A new cast of players also promised to make the second trial more than a perfunctory exercise. Wheaton Gray, the counsel for the M&M, had been installed as a special prosecutor. Unwilling to admit that Earl Rogers had outfoxed him, Fredericks blamed Judge Hutton for his defeat. (“We simply could not overcome the damnable atmosphere that counsel on the other side created in the courtroom,” he said. “As long as the court allowed them to do it we were helpless.”) A new judge—William Conley—would steer a different course. Whenever the lawyers “appeared on the point of indulging in inflammable personalities, Judge Conley put a quick stop to them,” the Times noted. There would be no “shilly shally” this time. Indeed, when the defense tried to read the forty testimonials to Darrow into the record, Conley cut the number to five.
The facts of the case contained a significant difference from those the state presented in the Lockwood trial. Bert Franklin had given Robert Bain a $400 bribe before Darrow and Steffens began to negotiate the McNamara guilty plea, and so the defense could not claim, as it had in the first trial, that Darrow had no motive for corrupting the jury.16
And no sooner did the trial begin than it was resolutely clear that Rogers would not dominate this courtroom. Rogers was in awful shape, pale and shaking in court. After ineffectually cross-examining Bain, the lawyer disappeared for several days. Word was passed to the press that he was recuperating from an “illness” in a sanitarium. Rogers was “always uncertain at critical times,” Darrow griped in a letter to Paul.
Darrow understood the danger that lawyers face when representing themselves in court—their judgment is distorted, and every argument seems self-serving. Nor was he happy with the jury, which, he suspected, contained some hostile members. But he tried to pick up the slack, firing questions when Franklin, nervously jiggling a big gold watch, took the stand. Looming before the witness, with his hands in his pockets and head thrust forward, Darrow caught his former employee on several inconsistencies. He brought out the terms of the deal that Franklin struck with the city’s capitalists and got him to plead forgetfulness on some important details.17
The defense wasn’t losing, but it wasn’t winning. Rogers returned to the courtroom with a flourish on February 6, announcing his intent to continue in Darrow’s defense though it meant risking death. With a nurse and a doctor standing by in an anteroom, Rogers—seemingly unable to rise from a wooden swivel chair, his arms dangling at his sides—cross-examined Lockwood and had him relate how Fredericks had schemed to entrap Darrow and then rewarded Lockwood with a job on the county payroll.
“Franklin would never have come out to bribe you at all if you hadn’t called him up and made arrangements at the orders of Fredericks,” Rogers said.
“Probably not,” Lockwood admitted.
“You got that job as a reward for testifying against Darrow … didn’t you?” Rogers said.
At the lunchtime recess, a concerned Conley came down from the bench and ordered Rogers to withdraw. “I can’t, Judge … I’m going to do it if it kills me,” Rogers told him. But, threatened with a contempt citation, he left for two more weeks.18
Behind the scenes, the maneuvering continued. On February 12, George Schilling wrote to Darrow from Chicago, saying that a friend of John Harrington had offered, for “considerable money,” to keep Harrington from testifying. The approach had been made by an investigator named Cooney, who shared an office with Harrington in Chicago and had testified in the Lockwood trial. If well paid, Cooney promised to “fix things up so that neither he nor Mr. Harrington would be witnesses.”
