Clarence Darrow: Attorney for the Damned

by John A. Farrell

  At the Waikiki party, Thalia had quarreled with Tommie and gotten into an alcohol-fueled argument with one of his superior officers, whose face she slapped before stalking out of the tavern. Indeed, her whole group was rowdy drunk that night, a fact suppressed to prevent “embarrassment to the Navy,” Governor Lawrence Judd told Washington officials, and “to eliminate any possible ground for any juror to conclude that Mrs. Massie had been on a drunken party where she might have been beaten.”

  After telling her story to the police, Thalia had been taken to the hospital. Though she claimed to have been raped six or seven times by her abductors, the doctors found no bruising, nor swelling, nor semen when they examined her vagina. She did not become pregnant and abort a child, as she later claimed. Her doctor did not believe that Thalia was raped and urged Tommie to drop the matter and transfer from Hawaii. Witnesses had seen Thalia, staggering down the sidewalk, being followed by a white man. None of her fingerprints were found on the suspects’ car. And the tire tracks discovered at the clearing where Thalia was taken may well have been made by the local police who, in an act of stunning incompetence, or malfeasance, had driven the defendants’ auto there and run it back and forth across the crime scene.3

  There was also a question of timing. If the five Hawaiians had abducted Thalia, they would have had just twenty to thirty minutes to cross the city, find and grab her from the sidewalk, drive to the clearing, take turns raping her, and travel to a luau in another part of town. None of their clothing had blood or semen stains and, though offered freedom and a $5,000 reward, none of the five would testify against the others. “An analysis … makes it impossible to escape the conviction that the kidnapping and assault was not caused by those accused,” Judd’s investigators would decide.

  Many in Hawaii questioned whether Thalia had been raped at all. It was well known that young white women from the mainland came to Hawaii “to lie on the beach at Waikiki and get an all-over sun tan, and … let the bronze, handsome young athletes and surf riders teach them how to ride the waves, play … ball with them and … have the boys rub them down with coconut oil,” wrote the Tribune’s Philip Kinsley, who was sent to Hawaii to cover the trial. The “fast young service set” lived in “lovely bungalows with great red hibiscus flowers in the doorways, and there is much drinking among them.”

  Two of Hawaii’s foremost defense attorneys agreed to represent the five young men. On December 6, 1931, the trial ended in a mistrial after the jurors failed to reach a verdict. Six days later, one of the defendants was shanghaied, beaten, and flogged. And on January 8, another defendant, Joe Kahahawai, was snatched from the courthouse grounds in Honolulu and hustled into a waiting car by two men waving a counterfeit warrant. Two hours later the police found him, shot dead, bound, and wrapped in a bedsheet, in the back of a fleeing Buick sedan that they forced to a stop on a seafront highway overlooking Hanauma Bay. The living occupants of the car were Tommie Massie, a navy seaman named Edward Lord, and Thalia’s mother. The trio and another enlisted man—Albert Jones—were charged with murder. They asked Darrow to defend them.4

  BACK IN THE States, the newspapers called Kahahawai’s death an “honor killing.” Time magazine told how Thalia had been “roughly seized and ruthlessly raped by a band of five brown-skinned bucks.” But Darrow recognized what had happened. His friends at the NAACP, where he still served on the board of directors, had spent their lives investigating such crimes, and demanded that Admiral Pratt be rebuked for his “unqualified endorsement of lynching.”5

  And so at first Darrow was reluctant. “I had so long and decidedly been for the Negro” and this was a case “at variance with what I felt and had stood for,” he told a friend. Darrow ultimately agreed to go, he told himself, because he might bring healing to the troubled islands. And because he had always wanted to see Hawaii. But most of all he took the case because he needed money.

  His decision triggered a debate in the civil rights community over whether Darrow “is at heart loyal to the cause he espouses,” wrote the African American editors of the Chicago Bee, “or whether his interest in them wanes at the sight of sufficient monetary consideration.”

  Darrow was troubled by such commentary. “I have occasionally in the past represented people of wealth, and there has always been criticism,” he wrote a friend who objected to his decision. “I don’t know what I should have done if now and then a fairly well to do client had not come my way; the ravens have never called on me.” He set his price at $30,000. “Please do not tell anyone what you are to receive,” Ruby wrote her husband, who was traveling when the $5,000 retainer arrived in Chicago, “or again you’ll be eaten alive by those who will think they may as well get some of it.”

