Clarence Darrow: Attorney for the Damned

by John A. Farrell

  McParland and Orchard had worked hard at constructing their saga. Now it was time for Darrow to present a counternarrative. His tale was of sturdy Americans, working in dangerous conditions for up to twelve to fourteen hours a day, forced to live in company housing and to buy their food at extortive prices in company stores, and, when injured, to seek care in company hospitals where the owners found little difficulty getting the wounded to release the company from damages. “Their teeth fell out, their bones twisted, they became helpless, crippled and paralytic,” he said. “The machinery was unsafe, the smelters vomited forth poison and death.”

  And so the miners had drawn together, and immediately “met the enmity and the opposition and the force and violence of every kind of the mine owners’ association,” Darrow said. Onto this violent stage, with its vigilantes, gunmen, informers, and spies, wandered Harry Orchard. He was “a cheap soldier of fortune—a shoestring gambler who never degraded himself by work,” said Darrow. He was “a gentleman miner—who mined the miners.” He was a “monumental liar.” Or maybe he was demented, Darrow said, and believed in the fantasies he related on the witness stand; it would account for his preternatural calm.

  Orchard was working as a spy when he started killing in Colorado. Detectives protected him from the military units that patrolled the district, and gave him the means to travel to Denver, to “become acquainted, to talk … and ingratiate himself” with the WFM leaders, Darrow said. There was peace in Cripple Creek, until Orchard destroyed the Independence depot. Then union miners were shot, beaten, rounded up at gunpoint, and deported from the state. Cui bono? Who benefited? The mine owners, not the union.

  Orchard was broke, “a tramp,” working as a con man and a petty thief when he crossed paths with Simpkins in Idaho, and drifted toward Caldwell. “He had been pursuing Governor Steunenberg and swearing vengeance upon him for years … He fixed this bomb and it was exploded in the most cowardly way that a coward could kill a man,” Darrow told the sagebrush elders. “And after manipulations with McParland for a sufficient length of time he was persuaded that the easiest thing for him to do was to lay his crimes onto somebody else, and so he did it, and … he is going to get the biggest reward for killing these men, if he lands them, than he ever got for anything in his life. He is going to save his own miserable neck.”11

  SOME OF THE defense testimony was strong, including that of several boardinghouse keepers, who told how Orchard was a frequent, and furtive, visitor of K. C. Sterling, an industry detective. Morris Friedman, who had worked as McParland’s stenographer in the Pinkerton offices in Denver, told how the agency had planted a dozen detectives, who acted as spies and provocateurs, in the Federation ranks. But some witnesses cut both ways. Lottie Day, one of Orchard’s landladies, told the jury that she had heard him condemn “that devil of a Steunenberg” for costing him his stake in the Hercules mine. “I loved one woman, and only one woman,” Orchard had told Day, “and if I had retained the mine I could have had her.” It was good stuff. But when Hawley cross-examined Day, she also furnished damaging details of Orchard’s ties to Haywood.

  The defense concluded with testimony from its own marquee witnesses: Moyer and Haywood. The city was buzzing with rumors that Moyer, who had been feuding with Haywood, was ready to join the prosecution; at one point Pettibone had to step between the two men to prevent a fistfight. But when he took the stand, Moyer shrouded his anger. Calmly, he told the jury that it was Simpkins who hired attorney Fred Miller to defend Orchard in the hours after the assassination, and not Haywood. It was crucial testimony, because Miller’s telegram to the Caldwell jail had been brandished by the state as evidence of Haywood’s involvement. Moyer testified for a day and a half, putting himself at considerable risk. The evidence against Moyer was weak, and by exposing himself to cross-examination he could help the prosecution build a case against him. “I hope that will please the Goddamn revolutionists!” Moyer told Pettibone when he returned to their cell.

