Clarence Darrow: Attorney for the Damned

by John A. Farrell

  There was more at stake, obviously, than Scopes and his eighth-grade biology class. Modernity was on trial. The headline in Time magazine promised, “Light vs. Darkness.” And the Dayton prosecutors, thrust into the spotlight, focused on their duties. A regional attorney general, Thomas Stewart, led the Tennessee team, with Dayton’s own Wallace Haggard, the Hicks brothers—Sue and Herbert—and the lovable rascal Ben McKenzie and his son Gordon. Bryan brought his son, William Jr., to the trial as well.

  “I congratulate you on getting into it … The advertising this case will bring you will be worth untold money,” the Reverend Ira Hicks, a minister, wrote his brothers. “You will have no trouble in making the evolutionists who take the stand look like a joke.” Accomplished Red hunters sent the prosecutors dossiers on Darrow, Malone, and the ACLU. “From a friendly suit,” wrote Kinsley, “this case has suddenly changed to a cold, stern fight.”17

  THE KEY TO that midsummer’s showdown was, from the first, the issue of scientific testimony. The prosecutors always knew what their strongest argument was: the public’s right to run its own schools. A teacher had broken a law. End of story. There was no need, really, to debate Darwinism at all.

  “It is the easiest case to explain I have ever found,” Bryan wrote to Sue Hicks. “While I am perfectly willing to go into the question of evolution, I am not sure that it is involved. The right of the people speaking through the legislature to control the schools which they create and support is the real issue as I see it.”

  Darrow, of course, had grand matters to place before the country—issues of academic liberty, free thought, and scientific inquiry. He hoped, by calling scientists to the stand, to educate the public and alert them to the threat posed by rural zealots with their silly lockstep creed. And the defense was aided by public expectations. The country was looking forward to a spectacular debate on Monkeys and Man, led by the titans Darrow and Bryan. A cut-and-dried case that addressed only the question “Did John Scopes teach the theory of evolution?” would make it look like Bryan and his team had fled the field. So Bryan set out to collect an array of experts of his own. “We can confine the case to the right of the legislature to control the schools and easily win,” Sue Hicks wrote his brother Reese. “However, we want both legal and moral victory if possible.”

  The prosecutors felt cocky because Judge John Raulston, who would preside at the trial, had been “somewhat indiscreet,” as Hicks put it, when plotting the case with them. But the churchmen whom Bryan solicited were not so confident. They worried about how the Yankee press would describe their faith in virgin births and talking snakes. One by one, Bryan’s experts declined his invitation. And so, as the trial approached, the prosecutors returned to their initial strategy. They spoke no more about moral victories, and went to work on the judge, intent on keeping experts off the stand.

  Raulston was a deeply religious man, born in a mountain vale called Fiery Gizzard, down near the Alabama border. He was a lay preacher in the Methodist Church and had taken a few turns speaking at revivals. And he was an ambitious man who knew his constituents and shared their pride and insecurities. “Scientific testimony for either side would be impertinent and incompetent,” Hicks told him. “We have no desire to … allow the defense to turn loose a slush of scientific imagination and guesswork on our people, upon whom … these great lawyers from the north and northwest look with pity and compassion, denominating them a set of ignoramuses.”

  “If we can shut out the expert testimony, we will be through in a short time,” Bryan wrote a friend on the eve of the trial. “I have no doubt of our final victory.”18

  DARROW HAD VISITED Dayton at the end of June to take his turn before the Dayton Progressive Club. “He was somewhat disarmed to find the people, not dogmatic and intolerant, but open minded and of sound judgment,” Haggard told Bryan. Indeed it was so. Aside from the heat, Darrow thought Dayton a lovely little market town and he went to work wooing its residents. “He drawled comfortably and hadn’t any airs,” Scopes remembered. “He gave the impression he might have grown up in Dayton, just an unpolished, casual country lawyer.”

  Dayton charmed reporters as well. “The streets are asphalt, the electric lights work indoors and out … the girls are peaches and wear flapper clothes, the young fellows are stylish and collegiate,” wrote Jack Lait for the Hearst news service. “An airplane … roars over the town and no horses shy and no yokels stare.”

