When Franklin was called to the stand, he entered the courtroom “looking jaunty and confident,” the newspapers said. As they strolled along a Los Angeles sidewalk on the previous October 4, he testified, Darrow told him, “It is time for us now to get busy with the jury.” They huddled the next day at the Higgins Building, where Darrow said: “We have been talking the matter over and have decided that $5,000 would be a proper amount to pay … for jurymen.” Franklin was to keep $1,000 and pay $4,000 to each corrupted juror. It was Darrow who suggested that Bain was a likely target, and who wrote out a $1,000 check for an initial payment. A few weeks later, said Franklin, Darrow instructed him to bribe Lockwood. There were no witnesses to these conversations, he said. Otherwise, he seemed credible.
Franklin was the prosecution’s most important witness, and it was absolutely essential that Rogers dent his story. But on the eve of his cross-examination, Rogers prepped for the duty by going on a bender. His employees and daughter searched his favorite bars and brothels and ultimately discovered him, shit-faced, in a whorehouse.
Darrow was looking for him too. “Is he drunk?” Darrow asked Adela, when he caught up with her.
“If he is, you’re enough to drive anyone to it,” she replied.
“I knew it,” Ruby sniffed. “He drinks secretly all the time. I can smell it on him.”
Yet Rogers had awesome recuperative powers. He strode into the courtroom at the appointed time, neatly dressed and shaved, with a haircut and a manicure.
Darrow chewed nervously on a piece of paper as Franklin finished up his direct testimony. He said that Job Harriman had gone to the bank and withdrawn $4,000 in $500 and $1,000 bills that morning, which Darrow then gave to Franklin. He described the fiasco on Main Street and said Darrow had warned him, “Bert, they are on to you” before Browne tugged him away. Had Darrow not intruded, Franklin said, he might have tried a “stunt”—seizing Lockwood himself, delivering him to the detectives, and accusing him of soliciting a bribe.
“You would have pulled off your stunt of turning Lockwood over to the police,” Rogers said, as he began the cross-examination. “That was your first attempt to get out of your crime by charging somebody else, was it?”
There were benefits in hiring the “lead wolf,” who had worked for the M&M and had sources all over town. In an astounding exchange, Rogers got Franklin to concede that he had not merely been promised immunity, evaded jail, and had his fines paid for him—he had been personally cajoled to turn on Darrow by a committee of the city’s leading businessmen led by General Otis’s good friends Felix Zeehandelaar and Reese Llewellyn, whose properties had also been targets of the union bombers. The corporate leaders had promised to reward Franklin if he testified against Darrow. “My future in this city was going to be a very difficult one,” Franklin said, “and I felt that those men, being friends of mine, would later on assist me … among businessmen.”
Ford objected to the line of questioning—a foolish move, for it allowed Rogers to respond with a speech, spelling things out for any juror who missed the point.
“Now we have … the chief witness for the prosecution, before he appears upon the stand … going up to the office of the Merchants & Manufacturers Association and there meeting a portion of their directors, their strike committee,” said Rogers.
“He must have been impressed by this body of distinguished gentlemen … assuring him of … things that would doubtless happen in the future,” Rogers said. “We have a right to know whether or not they were his friends, personally, or whether they were his friends because, perchance, he might come on this stand and testify in this case against … the champion of their opponents.”
Rogers was absent from court the next day—“resting,” the newspapers said. But Juror Golding raised his hand, asked the judge for permission to examine Franklin, and peppered the witness with questions that suggested the case was a frame-up, causing Franklin to respond with an unappealing testiness.
In deference to a summer heat wave, the trial was moved to a bigger, better-ventilated courtroom, where Fredericks set out to show a pattern of corruption in Darrow’s behavior. Guy Biddinger, the Burns detective, told how Darrow had given him $700, and discussed ways to hijack evidence. McManigal’s uncle related his efforts to get Ortie to retract his confession. Kurt Diekelman, the hotel clerk, gave his account of how Ruby’s brother had spirited him to Chicago. And when Johannsen denied that the McNamara defense had conspired to get David Caplan’s wife out of the state, he was confronted with coded telegrams he had sent updating Darrow’s team on Flora Caplan’s flight. Several talesmen from the McNamara trial were called to the stand, and told how they were offered bribes by Franklin. Witnesses traced the path of a $10,000 check from the AFL that Darrow and Tvietmoe had cashed in San Francisco for mysterious purposes. And the debonair Detective Browne, in his soft Southern accent, described his encounter with Darrow after Franklin’s arrest.
