Clarence Darrow: Attorney for the Damned

by John A. Farrell

  The Darrows left the house on Bonnie Brae and took a flat far from town, in Ocean Park, near Venice. They tried to cap expenses at $90 a month, and Darrow asked Paul if they could reduce the monthly payment to Jessie from $75 to $50. “They had no right to do this to me,” Darrow wrote his brother-in-law, Howard Moore. “But the evidence against me is strong … I may have to leave you all for a time.” He took long walks on the beach with friends, railing at his predicament. “You may say that I am assuming Darrow to be guilty. I am,” his friend Catlin wrote after one such visit. “Darrow said no word to me of innocence.”

  The Darrows ate at home or in cafeterias, and Ruby darned their clothes and tracked their few expenses. Two pairs of cheap stockings. A 29-cent collar. An 85-cent nightgown. Two 50-cent vests. “Ruby writes as though they are reduced to bread and water,” wrote Darrow’s sister-in-law Helen. His sister Jennie, in turn, urged Ruby to watch Darrow’s diet—to serve him only light food, “not hearty meals that will clog the system with poisons.” She warned Ruby that her brother might withdraw, and be “stony and unemotional as the sphinx” under the strain.

  “We don’t plan for even a day at a time, and cannot tell when we ever will,” Ruby wrote a friend. “He is 54 years old and he is Poor. I am doing Everything myself in a little apartment.” And yet, Ruby said, “No matter what happens, there is no woman in the world that I would trade shoes with.” The Darrows were grateful when their old friend Jim Griffes invited them to suppers of canned corned beef and potatoes, and late-night debates about free will. LeCompte Davis and his wife remained loyal as well. And an admirer, Dr. Perceval Gerson, led another group that befriended the Darrows. They named themselves the “Heart to Heart Club” and treated Darrow to dinners of pounded steaks, biscuits, lemon pie, and literary discussions.9

  Darrow assembled a list of books to take with him to the penitentiary. “What a hell of a trap I’m in,” he told Gerson. The doctor, a believer in nonviolence, suggested that Darrow resist not evil. “State the facts of the case and take the consequences without resistance,” he told Darrow.

  “Gerson, you’re right, but I can’t do it,” Darrow replied. His freedom and livelihood were at stake.10

  Darrow needed $25,000, he figured, to meet his legal expenses.11 “So many people think I have money when really I have been in debt all my life,” he wrote the mine workers’ John Mitchell. “Surely I have served long and faithfully and … the unions would not let me go to prison without a defense.” But Mitchell wrote back that “it is absolutely impossible for the miners to do anything at this time.”12 Darrow begged Gompers for aid. “In every crisis I have stood by labor and my convictions and always given my best,” Darrow reminded him. “I am in serious trouble … I need help to protect my liberty.” The AFL chief waited a month before sending a frigid reply. “I can not see how we can raise any money,” Gompers wrote. It was Darrow’s own fault. “Believing, aye, almost firmly convinced of the innocence of the McNamaras we strained every nerve to raise as near as possible the amount of money you suggested … Upon learning that they were guilty, the first intimation of which was conveyed to the rank and file as well as to the officers of the labor movement through their confession, I am free to say to you that in my judgment any general appeal for funds to defend you … would fall upon indifferent ears.”13

  Darrow was wounded, as well, by the silence from Toledo, where Brand Whitlock seemed to have abandoned him. “Mr. Darrow is so crushed,” Mary wrote Whitlock. “You, I am sure, can say something to help him.” Ruby wrote Whitlock as well. “Are you, that he has always deemed one of his bravest and strongest fellow soldiers, turning deserter?” she asked. “HOW CAN you have remained silent so long!” she demanded. “Are you ALL GOING to sit on the fence and see this man marched past you to prison?”

  At one point, Gerson grew alarmed at Darrow’s drinking. “Let him alone,” Rogers told the doctor. “The liquor is good for him at a time like this.”14

  DARROW WAS INDICTED at the end of January. Fredericks gave him the courtesy of not arresting him at home. He went to court, was formally charged with bribing Bain and Lockwood, and released on $20,000 bail. If convicted on both charges, Darrow would face up to thirty years—the rest of his life—in prison. “Darrow … pale and nervous as a man of his highly sensitive organization must be under a prolonged strain … endured the ordeal with fortitude,” the Examiner reported. He straightened up, lit a cigarette, and forced a smile for the reporters.

