He began by speaking about Harrington and the dictograph. The prosecution may have thought their eavesdropping tool was a nifty new toy, but it clashed with the spirit of the West. It was sneaky—a tool of weasels and moneyed tricksters.
“Think of it a moment,” said Darrow. “Wouldn’t it be better that every rogue and rascal in the world should go unpunished than to say that detectives could put a dictograph into your parlor, in your dining room, in your bedroom and destroy that privacy which alone makes life worth living?”
The state’s admission that the trap had been set by Walter Drew’s operative confirmed Darrow’s claim that he had been targeted by the oligarchs because he was a friend of working folks. “Do you want to tell me that the Erectors’ Association, that would be guilty of a shame like this, would not be guilty of plotting my ruin?” he asked the jurors.
The people of California differed on much, but this they knew: their state had long been in the grip of corrupting enterprises like the Southern Pacific Railroad, known for buying politicians and judges.
The courtroom was silent now.
“I know I could have tried the McNamara case, and that a large class of the working people of America would honestly have believed, if these men had been hanged, that they were not guilty,” said Darrow. “I could have done this and have saved myself … I could have made money.”
But “if you had hanged these men … you would have settled in the hearts of a great mass of men a hatred so deep, so profound, that it would never die away,” he said. “I took the responsibility, gentlemen. Maybe I did wrong, but I took it, and the matter was disposed of and the question set at rest.…
“I acted out the instincts that were within me. I acted according to the teachings of the parents who reared me, and according to the life I had lived,” he said. “But where I got one word of praise, I got a thousand words of blame and I have stood under that for nearly a year.…
“I know the mob. In one way I love it, in another way I despise it,” he said. “I have been their idol and I have been cast down and trampled beneath their feet.…
“No man is judged rightly by his fellow men,” said Darrow. “We go here and there, and we think we control our destinies and our lives, but above us and beyond us and around us are unseen hands and unseen forces that move us at their will.”
After all, Darrow said, finishing softly with a bit of verse, Life is a game of whist. From unknown sources / The cards are shuffled and the hands are dealt. Jurors looked at the floor; two of them were crying. The judge, struggling to contain his own emotions, traced figures with his finger on his desk.
“I have taken the cards as they came; I have played the best I could,” said Darrow. “I know my life, I know what I have done. My life has not been perfect; it has been human, too human.”
But “I have felt the heartbeats of every man who lived,” he said. “I have tried to help in the world. I have not had malice in my heart. I have had love.”
FREDERICKS SHOULDERED THE task of closing the case for the prosecution. He asked the jurors to think of justice, the sanctity of the jury system, and the need to preserve the rule of law.
Darrow’s “oration” had been “plausible, eloquent … But that, my gentlemen, only reflects the ability of the man, and has mighty little to do with his guilt or innocence,” he said.
The key to the case is to “find out who furnished Franklin the money,” said the district attorney. “Now let us look. Someone connected with the defense, certainly. That circle can be drawn.” And “of all the men in all the world who might have been there at that particular time, isn’t it strange that as the officer of the law put his hands upon the felon Franklin, that felon’s boss—Darrow—should come right up and stand by his side?
“Can logic, tears or wails or fears convince you that Clarence Darrow was there by accident? Ah, nonsense! Nonsense! Absurd!”
Fredericks finished on a Friday. On Saturday morning the judge charged the jury. It began its deliberations just after nine a.m.
Darrow looked haunted. He remained in the courtroom, pacing nervously, hands shoved deep in his pockets. Ruby wept, ceaselessly. Fredericks retired to his office.
Hardly any time passed before the jury called for the bailiff. It had taken thirty-five minutes and three quick ballots for the jurors to reach a decision. Darrow smiled at the sounds of cheers and clapping in the jury room. It was a good omen. So was the short deliberation. And so was the fact that Fredericks stayed away, sending Ford to get the results.
The twelve men filed back into the box. They had indeed reached a verdict, they told the judge. “Not guilty,” said the foreman. Darrow sighed deeply. Johannsen let out a victory whoop. Ruby hugged her husband and his friends crowded around. “Oh, I can’t talk. I can’t talk. I am so happy. It is wonderful,” Ruby said. “I knew it. I knew it.”