  Colby and Malone were in Dayton as well, and it was this trip that “convinced Colby he would be happier elsewhere,” said Scopes. The defendant and his lawyers had visited a courthouse in the mountains so Darrow and Colby could get a feel for local justice. “It was a rape case, and the defendant appeared to be a half-witted young fellow who wasn’t sure what was going on,” Scopes recalled. “His accuser was a young woman who seemed to know too well what was going on … She said she was pregnant and … as a means of escaping an embarrassing situation … had conveniently accused the poor devil of raping her.”

  A court-appointed counsel was botching the defense before an audience of gun-toting hillbillies. Colby was “overcome at the poverty, the ignorance and the uncleanliness of the inhabitants.” But Darrow, outraged, muttered, “I am going to defend that boy” and headed toward the bench. Neal and Scopes blocked him, told him that an outsider would only alienate the jury, and muscled him into the car.19

  Some wondered if Darrow was up to the task. Edgar Lee Masters wrote to Mencken, previewing the showdown. “I fear that you will find that Darrow is not the man to fight Bryan,” Masters wrote. “I have seen Darrow perform over and over again. He must have the stage set, a complaisant judge or a fixed jury to be bold and even there his forte is a speech, such as it is. He fails in cross examination due to his lack of concentration, patience, sequences of plan, pugnacity and will. I have seen Darrow quit cold more than once where he could see that it meant labor to fight, and where the publicity was doubtful, or adverse. In a word he lacks character.”

  Mencken didn’t disagree, but Darrow’s flaws were irrelevant, the newsman replied. Everyone understood the strategy. “The way to handle it is to convert it into a headlong assault upon Bryan. He is the central figure, not that poor worm of a school master,” Mencken wrote.20

  DARROW RETURNED TO Dayton on Thursday, July 9, the eve of the trial. He had turned sixty-eight that April, and age had surely weathered him; his famously unruly forelock was cut short and rather than falling across his brow stayed plastered to his scalp. Yet there were still signs of the younger man in the cavernous, piercing eyes and mighty cheekbones. His arrival at the depot was not so lonely as a later generation of dramatists would have it (in Inherit the Wind, “A long ominous shadow appears …”). Newsreel cameras, photographers, and a scrum of reporters recorded the scene. Darrow wore a quality suit, a straw skimmer, and a short white necktie that, in the style of the time, fell halfway down his chest. And, of course, there were the galluses, which were there as courtroom props—to snap with emphasis, or to hook his thumbs into during an emblematic shrug—as much as to secure his trousers.

  On the day before he left Chicago, Darrow encountered his friend Natalie Schretter at the railway station. She was with a young female lawyer whom Darrow much admired, and he sat himself between them on the train. He joked and chatted the whole way into town, on topics that ranged from Nietzsche to Kinsman. Darrow was “exuberantly happy—as gay as his bright red necktie” about the coming fight, Schretter recalled. He fondly described Amirus as “a real village cracker-barrel Nay-Sayer” and told the two young women, “His one wish was that his father could have come to Dayton with him.”

  With the rest of the visiting defense attorneys and the scientists who had come to testify on Scopes’s behalf, Darrow stayed the night in an empty, bat-ridden, and dilapidated eighteen-room house on the outside of town, known locally as “the Mansion” and rechristened “the Monkey House.” It was painted a faded yellow, with weathered brown trim. On the first night, it ha
d neither power nor running water. “Shaving and washing were out of the question; food not even remotely on the horizon,” the writer Marcet Haldeman-Julius, a friend of the defense, recalled.

  Ruby arrived, checked out the Monkey House, and persuaded a banker to move to his mountain cabin and let the Darrows have his home in town. Bryan and his wife were installed in the house of a local pharmacist. Mary Bryan had a poor opinion of the defense. Scopes, she wrote, “carries himself wretchedly … his whole appearance is simpering, weak and gawky.” Neal “has the appearance of being suddenly frightened up out of the grass like a startled rabbit.” Hays “is as forward and self-asserting as the New York Jew can be … His eyes are filled with shrewdness.” And Darrow “has a weary hopeless expression, which might well prove his lack of faith. He wears rather soiled suspenders and his favorite attitudes are shrugging, and thrusting his hands under his suspenders … He speaks very calmly and deliberately and is full of sarcasm and bitterness.”

