled by “men in overalls, their arms in slings; by women huddled in shawls and threadbare clothes, wan-faced, waiting for Darrow,” a friend recalled. A less charitable pal described them as “the types one would expect in a fortune teller’s parlor … including half wits, whom even God could not teach anything.”

  Darrow would emerge at the end of the day, see the long line, sigh, and offer an understanding smile. Sunday dinners would grow cold as he sat with a supplicant for an hour or more, patiently hearing the facts of the case and offering advice. Depending on how he was fixed at the time, a third or more of Darrow’s cases earned him nothing.

  “The Gilded Age go-getter … was strong in Darrow,” wrote Adamic. “Had he remained a corporation lawyer, he would probably be a multi-millionaire … But he did not. And is not. He could not. Always it seemed there was a conflict in Darrow. The idealist in him, with his inbred sensitive imagination which made him see and understand the plight of unfortunates, was never suppressed. That phase of him rebelled against the ambitious go-getter and politician.”

  “Everything about Darrow suggests a cynic,” said the publisher E. W. Scripps, in as perceptive an analysis as was ever made about the man. “Everything but one thing, and that is—an entire lack of real cynicism.”27

  HE WAS JEFFERSON’S heir—his time’s foremost champion of personal liberty. When he was a boy, Darrow liked to say, the hired man had dignity; he dined with the family of his employer, shared their pew on Sunday, and could court the boss’s daughter. “There were no … banks, no big stores, very little money and nobody had a monopoly of either riches or poverty,” Darrow recalled. “The community was truly democratic.”

  But the nation’s founding principles were stretched beyond recognition in the roar of the industrial age. At Darrow’s birth, in 1857, America had one hundred public high schools and thirty thousand miles of railroads, and produced ten thousand tons of steel a year. By the time he turned forty the United States was a commercial titan, with six thousand high schools and 200,000 miles of railroad, and had surpassed Great Britain as the world’s leading steel producer, with 6 million tons a year. The population doubled as millions of immigrants poured through the Atlantic seaports, filling the mining towns of Appalachia, the tenements of New York, and the factories, docks, and stockyards of Chicago with cheap manpower and desperately poor families.

  The Constitution, with its fierce defense of individual rights, had been written in times when each man was his own agent, free to claim land on the endless frontier and trade labor or goods on fair terms. But the coming of steam power, railroads, oil, and factory production lines yielded huge economies of scale. The fierce new economy demanded, not a yeoman’s sense of inquiry and initiative, but rote labor at minimal cost. By the turn of the century there were no more “harness shops, wagon shops, blacksmith shops or furniture shops,” he noted. “All these things are made in the centers of industry and made by machines. The workman merely feeds them.”28

  A shrewd and lucky few made great fortunes—Carnegie in steel, Morgan in finance, Rockefeller in oil—and attributed their success to God, hard work, and pluck. They found in the writings of Charles Darwin and Herbert Spencer the comforting assurance that the poor deserved their lot; it was nature’s way of furthering the race, by weeding out the weak. They ordered their managers to lower costs and, when workers organized guilds or unions, brought in immigrants to take away jobs. If the union men fought back, then private armies and local militias were summoned to break up the strikes and demonstrations, often with volleys of rifle fire. According to the courts, a worker’s only right was to negotiate, man to man, with an employer, and to take himself elsewhere if the terms were not to his liking. And none married the boss’s daughter. Atop the social order, the robber barons flaunted their aristocratic aspirations by dressing up like eighteenth-century European royalty at spectacular parties, hiring semi-naked chorus girls to jump out of cakes, and hanging diamond collars on their dogs.

  The industrial plutocracy squeezed huge subsidies from the federal government (the railroads alone got $350 million and 242,000 square miles of land) and controlled the legal establishment, right up to the Supreme Court, where the justices worked diligently at redefining the Bill of Rights as a guarantee of property, above all else. “From the time in earliest records when Eve took loving possession of even the forbid
den apple, the idea of property and sacredness of the right of its possession has never departed from the race,” Justice David Brewer told the graduates at Yale. “The love of acquirement, mingled with the joy of possession, is the real stimulus to human activity.”

  The jurists who resisted—Brandeis, Holmes, Darrow—would be honored by history as great dissenters and mediocrities like Brewer forgotten, but that was no consolation to the working men and women of the time. And by the 1890s the great economic relief valve—the frontier—was gone. Its absence heightened “the sharp contrast between the traditional idea of America—as the land of opportunity, the land of the self-made man, free from class distinctions, and from the power of wealth,” wrote historian Frederick Turner, “and the existing America, so unlike the earlier ideal.”29

  With the growth of the state came new, intrusive police powers and prescriptions for social remedy. Though Darrow spent decades in radical and populist politics, he had no illusions about the ability of liberalism, or socialism, or any other man-made “ism” to cure social ills. Well ahead of most of his contemporaries, Darrow foresaw the dangers posed by totalitarian creeds and regimes. He was an early foe of Italian and German fascism. But his commitment to individual freedom left him wary of all government, and ultimately led him into clashes, as well, with the liberal presidents Woodrow Wilson and Franklin Roosevelt.

  “It is the mediocre, the thimble-riggers, the cheap players to the crowd, the men who take the customs and thoughts of the common people, who weave them into song and oratory and feed them back to the crowd, who get their votes,” he said. “And from them nothing ever did come and I fear nothing can.”