“But as compared with the families of Leopold and Loeb, they are to be envied. They are to be envied, and everyone knows it.
“I do not know how much salvage there is in these two boys. I hate to say it in their presence, but what is there to look forward to? I do not know but what your Honor would be merciful if you tied a rope around their neck and let them die; merciful to them, but not merciful to civilization, and not merciful to those who would be left behind. I do not know; to spend the balance of their days in prison is mighty little to look forward to, if anything.”
He wiped tears from his eyes with the back of a trembling hand as once more, softly, he read a verse from Housman.
Now, hollow fires burn out tonight,
And lights are guttering low;
Square your shoulders and lift your pack,
And leave your friends and go.
Don’t ever fear, lads, naught’s to dread
Look not left nor right;
In all the endless road you tread,
There’s nothing but the night.
“Whether the march begins at the gallows or when the gates of Joliet close upon them, there is nothing but the night,” said Darrow.
“None of us are unmindful of the public; courts are not, and juries are not,” Darrow told the judge. He was coming to the end. “I have stood here for three months as somebody might stand at the seacoast trying to sweep back the tide. I hope the seas are subsiding and the wind is falling and I believe they are. But I wish to make no false pretense to this court. The easy thing and the popular thing to do is to hang my clients. I know it.
“Men and women who do not think will applaud. The cruel and the thoughtless will approve,” he said.
Through the open windows came the muffled noise of the streetcars, and of passing automobiles. But inside the courtroom, the only sound was of Darrow’s voice. And now it was breaking.
“Your Honor stands between the future and the past,” he said. “I know the future is with me, and what I stand for here; not merely for the lives of these two unfortunate lads, but for all boys and all girls; all of the young, and as far as possible, for all of the old. I am pleading for life, understanding, charity and kindness and the infinite mercy that forgives all. I am pleading that we overcome cruelty with kindness and hatred with love.
“I know the future is on my side,” he said, stretching his arms in supplication to the bench. “You may hang these boys; you may hang them by the neck til they are dead. But in doing it you will turn your face toward the past. In doing it you are making it harder for every other boy.”
Or “you may save them,” he told Caverly, “and it makes it easier for every child that some time may sit where these boys sit. It makes it easier for every human being with an aspiration and a vision and a hope and a fate.
“I am pleading for the future,” Darrow said. “I am pleading for a time when hatred and cruelty will not control the hearts of men. When we can learn by reason and judgment and understanding and faith that all life is worth saving, and that mercy is the highest attribute of man.”
He stood sorrowfully, wiping more tears from his eyes. It was almost four p.m. “I feel that I ought to apologize for the length of time I have taken. This may not be as important as I think it is, and I am sure I do not need to tell this court, or to tell my friend Mr. Crowe, that I would fight just as hard for the poor as for the rich.
“If I should succeed in saving these boys’ lives and do nothing for the progress of the law, I should feel sad, indeed. If I can succeed, my greatest award and my greatest hope and my greatest compensation will be that I have done something for the tens of thousands of other boys, for the other unfortunates who must tread the same way that these poor youths have trod, that I have done something to help human understanding, to temper justice with mercy, to overcome hate with love.
“I was reading last night of the aspiration of the old Persian poet, Omar Khayyám. It appealed to me as the highest that I can envision. I wish it was in my heart, and I wish it was in the heart of all, and I can do no better than to quote what he said:
So I be written in the Book of Love,
I do not care about that Book above.
Erase my name or write it as you will,
So I be written in the Book of Love.
And so he ended, with his beloved Rubáiyát, in a voice so soft and tremulous that only he and Caverly and a few others could hear him. For a time the audience waited in silence. A minute. Two minutes. He leaned over and, eyes tearing, shuffled the papers before him. He nodded his head, and sat down.16
DARROW BELIEVED THAT the study of criminal justice was at a turning point, and that he represented a wiser and more compassionate future. And maybe as the Progressive Era drew toward its end, he had reason to believe it. It was nice to think so.