  Ruby shared Mary Bryan’s prejudices toward Jews, but that was about all. She recalled, with a touch of acid, how the Great Commoner’s wife, whose health had been failing, was “wheeled into the courtroom by her nurse … [with] her dainty white gown, her beautiful countenance and graces and almost-saintliness.” There was no socializing. “I am not aware that [the Bryans] had any intention to be rude to me, but certainly they glanced the other way any time we were at all near each other.”21

  Mencken, with his suitcases, typewriter, and four bottles of Scotch, renounced the hazardous drive from Chattanooga—“The trip out and back gave me the worst scare I have had since the battle of Chancellors-ville,” he told his future wife—and checked into a boardinghouse, where he sat in his underwear each evening and crafted dispatches for the Sun. “Exactly twelve minutes after I reached the village I was taken in tow by a Christian man and introduced to the favorite tipple of the Cumberland Range: half corn liquor and half Coca-Cola,” he wrote. “It seemed a dreadful dose to me, spoiled as I was by the bootleg light wines and beers of the Eastern seaboard, but I found that the Dayton illuminati got it down with gusto, rubbing their tummies and rolling their eyes.”22

  Yet there were those who saw the shadows of the place, and darker forces at work. Seven years earlier in the little burg of Estill Springs, some sixty miles from Dayton, a prosperous black farmer, Jim McIlherron, had shot into a group of white youths who were pelting him with rocks, killing two of his attackers. A white mob murdered a black minister who tried to help McIlherron escape, captured the fugitive, chained him to a hickory tree, tortured and castrated him with red-hot irons, and roasted him alive as two thousand tormenters, drawn by the chance to “have some fun with the damned nigger,” cheered at his agony.

  “One hundred percent Americans are now endeavoring to persuade hilarious and sarcastic Europe that Dayton, Tennessee, is a huge joke and very very exceptional. And in proof of all this the learned American press is emitting huge guffaws,” wrote W. E. B. Du Bois in the NAACP journal, the Crisis. “The truth is and we know it: Dayton, Tennessee, is America! A great, ignorant, simple-minded land, curiously compounded of brutality, bigotry, religious faith and demagoguery, and capable not simply of mistakes but persecution, lynching, murder and idiotic blundering.…

  “Dayton, Tennessee, is no laughing matter. It is menace and warning. It is a challenge to Religion, Science and Democracy.”23

  THE TRIAL OPENED on Friday, July 10. To get to the redbrick courthouse, with its soaring clock tower and Romanesque arches, the spectators strolled through an arcade of refreshment stands selling fried chicken sandwiches, shucked corn, and watermelons, past booths where they could purchase religious tracts, including some from an itinerant Georgia preacher which insisted that blacks were not human. There were two or three stray souls in town “with obvious mental irregularities of a religious tendency” who would “chatter volubly to any one who will listen to them,” the Times reported, and arcade games, including one in which the challenge was to “Hit the Nigger Baby.” Further along, the town’s children were delighted by trained monkeys, and their parents charmed by the blind minstrels Will Grissom and Charlie Oaks, who filled the square with spirituals and country ballads. On the courthouse lawn a platform had been erected in the shade of a big maple tree, with rows of benches, and loudspeakers to convey the proceedings to the overflow crowd. Pits were dug to roast sides of beef.

  A thousand spectators climbed the central staircase to the second floor, where they jammed the courtroom, filling every seat and foot of standing room. They cheered Bryan, their hero, when he walked in. They waited patiently as Judge Raulston (wearing his best suit and accompanied by his wife and two daughters, Maryantha and Rose Comfort) gave the news-reel and newspaper cameramen full rein. And they bowed their heads as a fundamentalist preacher, L. M. Cartwright, opened court with a prayer that seemed to last for all eternity. The temperature soared as the day progressed. Like most men in the courtroom, Darrow doffed his jacket, showing lavender suspenders and a tan silk shirt, while Bryan joined those who waved palm-leaf fans distributed by a toothpaste company, on which was emblazoned the urgent question: “Do Your Gums Bleed?” It was the twenty-ninth anniversary, the newspapers noted, of Bryan’s Cross of Gold speech.

