Clarence Darrow: Attorney for the Damned

by John A. Farrell

  Darrow took the stand on July 29 and spent more than a week answering questions from Rogers, Ford, and Fredericks. The flush in his cheeks was his only sign of emotion, and the trial’s observers gave him high marks. From the first, leaning on an arm of the witness chair, his legs crossed, Darrow showed himself “a master hand of narration,” the Times said. “He used simple words and from time to time gazed directly at the jurors, challenging, as it were, their right to believe he would be guilty.” The paper noted how Darrow, conceding various points in the interest of fairness, seemed to rise above the squabbling duo of Rogers and Fredericks. “This attitude, whether natural or the result of studied art, is not without weight,” said the Times. “It was apparent that some of the jurors seemed considerably impressed.”

  On November 28, Darrow said, he had arrived at his office at about eight thirty a.m. He was at his desk but a short time, he said, when he was summoned by Hawley’s phone call to Harriman’s campaign headquarters. It was then, as he walked along the street, that he saw Franklin. “I never had any conversation with him in reference to anything improper or unlawful or corrupt with Lockwood,” Darrow testified. “He never received any thousand dollars from me for any juror.” Darrow said he was “very much shocked” by Franklin’s arrest, and “at first I didn’t think what to do.” Dazed, he wandered back to the courthouse, where he ran into Browne.

  “What does it mean?” Darrow said.

  “We arrested Franklin for jury bribing,” Browne replied.

  “That could not be possible,” Darrow said. “If I had ever dreamed of any such thing it could not possibly have been.”

  The check he gave Tvietmoe, said Darrow, was to pay for legal expenses in San Francisco, where the city’s labor leaders had been hauled before the grand jury and both sides were scouring the city, trying to secure witnesses. And Harrington? “From the first time he opened his mouth he wanted money,” said Darrow. “About half what he said was about getting more money out of me while I was under indictment … threatening me.”

  Finally, there was the question of motive.

  “As we went on in the preparation of this case it kept growing on all of us that there was no possible chance to win,” Darrow said. “It grew on us from day to day and from week to week, the exact condition we were in and that our clients were in, which a lawyer never knows at once, the same as a doctor learns that the patient is going to die.”

  As far as Darrow was concerned, the case had been settled on the weekend before Franklin’s arrest, when John McNamara agreed to accept a ten-year sentence. No documents had been signed, and they still had to persuade James McNamara to accept his brother’s decision. But it was over, said Darrow. He had no motive to bribe Lockwood.

  Darrow had an uncomfortable moment when Ford produced a coded telegram that Darrow had sent to an ironworker’s lawyer in Indianapolis on November 29, authorizing the expenditure of $1,000 in the ongoing tussle to recover the evidence seized at the union headquarters there. If the McNamara case was all but settled, why did Darrow care about the Indianapolis evidence?

  There was nothing, of course, to prevent Darrow from seeking insurance in case the deal fell apart. (Or, for that matter, to tamper with the jury. As Fredericks would later argue, “Clarence Darrow did not put all his bait on one hook.”) But Rogers had labored long to persuade the jurors that Darrow had no motive. So Darrow had to explain. “I was always interested in regaining the letters, telegrams and files,” he said. The U.S. authorities in Los Angeles and Indianapolis were building a federal case against the ironworkers’ union and organized labor. “It was up to me to do what I could to protect everybody else.”

  All in all, Darrow had given a fine performance. And the rebuttal phase of the trial ended on a promising note when Golding, once more taking advantage of Hutton’s willingness to let jurors join in, asked Job Harriman if Franklin’s arrest had not been part of a conspiracy to defeat the socialists in the mayoral election, and thus ensure that Otis and the others would get the Owens Valley water for their real estate.

  “There are lots of people directly interested” in the fate of the aqueduct who were “interested also in the settlement of the McNamara case … Mr. Brand … Mr. Chandler. Mr. Otis,” Golding said helpfully. “Did this occurrence down at Third and Los Angeles, which might have probably been taken advantage of by some unscrupulous people … to their own advantage … lose you any votes?”

