Clarence Darrow: Attorney for the Damned

by John A. Farrell

  In his correspondence with his family, Darrow did not assert innocence—only righteousness. “Can’t make myself feel guilty,” he wrote his brother Everett. “My conscience refuses to reproach me.” Guilty of what? Reproach him for what? “Do not be surprised at anything you hear,” he told Paul.

  It might well have taken place just as Bert Franklin and John Harrington testified—with Job Harriman and Olav Tvietmoe joining Darrow in an orchestrated plot. The three men certainly wanted to save the McNamaras from the gallows. They hated the corrupt capitalists. They believed such tactics were justified—especially, in Darrow’s case, with lives at stake.

  Many of Darrow’s friends reached the conclusion that he knew what Franklin was up to. “While Darrow has naturally my human sympathy there goes with it the old Greek sense of … justice,” Wood wrote to Sara. “He played the game. He made his own code of morals. He took the risk.”

  “I never had any doubts on the subject,” journalist Hugh Baillie recalled. “In my opinion Darrow was guilty—on the evidence … on his attitude and appearance during the trials; and on the basis of my private conversations with him.”

  The “laws of God … consider motive everything,” Darrow had said. He was under intense pressure that fall and clearly unable to master his ego, libido, and emotions. It’s more than possible that he seized a reckless way out. For the fact is that Franklin bribed jurors. And somebody gave him the money to do it. Fredericks reached a reasonable conclusion that the McNamaras’ lead attorney must have been in on the crime. And if Franklin was an agent of some other McNamara supporter—a radical like Harriman or a labor leader like Tvietmoe—it is hard to see him working without Darrow’s knowledge. “It would not be until after he had consulted with Mr. Darrow and knew it was all right to do so,” Ford argued. And “then Mr. Darrow would be guilty whether he personally gave the money to Franklin or not.”

  And yet Franklin had testified—stunningly—that he approached four other potential jurors without ever informing Darrow. He was running around town offering bribes to old acquaintances, several with law enforcement connections, heedless of the risks. “If he went to those … without my knowledge or direction,” Darrow asked in court, why not Bain and Lockwood?

  If not Darrow, who? There is a scenario that, without relieving Darrow of responsibility, moves him away from the center of the plot. It was Rogers who, in his closing argument, fingered Tvietmoe as the architect. “Tvietmoe is the last man who had the money,” Rogers said, referring to the AFL’s $10,000 check. Tvietmoe was “the Viking” who ran the rough stuff for labor on the West Coast. It is useful to consider how the whole “dynamite conspiracy” was built around clumsy winks. Union violence was orchestrated in secret and okayed by a select few, in part to keep the “lily whites” in the movement free from taint or legal danger, Johannsen explained. Maintaining deniability for higher-ups was important.

  Darrow’s active part in the conspiracy may have ended when, with his own nod or wink, he gave Tvietmoe the check. Even Fredericks told the jury that Darrow “did not know the details.” The defense detective, Larry Sullivan, acknowledged that he knew when Franklin bribed Bain—and told their friend Wood, in a private letter, that Darrow did not.

  That was the pattern in the Haywood case. Subalterns like Frank Hangs did the dirty work—finding witnesses who would concoct testimony for a fee and helping them craft their stories. Only at the end were the aspiring perjurers brought, with a wink, before Darrow.

  And if the bribery plot was, like the Times bombing itself, a Tvietmoe operation—which was the prosecution’s original theory—it would explain why, even as Darrow and Steffens labored to settle the case, Franklin plowed ahead. Darrow kept the McNamara plea negotiations a secret, and neither Franklin nor Tvietmoe nor Harriman had an inkling on the morning of November 28 that there would be no need for a jury. They had every reason to continue with a plot to bribe Lockwood.