“Browne, this is terrible, for God’s sake,” Darrow told him. “Can’t you do anything for us?”
“You ought to have known better than to employ a man like Franklin; he is always drunk,” Browne replied.
“Do the best you can and I will take care of you,” Darrow had promised. It was, said the state, another attempt at bribery.
To cap its case, in late June, the prosecution called Harrington to the stand. Filling the witness chair with his bulk, Harrington told how the previous September, as they talked on the porch at the Bonnie Brae house, Darrow had pulled a roll of bills from his pocket, said it was $10,000, and vowed to use it to “reach” a couple of jurymen. “He said he had the check cashed in Tvietmoe’s bank in San Francisco so that the money could not be traced,” Harrington testified. “I told Darrow not to attempt such a thing, it would be his ruin.”
“I guess you are right,” Darrow had told him. “I won’t do it.” But on the day that Franklin was arrested, said Harrington, he recalled the incident and asked if Darrow had cause for worry. “Yes,” Darrow told him. “My God, if he speaks I am ruined.”
Darrow prepared his loved ones for the worst. “I am afraid there is no way to win,” he wrote Paul. In court, Darrow was “increasingly glum and grim; he felt mortified and resentful, heartbroken and trapped,” said Baillie. “He told me he thought that even Rogers believed him guilty.”22
Rogers parried, once again, with mischief and disruption. Harrington was an attorney and knew what made a good witness. During the cross-examination, instead of looking at Rogers, he addressed his answers directly, and earnestly, to the jury. Rogers “padded about the courtroom with the stealthy tread of a panther,” trying to break Harrington’s gaze, the Examiner reported. He urged Darrow, who was also up and wandering the room, to “make him look you in the eye.”
Inexplicably, Fredericks lost it. “May it please the court,” he told the judge. “We would like to have Mr. Darrow keep his seat.”
Why? “We maintain that Mr. Darrow is attempting to use hypnotism on this witness,” Fredericks said.
Hypnotism? “At the mention of the mystic Svengali art,” the Examiner reported, “a shout of laughter” went up from the spectators and the jurors. In moments of high tension, humor can trigger hysterics. Even the Times conceded that “the laughter and applause … exceeded anything” that longtime court employees could recall. The judge was forced to call a recess.
Fredericks was still smarting three days later, when Rogers and his co-counsel, Horace Appel, ganged up on him in an effort to obtain the transcripts of the dictograph recordings.
“Darrow never told me outright in words that he had anything to do with the bribing of jurors,” Harrington had conceded, when asked about their exchanges.
“If he had four or five conversations with Mr. Darrow … and Mr. Darrow told him that he had nothing to do with the bribery,” said Rogers, then the jury should see the transcripts.
Transcriptions were the confidential property of the state, Assistant District Attorney Ford replie
d, and “the public interests would suffer by disclosure of it at this time.”
“There is no such thing in a criminal case,” Appel argued. “The public interests will suffer, Your Honor, if an innocent man is convicted by suppression of the evidence.”
“There won’t be any innocent man convicted,” said Fredericks, unable to stay still. “It will come out at the right time.”
“Yes, it will come out as you are coming out,” said Appel, “and your conduct of the case.”
Fredericks had no use for Appel, a brilliant but crazed individual (he would end his days in an asylum) whose swarthy looks and accent reflected a Jewish-Mexican ancestry. He was from a different caste and adept at needling the prosecutor. A few days earlier, he had called Fredericks “cowardly.”
“Stop it!” Fredericks now told Appel. “I have stood this thing just as long as I am going to stand it. And I will stand it no longer.”
“Captain Fredericks!” said the judge. “Sit down.”