  When court reconvened that afternoon, Big Bill, the revolutionist, took the stand. Richardson had been roasted for failing to crack Orchard during cross-examination. Borah, who worked harder at ingratiating himself with the reporters, got off far easier after flunking his opportunity to nail Haywood. The courtroom, stifling hot that week, was packed with fan-wielding spectators filled with “expectation,” but Borah’s assault on Haywood lasted just a single afternoon. “The prosecuting attorney did not succeed in entrapping Haywood into any significant admissions,” wrote the Globe’s Carberry. “Haywood made an admirable witness.”12

  THE FOUR LEAD attorneys—Hawley and Borah, Richardson and Darrow—gave their closing speeches in the last days of July. Boise baked, and the judge added evening sessions to free the trial’s participants from the worst of the afternoon heat.

  Hawley was most distressed by the torrid temperatures, and asked the jury to excuse lapses caused by fatigue, a splitting headache, and his ongoing struggle with stomach illness. For much of two days, he gave a standard prosecutor’s talk: an annotated account of the crime and the evidence. He lied at least twice, when assuring the jury that only state funds had been used by the prosecution, and declaring that Orchard was not motivated by a promise of lenient treatment. “Generally we take the statement of a man who is an informer with many grains of allowance,” Hawley told the jurors. But with Orchard, “it was the saving power of Divine Grace … that finally impelled him to make this confession.”

  The verdict of the press was that Hawley’s speech had been able, “in its way.” Richardson countered with a summation that took two days. He had the counsel table moved to give him room, for he liked to back off as far as he could and crouch as he approached the jury, speaking softly until, almost in their laps, he rose to his full height and thundered.

  Maybe Orchard was working for the mine owners, Richardson told the jury: Cui bono? But if he wasn’t a tool of the industry, he no doubt acted alone. Orchard had “a homicidal mania” that “compelled him to go out … and kill,” Richardson said. “That mania was greater at times and less at times … As he wavered in the pursuit of his victim sometimes the victims escaped and sometimes they did not.” He selected his targets “either because of some fancied grievance of the organization of which he was a member, or because of some fancied grievance which he had on some other account,” said Richardson. “When some obstacle would occur … or when his mania would have a cessation, a retrocession of feeling … he would abandon temporarily the enterprise upon which he had been engaged. And then when the surge of hate and desire of the mania would come over him again, it would seek … gratification.”

  The Denver lawyer mopped the sweat from his face, analyzed the evidence, and kept his oratorical flourishes to a minimum. Not so Darrow.

  Of all Darrow’s courtroom speeches, his summation in the Haywood case was arguably the most brilliant, and dangerous. Conventional wisdom called for a careful dissection of the prosecution’s case. And Darrow did much of that. But primarily he sought to put it all in context: to place Haywood and Orchard and Steunenberg in the grand sweep of history—to catalog capitalism’s sins and justify the miners’ rebellion, even to the point of bloodshed. If its central purpose was to save Haywood’s life, it was a perilous gamble.

  “Preaching socialism and trying a law case are entirely different matters,” Richardson said later. “Darrow’s closing speech before the jury … was rank. It was enough to hang any man, regardless of the fact of his innocence or guilt.”13

  Yet Darrow had spent months observing, from a few feet away, the twelve men in the jury box. Now, he wagered, he could touch their hearts. On Wednesday morning, July 24, he took his favored position, at the iron foot rail, an arm’s length from the jurors. His jacket was unbuttoned; he wore no vest. His hands were shoved in his pants pockets. “He stood big and broad-shouldered, dressed in a slouchy gray suit, a wisp of hair down across his forehead, his glasses in his hand, clasped by the nose piece,” Haywood recalled. “Whi
le he spoke he was sometimes intense, his great voice rumbling, his left hand shoved deep in his coat pocket, his right arm uplifted. Again he would take a pleading attitude, his voice would become gentle and very quiet.”

  Harry Orchard was everything that the men of the West despised. He “never did a courageous thing in his life, not one,” Darrow said.