Was it an authentic offer? Could Cooney really deliver Harrington, or was he trying to fleece the defense? Was it a government sting? Schilling and Ed Nockels discussed the matter with William Thompson, Darrow’s former law partner, and all agreed that the offer should at least be conveyed to Los Angeles. “We feel you ought to know these facts, and if it will be desirable for Mr. Nockels to come to Los Angeles in regard to this … send a telegram,” Schilling wrote. In the end, nothing came of it. Harrington was called to the stand and testified as he had in the first trial. But Schilling’s letter throws further light on Darrow’s ethical standards, and what he and his associates were willing to consider.19
Opening for the defense, Darrow stressed evidence cited in the first trial: that the $1,000 check he gave to Franklin was dated October 4—two days before the October 6 date on which, according to Franklin, they first discussed bribery. “He received the check … before he says there was ever any conversation about bribing anybody,” Darrow told the jury. It was merely Franklin’s regular pay. From the witness stand, Steffens and Older then walked the jury through the chronology of the McNamara negotiations, asking, this time: Why would Darrow make plans to plead the brothers guilty if he already knew that Bain was in his pocket? And LeCompte Davis testified that Darrow had wanted to strike Bain as a juror, and relented only at Franklin’s insistence.20
The Darrows had left Venice for a cramped apartment closer to downtown, with a roll-away bed in the dining room. Darrow tried to keep their spirits up, laughing when he could at their predicament. One night, when they visited their friend Frances Peede’s house for dinner, Darrow asked her: “Frances, is this the dining room?”
“Yes,” she replied.
“Where is the bed?”
On the day Steffens testified, he and Older and Darrow and Johannsen telephoned Mary at five p.m. and said they would be there in an hour for dinner. “With red wine, cigarettes and general friendship the evening sparkled. It occurred to me that here was a group of people all in tune like some fine violins. Maybe years and years had been taken in just tuning up and—then we met! And the result was harmony,” Mary said.
“Older told tales of prisoners with such loving tenderness,” Mary wrote Lem. “Darrow was brilliant with his Mephistophilian wit. Jo dramatic. Steffens mercurial. Steffens and Jo stayed til very late. Steffens finally getting Jo to repudiate force … Not that Jo will change permanently, but he saw the logic of Steffens’ position.”21
In typically dashing fashion, Rogers returned to the trial at the end of February, pushing open the doors, tossing his hat and coat aside, and striding to the front of the courtroom to take charge of the questioning when Darrow was on the stand.
Fredericks was summoned as a rebuttal witness by the prosecution to furnish his account of the McNamara plea negotiations. He swore that what ultimately caused Darrow to plead the brothers guilty was the news that the prosecutors had Bain, as well as Lockwood, in hand. At the mention of Bain’s name, said Fredericks, Darrow had broken into a sweat and almost immediately agreed to a deal.
But Fredericks perjured himself when denying that he had cleared the terms of the McNamara plea bargain with Drew. And when he got the opportunity to cross-examine his adversary, Darrow demonstrated how Fredericks had given a quite different timeline of the McNamara negotiations, when it suited him, in the Lockwood trial.
“I demand the right to explain!” Fredericks shouted at the top of his voice. Then Ford and Darrow went at it, and the judge tried vainly to still them all.22
THE CLOSING ARGUMENTS began on March 4. Gray opened for the prosecution with the subtlety of an Otis editorial.
“He is a moral idiot,” Gray said of Darrow. “Think of the number of people Darrow has an influence over in the United States! Think of the number who follow his leadership! He is the God of their idolatry; the dime novel hero of their worship.
“As soon as he gets his fox-like eyes on them, and breathes a few assuring words to them, they believe he can do impossible things,” said Gray. “Clarence Darrow is the greatest power for evil in the United States today! “23
As the hour approached for his own closing argument, Darrow and his supporters believed that another acquittal was at hand. Unless the government had “fixed” the jury, Wood told Sara, Darrow would triumph. “I think I will win,” Darrow wrote, returning a $3 donation to a workingman named Meyers.24
A thousand
people tried to squeeze into the tiny courtroom on Wednesday, March 5, to hear Darrow speak. The “sweating, shouting, shoving mass of humanity” swept the bailiffs aside and pushed at the doors; women fainted in the crowd and were carried along, upright, unable to fall, until a “flying wedge of deputy sheriffs” cleared a path. The deputies had to rescue Darrow, Steffens, and Judge Conley.
