Clarence Darrow

Since the last two images were of crooks, we'll keep that up with a bit about another crook - Clarence Darrow!

Now hold on, there, Pilgrim, you say. What is this? Just another swipe at the legal profession and those that practice it? A childish sneering at the honorable men and women who keep our country one of laws and not of men? Nope. This is nothing more than what Clarence himself said.

When Lowell Thomas was simultaneously an instructor and a student at Chicago's Kent College of Law, he invited Clarence Darrow to give a talk. Clarence's opening sentence was "All lawyers are crooks!" What he meant, he elaborated, was that in an American court, everyone is entitled to the best possible defense. The fundamental tenent of American justice, then, is that in addition to lawyers helping free the innocent, they also must do their best to free the guilty - at times knowingly and successfully. So if you get a crook off the hook - even if it's by the book - we have to take a second look - and agree a lawyer is a crook.

Of course, anyone who's read George Orwell's "Politics and the English Language" will recognize what Clarence was doing; using a familiar word with a particular connotation with a new and private definition - an old lawyer's trick, by the way. But as Humpty Dumpty said in "Through the Looking Glass", when we use a word, it means just what we choose it to mean, neither more nor less. So by the proper definition, you can agree with Clarence or not, as you please.

But semantics notwithstanding, Clarence was by no means the goody-two-shoes, defend-the-downtrotten, people's attorney of popular image - except perhaps now and then by necessity. In the late Twentieth Century, an attorney and biographer had been planning to write a book about the great man. But when he began to delve into the primary source material, that is, the private correspondence of Clarence, his friends, and his foes, he found a far different man than the idealistic defender of the underdog of popular legend.

Although Clarence may have begun his career with stars in his eyes, by the time he was fifty, he had pretty much given up defending those who really needed it. By 1910 most of his professional time was spent working for clients with deep pockets, and he didn't care who they were. If labor unions could shuck out their collected dues for Clarence's fat fees, that was fine. At the same time if a robber baron needed a legal gun to work against the poor and the needy, Clarence was always available.

As far as his probity goes, even his friends didn't consider Clarence particularly honest. Bitter, yes; cynical, certainly; but honest, no. One of Clarence's partners had been Edgar Lee Masters - the Chicago lawyer / poet and the author of "Spoon River Anthology". Edgar finally became so disgusted with Clarence's sleaziness that he eventually removed Clarence from his list of friends.

So neither friends nor foes were particularly surprised when in 1911 Clarence was indicted for bribery and jury tampering. Earlier that year Clarence had been offered the equivalent of seven to eight million dollars in today's currency to defend two labor organizers - Jim and John MacNamara - against an act of terrorism. The Los Angeles Times had been taking a decidedly anti-union stance in a strike of the steel workers, and on the night of October 1, 1910, a bomb exploded in the back alley of the building. The Times building went up in flames (aggravated by a possible gas leak), and 20 employees of the paper were killed. Based on a state investigation - which the labor movement claimed was biased and faulty - John and Jim were indicted. Clarence then went to LA, and his own investigation quickly revealed his clients were guilty as hell.

One story - the idealistic one - is that as soon as Clarence found his clients were guilty, he immediately started working out a plea arrangement. After all, a laywer - at least operating under proper legal ethics as an officer of the court - is not supposed to lie or knowingly allow his clients to lie. The actual story is more complex, and it seems most historians now agree that Clarence had decided to cover all bases.

Although a plea bargain - lawyers prefer the term "plea discussion" - was (and always is) a legitimate option for an attorney, Clarence was more than willing to go to trial and even use a defense that the bombing was justified. Clarence also knew that in controversial cases a deadlocked jury was often the first step to an acquittal since the prosecutor might decide a retrial not worth the effort. And it may have been knowledge of the latter possibility that triggered subsequent events. In any case, toward the end of the year one Clarence's investigators, Bert Franklin, was arrested trying to pass money to one of the jurors on the street. Standing a short distance off and watching was - Clarence Darrow. Bert pled guilty and stated that he was acting on Clarence's orders. Then later Clarence was charged with bribing another juror.

So there were two counts against Clarence, each to be tried separately. In the first trial, he was ably defended by attorney Earl Rogers, and although their relationship was fractious, Clarence was acquitted. Despite the acquittal, Clarence decided to defend himself in the second trial. and so came near to proving the old adage about the type of a client a man has if he acts as his own attorney. That trial ended with a hung jury, and a strong majority favored conviction. But rather than go for a third trial, the prosecutors asked that the case be dismissed with the priviso that Clarence not practice law in California.

The traditional account of this story - as relayed in Irving Stone's Clarence Darrow for the Defense - is that the prosecution was a persecution - sheer revenge to get an attorney who had been defending organized labor. However, a more recent consensus is that although the actual evidence against Clarence may not have warranted conviction beyond a reasonable doubt, he probably was guilty.

On his return to Chicago, Clarence found himself without a practice. His former megabuck clientele - whether big labor or big business - shunned him like, well, like he was a crooked lawyer who had been caught maladroitly trying to bribe a juror. Although Clarence managed to make some money by speaking, that wasn't really a long term option to handle his now substantial debts. Then a young laywer who had once worked for Clarence, Peter Sissman, invited Clarence to join his firm. Clarence accepted.

Without a labor or corporate practice, Clarence was left pretty much with the field of criminal law. Peter (handling the civil cases) soon found his new partner was quite lazy and wouldn't bother preparing for a case until the last minute. Instead, Clarence preferred to rely on his substantial oratory powers and - as Peter put it - the tricks of cheap lawyers to eventually accrue an impressive defense record.

