The key issue in the trial was whether Person recognized that the party he joined was advocating violent revolution. It was reasonable to believe, Darrow contended, that Americans like Person thought change would arrive in some golden future through perfectly legal means.
“Behold a party of seven obscure people going out to conquer the world with thirty cents,” Darrow told the jury. “What did these people do? Talked and dreamed … just as all these poor idealists have always done.…
“The enemies of this Republic are not the working men who give their lives and strength,” said Darrow. “The danger to this country is not from them. It is from those who worship no God but greed; it is from those who are so blind and devoted to their idol of gold that they would destroy the Constitution of the United States; would destroy freedom of speech and the freedom of the press.…
“This man is obscure, he is unknown, he is poor, he has worked all his life, but his case is one that reaches down to the foundation of your freedom and to mine,” Darrow said. “If twelve men should say that they could take a man like him and send him to prison and destroy his home … you should hang this courthouse in crepe and drape your city hall with black.”
The jury deliberated for six hours and returned a verdict of not guilty. And Arthur Person, wrote one journalist, “went home to his wife and children and has been just as harmless to the government of the United States as before.”16
AS GRATIFYING AS the Person victory was, he was but a minnow in the Red Scare. The true catch—Lloyd and other leaders of the Communist Labor Party—was prosecuted in a national show trial in Chicago, which began in May and lasted all summer.
The government crackdown on the Left was succeeding. Lloyd and his friends had not even had a year to organize their little cadre of Reds before they were tied up in court, jailed, or deported. Gitlow was dispatched to Sing Sing. Reed was in Russia, where he would soon die of typhus. That left Lloyd as the final prize.
The Harvard-educated millionaire was the son of Darrow’s old friend Henry and had inherited his father’s flair. When he was not seized in the January raids (he was spending the holidays at the family estate in Winnetka) he had invited the authorities to come and get him. “Violence is the only way,” Lloyd told a newsman. He was pleased to be indicted.17
Lloyd had condemned Darrow’s work for the Allied governments during the war, and when Darrow was described as a socialist in the newspapers, Lloyd had disowned him in letters to the editor. “These are times of stress that show what men really are,” Lloyd wrote. “The Socialist Party has many burdens to bear, but I am thankful to say Clarence Darrow is not one of them.” Yet he recognized Darrow’s gifts and did not object when the other nineteen communists facing trial hired him. The bigger the stage, Lloyd thought, the better the propaganda.
The prosecution was led by a special counsel, Frank Comerford, who claimed to be an expert on the Bolshevik threat. Because Lloyd and the others had carried out most of their activities in public, it was easy for the prosecution to demonstrate their membership in a revolutionary body. “We want a mobilization plan and an organization for the revolution,” Lloyd had told a Milwaukee audience in 1917. “You want to get rifles, machine guns, field artillery and the ammunition for it; you want to get dynamite. Dynamite the doors of the banks to get the money to finance the revolution.”
Darrow gave the closing speech for the defense. He spoke for two days. “Throngs crowded the courtroom. The heat did not stop them. They wanted to hear Darrow,” the Tribune reported. The issue was “whether this jury will stand by the convictions of the Fathers and, so far as you can, stop this mad wave that threatens to engulf the liberty of the American citizens,” Darrow said. With that opening salvo, he was off. He “shouted, pleaded, thumped the table, then spoke softly,” the Tribune reported. “He was coatless, but the perspiration was dripping from him. His shirt was wringing wet as he worked himself into a frenzy.”
“There is something that I believe in more than I do in my country, and that is human freedom. I have loved America first of all because she stood for it,” he said. “You make us a nation of slaves, and I love it no more.…
“I am not here to defend their opinions,” Darrow said, with a nod toward the defendants. “I am here to defend their rights to express their opinions.”
Truth is elusive. What is right today can be wrong tomorrow. What matters is the freedom to keep searching.
