Clarence Darrow: Attorney for the Dammed

[Cd.]

http://www.law.umkc.edu/faculty/proj...als/DARESY.HTM

Before there was Alan Dershowcz, William Kunstler, F Lee Baily or Johnny Cochrane there was Clarence Darrow. Darrow was known for his impecable honesty and willingness to defend anyone accused of a crime. Mostly he was famous for his denense of John Scopes, a teacher in Tennessee charge with teaching evolution to his students. He was also known for his denense of Loebs and Leopold, two young men charged with kidnapping and killing a 10 year old boy. He also denended labor leaders and communists.

I consider this man to be one of my heros.

WHO IS CLARENCE DARROW?
BY DOUGLAS O. LINDER, PROFESSOR OF LAW, UNIVERSITY OF MISSOURI-K.C. (1997)

How does one begin to explain this paradox, this sophisticated country lawyer, this hedonistic defender of the poor and downtrodden, this honest, devious man, Clarence Seward Darrow? It isn't easy. I can, however, offer a series of snapshots:

Kinsman, Ohio, 1860's: Young Clarence, son of the village undertaker and coffin maker never visits the corner of his father's shop where the coffins are stacked; never enters his father's shop after dark....In his autobiographical novel, Farmington, Darrow describes a ten-year-old Midwestern boy who watches a smiling young man march off to fight for the Union, then months later attends his funeral. The boy's mind fills with terror as he sees the soldier's body being lowered into a grave. Darrow feared death. Does that fear explain his lifelong crusade against capital punishment? No client of Darrow's ever was executed. If it happened, he says, it would have killed him.

Kinsman, Ohio, early 1870's: As a son of the village infidel, Clarence is bequethed "a nonconforming spirit, a skeptical mind, and freelance politics that drifted toward cynicism." His oratorical skills are already in evidence. He participates in town debates on the issues of the day-- always argues the negative, always wins.

Ashtabula, Ohio, 1880's: Now a young lawyer, Darrow accepts the case of a boy was given a $15 harness by a rich drunk who the boy took care of during his illness. The harness was never paid for, and the creditor seeks to repossess the harness. Darrow, earning $5 for his work, takes the boy's case through two trials and three appellate court decisions before achieving final victory in the Ohio Supreme Court's decision in Jewell vs. Brockway. The small stakes seem not to matter to Darrow, poker player that he is. "What is the difference whether one plays with a blue chip or with a white one?", he asks. "The important thing is to play."

Chicago, 1896: Two years after having given up a lucrative job as corporation counsel for the Chicago and Northwestern Railway to represent Eugene Debs, head of the railroad union, Darrow attends the 1896 Democratic National Convention as a member of the Illinois delegation. He listens as a young congressman from Nebraska and champion of silver coinage, William Jennings Bryan, sweeps delegates to their feet, warning of crucifixion upon "a cross of gold." Although Darrow finds the speech simplistic, he later writes that he never heard a speech move an audience the way Bryan's speech did. Bryan becomes the party's nominee, but loses to McKinley. Further down the ticket, Clarence Darrow loses his race for the U. S. Congress by only 100 votes.

Chicago, near the century's end: Darrow is now well-known in Chicago's intellectual circles. His Chicago apartment is the site of frequent gatherings. "Darrow reads from Nietzsche, Tolstoy, and Voltaire as his guests spread out on the Oriental carpet before him. Tears roll down his cheeks as he reads Robert Burns poetry or bellows the powerful chants of Walt Whitman." He joins with his guests in a rousing rendition of "The Road to Mandalay".... By now, Darrow is a committed determinist. If men are not free agents, he asks, how can we hold them morally responsible for their acts?

Chicago, 1908: The best known defense lawyer in the land returns to Chicago after his successful defense of Bill Haywood and other leaders of the Western Federation of Miners, accused in the bombing-assassination of the former governor of Idaho....William Jennings Bryan personally appeals to Darrow for help in his third run at the Presidency, but Darrow refuses.

Los Angeles, 1912: Darrow is himself on trial, charged with arranging an attempted bribe of a juror in a case involving a bombing of the Los Angeles Times building that killed 21 people. In his defense Darrow tells the jury, "I have committed one crime: I have stood for the weak and the poor." The jury acquits Darrow, though he most likely is guilty. The country lawyer has some big city-fixer in him; the deck, he thinks, is stacked against defendants, prosecutors cheat, neither death nor prison is a proper punishment. Ends matter more than means to Darrow.