  DARROW AND RUBY sailed from San Francisco. It was his first trip back to California since the bribery trial. He took a young New York lawyer, George Leisure, who had tried a case in Honolulu and volunteered to assist him without pay. They arrived in Hawaii on March 24 and Darrow, bedecked in leis, immediately sought to cool passions in the islands. The territorial legislature was considering a bill that would add rape to the list of crimes punishable by death in Hawaii. It was an awful idea, said Darrow, for it would only encourage rapists to murder their victims, since the penalty would be the same, and dead girls tell no tales.

  Ruby glowed for years over the way that island society—the good people—welcomed them with lunches and receptions. And it was important, as things turned out, for Darrow to meet Governor Judd and Thalia’s physician, and the Chamber of Commerce types like Walter Dillingham, a leader of the haole elite. Darrow also spent evenings with the out-of-town reporters; he jawed with Charles Banks, an old Chicago newspaperman he found in Honolulu, and spoke to George Wright, a former Allegheny College professor who edited the Hawaii Hochi and had, from the start, defended Kahahawai and the other suspects.

  Darrow visited the beach and let Duke Kahanamoku, the Olympic swimmer, and a crew of Waikiki beach boys give him a ride through the cresting surf on an outrigger canoe. But he turned seventy-five that spring. On several occasions, the sun and the work and the okolehao, the local moonshine, took their toll.6 Darrow was disarmingly frank about his motives. “He has told us candidly and with a smile that he wanted to take the trip to Hawaii and was offered an attractive fee,” Wright wrote in the Hochi. “The present case … in no sense detracts from his record as an idealist … it is the bow that a great actor makes when he has been called before the curtain, after the play is over.”

  Darrow found obstacles in Hawaii. The first was a new prosecutor, John C. Kelley, “rugged, powerful, afraid of nothing … a shrewd, keen lawyer,” as the mainland papers reported. Another was the Hawaiian character. If he hoped to get a jury of sympathetic whites, Darrow was disappointed. Racial mixing was tolerated, even prized, away from the navy base, and huge crowds had attended Kahahawai’s funeral. Leisure warned Darrow that they must, by all means, avoid being seen as “coming to the rescue of The White Race.”7

  “I kept every white man I could,” Darrow said later, and the final roster of jurors looked promising, with seven whites, three Chinese, and no pure Hawaiians. Yet Darrow was troubled, and told Leisure they had little hope for success. He began to direct his remarks, via his friends in the press, at the population back home in hopes of obtaining pardons. “He … frankly confesses that he has difficulty in trying to understand the mentality of these oddly mixed island jurors,” Russell Owen wrote in the Times. For a lawyer whose strength was his ability to manipulate a jury’s emotions, not knowing “the mentality” was indeed a problem.

  Prosecutor Kelley, nattily dressed in a white tropical suit, opened with an account of Kahahawai’s murder. Massie had set out on the morning of the killing dressed as a chauffeur, disguised with a fake mustache. Mrs. Fortescue had served as a lookout, and Jones had forced Kahahawai into the car. They all then drove to Fortescue’s rented house, where they tried to make Kahahawai confess. It was there, Kelley said, as Kahahawai sat on the edg
e of a bed, that he had been shot and his body toted to the bathtub, where his blood ran down the drain.

  Though the weapon was never found (before he was arrested, Jones gave it to Thalia’s sister, who threw it into a pool of quicksand), the slug had no doubt come from a .32 automatic pistol that Jones had purchased, Kelley said. With a flourish, he showed the jury the bullet, and how it matched the expended .32 caliber shell and clip of .32 caliber ammunition found on Jones when he was arrested. Over four days, the prosecution demonstrated that the murder was a carefully planned crime, and not some act of temporary insanity. A police officer, describing the discovery of Kahahawai’s body, told how he had praised a younger colleague for chasing down the Fortescue car with a hearty “Good work, kid!” Massie had thought the officer was talking to him and replied, “Thank you very much.”

