“Mrs. Darrow doesn’t like me,” Gomon told Darrow after Ruby had canceled a social engagement.
“You can’t blame her, can you?” Darrow replied. “You know what I think of you.”25
THE RETRIAL WAS scheduled for April with several changes in the cast. Darrow was back, and so were Judge Murphy and Toms. But Hays was busy in New York, and at Darrow’s urging the NAACP hired Thomas Chawke, a top-notch criminal defense lawyer in Detroit. Chawke insisted on $7,500 and a guarantee that the defense would conduct the kind of investigation into the backgrounds of the potential jurors that Darrow had not had in the first trial.26
The most significant change, however, was the identity of the defendant. Instead of trying all eleven black men, Toms had singled out Henry Sweet, who had confessed to the police that he fired a rifle from an upstairs window. Darrow was content; both he and Toms wanted a clear-cut victory and attributed the November mistrial to the jury’s inability to allot guilt or innocence among so many potential culprits.
The trial got under way on April 19. “In examining the prospective jurors, Darrow and Chawke probed pretty thoroughly into their lives,” the Free Press reported. Armed with information gathered by Chawke’s investigators, he and Darrow took five days, methodically working their way through 197 candidates, before settling on a jury.
Toms had no surprise witnesses; he stuck with the roster that he used in November. “I am not prepared to show who fired the shot that killed Breiner … there is no way to find out,” he told the jury in his opening statement. “Either Henry Sweet did, or he aided and abetted the man who did. We will show that Henry Sweet fired shots.”
The testimony followed the pattern set in the first case. By the end of the week, the defense had “succeeded … in drawing from witnesses admissions that a crowd had gathered in the vicinity, that stones were hurled at the Sweet residence prior to the shooting, and that people in the neighborhood were opposed to the presence of Negroes,” the Free Press reported. Darrow and Chawke were helped by the failure of several prosecution witnesses to remember and repeat the stories they told in the first trial, leaving them vulnerable on cross-examination.
One new feature from the second trial was the admission by a prosecution witness named Andrews, under tenacious questioning by Darrow, that speakers at the Waterworks Park meeting had urged residents in the neighborhood to use violence, if necessary, to keep the blacks out.
Q: “Did the speaker talk about legal means?”
A: “I admitted to you that the man was radical.”
Q: “Answer my question. Did he talk about legal means?”
A: “No.”
Q: “He talked about driving them out, didn’t he?”
A: “Yes, he was radical, I admit that …”
Q: “In what way was he radical?”
A: “Well I don’t—I myself do not believe in violence.”
Q: “I didn’t ask you what you believed in. I said in what way was he radical … You did not rise in that meeting and say, ‘I myself don’t believe in violence,’ did you?”
A: “No, I’d had a fine chance with 600 people there.”
Q: “What? You would have caught it, yourself, wouldn’t you? You wouldn’t have dared to do it at that meeting …”
A: “I object to violence.”
Q: “Did anybody—did anybody in that audience of 600 people protest against advocating violence against colored people who moved into the neighborhood?” A: “I don’t know.” Q: “You didn’t hear any protest?”
A: “No.”
Q: “You only heard applause … You heard nobody utter any protest, and all the manifestation you heard was applause at what he said?”
A: “Yes, that is all.”
Toms tried to perform some repairs under redirect examination but only made things worse.
“Did he advocate violence?” Toms asked.
“I said this man was radical,” the witness replied.
“I know you did. Did he advocate violence?”
“Yes,” the witness said.
Darrow said later that his pinning of Andrews was just a matter of chance. Lawyers flail around on cross-examination, he said, and sometimes they find a prize.
The journalistic chorus had changed. White was replaced by James Johnson. And Lilienthal’s part was sung by Marcet Haldeman-Julius, who, like her predecessor, left a vivid account of a trial that, because the defendants were black, did not command the attention of white newspaper editors.27
Marcet was struck by the African Americans who came to court each day. “There were toil-bent people and successful-looking businessmen; artists stamped with modernity, and a wistful, wrinkled little woman whom Judge Murphy thoughtfully decreed should always be admitted and safely seated. But however they varied, those faces … there was in them all the same vigilant anxiety,” she wrote. “All hung on Darrow’s every word and marked well Judge Murphy’s every ruling. Only occasionally allowing themselves a low contemptuous laugh at some too flagrant prevarication or an approving murmur at a quick and just retort, they listened for the most part silently.”
CHAWKE PROVED MORE than able. His staccato questioning forced a flustered police lieutenant who had initially denied that there were an unusual number of cars cruising the neighborhood on the night of the shooting to admit that the police closed off the street because, as the officer finally, and glumly, acknowledged, “there was a considerable amount of traffic.”
Though Chawke had viewed the case as just another murder trial, and taken it largely for the fee and the publicity, he told Marcet that his heart was touched, as the trial proceeded, by the plight of the black defendants. “He became, once he got into it, more and more deeply interested in all its implications; more and more concerned for the issues involved,” she wrote. It showed in Chawke’s closing address, which preceded Darrow’s, on May 10. “I arise to present this man’s defense to you,” Chawke told the jury. “I appreciate the high honor which he has done me in selecting me to assist in a defense in the charge of a crime which is made, not only against him, but against ten others of his race.”