  If his story is true he sneaked through the dark passages of the mine … when he blew up the Vindicator. If his story is true he sneaked back in the darkness and put the box of powder under the [Independence] station and ran away in the night when he killed fourteen men.…

  If his story is true he met a man coming out of a saloon, drunken at midnight and killed him without a chance or a word … If he has told the truth he sneaked up the back stairs and poured arsenic or strychnine in milk to poison a man and his wife and little babe. If it is true, he went up in the night and he laid a bomb at Steunenberg’s gate and then he ran back in the darkness.…

  Will you show me the act that was not the act of a sneaking craven coward in this man’s life?

  “What do you think?” Darrow asked the twelve men. “Has he been promised anything … for delivering these three enemies of the Mine Owners’ Association? …

  “He is living, isn’t he? He looks fat and sleek and healthy and not in any danger of any sudden death.

  “If, to save his miserable carcass, he had not turned to kill three men, the grass would have been growing above his grave for twelve months past,” Darrow said. “Is there any doubt about that?”

  Darrow was on the move, pacing back and forth before the jury, or leaning forward and speaking to them, one by one. At calculated moments he let loose, waved his arms, offered his exaggerated shrugs, or crouched, twisting, like a boxer. At one point he stopped, turned to the jury, and confided, “I am going to take a chance, and talk about religion.” He ridiculed the testimony about Orchard’s conversion and scorned the “sickly slobbering idiots” who viewed it as a sign from God. “I do not believe in miracles,” he said. “You can’t take his crooked brain and his crooked, dwarfed soul, and make it over again in a second.”

  Shortly before noon court was adjourned, to wait the cooler breeze of evening. Long before the six p.m. start, the room was packed. Some four hundred people were turned away. By special arrangement, the court had saved fifty seats for a group of “young women school teachers” from the country.

  Darrow’s references to Christianity were spurring protests from some in the audience, and the bailiffs had to quiet them. In time, sucking on lozenges to ease his hoarse voice, Darrow left the Good Book behind. As Haywood watched approvingly, with a flushed face and a hard-set jaw, Darrow told the tale of the Federation’s struggle.

  If for any reason a thousand men deliberately determined to go and blow up the Bunker Hill mill then it needed blowing up. You need not tell me that a thousand of Idaho citizens, the brawn and sinew of Idaho, were criminals and murderers. Men don’t act that way. They only act that way upon great provocation.…

  I don’t mean to tell this jury that labor organizations do no wrong. I know them too well for that.…

  But I am here to say that in a great cause these labor organizations—despised and weak and outlawed as they generally are—have stood for the poor, they have stood for the weak.…

  They stood for the father who was bound down with his task; they stood for the wife threatened to be taken from the home to work by his side; and they have stood by the little child who has also been taken to work in their places, that the rich could grow richer still. And they have fought for the right of the little one to give him a little of life, a little comfort while he is young.

  I don’t care how many wrongs they committed—I don’t care how many crimes these weak, rough, rugged, unlettered men, who often know no other power but the brute force of their strong right arm, who find themselves bound and confined and impaired whichever way they turn, and who look up and worship the God of might as the only God they know. I don’t care how often they fail, how many brutalities they are guilty of.

  I know their cause is just.

  The second session ended at nine p.m. Many in the press were astonished; they could not decide if they had seen Darrow “skillful, artful, accomplished, weighing the effect of every word,” Carberry wrote, or “reckless by risking his cause upon the chance of inflaming the passions of the jurors.”14 The trial resumed on Thursday morning, and once more Darrow spoke all day, his voice hoarse and husky. Around four p.m., trembling, wrought with emotion, he neared the end, and began his famous peroration. He seemed to stumble as he approached the jurors, this last time, and apologized to them for his failing strength. They stopped rocking in their chairs, and hung on every word as he spoke once more of Harry Orchard.

  “I don’t believe that this man was ever loyally in the employ of anybody,” Darrow said. “I don’t believe he ever had any allegiance to the Mine Owners’ Association, to the Pinkertons, to the Western Federation of Miners, to his family, to his kindred, to his God or to anything human or Divine.