Chicago, 1924: Fourteen-year-old Bobby Franks is kidnapped and murdered while on his way home from school. The murderers, it turns out, are two teenagers, wealthy with lives that had been full of promise: Richard Loeb and Nathan Leopold. Richard Loeb, 18, is the youngest graduate in the history of the University of Michigan, the handsome and popular son of a Sears Roebuck vice president. Nathan Leopold is 19 and already a nationally reknown ornithologist and University of Chicago graduate. He is enrolled for classes starting the next fall at the Harvard Law School. Loeb and Leopold, disciples of the German philosopher Nietzsche and entangled their own bizarre relationship, had hoped to pull off the perfect crime, involving ransom demands, phone signals, and packages thrown off of moving trains. But Providence, according to State's Attorney Robert Crowe, intervened: Leopold's glasses with a rare patented hinge are discovered along with young Bobby Franks' body in a South Chicago swamp. The net closes, the boys confess, and all in Chicago, it seems, are determined to have them hang. Enter Clarence Darrow. He waives the defendants' right to a jury trial and tries their case directly to Judge John Caverly.


Dayton, Tennessee, 1925: Tennessee enacts legislation making it a crime to teach the theory of evolution in public school classrooms. A Dayton, Tennessee coal company manager, George Rappalyea, sees an ACLU advertisement offering to defend any teacher charged with violating the new law. Rappalyea convinces other town leaders that an evolution trial would be a way of putting Dayton, which is rapidly losing population, on the map and might even attract new residents and businesses to their fair city. John Scopes, a young science teacher and part-time football coach, agrees to become the defendant in a test case challenging the law. William Jennings Bryan, who has not practiced law in thirty years and had remade himself into "a sort of Fundamentalist Pope", volunteers to prosecute the case. Clarence Darrow, for the first time in his career, also volunteers his services-- for the defense, of course. The ACLU is worried; its leaders fear that Darrow's zealous agnosticism will turn the trial into a broadside attack on religion, but the call belongs to Scopes, and he takes Darrow, along with two additional ACLU lawyers dispatched from New York.

Banners decorate the streets of Dayton, chimpanzees perform in a sideshow on Main Street, members of the Anti-Evolution League sell copies of Bryan's book, Hell and the High School, while in the surrounding hills, holly rollers roll. Nearly a thousand people jam the Rhea County Courthouse on a hot July day for the first day of the trial. In opening statements, the trial is characterized grandly. Bryan says, "If evolution wins, Christianity goes." Darrow says, "Scopes isn't on trial, civilization is on trial."

The defense strategy is to challenge the constitutionality of the law. On the second day of the trial, Darrow argues that a ruling upholding the law threatens not just the education of Tennessee school children, but the Enlightenment:

If today you can take a thing like evolution and make it a crime to teach it in the public school, tomorrow you can make it a crime to teach it in the private schools, and the next year you can make it a crime to teach it to the hustings or in the church. At the next session you may ban books and the newspapers. Soon you may set Catholic against Protestant and Protestant against Protestant, and try to foist your own religion upon the minds of men. If you can do one you can do the other. Ignorance and fanaticism is ever busy and needs feeding. Always it is feeding and gloating for more. Today it is the public school teachers, tomorrow the private. The next day the preachers and the lectures, the magazines, the books, the newspapers. After while, your honor, it is the setting of man against man and creed against creed until with flying banners and beating drums we are marching backward to the glorious ages of the sixteenth century when bigots lighted fagots to burn the men who dared to bring any intelligence and enlightenment and culture to the human mind.

Three days later, Judge Raulston bars the defense from presenting eight scientific experts that had been brought to Dayton to support Darwin's theory. Their prepared statements are published widely in the press, however, and Darrow's effort to turn the trial into a national biology lesson is successful. Darrow says in response to the Court's ruling excluding his experts: "I cannot understand why a bare suggestion of anything that is perfectly competent on our part should be immediately overruled." Judge Raulston asks Darrow, "I hope you do not mean to reflect upon the court?" Darrow's reply, which earns him the first contempt citation of his career, "Well, your honor has the right to hope."

