Clarence Darrow: Attorney for the Damned

by John A. Farrell

  THE DEFENSE BEGAN to present its case on Monday, November 16, when Hays gave the opening statement.

  “Our defense is based upon a sacred ancient right, that of protection of home and life,” Hays said. The prosecution had told the story of what happened outside 2905 Garland Avenue, Hays told the jurors, now the defense would let them see what happened inside the house. At one point he had Ossian Sweet rise in the dock so the jurors could look at him as Hays described the doctor’s long journey, in the teeth of prejudice, to the day he proudly bought a home for his wife and daughter.

  Darrow and Hays called African American witnesses to describe the other instances in which black families had been driven by mobs from their homes, and friends who told the jury about the mounting fear in the Sweet home those two days in September. Philip Adler, a white reporter for the Detroit News, told how he was driving by early on the night of the shooting and saw a crowd of four or five hundred people gathered at the corner. Thinking they were drawn by a newsworthy fire or traffic accident, he stopped, and some in the mob told him they were there to get the Negroes out. Before the gunfire, he said, he heard a continuous pelting sound, like hail on a roof. And though they did not base their entire defense on the theory, Hays and Darrow suggested that Breiner may have been hit by a stray round fired by police.18

  On November 18, Ossian Sweet took the stand and gave what the Nation called “a vivid picture of the fear-ridden mind of a black man, terrified by a hostile crowd of whites.” When Toms objected to Sweet’s account of the racial violence he had witnessed in his life, Darrow responded: “This is the question of the psychology of the race … of how everything known to a race affects its actions.” The judge allowed the testimony.

  “A car had pulled up to the curb,” Sweet said, recounting the events of September 9. “My brother and Mr. Davis got out. The mob yelled, ‘Here’s niggers! Get them! Get them!’ As they rushed in, the mob surged forward.…

  “It looked like a human sea. Stones kept coming faster. I was downstairs. Another window was smashed. Then one shot—then eight or ten from upstairs.…

  “When I opened the door and saw the mob,” Sweet told the jury, “I realized I was facing the same mob that had hounded my people through its entire history.”19

  THE CLOSING ARGUMENTS began on November 24, the Tuesday of Thanksgiving week. Darrow began in the afternoon session. Extra police were called to handle the crowd. “A deep silence fell over the crowded noisy courtroom,” wrote Lilienthal. “The old man with the unutterably sad face and the great stooped shoulders seemed no mere lawyer pleading for hire. He seemed, instead, a patriarch out of another age, counseling his children, sorrowing because of their cruelty and hatred.”

  The Sweet defense team’s duty in the trial was to show that the shooting was justified. And they had been successful; it now seemed clear that a threatening mob had surrounded the doctor’s house that night. The witnesses who claimed that all was calm were lying, Darrow told the jurors, and any thinking man knew it.

  “Every one of them … perjured themselves over and over and over again to send twelve black people to prison for life,” Darrow said. “The almost instinctive hatred of the white for anything that approaches social equality is so deep and so abiding in the hearts of most white people that they are willing to perjure themselves on behalf of what they think is their noble, Nordic race.…

  “I don’t need to take any pains to prove to you what was the cause of this trouble down at Charlevoix and Garland, do I?” he asked. It was racism, pure and simple. “If you don’t know it, you are stupider than any people I have ever seen in the jury box yet, and I have seen some daisies in my time.…

  “Is there anything criminal about Dr. Sweet?” he asked them. “Would you be afraid to meet him in an alley? Not a minute. You know there is not the first element of criminality in him.” The real criminals, Darrow said, were out on the street that night. But the jurors had to get past their own racism to see it.

  “How many of you have close friends who have African blood in their veins? How many of you have visited their homes? How many of you have invited them into your home to dine with you? If no, why not? Is it anything except a long feeling of race distinction that has come to us? We know not where it came from or how deep it is. Is there anything else? You know there is not.”

  Hands thrust into his pockets, or thumbs stuck in the armholes of his vest, speaking conversationally, he reminded the jury of witnesses like Hubbard, who admitted during cross-examination how they had been coached. Darrow’s voice was “a low rumble; in it resounded all the misery his tired eyes had seen,” Lilienthal recalled, except when “suddenly the voice … rang out like a brass gong” and “every muscle of the huge body was tense and strained.”