Several jurors and bailiffs and then Judge Hutton came to congratulate Darrow. “Hundreds of thousands of Hallelujahs will go up from as many throats when they hear of this,” Hutton told him.
“Look this way,” the photographers shouted as their flashbulbs lit the room. “I can’t look all ways at once, gentlemen,” the happy Darrow told them. The crowd of well-wishers pushed him back against a wall. “Thank you. Thank you, friends!” he called out. It was a “long, hard ordeal,” he told reporters, and he vowed to go on, fighting for the needy.
The Examiner polled the jurors. It was a simple chore to reach a verdict, they declared: the evidence was lacking, and the prosecution had not proved its case. “Darrow has been dealt with very unjustly,” one told the paper. “He should never have been put on trial unless there was evidence enough to convict him.”
The celebrants lingered in the courtroom, not wanting the moment to end. Then they made their way to a workingman’s café just down the street from the courthouse. It took Darrow half an hour to get there, as he was repeatedly stopped by admirers who demanded to shake his hand. Mary treasured a photograph taken at the victory party. It showed Darrow and wife Ruby sitting at a table with a crowd behind them. Standing between them, joyous, was Mary.
Within hours, however, their joy was tempered by dismay. Word came from the courthouse. Fredericks had announced that his office would proceed with the second bribery count, and put Darrow on trial for buying the vote of juror Robert Bain.32
Chapter 13
THE SECOND TRIAL
A sensitive man must bribe to save.
Twenty years later, when her fervid adoration of Darrow had been somewhat allayed by time, Mary Field Parton admitted to her diary that even she—the lover who shared his secrets and his bed during those searing months in California—suspected he had bribed the McNamara jurors.
At the time, Mary vowed to everyone—even her sister Sara, to whom she confided all—that Darrow was innocent. But one night in January 1934, in the pages of her leather-covered notebook, she summoned “memories burned in with red hot rods” from the time when he was “crushed and weighted with the desertion of friends, with betrayal, with the impending doom of jail.”
“Bribing a juror to save a man’s life?” Mary wrote. “He wouldn’t hesitate … If men are so cruel as to break other men’s necks, so greedy as to be restrained only by money, then a sensitive man must bribe to save.”
THE DISTRICT ATTORNEY had no choice but to soldier on. “The loss of this case has greatly injured Fredericks,” Larry Sullivan wrote Erskine Wood. “The public condemnation … is general and vigorous.”
The average Californian may have believed that society had been compensated for the Times bombing by the long prison terms given the McNamara brothers, Harriman’s defeat, and the price Darrow paid during the first bribery trial. As Darrow put it, “even savages do not compel their prisoners to run the gauntlet more than once.”1 And the city’s ruling clique had reason to be content; the Owens Valley aqueduct would bring fortunes to the men who bought land on the water’s route to the sea. But Fredericks had political ambitio
ns; he would eventually run for governor. And so he pressed ahead. “The district attorney told me when I was out there that he would wear you out,” former senator Richard Pettigrew wrote to Darrow. “It is clear persecution.”2
As the news of the Lockwood verdict spread, Darrow received congratulatory telegrams and letters from around the country. Working-class resentment over the McNamara case was fading. On August 31, he took the train to San Francisco. He was met at the station by a brass band and hundreds of cheering supporters and smiled through his tears at the welcome. Darrow rode through the city at the front of the Labor Day parade, sharing an automobile with Tvietmoe, Mayor P. H. McCarthy, and other labor leaders. “One figure dominated the marching hosts above all others. Time and again his name rang out, flashing along the line from end to end and back again—Darrow—labor’s big-hearted champion,” the San Francisco Daily News reported.
At Shell Mound Park, on the shore of the bay, a band struck up the “Marseillaise” and the musicians escorted Darrow to the podium, shoving and pushing their way through the crowd, which refused to stop cheering for a full ten minutes after he took the stage. “He was dusty and travel marked,” one newsman wrote, “and those who knew him prior to the strenuous days of the McNamara cases commented on the change wrought in his face and bearing.”