  From this perspective, what Darrow blurted to detective Sam Browne that morning makes sense. According to Browne, Darrow showed shock and ire at how—not whether—the crime occurred: “My God,” he said. “If I had known that this was going to happen this way I never would have allowed it to be done.”34

  Whether at the center of the bribery plot or at its periphery, Darrow believed that great political movements have philosophers, who provide the intellectual foundation, and men of action, who transform theory into force. And “both are useful,” he said. Though his enthusiasm for a cause was generally tempered by his skepticism, and his action generally limited to court, Darrow defined himself as a little of each. In Los Angeles the man of action, the aspiring pirate, went too far.35

  Did Darrow pay for it by spending two years of his life in purgatory? Undoubtedly. And it made him a better lawyer. “The cynic is humbled,” as Steffens said. Darrow felt hurt that was real, not theoretical. He believed, more than ever, that life is a hopeless, savage, and pointless exercise. But his heart moved him, more than ever, to try to save others from the pain. Darrow was fifty-five when the second trial ended, broke and disgraced. But for the rest of his life he would make amends, score his greatest triumphs, and die an American hero.

  AT THE TIME, however, the mistrial was a disaster. Though saved again from prison, Darrow was left with the taint of guilt. There was no tide of congratulations, no bouquets of flowers.

  “This is not vindication,” Wood wrote Sara. “Poor Darrow. Poor Mary.”36

  “It was a fluke all around,” Darrow told Paul. He blamed “two or three … damn chumps of farmers” on the jury. And in a letter to Wood, Darrow attributed the result of the second trial to a series of “accidents such as sometimes comes in a case.” The daily pounding by the Times played a role, he said, as did fallout from the Indianapolis convictions. The jury was “very bad” and “I really had no lawyer. Rogers broke down the first day.”37

  Fredericks kept Darrow in limbo before finally signaling that the state would not seek a third trial and allowing the Darrows to leave for Chicago. He wrung one last humiliation from Darrow before the indictment was dismissed, compelling him to sign a fawning letter that the district attorney could display to union voters in California. “You were absolutely fair,” the letter from Darrow to Fredericks said. “I know you had no personal animus, or feeling either against my clients, whom I was defending, or the great army of labor unions who were assisting them. You personally refused at all times to adopt any measures or follow any course for the purpose of creating public sentiment against labor unions.”38

  On April 4, the Tribune reported that Darrow was on his way back to Chicago, but only for a time. The famous attorney, the paper said, planned to “retire to a ranch in northern California and devote himself to literature.” The free love colony seemed closer than ever. But that same day, in Los Angeles, his friends received an urgent telegram from Darrow. Ruby had disappeared.39

  “Mary and I believe she has done this purposely to frighten him and show him his need of her,” Sara wrote to Wood. “She has been painfully jealous of everybody here and hates the Pacific Coast; has vowed they would stay in Chicago while Mr. D has vowed they would return.”

  Ruby had reason to detest California and cause to resist the move to Los Gatos. She knew of her husband’s philandering, and of what the other members of the proposed artistic colony thought of her. Before the Darrows came to Los Angeles, “she was not aware of his diversified interests in women as she has been here. Also, he has drawn closely about him that group of intellectual radicals with whom Mrs. D has had nothing in common,” Sara wrote. “Her one desperate idea seems to have been to hold him by any means she could.”40

  And so, when the train carrying them home from Los Angeles stopped at a small California depot, Ruby got off, and left Darrow behind.

  Chapter 14

  GRIEF AND RESURRECTION

  To see the cherry hung in snow.

  Ruby’s remonstration got Darrow’s attention. He and she were reconciled. But
the price she exacted was steep. He abandoned his dreams of a literary life, and the belvedere where he and his friends would gather, like cicadas in the California sunshine. “The Darrows have gone back to Chicago to remain,” Fremont Older’s wife, Cora, told Erskine Wood, updating him on plans for the colony. “He would like to but she is greatly opposed.”

  Darrow owed her. “For all Ruby has done for me and is doing, she never could get more from me than her own if she were to take all I had,” he told her brother.1

  Darrow admitted, as well, to a feeling of shame when he thought of California. “I … long to go—but with the longing comes the horrible revulsion,” he told Mary.2 “It is so hard to go back to the scene of all the indignities, insults and humiliations … When I think of it a black cloud comes over the sky and I can’t get out from under it.” Any hopes that his enemies might mellow ended that fall when the Los Angeles Times called attention to an accusation in a sensational divorce case that Darrow had made love to a Pasadena woman in California. She was described as “a musician, and full of temperament,” and he had been spotted hugging and kissing her, and leaving her home at night.

