Clarence Darrow: Attorney for the Damned

by John A. Farrell

  Darrow quizzed witnesses and raised many questions about the sheriff’s warm relationship with the Ku Klux Klan, which was active in northeast

  Ohio and didn’t much like Italian immigrants. After a weeklong trial the jury was deadlocked. Darrow returned in 1929 and defended Munsene at his fourth trial. That jury was deadlocked as well, and another mistrial declared. Finally, in 1930, Darrow persuaded Munsene to plead guilty and pay a fine. Munsene went on to fame as a racketeer and nightclub owner and was shot to death by gunmen in 1941.13

  DARROW WAS FEELING better than he had for months. That summer he roamed New England and the Dakotas, seeing sights and making speeches. “Clarence retires somewhat after the fashion of a fly that can’t really stay away from the fly-paper long,” Ruby wrote Dr. Gerson. “I have caught the knack of care-taker and general proxy for many a step and stretch and strain that saves taxing his none-too-fit heart—alas.”

  Ruby “watches over Clarence, day and night, like a baby, and Clarence delights in it,” the critic George Nathan wrote. “She answers all his telephone calls, makes or breaks all his appointments, writes and answers three-fourths of his letters, lifts him out of taxicabs (when the occasion demands), tells him when his socks are falling down, pours his and his friends’ drinks for him, answers any possibly embarrassing questions that interviewers may put to him, tells him what he should eat and if it tastes good to him.…

  “Without Ruby, he would be completely lost—and he knows it,” Nathan wrote. “She tells him several times a day that he is the greatest and finest and most adorable man she has ever known and that she loves him to death.”

  Hoover whipped Smith in the November election, which Darrow blamed, in part, on women voters who had gone against the “wet” candidate. “To any woman he is the best, the most helpful, the most understanding friend. But the collective woman! Here he lets emotion color his views,” said Mary, after listening to one of Darrow’s tirades. “Against the collective woman he rages as he would like to against the little piss ant wife whose pettiness and jealousies have galled him.”

  Yet when feminist Margaret Sanger was persecuted for her advocacy of sex education and birth control, Darrow spoke at a rally on her behalf in Boston in 1929. She arrived with a gag around her mouth and Harvard historian Arthur Schlesinger read her speech. The next day Darrow was in court, as a witness, speaking in defense of Theodore Dreiser, who had been charged with violating obscenity laws when writing An American Tragedy. The jury found Dreiser guilty.

  “The powers of reaction and despotism never sleep,” Darrow told Roger Baldwin. “We have to be very watchful.”14

  IN JUNE 1929 the Darrows were off to Europe once again. They went to Paris and to Germany, where Darrow was examined by heart specialists. They took a motor tour of Wales and Scotland and the English countryside. From Montreux, in Switzerland, Darrow wrote his grandchildren in the nonsense style he liked to use.

  “Eye have bin thinking how lucky it waz that Eye got U to kum to Chicago so I woodent be so far away from U when U kum. Eye dident think about kumming to Europe but now I am 4 thosand miles aweigh but if U haddent kame to Chicago eye would now bee 5 thousand miles awa and what wood we have dun then. You kan sea yourself.” He signed it “Ur Grand Dad.”

  Darrow seemed set in retirement. His investment in the Colorado gas company, with Paul’s sweat equity, left them with small fortunes when they sold the business in 1928. Paul moved back to Chicago. Darrow loaned $8,000 to Mary and Lem (without telling Ruby); helped fund treatments for two friends suffering from cancer; and wrote to the ACLU and the NAACP to announce that he was adding them as beneficiaries in his will. “Do you need any money?” he asked W. C. Curtis, after hearing the news that the zoologist’s son had contracted polio.

  Darrow had always liked to speculate—railroads, copper companies, banks, gold mines, and Latin American stocks were among his favorites—even though he often took big losses. “Here is the kind of damn fool I have been,” he had written Paul after a previous catastrophe. He had invested $10,000 on a tip “from a friend of mine who knows,” who “had word direct from Guggenheim who is a relative about the supposed copper merger.” The copper stocks “went up a minute, then went down fast” and Darrow was stuck scurrying for cash to cover margin calls.