His faith was misplaced. The future had nothing but worse in store—a new world war to eclipse the old one, tactics to torment civilians, crazed theories of racial and religious supremacy, death camps and atomic fire. Over time, Darrow’s America would be ripped by witch hunts, race riots, drug-fueled crime, and reborn enthusiasm for dispatching millions of citizens to its broken prisons. Thousands, including innocents and teenagers, would be sent to death rows, to gallows and gas chambers, firing squads and electric chairs and gurneys with poison drips. The future, this day, was not Clarence Darrow’s. The future was Robert Crowe’s.
He began by deriding Darrow as “the distinguished gentleman whose profession it is to protect murder in Cook County.” He ridiculed White and the other defense psychiatrist as “the three wise men from the East who came on to tell your honor about these little babes.” And, almost immediately, he resumed his attempt to bully Caverly. “If a jury were sitting in that box and they returned a verdict and did not fix the punishment at death, every person in this community, would feel that that verdict was founded in corruption,” he told the judge.
For parts of three days Crowe ranted, until his nasal voice faded to a hoarse croak. He shouted and stamped and waved his arms. “Now he thrust his face, purple with the strain of his apoplectic speech, into the faces of Loeb and Leopold, now he strode before Judge Caverly, shaking his fist as he put all his lung power into some climax or other,” the Daily News said. “It was all climax … There were no valleys in the speech, just peaks … strident, impassioned, almost delirious.”
Crowe marched upon Leopold. “I wonder now, Nathan, whether you think there is a God or not,” he snarled. “I wonder whether you think it is pure accident that this disciple of Nietzschean philosophy dropped his glasses—or whether it was an act of Divine Providence to visit upon your miserable carcasses the wrath of God!”
The killers “are as much entitled to the sympathy and mercy of this court as a couple of rattlesnakes, flushed with venom, coiled and ready to strike,” Crowe told the judge. “They are entitled to as much mercy … as two mad dogs.” They were “perverts” with “a desire to satisfy unnatural lust.” For the first time in the trial, Crowe accused the boys of raping the dead or dying Bobby Franks. “Immediately upon killing him they took his trousers off … His rectum was distended,” the prosecutor said. “This little naked body lay in the water all night long with running water going over it, and that is why there wasn’t any other evidence … There was no evidence of semen, but it was washed away, I contend.”
When the defense objected and a debate erupted over the coroner’s report (which was ambiguous on the issue), Caverly had the courtroom cleared of all female spectators. “I have asked the ladies to leave the room … I want you to leave … There is nothing left here now but a lot of stuff that is not fit for you to hear.”
And finally, as he drew toward the end, Crowe found a target on which to blame the crime, the disorder, and the chaos of the times.
“I want to tell you the real defense in this case, your Honor. It is Clarence Darrow’s dangerous philosophy of life,” Crowe said. “It would be much better if God had not cau
sed this crime to be disclosed. It would have been much better if it went unsolved … It would not have done near the harm to this community as will be done if your Honor … puts your official seal of approval upon the doctrines of anarchy preached by Clarence Darrow.”
Then Crowe made a terrible blunder. He ended his address by hauling out, one last time, the specter of the “friendly judge.” The killers “have laughed and sneered and jeered” throughout the trial, Crowe said. “If the defendant, Leopold, did not say that he would plead guilty before a friendly judge, his actions demonstrated that he thinks he has got one.”
Darrow leaped to his feet and objected. Judge Caverly flushed, and ordered the court stenographer to make sure to take the words down carefully. Crowe sensed the judge’s anger, stammered on a bit, and sat down.
Caverly fumed in silence as Crowe took his seat. Caverly fumed in silence as the lawyers went through the formalities of applying the testimony from the murder case to the other count, of kidnapping. Caverly fumed in silence until Crowe announced, “The state rests.” And then the judge let him have it.
