Clarence Darrow: Attorney for the Damned

by John A. Farrell

  Darrow also relished fame, and the McNamara case was a famous case indeed. And he needed a big fee. He was $25,000 in debt, he told Paul, for his reckless investment practices had caught up with him again. In another dubious gold mine deal, he and three associates had pledged $300,000 to buy the Alto digs in Calaveras County, in northern California, and been swindled of $175,000. He had lost money, as well, in an Illinois brick company, and was still sending money to the Greeley gas company. The firm had promise, but its receipts were disappointing. “It seems to me that Greeley won’t make us very rich,” he told his son.

  During their earlier stay in Los Angeles, Ruby had enjoyed California’s warm nights, fruit trees, and abundant flowers, and was willing to listen to Darrow’s “talk” about moving there. But by now she was aware of her husband’s deficiencies as a speculator. “Maybe a ranch will be a better gamble than a mud mine or an imaginary wheat field,” she told his sister Jennie. Of one business deal that Darrow had turned down, Ruby reported, “It’s the only wild cat scheme that I … [ever] knew Clarence to resist.”

  “He had a period where he was eager for money. Part of it he wanted for sinking into the Greeley gas company,” his old law partner Francis Wilson recalled. “He … thought he could win the case in a couple of months and get the money.”7

  Sam Gompers, meanwhile, was digging himself a hole. “That organized labor had anything to do with it, I most emphatically deny,” the AFL chief said, while the ashes of the Times were warm. “I will never believe any of the boys placed or exploded that dynamite.”

  At first, Darrow said he was only giving advice. His health would not allow him to represent the McNamaras, he told reporters, then left for Indianapolis to meet with forty of the nation’s labor chieftains. The following morning, leaders of the bricklayers and the teamsters, the ironworkers and the machinists, the barbers and carpenters and other trade unions heard Darrow out. They pressed him to take the case, and he was blunt. The fight might be necessary, but it would be arduous and demand all of organized labor’s attention, energy, and fundraising ability.

  On April 26, Darrow wrote to Whitlock. “I go at it, if I do, with fear and forebodings—I dread the fight & am in the dark. If I could avoid it I would, but how can I—they are my friends & in trouble & have an insane faith in me & I don’t see how I can disappoint them much as I tremble at the plunge,” he said. “I feel like one going away on a long & dangerous voyage.”

  Gompers came to Kankakee, where Darrow was trying a case, to see him. Darrow said that to properly defend the McNamaras, he would have to move to California and forfeit all other work and income. Defending the brothers would cost the unions more than $300,000, Darrow said, with $50,000 of that as his fee. Gompers blanched, but acceded. Darrow received a retainer of $5,000, and the AFL announced to the press that Darrow would conduct the defense.8

  DARROW ARRIVED IN Los Angeles on an overnight train from San Francisco in late May after meeting with Tvietmoe and Bay Area labor leaders and radicals. Before leaving for the coast, he and Ruby had dined with Hamlin Garland. Darrow was “bitter, bitter and essentially hopeless,” Garland told his diary. “I can not find that he has any ideals or convictions left.”

  In Los Angeles, Darrow joined the irrepressible Johannsen, who had been running the citywide strike for Tvietmoe. He met with his clients, and began to assemble a team of lawyers and investigators. “From the moment I met him I knew I was in the presence of an actor who would never forget his public role, never remove his makeup,” a reporter, Hugh Baillie, noted. “He could shamble, or stride vigorously, as the occasion demanded, use his smile as a gesture of gratitude or as a formal grimace. He could weep at will—real tears.” Baillie found arrogance, as well as pretense. “When he spoke, you listened. He expected it, and talked in the leisurely manner of a man who knows he won’t be interrupted,” the newsman recalled.

  The rest of the legal team was drawn from the California bar. The local attorneys were an eclectic but impressive lot, and all would play noteworthy roles in the upcoming drama.

  A highly regarded defense attorney, forty-seven-year-old LeCompte Davis, lent his expertise on the city’s criminal court system. He was a former prosecutor, and a seasoned defender who was known for his spirited efforts in fraud and murder cases. He shared many of Darrow’s political and literary tastes, and his wife, Edythe, got along with Ruby: the two couples would socialize and go on trips together.