“If this is going to be a court of justice let us have a court of justice and if it is going to be a fight, then I will have a fight,” Fredericks said. He picked up a heavy glass inkstand and prepared to hurl it at Appel.
Rogers and Ford and the bailiff threw themselves on the furious prosecutor, and Rogers cut his wrist in the resultant scuffle.
“Do you include me in that?” Rogers asked Fredericks when the prosecutor was subdued.
“I do, Mr. Rogers,” was the reply.
Rogers threw out his chest, waved his bloody wound, and embraced martyrdom. “I just saved Captain Fredericks from committing a crime,” he said, “and I do not deserve it.”
On it went like a Keystone farce, with eruptions over which side had gunmen planted among the spectators, or whether Burns called Rogers a son of a bitch, or if the detective hid a sword inside his cane, or why Fredericks was a bigot for moving to dismiss a Mexican American bailiff who was popular with the jurors. “Now you can pick up your ink bottle,” Rogers taunted. Rogers, Fredericks, Ford, Appel, and Burns were all fined for contempt of court—and Rogers was briefly jailed—as Hutton tried, without much success, to keep order.
The judge was “a dear, sweet, weak, kind loving fellow,” Mary decided, but his rulings were “the laughingstock of the bar.”
FREDERICKS RESTED HIS case in early July, and Rogers began Darrow’s defense by reading the affidavits that Masters had collected from former mayor Carter Harrison Jr., an array of judges, past mayors, and U.S. senators, and other prominent Chicagoans. The city was like a rowdy clan whose siblings fight viciously among themselves but rally to one another’s side if threatened by an outsider. And Chicago was not about to let an upstart like Los Angeles mess with a favorite son.
Several witnesses—most notably Job Harriman—were called to rebuke Franklin’s testimony. A dozen men told how Franklin and Harrington—until they were flipped by the prosecution—had sworn that Darrow had nothing to do with the bribery plot. And a Harriman adviser, socialist Charles Hawley, testified that he telephoned the Higgins Building on the morning of November 28 to summon Darrow to the campaign headquarters, a half block from where Franklin was arrested. It gave Darrow his reason for being at the scene.23
The West Coast union leaders increasingly felt that their fate was linked to Darrow and put aside their anger over how he had conducted the McNamara case. There was no evidence, Johannsen had decided, that “Darrow was guilty of anything dishonorable or dishonest” in the McNamara settlement. Darrow had merely “broke down and lost faith and became a victim of his own cynicism.” Now the labor leaders strove to rebuild his nerve.
One night after dinner, Mary and Darrow accompanied Tvietmoe, Johannsen, and others to their hotel, where the union leaders, with whiskey and song, labored to help “poor broken Darrow” forget “his pain, his sense of failure.”
Tvietmoe paced the room, Mary recalled, “big thumbs looped in the armholes of his vest,” quoting verse from a Wild West poet.
More than half beaten, but fearless
Facing the storm and the night
Breathless and reeling, but tearless
Here in the lull of the fight;
I who bow not but before thee
God of the Fighting Clan,
Lifting my fists I implore thee,
Give me the heart of a man!
“That’s a God damn son of a bitch of a poem!” said Johannsen. “Say it again!”
Tvietmoe did so.
“God damn it!” said Johannsen. “Pass the whiskey.”24 Darrow’s progressive allies were starting to drift back too. Lincoln Steffens urged Whitlock to end his silence, and Whitlock responded with a letter that soothed Darrow’s hurt.25 And in St. Louis, Bill Reedy took a stand on Darrow’s behalf. Darrow “saw Capitalism as a monster devouring the men slain in manufacture and transportation, or killing them in slow starvation,” Reedy’s Mirror declared. “If he tried to save the McNamaras by ‘fixing’ the jury he did it under the conviction that the trial was but a battle … and … he was only doing what the other side would do.…
“Let us say he was caught in lawless acts. Very well … He saved the lives of his clients at the sacrifice of his own career,” Reedy argued. “Such a man in the dock for an idea must command a great deal of admiration … Beset by enemies he battles alone.”26
Not totally alone. Rogers now called Steffens to the stand.