Darrow began his argument in the afternoon, and much of it ran parallel to his address at the Lockwood trial. “I am not here because they think or because they care whether the allegations of this indictment are true or false,” he said, “but because … I have committed the unpardonable sin; I have dared to oppose the mighty and strong and to speak in defense of the poor and the weak.…
“The forces that control in this United States, the great forces of evil, want to destroy me,” he declared.
As always, Darrow chose to demonize a target in the prosecution, and Gray was an opportune target. Few of his adversaries ever came in for the disapprobation that Darrow had for the special prosecutor. He called him fat, piglike, corrupt. “Harry Chandler … has visited Gray’s pen a good many times and poured many a pail of swill down his trough!” Darrow said. Gray and his fellow prosecutors “have raked up every gutter-snipe and sewer-rat they could find and bribed them that their masters might get me!” said Darrow.
“It is my sad duty to make Gray immortal,” said Darrow. Gray’s “great frame should go down into the earth and take its place to feed the worms … so that the dead might do some good, although the living had not. And here I come and I thrust immortality on him, because he must live in the future as the man who rented himself to persecute me.”
In the Lockwood trial, Darrow had suggested that the McNamaras were not “morally guilty.” Now he went further. There were, on that particular day, no greater outcasts in the United States. But, though it put his own freedom in jeopardy, he defended the brothers. “I want to say to this jury, even if it costs me my liberty, that the placing of dynamite in the Times alley was not a ‘crime of the century.’ It was not even a crime,” Darrow said. “Under the laws of God, which consider motive everything, they were not guilty of murder.…
“Do you want to know who is responsible?” he asked. “It is the men who have reached out their hands and taken possession of all the wealth of the world; it is the owners of the great railroad systems; it is the Rockefellers, it is the Morgans, it is the Goulds; it is that paralyzing hand of wealth which has reached out and destroyed all the opportunities of the poor.”
Here was the grand statement on the roots and causes of industrial violence that Steffens and the McNamaras had thought to make in the fall of 1911. Here was Darrow’s justification for bribing jurors. Here was his attempt to pay back labor, whose cause he had fumbled.
“Here is J. B. McNamara. If there is no other man on earth who will raise his voice to do justice to him, I will do it, even if I am pleading for myself,” said Darrow. “He was a working man. He was a fanatical trade unionist. He believed in force.…
“Out of willfulness or wickedness? No. Because in his brain was burning the thought that he was doing great good to the poor and the weak.
“He had seen those men who were building these skyscrapers, going up five, seven, eight, ten stories in the air, catching red hot bolts, walking narrow beams, handling heavy loads, growing dizzy and dropping to the earth, and their comrades pick up a bundle of rags and flesh and bones and blood and take it home to a mother or a wife,” Darrow said.
“He had seen their flesh and blood ground into money for the rich. He had seen the little children working in factories and the mills; he had seen death in every form coming from the oppression of the strong and the powerful; and he struck out blindly in the dark to do what he thought would help.…
“He listened to the cries of the weak, and he could hear nothing else. And he did it; and serious as the consequences have been to me … I shall always be thankful that I had the courage to take that step to save his life.
“I may be in the penitentiary, or I may be dead; but some time the world will understand that you cannot settle the great question of poverty; that you cannot settle the great conflict between capital and labor; that you cannot settle it by sending men to jail and hanging them by the neck until they are dead.”25
Darrow spoke for two hours that Wednesday afternoon. “He was master of the courtroom,” the Examiner said. “With sharp wit and biting sarcasm, and vitriolic characterizations, he fired volley after volley.”26
The Times, however, was unforgiving. “Snapping and snarling,” the paper reported, “Clarence Darrow fought back yesterday in an argument envenomed with fury.” His attacks on Gray, the newspaper suggested, had alienated the jurors.27
Darrow completed his address on Thursday morning, reciting verses from Swinburne and from the Neihardt poem he had sung with Mary and the labor leaders: “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!”