  “Darrow at times appeared confused by the inflexions of speech and the English used,” the Hochi reported. “Twice one of the local lawyers had to explain … answers.”8

  Darrow launched the defense on the afternoon of Thursday, April 14. He stood with folded arms and bowed head, as his calm, thoughtful questions took Massie back over the events of the night that Thalia was attacked. The young lieutenant replied in short, clipped sentences. He spent much of the time staring at the floor. The spectators could see his jaw muscles tighten, and he spoke in “a voice suggesting that of a frightened schoolboy,” one recalled. Massie choked up, and Mrs. Fortescue sobbed, when he told how Thalia had been raped.

  The day’s session ended before Massie’s tale reached the kidnapping of Kahahawai, and he did not disappoint when he returned to the stand on Saturday morning. He told the court how, at gunpoint, Kahahawai had confessed to raping Thalia—“Yes, we done it,” the young Hawaiian supposedly said—and at that point, Massie testified, his mind was filled with an overwhelming image of his wife being raped. He remembered nothing more, Massie told the court, before their car was pulled over by the police on the bluffs above the ocean.

  Massie’s blackout was an exceptionally fortunate development, for the defense had a problem: it was not Massie who fired the fatal shot. Years later, Jones would confess that he had killed Kahahawai, when the “black bastard” made a sudden move. But Jones could not claim, to a sympathetic jury, to have been driven to insanity by rage and shame over a young wife’s ravishment. Massie could. It was “Mr. Darrow’s idea to let Tommie take the rap,” said Jones. “Tommie had a motive and the reason. After all, it was his wife.”

  Darrow finished his presentation by calling Thalia to the stand. She spoke “like a hurt child,” Owen wrote, “and with uncontrollable fits of silent weeping she told a story that brought tears to the eyes of many of the women in the room.” Thalia twisted and tugged on a handkerchief and buried her face in her hands. And when she looked up, after describing the assault, her features were “distorted in agony.”

  The trial’s unforgettable moment belonged to Kelley, however. The previous summer, a few weeks before she was attacked, and when her marriage to Massie seemed to be disintegrating, Thalia had sought psychological counseling from Professor E. Lowell Kelly at the University of Hawaii. After two or three sessions, Kelly informed Tommie that his wife needed psychiatric help. When the professor read about her in the newspapers, “I could not but doubt the validity of her accusations,” he recalled. Indeed, his files still held a confidential questionnaire that Thalia had answered, in which she detailed the problems in her marriage. It contradicted the tales of marital sweetness that Tommie and Thalia told on the stand.

  After Kahahawai was murdered, the professor discussed his ethical quandary with a colleague and concluded that doctor–patient privilege kept him from saying anything. But the colleague passed the word to Kelley, who got Thalia’s files from the university when Kelly was away on a trip to Maui. Now, after some seemingly innocuous questions, Kelley asked Thalia if her husband was always kind to her. Yes, she said. Then Kelley asked her if she had sought psychological help the previous summer.

  “I went to see Professor Kelly,” she replied.

  Kelley handed her a sheet of paper from her file. “Is this your handwriting?” he asked.

  Thalia looked at the prosecutor with murderous rage. “Where did you get this?” she asked.

  “I’m asking the questions,” Kelley said, and he repeated the question. “Has your husband always been kind to you?”9

  “Don’t you know this is a confidential communication between doctor and patient?” she shot back. “You have no right to bring this into the courtroom.” She had been transformed, as all watched, from troubled child to cold, furious woman. And as everyone looked on in astonishment, she ripped the paper to pieces. Her supporters in the audience began to applaud. Tommie and the other defendants joined them. The judge called for order.

  “Thank you, Mrs. Massie, at last you have shown yourself in your true colors,” said Kelley. He released her from the witness stand, and she staggered and fell into Tommie’s arms, wailing, “What right has he got to say that I don’t love you?”

  Kelley had begun his cross-examination on April 20 at eleven forty-two a.m. By eleven fifty he was finished. So was the defense.10

  In the end, Darrow rested his argument on the “unwritten law” that, for centuries, had absolved a man for killing a rival who stole his woman.

  “There is, somewhere deep in the feelings and instincts of a man, a yearning for justice, an idea of what is right and wrong, of what is fair between man and man, that came before the first law was written and will abide after the last one is dead,” Darrow told the jurors. Over and over Darrow asked them, “If you put yourself in Tommie Massie’s place, what would you have done?”

