Clarence Darrow: Attorney for the Damned

by John A. Farrell

  Before Gladys died, Ossian moved her into the house on Garland Avenue, and afterward he lived there many years. But his personal and professional life was erratic. Burdened by debt, Sweet sold the property in 1958. And in 1960, ill and disturbed, Ossian Sweet took his own life. One soldier in a war.32

  Chapter 20

  CRASHING

  Here is the kind of damn fool I have been.

  Darrow did not pause long to celebrate his victory in the Sweet case. In two weeks he was off to Tennessee, to argue the Scopes appeal before the state supreme court. It was a stressful exercise, with foes before and behind him. His critics had been horrified by the carnival in Dayton, and schemed to remove him from the legal team.

  “It will not be our cause on trial,” George Rappelyea wrote his co-conspirator Forrest Bailey at the ACLU. “It will be a case of the State of Tennessee vs. Clarence Darrow, the man who spiritually and literally crucified Bryan.”1

  But Bailey had a hard time finding someone to bell the cat; Darrow was a public hero. “We are constantly receiving criticisms and protests concerning the Darrow personality and the harm it may do us,” Bailey told one ACLU supporter, “but feel inhibited from passing these on directly to Mr. Darrow.”

  Inevitably, word got back to Darrow, and he acceded to the suggestion that a distinguished Tennessee lawyer be added to the appeals team. But now Hays had his back up. “I don’t think you can accept the services of Darrow and Malone in the trial of the case and then suggest ousting them,” Hays told ACLU counsel Walter Nelles. “I am not willing to have conservative lawyers … reap the benefit of work done by liberals or radicals.…

  “I never yet have found any conservative lawyer who, at the beginning, wanted to undertake a case which might reflect discredit upon him. When it turns out differently and there seem to be some publicity or honor to be had, then offers of assistance come,” Hays said. Nelles and the others surrendered, but only as far as the Tennessee appeal. The ACLU insisted that Darrow withdraw before the case went to the U.S. Supreme Court.

  In the end, it was Tennessee’s lawyers who disgraced themselves before their state’s high court, ranting against scientists and intellectuals and jabbering about the specter of communism. Darrow was nothing but dignified. “The schools of this state were not established to teach religion, they were established to teach science,” he told the justices.

  “We must learn, and we will learn, and what we have today is the result of knowledge, of investigation, of science,” he said. “It will be a sad day, both for education and religion, when the sword is tied to the cross.”2

  Darrow returned to Chicago to pack for a vacation in Colorado. The victories of the last three years had been as draining as they were glorious, and he needed a rest. In June he headed for Greeley. It was there that he suffered a coronary episode—a heart attack, it seems, brought on by an arterial blockage—and was hospitalized in Denver. Darrow and Ruby lingered in Colorado as he regained strength. “I had rather a serious breakdown … and am very slowly recovering,” he wrote Whitlock. “I must not work or indulge in any feverish activity. Of course it is time that I had a permanent breakdown for I will be 70 next April and have led a very strenuous life.”

  Ruby tried, with little success, to get him to stop smoking. His doctors told him to postpone a planned European vacation and to spend the winter in the South. The Darrows settled on Fairhope, Alabama, a liberal colony on Mobile Bay. Mary saw him in New York before he left. “Darrow looks very old and even more tired. Sags like an old bag out of which almost everything is taken. Jokes as usual, simple rustic jokes. Criticizes none. Asks nothing. People come to strut before him and puff their breast bones and ruffle their feathers. He sits humbly, with head bowed, silent,” she told her diary. She saw him off at the station and, as she watched him board the train, was struck by a premonition of death.

  In January, word came from Tennessee. The court had given Scopes the victory, but on a technicality: the defendant was freed because Judge Raulston, and not the jury, had fixed the amount of the $100 fine. The justices upheld the anti-evolution law, but instructed the prosecutors to drop the “bizarre” case that had proved so embarrassing. Though never enforced, the law stayed on the books. It would take another forty years before the U.S. Supreme Court overturned an anti-evolution statute.