  Mary was on his mind in those first months back. He had no law practice and made money by touring the small towns of the Midwest, giving lectures for $100 and a cut of the gate. At night in his hotel, he would write long letters to her. “I am up here making a couple of speeches and as lonesome as hell,” he wrote from Montevideo, Minnesota, on the Fourth of July. He was wasting his time on the “little jay towns and jay people,” he said. “I am blue and lonesome tonight and wish I could see you.…

  “The only feeling in the world that can make you forget for a little time is the sex feeling,” he wrote.

  Darrow greeted the news of Mary’s June 1913 marriage to Lem with the same mixed feelings she did. Mary loved her husband (“Oh, he has the heart that Darrow hasn’t,” she told her diary), but knew she was surrendering to conformity. “Mornings I shall put on a house frock and link the corners of my mouth to my ears,” she wrote Sara. Woman’s “purpose is Man. In him—always to all women some man is Man—she moves and breathes and has her being,” Mary said. “I include myself, damn it!”

  Darrow was happy for her. “I am sure it will be all right and if not you will both have sense enough to stop it,” he said. But he urged her to retain some independence: “Mary don’t settle down to the conventional married lady, but write, write.” Two years later, when she told him she and Lem were expecting a baby, he wrote: “Life isn’t worthwhile, and still we keep producing it [but] there is no joy like a child, perhaps no sorrow too.” Darrow’s feelings for Paul were heartfelt. They were business partners in the Greeley gas venture, and Darrow a happy grandfather who made time to spend holidays and summer vacations in Colorado. He wrote to Mary of “the consolation that Paul has brought.” 3

  CHICAGO’S RADICALS WERE glad to have Darrow back. The Lawyers Association of Illinois, a group he and John Altgeld had helped found as an alternative to the staid bar association, held a banquet in his honor. More than two hundred people attended.

  “They have robbed him of his fortunes; they have robbed him of his fair name, but they have not destroyed his character,” said the Reverend John Gillan, a Catholic priest who often sent impoverished parishioners to Darrow for legal help. “Did he ever refuse to take up a case? No. They had no money; they were poor; they were down-trodden; they were suffering, but it was always a glad welcome, always a hand extended; never a refusal.”

  Darrow was moved. His chest heaved as he listened, and when it was his turn to speak, the members of his audience had to strain to hear. He began on a self-deprecating note. “I have not so very long ago heard considerable objections to myself,” he said, of his trials in Los Angeles. “I have a suspicion that neither my enemies nor my friends have told the exact truth … and still a stronger suspicion that I shall not tell it either.…

  “At times I felt that I stood alone in the world, and it is not a bad feeling,” he told them. “And it is well enough for a man once in a while to feel that he stands alone and is ready to fight the world. It is good for your courage; it is good for your character.”4

  Darrow was invited to speak, in those first weeks back, at the Elizabeth Cady Stanton guild, the Society for Rationalism, and the Walt Whitman fellowship, where the women in the audience scandalized the editors at the Tribune by lighting “dainty cigarets” after dinner. Hamlin Garland found him “vigorous and full of fight.” He gave talks in New York and other eastern cities, visited with Gertrude Barnum, and wrote to the unbridled Mabel Dodge Luhan, whose bohemian friends at her Greenwich Village salon had welcomed him and urged him to relocate. “The lure of New York is still in me. It is a dangerous place for me to visit,” Darrow said. “But … the habit of procrastination is … strong and old with me.”

  Darrow was not back for long before an old friend from the Secular Union, the socialist Peter Sissman, suggested they be law partners. If he didn’t return to the courtroom, Sissman told him, it would be a “tacit admission” of guilt. Darrow agreed to split the proceeds of the new firm equally with Sissman, whose civil practice subsidized them both at first. Over time, they would be joined by the scholar Victor Yarros, who worked as a researcher and investigator, and two young attorneys, William Carlin and William Holly, who would never forget the experience.