  He was dressed in a new, crisp Palm Beach suit but looked tired, and a bit unsure. Many of the leading players in the drama were there, including Admiral Stirling, Thalia, and Kahahawai’s parents. He spoke, all told, for four hours. At lunch he took a nap, then finished with a flourish in the afternoon heat. He used his array of gestures—crouching and twisting and shifting his voice from a gentle whisper to a roar. Leisure was amazed by Darrow’s “tremendous” powers of concentration.

  “If this husband and this mother and these faithful boys go to the penitentiary, it won’t be the first time that a penitentiary has been sanctified by its inmates,” Darrow told the jury.

  “Take these poor pursued, suffering people, take them into your care, as you would have them take you if you were in their place,” he begged.

  But the jury had more to consider than mercy, said Kelley, who took but an hour to argue for justice on behalf of the dead Joe Kahahawai.

  “Three able men and a cold, calculating woman let a man bleed to death in front of them, inch by inch,” he argued. “They aren’t kids. They’re brought up in an atmosphere of guns. They’re taught the art of killing, also of first aid. But they let him die, dragged him into the bathroom like a dog and let him die.…

  “A killing is a killing, and under certain circumstances is murder,” he said. “If the serpent of lynch law is permitted to raise its head on these islands, watch out, watch out.”

  The jurors wrestled diligently and arrived at a compromise after two days of deliberating. They found the four defendants guilty of the lesser charge of manslaughter and asked the court to show lenience in the sentencing.

  “He talked to us like a lot of farmers,” one of the jurors said of Darrow’s closing appeal. “That stuff may go over big in the Midwest, but not here.”11

  Yet Darrow knew that while one trial was over, the greater trial, for public opinion, went on. There was an equilibrium in the moment that he thought he could exploit. The guilty verdict had restored Hawaii’s pride and humbled the naval and commercial interests that, after seven months of turmoil, wanted to get on with the business of making money and defending America. Thalia had been revealed as less than reliable. The imprisonment of Massie and Mrs. Fortescue and two navy seamen, the road through the appeals courts, and the retrial
of the remaining Ala Moana rape defendants all promised more months of turmoil. And Japan’s growing militancy and the strategic importance of Hawaii were compelling reasons for officials in the Hoover administration to end the drama.

  The elements were there for a deal, and Darrow now put his connections to the business elite, the territorial officials, and the navy brass to use. He knew the pressure Judd was under: members of Congress were threatening to put the islands under military rule. Via his attorney general, Judd had offered to reduce the sentences to one year, but the defendants declined. Darrow called on him. “What are you going to do?” he asked. “Full pardons are indicated in the circumstances.”

  “I’ll commute the sentences to one hour,” Judd replied.

  Darrow thought it through. “So be it,” he said. He conveyed the news to Admiral Stirling, who insisted that commutation wasn’t enough. Darrow returned to Judd seeking full pardons, but the governor was feeling tremendous “personal guilt” for bowing to the pressure and refused to bend any further. Darrow went back to the defendants. They agreed to take the deal.

  On Wednesday, May 4, Darrow’s four clients suddenly appeared in court and were sentenced to serve up to ten years in prison. But they were smiling as they left the courthouse and walked over to the Iolani Palace, where Judd commuted their sentences to one hour. They finished the time in the governor’s office and returned to the drydocked navy cruiser in Pearl Harbor where, for their safety, they had been held since their arrest. Darrow told reporters that Tommie and Thalia would leave Hawaii and not press for a retrial of the rape case. It would be “a useless waste of public money and would not be for the best interests of the community,” he said.

  Kelley was not part of the deal and sent men to Pearl Harbor to serve a subpoena on Thalia, but navy personnel blocked them—at one point physically as Thalia fled through the galley and the hold—until the Massies were safely in their cabin on a cruise ship heading for San Francisco. “The courtroom records in Honolulu would show that Clarence Darrow lost this trial,” said Leisure. “But he felt we had gone to Honolulu to save four American citizens and … brought … them back on the steamer with us to the mainland.” Mrs. Fortescue stood at the rail with a lei around her neck, waving goodbye to the crowd at the dock as an orchestra played “Aloha oe.”12