  But the law, Darrow knew, follows folkways. And the showdown on the courthouse lawn was not forgotten. Darrow did not give fundamentalism its death blow in Dayton—it is, after all, in the nature of religious fanatics to ignore objective truth—but he had exposed it to ridicule. The timorous politicians of the South continued to sanction intolerance, and commercial textbook publishers ducked the issue. But away from the clout of the Bible Belt churches, Americans had no problem honoring the poetry of Genesis in Sunday school, and the findings of Darwin in science class. Darrow never made but a modest claim about the outcome, which was inarguable. “Somebody had to make a fuss about it,” he wrote Mencken. “I was interested in waking up the country as to what they had to meet and think we succeeded. I do not know how much farther [the fundamentalists] can get, but they will never pull off anything else without a fight.”

  Darrow despised fanatics, not faith. Nor would he deny to lost mankind what solace it might find in religion. In the weeks after Dayton, Darrow declined an invitation from Manhattan’s liberals to speak on the topic “Is Science the Enemy of the Church?” It was the “dense ignorance” of the fundamentalists, and “their persistent endeavor to destroy all freedom of thought,” that had led him to the Monkey Trial, he said.

  “I would hate to put myself openly in the way of declaring that the church is the enemy of science,” he wrote Oswald Villard. “Life is so hard that I am satisfied for some time to come, perhaps forever, the great mass of men will turn to some kind of faith to make it easier. I am not at all certain that humanity at large could live without it.”3

  FOR A MOMENT in 1926 it seemed Darrow might enter another famous case. He had offered advice to Nicola Sacco and Bartolomeo Vanzetti, anarchists sentenced to die in Massachusetts for murdering guards in a payroll holdup. It seemed a trumped-up charge to liberals, who rallied behind the men. Darrow “is an anarchist, and has for the ruling beast our feelings,” Vanzetti told his defense committee. “There is the probability that the dogs, knowing to have to face a fearless and merciless man of genius, may yield.” But Vanzetti’s legal team was cool to the idea and persuaded him to drop it because, he told a friend, of the “resentment and hostility that [Darrow’s] personality and his coming from Chicago would arise in the black-gowned hangers.”

  Darrow did scheme, with Fremont Older and Lincoln Steffens, to win Jim McNamara his freedom. He offered to go to California himself, though, he told Older, “I am not well and my heart is not good.” Steffens was dispatched instead. “I don’t expect to die in the near future,” Darrow reassured Older, “still I know that it won’t be very long and I know of nothing I would rather accomplish than this.”4

  Darrow kept an office, and loaned his name to a law firm—Darrow, Smith, Cronson & Smith—organized by several former Chicago prosecutors. He went downtown when he could but bemoaned the “stream of poor crippled useless people on the way to their graves” who crowded the waiting room for help he could no longer give them. “Hell, Mary,” he wrote her, “I am sorry not to be cheerful. I really am cheerful. I am eternally saying things witty and clever and laughing at fate. Still I don’t seem to be in that mood today.”

  In August 1927 Darrow returned to court, responding to an alarm raised by Chicago social workers over the impending execution of two black men—Stonewall Clark and Ernest Holt—who had been sentenced to death for murdering a white grocer during a $4 robbery. The Defender praised his “love of humanity,” but the most Darrow could do, in a questionable case, was broker a deal to preserve the duo’s lives. He persuaded Judge Emanuel Eller to grant them a new trial on the condition that they would plead guilty and accept a sentence of life imp
risonment.

  A few days later, Darrow and Ruby left for Europe aboard the White Star liner Majestic, where he spent the trip reading and playing cards and shuffleboard. In England, he had a pleasant visit with A. E. Housman. But after Darrow left, the poet sniffed a bit at this American who had brought him pamphlets of his closing arguments. “Sure enough,” Housman told W. H. Auden, “there were two of my poems—both misquoted.”5 From Britain, the Darrows went to Paris and Geneva. He was chased by bad news from home. California had rejected Jim McNamara’s appeal. Sacco and Vanzetti had been executed. And his brother Everett had died. Everett’s wife, Helen, was bitter that Darrow had not taken the opportunity, when passing through New York, to visit them one last time. “Clarence did not come out,” Helen told Jennie. “Everett was much disappointed, he had written him telling him he wanted to see him. Too bad he could not have spared an hour from his lawyers and friends.”6