  The mob on Garland Avenue was “gathered together just the same as the Roman Colosseum used to be filled with a great throng of people with their eyes cast on the door where the lions would come out,” Darrow said. “They were gathered together just as in the old days a mob would assemble to see an outdoor hanging, waiting for the victim with their eyes set on the gallows.

  “You gentlemen know the danger. One man might not bother about driving a Negro out of his home, but get 100, 500, 1,000—one man gathers from another, and mob psychology is the most dreadful psychology that man has to contend with,” Darrow told the jurors. “It is like starting a prairie fire, this gathering of a mob. Somebody comes along and throws a match into the dry stubble, and it spreads and spreads and spreads and the wind fans it and the flames make the wind and finally the two together, spreading and spreading, will pass all obstacles and devour everything in its way.

  “Before you know it, if it is not quenched, if the power of the state is not placed upon it, it has spread from neighbor to neighbor, it draws into its grasp the wicked and even the innocent, it draws into its grasp the evil and the good, until by mob psychology it sweeps all before it and destroys life and property and liberty, because each gathers force for the other until the power is irresistible.”

  At that, Darrow stopped, and court was adjourned for the day. “It was wonderful. Eloquent. Logical. People wept and jurors were moved,” Jo Gomon told her diary.

  That evening, after another Penguin Club event, Darrow tried to lure Gomon to his room. “Do you mind if I walked to the street car with you?” he asked, taking hold of her arm and drawing her through the lobby of the Wolverine Hotel.

  “I’d be delighted but I’m driving,” she said.

  “Then you’ll drive me home?” he said. “Come up to my room. I’m expecting a couple of interesting fellows over and we’ll read poetry.”

  But then Harriet McGraw and another friend who had accompanied Gomon that night joined them at the car. “You seem to be well protected,” Darrow said regretfully. “I was looking forward to having a nice long talk with you.”20

  MURPHY HAD AN ambitious agenda for Wednesday. It was the day before Thanksgiving, and he wanted to finish the closing speeches and give the case to the jury. With luck, they might even get a quick verdict. Darrow resumed, challenging the jurors to step outside their skin.

  “Put yourselves there, gentlemen, that is all I ask you, put yourselves there, with the history of your race back of you, with the stories of assaults and lynchings and destroying homes back of you, put yourselves there, with the injustice that has been inflicted upon blacks for all these centuries, and which is pursuing them still.”

  Acquit my clients, Darrow told the jurors, and repair the damage caused by America’s shameful original sin. “He seemed to be pleading more that the white man might be just, than that the black be free; more for the spirit of the master than the body of the slave,” said Lilienthal. But there were moments as well when, “aroused and angered, his head lowered like a fighter coming out of his corner, he turned upon the prosecutors, his arms swinging, eyes narrowed and pitiless.…

  “There are no more underground railroads or fugitive slave laws or whipping posts,” Lilie
nthal wrote. “But there are mobs and torches and trees hideous with swinging black shapes and there is suspicion, prejudice, hatred. And on the new battlefield, fighting a subtler foe, and one that may perhaps never be defeated, is Clarence Darrow, son of the Abolitionists.”

  Black people would one day gain equality, Darrow predicted. He urged the jurors to help them make the journey.

  “Do you think that these people, simply because their color is black, are to be forever kept as slaves of the white? Do you think that all the rights which you claim for yourselves are to be denied them?” he asked.

  “I do not believe it … Oh no. There are colored people of intellect, and colored people of courage, and colored people who risk their fortunes and their lives for their independence,” he said. “You cannot get rid of them, gentlemen, they are here.…

  “The world moves slowly, but it is forever grinding, and it grinds down injustice and wrong and prejudice and hate, even though it is by the slow and cruel process of years,” he said as he closed. “I ask you—more than everything else—I ask you in behalf of justice, often maligned and down-trodden, hard to protect and hard to maintain, I ask you in behalf of yourselves, in behalf of our race, to see that no harm comes to them.”

  It was not the argument of a cynic.