  “We are not very good speculators, and had better go slow in the stock business,” Darrow told Paul. Now “I am going to quit forever,” he vowed. “I think we both should and this time I will stay sworn off.”

  Of course, he did not. But he was wise enough in the bull market of 1929 to see what was going to happen. “Things can’t keep going up forever,” he warned Paul in August. “I don’t like the look of things. All stocks are far too high,” he told his son in September, and “if there are big drops you might get caught very badly.” In early October he wrote Paul again: “Everybody is crazy and most of them will lose their money.”

  Paul assured his father that he was acting responsibly. And even after the stock market took its first great plunge, Darrow and Ruby remained in Europe. In their absence, Paul tried to recoup his losses by buying what he reckoned were bargains, only to keep losing as the economy cratered. Darrow’s savings slipped from $300,000 before the crash to $125,000 afterward—and that he had to give to Paul, who was deep in debt and struggling to meet his margin calls and interest payments. “Use all I have,” he told his son.

  “I am in a predicament right now,” Darrow told Walter White. “Really it is not so much that I am but Paul is and you know that I think more of him than myself. Anyhow I am obliged if possible to get in some money to save what is left.” Ruby was furious at Darrow and at Paul. Her aged husband had to go out on the road, giving lectures and debating and after picking up a check for the night’s work immediately sending it to his son. She scolded Paul for not realizing “how almost sacred his life savings have been to us two, and how impossible to replace.” Darrow had told her that “he begged you to be careful,” she wrote Paul, “and had been worried and fearful all along and firmly prophesized the disaster … but couldn’t get you to see his attitude.”15

  WHITLOCK WAS IN Cannes working on a book, and somewhat surprised when the Darrows arrived and announced they would be staying weeks, not days. He liked his walks along the sea with Darrow at first, but railed in his diary about Ruby’s “utter provincial ignorance” and the way she fluttered about her husband, even fixing his food on his plate. Before long, Whitlock tired of Darrow as well. Sick and fretting over money, Darrow was not good company. “I didn’t invite them here or encourage him to come; they came on their own, but for some odd reason seem to expect me to entertain and amuse them,” Whitlock wrote. “Mrs. D is wholly uninteresting, crude … with no redeeming wit … D. is brilliant, but impossible, and intellectually vain and with all his radicalism, nihilism, atheism and all the rest, the most intolerant … There is something sinister and diabolic about him, something baffling, frustrating and unwholesome.

  “He … sneers at everything and has an insatiable appetite for approval and flattery. His manners are those of his rural middle west of his youth. He goes slouching along slovenly and unkempt, his hands in his pockets, spitting now and then and demolishing everything that is, in that soft and rather musical voice of his. He has a taste in literature, though limited to the literature of revolt and pessimism and a sympathy with the poor and outcast, which I like in him, but he has no genuine culture.”

  Whitlock was relieved when the Darrows took off for visits to see H. G. Wells (a free love advocate who was living with a mistress, Whitlock noted disapprovingly) and Somerset Maugham, and in time Whitlock regretted his ill will. But he couldn’t hide his relief on March 8, 1930, when he saw the Darrows off on their ship home. “The Saturnia lay off Cannes all afternoon,” he wrote. “I, from our window, watched her sail away, with relief, because the Darrows were aboard. Darrow has many virtues and is clever but he is dificil and trying and it has been a corvee to have to see so much of him this wint
er.”16

  DARROW WAS CONFRONTED, upon arriving home, with his shattered finances. “It has been twenty years at least since I have had to ask anyone for any help and had no idea that I ever should again,” he told White. Darrow went on speaking tours and, in debate, took on some younger opponents—like G. K. Chesterton—whose wit he could no longer match. He swallowed hard, and wrote Mary and Lem about the loan he had given them. He had secured it with stock in the Southern Pacific Railroad, and wondered “just how much is owed the bank and the rate at which it is being paid and whether you have any difficulty keeping it up,” since he needed to sell some shares for cash. “The truth is I got pretty badly hurt with all the rest in last year’s failure and the disappointments since.”