DARROW BEGAN THE next morning in a relaxed, conversational manner. “There is nothing but prejudice in this case,” he told the jury. “If it was reversed, and eleven white men had shot and killed a black while protecting their home and their lives against a mob of blacks, nobody would have dreamed of having them indicted … They would have been given medals instead.…
“That is all there is to this case,” he said. “Take the hatred away and you have nothing.”
To meet the demand of those who wanted to hear Darrow speak, dozens of folding chairs had been brought into the courtroom, and filled every inch of space. “The serried rows of colored faces that packed the courtroom from the rail to the back wall, watching and waiting, were like so many tragic masks,” Johnson wrote. “The rugged face of Clarence Darrow, more haggard and lined by the anxious days, with the deep, brooding eyes, heightened the intense effect of the whole.”
“His voice went on and on, always interesting, always fascinating, always holding the attention of judge, jurors and audience,” Gomon told her diary. Sometimes he spoke with his hands in his pockets, his shoulders up in a characteristic shrug. He would point a finger, or throw his arms out wide, and swing them in half a circle. “He remained a tower of ceaseless energy, every muscle of his body strained and eager.”
Sweet “bought that home just as you buy yours, because he wanted a home to live in, to take his wife and to raise a family,” Darrow said. And “no man lived a better life or died a better death than fighting for his home and his children.”
Some of the Negro spectators were quietly weeping.
“I do not like to speak of it in the presence of these colored people, whom I have always urged to be as happy as they can. But it is true. Life is a hard game, anyhow, but when the cards are stacked against you it is terribly hard. And they are stacked against a race for no reason but that they are
black,” he said. “Their ancestors were captured in the jungles and on the plains of Africa, captured as you capture wild beasts, torn from their homes and their kindred; loaded into slave ships, packed like sardines in a box, half of them dying on the ocean passage; some jumping into the sea in their frenzy, when they had a chance to choose death in place of slavery.”
It was almost five p.m. when he stood at last before the jury, worn from the long day of intense intellectual exercise, and lifted his arms out toward them, hands outspread.
“I believe the life of the Negro race has been a life of tragedy, of injustice, of oppression. The law had made him equal, but man has not,” Darrow said. “I know there is a long road ahead of him, before he can take the place which I believe he should take. I know that before him there is suffering, sorrow, tribulation and death among the blacks, and perhaps among the whites. I am sorry. I would do what I could to avert it. I would advise patience; I would advise toleration; I would advise understanding.”
Now he was leaning over the jury rail, his voice a hoarse whisper.
“I have watched, day after day, these black tense faces that have crowded this court. These black faces that now are looking to you twelve whites, feeling that the hopes and fears of a race are in your keeping,” said Darrow. “This case is about to end, gentlemen. To them, it is life. Not one of their color sits on this jury. Their fate is in the hands of twelve whites. Their eyes are fixed on you, their hearts go out to you and their hopes hang on your verdict.
“That is all. I ask you, on behalf of this defendant, on behalf of these helpless ones who turn to you … I ask you in the name of progress and of the human race, to return a verdict of not guilty in this case.” His face was white and tense from exhaustion as he sat down.
Johnson was unequivocal in his praise. “For nearly seven hours he talked to the jury. I sat where I could catch every work and every expression of his face,” Johnson wrote. “It was the most wonderful flow of words I ever heard from a man’s lips.…
“When he finished I walked over to him to express … my appreciation and thanks,” Johnson recalled. “His eyes were shining and wet. He placed his hands on my shoulders. I stammered out a few words but broke down and wept, and I was not ashamed of my tears.”
TOMS GAVE THE final closing argument the next day. He cast Breiner as a victim not of fear, but belligerence.
Even if there were five hundred people gathered around the corner that night, Toms said, people had a right to be curious, to gather outside on a warm night, to talk with neighbors and watch the excitement. “Did you ever do it? In the middle of the summer, did you ever go over to the corner store for a paper or a cigar without your coat on? Maybe in your slippers. Maybe you took a youngster along with you, and you met some neighbors over in the drug store, and you stopped to chat about the ball game that day, or how rotten the Tiger pitcher was, or how bad business is; maybe walked back with your neighbors,” Toms said. “Would you like to be called a cowardly crowd for doing that, if you happened to pass the home of a Negro?”
The Waterworks organization should not be cast as a racial hate group, Toms said, any more than the NAACP. It “wasn’t unreasonable,” he contended, for the community association to want to maintain the racial purity of their neighborhood. If the Waterworks organization could be branded as violent and hateful, Toms argued, then it was equally fair to characterize the NAACP as “a scheme for forcing colored people into white neighborhoods … a scheme for grabbing public offices for colored people … a scheme for securing marriage with the white race.”
It was not fear that led Henry Sweet to pull the trigger, Toms insisted. It was hate. It was arrogance. The Sweets and their friends were uppity. Rocks were thrown, but just two broke panes of glass. Photographs of the house, taken the next day, showed no other damage. A hedge was not trampled. A rosebush was in bloom.