  After a brief recess, Toms sought to bring the case back from the lofty place where Darrow had raised it.

  “Darrow doesn’t want to look at it as a criminal case, but as a cross section of human nature,” said Toms. “But that’s not what we are here for.”

  “It isn’t your business” to settle the nation’s racial problems, he told the jury. “This courtroom is just a tiny speck in the world. We are not going to change anything here.…

  “What an insignificant figure Breiner has been in this argument, and yet we started out to find who killed him.”

  Toms turned to address Hays and Darrow.

  “All your specious arguments, Mr. Darrow, your artful ingenuity born of many years experience—all of your racial theories, Mr. Hays, all your cleverly conceived psychology, can never dethrone justice in this case,” Toms said. “Leon Breiner, peaceably chatting with his neighbor at his doorstep, enjoying his God-given and inalienable right to live, is shot through the back from ambush. And you can’t make anything out of those facts, gentlemen of the defense, but cold-blooded murder.”

  DARROW AUTOGRAPHED BOOKS when the court adjourned for lunch. Then he invited Gomon to dine with him. They both were disappointed when Ruby arrived in the courtroom.

  “Aren’t you going to lunch, D?” Ruby asked her husband.

  “No, I don’t want anything. Haven’t you had lunch?”

  “Certainly not, and the Hayses want us to go out with them.”

  “Tell them I’m busy. Can’t possibly get away. Have to see some people. And I don’t want any lunch anyway. You go with them,” he told her.

  She tried to persuade him to eat a little something at least. “I don’t want anything,” he snapped. Once Ruby left the courtroom, Darrow returned to Gomon. “A married man isn’t even supposed to know when he wants to eat,” he chuckled. “Well, I guess we can go now. How about it? Do you know some place where we can get some wine?”

  Darrow collected his coat and hat, and he and Gomon set off for their private get-together. To their dismay, they ran into Ruby and Hays and his wife in the lobby.

  “Where you going Clarence? Change your mind about lunch?” Hays asked. Yes he had, said Darrow. They would have to “get this party over with,” he murmured to Gomon.

  “Ruby was a hair shirt to him,” Toms noted. “He used to complain, volubly and occasionally profanely.”21

  MURPHY MET HIS timetable. By three thirty that afternoon, the jury had been charged and began its deliberations. The great throng of Negro spectators lingered in the courtroom and spilled out into the corridor. But the quick verdict that many had expected proved elusive. The jurors argued, asked the judge to clarify some questions of law, and debated until two a.m. on Thanksgiving morning. After a few hours’ sleep, they resumed their disputation, broke for a turkey dinner, and kept at it until eleven p.m.

  “All Thanksgiving Day colored people remained waiting and watching, many of them going without Thanksgiving dinner in order to be on hand,” White reported. At times, angry shouts, profanities, and the scraping of chairs could be heard through the closed door of the jury room. “I’ll stay here twenty years, if necessary, and I am younger than any of you,” one man was heard to shout. The jurors told the judge they were deadlocked, but Murphy held them for another night.

  Darrow, Hays, and White had their holiday supper at the black community’s YMCA, where Gomon joined them after leaving her children with her husband. They then returned to the courthouse, where a helpful clerk—“fairly well lit” on illicit whiskey—opened up a nearby courtroom. “We took a bottle of scotch and adjourned,” Gomon told her diary. At one point that evening, after she expressed her opposition to Prohibition, Darrow reached over and took her hands and said, “We are affinities. To think that I should ever hear such an opinion from a woman.”

  At one thirty Friday afternoon, some forty-six hours after the jury began its deliberations, Murphy declared a mistrial. All twelve jurors agreed that eight of the defendants were not guilty, and five jurors had accepted Darrow’s plea to acquit all eleven defendants. But seven jurors voted over and over again to convict Ossian and Henry Sweet and one other man for a lesser charge of second-degree murder.22

  DARROW WAS DISAPPOINTED, yet satisfied with the outcome. If it wasn’t the big triumph that the NAACP had hoped for, the jury’s skeptical reaction to the prosecution case made it highly unlikely, he believed, that Toms would ever get a conviction. After a few days’ reflection, Hays reached the same conclusion. “I expect the victory to be complete the next time,” he wrote Johnson.