  Job Harriman, fifty, was a different kind of cat entirely. He was a devoted socialist who had come to California from Indiana, run for governor in 1898, and shared the socialists’ national ticket with Debs as the vice-presidential nominee in 1900. Harriman was a dreamer who in the years ahead would organize utopian colonies in California and Louisiana. During the strikes in the summer of 1910, he had defended those who were arrested under the city ordinance that banned them from picketing, demonstrating, or “speaking in public streets in a loud or unusual tone.” The socialists then named Harriman as their candidate for mayor, and he had surprised Los Angeles with an effective campaign.

  Joseph Scott, forty-four, was the English-born son of a Scottish father and an Irish mother. He was a pious Catholic, a father of eleven children, a lifelong Republican, president of the local Chamber of Commerce, and director of a local bank. He was welcomed by Darrow for his respectability and appeal to Catholic jurors. And Cyrus McNutt, seventy-four, was a former Indiana judge and law professor who had come to Los Angeles to retire a decade earlier, but found himself drawn into the practice of law. He was kindly, a staunch Democrat, and could help stop the evidence seized in Indiana from being used against the McNamaras in California.

  Harriman had secured a fine suite of offices on the ninth floor of the elegant Higgins Building at the corner of Second and Main Streets, overlooking St. Vibiana’s Cathedral. The ten-story concrete Beaux Arts building, with its mosaic-tiled floors, lobby clad in Italian marble, and soaring ceilings, had just opened to the public. It was designed to be “absolutely fire and earthquake proof,” a selling point in the wake of San Francisco’s 1906 quake. It housed the anti-Prohibition campaigns of the Association of Liquor Dealers and the offices of the Women’s Progressive League, which held luncheons on its rooftop.

  After settling these initial matters, Darrow returned to Chicago to dissolve his law firm and then moved to Los Angeles with Ruby at midsummer. They rented a house on Bonnie Brae Street. Davis and his wife held dinner parties to introduce the Darrows to “a set of intellectual, social people of excellent standing,” Ruby recalled. She was less enthused about the dinners hosted by the Catholic Joe Scott and his Jewish wife, where the guest lists leaned heavily toward “priests and politicians.”

  In July, Darrow reported to Paul that he had “a good crowd with me” in Los Angeles. “Am a little more hopeful,” he said, “but it is tough enough and desperate—shall be surprised at nothing.” The members of the defense team were fine men, but none was close enough to Darrow for him to confide in, or to save him from rash mistakes. Two friends who might have done so declined his invitation to join him in Los Angeles. One was Whitlock, who was now mayor of Toledo. The other was Charles Erskine Scott Wood.9

  TALL AND HANDSOME, with a grand tousled mane, Erskine Wood was another rebellious libertarian laboring in the law. He had graduated from West Point and served ably in the West. After picking up a law degree from Columbia University he settled in Portland, Oregon. There, Wood developed an epicurean delight in wine, gardening, artwork, food—and women. Though married with five children, Wood bristled in the grasp of respectable society, and carried on a series of adulterous affairs. Like Darrow, he was a man of contradictions. He came from a family of privilege, and represented banks, railroads, and other avaricious clients. Yet he defended Emma Goldman and the Wobblies on free speech cases. Politically, Wood argued for “absolute personal liberty”—a benign kind of anarchy—and endorsed free love.

  “I rebel against the suppression of the individual,
the lack of freedom and the falsity, the hypocrisy of the smooth successful life. I rebel against all the ideas of sex that it is wicked, low, vulgar, that it is to be suppressed and made little and base … I rebel against the praise of submission to authority and I preach the gospel of rebellion,” Wood wrote in his journal. “Deliver me from your smooth-shaven, flabby-cheeked human octopus, the rich respectable man.”

  The local newspaper, the Oregonian, smelled hypocrisy. “It is the habit with Mr. C. E. S. Wood to boast that he is ‘an anarchist,’ ” one editorial noted. But this “unusually elastic” man was “exceedingly fond of the rich among whom his select associations lie. No moth flies more industriously about the arc lights.”

