Clarence Darrow: Attorney for the Damned (44 page)

Inexplicably, Fredericks lost it. “May it please the court,” he told the judge. “We would like to have Mr. Darrow keep his seat.”

Why? “We maintain that Mr. Darrow is attempting to use hypnotism on this witness,” Fredericks said.

Hypnotism? “At the mention of the mystic Svengali art,” the
Examiner
reported, “a shout of laughter” went up from the spectators and the jurors. In moments of high tension, humor can trigger hysterics. Even the
Times
conceded that “the laughter and applause … exceeded anything” that longtime court employees could recall. The judge was forced to call a recess.

Fredericks was still smarting three days later, when Rogers and his co-counsel,
Horace Appel, ganged up on him in an effort to obtain the transcripts of the dictograph recordings.

“Darrow never told me outright in words that he had anything to do with the bribing of jurors,” Harrington had conceded, when asked about their exchanges.

“If he had four or five conversations with Mr. Darrow … and Mr. Darrow told him that he had nothing to do with the bribery,” said Rogers, then the jury should see the transcripts.

Transcriptions were the confidential property of the state, Assistant District Attorney Ford replied, and “the public interests would suffer by disclosure of it at this time.”

“There is no such thing in a criminal case,” Appel argued. “The public interests will suffer, Your Honor, if an innocent man is convicted by suppression of the evidence.”

“There won’t be any innocent man convicted,” said Fredericks, unable to stay still. “It will come out at the right time.”

“Yes, it will come out as you are coming out,” said Appel, “and your conduct of the case.”

Fredericks had no use for Appel, a brilliant but crazed individual (he would end his days in an asylum) whose swarthy looks and accent reflected a Jewish-Mexican ancestry. He was from a different caste and adept at needling the prosecutor. A few days earlier, he had called Fredericks “cowardly.”

“Stop it!” Fredericks now told Appel. “I have stood this thing just as long as I am going to stand it. And I will stand it no longer.”

“Captain Fredericks!” said the judge. “Sit down.”

“If this is going to be a court of justice let us have a court of justice and if it is going to be a fight, then I will have a fight,” Fredericks said. He picked up a heavy glass inkstand and prepared to hurl it at Appel.

Rogers and Ford and the bailiff threw themselves on the furious prosecutor, and Rogers cut his wrist in the resultant scuffle.

“Do you include me in that?” Rogers asked Fredericks when the prosecutor was subdued.

“I do, Mr. Rogers,” was the reply.

Rogers threw out his chest, waved his bloody wound, and embraced martyrdom. “I just saved Captain Fredericks from committing a crime,” he said, “and I do not deserve it.”

On it went like a Keystone farce, with eruptions over which side had gunmen planted among the spectators, or whether Burns called Rogers a son of a bitch, or if the detective hid a sword inside his cane, or why Fredericks was a bigot for moving to dismiss a Mexican American bailiff who was popular with the jurors. “Now you can pick up your ink bottle,” Rogers taunted. Rogers, Fredericks, Ford, Appel, and Burns were all fined for contempt of court—and Rogers was briefly jailed—as Hutton tried, without much success, to keep order.

The judge was “a dear, sweet, weak, kind loving fellow,” Mary decided, but his rulings were “the laughingstock of the bar.”

F
REDERICKS RESTED HIS
case in early July, and Rogers began Darrow’s defense by reading the affidavits that Masters had collected from former mayor Carter Harrison Jr., an array of judges, past mayors, and U.S. senators, and other prominent Chicagoans. The city was like a rowdy clan whose siblings fight viciously among themselves but rally to one another’s side if threatened by an outsider. And Chicago was not about to let an upstart like Los Angeles mess with a favorite son.

Several witnesses—most notably
Job Harriman—were called to rebuke Franklin’s testimony. A dozen men told how Franklin and Harrington—until they were flipped by the prosecution—had sworn that Darrow had nothing to do with the bribery plot. And a Harriman adviser,
socialist Charles Hawley, testified that he telephoned the Higgins Building on the morning of November 28 to summon Darrow to the campaign headquarters, a half block from where Franklin was arrested. It gave Darrow his reason for being at the scene.
²³

The West Coast union leaders increasingly felt that their fate was linked to Darrow and put aside their anger over how he had conducted the McNamara case. There was no evidence, Johannsen had decided, that “Darrow was guilty of anything dishonorable or dishonest” in the McNamara settlement. Darrow had merely “broke down and lost faith and became a victim of his own cynicism.” Now the labor leaders strove to rebuild his nerve.

One night after dinner, Mary and Darrow accompanied Tvietmoe, Johannsen, and others to their hotel, where the union leaders, with whiskey and song, labored to help “poor broken Darrow” forget “his pain, his sense of failure.”

Tvietmoe paced the room, Mary recalled, “big thumbs looped in the armholes of his vest,” quoting verse from a Wild West poet.

    
More than half beaten, but fearless

    
Facing the storm and the night

    
Breathless and reeling, but tearless

    
Here in the lull of the fight;

    
I who bow not but before thee

    
God of the Fighting Clan,

    
Lifting my fists I implore thee,

    
Give me the heart of a man!

“That’s a God damn son of a bitch of a poem!” said Johannsen. “Say it again!”

Tvietmoe did so.

“God damn it!” said Johannsen. “Pass the whiskey.”
²⁴
Darrow’s progressive allies were starting to drift back too. Lincoln Steffens urged Whitlock to end his silence, and Whitlock responded with a letter that soothed Darrow’s hurt.
²⁵
And in St. Louis, Bill Reedy took a stand on Darrow’s behalf. Darrow “saw Capitalism as a monster devouring the men slain in manufacture and transportation, or killing them in slow
starvation,” Reedy’s
Mirror
declared. “If he tried to save the McNamaras by ‘fixing’ the jury he did it under the conviction that the trial was but a battle … and … he was only doing what the other side would do.…

“Let us say he was caught in lawless acts. Very well … He saved the lives of his clients at the sacrifice of his own career,” Reedy argued. “Such a man in the dock for an idea must command a great deal of admiration … Beset by enemies he battles alone.”
²⁶

Not totally alone. Rogers now called Steffens to the stand.