“When the fight is on there is a call, not for an umpire, but a friend,” Steffens wrote his sister Laura. “That’s why I’m here with Darrow. What do I care if he is guilty as hell; what if his friends and attorneys turn away ashamed of him and the soul of Man—Good God, I’ll look with him, and if it’s any comfort, I’ll show him my soul, as black as his. Sometimes all we humans have is a friend, somebody to represent God in the world.”
Steffens’s task was to demolish a motive for the crime. For if Darrow had agreed to settle the case, why would he bribe a juror?
There was no doubt that the plea negotiations were under way before Franklin was arrested. At issue was Darrow’s state of mind after Fredericks told him that both McNamaras had to go to jail. Had the state’s insistence that both brothers plead guilty spurred Darrow to turn to bribery? Or did Darrow believe that, as he told Older, he could ultimately “throw John J. to the wolves” as well? Impeccably neat, precisely spoken, Steffens told the jurors that Darrow had assured him a week before the Lockwood bribery that “if it was necessary … J.J. must go.” Darrow and Steffens shared “a feeling of elation that the thing had been consented to and agreed upon,” he said.
Fredericks treated newspapermen with disdain, was a foe of progressives, and just didn’t like Steffens. He called him “Stinkin’ Leffens” and deplored his “sloppy palaver.” He underestimated his opponent.
“As I understand it, you are an avowed anarchist. Is that correct or not?” Fredericks asked, starting his cross-examination by pointing a finger in the witness’s face.
“No, that is not true,” Steffens replied. “I am a good deal worse than an avowed anarchist.”
Fredericks was puzzled, thrown off track. “You are a good deal worse than an avowed anarchist?” he asked.
“Yes sir,” said the witness. “I believe in Christianity.”
There was laughter from the standing-room-only crowd. Fredericks grew irritated and launched a flurry of accusatory questions, but Steffens calmly parried, and cooled himself with a palm leaf fan. “Time after time Mr. Fredericks sought to get the witness to admit that the culmination of the McNamara case was caused by the arrest of Bert Franklin for bribery,” the New York Times reported. “As often Steffens insisted that all parties concerned in the defense had agreed to the settlement before the bribery.”
“While District Attorney Fredericks did the best cross-examining of his career,” the Los Angeles Record reported, he “was easily frustrated by the writer’s coolness and biting wit.”
When Fredericks gave up, the judge let the jury ask questions.
Golding was, again, most helpful. He wanted to know whether Darrow “appeared like a guilty man, frustrated in bribing a juror—or an innocent man?”
“An innocent man,” Steffens answered. Why, when Steffens had suggested that they get Fredericks to drop the bribery case as part of the McNamara negotiations, Darrow had refused, saying: “Leave this case out of the settlement.”27
BY THE END of July, as Darrow prepared to take the stand, he was feeling better. Whole segments of the prosecution’s case had crumbled. Its tracing of the $10,000 check from the AFL to Darrow to Tvietmoe was tantalizing—but the money trail ended in San Francisco. And the notion that Darrow had taken great pains to launder the bribery money through Tvietmoe contradicted two other elements of the district attorney’s case: that Darrow paid Franklin to bribe Bain with a check from the office account and bribed Lockwood with six $500 bills, and a $1,000 bill from Harriman’s safe deposit box—two easily traced transactions.28
Ruby suffered a breakdown from the stress. But as the summer passed, the newsmen covering the trial saw Darrow shake off his gloom and take a more active role in his defense. He got Biddinger to concede, for example, his motives in infiltrating the McNamara defense. “I wanted to create trouble in your ranks; that is what I was after,” the Burns detective said. This and other admissions about the prosecution’s tactics in the McNamara case reduced Darrow’s sins to the status of mutual shenanigans.
Rogers had held the bridge, dismaying their foes with his bluffs and diversions, but he never stopped reminding his client that the verdict would rest on what the jurors thought of Darrow. As the trial neared its end, Darrow had two compelling forums—as a witness in his own defense, and as a lawyer pleading for liberty in his closing address—to persuade them of his innocence.
Clarence Darrow: Attorney for the Damned Page 31