And so began the legendary career of Clarence Darrow, the Attorney of the Damned. But it was not true, despite what he once told a law class, that his clients were the people without money. Within two years of his entering into practice with Peter, the firm of Darrow and Sissman was making thousands of dollars more (in early 20th century currency) than Peter had earned alone, and it was Clarence who was pulling in the lion's share of the firm's income. If Clarence did take pro bono cases, most of his clients could pay and pay well indeed.

After his bribery trial, Clarence did not seem concerned whom he represented. With the passage of prohibition and the resultant upswing in organized crime, Clarence defended some of the Chicago gangsters for quite lucrative fees. Most of the cases Clarence handled were not the biggest names today, but well known in his day. But among the better known mobsters represented by Clarence's firm was Charles "Bugs" Moran.

Clarence's clients also represented a fair share of two-bit but thoroughly disreputable crooks. Once he defended a man who shot a policeman in the back (it was self-defense, Clarence said), as well as appealing a case for member of the Ku Klux Klan who murdered a black man. Fortunately, that case Clarence lost.

So should we admire Clarence Darrow? Perhaps we can defer rendering a verdict until we compare his style (if you want to call it that) with other famous attorneys of the era. Probably because he took on his most famous cases after he reached old age - he was nearly seventy when he defended Loeb and Leopold in Chicago and John Scopes in the "Monkey Trial" in Tennessee - people tend to think of Clarence as a Twentieth Century Man. Actually he was born in 1857 and so really belongs the century that produced Clarence's flamboyant Wild West legal contemporary, Temple Houston. Temple was the lawyer who, when defending a man against a charge of murder, pulled out his six shooters and fired at the jury. The jurymen scattered, but of course Temple was firing blanks. He explained he was just demonstrating what speed a man has in a gunfight. The verdict came back as guilty, but Temple appealed on the grounds that the jury had scattered and mingled with the spectators. Therefore, he argued, the jurors had not been properly sequestered. He won the appeal.

Clarence's health, uneven during his life, took a turn for the worse after he retired. In his last years and failing mentally, Clarence couldn't manage the zingers the papers expected. Instead, reporters often had to polish up his quotes ("The old boy didn't have all his buttons," one remarked). During his final two years, he was under the constant care of his wife, Ruby, and he saw virtually no one until he died in his Chicago apartment in 1938, a month shy of his 81st birthday.

References

Clarence Darrow for the Defense, Irving Stone, Doubleday (1941, Original Edition; Reprint, Signet, 1971). Beware of an abridged version from the mid-1960's which edits out some sentences which really should be kept in.

This is, or course, Irving Stone's biography of St. Clarence of Darrow. According to Irving, Clarence was a victim of a vendetta of the California prosecutors. But it's still a strangely contradictory biography about a man who defends poor and downtrotten clients, but can dump piles of money on his partners desk, can afford European vacations, and lives in a magnificent Chicago Midway apartment.

This is about as close as Irving got to writing real biography. He interviewed many of Clarence's friends and family (including Clarence's son, Paul, and his law partner, Peter Sissman). Unlike most of Irving's books, the sources are referenced. Later, of course, Irving found it easier - or at least more profitable - to write his fictionalized biographies - Lust for Life and The Agony and the Ecstasy, for instance - where if he pleased he could make stuff up.

The People vs. Clarence Darrow: The Bribery Trial of America's Greatest Lawyer, Geoffrey Cowan, (Crown Publishing, 1993). A very good book and indispensable for the Darrow fan. The conclusion is that although there may not have been sufficient evidence to warrant conviction, odds are very high, Clarence was guilty! guilty! guilty!

"A Man for Some Seasons", Geoffrey Cowan The American Lawyer, December 6, 1999. A supplemental article for Geoffrey's book.

Good Evening, Everybody: From Cripple Creek to Samarkand, Lowell Thomas, William Morrow and Company, (1976). The first volume of Lowell Thomas's very well written and entertaining autobiography. Lowell not only taught at Kent before World War I, but also worked as a reporter when the Great Lakes steamer Eastland capsized on the dock, killing 845 people. Lowell was sent to cover the story but ended up helping rescue the survivors and so lost his scoop.

The lawyer, by the way, who defended (successfully) the ship's captain against negligence was - Clarence Darrow!

The Gunfighters, Paul Trachtmanm Time-Life Books (1974). This has the story of Temple Houston before the jury. Temple, by the way, was also the hero of a short lived 1960's television show starring Jeffrey Hunter. Jeffrey, though, is better remembered for his playing the first captain of the starship Enterprise in the pilot for the original Star Trek series.

"Clarence Darrow Bribery Trial (1912)", Famous Trials, Douglas Linder, University of Kansas City.

The Massie Trial was the last of Clarence's famous cases. Clarence defended a man for the hired murder of a native Hawaiian who had been accused (and acquitted) of assaulting the man's wife. It turns out the acquittal was quite proper - the man was completely innocent. But the husband killed the man anyway. Having no real defense, Clarence resorted the "honor killing" chestnut. It's debatable who won or lost the case. The jury returned a verdict of guilty, not of murder, but for manslaughter. The sentence was ten years, but under political pressure that went up to the President of the United States, the governor proved that there were clear double standards for Hawiians of European descent and those of native ancestry and commuted the sentence to one hour. So Clarence's last case was not one of his finest days, particularly when he said he left the island a happier, more tolerant place than he found it. The truth is the trial caused bitter feeling between the island's two main ethnic populations that lasted for decades.