  Darrow tried his first significant case in June. He took it mainly to advertise that he was back. It was an arson case in which the star witness was the firebug himself—testifying under a grant of immunity against the men who hired him to burn down their woolen goods store. Darrow told Paul there was “not a chance to win” and the jury quickly found his client guilty. He fared better in the defense of the defendant’s secretary, a naive young lady charged with perjury for helping her employer manufacture an alibi. Darrow secured a promise for a pardon from the governor, then made it redundant by getting her acquitted. “I must have made a good speech,” he told Sissman, “because the jury was in tears and even the judge turned his face to the wall.”5

  A fine array of scoundrels made their way to his door. The million-dollar forger Peter Van Vlissingen and a doctor who poisoned his wife with chloroform—Dr. Haldane Cleminson—got Darrow to plea for reductions in their sentences. When real estate dealer Carleton Hudson was exposed as a con man—“J. Rufus Wallingford, the Count of Coxsackie”—he hired Darrow to keep him from jail. And Darrow persuaded then-Governor Edward Dunne to pardon Newton Dougherty, a former superintendent who had fleeced the Peoria public schools of $700,000. Darrow saved the seventeen-year-old killer William Rahn from the gallows, not by pleading the boy innocent by virtue of insanity but by presenting evidence of mental deficiencies and persuading a judge to show mercy. A year later, Darrow used the strategy again and kept Russell Pethick, the crazed delivery boy, from the noose.

  The work was therapeutic. “I am fairly happy, for me,” Darrow told Older. “I believe I have got over the self-pity.” But some saw a waste of his talents. Darrow had an “irresistible impulse … to help stupid and ungrateful persons who were totally incapable of applying or using the excellent advice that he always gave,” said lawyer Harold Mulks.

  Darrow was his old provocative self when he addressed the Women’s Law League, a gathering of what the newspapers called “pretty lawyer-esses.” Women were not so clever, and could “never expect the fees that men get,” he said. Why not give up on corporate law, he asked them, and build a practice “you can have solely for your own? …

  “The poor man … charged with murder … can’t get a decent lawyer to defend him … Make that your field,” Darrow said slyly. “You won’t make a living at it, but it’s worthwhile and you’ll have no competition.”

  He stayed in the public eye. It must have been pleasant to see himself portrayed as a hero in From Dusk to Dawn, a silent movie made by socialist filmmakers, based loosely on the McNamara case. (Very loosely. The workers win.) Segments of the ninety-minute drama,
which mixed staged scenes and documentary footage, had been filmed during the trial in Los Angeles, with Darrow and Job Harriman re-creating their roles in court. It had a national release, and a half-million people saw the film in New York alone.6

  And in early 1914, Darrow joined another of Chicago’s well-known defense lawyers, Charles Erbstein, in the sensational defense of rich, petite Louise Van Keuren and her lover, the impecunious but dashing jeweler George Penrose.

  Louise was charged with murdering her husband when he broke into the front door of an apartment as Penrose snuck out the back. In court, she wept, moaned, and collapsed on cue, and then posed for photographers. She had not recognized her husband, Darrow insisted, though the dead man had been shot from so close that he had powder burns on his face.

  It took the jury an hour to free Louise. The prosecutor, W. W. Witty, took his loss philosophically and, when reporters asked for his reaction, offered a Chicago maxim: “You can’t convict a woman of murder in Cook County, especially if she is a pretty woman.”7

  DARROW HAD NO such advantage in the toughest criminal case he handled in those first months back from California. An attractive white woman was the victim, and the defendant, Isaac “Ike” Bond, was an African American.

  Ida Leegson was an artist, working as a nurse to pay for her studies, who had placed an ad in the newspaper, looking for work. On an October afternoon she set out to meet a potential client. The next morning, her body was found on the prairie. She had been raped and strangled.

  The search for the killer was a travesty. The initial description of the suspect was of a short white man. Then came reports that a black man had pawned Leegson’s watch in a shop on State Street, and witnesses told police of seeing a tall “copper-colored” Negro in the company of a white girl. The sensational news of her death, her naked body, and the race of her killer (“Negro Her Murderer … Girl Tortured for Hours”) made front pages across the country. It was soon open season on dark men in the Midwest. Bond, a former deputy, was questioned by police in Gary, Indiana. He went to the Chicago pawnshop to clear himself, but instead the owner fingered him as the murderer.