  He reminded them to answer via his next-door neighbor, who had agreed to take mail that Darrow didn’t want Ruby to see. “Poor great Darrow, unafraid of God, of public opinion, of custom of prejudice—brave enough to stand alone—yet cowed before a little insect of a woman,” Mary wrote in her diary.17

  Darrow announced, as well, that he would return to the courtroom at the age of seventy-three to defend gangsters George “Red” Barker and William “Three-fingered Jack” White. They had been rounded up in Chicago in Judge John Lyle’s campaign to use the city vagrancy statutes to arrest “public enemies.” Darrow’s partners had taken on several infamous underworld clients in recent years, including Myles and Klondike O’Donnell, John “Dingbat” Oberta, and George “Bugs” Moran. Now he would join them on the gangster payroll.

  “I can’t somehow reconcile your representation of these men with your excellent record and their atrocious records,” Lyle scolded Darrow in court.

  “If the authorities wish to harass the lawless they should do it legally,” Darrow told him. “There is no such charge in law as a ‘public enemy.’ ”

  Darrow also joined the appeals team for the reprehensible David Stephenson, the grand dragon of the Indiana Ku Klux Klan. Stephenson had doubled as the state’s political boss in the mid-1920s and was one of Indiana’s most powerful individuals when he was convicted of murdering Madge Oberholtzer, a twenty-eight-year-old social worker. In her dying declaration, Oberholtzer said she had been drugged, kidnapped, and repeatedly violated, and had taken poison to escape her captivity and disgrace.

  “While I have not believed in the Klan, I think that the conviction was absolutely wrong,” Darrow wrote Stephenson. “The ideas that you have apparently stood for are as far away from my views as one can possibly imagine, but I believe in fair play and I have a very strong feeling that you have not had it.” Despite Darrow’s aid, Stephenson’s appeal failed.18

  In the spring of 1931, Darrow was invited to participate in his last great civil rights case. On March 25 an Alabama posse chasing a group of black men who had brawled with some white hoboes pulled nine black youths and two white girls, dressed as boys, from a freight train near Scottsboro. It would have been scandalous for Ruby Bates, seventeen, and Victoria Price, twenty-one, to admit to riding the rails with black men. They claimed, falsely, that they had been raped. So began the nightmare of the Scottsboro Boys. It would last for almost twenty years.

  The black men escaped lynching but were rushed to trial, with incompetent counsel, in less than two weeks. Eight of the nine, all of whom were under the age of twenty, were convicted by all-white juries and condemned to death. There was a mistrial in the case of the final defendant, a thirteen-year-old boy: though the prosecutors had asked only for life imprisonment, seven jurors insisted that he be executed.

  At the NAACP, White made the worst call of his career. Despite requests for help from local black leaders, he held back, worried by reports that the defendants might be guilty. His inaction allowed the legal arm of the American Communist Party—the International Labor Defense—to get to Scottsboro first. They signed up the unschooled and desperate African Americans as clients and promised to appeal the verdicts. The ILD called Darrow and asked if he would take the case. He notified White, who was finally moved to act and offered Darrow $5,000 to represent the boys for the NAACP.19

  The rivalry between the groups was intense. In December, Darrow and Hays traveled to Birmingham to see if they could forge a common front. In the course of a long night of negotiating that ventured on “bedlam,” the two men agreed to disassociate themselves from the NAACP and work with the ILD as private attorneys, under no organization’s flag. But the communists would not bend. Darrow and Hays were welcome to join the communist team, and take communist direction, or go home. They went home.

  The ILD would score some successes away from Alabama, but its communist ideology alienated the state and helped doom the defendants to years in prison. “The trouble with these fellows is that they think only of the cause,” Darrow told Erskine Wood in a letter. “They may be right, but no lawyer can accept this doctrine. The client, of course, comes first.”20

  It was a dismal experience for Darrow. Until he could explain what happened in Birmingham, good friends accused him of deserting the defendants. He then faced the humiliating task of writing to his friends at the NAACP and begging them for time to pay back $1,000 that he owed them from his unearned retainer.

