Clarence Darrow: Attorney for the Damned (28 page)

“Whether it was law or not, I do not know,” Darrow wrote to Henry Lloyd’s sister Caro. “It certainly wasn’t justice.”
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T
HE THREE PRISONERS
were stoic when they heard the news, in part because Darrow had scored gains of his own that summer. After bidding goodbye to the Boise press in June and telling them “there will be nothing more doing” in the case until the fall, he had found his way to eastern Oregon and the door of
James W. Lillard, an uncle of
Steve Adams. There are two stories of how Darrow got Lillard to persuade his nephew not to testify. The first comes from the Darrow camp; it’s a nice tale in which the lawyer is turned away from Lillard’s door but, like a wise traveling salesman, asks for a drink of water to stall for time and make a successful pitch. The second version is from McParland. According to the Pinkertons, the defense bought Lillard with a staggering bribe.
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Both versions could be grounded in truth. Darrow had no qualms about paying witnesses or members of their families for helping the defense in a high-stakes case. He was reimbursing them, he would claim, for their trouble and their time. It was in character for Darrow to spend
tens of thousands of dollars in this manner if the money was available, and one can easily see him sweet-talking Lillard and cinching the deal with a payoff.
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This much is certain: the supposedly penniless Adams suddenly repudiated his confession and hired an expensive lawyer—a former Republican governor—to win his freedom. The state responded with its own hardball tactics: it charged Adams with an unrelated murder and carted him through the forest roads to a jail in rural Wallace, high in the panhandle. There, McParland threatened to hang him unless he cooperated.

The case against Adams rested on a tale he supposedly told Orchard about visiting friends in the north woods and helping them murder a “claim jumper” named
Fred Tyler. The claim jumpers were despised opportunists who, for themselves or a timber or mining interest, took advantage of a homesteader’s absence to file a counterclaim for the land. “Probably never before had any one been convicted for killing a claim jumper in that part of the state,” Darrow recalled.

A crucial witness was offered a lucrative federal job, and agreed to testify for the prosecution, but when McParland returned for the trial he was furious to discover that the local sheriff had been outmaneuvered, and the jury pool stocked with union sympathizers. The prosecutors did the best they could with their peremptory challenges, but in the end Darrow secured a jury with “two very doubtful, and one we are sure will never fetch in a verdict of guilty,” the downcast detective reported.

Darrow was helped by the rambling opening statement made by the local prosecutor,
Henry Knight, who demonstrated how much the state relied upon conjecture.

The evidence will show that on or about the 29th or 30th day of June, possibly, 1904, Mr. Tyler left the town of Santo, or his mother’s residence near that place, for the purpose of going out into the forests and taking up a homestead—or a timber claim, [Knight began. A year later,] in the month of August, or September, I think, 1905 … about in the month of August, or September, I think … the coroner with some deputy, or some deputy of the coroner, went to the place … I am not sure whether in exact proximity to the cabin or claim of Fred Tyler, or, at any rate near there … The evidence, we believe, will show that the deceased
was shot from behind, that the bullet entered near the ear; back of the ear—one of the ears, I have forgotten which … Whether it was before or after breakfast I am not sure, I am not sure whether they gave him breakfast or not, at any rate it was quite early in the morning.

The frontier-flavored justice made it “about as interesting and remarkable as any case in which I figured,” Darrow remembered. As Tyler’s mother, clad in black, sat in court and wept, the two sides squabbled over the identification of a weathered skull and bones that had been found by surveyors in the woods. Adams had an alibi and Darrow contended that, with the countryside aflame over claim jumping, a group of vigilantes who called themselves the Jumper Killers probably shot Tyler. Indeed, the leader of the vigilantes had been arrested as a suspect at the time.

Darrow closed the case for the defense. The other union attorneys “made a very poor impression not only on the jury but on the public,” McParland wrote Gooding. “Darrow is a different type of man; he gets close to the jury and makes a very earnest appeal.” The real crime was not murder—it was the way the state perverted justice, Darrow argued.