  In Belgium, his old pal Whitlock returned home from golf one day and found the Darrows waiting. “He is now 70 and retired after a long life spent in fighting for all the most hopeless causes and standing by the underdogs,” Whitlock told his diary. “I was very much touched by his coming this long way, with much difficulty, to see me.” Darrow still liked to read aloud, and that night chose the work of a black poet, most likely Langston Hughes, whom Darrow had met at James Johnson’s salon in Harlem. Ruby had the irritating habit of repeating, out loud, the last line of each poem after Darrow finished, “as in a litany,” Whitlock wrote. It nettled Whitlock, though he concluded that she was a “nice, admirable little woman” who looks after Darrow, “with all his whims … devoutly.”7

  The Darrows returned to America in October. He went promptly to Cincinnati to testify as a character witness for George Remus, the “King of the Bootleggers,” who was on trial for killing his wife. Remus had practiced law in Chicago for years before cheating Prohibition had made him a millionaire. He claimed he shot his wife after he had been cuckolded by a federal agent and sobbed when a witness told the jurors that the late Mrs. Remus had a murder contract on her husband’s life. The jury took nineteen minutes to find him not guilty, by reason of temporary insanity. “American justice! I thank you!” he shouted.

  Back in Chicago, Darrow stirred a ruckus when he told a largely Jewish audience that the concept of a chosen people, and the Zionist dream of a Jewish state in Palestine, was bunk. “There are no such thing as races,” Darrow said. “There is a difference caused by climate [or] long living in particular localities, but [humans] are all made alike.” Zionism was an “absurd enterprise,” said Darrow. The Middle East was a dry and barren land. “No sane person would ever think of going to Palestine, except for religion. It has been the home of myth … and fable and sleight-of-hand ever since we knew it.…

  “I love idealism,” said Darrow. “I am something of a dreamer myself, but there are some things that are not worth dreaming about.” He described his own visit to the Temple Mount in Jerusalem, where he saw a young man “with the idealism that people like myself always recognize—the far-off look of the dreamer who is thinking of something beyond the world and of some justice somewhere, sometime.

  “I saw him beating his fist and his head against a wailing wall,” said Darrow, “wailing for the lost Jerusalem, wailing for lost Zion, wailing for the glory and grandeur that once was there, wailing for the past, like everyone else, for the past to come back out of the dark and the dawn, and it never comes, and it never can.”8

  Darrow saw Mary twice that fall. On one visit she welcomed Darrow, Steffens, and others to dinner, and resented her role as housekeeper and cook, waiting on the gentlemen. “Lions are hard to entertain,” she told her diary. “They get used to homage.” A second visit, a week later, went better. She had Darrow to herself at dinner and accompanied him to a speaking engagement in Brooklyn, holding his hand in the backseat of the car.9

  DARROW RETURNED TO New York in December, but not to hold hands. The fascist Benito Mussolini had taken power in Italy, and his success roiled the Italian American community. After a series of confrontations in the spring of 1927, two American fascists from the Bronx were assassinated. Mussolini himself sent flowers to their funeral, and the bodies were brought to Italy, placed in silver caskets, and given a state burial. In July, the police in New York charged two men—Donato Carillo and Calogero Greco—with the murders.

  The Left rallied behind the defendants, and Darrow and Hays led the defense. Alexander Rocco, a comrade of the victims, claimed to have seen Carillo and Greco join in the killing. But Darrow got Rocco to admit that the description of the killer he originally gave police did not fit either of the defendants. Luigi Alfano, a witness who was not affiliated with either side, declined—despite furious efforts by the prosecutors—to identify the defendants. He didn’t want the conviction of innocent men on his conscience, he told the court. And a third man, under Darrow’s questioning, admitted that he had been working as a fascist spy.

  “Darrow rendered each of them useless in a few hours of cross-examination,” one newsman wrote. Darrow’s own chief witness was a Mussolini sympathizer who had split from the dead men’s organization, the Fascist League of North America. He had seen the attack up close and emphatically denied that Carillo and Greco were the killers. The defendants testified on their own behalf, and had alibi witnesses placing them at their homes in Brooklyn.

