Clarence Darrow: Attorney for the Damned (43 page)

But Mary still had an emotional tie to Darrow, and he to her. She was
in Los Angeles to cover the trial for
Organized Labor
, a union newspaper, and to stand by him, Ruby notwithstanding. “My heart aches … for him,” Mary wrote Sara. “He is such a sensitive man … it cuts him cruelly.”

Ruby smiled bravely as she greeted the reporters and vowed “to help my husband in any way I can.” But inside the courtroom she wiped at tears. She slipped into a chair inside the rail, behind her husband, whose “face was haggard,” the newspapers noted. The muscles of his cheeks “twitched unceasingly,” and the lines in his face “told of nights of sleeplessness and worry.”

Darrow could be grateful for one turn of events. He might be up against the same prosecutors who beat him in the McNamara case, but not the same judge. Judge
George Hutton was nothing like the martinet Judge Bordwell. The young and earnest Hutton had just four years’ experience on the bench.

Jury selection went swiftly as Rogers, Frederick, and the assistant district attorney—Joseph Ford—identified the biases of the talesmen. By the end of the first week, Darrow joined the questioning—hoisting a leg upon a chair and leaning on his knee with folded arms, speaking soothingly as he “began to impress his subtle personality upon the jurymen.” Even the
Times
admitted that Darrow was “remarkably effective.”

“You realize that this is an important case to me and that all I want is a fair and impartial trial?” Darrow asked one candidate as the other talesmen looked on from the jury box.

“I do,” said the mesmerized man.

It took but ten days to select the jury, a time otherwise marked by news, illustrative of the passions gripping the state, of an assault on
Emma Goldman and her lover,
Ben Reitman. The two anarchists had been ridden out of San Diego by a reactionary mob that abducted Reitman, took him to the desert, stripped him and abused his rectum and testicles, soaked him in tar, and beat him as he ran their gauntlet.
¹⁹

The selection of one juror proved especially significant. Young
Fred Golding was a partner in a local lumber company and, as an up-and-coming businessman, likely to be challenged by the defense. He was also, however, a believer in conspiracies, which he detected in the way that Franklin was arrested. Rogers encouraged Golding, for this was a line of argument the defense would press during the trial. Franklin’s arrest was “like a stage play … with an orchestra playing,” Rogers suggested.

Yes, Golding said: “A man like Darrow would not carry out any such affair in the daytime.”

Yet Fredericks, presuming that Golding’s loyalties as a businessman would win out, let him join the jury. It was a calamitous mistake. Time and again, Golding would vex the prosecutors, until they despaired at ever winning his vote. And Darrow, after the trial, would pay Golding $4,500—some $55,000 in today’s currency—or more.
²⁰

F
REDERICKS MADE HIS
opening statement on May 24. After giving a chronology of the Lockwood bribery, he declared that it was but “one of a series of efforts” in which Darrow “endeavored to defeat and obstruct justice” in the McNamara case “by offering and paying money to other jurors … [and] to witnesses.”

Rogers jumped up, trembling with ersatz outrage. “The rules of evidence will not and do not permit the introduction of any such evidence,” he announced. “We believe we can sustain our position beyond any per-adventure.” When Fredericks tried to continue, Rogers filled the day with objections and exceptions. It is fair to conclude that the jury failed to get the full impact of the prosecutor’s address: even Fredericks lost his train of thought and had to ask the court reporter to read back what he said.

Lockwood took the stand the next day. He was a gray-bearded, sixty-four-year-old former policeman who had once worked with Franklin in the sheriff’s office. He told how Franklin had approached him, saying that they both were at a stage of life where they needed money “sufficient for our wants in our old age” and offering him $4,000. When Lockwood asked what he was to do, Franklin told him: “Vote not guilty.”

But before Lockwood could finish, Rogers was up and at it again. That day’s
Examiner
had published a front-page story in which Walter Drew’s detective,
Robert Foster, bragged that “I will convict Darrow with the dictograph evidence.” Rogers now condemned it as a brazen attempt by the steel industry and the prosecution to influence the jury, whose spellbound members watched agog as he strutted and declared it “one of the most outrageous things that ever happened in jurisprudence!”