  “He was a soldier of fortune ready to pick up a penny or a dollar or any other sum in any way … to serve the devil if he got his price, and his price was cheap,” said Darrow. “He never did get a good price for trying to kill a man until McParland got a hold of him … and told him the value of killing a man … his life for Haywood’s.”

  “There is nothing in this case but Orchard. Orchard, an unspeakable scoundrel; Orchard, a perjured villain; Orchard, the biggest coward on record; Orchard, shifting the burden of his sins upon these men to save his life,” he told the jurors. “If you men can kill my client on his testimony, then peace be with you.”

  As for Haywood, “I don’t claim that this man is an angel. The Western Federation of Miners could not afford to put an angel at their head. Do you want to hire an angel to fight the Mine Owners’ Association and the Pinkerton detectives and the power of wealth? Oh, no gentlemen; you better get a first class fighting man who has physical courage, who has mental courage, who has strong devotion, who loves the poor, who loves the weak, who hates iniquity and hates it more when it is with the powerful and the great,” said Darrow. “An angel would not be fitted for that place and I make no claim of that.

  “But he is not a demon. If he were a demon or a bad man he would never be working in this cause, for the prizes of the world are somewhere else,” Darrow said.

  He had been speaking, over two days, for eleven hours. He was almost sobbing now and his cheeks, and those of many in the courtroom, including some jurors, were tracked with tears. He grasped the edge of the table for support.

  I have known Haywood—I have known him well and I believe in him. I do believe in him. God knows it would be a sore day to me if he should ascend the scaffold …

  But … other men have died in the same cause in which Bill Haywood has risked his life. Men strong with devotion, men who love liberty, men who love their fellow-men have raised their voices in defense of the poor, in defense of justice, have made their good fight and have met death on the scaffold, on the rack, in the flame, and they will meet it again and again until the world grows old and gray.

  Bill Haywood is no better than the rest. He can die, if die he needs. He can die if this jury decrees it; but, oh, gentlemen, don’t think for a moment that if you hang him you will crucify the labor movement of the world; don’t think that you will kill the hopes and the aspirations and the desires of the weak and poor.

  You people who are anxious for this blood, are you so blind as to believe that liberty will die when he is dead? Do you think there are no other brave hearts and no other strong arms, no other devoted souls who will risk all in that great cause which has demanded martyrs in every age of the world? There are others and these others will come to take his place; they will come to carry the banner where he could not carry it.

  Gentlemen, it is not for him alone that I speak. I speak for the poor, for the weak, for the weary, for that long
line of men who, in darkness and despair, have borne the labors of the human race. The eyes of the world are upon you—upon you twelve men of Idaho tonight. Wherever the English language is spoken or wherever any foreign tongue known to the civilized world is spoken men are talking and wondering and dreaming about the verdict of these twelve men that I see before me now.

  If you kill him your act will be applauded by many. If you should decree Bill Haywood’s death in the great railroad offices of our great cities men will sing your praise. If you decree his death, amongst the spiders of Wall Street will go up paeans of praise for these twelve good men and true who killed Bill Haywood. In every bank, almost, in the world, where men wish to get rid of agitators and disturbers, where men hate him because he fights for the poor and against the accursed system upon which they live and grow rich and fat—from all those you will receive blessing and praise, that you have killed him.

  [But] there are still those who will reverently bow their heads and thank these twelve men for the life and character they have saved. Out on our broad prairies where men toil with their hands, out on the wide ocean where men are sailing the ships, through our mills and factories, down deep under the earth, thousands of men and of women and children—men who labor, men who suffer, women and children weary with care and toil—these men and these women and these children will kneel tonight and ask their God to guide your judgment. These men and these women and these little children—the poor, the weak and the suffering of the world—will stretch out their hands to this jury and implore you to save Haywood’s life.