  “This will be a real fight,” Rogers promised the press. “There will be no milk and water methods in this trial.” The newspapers confirmed his prediction when a series of leaks from the prosecution apprised Californians that Darrow had been found at the scene of the bribery. “Well, boys, is everything fixed?” he was said to have asked, with his arms draped around Franklin and Lockwood. It was a blatant lie that would not be repeated in court, but it troubled Darrow, who had great respect for the “spiritual weight” of public opinion on jurors.

  By pleading not guilty, Darrow formally denied the charges. And in his private correspondence with those closest to him—Everett, Jennie, Mary, Paul—he said he had done nothing wrong. “There is no right to get me,” he wrote his son. But legally guilty could be morally right—certainly in Darrow’s code of ethics, where the motive and not the act was the controlling measure of morality. In explaining what happened, Darrow chose his words carefully. “Can’t make myself feel guilty,” Darrow told Everett in a telegram. “My conscience refuses to reproach me.”

  “As you know the ax has fallen,” Darrow wrote Edgar Lee Masters. “Well, I chose my life and must stand the consequences.” Masters took this as a confession. 15

  Many of Darrow’s friends rallied around him. Older wired, “Keep your courage high.” And Gertrude Barnum sent a telegram saying, “History repeats itself. Big men in the patrol wagon. Little men in the band wagon.” Cy Simon, the Chicago jury briber he had taken into his office, offered to do “anything at all” and take “any sort of chance” to help the man who had rescued him from an identical predicament. John Jones, writing as a representative of “a large number of the Colored Lawyers in Chicago,” pledged their “unmovable and unchangeable faith and confidence in your innocence.” And from San Francisco came a telegram from Mary. “Your indictments come on Tom Paine’s birthday. Humanity’s friends travel the same road,” she wrote. “Keep up your courage. Friends are with you.”

  Debs wrote, saying how “exceedingly touched and pained” he was by Darrow’s dilemma and offering him hard-earned advice. “The thing of most vital concern to you now is that Darrow, above all others, shall stand by himself and be strong enough, even in his present situation, in which he is being tried by fire.”

  Darrow’s pride had constrained him from asking friends for money. But once labor deserted him, he had no choice. He wrote to Erskine Wood, begging him for $500 or $1,000. Three days later, embarrassed, he wrote Wood again and withdrew the request. Wood sent a check anyway. “I need it so badly I will keep it,” Darrow told him. “I hope you will get the money back. I believe you will.”

  “I have no sense of pride or shame, only rage, and would cheerfully sit on every street corner in the land … with a tin cup,” Ruby wrote to Older. She drew up a list, which was sent to Masters, of prominent men who “must be made to understand” the financial crisis that the Darrows faced. Masters set out to solicit money and to collect depositions that could be used as character references. Many were helpful, but one jurist—federal judge Kennesaw Mountain Landis—declined, telling Masters that “they had caught Darrow at last, and he was glad of it.”16 Scripps distanced himself as well. Like many, he presumed Darrow was guilty. “No one will believe that Franklin could have handled such sums … without the knowledge of the chief counsel for the defense,” wrote C. D. Willard, a municipal reformer in Los Angeles, to the publisher.

  February brought a fresh crisis. Portly John Harrington, threatened with prosecution, made a deal to corro
borate Franklin’s tale. The ardent Oscar Lawler was now working as a federal special prosecutor, and at his direction Harrington took a hotel room that had been outfitted with a dictograph by Robert Foster, a detective working for Walter Drew and the steel industry. Darrow and Harrington met repeatedly, with Harrington trying to get Darrow to make an incriminating statement for the hidden microphone, and Darrow, suspecting a trap, striving to avoid it.

  “Are you going to testify against me, John?” Darrow asked.

  “I would not say a word, but, my God, Darrow, I won’t perjure myself for any man,” said Harrington.

  “I am sorry you have that in your head,” said Darrow. “I will give you anything you ask within reason. I wish you would name the amount. Don’t desert me on this thing.”

  The episode came to an inconclusive end, though not until the state leaked a sensational account of the “Dictograph Trap” to the newspapers.

