Clarence Darrow: Attorney for the Damned

by John A. Farrell

  “Each boy felt inadequate to carry out the life he most desired unless he had someone else in his life to complement him, to complete him,” Hulbert declared. “The psychiatric cause for this is not to be found in either boy alone, but in the interplay or interweaving of their two personalities.”11

  ROBERT CROWE WAS not about to let exculpatory material into the record without a fight. When Darrow called Dr. William White, a prominent psychiatrist, to the stand, Crowe rose to object, demanding that Caverly halt the proceedings.

  “What is the defense trying to do here?” Crowe asked. “Are they attempting to avoid a trial upon a plea of not guilty with the defendants before twelve men that would hang them, and trying to produce a situation where they can get a trial before one man that they think won’t hang them?”

  It was a rhetorical question. Everyone in Chicago knew that this was exactly what Darrow was trying to do.

  “There are not degrees … in responsibility,” Crowe argued.

  Darrow’s entire case rested on Caverly’s ruling, and he showed great restraint in not joining the debate. Crowe was trying to bully Caverly, and Darrow, who believed that the outcomes of trials rested on such elemental factors as likability, let the prosecutor continue, trusting that Crowe would antagonize the judge. It was only after Caverly asked for legal briefs and argument the next day that Darrow responded with an hourlong address.

  “I understand,” he began, leaning upon the bar in his wrinkled seersucker suit, that “the position of the State’s attorney is that the universe will crumble unless these two boys are hanged.…

  “I must say that I have never before seen the same passion and enthusiasm for a death penalty,” he said.

  “If I thought that hanging them would prevent any further murders I would probably be in favor of doing it,” Darrow said. “But I have no such feeling. I know the world will go on about the same in the future as it has in the past.”

  It was all about precedent. “The defense in this case has met these issues perfectly squarely,” Darrow said, raising his voice and jutting out his jaw. “We have not invoked any harsh and strained laws to save the lives of these defendants, and we protest against any such rules of law being invoked to kill them.”

  Caverly listened thoughtfully, tapping his teeth with a pencil. “A man may be wholly, or nearly wholly, defective, and still it doesn’t come under the definition of legal insanity,” Darrow said. “There are many conditions and diseases that come far short.” He was swaying back and forth now, like a grizzly on its hind legs.

  There was precedent, Darrow said, and he cited his own defense of the crazy Russell Pethick, the grocery boy who had slaughtered a young mother and her toddler son. As in the Pethick case, the condition of Babe and Dickie was such “that we did not wish to go before a jury with the full defense of insanity … but it was such as we believed would appeal to any court as a ground for clemency and mercy in the case of these two unfortunate lads.”

  Yes, he had called them “unfortunate lads.” No doubt he believed it. His speech led the papers the next morning, and the uncritical coverage was a signal to Caverly that a merciful verdict might not be met with public execration.

  In a salute befitting the Windy City, a reporter for the Herald Examiner declared that Darrow had shown himself as “the greatest figure in the greatest moment of the greatest drama of life and death in the history of American jurisprudence.…

  “Darrow, of counsel for the defense. Darrow, greatest criminal lawyer in America. Darrow going into action,” the newspaper gushed. “Hamlet has his epitaph: ‘He was a man; take him for all in all, I shall not look upon his like again.’ ”12 The judge overruled Crowe’s objection and let the trial proceed on Darrow’s terms.

  White and the other experts took the stand to state their conclusions and answer questions about the content of the psychiatric reports. The study of hormones and glands and their effect on human behavior was in its infancy, but Darrow was fascinated by the notion that the release of natural chemicals made the human machine run in certain ways. And so more doctors were summoned to describe the abnormalities of Leopold’s pineal gland and Loeb’s slow metabolism.

