Clarence Darrow: Attorney for the Damned (29 page)

Gooding moved to get the White House to quash the investigation. He sent Roosevelt copies of Pinkerton reports which revealed that the prosecution had another spy—Operative 21—embedded in the defense who warned that Haywood’s legal team had gotten wind of the probe. “Everything should be made subservient to this great trial,” Gooding wrote, urging Roosevelt to rein in the investigators.

Roosevelt caved. There were no lectures on propriety this time. If he had any qualms about Gooding’s news that the state of Idaho had used a Pinkerton detective to infiltrate the defense staff and corrupt the jury selection process, the president of the United States never voiced them. He ordered Bonaparte to seal the indictments until Borah had finished hanging Haywood. “I have sacrificed, or at least, endangered, some of the chances of a successful prosecution of the Steunenberg frauds,” Bonaparte reported back to Roosevelt, “in order … not to injuriously affect the chances of the prosecution in the Haywood case.”

Operative 21—a Pinkerton detective by the name of Johnson—was a deep-cover man for the agency. He had arrived in Idaho in the days after the assassination posing as a socialist agitator and wormed his way onto the local defense team. There he was assigned the task of surveying the people on the voting rolls, from whom the Haywood jurors would be chosen.
²²
Canvassing was a vital practice in a big trial. Teams of investigators from both sides would roam the countryside posing as salesmen or lost travelers, engaging the locals in casual gossip and turning the conversation to the case at hand. They would compile lists of each prospective juror’s age and occupation, political affiliation, and views about the case, unions, capital punishment, and other topics. Armed with the data, the lawyers would know what questions to ask to reveal a juror’s bias, and whether to spend one of their peremptory challenges to keep him off the jury.

Having Operative 21 handling this chore for the defense gave the prosecution a twofold advantage. His work for the defense, and other secrets, was available to the state. At the same time, he could feed misinformation to Darrow. A juror the defense might otherwise covet, having been maligned by Operative 21, might be challenged.
²³

O
N
M
AY
16,
the governor invited the press corps to the penitentiary and introduced them to
Harry Orchard. The eastern reporters—who had come to Boise hoping to find Dodge City and discovered Harrisburg with mountains instead—were grateful. For weeks they could salt their coverage with accounts of the day they had gazed into the soul of America’s deadliest killer.

“I have received no promise of immunity from anyone,” Orchard told them. “I have been moved only by a desire to do right.”

The
New York Times
led the coverage, as it would throughout the trial. The newspaper was the voice of Manhattan’s economic royalists and its editors had given the assignment to their chief Washington correspondent,
Oscar Davis, a Roosevelt enthusiast. Gooding personally escorted Davis to the interview. Orchard was dolled up in a gray suit with patent leather shoes. “His complexion is as fresh and pink as a child’s,” Davis wrote. “There was irresistibly a feeling in him of serenity and sincerity.”

At the time of the killer’s arrest, Orchard’s eyes had been uniformly described—by reporters, witnesses, and even McParland—as empty, cold, and cruel. Davis now found them “round, blue and shining, ready to twinkle merrily at the slightest suggestion.” Orchard was not permitted to speak about the case, and talked instead of the lessons he learned from his Bible. By the end of that twenty-minute interview, Davis had bought the
prosecution patter. He announced to his readers that Orchard had undergone a spiritual conversion, wished only to repent, and was testifying with no thought of saving his neck.

A few reporters retained their professional skepticism, noting in their copy that McParland had had more than a year to train Orchard. And some even failed to see the merry twinkle in Harry’s eyes. The
Denver Post
reported that Orchard “is admittedly a man who has played with all parties. At one time he owned mines himself. At another time he was a member of the Western Federation. At another he worked for the Thiel Detective agency. At still another time he was employed by some associated mine owners.” His confession, the paper said, “is almost too complete.”

And one prominent journal singled Darrow out for tribute. The
Mirror
, published by
William M. Reedy in St. Louis, carried a laudatory profile, written by one M. L. Edgar. Darrow’s “tireless mind roams through the world and space seeking out the reason of things … His control over men, over affairs, his power in a court and before a jury lies in his sincerity, his perfect truthfulness and his kindness,” Edgar wrote. “He could have been on the winning side, in the sunshine of favor, on the lips of those who make reputations. He could have been rich out of the coffers of privilege. But he chose what is called the thorny way.”

It was a glowing, perceptive account, obviously written by someone from Chicago who knew Darrow well and had ample opportunity to study him. A poet perhaps. The profile would be picked up and cited by other writers in the weeks to come. No one asked who M. L. Edgar was. And so it must be noted how, several years later, the poems of the
Spoon River Anthology
were first published in the
Mirror
, written by a close friend of Reedy, who delighted, throughout his life, in the use of noms de plume. “M. L. Edgar” was no doubt Edgar L. Masters, Darrow’s poetic partner in law.
²⁴

Chapter 9

BIG BILL

I speak for the poor, for the weak, for the weary,
for that long line of men who, in darkness and despair,
have borne the labors of the human race.