  Drew, who was in constant contact with Fredericks, told a henchman in late February that Darrow would plead guilty and “tell all he knows” about Gompers if spared a prison sentence. This story was also fed to the press. “He is a man of great sensitiveness and already he has suffered terribly,” the Times said. “Will he go further and appear in court for weeks while … his inmost secrets are bared?” The roguish defense investigator, Larry Sullivan, thought not. Darrow “will either plead guilty or commit suicide,” Sullivan predicted in a letter to Wood.17

  But it was far from rare for a defendant or a go-between to explore the terms of a plea bargain with a district attorney and then reject them. His foes no doubt leaked the tale to further the perception of Darrow’s guilt. It was never a real possibility, he later insisted. “I had no information to give,” Darrow said, though he noted that this was “as much as Franklin or Harrington had.” He could have “told them any story that I saw fit,” he recalled. “I could have purchased my liberty at the price of my honor.” But he did not.

  Honor did not keep Darrow from other intrigues. In April, with the start of the trial just a few weeks away, he and Ruby joined a gathering of friends in San Francisco. At one point, Johannsen pulled Wood aside and asked if he would help them kidnap Harrington. Both Darrow and Rogers had waylaid witnesses in their careers. While certainly illegal, it was—like stealing evidence or paying witnesses exorbitant amounts as “expenses”—a not-unheard-of tactic. “I am sure Darrow knows of it,” Wood wrote Sara.

  Wood told Johannsen he would take no part in it. Anton was philosophical. He admired Wood’s strength, Johannsen said. Darrow, on the other hand, was a weak man—too soft to either stand by his principles or to prosper at wickedness. Darrow had “departed on a piratical course,” Johannsen said, but was, in the end, “too flabby to be a pirate.”18

  THE TRIAL BEGAN on May 15. There was no apparent irony in the day’s Herald, which noted how Ruby had been accompanied up the hill to the courthouse by “Miss Mary Field of San Francisco, who is making a stay in this city and spending most of her time with Mrs. Darrow.” In the turbulent weeks at the end of the McNamara trial, Mary and Darrow had ended their affair. Mary was “widowed,” Wood decided. Sara concurred. Her sister had once seen Darrow “as a Napoleon who was changing the map of Labor’s world,” Sara wrote Wood. “So fade our dreams, so fall our ideals, so pass our stars.”

  But Mary still had an emotional tie to Darrow, and he to her. She was in Los Angeles to cover the trial for Organized Labor, a union newspaper, and to stand by him, Ruby notwithstanding. “My heart aches … for him,” Mary wrote Sara. “He is such a sensitive man … it cuts him cruelly.”

  Ruby smiled bravely as she greeted the reporters and vowed “to help my husband in any way I can.” But inside the courtroom she wiped at tears. She slipped into a chair inside the rail, behind her husband, whose “face was haggard,” the newspapers noted. The muscles of his cheeks “twitched unceasingly,” and the lines in his face “told of nights of sleeplessness and worry.”

  Darrow could be grateful for one turn of events. He might be up against the same prosecutors who beat him in the McNamara case, but not the same judge. Judge George Hutton was nothing like the martinet Judge Bordwell. The young and earnest Hutton had just four years’ experience on the bench.

  Jury selection went swiftly as Rogers, Frederick, and the assistant district attorney—Joseph Ford—identified the biases of the talesmen. By the end of the first week, Darrow joined the questioning—hoisting a leg upon a chair and leaning on his knee with folded arms, speaking soothingly as he “began to impress his subtle personality upon the jurymen.” Even the Times admitted that Darrow was “remarkably effective.”

  “You realize that this is an important case to me and that all I want is a fair and impartial trial?” Darrow asked one candidate as the other talesmen looked on from the jury box.

  “I do,” said the mesmerized man.

  It took but ten days to select the jury, a time otherwise marked by news, illustrative of the passions gripping the state, of an assault on Emma Goldman and her lover, Ben Reitman. The two anarchists had been ridden out of San Diego by a reactionary mob that abducted Reitman, took him to the desert, stripped him and abused his rectum and testicles, soaked him in tar, and beat him as he ran their gauntlet.19

  The selection of one juror proved especially significant. Young Fred Golding was a partner in a local lumber company and, as an up-and-coming businessman, likely to be challenged by the defense. He was also, however, a believer in conspiracies, which he detected in the way that Franklin was arrested. Rogers encouraged Golding, for this was a line of argument the defense would press during the trial. Franklin’s arrest was “like a stage play … with an orchestra playing,” Rogers suggested.