“When the fight is on there is a call, not for an umpire, but a friend,” Steffens wrote his sister Laura. “That’s why I’m here with Darrow. What do I care if he is guilty as hell; what if his friends and attorneys turn away ashamed of him and the soul of Man—Good God, I’ll look with him, and if it’s any comfort, I’ll show him my soul, as black as his. Sometimes all we humans have is a friend, somebody to represent God in the world.”

Steffens’s task was to demolish a motive for the crime. For if Darrow had agreed to settle the case, why would he bribe a juror?

There was no doubt that the plea negotiations were under way before Franklin was arrested. At issue was Darrow’s state of mind after Fredericks told him that both McNamaras had to go to jail. Had the state’s insistence that both brothers plead guilty spurred Darrow to turn to bribery? Or did Darrow believe that, as he told Older, he could ultimately “throw John J. to the wolves” as well? Impeccably neat, precisely spoken, Steffens told the jurors that Darrow had assured him a week before the Lockwood bribery that “if it was necessary … J.J. must go.” Darrow and Steffens shared “a feeling of elation that the thing had been consented to and agreed upon,” he said.

Fredericks treated newspapermen with disdain, was a foe of progressives, and just didn’t like Steffens. He called him “Stinkin’ Leffens” and deplored his “sloppy palaver.” He underestimated his opponent.

“As I understand it, you are an avowed anarchist. Is that correct or not?” Fredericks asked, starting his cross-examination by pointing a finger in the witness’s face.

“No, that is not true,” Steffens replied. “I am a good deal worse than an avowed anarchist.”

Fredericks was puzzled, thrown off track. “You are a good deal worse than an avowed anarchist?” he asked.

“Yes sir,” said the witness. “I believe in Christianity.”

There was laughter from the standing-room-only crowd. Fredericks grew irritated and launched a flurry of accusatory questions, but Steffens calmly parried, and cooled himself with a palm leaf fan. “Time after time Mr. Fredericks sought to get the witness to admit that the culmination of the McNamara case was caused by the arrest of Bert Franklin for bribery,” the
New York Times
reported. “As often Steffens insisted that all parties concerned in the defense had agreed to the settlement before the bribery.”

“While District Attorney Fredericks did the best cross-examining of his career,” the Los Angeles
Record
reported, he “was easily frustrated by the writer’s coolness and biting wit.”

When Fredericks gave up, the judge let the jury ask questions. Golding was, again, most helpful. He wanted to know whether Darrow “appeared like a guilty man, frustrated in bribing a juror—or an innocent man?”

“An innocent man,” Steffens answered. Why, when Steffens had suggested that they get Fredericks to drop the bribery case as part of the McNamara negotiations, Darrow had refused, saying: “Leave this case out of the settlement.”
²⁷

B
Y THE END
of July, as Darrow prepared to take the stand, he was feeling better. Whole segments of the
prosecution’s case had crumbled. Its tracing of the $10,000 check from the AFL to Darrow to Tvietmoe was tantalizing—but the money trail ended in San Francisco. And the notion that Darrow had taken great pains to launder the bribery money through Tvietmoe contradicted two other elements of the district attorney’s case: that Darrow paid Franklin to bribe Bain with a check from the office account and bribed Lockwood with six $500 bills, and a $1,000 bill from Harriman’s safe deposit box—two easily traced transactions.
²⁸

Ruby suffered a breakdown from the stress. But as the summer passed, the newsmen covering the trial saw Darrow shake off his gloom and take a more active role in his defense. He got Biddinger to concede, for example, his motives in infiltrating the McNamara defense. “I wanted to create trouble in your ranks; that is what I was after,” the Burns detective said. This and other admissions about the prosecution’s tactics in the McNamara case reduced Darrow’s sins to the status of mutual shenanigans.

Rogers had held the bridge, dismaying their foes with his bluffs and diversions, but he never stopped reminding his client that the verdict
would rest on what the jurors thought of Darrow. As the trial neared its end, Darrow had two compelling forums—as a witness in his own defense, and as a lawyer pleading for liberty in his closing address—to persuade them of his innocence.

Darrow took the stand on July 29 and spent more than a week answering questions from Rogers, Ford, and Fredericks. The flush in his cheeks was his only sign of emotion, and the trial’s observers gave him high marks. From the first, leaning on an arm of the witness chair, his legs crossed, Darrow showed himself “a master hand of narration,” the
Times
said. “He used simple words and from time to time gazed directly at the jurors, challenging, as it were, their right to believe he would be guilty.” The paper noted how Darrow, conceding various points in the interest of fairness, seemed to rise above the squabbling duo of Rogers and Fredericks. “This attitude, whether natural or the result of studied art, is not without weight,” said the
Times
. “It was apparent that some of the jurors seemed considerably impressed.”

On November 28, Darrow said, he had arrived at his office at about eight thirty a.m. He was at his desk but a short time, he said, when he was summoned by Hawley’s phone call to Harriman’s campaign headquarters. It was then, as he walked along the street, that he saw Franklin. “I never had any conversation with him in reference to anything improper or unlawful or corrupt with Lockwood,” Darrow testified. “He never received any thousand dollars from me for any juror.” Darrow said he was “very much shocked” by Franklin’s arrest, and “at first I didn’t think what to do.” Dazed, he wandered back to the courthouse, where he ran into Browne.

“What does it mean?” Darrow said.