Adams was nothing but “a pawn in a game,” Darrow said. “Back of all this … is a great issue of which this is but the beginning. Because, beyond this case, and outside of this courtroom, and out in the great world, it is a great fight, a fight between capital and labor, of which this is but a manifestation up here in the woods … You know it; I know it; they know it.”

With a target like McParland at hand, Darrow would not neglect one of his guiding dictums: the jury needs a villain. The essence of the detective’s life was deception, Darrow told the jurors. Remember the
Molly Maguires. “He met day after day and week after week with his neighbors and his friends, and his comrades and members of his lodge; he learned their secrets, he ate at their table, he drank at the bar with them … And every moment, he was working himself into the lives of these men; he was a spy, a traitor, a liar; and he was there to bring them to the gallows!” Darrow said.

“There are … methods that are more dangerous to the State, and are more odious to honest men, than crime,” Darrow said. “It is better a thousand crimes should go unpunished … than that the State should lend itself to these practices of fraud and treachery.”

The jury spent most of two days arguing, then told the judge they were hopelessly deadlocked. On almost every ballot, they had split 7 to 5 for acquittal. “Had it not been for two or three men we would have secured an acquittal,” Darrow told reporters before fleeing the ice and chill of Wallace for a speaking tour in California. But he was content.
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McParland was crestfallen. Adams was “the most important witness we’ve got,” he told Gooding. The Pinkerton approached a deputy sheriff named
Carson Hicks and promised that the state would pay “liberally” if Hicks and his colleagues could cajole the prisoner to return to the prosecution. McParland began planning for a retrial, with a change of venue that would take the case from a mining community and give it instead to “true, loyal citizens.”
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D
ARROW WAS NOT
thoroughly cynical. If so, he could have made his life easy, and splendidly comfortable, selling his skills as a corporate lawyer. But he had studied ethics under Altgeld, who was “absolutely honest” in choosing his causes and “perfectly unscrupulous” in achieving them. The Haywood defense was now engaged in a series of unscrupulous tactics.

From the spring of 1906 through the following winter, a Pinkerton agent in Colorado known as Operative 28 kept an eye on
Frank Hangs, a union lawyer who was enlisting witnesses for Haywood’s defense. Hangs told prospective witnesses what he hoped they would say, and promised them money if they did so. Operative 28 was
Arthur Cole, a militia officer. “Hangs was feeling me out to see if I would stand, if paid, to testify that these murders in Cripple Creek were planned” by the Mine Owners’ Association, Cole told McParland. “He is talking … openly about me making a good piece of money.” As the case neared trial, Darrow arrived in Colorado to screen the witnesses. He met with Cole, who told him that the mine owners had known in advance that Orchard was going to bomb the Vindicator and had arranged for Orchard to travel to Denver to meet Haywood, Moyer, and Pettibone and gain their confidence. “Darrow became very excited,” Cole reported. He told Darrow there were other helpful things he would say “if I was paid for it” and that “Darrow appeared to be much pleased and desired me to refresh my memory.” Darrow asked if Cole could testify that the mine owners were behind the
Independence depot bombing as well. “I agreed with Darrow to do these things,” Cole said. “Darrow said if I would stay with the proposition I would be a valuable witness and would be taken care of in a substantial way.” The Pinkerton operative agreed to perjure himself for $500 and claimed to have been paid $50 by Darrow as an advance.

It is hard to weigh the tale. Cole was a mine owners’ man, telling McParland what he wanted to hear. Or perhaps a wary Darrow was stringing Operative 28 along, for at some point the defense caught wind of the plot and Cole was exposed as a spy.
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McParland was crestfallen. He had hoped to entrap Darrow and reveal, with a dramatic flourish in the courtroom, a conspiracy to suborn perjury. But in the end, he came away with nothing.
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Darrow’s only comment came in his autobiography. While “investigating rumors” in Colorado, he wrote, he came upon many “marvelous tales” from people “impelled by all sorts of motives.”