  Yes, Golding said: “A man like Darrow would not carry out any such affair in the daytime.”

  Yet Fredericks, presuming that Golding’s loyalties as a businessman would win out, let him join the jury. It was a calamitous mistake. Time and again, Golding would vex the prosecutors, until they despaired at ever winning his vote. And Darrow, after the trial, would pay Golding $4,500—some $55,000 in today’s currency—or more.20

  FREDERICKS MADE HIS opening statement on May 24. After giving a chronology of the Lockwood bribery, he declared that it was but “one of a series of efforts” in which Darrow “endeavored to defeat and obstruct justice” in the McNamara case “by offering and paying money to other jurors … [and] to witnesses.”

  Rogers jumped up, trembling with ersatz outrage. “The rules of evidence will not and do not permit the introduction of any such evidence,” he announced. “We believe we can sustain our position beyond any per-adventure.” When Fredericks tried to continue, Rogers filled the day with objections and exceptions. It is fair to conclude that the jury failed to get the full impact of the prosecutor’s address: even Fredericks lost his train of thought and had to ask the court reporter to read back what he said.

  Lockwood took the stand the next day. He was a gray-bearded, sixty-four-year-old former policeman who had once worked with Franklin in the sheriff’s office. He told how Franklin had approached him, saying that they both were at a stage of life where they needed money “sufficient for our wants in our old age” and offering him $4,000. When Lockwood asked what he was to do, Franklin told him: “Vote not guilty.”

  But before Lockwood could finish, Rogers was up and at it again. That day’s Examiner had published a front-page story in which Walter Drew’s detective, Robert Foster, bragged that “I will convict Darrow with the dictograph evidence.” Rogers now condemned it as a brazen attempt by the steel industry and the prosecution to influence the jury, whose spellbound members watched agog as he strutted and declared it “one of the most outrageous things that ever happened in jurisprudence!”

  Rogers knew that Fredericks had a temper and, sure enough, the prosecutor lost it. “This has gone about as far as a man with red blood in his veins can stand,” he told the judge, then demanded: “Are we going to trial in the case of Clarence D
arrow for bribery?”

  “Yes, we are going to try him squarely and we are going to try him without interference of Robert J. Foster or any member of the steel trust or the erectors association,” Rogers proclaimed. “We do not want to go on with this kind of thing, coming up day after day against us, with every attempt to intimidate and prejudice our witnesses, to give us the most queer trial in America!”

  When Lockwood resumed, his testimony seemed almost anticlimactic. He had alerted Fredericks, he said, who had plotted to trap Darrow in the act. An initial attempt at Lockwood’s ranch failed when, to the disappointment of the detectives hidden around the grounds, Franklin did not bring Darrow or the money. The payoff was rescheduled for November 28.

  On the downtown corner, Franklin had handed $500 to Lockwood and $3,500 to C. E. White, a mutual friend who was to hold the balance until the verdict was secured. Lockwood then dropped a $500 bill—a signal for the police to move in. Finally, Franklin sensed trouble. “The sons of bitches. Let’s get out of here,” he told Lockwood. They moved up on Third Street to the sidewalk along Main, where detective Browne stopped them, just as Darrow arrived.

  Rogers did not spend much time cross-examining Lockwood. “It was a trap,” he said contemptuously. “It was put on as a performance.” That was sufficient to ignite Fredericks, who demanded that Rogers be punished for contempt. “If the prosecution has any right in the world in endeavoring to keep the Courts pure and decent … they have a right to be protected from a man who comes in here and makes a statement such as that,” Fredericks told the judge.

  Given the whoppers that the district attorney was telling in court—he had just finished denying that Drew and Foster were helping him build the case against Darrow—his anger was unjustified. Moreover, it was just what Rogers wanted. For the jurors immersed in the details of the trial, the stagecraft of Earl Rogers was drowning the impact of otherwise damaging testimony. “Hell seethed and erupted,” Adela recalled. From afar, Drew recognized what was happening. The whole dictograph controversy, he griped to a hireling, “was a trumped-up affair for the purpose of distracting attention.”21