  Given this reassurance, the NAACP leaders were reluctantly content. “We have got to go over the whole thing again,” White told a friend. But “it was a magnificent fight and all decent public opinion has been swung to our side.” Besides, the mistrial would allow them to keep the fundraising machine running. In the end, the Sweet trial would help bring in $75,000 to the organization.23

  Back in Chicago, Darrow handled, without pay, the defense of Fred Curry, a penniless fourteen-year-old Negro youth who had stabbed an Italian American boy in a racial scuffle at school. Curry was thirteen at the time of the fight but was indicted in adult court for manslaughter. Darrow persuaded a judge to keep the case in juvenile court, and the boy was sent to a reformatory.

  In mid-December, Darrow traveled to New York, where Mary caught up with him at his hotel. He hosted Hays and the NAACP officials to plan strategy for the retrial of the Sweet case and gave a speech on Darwin. Darrow’s old newspaper friend Neg Cochran stopped by to see him. So did Dudley Malone, Carl Sandburg, and a slim and beautiful sister of the poet Edna St. Vincent Millay. Judge Murphy was in town and joined the group for a raucous lunch with cigarettes and a fine, illegal, well-aged bottle of whiskey. That evening, Mary and Lem had Sandburg, Darrow, and Cochran to their house for dinner and then she drove Darrow to a Jewish center in Brooklyn for another speech on evolution. In the car on the way back to Manhattan, Mary and Darrow analyzed his fame. “Mary, I am terribly famous and goddamn unimportant,” he said. He rounded out his visit to New York with a speech that drew four thousand people to a fundraiser for the NAACP in Harlem. Before he left, Darrow told White that he would handle the retrial without charging a fee, if need be, and would pay his own expenses.

  Darrow and Ruby spent the Christmas “hollow days,” as he called them, with Paul and his family in Colorado, but in January he was home and traveling widely again—to New York, Michigan, Missouri, Pennsylvania, Maryland, and Washington, where he testified before Congress on the folly of capital punishment. If deterrence was the goal, as some of the congressmen argued, then the government should return to public hangings, Darrow said, with a school holi
day so that children could attend.24

  In March, a few weeks before his sixty-ninth birthday, Darrow returned to Ann Arbor to debate the League of Nations with the Harvard law professor Manley Hudson. Ruby was not with him, but Jo Gomon was. Instead of taking the direct train home to Chicago, he drove with Jo and her friends to Detroit. She sat with him in the car, and he held her hand. “If you are really fond of me, I can forgive you for thinking me an old fool,” he told her.

  Darrow wasn’t much interested in the talk or opinions of Gomon’s friends—just her. “I like pretty women and women with brains, but I rarely meet the latter,” he explained. And then there were the “impossible” ones—the type “who thinks she has brains, and hasn’t.” Such women were “natural reformers,” he said. “It is as much a part of them as clothes. They don’t know how to enjoy life.”

  But Gomon wasn’t like that. “You belong to a small group of women that a man can talk to and love too,” he told her. Gomon blushed and Darrow chuckled. It was long past midnight when they sat down in a restaurant at the Michigan Central station in Detroit. Even at that hour, well-wishers gathered around. Darrow told a few stories, then caught a late train for Chicago.

  Gomon admired Darrow, and was flattered and confused by his attention. “It is not only embarrassing—it is most annoying—even humiliating to have intellectual interest and conversation continually fall back onto the personal,” she told her diary. “Some of my lady purists would call Darrow an old reprobate because of his harmless and perhaps senile flirtations.”

  Darrow was pressing her to come visit him in Chicago. As unlikely was the notion of a love affair, she knew that she could hold hands for only so long. “I am no infant, and to go on playing the part is not going to always save me from embarrassing situations,” she wrote. “The obtrusion of sex on interesting social life can be somewhat circumvented by ignoring the fact—but not entirely.” Recognizing this, she was drawn to Darrow nonetheless. “Behind [his] commonplace advances there stands always discernible the giant intellect and compelling personality.” Ruby had seen this act before and recognized what was happening with her gallant cavalier. When Darrow returned to Detroit she politely, but obviously, made sure she was around when Gomon was present.