Rogers knew that Fredericks had a temper and, sure enough, the prosecutor lost it. “This has gone about as far as a man with red blood in his
veins can stand,” he told the judge, then demanded: “Are we going to trial in the case of Clarence Darrow for bribery?”

“Yes, we are going to try him squarely and we are going to try him without interference of Robert J. Foster or any member of the steel trust or the erectors association,” Rogers proclaimed. “We do not want to go on with this kind of thing, coming up day after day against us, with every attempt to intimidate and prejudice our witnesses, to give us the most queer trial in America!”

When Lockwood resumed, his testimony seemed almost anticlimactic. He had alerted Fredericks, he said, who had plotted to trap Darrow in the act. An initial attempt at Lockwood’s ranch failed when, to the disappointment of the detectives hidden around the grounds, Franklin did not bring Darrow or the money. The payoff was rescheduled for November 28.

On the downtown corner, Franklin had handed $500 to Lockwood and $3,500 to
C. E. White, a mutual friend who was to hold the balance until the verdict was secured. Lockwood then dropped a $500 bill—a signal for the police to move in. Finally, Franklin sensed trouble. “The sons of bitches. Let’s get out of here,” he told Lockwood. They moved up on Third Street to the sidewalk along Main, where detective Browne stopped them, just as Darrow arrived.

Rogers did not spend much time cross-examining Lockwood. “It was a trap,” he said contemptuously. “It was put on as a performance.” That was sufficient to ignite Fredericks, who demanded that Rogers be punished for contempt. “If the prosecution has any right in the world in endeavoring to keep the Courts pure and decent … they have a right to be protected from a man who comes in here and makes a statement such as that,” Fredericks told the judge.

Given the whoppers that the district attorney was telling in court—he had just finished denying that Drew and Foster were helping him build the case against Darrow—his anger was unjustified. Moreover, it was just what Rogers wanted. For the jurors immersed in the details of the trial, the stagecraft of Earl Rogers was drowning the impact of otherwise damaging testimony. “Hell seethed and erupted,” Adela recalled. From afar, Drew recognized what was happening. The whole dictograph controversy, he griped to a hireling, “was a trumped-up affair for the purpose of distracting attention.”
²¹

When Franklin was called to the stand, he entered the courtroom “looking jaunty and confident,” the newspapers said. As they strolled along a Los Angeles sidewalk on the previous October 4, he testified, Darrow told him, “It is time for us now to get busy with the jury.” They huddled the next day at the Higgins Building, where Darrow said: “We have been talking the matter over and have decided that $5,000 would be a proper amount to pay … for jurymen.” Franklin was to keep $1,000 and pay $4,000 to each corrupted juror. It was Darrow who suggested that Bain was a likely target, and who wrote out a $1,000 check for an initial payment. A few weeks later, said Franklin, Darrow instructed him to bribe Lockwood. There were no witnesses to these conversations, he said. Otherwise, he seemed credible.

Franklin was the prosecution’s most important witness, and it was absolutely essential that Rogers dent his story. But on the eve of his cross-examination, Rogers prepped for the duty by going on a bender. His employees and daughter searched his favorite bars and brothels and ultimately discovered him, shit-faced, in a whorehouse.

Darrow was looking for him too. “Is he drunk?” Darrow asked Adela, when he caught up with her.

“If he is, you’re enough to drive anyone to it,” she replied.

“I knew it,” Ruby sniffed. “He drinks secretly all the time. I can smell it on him.”

Yet Rogers had awesome recuperative powers. He strode into the courtroom at the appointed time, neatly dressed and shaved, with a haircut and a manicure.

Darrow chewed nervously on a piece of paper as Franklin finished up his direct testimony. He said that
Job Harriman had gone to the bank and withdrawn $4,000 in $500 and $1,000 bills that morning, which Darrow then gave to Franklin. He described the fiasco on Main Street and said Darrow had warned him, “Bert, they are on to you” before Browne tugged him away. Had Darrow not intruded, Franklin said, he might have tried a “stunt”—seizing Lockwood himself, delivering him to the detectives, and accusing him of soliciting a bribe.

“You would have pulled off your stunt of turning Lockwood over to the police,” Rogers said, as he began the cross-examination. “That was your first attempt to get out of your crime by charging somebody else, was it?”