Find the rebel guilty and “you will be finding yourself guilty,” said Darrow. “You will be joining yourself with the hunters and the hounds and the wolves that have chased to their death every man who dared to raise his head above his fellows, who dared to see a vision that a sordid man cannot see.
“Today it is these twenty men. Tomorrow it will be somebody else,” said Darrow. “You can only protect your liberties in this world by protecting the other man’s freedom. You can only be free if I am free.”
He finished the next morning.
“I have always loved this country. I love its broad prairies. Its great mountains; its noble rivers; its dense forests,” he told the jurors. “I love the freedom that has come from new ideas, from a Constitution founded and made by rebels and protected by rebels; from a Constitution born in strife and contumely and rebellion.…
“I love it because over its vast areas one can find a free breath of pure air; because of its intellectual freedom, one may love, he may speak the thoughts that are in him; he may develop himself; he may work for humanity; if he will he may be free, and without freedom nothing is of value. I love it for these and for these I will fight.”
But “I know the tendency of security and ease and power,” said Darrow. “I know that freedom produces wealth and then wealth destroys freedom. I know that the nation that is not watchful of its liberty will lose it. I know that the individual that will not stand for his rights will have no rights.…
“This is freedom. It is the freedom we believe in. It is the freedom we work for, and gentlemen it is the freedom I urge you, with all the force I can urge, to preserve.
“I ask you to say that men shall be free.”
It was a terrific speech, but Darrow didn’t move the jury. Comerford did. If the jury were to acquit the defendants, the prosecutor said, then it might as well tear down the Stars and Stripes and wave the Red flag; throw down the busts of Lincoln and Washington and raise those of Lenin and Trotsky; strip Christ from the crucifix and venerate Judas, and disinter the heroes at Arlington and replace them with Benedict Arnold. He finished by reciting, aloud, the lyrics of “The Star-Spangled Banner.” The jurors took but a few hours to agree on the defendants’ guilt.18
So ended the last of the show trials. It was now midsummer, 1920. The country was getting its first taste of the prosperity, and splendors, of the decade ahead. The sense of danger had faded. In the course of the trials, the Reds had been revealed as ineffectual “dreamers,” as Darrow described them, not communist shock troops. Public sentiment shifted as the press conveyed Darrow’s arguments and those of the other libertarians who came to the dissidents’ defense. In the coverage of the trials and a series of congressional hearings, Americans were shown how their government had arrested thousands of people without warrants and held them in crude lockups, denying them access to due process or counsel. “A more lawless proceeding is hard to conceive,” said one federal judge. “I can hardly sit on the bench as an American citizen and restrain my indignation.”
It was bad news for Palmer. Even the ultraconservative Tribune took offense at the “legal lynching” and the repressive methods employed by the attorney general’s youthful and eager adviser, J. Edgar Hoover. Liberals and labor rallied, and Palmer’s campaign for the Democratic presidential nomination foundered. Lloyd and the Chicago defendants were pardoned by Illinois governor Len Small in 1922. Gitlow served three years in prison, and then he too was pardoned, by New York governor Al Smith.
In the Red Scare trials Darrow was an “unleashed old Luci
fer … sooty with the dust of the abyss” but “fulgurant with the untarnishable glow of the archangel,” wrote Arturo Giovannittie in the Liberator. His “great frame shook and trembled as if under the blasts of an internal upheaval, his fists rose and fell as if brandishing unseen swords.”
Darrow’s radical friends welcomed him back. “Darrow is false to everything,” Anton Johannsen told Erskine Wood, “except humanity.”19
Chapter 16
ALL THAT JAZZ
I have lived a life in the front trenches, looking for trouble.
The life story of a single mobster, “were it known in every detail, would disclose practically all there is to know about syndicated gambling as a phase of organized crime in Chicago in the last quarter century,” an Illinois crime commission reported in 1928. “That man is Mont Tennes.” When federal authorities hauled Tennes into court, Darrow was his lawyer.