  The world was paying attention, even if it was difficult to decide just what, in the scattershot testimony of the experts, the defense was trying to say. “Mr. Clarence Darrow may be said to have opened a new chapter in the criminal courts,” the editors of Great Britain’s New Statesman wrote. “His witnesses went all out in the direction of the new psychiatry: Freud, Behaviorism, endocrine glands, split personality, folie à deux, basal metabolism and the rest of it—every theory and term that, during these eventful years of psychological enterprise, has been heard in the babel of the schools. Much of it, perhaps the greater part, was pretentious or merely grotesque; but not a little was very interesting, and part of it undeniably significant.”

  Crowe countered with his own experts, who declared the boys sane. But under Darrow’s persistent cross-examination, they acknowledged that they had been rushed and were working in far from ideal conditions when they examined the defendants for just three hours in a chaotic session on Memorial Day weekend. In some cases, Darrow read from textbooks they had authored, in which they wrote how controlled clinical conditions were essential elements of a competent observation. At one point Darrow accused Dr. Archibald Church—whom he knew quite well, and had worked with since the Prendergast trial—of conspiring with Crowe to hang the boys. “You know better than that,” the doctor told him, shaking his finger at Darrow, who, chastened, withdrew the question. But he did get Church to admit that there were more than a dozen detectives, prosecutors, and others in the state’s attorney’s office when the doctors observed the youths.

  “Too many,” Church admitted, “for an ideal consultation.”

  “Did you ask any questions to find out evidence of mental disease?”

  “No,” Church conceded.13

  THE CLOSING ARGUMENTS began on August 19, when two of Crowe’s assistants recited the details of the crime with such savagery that Jacob Franks fled the courtroom and Nathan Leopold shuddered with tears. Word spread that Darrow was to begin speaking on the afternoon of Friday, August 22. Two thousand men and women showed up at the courthouse in what the Herald Examiner described as a “maelstrom of rioters who trampled upon each other, clawed at the police and deputies, tore each other’s clothing, cursed and, for a critical half hour, threatened wholesale bloodshed.” Caverly needed the help of three bailiffs, who formed a wedge, to get into his courtroom. The howling from the corridor was so persistent that Darrow threw up his hands and suspended his remarks while more police were called to clear the halls.

  Darrow spoke to three distinct audiences. The most important, of course, was Caverly. Here he was direct, using statistics to build the weight of precedent. “I told your Honor in the beginning that never had there been a case in Chicago where on a plea of guilty, a boy under twenty-one had been sentenced to death,” Darrow said, waving a solemn finger. “If these boys hang, you must do it … It must be by your deliberate, cool, premeditated act.”

  Indeed, “in the last ten years 350 people have been indicted for murder in the city of Chicago and have pled guilty,” he said, and “only one has been hanged.”14

  Arms folded, Darrow looked up at the judge.

  “Your Honor will never thank me for unloading this responsibility upon you, but you know that I would have been untrue to my clients if I had not concluded to take this chance before a court, instead of submitting it to a poisoned jury,” Darrow said. “I did it knowing that it would be an unheard-of thing for any court, no matter who, to sentence these boys to death.”

  For the most part, Darrow ignored the detailed testimony of the psychiatric experts—disappointing some advocates of the new science. There was no need for it, he said; it was patently clear from the bizarre nature of the crime that Leopold and Loeb were gripped by forces beyond their control. “It was the senseless act of immature
and diseased children … wandering around in the dark and moved by some emotion that we still, perhaps, have not the knowledge or the insight into life to thoroughly understand.” Crowe and his aides sat silently. Caverly leaned forward, resting his chin on his clasped hands, listening intently.

  The judge was the most important audience, but there were others whom Darrow addressed. As in many of his famous closing arguments, he sought to teach his fellow Americans a larger point of law or politics—in this case, the evil of capital punishment. “My God! This world has been one long slaughter house from the beginning until today, and killing goes on and on and on and will forever,” he exclaimed. “Why not read something, why not study something, why not think instead of blindly calling for death?

  “Kill them! Will that prevent other senseless boys or other vicious men or vicious women. No! It would simply call upon every weak-minded person to do as they have done.”