“There is no legal justification … They had no right, morally or ethically, or legally, to kill Leon Breiner just to impress on the white people that they didn’t propose to be driven out,” said Toms. “And that is just what happened.”28
THE JURY RETIRED to deliberate at one thirty that afternoon. Darrow and Ruby left the courthouse with Chawke, Gomon, and others for lunch at Cohen’s, a speakeasy. They stayed for three hours, drinking Scotch whiskey and port. Ruby got very drunk.
A judge “recited poems and stories,” Gomon told her diary. “Darrow recited about the girl whose lover kept a livery stable, and about the Beautiful Persian Pussy.”
Then Darrow and his entourage piled back into taxis and returned to the courthouse. He stopped in the press room and lit a cigarette, and he and Toms had shots of Scotch. His eyes were gleaming, “like bright blue agates set into the face of an old, old statue,” a reporter recalled. He asked the newsmen, “What do you think? Will we win or lose?”
Shortly after five p.m. the jury had its verdict.
“Do not let passion interfere with your acceptance of this verdict, whatever it may be,” Murphy warned the audience. He seemed to be prepping the Negro spectators for disappointment: “Accept it courageously and with a good will.”
The prosecutors assumed a magnanimous air, Johnson recalled, while the members of the defense team were “seized with apprehension.” Johnson put a hand on Henry Sweet’s arm and vowed that the NAACP would stand by him “to the end.”
The foreman said, “Not guilty.”
“The effect is electrical,” Johnson reported. Everyone is shaking everybody else’s hand. Negro women are sobbing convulsively. Darrow and Chawke are speechless. Toms is stunned.”29
“Lawyer Darrow has again gilded his unique reputation by securing an acquittal against heavy odds,” Time magazine reported. “There is a peculiar consistency in his defense of the hopelessly lost, of the rich and poor alike, of the underdog who is under because of inexorable gyrations of fate.”
“I cannot hardly realize yet that we succeeded in convincing them that we were right,” Darrow told Johnson two days after the verdict. Johnson wrote back: “I agree … it sometimes seems like a dream from which we are to awake.”
The case was a huge victory for the NAACP. The publicity it garnered and the money it raised from black and liberal donors in 1925 and 1926 helped cement the organization’s position as America’s leading civil rights group, and allowed it to build the superb legal defense team that, over thirty years of litigation, would persuade the federal courts that separate was not equal.
Many of the trial’s white participants profited from their experience. Hays and Chawke buffed their reputations. Judge Murphy won his wager on American politics, became a genuine liberal hero, and rose to the Supreme Court, where he championed civil liberties and penned the great dissent in Korematsu v. United States, decrying the internment, by the president who had named him to the court, of Japanese Americans during World War II.30
Jo Gomon resisted Darrow’s entreaties. Perhaps she learned that while he was sweet-talking her in Detroit, he was also wooing a lady in Chicago. On Darrow’s last night in Detroit, he spoke at a Penguin Club dinner and, ill and weary, rambled about “dope” in his cynical way. “He seemed to lose some of the marks of greatness, and became for me suddenly an old man with dirty ears,” she told her diary. “I had a picture of Mrs. Darrow too drunk to properly supervise his bath the night before, and pitied her marriage to an old man … Her brains are capable of appreciating only his fame, and little of his intellect. And reflected glory is not so gratifying without the vigor of sustained interest in personality and sex.”
Robert Toms did not suffer. The prosecutor waited for months before dropping his cases against the other Sweet defendants but ultimately did so, as he had promised. When he first ran for election to the bench, Toms asked Darrow to return to Detroit and campaign with him in black precincts. Darrow did, and Toms won. He capped his career at Nuremberg, Germany, where he was one of the judges who presided at the postwar trials of Nazi war criminals.
Years
after the Sweet trials, Toms told an interviewer that “I can put myself in that house on Garland Ave. that night, and I can imagine the terror that must have crept through every occupant … I can’t say that it was an unjust verdict at all.”
Nor would he challenge the witnesses for the defense who had testified that there were four or five hundred people outside 2905 Garland Avenue on that warm summer night. The Sweets and their friends “panicked, that’s what happened,” Toms said, warming to his tale. “They spread themselves around the house and when the stones began to fall … Bang! Bang! It didn’t take much to start the shooting.”
The Sweet trials had a salutary effect on the city of Detroit, he said. “I think it taught the fringe of the white people who were in foment. I think it taught them that they couldn’t have the support of the law in blocking the Negro from living where he wanted.”
“Sociologically, I mean, leaving all legal aspects aside, I think it was probably a fortunate thing,” Toms said. “Of course, this doesn’t say much for Mr. Breiner, who was shot. But, after all, what’s one soldier in a war?”31
The Sweets paid for their victories. First Ossian and Gladys lost their baby girl to tuberculosis. Then Gladys died of the disease. Henry earned a law degree at Howard University and practiced briefly before he too succumbed to tuberculosis before the age of forty. Their family believed that Henry and Gladys contracted the disease while awaiting trial in the county jail, and gave it to her baby.
Clarence Darrow: Attorney for the Damned Page 52