Mayor William “Big Bill” Thompson was “congenitally demagogical,” Darrow’s associate Victor Yarros would recall. The mayor served three terms during World War I and the 1920s. He was “indolent, ignorant of public issues, inefficient as an administrator, incapable of making a respectable argument, reckless in his campaign methods,” and indebted to a series of corrupt Republican bosses, most notably Fred Lundin. But when Lundin and the boys were charged with bribery and extortion, Darrow was their lawyer too.
Bootlegging, gambling, and corruption flourished during the Thompson-Lundin era, as did a new breed of gangster drawn to Chicago by the palms-out stance at City Hall and the spectacular riches offered by the sale of illicit beer and liquor during Prohibition. The mob hits and Tommy-gun shoot-outs of Johnny Torrio, Big Jim Colosimo, Dion O’Banion, Bugs Moran, and Al Capone added mythic chapters to Chicago history. And Darrow helped make it happen. When one of the Hull House ladies chastised him, demanding to know how he could represent such reprobates, “I told her, for the money,” said Darrow, “and because I hated jails and the good people.” But it’s a chapter in his life he left out of his memoirs.
The first great rogue to hire Darrow was Tennes, a visionary bookmaker who introduced technology to interstate gambling. Tennes placed spotters at the country’s major horse tracks, gave them telegraph keys, and had them wire the results of each race to Chicago. The scheme would not be possible without the cooperation of the police and public officials, which Tennes purchased. “His alliances with and wars of violence against competitors … involve the name of every gambler of any consequence in Chicago for this period,” the crime commission reported. “His control over politicians and officials for purposes of protection … even to use police raids for the destruction of competitors … exhibit a marked continuity.” Mont endured gang wars, bombing campaigns, and assassination attempts before the arrival of the deadliest predator—Capone—finally spurred him to retire.1
Tennes was still atop the game, however, when federal authorities led by Judge Kenesaw Mountain Landis targeted him in 1916, and Darrow agreed to defend him. Darrow looked at the evidence the feds had gathered, reckoned that Tennes could survive, and advised him to exercise his Fifth Amendment right. “I’d rather not answer that; I might incriminate myself,” Tennes said, over and over. Landis was thoroughly irritated. Soon Darrow was advising a flock of Mont’s men, who would gather in his office in the morning before court to be taught, with varying success, how to take the Fifth.
“I must refuse to answer that question for fear of incriminating myself,” Hank Troy told the judge. “You see, I’ve been retained by a lawyer.”
Landis called Bud White, one of Troy’s friends, to the stand.
“Do you know Troy?” the judge asked.
“Yes, sir,” the man replied.
“What’s his business?”
“I have to refuse to answer that … because I might incriminate him,” White answered, and flushed when the spectators laughed.
“Bud, you can buy a great many things from a lawyer, but you can’t buy that,” Landis said.
“Well your honor, I can’t tell you,” White said. “I might incriminate … myself.”
Landis had a long-standing disdain for Darrow. He thought he was “smart and tricky” and “a crook.” When he asked Tennes how he could afford Darrow, the gambling czar said he’d pay the lawyer with money from his winnings.
“Don’t do it,” Landis told Tennes. “Don’t give Mr. Darrow that money covered with dirt and slime, with the blood which has come from a lot of young fellows about this town who are being made criminals. See if you can’t get some clean money.” The judge’s taunts, and the widespread coverage of his unsavory clientele, smudged Darrow’s reputation. But his work saved Tennes and his bookies from jail.2
The next infamous addition to Darrow’s roster of clients was Oscar De Priest, an African American alderman who ran the South Side’s Black Belt for the Thompson-Lundin machine.
Like many black citizens of the city, De Priest was a refugee from the South. He made his way to the Midwest as a laborer and bookkeeper and amassed a tidy fortune in real estate. He was the first black man to serve on the city council, where he introduced a measure to grant civil rights to his constituents. It was not well received. Race relations were “as nearly perfect as human nature will permit,” the Tribune assured its readers, three years before the devastating race riot of 1919 tore the city apart. “Thoughtful Negroes know this.”