  Yes. “The men involved in the negotiations, not excluding the District Attorney, saw that there was developing in this city a tremendous political power in opposition to them,” Harriman told the jury. “I am convinced that if the plea of guilty had not been made or entered until after the campaign was over, that we would have been elected.”29

  DURING DARROW’S TESTIMONY, “the courtroom was filled by an eager crowd of spectators. Women largely predominated,” the Times reported. Johannsen called them “Darrow’s harem.”

  Mary was among them, writing “as vindictively and heatedly as I could” as a journalist, and helping Darrow as a friend. But her position was awkward, and painful. Darrow had been moved by Ruby’s loyalty, and when he did feel “the need of physical nearness” he had other women to console him. There was one “young girl … warm and intense,” Mary reported in her journal, to whom Darrow could “tell secrets, troubles, joys … as one might pour the jewels and colored stones into the lap of a child.”

  “When it’s all over, I skidoo,” Mary wrote Wood. “I hate to lose Darrow’s presence but I hate worse to be out of harmony with my environment.”

  “They are planning big doings for Darrow when the verdict comes in,” Mary wrote. “But as for me—I don’t want the crowds … Success scares me—its vulgarity, its mediocrity, its unwillingness to be tested.” As the fickle crowd drifted back to Darrow, she believed her work was done. “The palms and hosannas are for the multitudes,” she told Wood. “Only a few, a very few go into the Gethsemanes.”

  Darrow had one more night in the Garden before reaping the hosannas. On Monday, August 12, Joe Ford began the closing arguments with a savage assault. J. B. McNamara was not to blame for the carnage of the Times bombing, Ford said. Darrow was. “The unfortunate Brice, the poor deluded Brice, when he placed that bomb of dynamite that hurled twenty unsuspecting souls into eternity, knew that if he were caught that he could get a smart lawyer, like Clarence Darrow,” said Ford. The law provides that each man is entitled to a proper defense, the deputy district attorney said. But “to the disgrace of our civilization, many criminal lawyers have enlarged this privilege. They have extended it into an excuse for committing all sorts of chicanery and fraud,” he said. And Darrow was among the worst. “He has used it as an excuse for subornation of perjury on the part of witnesses, for the bribery of judges and juries.”

  Darrow’s beliefs about crime and justice encouraged depraved behavior and turned innocent lads to fiends, said Ford.

  “Picture in your mind … gentlemen … that fateful October morning … that fiery furnace at First and Broadway,” said Ford, turning to face Darrow. “Picture if you can the poor father … caught like a rat in a trap, praying upon his scorched knees.

  “Ah well for that poor doomed wretch, that he could not lift the curtain from the future … and see that the man who had poisoned the mind of poor Brice would also some day poison the mind of his own little babbling boy, and that same … boy would be led into a life of crime and would some day dangle from the gallows,” said Ford. “Well for that father that he could not see his little innocent baby daughter, lured into a life of infamy and shame by some wretch who believed that there is no such thing as crime.”

  Ford stretched out his arms toward Darrow, mimicking children pleading. “Ah well and truly may these little helpless children stretch forth their hands to this defendant and say, ‘Give, oh, give us back our murdered father.’ ”

  Poor Brice? Give us back our murdered father? Darrow was furious and on his feet. “Is it the ruling of t
his court that counsel may say anything?” Darrow asked Hutton. But the judge declined to rein Ford in; it was for the jury to weigh, he said.

  Ford continued. When Darrow saw that Franklin’s arrest had placed him in jeopardy, he turned coward, said the prosecutor. “Mr. Darrow, fearful in his heart that the Franklin bribery would be investigated to the bitter end, hoped that the plea of guilty would stop further prosecution” and so “sacrificed J. J. McNamara in order to save himself.”30

  ROGERS SHOWED UP for his closing address in a black frock coat with a black stock at his throat, looking—the ladies said—like Patrick Henry. Speaking in his soft, persuasive voice, he used charts to demonstrate how the prosecutors had failed to corroborate Franklin’s testimony. For an afternoon, and all the following morning, he ridiculed the state for its reliance on Darrow’s other escapades, which even the press now dismissed as “collateral” charges.