“The court will order stricken from the record the closing remarks of the State’s Attorney,” Caverly said, as the startled reporters and spectators looked up, “as being a cowardly and dastardly assault upon the integrity of the court …”
“It was not so intended, your Honor,” Crowe said.
“… And it could not be used for any other purpose except to incite a mob and to try and intimidate this court. It will be stricken from the record.”
“If your Honor please …,” Crowe said.
“The State’s Attorney knew that would be heralded all through this country and all over this world, and he knows the court hasn’t an opportunity except to do what he did … This court will not be intimidated by anybody at any time or place as long as he occupies this position.”
It is not easy to dismiss the thought that after all the weeks of testimony and all the hours of argument, the lives of Nathan Leopold and Richard Loeb were saved in the end by Robert Crowe’s intemperance. As he left the bench that day, Caverly seemed more concerned about showing that he could not be bullied than about the public backlash if he sent the youths to jail.17
So it was. On September 10 they gathered again in the little courtroom to hear Caverly read his decision. As he began, the judge sounded like he was prepared to hang the youths. They were not insane, he declared. And while the killers were “abnormal,” Caverly said, that came as no surprise. “Had they been normal they would not have committed the crime.” The testimony of the psychiatric witnesses was a valuable contribution to criminology, said the judge, but would not affect his decision. “The court is satisfied that neither in the act itself, nor in its motives or lack of motives, or in the antecedents of the offenders, can he find any mitigating circumstances.”
Loeb and Leopold looked pale and stricken. Then Caverly swiveled. “In choosing imprisonment instead of death, the court is moved chiefly by the consideration of the age of the defendants, boys of 18 and 19 years,” he declared. Darrow had read Caverly correctly. Precedent was the key. “This determination,” said the judge, “appears to be in accordance with the progress of criminal law all over the world and with the dictates of enlightened humanity. More than that, it seems to be in accordance with the precedents hitherto observed in this State.
“The records of Illinois show only two cases of minors who were put to death by legal process,” said the judge, “to which number the court does not feel inclined to make an addition.”
Darrow had won. He was delighted and relieved. “Well, it’s just what we asked for,” he told the reporters who gathered around him as Leopold and Loeb were taken back to their cells. “But it’s pretty tough,” he added. “It was more of a punishment than death would have been.”
Not too much later, a reporter caught up to Darrow in the lobby of his hotel on a speaking trip to Omaha, and asked him what fate awaited his clients. Darrow slouched on the plush red divan, stared awhile at his “stern black shoes,” then said: “They’ll never get out. Probably both be dead in 10 years. Suffering from dementia praecox. Getting worse.”
When friends asked him privately what he would do if he was the judge, he replied: “For the good of society and for the good of the boys, I’d deal with them quite differently. Loeb would be quietly, painlessly put to sleep—not as punishment, for he is already doomed and life holds nothing for him. Death would be a merciful release.
“But Leopold’s case is different. He has scientific genius of high order; he may be another Darwin. I would, of course, restrain him, but in a place where he would have all laboratory facilities. Keep him confined until he has saved himself—through work.”
Darrow’s sympathy for the youths was not contrived. Over the years he visited and wrote them, from time to time, and offered advice on how to get by behind bars. In the last few hours before he was taken to Joliet, Leopold wrote a long letter of thanks to his attorney.
Some of what Leopold wrote was chilling, as when he praised Darrow’s intellect. “This one attribute of Man has always appealed to me more strongly than any other, and since you happen to possess more of it than any other man whom I have had the pleasure of meeting, this alone would cause me to bow down in abject hero-worship,” the killer wrote. “It would be an inconsistent ‘Superman’ indeed who did not reverence his superior.”
But Darrow’s compassion had touched even Leopold. “Grant then intellect and courage … and we haven’t begun to describe you,” he wrote. “What of that heart in which there is room for all the world even including murderers and State’s Attorneys? What of that spontaneous sympathy and understanding which instantly goes out from you to the most dastardly criminal? It were sacrilege for me who so utterly lack them, to attempt to measure them. But even lacking them, I can admire and wonder in awe.”