T
HE PROSECUTION HAD
its own ethical contortions, which undoubtedly stirred Darrow’s willingness to break the rules. “We are here employed by the State,” Hawley had told the jury in Wallace. “Not a bit of corporate money jingles in my pockets.” It was a lie. The state of Idaho could not easily come up with the funds it needed to abduct and prosecute Adams, Haywood, Moyer, and Pettibone, so Gooding had turned to the state’s banks—especially those owned by the mining industry—for loans. Borah and Hawley pitched in as fundraisers, with Hawley telling one mine owner that this was their chance “to rid the West entirely” of the Federation, whose “foul crimes” had done “so much to retard our progress, and which is a menace to our future.” In response to such pleas, the mining companies donated $5,000.

Word of the fundraising reached Washington, alarming President Roosevelt. “That Haywood and Moyer have been at the head of a labor organization, the members of which have practiced every form of violence, including assassination … is not to be disputed,” the president wrote his attorney general. He dismissed the kidnapping of the three WFM leaders as a “failure to comply with … formalities.” Gooding was engaged, said the president, in the noble work of “saving civilization.” And yet Roosevelt recognized the liabilities of having mine owners bankrolling the prosecution of union leaders.

“Such action would be the grossest impropriety,” Roosevelt wrote in a letter hand-delivered to
Calvin Cobb, the publisher of the
Statesman
, who was in Washington lobbying for the prosecution. “If the Governor or the other officials of Idaho accept a cent from the operators … I should personally feel that they had committed a real crime.” The governor rushed to refund the $5,000 and promised the president that “the mine owners will not be asked for a dollar, nor permitted to take any part in the prosecution.” But Hawley and the others simply shifted their fundraising to Colorado and other states, where mining and commercial interests quietly contributed the tens of thousands of dollars needed to destroy the Federation.

Roosevelt’s own behavior, it turned out, was also of the “grossest impropriety.” Just days before the Supreme Court heard the oral arguments in the extradition case the president had hosted the justices at the White House, where he read aloud from a letter he had written condemning Moyer and Haywood as “undesirable” citizens. The incident became public in the spring of 1907.
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Labor and the Left erupted. Socialists and unionists, who had been forming “Moyer-Haywood conferences” around the country, chose May 4—the Saturday before the trial was to begin—for a national day of protest. A hundred thousand marched and cheered in Boston and almost as many in New York, where they waved red flags and sang the “Marseillaise.” Thousands wore badges that said, “I am an Undesirable Citizen.”
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Roosevelt’s most malodorous intervention was still to come. It was triggered by a cable from federal investigators in Idaho alerting the White House that the “civilization” which Governor Gooding was “saving” was rotten to the core. The Haywood prosecution, the investigators said, was being used to deflect attention from pervasive corruption.

“Investigations will show Steunenberg to be leading member timber frauds,” they said. Borah was “morally if not criminally connected. Cobb of
Statesman
and Governor Gooding both use all influence against investigation. Cobb morally and probably criminally connected.” Attorney General
Charles Bonaparte quickly confirmed, and wrote the president, that the findings in the cable were “well-founded.”

The news stunned Roosevelt. If it became public it could ruin all the productive work that Cobb, McParland, and the others had done to paint Steunenberg as a saintly victim. Worse yet, it gave credence to the defense’s contention that Orchard might have had other paymasters. The findings
offered an alternative “motive for the persons involved in these timber frauds to kill Steunenberg,” the attorney general advised Roosevelt.

The Haywood prosecution, moreover, was depending on Borah’s arts of persuasion. The “new U.S. senator” cited in the cable was a favorite of the president and a darling of the press. With “keen blue eyes, a powerful square chin, a frank straightforward manner and a winning boyish smile,” Borah beat down his foes with “the dazzling force of a thunderbolt,” the
New York Sun
reported. He was a self-made man who had married a governor’s daughter and profited from his ties to the mining industry as he rose from hick lawyer to corporate attorney and, eventually, to the Senate. “This is the work of my personal enemies,” Borah told Roosevelt—and, he said, of the Federation. But the miners had not caused Borah’s troubles. The investigation was launched by Roosevelt’s own land office personnel in response to widespread swindling in the Northwest. A similar prosecution in Oregon had been applauded by the White House, and its prosecutors lauded as heroes.