  The final audience was Chicago. Darrow wanted to touch Caverly’s heart, but he knew the judge was a politician and that this speech must move public opinion. As he neared the end of that first day, Darrow played on the emotions of the city’s parents, whose hearts were filled with sympathy for Jacob and Flora Franks, but also with horror at what had happened to the Loebs and the Leopolds.

  “I know that any mother might be the mother of a little Bobby Franks, who left his home and went to his school and whose life was taken, and who never came back,” Darrow said. But “I know that any mother might be the mother of Richard Loeb and Nathan Leopold, just the same.”

  Walking back and forth before the bench, wiping the sweat from his neck with a handkerchief, he brought all the familiar gestures into play: striking his palm with his hand, tugging at the armholes of his vest, wagging his fingers, and tossing his shoulders. “I remember a little poem,” Darrow said. And here, in a voice so low that only those in the front of the courtroom could hear him, he recited the Housman verse that he had read, back in May, at the Lincoln Center event.

  And so the game is ended

  That should not have begun …

  Darrow stood in the tight space before the bar. “No one knows what will be the fate of the child they get or the child they bear,” he said. His voice was tight with emotion now.

  “I am sorry for these fathers and these mothers. The mother who looks into the blue eyes of her little babe cannot help wonder what will be the end of this child, whether it will be crowned with the greatest promises which her mind can imagine, or whether he may meet death from the gallows,” he said. “All she can do is to raise him with care, to watch over him tenderly, to meet life with hope and trust and confidence and to leave the rest with fate.”

  Women in the audience—including Judge Caverly’s wife and sister—wept. The defendants had stopped laughing; he had touched even their cold souls. They blinked back tears, and Leopold stumbled from the courtroom, his head bowed. In his cell that night, Loeb wrote a letter to his lawyer.

  “Only the tears in my eyes as you talked and the feeling in my heart could express the admiration, the love, that I have for you,” Loeb wrote. “I have gone thru so much of my life a play actor—but I am sure you know when it is the heart that is speaking. A heart, Mr. Darrow, with a thick coating of deceit, of selfishness, but a heart that way down deep must, because I am the son of my father and mother, have some good in it, and my message comes from there.”15

  JUDGE CAVERLY HAD scheduled a morning session for Saturday, and so, again, Darrow spoke for half a day. The crowds, alarmed by the reports of Friday’s riot, stayed away. Darrow, in the calmer setting, was solemn.

  “I can picture them, wakened in the gray light of morning, furnished a suit of clothes by the state, led to the scaffold, their feet tied, a black cap drawn over their heads, placed on a trap door … so that it falls under them and they are only stopped by the rope around their necks,” he said. “Do I need to argue to your Honor that cruelty only makes cruelty? That hatred only causes hatred? That if there is any way to … soften the human heart, which is hard enough at its best, if there is any way to kill evil and hatred and all that goes with it, it is not through evil and hatred and cruelty; it is through charity, and love and understanding?”

  He dropped his arms, as if in futility. “I am asking your Honor not to visit the grave and dire and terrible misfortune … upon these two boys,” he said. “I do not know where to place it. I know it is somewhere in the infinite economy of nature … I know it is there, and to say that because they are as they are you should hang them, is brutality and cruelty, and savors of the time of fang and claw.” Tears were streaming down his face.

  AND AT THE age of sixty-seven, Darrow spoke all day on Monday. An entire day, two sessions of court, two lives at stake.

  He talked about each of the defendants at length. Dickie Loeb, in the hands of his mad governess, “had no pleasures, such as a boy should have, except in what was gained by lying and cheating.” And there grew in his brain—“dwarfed and twisted”—a hunger for crime. Darrow’s voice cracked a bit and his eyes glistened as he ventured back to his own childhood.