  “The District Attorney wasted two months of your time trying to show that Darrow did some dirty work in the McNamara case,” Rogers said. “Who testified that he ever bribed a juror?”

  But the emotional highlight of Rogers’s address came when he told the jury: “Let’s see what kind of man Darrow is.…

  “Go into the mines of Pennsylvania, ask the man there with the lamp on his cap who gave him his education. He’ll tell you that he was a breaker boy, working 14 hours a day, picking slate from coal on the breaker, and that the strike came—and Clarence Darrow got him his rights, shortened his hours, lightened his labor, raised his wages. Ask the firemen on the railroads, the clerks in the Chicago department stores. Who arbitrated their strikes? Lightened their lives? And they will tell you—Clarence Darrow. Who carried the fight of the city of Chicago against the street railways to the Supreme Court and won it? Clarence Darrow.”

  “Rogers had the jury with him as he spoke,” the Examiner reported. “The silence was absolute, broken only by his solemn words of warning.” Rogers turned to Ford’s most vicious accusation, that Darrow was responsible for the moral climate that led to the Times bombing. He stood before the jury and spoke solemnly. “I saw those charred bodies taken out of there, no bigger sometimes than the buckets in which they carried them. I saw the weeping women and children,” Rogers said.

  “When all men in this country get their rights, when all have work, when all are equal, there will be no dynamiting … but so long as there are hungry babes while others are living on the fat of the land there will be violence.

  “I do not favor violence. I have fought the labor unions all my life. I drew up the famous anti-picketing ordinance. Yet if I had walked the streets all day long offering to sell my hands or head to feed my hungry, crying baby, and could not get work, and knew there were others living on bees knees and humming birds tongues, and giving monkey dinners, I’d commit violence,” he growled. “I’d tear the front off the First National Bank with my fingernails.”31

  ROGERS FINISHED BEFORE noon. And a thousand people jammed the courtroom in the Hall of Records that afternoon to hear Darrow speak in his own defense. Hundreds more struggled with the bailiffs without success. Every chair and every foot of standing room were filled. Women fainted and men gasped for breath.

  Darrow had been working on his closing remarks. On a Sunday in early August, Mary joined him on an auto excursion with his friends Fay Lewis and Jim Griffes. “Darrow sang all day, sang and talked to himself his speech—and joked,” she told Wood. “So you see his state of mind.” At the courthouse, during breaks, Darrow walked “up and down muttering to himself, rehearsing the essential features.”

  As Darrow approached the jury, the scuffling and pushing in the back of the room stopped. The courtroom was still. He hesitated, then began, his eyes wandering across the jury box, peering at the men who would jail or free him.

  “Gentlemen of the jury, an experience like this never came to me before, and of course I cannot say how I will get along with it,” he said, his hands thrust into the coat pockets of his now-familiar gray suit, his hair disheveled. “But I have felt, gentlemen, after the patience you have given this case for all these weeks, that you would be willing to listen to me, even though I might not argue it as well as I would some other case. I felt that at least I ought to say something to you twelve men.…

  “I am a defendant charged with a serious crime. I have been looking into the penitentiary for six or seven months,” he said, “and now I am waiting for you twelve men to say whether I shall go there.…

  “I am not on trial for having sought to bribe a man named Lockwood,” he told the jurors. “I am on trial because I have been a lover of the poor, a friend of the oppressed, because I have stood by labor for all these years, and I have brought down upon my head the wrath of the criminal interests of this country.