B
ig Bill Haywood went on trial for his life on May 9, 1907. For more than a year, he and Pettibone and Moyer had been imprisoned in the Ada County jail, down the stairs from the courtroom. Moyer was his same intense self and Pettibone still the “Happy Hooligan,” as his friends knew him. He had taken up leatherwork in jail, and on one piece burned a motto: “So live that every day you can look every man in the face and tell him to go to hell.” Big Bill seemed bigger than ever. He had exercised regularly, dug a vegetable garden, and studied Marx. Haywood had lost an eye in an accident when young and to focus had to turn his head. It gave him, the
Times
reported, an “unfairly” furtive expression, since the truculent union leader was nothing if not blunt.

Haywood’s extended family joined him in the courtroom, and rare was the newsman who missed the tableau of blond, ten-year-old Henrietta sitting in her father’s lap. The actress
Ethel Barrymore performed in Boise in a traveling theatrical trifle that summer and sat in on a session of the trial. She appreciated Darrow’s stagecraft: “He had all the props: an old mother in a wheelchair and a little girl with curls.”

The courtroom was plain and rectangular. Its most notable feature was its intimacy. Instead of sitting off to one side, the jurors were seated directly in front of and slightly below Judge
Fremont Wood’s bench, looking out toward the room. From the chairs in which they softly rocked, they could gaze squarely at the witness, who sat in an armchair on a raised platform, facing them, some fifteen feet away. In the pit between the jury
and the witness chair were tables for the press, court stenographers, and lawyers. It was crowded (the defense routinely had half a dozen lawyers besides Darrow at its table) and hot. At any one time the spectators would include gunmen, celebrities, or whiskered socialists. There were pitchers of water and inkwells, the jurors’ broad-brimmed cowboy hats hanging on pegs along the wall, and blue and white spittoons. Witnesses would raise their hands, swear to tell the truth, spit, and take the stand.

It took a month to select a jury. Four venires, with more than 250 potential jurors—“talesmen,” as they are called—had to be summoned. The prosecution and the defense hoarded their peremptory challenges, and grilled the candidates about their occupations, political and religious beliefs, union affiliations, newspaper subscriptions, and opinions of President Roosevelt. The prosecution labored to keep unionists off the jury; the defense to bar the suspiciously large number of bankers. By repeatedly asking about “probable cause” and “reasonable doubt” the defense began its work of indoctrinating the jurors.

Hawley and the other attorneys stayed in their seats when conducting the voir dire. Darrow, dressed in homely clothes, with baggy trousers and unshined shoes, chose to stroll around the courtroom or to drape himself over the back of a chair, or lean into the box to question a man. His soft drawl and relaxed approach irritated Hawley, who complained to the judge: “That is no way to examine a juror.” Hawley wanted Darrow to drop the “confidential exchange of views.” There was method in Darrow’s manner; he believed that a juror’s decision was inevitably based on emotion, not intellect. The more he could, in quiet conversation, weigh a man’s heart, the better. Watching Darrow at work picking jurors, Haywood said admiringly, was like watching a man “killing snakes.”

Even Darrow had a hard time with one sluggish serpent.
Harmon Cox had a daughter who worked as a scab for the local telephone company when its operators went on strike. The defense didn’t want to waste a peremptory challenge, but old man Cox resisted Darrow’s attempts to portray him as biased. Darrow sat on the edge of the defense table, twirling his eyeglasses, launching question after question. “I challenge this juror for incompetency,” Darrow declared. “He is ignorant and no man should be tried for his life by such a man on the jury.” He looked plaintively, in appeal, to Borah, who sat on the edge of his own table, jauntily
tapping his foot. “State your challenge,” Borah said. “And cut out your stump speeches.”

It cost the defense a peremptory challenge to rid themselves of Cox. But killing snakes is an inexact science, and all the lawyers had bad days. By the time the last two jurors were chosen both sides were out of challenges, and cattleman
O. V. Sebern and builder
J. A. Robertson joined the jury almost as an afterthought. At first glance, the state appeared to have won the opening skirmish. Sebern had sat on a jury that hanged a man.
Lee Schrivener had once worked as a sheriff, and
Samuel Russell as a justice of the peace. Robertson had leased a room to Steunenberg in the governor’s first term, and
Thomas Gess had known Steunenberg for more than a decade. All twelve men were farmers or ranchers; eight were Republicans and one a Prohibitionist. None of the jurors were wage earners and just one had ever—briefly and long ago—belonged to a union. Their average age was around sixty.
¹

“I
AM GOING
back to Idaho … to begin the fight of my life,” Darrow had told
Brand Whitlock, just before he and Ruby left Chicago. They had traveled to Boise via a long train ride over desert wastes, where Darrow could not decide which was worse: to shut the window and roast like a shoulder of pork, or to open it and choke on “the clouds of powdered alkali.” They arrived at the end of April and found a rented cottage, with a garden of lilacs and roses. Darrow liked the food, especially the tenderloin steaks. “Except for the hard work, intense worry and suffering and the bitter opposition,” he recalled, “it was a pleasant place.” Ruby remembered the icy reception given them by the “respectables,” with their “air of ultra goodness, whose skirts were drawn aside from such persons as attempted to decree what their friends—mine owners and bosses and bull pen inventors and goaders and crucifiers of slaves—should grant as additional pay. THAT was an unheard of impertinence.”