  Judge Raulston “is a pleasant faced man with a deep dimple in his chin,” wrote Mary Bryan, “who tries to make everybody comfortable and happy and wants to do the fair thing.” The morning was spent perfecting the indictment, which was suspect due to its hasty passage in May. It required a reading from the first chapter of Genesis and the following instruction from Raulston to the grand jurors, which ended any doubts of how the judge was leaning: “The school room is not only a place to develop thought, but also a place to develop discipline, power of restraint, and character,” he told them. “If a teacher openly and flagrantly violates the laws of the land … his example cannot be wholesome to the undeveloped mind.”

  Nor was it difficult, that first morning, to foresee that the issue of expert testimony would dominate the trial. When Darrow asked the judge for adequate time to summon scientists from their far-off campuses and laboratories, Stewart warned that any such testimony “will be resisted by the state as vigorously as we know how.” If the prosecution was persuasive, noted Kinsley, “Darrow’s case in Dayton is gone.”

  In the afternoon, a jury was selected: ten farmers, a gray-haired schoolteacher, and a clerk. They might as well “have been recruited from the Anti-Evolution League,” the Tribune noted. Darrow went through the motions of questioning the panel. “You say you couldn’t read. Is that due to your eyes?” Darrow asked one farmer. “No, I am uneducated,” the man replied. Darrow accepted him as a juror.24

  DARROW SPENT MUCH of the weekend at the Monkey House, conferring with the other defense attorneys and dueling, in the press, with Bryan. Mencken and friends snuck up on a gathering of “Holy Rollers,” and he treated his readers to a glimpse of the “barbaric grotesquerie” that they witnessed as the hill folk spoke in tongues, and jerked and leaped and babbled as if possessed by demons. Will Rogers, considering the spectacle from afar, accused the celebrants of unfairly infringing on the entertainers’ turf. “Ye Gods,” he wrote. Up against the show that was going on in Dayton, “What chance has a poor comedian got?”25

  To everyone’s delight, Friday’s formalities gave way to a roaring battle on Monday, when Neal rose and urged the judge to quash the indictment. He and Hays gave a number of specific and technical reasons why the Butler Bill violated the Tennessee constitution, and the prosecutors replied. There was an uneasy moment when McKenzie made a crack about “outside” lawyers, and then on Monday afternoon Darrow rose for the defense.

  It was a terribly hot southern day. “The peasants pack into the courtroom like sardines in a can, eager to see Darrow struck dead,” Mencken wrote his fiancée, Sara Haardt. “I have a window picked out and shall jump 40 feet when God begins to run amuck.” It was likely, Darrow knew, his lone opportunity to speak on the issue
s that had brought him to Dayton. In order to keep Bryan from ending the trial with a grand, soaring speech, the defense planned to waive closing arguments.26

  Darrow began with some genial banter, thanked the court for bestowing on him the honorary title of “Colonel,” and praised the locals for the courtesies that he and the others had received. Then his tone changed, and the mood in the courtroom was transformed as he pointed at Bryan and blamed him “for this foolish, mischievous and wicked act.” Darrow was off, lashing out at the fundamentalists “with a hunch of his shoulders and a thumb in his suspenders,” challenging “every belief they hold sacred,” the Times reported. “He prowled around inside the big arena of the courtroom, his voice sinking to a whisper at times, again rising in a burst of rage as his head dropped to his chest and thrust forward. He knew that he was defying the lightning.”

  If the Butler Act was upheld, said Darrow, “we will establish a course in the public schools of teaching that the Christian religion as unfolded in the Bible is true, and that every other religion, or mode or system of ethics is false.”

  “Would that be constitutional?” he asked. “If it is, the constitution is a lie and a snare and the people have forgot what liberty means.…

  “Here we find today as brazen and as bold an attempt to destroy learning as was ever made in the middle ages, and the only difference is that we have not provided that they shall be burned at the stake,” Darrow said. “But there is time for that, Your Honor,” he said mockingly. “We have to approach these things gradually.”

  Darrow was best with grand and sweeping themes, and here he had to argue technical points of law: Did the introductory “caption” of the act, as required, match its substance? Was the law properly crafted and uniform in application? Was the indictment sufficiently specific? But though the content was sometimes dry, Darrow’s performance made the afternoon memorable. He paced like a big caged cat. He tugged at his galluses. A small tear at the elbow of his shirt got bigger with each gesture, until his sleeve was in tatters.