  “Whether guilty or innocent of the crime charged in the indictment, that is the reason I am here, and that is the reason that I have been pursued by as cruel a gang as ever followed a man,” he said. “If the district attorney of this county thought a crime had been committed, well and good, let him go ahead and prosecute. But has he done this? Has he prosecuted any of the bribe takers and givers? And who are the people back of him … who have been hot on my trail? Will you tell me, gentlemen of the jury, why the Erectors’ Association and the Steel Trust are interested in this case way out here in Los Angeles? …

  “Are these people interested in bribery? Why, almost every dollar of their ill-gotten gains has come from bribery.…

  “Suppose I am guilty of bribery—is that why I am prosecuted in this court? Is that why, by the most infamous methods known to the law and outside the law, these men, the real enemies of society, are trying to get me inside the penitentiary?

  “No that isn’t it, and you twelve men know it,” he said, his voice breaking. “I have committed one crime, one crime which is like that against the Holy Ghost, which cannot be forgiven. I have stood for the weak and the poor. I have stood for the men who toil. And therefore I have stood against them, and now is their chance. All right gentlemen, I am in your hands.”

  It was a riveting start. Tears ran down his cheeks; the jurors were enthralled. “Darrow rose to the occasion,” the Examiner reported, “and summoning all of his old time fire and eloquence, made the supreme effort of his career.” He had not denied his crime—he would do so directly but once in his speech. As always, he was nudging the jury toward another place, toward questions of justice and fairness. He turned to the collateral accusations.

  “I am going to be honest with you in this matter. The McNamara case was a hard fight.

  “Here was the district attorney with his sleuths. Here was Burns with his hounds. Here was the Erectors’ Association with its gold,” he said. “We had to work fast and hard. We had to work the best we could.…

  “I was doing exactly what they were doing, what Burns admitted he was doing … what Sam Browne says they did, when he testified that they filled our office with detectives.”

  Darrow laughed at the claim, made by Ford, that the state had the right to pursue such tactics—but not the defense. “Isn’t that wonderful, gentlemen?” he asked. “The prosecution has a right to load us up with spies and detectives and informers and we cannot put anyone in their office?” But for all the district attorney’s advantages, he told the jury, the prosecution had a flimsy case. “They had detectives in our office. They had us surrounded by gumshoe and keyhole men at every step—and what did they secure? Nothing, nothing,” Darrow said.

  “If you twelve men think that I, with thirty-five years experience, general attorney of a railroad company of the city of Chicago, attorney for the elevated railroad company, with all kinds of clients and important cases—if you think that I would pick out a place half a block from my office and send a man with money in his hand in broad daylight to go down on the street corner to pass $4,000, and then skip over to another street corner and pass $500—two of the most prominent streets in the city of Los Angeles; if you think I did that, gentlemen,
then find me guilty. I certainly belong in some state institution.…

  “I am as fitted for jury bribing as a Methodist preacher for tending bar,” Darrow said.

  But if the barons of industry could dispatch their private armies to crush the unions, bribe, cheat, and spy, he asked, didn’t the workingmen have the right to fight back?

  “I would have walked from Chicago across the Rocky Mountains … to lay my hands upon the shoulder of J. B. McNamara and tell him not to place dynamite in the Times building,” he told the jurors. “All my life I have counseled gentleness, kindness and forgiveness for every human being.”

  But “there was a fierce conflict in this city, exciting the minds of thousands of people, some poor, some weak, some irresponsible, some doing wrong on the side of the powerful as well as upon the side of the poor—and this thing happened.…

  “Until you go down to fundamental causes, these things will happen over and over again. They will come as the earthquake comes. They will come as the hurricane that uproots the trees. They will come as the lightning comes,” he said. “We as a people are responsible for these conditions, and we must look results squarely in the face.” In the audience, Anton Johannsen found himself weeping.

  James McNamara “had nothing to gain,” Darrow said. “He believed in a cause, and he risked his life in that cause.”

  “Whether rightly or wrongly, it makes no difference … I would not have done it. You would not have done it. But judged in the light of his motives … I cannot condemn the man.”

  “None of the perpetrators of this deed was ever morally guilty of murder. Never.”

  So ended the first day. He resumed the next morning, after another mob scene at the courtroom doors. Hysterical women had grasped at his hands, like some holy man or prophet, as he made his way into court.