The McNamaras had no illusions about their chances. In court that week, after Bordwell issued yet another unfavorable ruling, James had murmured to Darrow: “You might as well get a rope.” Each brother agreed to plead guilty, but only if it saved the other. James would confess if the state would drop its charges against John, and John would plead guilty to save James from hanging. There the bargaining stood—initiated, progressing, but not conclusive—on the morning of Tuesday, November 28, when Bert Franklin, Darrow’s top jury investigator, was arrested on the corner of Third and Main streets, in the act of bribing a juror—as Darrow stood there, watching it go down.21
FRANKLIN WAS A former federal marshal and detective, an undistinguished hanger-on with the local courthouse gang. He had been given the job of taking the lists of potential jurors and compiling reports on their loyalties, backgrounds, and beliefs. But he did more than draw up the book. As in Idaho, the defense team sought to frighten off undesirable jurors by warning them of the expected length of the trial, or of the violent passions the conflict would unleash. And, in league with someone on the McNamara defense who supplied the money, Franklin set out to buy jurors.
In early October, Franklin made a $400 down payment to juror Robert Bain, a seventy-year-old Civil War veteran who agreed to take $4,000 to vote not guilty. Just to be sure, the brazen Franklin approached a half dozen other jurors and reached a second $4,000 deal with a former sheriff’s department employee named George Lockwood, who alerted Fredericks. As he paid off Lockwood, Franklin was arrested by Detective Sam Browne—just as Darrow crossed Main Street to join them. Browne pushed Darrow aside and hustled Franklin away. A few moments later, at the courthouse, Darrow asked the detective: “My God, Browne. What is all this?”
“You ought to know what it is,” Browne replied. “It’s bribery.”
“My God, I wouldn’t have had this happen for the world,” Darrow said. “If I had known this was going to happen this way I never would have allowed it to be done.”22
Franklin’s arrest spurred huge headlines in the city’s newspapers. “We gave him no such sum of money for any such purpose,” Darrow told reporters, and the initial news stories did not mention Darrow’s presence at the scene. But it was a huge blow and stoked Darrow’s desire to settle the case. He told Steffens to assure “your people,” as he liked to call the business leaders, that the defense still wanted a deal. Nockels arrived in Los Angeles and was briefed. Steffens convinced a roomful of civic leaders to accept the settlement. And Fredericks, after consulting his political advisers, agreed on the final terms. The state would accept James McNamara’s plea and ask the judge for clemency, said Fredericks, if John pleaded guilty to the lesser charge of ordering the Christmas, 1910, bombing of the Llewellyn Iron Works.
Now the brothers had to give their consent. On Thursday, which was Thanksgiving Day, their supporters treated the McNamaras to a fine turkey dinner, with dessert and cigars, in the city jail. The brothers spent the rest of the day listening to Darrow and the other lawyers.
“I am thinking of you, J.B.,” said Darrow.
“Yes,” said James, “and I am thinking of you, Darrow.” Both of them knew the plea would injure labor, and that labor would look for, as Older had put it, “a goat.”
James held out for most of the day, knowing how John’s confession would hurt the union cause. Davis warned him that unless he pled guilty, the state would hang John too. And Darrow promised him that if the brothers pled guilty, the state would not prosecute Tvietmoe and the other California labor leaders. Joseph Scott had a priest summoned, who spoke quietly to James. Ultimately, John McNamara threatened to plead guilty on his own, if need be, to save his brother’s life. “I was overwhelmed by a two hundred thousand dollar defense, with a constant nightmarish fear, that there was great danger of taking the San Francisco ‘labor leaders’ with me,” James recalled. On Thanksgiving night, Davis went to see Fredericks at home. The district attorney brought out cigars, and they confirmed the deal.23
SOMEHOW, THE SECRET kept. Reporters were puzzled when the next morning’s session was postponed until the afternoon and then convened with two notable features: the grim expressions of the defense attorneys and the unusual presence of John McNamara, who had not been attending his brother’s trial.
James and John chewed gum. Darrow sat at the end of the long defense table, looking anxious and gnawing on a pencil. First James and then John withdrew their pleas of not guilty and, when asked by Bordwell, declared themselves guilty.