  Darrow admired Wood. They had met before the Haywood saga and worked together in the defense of a San Diego banker who was under investigation for fraud in Portland. In the course of that case, Darrow offered his philosophy about billing. “You are the one who prevented this indictment … it should stand a good fee,” Darrow wrote his friend. “Of course, the law is a con game and there is no way to tell what a thing is worth and yet this service has been valuable to him, and I feel that no one else could have done it.”

  It was Darrow who forced Wood to confront his contradictions. In the spring of 1910, Mary Field’s brother-in-law, the Reverend Albert Ehrgott, was hired by a Baptist congregation in Portland, and her sister Sara and the couple’s two young children prepared to move from Cleveland to Oregon. Portland was a provincial burg—“a little town of little minds,” as Louise Bryant put it. Sara was near tears, and Darrow sought to console her. He agreed that, when it came to intellectual discourse, Portland was “pretty benighted,” but told her: “There is one man there of our stripe. He is a great liberal, a poet and an artist.”

  One June day, as she was working in her garden, a taxi plowed through the mud of her unpaved road, and out got Darrow.

  “I want you and your husband to come to dinner and meet my friend Wood that I’ve told you about,” he said.

  “Oh, Darrow,” she said, still resisting. “I haven’t got any decent clothes.”

  “Oh, I’m sure you can arrange it all right, and were going to dine in a very bohemian place. You can wear any old thing at all.” He smiled and drawled, “You know I have never been a fellow that dressed up very much.”

  Wood had begged off too, saying he had promised to spend the evening with his wife. “Can’t you get out of it?” Darrow said. “Why don’t you just lie to her? I find that’s the easiest way.”

  Wood was not enthralled with the notion of spending a night with a minister and his wife, but Darrow assured him, “Listen, she’s one of us.” They went to a restaurant called the Hofbrau, and Wood brought along his secretary, who, Sara would later discover, was then his mistress. After the dinner, the Reverend Ehrgott left for a meeting but the rest retired to Wood’s office, with its great solid desk and plush Oriental rug, where Darrow read to them from a book of Galsworthy short stories.

  Sara had volunteered to work on the Oregon suffrage campaign. Its headquarters was convenient to Wood’s office, and he asked her to edit his poetry. There, he read to her from a book about free love. It was not “an advocate of a sort of merry-go-round of partners,” but a “philosophical” volume, which helped persuade her that “I was not doing the selfish thing in considering that I must be free, but was also preparing a freer and better life for the children,” she recalled. “Of course, the psychologist might think that this was wishful thinking.” After weeks of sexual tension, they began their affair. Sara was twenty-eight; Erskine, as she called him, was thirty years older.

  Wood thought of himself as nobler than Darrow, and turned down his requests to join in the McNamara defense. Darrow was doing what good Chicago lawyers did: looking for alibis, massaging witnesses, trying to decipher the prosecution case, and concocting alternate causes for the explosion. Though the grand jury that investigated the bombing found not “a scintilla of evidence” to support the theory of a gas explosion, Darrow plunged ahead, hiring experts and paying for a detailed model of the Times building, which he hoped to blow up, to promote that explanation. Wood thought him “unscrupulous.”

  “He is not making this fight for the cause of Labor—nor for the McNamaras—but for C. Darrow,” Wood told Sara. “And in this he is like the most of us lawyers. We prate of our fight for justice. We are fighting for our own glory and profit. Darrow’s glory and Darrow’s pocket is what he is fighting for.”

  Wood had many contacts in the West, and had heard about Darrow’s tactics in Idaho. “He will use bribery where safe, perjury where safe,” Wood told Sara. “He will manipulate and marshal labor all over the United States at psychological moments to appear in masses and mutter threats, arousing a bitterness, a recklessness meant to intimidate the jury in Los Angeles.”

  Wood’s suspicions were fed when Darrow asked him to vouch for Larry Sullivan, a detective known for his willingness to corrupt or intimidate witnesses. Sullivan was one of several dubious investigators hired by the defense, including lawyer John Harrington, a roly-poly figure from Chicago, and Bert Franklin, a hard-drinking former U.S. marshal in Los Angeles who was placed in charge of investigating jurors.