In 1917, De Priest was snared by state’s attorney Maclay Hoyne, a crime buster conducting an Ahab-like pursuit of Thompson. Hoyne’s men raided City Hall, hauled off files, and sought a warrant to arrest the chief of police. A police captain testified that “vice conditions have flourished unchecked in the riotous cafes of the black belt” with “black men and white women, and white men and black women” indulging in “unspeakable orgies” between “midnight and dawn, drinking and dancing indecent dances.” Few were surprised. On the sidewalks of south State Street “midnight was like day,” the poet Langston Hughes wrote. “The street was full of workers and gamblers, prostitutes and pimps, church folks and sinners.” But Henry “Teenan” Jones, a black nightclub owner, was pressured into testifying and told how De Priest collected payoffs in return for delivering protection from the police.
De Priest arrived at the Criminal Courts Building in a limousine, escorted by notables from the South Side. Preachers, businessmen, and women’s clubs supported him, for the city’s black community, knowing the corruption that existed at all levels of Chicago society, wondered why their leader had been singled out. He too hired Darrow. In court, Darrow described De Priest as a little guy, being boxed around by the big men who ran things in Chicago. Yes, he got payments from Jones and others, but they were campaign contributions, De Priest told the jury. The allegations against him were the concoctions of his political enemies. He might have used his clout to intimidate a few street cops, but he had no pull at police headquarters. “Gambling is a horrible crime,” Darrow drawled. “Why doesn’t our industrious state’s attorney attack it in the women’s clubs, where they play bridge and whist for money and prizes?”
The jury took seven hours to acquit De Priest. In 1928, he was elected to Congress and became the first black man to serve in the House since Reconstruction.3
HOYNE WAS FURIOUS but persevered. And obtaining the indictment and resignation of his next target—Police Chief Charles Healey—was a notable accomplishment. The chief was charged with taking $1,000 a month in graft from the poolrooms, brothels, and saloons. The state had incriminating records seized from City Hall, and wiretap transcripts of Healey’s phone conversations. Among the prosecution witnesses was Tom Costello, the chief’s bagman, who agreed to testify in return for leniency. Healey had been on the take, said Costello, since 1898. They had manufactured evidence, sold protection, and auctioned off promotions to crooked cops. It looked like a rock-solid case.
Healey was a stand-up guy and refused to implicate Thompson. On the witness stand, he claimed to not remember things. “My client stated some t
hings that were not correct,” Darrow was compelled to explain. “I deny that he lied.”
The defense was based on equal portions of cynicism and sentiment. Healey was no mastermind, Darrow told the jury, just a flawed cop who had tried to keep his head above the waters of corruption. The chief was frail and old, and had a modest home and a blind, devoted wife. He was a victim of the political rivalry between Hoyne and Thompson. Costello was the real schemer, framing Healey to save his own hide. Why, the chief’s miserable performance on the stand was proof, said Darrow, that Healey was not bright enough to organize a grafting ring.
“The state has told you he was a poor witness, and he was,” said Darrow. “Costello was a good witness; one of the cleverest.”
“I … confess that if I were mayor of this city, and knowing Healey as well as I know him now, I wouldn’t make him chief of police,” said Darrow. “It takes a clever man to be chief of police and keep out of jail—and this man is a child in the hands of Costello.”
The trial was a sensation, with the kinds of twists that lent defense attorneys “an aura of sulfur,” said lawyer Charles Erbstein, who worked with Darrow for the defense. There is no ready contemporary record that Darrow, as was said in the years after his death, would insert a thin piece of wire in a cigar to have jurors focus on the long, dangling accumulation of ash instead of the prosecution or its witnesses. But Erbstein accomplished much the same thing, with a broken watch that took endless noisy winding.
In the end, it was pathos that carried the day. “In poor man’s suit, baggy pants, floppy jacket, stringy tie,” Darrow “sang his song of humanity to the jurors,” Ben Hecht recalled.
Clarence Darrow: Attorney for the Damned Page 39