There were benefits in hiring the “lead wolf,” who had worked for the
M&M and had sources all over town. In an astounding exchange, Rogers got Franklin to concede that he had not merely been promised immunity, evaded jail, and had his fines paid for him—he had been personally cajoled to turn on Darrow by a committee of the city’s leading businessmen led by General Otis’s good friends
Felix Zeehandelaar and
Reese Llewellyn, whose properties had also been targets of the union bombers. The corporate leaders had promised to reward Franklin if he testified against Darrow. “My future in this city was going to be a very difficult one,” Franklin said, “and I felt that those men, being friends of mine, would later on assist me … among businessmen.”

Ford objected to the line of questioning—a foolish move, for it allowed Rogers to respond with a speech, spelling things out for any juror who missed the point.

“Now we have … the chief witness for the prosecution, before he appears upon the stand … going up to the office of the Merchants & Manufacturers Association and there meeting a portion of their directors, their strike committee,” said Rogers.

“He must have been impressed by this body of distinguished gentlemen … assuring him of … things that would doubtless happen in the future,” Rogers said. “We have a right to know whether or not they were his friends, personally, or whether they were his friends because, perchance, he might come on this stand and testify in this case against … the champion of their opponents.”

Rogers was absent from court the next day—“resting,” the newspapers said. But Juror Golding raised his hand, asked the judge for permission to examine Franklin, and peppered the witness with questions that suggested the case was a frame-up, causing Franklin to respond with an unappealing testiness.

In deference to a summer heat wave, the trial was moved to a bigger, better-ventilated courtroom, where Fredericks set out to show a pattern of corruption in Darrow’s behavior.
Guy Biddinger, the Burns detective, told how Darrow had given him $700, and discussed ways to hijack evidence. McManigal’s uncle related his efforts to get Ortie to retract his confession.
Kurt Diekelman, the hotel clerk, gave his account of how Ruby’s brother had spirited him to Chicago. And when Johannsen denied that the McNamara defense had conspired to get David Caplan’s wife out of the state, he was confronted with coded telegrams he had sent updating
Darrow’s team on Flora Caplan’s flight. Several talesmen from the McNamara trial were called to the stand, and told how they were offered bribes by Franklin. Witnesses traced the path of a $10,000 check from the AFL that Darrow and Tvietmoe had cashed in San Francisco for mysterious purposes. And the debonair Detective Browne, in his soft Southern accent, described his encounter with Darrow after Franklin’s arrest.

“Browne, this is terrible, for God’s sake,” Darrow told him. “Can’t you do anything for us?”

“You ought to have known better than to employ a man like Franklin; he is always drunk,” Browne replied.

“Do the best you can and I will take care of you,” Darrow had promised. It was, said the state, another attempt at bribery.

To cap its case, in late June, the prosecution called Harrington to the stand. Filling the witness chair with his bulk, Harrington told how the previous September, as they talked on the porch at the Bonnie Brae house, Darrow had pulled a roll of bills from his pocket, said it was $10,000, and vowed to use it to “reach” a couple of jurymen. “He said he had the check cashed in Tvietmoe’s bank in San Francisco so that the money could not be traced,” Harrington testified. “I told Darrow not to attempt such a thing, it would be his ruin.”

“I guess you are right,” Darrow had told him. “I won’t do it.” But on the day that Franklin was arrested, said Harrington, he recalled the incident and asked if Darrow had cause for worry. “Yes,” Darrow told him. “My God, if he speaks I am ruined.”

Darrow prepared his loved ones for the worst. “I am afraid there is no way to win,” he wrote Paul. In court, Darrow was “increasingly glum and grim; he felt mortified and resentful, heartbroken and trapped,” said Baillie. “He told me he thought that even Rogers believed him guilty.”
²²

Rogers parried, once again, with mischief and disruption. Harrington was an attorney and knew what made a good witness. During the cross-examination, instead of looking at Rogers, he addressed his answers directly, and earnestly, to the jury. Rogers “padded about the courtroom with the stealthy tread of a panther,” trying to break Harrington’s gaze, the
Examiner
reported. He urged Darrow, who was also up and wandering the room, to “make him look you in the eye.”