On the seventh day of trial, Raulston asks the defense if it had any more evidence. What follows is probably the most amazing court scene on Anglo-Saxon history. Williams Jennings Bryan is called to the stand as an expert on the Bible. Bryan assents, stipulating only that he should have a chance to interrogate the defense lawyers. He takes a seat on the witness stand, and begins fanning himself. Darrow begins his interrogation of Bryan with a quiet question: "You have given considerable study to the Bible, haven't you, Mr. Bryan?" Bryan replies, "Yes, I have. I have studied the Bible for about fifty years." Thus begins a series of questions designed to undermine a literalist interpretation of the Bible. Bryan is asked about a whale swallowing Jonah, Joshua making the sun stand still, Noah and the great flood, the temptation of Adam in the garden of Eden, and the creation according to Genesis. After initially contending that "everything in the Bible should be accepted as it is given there," Bryan finally concedes that the words of the Bible should not always be taken literally. In response to Darrow's relentless questions as to whether the six days of creation, as described in Genesis, were twenty-four hour days, Bryan says "My impression is that they were periods." Bryan, who began his testimony calmly, stumbles badly under Darrow's persistent prodding. At one point the exasperated Bryan says, "I do not think about things I don't think about." Darrow asks, "Do you think about the things you do think about?" Bryan responds, to the derisive laughter of spectators, "Well, sometimes." Both old warriors grow testy as the examination continues. Bryan accuses Darrow of attempting to "slur at the Bible." He says that he will continue to answer Darrow's impertinent questions because "I want the world to know that this man, who does not believe in God, is trying to use a court in Tennessee--." Darrow interrupts, "I object to your statement" and to "your fool ideas that no intelligent Christian on earth believes." Raulston orders the court adjourned and the next day strikes Bryan's testimony from evidence. The confrontation between Bryan and Darrow is reported by the press as a defeat for Bryan. His performance is described as that of "a pitiable, punch drunk warrior." The trial is nearly over. Darrow asks the jury to return a verdict of guilty in order that the case might be appealed to the Tennessee Supreme Court. The jury complies with Darrow's request, and Judge Raulston fines him $100. Six days after the trial, William Jennings Bryan is still in Dayton. After eating an enormous dinner, he dies in his sleep. Clarence Darrow is hiking in the Smoky Mountains when word of Bryan's death reached him. When reporters suggested to him that Bryan died of a broken heart, Darrow says, "Broken heart nothing; he died of a busted belly."

There will never be another Darrow. He was, like us all, a product of his times. For him, it was a time of class conflict so intense as to border on class warfare. It was a time during which the Radical Left-- anarchists, socialists, communists-- were at the peak of their influence. It was a time of Jim Crow, of lynchings, a time during which the Klu Klux Klan called the shots in parts of our country. It was a time of unprecedented xenophobia. It was a time of whirl and social change-- a time when the modernist notion of asking whether a behavior pleased one's own intellect began to challenge the Victorian way of asking whether the behavior was approved of by society. Mechanistic thinking was in the air: Darwin, Herbert Spencer, Marx, Nietzsche, Freud. Darrow was shaped, in both positive and negative ways, by these forces. Invariably, he saw his client's cases as inextricably linked to these large philosophical and social issues. He fought his battles not just for his clients, but also for the hearts and minds of the American people.

There will never be another Darrow. Power has shifted in the American courtroom since he ended his career. It's shifted away from attorneys and juries and to judges. There are more constraints operating on trial lawyers today; trials are more scripted. Few modern judges would let a defense attorney call a prosecutor as a witness; few judges today let attorneys depict their client's cause as bound up in the mechanistic workings of the ambivalent universe; the personal stories, the biting sarcasm, and the everpresent poetry that we find in Darrow's summations would likely be met today with judicial disapprobation.

There will never be another Darrow. In the pre-television, newspaper world of Darrow, words mattered more than images. Oratorical skills were valued; whole speeches were heard and were read-- not just sound bites. The ability to use words well could make one a hero in Darrow's time, a time that was the Age of Heroes (Ruth, Lindbergh). Clarence Darrow was at the same time one of the best loved and most hated men of his time-- it is hard to imagine a trial attorney achieving that status today.

There will never be another Darrow. In his time, there was a general belief that intellectual battles could be won, not just fought. That Science could beat Fundamentalism or that Fundamentalism could beat Science. That Trade Unionism would win, or Trade Unionism would be routed-- there seemed no middle way.

There will never be another Darrow. The would-be Darrows of our time move to New York City to become struggling poets or philosophers, they don't go to law schools. With his big brain and restless heart, with his love of Voltaire and Tolstoy, and most of all with his lazy streak, it is hard to envision Darrow cramming for a Tax or UCC final.

There never will be another Darrow.

Darrow once said, "Inside every lawyer is the wreck of a poet." Darrow also had a poet in his law firm. He was joined in his practice by Edgar Lee Masters, who later authored the Spoon River Anthology. Their relationship was often strained, but Masters was moved to write an empathetic poem about his old law partner. Here is Masters' poem, Clarence Darrow:

This is Darrow, Inadequately scrawled,
with his young, old heart,
And his drawl, his infinite paradox,
And his sadness, and his kindness,
And his artist sense that drives him to shape his life
To something harmonious, even against the schemes of God.