The judge ended the short session, and Darrow tried, without much success, to put himself between the reporters and the McNamaras. Darrow looked stricken, like a hunted animal, the Times reported. “I did the best I could,” he said. “I am very tired, worn and sorrowful … I hope I saved a human life out of the wreckage.”
Darrow made his way through the crowd of sullen socialists and laborites, out to where, the Times chortled, the gutters of Los Angeles were littered with discarded Harriman campaign buttons. Darrow had done a lawyer’s duty. With time running out and the defense staggering from reversals, he took advantage of the opportunity created by Harriman’s campaign to save James McNamara’s life, and perhaps John’s as well. “All this evidence is against them, and I didn’t know it when I undertook the case, and now … I must save these men,” Darrow told Sara, who had clung to Larry Sullivan, weeping, when the brothers pled guilty.
Harriman had not been warned. Later that day, he and his campaign manager, Alexander Irvine, met with Darrow at their offices. Why was he not informed? Harriman asked. They didn’t have the heart to tell him, Darrow said.
“Was it part of the bargain that this plea should be made before the election?” Irvine asked.
“It was to be made at once,” Darrow acknowledged.
Friends of labor—even tough men like Gompers and Johannsen—were staggered by the news.24 Martyrs were useful, and some union leaders, like Johannsen, blamed Darrow and the brothers for not taking the battle to the limit, even at the cost of a life or two. “That’s the way they are, you fight for them and they turn on you,” Johannsen told Hapgood. “But I love them, the poor slaves.”25
Gompers was dozing on a train when a reporter came aboard at a New Jersey station and told him. “I am astonished at this,” Gompers sputtered. “We have had the gravest assurances given to us by everyone connected with the trial, either directly or indirectly, that these men were innocent … The cause of labor has been imposed upon by both supposed friends and enemies.”26
Darrow and Nockels sent wires to Gompers, explaining the necessity of the plea. “There was no avoiding step taken today,” Darrow wrote. “When I see you I know you will be satisfied that all of us gave everything we had to accomplish the best.” But Gompers would never forgive Darrow. Labor needed a fall guy. “Angered and injured,” said Steffens, “it seeks somebody to blame and kill.”
His friend Peter Sissman later asked Darrow why he had not kept fighting in court, hoping, perhaps, for a hung jury. “Whose lawyer was I?” Darrow asked Sissman. “The McNamaras had the right to know the case looked bad and they would probably hang … I felt they had the right to choose to save their own lives.”
From the beginning, Darrow was candid with Gompers about the difficulties they faced in Los Angeles; the cost of the case, and his fear they would ultimately lose. He apparently thought these were winks enough. He never did tell Gompers that the McNamaras were guilty, Darrow said, “for Mr. Gompers never asked me.” Furthermore, he said, “as their attorney I could not have told Mr. Gompers without their consent.”
Which may not have been forthcoming. “I was fighting for my life … I would have been a fool to confide my guilt to anyone, and it would have been unfair to Gompers to make him carry around any secret confession of mine,” said James McNamara. At some point, as the evidence against them accumulated, the interests of the brothers ran counter to the interests of the labor movement. “I am sorry to have put [Gompers] in a fix by sticki
ng to my defense for so long,” James said, but “I was working to help in my way, and I could not turn down the money for defense when it came without putting the noose around my neck.”27
The shock that Gompers showed at the news of the guilty plea seems genuine, but it is hard to believe he was so out of touch as to not suspect the McNamaras. The documents seized in Indianapolis show that the bombing campaign was a topic of correspondence among union leaders across the country. If Gompers did not know, it was because he didn’t want to know, and because others, like Darrow, were shielding him.
Franklin’s arrest had wreaked havoc in the McNamara defense and was, several critics maintained, the real motivating factor in Darrow’s eagerness to cut a deal. Bordwell said as much after sentencing the brothers to prison. “The public can rely on it that the developments of last week as to the … attempted bribery of jurors were the efficient causes of the change of pleas,” he announced.28
Some questioned whether Darrow pled the brothers guilty to save himself. “Darrow is very dangerously near the jury and witness corruption and he is very apprehensive that the connecting link exists,” Lawler told the attorney general. “He has induced the defendants to assume their present attitude for the purpose of using it as a bargain on his own behalf.” If so, Darrow played his cards badly. On January 29 he was indicted for bribery.29
Chapter 12
GETHSEMANE
So fade our dreams, so fall our ideals, so pass our stars.