  “The truth is that before these terrible times I had about $300,000, in what seemed perfectly good securities. They are not now worth more than ten and are not paying dividends,” Darrow told White, in what the latter called a “most pathetic” plea. “Paul had about the same but he owed quite a large amount and for a year I have been giving him every cent I could to save what he had. The debt is now reduced to about $10,000 but the value of his stock has been reduced much more.…

  “I had intended returning $1,000, but it looks from here as if I was broke entirely,” Darrow wrote White. It took him until the summer of 1933 to refund all the money.21

  Chapter 21

  CLOSING

  The old ghosts creep out of the dimming past.

  Just before one a.m. on September 13, 1931, on the island of Oahu in the territory of Hawaii, a car full of late-night partygoers were startled to see an intoxicated young woman step out into the glare of their headlights on a desolate stretch of Ala Moana Road. She waved them to a stop. “Are you white people? Thank God,” said Thalia Massie. “Please take me back to my husband.”

  Thalia’s face was badly swollen, as if she had been beaten. She told the Good Samaritans that she had left a party at a Waikiki inn and, as she walked along the sidewalk toward the beach, was grabbed by a group of Hawaiian men, struck in the face when she struggled, and dumped in a clearing on the side of the road. A lady in the car asked the obvious question, but tactfully. Had the abductors hurt Thalia in any other way? “No,” she said.

  It was after Thalia Massie got home and was reunited with her husband that she declared she was raped. He was a lieutenant in the U.S. Navy, and the news moved quickly through the great base at Pearl Harbor. The rumors were lurid, and untrue. “They had violated her in every respect and … orifice,” one sailor recalled. “They kicked her and broke her pelvis and they bit the nipple practically off one of her breasts … They broke her nose. Blackened both of her eyes, of course. On her face was a perfect imprint of a rubber heel, where they stomped on her.”1

  The navy and the Hawaiians had an uneasy relationship, dating back to America’s seizure of the islands in the 1890s. And then there was this: Thalia was white, and her alleged ravagers were brown. Admiral Yates Stirling, the southern-born commandant in Hawaii, was informed that the wife of one of his officers had been gang-raped by “dark-skinned … half-breed hoodlums.” He resisted his initial impulse, which was “to seize the brutes and string them up on trees.”

  Thalia was twenty years old. Her parents were Granville Roland Fortescue, a cousin of Teddy Roosevelt, and Grace Bell Fortescue, a doyenne of Washington, D.C., society. Thalia had been but sixteen when she married Tommie Massie, a Kentucky-born Naval Academy graduate about to join the fleet. Her wedding photograph showed a doll-like innocent with large
eyes and dark blond hair. When five Hawaiians were arrested and charged with Thalia’s rape, the news sent navy officials, members of Congress, and many of their constituents into an ugly fury. The islands were portrayed as a steamy hell where brown savages preyed upon the wives and daughters of American servicemen. Naval officials threatened to pull the fleet from Pearl Harbor, a move that would devastate the local economy. In Washington, Admiral William Pratt, the chief of naval operations, declared that indolent Hawaiian officials had sanctioned a plague of sexual assaults on white women—forty was the fanciful number that he cited.2

  But there were elements of Thalia’s account that didn’t add up. At first, she told the authorities that she could not identify her abductors or their car. Yet when the boys were arrested and presented to her she claimed to recognize them, despite her shock and the haze of painkillers. As the night went on, and the police radio blared the number of their license plate, she “remembered” it as well. The recovery of her memory was convenient to the point of dubious. She had extremely poor vision and wasn’t wearing her glasses on that moonless night.

  The crime had taken place amid a series of personal and family crises for Thalia. She was sullen, often drunk, and had a disputatious attitude that put off many of the navy wives. Thalia was flirtatious with men, which tormented her husband, who was away from port for weeks at a time on submarine patrols. The Massie maid told investigators that Thalia welcomed one young navy lieutenant to her home and went away with him overnight when Tommie was at sea. Tommie struck Thalia in his rage and threatened her with divorce. “He had been violent with me. I had plenty of bruises, I can tell you,” she later confided to Darrow. Her attempts to have children ended in miscarriages.