“I believe in the law of love,” he told the jurors at the end, as many in the courtroom wept. “I believe it is the greatest and most potent force in all this great universe. I have loved peace, and I have had to fight almost from the time I have opened my eyes—I have been fighting, fighting, fighting.
“And it is for this, gentlemen, that I am here today, because I haven’t condemned, I haven’t judged; I have loved my fellow man; I have loved the weak; I have loved the poor; I have loved the struggling; I have fought for their liberties, for their rights, that they might have something in this world more than the hard conditions that social life has given them.
“I could have hunted with the wolves. But I did not,” he said. “I have brains enough to know that that path is easy. I know that all the good things in the world come to those who play with them. I have passed it aside … I could have done nothing else … I was born with the feelings I have. I have lived them the best I could.
“I could travel no other road,” he told them, weeping with them now. “I come to you worn and weary and tired, and submit my fate.”28
It was not the speech of a flabby pirate. Even Johannsen thought Darrow showed guts. “This took courage and faith,” the union organizer said. “And it was stated at the time and place where there was imminent danger, and it was made against the advice of some of his eminent counsel.”29
The jury began its deliberations at nine p.m. on Thursday. There was no quick verdict this time. “An air of gloom” settled on Darrow as the hours passed. At least some of the jurors, it was apparent, believed him guilty. Inside the jury room, two factions talked and argued all of Friday, and after the jurors retired that night, word reached reporters that the count stood 8 to 4 for conviction. Darrow had sat in the courtroom all day with Ruby and Steffens, Mary and other friends, enduring the pressure.
“Hour in, hour out—every little while the room would thrill with a rumor and the news would flash back and forth and soon an Extra would be out,” Mary wrote Lem. “The strain of that waiting was terrible.”30
On Saturday morning, the Times greeted Los Angeles with an editorial, attacking Darrow for “wanton words of glorification of his miserable self.”
“How can he sleep with the shrieks of the McNamara victims ringing in his ears?” the editors asked, no doubt mindful that the judge allowed the jurors to read the daily papers. “How can he drink with the blood of twenty innocent men surging to the rim of his cup?”31
Shortly before noon, the jurors reentered the courtroom and told Conley they were helplessly deadlocked. The judge declared a mistrial. For Darrow, it was less than vindication. He left the courtroom quickly, snapping at reporters. “He seemed a beaten man,” Baillie said.32
There had indeed been four holdouts, who told reporters they were not convinced of Darrow’s involvement. The eight who pus
hed for a guilty verdict said that Darrow’s closing argument justifying the Times bombing was a factor in their decision. His radical philosophy, they concluded, could easily have led him to bribery. It was the verdict reached by Mary Field, and confided to her diary. And one that Darrow himself seemed to give when talking to his friend and investigator Victor Yarros a few years later.
“Do not the rich and powerful bribe juries, intimidate and coerce judges as well as juries? Do they shrink from any weapon?” Darrow asked. “Why this theatrical indignation against alleged or actual jury tampering in behalf of ‘lawless’ strikers or other unfortunate victims of ruthless Capitalism?”33
Like Harry Orchard, Franklin had been caught at the scene and cut a deal with the authorities. In each case, it was reasonable to assume that someone had sent the miscreants on their missions. But where was the evidence that proved it was Haywood, Pettibone, or Darrow? Logic may have argued that the defendants were guilty—but not proof. In all of the Idaho and California trials, it is hard to argue that the verdict was unjust.
WHICH STILL LEAVES a question to be answered. Did Darrow participate in the bribery scheme?
Almost assuredly.
Two years later, when Los Angeles was preparing to put Matt Schmidt and David Caplan on trial for their role aiding James McNamara, a Times reporter came upon Johannsen and asked him if Darrow would play a role in the defense of the two co-conspirators. Johannsen had the odor of liquor on his breath. He was untypically candid. He dismissed Darrow as a “sentimental [expletive]” who “got off lucky.”
Clarence Darrow: Attorney for the Damned Page 34