On a dreary night in December 1911, cowed by shame and fear, Darrow showed up at Mary Field’s apartment and sat down at the kitchen table.
He pulled a bottle of whiskey from one overcoat pocket and a revolver from the other. Warily, she brought two glasses and he poured.
“I am going to kill myself,” Darrow said. “They are going to indict me for bribing the McNamara jury. I can’t stand the disgrace.”
Mary had to talk fast. Suicide would be wrong, she said. It would be an admission of guilt and cede victory to his enemies. He must fight on.
She persuaded her distraught lover to put the gun away. He slipped it in his pocket, picked up the bottle, and walked out into the rain.1
ON ELECTION DAY, Judge Bordwell had sentenced James McNamara to life imprisonment and given John McNamara a fifteen-year term in San Quentin. When the ballots were counted, Job Harriman had lost the mayor’s race by thirty-four thousand votes.2
Otis could not keep from crowing. “The confession of the McNamaras and the defeat of Harriman … saved our city from the disgrace and disaster of socialistic rule,” said the Times on New Year’s Day. “Boycotting, picketing, assaulting and dynamiting are at an end … Industrial freedom reigns supreme.”3
Attention now turned to the jury-bribing case. The McNamara defense team had paid Bert Franklin’s bail, but it seemed just a matter of time before he cut a deal with the prosecutors. “I have practiced long enough to know the influence of a threat of the penitentiary on a man. And I feared just what … happened,” Darrow recalled. “That he would be offered his liberty to turn me over.” It was a gloomy holiday season. In letters from Los Angeles, Darrow and Ruby conveyed their anxiety even as they sought to reassure their friends and families that everything was fine. “There is nothing to worry about,” Ruby told Paul. His father was “more than half anxious to be arrested and given a hearing and a chance to set himself right publicly.” But even as she wrote, her bravado crumbled. Darrow was counting on Paul to “stand by … him,” she wrote. “I am going to stay with the thing and stand by D to the last ditch … So be game yourself … and depend on whatever is necessary.”
Franklin agreed to testify for the state in mid-January. To Mary and members of his family, Darrow suggested that it might be “for the best” if he was convicted. Labor would have its martyr. He would have time to write in prison, to “do my best work and perhaps it is necessary.” But then he waved away such thoughts. “Still I shall resist,” he said.
And then Darrow did one of the harder, but smarter, things in his life: he hired Earl Rogers to defend him.4
“BERT, WE DO not want you, we want those behind you,” the prosecutors told Franklin. And he boasted, accurately, to reporters: “You can take it from me. Bert Franklin never will go to the penitentiary.”
But the state lacked corroboration. There were no witnesses to the incriminating conversations that Franklin claimed to have had with Darrow, nor was the money trail conclusive. And so, like their counterparts in the Steunenberg case, the prosecutors decked the crimes with the ornaments of conspiracy. They spent much of their time and money investigating tangential matters that made Darrow look awful but had nothing to do with the charge of bribery. The defense that Earl Rogers led was tailored to defeat this kind of case. A wandering presentation by the state gave a savvy defense attorney an opportunity to drench a jury in distraction. And if there ever was a lawyer who could beguile and bewilder jurors, ever an attorney who could transform a courtroom into a circus, it was Rogers. “He believed implicitly in showmanship,” his daughter Adela recalled. “Dad always held the center of the stage.”
Rogers was the son of a preacher man, a rascal and a dynamo and a drunk. Lean and handsome, with black hair and penetrating blue eyes, he was a superb assayer of courtroom psychology. He came to court meticulously dressed—in fawn waistcoat, spats, a rich cravat, bat-winged collar, and a gardenia boutonniere. At home he favored Chinese robes or a wine-red velvet dressing gown. He twirled a walking stick, tucked a handkerchief in his sleeve, and, instead of eyeglasses, relied on a lorgnette, which he would hold to his eyes to stare down a witness, then twirl on its ribbon and flip into the pocket of his cutaway coat. Elegant, but no mannequin.