  The New York press was delighted to have Darrow working a sensational murder case. “Deep furrows have been cut by time in Darrow’s majestic face,” one feature writer wrote. “His hair looks as if he had it cut twice a year, and then with a scythe. His pants are never pressed.…

  “But Darrow would be a majestic figure no matter how he dressed. He towers over six feet. His head sticks forward, always in sort of an onward rush at his adversary. His broad, square shoulders know how to shrug with finest sarcasm.…

  “Everything is natural, unaffected and perfectly timed … The only waste motion in Darrow’s technique is an occasional habit of scratching himself behind the ear,” the story said. “Now and then he has been known to scratch his head. But this is a Will Rogers head scratch, which has its definite effect upon the judge, jury and audience. He scratches his head in such a way as to bring out more clearly, more sarcastically, a certain bit of cross-examination. The scratch behind the ear, however, apparently has no purpose whatsoever.”

  In his closing address, Darrow attacked Mussolini’s rule. “Fascism was born in bloodshed,” Darrow said. “Of course these defendants hate the regime in Italy, as all men do, and they had the courage to say so.”

  The jury deliberated eight hours and found Carillo and Greco innocent. The judge praised the verdict. After the holidays, Darrow was the guest at a “victory luncheon.” He had two reasons for taking the case, he said. “The first reason is that I detest Mussolini and everything he stands for,” said Darrow. “The second was the example of the Sacco-Vanzetti case, where I felt that prejudice, passion and feeling were largely responsible for the verdict. I didn’t want to see it happen again.” He had been promised $10,000, but agreed to accept $1,000 from the defense committee. “He received their love, if not their fee,” said Mary, who was his escort.10

  Darrow then left for Vermont to pay off a twenty-year-old debt. When Paul was a student at Dartmouth College he had lost control of a horse, which ran down and killed a five-year-old boy. Paul had written to the distraught mother, at the time, pledging to do anything to ease her sorrow. In 1927, after her nephew John Winters was condemned to death for murder, she approached Darrow, who was giving a lecture at Dartmouth, and told him of Paul’s promise.

  “One of the boys came to me and told me the lady wanted to see me and told me what it was all about. I told the boy that she must be crazy, that no such thing could have happened,” Darrow wrote his son. “She came in and showed me your letter (it was a very nice letter) and said that you were in no way to blame. I am sorry that this has bothered you all these years.…

/>   “It is very doubtful if anything can be done,” Darrow told Paul, but he scheduled an appearance before the Vermont Supreme Court. The courtroom and the hallways outside were crowded with lawyers and local residents hoping to see him. Darrow asked why a key witness had taken several days to identify Winters as the killer. He challenged rulings of the trial judge, who had allowed the jury to see a staged rearrangement of furniture at the crime scene but excluded evidence that the blood found on the defendant’s clothing may have been his own. “Blood is an important factor in a murder case,” said Darrow. “I don’t know what the jury would have done with the evidence. But it had a right to it.” The justices agreed, spared the defendant’s life, and granted him a new trial. Winters then pled guilty to second-degree murder and went to prison for twenty years.11

  Darrow spent most of 1928 on a ten-month speaking tour. He mixed his usual debates and lectures with appearances to benefit the NAACP and, in the fall, the Democratic presidential candidate, Al Smith.12 In May, he mixed business with sentiment and returned to Ohio to represent a notorious local bootlegger, James Munsene, who was on trial for attempting to bribe the Trumbull County sheriff. Munsene was an Italian immigrant who had settled in Warren and made his way as a grocer and nightclub owner. He tracked Darrow down when Darrow was visiting Kinsman and persuaded him to take the case. It was Munsene’s third trial on the charge: the first two had ended in convictions but were overturned on appeal.

  The trial was conducted in the Ashtabula County seat, in Jefferson, where Darrow had practiced law as a young man. It was the first time, he told the local papers, he had tried a case with women on the jury. One potential juror, a member in good standing of the Women’s Christian Temperance Union, chastised the great infidel as he questioned her. She was excused.