Like many of Darrow’s speeches, his talk that day strolled and wandered before it got around to soaring. He had never much liked parades, he told the crowd. If he walked he got tired and dusty; if he rode he felt guilty about those who walked. And “the great question between capital and labor cannot be solved by marching,” he said. Darrow dismissed many of the remedial bandages that he and the labor movement had battled for: eight-hour-day laws, women’s suffrage, child labor legislation. “We are busy patching and tinkering, and doing a poor job patching and tinkering at that.”
The working class must seize the earth’s natural resources and the means of production, he said. “There can never be any proper distribution of wealth in the world while a few own the earth—a few men own the mines, the railroads, the forests, while the great mass of men are bound to compete with each other for a chance to toil,” Darrow told them. “There will never be a solution until all men are capitalists and all men workingmen … there can be no peace without it.” It was a banner day, but Darrow could not hide his hurt at how Gompers had forsaken him. He urged the workingmen and -women to “stand together in these contests and … not run away from comrades who, they believe, have made a mistake.”3
Darrow’s next stop was Portland, where Mary had preceded him. She and Sara made the rounds of newspaper offices, working as an advance team to drum up interest and shape the coverage. Darrow arrived on September 10 before leaving for Nevada and Utah, where he was to meet with Charles Moyer and confer on a copper mining strike. He concluded an otherwise dark and gloomy speech on a note of optimism. “The earth is moving, the universe is working, all the laws of creation are working toward justice, toward a better humanity, toward a higher ideal, toward a time when men will be brothers the world over,” Darrow said.4
Sara and Mary could not help but be impressed. “She still believes so entirely in him. And God knows I am glad she does,” Sara wrote Wood, who shared her suspicion that Darrow had conspired to bribe the jurors. “What is the truth—our illusions or our cold and careful speculations and analysis?” Sara wrote. “Who knows?”
“I don’t forgive Mr. Darrow’s wrong to society,” she told her lover, “but I can forgive the man out of which it came because from his composite has come his great good.”5
THERE WAS A lull that fall between the drama of the first trial and the battle that lay ahead. In the interim, Darrow and his friends turned their attention to romantic intrigues and the complications of their free love beliefs. Darrow had made it clear to Mary that he would not leave his wife, despite what Ruby called “our present strained uncertain mental and physical vibration.”
And so Mary found a measure of solace in the arms of Lem Parton, a journalist who courted her in San Francisco, who took her dancing in working-class halls, on hikes through the California foothills, and for long walks along the waterfront. She was, Lem told her, a “little sparkling elf-eyed lady with that dear devilish little pagan smile, which puts the old bunk world to flight.”6 Darrow kept his hooks in Mary from afar. “I do miss you,” he wrote in October, quoting lines of poetry and offering to send her money. “How I wish I were there,” he wrote, several weeks later. “How I will miss you if you are not here.”7
Sara, deeply in love with Wood (and pregnant, for a time, with their child), sought a divorce from her husband, Albert Ehrgott, but he refused to cooperate. Wood had loaned Albert money and posed as his friend, even as he seduced his wife. Now the minister threatened to expose the adulterers. “I warned you a long time ago and begged you to avoid inoculating my wife with your ‘free love’ philosophy,” Ehrgott wrote Wood.8 Sara went to Darrow for help, and he urged her to establish residency in Nevada, where a friend of his was a local judge and would grant her a divorce. Before leaving, Sara crisscrossed the state of Oregon giving speeches and organizing women in that fall’s campaign for suffrage. Oregon voters gave women the vote that year but Sara, physically and emotionally drubbed, ended it in a sanitarium in Pasadena, California, seeking to recover from exhaustion and the onslaught of tuberculosis.
Wood was not ready to leave his comfortable hearth or wife and fulfill his promises to Sara. As a serial adulterer, Wood thought it important, moreover, to settle the terms of his involvement in the freethinkers’ colony—the literary commune—that he and Fremont Older were now organizing near Los Gatos, a village in the foothills of the Santa Cruz mountains. Darrow, Mary, Helen Todd, and Lincoln Steffens had all signaled their interest in joining.9
Wood had concerns. “I want you to understand this is no joke about my being an anarchist and necessarily as such a believer in all freedom including free love,” he wrote to Older. “I despise marriage as an institution. I consider it a superstition and a bond and absolutely hurtful to society and obscuring the true relation of sex—union because of absolute affinity and mutual attraction.