Rogers roamed the courtroom as he questioned witnesses, gesturing and dashing and amusing the jurors with sarcastic asides that brought prosecutors to the brink of fistfights. “If the seat next to me was vacant, I might find Rogers in it,” the young newsman Hugh Baillie recalled, “asking questions of a witness while he read my dispatches and attempted to edit them.” Rogers’s smiles could be kind or wolfish; his voice like an electric bolt, or mellow as virgin oil. John Barrymore studied Rogers for acting tips. He was famous for his dramatic and at times precedent-setting use of forensic evidence—as in the case where he brought the pickled guts of a homicide victim into court to demonstrate how a bullet had traveled through the entrails.
Once, in a trial on Catalina Island, the only eyewitness to a murder swore that he sat at a card table, calmly watching as the accused killer shot a player in the game and then pointed the gun at him. At the peak of his closing address, Rogers pulled out a Colt .45 and aimed it at the district attorneys, who dove beneath their table. It was the only human reaction in such a situation, Rogers told the jury: the witness must be lying.
Rogers represented more than his share of sleazy Angelinos—fat little millionaires who shot their wives, corrupt railway magnates, notorious gamblers, and the like. Every crime reporter in the city relished the story of how Rogers, after winning one client his freedom, declined to shake hands and barked: “Get away from me, you slimy pimp. You’re guilty as hell.”
He was a frontier type—an individualist who had no qualms about helping the M&M crack down on the striking workers in the summer of 1910. Yet he was a Democrat, with a streak of populist in him, born perhaps from recognition of his own weakness. He was apt to vanish on benders, forcing the teenaged Adela to comb the better brothels of the town in search of the daddy she adored. One day the booze would get him, and Rogers would die in a flophouse—a victim, his daughter wrote, of “the strain, the pressure, the strange immoral mesmerism of criminal law.” But he was still at the peak of his powers in 1912.5
Before asking Rogers to represent him, Darrow took Ruby to the small town of Hanford, where they watched him clinch a case involving a contested inheritance. Mrs. Darrow’s haughty ways quickly enrolled Adela, then seventeen, in the women-who-hate-Ruby club. And though Rogers told his daughter th
at Darrow’s lax grooming habits were in part a calculated tactic to demonstrate solidarity with the common man, she found the rumpled suits and dirty fingernails offensive.6 Friends of both men were confounded at the news of their collaboration. “The thing that … shocked me was that you should employ such a notorious corporation corruptionist and all around capitalist retainer,” Debs told Darrow in an otherwise affectionate letter. It was no doubt a sign of peril, Debs wrote, that Darrow had been “driven to engage the lead-wolf, to escape the pack.”
Rogers, for his part, was accosted by pals like Lawler and Times reporter Harry Carr. Rogers had been in his office, across the street from the Times, on the night of the bombing. He had burned his hands helping victims flee the inferno and lost a friend in C. Harvey Elder, the editor who jumped from a window. But “they’ve caught Darrow in a trap, a nasty, cold-blooded, planned, baited trap. I am against traps,” Rogers told Carr. “An informer is the chief witness against him. I am against informers.”
“You obstinate, sentimental Irish bastard,” Carr said.7
THE SIREN FAME drew Rogers to Darrow’s side, and admiration for the champion of underdogs. It surely was not money. The AFL had stopped payment on the final $10,000 draft that Darrow requested in the McNamara case.8 The Darrows would have to survive on their own while trying to save something for Ruby to live on, should he be imprisoned at San Quentin. The two counts of bribery would be tried separately, and even if Darrow was acquitted in the Lockwood case Fredericks could try him again on charges of bribing Bain. Years might pass before he was receiving rather than paying out legal fees, and only then if he was not disbarred. “Hard times are coming on,” Darrow told Paul. “I may never be able to make any more money.”
Clarence Darrow: Attorney for the Damned Page 29