  “Before I would tie a noose around the neck of a boy I would try to call back into my mind the emotions of youth … I would try to remember how weak and inefficient was youth in the presence of the surging controlling feelings of the child,” he told the judge.

  “It is not enough to take a boy filled with his dreams and his fantasies and living in an unreal world, but the age of adolescence comes on him … the most trying period of the life of a child … when the call of sex is new and strange … moved by the strongest feelings and passions that have ever moved men.…

  “This boy needed more home, needed more love, more affection, more direction,” Darrow said. “He needed to have his emotions awakened. He needed to have guiding hands along the serious road that youth must travel.”

  Then Darrow turned to Nathan Leopold.

  “He was just a half boy—an intellect, an intellectual machine going without balance,” Darrow said. “At 17, at 16, at 18, while healthy boys were playing baseball or working on the farm, or doing odd jobs, he was reading Nietzsche, a boy who never should have seen it.” In his last years, Nietzsche suffered from mental illness. “His own doctrines made him a maniac,” said Darrow. “And here is a young boy, in the adolescent age, harassed by everything that harasses children, who takes this philosophy and swallows it, who believes it literally, lives his life on it.”

  Darrow was, in retrospect, a uniquely apt lawyer for Leopold and Loeb. He had the audacity to treat judges and juries to original sermons on an intellectual plane far higher than the usual courtroom wrangling, and to do so in a captivating way. People listened to his reasoning, despite its strangeness, its theory, its difficult demand for mercy.

  “I am trying to trace causes. I am trying to trace them honestly. I am trying to trace them with the light I have,” he said. “I am trying to say to this court that these boys are not responsible for this … and asking this court not to visit the judgment of its wrath upon them for things for which they are not to blame.…

  “Sometimes, your Honor, a boy of great promise is cut off in his early youth. Sometimes he dies and is placed in a culvert. Sometimes a boy of great promise stands on a trap door and is hanged by the neck until dead.”

  After the noon recess, Darrow resumed his place before the bench. He began again, speaking calmly. The courtroom was packed “like a black hole. Hardly a breath of air moved in it,” the News said. But the crowd stayed with him, listening to every word. Judge Caverly toyed with his pencil, his face flushed, from time to time, with the heat and the emotion.

  “Ninety men have been hanged by the neck until dead, because of the ancient superstition that in some way hanging one man keeps another from committing a crime,” Darrow said. He looked around dejectedly. “The ancient superstition.…

  “We have not grown better than the ancients. We have grown more squeamish; we do not like to look at it, that i
s all,” he said.

  But “in ninety men hanged in Illinois from its beginning, not one single person under 24 was ever hanged upon a plea of guilty—not one.”

  He cited, one final time, Crowe’s crack about a “friendly judge.” He leaned across the shelf separating him from the judge, as close as he could get. “Your Honor, that is a blow below the belt,” he said. “It was carved out of the air, to awe and influence the court.”

  Americans had lost a measure of innocence in the Great War, Darrow said. Man grew coarse. Humanity became hard. Could it come as a surprise that boys were cruel?

  “I have spoken about the war. I believed in it,” Darrow said. “I approved of it; I joined in the general cry of madness and despair.…

  “Right or wrong, justifiable or unjustifiable … it changed the world. For four long years the civilized world was engaged in killing men. Christian against Christian, barbarians uniting with Christians to kill Christians; anything to kill. It was taught in every school … the little children played at war.

  “Do you suppose this world has ever been the same since?” Darrow asked.

  “How long, your Honor will it take for the world to get back in its human emotions to where it stood before the war? How long will it take the calloused heart of man before the scars of hatred and cruelty shall be removed? We read of killing one hundred thousand in a day; probably exaggerated, but what of it? We read about it and rejoice in it; it was the other fellows who were killed. We were fed on flesh and drank blood.…

  “I have been sorry, and I am sorry for the bereavement of Mr. and Mrs. Franks,” he said, “for those broken ties that cannot be mended. All I can hope and wish is that some good may come from it.