“At my age, I hardly expect to run a red light district or a harem, but if I should be attracted to a woman and desire her as a companion I should not hesitate to put her under my roof, and whether she was my literary companion, my secretary, my cook, my mistress, or all these together I would consider my own affair,” he told Older. “I am not at all sure that the colony would be prepared to go so far in practice though they might in theory. I am very sure Mrs. Darrow would not in either theory or practice.”10
Indeed, Ruby was everyone’s concern. Each couple or individual at “the ranch,” as they called the commune, would have their own home but would share common areas with the rest, the better to inspire thought, debate, and creativity. The chemistry was therefore quite important. Mary was willing to put up with Ruby, but Wood was not. “I hate to seem to pick out one person always as an example, but it has come to my knowledge recently that Mrs. Darrow is objectionable to Lincoln Steffens, as we know she is to Helen Todd, yourself, [and] Mrs. Older,” Wood told Older. “Are we, for love of Darrow and because of his need for companionship and consolation, to introduce into this colony a personality that may negate the whole purpose?”11
Sara, too, had little use for Ruby—especially after Darrow had dispatched his wife to visit her at the sanitarium. Ruby stayed for two hours. “She is all that the Olders say, and that is pretty terrible—a pitifully shallow suspicious mind that reminds one of a narrow coffin from which she is forever removing the lid and exposing some ancient idea long since a corpse to those of us who do not accept conventional morality, ethics and standards,” Sara told Wood.
“Isn’t she awful?” Mary wrote Sara. “It is she—the revelation that she was the woman he loved—that stabbed me to the very quick. And he loves her yet—best of all—I believe. Poor, ignorant, cheap, tawdry little creature.”12
Darrow also visited Sara at the sanitarium and, notwithstanding her health, his relationship with Mary, and his friendship with Wood, once more propositioned her. Sara was troubled, emotionally and intellectually. According to the philosophy of sexual freedom that they embraced, she told Wood, Darrow was acting as a free agent, responding to his nature, and should not be condemned. Yet he evoked revulsion just the same. So she made sure, when he came, that another woman was always in the room with her. Sure enough, his visits tapered off.
“I wish I could admire him more at short range,” she wrote. “But he looks at all women with one idea. When he sees a woman he sees sex. That’s all. I hate it. It’s abnormal.”13
AS THE LOVERS coped with the discovery that little in love is free, the Bain case was moving toward trial.
In the happy days that followed the Lockwood verdict, the Darrow camp had presumed that the second trial would be a formality and shrugged off ominous signs.
The first was the dynamite case in Indianapolis, where the federal government was proving that the McNamaras had not acted alone, and demonstrating how the Times bombing was but part of a nationwide union conspiracy to use terror as a weapon. On December 28, three weeks before Darrow’s trial was to begin, the jury found thirty-eight of the forty defendants—including Olav Tvietmoe—guilty of a conspiracy to transport explosives with illegal intent. The verdict spurred huge headlines in Los Angeles and across the country.
Mary had caused her own sensation in Indianapolis. Writing for a union journal, she denounced the “farce” of a trial “in which money, prestige, power, was the prosecutor of want and obscurity.” There was a hullabaloo in court, and the judge banned Mary from the courtroom. “The judge is a tyrannical vinegar bottle, dyspeptic, lean as an empty pea pod, for years a petty politician and … a prosecutor of the bitterest type,” she complained.14 With her usefulness ended in Indiana, Mary returned to Los Angeles to resume work as Darrow’s operative: interceding with potential witnesses, or posing as a cosmetic saleswoman or a harried mother (using Sara’s daughter as a prop) to gain entry into the homes of potential jurors and gauge their sympathies. Lem was dismayed. “This whole business seems sinister and hopeless and you seem too fine and sweet,” he wrote her.15
Clarence Darrow: Attorney for the Damned Page 33