DARROW HAD SUGGESTED throughout the trial that this might be his last criminal case. He vowed to spend his retirement leading a public campaign against capital punishment. The paycheck he expected from the families would finance his golden years of writing and travel.18
His health was a worry. After hearing Caverly’s decision, Darrow and Ruby had joined Leopold’s father and brother on the evening train for Charlevoix to meet with Loeb’s parents and recuperate at the family estate. They arrived after midnight and Darrow, complaining of chest pains, went to bed until noon.
No mention was made of money, and thirteen months passed, said Ruby. Then one evening Darrow came home “weary-looking, sat down on the edge of the big brass bed … glancing up at me standing at service as usual,” and told her he had met with Jacob Loeb, and accepted a meager settlement.
Loeb had told him: “Clarence, you realize that the world is full of lawyers who would have paid a fortune for the chance of distinguishing themselves as representatives in this case.”
“You know I couldn’t let it be said that I haggled about the price,” he told Ruby.
In reality, the settlement took three months—not thirteen. On December 9, the Loeb and Leopold families offered Darrow $65,000, and he signed his acceptance. The Bachrachs received another $65,000, and the deal was approved by a bar association committee in January.
Darrow was sore. He had suggested at one point in the negotiations that his work was worth $200,000, at which point a representative of the families had complained of feeling faint. It was a lot of money, Darrow acknowledged, but when the families “with an aggregate wealth of ten million dollars came to me pleading for me to take the case … nobody fainted then.”19
Chapter 18
THE MONKEY TRIAL
The state of Tennessee don’t rule the world yet.
Williams Jennings Bryan resigned as secretary of state in 1915 to protest President Wilson’s decision to take sides against Germany in World War I. It was the most prestigious office that Bryan ever held and he had schemed to get it, but he was appalled at the brutality of warfare in the industrial
age. He moved to Florida, where he made a fortune in the real estate boom, switched his focus to religion, and reemerged in the 1920s as the country’s foremost critic of Charles Darwin’s theory of evolution.1
Bryan was a devout Christian, and his populist beliefs went strongly against the notion of “survival of the fittest,” which had been cited by the robber barons to justify the injustice of their era. He saw natural selection as “the law of hate—the merciless law by which the strong crowd out and kill off the weak.” And his wartime studies persuaded him that German militarism, inspired by the teachings of Darwin and Nietzsche, was responsible for the carnage. He followed the Leopold and Loeb case closely, took note of their debt to Nietzsche, and added the death of Bobby Franks to the toll.2
Bryan’s alarm found a ready audience. In many Baptist, Methodist, and Pentecostal congregations in that broad swath of the southern and western United States known as the Bible Belt, the faithful yearned for a return to simple verities. There was a feeling that something was wrong, that the truths of their childhood had been taken from them. These self-anointed “fundamentalists” believed that the Bible was the Rock of Ages—written by God and given to man, an infallible guide to good behavior and the path to paradise. And in Genesis they found a story of creation, and man’s place at the center of the universe, that made no mention of apelike ancestors.
Bryan had joined with the religious conservatives in support of Prohibition. Now he toured the country alerting crowds to “the Menace of Darwinism.” He wrote newspaper articles, visited colleges, and addressed state legislatures, urging them to ban the teaching of evolution in the public schools. Critics found his moral outrage selective. Bryan had always been cool to the issue of civil rights, and defended the Ku Klux Klan from attacks at the 1924 Democratic convention. “How petty, mean and contemptible Bryan … is,” Eugene Debs wrote Darrow, the following summer. “This shallow-minded mouther of empty phrases, this pious canting mountebank, this prophet of the stone age.”
Clarence Darrow: Attorney for the Damned Page 44