  And then there was Mary, whose editors had sent her to cover the McNamara trial. Darrow had tried to warn her away, noting that he was the subject of constant scrutiny. She felt hurt, but came anyway, resolving not to seek his company, and was surprised when he welcomed her lovingly to Los Angeles and turned to her for comfort, companionship, and sex. It was a reckless act—the move of a man tangoing with despair, seeking relief from relentless pressure. And Mary soon discovered why. Upon arriving in California, Darrow had found that all he feared about the case was true. The McNamaras were “guilty as hell,” he told Mary. He had “not a shadow of a chance” to prove their innocence, and feared they’d be put to death.

  “My God, you left a trail behind you a mile wide!” he told James McNamara.10

  DARROW TRIED TO turn the state’s star witness—Ortie McManigal—via a trick he had employed in the Haywood case. With an appeal to working-class solidarity, and wads of cash, Darrow persuaded Ortie’s wife and uncle to try to get him to repudiate the confession. They visited the jail and browbeat McManigal, and his wife threatened to take the children and leave him. He weakened, but ultimately refused to flip. “My wife has sold herself for a few thousand dollars of union money,” he told a Times reporter, between sobs. “The union’s attorneys in their efforts to save the necks of the McNamaras have broken up my home.” The bomber cut a deal worthy of Harry Orchard. In return for testifying, McManigal was freed, given employment by the state, and awarded “quite a substantial sum of money” by the grateful steel industry.11

  Harrington and Sullivan were sent to San Francisco to buy off witnesses. And Ruby’s brother Bert was called in to help, and given the task of spiriting Kurt Diekelman—a hotel clerk who could testify that James McNamara was in Los Angeles at the time of the bombing—to Chicago. Yet the Burns detectives frustrated Darrow’s agents in almost every instance. And Judge Walter Bordwell allowed District Attorney John Fredericks to deploy the grand jury to intimidate the defense. McManigal’s wife and uncle were subpoenaed and threatened with contempt of court, and Harrington was interrogated. Even square Joe Scott grew furious at the state’s tactics. He waved his fist in a detective’s face and threatened to beat his damned head off.

  Burns was no stranger to intrigue—a few months later, the U.S. Justice Department would charge that the detective had stacked the jury lists in a federal case in Oregon. “Weed out the sons of bitches who will not vote for a conviction,” Burns had told his agents. “No man’s name goes into the box unless we know that he will convict.” His operatives now sought jobs in Darrow’s offices. Detective Guy Biddinger met Darrow in the bar of the Alexandria Hotel and agreed—for $5,000—to inform on the prosecution. Some of the information he funneled Darrow was true, other bits were false: all was tailored to
sow discord. Darrow’s offices were “filled with detectives in our employ,” city detective Sam Browne bragged later. Darrow was too “close-fisted” with his staff, and they happily agreed to spy for the prosecution. “When a man needs to pull off crooked deals, it pays to be liberal,” Browne said. “Several of Darrow’s supposedly trusted men came to me for money. I slipped them some.”

  Soon, Darrow was seeing traitors everywhere. “We are having a fierce time,” he wrote Gompers. “Burns’s whole force utterly regardless of personal rights is everywhere in evidence intimidating, hounding, bulldozing—the grand jury kept constantly in session to awe every one who comes as our witness.” Money was an issue. “There is no way to try this case with a chance of winning without a great deal of money,” Darrow told Gompers in July. “The other side are spending it in every direction. Then they have all the organized channels of society—the state’s attorney—grand jury—police force, mayor, manufacturers association. Every one is afraid of the line up and there is little light anywhere.…

  “You know I never wanted to come. It is filled only with trouble for me,” Darrow said. “If the necessary things can not be done I must know that … I am very sorry to put any extra trouble on you—but what can we do? We all seem to think that organized labor must make this fight and I suppose it must.”

  Plans were made to launch a national fundraising campaign—docking each union worker in the country 25 cents for the McNamara defense fund. McNamara stamps and buttons were sold, and a motion picture was produced to raise money in working-class communities. But later that summer Darrow wrote to Tvietmoe, saying that of a promised $350,000 only $170,000 had been raised. He insisted that he needed $20,000 a month, and threatened to “quit the game” unless the AFL met its financial commitments. “I am simply not going to kill myself with this case and then worry over money and not know what to do,” Darrow said. Tvietmoe wired Gompers: “Darrow is anxious … Start machine. Keep flame burning.”